DC1003

PAPUA NEW GUINEA
In the District Court of Criminal Jurisdiction

Cases Numbers Comm.240, 241,333-353, 355-368 & 369 of 2008

BETWEEN:

GEORGE AVALI & MANU P PULEI
(Informants)

AND:

RUBEN MICAH & JOYCE MAIMA
(Defendants)

MADANG: M SELEFKARIU, PM
2008: 26 September - 18 November
2009: 8 January

COMMITTAL PROCEEDINGS: Hand up brief – Defendants charged with sixteen charges each, fourteen counts for kidnapping for ransom, s. 354 (1) (a) (i) (ii) Criminal Code Act (Code), one count for sexual penetration, s. 347 (1) Code (Sexual Offences and Crimes Against Children) ( SOCAC) Act and one count for robbery, s. 386(1) (2) (a) (b) Code- Defence no case to answer submission, pursuant to s. 95 (2) of District Courts Act under consideration as to question: whether the evidence in the hand up brief sufficient to commit the defendants to trial for the charges they stand charged.

CASES CITED:

The State v Kwalimu Gonia & 3 ors [1982] PNGLR 112. 
John Peng v The State [1982] PNGLR 331.
The State v Tom Morris [1981] PNGLR 493.
Regina v McEachern [1967-68] PNGLR 48.
Rv Potosi (unreported Judgement) (1973) N730.
Philip Nagira v Besasparis [1986] PNGLR 199.
The State v Albert Ugunnie, Matin, Tauma, and Mathew David Moroua [1988-89] PNGLR 101.

TEXT:

Chalmers D. R. C., Weisbrot D., Injia S.,Andrew W. J. A. & Nicol D., Criminal Law and Practice of Papua New Guinea, 3rd Ed, Lawbook Co. (2001), Sydney, NSW 2009.

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

Counsel:

Sergeant P Nonao of Police Prosecution for State
Mr. S Daniels for Defendants

JUDGEMENT ON DEFENCE NO CASE TO ANSWER SUBMISSION

8 January 2009

SELEFKARIU, PM: The defendants are charged with sixteen counts each, fourteen of them for kidnapping for ransom, s. 354 (1) (a) (i) (ii) of Code, one for sexual penetration, s. 347 (1) Code (SOCAC) Act and one for robbery, s. 386 (1) (2) (a) (b) Code respectively.

In summary the charges stem from the now infamous Bank of South Pacific Limited robbery of the Madang Branch which took place from the 4 to 5 July 2008.

Police have put together a big body of evidence in the hand up brief bringing in evidence from witnesses as far as Kimbe in the West New Britain Province, Lae in the Morobe Province and Madang in the Madang Province.

In summary it is alleged that from 24 June to 6 July 2008 the defendants each and severally associated themselves with, arranged and facilitated the movements of the prime suspect William Kapis and other suspects by transporting them from a beach front at Voco Point, Lae City to known locations, arranging and facilitating the hire of vehicles for their use within the City of Lae and then to Madang Town both before and after the robbery and doing other errands as described in the evidence and actually benefited from the loot.

The defence no case to answer submission is before court for judgement.

In their submissions they based them on two issues: 

1.	The information charging the defendants are defective; and

2.	If the court finds that the information not defective, they submit that the evidence in the hand up brief is insufficient to put the defendants to trial.

There are sub issues also raised in the defence submissions and indeed other sub issues raised along the way for which I shall try to determine them the best I could.

In the oral reply by the prosecution they submitted that the evidence so contained in the hand up brief is sufficient and the court must commit the defendants to trial for the charges each of them stands charged.

The defence submissions commenced by reminding the court of the purpose of committal proceedings and the role the court must play.

I think this aspect has been sufficiently covered and so I see no reason for me to expound further but for the same I do thank the defence for their efforts.

Let us go straight to the issues at hand. 

Issue one: Information is defective.

Of all the charges I think this issue really concerns the charges for kidnapping for ransom as in accordance with the defence submissions.

Defence says the charges were not properly pleaded in the information in that the wordings of each charge does not carry a demand and an associated threat to kill the children if the demand is not met.

They submitted an unreported judgement of the Supreme Court (Public Prosecutor v Gonia & 3 ors (1982) SC 230 ) hearing an appeal from the National Court which is reported and its full citation is The State v Kwalimu Gonia & 3 ors [1982] PNGLR 112. I do not have the full judgement of the Supreme Court for which I am not able to determine the issues under consideration but it appears to be an appeal by the Public Prosecutor on sentence for which the appeal succeeded and the defendants’ sentences were increased. 

I think the proposition the defence is making in their submissions is that similar pleadings in an indictment which charged Gonia & Ors for kidnapping for ransom was thrown out by the Supreme Court for defective pleadings.

Nevertheless I have read the National Court judgement and with respect to the defence I find that the case does not support their proposition as put forward in their submissions. In fact the court rejected similar submissions which were then submitted by the Public Solicitor who represented the defendants.

In my view the charges are clear, proper and competent, they are not defective in anyway.

Issue two: Is the evidence in the hand up brief sufficient?

I think this issue is more substantial in that it is the very core of committal proceedings and forms the function which imposes a duty on the Committal Court to perform by determining whether the evidence gathered by police in the hand up brief is sufficient to put a defendant upon his trial. 

From the case authorities submitted by defence for which I am thankful for I can see a deferment in the views expressed from both foreign and local cases as to the question- whether the duty, role or act by the Committal Court in committal proceedings is one of a judicial act or an administrative act. 

In our Papua New Guinea situation I think the position is what stated by Hill & Powles in their book Magistrates Manual of Papua New Guinea, Lawbook Co, (2001), Sydney NSW2009 at paragraph 11. 2. 3 which says: 

"-- the Magistrate’s decision is a judicial act, requiring that proper consideration be given to matters required by statue." (Emphasis mine)

In essence defence submitted that the evidence proving the charges against the defendants contained in the hand up brief are wholly circumstantial and are insufficient.

I am not too sure if this submission is suggesting that circumstantial evidence is bad evidence to secure conviction or that they lack weight and or credibility.

If the submission goes to weight and credibility then in my view this court is not a trial court and can not do such things as to weigh the evidence and determine its credibility. This is why the authors in the Magistrates’ Manual said:

"A committal proceeding is an investigation into the strength of the case being mounted by the prosecution, and it is not an act of adjudication." (Emphasis mine)

On the sub issue of circumstantial evidence, the applicability of the common law principle on circumstantial evidence in PNG has been decided by the Supreme Court in the case of John Peng v The State [1982] PNGLR 331 where the court held that the principle involving circumstantial evidence as found in Barca v The Queen (1976) 50 ALJR 108 at 117, and in McGreevey v DPP [1973] 1 WLR 276, are applicable and appropriate to the circumstances of Papua New Guinea. See also The State v Tom Morris [1981] PNGLR 493.

To paraphrase the Barca principle involving circumstantial evidence as put forward by Miles J in Tom Morris, the court said, in a criminal case where the evidence is wholly circumstantial, the court must acquit unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than the guilt of the defendant, not only the guilt of the defendant should be a rational inference but that it should be the only rational inference that the circumstances would enable the court to draw from the evidence.

As regards this sub issue I conclude that circumstantial evidence can be good evidence and where accepted by a trial court in a criminal case can secure a conviction against a defendant. 

As stated above a committal proceeding is an investigation to determine the strength of the police evidence and not an adjudication, for which the court is not required to weigh the evidence for its credibility, as it does not have the jurisdiction to determine the guilt of the defendant in that circumstance and it can only form its mind as to whether a prima facie case from the evidence gathered do exist, s. 95 of District Courts Act.

A sub issue that comes to mind is the standard of proof in a committal proceeding. I think the defence has alluded to it in their submissions.

In the case of Regina v McEachern [1967-68] PNGLR 48 it was held: 

"To decide that the evidence offered by the prosecution in committal proceedings ‘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."

I think the authorities on this issue has been determined as pronounced that the standard of proof in committal proceedings is lesser than the criminal standard of ‘proof beyond reasonable doubt’ but slightly higher than the civil standard of ‘proof on the balance of probability’.

When considering the degree of the standard of proof I think we ought to keep in mind a similar but quite distinguishable process of a ‘no case to answer submission’ that happens in a proper criminal trial where at the close of the prosecution’s case and the defence makes a no case to answer submission to ask the court to determine whether the court can lawfully convict the defendant at the end of the trial.

In my view and in the case of the latter situation the standard of proof in that situation is slightly higher than the one in a committal preceding as the latter concerns a real trial for which the court acts with jurisdiction as oppose to the Committal Court which does not have the jurisdiction in the matter before it. As one would appreciate the trial court is able to process the evidence mainly comprising the prosecution’s evidence but subject to cross examination which seldom happens in the Committal Court. 

As is known defence says the evidence in the hand up brief is wholly circumstantial. The Barca principle is based on the proposition that where the evidence is wholly circumstantial the court when considering it draws a rational inference that the circumstances of the evidence is consistent with the guilt of the defendant and that they lead the court to conclude that it is the only rational inference to such conclusion then the court can return a guilt of guilty upon the defendant. 
 
In crimes of this nature it is natural for the criminals to act furtively and not allow traces of evidence in their trail. The prime suspect is William Kapis who is a prison escapee and on the run. The evidence of witnesses in Lae, Madang and Kimbe show clearly that the plans were put together skilfully and executed quite professionally. They show that the people involved were carefully chosen to ensure that nobody learns about it up until its execution and the get away.

I think one of the underpinning threads of qualification that entwines the persons involve including the defendants is that William knows who to be trusted and be involved in order to leave no traces or create suspicions.

The defendants were drafted into the plan for what they can do best and execute them skilfully with little suspicion. The defendants are residents of Lae City and their movements would appear as just normal routine. To use them to hire vehicles for the suspects as the Lae based suspects; most of who are known in police circles and would have difficulty executing, including other errands that placed the defendants in a better and most convenient positions than the suspects themselves.

Ruben Micah said he received a call through his mobile phone from a caller he did not know but upon receiving it acted on the direction and as evidence unfolds he went and transported William Kapis and his mob from Kimbe who travelled into Lae on a dinghy powered by an outboard motor engine. Who ever the caller knew Ruben who acted swiftly without regard to what he was doing at that time.
.
Joyce Maima said William saw her on 5 July 2008 about 10.00am to midday and introduced himself as Peter Popo’s brother and asked to store some of his stuff six boxes in all, which she accepted.

From the evidence the boxes appear to hold the spoils of the robbery. I said criminals do not want to leave traces behind and for William to come to Joyce of all people then this is a calculated risk the criminals were taking. 

I conclude that Joyce knows William so that William felt safe in placing the boxes containing money of over two million kina in a stranger’s house and not risk losing them or some of them or even providing the opportunity of Joyce to reveal them to any persons or authorities and getting caught even without using the spoils.
 
The involvement of the defendants to hire cars on behalf of the suspects was done primarily with the view to not leave traces of evidence, avoid suspicions and its whole essence is to foil any police investigations that might result.

The evidence of various witnesses sighting the defendants in Lae and Madang both before and after the robbery equates to show their actual involvements.

I think the defendants performed their roles according to plan and performed it well.

Should Ruben thinks his mind is innocent in transporting William and his mob in broad day light and hiring cars using his real name it was done conveniently and skilfully not to arouse suspicions. In that way the plans were kept in secret and remain undetected. 

The witness Jerry Beglana appears to me to personally know Ruben and for that matter Ruben could not give a false name as Jerry would become suspicious about the safety of his vehicles. 

Such is the case the situation fitted nicely arousing no suspicions and of normal hire.

It only became clearer that in the evidence of Jerry and Paul Pokou we see the lies in the purpose for which Ruben hired the vehicles for and when one of them broke down in Madang that really disappointed Jerry and Ruben I thought tried every means to fix it to save him from embarrassment and causing danger to the robbery plans which by then was at its peak.

Ruben’s lies continued to unfold in the evidence of Pelei Ralewa where he said the vehicle that broke down and was positioned at Gum Primary School was borrowed by some basketball players to come to Madang on his hire. But he told Jerry the vehicle was to bring youths to Rangiapun village for the official opening for 100 years silver jubilee celebration of SDA Mission.

Apparently the same reason for the basketball team was used to book the rooms at Malolo Lodge Hotel in Madang where the hostages were held on the height of the bank robbery. So this in my opinion is not accidental that someone not knowing the planned robbery would give a similar explaination to an inquiring member of public or someone like Pelei who Ruben knew. He could not even tell the truth to his brother in law as I assume from the evidence.
 
In the evidence witnesses saw the defendants in Madang before, during and after the robbery. When other evidence is pieced together they are not coincidental. They appear quite natural showing real involvement and equates to knowledge and intention.

In almost all the criminal cases there is the element of intention. Human as we are we can not read someone’s mind but by his conduct.

From the total evidence even though circumstantial they show actual involvements of the defendants and the roles they play which I conclude they performed quite well under the circumstance. Their involvements in my view can not be viewed as a matter of chance or a one off incident.

In the defence submissions they raised a sub issue in relation to the confessions the defendants provided to police. It was argued the confessions were unlawfully obtained and should be excluded as a matter of law. The defendants themselves have not given other evidence contradicting these confessions. I think the opportunity do exist for them to put evidence to court should they wish to contest that. In the case of Philip Nagira v Besasparis [1986] PNGLR 199 the court said even though the committal process has been revised and fashioned to what is now a hand up brief; the right to cross examine prosecution’s witnesses has been traditionally part of the committal process including calling of evidence. It is also a constitutional right for a defendant to do so.

At the police interrogation the defendants gave unqualified answers and even though using their rights of silence could not explain their whereabouts or give explanations to certain acts or events involving them as received by police through other witnesses who gave evidence implicating them. 

Where a defendant says his confession has been obtained by police unlawfully the matter is contestable and takes the form of a voir dire but I think the necessary ingredients in the present case were not put before court and so are of no concern.

On this note I do not think the court is excluded from using the defendants’ confessions as I have done so; the presumption is and until proven to the contrary, the confessions are assumed to have been made voluntarily.

I do not wish to say anymore than this but I think the issue goes to admissibility of evidence which has not been properly put to court.

Included with the charges of sexual penetration and robbery the defence raised yet another sub issue. 

This concerns s. 7 of the Code- ‘principal offenders’ which is a common law principle that makes another person even though did not make the act that constituted the crime becomes a principal offender.

There is ample authority for various propositions as to how someone’s conduct in relation to a crime may or may not make him a principal offender. 

Mere presence of a person at the scene of a crime may not necessarily make him a principal. However if the physical presence of the defendant shows encouragement of, and support to, those engaged in the actual crime, the defendant may be regarded as a principal: R v Potosi (1973) N730. See Chalmers, Weisbrot, Injia, Andrew & Nicol in their book Criminal Law and Practice of Papua New Guinea, at 139.

In The State v Albert Ugunnie, Matin, Tauma, and Mathew David Moroua [1988-89] PNGLR 101, regarding a charge of mutiny, although the defendants were not on duty, their presence at the protest meetings was deliberate and willed, and their participation in those meetings aided and encouraged those who were supposed to be on duty. It was held this constitutes mutiny.

In using the above test, I agree with the defence that in the circumstance where the crime of sexual penetration was committed by William the defendants would not in any way come to known that William had planned such intention or that was part of the plan to robe the bank. The defendants themselves were not present at the scene to take part in that crime anyhow.

In regards to the charges for sexual penetration I therefore find on the evidence that the defendants could not be made principal offenders for this offence or even anyone of those persons present outside the house when the offence was being committed inside in private.

In Jennifer Passingan’s evidence where she said when someone amongst those outside entered the house William stopped the sexual penetration by pushing her away from him and nobody other than Jennifer and William knew about it. On this basis I find the evidence proving the charges for sexual penetration against each and severally of the defendants insufficient and accordingly the defendants are discharged and the information charging them is dismissed.

In relation to the charges for kidnapping for ransom and robbery I find that the evidence even though wholly circumstantial they provide the court with a rational inference which leads to the conclusion that the involvements of the defendants are by no means accidental they show that the defendants knew about the details of the plan and they assisted, facilitated, encouraged, abetted and aided the prime suspects in their roles they played which led to the commission of these offences.
 
Even though defence argues that the defendants were not physically present at the scene the defendants’ involvements bespeak of encouragement, support and aiding those who actually committed the crimes.

I conclude that the evidence as to the charges for kidnapping for ransom and robbery sufficient coupled with s. 7 of Code I also find both defendants as principal offenders under these charges for which they stand charged and that they must be put upon their trial as a consequence.

In so doing I shall proceed to consider the administration of s. 96 of the District Courts Act. 

_____________________________
Police Prosecution for State
Lawyers for Defence: Daniels & Associates Lawyers