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Gabe v Igag [2009] PGDC 75; DC1001 (12 January 2009)

DC1001

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF CRIMINAL JURISDICTION

Cases Numbers 123-124 of 2008

BETWEEN:

ALOYSIUS GABE
(Informant)

AND:

FIDELIS IGAG & SIMON IGAG
(Defendants)

MADANG: M SELEFKARIU, PM
2008: 8 May- 18 December
2009: 12 January

COMMITTAL PROCEEDING: Hand up brief – Defendants are charged jointly with attempt to unlawfully kill the victim pursuant to section 304 of Criminal Code Act (Code) - Defence no case to answer submissions, pursuant to section 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:

R v Kiki Kau’ Au (unreported judgement) (1970) No 557.
Regina v McEachern [1967-68] PNGLR 48.

Counsel:

Sergeant P Nonao of Police Prosecution for State
Mrs A Meten for Defendant

JUDGEMENT ON DEFENCE NO CASE TO ANSWER SUBMISSION

12 January 2009

SELEFKARIU, PM: The defendants are charged jointly with the crime of attempting to kill the victim, Daniel Kuar, pursuant to section 304 of the Code.

Upon completion of the investigation the defendants were served with a copy of the hand up brief on 8 October 2008 and the original copy of the same tendered to court on 10 October 2008.

As a result the defence filed a written no case to answer submission for which the prosecution made written reply and the matter is now before court to determine.

The brief facts are that on 21 April 2008 about 3.00am at Balam village the defendants nearly killed the victim by chopping him across his back and his right forearm using a bush knife.

The incident happened after the defendants went in search for their sister who was missing from the family house that night. When the defendants were awoken by their mother and were informed about their sister’s disappearance they armed themselves with two bush knives and went in pursuit of their sister and who ever that was keeping her.

The defendants went straight to the victim’s house as they knew their sister has a sexual relationship with the victim and although they were discouraged by their families they continued their meetings in secret.

In the early hours of that morning the victim said he was going out of the house to use the toilet when he saw the defendants had already converged onto his premises and he saw both of them armed. He knew then that they would harm him and tried to escape by running away as fast as he could.

The defendants ran after him and at a bridge he became exhausted and he decided to jump which he did. Because the river bank was so steep he could not escape and became easy prey for the defendants.

The victim just stood there and the defendants confronted him armed with bush knives.

He said Fidelis slashed his back with his knife without hesitation which caused him to fall. He looked up and saw Fidelis again raising his knife this time aiming for his head and he had to raise his hands over his head to try and stop it. As a result the knife cut him on his left forearm which fractured his left ulnar.

On 17 September 2008 the final report of the doctor shows that the victim’s left arm was assessed to have 15% loss of total function.

The doctor made a finding that the wounds were serious and consistent with grievous bodily harm.

The main issue is whether the evidence contained in the hand up brief is sufficient to commit both defendants to trial before the National Court on the charges they stand charged.

According to the defence submissions they submitted that the evidence is insufficient as it did not prove that the defendants had the intention to kill the victim and so they should be discharged.

The prosecution however submitted that the evidence is sufficient and the defendants must be put to trial.

In the defence submissions they submitted a number of case laws arguing that intention is an important element of the charge and specific evidence must go to prove that the defendants had clear intention to kill the victim.

They further submitted that in order to show the defendants’ real intention the prosecution must proved the defendants’ intention beyond reasonable doubt as in the case of R v Kiki Kau’ Au (unreported judgement) (1970) No 557.

On this submission I can only accept the first part and that is the element of intention is a necessary element of the charge for attempt to kill someone as what the defendants are charged for.

With respect to the defence, I do not accept the second part of their submissions because the ‘proof beyond reasonable doubt’ is the criminal standard of proof for which it does not concerns committal proceedings.

In committal proceedings the standard of proof is lesser than the criminal standard of ‘proof beyond reasonable doubt’ and higher than the civil standard of ‘proof on the balance of probability’

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

"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."

This is really what s. 95 of the District Courts Act is asking the Committal Court to do.

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 it 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, a process which seldom happens in the Committal Court these days.

In the evidence the defendants went out armed and had some form of intention which they put into action.

Police charged them for attempt murder and the victim said in his evidence that, had it not been for members of his family who came to his rescue he would have been killed.

But according to the evidence of her mother, Susan Kuar she met Fidelis on his way walking back to his house and she described how Fidelis confronted her and the victim was a few metres away from where she met Fidelis.

It appears the defendants had already left for their houses after Fidelis cut the victim twice with the knife on his back and the forearm. The victim was unarmed and easy prey for the defendants who could have killed him if they wanted to but decided otherwise after wounding him. There is no evidence that the defendants were about to execute the final blow to kill the victim when the victim’s family or anyone coming to aid him stopped the defendants from executing it.

The evidence shows clearly a case of unlawful wounding causing grievous bodily harm and not the charge of attempt murder.

On this basis I find that the evidence is insufficient to prove the present charges against the defendants as I find that the evidence really constitutes the offence for unlawful wounding causing grievous bodily harm instead which is consistent with the doctor’s findings.

Accordingly I struck out the information charging both defendants and discharged them.
I order that their bail be refunded to them in full

_____________________________

Police Prosecution for State.
Lawyers for Defendants: Public Solicitor.