Police v Arongani [2009] PGDC 57; DC925 (2 July 2009)

DC925

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

COM 108 of 09

BETWEEN

Police
Informant

AND

ALPHONSE ARONGANI
Defendant

Madang: J Kaumi
2009: 02nd July

CRIMINAL: Hand – up brief – defendant charged with willful murder contrary to section 299 of Criminal Code Act. Defence no case to answer submission, pursuant to section 95(2) of the District Court’s Act under consideration as to answer: whether there is any evidence on the face of the Prosecution brief to establish that the defendant caused the death of the deceased and whether there is evidence on the facts of the prosecution’s brief that the defendant intended to cause the death of the deceased.

Cases cited:

Regina vs. McEachern [1967-68] PNGLR 48
State v John Beng [1976] PNGLR 471
Bukoya v State SC887 [17/10/07]
Liri vs. State N3110

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 Patrick Nonao, for the Informant
Mr Kenneth Naneii, for the defendant

RULING ON DEFENCE NO CASE TO ANSWER SUBMISSION.

INTRODUCTION

1. Kaumi, M The defendant in this matter, Alphonse Arongani has been charged with willful Murder contrary to Section 299 of the Criminal Code Act.

BRIEF FACTS

2. This Court adopts the Summary of Facts in the Police Hand up Brief. Briefly it was alleged that on 13/02/09 between 3:00am and 5:00am the deceased accompanied two of his friends and were walking on Makatana Rd towards Baidal Rd here in Madang town. The deceased and his friends and were under the influence of liquor, and while they were talking and arguing who is going to buy beer for them. Eventually a fight broke out and the deceased was stabbed with a sharp object on the left side of his chest. The deceased’s accomplices identified the defendant and one other unknown to the accomplice as caused the death. That the defendant was wearing a cap covering his face but was known to them as they live together in the neighborhood .That the deceased was married to the defendant’s ex wife of whom they have four children of that marriage.

NO CASE TO ANSWER SUBMISSION

3. This matter is set for ruling pursuant to an o case to answer submission made on behalf of the defendant by counsel.

ISSUE

4. The issues put forward by the counsel are:

A. Are/Is there any evidence on the face of the Prosecutor’s brief to prove or establish that the accused cause the death of the deceased?

B. Are/Is there any evidence on the facts of the prosecutor’s brief to prove/establish that the accused intended to cause the death of the deceased?

NO CASE TO ANSWER SUBMISSION

5. The counsel in his submission discusses the identification of the defendant the witness Koniel Basil at length at the material time and concludes why this identification should not be relied on.

LAW

6. The standard of proof in committal proceedings was set out in Regina v McEachern [1] 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 sufficient prima facie case against the defendant." The authors of the Magistrate’s Manual in PNG also state "that the measure of sufficiency is less than t the trial standard of proof beyond reasonable doubt" [2]

A. ROLE OF COMMITAL COURT

7. 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; it can only form its mind as to whether a prima facie case from the evidence gathered does exist.

B. STRENGTH OF EVIDENCE

8. In the case of Bukoya v State [3] the Supreme Court held that as to the strength of the evidence, the statements from the committal, such as they are, establish a defence but that can only be determined by a full trial.

C. CONSTITUTIONAL RIGHT OF DEFENDANT TO FAIR TRIAL

9. In Liri v State [4], the National Court held that nothing is fully decided by the committal proceedings. The Applicant’s constitutional rights will be protected on trial from any deficiency in the evidence.

D. IDENTIFICATION

10. In State v John Beng [5], Frost CJ stated that where evidence of identification is relevant, the court should be mindful of the inherent danger. That 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.

11. This court is not an 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 case from the evidence gathered does exist

APPLICATION OF LAW TO FACTS

12. In relation to the issues raised by the counsel, this court is of the opinion that it will not wade into the fray as this is the prerogative of the trial court has it has the right form to determine these issues.

13. This court after due consideration of the evidence in the Police Hand up Brief particularly that of Koniel Basil and Jack Tagima finds that.

a. There is sufficient evidence of that the accused caused the death of the deceased,

b. That there is sufficient evidence that the accused intended to cause the death of the deceased.

14. Therefore this court finds that there is sufficient evidence as the essential elements of the charge and commits him for trial at the National Court.

___________________

Police Prosecution for the Informant
Public Solicitors for the defendant

1. [1967-68] PNGLR 48
2. [17/10/07]
3. SC87
4. N3110
5. [1976] PNGLR 47