Papua New Guinea Law Reports - 1984
[1984] PNGLR 410
SC284(M)
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
MONA MELUK
V
PHILIP OGE
Waigani
Pratt Amet Woods JJ
29-30 November 1984
SUMMARY OFFENCES - Fighting in manner likely to cause bodily injury to “some other person” - Elements of offence - Some other person means non-protagonist - Two persons assaulting third person - Offence not made out - Summary Offences Act 1977, ss 1, 10(a).
Section 10(a) of the Summary Offences Act 1977 provides:
“Where two or more persons are fighting in a manner that is likely:
(a)      to cause bodily injury to some other person; ... they are each and severally guilty of an offence.”
Section 1 defines “fight” as:
“... a fight in which two or more people are assaulting one another in a manner that is likely to cause bodily injury to some other person or so as to cause bodily injury to the property of some other person; and ‘to fight’ has a corresponding meaning.”
Held
(1)      In order to establish an offence under s. 10(a) of the Summary Offences Act 1977 there must be two people fighting each other where there is a likelihood of innocent by-standers or non-protagonists (any other person) being hit in a manner likely to cause bodily injury.
(2)      Accordingly, where two people join in assaulting a third person the offence is not made out.
Appeal
This was an appeal against conviction and sentence on the charge of an offence contrary to s. 10(a) of the Summary Offences Act 1977.
Counsel
E. Batari, for the appellant.
E. Kariko, for the respondent.
Cur. adv. vult.
30 November 1984
AMET WOODS JJ: The appellant was charged under s. 10(a) of the Summary Offences Act 1977 that “being two or more did fight in a manner that was likely to cause bodily injuries to some other person”. Section 10(a) reads:
“Where two or more persons are fighting in a manner that is:
(a)      to cause bodily injury to some other person;
...
they are each and severally guilty of an offence.”
Briefly, the facts before the magistrate were that the appellant and another person, his brother sought out the victim because of an incident that had happened earlier and with anger on their faces they assaulted him. There was no mention that the victim had fought back.
The facts before the magistrate were agreed to by the accused and a plea of guilty was entered. The accused was sentenced to the minimum of twelve months imprisonment with hard labour.
The appellant appealed from the District Court to the National Court on the ground that the conviction was wrong and/or that the sentence was manifestly excessive.
On the hearing of the appeal, the appeal judge saw no errors in the conviction or sentence and thereupon dismissed the appeal.
The appellant has now appealed to this Court on the ground that the appeal judge erred in law in holding that a person assaulted may be regarded as “some other person” within the meaning of s. 10(a) of the Summary Offences Act and further that there was insufficient evidence that the fighting was likely to cause bodily injury to persons not in the fight.
The appeal judge and apparently the magistrate found that on the facts presented the victim was “some other person” in the terms of s. 10(a) because he did not fight back.
Whilst it is quite clear that “some other person” in s. 10(a) must mean someone not fighting both the appeal judge and the magistrate appear to have failed to consider the elements of “fighting” in their consideration of the section.
Section 1 of the Summary Offences Act defines fight as:
“... a fight in which two or more people are assaulting one another in a manner that is likely to cause bodily injury to some other person or so as to cause bodily injury to the property of some other person; and ‘to fight’ has a corresponding meaning.”
It is quite clear that under s. 10 there must first be people fighting each other where there is a likelihood of innocent bystanders or non-protagonists being hit in a manner likely to cause bodily injury.
For example, if A fights B and B fights A and there is no one else present, there is no offence under the section though undoubtedly A is guilty of assaulting B and B is guilty of assaulting A.
However if A and B are fighting by throwing stones at each other across the road and someone coming down the centre of the road could be hit then a charge under the section may well be justified.
However on the facts in this case the appellant and his brother were not fighting each other but were ganging up to assault the victim.
Whilst these facts may substantiate a charge of assault or some similar charge they do not substantiate a charge of “fighting” under s. 10.
We would allow the appeal and quash the conviction and orders of the magistrate made on 8 March 1984.
PRATT J: I agree with the reasons of Amet and Woods JJ. and I would allow the appeal and quash the conviction and orders of the magistrate made on 8 March 1984.
Appeal upheld.
Conviction and sentence quashed.
Bail refunded.
Lawyer for appellant: The Public Solicitor.
Lawyer for respondent: The Public Prosecutor.