Tumpi v Gumaira [2009] PGDC 14; DC915 (23 March 2009)

DC915

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

COM 373 - 387 of 08
COM 239 of 09

BETWEEN

NOEL TUMPI
Informant

AND

JOHNNY GUMAIRA
Defendant

Madang: J Kaumi
2009: 23rd March

COMMITTAL PROCEEDINGS: Hand-up brief – Defendant charged with a total of sixteen charges, fourteen counts of kidnapping for ransom, section 354 (1)(a)(i)(ii) of the Criminal Code of PNG, one count of sexual penetration, section 347(1) (a) of the Criminal Code Act of PNG, one count of Armed Robbery, section 386(1)(2)(a)(b)(c) of the Criminal Code Act of PNG-question whether evidence 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. John Beng [1976] PNGLR 421
State vs. Yakoto Imbuni [1997] N1558
State vs. Thomas Sange and 3 others [2005] N2805

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:

Sergeant Nonao, for the Informant
Mrs. Meten, for the Defendant

Introduction

1. Kaumi, M This is a no case to answer submission by the defendant through counsel, pursuant to s. 95 of the District Court Act.

2. The defendant is charged with the following:-

A. 1 x Armed Robbery contravening s.386 (1) (2) (a) (b) of CCA

B. 1 x Sexual Penetration contravening s.347 and s.7 of CCA

C. 14 x kidnapping contravening s.354 (1) (a) (i) (ii) of CCA

BRIEF FACTS

3. This Court adopts to brief facts of Police Hand Up Brief and therefore will not repeat them but that in summary that is alleged that from the 05th to the 06th July 2008 the defendant and accomplices associated themselves with William Kapis to hold up the BSP’s manager Mr. Manovo and other bank employees and their families at ransom and detaining them over a period of time against their will and, sexually penetrating one Jenifer Passingan in the process thus enabling them to successfully rob the BSP, Madang.

4. The police in the course of their interrogation have compiled a long list of 59 witnesses and exhibits

5. The defense no case to answer submission is before the Court for ruling.

6. The defense raises two issues:

1. Whether the evidence presented discusses sufficient evidence to put the Defendant on his trial for the offences for which he is charged?

2. Whether there is sufficient evidence to substantiate the operation of section 7 (Principal Offender) under the CCA.

7. The defense refer to Court to the ruling of Cannings J in State v Thomas Sange and three others [1] in relation to the no case to Answer submission + the considerations of invoking s.7 of the CCA.

8. In PNG the role of the Committal Court is stated of the Magistrate’s Manual of PNG at paragraph 11.2.3 [2] which says "the Magistrate’s decision is a judicial act requiring that proper consideration be given to matters required by statute"

9. That the committal proceeding is an investigation into the strength of the case being mounted by the prosecution, and it is not an act of adjudication. [3]

10. The committal court is not required to weigh the evidence for its credibility, as it does not have the jurisdiction to determine the guilt of the defendant in the circumstances and it determine the guilt of the defendant in the circumstances and it can only form its mind as to whether a prima facie case from the evidence gathered does exist s.95 DCA. [4]

11. The standard of proof in committal proceedings is stated in Regina v Mc Eachern [5] where it held:

"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".

11. This measure of sufficiency is less than the trial standard of proof beyond reasonable doubt. [6]

12. Now having alluded to these underlying principles of the committal process I address the first issue.

a. Whether the evidence presented discloses sufficient evidence to put the defendant on his trial for the offences for which he is charged?

13. The Court has had the benefit only of reading the evidence of witness in the Police Hand Up brief and is grateful to counsel for her meticulous work in outlining the various witnesses’ statements and their contents.

14. Firstly the Court considers the evidence of the victims immediately before and during and after the robbery, secondly the witnesses’ statements post robbery in Lae and then the defendant’s confessional statement + record of interview.

Pre + During Robbery

14. Evidence from Mathias and Grace Manovo, Cathy Kawage Passingan, Steven Wapikwari and Paul Salumbia can be best summarized as follows:-

- They all recognized the robbers because they were all unmasked at all times

- They all recognized the robbers given it was broad light

- They all recognized the perpetrators given the close proximity to them during the robbery;

- They all recognized the robbers given the extended period of time the robbers were around them.

15. Court notes that they did not mention any names in their statements to Police but they could identify any of the robbers if they were apprehended later, Court notes that there appears on the face of the statements that there was no Police ID parade conducted.

16. Courts note that the statements of Lawrence Josephine Walep and security guards would identify the robbers if they were caught but did not name them in their statements to Police nor were any of them involved in any Police ID parade.

17. Court notes the statements of Dominic Mauva, Stephanie Yauwe, Ian Wamo, Junnet Gillival, Nancy Gumaira, Ruth Kombe and Dorcas Jamang.

18. Court notes the statements of nine Policemen directly involved in the obtaining the Confessional Statement of the Defendant and his record of Interview.

19. Court notes the contents of the confessional statements and record of interview of the Defendant

PRINCIPLES OF IDENTIFICATION

20. The Court notes Frost CJ in State v John Beng [7] "that where evidence identification is relevant, the Court should be mindful of the inherent dangers .There is no rule of law that the evidence of one witness is insufficient, nor is there any rule of law that there must be a police parade for purposes of identification nor is there any rule of law that in every case, a warning ought to be given (to the jury), it all depends upon the circumstances of the case before the court."

21. The Court notes that in State v Yakato Imbuni [8] followed John Beng. In this case three witnesses gave evidence that they saw the incident involving the killing of three which lasted 10 to 15 minutes. The attack took place in broad day light and the attackers did not cover their faces. In the circumstances Akuram J held that he could safely say that the witnesses’ identification was good and they could be believed. It was irrelevant that the witnesses were unable to name the accused in their witness statements to the Police

22. The admissibility of the confessional statements and record of Interview of the defendant as counsel as correctly pointed out on this point, this court is not and adjudicator of the weight of the evidence for its credibility as it does not have the jurisdiction to determine the guilt of the defendant in the circumstances and it can only form its mind as to whether a prima facie from the evidence gathered does exist s.95 DCA.

23. On the basis of 25 Police Witnesses complied with the Confessional statement and record of interview of the defendant the court in its assessments forms the following bona fide opinion in relation to the 1st issue raised:-

A. In relation to the charge of robbery contravening section 386 (1) (2) (a) (b) of CCA there is sufficient evidence to commit the defendant for trial at the National Court and commits him as such;

B. In relation to the 14 counts of kidnapping contravening to section 354(1)(a)(i)(ii) of CCA there is sufficient evidence to commit the defendant for trial at the National Court and commits as such on all 14 counts;

C. In relation one count of sexual penetration contravening s.347 and section 7 of the CCA there is insufficient evidence to commit the defendant for trial at the National Court and the actions of the "inspector "in sexually penetrating Jenifer Passingan in the early hours of the morning of Sisiak No 3 cannot include the defendant with in the ambit of s.7 nor can the defendant actions be said to come with the ambit s.7. Already I strike out the matter of against the defendant and discharge him of the information.

24. The court notes that the no case to answer submission in the State v Thomas Sange was made in the circumstances of a trial proper. Its standard of proof is higher than that in a committal proceeding.

25. I now administer section 96 to the defendant.

____________

Police Prosecution for the Informant
Public Solicitor for the Defendant

1. State vs. Thomas Sange and 3 others [2005] N2805
2. Hill E R Powles G; Magistrates Manual of Papua New Guinea, Lawbook Co (2001), Sydney NSW 2009
3. Supra note 2
4. Supra note 2
5. Regina vs. McEachern [1967-68] PNGLR 48
6. Supra note 2
7. State vs. John Beng [1976] PNGLR 48
8. State vs. Yakoto Imbuni [1997] N1558