DC6090

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION

COM NO 1667-1669 OF 2019
CB NO 8415 OF 2019

BETWEEN:

THE POLICE
[Informant]

AND:

NOEL LEVI JUNIOR
[Defendant]

Waigani: Paul Puri Nii

25 August 2021

COMMITTAL PROCEEDINGS: Charges-Damaged Property-Section 444(1)-Armed Robbery-Section 386(1)(2)(a)(b) and Abuse of Office-Section 92–of the Criminal Code Act 1974, Chapter No. 262. Consideration of police evidence-Contents of the Police file must institute prima facie evidence meeting all elements of the charges to commit the Defendant.

PRACTISE AND PROCEDURE: Limited authority to assess sufficiency of evidence –Important elements of allegations to draw a prima facie case- Legal basis of the charges– Defendant present at the incident scene–accuse confessed he was present –there is no evidence of accused’s involved in armed robbery- there is no evidence of damaged property- No evidence of abuse of office - Evidence is insufficient to commit the Defendant for the charge of abuse of office–Allegations are dismissed.

PNG Cases cited:

Police v Kimisopa [2021] PGDC 76; DC6031
Police v Koka [2021] PGDC 53
Yarume v. Eugua[1996] PNGNC 24; N1476
State v Luma[2021] PGNC 31; N8798
Police v Medako [2021] PGDC 54; DC6011
Akia v Francis [2016] PGNC 335; N6555

Overseas cases cited: 
Nil

REFERENCE

Legislation
Constitution
Criminal Code Act 1974, [Chapter 262]
District Court Act 1963, Chapter 40
Liquor Licensing Act 1963

Counsel
Police Prosecutor: 	Sgt Joseph Sangam			For the Informant
Public Solicitor:	Friedrich Kirriwom				For the Defendant

DECISSION ON COMMITTAL

25th August 2021

INTRODUCTION

NII, P.Paul Magistrate. Court’s ruling under Section 95 of the District Court Act 1963. The ruling is made after Police hand-up-brief served on the court on 15th July 2020 and Defendant’s submission filed on 25th February 2021, are prudently considered by the court. The ruling is on the sufficiency of evidence. 

CHARGE
	
1.	Defendant is charged pursuant to Section 444(1), Section 386(1)(2)(a)(b)(c) and Section 92(1) of the Criminal Code Act 1974 [Chapter No. 262].

BRIEF FACTS

2.	Police allege  on 1st April 2018, Defendant who was then a policeman looking after the Port Moresby Police station as a Police Station Commander at the rank of Inspector allegedly armed with a A1K1 Assault rifle led a group of policemen who were subordinates to his rank  allegedly conducted a raid at RMW Holdings Limited at 5 mile in NCD. It is alleged Defendant together with other policemen unlawfully entered the victim premise by discharging forearms and removing alcohols and other properties. The court was told Defendant and policemen assaulted and punched employees of the victim company. It was allege the looted items were subsequently loaded onto 13 awaiting vehicles and taken into different parts of NCD by some allege members of police including the Defendant. On 25th September 2019, Defendant was subsequently arrested and charged under the three (3) allegations respectively for his purported role.  

ISSUE

3.	The question is whether evidence in the police file is sufficient to make a prima facie case against the Defendant for the purported allegations against him? 

THE LAW 

4.	I have the authority under Section 95 of the District Court Act to assess evidence to ascertain whether there is sufficient evidence to make a case against the Defendant or to dismiss the information under enquiry for insufficiency of evidence. I do not have powers to test evidence and establish its reliability and credibility but I have powers to weigh evidence and determine its sufficiency. I am reproducing this aspect of the law below:

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.

CHARGES
	
5.	Accused is charged under three (3) offences. All these charges are indictable offences under the Criminal Code Act 1974, [Chapter 262]. I will regurgitate the Law below:

1.	Armed Robbery-Section 386(1)(2)(b)(b)(c)

386.	The offence of robbery.

(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against Subsection (1)—

(a) is armed with a dangerous or offensive weapon or instrument; or
(b) is in company with one or more other persons; or
(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person, he is liable to be sentenced to death.

2.	Malicious Injuries-Section 444(1)

444.	Malicious injuries in general: punishment in special cases.

(1)	A person who wilfully and unlawfully destroys or damages any property is guilty of an offence that, unless otherwise stated, is a misdemeanour.
Penalty: If no other punishment is provided by this section—imprisonment for a term not exceeding two years.

3.	Abuse of Office-Section 92(1)

92.	Abuse of office.

(1)	A person employed in the Public Service who, in abuse of the authority of his office does, or directs to be done, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour.
Penalty:	Subject to Subsection (2), imprisonment for a term not exceeding two years.

(2)	If an act prohibited by Subsection (1) is done, or directed to be done, as the case may be, for purposes of gain, the offender is liable to imprisonment for a term not exceeding three years.

EVIDENCE

6.	I will consider evidence in the Police file and make a ruling on committal. In doing so, I will sensibly asses all evidence to make sure it pleases the elements of the three (3) allegations against the Defendant. Evidence plays an imperative part in the organization of criminal justice. It is well stated in Police v Koka [2021] PGDC 53; DC6010, that an accusation shall only be established through evidence because it will confirm whether there is merit in the allegation against the accused. The court in the exercise of its committal jurisdiction will run thought each statements in the police file and asses its strength to ratify there is sufficient or insufficient evidence to commit the Defendant.

ELEMENTS OF THE CHARGES

7.	In Police v Kimisopa [2021] PGDC 76; DC6031, the court has specified the prominence of police evidence meeting the elements of  respective allegations by making allusion to an earlier ruling in Police v Medako [2021] PGDC 54; DC6011. The court ruled police evidence must demonstrate to the satisfaction of the court that all elements are met. For the purpose of my consideration, I will unmistakably state the elements of the three (3) charges as below:

a)	Armed Robbery-Section 386(1)(2)(a)(b)(c)

1.	The Defendant,
2.	Stole Property belong to another person
3.	Whilst armed with a dangerous weapon
4.	Whilst in the company of others
5.	Uses or threatens to use actual violence

b)	Willful damage –Section 444(1)

1.	The Defendant
2.	Willfully and Unlawfully,
3.	Destroys or damages any property
4.	Belonging to another person

c)	Abuse of officer-Section 92(1)
	
1.	A person,
2.	Employed in the public Service
3.	Abuses the authority of his office
4.	Does or directs to be done
5.	An arbitrary act prejudicial to the right of another 

Defense Case

8.	I have shortened the Defendant’s case in one paragraph with the contested issues. Defendant through his Lawyer Friedrick Kirriwom through his submission filed on 25th February 2021, argued Prosecution fails to ratify that Defendant committed the three (3) allegations. Defendant submits there is no evidence material linking the Defendant to the allegation that he committed the acts subject of this court’s consideration. Defendant also submits Police have not identified the Defendant as the one who was alleged to have committed the offences. Defense argues the evidence in the police file is lacking to establish the charges against the Defendant. Defendant also argues he did not involve in the allegation of Armed Robbery and did not damage property belonging to the victim as allege by Police. In brief this is the Defendant’s case.

Prosecution Case

9.	Prosecution case is in the form of Police statements and photo exhibits. There are total of twelve(12) witness statements. The statement of Anthon Make is about information he received regarding the purported looting and seizure of alcohols on his property. Statement of George Aiok ostensibly states he was present at the time of allegation against the Defendant and witnessed everything. Andrew Igiman, Cecilla Henry, Tina Kupo, Grace Koel, Fitler Frank and Esther Frank are employees of the victim company. Their statements designates they were in the victim company and property when the alleged incident took place. The other witness statements of Charles Winuan, Petwood Mazuc and Alfred Kambae are policemen involved in the police investigation against the Defendant including the arresting officer and corroborator. 

CONSIDERATION OF EVIDENCE

10.	I have considered the evidence provide by Police and Defense submission. The statement of witness Anthon Make, the General Manager of the victim company says he spotted the victim while he arrived at the scene after being informed of the incident by witness George Aiok. He says he saw the Defendant wearing a cut jean and thongs while other police men were profoundly intoxicated. This witness says he saw the Defendant with a police issued high-powered rifle at the time of allegation. Statement of witness George Aiyok says he saw the Defendant with another policeman appears to be drunk and had with him a 7-pound sledge hammer. This witness says the Defendant ordered other policemen to get all the items in the liquor shop. The statement of Andrew Igima says he recognized the Defendant as a policeman with town police station firing gun shots. The other witness statements did not identify the defendants but say they saw policemen in uniform with firearms assaulted employees of the victim company by forcing them to submit to commands from police.

11.	I will deal with all the three (3) charges on its own merit and evidence. First, I will consider the charge of Armed Robbery under Section 386(1)(2)(a)(b)(c) of the CCA. I have prudently studied all the witness statements and settles Defendant was identified and recognized by witness Anthon Make, George Aiok and Andrew Igima as was present at the time of allegation. I am also satisfied Defendant was wearing a shot-cut jean with a tongs and had a police issued rifle as these evidence are consistent with the statements of Anthon Make, George Aiok and Andrew Igima. Nonetheless, none of these witness statements say Defendant looted the victim property, loaded the alcohols onto the police vehicle and assaulted any of the police witness. There are evidences of allege police vandalizing, ransacking and traumatizing state witnesses but none of them have carefully unites the Defendant to the allegations. I am satisfied Defendant is a police man at the scene where the allegation purportedly took place but that does not mean Defendant can be held responsible for the looting and ransacking done by other policemen. The evidence of Armed Robbery must be direct. I am satisfied the Defendant was identified as he was present at the scene but there is no evidence that he stole property belong to another person. I have evidence to believe Defendant had a rifle but the procession of having the fireman is excused by law for his obligation as a police officer and hence his employment. Therefore as part of his duty, Defendant had a firearm. I also have evidence to believe Defendant was in the company of other policemen but there is no evidence that he uses threats and violence at the time of allegation. I have considered the evidence with consistent to the elements and gratify police have failed to meet all the elements of allegation of armed robbery. Moreover, the rule of Section 7 of the CCA is not applicable here due to the nature and circumstance that led to the allegation.

12.	Secondly, I will now asses the competence of evidence containing the allegation of Willful damage or damage to property under Section 444(1) of the CCA. Since none of the state witness have actually identified the Defendant as the person who willfully and unlawfully destroyed or damaged the victim’s property.   Identifying the Defendant at the location does not warrant me to say evidence in the police file has met all the elements under this allegation. Therefore, I have considered and drawn my opinion that police have not satisfied all the elements under this allegation.

13.	Lastly, is on the charge of Abuse of Office under Section 92(1) of the CCA. In order to establish this allegation, police evidence must prove beyond reasonable doubt that Defendant committed the subject offence. I have evidence to believe at the time of allegation Defendant was the Town Police station Commander. He was the superior to those worked under him for two reasons. Firstly; for the position he held and secondly; for the rank and file in the constabulary. Evidence in the police file authorizes to me Defendant was in a position of authority within the constabulary that commands respect and influence which his inferiors are compelled to obey and act. Statement of George Aiyok at paragraph 21 at page 2 says Defendant supposedly ordered other policemen to get everything in the liquor shop, which was the property of the victim company. Statement of Anthon Mark at paragraphs 12 and 13 say he saw the Defendant at the scene where other policemen were looting and harassing state witness. However, Defendant submits that his purported action is justified under Section 143 and 145 of the Liquor Licensing Act 1963. I will state these Laws below:

a)	Section 143 of LLA 

143.	Entry on licensed premises.

For the purposes of this Act, an Inspector or a commissioned officer of the Police Force may demand admittance into, and may enter into and search, any licensed premises, or any part of licensed premises, at any time by day or night, and if admittance is refused or delayed may break into the premises

b)	Section 145(3) of LLA 

145.	Possession of intoxicating liquor for illegal disposal, etc.

(3)	In a case referred to in Subsection (1), the commissioned officer of the Police   Force may, without warrant—

(a) by force and with assistants, if necessary, enter and search the vessel, vehicle, aircraft, premises or place, and anything in or on it; and
(b) seize and remove all intoxicating liquor referred to in that subsection, together with the vessels and containers containing the liquor; and—
(c) convey the liquor, vessels and containers to a safe place and, as soon as convenient, to the nearest District Court or to such place of safe-keeping as the Court appoints for the purpose.

14.	Unlike any other offences, the law treats allegations encompassing raiding of liquor shops operating on liquor license as dissimilar from the rest. To me, this is an offence where police presence on the victim premise is immune by law if it was a police sanctioned operation. Although none of the witness says Defendant had actually looted and stole money or alcohol from the victim’s company, the law under Section 143 of the LLA excused the Defendant’s actions if he was seen taking part in the allegation as alleged and if that was an official police operation. This is the law made by the legislators which I have no preferences but to interpret.
 
15.	The authority under State v Luma[2021] PGNC 31; N8798, defines ‘abuse’ as to make bad use of something or in other words, power or knowledge is dishonorably or incorrectly used and ‘authority’ as the powers to give orders in a position of authority which is the power or right to do something. 

16.	All the witness statements say there were numerous policemen involved in a purported police operation which to my indulgent subsequently twisted to be an allegation against the Defendant. If there were several policemen on the victim’s zone then I am satisfied it was a police joint operation.  However, if there was evidence of stealing or drinking alcohol form the ones stolen in the victim’s company then there must be evidence to confirm this. Witness statements say all the confiscated and looted items were allegedly loaded onto police vehicles and drove to different parts of the city. None of the witness says they saw the Defendant drove away with certain items to his home or for his own use. The authority under State v Luma is not relevant here given the environment, location and the presence of more policemen. There is evidence Defendant is a policeman but to my fulfillment he did not abuse his authority. I am also satisfied Defendant was part of the policeman at the location but he did not get anything except that he purportedly ordered policeman to get items form the victim company. Nevertheless, to my thoughtfulness that aspect of the Defendant’s professed accusation is relieved under Section 145 of the LLA. Additionally, the Defendant’s purported actions are not indiscriminate or detrimental to the rights of others because his supposed actions are defensible by the citied provisions of the law on LLA. Thus, I have assessed the evidence under this charge and conclude that evidence is insufficient.

RULING

17.	I have measured the evidence in the police file under Section 95  of the District Court Act and with consistent to the authorities in the cases of Yarume v. Eugua[1996] PNGNC 24; N1476 and Akia v Francis [2016] PGNC 335; N6555, content Police evidences is lacking in weight to achieve a prima facie sufficient evidence against the Defendant. Therefore, I find there is insufficient evidence to fulfill the elements of the charges of Armed Robbery under Section 386(1)(2)(a)(b)(c), Willful damage  under Section 444(1) and Abuse of officer under Section 92(1) of the Criminal Code Act  1974 [Chapter No. 262].

CONCLUSION

18.	I have prudently assessed all Police evidence in the Police hand-up brief served on the court dated 15th May 2020 and Defense submission filed on 25th February 2021 and satisfy myself there is no case against the Defendant as the evidence delivered is deficient to commit the Defendant.

ORDERS

19.	I consequently make the ensuing closing orders:

A.	Evidence is insufficient to commit the Defendant for the three (3) charges.

B.	The three (3) informations inaugurating the charges against the Defendant are dismissed.

C.	Defendant’s bail money is refunded forthwith.

Public Solicitor					For the defendant
Police Prosecutor					For the State