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Sibolo v Kaski [2009] PGDC 48; DC898 (12 June 2009)

DC898

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]

COM 7 of 09

BETWEEN

RICHARD SIBOLO
Informant

AND

LAWRENCE KASKI
Defendant

Madang: J Kaumi
2009: 12th June

COMMITTAL PROCEEDINGS: Hand-up brief – Defendant charged with one count of Armed Robbery, section 386(1)(2)(a)(b)(c) of the Criminal Code Act of PNG-question whether evidence in the hand up brief sufficient to commit the defendant to trial for the charges he stands charged.

Cases cited:

Regina vs. McEachern [1967-68] PNGLR 48
SCR No 34 of 2005-REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2) (B) Application by Herman Joseph Leahy
Liri vs. State [2006] N3110 [17/11/06]
Bukoya vs. State [2007] SC887 [12/10/07]

References:

Hill E R Powles G; Magistrates Manual of Papua New Guinea, Lawbook Co. (2001). Sydney NSW 2009.

Legislation:

Criminal Code Act, Chapter 262
District Court Act, Chapter 40

Counsel:

First Constable Bill Mohe, for the Informant
Mr. Emmanuel, for the Defendant

RULING ON DEFENCE NO CASE TO ANSWER SUBMISSION

1 .KAUMI, M. The defendant in this matter, Lawrence Kaski has been charged with one count of robbery.

CHARGE.

One count of Robbery contrary to section 386(1)(2)(a)(b) of the PNG Criminal Court Act.

SUMMARY OF FACTS

2. It was alleged that on Thursday 19th day of April 2008 at about 7:00pm, the defendant was standing along Malabor Street next to Faith Baptist Church at Newtown, Madang.

3. It was along that time the victim and complainant Mr. Wase Warel who was driving an Institute motor vehicle belonging to Creative Self Help Centre, was driving along after dropping off an executive committee member at the said church and when returning on the same Malabor Street was blocked by a group of boys wearing overalls.

4. When the complainant stopped one of these masked suspects turned and pointed a home made gun at the complainant and his sons. There they were forced out and his defendant with others took over the vehicle and drove away.

5. That the defendant was identified by a witness by his disable left hand when the overall bent over completely without a completed hand. The vehicle was driven away to Bogia up to Mekarup and completely stripped off its parts. The vehicle was never recovered.

NO CASE TO ANSWER SUBMISSION

6. This matter is set for ruling pursuant to a No Case to answer submission made on behalf of defendant by counsel pursuant to section 95 and 100 of the District Court Act, 1963.

7. Counsel makes the application on the premises that;

(1) The Prosecutors evidence before this Court is relating to the element of identity is insufficient to find the accused guilty or raise the probability of guilt of the offence of armed robbery.

8. In summation of the above that the counsel is saying is twofold:-

1. That the prosecution evidence contained in the Police Hand Up brief which is before the Court for consideration in relation to the element of identity is insufficient to find the accused guilty.

2. Raise the possibility of guilt thus is unsafe to rely to find the accused guilty of the offence of Armed Robbery.

9. The Police Hand up Brief contained five (5) witnesses’ statements out of which 3 were the actual victims of the Armed Robbery, the other two being the Investigating officer and corroborating officer.

ISSUE

10. The issue before the Court is whether or not the evidence on the identity of the accused is sufficient to prove the essential element of identification of the charge and thereby commit to stand trial.

NO CASE NO ANSWER SUBMISSION

11. In the counsel’s submission he discusses the various differences in the witnesses’ statement as to the identification of the accused at the material time and grants conclusions as to why the identification by Brendon Wase should not be relied on.

12. He counsel correctly quotes the authority on identification in our jurisdiction being the State v John Beng [1] and the matters which a court must take into account about identification.

13 The crux of the counsel’s is that the evidence on identification is unsafe and unsatisfactory. Importantly, that the evidence of Brendon Wase was contradictory and unsatisfactory.

LAW

STANDARD OF PROOF

14. At the outset the standards of proof in committal proceedings was set out in Regina v McEachern [2] where it was held;

"To decide that the evidence offered by the prosecution in committal proceedings is sufficient prima facie case against the defendant"

15. The authors of the Magistrate’s Manual in PNG also state" that the measure of sufficiency is less than the trial standard of proof beyond reasonable doubt.[3]

ROLE OF COMMITAL COURT.

16.The committal court is not required to weigh the evidence for its credibility, as it does not have the jurisdiction to determine the guilt of the defendant in the circumstances, as it can only form its mind as to whether a prima facie case from the evidence gathered does exist.[4]

STRENGTH OF EVIDENCE

17. In Bukoya v State [5] the may also establish Supreme Court held that as to the strength of the evidence, the statements from the committal, such as they are, establish a prima facie case. The state witnesses may or may not come up to proof, the evidence may also establish a defence but that to proof, the evidence, may also establish a defence but that can only be determined by a full trial

CONSTITUTIONAL RIGHT OF DEFENDANT TO FAIR TRIAL

18. Liri v State [6] The National Court held that nothing is finally decided by the Committal proceeding. The applicant’s constitutional rights will be protected on trial from any deficiency in the evidence.

19. The constitutional rights of the accused person is committal proceedings are also discussed and the role of the committal courts are also discussed in SCR No 34 of 2005-Review Pursuant to Constitution Sect.155 (2) (b) Application by Herman Joseph Leahy [7], Duty of the committal court, Police vs Valuka [8]

APPLICATION OF LAW TO FACTS

20. This committal court does not have the jurisdiction to consider the credibility nor what due weight should be given to the evidence of Brendan Wase.

21. That is the prerogative of the trial count it is the right forum to determine these issues and where the constitutional rights of the defendant can be protected in a full trial.

22. As such as this court will not wade into tray and on the basis of the evidence of Brendan Wase it finds that there is sufficient evidence to commit the defendant on one court of robbery.

23. I now administer Section 96 to the defendant

___________________

Police Prosecution for the Informant
Paraka Lawyers for the Defendant

1. [1976] PNGLR 471
2. [1967-68] PNGLR 48
3. Hill E R Powles G; Magistrates Manual of Papua New Guinea, Lawbook (2001) Sydney NSW 2009
4. Supra Note 3
5. SC887(17/10/07)
6. N3110 (17/11/06)
7. SCR No. 34 of 2005
8. [1999] DC48 (25/03/99)