Kaikas v Mari [2009] PGDC 65; DC899 (21 August 2009)

DC899

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

COM 76 of 09

BETWEEN

LEO KAIKAS
Informant

AND

WILSON KANAI MARI
Defendant

Madang: J Kaumi
2009: 21 August

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 evidence in the Hand up brief sufficient to commit the defendant to trial for the charge he stands charged.

Cases cited:

Regina vs. McEachern [1967-68] PNGLR 48
The State vs. Tom Morris [1981] PNGLR 493
SCR No 34 of 2005 – REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2) (b) Application by Herman Joseph Leahy
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:

First Constable Bill Mohe, for the Informant
Mrs. Meten, for the defendant

RULING ON DEFENCE NO CASE TO ANSWER SUBMISSION.

21st AUGUST 2009.

INTRODUCTION –

1. Kaumi, M. The defendant in this matter, Wilson Kanai Mari has been charged with Wilful Murder contrary to Section 299 of the Criminal Code Act.

BRIEF FACTS

2. The defendant is appearing in court after he was arrested and charged with one count of willful murder.

3. That on Saturday 28th February 2009, between the hours 12 midnight and 6:00am defendant Wilson Kanai Mari was seen at Nabassa, Madang Province.

4. It was alleged that on the said date, time and place defendant heard that his wife Digger Wilson was drinking home brew called yawa with Rudolf Pius the deceased.

5. It is further alleged that the defendant heard of stories and was not happy with the actions of his wife and the deceased. And so defendant started looking around for both at Nabassa and eventually walking at Mamok Street towards Lutheran Day Primary School.

6. Furthermore it is alleged that the defendant chased both of them and his wife saw him and ran away and hid herself whilst the deceased didn’t see him and was walking slowly.

7. Furthermore the allegations are that as soon as the defendant approached the deceased and without saying any word pulled out the knife he had and stabbed the deceased several times on the chest, rib cage and other parts of his body and as a result the deceased collapsed and instantly died of the knife wounds.

NO CASE TO ANSWER SUBMISSION

8. This matter is set for ruling pursuant to a no case to answer submission made on behalf of the defendant by counsel.

ISSUE

9. Whether the evidence presented to the court under section 94B (1) discloses sufficient evidence to put the defendant on trial for the offence for which he is charged.

THE RELEVANT CHARGE

10. Section 299(wilful murder) of the Criminal Code states

(1). Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2). A person who commits wilful murder shall be liable to be sentenced to death.

FUNCTIONS OF THE COMMITAL COURT

11. 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 are well established and are inter alia as stated:

(A). "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]

(B). 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]

(C). Committal Proceedings do not determine the innocence or guilt of a defendant and cannot result in an acquittal. – SCR No 34 of 2005 – REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2) (b) Application by Herman Joseph Leahy. [3]

(D). Bukoya v State [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.

(E). In Liri v State [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."

(F). 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

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

13. "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."

14. This measure of sufficiency is less than the trial standard of proof beyond reasonable doubt.[8]

STRENGTH OF EVIDENCE

15. In the case of Bukoya v State [9] the Supreme Court held that as to the strength of the evidence, the statements from the committal, such as they are, establish a defiance but that can only be determined by a full trial.

CONSTITUTIONAL RIGHT OF DEFENDANT TO FAIR TRIAL

16. In Liri v State [10], 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.

ADMISSIBILITY OF CONFESSIONAL STATEMENTS

17. 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.

18. 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.[11]

CONSIDERATION OF WITNESSES STATEMENTS

19. At the outset it would appear that there is no direct evidence of the defendant having been the actual perpetrator of the willful murder of Rudolf Pius to the extent that there is no actual identification of him at the material time.

20. However there is evidence from Hennie Kami, Mark Eris, Richard Galilo, Ronda Galilo and Mrs. Arsenia Pius that though are 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 [12] 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.

Therefore I find that the actions of the defendant provide this court with the rational inference that leads me to conclude that there is prima facie evidence on all the essential elements of the charge.

FINDINGS

21. In relation to the issues raised by the counsel, with regards to the various witnesses’ statements this court is of the opinion that it will not wade into the fray as this is the prerogative of the trial court (National Court) as it is the right forum to determine these issues.

22. This court in reaching its findings has considered the totality of the evidence of the particular witnesses it has referred to, and considered the confession the defendant made bearing in mind the pre requisite standard of proof.

23. This court 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.

24. Therefore this court commits him for trial at the National Court for the chare of willful murder of Rudolf Pius on the 28th February 2009.
Section 96 is now administered to the defendant.

__________________

Police Prosecution for the Informant
Public Solicitors Office for the Defendant

1. Hill E R Powles G; Magistrates 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. Bukoya v State SC887 [17/10/07]
5. Liri v State N3110
6. [Supra note 1]
7. Regina vs. McEachern [1967-68] PNGLR 48
8. [Supra note 1]
9. [Supra note 4]
10. [Supra note 5]
11. para 11.2.3[Supra note 1]
12. The State vs. Tom Morris [1981] PNGLR 493