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State v Nembo [2018] PGDC 37; DC3091 (6 June 2018)

DC3091

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE

CRIMINAL (COMMITTAL) JURISDICTION
CR. 67 OF 2017

THE STATE

Informant

-VS-

GIDION NEMBO
Defendant

District Court Wabag : SAGU, PM

2018 : June, 6

CRIMINAL LAW PRACTISE & PROCEDURE- Committal Process Courtof enquiry -to form a bona fide opinion whether there is sufficient evidence to commit the defendant to National Court- Prima Facie Case Established-Defendants committed to the National Court

Case Cited:
The State - vs- John Wanji [1997] PGNC 16; N1516 (24 Feb.1997).
Regina -vs-McEachern [1967-68] PNGLR 48.
Backey Yarume v Sylvester Euga (1996) N1476,
Regina – v- Kiki Kau’Au (1970) N557

Review Pursuant to Constitution Section 155(2) (b)Application by Herman Joseph Leahy (2006
Akia v Francis (2016)PGNC 335 N6555

Legislation Cited
Criminal Code Act
District Courts Act

References

Magistrates Manual, Hill E. R. &G. Powles.G -
Representations
Sgt Simino Suprum : Informant
Defendant:In Person

COMMITTAL COURT DECISION

1. SAGU PM: This is a committal decision on the Defendant GIDION NEMBO, a male aged 19 years old from Niug village, Laiagam District Enga Province, who is charged that on the 22^nd day of October 2017 at Waiep village in Laiagam did attempted unlawfully to kill one Panecia Yapalyn and adult male by chopping his knees and legs with a bush knife who sustained multiple injuries to his legs thereby contravening Section 304(1) of the Criminal Code Act as amended..
   

BRIEF FACTS

2. On the night of the 21^st around 10-11pm, Panecia Yapalyn (the victim) was at Niug village. He was with the Gidion Nembo (Defendant) who is his cousin brother, Jaydon Wallen Laipen and Nathan. Gidion and Nathan went to the snooker house while Jaydon was with him. After a few minutes Jaydon decided to join them and gave his paia wara (home brewed beer) to Panecia Yapalyn (the victim) to look after. After a while the victim decided to leave toward Waiep Lodge and took the paia wara with him and drank it. He also drink some more of the same and also SP beer too. Around 2.00am in the morning of 22th October he arrived at Waiep village and was standing on the side of the road and the Defendant, Jaydon and Nathan approached him. Jaydon asked defendant for his paia wara but victim told him he drank it. Then Jaydon ask for his Bum Box, and just then the Defendant screamed saying give him his Bum Box and he the defendant chopped the victim with a long Tramontina bush knife, on his knee, right tendon, left calf muscle and on high left leg. The victim suffered multiple severe wounds which were treated by the Wabag hospital.
   
3. SUBMISSION: The Police and Defendant had no submissions to make and asked the court to proceed with its decision.
   

NATURE OF COMMITTAL PROCEEDING.

4. The committal proceedings are as provided in the District Court Act, Section 93 – 103. A committal proceeding is a court of inquiry into the strength of the Police case on the evidence contained in the hand up brief tendered into court by the Police, and it is not an act of adjudication. It is not my function to determine whether or not the person accused is guilty of the offence charged. The proceedings are of an investigatory, tentative and non-conclusive nature.
   
5. Under Section 94B (1) of the said Act, I may commit the accused to stand trial before the National Court without considering the evidence. Section 95 (1) of the said Act requires this Court to consider whether the evidence is sufficient to commit the accused to stand trial in the National Court. In considering the evidence the criminal burden of proof does not apply since the witnesses for the prosecution have not been put to cross-examination; see The State –v- John Wangil [1997] PGNC 16; N1516 (24 Feb1997). I may only form an opinion in good faith that there is sufficient prima facie case been established to put the accused to stand trial in the National Court; refer to Regina –v- McEachern [1967-68] PNGLR 48 and Yarume –v- Euga [1996] PGNC 24; N1476 (6^th Sept. 1996).
   
6. My primary objective of a committal proceeding is to determine whether there is sufficient evidence against the defendant to commit him to the National Court to stand trial Backey Yarume v Sylvester Euga (1996) N1476, unreported. That measure of sufficiency is less than the trial standard of proof beyond reasonable doubt. The test is whether there is some evidence present to support each of the essential elements of the offence.
   
7. This measure of sufficiency is less than the trial standard of proof beyond reasonable doubt.
   
8. It is not for the Committal Court to decide whether to convict or dismiss a person charged with a indictable offencein the committal process.
   
9. The High Court has been consistent in enforcing and restating the above position.
   In the Supreme Court in the case of a Review Pursuant to Constitution Section 155(2) (b)Application by Herman Joseph Leahy (2006) SC855the Court bench adopted the view by his honour Mogish J held in the National Court as I quote;
   

“That the role of a committal magistrate is not to decide whether to dismiss or acquit an accused person charged with an indictable offence or to determine the guilt or innocence of the accused. The magistrate's function under Part VI (proceedings in case of indictable offences) of the District Courts Act is to consider whether the evidence adduced is sufficient to put the accused on trial in the National Court. ...”

10. More recently in the case of Akia v Francis (2016)PGNC 335 N6555 Gavera –Nanu J re enforce the above position when he said:-
    

“The committal proceedings are governed by Part VI of the District Courts Act,Division1. It is of fundamental importance to note here that a committal proceeding is not a trial or a substantive hearing where a guilty finding or an acquittal of a defendant charged with an indictable offence can be made, it is an administrative process in which an inquiry is made into an indictable offence(s) charged to see if the evidence against the defendant constituted a prima facie case or is sufficient..”

STATE EVIDENCE

11. The Sate evidence mainly consist of three state witnesses, medical report, photographs, Record of interview (ROI) which are considered below
    
12. PANECIA YAPALYN (The Victim). The Victim Panecia Yapalyn was drinking Paia Wara (home brew) with the defendant, Jaydon Lapen Wallen and Nathan around 10pm at Niug village. Defendant offered the victim the drink. Then he and Nathan went to play snooker inside and Jaydon followed him. Jason had given half of his Paia Wara to the victim to hold for him and he joined the others in the Snooker game. The victim left for Waiep Lodge and drank that Paia wara.He arrived at the Waeip Lodge around 11.30pm. He bought some SP bottle and also paia wara and continued drinking there.

At around 2pm the victim Panecia arrived at Waiep village and was standing at the side of the road and Gideon, and Jaydon Lapen Wallen and Nathan came. Jaydon asked the victim for his paia wara which he had given him earlier to take care off. The victim replied he drank it. Then Jaydon ask the victim for a bum box and he gave that to him. Just then Defendant intercepted the conversation and shouted saying “where is the bum box” and without hesitation used his long sharp tramontina bush knife and chopped the victim on the left knee and left leg muscle. Again the defendant chopped the victim on his right tendon saying why did you take the bum box and victim fell onto the ground. As he was on the ground, the defendant chopped him on the neck but victim moved and missed. Victim was on the ground, and the defendant and the other two boys left leaving him to bleed to death and thinking he was already dead. The victim crawled with his hands to a dark spot behind a house and hide.

13. A male nurse Ben Rupha came searching for him who the victim recognised and responded. The nurse took him into the house and dressed the victim up on his wounds. During this time the victim saw the defendant present there too and asked him why he chopped the victim up and the defendant denied it.

The victim had lost a lot of blood and he was kept warm until taken to the Laiagam Hospital and then to Wabag hospital for surgery.

14. BEN RUPHA(The Male nurse. This is the witness who treated the victim and took him to the hospital). His statement is that On Sunday the 22^nd of October 2017 he was asleep in his house. Around 2.30am in the early hours of the morning he was awaken by the shouts of some six men which included the defendant. The Defendant said Panecia Yapalyn chopped a man on his neck he was alright but Panecia Yapalyn the victim they cut him on his legs and he has lost a lot of blood and his condition is not so well so we came to seek his help with the vehicle. This witness went in search for the victim who responded and he went closure and found the victim who had lost a lot of blood and he was very weak. The boys who called including the defendant were sent to Laiagam to collected first aid bandages etc. and came back Ben immediately treated him. While the victim was being treated he saw the defendant standing at the side and asked him why he had chopped him up. Defendant denied it was him and they started to argue and Ben stopped them. Victim was carried into the house and kept warm until the next day. The Victim and the Defendant are related being cousins. In the morning Ben took the victim to the Laiagam hospital but the wounds were very severe and required surgery so he brought him to the Wabag hospital where he was treated and hospitalised.
    
15. JIMS YAPLYN: He is the victim’s father. This witness was at Porgera and he received call from Daniel Dilya from Niung village who advised him that Gidion Nembo chopped his son Panceia Yapalyn resulting from an argument over Paia wara (home brewed beer). He asked Daniel Dilya to start enquiring while he is on his way. He arrived at Niug village around 2.30pm and the community gathered including the Defendant Gidion Nembo. He asked the Defendant why he chopped his son with the bush knife. Gidion stated that Yakop Angara and Londen Angara had told him to chop the victim. He told the defendant and the others to surrender but the community decided that only Gidion Nembo should be arrested so they handed him over to the Police who brought him to Wabag police where defendant was taken into police custody. On the way to the Police station Jim asked the defendant who else was with him and he replied Jason Jaydon Lapen.Jim proceeded to the hospital and was shock to see the wounds were deep and serious and he was in a critical condition that he could not help but cry. ON the 23^rd he went to the police station lodged the complaint and the defendant was charged.
    

MEDICAL REPORT – DR. TIMOTHY PYAKU

1. Dr. Pyaku examined and treated the victim of his multiple wounds. He suffered open fracture of his left leg bone –the tibia, near the knee join, Severance of the patella ligament of left knee, Partial severance of the right Achilles tendonLaceration of the left calf muscles.
   

16. Panecia’s treatment included multiple visits to the operating theatre for wound debridement, and other treatments. His ability to use his left knee to walk and bear weight may be impaired as requite of the injury. The injuries were consistent with the alleged use of a bush knife.
    

RECORD OF INTERVIEW

17. The defendant denies the charge. He says the victim was found by him on the road already chopped and wounded. He went looking for help. He perceived that the victim is a mental patient who is not normal and he often holds up people on the road so defendant thought he did that and some-one chopped him. He went looking for medical help for him and also he looked after him. Defendant states victim is related to him his cousin. He surrounded to police because, victim’s father accused him and he did not want trouble in the village.
    

Police Interviewing officer’s statement and photos

ELEMENTS OF THE OFFENCE ofATTEMPTED MURDER.

18. Attempted to commit offence is defined under Section 4 of the CCA and putting together with section 304(1) CCA which creates the offence of Attempted Murder; I must be satisfied that there is sufficient prima facie State evidence that :-
    
    • (a) the defendant intended to unlawfully kill the victim; and
    • (b) the defendant put his or her intention into execution by means adapted to its fulfilment; and
    • (c) the accused had manifested his or intention by some overt act
      
19. Although the offence does not specifically state “intention” as an element of the offence; the National Court in R v Kiki Kau’Au (1970) N557 held that intention to kill is a necessary ingredient of this offence which the State must prove.
    

SUFFICIENCY OF EVIDENCE

20. I ask the question has the State provided sufficient evidence in its hand up brief for the Defendant to stand Trial in the National Court. In considering the sufficiency of the evidence I need only see that there is some evidence to each of the elements of the offence stated above.
    
21. On the night of the 22^nd October 2017 The defendant, Jaydon and Nathan and the victim were together earlier in the night 10pm at Niug village drinking alcohol. The defendant is known to the victim being his cousin. The victim left them and came to Waiep village and he drank some more alcohol there. At Waiep village that night around 2.00pm he was on the side of the road at Waiep village the Defendant, Jaydon and Nathan came there. The victim in his statement says it was the Defendant who chopped him upwith a bush knife multiple times on his left knee and left leg muscle and gain on his right tendon Defendant suffered multiple deep wounds. He fell down and again the Defendant chopped him on his neck but he moved his neck and missed. The victim again saw defendant when he was being dressed for his wounds and asked him why he had chopped him with the bush knife to which defendant denied. Defendant had lost a lot of blood according to Ben Rupha the nurse. Had the nurse not attended to the victim when he did he would probably have died for loss of blood.
    
22. The medical report confirms these multiple wounds to be very serious to which the victim underwent several surgeries. His ability to use his left knee to walk and bear weight may be impaired as requite of the injury. The injuries were consistent with the alleged use of a bush knife.
    
23. The State evidence reveals that on the early morning of 22^nd October 2017 at Waiep Village in the Lagaip District Enga Province, the Defendant administered three serious
    

deep wounds to the victim’s body legs and knees by a long bush knife as described by the Medial evidence. In so doing the defendant had manifested his intention to kill the Victim.

24. I am of the view that there is sufficient evidence that the Defendant did attempt to unlawfully kill the victim Panecia Yapalin by inflicting multiple deep and very serious wounds on his body by use of a bush knife. The victim loss much blood had he not been rescued on time and brought to the hospital. The victim underwent several surgeries and one of his limp is permanently impaired according to the medical report.
    
25. 0 I am of the opinion in good faith that there is sufficient prima facie evidence being established against the accused Gidion Nembo to commit him to stand trial in the National Court on a charge of “Attempted Murder” under Section 304(1) of the Criminal Code.
    

DEFENDANT’S SECTION 96 STATEMENT

26. Having satisfied that there is sufficient prima facie evidence been established to commit the accused to stand trial in the National Court, I proceed to Section 96 of the District Courts Act to obtain the statement from the accused. I put and fully explained the section 96 (1) of the District Court Act and I gave the accused the opportunity if he has anything to say on his own behalf.
    

27. The accused in response said the following:

In Enga custom, we compensation and we paid compensation already as we are family. Amount of K4,000 cash & over. 4 goat plus bottles of coke. My people made compensation when I was still in the cells when the compensation was paid. I stayed back in the cell during the mass break out because I knew I did not do anything wrong.

28. I obtained Defendant’s Section 96 Statement as attached. I read it back to him and upon him confirming the content of his Statement being correct, he then signed it, as attached. Having obtained his Section 96 Statement, I then considered the evidence for the prosecution again. I find that there is sufficient prima facie case established against the Defendant that he be committed to stand trial in the National Court and make the following orders.
    
29. ORDERS OF THE COURT:
    
    1. Gidion Nembo, you are now committed to stand trial in the National Court on a

charge of “attempted Murder ” charged under Section 304 of the Criminal Code .

2. You are to appear before the National Court in WABAGon Monday 18^th April, 2018 at 9:30am for Listing.
   
3. Your bail on K1000 is extended until you appear before the National Court which may decide to reconsider your bail at will.
   

__________________________________________

Sgt. Simino Suprum: for the Police Prosecution:
Gidion Nembo : In person