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Police v Waluka [1999] PGDC 2; DC48 (25 March 1999)

Unreported District Court Decisions

[1999] PNGDC 22 - POLICE V TITUS WALUKA

[1999] PNGDC 22

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NOS 1536-1548 OF 1998

POLICE (Informant)

v

TITUS WALUKA (Defendant)

Kimbe

S Lenalia PM

10-11 March 1999

25 March 1999

CRIMINAL LAW�Practice�Committal Proceedings�Misappropriation Charges�Committal proceedings where defence makes submission�Consideration of Evidence�Disclosure of sufficient evidence�Defendant committed�District Courts Act (Ch40) s94 B(1)(c), (2)(b).

Cases referred to

The State v Paul Kundi Rape [1976] PNGLR 96

May v O'Sullivan [1995] HCA 38; (1955) 92 CLR 654

Jacob Hendrich Prai and Otto Ondawame v An Officer of the Government of Papua New Guinea (No 1) [1979] PNGLR 1

Legislation

Criminal Codes 383A(1)(a), (2)(b)

District Courts Act (Ch40) s32, s33, s94 B(1)(c), (2)(b), (3), (9)(a)(b), s95(1), (2) and (3), s96(1), s93 - s103

Representation:

Counsel/Representative:

Informant: Sgt. Sukena

Defendant: N Kubak

Lawyers/Representative:

Informant: Prosecution Division [Kimbe]

Defendant: Kubak Lawyers

25 March 1999

S LENALIA PM:

N1>[1]����� The defendant is charged with thirteen (13) counts of misappropriation alleging misappropriation of various sums of monies stated in the thirteen charges. It is alleged by police in Kimbe that these offences were committed by the defendant in March 1996 whilst being employed by the Independent State of Papua New Guinea as a Finance Advisor to the West New Britain Provincial Government. Monies stated in these various information were the property of the Independent State of Papua New Guinea. The charges are brought under s383A(1)(a), (2)(b) of the Criminal Code.

N1>[2]����� These matters are still in committal process and all evidence has been tendered to this court for deliberation under s94B of the District Courts Act (Ch40). The matters have been adjourned from time to time awaiting the defendant's lawyer until the defence lawyer turned up on 10 this month to make a submission in relation to the evidence as provided for under s94B(2)(b) of the District Courts Act.

N1>[3]����� For clarity's sake, a submission made pursuant to s94B(2)(b) of the Act must not be confused with a "submission of no case to answer" as defined by the case of The State v Paul Kundi Rape [1976] PNGLR 96 which establishes two basic principles. First it seeks to say that when there is a submission of no case to answer at the close of the case for the prosecution, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether or not on the evidence as it stands an accused could lawfully be convicted. May v O'Sullivan [1995] HCA 38; (1955) 92 CLR 654. The second segment of the rule is distinguished from the question of fact to be asked at the close of all the evidence both for the prosecution and defence which question is the question of fact namely whether on the whole of the evidence a tribunal is satisfied beyond reasonable doubt that an accused is guilty.

N1>[4]����� A submission made in terms of s94B(2)(b) is quite distinct from the two principles stated in Kundi Rape's case since a committing magistrate must only form an opinion on the evidence presented to him or her pursuant to s94 and he or she must only consider one issue and that is to say whether the evidence presented to it under s94B(1) discloses sufficient evidence to put the defendant on his trial for the offence for which he or she is charged. At that stage of committal proceedings the question of guilt does not arise nor is it a determination for or the task of a committing court. Simply put, the statutory task of a committal court is to decide if there is sufficient evidence, he is bound to commit for trial in the National Court. If it considers that there is insufficient evidence to put the defendant on trial for an indictable offence the court is to immediately order the defendant to be discharged as the information then under inquiry. s95(2), (3) District Court Act.

N1>[5]����� The defence submission contains two issues. The preliminary segment of Mr Kubak's written submission relates to the sections charged. The section originally charged was s383A(2)(b) of the Criminal Code. The essence of Mr Kubak's submission is that, the informations laid are the most confused and misleading in the sense that the sections charged do not disclose any offence and which I quite agree. Mr Kubak further argued that s383A(2)(b) does not stipulate any offences because it merely provides for the penalty for those various categories of personalities defined in that section.

N1>[6]����� After Mr Kubak's submission the prosecution successfully sought an adjournment until next day to allow the prosecutor to make a reply. Sergeant Sukena amongst other factors submitted that despite the irregularity in the informations, the court in exercising its discretion should amend the information as stipulated by s32 of the District Courts Act.

N1>[7]����� The law in relation to amendment is contained in s32 and s33 of the District Court Act. The former section states:

N2>"32.��� Want of form or variance in information, etc.

No objection shall be taken or allowance to an information, or to a summons or warrant to apprehend a defendant issued on an information, for an alleged defect in the information, in substance or form or for a variance between it and the evidence in support of the information and any such variance may be amended by order or the court or the hearing."

N1>[8]����� No authorities were sited to this court on the issue of amendment but the importance of s32 of the Act is that where an information is preferred and laid before a magistrate it should sufficiently disclose the offence not with the intention to contain every element of the charge, but it must sufficiently describe the offence intended by police: Jacob Hendrich Prai and Otto Ondawame v An Officer of the Government of Papua New Guinea (No 1) [1979] PNGLR 1 see page 7. The variance referred to by the defence relates to an incorrect subsection being charged in the thirteen information. It is my view that if I were to grant an amendment as I did would not in anyway cause any prejudicial effect on the evidence already tendered and the information that have been preferred against the defendant. I am also of the view that power given this court under s94B(1), (9)(a)(b) and s95(1), (2) and (3) includes the power to amend an information to ensure the evidence presented before a committal court accords with the sections charged in the information. I gave an ex-tempore direction to the prosecution to amend the section originally charged. The amended information have been incorporated and the new ones now charged s383A(1)(a), (2)(b)of the Criminal Code.

N1>[9]����� The second issue raised by the defence relates to evidence in regard to each count. The counsel submitted that as brief statements show and apart from the record of interview, there is nothing else in the evidence which would show that the defendant did in fact used the sums stated in the information to his own use. I have alluded to the fact that trial on indictment is preceded by a preliminary hearing in the District Court which we refer to in this jurisdiction as "committal proceedings " the subject of Part VI (ie s93-s103) of the District Courts Act. committal proceedings must not be confused with a trial itself as an accused is not asked to plea as well his guilt does not become an issue to be decided as it is the task of a trial court in this instance, the National Court.

N1>[10]��� Committal proceedings are designed merely to identify those cases where the prosecution would obviously fail to secure a conviction so that in such cases an accused may be spared the strain and expenses of a trial on indictment. Thus this court is faced with one question to answer and that is whether the evidence put before me raises prima facial case sufficiently to commit him to stand his trial in the National Court.

N1>[11]��� Due to the complexity of the nature of the evidence and due to the fact that these charges were and are a string of offences involving thirteen separate offences as compared to a single, charge, I would order that there is sufficient evidence to commit the accused to stand his trial in the National Court and I must now administer the warning in s96(1) of the District Court Act.