DC5026

Papua New Guinea
In the District Court
Held at Waigani
Sitting in its Committal Jurisdiction
Comm. Nos. 1403 & 1404 of 2019
BETWEEN:
THE POLICE
Informant

AND:
SHELIN LAUK AND GRACE KALA
Defendants

Port Moresby: T. Ganaii, SM
07th July, 2020

COMMITTAL PROCEEDINGS – Charge- One count of Murder each contrary to section 300 (1) (a) of the Criminal Code Act 
COMMITTAL PROCEEDINGS - Legal requirements for prima facie case - Presence of the elements of the charge - Evidence is insufficient to commit the defendant to stand trial in the National Court - Cause of death is pneumonia and is remote to actions of defendants – No abnormal findings on head and neck area where deceased was hit

Cases cited:
Akia v Francis PGNC 335; N6555 
Maladina v Principal District Magistrate Posain Poloh [2004] PGNC 208
R-v- McEachern [1967-68] PNGLR 48
The State v Samuel Roth [2018] PGNC 470, N7591 (20th November 2018)
Yarume v Euga [1996] PGNC 24; N1476

Overseas Case
Barca v The Queen [12] [1975] 50 ALJR 108 at p.117

References – Nil

Legislation
Criminal Code Act Chapter 262  
District Court Act, Chapter 40

Counsel
Police Prosecutor, John Wamugl		For the Informant
Public Solicitors, Ms Kambua			For the defendant

RULING ON SUFFICIENCY OF EVIDENCE

07th July, 2020

Introduction

Ganaii, SM		This is a Ruling on whether a prima facie case is made out within the meaning of Section 95 (1) of the District Courts Act where all the evidence of the Prosecution is received in the form of a Police Hand Up Brief (HUB) and the Court is required to consider whether it is sufficient to put the Defendants on Trial. Defence Submission is also considered in this Ruling.

Charge

2. Both Defendants are charged with one count each of Murder under section 300 (1) (a) of the Criminal Code Act. 

Facts 

3. It is alleged by the Prosecution that on the 03rd of August 2019, both defendants were at Kesu settlement, Gerehu Stage 2, NCD at the rental property where the deceased late Ms Jenny Jack was one of the care takers. The deceased was also there. Her chair was missing and she was angry and blaming the tenants for taking her chair away without her consent. The defendant Ms Shelin Lauk heard the deceased talking and talked back at the deceased. She assumed that the deceased was blaming her as she usually would borrow or use the deceased’s chair. The defendant Ms Lauk approached the deceased and a fight broke out where Ms Lauk used her fingers on the deceased’s mouth and also bumped her head against the fridge. It was at his time when the defendant Grace Kala joined in the fight and assaulted the deceased on the head with a stone. The deceased fell down, got up, got a piece of timber and fought with the two defendants. 

4.	At this time, the deceased did not sustain any serious injuries. She only received a scratch and bump on her chin and pain on the head. Sometime later that evening, they made peace, and compensated each others.Two days later the deceased felt sick and was admitted to the hospital. Police case is that the deceased died after the assault on her by the two defendants. 

Issue
5. The issue before this court is whether a prima facie case is made out and that is whether the evidence received from the Prosecution is sufficient to warrant the committal of both defendants to stand trial at the National Court on the charge of murder. 

6. The Sub-issues is whether there is sufficient evidence on each element of the offence of murder.

The Law

The law on Committal Proceedings

7.	Part VI of the District Courts Act provides the legal basis for committal proceedings specifically under Section 94 to Section 100 of the District Courts Act.

8. The Committal Process whilst requires the Court to make a finding on the evidence presented by the Police, this process is very administrative in that the Court need only to form an opinion that there is a bona fide prima facie case against the Defendant; as per Akia v Francis PGNC 335; N6555 and R-v- McEachern [1967-68] PNGLR 48.

9.	 In the matter of Maladina v Principal District Magistrate Posain Poloh [2004] PGNC 208 His Honour Injia DCJ (as he then was); expressed in his opinion that the Committal process involves two phases, the first is when the Committing Magistrate makes a finding on whether or not there is sufficient evidence and whether a prima facie case is made out under Section 95 of the District Courts Act and the second being when a further finding is made under Section 100 of the District Courts Act on whether to discharge or commit the Defendant only after the Court administers an examination of a Defendant under Section 96 where the defendant is asked whether he desires to give evidence.
10.	Furthermore, in the case of Yarume v Euga [1996] PGNC 24; N1476 the National Court said in respect to committal hearings that the process of committal requires proper and reasonable assessment of the evidence with a view to see whether all the elements or ingredients of the offence is present before he can commit the accused; Section 94B, 94C, 95 and 100 to be read together.
The law on the offending provision(s)
300.	Murder.
(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–
(i)	done in the prosecution of an unlawful purpose; and
(ii)	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 wilfully 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.

Elements of the Charge of Murder	

10.	According to the case law of The State v Samuel Roth [2018] PGNC 470, N7591 (20th November 2018), the following are the elements of the charge of murder:

i.	the defendants killed the deceased and 

ii.	they intended to cause grievous bodily harm

Prosecution Case

11. To prove its case, the Prosecution produced thirteen (13) witness statements namely:

(1) Joyce James – this witness was at the scene when the fight broke out between the defendants and the deceased. Her evidence in relation to the fight and effect of it is as follows: she saw the defendant S. Lauk pull the deceased’s hair and punch her head several times. She was not sure if the deceased’s moved and hit the fridge. She wanted to step in to stop the defendant but she was bigger and stronger and pushed her aside. Whilst both women were fighting the defendant Grace Kala joined in the fight and whilst armed with a stone in one hand hit the deceased on the head with it. She said both   the defendant S. Lauk and the deceased continued on fighting when the deceased trapped herself and fell. She got up again, armed herself with a timber and tried to assault the defendant S. Lauk when a tenant intervened and stopped her. Later, the deceased used the same timber and again tried to assault the defendant S. Lauk. It was at this stage that the witness intervened and tried to stop her. The deceased in the process of swinging the timber hit the witness on her back and shoulders.  The fighting stopped and they said sorry to each other and the defendant S. Lauk paid K40 compensation to the deceased. 

The witness further stated that on the next day the deceased went to Badili and slept there. On the 06th of August 2019, the deceased called the witness and told the witness that she got admitted to the hospital and wanted the witness to visit her. The witness visited her at the hospital. It was on the day after her visit that the deceased passed away. The witness stated that before the assault the deceased was not sick. Two weeks before the assault and leading up to the date of the incident the deceased was complaining of having pain in her legs.
 
(2). Israel Ipata – this witness is the 7 year old son of the deceased. His evidence is that the defendant S. Lauk assaulted the deceased in the room. They both fought from inside and ended up outside the room. The other defendant Grace Kala armed with a stone hit the deceased’s head. Both women then continued to fight with the deceased. The other witness Rose fought with Grace and chased Grace away. The defendant S. Lauk and the deceased continued fighting when the deceased picked up a timber and tried to hit the defendant S. Lauk. A tenant intervened and stopped the deceased. Some moments later the deceased was standing and fell unconscious. She then (upon waking up) went and stayed in her room. Later they all said sorry to each other. 

(3) Joan Aloisis – This witness is a tenant. Her statement is that she heard argument and fighting in the deceased’s room. She saw the defendant Grace Kala run into the room and heard continuous fighting. The fight continued and came outside where she saw the defendant S. Lauk and the deceased pulling at each other’s hair. It was then she saw the deceased fall down.  After the deceased got up she armed herself with a timber tried to assault one of the defendants when she was stopped by the on lookers. The fighting stopped and sometime later the women made peace.

(4) Aloysius Oa – The witness statement is very brief about observing a fight, and reconciliation afterwards. 

(5) Christy Ipata – The witness is the owner of the rental property and the guardian of the deceased. The relevant parts of her statement on the issue are that in the month of July the defendants visited her at her home and Badili. In their conversations, the defendants told her that they were not happy with some of the decisions the deceased was making and that they will assault her. She then told them not to assault her. On the 05th of August 2019, the deceased went to her home at Badili and she noticed the deceased had a bump on the outside of her cheeks and scratch inside of her mouth, in the inside of the cheeks. She told the witness that on the date of the incident she was experiencing pain in her legs. She also told the witness about the fight with the two defendants. The witness said that the deceased stayed with her that evening and complained of pain in her legs and the witness bought her panadol for the pain. She said the deceased never had any sickness before and was healthy. On the evening of the 06th of August 2019 the deceased complained of heart problems and was taken to the hospital. She was placed on drip and died at the hospital

(6) Nancy Lomber      – The witness is a niece of witness Christy Ipata. She stated that the deceased went to them and told them about the fight. She noticed that the deceased look sick, pale, her stomach was big and not normal and she had difficulty breathing. She also stated that the deceased didn’t look sick before but only complained of pain in the legs and that the pain was getting bigger after the fight with the two defendants. The next day she and others reaslied that the deceased didn’t look well and so they took her to the hospital. AT the hospital she was placed on drip. The doctors said to continue to give her more drip but they didn’t. The deceased was waiting for more drip when she passed away on the 07th of August 2019. The witness said she laid a complaint with the Police against the two defendants because of the fight and also because she heard the defendants saying that they were not happy with the deceased and will assault her.

(7) Sharon Pundauri – this witness the niece of the deceased. Her evidence is about what the deceased told her about the fight. She also stated that the deceased complained of pain and said the pain was getting worse after the assault. 

(8) Dr Philip Golpak – this witness is the Medical Doctor who conducted the post mortem and produced a medical report on the cause of death. His findings were that the deceased died from pneumonia. Pneumonia was the direct cause of death. There were findings of: bruising of the scalp and canon ball haemorrhagic lesions on both lungs tissues. Internal examinations of the head and neck area including the scalp and skull were noted as normal

(9) Samson Patan – Witness is a crime scene police officer attached to the RPNGC National Forensic Sciences Service. His evidence is about attending to crime scene and post mortem and taking photographs of the scene of crime and lungs of the deceased.

(10) Yaku Gwampom – Witness is the case investigator in case against Grace Kala. 

(11) Ronald Sakari – Witness is the case investigator in case against Shelin Lauk.

(12) Steven Eka – Witness is the Police corroborator. 

Documentary Evidence:
12.	In support of its case the prosecutions relied on the following documentary evidence:

a.	Medical Report –. His findings were that the deceased died from pneumonia. Pneumonia was the direct cause of death. There were findings of: bruising of the scalp and canon ball haemorrhagic lesions on both lungs tissues. Internal examinations of the head and neck area including the scalp and skull were noted as normal;

b.	Photographs total of 11

Photographs 1–5 		shows the crime scene
Photograph 6–		shows a close up view of deceased’s face
Photograph 7–		shows the morgue name tag of the deceased 
Photograph 8 –		shows a close up view of deceased face showing
bleeding from the nose
Photographs 9–.11 	shows a close up view of the lungs

c.	Record of Interview – Both pidgin and English versions for both defendants conducted on 16th and 21st of August 2019 respectively. Nil admissions

d.	Antecedent		– Not relevant for now. 

Defence Submission

13. 	The defence submitted as follows:

i.	There was no intention to do grievous bodily harm. There is no evidence of injuries sustained as a result of actions of the defendants. The only visible effects were a scratch and bump in the mouth and on the chin of the deceased; 

ii.	The deceased died four days later and the cause of death is not from any injuries sustained as a result of the fight; 

iii.	The medical report stated that the ‘direct’ cause of death is pneumonia and
 
iv.	As a result evidence is prima facie insufficient against the defendants on the charge of murder.

Prosecution Submission:
14.	The prosecutor informed the court that they will not make any submissions. 
Consideration of Defence Submission and Analysis of the Evidence

15.	 The court has considered the defence submission in the light of the evidence in the Police HUB and makes the following findings:
i.	Although death occurred, the cause of death is remote to the actions of the defendants;

ii.	Evidence of some Police witnesses show assault on the head of the deceased and her falling down, however, there is no evdience of any injuries sustained from the assaults effected on the deceased on her head except for a ‘bumo’ on the chin and scratch in the mouth; this is insufficient to make prima facie findings of an intent to do grievous bodily harm; 

iii.	Prosecution did not make submissions on the issue of causation; 

iv.	The Medical Report shows that the only direct cause of death is pneumonia; 

v.	There are no abnormal findings around the head and neck region of the deceased both  externally and internally; 

vi.	There are findings from internal examinations of the lungs of canon ball haemorrhagic lesions on both lungs tissues; and

vii.	There is no evidence that the defendants intended to do grievous bodily harm to the deceased.

Whether the elements of the Offence of Forgery and Uttering are sufficient in the Police evidence received?

16.	 The court is required under Section 95 (1) of the District Courts Act to make a determination on whether there is some evidence on each element of the offences to make out a prima facie case against the Defendant to warrant his committal to the National Court. That is whether there is sufficient evidence on each element of the offence contained on the Police Hand Up Brief to warrant a committal on each charge as per the Information. Whether there is sufficient evidence received from Police to sustain a charge of Murder under Section 300 (1) (a) of the Criminal Code?

Conclusion 
17.	 I have made an assessment of the evidence of the Police File and considered the Defence Submission on Sufficiency and I find there to be a prima facie no case against both defendants to put them on Trial for the charge Murder under section 300 (1) (a) of the Criminal Code . 
Orders:
18. 	The final orders are as follows:
i.	There is insufficient evidence against defendants Shelin Lauk and Grace Kala on 1 x count each of Murder under section 300 (1) (a) of the CCA;

ii.	The defendants Shelin Lauk and Grace Kala are discharged from information bearing 1 x count each of Murder under section 300 (1) (a) of the CCA;

iii.	The information bearing 1 x count each of Murder under section 300 (1) (a) of the CCA is dismissed against defendants Shelin Lauk and Grace Kala;

iv.	The defendants Shelin Lauk is discharged from custody forthwith;  and

v.	The defendant Grace Kala is discharged from bail obligations forthwith and bail monies are to be refunded. 

Police Prosecutor:			 For the Informant
Public Solicitors:			For the Defendant