Gabe v Masilo [2009] PGDC 58; DC913 (6 July 2009)

DC913

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

COM 518-547 of 08

BETWEEN

ALOYSIUS GABE
Informant

AND

COLLIN MASILO
Defendant

Madang: J Kaumi
2009: 06th July

CRIMINAL: Hand – up brief – defendant charged with a total of thirty charges, fourteen counts of kidnapping for ransom,s.354 (1) (a) (i) (ii) CCA, fourteen counts of deprivation of liberty, s355(a) of CCA, one count of sexual penetration, s 347 (1)(a) CCA, one count of armed robbery, s386 (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 evidence in the Hand up brief sufficient to commit the defendant to trial for the charge he stands charged; whether there is sufficient evidence to substantiate the operation of s.7 or ( Principal Offender) under CCA.

Cases cited:

Regina vs. McEachern [1967-68] PNGLR 48
State vs. John Beng [1976] PNGLR 421
State vs. Yakoto Imbuni [1997] N1558

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

Introduction

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

Charge

2. The defendant is charged with the following:-

14 x kidnapping contravening section354 (1) (a) (i) (ii) of CCA

14 x Deprivation of liberty contravening section 355(a) of CCA

1 x Sexual Penetration contravening section 347(1) (2) (a) (b)(c) of CCA

1 x Armed Robbery contravening section 386 (1) (2) (a) (b) (c) of CCA

Brief Facts

3. This Court adopts the brief facts of the Police Hand Up brief and therefore will not repeat them but suffice to say that it was alleged that from the 05th to 06th July 2008 the defendant and his 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 against their will, sexually penetrating one Jenifer Passingan in the process thus enabling them to successfully rob the BSP, Madang.

4. The police in their investigation have compiled a long list of witnesses and exhibits.

5. The defense ‘no case answers’ submission is before the Court for ruling.

Issues

6. The defense raises two issues:

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

Whether there is sufficient evidence to substantiate the operation of section 7(Principal Offenders) under the CCA?

7. The defense refers the Court to the ruling of Cannings.J in State v Thomas Sange and 3 others N2805 in relation to the No case to answer submission and the considerations of invoking Section7 of the Criminal Code Act.

Role of Committal Court

8. As I have reiterated the last few months in which I have been dealing with Committal matters and in particular rulings on No case To answer submissions that the role in PNG of committal Courts as stated in the Magistrate’s Manual of PNG [1] at Paragraph 11.2.3 that "the Magistrate’s decision is a judicial act requiring that proper consideration be given to matters required by the Statute"

9. Further that the Committal proceeding is an investigation into the strength of the case being amounted by the prosecution, and it is not an act of adjudication. [2]

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.[3]

Standard of Proof

11. The standard of proof in committal proceedings is stated in Regina v McEachern [4] PNGLR 48 where it withheld:

"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".

12. This measure of sufficiency is less than the trial standard of proof beyond reasonable doubt. [5]

Addressing the issues

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

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

14. This court has had the benefit only of reading the statements of witnesses in the Police Hand-up brief.

15. Firstly, the Court considered the evidence of witnesses before the robbery, during the robbery and after the robbery and the Defendant’s Confessional Statement.

Pre-Robbery

16. The court noted the evidence of Timon Kataka and Adam Orosombo.

During the robbery

17. The Court notes the evidence of Mathias and Grace Manovo, Cathy Kawage Passingan, Steven Wapi Kwari and Paul Salumbia and it 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 that it was broad day light and were in close proximity to them

They all recognized the robbers given the extended period of time the robbers were around them in close proximity.

18. The Court notes that they did not mention any names in their respective statements to Police but that they state that they could identify any of the robbers if they were apprehended later.

19. The Court also notes that there appears on the face of the Statements to have not been any Police Identification parade conducted.

20. Court also notes the Statements of Lawrence and Josephine Walep and a security guard at Malolo Lodge who state they could identify the robbers if they were caught but not name any of them in their statements to Police nor were any of them were involved in any Identification parade.

Post Robbery

21. The Court notes the Statements of Dominic and Benjamin Manua and Dominic Krasombi.

Confessional Statement

22. The Court also notes the contents of the confessional statement of the statement of the defendant dated 18/09/08.

23. Secondly the Court noted the following principles on identification in:

(i). Frost CJ in State v John Beng [6] that where evidence of identification is relevant, the court should be mindful of the inherent charges. 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 it.

(ii). State v Yakoto Imbuni [7] which followed John Beng. In this case three witnesses gave evidence that they saw the incident involving the killing of three people, 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 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.

24. Thirdly the admissibility of the confessional statement is a matter for the trial proper. This Court does not have the jurisdiction to determine whether or not to admit into evidence a confessional statement.

25. In relation to the case the court has been referred to State v Thomas Sange + 3 others, [8] that case can be distinguished from the immediate one in that in the former, it relied on State v Paul Kundi. Rape [9] which concerned a trial proper situation where at the end of the prosecution case the defense counsel made a ‘no case to answer’ submission and that court having cross examination before it was asked to determine whether or not the defendant could be lawfully convicted at the end of the prosecution case.

The immediate case before this court is only committal in nature, and certainly has not had the benefit of the trial process played out before it.

26. In summation, having outlined especially the principle regarding identification with emphasis on the nature of the statement of the victims coupled with the confessional statements this court in the exercise of its committal role makes the following findings:

1. In relation to the 14 charges of kidnapping contrary to section 354(1) (a) (i) (ii) of the Criminal Code Act, sufficient evidence on the essential elements of the charge and commits him as charged;

2. In relation to the14 counts of deprivation of Liberty contrary to section 355(a) of the Criminal Code Act, sufficient evidence on the essential elements of the charge and commits him as charged;

3. In relation to one count of robbery contrary to section 3(1) (2) (a) (b) (c) of the Criminal code act, sufficient evidence on the essential elements of the charge and commits him as charged;

4. In relation to one count of sexual penetration contravening section 342 and section 7 of the Criminal Code Act, insufficient evidence to commit the defendant for trial at the National Court as the actions of the ‘Inspector’ in sexually penetrating Jenifer Passingan in the early hours of the morning of the 06/07/08 at Sisiak No 3 cannot include the defendant within the ambit of Section 7 and accordingly I strike out the matter against the defendant and discharge him of the information

__________________________

Police Prosecution for the informant
Public Solicitor for the Defendant

1. Hill E R Powles; Magistrate’s Manual of Papua New Guinea, Lawbook Co.(2001) Sydney NSW 2009.
2. Supra note 1
3. Supra note 1
4. [1967-1968] PNGLR 48
5. Supra note 1
6. [1976] PNGLR 471
7. [1997] N1558
8. [2005] N2805
9. [1976] PNGLR 96