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Danga v Maona [2022] PGDC 58; DC8061 (19 April 2022)

DC8061

Papua New Guinea

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

COM NO 358 OF 2020
CB NO 1695 OF 2020

BETWEEN:

CELCILA DANGA
[Informant]

AND:

IKWARO MAONA
[Defendants]

Waigani: Paul Puri Nii

19th April 2022

COMMITTAL PROCEEDINGS: Charge-Murder-Section 300(1)–Criminal Code Act. Witness statements- State evidence- suitable formation of prima facie evidence - elements of the charge persistent –Evidence is equal- Defendant committed to stand trial.

PRACTISE AND PROCEDURE: Calculation of evidence under Section 95 of the District Court Act. Defendant landed an iron rod on the victim’s head and -elements of intention and premeditation. Evidence of attempted murder.

PNG Cases cited:

NIL

Overseas cases cited:

NIL

REFERENCE

Legislation
Criminal Code Act 1974, [Chapter 262]
District Court Act 1963, Chapter 40

Counsel
Police Prosecutor: Joseph Sangam For the Informant
Public Solicitor: David Kaiok For the Defendant

COMMITTAL RULING

19^th April 2022

INTRODUCTION

NII, P. Paul Magistrate. Conclusion on committal under Section 95 of the District Court Act. On 22^nd February 2022, Defendant asked the court to go through his submission filed on 6^th May 2021 and the Police file and make a ruling. The similar attitude was taken by police and thus is my ruling on evidence.

CHARGE

1. Defendant is charged pursuant to Section 300 (1) of the Criminal Code Act. The specifics of the offending charge is revealed beneath:
   

“300. MURDER.

(1)[1] [2]Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;

(b) if death was caused by means of an act–

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life;

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.”

BRIEF PARTICULARS

2. Defendant is described by police as above 20 years old and is from the Kamokiriva area in the Rigo district of Central Province. Police only described the victim as Misima Kivara from Central province and at the time of his demise he was 20 years old. Police allege that on 14^th November 2019, the deceased and the accused with three others were drinking alcohol at Mango mine settlement area of East Boroko in NCD, PNG.
   
3. Police allege that the accused and the deceased and others were drinking alcohol until they had an argument against each other which led to a fight between 11.30am -12am in which it was further alleged that the accused used an iron and hit the victim on his head. The victim subsequently fell to the ground and blood came from his nose and mouth. He was later rushed to Port Moresby General Hospital on the early morning of 15^th November 2019 but died thereafter while in the hospital. The accused was thus arrested and charged pursuant to Section 300(1) of the Criminal Code Act.
   

ISSUE

4. Whether or not there is tolerable evidence in the police file to commit the Defendant for the allegation of murder.
   

THE LAW

5. The court’s power to rule on police evidence is under Section 95 of the District Court Act. The court has the authority to evaluate evidence to establish whether or not evidence is appropriate to make a case against the Defendant. The emphasis ability is offered below:
   

“95 Court to consider whether prima facie case.

(1) Where all the evidence offered 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.”

ELEMENTS OF THE OFFENCE

a) Accused;

b) Had an intention to cause harm to the deceased;

c) Inflicted grievous bodily harm on the deceased;

d) Which lead to his eventual death

EVIDENCE

Police case

6. Police file tendered to the court on 3^rd April 2020, encompasses witness statements and documentary evidence including any exhibits and medical reports. Police in transitory upheld their evidence is satisfactory to obligate the Defendant to committal for his alleged actions in instigating the victim’s death.
   
7. List of police evidence in the subsequent table.
   

Defense case

8. Defendant through the submission filed on 6^th May 2021 argues that evidence is insufficient to commit the Defendant.
   
9. Defendant through his Lawyer says the statement of witness Bagu Dagaya is inconsistent and not in line with the other state witnesses and statement of witness Kenneth Tebo is inconclusive and lacking in weight to stand. Defendant furthermore argues that the witness statements of Kenny Bagu, Are Buhaki and David Jeffery are all deficient to bond the Defendant to the alleged offence.
   
10. Defendant also argues on the medical report by Dr Phiip Golpak as inconsistent and not supporting the allegation. Defendant argues that the medical report failed to indicate that the deceased was hit by an object inflicting blind force causing the victim’s death. Defendant also says there were no photo exhibits of the deceased showing evidence of wounds that he was hit by an iron as alleged by one of the witnesses.
    
11. Defendant argues there is no evidence to display and classify the Defendant as the one who allegedly hit the deceased and thus argues that police evidence is absent to make a case against the Defendant. Finally, the defendant argues police evidence is imperfect and lacking since police have not devoted photo exhibits of the victim and argues that the information be dismissed.
    

NEGOTIATION OF EVIDENCE

12. Police evidence shows on 14^th November 2019, Defendant together with the victim and David Jeffery were drinking alcohol. Evidence also shows while the three (3) were drinking, Hare Buaki and a person named Owen came and joined them. Evidence shows after some moments, Hare Buaki and Owen left the drinking party leaving the victim, Defendant and David Jeffery behind.
    
13. Defendant says after Owen and Hare Buaki had left he went to his uncle’s house to have his dinner. Statement of Jeffery David says he was left with the Defendant and deceased after Owen and Hare Buaki had left. He says three of them were drinking until there was no beer so they left for their respective homes. Witness says immediately after leaving the deceased and victim, he was on the phone and did not know what happened next. However, he says he heard from Mrs Kenneth that the deceased was falling down. Witness says immediately after that he rushed to see the Defendant but he was no way to be seen.
    
14. Evidence of witness Bagu Dagaya says he heard Jeffery David, Deceased and the victim were fighting. He says the Defendant went and picked up something from the ground and hit the deceased on his head and he fell down.
    

RULING

15. I have assessed the evidence and noted that on the night of 14^th November 2019, between 6pm and 12am, the accused and Defendant together with David Jeffery, Hare Buaki and Owen were drinking alcohol. I have also assessed that a few moments into drinking Hare Buaki and Owen left the drinking party hence leaving the accused, deceased and David Jeffery behind. The deceased victim and David Jeffery later left the drinking place.
    
16. However, Defendant stated on his ROI that he left the drinking scene together with Hare Buaki and Owen but witness David Jeffery says Defendant, deceased and himself were still drinking until there was no beer so they decided to disperse. Statement of Are Buhaki says the deceased, defendant and David Justin were drinking and making a lot of noise. This means the evidence by the Defendant that he left the drinking scene together with Owen and Hare Buaki and came out is not validated and thus not supported.
    
17. In my assessment of evidence I am satisfied that Defendant, victim and David Jeffery were the last ones to leave the drinking place. Defendant says he later heard that the victim fell to the ground so he ran down to his uncle’s house for the victim’s aid where David, Owen and Kenny later took him to the hospital. However, this accused’s statement does not correspond with witness David Jeffery’s statement that the victim was not there when David Jeffery went out to look for him after the victim fell down. This means Defendant’s assertions that he was not there at the time of allegation is not supported with evidence, therefore evidence shows he was present at the time of allegation but moments after the allegation he was not there.
    
18. Evidence of Bagu Dagaya shows the accused picked up something and hit the victim on his head. This piece of evidence is supported by Dr Philip Golpak’s medical statement that the cause of the death was due to Bilateral Subdural (oxford dictionary defines this as blood leaking out of a torn vessel into a space below the diameter, a membrane between the brain and the skull) due to blind force trauma. Moreover, David Jeffery’s statement also connects the Defendant to the accused since he says he was on the phone while the accused and the deceased were left behind.
    
19. Although the defendant's submission on evidence says police evidence including medical reports and exhibits are not adequate to make a case against the Defendant, I have read all the witness statements including the medical reports and satisfied police evidence have successfully made a case against the Defendant.
    

CONCLUSION

20. Therefore, it is my presiding under Section 95(1) of the District Court Act that police evidence is satisfactory to make a prima facie case against the Defendant for the allegation of Murder under Section 300(1). Thus evidence shows on the 14^th November 2019 between 6pm and 12am, the Defendant Ikwaro Maona is recognized to be the person who had an intention to cause harm on the deceased and thus inflicted grievous bodily harm on the victim which eventually lead to his death.
    

ORDERS

21. My Orders:

1. Evidence is sufficient to commit Defendant Ikwaro Maona for the charge of Murder under Section 300(1) of the Criminal Code Act.
   
2. Defendant is committed to stand trial.
   

100. Defendant’s bail is extended.
     

Public Solicitor For the defendant
Police Prosecutor For the State

[1] Section 300(1) amended by Act No. 13 of 1977, s22; amended by Act No. 12 of 1982, s3.
[2] Section 300(1) amended by Act No. 13 of 1977, s22; amended by Act No. 12 of 1982, s3.