DC5070

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]

Case No. 1288 OF 2019

BETWEEN:

THE POLICE
[Informant]

AND:

BENNY KOMBA TIMOTHY
[Defendant]

Paul P. Nii
10 September 2020

PROCEEDINGS: -Charge- One count of Attempt Murder conflicting to Section 304(a) of the Criminal Code Act 1974- Has the Police provided prima facie satisfactory evidence to commit the Defendant to stand trial in the National Court.

EVIDENCE: Lawful requirement for prima facie case-Existence of the elements of the charge of Attempt Murder-Evidence is appropriate to commit the Defendant to stand trial in the National Court. There is evidence on the elements of Attempt Murder for murder purposes- Evidence demonstrates there is a case of Attempt Murder

PNG Cases cited:

Akia v Francis PGNC 335; N6555
Yarume v Euga [1996] PGNC 24; N1476
State v Michael Raymond Martin And Andrew Girau [29 June 1989] N742.
The State v Kai Wabu [1994] PNGLR 498
State v Bernard [2010] PGNC 231; N4538 (25 June 2010)

Overseas cases cited: 
Nil

References

Legislation
Criminal Code Act 1974 Chapter 262
District Court Act, Chapter 40

Counsel
Police Prosecutor: Sgt Polon Koniu				For the Informant
Mr. B Koki, Office of the Public Solicitor				For the Defendant

DECISION ON SUFFICIENCY OF EVIDENCE

10th September 2020

Introduction

NII, Paul. This is a pronouncement on whether a prima facie case is proven inside the meaning of Section 95(1) of the District Court Act after evidence in the Police Hand Up brief and Defense case is carefully considered. 

Charge

2.Defendant is charged with one count of Attempted Murder conflicting to Section 304(a) of the Criminal Code Act 1974 Chapter 262

Facts

3. Police say that the Defendant is Benny Komba Timothy, of Puipak, Liagam, Enga Province who resides at Hohola1, NCD. Police further say that the victim is Pina Ambrose, female and also resides at Hohola 1, NCD.

4. Police allege that on Sunday 28th July 2019, the Defendant got irritated with the victim and approached the victim at her home with a kitchen knife about 30cm in length and was aiming at her on the neck. Police allege that in defense the victim approached the Defendant and she held the knife on its blade and was struggling to remove the knife from the Defendant and the knife cut the victim’s hand. During the melee, both the victim and the defendant fell to the ground. Police went on to allege that whilst the victim was on the ground, the Defendant stabbed the victim on the left chest thereby causing bleeding from the wound. 

5. Police say the victim was later taken to Port Moresby General Hospital for treatment where medical examinations and assessment was conducted by a Physician and thereafter the victim went to Hohola Police station in NCD and filed a police Complaint against the Defendant and on Tuesday 30th July 2020, the Defendant was formally arrested and charged for the offence of Attempted Murder Contravening Section 304 (a) of the Criminal Code Act 1974, Chapter 262

Issue

7. The key issue for deliberation by the court is whether a prima facie case is legitimately established and that is whether Police evidence in the Police file is pleasing to permit the Defendant to stand trial in the National court.

8. The Sub-issues for consideration are whether there is adequate evidence on each of the elements of the offence of Attempted Murder: - A person who–attempts unlawfully to kill another person; or with intent unlawfully to kill another person does any act, or omits to do any act that it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life,

The Law 

The Law on Committal Proceedings

9. Sections 94 to 100 of the District Court Act delivers the authentic basis for Committal Proceedings. 

10. The committal court must be contented that all elements of the charge are presentable and subsequently the court will make a finding on the evidence. This is the principle in both the cases of Akia v Francis PGNC 335; N6555 and Yarume v Euga [1996] PGNC 24; N1476. The Committal court only weights the evidence in the Police Hand Up brief to ensure there is necessary evidence linking to the charge. This in the nutshell means the committal court functions as a purifying process where it filters the evidence to ensure there is necessary evidence associating to the charge. 

11. The case of Maela v Yahamani [2010] PGDC 28; DC1038 (8 April 2010) noticeably enlightens the purpose of the committal courts…. Committal proceeding is more or less a process in which serious indictable offences which are vested in the jurisdiction of the National Court are filtered before they are remitted for trial proper. The process allows the Magistrate to assess the strength of the charges and that weak or misconceived cases are not unnecessarily sent to the National Court. The primary objective of the committal court is therefore to consider whether evidence contained in the police hand up brief establishes a prima facie case to justify a trial proper in the National Court….
	
The Law on the charge of Attempted Murder

304. ATTEMPTED MURDER, ETC.
A person who–
(a) attempts unlawfully to kill another person; or
(b) with intent unlawfully to kill another person does any act, or omits to do any act that it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life,
is guilty of a crime

Case law

Elements of the offence

12. To establish a charge of Attempted Murder the Prosecution must prove their case beyond reasonable doubt the elements of the charge.  This is the principle under the State v Michael Raymond Martin & Andrew Girau [29 June 1989] N742. In this case Defense submits that the elements of the charge of Attempted Murder as follows:

1.	Must Have An Intention On His Part To Kill The Victim,
2.	Put his intention into execution by means adapted into its fulfilment, 
3.	Manifest his intention to kill unlawfully by performing some overt act; and
4.	The accused does not fulfill his intention to such an extend as to kill the victim.

Prosecution case

13. Court to consider on the Police Hand Up Brief-Prosecution case is enclosed in the Police Hand Up Brief (Police File) in the form of witness testimonies and documentary evidence including medical report among others.

Witness declarations 

i.	Pina Ambrose- She is the victim who was alleged to have been stabbed by the Defendant during the fight. She has provided further information including evidence statements and medical report.  

ii.	Theresa Jack-This witness stays with the victim in the same zone or perhaps within noticeable proximity who was at the scene of the stabbing and witnessed the whole account.

iii.	Masolon Ale- This witness stays with the victim in the same house and she was at the scene at the time of the stabbing and the fierce reactions of the accused whilst armed with a knife who attempted to kill the victim. 

iv.	Jack Kaipo-He is the victim’s neighbor who witnessed the injuries sustained by the victim and he was the one who went and separated the victim and the Defendant.

v.	Mike Ambrose- He is the victim’s husband who came to the scene after the stabbing and took his wife to the hospital for further medical report.

vi.	Ove John and Gilford Avenoma- These witnesses are policemen who apprehended and took the suspect to Hohola Police station where they interrogated the Defendant and subsequently a charge of Attempted Murder was laid against. 

vii.	Bowen Wadau-He is the Police corroborator who administered the record of interviews with the accused.

Documentary evidence 

i)	Medical report about the stabbing was conducted by Dr Sonny Kibob, a senior specialist medical officer who works with Port Moresby General Hospital. The medical report was conducted on the 29th July 2019.

ii)	Record of Interview (ROI)-Defendant’s statement about the stabbing and activities leading to same. Among others, there was admission that the Defendant fought with the victim but not with a knife-

iii)	There is a confessional statement form the Defendant but the Antecedent Report is not quite pertinent at the committal hearing.

Defense Submission

14. Defense made the following submission: -

Defense raised four (5) grounds

( i) Firstly, defense argue on the issue of non-compliance under Section 94(1A), 94(1B), 94C(2) of the District Court Act, where they submit that the witness statements should not be accepted as it does not conform to the legal requirements under the declared provisions of the District Court Act. 

94A. PENALTY FOR FALSE DECLARATION.
A person who, in relation to a statement or document referred to in 
Section 94(1), knowingly makes a statement that is false or misleading in any particular is guilty of an offence.
Penalty: Imprisonment for a term not exceeding three years.
94B. COMMITTAL FOR TRIAL WITHOUT CONSIDERATION OF THE EVIDENCE.
(1) Subject to Subsection (2), a Court inquiring into an offence may, if it is satisfied that all the evidence, whether for the prosecution or the defence, consists of written statements, with or without exhibits, tendered to the Court after service in accordance with Section 94, commit the defendant for trial for the offence without consideration of the contents of the statements.
(2) Committal for trial in accordance with Subsection (1) shall not occur where–
(a) the defendant or one of the defendants does not have legal representation; or
(b) the legal representative of the defendant or one of the defendants, as the case may be, requests the Court to consider a submission that the statements referred to in Subsection (1) do not disclose sufficient evidence to put the defendant on trial for the offence.

94C. REGARD TO EVIDENCE, ETC.
(1) When conducting a committal hearing under this Part, the Court may, subject to Subsection (2), have regard to–
(a) the evidence contained in a written statement; and
(b) documents and exhibits,
of which a copy has been served on the defendant under Section 94(1) or made available for inspection under Section 94(2).
(2) Before admitting a written statement, the Court shall be satisfied that the person who made the statement had read and understood it, or if unable to read, had had it read to him in a language that he understood.

Defense based their argument on the case of State v Kai Wabu [1994] PNGLR 498; that all statements given by witness should be done properly and each witness should sign at every page to ensure that they understood the contents of their statements. Defense submits that all the original version of the witness statements is supposed to be in the pidgin language which shall subsequently be translated into English language followed by a certificate of interpretation or translation. Funded on the above, defense submits that the truthfulness of the statement is in question and hence this court should not accept the statements as evidence for determinations of committal.

(ii) Secondly, defense further submits that there are inconsistencies in the medical report since the report prepared by Dr Sonny Kibob does not accompany it by a certificate of verification as it is the standard way. Defense also submits that there are no medical notes from the clinic book to confirm the injuries sustained by the victim. Given this reason the medical report might be drafted by some other person who has excess to the Port Moresby General Hospital’s letter head. The defense submits that the medical report is a mere piece of paper signed by a person claiming to be Dr Kibob and hence should not be accepted as evidence. 

(iii)  Thirdly, defense submits that there are discrepancies in the witness statement and the medical report. Defense submits that the victim claimed she was stabbed once in her witness statement but the medical report claimed she was stabbed a number of times. The defense questioned the authenticity of the medical report and witness statement that they do not make a case against the Defendant and therefore witness statements and Medical reports should not be accepted as evidence.   

(iv) Fourthly, defense questioned the photographs or exhibits as not genuine as they were taken by person other than the Police Forensic Officers. Defense say that the person who is shown in the photo or exhibits is not the victim but could be some other person and hence the evidence on exhibits should not be accepted by the court.

(v) Lastly, Defense also take issue on the confessional statement that the Defendant did not admit to the offence but yet it was treated as a confessional statement and hence this information should not be accepted as evidence.

Defense submits the 4 elements of the charge of Attempted Murder are missing and there is insufficient evidence to commit the Defendant and hence the information containing one count of attempted murder pursuant to section 304(a) of the Criminal Code 1974, Chapter 262 be struck out. 
Prosecutions submissions

15. The Prosecution made no submission but informed the court to consider the evidence in the Police Hand Up Brief (Police file) and make a ruling: - 

(i). Prosecution say that the victim was stabbed by the Defendant. The court will rely on the Police file to ensure that there is enough evidence to make a case against the Defendant.

Consideration of the Defence case

16. I respond to the defense follows:

(i).Defense submits that there is no certificate of interpretation or translation where it would or may confirm that the original version of the witness statements which were taken in pidgin language are later translated into the english version and therefore defense questioned the reliability of the witness statements as not genuine. Before addressing the above, let me answer the issue of witness statements itself and that is whether or not there are witness statements in the Police hand Up Brief? The police file contains four (4) witness statements and they are: statements of;

a)	Theresa Jack,
b)	Masolon Ale,
c)	Jack Kaipo,
d)	Mike Ambrose.

All the statements are written in english with no certificate of translation but all have signed their statements in the bottom by verifying that they all have understood their statements. If all had read and understood the contents before signing their statements, then the evidence as it is now being admissible and accepted for purpose of this hearing. Why they all have signed their statements if they did not understand English? The issue of whether or not the statements were obtained by fraud or signed by someone else without having it read to the maker of the statements are irrelevant at this time since this court is only interest in the sufficiency of the evidence and nothing else.  In answer to my previous issue on whether or not there are witness statements, the simple answer is yes. 

When Police file is ready, the court will form a view on whether or not there is sufficient evidence in the police file to commit the Defendant. The court will make a finding on the evidence and nothing else and this is the law in Akia v Francis PGNC 335; N6555. Defense submits that the reliability and authenticity of the witness statements are in question and should not be accepted as evidence but it is not the function of this court to consider the legitimacy of the evidence but to weigh on whether or not there is sufficient or enough evidence and hence the court at this stage accepts that the statements of 4 witness are sufficient enough. Any issues in law relating to Sections 94(1A), 94(1B), 94C(2) of the District Court Act shall be addressed by the trial court and not at the committal hearing.

(ii) Secondly, defense disputes the medical report by Dr Sonny Kibob that it does not supplement it by a permit of verification to confirm as it was genuine. Defense also submits that there are no medical notes from the clinic book to ratify the injuries sustained by the victim. Given this reason the medical report might be drafted by some other person who has excess to the Port Moresby General Hospital’s letter head. The defense submits that the medical report is a mere piece of paper sign by a person claiming to be Dr Kibob and hence should not be accepted as evidence.

I have prudently considered the issued raised and subsequently corroborated the medical certificate to endorse it was a medical certificate for the victim. I noted that the medical certificate dated 29th July 2019 was authored by a physician and it emanated from Port Moresby General Hospital. It also encompasses the extent of injuries sustained but the issue is it is somewhat shadowy and I can’t read from a distance.   Nevertheless, closer reading can give a clear indication of what the content is all about. 

(iii)The third issue defense raised was on the question of photographs and exhibits as not genuine as they were taken by person other than the Police Forensic Officers. Defense say that the person who is shown in the photo or exhibits is not the victim but could be some other person and hence the evidence on exhibits should be accepted by the court. Nevertheless, the court accepts the exhibit evidence as genuine since it gives a clear account of the object used in the stabbing and the likely part of the body where injuries were sustained.  

(v) Lastly, defense take issue on the confessional statement that the Defendant did not admit to the offence but yet it was treated as a confessional statement and hence this evidence should not be considered. Defense submits that all the four (4) elements of the charge of attempted murder are missing and there is insufficient evidence to commit the Defendant and hence the information containing one count of attempted murder pursuant to Section 304(a) of the Criminal Code 1974, Chapter 262 be struck out. 

(vi)Defense strongly submits that that the elements of the offence of Attempt Murder are not present. In considering this submission, I have to carefully address each elements of the offence:

i.	Must Have An Intention On His Part To Kill The Victim,
ii.	Put his intention into execution by means adapted into its fulfilment, 
iii.	Manifest his intention to kill unlawfully by performing some overt act; and
iv.	The accused does not fulfill his intention to such an extend as to kill the victim

This is not the appropriate court to prove intention but will only consider evidence for intention. The evidence is well manifested in the Defendant’s Record of Interviews(ROI) that the Defendant was enraged with the victim since the victim was damaging her reputation the previous day through a song sung in their Enga dialect. The Defendant states in her ROI that she went into the victim’s resident and hit her. At this stage the object used to inflict injury on the victim is immaterial as I am satisfied that there is evidence to demonstrate a predetermined and well calculated aim and purpose for an act which the Defendant subsequently achieved. 
 
Moreover, Section 94B(1) of the District court Act gives the court powers to commit a person for trial without contemplation of the evidence. This means that even if some aspects of the evidence are disputed the court may commit a Defendant to trial without evidence. However, in the current case I have gone through all the evidence in the Police file and satisfied that there is evidence supporting each elements of the offence to warrant a committal. 
 
94B. COMMITTAL FOR TRIAL WITHOUT CONSIDERATION OF THE EVIDENCE.
(1) Subject to Subsection (2), a Court inquiring into an offence may, if it is satisfied that all the evidence, whether for the prosecution or the defence, consists of written statements, with or without exhibits, tendered to the Court after service in accordance with Section 94, commit the defendant for trial for the offence without consideration of the contents of the statements.
(2) Committal for trial in accordance with Subsection (1) shall not occur where–
(a) the defendant or one of the defendants does not have legal representation; or
(b) the legal representative of the defendant or one of the defendants, as the case may be, requests the Court to consider a submission that the statements referred to in Subsection (1) do not disclose sufficient evidence to put the defendant on trial for the offence.

Examination of Evidence in the Police File

17. Prosecution Case-

(i)  Prosecution submits for the court to consider the Police Hand Up brief. Prosecution say that the Defendant stabbed the victim and all evidence in the police file supports their case. I went through all the evidence in the file including the victim, Defendant’s record of interview, Defendant’s confessional statement, the information, statement of facts, the witness statements, exhibits, Police investigators and medical reports.

ii)  Defendant’s Record of Interview (ROI) and confessional statements were carefully considered by the court. Both the Defendant’s confessional statement and ROI demonstrates that the Defendant was in some sort of a battle with the victim after the victim provoked the Defendant but the issue in contest is whether the Defendant used a kitchen knife to stab the victim or the victim sustained the injuries from something else?  For the purpose of this court, I am satisfied that there is evidence of fighting between the Defendant and the victim and whether the Defendant used a knife or something else to stab the victim is an issue for the trial court to decide.

iii)The Police Hand Up brief shows witness statements form Theresa Jack, Masolon Ale, Jack Kaipo and Mike Ambrose. Nevertheless, all statements are written in english language and the issues of whether all the witness wrote, read and understood their own statements before signing is not something for this court to decide. The court at this point in time is only interested to see that there is evidence in the form of witness statement but other issues of trustworthiness of the witness statements could be raised at the trial court.

Lastly, the police file contains medical report and copy of exhibits. On the face of it there is evidence matching the offence but the issue of whether or not the exhibits and the medical reports match the offence in contest is not something for this court to discuss.  

Evaluation

Defense raised some strong arguments on the issues of evidence itself and the elements of the offence. Nonetheless, it is this courts view that there is sufficient evidence in the Police Hand Up brief to commit the Defendant to stand trial in the National court. Evidence in the Police file supports the charge of attempted murder and therefore the Defendant is committed. 

A Defendant cannot be committed if there is inadequate evidence covering the elements of the offence. The case of State v Bernard [2010] PGNC 231; N4538 (25 June 2010) launches that even if there are evidence covering the elements of the offence, the evidence must not be weak since it will not make a case against the Defendant on evidence. The evidence provided in the Police Hand Up Brief by the prosecution must demonstrate a strong case against the Defendant. Thus, is the evidence contained in the police file establishes a strong case against the Defendant? It is this courts view that there is prima facie evidence against the Defendant.

18.  There is sufficient prima facie evidence on the elements of the charge of attempted murder pursuant to Section 304(a) of the Criminal Code 1974, Chapter 262.

CONCLUSION

19. I have considered the Defense and Prosecutions submissions on the issue of evidence and assessed both of them conforming to the laws and I find that there is sufficient evidence to progress a prima facie case to commit the Defendant for the charge of Attempted Murder under Section304 (a) of the Criminal Code 

ORDERS

20. Defendant is Committed.

Public Solicitors			For the defendant
Police Prosecutor			For the State