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Papua New Guinea District Court |
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS COMMITTAL JURISDICTION]
Comm. No 1913 of 2019
BETWEEN
THE POLICE
Informant
AND
BRANDON AIYOK
Defendant
2020: 16th of December
COMMITTAL PROCEEDINGS - Charge- One Count of Murder contrary to section 300 (1)(a) of the Criminal Code Act– Is the Police Evidence sufficient and prima facie sufficient to commit the Defendant to stand trial at the National Court.
COMMITTAL PROCEEDINGS – Legal requirements for prima facie case – Presence of the elements of the charge of Murder – Evidence is not sufficient to commit the Defendant to stand trial in the National Court.
Cases Cited
Akia –v- Francis [2016] PNGC 335; N6555
Yarume v Euga [1996] PNGNC 24; N1476
The State –v- Kevin Henry [2019] N8160
The State –v- Binas [2009] PNGNC 160; N3118
The State –v- Tovarubu [2012] N5242
References
Legislation
Criminal Code Act
District Courts Act
Counsel
Ms.Shirlyanne Pius of Police Prosecutions, for the Informant
Mr. Lako, E, (LTI Trainee) for the Defendant
RULING ON SUFFICIENCY OF EVIDENCE
16th December 2020
S Tanei: This is a ruling on whether there is sufficient evidence in a Police Hand up Brief to commit the Defendant to stand trial at the National Court pursuant to section 95 (1) of the District Courts Act.
CHARGE:
2. The Defendant was charged with one count of Murder under Section 300 (1) of the Criminal Code Act.
3. On 10th December 2020, the Court recalled the matter for parties to make submissions on whether the charge is correct in law.
4. Ms. Shirlyanne Pius of Police Prosecutions made an application under section 32 of the District Courts Act to amend the charge from section 300 (1) to section 300 (1) (a) of the Criminal Code.
5. Mr. Lako, assisting the Defendant, submitted that the Information is Defective and must be dismissed.
6. After hearing submissions from the parties, I am of the view that the application is correctly made by the Prosecutor. This is because there is no substantial change in the facts or the wording of the charge itself but only an insertion of the correct section of the Criminal Code. Section 32 of the District Courts Act allows for that. Therefore, I accept the Prosecution’s application and allow the amendment.
7. The Charge is now Murder under section 300 (1)(a) of the Criminal Code Act.
FACTS:
8. Police say that in the early hours of Sunday 24th November 2019, at about 4.00 am – 5.00 am the Defendant was seen at the Vision City Car Park area after clubbing at the Cosmopolitan Club at Vision City.
9. It is alleged that the Defendant and the deceased got into an argument inside the Cosmopolitan Club at around 2 am to 3 am when security (bouncers) intervened and stopped them from fighting.
10. Police say that when the club closed as 4 am, everyone left the club including the deceased and the Defendant. When they went to the main car park outside, there was a confrontation between the deceased and one namely Raymond Thomas and a fight broke out at the car park.
11. During the fight, the Defendant was identified by witnesses hitting the deceased on the head with a piece of timber and then fled the scene. The deceased was then found dead lying on the car park area. He was rushed to the hospital but was pronounced dead on arrival.
12. The Defendant was apprehended by Police at his home on the 1st of December 2019 and was detained in the Police Cells. He was formally cautioned, arrested and charged with one (1) count of Murder under section 300 (1)(a) of the Criminal Code.
ISSUES:
13. The Court is faced with the issue of whether there is sufficient evidence in the Police Hand Up Brief to commit the Defendant to stand trial at the National Court.
THE LAW
14. The law on Committal Proceedings is found in sections 94 to 100 of the District Courts Act.
15. Section 95 of the District Courts Act provides for the function of the Committal Court. It provides that;
“95. COURT TO CONSIDER WHETHER PRIMA FACIE CASE.
(1)34 35Where 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.”
17. There are numerous cases that deal with the powers of the Committal Court. Two of these cases are Akia –v- Francis[2016] PNGC 335; N6555 and Yarume v Euga [1996] PNGNC 24; N1476. In those cases, the Court held that the Committal Court’s power is to weigh out the evidence that is presented by the Police through a Hand Up Brief and see if the evidence meets all the elements of the offence or charge. If there is sufficient evidence, the Defendant will be committed to Stand Trial at the National Court. If there is insufficient evidence, the Defendant will be discharged.
18. The Defendant was charged with one count of Murder under section 300(1)(a) of the Criminal Code Act.
19. Section 300 (1)(a) of the Criminal Code Act provides that;
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;..................
Penalty: Subject to Section 19, imprisonment for life.
20. In the case of The State –v- Kevin Henry [2019] N8160, the Court held that the offence of Murder under section 300(1)(a) of the Criminal Code consists of the following elements;
21. These elements are also discussed in the cases of The State –v- Binas [2009] PNGNC 160; N3118, The State –v- Tovarubu [2012] N5242.
22. I am tasked to determine whether the evidence contained in the Police Hand Up Brief satisfies all the elements of murder under section 300 (1)(a) of the Criminal Code Act and constitute a prima facie case to commit the Defendant to stand trial at the National Court.
POLICE HAND UP BRIEF
23. The Evidence in the Police Hand Up Brief consisted of the following;
This witness was with the deceased in the Cosmopolitan Club on the night of the incident. He saw what transpired in the club that night prior to the deceased being killed. He stated that he saw the deceased walk with a Milcah, a wantok of theirs so he followed them to the bar. There the deceased told him that he fought with Milcah’s boyfriend so Milcah wanted to buy him beer.
He says he saw a guy in a blue/purple button shirt with neatly cut hair picking a fight with the deceased. That guy came in with another stockily built guy in a black singlet shirt. They looked like they wanted to cause trouble.
That stockily built guy was shouting “where are those men who attacked my brother”.
When the club closed at 4 am on Sunday 24th November, there was a fight outside the club between the deceased and the guy in the black singlet. The deceased died as a result of the fight.
This witness was at the Cosmopolitan Nightclub on the night of the incident. He says he saw the deceased in the night club and that the deceased argued with someone who had a fresh black eye and was wearing a blue button shirt. He was in the company of a guy wearing a black singlet and they were rowdy towards the deceased. Then they paused and departed. That was at around 11.45 pm.
When the club closed at 4 am the next morning, he went out of the club with Larry Rosu where he saw the deceased fighting with the guy that was wearing a black singlet. He tried to stop the fight but he was hit with timber by security personnel. One of the guards shouted “Yu laik fight wantaim ol security guards ah?” There they exchanged punches. He was hit with a timber and was unconscious for some time. He later found out that the deceased was badly injured.
This witness was also in the Cosmopolitan night club at the night of the incident. She identifies Brendon Aiyok as dressed in a Blue Button shirt. She mentioned that her boyfriend, Bryan fought with Brendon Aiyok and punched him in the club. She also said she passed the deceased in the club.
She said that when the party ended, she heard that there was a fight in the car park. She later got on a cab outside Stanley hotel and went home.
He states that he was in the Cosmopolitan Nightclub on the night of 24th November 2019. He saw the deceased in the company of other boys from his village.
When the party ended they went out of the club at 4 am the next morning. He saw the deceased fighting with a guy wearing a black singlet. A fight broke out and he fought with a security guard.
He was hit with a pipe on his face and he lost consciousness. When he regained consciousness he saw a crowd chased by the guards so he followed the crowd. He later learned that Brandon Tagune (deceased) was hit. He went to check him but there was no pulse on his body. He later got on a taxi cab and went home while the deceased was taken to the hospital.
This witness stated that he entered the Cosmopolitan Nightclub on the night of 23rd November to the morning of 24th November 2019. There he met his old friends and had a good time.
At around 4 am on 24th November, he left the club to go look for a taxi to go home when he witnessed a drunken brawl. He helped the security guards to stop the brawl. However, they were outnumbered and he was attacked. He then heard that someone was seriously in another fight within the vision city car park near Wamowamo club. He then got on a cab and went home.
This person is a Millennium Guards security guard. His Statement is in the form of a Confessional Statement. He states that he was on duty between 4 and 5 am on Sunday 24th November 2019 doing pick ups. As they entered Vision City Car Park he noticed that there was fighting. He saw Raymond Thomas (a Millennium Guards security guard) being attacked. When he tried to help stop the fight, he was attacked as well.
He said he saw the deceased being hit with a timber by a person wearing a red t shirt and a long blue trousers. He must be a vision city mall guard.
He said they got Raymond Thomas and dropped him off when he regained consciousness.
This person is the Vision City Security and Safety Manager. He states that he received a Search Warrant requesting the CCTV Footage of the incident of 24th November 2019 to which he complied with.
He is a Police investigator in this matter. He will be giving evidence on his investigations regarding the matter. His story is that the deceased had an argument with the Raymond Thomas in the club before he was murdered outside.
He is the Doctor that performed an autopsy on the body of the deceased. He states that the cause of the death is due to Subarachnoid Haemorrhage due to fractured skull following blunt force trauma.
This witness is a Crime Scene Examiner attached with Police Forensics Science Services. His statement contains his findings on the crime scene.
He is a Police Officer who corroborated the Informant in this proceeding when he a Confessional Statement from Matthew Yai on 17th January 2020.
He also corroborated the Record of Interview between the Defendant and Police the Informant on 4th February 2020. He says the Record of Interview was conducted freely without any duress.
This witness is the Police Investigator and the Informant in this proceeding. He conducted the Record of Interview with the Defendant on 4th February 2020.
-Post Mortem
-Crime Scene
h) Accused’s Record of Interview
i) Accused’s Antecedent Report
ANALYSIS OF THE POLICE HAND UP BRIEF
24. I adopt the principles set out in the cases of The State –v- Kevin Henry [2019] N8160, The State –v- Binas [2009] PNGNC 160; N3118 and The State –v- Tovarubu [2012] N5242 and am of the view that in order for the Court to safely commit the Defendant to stand trial at the National Court for the offence of Murder under section 300 (1)(a) of the Criminal Code Act, the evidence must satisfy the elements of the offence and these are;
Defendants’ Submissions
25. The Defendant through his representative, Mr. Lako of the Legal Training Institute filed written submissions on 6th October 2020 and relied on it all throughout his oral submission.
26. Mr. Lako submitted that the Prosecution’s evidence failed to meet the elements of the offence and as such the matter should be dismissed and the Defendant be discharged.
27. Mr. Lako submitted that the evidence in the Police file failed to meet the essential element of identification of the perpetrator.
Prosecution’s Submissions
28. Ms. Shirleyanne Pius of Police Prosecutions submitted that the Police evidence met all the elements of the offence.
29. She submitted that all the witnesses in the Police hand up brief point to the Defendant as the perpetrator.
30. She also submitted that the deceased made a dying declaration that mentioned that the deceased had a fight with the Defendant prior to his death.
31. Ms. Pius also submitted that the Defendant is also a Principal Offender under section 7 (c) of the Criminal Code Act. She submitted that the Defendant aided others to kill the deceased.
FINDINGS
32. I have carefully considered the Police Hand Up Brief and have formed the view that the evidence failed to satisfy all the elements of Murder.
33. Firstly, the evidence failed to identify the Defendant as the person who killed the deceased. Here, none of the witnesses show that the Defendant was at the scene of the crime at the time of the death of the deceased. Even though he was at the Cosmopolitan night club, he was not at the place where the fight broke out. He did not even participate in the fight that led to the death of the deceased.
34. I note from the evidence and the Prosecution’s submissions that the Witness Milcah Maginde identified the Defendant as the person in a blue button shirt. Apart from that, the evidence does not say that the person in the Blue Button shirt was the person who caused the death of the deceased or was in the company of others who caused the death of the deceased.
35. The law is that the evidence must meet the elements of the offence as well as the Statement of facts. I do not find this to be the
case here.
36. While there is evidence that someone was killed, all the other elements of the offence of murder are not met as well. The evidence
also failed to show that the Defendant intended to cause grievous bodily harm to the deceased when he was killed.
37. In addition, the Closed Circuit Television (CCTV) Footage does not identify the Defendant to be in the fight or within the area of the fight which resulted in the death of the deceased.
38. In relation to assertion that the deceased made a dying declaration, it is my view that the statement by the deceased in the club does not amount to a dying declaration. This is because at the time the deceased made the Statement his death was not imminent. He was in the club. He was not attacked at that time and he was not about to die that time. He did not even call the name of the Defendant or anyone the Defendant was with. All he said was he fought with Milcah’s boyfriend. The Defendant in this case is not Milcah’s boyfriend.
39. It is also my considered view that there was no concerted effort by the Defendant and any other persons to kill or cause grievous bodily harm against the deceased. There is nothing in the evidence that says that the Defendant was with a group of persons at time the deceased was killed. In essence, none of the Police witnesses identified the deceased as the person who struck the deceased which resulted in his death nor did they identify the Defendant as a person within the vicinity of the area which the offence occurred. Thus, section 7 of the Criminal Code Act does not apply here.
40. Also, the Information does not say the Defendant was with a group of others and section 7 of the Criminal Code was not pleaded on the Information.
CONCLUSION
41. After due consideration and examination of the evidence in the Police Hand Up Brief, I am not satisfied that all the elements of the offence of Murder under section 300 (1)(a) of the Criminal Code Act are covered by the evidence.
42. I therefore find that the Police Evidence is insufficient.
COURT ORDERS
43. The formal Orders of this Court are;
Lawyer for the Informant Police Prosecutions
Lawyer for the Defendant: Legal Training Institute
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