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Balupa v Pulupe [2022] PGDC 61; DC8064 (25 April 2022)

DC8064


Papua New Guinea


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


NCC NO 512 OF 2019
CB NO 1465 OF 2019


BETWEEN:


DAVID BALUPA
[Informant]


AND:


TAPE PULUPE
[Defendants]


Waigani: Paul Puri Nii


25th April 2022


COMMITTAL PROCEEDINGS: Charges—Perjury- Section 122(b) and Pervert the course of Justice-136–Criminal Code Act. Witness declarations- State confirmation- proper development of prima facie evidence - elements of the charges not sustained –Evidence is not equal- Defendant not committed to stand trial. Information is dismissed.


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:


Akia v Francis [2016] PGNC 335; N6555
Police v Dunamis [2021] PGDC 54; DC6011
Koya v Agon [2021] PGDC 233; DC7094
Police v Medako [2021] PGDC 54; DC6011


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
Redman Lawyers: John Ole For the Defendant


COMMITTAL RULING


25th April 2022


INTRODUCTION


NII, P. Paul Magistrate. My decision was made under Section 95 of the District Court Act. Defendant through his Lawyer asked the court to dismiss the information for lack of evidence. However, the police prosecutor who was prosecuting the allegations argued evidence is sufficient to commit the Defendant. I will now rule on police evidence that was tendered to the court.


CHARGE


  1. Defendant is charged under two offences; one under Section 136 of the Criminal Code Act for Attempting to pervert the course of justice and the other under Section 122(b) of the Criminal Code Act for Fabricating Evidence. The essentials of the offending charges are exposed distinctly underneath:

122. FABRICATING EVIDENCE.

(1) A person who, with intent to mislead a tribunal in any judicial proceedings–

(a) fabricates evidence by any means other than perjury or counselling or procuring the commission of perjury; or

(b) knowingly makes use of such fabricated evidence,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2) A person shall not be arrested without warrant for an offence against Subsection (1).


136. ATTEMPTING TO PERVERT JUSTICE.

A person who attempts, in any way not specially defined in this Code, to obstruct, prevent, pervert or defeat the course of justice is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding two years.


BRIEF PARTICULARS


  1. Defendant is Tape Pulupe aged 32 years and from Wapia village of Tari in Hela Province. Defendant is married with three (3) children and he is employed as a community Affairs Officer with Hides Gas Development Company.
  2. Police allege that Defendant was a Scrutineer for Francis Potape in the Hela Regional election in 2017 who had unlawfully signed form 66B to declare the winner who was Philip Undialiu. The win was subsequently challenged by the runner up Mr Potape through a court of disputed returns and hence the form signed by the Defendant was challenged in the National court through EP NO 3 of 2017.
  3. Defendant noted there were some discrepancies on form 66B, it was not the same form he had signed prior and thus the current Defendant who was the Complainant in another allegation lodged a criminal complaint against the Election manager who is the Complainant in the current case for uttering and forgery. The election manager was subsequently arrested and charged but the case was struck out for want of evidence.
  4. Nevertheless, the Election manager then lodged a criminal complaint against the Defendant for fabricating evidence and trying to stop the course of justice by allegedly laying a false criminal Complaint against him. Defendant was hence arrested and charged in 2019 for the two allegations and the matter had been pending hearing. Hearing was administered on the 2nd March 2022 and now is the decision.

ISSUE


  1. The question under consideration is on the issue of evidence; that is whether or not police evidence is sufficient to make a prima facie case against the Defendant.

THE LAW


  1. The court’s influence to decree on police evidence is under Section 95 of the District Court Act. The court has the judicial ability to appraise evidence to inaugurate whether or not evidence is fitting to make a case against the Defendant. The prominence capability is presented beneath:

“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.”


  1. The court’s authority to assess evidence is further reinforced in the case of Akia v Francis [2016] PGNC 335;N6555 and the identical standard is preserved in the case of Police v Dunamis [2021] PGDC 54; DC 6011. The principal determination of the Committal court is not to test police evidence but to assess the evidence on a prima facie beginning to determine evidence is satisfactory to make a case against the Defendant.

ELEMENTS


  1. The court in Koya v Agon [2021] PGDC 233; DC7094 regurgitated the ideologies in Police v Medako [2021] PGDC 54; DC 6011 that the substances of police evidence should meet and mollify all the elements of the two charges against the Defendant. The rise and fall of the police case is contingent much upon police evidence sustaining the elements of the charges. Thus, the elements of perverting the court of justice under Section 136 of the Criminal Code Act and Fabricating Evidence under Section 122(b) of the Criminal Code Act are displayed below:

ELEMENTS OF PERVERTING THE COURSE OF JUSTICE-( s 136- CC)


a. A person who attempts,

b. in any way not specially defined in this Code,

c. to obstruct, prevent, pervert or

d. defeat the course of justice


ELEMENTS OF FABRICATING EVIDENCE-( s 122(b)- CC)


a. A person who, with intent to mislead

b. a tribunal in any judicial proceedings

c. knowingly makes use of such fabricated evidence


EVIDENCE


Police case


  1. Police evidence comprehends witness proclamations and documented evidence including any exhibits and medical and proceeds from the Accused’s Record of Interview. Police in momentarily argued police evidence is acceptable to necessitate the Defendant to committal for the allegations against the Defendant.
  2. The table below runs a list of police evidence.
No
Name
Particulars
statements
1
John Tipa
Complainant/Victim
This witness says he was the election Manger of Hela Province in the last election of 2017. He was illegally arrested by the Defendant. Witness says Defendant intentionally misled the police to have the Complainant arrested so that the arrest would prevent him from giving evidence at the court of Disputed Returns at the National Court. Witness says the Defendant’s drive to have him arrested was politically motivated.
2
Simon Talu
Witness-Hela Province
This witness says he worked as a Data Coordinator for the Hela Province during the election 2017. Witness says he was in charge of coordinating date and named some person whom he worked with but the Defendant’s name is not mentioned.
3
Jason Mandawi
Witness-Hela Province
Witness says he worked as a tally master for the Hela Provincial seat votes counting in 2017. Witness says form 66B contains the tally of secondary counts and form 66A contains the tally of primary counts. Witness says in his presence the Defendant signed form 66B after the conclusion of all the secondary counts.
4
Cedrick Ekera
Community Development Officer-Hela Province
This witness says he was employed by the Hela Provincial government as a Manual Tally Master for Hela Regional seat in election 2017. Witness went on to state that after the completion of the secondary votes, all the scrutineers of the remaining candidate signed off form 66B. Defendant who was outside the counting room was asked to come in and sign the form which he signed and later the signed form was returned to Anna Pam the election Manager.
5
Max Tale
Teacher-Talai settlement-NCD-
This witness is the scrutineer for Philip Undialu in the Hela Provincial election seat and he says him and the Defendant both had signed form 66B after the declaration was made on the tallies from the secondary counts.
6
Mike Imara
Policeman
This witness is a policeman and he says he has a lot of years of experience as a forensic officer. Witness says on 1st November 2017, he received some documents for inspection and testing form S/C Derrick Francis in which form 66B was one of them. Witness says the issue was to identify the signature on form 66B since it was alleged that the Defendant’s signature was forged. Witness finally says from his findings and testing he found out that the documents were not original and thus they were photocopied and also the Defendant’s signature was forged, not his original signature.
8
Florence Wakon
Police Corroborator
This witness says he is a policewoman and was the police corroborator or the one who was with the arresting at the time when the Defendant was interrogated and led through his record of interview.
9
David Balupa
Police Investigator/Arresting Officer
Witness says he is the police man who investigated the allegation against the Defendant and conducted the ROI among other evidence.

Defense case


  1. Defendant through his Lawyer John Ole argues that evidence is insufficient to commit the Defendant. Defendant argues that he did not sign on the forged document. He says someone else could have forged his signature. Defendant argues that the form 66B were carbon copies and not the originals.
  2. Defendant also argues that the allegation against the Defendant is a clear act of “pay back”. Defendant argues that the complainant in the matter against him was a Defendant in another previous matter but that matter was struck out for want of police evidence. Thus the Complainant's act is nothing more than a personal attack on the Defendant since it’s the Complainant’s tradition where payback is done to uphold someone’s lost dignity and pride.
  3. Finally, Defendant argues that the complainant is not a party to the election petition filed by Francis Potape nor the Defendant and thus it would be improper and illegal to have the Defendant arrested and charged under Section 136 of the Criminal Code Act for perverting the course of Justice.

DELIBERATION OF EVIDENCE


  1. Police evidence shows in 2017, a Francis Potape filed an election petition against the current governor of Hela province Mr Philip Undialu for errors and omissions among other grounds including undue influences. The proceeding was styled as EP No. 3 of 2017. One of the grounds that was relied on to dispute the election result was the Defendant’s signature on form 66B. Defendant denied that he did not sign on the form.
  2. The current complainant was arrested by the current Defendant in another previous criminal allegation of Uttering and forgery. The matter was struck out for want of police evidence. However, Defendant who was the Complainant in the previous matter is now arrested for allegedly misleading the court of disputed returns by deliberately fabricating form 66B to influence the outcome of the Election petition filed.

RULING


a) The offence of Perjury under Section 122(b) of the Criminal Code Act


  1. The offence of Perjury is when someone intends to misinform a court in any judicial proceedings by expressively making use of any fictitious evidence to sustain their interest. State witnesses Simon Talu, Jason Mandawe, Cedrick Ekara and Max Tale have all stated that Defendant signed form 66B after the completion of all the primary votes. However, Defendant denied he signed the form and the very issue went before the National court through a court of disputed returns in EP No. 3 of 2017. A police forensic officer was given the documents to be tested. The officer examined the documents and returned the results to the court of disputed returns. Make Imara the police officer who examined the documents found out that the Defendant’s signature was forged and the documents relied upon were not the originals. Based on the findings from the police, his Honor Justice Yagi upheld the election petition by asserting that the results of the election were tempered when form 66B was signed by a person other than the Defendant.
  2. Defendant denied fabricating evidence to persuade the results of the election petition filed in the national court. Defendant’s assertion was tested by two independent bodies, first being the police and second the court. Both have returned results compatible to the defendant’s position of incorruptibility that he did not sign nor tempered form 66B. Thus, Defendant’s standing was already substantiated and gazetted by two authoritative bodies and thus I will sanction and support their positions as Defendant did not sign nor temper form 66B but his signature was forged by some other person.
  3. Therefore, it is my ruling under Section 95(2) of the District Court Act that Defendant had no intention and did not misinform a court in any judicial proceedings by expressively makes use of any fictitious evidence to sustain his interest and subsequently evidence is insufficient to make a prima facie case against the Defendant for the charge of Perjury under Section 122(b) of the Criminal Code Act and this charge is dismissed.

b) The offence of Pervert the course of justice under Section 136 of the Criminal Code Act


  1. Attempting to pervert justice is when a person who endeavours in any way not particularly demarcated in the criminal Code Act, to hinder, avert, pervert or overthrow the progression of justice. The Oxford dictionary defines perverting the course of Justice as an offence entailing any behaviour done in order to avert justice being served upon the offender or upon another individual.
  2. This means there should be a proceeding filed and on foot in which if a person obstructs or hinders the progression of justice in relation to the proceeding on foot then that person shall be deemed as hindering justice. I have seen all the statements from police witnesses and found out that EP No. 3 of 2017 was filed based on the Defendant’s assertion that he did not sign form 66B. In other words, the proceeding was filed after the Defended allegedly did not sign form 66B.
  3. The Complainant stated on his statement that the Defendant arrested him so that he would be barred from giving evidence in the National court and that would influence the results. This evidence seems relevant because of the fact that the complainant was arrested after EP No. 3 of 2017 was filed. But the essence of the complaint is not remote; it’s about the Defendant’s assertion that he did not sign form 66B. Therefore, police arrested the Complainant thinking that Complainant forged the Defendant’s signature. While the EP No. 3 of 2017 was progressing in the National court, Complainant attended to his criminal charges of uttering and forgery at the Committal Court. The national court ruled that Defendant did not sign on form 66B and thus the form was signed by some other person. Since the Complainant’s allegation was struck out by the Committal court for want of prosecution, I do not know actually who tempered form 66B.
  4. Thus in my assessment of evidence I am satisfied that Complainant’s arrest is not an isolated and an independent arrested nor an act done by the Defendant purposefully in an attempt to delay or defat justice but was an act to prove the outcome of EP No. 3 of 2017 which in fact the court ruled in the Defendant’s favor. To my assessment Justice was not denied but was served for the purpose when the National court relied on the allegation that form 66B was not signed by the Defendant. Complainant was arrested and charged because of the Defendant’s assertion that he did not sign form 66B and the Defendant’s position was maintained by the National court while the Complainant’s allegation was struck out for want of evidence.
  5. Given the above it is my decision under Section 95(2) of the District Court Act that evidence is insufficient to make a prima facie case against the Defendant for the charge of perverting the court of justice under Section 136 of the Criminal Code Act and thus the information is dismissed. Evidence shows defendant did not attempt in any way not particularly defined in Criminal Code Act to block, avoid, deprave or overthrow the development of justice.

CONCLUSION


  1. Therefore, it is my presiding under Section 95(2) of the District Court Act that police evidence is unsatisfactory to make a prima facie case against the Defendant for the allegation of pervert the course of justice under Section 136 of the Criminal Code Act and Perjury under Section 122(b) of the Criminal Code Act. Evidence is deficient to commit the Defendant.

ORDERS


  1. My Orders:
    1. Evidence is insufficient to commit Defendant Tape Pulupe for the charge of Perverting the Course of Justice under Section 136 of the Criminal Code Act.
    2. Evidence is insufficient to commit Defendant Tape Pulupe for the charge of Perjury under Section 122(b) of the Criminal Code Act.

c) Both information are dismissed.


d) Defendant’s bail is refunded.


Redman Lawyers For the defendant
Police Prosecutor For the State


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