Kunyaben v Selan [2009] PGDC 11; DC870 (23 February 2009)

DC870

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

COM 325-340 of 08
COM 60 of 09

BETWEEN

CHRIS KUNYABEN
Informant

AND

BOBBY SELAN
Defendant

Madang: J Kaumi
2009: 23 February

CRIMINAL: Hand – up brief – defendant charged with a total of sixteen charges, fourteen counts of kidnapping for ransom, s 354 (1) (a) (i) (ii) CCA, one count of sexual penetration, s 347 (1) (a) CCA, one count of Armed Robbery, s 386 (1) (2) (a) (b) CCA. Defence no case to answer submission, pursuant to section 95(2) of the District Court’s Act under consideration as to answer: whether evidences 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
State vs. Paul Kundi Rape [1976] PNGLR 96
State vs. Titeva Fineko [1978] PNGLR 62
The State vs. Tom Morris [1981] PNGLR 493
State vs. Roka Pep (No 2] [1983] PNGLR 287

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. Kennedy Pais, for the defendant

RULING ON DEFENCE NO CASE TO ANSWER SUBMISSION.

23rd FEBRUARY 2009.

1. KAUMI, DCM: Bobby Selan, the defendant in this matter has been charged with a total of seventeen charges.

CHARGES

(A). Fourteen (14) counts of kidnapping for ransom pursuant to s. 354 (i) (a) (i) (ii) of the Criminal Code Act;

(B). One count of sexual penetration pursuant to s. 347 of the CCA, cht no.262;

(C). One count of armed robbery pursuant to s. 386 (i) (2) (a) (b) of the CCA; and

(D). One count of being an accessory after the fact pursuant to s. 519 of the CCA.

SUMMARY OF FACTS

3. The robbery of the Bank Of South Pacific Ltd, Madang, on the 5th of July, was a culmination of cunning, planning and total disrespect for the rule of law.

4. It involved the movement of four perpetrators thru four provinces as evidenced by the large number of witnesses contained in the Police Hand-up brief.

5. The allegations are basically from the 24th June 2008 to the 6th July 2008 the defendant associated himself with the prime suspect, William Kapis and arranged and accommodated them at his residence in Lae City until the 6th Sunday July 2008, a period of close to two (2) weeks.

6. Further that prior to the departure of the prime suspect to Madang, on the night of Thursday 3rd July 2008 at about 1:00am, the defendant’s house was used as a final meeting place where firearms and ammunitions were shared.

NO CASE TO ANSWER SUBMISSION

7. The defence has filed a no case to answer submission that is before this court for ruling. The crux of the defence’s submission is that in relation to all charges faced by the defendant: -

(a). Kidnapping for ransom – no evidence on six elements;

(b). Sexual penetration – no evidence of defendant being in the presence of Kapis at the material time;

(c). Robbery – no identification of defendant at material time, that the evidence can’t lawfully convict the defendant by any tribunal;

(d). Accessories after the fact – that the evidence of co – accused cannot be used against the defendant. That there is no evidence that the defendant received any monies being proceeds of the crime.

8. The summation of the above is that at the close of the prosecution’s case when there us no evidence to prove the essential elements of an offence the case must be stopped and accused acquitted.

9. Counsel relied on the authorities of the State vs. Paul Kundi Rape [1] State vs. Roka Pep (No.2) [2] to support his submission that there was insufficient evidence to prove each of the essential elements of all charges hence insufficient to commit the accused to stand trial in the National Court.

10. Furthermore that even if there is a prima facie case to answer, this court has the discretion to stop the case from proceeding and further because the evidence was so lacking in weight and reliability, that no reasonable tribunal could safely convict on it.

11. The main issue is whether or not the evidence in the hand- up brief is sufficient for the defendant to be committed for trial in the National Court.

12. The authors of the Magistrates Manual in Papua New Guinea [3] state that, "A committal proceedings is an investigation into the strength of the case being mounted by the prosecution, and it is not an act of adjudication."

13. The standard proof in committal proceedings is set out in Regina vs. McEachern [4] "To decide that the evidence offered by the prosecution in committal proceedings is sufficient to put the defendant upon his trial...the court has only to form a bona fide opinion that there is a sufficient prima facie case against the defendant."

14. The authors of the Magistrates Manual [5] in Papua New Guinea also state "that the measure of sufficiency is less than the trial standard of proof beyond reasonable doubt."

15. Now having alluded to these sufficiency authorities, I now address Counsel’s submission on the evidence on elements of various charges.

16. At the outset I would agree with counsel that there is no evidence of the defendant having been one of the actual perpetrators of the kidnaps, sexual penetration or robbery to the extent that none of the victims identify him at the material time.

17. However there is evidence of the defendant and his wife feeding and accommodating Kapis boat skipper and other accomplices for a period of close to two (2) weeks.

18. Further that, on Thursday 3rd July 2008 at night time inside the defendant’s house, bullets and pistols were distributed amongst the main suspect, Kapis and his accomplices.

19. There is also evidence of the defendant telling the skipper of the boat and other accomplices of Kapis on Friday 4th July 2008 that, "Em Orait ol lain ya kam stratim yupela na yupela ken go."

20. This is prima facie evidence that the defendant had prior knowledge of the planned robbery and so assisted Kapis by feeding and accommodating his boat skipper and crew and an older man, as they were his get away crew by boat and thereby escaping his detection and punishment.

21. This evidence is circumstantial in nature but good and were accepted by a trial court in a criminal case can secure a conviction against the defendant.

22. In State vs. Tom Morris [6] Miles. J stated:

"In a criminal case where the evidence is wholly circumstantial, the court must acquit unless the facts proved in evidence are inconsistent with any reasonable hypothesises other than the guilt of the defendant."

23. Counsel submitted that evidence of co-accused cannot be used in Papua New Guinea but the case of State vs. Titeva Fineko [7], provides otherwise that, "In PNG, the law permits conviction on the evidence of an accomplice." Therefore, statements of co-accused of the defendant are good evidence that can be used to convict him.

24. Therefore, I find that the actions of the defendant provide this court with rational inference that leads me to conclude that he knew of the details for the plan and assisted, facilitated, encouraged, abetted and aided the prime suspects in the roles they played which led to the commission o f these offences.

25. Hence I find that there is sufficient evidence to commit the defendant to trial in the National Court on: -

a. 14 x counts of Kidnapping;

b. 1 x count of Robbery;

c. 1 x Accessory after the fact.

26. I am however inclined to agree with counsel that evidence against the defendant on the charge of sexual penetration is not sufficient to commit.

27. My inclination is that in the circumstances the return trip to Sisiak to Jennifer Passingan’s house was to locate the key to be used to allow Kapis and his accomplice the Robbery and not to sexually penetrate Jennifer Passingan against her will

28. The actions of Kapis at the material time of sexual penetration cannot include the defendant within the ambit of Section 7 of the CCA. On the basis I find the evidence needed to prove sexual penetration insufficient and accordingly the defendant is discharged and the information charging him is dismissed.

29. Now I administer Section 96 to the defendant.

_____________________

Police Prosecution for the Informant
Nalawaku Lawyers for the Defendant

_______________
1. [1976] PNGLR 96
2. [1983] PNGLR 287
3. Paragraph. 11.2.3 Hill E R & Powles; Magistrates Manual o Papua New Guinea, Lawbook Co.[2001], Sydney, NSW 2009.
4. [1967-68] PNGLR 48
5. Paragraph.11.2.3 (supra note 3)
6. [1981] PNGLR 493
7. [1978] PNGLR 262