Yalamu v Parker [2009] PGDC 79; DC1012 (20 January 2009)

DC1012

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF CRIMINAL JURISDICTION

Cases Numbers Comm. 83- 87 of 2008

BETWEEN:

STEVEN YALAMU
(Informant)

AND:

JOE PARKER
(Defendant)

MADANG: M SELEFKARIU, PM
2008: 18 March- 17 December
2009: 20 January

COMMITTAL PROCEEDING: Hand up brief – Defendant is charged with five charges one count for corruption of witnesses s. 123 (1) (a) (b) of Criminal Code Act (Code), two counts for conspiracy to defeat justice s. 128 (1) Code, one count for attempt to pervert justice s. 136 Code and one count for accessory after the fact to a crime s. 519 Code respectively - Defence no case to answer submissions, pursuant to s. 95 (2) of District Courts Act under consideration as to question: whether the evidence in the hand up brief sufficient to commit the defendant to trial for the charges he stands charged.

CASES CITED:

John Peng v The State [1982] PNGLR 331.
The State v Tom Morris [1981] PNGLR 493.
The State v Ludwick Kembu & Ors [1996] PNGLR 8.
Buckley Yanrume v Sylvester Euga (1996) (unreported) N1476.
Regina v McEachern [1967-68] PNGLR 48.

Counsel:

Sergeant P Nonao of Police Prosecution for State
Mr. J Kolkia for Defendant

JUDGEMENT ON DEFENCE NO CASE TO ANSWER SUBMISSION

20 January 2009

SELEFKARIU, PM: The defendant is charged with five charges two counts for conspiring with others to defeat justice section 128 (1) Code, one count for corruption of witnesses section 123 (1) (a) & (b) Code, one count for attempt to pervert justice section 136 Code and one count for being an accessory after the fact to a crime of rape pursuant to section 519 of Code respectively.

In summary the prosecution alleged that between 22 October 2004 and 30 March 2005 the defendant conspired with others named including James Yali manufactured or fabricated evidence and corrupted witnesses by giving money as compensation to induce and make them sign the evidence (documents) which were false with intent to actually or attempt to defeat and or pervert the course of justice after the crime of rape was committed. It is alleged that after the crime was made known to the defendant and others their role in trying to conceal it make them especially the defendant became an accessory after the fact.

The informant has tendered the original copy of the hand up brief upon service of the same to the defendant.

The defendant through his counsel filed a no case to answer submission which forms the basis of this proceeding.

In response the prosecution have made a written reply which both submissions are now before court to determine.

The central issue is: whether the evidence contained in the hand up brief is sufficient to commit the defendant to trial before the National Court on the charges he stands charged.

In the hand up brief police put together a big body of evidence intending to show what happened after the crime for rape against James Yali was committed.

Most of the evidence is circumstantial from which inferences can be drawn by the court.

There are pieces of evidence in certain witnesses’ evidence for which the witnesses clearly identified the defendant on specific dates and times and the descriptions of events taking place then.

For example in the evidence of Olivia Daniels, the prosecutrix in the crime of rape, she clearly identified the defendant as one of those persons who accompanied herself and others named in a vehicle which transported her and her mother to Lae purposely to avoid assisting police in their investigations.

This piece of evidence is repeated in the evidence of Helen Daniels, the mother who was in the same vehicle as the prosecutrix including the defendant.

Again in the evidence of the prosecutrix and the mother they identified the defendant being present in Lae with Michael Kasi and Junior Yali and others where a document was handed to the prosecutrix to sign under duress. The material evidence describes the day as a Saturday where a musical group called Makoma performed live in Lae, Morobe Province.

In the evidence of Atio Igaso, a money order teller with Post PNG and works at the Madang Post Office, he identified the police exhibits JP 037-05 as containing documents purporting to show that he served some persons from the Office of the Madang Governor who transmitted money by post to Lorengau Post Office, Manus Province sometime between 20 October and 30 October 2004. One of the documents re Salim Moni Kwik bears the name of the defendant as the remitter and the address being Governor’s Office Madang dated 25 October 2004.

Contrasting that with the evidence of Helen, the mother that is the time after the crime of rape was committed and James Yali and Wilfred were in Manus Province purposely to see her and the relatives of the prosecutrix to negotiate settlement as an attempt to pervert and defeat the course of justice.

In the evidence of Brian Daniels he said from 21 to 22 October 2004 James Yali’s boys including the defendant saw him at Kauris village purposely to locate the prosecutrix. This evidence is supported by the prosecutrix herself and Oscar Daniels who said he was warned by Tia’s mother on 14 October 2004 that he was being pursued by the defendant and some others.

In the evidence of Willy Juneberry, Branch Manager of Travel Car office in Madang he recalled two gentlemen whom he described as from the Highlands area going to his office and paying a government cheque for the sum of K1766.82 for the hire of a vehicle in Lorengau, Manus Province for the use of the then Governor, James Yali. Again this evidence corroborates the evidence of Helen Daniels and other Manus based witnesses about the presence of James Yali and his purpose for being there.

The defendant no doubt was a personal staff of the then Governor, James Yali as an Assistant Secretary and would be involved in doing errands for him as part of his duty unless he provides evidence to the contrary.

In summary police evidence is based on the hypothesis that the defendant was involved with others named including James Yali who conspired and carried out their plans to discourage the prosecutrix and other witnesses using threats or inducement through payments of compensation and fabricate evidence and making the witnesses sign them with the view to corrupt them and prevent the police from charging James Yali and to defeat the course of justice.

In essence I find that almost all the police evidence proving the charges against the defendant is wholly circumstantial.

A sub issue therefore is whether circumstantial evidence is good evidence and can secure conviction against the defendant.

As regards the applicability of the common law principle involving circumstantial evidence in Papua New Guinea, the Supreme Court decided in the case of John Peng v The State [1982] PNGLR 331 that the principle involving circumstantial evidence as found in Barca v The Queen [1975] HCA 42; (1976) 50 ALJR 108 at 117, and in McGreevey v DPP [1973] 1 WLR 276, are applicable and appropriate to the circumstances of Papua New Guinea. See also The State v Tom Morris [1981] PNGLR 493.

To paraphrase the Barca principle put forward by Miles J in Tom Morris, the court said in a criminal case where the evidence is wholly circumstantial, the court must acquit unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than the guilt of the defendant, not only the guilt of the defendant should be a rational inference but that it should be the only rational inference that the circumstance would enable the court to draw from the evidence.

Based on the above authority I conclude that circumstantial evidence is good evidence and when accepted by a trial court hearing a criminal case can secure a conviction against a defendant.

In the defence submissions they submitted that the four charges against the defendant under s. 123, s. 128 & s. 136 Code are based under Division 5- Offences Relating to the Administration of Justice.

In relation to these charges, the defence raised a sub issue as to; when does the ‘course of justice’ commence.

They argued that combining s. 118 Code with ss. 154 & 155 of the Constitution the meaning of the words ‘judicial proceedings’ do not include police investigations and so the course of justice has not yet commenced without the laying of an information before the court.

They submitted a full judgement of the case of The State v Ludwick Kembu & Ors [1996] PNGLR 8, which made reference to the case of Sharpe & Stringer [1938] 26 Criminal Appeal Reports 122 and the case of Rogerson and Others [1992] 60 Australian Criminal Reports 429 which considered the issue as to when the ‘course of justice’ commences.

In Ludwick Kembu’s case the judge then Woods J considered the traditional view in Sharpe & Stringer which says:

"The crime of conspiracy to pervert or defeat justice is constituted if persons conspire to conceal a crime which has been committed although no proceedings are pending or have been commenced."

The judge went on to say that in Rogerson the court did not follow Sharpe & Stringer saying the course of justice does not begin until the jurisdiction of some court or competent judicial authority is invoked. But the same court at page 436 said that police investigations have themselves been treated as a part of the course of justice.

I have not been assisted by the bar table with other Papua New Guinea cases on this issue given the differing views as expressed in the above cases both of which are foreign. However I conclude that the traditional view in Sharpe & Stringer remains to be the position of law in cases of offences relating to the administration of justice. In the case of Rogerson, however, the court warned about variations in some case situations.

In relation to the present case the matter started when James Yali raped the prosecutrix on 13 October 2004. Police investigations into the rape commenced on 24 October 2004 which led toYali being charged and the information charging him was laid into court.

Some of the alleged acts of conspiracy happened before police investigations and even before the laying of the information but all of them happened after the crime of rape was committed.

Using the view in Sharpe & Stringer the crime of conspiracy to pervert or defeat the course of justice is constituted if persons conspire to conceal a crime which has been committed.

In my view it does not require police investigations or the proceedings in court to set the crime into motion. A precondition to such offences under Division 5 of Code is that a crime must be committed and if persons conspire to conceal it that constitutes conspiracy to pervert or defeat justice. I find this sub issue unnecessary as the law in Sharpe & Stringer is quite obvious.

In relation to the central issue and having found that the evidence is wholly circumstantial, the question is: is the evidence presented in the hand up brief sufficient to commit the defendant to trial for the charges he stands charged, s. 95 (1) of District Courts Act.

At the committal proceedings of the District Court its primary purpose is to receive the evidence and assess it to determine whether it is sufficient to commit the defendant to trial, see Buckley Yanrume v Sylvester Euga (1996) (unreported) N1476.

The Committal Court is therefore a court of assessment which receives the evidence and judicially determines it to see if the evidence has made out all the elements of the offence charged.

Even though a judicial act when determining the sufficiency of evidence, the Committal Court does not adjudicate, nor weigh the evidence to its credibility and determine the guilt of the defendant as it does not have jurisdiction. The Committal Court has only to form its mind as to whether a prima facie case exists with proper considerations, s. 95 of District Courts Act.

In the case of Regina v McEachern [1967-68] PNGLR 48 it was held that,

"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 exists."

The question is whether ‘prima facie case’ as in s. 96 of the District Courts Act has the same meaning as ‘sufficient prima facie case’

But no doubt the standard of proof in committal proceedings is lesser than the criminal standard of ‘proof beyond reasonable doubt’ but slightly higher than the civil standard of ‘proof on the balance of probability.’

When considering the degree of the standard of proof I think we ought to keep in mind a similar but quite distinguishable process of a ‘no case to answer submission’ that happens in a proper criminal trial where at the close of the prosecution’s case and the defence makes a no case to answer submission to ask the court to determine whether it can lawfully convict the defendant at the end of the trial.

In my view and in the case of the latter situation the standard of proof in that situation is slightly higher than the one in a committal preceding as the latter concerns a real trial for which the court acts with jurisdiction as oppose to the Committal Court which does not have the jurisdiction in the matter before it. As one would appreciate the trial court is able to process the evidence mainly comprising the prosecution’s evidence but subject to cross examination, a process which seldom happens in the Committal Court these days.

In relation to the central issue I have already stated that circumstantial evidence can be good evidence and if accepted by a trial court in a criminal case can secure conviction against the defendant.

Even though the evidence in the hand up brief is wholly circumstantial; the principle in Barca says that if the court draws a reasonable inference that the circumstantial evidence is consistent with the guilt of the defendant and that the circumstance leads the court to such conclusion in that way then that evidence is credible to finding the guilt of the defendant.

In the present case I find the evidence though circumstantial are consistent to show that the defendant had a role to play in the plans where others including him organised and ventured into putting them into action.

The whole essence of which was to foil the police investigations and defeat the course of justice.

The defendant’s conduct shows clearly his knowledge about the crime of rape committed by James Yali who no doubt being an employee or servant and a close associate of the then Governor for Madang acted in concert with others and became an accessory after the fact.

At the police interrogation the defendant gave unqualified answers and even though using his rights of silence could not explain his whereabouts and give explanations to allegations raised in the evidence of other witnesses which implicated him.

I conclude that the body of evidence in the hand up brief although wholly circumstantial are sufficient which establish a prima facie case against the defendant for all charges he stands charged and as a consequence he must be put upon his trial.

Accordingly I now proceed to administer s. 96 of the District Courts Act.

_____________________________________________________________________
Police Prosecution for State
Lawyers for Defendant: Paul Paraka Lawyers