DC7099
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS COMMITTAL JURISDICTION]
NCC No 895 of 2021
BETWEEN
THE POLICE
Informant

AND
RODRICK OIRA
Defendant

Waigani: O Ore Magistrate 

2022: 17th January  
             

COMMITTAL PROCEEDINGS – Unlawful Demand for Payment - With intent to Extort – Section 390A (1) (a) (b) (i) – Criminal Code Act Chapter 262- elements of offence – whether evidence is sufficient to commit defendant to stand trial in the National Court

PNG Cases Cited
Akia v Francis [2016] PGNC 335; N6555 (24 August 2016)
State v Parakua [2011] PGNC 5; N4199 (19 January 2011)
Regina v McEachern [1967-68] PNGLR 48

Overseas Cases

References
Magistrates Manual of Papua New Guinea Part 11 Committal Proceedings

Legislation
Criminal Code Act Chapter 262
District Court Act 1963

Counsel
Kilip R, for the Informant 
The Defendant in Person
RULING ON SUFFICIENCY OF EVIDENCE
17th January 2022

1.	O Ore, Magistrate: The Defendant Rodrick Oira is charged with one count of unlawful demand for payment or “with intent to extort” under Section 390A (1) (a) (b) (i) of the Criminal Code Act Chapter 262. It is a Schedule 2 Offence. On election, the matter was recommended by the Public Prosecutor to proceed by way of Committal instead of to be tried in a Grade 5 Court.

2.	This matter came before this Court on 22nd December 2021 where parties made submissions on the sufficiency of evidence contained in the Police Hand Up Brief (PHUB). Apart from a short oral submission made by the Defendant, he had a written submission filed as well. Ms Regina Kilip for the prosecution opted to rely on the PHUB instead.

3.	This is now my ruling on whether there is sufficient evidence in the PHUB to commit the Defendant to stand trial at the National Court pursuant to section 95 (1) of the District Courts Act 1963 (DCA).

FACTS

4.	The following are the summary of facts alleged by police to have taken place.

5.	Police alleged that on the 13th of June 2021 at about 11:15am at Kanudi Sea Side Parking Bay NCD, the Defendant now before the Court, Rodrick Oira, male 50 years of age from Amada Village, Kokoda District, Oro Province, a Police Officer with the rank of First Constable attached with Port Moresby Police Station had extorted money from the Complainant one Anthony David Evans and his wife and got K20 cash from them.

6.	It is alleged that the Defendant and other Police Officers were on a motorised patrol in a Police Marked Vehicle, a blue Toyota Land Cruiser Reg # ZPD 968 along the Hanuabada to Kanudi road where they sighted the Complainant’s vehicle being parked at the Kanudi Seaside Parking Bay. 

7.	Upon sighting of the Complainant’s parked vehicle, the Defendant went and signalled the complainant to lower the vehicle’s door glass. The Defendant explained to the Complainant why police were patrolling the area. After the Defendant had explained to the Complainant, he wanted to check if the complainant had a PNG Driver’s license so the license was provided. The Defendant then asked for money and extorted K20 from the Complainant and his wife.

8.	The matter was reported to the Police Internal Investigation Unit at Boroko Police Station whereby the Defendant was interviewed, formally arrested and charged.

ISSUE

9.	Whether, the evidence as adduced by the Statements of the witnesses as indicated in the Police Hand-up Brief is sufficient to commit the Defendant to stand trial in the National Court, for the commission of the alleged offence.

RELEVANT LAW

10.	Unlawful demand for payment or with intent to extort is an indictable offence under Section 390A (1) (a) (b) (i) of the Criminal Code Act Chapter 262. In much simpler terms, the offence itself is extortion. This Section of the Criminal Code Act is in the following terms:

“390A. DEMANDS FOR COMPENSATION OR OTHER PAYMENT.

[133] A person who, with intent to extort or gain anything, payment, or compensation from any person–
(a) demands the thing, payment or compensation; and
(b) in order to obtain compliance with the demand–
(i) causes or threatens to cause injury to any person or damage to any property;”

11.	The offence of unlawful demand or extortion has four elements which are that a person/s:

a.	Demanded payment
b.	With intent to extort payment.
c.	Unlawfully threatened or intimidated any person.
d.	In order to obtain compliance with their demand.

12.	These elements were established and discussed in the case of State v Parakua [2011] PGNC 5; N4199 (19 January 2011) where the Court said:

“(1) Under Section 390A of the Criminal Code the offence of making an unlawful compensation demand has four elements:
•	demanding something, payment or compensation;
•	with intent to extort or gain that thing or payment or compensation;
•	causing or threatening to cause injury to any person or damage to any property or doing or threatening to do any act which renders or is likely to render any public road, bridge, navigable river or navigable channel, natural or artificial, impassable or less safe for travelling or conveying property or otherwise unlawfully threatening or intimidating any person;
•	in order to obtain compliance with the demand.”

13.	Having established the elements of the offence, I must remind myself not to go deep into examining whether the evidence provided by the Police establishes each element of the offence. This would be seen as assuming the responsibility of the trial judge. My  powers are limited to the confines of section 95 of the District Court Act 1963 (DCA) which is to consider whether a prima facie case exist. Section 95 of the DCA states:

“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.”

14.	To put it in simpler terms, prima facie in my view is based on the first impression or accepted as correct until proven otherwise. A good example of a prima facie case would be a situation where a wife walks in on a husband with another woman. At first glance, it looks as if he is guilty of something just because of the circumstance. That is the type of approach the Court must take. Without going too deep into the evidence, the Court has to on first glance, determine whether the evidence is sufficient to warrant a committal to the trial court.  

EVIDENCE

15.	The evidence contained in the PHUB comprises of:

a.	Statement of 4 witnesses
b.	Confessional Statement by Roderick Oira (Defendant)
c.	Record of Interview (In English)
d.	Exhibits or Annexures
e.	Copy of a Message Card 
f.	   Antecedent Report 

Witness Statements 

a.	Anthony Davis Evans

16.	This witness is the Victim. He is a Lieutenant Colonel in the Australian Defence Force. He gives a detailed account of how he and his wife were approached by the Defendant and how the Defendant extorted money from him.

b.	Philemon Parom

17.	He is a Policeman attached to the Port Moresby Police Station. His evidence is that he accompanied that Defendant to where the Complainant was and saw the Defendant extorting money from the Defendant. He identifies the Defendant as the one extorting money from the Complainant.

c.	Gabriel Peabe

18.	He is the Corroborator to the record of interview.

d.	John Pii

19.	He says that he is the arresting officer who formally arrested the Defendant and formally conducted the Record of Interview with the Defendant.

e.	Rodrick Oira

20.	He is the Defendant. He gives an account of how he met the Complainant and how he obtained money from them.

PROSECUTIONS CASE

21.	The Prosecution through Prosecutor Regina Kilip on submission submitted that she will not make submissions. She submitted that everything is in the Police file and that the Court should consider it (Police File) and make a decision.

DEFENDANT’S CASE

22.	The Defendant filed a written submission on competency and sufficiency of evidence. When asked if he wished to make additional submissions on what he had already filed, he said that he did his work according to the law of the Country and that he will rely on his written submissions.

23.	The written submission by the Defendant was quite detailed. In his submission, the Defendant replied to all statements made by the victim and police witnesses. In reply to the Statement of the Victim, he gives a different version of the events that took place that day.

24.	He submits that victim gave him 4 K5 notes at his own will without him demanding or asking. He simply denies that charges against him are true. 

25.	His reply to statements by witnesses Philemon Parom, Gabriel Peabe and John Pii are the same. He says that the evidence adduced by these witnesses cannot reliably establish that he had committed the alleged offence and therefore are unreliable and without credibility.

ANALYSIS OF EVIDENCE 

26.	Evidence by the Victim shows that at that time, his wife was driving the vehicle while he was seated in the passenger seat. She did not have a valid PNG Driver’s license and so was deemed to have committed an offence by the Defendant. Despite explanations by the Victim, the Defendant could not be swayed from his view and insisted that the Victim’s wife be charged and arrested at the Boroko Police Station. This would in the Defendant’s view take a lot of time and was likely to result in a fine of K500. 

27.	The Defendant’s attempt to obtain K300 by letting the Victim and his wife go failed miserably when the Victim refused to pay and opted for the matter to be settled at the Police Station. Added to that, was the fact that the Victim was a serving member of the Australian Defence Force. This led to the Defendant consulting with his fellow officers and returning later only to let them go and ask for some petrol money. The Defendant suggested for K100 but was offered only K20 which he accepted and left with his fellow police officers. 

28.	The evidence by the Victim is not corroborated with any other evidence by his wife. As it is, it stands on its own. 

29.	Evidence by Philemon Parom shows that the Defendant was the person that was talking with the Victim and his wife. The evidence by Roderick Oira in his statement and also the Record of Interview are consistent. In both documents, the Defendant denies extorting money from the victim and says that 4 K5 notes were given to him by the victim at his own will. 

FINDINGS

30.	In order for the Defendant to be committed to stand trial at the National Court, the evidence contained in the PHUB must be sufficient in a sense that it at least touches on the elements of the offence he is charged with.

31.	I further remind myself that I am not required to weigh the evidence for its credibility nor am I required to decide on whether the Defendant has a case to answer. That is something for the trial Court. My duty is to establish whether there is a prima facie case warranting committal to the National Court.

32.	The standard of proof which is required of a Magistrate siting at the Committal Court is one lower then beyond reasonable doubt. This standard of proof was discussed in the case of Regina v McEachern [1967-68] PNGLR 48 where the Court said: -
"To decide that the evidence offered by the prosecution in committal proceedings is sufficient to put the defendant on trial.... The Court has only to form a bona fide opinion that there is a sufficient prima facie case against the defendant.”

33.	I now go into my findings on the issue at hand which is whether the evidence is sufficient to commit the Defendant to stand trial at the National Court.

34.	Firstly, am satisfied that the Police Hand up Brief was served on the Defendant pursuant to section 94 (1) of the District Court Act. 

35.	Secondly, I am satisfied with the content and form of the PHUB. All witness statements are in the correct format along with the Charge Sheet, Information and relevant exhibits intended to be used as evidence. The Record of Interview is in order as well.

36.	I am also satisfied that all witness statements have been obtained lawfully pursuant to Section 94C (2) of the District Court Act.

37.	In reaching my final decision, I have weighed all the evidences by the Police against the charge taking into consideration the standard of proof required. I find that evidence produced by the Police does not touch on each if not all the elements of the offence and therefore are insufficient. 

38.	I therefore find that there is insufficient evidence prima facie to commit the Defendant to stand trial at the National Court for the charge of “with intent to extort” under Section 390A (1) (a) (b) (i) of the Criminal Code Act Chapter 262.

COURT ORDERS

39.	I make the following orders;

a.	There is insufficient evidence to commit the Defendant for one count of with intent to extort under Section 390A (1) (a) (b) (i) of the Criminal Code Act Chapter 262.

b.	The Defendant is discharged with his bail money of K400.00 to be refunded immediately.
 
Lawyer for the Informant 		Police Prosecutions 
Lawyer for the Offender: 		In Person