Yalamu v Ong [2009] PGDC 106; DC973 (26 October 2009)

DC973

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

COM 206 207, 114 of 2009

BETWEEN:

STEVEN YALAMU
Informant

AND:

EMMANUEL ONG
Defendant

Madang: E Wilmot

2009: 26 OCTOBER 2009

CRIMINAL - hand up brief – Accused is charged with the following; one count wilful murder contrary to Section 299(1); Attempted Murder Contrary To Section 304(a)(b); Unlawfully Destroys Urging contrary to Section 444(1).

Question as to sufficiency of evidence to commit Accused to stand trial for the charges mention.

Cases Cited
List Cases Chronologically

References
List Legislation In Alphabetical Order

Counsel
Sgt Patrick Nanao, for the Informant
Agnes Meten (Public Solicitors) for the Accused
02 December 2005
E Wilmot DCM:

Introduction:

1. The Accused Emmanuel Ong has been charged with three counts stated as the following; one count wilful murder contrary to Section 299(1); Attempted Murder Contrary To Section 304(a)(b); One Count Of Unlawfully Destroys Urging, ETC., to contrary to Section 444(1)(2);
   

Brief Facts:

2. It is alleged that on the afternoon of 28 February 2009 between 400 and 500 pm a fight broke out at four mile market between The Accused Keith Mal, Lotivi Mal, Seth Mal, Onen Mal, Gilbert Elia and another person Mathew Sakel.
   
3. It is alleged that the Accused, Keith Mal, Lotivi Mal, Seth Mal, Onen Mal, Gilbert Elia were drunk at the time and approached Mathew Sakel and surrounded him inside four mile market swore and abused him using abusive words.
   
4. It is alleged that Keith Mal slapped Mathew Sakel and told him to go and bring his people so they would fight.
   
5. When one of Mathew Sakel’s friends tried to intervene and stopped the fight Keith Mal turned and assaulted him. The Accused and other persons namely Keith Mal, Lotivi Mal, Seth Mal, Onen Mal, Gilbert Elia fought off anyone who tried to intervene to stop the fight. There they chased Mathew Sakel and those who tried to stop the fight out of the market. It is alleged that at this time Gilbert Elia stabbed an unknown person from Gum, but that person ran away.
   
6. At this time the Accused and his accomplices; Keith Mal, Lotivi Mal, Seth Mal, Onen Mal Gilbert Elia and few others who were drunk started assaulting innocent bystanders as they proceeded to the four mile junction.
   
7. On their way to the four mile junction they assaulted one Sogi martin. Lotivi Mal got a dried coconut stalk and hit Mrs Martin on the back and slapped her on her face and spit on her face. They also confronted Jacklyn Sakel and accused her husband of using sorcery to kill him. Keith Mal insulted her and accused her husband of sorcery and threatens to kill her husband, Kelly Sakel.
   
8. On arriving at the four mile junction they saw the deceased Daga Nanas and Kelly Sakel and some boys from the village at a small market place near the road. The accused and his accomplices Keith Mal, Lotivi Mal, Seth Mal, Onen Mal, and Gilbert Elia confronted the deceased and Kelly Sakel and some boys.
   
9. An argument started with the Accused and his accomplices Keith Mal, Lotivi Mal, Seth Mal, Onen Mal, and Gilbert Elia inciting them to fight.
   
10. It is alleged that at this time Kelly told his accomplices to put down their weapons and fight with their bare hands. The Accused and his accomplices refused to put their weapons down. Keith Mal is alleged to have said to Kelly Sakel “bipo mipela bin katim yu tasol nau bai mipela salim yu go long mok.
    
11. The decease was however trying to calm the situation down, but his pleas fell on deaf ears.
    
12. It is alleged that while this was going on the Accused mother arrived in her green ford utility registration LAW 664 and stopped on the road. She then drove up the hill to where the road side market was, where the arguments was transpiring, in an attempt to run over some boys who were with the deceased and Kelly Sakel.
    
13. It is alleged that from there the Accused mother gave the verbal order, shouting “Kilim ol, kilim ol.”
    
14. When accused and his accomplices heard the command they split into two groups and attached Kelly Sakel and the deceased while the accused watched.
    
15. During this fight The accused and his accomplices Gilbert Elia armed with a US knife, Onen Mal armed with a piece of timber, and several other armed with sticks stones slingshots attacked Kelly seriously injuring him. He fell unconscious to the ground.
    
16. While he was on the ground Gilbert Elia tried to stab him on the ground but a small boy kicked Elia on the elbow resulting in the knife falling to the ground. The boy retrieved the knife. It was later given to the Police.
    
17. In the other group allegedly led by the Accused, Keith Mal Lotivi Mal and other attacked the deceased. During their attack on the deceased the Accused armed with a three corner iron hit the deceased on his mouth causing the deceased to fall to the ground. While the deceased was lying on the ground the Accused hit the deceased again on the face. The deceased was lying face up with his mouth open. Keith Mal then got a US knife and thrust the knife into the deceased open mouth three times. On the third time Keith is alleged to have twisted the knife in the deceased mouth causing the knife to cut and smash the deceased tongue, teeth and flesh.
    
18. It is alleged the deceased lay dead on the ground Lotivi Mal got a bush knife and chopped the deceased on the head while Seth Mal used a sling shot to shot the deceased in the eye. Onen Mal then got a piece of shade tree and hit the deceased again this time on the stomach. This caused heavy blood to pour out of the deceased mouth.
    
19. While the two groups were attacking, it is alleged that another of the accused accomplices Moses Mal armed with a pistol was pointing and threaten to shoot, while Seth Mal Joraia Sangeng, Steven Kolau Anong Sangeng and Onen Mal armed with sticks slingshots and stones attacked the other boys preventing them to come to the aid of the deceased and Kelly Sakel.
    
20. As a result Daga Nanas was killed and Kelly was seriously injured.
    
21. After this his accomplices ran to the road. The accused was there, the Accused mother reversed her car onto the road picked up the accused and his accomplices and drove to Talim.
    
22. In Talim the accused and his accomplise on the verbally order from the accused mother the accused and his accomplices to burn down the deceased house and destroy his properties.
    
23. Lotivi Mal was seen smashing the windscreens of two cars belonging to the deceased that were parked under his house. They then set the deceased tool the Accused on fire.
    
24. Seth Mal broke into another house belonging to Diane Kununga and searched the house. On their return the accomplices went back to the vehicle and the accused drove them off.
    
25. The alleged murder of the deceased was reported to the Police by the relatives of the deceased.
    
26. On 5th May 2009 at 600pm the Police arrested the Accused at Madang lodge car park as he was about to drive out. He was detained at Jomba. The suspect vehicle was also detained for forensic examination and photographing.
    
27. The vehicle never got to be forensic examination nor photographed. It is alleged that while being locked up at Jomba the accused came with a spare key and removed the car from impound.
    
28. On 11 March 2009 only 8 of the 18 suspects were handed in by their counsel Thomas Elisa. The accused did not turn up at the time.
    
29. On 8 may 2009 through his then lawyer Thomas Elisa an interview with the organised. This did not eventuate. The Accused was questioned on the 25 of May 2009, this was suspended at 12 pm. it resumed after lunch but on the request of the accused it was put off to the next day. The interview resumed at 140pm the next day and suspended again at 300pm. on 27 may no interview was conducted.
    
30. On 10 June 2009 at 144pm the interview resumed, during the whole interview process the Accused maintained his innocence. The Accused was formally arrested on 9 June 2009 at 215om.
    

ISSUE:

31. Whether there is sufficient evidence to put the Accused on trial for the offences to which the Accused is charged.
    

THE LAW:

Section 299 WILFUL MURDER of the code states:

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

Section 304 ATTEMPTED MURDER, ETC of the code states

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.

Penalty: Subject to Section 19, imprisonment for life.

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.

(2) If an offence against Subsection (1) is committed by night, the offender is liable to imprisonment for a term not exceeding three years.

Section 7. PRINCIPAL OFFENDERS of the code states:

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:–

(a) every person who actually does the act or makes the omission that constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence.

(2) In Subsection (1)(d), the person may be charged with–

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is–

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment,

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.

FUNCTIONS OF THE COMMITTAL COURT

32. The committal proceeding is not intended to determine the innocence or the guilt of a Accused and cannot result in an acquittal: SCR No. 34 of 2005 – Review Pursuant to the Constitution Section 155(20(b) the Application of Herman Leahy.
    
33. The question that is posed in committal process is whether or not a prima facie case is established against the Accused. In other words it is the strength of the evidence put forward by the prosecution (Bukoya -v- State SC 887 (17 October 2007).
    
34. The standard of proof in committal proceedings is stated in Regina –v- McEachern [1967-68] PNGLR 48 (24 May 1967)where it held:
    

To decide that the evidence offered by the prosecution in committal proceedings is sufficient to put the Accused to trial ...... the court has only to form a bona fide opinion that there is sufficient prima facie case against the Accused.

35. This measure of this standard is much less then the standard in trial where it must be proof beyond a reasonable doubt.
    

CONSIDERATION OF COURT

36. In order to consider whether there is a prima facie case against the accused this court must weight the elements of the charges against the facts on this case. And this can only be done by looking at the set of facts and the charge.
    
37. on the count of wilful murder the relevant facts are:
    

Facts

38. It is alleged that from there the Accused mother gave the verbal order, shouting "Kilim ol, kilim ol."
    
39. When the accused and his accomplices heard the command they split into two groups and attached Kelly Sakel and the deceased while the accused mother watched.
    
40. On the count of murder, it is alleged the other group allegedly led by the accused, Keith Mal Lotivi Mal and others attacked the deceased. During their attack on the deceased, the accused Emmanuel Ong armed with a three corner iron hit the deceased on his mouth causing the deceased to fall to the ground. While the deceased was lying on the ground Accused hit the deceased again on the face. The deceased was lying face up with his mouth open. Keith Mal then got a US knife and thrust the knife into the deceased open mouth three times. On the third time Keith is alleged to have twisted the knife in the deceased mouth causing the knife to cut and smash the deceased tongue, teeth and flesh.
    
41. It is alleged the deceased lay dead on the ground Lotivi Mal got a bush knife and chopped the deceased on the head while Seth Mal used a sling shot to shot the deceased in the eye. Onen Mal then got a piece of shade tree and hit the deceased again this time on the stomach. This caused heavy blood to pour out of the deceased mouth.
    
    • On the information of the charge of willful Murder the elements area person,
      
    • who unlawfully kills another person, intending to cause his death,
      
    • or that of some other person,
      
    • is guilty of wilful murder.
      
42. It is allege that the Accused committed willful murder on one Daga nanas. The evidence provided by the witnesses show the Accused did actually take part in the beating of the deceased that lead to his death.
    

Evidence

43. Eye witness statements of people there at the night in question clearly identify the accused and his accomplices. the eye witness accounts Ludwina Daga; Murphy Daga penile Uta;; Mazon Matarab; Gill Sakel to name a few all saw the accused and his accomplishes kill Daga Nanas. And the reaction of the accused and accomplices after the order was given.
    
44. They saw what the accused and accomplices did to one Daga Namas and what led to his death.
    
45. On this the court find there is prima facie evidence on this count.
    
46. On the count of Attempted Murder the relevant facts are During this fight Gilbert Elia armed with a US knife, Onen Mal armed with a piece of timber, and several other armed with sticks stones slingshots attacked Kelly seriously injuring him. He fell unconscious to the ground.
    
47. While he was on the ground Gilbert Elia tried to stab him on the ground but Penile Uta kicked Elia on the elbow resulting in the knife falling to the ground. Penile Uta retrieved the knife and later gave it to the Police.
    
48. Elements are.
    
    • 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.
  

49. It is allege that the Accused committed attempted murder on one Kelly Sakel. The evidence provided by the witnesses show the Accused did not actually take part in the beating and to stab him on the ground. However with the invocation of Section 7 of the code this court finds that the Accused did not take steps to prevent the beating of Kelly Sakel. In fact it is alleged the Accused took part in the brawl.
    

Evidence

50. Eye witness statements of people there at the night in question clearly identify the accused mother’s vehicle and her command to the accused and his accomplices. the eye witness accounts Kelly Sakel; Jacklyn Sakel; Penile Uta; Nellie Uta; Winton Bel; Mazon Matarab; Gill Sakel to name a few all saw the accused and his accomplishes to kill. And the reaction of the accused and his accomplices after the order was given.
    
51. The Court by invoking Section 7 of the code this court finds that the Accused did not take steps to prevent the beating of Kelly Sakel. In fact it is alleged the Accused took part in the whole incident.
    
52. They saw what the accused and his accomplices did to one Kelly Sakel.
    
53. On this the court find there is prima facie evidence on this count.
    
54. On the count of 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.

(2) If an offence against Subsection (1) is committed by night, the offender is liable to imprisonment for a term not exceeding three years.

55. The relevant facts are at the deceased house Lotivi Mal was seen smashing the windscreens of two cars belonging to the deceased that were parked under his house. They then set the deceased tool shed fire. The fire was later put out.
    
56. the law says A person who wilfully and unlawfully destroys or damages any property is guilty of an offence that, unless otherwise stated, is a misdemeanour.
    
57. The accused again did not take part in the destruction of the deceased cars but the Accused did give the command and reading this charge with Section 7 of the code it implies the Accused did do the act.
    
58. The elements of the charge:
    
    • A person
      
    • wilfully and unlawfully destroys or damages any property.
      

Evidence

59. Eye witness statements of people there at the night in question clearly identify the accused and his accomplices. The eye witness accounts Kami Musi; Daine Kununga; all heard the accused mother order the accused and his accomplices act to burn the tool shed and destroy the deceased properties.
    
60. By invoking Section 7 of the code this court finds that the Accused did not take steps to prevent the burning of the tool shed, but in fact he conspired with his accomplices to commit the destruction.
    
61. On this the court find there is prima facie evidence on this count.
    

CONSIDERATION OF WITNESS STATEMENTS:

62. The case relies on the witness statements of 42 witness statement. This court has gone through and studied each statement. It has only mentioned a few in its consideration to make a finding. It has weight the statement and finds that in all statements provided there is corroboration by other witnesses.
    

THIS COURTS FINDINGS:

63. by invoking section 7 of the code on some of the offences the accused is charged with generally happens when the accused has had a hand in committing the offence but did not actually take part in committing of the offence.
    
64. In all of these offences it is alleged he and his accomplices’ acted on these commands. the facts that he did not act or omitted to act to quell or calm the situation only goes to show his intent to commit those offences.
    
65. This court is of the view that even if he did not strike the fatal blow so to speak, he fail to act in a manner as to insolate himself from the incidents.
    
66. This court finds that there is sufficient evidence or prima facie evidence on all.
    
67. The standard to which this court has applied is that below the standard in a criminal trial on each of the charges laid. This court has considered the evidence in its totality and commits the accused to stand trial at the National court.
    
68. the court will now administer section 96 of the district court act.
    

E Wilmot (DCM)

Patrick Nanao for the Informant
Agnes Meten (Public Solicitors Lawyers) for the Accused