Ban v Inanei [2009] PGDC 49; DC919 (12 June 2009)

DC919

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

COM 469-489 of 08
COM 29 of 09

BETWEEN

RAY BAN
Informant

AND

DAMIEN INANEI
Defendant

Madang: J Kaumi
2009: 12th June

COMMITTAL PROCEEDINGS: Hand-up brief – Defendant charged with a total of thirty charges, fourteen counts of kidnapping for ransom, section 354 (1)(a)(i)(ii) and section 7 of the criminal code of PNG, fourteen counts of Deprivation of liberty, section 355(a) and section 7 of the Criminal Code Act of PNG, one count of sexual penetration, section 347(1) (a) and section 7 of the Criminal Code Act of PNG, one count of Armed Robbery, section 386(1)(2)(a)(b)(c) and 7 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. Paul Kundi Rape [1976] PNGLR 96
Buckley Yarume vs. Sylvester Euga [1976] Unrept N1476
State vs. Tom Morris [1981] PNGLR 493
State vs. Roka Pep (No2) [1983] PNGLR 287
Joshua Yaip Avini and Plaridel Nony Acosta vs. State [1997] PNGLR 212
State vs. Thomas Sange and 3 others. N2805 [2005]
SCR No 34 of 2005-REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2) (B) Application by Herman Joseph Leahy
Liri vs. State [2006] N3110 [17/11/06]
Bukoya vs. State [2007] SC887 [12/10/07]

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
Mrs. Meten, for the Defendant

RULING ON DEFENCE NO CASE TO ANSWER SUBMISSION

12th June2009

INTRODUCTION

1. Kaumi, M The defendant is charged with thirty (30) charges. The charges are as follows:-

A. 14 counts of kidnapping for ransom contrary to section 354(1) (a) (i) (ii) and section 7 of the Criminal Code,

B. 14 counts of Deprivation of Liberty contrary to section 355(a) and section 7 of the Criminal Code,

C. 1 x count of sexual penetration contrary to section 347 (1) (a) and section 7 of the Criminal Code,

D. 1 x count of armed robbery contrary to section 386(1) (2) (a) (b) (c) and section 7 of the Criminal Code.

SUMMARY OF FACTS

2. This court adopts the brief facts of the police hand up brief and therefore will not repeat them all but in the summary that the defendant who is a primary teacher by profession and that is alleged that a few days before the robbery,during the robbery and immediately after the robbery he was involved in making prior arrangements for the mastermind, William Kapis and accomplices to kidnap the BSP Bank Manager, Mr. Mathias Manovo, his family and other bank employees and their families facilitating the hire of hire vehicles used in the robbery, accommodating William Kapis and other accomplices before the robbery, being a watchman at the material time, and benefited from the proceeds of the robbery.

3. The police in their interrogation have amassed a large number of witnesses and exhibits.

4. The issues in this matter are twofold:-

i. Whether the evidence presented discloses sufficient evidence to put the Defendant on his trial for the offence for which he is charged?

ii. Whether there is sufficient evidence to substantiate the operation of Section 7 (Principal Offenders) under the Criminal Code?

FUNCTIONS OF THE COMMITTAL COURT

5. "The Magistrate’s decision is a judicial act, requiring that proper consideration be given to matter required by statute", - Magistrate’s Manual of PNG at paragraph 11.2.3 [1]

6. 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 – Magistrate’s Manual.[2]

7. Committal Proceedings do not determine the innocence or guilt of a defendant and cannot result in an acquittal. –– REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2) (b) Application by Herman Joseph Leahy.[3]

8. BUKOYA v STATE [2007] [4] HELD that as the strength of the evidence, the statements from the committal, such as they are, establish a prima facie case. The state witnesses may or may not come up to proof, the evidence may also establish a defence but that can only be determined by a full trial.

9. In Liri v State [2006] [5] Lay. J held that "nothing is finally decided by the committal proceedings. The applicant’s Constitutional rights will be protected on trial from any deficiency in the evidence."

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 can only form its mind as to whether a prima facie case from the evidence gathered does exist – section 95 and Magistrate’s Manual of PNG.[6]

STANDARD OF PROOF

11. The standard of proof in committal proceedings is stated in Regina v McEachern [7] where it held:-

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

12. This measure of sufficiency is less than the trial standard of proof beyond reasonable doubt.

13. The defence has referred this court to consider Cannings. Js ruling in relation to a no case to answer submission and consideration of invoking section 7 of the Criminal Code in the case of the State v Sange and three others.[8] Cannings J relied on the Sate v Paul Kundi Rape,[9] whose principles were affirmed in State v Roka Pep (No 2)[10] and Joshua Yaip Avini and Plaridel Nony Acosta v The State[11].

14. With regard to State v Sange and three others, [12] this case can be distinguished from the immediate one in that in the former, it was a trial proper at the National Court where at the end of the prosecution case the defence made a no case to answer submission, and the court having had the benefit of having observed examinations of witnesses i.e. the trial process was asked to determine whether the defendant could lawfully be convicted at the close of the State’s case.

15. The process in the committal court where a no case to answer submission is made, the court is not a trial court and even though having no jurisdiction over the case before it, is only doing its judicial duty in assessing the evidence put before it in the hand up brief to find if the evidence is sufficient to commit the defendant to trial. (See Buckley Yarume v Sylvester Euga [13]

16. Now having alluded to these underlying principles governing the committal process I address the issues.

ISSUES

17. In considering of these two issues, they are interrelated in that all the changes are coupled with section 7 of the Criminal Code. In other words they must be considered in tandem

CONSIDERATION OF WITNESSES STATEMENTS

18. At the outset it would appear that there is no direct evidence of the defendant having been one of the actual perpetrators of the kidnaps deprivation of liberty of persons, sexual penetration or robbery to the extent that none of the victims identify him at the material times.

19. However there is evidence from Ruben Micah, Esther Kolin, Damien Bukau, Paul Kasais,Dick Gigino, Dama Somi, Betty Kig, Dominic and Benjamin Manua and the defendant answers 38-45,54,74 and 77 in his record of interview that though circumstantial in nature but good where accepted by a trial court in a criminal case and can secure a conviction against the defendant. In State v Tom Morris [14] Miles J stated

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

20. Therefore I find that the actions of the defendant provide this court with the rational inference that leads me to conclude that he knew of the details of the plan, and assisted; facilitated in the roles they played which led to the commission of these offences.

FINDINGS

21. This court in reaching its findings has considered the totality of the evidence of the particular witnesses it has referred to, and considered the various charges the defendant is charged with in tandem bearing in mind the pre requisite standard of proof.

A. This court finds in respect of:

(i). Fourteen (14) counts of kidnapping for ransom contrary to section 354 (1)(a)(i)(ii) and 7 of the criminal code act, sufficient evidence on the essential elements and commits the defendant for trial in the National Court of Justice;

(ii). Fourteen (14) counts of liberty contrary to section 355(a) and section 7 of the Criminal Code Act;

(iii). One (1) count of Armed Robbery contrary to section 386 (1) (2) (a) (b) (c) and section 7 of the Criminal code sufficient evidence on the essential elements and commits the defendant for trial in the National Court of Justice

(iv). One (1) sexual penetration contrary to section 347(1)(a) and section 7 of the Criminal Code Act, insufficient evidence on the essential elements of section 7 and strikes the charge out and discharges the defendant of the information forthwith.

22. I now administer Section 96 to the defendant.

______________

Police Prosecution for the Informant
Public Solicitor for the defendant

[1] Hill E R Powles G; Magistrate’s Manual of Papua New Guinea, Lawbook Co. [2001] Sydney NSW 2009
[2] Supra note 1
[3] SCR No 34 of 2005 – Review pursuant to Constitution, Section 155 (2) (b) Application by Herman Joseph Leahy
[4] [2007] SC887 (17/10/07)
[5] [2006] N3110 (17/11/06)
[6] Supra note 1
[7] [1967-68] PNGLR 48
[8] [2005] N2805
[9] [1976] PNGLR 96
[10] [1983] PNGLR 287
[11] [1997] PNGLR 212
[12] [2005] N2805
[13] [1976] Unrept. N1476
[14] [1981] PNGLR 493