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Kaikas v Solomon [2009] PGDC 13; DC910 (23 March 2009)

DC910

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

COM 395-423 of 08

BETWEEN

LEO KAIKAS
Informant

AND

BONNY SOLOMON
Defendant

Madang: J Kaumi
2009: 23rd March

CRIMINAL: Hand – up brief – defendant charged with willful murder contrary to section 299 of Criminal Code Act. Defence no case to answer submission, pursuant to section 95(2) of the District Court’s Act under consideration as to answer: whether evidence in the Hand up brief sufficient to commit the defendant to trial for the charge he stands charged.

Cases cited:

Regina vs. McEachern [1967-68] PNGLR 48
The State vs. Tom Morris [1981] PNGLR 493
SCR No 34 of 2005 – REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2) (b) Application by Herman Joseph Leahy
Bukoya v State SC887 [17/10/07]
Liri vs State N3110

References:

Hill E R Powles G; Magistrates Manual of Papua New Guinea, Lawbook Co. (2001). Sydney NSW 2009.

Legislation:

Criminal Code Act 1974, Chapter 262
District Courts Act 1963, Chapter 40

Counsel:

Sergeant Nonao, for the Informant
Mrs. Meten, for the defendant

RULING OF DEFENCE NO CASE TO ANSWER SUBMISSION

INTRODUCTION

1. Kaumi, M: This is a ruling on a no case answer submission by the defendant through counsel, pursuant to section 95 of the District Court Act.

2. The defendant is charged with the following:-

A.14 counts of kidnapping thereby contravening s.354 (1) (i) (ii) and s.7 of the CCA;

B.14 counts of Deprivation of Liberty thereby contravening s.355 (a)

C.1 count of sexual penetration s.347 (i) (a)

D. count of Armed Robbery contravening s.386 (1) (2) (a) (b) and 7 of the CCA

BACKGROUND

3. The charge arise from the robbery of the BSP, Madang which took place as from the 04th -5th July 2008.

4. The Police in the course of their investigation have but put together a large body of evidence whose composition comprises witnesses and exhibits.

5. The brief facts are as contained in the Police Hand Up brief which this court adopts for these purposes and in summary it is alleged that from the 5th-6th July the defendants and accomplices associated themselves with, arranged and facilitated the movements of the prime suspect, William Kapis and other suspects to hold up the BSP bank manager, Mathias Manovo and other bank employees at ransom and detaining them thus enabling them to successfully rob the BSP Madang.

6. The Police Hand Up Brief consists of 37 witnesses and the unsigned Record of Interview and the unsigned statement of the defendants. The Police exhibits inter-alia, includes Confessional Statements of the accomplices, Jacob Peningi Okimbari and Johnny Gumaira.

7. I start by briefly outlining the principles or the function of the Committal Court and the standard of proof to applicable in committal proceedings.

8. The Magistrate’s Manual of PNG at paragraph 11.2.3 states that committal proceeding is an investigation into the strength of the case being mounted by the prosecution, and it is not an act of adjudication.[1]

9. Its function is not to determine whether or not the person accused is guilty of the offence charged.[2]

10. The proceedings are of an investigatory, tentative and non-conclusive nature. [3]

11. The statutory test to be applied asks whether the evidence is sufficient to put the defendant on trial for an indictable offence (section 95 of the DCA) [4]

12. That measure of sufficiency is less than the trial standard of proof beyond reasonable doubt. [5]

13. The magistrate’s decision is a judicial act, requiring that proper consideration be given to matters required by statute. [6]

14. In the case of Regina v McEachern [7] it was held;

"To decide the evidence offered by the prosecution in committal proceeding is sufficient to put the defendant upon his trial....The court has only to form a bona fide opinion that there is a sufficient prima facie case against the defendant." [8]

ISSUE

15. The defense is their case submission raises two issues:-

A. Whether the evidence presented discloses sufficient evidence to put the Defendant on his trial for the offences for which he is charged? And

B. Whether there is sufficient evidence to submit the operation of section 7 (Principal Offenders) under the Criminal.

16. The defense referred the Court to consider Cannings J’s ruling in relation to no case submission and considerations involving section 7 of the Criminal Code in the case of the State vs. Thomas Sange, Vincent Kerry, Kito Aso and Storan Kaumu. [9]

17. Cannings J in this case relied on the State vs. Paul Kundi Rape [10] which confirmed by the Supreme Court the correctness of it’s principles in the State v Roka Pep (No 2) [11] and Joshua Yaip Avini and Plaridel Nony Acosta v the State [12]

18. The Court again here reiterates that the standard of proof in committal proceeding is less than the trial proper and it only needs to form a bona fide opinion to suffice a committal to the National Court for trial.

19. In relation to the State v Thomas Sange + 3 others [13] that case can be distinguished from this immediate one is that in the former it relied on Paul Kundi Rape [14] which concerned a real trial situation where at the end of the prosecution case the defense made a no case to answer submission and the Court having had the benefit of cross examination was asked to determine whether the defendant could lawfully be convicted at the end of the trial.

20. The process in the committal court where a no case answer submission is made, the court is not a trial court and even though having no jurisdiction over the case before it is only doing it’s judicial duty in assessing the evidence put before it in the hand up brief to find if the evidence is sufficient to commit the defendant to trial. See Brickley Yarume vs. Sylvester Enga [15].

21. The Court has only had the benefit of only perusing the evidence in the Police Hand Up Brief.

22. Evidence from the main victims of the kidnapping, deprivation of liberty and robbery namely Mathias and Grace Manovo, Steven Waipikwari, Cathy Kawage Passingan and Paul Salimbua state that they would be able to recognize the culprits if apprehended because they were unmasked and also the court notes given the lengthy periods of time spent in close proximity to them to recognize them.

23. Indeed the evidence of the Lawrence and Josephine Walep and Ben Narina of being able to identify the culprits if apprehended again for the fact that they were unmasked.

24. The above references are important when the Court considers Akuram J in State v Yakoto Imbuni [16] which followed John Beng vs. State. [17]

25. In thus case, the eyewitnesses gave evidence that they saw the incident involving the killing of three people, which lasted 10-15 minutes in broad daylight and the attackers did not cover their faces. In circumstances, Akuram J held that he could safely say that the witnesses’ identification was good and they could be believed. It was irrelevant that the witnesses were unable to name the accused in their witness statements to the police.

26. This court also considers the principles sated by Frost C.J in State v John Beng [18]:-

A. Where evidence of identification is relevant, the Court should be mindful of the inherent dangers. There is no rule of law that the evidence of one witness is insufficient, nor is there any rule of law that in every case a warning ought to be given (to the jury), it all depends upon the circumstances of the case before it.

27. Now having alluded to these authorities the Court also considers the Confessional Statement of Jacob Peningi Okimbari which states the involvement of this defendant at the pre robbery stage, during the robbery and post robbery stage.

28. I note that from the statement if this defendant played a more active role in this whole episode then just a passive role of a watchman as he says.

29. The admissibility of this Confessional Statement will be contested at the trial proper which is the right contents of such a nature.

30. When I apply these principles of identification to various charges the defendant is charged with I come to the following:-

A.

(i). In relation to the 14 counts of kidnapping there is sufficient evidence to commit the defendant at the National Court.

(ii). There is sufficient evidence that the defendant aided in the commission of all counts of kidnapping to come within the ambit of section 7.

B. In relation to 14 counts of Deprivation of liberty, there is sufficient evidence to commit the defendant to stand in the National Court.

C. In relation to the charge Robbery, there is sufficient evidence to commit the defendant to stand trial in the National Court.

31. In relation to the count of sexual penetration this Court finds that the evidence available in the Police Hand Up brief does not meet the sufficiency standard i.e. that this Court does not form a bona fide opinion that there is sufficient evidence against the defendant to commit trail for sexual penetration .That even with operation of section 7 the actions of the "Inspector" cannot include this defendant within the ambit of section 7. Therefore I strike out the charge of sexual penetration against the defendant and discharge him of the information accordingly.

_______________________

Police Prosecution for the Informant
Public Solicitor for the Defendant

1. para 11.2.3 Hill E R Powles G; Magistrates Manual of Papua New Guinea, Lawbook Co. (2001). Sydney NSW 2009.
2. Supra Note 1
3. Supra Note 1
4. Supra Note 1
5. Supra Note 1
6. Supra Note 1
7. [1967-68] PNGLR 48
8. Supra Note 1
9. [2005] N2805
10. [1976] PNGLR 96
11. [1983] PNGLR 287
12. [1997] PNGLR 212
13. Supra Note 9
14. Supra Note 10
15. [1976] Unrept. N1476
16. [1997] N1558
17. Supra Note 10
18. Supra Note 10