DC4085

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]
COM 06 & 07 of 2019
BETWEEN
Police
Informant
AND
WILLIAM & PAMINUS PARATA
Defendant
Popondetta : L Mesmin
2020: 22nd January 
CRIMINAL: Hand – up brief – defendant charged with murder contrary to section 300 (1)(a) of the Criminal Code Act. Defence raises abuse of process by police. Question whether Committal Court can run a trial. Question whether evidence in the hand up brief sufficient to commit the defendant to trial for the charges he stands charged.

Cases cited:
Regina vs. McEachern [1967-68] PNGLR 48
State v John Beng [1976] PNGLR 471
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, Chapter 262
District Court Act, Chapter 40

Counsel:
Senior Constable Augustine Pasitara, for the Informant
Mr Tony Sua for the both the Accused’s
RULING
INTRODUCTION:
1.	L. Mesmin DCM : The Accused’s William and Paminus Parata have been charged with one count of attempted murder contrary to Section 304(1) of the Criminal Code Act. 
SUMMARY OF FACTS
2.	This court adopts the brief facts of the police hand up brief and therefore will not repeat them all but in the summary, that the accused, William Parata and Paminus Parata were charged, that on 29 December 2018, Paminus Parata and the victim, Oliver Meiko, had a scuffle that resulted from some words that were said by the victim to the Accused’s and their family. That those words were alleged to be offensive and insulting in nature. The Accused’s retaliated by engaging with the victim down at the roadside at around 9pm and a brawl ensued immediately after which the victim received cuts and bruises on his head and parts of his face. 
3.	The Accused’s were arrested and charged for Attempted Murder under the Criminal Code Act. 
LAW
4.	S.304. ATTEMPTED MURDER, ETC.
A person who–
(a) attempts unlawfully to kill another person; or
(b) ………………………………………………..,
is guilty of a crime.
Penalty: Subject to Section 19, imprisonment for life.
BACKGROUND
5.	A preliminary application was made by the Defense lawyer, Mr Sua, questioning the legality of the process used to arrest both Accused. A Notice of Motion was filed on 17th May 2019 by the Applicant/ Defendants seeking the following orders:
•	That the Information relating to the arrest and charge of the applicant should be struck out or dismissed for breaches of S.42(2)(a) of the Constitution and S.18(1)(c) of the Arrest Act and 
•	That the Applicant William Parata be discharged forthwith from all bail conditions or obligations imposed by the Police. 
6.	The moving of this application is asking this court to answer 2 legal questions
•	To inquire as to whether the police had legal authority to press charges on the accused persons; and
•	If so, whether both the accused were afforded their constitutional rights under S. 42(2) of the Constitution. 
7.	These questions raise a fundamental jurisdictional issue as to what the function of a committal court is and whether the committal court has the power to conduct a trial at this stage of proceedings on the breaches of the Constitution and of Law.  
8.	The Accused’s rely on the Affidavit of Paminus Parata filed on 17th May 2019 stating the arresting officer not giving the accused reasons for his arrest and not letting him know what offence he was charged for in law. 
9.	Their submissions in brief are that the charge was not properly administered as required under s.18 of the Arrest Act and alternatively that the arresting officer Mr Kenaris Begola, who effected the arrest and charging of the accused was in breach of that section of the Arrest Act because he had no legal authority to charge the Accused persons and further that the arresting officer did not accord the them both the details of their arrest and the charge laid against them.
10.	On that basis the Accused’s lawyer submit that the information presented in court is defective, and therefore the court should strike out the information and that the accused be discharged from the information. 
ISSUES
11.	Issues (i) and (ii) relate to addressing the preliminary application under a Notice of Motion whilst issue (iii) addresses the substantive matter on foot being the submissions on the sufficiency of evidence. 

(i)	What is the function of the committing court?
(ii)	Whether the Committing Courts function includes holding a trial to hear evidence from both parties on the issue of whether or not the charges against the Accused were properly administered according to law? 
(iii)	Whether there is sufficient evidence that would support all the elements of the charges against the Accused to warrant the Accused to stand trial before the National Court of Justice? 
ISSUE (i) POWERS & FUNCTIONS OF THE COMMITTAL COURT
12.	The law governing committal proceedings is found in Division 1 of Part VI of the District Courts Act (the Act), section 93 – 103 inclusive. I will not restate all of those provisions here.
13.	The main function of the committal court is a restricted one and that is to identify and decide if there exists for the accused to stand trial on or be sentenced upon, a prima facie charge known in law.
14.	 Section 95 of the District Court Act states:
95.	Court to consider whether prima facie case.
(1)	Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.
(2)	If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.
(3)	If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division. 
15.	This provides for general powers of the committing court to consider the evidence tendered by the police for the purposes of committal proceedings, and determine as to whether a prima facie case is disclosed by the evidence.
16.	In the Magistrate’s Manual of PNG at paragraph 11.2.3. it states:
"The Magistrate’s decision is a judicial act, requiring that proper consideration be given to matters required by statute", and 
The committal proceeding is an investigation into the strength of the case being mounted by the prosecution, and it is not an act of adjudication.
17.	In SCR No. 34 of 2005 – Review Pursuant to the Constitution Section 155(2)(b) the Application of Herman Leahy. The court said:
“Committal Proceedings do not determine the innocence or guilt of a defendant and cannot result in an acquittal. ––“
18.	As long as the evidence discloses an offence, the committal court has the power to commit. The committing court’s Section 95 powers are wide and not restrictive, in that it empowers the committing court to put an accused on trial for any indictable offence. And not just the charge preferred in the committal proceedings.
19.	It’s function is to assess whether or not the evidence contained in the police hand-up brief is sufficient to at least touch on each of the elements of the offence(s) charged, as pleaded in the Information, laid against the Accused.
20.	The committal court is not required to weigh the evidence for its credibility as it does not have the jurisdiction to determine the guilt of the Accused’s in the circumstances and cannot result in an acquittal; it can only form its mind as to whether a prima facie case from the evidence gathered does exist.
21.	This Court or any other committal court has not only no power to decide on the weight of the evidence, but also to decide the accused has a case to answer (or no case to answer).
22.	Often there is confusion with establishing a prima facie case by the committal court to put the accused on trial; and finding no case for an accused to answer to.
23.	In a trial proper every accused person reserves the right to ask the trial court to discharge him or her upon the close of the State case, by way of a no case submission. Such an application would be prompted, when the State’s case, as it stood up to that point in the trial, did not for instance cover all elements of the charge, or that identification of the accused is inadequate, or some such other defect existed which would not be cured and it is unfair on the accused for the trial to be continued. 
24.	The National Court on the other hand has powers to convict or sentence an accused upon a charge supported by the evidence, even in a case where the accused may have been indicted with another charge. 
25.	Having said that though it must be clearly stated here that it is still early days and the accused has lost no opportunity to defend himself against the offence or charge for which he is to be committed. (my emphasis in bold)
STRENGTH OF EVIDENCE
26.	In the case of  Bukoya -v- State SC 887 (17 October 2007)  it establishes the issue to be posed in a committal process which is whether or not, based on the evidence put forward by the prosecution, a prima facie case is established against the Accused. This means that it is the strength of the evidence put forward by the prosecution that will be assessed for its sufficiency.
27.	Whether or not the state witnesses come up with the evidence to prove beyond reasonable doubt or even if the evidence, as it stands at the stage of committal may establish a defense, those issues can only be determined at a full trial. 
28.	It has always been the National Courts function to weigh evidence, assess credibility of witnesses, decide whether an accused ought to be called upon to adduce evidence in his defense, and further be satisfied as to whether the accused would be reasonably convicted.
29.	At this juncture I am reminded and caution myself that as a magistrate sitting in the committal court and exercising its jurisdiction as the committing court, I must not assume the role of the trial court of first instance which is by law, the National Court of Justice.
CONSTITUTIONAL RIGHT OF DEFENDANT TO FAIR TRIAL 
30.	In Liri v State (2006) N3110 [17/11/06], the National Court held that nothing is fully decided by the committal proceedings. The Applicant’s constitutional rights will be protected on trial from any deficiency in the evidence. Justice Lay, as he then was, held that:
31.	“Nothing is finally decided by the Committal proceedings. The applicant’s constitutional rights will be protected on trial from any deficiency.”
STANDARD OF PROOF
32.	 The standard of proof in committal proceedings is stated in Regina v McEachern [1967-68] PNGLR 48 where it held:-
33.	"To decide that the evidence offered by the prosecution in committal proceedings is sufficient to put the defendant on trial....The Court has only to form a bona fide opinion that there is a sufficient prima facie case against the defendant.”
34.	This standard of proof for sufficiency of evidence at the committal court is not the standard of proof of beyond reasonable doubt which is the measure required at a trial proper. It’s a much lower standard.
35.	If Committal Court Magistrates were required to be satisfied on the standard of proof for a trial proper, that sort of assessment of the evidence at the committal stage, when the evidence is still raw and untested through regular processes such as cross-examination for instance, would be froth with danger and cannot be allowed.
ISSUE (ii) -  Whether the CommittAL Courts function includes holding a trial to hear evidence from both parties on the issue of whether or not the charges against the Accused were properly administered according to law? 
36.	The answer to this issue is “no”. It is not a function of the committal court to try the evidence in a full trial. 
37.	A Committal Court Magistrate determines nothing – except form an opinion as to whether a prima facie case has been made out for an accused person to stand trial upon the preferred charged. The hearing of witnesses, permitting cross-examination of witnesses, assessing the credibility of witnesses or accepting evidence and weighing it out, are Judicial functions of the National Court alone, which is the trial court of first instance.
38.	It is more an administrative process than a strictly judicial one. This filtering process ensures that the National Court is not needlessly burdened with a long list of cases. The committal court also has a duty to check on things like the correctness of the wording of the preferred charge and regularity of evidence in the hand up brief and ensure that these conform to prescribed formats.
39.	In that regard it must be stated that since the committing court is not the trial court of first instance, an accused person’s defence, if he or she has any, cannot be raised in the committal proceedings in the usual sense, i.e., to have the effect of exonerating the accused of guilt at that stage. 
40.	I am of the view and am convinced that, whilst there may be evidence to suggest that the accused may not have committed the offence and there may also be evidence implicating the accused, there is every possibility for the trial court to reach a conclusion that a conviction is safe or unsafe.
41.	The strictly judicial conclusion, as to whether it is safe or unsafe to convict, is a discretion that lies exclusively in the trial court. The accused is not entitled to the benefit of the doubt just yet – at the committal stage.
42.	Nothing is finally decided in the committal proceedings and further, if there are any deficiencies in the evidence in the Police Hand Up brief, an Accused’s Constitutional rights will be protected at the trial stage.
43.	I am satisfied that any question of law should be argued at the trial stage. One must remember that at this stage (committal) they are just allegations and any legal questions must be raised in the proper forum which is the National Court.
44.	Therefore I will not interfere with the ordinary and proper course of the criminal jurisdiction and will allow the committal process to be completed by proceeding onto ascertaining whether or not there is indeed sufficient evidence to commit the Accused’s to stand trial before the National Court.
45.	This court refuses the Notice of Motion filed on 17th May 2019. 
Issue (iii) - Whether there is sufficient evidence that would support all the elements of the charges against the Accused to warrant the Accused to stand trial before the National Court of Justice?
SUBMISSIONS 
46.	I have given careful consideration to both the submissions for the State and for the Defense and perused the respective statements of all the witnesses. 
Consideration of court
47.	In order to consider whether there is a prima facie case against the accused this court must weigh 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.
The polices witnesses
48.	There are eight (8) witness statements on file. All of them are potential State witnesses at a trial proper. There are copies of a Record of Interviews and the Medical Reports on file.
49.	Of the eight witnesses’, one of them, namely, Oliver Meiko, make out what I consider to be relevant evidence in-terms of placing both the Accused’s at or relatively near the scene of the crime. The other four witnesses, Bart Hojane, Barty Hojane, Julie Meiko and Concelia Davural saw the injuries the victim sustained.
50.	The evidence of the five witnesses is pivotal in this proceeding against the Accused’s. 
FINDINGS
51.	Requirements of the District Court Act and case law impose other responsibilities on me as a Committal Court Magistrate.
52.	The State’s case today is essentially based on the hand-up briefs tendered to the court.  
53.	The police evidence is brief. The facts disclose an offence of Attempted Murder contrary to Sections 304(1) of the Criminal Code.
54.	Firstly I am satisfied the police had properly served the accused with the information pursuant to s.94(1) of the District Courts Act (the Act) and that proper service has been effected on the accused.
55.	Secondly I am satisfied after perusal of the file, that it contains a copy of the charge, a copy of each and every witness statement intended to be used as evidence in the prescribed format; copies of all the relevant documents referred to in the various witness statements that the State intends to rely on at the trial; and a full index of all documents and exhibits contained in the hand-up brief.
56.	I have further perused witness statements including statements and record of interview statements from the accused to ensure that all evidentiary material have been obtained lawfully as required by Section 94C of the District Courts Act.
57.	This court in reaching its findings has considered the totality of the evidence of the particular witnesses it has referred to, and considered the charges the Accused’s are charged with bearing in mind the pre requisite standard of proof.
58.	This court finds, in respect of the charges of Attempted Murder contrary to section 304(a) of the Criminal Code Act, sufficient prima facie evidence on the essential elements to put the Accused, William Parata and Paminus Parata, before the National Court of Justice to stand trial.
59.	I now administer Section 96 to the defendant.
60.	The accused’s charge was read to them both and the nature of the charge was explained to them in Pidgin language and the following words were said to them in Pidgin Language –
61.	“Having heard the evidence for the prosecution do you wish to be sworn and give evidence on your own behalf, or do you desire to say anything in answer to the charge? You are not obliged to be sworn and give evidence, nor are you required to say anything, unless you desire to do so; but whatever evidence you may give on oath, or anything you may say, will be taken down in writing, and may be given in evidence on your trial. You are clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat, which may have been held out to you to induce you to make any admission or confession of your guilt; but whatever you now say may be given in evidence on your trial, notwithstanding any such promise or threat.”
62.	Both Accused’s understood and elected to remain silent.
63.	Therefore having considered all the evidence before this court and being satisfied that there exist sufficient prima facie evidence to put the both the Accused’s before the National Court for the charge of Attempted Murder contrary to section 304(1) of the Criminal Code Act, I therefore commit the Accused’s to the National Court to stand trial before the Popondetta National Court on the 3rd February 2020.
64.	The accused shall remain in custody on remand in the meantime.
Senior Constable Augustine Pasitara, for the Informant
Mr Tony Sua for the both the Accused’s