DC6065

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION

COM NO 1076, 1080, 1081 OF 2020

BETWEEN:

THE POLICE
[Informant]

AND:

SAKARIAS YAKAMO
[Defendant]

Waigani: Paul Puri Nii

12th August 2021

COMMITTAL PROCEEDINGS: Charge-Unlawful Assault caused Grievous Bodily Harm 319(1)–of the Criminal Code Act 1974, Chapter No. 262. Notice of Motion to revoke Bail Conditions-Application by Police for breaching bail conditions-land dispute between parties.

PRACTISE AND PROCEDURE: Witness statement-full trial-witness crossed examined- Defendant and Complainant are cousins-Defendant invited Complainant to stay with him-Complainant now claims to stay in the property-Property owned by Defendant-Complainant use the current application as a poly to claim ownership over the land.

PNG Cases cited:
Nil

Overseas cases cited: 
Nil

REFERENCE

Legislation
Constitution
Criminal Code Act 1974, [Chapter 262]
District Court Act 1963, Chapter 40

Counsel
Police Prosecutor: 	Peter Samghy				For the Informant
Public Solicitor:	Bosky Koke					For the Defendant

DECISSION ON APPLICATION TO REVOKE BAIL

12th August 2021

INTRODUCTION

NII, P.Paul Magistrate. This is my decision on an Application to revoke bail filed by the Police on 17th May 2021, pursuant to Section 21(2)(a) and 22(1) of the Bail Act. The Defendant is currently on a court bail of K500.  The Application is sough in the following manner:
a)	Defendant’s bail be revoked and he be remanded in custody.

b)	Defendant’s bail be forfeited in wholly.

c)	Any other orders this court deems fit and necessary.

CHARGE
	
1.	Defendant is arrested and charged under sections 322(1)(a) and 340(1) of the Criminal Code Act 1974 [Chapter No. 262], for assaulting the victim. There are two (2) counts in the former charge and later has one count.

BRIEF FACTS

2.	Defendant is described by police as aged 51 and from Lialam village in the Kompiam Ambum District of Enga Province. Police information says the Complainant and Defendant are detached (distant) relatives and reside in the same zone. Police summary of facts says on Tuesday 01st September 2020, Defendant began an argument with the Complainant and Defendant punched her with some others and thus Defendant was arrested on 3rd September 2021.

3.	However, the court is also informed the victim and complainant in the current allegation against the Defendant is a Defendant in another allegation which is pending determination at the Boroko District Court. The current victim was allegedly arrested and charged for unlawfully in the premises owned by the current Defendant. Evidence shows the whole issue regarding the arrest which is in Boroko District Court was for a land dispute between the Defendant now in this court and the victim.

4.	On 4th February 2021, Defendant was granted bail by the Waigani District Court with conditions in the following manner:

a)	Defendant is granted bail in the sum of K500.
b)	Defendant’s named guarantors to pay a surety of K150. 
c)	Defendant shall not commit any other offence while on bail.
d)	Defendant shall not leave NCD without leave of the court.
e)	Defendant shall attended court at all times when ever his matte is called.
f)	Defendant shall reside at Guava street, Morata 2, NCD with Mr Yalo Karapus at all time.
g)	Defendant shall report to Waigani committal court registry every Monday between 9am and 3pm.

ISSUE

5.	Should the Defendant’s bail be revoked and remanded for breaching bail conditions? 

THE LAWS ON REVOCATION OF BAIL 

6.	The application to revoke bail is moved under Section 21(2)(a) and 22(1) of the Bail Act, which is as follows:

A)	21.	Revocation of bail.

 (2) If, after hearing all the evidence including that of the person granted bail and his witnesses (if any), the court is satisfied that the circumstances so require, it may—

(a) revoke the bail, discharge the person from his bail obligations and commit the person to a place of confinement.

B)	22.    Forfeiture of security.

(1)	Where a person granted bail contravenes or fails to comply with his bail obligations, a court may make an order forfeiting the whole or part of the security given by him to secure his bail obligations.

EVIDENCE

Prosecution Case

7.	Prosecution has called three (3) witnesses, namely; the victim, Rockie Pakilo and Masza Piyokol. Police says, there are evidence from both the Defendant and his wife that they collaborated to eliminate the Complainant from a land in which all of them were residing. Prosecution argues the arson on 8th May 2021, was caused by the Defendant with the full knowledge of his wife in an attempt to remove the Complainant from the disputed land.

8.	Prosecution says, police evidence establish Defendant was seen at Taurama on many occasions before the arson and therefore it is obvious Defendant was the one who set fire on the property.

9.	Police says there is an existing matter at Boroko summary court in which the Defendant is the Complainant and hence he should have respected the Law by letting justice to prevail in the matter. Police therefore submits there is sufficient evidence the Defendant was seen at Taurami and was carefully identified by the witness after the arson and thus submits Defendant breached the bail conditions by interfering with state witnesses and was not staying at the location of residence at the time of offence. 

10.	Prosecution on this foundation asked the court to revoke the Defendant’s bail and remand him in custody by forfeiting his bail money to the state.

Defense Case

11.	Defendant though Bosky Koke from the office of the Public Solicitor argues Defendant was never identified by any of the prosecution witness that he was the one that burnt the house on the date of allegation which was 8th May 2021. Defense says, police evidence is hypothetical and all hearsays and therefore submits police aspect of the evidence should not be accepted by court.

12.	Defendant says documentation evidence offered by police to inaugurate identification lacks reliability and truthfulness to bond the Defendant to the allegation of arson and also that he was identified.

13.	Defense argues the Complainant has an unkind intention of passing this issue before the court. Defense says Complainant is calculatingly filing this application in an attempt to have the Defendant constricted or incarcerated so that he will move to the Defendant’s property which is now allegedly occupied by the Complainant.

CONSIDERATION OF EVIDENCE, LAW AND THE APPLICATION

14.	Affidavit of Amos Anthon at paragraph 26 says that on the morning of 11th May 2021, he saw the suspect at the time of the second arson on the opposite side of the road. Witness says the Defendant was some 20 meters away by wearing a green round neck T-Shirt, blue shot with a black cap and with no foot wear. The witness went on to state at paragraph 27 that the street lights were on and says he clearly identified the victim. 

15.	This witness also says on 8th May 2021, when he was out in church his house was put on fire. However, he says he saw the Defendant’s wife near the scene and asserts Defendant’s wife could be a thinkable suspect given that she was seen there.

16.	Victim states that Defendant stays with his wife next to Dove funeral home at Taurama which is some 600-700 meters from the Defendant’s home.

17.	The evidence of Rockie Pakilo says at paragraph 10 that Defendant was wearing a green round neck T-Shirt and blue shot, black cap, without foot wear and was carrying a long bush knife. This witness says although the Defendant was 100 meters away, he could easily locate him because the street lights were on. Moreover the evidence of Masza Piyokol says at 3.00am in the morning he came out of the main road and saw the Defendant holding a bush knife and stood some 100 meters away but because of the street lights he could easily identify the Defendant.

18.	The Affidavit of accused at paragraph 5 says he heard the victim’s house was on fire from some relatives. Defendant says he was complying with his bail conditions by not going close to where the victim was residing. Defendant at paragraph 16 says his wife went to the incident scene to confirm whose house was on fire because the Defendant’s house is also on the equivalent location. 

19.	Elly Yakamo’s affidavit at paragraph 16 says she went to the location where the house was burnt to confirm if her husband’s house was on fire as the Defendant and Complainant’s houses are located on the same place but noticed that victim’s house was on fire. 

RULING

20.	There are two allegations of arson against the Defendant and his wife. The first one was 8th May 2021 and second was on 11th May 2021. Police evidence says, the first was allegedly by the Defendant’s wife and second by the Defendant. I will now establish whether the Defendant’s wife burnt the allegation of 8th May 2021.

21.	The evidence presented by victim and his witnesses says Defendant’s wife was seen at the scene where the fire took place. They did not say she caused the fire but says she was seen during and after the fire and therefore concluded she might be the possible perpetrator. To my understanding, the evidence for the first incident is not direct but circumstantial where evidence is not drawn from direct observation of the fact in issue. One must essentially be seen to be involved in the allegation of arson, inference, hypothesis and connecting of some prior incident to the current assertion is unmeritorious.  I therefore do not see any relevant, direct and convincing evidence Defendant’s wife caused the first fire.

22.	As to the second allegation of 11th May 2021, there are evidence of Defendant was seen with his wife. Defendant during cross examination admitted that he visits his wife at Manuauto port but not to where victim was staying. There is no issue Defendant was seeing his wife which he has the right to do since there are no laws forbidding him to see his wife but the question is did the Defendant burn down the house on the 11th May 2021? If the answer to this question is ‘yes’ then Defendant breached one of the bail condition which prohibits him from interfere with state witness. The evidence is not clear and I am trying my best to understand how and where the Defendant was identified to be the person who burnt down the house. The evidence and submission by the Defendant’s Lawyer Mr Koke on the issue of freedom of moment under the Constitution in trying to defend his client’s movement and also his argument that it would be unlawful for the Defendant to be forcefully confined in Morautu two denotes me that Defendant was moving around from places other than Morauta Two. 

23.	The evidence of Amos Anthon says, the lights were on and he could clearly see the Defendant and identified him but at paragraph 25 of his affidavit says he could not get the Registration number of a White Nissan Patrol that took the Defendant away. If the streets light were on and Defendant was identified, why it was awkward to get the registration number of the vehicle that took the Defendant away. Defendant was allegedly the person of interest and that significant piece of information should have been taken.

24.	Moreover, Defendant was visiting his wife at times at locations where they could meet. Even though Defense counsel says, Defendant was coping with bail conditions, the Defendant’s own admission during cross examination that he meets his wife indicates to me that he visits his wife in one of the locations where she stays and sells betel nuts. However, that does not quality to say Defendant went and burnt down the house. All the evidence says Defendant was allegedly located near the road side but not at the location of the arson. Dog barking and foot prints are feathers of circumstantial evidence but in order to make a case under circumstantial evidence, the evidence pattern must be completed. In here the pattern is incomplete. From these conclusions, I establish two (2) things and they are, firstly; Defendant visits his wife and secondly; he was not appropriately identified to be the person who burnt down the house on the 11th May 2021.
	
CONCLUSION

25.	The first issue of 8th May 2021 about the involvement of Defendant’s wife in the burning down of victim’s house is refused as evidence is insufficient.

26.	The Second issue of 11th May 2021 about identifying the Defendant as the one who burnt the victim’s house is refused but there is evidence Defendant was seeing his wife at Taurama at her market desk and elsewhere at Manuautoport but not at the victim’s house.

27.	I will not revoke bail but will vary the bail conditions of 4th February 2021 to cater for my ruling and findings in respect to the application filed by Prosecution.

ORDERS

28.	The application by Prosecution to revoke Bail is refused but certain additional conditions are imposed.

29.	In addition to the Defendant’s bail conditions of 4th February 2021, Defendant must not be seen around Taurama road or anywhere including Manauauto port until his allegation at Waigani District Court is determined by the court.

30.	Matter is adjourned to the 19th August 2021 at 9.30 am for Defense Submission on insufficiency of evidence.

31.	Defendant’s bail extended on the previous and additional conditions. 

Public Solicitor					For the defendant
Police Prosecutor					For the State