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Police v Ai [2001] PGDC 32; DC325 (25 September 2001)

DC325

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 406, 450 OF 2001

Police
Complainant

V

Peter Ai & 44 Ors
Defendant

Mount. Hagen: M. M. Pupaka, PM.
2001: 24th August 2001

Criminal Proceedings – Deprivation of Liberty – Committal proceedings – Functions of committal court – Identification of a prima facie case only – section 95 of District Courts Act Chapter No. 40 – Statements on the police file sufficient to commit all the accused for trial.

Counsel
Sergeant Sam Gai for the Prosecution
Mr. Bosip Aipe for some of the Accused

25th September 01

M. M. Pupaka: This is the ruling on the committal proceedings upon a charge of Deprivation of Liberty preferred against all these 45 accused. The police had charged all the accused that they "Did each and severally unlawfully deprives (sic) another person, namely DICK HAGON of his personal liberty against his will". The charge is contrary to section 355 (b) of the Papua New Guinea Criminal Code Act, Chapter No. 262, (the Code). The police files are ready for this Court’s ruling.

All the accused have been served with their respective copies of the file through Mr. Aipe of the Public Solicitor’s Office, who acts for them.

When the matter last came before me on Monday (20/08/01) I advised every one that I would go through the names disclosed in the file again with a view to discharging some of the accused and committing some of them. I intimated that only those whose names are mentioned or those who are identified by the witnesses to have been at the Mr. Hagon’s place initially would be committed.

I have done more than what I said I would do. I have thought through and reflected once again upon the statements of the policemen who were involved in the arrest of these accused. In the end, I think, the import of the assertions of the policemen, particularly given the background of the other witnesses’ statements, can not be dismissed off hand. In all these I am being mindful of the purposes of these proceedings, which is to identify a prima facie case and is not a trial of these accused. Consequentially I intend to commit all lot of these men to stand trial in the National Court on the charge preferred.

Before I expound upon the change of course by the Court I would say at this juncture that there is a prima facie charge of Deprivation of Liberty, contrary to section 355 (b) of the Code, disclosed by the witnesses’ statements. Except for the seeming lack of identification, (I would address that aspect again shortly), I would have to be satisfied that there is a prima facie charge, in the context of section 95 of the District Court Act Chapter No. 40 (the Act), disclosed here. I would also say at this juncture that at least (7) of these accused are fully identified by the witnesses. I would otherwise have no difficulties in ordering them to stand trial in the National Court on the charge preferred. They are: Peter Ai; Paul Anjpil; Jack Kolts; Wau Won; Peter Ak; Steven Mara; and Wilfred Kulno.

That said I would explain why there has been a shift from the initial indication in court as to who may or may not be committed to stand trial. After rising from court on Monday (20/08/01) I have re-read the contents of the police file. I have particularly perused the statements of the witnesses: Maima Toke; Cornelius Nelson; Undaba Phil; & Ronnie Mitau. These witnesses are policemen who intercepted and foiled the actions of the rowdy mob that was taking the victim – Mr. Dick Hagon – to the airport ‘to be deported’. These policemen tell, in their statements, of the manner in which the mob travelled. They tell of the manner in which they stopped and subdued the mob and how they finally arrested them. The arresting officer tells of how some of the members of the rowdy mob escaped when the convoy of vehicles was halted. The picture presented by these witnesses’ statements is that all these accused were apprehended whilst ‘in the act’, and then formally arrested and charged soon after.

Having reached this conclusion on the facts, I should then further conclude, as a matter of law, that all the accused have a prima facie charge of Deprivation of Liberty to stand trial upon. As to whether there would be convictions upon the charge in respect of every accused is not for this Court to say or decide upon. It is sufficient that there is evidence sustaining a prima facie charge against each accused. Council for the accused, Mr.Aipe, has referred to the defence of citizens’ arrest. That argument has no place in this matter at this stage. Suffice to say that that defence ought to be raised at the appropriate time and place. That also applies for the other argument put forward for the accused, which was that most of these accused were innocent travellers arbitrarily caught by the police with the seven named and identified suspects. The truth of that contention can only be established at the trial proper and so it must also remain an issue for the trial court.

Consequently I would commit all these 45 accused for trial on the charge preferred against them.

Sergeant Sam Gai: Complainant
Mr. Bosip Aipe: Defendant