Imbri v Kalana [2009] PGDC 108; DC975 (26 October 2009)

DC975

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

COM 244 - 247 of 2009

BETWEEN:

JOHN IMBRI
Informant

AND:

REX KALANA
1st Defendant

AND:

FRED TAMANG
2nd Defendant

AND:

VINANSIUS KOMEX
3rd Defendant

AND:

SAMUEL TOMEK
4th Defendant

Madang: E Wilmot

2009: 26 OCTOBER 2009

CRIMINAL - hand up brief – four Accused charged with the following; one count wilful murder contrary to Section 299(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

01 December 2009

E Wilmot DCM:

Introduction:

1. The four Accused Rex Kalana, Fred Tamang, Vinunsius Komex and Samuel Topek are each charged jointly on one count of wilful murder contrary to Section 299(1) of the Criminal Code Act of Papua New Guinea
   

Brief Facts:

2. It is alleged that on Sunday the 14th of June 2009 at about 11:00am the accused and his cocacused, Fred Tamang, Vinunsius Komex and Samuel Topek were at the Asuramba Care Centre.
   
3. They had chased one Frieda Silai away and kidnapped her three years old baby Kelema Chris.
   
4. It is alleged they took the child Kekema to Rarin Village. There the defendants and his three accomplices killed the girl and beheaded her.
   
5. it is alleged that after beheading the child they put the child head in a copra sack and buried it some 52 meters from the edge of the village.
   
6. the matter was reported to the police
   
7. On investigation by the police the dug up and found a skull and some tooth.
   
8. the accused and his co-accused were arrested with the assistant of the villagers
   

ISSUE:

9. Whether there is sufficient evidence to put the Accused an d his three co accused on trial for the offence to which they have been 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.

FUNCTIONS OF THE COMMITTAL COURT

10. 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.
    
11. 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).
    
12. 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.

13. 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

14. 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.
    
15. on the count of wilful murder the relevant facts are:
    

Facts

16. It is alleged that accused and his co-accused, Fred Tamang, Vinunsius Komex and Samuel Topek were at the Asuramba Care Centre.
    
17. They had chased one Frieda Silai away and kidnapped her three years old baby Kelema Chris.
    
18. It is alleged they took the child Kekma to Rarin Village. There the defendants and his three accomplices killed the girl and beheaded her.
    
19. It is alleged that after beheading the child they put the child head in a copra sack and buried it some 52 meters from the edge of the village.
    
20. 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.
      
21. It is allege that the Accused and his co accused kidnapped her three year old baby Kelema Chris and took the child Kekma to Rarin Village. There the defendants and his three accomplices killed the girl and beheaded her.
    
22. It is alleged that after beheading the child they put the child head in a copra sack and buried it some 52 meters from the edge of the village.
    

Evidence

23. There is no direct evidence as to the willful murder of the child the mother states she fled and left her child. there the four accused took the child.
    
24. All four accused admit that the child died. But they did not kill her. They claim the child died when they shouted very load.
    
25. The head was found separate from the body in a copra sack. The four accused did not report the death, they concealed it.
    
26. On this the court find there is prima facie evidence on this count.
    

CONSIDERATION OF WITNESS STATEMENTS:

27. The court has read the admission of the four accused that the child died in their care, when the kidnapped her.
    

THIS COURTS FINDINGS:

28. This court finds that there is sufficient evidence or prima facie evidence on all but one offence the accused is charged with.
    
29. 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.
    
30. The court will now administer section 96 of the district court act.
    

E Wilmot (DCM)

Patrick Nanao for the Informant
Accused in person