DC8065

Papua New Guinea
 
[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION
 
NCC NO 245-246 OF 2021
CB NO 452-453 OF 2021
 
BETWEEN:
 
NEI PIGE
 [Informant]
 
AND:
 
BEN NOU
FOXY GAHUSI
 [Defendants]
 
Waigani: Paul Puri Nii
 
25th April 2022
 
COMMITTAL PROCEEDINGS: Charge-Murder-Section 300(1)–Criminal Code Act. Witness statements- State confirmation- appropriate development of prima facie evidence - elements of the charge –Evidence is sufficient-Defendants committed to stand trial.
 
PRACTISE AND PROCEDURE: Calculation of evidence under Section 95 of the District Court Act. Defendants stabbed the victim-elements of intention and premeditation. Evidence of murder. 
 
PNG Cases cited:
 
NIL
 
Overseas cases cited: 
 
NIL
 
REFERENCE
 
Legislation
Criminal Code Act 1974, [Chapter 262]
District Court Act 1963, Chapter 40
 
Counsel
Police Prosecutor:             Joseph Sangam                 For the Informant
In person:                          Defendant                          For the Defendant

DECISION ON RULING
 
25th April 2022
 
INTRODUCTION

NII, P. Paul Magistrate. Decision on committal under Section 95 of the District Court Act. On 08th March 2022, accusers did not make any oral submissions but asked the court to go through their submission filed on 17st February 2022 and the Police file and make a decision. The comparable attitude was assumed by police and therefore is my conclusion on police evidence.
 
CHARGE
                                    
1.	Defendants are charged under Section 300 (1) of the Criminal Code Act. The fundamentals of the charge is revealed beneath:
“300.   Murder.
 
(1)[1] [2]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;
(b)      if death was caused by means of an act–
(i)       done in the prosecution of an unlawful purpose; and
(ii)       of such a nature as to be likely to endanger human life;
(c)      if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–
(i)       the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or
(ii)       the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);
(d)      if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);
(e)      if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).
Penalty:   Subject to Section 19, imprisonment for life.”
 
BRIEF PARTICULARS
 
2.	Defendant Ben Nou is aged 24 years old and Foxcy Gahusi is aged 38 years old and both hail from Baruni village in Port Moresby, National Capital District.

3.	Police allege that on the 7th February 2021, between 12am and 1am, the Defendants were at Hanuabada village. Defendant Foxcy Gahusi is married to Hanuabada so the co accused and others went and drank alcohol at Foxci Gahusi’s in-laws place. After drinking some other boys from Hanuabada joined in and they continued drinking until the Defendants had an argument with the deceased and they both stabbed him. The victim consequently fell on the ground and was later taken to Port Moresby general hospital but died upon arrival. Consequently, a complainant was lodged by the relatives of the deceased and the accuseds were subsequently arrested on 9th December 2020 and charged pursuant to Section 300(1) of the Criminal Code Act.  
 
ISSUE
 
4.	The issue on sufficiency of evidence will be considered here.
 
THE LAW 
 
5.	My ability to rule on police evidence is under Section 95 of the District Court Act, which is in the following manner: 
 
“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.”

 
ELEMENTS OF THE OFFENCE
 
a)    Accused;
b)    Had an intention to cause harm to the deceased;
c)    Inflicted grievous bodily harm on the deceased;
d)    Which lead to his eventual death
 
EVIDENCE
 
Police case
 
6.	Police evidence is in the police file tendered to the court on 16th August 2021. The file encompasses witness statements and other evidence including photo exhibits, medical reports and the Defendants ROI.
 
7.	List of police evidence:
 
No	Name	Particulars	statements	
1	Puka Tamarua 	Witness-Hanuabada village-NCD	This witness says he was at the crime scene at the time of the allegation when the Defendants stabbed the victim. Witness said he had identified and recognized the Defendants.	
2	Tau Toa Nou 	Witness-Hanuabada village	This witness says he saw the accused Ben Nou stabbed the deceased with a knife while his co accused Foxcy Gahusi punched the witness. This witness described the accused and Defendant with the clothes they wore at the time and what they were doing.	
3	Michael Morea	Witness-Office Clerk-Works at Vitis 	Witness says he was at the crime scene and witnessed the incident. Witness says both Defendants assaulted him and others including the victim but unfortunately the victim passed on. 	
 	
4	Oala Sere	Witness-Hanuabada village-NCD	This witness says he was at the crime scene and the Defendants fought with him and hence he ran for his life. Later his relatives from Hanuabada came and chased the Defendants.
 	
5	David Gavera	Witness-Hanuabada village	Witness says he was not at the crime scene but he had arranged for the murder weapon or the exhibit to be taken form Morea and given to the police. 	
6	Teddy Sere	Witness-Hanuabada village-NCD	Witness says he saw Foxcy punching Tau but did not know who stabbed the victim. He says he only saw the victim lying on the road who was later taken to the hospital by the villagers but died upon arrival.
 	
7	Opi Nou	Witness-Hanubada village-NCD	Witness says Sere Oala threw an empty bottle on the road and a lady who was married to Baru shouted at them not to break the bottle as that was her home. Witness says immediately after that someone came and punched him to the ground but he can’t recall and identify who punched him. Later he says he regained his consciousness and went home.	
8	Stuart Robert	Policeman-Forensic Photographic	 
This witness is a crime scene photographer who took photos of the crime scene which were inserted as exhibits in the police file.	
9	Stuart Robert	Policeman	This witness says he went to the crime scene and did a sketch of the crime scene. 	
10	Samson Kami	Police Corroborator	Witness identifies himself as a policeman who was with the arresting officer at the time when the accused was interrogated.	
5	Nei Pige	Arresting officer- 	Police arresting officer who did the initial investigation including the ROI. 	
 
Defense case
 
8.	 Defendants through their submission filed dated 17th February 2022 argues that Police have not provided sufficient evidence to establish a prima facie case for the offence Defendants were charged with and hence argued they should not be committed to the National court.
 
DELIBERATION OF EVIDENCE
 
9.	 Evidence shows on the 7th February 2021, between 12am and 1am there was a fight between several men from Baruni and Hanubadan in the NCD. Evidence shows both accused are from the Baruni area while accused Foxci Gahusi is married to a lady from Hanubada. Evidence shows the Baruni men were drinking alcohol with Foxci Gahusi at Hanubada. Evidence shows a Hanubada man broke an empty bottle close to Foxci Gahusi’s in-laws area and a lady shouted at the person who broke the bottle and subsequently a fight broke out between the men from Hanubada and Baruni.

10.	Police allege that it was during that fight the Defendants stabbed the deceased with a knife. However, Defendants denied that they did not stab the accused.  
 
RULING
11.	The defendants denied that they did not stab the accused. The statements of witness Puka Tamarua says him and Tau Nou, Teddy Sere, Michael Morea, Ovia Paul and Gau Morea walked up the 24 market when they saw a man running towards them which he says he recognized as uncle Sere who was stabbed by some men. Witness says the same men punched another man whom he says he recognized as uncle Opi. Witness says when Tau Nou saw uncle Opi being punched he ran to his uncle’s rescue but he was also punched to the ground. This time, witness saw accused Ben Nou holding a knife and stabbing Tau Nou while co accused Foxcy Gahusi was sitting on top of Tau Nou by immobilizing his movements so accused Ben Nou may continue to stab him.

12.	Then Michael Morea went in to rescue Tau Nou but he fell down and the accused stabbed him and it was from there the deceased intervened to stop the accused from stabbing Michael Morea but he was stabbed by accused Ben Nou. Ben Nou was seen by the villagers running away to the village after stabbing the deceased. He was subsequently being pursued by the villagers but wasn’t captured.

13.	Witness Tau Nou’s statement corroborates Puka Tamuras account of events that accused Ben Nou stabbed the victim with a knife after the victim stepped in to rescue Michael Morea from being punched by the Defendants.

14.	Statements from witness Michael Morea is that he heard the victim shouting that someone was stabbing him and later they realized the victim was stabbed and consequently the accused were chased by the bystanders but to no avail.

15.	The statements of Tau Nou, Puka Tamua and Michael Morea have all identified the Defendants and their statements corroborates that the victim went to rescue Michael Michael Mora from being stabbed and attacked by the Defendants but in the process the victim who is now identified as late Mavara Sere Jr was attacked by the Defendant Ben Nou while Defendant Foxcy Gahusi was assisting Defendant Ben Nou to execute the mission of stabbing the deceased.

16.	I am satisfied with Police evidence that Defendant Foxsy Gahusi who was with Defendant Ben Nou  was sitting on top of Tau Nou while he fell on the ground by restricting his moments and that facilitated Defendant Ben Nou  to stab him. However, it was from that moments onwards Michael Morea who went to assist Tau Nou was also punched by the Defendant and he fell on the ground and subsequently the late victim who went to the rescue of Michael Morea was also attacked by the Defendant Ben Nou with assistance from Defendant Foxci Gahusi.

CONCLUSION 
 
17.	Therefore, it is my ruling under Section 95(1) of the District Court Act that police evidence is acceptable to make a prima facie case against the Defendants for the charge of Murder under Section 300(1) of the Criminal Code Act. Pursuant to Section 7 of the Criminal Code Act, evidence is sufficient to make a prima face case against Defendant Foxci Gahusi for his roles in facilitating and adding Defendant Ben Nou to execute the allegation of murder on the victim.  Moreover, evidence is sufficient to make a prima facie case against Defendant Ben Nou for his alleged act leading to the murder to the victim. Thus, evidence is sufficient against both Defendants.
 
ORDERS
 
18. My Orders:
 
a)    Evidence is sufficient to commit Defendants Ben Nou and Foxsy Nou for the charge of Murder under Section 300(1) of the Criminal Code Act.
 
b)    Defendants are committed to stand trial.
 
c)    Bail Extended.

 

Public Solicitor                                               For the defendant
Police Prosecutor                                           For the State

[1]          Section 300(1) amended by Act No. 13 of 1977, s22; amended by Act No. 12 of 1982, s3.
[2]          Section 300(1) amended by Act No. 13 of 1977, s22; amended by Act No. 12 of 1982, s3.