DC971

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION

COM 41 - 42 of 2009

BETWEEN:

RICHARD SIBOLO
Informant

AND:

BENSON NASIPA
Defendant

AND:

KEVIN JERRY
Defendant

Madang: E Wilmot

2009: 26 OCTOBER 2009

Criminal- hand up brief – Accused is charged with the following; one count wilful murder contrary to Section 300; Question as to sufficiency of evidence to commit Accused to stand trial for the charges mention. 

Cases Cited

List Cases Chronologically

References

List Legislation In Alphabetical Order

Counsel

Sgt Patrick Nanao, for the Informant
Agnes Meten (Public Solicitors) for the Accused

02 December 2005

E Wilmot DCM: 

INTRODUCTION:

1.	The two accused Benson Nasipa and Kevin Jerry have been charged with one count of Murder contrary Section 300 of the Criminal Code.

BRIEF FACTS:

2.	It is alleged that on the Monday 12 day of January 2009 at about 11:00am the two defendant in the company of three other received information that two men and two women were seen walking to the gardens. 

3.	The accused then armed themselves and followed them to the garden.

4.	The six walked up to the garden following the bush track. when they appeared at the garden they found the two men talking to a villager.

5.	On seek the six men appear the two men ran for safety. the six men followed the two men in hot pursuit. 

6.	The fleeing men were chased and beaten with branches taken from shade trees. this beating continued from the garden all the way to the beach.

7.	The two men later escorted to Sakarau School where the police station was. the two men were beated so bad that one had to be carried to the police station.

8.	The victims condition was so bad that they were rushed to Bogia Health centre, then refered to the Modilon hospital after their conditions worsen still

9.	One victim Newman Sakumai died as a result of the heavey beating.

10.	The accused were rounded up and arrest for merdur.

ISSUE:

11.	Whether there is sufficient evidence to put the Accused on trial for the offences to which the Accused is charged.

THE LAW:

12.	Section 300 of the Code State:

(1) 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

(iii)	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.

(2)	In a case to which Subsection (1)(a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3)	In a case to which Subsection (1)(b) applies, it is immaterial that the offender did not intend to hurt any person.

(4)	In a case to which Subsection (1)(c), (d) or (e) applies, it is immaterial that the offender—

(a) did not intend to cause death; or

(b) did not know that death was likely to result.

FUNCTIONS OF THE COMMITTAL COURT

13.	The committal proceeding is not intended to determine the innocence or the guilt of a Accused and cannot result in an acquittal: SCR No. 34 of 2005 – Review Pursuant to the Constitution Section 155(20(b) the Application of Herman Leahy.

14.	The question that is posed in committal process is whether or not a prima facie case is established against the Accused. In other words it is the strength of the evidence put forward by the prosecution (Bukoya -v- State SC 887 (17 October 2007)

15.	The standard of proof in committal proceedings is stated in Regina –v- McEachern [1967-68] PNGLR 48 (24 May 1967)where it held:

"To decide that the evidence offered by the prosecution in committal proceedings is sufficient to put the Accused to trial ...... the court has only to form a bona fide opinion that there is sufficient prima facie case against the Accused."

16.	This measure of this standard is much less then the standard in trial where it must be proof beyond a reasonable doubt.

CONSIDERATION OF COURT

17.	In order to consider whether there is a prima facie case against the accused this court must weight the elements of the charges against the facts on this case. And this can only be done by looking at the set of facts and the charge.

18.	On the count of murder the relevant facts are:

Facts

19.	The two defendant in the company of three other received information that two men and two women were seen walking to the gardens. 

20.	The accused then armed themselves and followed them to the garden. 

21.	The six walked up to the garden following the bush track. When they appeared at the garden they found the two men talking to a villager.

22.	On seek the six men appear the two men ran for safety. The six men followed the two men in hot pursuit. 

23.	The fleeing men were chased and beaten with branches taken from shade trees. This beating continued from the garden all the way to the beach.

24.	The two men later escorted to Sakarau School where the police station was. The two men were beated so bad that one had to be carried to the police station.

25.	On the information of the charge of Murder the elements are a person. 

26.	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).

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

28.	It is allege that the two Accused committed murder on one Newman Sakumai by beating him with branches from a shade trees. 

Evidence

29.	Eye witness statements of two people show that they did not see the beating. but they do testify to fearing for the life of the deceased and the other manam villager. 

30.	The accused were both remained and have not admitted or denied the charge.

31.	The circumstancial evidence points to the two accused armed and running to the garden to see them. 

32.	Being armed showed they intended to punish whoever it was at the gardem.

33.	Whether the two accused tried to stop the beating is not clear, but intitial statements show they went willing with the four other villagers.

34.	This court find no evidence to show the two accused trying to stop the villagers. They were there at the beating.

35.	The beating did take place.medical report shows death occurred from collapsed lugh due to blunt right chest injury. He was hit by a blunt object, the tree branches.

36.	On this the court find there is prima facie evidence on this count. 

CONSIDERATION OF WITNESS STATEMENTS.

37.	The case relies on the witness statements of 6 witness statement. This court has gone through and studied each statement. It has only mentioned a few in its consideration to make a finding. 

THIS COURTS FINDINGS:

38.	This court finds that there is sufficient evidence or prima facie evidence on the one offence the two accused is charged with. 

39.	The standard to which this court has applied is that below the standard in a criminal trial on each of the charges laid. This court has considered the evidence in its totality and commits the accused to stand trial at the National court.

40.	The court will now administer section 96 of the district court act.

E Wilmot (DCM)

Patrick Nanao for the Informant
Agnes Meten (Public Solicitors Lawyers) for the Accused