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Police v Fango [2021] PGDC 109; DC6064 (12 August 2021)

DC6064
Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION

NCC NO 1164 OF 2020
CB NO 3595 OF 2020

BETWEEN:

THE POLICE
[Informant]

AND:
KIRU FANGO
[Defendant]

Waigani: Paul P Nii

12^th August 2021

COMMITTAL PROCEEDINGS: -Charge- Willful Murder -Section 299 (1) - of the Criminal Code Act 1974, Chapter No. 262. Exercise of committal jurisdiction to ascertain evidence in the Police file.

EVIDENCE: Legitimate obligation for prima facie case-Elements of the charge of Willful murder – Elements are established-Evidence is fitting to commit the Defendant for one charge to stand trial in the National Court. Defendant is committed.

PNG Cases cited:

Police v Kimisopa [2021] PGDC 76; DC6031 (30 June 2021)
Yarume v Euga [1996] PGNC 24;N1476 (6 September 1996)
State v Apuga [2009] PGNC 192; N3811 (28 October 2009)
Police v Koka [2021] PGDC 53; DC6010

Overseas cases cited:
Nil

References

Legislation
Constitution of the Independent state of Papua New Guinea
Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40

Counsel
Police Prosecutor: Peter Samghy For the Informant
In person: Defendant For the Defendant

RULING ON EVIDENCE

12^th August 2021

INTRODUCTION

NII, Paul Magistrate. This is a verdict on whether a prima facie case is demonstrated within the meaning of Section 95(1) of the District Court Act 1963, after evidence in the Police-Hand-Up-brief and Defense submission in respect to the police file is thoughtfully measured. On 28^th June 2021, Defendant tendered to the court his submission on insufficiency of evidence filed on 28^th May 2021. On 12^th July 2021, Police Prosecutor informed the court he will not make any response to the submission but basically for the court to consider and make a ruling on evidence and hereafter this is my ruling on evidence.

CHARGE

1. Defendant is charged with one count of Wilful Murder under Section 299(1), of the Criminal Code Act 1974, Chapter No. 262.
   

FACTS

2. It was alleged by Police the Defendant now in court is a co-accused to the principal offender who allegedly murdered the deceased. Police allege on 26^th September 2020, at Gordon’s in NCD, the Defendant was with the principal offender when the principal offender stabbed the deceased just below the neck with a screw driver which penetrated to the lung. Police further allege the decease subsequently fell on the ground and bled severely from his mouth and nose. The deceased was later taken to Port Moresby general hospital by bystanders but pounced death upon arrival.
   

ISSUE

3. Whether a prima facie case is judiciously confirmed and that is whether Police evidence is satisfactory to commit the Defendant.
   

THE LAW

The Law on Committal Proceedings

Section 95 of the District Court Act 1963

95. Court to consider whether prima facie case.

(1) Where all the evidence offered ^[1]on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.

(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division

4. Sections 95 of the District Court Act 1963, provides the legal basis for Committal Proceedings. The court must be pleased that all elements of the charge is presentable so the court will make a ruling on evidence. It is not this court’s jurisdiction to test evidence but only to weigh it to ascertain whether there is sufficient evidence against the Defendant regarding the allegation of Willful murder. If the evidence in the police file is not enough then the information against the Defendant should be dismissed.
   
5. I have well enlightened in Police v Kimisopa [2021] PGDC 76; DC6031, that committal court functions as an organizational progression in which the court weights evidence in the Police-Hand-Up-Brief to confirm whether there is prima facie evidence to commit the Defendant. My position is also reinforced by Akuram, J in Yarume v Euga [1996]PGNC 24;N1476, that the tenacity of committal court is to gather proof against the allegation and weigh it to decide whether there is satisfactory evidence meeting the elements of accusation before a suspect is committed.
   

CHARGE

The offending Law under which the Defendant is charged with:

299. Wilful murder.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder

ELEMENTS OF THE OFFENCE

6. The elements of Willful murder are proven by Paliau, AJ, in State v Apuga [2009] PGNC 192; N3811, as: is a person, kills another person, intending to cause that person's death is guilty of willful murder. Nevertheless, I will further break down the elements in the succeeding terms:
   
   1. is a person
   2. kills
   100. another person
   4. intending to cause
   5. that person's death
      

EVIDENCE

7. The Police v. Kimisopha^[2] case declare the prominence of evidence that it plays a domineering part in the management of criminal justice to make sure an appropriate decision on evidence is arrived at. I have also declared in Police v Koka [2021] PGDC 53; DC6010 that an information rests a mere accusation unless reinforced by evidence..(emphasis added)..
   

“An allegation will only be proven through evidence since it is the accessible body of facts or material designating whether the allegation against the Defendant is proper or made-up”.

8. The evidence prepared by Police in the Police-Hand-Up-Brief and tended in court dated 30^th March 2021, should qualify the elements of the offence of Willful murder. An accused cannot be committed if evidence do not meet all the elements of Willful Murder.
   

PROSECUTION CASE

9. On 12^th July 2021, Police Prosecutor Peter Samghy requests for the court to peruse the substances of the police file and make a ruling on sufficiency of evidence. Prosecutor made the remakes in reaction to the submission on insufficiency of evidence filed by the Defendant.
   

Witness list and Evidence in brief for the prosecution case

1. Kiap Kupi Pisoro – This witness testifies the deceased fought with the primary offender and he sustained injuries and subsequently deceased tried to compensate the Defendant but he refused. However, witness stated the Defendant later stabbed the deceased and he died.
   
2. Christina Alex – The witness testifies to the court about what she heard from the accused. This state witness says the accused was using threatening words against the deceased that his life was in his hands, an unceremonious connotation preordained to murder the victim.
   
3. Christina Rex- the witness says in her statement that the Defendant got drink one day and came to her house and threatened to kill her husband and he later broke a beer bottle close to where she was standing and walked away.
   
4. Junior Waro, Tom Iparas, Magalena Miso and Newman Willie– these witness statements demonstrates that they saw the primary offender stabbed the decease with a screw driver below the neck close to his back chest.
   
5. Kenny Kisakali- this witness says the Defendant came and grabbed the screw driver from him and went away. Witness says he did not know the motive why the Defendant grabbed the screw driver until after the incident he leant that the Defendant stabbed the decease with the same screw driver.
   
6. Paul Atuso, Yalo Miso, Kemos Konga, Steven Eka and Nei Pige- they are police arresting officer, corroborator, photographer and other who were at the police station and arrested the Defendant. Their statements contain exhibits of screw driver and the Defendant’s confirmation.
   
7. Dr Philip Golpak – he is the Doctor who conducted the post mortem and his evidence testifies how the screw driver penetrates the internal organs and that resulted in the death of the decease.
   

DEFENSE CASE

10. Defendant challenged the Allegation against him that witness statement of the decease father Kiap Kupi Pisoro is based on hearsay and unreliable because he was in Mt Hagen at the time of accident. There is no evidence of a mobile phone conversation between the accused and deceased’s father and his son to proving the allegation of using threats by the Defendant. Defendant also says witness statements given by Alex Christian and Rex Christina are defective and unreliable as they are unsigned which is not in line with Section 94(1A) of the District Court Act. Defendant also submits all the other civilian witnesses are unreliable and unsafe as they all did not mention anything in relation to connect the Defendant to the offence.
    
11. Defendant finally objected to the allegation by saying there is no evidence of making insulting sexual gesture to any of the deceased family members by the Defendant at the Crime Scene after the stabbing. On the same grounds, Defendant says all police evidence and exhibits are unreliable to support the allegation against the Defendant. Lastly, Defendant argue that he did not send any threatening words to kill the Decease at any time and there is no evidence that Defendant was lawfully arrested by Police as the summary of facts sanctions same.
    

CONSIDERATION OF EVIDENCE

12. Defendant is undoubtedly not the primary offender but a co-accused as it is evident in the Police Statement of facts and witness statements. The Defendant was arrested and charged because it was alleged he was also seen at the time and location of the Murder. Moreover, Defendant was accused of threatening to kill the decease when he was together with the principal offender some time ago at Erima when he was drunk. The deceased’s wife Christian Alex’s statement dated 6^th November 2020, indicated that on a Saturday 17^th June 2020, at about 5.30pm, the Defendant gave threatening words to the effect where he said to take the deceased’s life and he would go down to six(6) feet meaning to kill the deceased. This witness also confirmed that Defendant was seen within the vicinity of the murder. The statement of Christina Rex dated 5^th of October 2020, also specified the Defendant was issuing threatening words by saying the deceased’s life was on his hands. The statement of Pisoro Kiap Kupi, the deceased’s father dated 5^th October 2020, revealed his son the late Alex Pisorop called him on a phone when he was in Hagen that Defendant was threatening to kill him. All the other witness statements do not relate to the Defendant but the Principal offender and thus it is not obligatory to consider their statements. Also the statements of Police Arresting Officer and Corroborator are not applicable as they do not communicate very much to the Defendant in the circumstance.
    
13. The statements of Pisoro Kiap Kupi, Christina Rex and Christian Alex should be carefully studied since they all connect the Defendant to the crime. However, the statements of Christina Rex and Christian Alex do not meet the legal requirement under Section 94(1A) of the District Court Act, because they are not signed by the maker of the statements at the end of their statements and hence these statements are refused. This Law on Section 94(1A) of the District Court Act, says, I recite hereunder:
    

^[3]94. Copy of information, etc., to be served.

(1) Subject to Subsection (6), where a person is charged with—

(a) an indictable offence that shall not be tried summarily; or

(b) an offence against Section 420 of the Criminal Code where the offence is not to be tried summarily,

the informant shall serve or caused to be served, in accordance with Subsection (3), on the defendant or his legal representative—

(c) a copy of the information; and

^[4]

(d) a copy of each statement that the informant intends to tender at the committal hearing; and

(e) a list of documents and exhibits referred to in a statement referred to in Paragraph (d) that the informant intends to tender at the committal hearing; and

(f) a copy of each document referred to in Paragraph (e).

^[5](1A) A statement referred to in Subsection (1)(d) shall contain the following warning to the maker of the statement and shall be signed by the maker of the statement:—

'I...certify that this statement is true to the best of my knowledge and belief. I make it knowing that if it is tendered in evidence I will be liable to prosecution if I have knowingly stated anything that is false or misleading in any particular.

14. The person making the deceleration or statement should sign at the end of each page to certify that whatever he/she says is true and not being fabricated. In here these two statements are not singed and hence I don’t know who made the statements and therefore will decline these two statements. However, the statement of Pisoro Kiap Kupi is signed and therefore it is legally before the court and I will accept this.
    

RULING

15. The Evidence before me fulfils the Defendant is not the person that purportedly killed the victim but was categorised as a co-accused or someone that planned, aided and helped out in the execution of the murder. Therefore, Section 7 of the Criminal Code Act, is pertained in the circumstance. The Law:
    

Division 2.—Parties to Offences.

7. Principal offenders.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

(d) any person who counsels or procures any other person to commit the offence.

(2) In Subsection (1)(d), the person may be charged with—

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment,

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.

16. The statement of Pisaro Kiap Kupi mentioned he was called by his late son on the phone about the threats being issued against him by the Defendant. These threats were issued to the decease prior to his murder. The Defendant also indicated on his statement to Police dated 30^th September 2020, that he was at Gordons at the time when the deceased was murdered. I will quote his tok pidgin version:
    

“long Gordons mi go sanap lo side bilong gordons police barracks were al magi save salem al frezda kakaruk...Mi sanap yet wantim al time mi harim public tok olesam al kilim 1pla mangi antap long Police station side” (end of quote)

17. None of the evidence from Police witness says why the Defendant went to Gordons at the time of murder but to me it is evident that Defendant was at the place of murder when the murder took place. The only evidence that Defendant is connected to the offence is his presence near the murder and his prior threats to the Deceased. Defendant objected to the statement made by the Accused’s father that there are no proper transcripts from any of the mobile service providers containing conversation to the effect where he gave threats to the decease. The Defendant although appears to raise a key issue, my jurisdiction under Section 95 of the District Court Act, is limited only to sufficiency of evidence and nothing else. The grounds the Defendant relies upon are issues of trial where such question would be asked later if Defendant was committed. For the purpose of my jurisdiction under the District Court Act, the threats issued by the Defendant as communicated by the deceased to his father and the Defendant’s proximity and location at the time of murder are sufficient enough to satisfy myself for the purpose of Section 95(1) of the District Court Act 1996, that there is sufficient evidence.
    

Thus, evidence provided by police gratifies most elements of the offence of Willful Murder to the effect where Defendant may not be person who killed the deceased but was identified as the person who intended, prearranged and planned to cause the death of the victim/deceased.

FINAL ORDERS

18. My final Orders:
    
    1. Defendant is Committed for the offence of Wilful Murder under Section 299(1) of the Criminal Code Act.
       
    2. Matter is adjourned to the 19^th August 2021 at 9.30am for consideration of Section 96 statement.
       
    100. Defendant remand in custody and warrant issued.
         

Defendant For the defendant
Police Prosecutor For the State

^[1] The word "on" has been editorially inserted.
^[2] Police v Kimisopa [2021] PGDC 76; DC6031 (30 June 2021)
^[3] Section 94 was:
• replaced by No. 27 of 1981,
• amended by No. 31 of 1981, s1.

^[4] Section 94(1)(d) was amended by the District Courts (Amendment No. 2) Act 1986 (No. 45 of 1986), s2(a).
^[5] Section 94(1A) inserted by the District Courts (Amendment No. 2) Act 1986 (No. 45 of 1986), s2(b).