DC 6089
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS COMMITTAL JURISDICTION]

Comm.  Nos. 11,12 & 13 of 2021

BETWEEN

THE POLICE
Informant

AND

Erick pamben, Eddie Pamben & Issac Bokon
Defendants

Wabag:  M Maitang 

2021:  30 June and 13 August
        
COMMITTAL PROCEEDINGS - Charge- One Count of Wilful Murder contrary to section 299(1) of the Criminal Code Act (CCA)– Whether Police Evidence prima facie sufficient to commit the Defendant to stand trial at the National Court. 

COMMITTAL PROCEEDINGS – Legal requirements for prima facie case – Elements of Wilful Murder – whether prima facie evidence present to meet the elements of the charge of Wilful Murder – Evidence is sufficient to commit only one Defendant to stand trial in the National Court.

Cases Cited

Backley Yarume –v- Sylvester Euga (1996) N1476;  
Maladina–v-Principal District Court Magistrate Posain Poloh & The State (2004) N2468;
Mika Akia & Anor –v- Derrik Francis & Anor (2016) N6555 
Devlin David –v-The State (2006) SC881
Ilai Bate –v- The State (2012) SC1216
Patrick Towingo &Others –v-  The State [2008] SC983
The State –v- Lenny Banabu (2005) N2871; 
The State –v- Henry Toliu (2011) N4237; 
The State –v- Seth Ujan Talil (2010) N4082; 
The State –v- Lui Nicky & 4Ors (2016) N6360; 
The State –v- Jeffery Buka No.1 (2016) N6204
The State –v– Raphael Kuanande [1994] PNGLR 512
Paulus Pawa-v-The State [1981] PNGLR 498 
Billy Nara –v- The State (2007) SC1314
Legislation

Criminal Code Act (CCA) 
District Courts Act (DCA)

Counsel

Senior Constable Jonathan Nefoti, for the Informant 

Mr. L. Toke, for the Defendant 

RULING ON SUFFICIENCY OF EVIDENCE under section 95 (1) DCA

13 August 2021

Introduction

1.	M Maitang: This is a ruling on whether there is sufficient evidence in the Police Hand Up Briefs (PHUBs) of the three (3) Defendants to commit them to stand trial at the National Court pursuant to section 95 (1) of the District Courts Act (DCA). 

Charge: Wilful Murder; s. 299(1) of the Criminal Code Act

2.	 The Defendants were jointly charged with one count of Wilful Murder under Section 299(1) of the Criminal Code Act (CCA). 

3.	According to the Charge, police state that “on the 30th day of January 2021, the Defendants Erick Pamben, age 25, Eddie Pamben age 20 [and] Issac Bokon age 19, [all] of Teremanda Village, Wabag, Enga Province, whilst in company of each other did each and severally unlawfully and wilfully kill one namely, Rossa Pindai, an adult national female thereby contravening section 299(1) of the PNG Criminal Code Act, Chapter 262.”

Statement of Facts: 

4.	As per the Summary of Facts contained in the PHUBs of the respective Defendants, the Police allege that at around 12.00 midnight on 30 January 2021 at Teremanda Vilage, Wabag, the Defendants namely Erick Pamben, Eddie Pamben and Issac Bokon, whilst in company of each other, each and severally unlawfully and wilfully killed one Rossa Pinda (deceased).

5.	It was reported that the Defendant Erick Pamben is married to the deceased’s (Rossa Pindai’s) daughter, one Lovie Pindai.

6.	The police allege that on the date, time and place mentioned above, the Defendants whilst intoxicated with liquor went into the deceased’s house believing that the Defendant Erick Pamben’s wife Lovie Pindai was sleeping with her mother. However, Lovie Pindai was not sleeping with her mother. She was sleeping with her father, in another house some 5-10 meters away.

7.	It is alleged that the Defendants went into the deceased’s house and got involved in a fight with the deceased. During that fight the Defendants attacked the deceased who was an elderly mother and killed her instantly.

8.	The police state that the Defendants had the strong intention to wilfully murder the deceased Rosa Pindai without any lawful excuse.

9.	The Police state that the Defendants were then apprehended and brought to Wabag Police Station and had them arrested and charged for wilful murder under section 299(1) of the CCA.

ISSUES:

10.	The issue before the Court is whether there is prima facie sufficient evidence in the Defendants’ respective PHUBs which meets the elements of the charge, so as to put the Defendants on trial at the National Court for the charge. 

THE LAW
	
The Law on Committal Proceedings 

11.	The legal basis for Committal Proceedings is set out under Part VI, Division 1 of the DCA, specifically section 94 through to section 100.

12.	Section 95 of the DCA stresses on the function of the Committal Court in the following terms:

     “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."

13.	Section 94C of the DCA provides for the manner in which evidence are to be adduced before the Committal Court. It is in the following terms:

“94C.	Regard to evidence, etc.
(1)	When conducting a committal hearing under this Part, the Court may, subject to Subsection (2), have regard to—

	(a)	the evidence contained in a written statement; and
	(b)	documents and exhibits,
of which a copy has been served on the defendant under Section 94(1) or made available for inspection under Section 94(2).

(2)	Before admitting a written statement, the Court shall be satisfied that the person who made the statement had read and understood it, or if unable to read, had had it read to him in a language that he understood.”

14.	Case law is well settled on the practice and procedure of the Committal Court, and three (3) often cited and notable cases are; Backley Yarume –v- Sylvester Euga (1996) N1476;  Maladina –v- Principal District Court Magistrate Posain Poloh & The State (2004) N2468; and Mika Akia & Anor –v- Derrik Francis & Anor (2016) N6555. 

15.	In Backley Yarume v Sylvester Euga (supra), His Honour Akuram J, held as follows:

2. The purpose of Committal hearing is to gather evidence and assess them to see whether the evidence is sufficient to Commit the accused for trial or sentence in the National Court.  This 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.  Sections 94B, 94C, 95 and 100 of Districts Courts Act, Ch 40 to be read together.

16.	In Maladina –v- Principal District Court Magistrate Posain Poloh & The State (supra), His Honour Injia DCJ (as he then was) succinctly notes the Committal Court process as a two (2) phased process as follows:

“…I would describe as a two-phase committal process prescribed in Ss. 95, 96 and 100 and 103 (of DCA)…

In my opinion, the first phase of the committal process (apart from s.94B procedure on committal for trial without consideration of the evidence) takes place under S.95. The Magistrate "receives" or "hears" evidence offered by the prosecution only, considers the evidence, and decides whether the evidence "is sufficient to put the defendant on trial." If the Court is of the opinion that there is insufficient evidence, the Court discharges the defendant on the information. That is the end of the matter. If the Court is of the opinion that the evidence is sufficient to put the defendant on trial, then the Court proceeds with the examination of the defendant under S.96.

Phase two is the examination of the defendant by the Magistrate under S.96. The prescribed wording of S.96 statement, which the Magistrate puts to the defendant is part of that provision. The Statement implies that the defendant has "heard" the evidence for the prosecution, which the Magistrate has considered, and made his decision under S.95. The Magistrate gives the defendant an opportunity to give evidence and to say anything in relation to the charge, if he so wishes to. 

Under the two phase committal process that I have alluded to, it is clear that the Magistrate is required to form an opinion or judgement on the sufficiency of the evidence at two stages – a preliminary one under S.95 and a final one under S.100 (and S.103). The first is made solely on the evidence offered by the prosecution and the second is made based on the whole of the evidence – the evidence for the prosecution and the evidence on submissions, if any, made by the defendant. It is a fundamental principle of justice and fair hearing enshrined in the principles of natural justice adopted under S.59 of the Constitution, that the opinion formed under S.95 and S.100 must not only be fair but seen to be fair – in that justice by the District court must be not only be done but seen to done. A decision made and reasons for the decision under S.95 of course is not expressly required to be communicated to the defendant under S.95, but implied by principles of natural justice - that it must be communicated to the defendant, so that he understands that a prima facie case for committal has been made out by the prosecution, to which he has a right to respond under S.96, before a final decision to commit is made under S.100 or S.103. Under S.96, if he chooses to give evidence or say something either admitting or exculpating himself, it is to be recorded. If the Magistrate is satisfied on the whole of the evidence that the evidence is not sufficient to commit him, he must discharge the defendant under S.100 on that information. 

Under S.100(1), the Magistrate considers whether "the evidence" is sufficient to put the defendant on trial. The general reference to "the evidence" in S.100(1) must be distinguished from the "evidence offered on the part of the prosecution" in S.95. By implication, S.100(1) "evidence" must relate to the whole of the evidence before the Court, that is evidence for the prosecution under S.95 and the evidence, if any, and anything said by the defendant under S.96. The final decision whether to commit the defendant for trial, is made under S.100 (or S.103 Committal for Sentence).”

									(Emphasis added)

17.	 In Mika Akia & Anor –v- Derrik Francis & Anor (supra),  His Honour Gavara-Nanu J, at paragraph 5 states as follows:

“5.The committal proceedings are governed by Part VI of the District Courts Act, Division1. It is of fundamental importance to note here that a committal proceeding is not a trial or a substantive hearing where a guilty finding or an acquittal of a defendant charged with an indictable offence can be made, it is an administrative process in which an inquiry is made into an indictable offence(s) charged to see if the evidence against the defendant constituted a prima facie case or is sufficient: Bank of PNG v. Eddie Oruba Mai (2007) SC862.  At the end of such an inquiry the Committal Court may either discharge the defendant for lack of evidence or for lack of a prima facie case or commit the defendant to either stand trial or sentence in the National Court. The latter would be an appropriate order if the defendant admitted the offence as stipulated under s. 103 (1).”

18.	All in all, these cases show that, firstly, a Committal Court assesses only the Prosecution’s evidence contained in the PHUB to see if there is prima facie sufficient evidence which meets the elements of the charge, so as to put the Defendant on trial at the National Court. The Defendant will be discharged if the PHUB does not disclose prima facie sufficient evidence in relation to the charge. On the other hand, if there is prima facie sufficient evidence established in the PHUB, the Committal Court secondly considers the totality of evidence which includes that of the Defendant given at section 96 examination, and then decides to commit the Defendant to stand trial at the National Court or otherwise. 

19.	Further, the said cases point out that the Committal process is merely administrative in nature, whereby an inquiry is made into the sufficiency of evidence, and it is not trial proper, where a verdict on guilt or acquittal is to be determined. 

The Law on the Charge of Wilful Murder under section 299 (1) CCA

20.	Section 299 of the CCA is reproduced below:

“299. WILFUL MURDER.
(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.
(2)A person who commits wilful murder shall be liable to be sentenced to death.”

21.	In the Supreme Court cases of Devlin David –v-The State (2006) SC881, [Salika (as he then was),Cannings, Gabi JJ at para 114] and Ilai Bate –v- The State (2012) SC1216 [Injia CJ, Cannings J, Gabi J at para 63], it is noted that there are basically three (3) elements of the offence of wilful murder under section 299(1) of the CCA and these are as follows:

(1)	“the accused killed the deceased;
(2)	the killing was unlawful; and
(3)	the accused intended to cause the death of the deceased.”

22.	In Patrick Towingo &Others –v-  The State [2008] SC983, the Supreme Court [Kandakasi(as he then was), Manhuhu, Yagi JJ]  goes further and notes at paras 6 & 7 of its judgment that there are four (4) elements of the charge of willful murder  as follows:

“6... the [4] essential elements of the offence of willful murder [are]:

(1)	“A person who;
(2)	Unlawfully kills;
(3)	Another person; and
(4)	With intent to cause his death or that of some other person.
7. The first and third elements require an identification of both the offender and the person against whom the offender committed the offence. The second and fourth elements concerns a person’s reason or the motivation for the commission of the offence and how that motivation is carried out or translated into action.”

23.	The National cases of The State –v- Lenny Banabu (2005) N2871; The State –v- Henry Toliu (2011) N4237; The State –v- Seth Ujan Talil (2010) N4082; The State –v- Lui Nicky & 4Ors (2016) N6360; The State –v- Jeffery Buka No.1 (2016) N6204 all, seem to prefer and follow the Supreme Court precedents of the Devlin David case (supra) and Ilai Bate case (supra)  and note that the three (3) elements of the offence of wilful murder are as follows:

(1)	the accused killed the deceased;
(2)	the killing was unlawful; and
(3)	accused intended to cause the death of the deceased.

24.	In this case, this Court will adopt and apply the popular view on the number of elements as noted in the Supreme Court precedents of the Devlin David case (supra) and Ilai Bate case (supra) and followed in the numerous National Court precedents. 

25.	Thus, this Court now has to consider the Prosecution’s evidence as contained in the PHUB and to assess whether there is prima facie sufficient evidence meeting all the three (3) elements of the offence of wilful murder under section 299 (1) of the CCA, in order to put the Defendant on trial at the National Court.

Prosecution’s evidence in POLICE HAND UP BRIEF

	Witness Statements 

26.	The Prosecution tendered five (5) witness statements in the PHUB of the Defendant Erick Pamben. The same five (5) witnesses’ statements were reproduced and adduced in each of the other two (2) Defendants’ PHUBs. A summary of each of the witness statements are set out below: 

i.	Pindai Wangai

He is the husband of the deceased and was the first witness who attended at the crime scene within his premises at Teremanda Village, Wabag, Enga Province. 

He says that on 29 January 2021 at around 12.30midnight, he was fast asleep in his house accompanied by his third born daughter, Lovie Pindai, with her one year old baby.

He states that within his premises, there are two houses, one a semi-permanent house and the other a kunai house. That night, his deceased wife, Rossa Pindai, was sleeping in the semi-permanent house whilst his daughter, grand-daughter and himself were sleeping in the kunai house.

Suddenly, at around midnight when they were fast asleep, he was awoken by a sharp scream he heard coming from his semi-permanent house. He quickly got up, picked up his torch with his bush knife and rushed over to his semi-permanent house.

When he got there, he says, he saw his wife Rossa Pindai lying flat on the ground/floor of the living room of his semi-permanent house and four (4) boys were standing around her. He then ran towards the Defendant Erick Pamben and approached him and they fought on the spot. He alone fought against the four (4) boys and he used his bush knife against them and chased them out of his premises but eventually he was overpowered and punched and pushed to the ground.

He says he called out for help whilst lying on the ground. Shortly after a few minutes, his daughter Lovie Pindai accompanied by two (2) of his boys namely Jeremiah Mark and Hosea Leo, came to his rescue.

Straight after his rescue, they confirmed that late Rossa Pindai had passed on. They rushed the deceased Rossa Pindai to Wabag General Hospital to ascertain her death and it was confirmed that she had already passed on.

He further says the four (4) suspects namely Erick Pamben, Eddie Pamben, Issac Bokon and Yobon Roy Kipalan came shouting and screaming in the premises. The manner in which the said suspects were acting was too violent and disrespectful in the late odd hours of the night. They were all under the influence of homebrew and without any lawful excuse, wilfully murdered his late wife and she died on the spot.

ii.	Lovie Pindai

This witness is the daughter of the deceased and the wife of the Defendant Erick Pamben.
She says that in the night of 29 January 2021, she was sleeping over at the kunai house of his father, Pindai Wangai, with her one year old baby daughter and her father.

Within her father’s premises, there are two houses, one a semi-permanent house and the other a kunai house. Her deceased mother, Rossa Pingai, was sleeping in the semi-permanent house, whilst her father, her baby daughter and herself were sleeping in the kunai house.

She says that all of a sudden, at around mid-night, when they were all fast asleep, she heard a sharp voice screaming from the semi-permanent house. She got up and saw her father picking up his torch and bushknife and went over to the semi-permanent house to see what was going on. She picked up her torch and went to see her cousin Jeremiah some 20 meters away because she clearly heard the voice of her husband Erick Pamben at that time. She went over to see her cousin Jeremiah because she was afraid the Defendant Erick Pamben might assault her for he got very drunk and came over shouting at the premises in such odd hours.

She further says that she went and called for her cousin Jeremiah and he asked her what happened. She told Jeremiah that her husband Erick Pamben and some boys got very drunk and came over shouting in her father’s premises so she came for help. Then she and Jeremiah went over to the semi-permanent house where her mother was sleeping in. When she was close to her father’s kunai house, she saw Defendant Issac Bokon ran in the direction of the road leading to her father’s kunai house.

She says that, when she came to the semi-permanent house, she saw the Defendant Erick Pamben and her father talking to each other in an aggressive way. She went over and rebuked Erick Pamben but some people who were there at that time told them to stop so they stopped the argument.

After that, she says she returned to the semi-permanent house and saw her mother, late Rossa Pindai, was lying on the ground. She thought her mother had sustained some injuries to her body and was lying flat on the ground but it was her lifeless body and she had passed on.

She states they rushed her late mother to Wabag General Hospital to confirm her death and indeed her mother was already dead.

She further says that the four suspects namely Erick Pamben, Eddie Pamben, Issac Bokon and Yobon Roy Kipalan were seen at the crime scene. They came shouting and screaming in her father’s premises. The manner in which the four suspects were acting was too violent and disrespectful in the late odd hours. They were all under the influence of alcohol (homebrew) and without lawful excuse, they wilfully murdered her late mother and she died on the spot.

iii.	Dr. Marcphee S. Konae

This witness is a medical doctor and is the Senior Medical Registrar of Enga Provincial Hospital. He conducted the post mortem or autopsy on the deceased Rossa Pindai. He gives evidence of the autopsy done to the deceased and stated his opinion on the cause of the death of the deceased.

He says in his Autopsy Report that he conducted a visual autopsy on the deceased on 02 February 2021 at the Enga Provincial Hospital Morgue.

In the Pathology Summary of his Autopsy Report dated 02 February 2021, Dr. Konae notes the physical state of the deceased as follows:

1.	Cyanosed and puffy face
2.	Odematous and puffed eyelids
3.	Erythematous- blood shot eyes
4.	Bleeding through the ears
5.	Cyanosed & Protruding tongue
6.	Swollen lips
7.	Floppy and limp head- Broken neck

In the Autopsy Report, he says that in his professional opinion based on his observation of the deceased body, and his experience and training and information supplied to him, he concludes that the time and date of death of deceased was around 12.30am on 30 January 2021. He further concludes that the direct cause of death of the deceased was:

A. Broken Neck; and
B. Strangulation. 

iv.	Issac Afeke

This witness is the Police investigator and arresting officer in this matter. He is a Detective Senior Constable. He was involved in the investigations and conducting of the Record of Interview. 

He says that after receiving complaint of the wilful murder of the deceased on 02 February 2021, he identified the witnesses and obtained their statements as well noted the cause of death at Post Mortem. He then charged the Defendants on 10 February 2021. 

He says, at the interview, the Defendant Erick Pamben admitted to getting drunk and going to the deceased’s house and had a confrontation with the deceased whereby the deceased squeezed his penis and he in sharp pain pushed the deceased away with force. 
He further says that at the interview, the Defendants Eddie Pamben and Issac Bokon denied knowing anything about the incident and both claimed that they were at Tambai Village attending a marriage ceremony and then returned in the night when they heard Defendant Erick Pamben was injuried so they asked who had injured him and he didn’t respond so removed their shirts, tied his injuries and then went over to their own homes to sleep and discovered next morning about the death of the deceased. 

v.	Wini Lale

This witness is a R/Constable of Police attached with CID Section of the Wabag Police Station. He is the interpreter and corroborator at the Police Record of Interview (ROI). He says the Record of Interview was conducted without any threat, assault or duress.

Documentary Evidence / Exhibits

27.	In the PHUBs, the Police Prosecutions rely on and attach the following documentary evidence or exhibits:

a)	Autopsy Report of deceased Rossa Pindai dated 02nd February 2021, indicating direct cause of death of deceased as broken neck and strangulation. 

b)	Records of Interview of Defendant Erick Pamben dated 15th March 2021; and respective Records of Interviews of the Defendants Eddie Pamben and Issac Bokon each dated 17th May 2021, in both English and Pidgin versions. There were no admissions made. 

c)	Photograph of deceased showing full body view.

d)	Photograph of deceased’s face from chest upwards, depicting signs of brutal attack whereby blood sprouting out of swollen mouth, noses and eyes.

e)	Photographs of scene of murder, showing main road and house within, fenced and gated

f)	Photograph of scene of murder, showing semi-permanent house where deceased was found dead.

g)	Sketch Map of Crime Scene

h)	Antecedent Reports of the 3 Defendants– contains personal particulars of the 3 defendants and nil prior convictions. 

Defendants’ Submissions 

28.	On 11 June 2021, the Defendants through their lawyers, the Office of the Public Solicitors filed their submissions on sufficiency of evidence. 

29.	At hearing on 30 June 2021, Counsel for the Defendant, Mr. Toke from the Office of the Public Solicitors, made oral submissions based on his written submissions of 11 June 2021, which is summarised as follows;

1)	There is no evidence on how the deceased was killed. The two key police witnesses, namely Pindai Wangai and Lovie Pindai, did not witness the killing of the deceased.

2)	The said two key police witnesses did not properly identify the Defendants as the culprits who killed the deceased. They merely suspected them as the offenders present at the premises in the middle of the night.

3)	It was only Erick Pamben who had immediate contact with the deceased prior to her death and the Defendants Eddie Pamben and Issack Bokon were never identified as being present at the scene of the crime. 

4)	The Defendant Erick Pamben had a confrontation with the deceased when he went in search of his wife in the middle of the night. The Defendants Eddie Pamben and Issac Bokon did not accompany the Defendant Erick Pamben. During the confrontation, the deceased bite Erick Pamben’s left finger and squeezed his testicles so he pushed her away forcefully. There was no intention to kill the deceased. The deceased was an asthmatic patient and had died due to that pre-exiting condition. 

5)	As the case is based entirely on circumstantial evidence, there is no rational or reasonable inference open to the Court based on the evidence of the police to conclude that the Defendants intended to kill the deceased, so as to satisfy the element of intention to kill. 

Prosecution’s Submissions

30.	Mr. Jonathan Nefoti of Police Prosecutions relied on his Submission in Reply filed 25 June 2021, and  he submitted at hearing that the Police evidence in the PHUBs was prima facie sufficient and met all the elements of the offence.

31.	A summary of the Police Prosecution’s submissions is as follows:

1)	The two police eye witnesses identified and placed the Defendants at the scene of the crime. Especially, the witness Pindai Wangai identifies the Defendants Erick Pamben, Eddie Pamben and Issac Bokon as standing around the deceased as she was lying motionless on the floor inside the living room of his semi-permanent house. The witness Lovie Pindai corroborates the presence of the Defendant Erick Pamben and Issack Bokon at the premises straight after the commission of the crime. 

2)	The Autopsy Report confirms that the deceased’s direct cause of death is strangulation and broken neck. At the time of the death of the deceased, the Defendants were seen surrounding the deceased who was lying motionless on the floor of the living room. The Defendant Erick Pamben admitted to having a confrontation with the deceased whereby he forcefully pushed the deceased away when the deceased bite his finger and squeezed his testicles (pensi) but denied killing the deceased. The Defendants Eddie Pamben and Issac Bokon were there at the scene, showing they aided and abetted in the commission of the crime. 

3)	Intention goes to the state of mind of the accused and can be drawn from the factors surrounding the case. The Autopsy Report indicates the deceased died of strangulation and a broken neck. This means that the Defendants intentionally killed the deceased by strangling her and eventually breaking her neck. 

ANALYSIS OF Evidnece in PHUB and consideration of submissions

32.	This Court must now consider the evidence in the PHUBs including submissions of the parties and assess whether the evidence is prima facie sufficient and satisfies all the elements of the offence of Wilful Murder under section 299(1) of the CCA, in order for the Defendants to be put on trial at the National Court.

33.	This Court adopts and applies the elements of the offence of Wilful Murder under section 299(1) of the CCA as well encapsulated in the respective Supreme Court cases of Devlin David (supra) and Ilai Bate (supra)  as follows:

(1)	the accused killed the deceased;
(2)	the killing was unlawful; and
(3)	accused intended to cause the death of the deceased.

34.	Further, it is noted that the crucial element to be made out in this case is regarding the identity of the Defendants. That is, whether the Defendants had killed the deceased. In Ilai Bate v. The State (supra), the Supreme Court made the following comments on the principles of identification:

"11… In assessing the quality of the identification evidence relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he recognised; the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?); the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?). If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability."

35.	Also, the evidence in the PHUB must establish whether the Defendants had the intention to cause the death of the deceased. In The State –v– Raphael Kuanande [1994] PNGLR 512 Injia AJ (as he then was) made the following pertinent comments on proving intention:

"Intention is a matter which goes to the state of mind, of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior, at the time and subsequent to the act constituting the offence."

FINDINGS

36.	This Court after considering the evidence in the PHUB and the parties’ submissions sets out below its findings on the elements of Wilful Murder as per the charge against the Defendants.

37.	 Firstly, the identification of the Defendants and element of intention to cause the death of the deceased are contentious in this case.

38.	There is, however, no issue that the deceased was unlawfully killed. There is a dead body present that is of the deceased, whose death is medically assessed to be caused by strangulation and broken neck.

39.	As to the issue of identification, it is this Court’s considered view that the key police witnesses Pindai Wangai and Lovie Pindai identify only the Defendant Erick Pamben, directly at scene of incident and at the time of the commission of the crime. Further, it is this Court’s considered view that the Defendant Erick Pamben solely caused the death of the deceased. Such view is based on the following;

1)	In his Statement, Pindai Wangai clearly identifies his in-law, Defendant Erick Pamben, as standing with four other unidentified persons around the deceased Rossa Pindai, when she was lying motionless and flat on the floor of his semi-permanent house. He says he ran towards Erick Pamben and the two of them had a fight on the spot, as he went to check out the loud scream coming from the direction of his semi-permanent house. He fails to, at that stage, clearly identify the other 3 assailants accompanying the Defendant Erick Pamben. 

2)	The Defendant Erick Pamben says at Question 21 of his ROI to have had an altercation with the deceased Rossa Pindai at the relevant date, time and location, whereby the deceased bite his left finger and squeezed his penis and as a result, he forcefully pushed her back causing her to scream loudly in the middle of the night.

3)	The witness Lovie Pindai says she clearly heard and recognised the voice of her husband Erick Pamben coming from the direction of her father’s semi-permanent house, at the time her father, Pindai Wangai, ran to the crime scene to check out the loud scream. She says she went to garner help from her cousins when she heard her husband’s voice. After returning, Lovie Pindai says she confronted Erick Pamben and rebuked him whilst he was arguing with her father.

4)	The two police witnesses Pindai Wangai and Lovie Pindai are related by marriage to the Defendant Erick Pamben and due to that relationship status plus their familiarity of each other, there is no question on the clear and direct identification of the Defendant Erick Pamben at the crime scene in the middle of the night, per the principles in the Supreme Court case of Ilai Bate v. The State (supra).

5)	However, there is no iota of evidence on the direct identification of the Defendants Eddie Pamben and Issac Bokon as being clearly present at the scene of the crime and during commission of the crime.

6)	Both witnesses Pindai Wangai and Lovie Pindai in their statements at the last paragraphs as an afterthought and in the second person go on to say suspects Eddie Pamben, Issac Bokon and Yobon Roy Kipalan came shouting and screaming in their premises. This Court considers those statements regarding the Defendants Eddie Pamben’s and Issac Bokon’s presence at the crime scene as not clear or direct identification and in proximity to the commission of the offence. 

7)	Further, the witness Lovie Pindai says she saw Defendant Issac Bokon running past the back of the kunai haus as she returned after getting help of her cousin Jeremiah. Witness Lovie Pindai notes also that there were other people at the crime scene who stopped the argument or confrontation between the Defendant Erick Pamben, herself and her father Pindai Wangai. Thus it is open for this Court to conclude that the Defendant Issac Bokon who was identified as running beside the kunai haus to be an innocent bystander or an innocent member of the villagers at the crime scene who came to observe and stop the argument and/or fight between Defendant Erick Pamben and Pindai Wangai. 

8)	Moreover, there is no eye witness account of who caused the deceased’s death. It is well established in the Supreme Court case precedents of Paulus Pawa-v-The State [1981] PNGLR 498 and Billy Nara –v- The State (2007) SC1314 that in cases where there is no direct evidence, and the case against the accused is required to be proofed on circumstantial evidence, then the circumstantial evidence must only point to one rational and reasonable conclusion that the accused did commit the offence, so as to hold the accused liable. 

9)	In this case, the Defendant Erick Pamben is solely identified and placed at the crime scene, standing over and around the deceased’s body with 3 other unidentified persons, as the deceased was lying motionlessly on the ground. The Defendant Erick Pamben himself admits to paying a visit to the deceased’s house and having an altercation with the deceased at the date, time and place of the incident and that he pushed the deceased forcefully away causing her to scream loudly, when the deceased bite his left finger and squeezed his penis. Further, his wife, Lovie Pindai also directly places Erick Pamben at the scene of the crime proximate to the time of death of the deceased and his confrontation with the deceased.

10)	Based on the principles in the Supreme Court cases of Paulus Pawa-v-The State (supra) and Billy Nara –v- The State (supra), the only reasonable and rational conclusion to be drawn from the circumstantial evidence, given that there is no eye witness account of who caused the death of the deceased, is that Defendant Erick Pamben is solely responsible for the cause of death of the deceased as shown in the finding of facts above. The Defendants Eddie Pamben and Issac Bokon are absolved at this juncture. 

40.	On the issue of intention to kill, this Court has to assess the action (actus rea) of the Defendant Erick Pamben ,as reflected in the evidence, per the principle in State –v- Kuanande (supra) in order to ascertain the state of mind of the Defendant. 

41.	Evidence in the PHUB, indicate that the Defendant Erick Pamben prima facie had the intention to kill the deceased in that:

1)	The Pathology Summary in the Autopsy Report dated 02 February 2021 notes the physical state of the deceased as follows:

1.	Cyanosed and puffy face
2.	Odematous and puffed eyelids
3.	Erythematous- blood shot eyes
4.	Bleeding through the ears
5.	Cyanosed & Protruding tongue
6.	Swollen lips
7.	Floppy and limp head- Broken neck

2)	The Autopsy Report concludes that the direct cause of death of the deceased was:
A. Broken Neck; and
B. Strangulation. 

3)	The picture of the deceased’s face depict a ferocious, horrific and gruesome attack on her, given that her lips, nose and face are swollen, her tongue is popped out or protruding, and a lot of dried blood stains are on her blackened tongue, swollen mouth, lips, nose and even her eyes and ears.

4)	All these evidence, in this Court’s view, reflect an intention to kill the deceased. Since, it was established prima facie that the Defendant Erick Pamben is solely responsible for the killing of the deceased; this Court considers that he also prima facie intended to cause the death of the deceased.

CONCLUSION 

42.	In conclusion, this Court is satisfied that all the elements of the offence of Wilful Murder under section 299(1) of the CCA are prima facie covered adequately by the evidence, only in relation to the Defendant Erick Pamben. With regards to the Defendants Eddie Pamben and Issac Bokon, the evidence is not sufficient to meet all the elements of the charge. 

43.	Pursuant to section 95 (1) of the DCA, this Court therefore finds that, except for the Defendants Eddie Pamben and Issac Bokon, the Police Evidence is sufficient to put the Defendant Erick Pamben on trial at the National Court.

COURT ORDERS

44.	 The formal Orders of this Court are;  

1)	There is sufficient evidence to put the Defendant Erick Pamben on trial at the National Court for one count of Wilful Murder under section 299(1) of the CCA.

2)	There is insufficient evidence to put the Defendants Eddie Pamben and Issac Bokon, respectively, on trial at the National Court for the charge of Wilful Murder under section 299(1) of the CCA.

3)	The information bearing the charge of Wilful Murder as against the Defendants Eddie Pamben and Issac Bokon, respectively, is dismissed and the said Defendants are discharged accordingly.

4)	Matter is adjourned to 18 August 2021 for section 96 Examination of the Defendant Erick Pamben.

5)	The Defendant Erick Pamben shall be remanded at Baisu Correctional Institution. 

Lawyer for the Informant:  		Police Prosecutions

Lawyer for the Defendant: 		The Public Solicitor of Papua New Guinea