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Police v Mulawala [2021] PGDC 220; DC7081 (1 December 2021)

DC7081

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS COMMITTAL JURISDICTION]
DCC NO: 192 /2020.

In the matter of Ruling On Sufficiency of Police Hand-Up Brief(s) pursuant to Section 95 of the District Court Act 1963

IN THE MATTER BETWEEN:

POLICE/STATE.
Informant.
.
AND.

1. MARTIN VITUS MULAWALA.
2. PETER SIPUNA
3. MONICA KORO
4. JOYCE-MARY OSI
5. MAVIS MULAWALA

Defendant/Accused(S).

Popondetta: Michael W. Apie’e

2021: December 01^st.

CRIMINAL LAW. Practice and Procedure-Sufficiency of Police hand-up brief, Section 95 of District Court Act. Whether Elements of the offense’s;
i. Willful Murder contrary to Section 299(1) of the Criminal Code Act.
CRIMINAL LAW. Evidence, Dying Declarations, Section 2o of the evidence Act, test of Sufficiency.

Cases Cited:

State v. Bulen [1990] PNGLR 43
State v. Steven Donia [2010] PGNC 228 (14/10/10)
State v. Henry [2019] N700 (16/04/19)

References:
Constitution of Papua New Guinea
Criminal Code Act.
District court act

Representation;
Mr. E. Yawisa from Public Solicitors for the Defendants
Sergeant Haira for the Police/State.

RULING ON SUBMISSION ON SUFFICIENCY OF POLICE HAND-UP BRIEF.

Background.

1. The Defendants are each and severally charged that on the 21/06/21 at Embi village in the Oro-Bay area of the Ijivitari District of Northern Province, ‘they each and severally with intent to cause the death of a person namely Caedmon Koro, Unlawfully killed the said Caedmon Koro’ contrary to Section 299(1) of the Criminal code Act.
   
2. The gist of the allegations levelled against the Defendants is that;
   
   1. Alleged eye witnesses, Sheena Koro and Robert Koro, the children of the Deceased and Defendant Monica Koro, they implicate the Defendant Martin Koro, Peter Sipuna and Joyce-Mary Koro as the assailants who assailed their father that night causing his death.
      
   2. Secondary witnesses Edwin Koro the brother of the deceased and his wife Daisy Koro who arrived later, they allege that they met the Defendant Peter Sipuna on the way in and observed him to be without a shirt and holding onto a grass knife with blood on it.
      
   100. These witnesses claim that they arrived when the Deceased was still alive and conscious and surrounded by his wife Monica Koro and his Children Sheena and Robert where he was laying on the ground.
        
   4. Edwin then alleged that he went and asked him ‘Husait fight wantaim yu?’ /’Who fought with you?’ and the deceased replied, ‘Martin, Mavis, Joyce, Monica na Peter katim mi wantaim knife!’ / ‘Martin, Mavice, Joyce, Monica and Peter cut mi with knife(s)’
      
   5. The Deceased was thereafter loaded in a wheelbarrow and taken to the road where he was further transport by vehicle to Popondetta Hospital but nevertheless lost his life.
      
   6. The Defendants voluntarily surrendered to Police thereafter.
      
3. The Committal Process began with the Defendants being brought in and arraigned on the 09/07/21.
   
4. Police hand-up brief (PB)is tendered to court on the 29/09/21 and the Defendants given their options, and they asked to be allowed to consult with Public Solicitors office and so the matter is stood over to 01/10/21.
   
5. On the 01/10/21, Mr. Yawisa attended and asked for adjournment to after the National Court Circuit and so the matter was stood over to 25/10/21.
   
6. On the 25^th matter was stood over to the 27/10/21 and due to non-attendance by the Public Solicitors, the Court then Administered Section 96 of the District Court Act on the Defendants.
   
7. All the Defendants gave ‘Unsworn Statements’ from the Defendants Dock whilst Defendant Mavis Mulawala remained silent.
   
8. Matter for Ruling on the PB was adjourned to 29/10/21
   
9. Section 96 Statements;
   
   1. The Defendant Martin Mulawala in his Unsworn Statement made outright Admissions to the Act of Assailing the Deceased and thereby causing his death, and in the process he cleared all the others from any part in the death of the deceased.
      
   2. Defendant Peter Sipuna generally denied the offence, stating that he was alon at his house and that he came to Martin Mulawala’s house upon hearing the commotion to seek the Deceased fallen and already hurt and that he himself had no part in assailing the Deceased.
      
   3. Defendant Monica Koro who is the wife of the deceased explained the troubled life she had with her deceased husband and that prior to this the deceased had told her to leave as he wanted to marry a new wife, and so she left their house and was at her brothers when he came around threatening everyone until Martin set upon him and hurt him.
      
   4. Mary Joyce Osi-Mulawala, wife of Martin Mulawala also stated that the Deceased was rowdy, uncontrollable and more-or-less threatening everyone including herself an Mavis Mulawala the mother of Martin and Monica and when the ceased tried to cut her (Joyce Mary) Martin stepped in and assailed him to stop the attack.
      
   5. All n all the Defendants unsworn statements revealed a Deceased person that was a threat to every woman that night threatening Monica Koro, Mavis Mulawala and Joyce Mary Osi-Mulawala with a knife, until Mratin Vitus Mulawala stepped in and end that episode.
      
10. POLICE HAND-UP BRIEF;
    
    1. The Police Hand Up Brief(s) (PB) has severall witnesses and they are Sheena and Robert Koro the deceased own children by Monica Koro and their Evidence o what they allegedly saw is before the court. They Claimed that the Defendants Martin Vitus Mulawa and Peter Sipuna as well as Joyce Mary Osi-Mulawala were the ones who assailed their father.
       
    2. The secondary Witnesses Edwin Koro and his Wife Daisy Koro on the other hand reported to meeting the Defendant Peter Sipuna on the way in shirt-less and holding a blood stained grass-knife.
       
    3. They later reported of coming upon the fallen Deceased who was still alive lying in-front of Martin Mulawala’s house and asking him ‘Husait fight wantaim yu?’ /’Who fought with you?’ and the deceased replied, ‘Martin, Mavis, Joyce, Monica na Peter katim mi wantaim knife!’ / ‘Martin, Mavis, Joyce, Monica and Peter cut mi with knife(s)’
       
    4. I believe Police Respond to these Reports to have the Defendants all Arrested for the Willful Murder of the Deceased.
       

Defendants Counsels Submissions.

11. Counsel Mr. E. Yawisa from Public Solicitors appeared for the Defendant on the 15/11/21 and made additional Submission for the Defendants pointing out that key witnesses Sheena and Robert Koro do not implicate Monica Koro and Mavis Mulawala, therefore they ought to be discharged from this charge.
12. Prosecutor Sergenat Haira on the 171121 submitted for the Defendants to be all committed on the basis of the Evidence contained in the Police Hand Up Brief.
    
13. Observations /Assessments. Having thoroughly perused the Police Hand-Up Brief and heard the Defendants Unsworn Statements as well as the various Submissions made for and against the Defendants make the following observations;
    
    1. The Deceased was acting and behaving that night according to the Defendants like a mad-man with a death wish.
       
    2. He came looking for Trouble by shouting as he approached the Defendants house armed with a ‘spear knife’ and a ‘bush-knife’
       
    3. He then set about to threaten all the females there especially Monica Koro his own wife and also Mavis Mulawala their old mother and then he really wanted to hurt Joyce Mary Osi-Mulawa, whereupon Martin Mulawala reacted in defence of his wife.
       
    4. The Children Sheena and Robert Koro in their evidence and recollection did not named their own mother Monica and also their grandmother Mavis but attributed culpable actions on the part of everyone else.
       
    5. Witness Edwin Koro and his wife Daisy on the other hand gave evidence which circumstantially ties Defendant Peter Sipuna to the case and also give evidence of the Deceased making a Dying Declaration on what is supposed to have happened to him.
       
    6. Dying Declarations according to Section 20 of the Evidence Act.
       
    7. In Papua New Guinea, the Law on Dying Declarations is generally well established and many cases have come to the Fore in the National Court., and one such case is the case of State v. Enny Bulen [1990] PNGLR 43.
       
       1. In the Enny Bulen case, the Deceased female had made a declaration implicating the Defendant of assailing her leading to her condition just prior to her demise.
          
       2. In that case Late Former Chief Justice Buri Kidu as he was, in expounding on Section 20 of the Evidence act made observations that are pertinent here.
          
    8. Other cases that come to mind are the cases of State v. Steven Donia per Late Kawi J and Case of State v. Henry per Anis J.
       
    9. In all these cases it is clearly established that the person making the Declaration must;
       
       1. Be a person who would have being a competent witness if he or she were alive.
          
       2. He or she must have being aware of his or her impeding death therefore rendering the situation under which he or she makes the declaration a solemn situation akin to actual swearing of an oath (Per Kidu CJ).
          
    10. Having considered this case I am impressed that;
        
        1. The Deceased would have being a competent witness is he were alive’
           
        2. That at the time he made the statements to Edwin Koro and his wife, he was very aware of his possible imminent demise give the scope of injuries he sustained.
           
        100. Besides, on the Evidence, his wife was right there by his side when he supposedly made this declaration.

14. Accordingly, the Court holds and Orders as follows;
    
    1. The Police Hand-Up Briefs presented against the Defendant are found to be Sufficient in their relevant parts against the Defendants.
       
    2. The Defendants are all therefore Committed to the National Court for Trial or Sentencing at a Date and time to be set by the National Court Registry.
       
    100. Defendants Martin Vitus Mulawala, Monica Koro, Mavis Mulawala and Joyce Mary Osi-Mulawala are remanded to appear at the next call over of the National Court in Popondetta at a date and time to be set.
         
         4. The Warrant of Arrest issued on the 1211/21 for Peter Sipuna is further Extended.
            

Police Prosecutions for the State

Public Solicitors for the Defendants.