DC465

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 169 OF 2004

BETWEEN

The State
Complainant

V

Vela W Ari Vele
Defendant

Waigani: J. Tapa T
2005: April 13th

RULING

Criminal Law: No Case Submission.
-Whether - evidence - as it stands - should commit - accuse - to stand trial. -Whether principle applied - case of State -v- Paul Kundi Rape - be applied - this Committal proceeding.

Case Cited.
The State -V- Paul Kundi Rape [1976] PNGLR 96
John Beng -V- The State [1977] PNGLR 115
Pawa -V- The State [1981] PNGLR 498
The State -V- John Badi Woli And Others [1978] PNGLR 51 
The State -V- Jimmy Kipma N1543 N.76 Of 1996

TAPA T- MAGISTRATE.

The accused is appearing on K 1,500.00 National Court bail. He was charged for wilful murder Pursuant to Section 229 (1) of the Criminal Code Act. The alleged incident occurred at Manea Manea beach in Hula village, Rigo District, Central Province

According to the facts before the court, Morgan Kala assaulted the deceased and the accused joined Morgan Kala in punching the deceased. At the time of the fight, Morgan Kala, the accused and others were consuming beer. The accused and Morgan Kala were clearly identified by the witnesses.

The deceased was found the next day dead, within the vicinity of the alleged fight. The deceased had broken glasses of beer bottle removed from his head.

"In law all elements of the charge must be established in order to determine the guilt of the accused. In prosecuting, the prosecution has to put its evidences together to prove all the elements of the charge".

This is a committal court proceeding. The evidence before this proceedings are police statements. These evidence are not verified by the prosecution nor are they tested through the process of cross-examination. The evidences before the committal court are not conclusive.

The learned counsel submitted his 'no case' application to highlight the principle expressed in the case of the State -v- Paul Kundi Rape [1976] PNGLR 96 be applied in this case. That particular case was adjudicated by his Honour. The essential question in that no case application was whether on the evidence as it stands, the accused would be lawfully convicted. The standard applied was whether the evidence would improve to stand the test of 'beyond reasonable doubt’. His Honour stressed the importance whether the evidence would improve because it was a trial. It is important State must establish all elements of the charge.

This is a committal court proceeding. The evidence before this proceedings are police witness statements. In other words, they are police briefs from their investigations. These evidence have not been verified by the prosecution nor tested by a defence counsel. The evidence before a Committal court is not conclusive. Section 59 of the District Court Act gives the Committal court a different standard to test whether the person should stand trial or be discharged, not to establish his guilt. In Committal proceedings, the test is, whether there is sufficient evidence to stand trial.

The test whether there is sufficient evidence to stand trial, in my humble view would mean - there is some evidence implicating the accused to stand trial. This does not mean all elements in the charge are established. Therefore, the presiding Magistrate assess the evidence using his discretionary power without fear or favour to commit the accused to stand trial in a proper court.

Committal court does not only play an investigator role, it has a duty to administer natural justice. Cases that come before committal court must be dealt with expeditiously. It was on this ground that Vela Wari Vele was discharged earlier by this court. Police investigation had been dragging on with the case and it caused anxiety to the defendant. The case was taking too long so this court struck out the case for want of prosecution.

The accused was recharged for the alleged same offence of Wilful Murder under Section 229 (1) of the Criminal Code. Then he was brought before this court again. The matter was not dismissed; therefore police still can re-arrest and bring the defendant to court.

The court found that the accused was identified with Morgan Kala punching the deceased. The deceased was found within the vicinity of the alleged fight. The accused, Morgan Kala and others were consuming beer within the vicinity of the allege fight and also that is where the deceased corpse was found. The deceased had broken glasses of beer bottles removed from his head. There was no other evidences of new fights between the deceased and another group of people.

Because of the above findings, this court commits the accused Vela Wari Vele to stand trial before a National Court. It is believed that this application for 'no case' can be better entertained at the National Court after the prosecution presents its case. The accused's Counsel can then test the evidence before the trial court to clear his client's name on the above charge

Tom Sinae: Complainant
Constable Manuma Manu: Defendant