DC4086

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]
COM 119 of 2019
BETWEEN
Police
Informant
AND
BIBBRA TATARA
Defendant
Popondetta : L Mesmin
2020: 28th January 

CRIMINAL: Hand – up brief – defendant charged with murder contrary to section 300 (1)(a) of the Criminal Code Act. 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
The defendant in Person
RULING ON SUFFICIENCY OF EVIDENCE

INTRODUCTION:

1.	L. Mesmin DCM :The Accused Bibbra Tatara has been charged with one count of murder contrary to Section 300(1)(a) of the Criminal Code Act. 

BRIEF 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:

3.	It is alleged that on the 19th of September between the hours of 10am to 11am the Accused now before the court namely Bibbra TATARA, 24 years old from Sasembata village did WITH INTENT TO DO GREVIOUS BODILY HARM TO ANOTHER PERSON NAMELY DOROTHY TATARA, KILLED THE SAID DOROTHY TATARA with a small tramontina kitchen knife.

4.	It is alleged that on the date, time and place stated above, deceased namely Dorothy TATARA was at the Sasembata market. There were many people who were doing their marketing. People were busy doing their marketing when Accused namely Bibbra TATARA started an argument with her sister in law Dorothy TATARA (deceased). Witnesses heard Bibbra was arguing with Dorothy over money.

5.	It is alleged that Dorothy TATARA (deceased) walked towards an old man who sat down in the market selling his mustard.

6.	It is alleged that the Accused was holding onto a small tramontina, wooden handle kitchen knife whilst she was walking behind Dorothy and was arguing. Dorothy kneeled and bent over to buy mustard.

7.	It is alleged that after Dorothy bought her mustard, was trying to get up when defendant who was holding the knife with her right hand lifted the knife and stabbed Dorothy at the back of her neck.

8.	Lila HIVISE who was sitting nearby selling her doughnut got up and grabbed the Accused Bibbra TATARA on her back. It is alleged the Accused swung the knife backward and stabbed Lila HIVISE on her right thigh.

9.	It is alleged that the Deceased Dorothy TATARA fell down and a lady nearby, Aileen KOEKARI, caught her and they both fell down together. After they fell down Aileen KOEKARI shouted and tried to wake her up but Dorothy never responded.

10.	Dorothy TATARA died after that and her body was taken down to Popondetta General Hospital morgue for autopsy.

11.	The Accused Bibbra TATARA was arrested on the same day, taken down to Popondetta Police Station and was detained in the Juvenile women’s cell.

12.	The Accused was charged on the 26th of September, 2019 in the General CID Office at Popondetta Police Station. She was then charged for a count of murder under Section 300 (1) (a) of the Papua New Guinea Criminal Code and placed in the Police Juvenile Cell.

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

The law:

14.	Section 300 WILFUL MURDER of the code states:

(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–

done in the prosecution of an unlawful purpose; and
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 willfully 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.

ROLE OF COMMITAL COURT

15.	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.

16.	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 [s. 95 of the District Courts Act].

17.	It 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.

18.	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 defendant in the circumstances; it can only form its mind as to whether a prima facie case from the evidence gathered does exist.

19.	 The committal proceeding is not required to assess the credibility of the evidence nor to determine the innocence or the guilt of an Accused and cannot result in an acquittal: SCR No. 34 of 2005 – Review Pursuant to the Constitution Section 155(2)(b) the Application of Herman Leahy.

20.	This Court or any other committal court has no power to decide on the weight of the evidence, or decide if the accused has a case to answer (or no case to answer).

STRENGTH OF EVIDENCE

21.	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. 

22.	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.

23.	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.

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

25.	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.

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

CONSTITUTIONAL RIGHT OF DEFENDANT TO FAIR TRIAL 
27.	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:
“Nothing is finally decided by the Committal proceedings. The applicant’s constitutional rights will be protected on trial from any deficiency.”

SUBMISSIONS 
28.	No submissions were made relating to whether or not the evidence as it stands is sufficient.  

The polices witnesses
29.	The committal court is asked to review the evidence in the Police Hand-up Brief to decide whether the evidence offered is sufficient enough for the court to rely on, to commit the Accused to stand before the National Court for the charges laid against him. 

30.	I am mindful that what is before me is a question of law, however to answer it I must look at the facts surrounding the whole incident.  

31.	I am further reminded that it is strictly the State’s evidence that the court has to rule on, which means that any failure by the State to call in relevant evidence to substantiate the respective elements of the charge will leave the court no choice but to strike out the charges and accordingly discharge the defendants. 

32.	Therefore the State through the Police Prosecution carry a heavier responsibility to harness in all material evidence that is relevant to the issue at hand.

33.	The State’s case today is essentially based on the hand-up briefs tendered to the court.  

34.	The police evidence is brief. The facts disclose offence of Murder contrary to Sections 300 of the Criminal Code.

35.	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.

36.	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.

37.	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.

38.	There are eight (8) witness statements on file, namely Lila Hivisi, Aileen Koekari, Dorothy Ambure, Joyce Orovo, Charlie Joe Kari, Baklyn Kohari, Constable Paul Atio and Senior Constable, Augustine Pasitara.  All of them are potential State witnesses at a trial proper.

39.	Of the 8 witnesses’, 4 witnesses make out what I consider to be relevant identification evidence in-terms of placing the accused at or relatively near the scene of the crime when it was committed

IDENTIFICATION

40.	In State v John Beng [1976] PNGLR 471, Frost CJ stated that where evidence of identification is relevant, the court should be mindful of the inherent danger. That there is no rule of law that the evidence of one witness is insufficient nor is there any rule of law that there must be a police parade for purposes of identification.

FINDINGS

41.	This court in reaching its findings has considered the totality of the evidence of the particular witnesses it has referred to with particular regard to the evidence of Lila Hivisi, Aileen Koekari, Dorothy Ambure, Joyce Orovo, and considered the charge the Accused is charged with in the Police Hand-Up Brief and has borne in mind the pre requisite standard of proof.

42.	Therefore this court finds that there is sufficient evidence as the essential elements of the charge and commits him for trial at the National Court.

43.	This court finds, in respect of the charge of Murder contrary to Sections 300 of the Criminal Code, sufficient prima facie evidence on the essential elements to put the Accused before the National Court of Justice to stand trial for causing the death of the deceased.

44.	I now administer Section 96 to the defendant.

45.	The accused charge was read to her and the nature of the charge was explained to her in Pidgin language and the following words were said to her in Pidgin Language –

46.	“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.”

47.	The Accused understood and elected to give a statement which is recorded in writing in pidgin language, signed by the Accused, placed on this file, dated 28th January 2020 at 11:46am.

48.	Therefore having considered all the evidence before this court and being satisfied that there exist sufficient prima facie evidence to put the defendant before the National Court for the charge of Murder contrary to Sections 300 of the Criminal Code, I therefore commit the accused to the National Court to stand trial before the Popondetta National Court on the 6th July 2020.

Senior Constable Augustine Pasitara, for the Informant
The defendant in Person