Takowa v Hembi [2009] PGDC 96; DC970 (18 August 2009)

DC970

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

COM 293 of 2009

BETWEEN:

WILLIE A TAKOWA
Informant

AND:

JONATHAN HAMBUK HEMBI
Defendant

MADANG: E WILMOT

2009: 11 May – 18 August 2009

CRIMINAL - hand up brief – Accused charged with robbery contrary to section 386 (1) & (2) (a) (b) (c) of the Criminal Code – question as to sufficiency of evidence to commit Accused to stand trial for Armed Robbery – invoking Section 7 of the criminal code act of papua new guinea.

Cases Cited
List Cases Chronologically
SCR No. 34 of 2005 – Review pursuant to the constitution section 155(20(b) the application of Herman Laehy
Bukoya -v- State SC887 (17 October 2007
Regina –v- McEachern

References
List Legislation In Alphabetical Order
Criminal Code Act
District Court Act

Counsel

Sergeant Patrick Nanao for the Informant

10 September 2009

E Wilmot DCM:

INTRODUCTION:

1. The Accused Jonathan Hambuk Hembi has been charged with Armed Robbery contrary to section 386 (1) & (2) (a) (b) (c) of the Criminal Code Act of Papua New Guinea.
   

BRIEF FACTS:

2. The Accused is appearing in court after being charged with one count of Robbery pursuant to section386 (1) & (2) (a) (b) (c) of the Criminal Code Act of Papua New Guinea.
   
3. That on 2nd of May 2009 between the hours of 13:30 and 14:00 the accused was at Dylup Plantation, North Coast Road Madang. The accused was a crew on a 6B public motor vehicle and was with the drive of the vehicle.
   
4. The complainant Bill Gardner at the timer was escorted by Guard dog security to drop off wages for the plantation staff. Upon arriving at the plantations’’ office the escort security services returned to Madang Town. Not long after about three minutes later a Nissan Navara double cab tinted glass white in colour drove into the plantations’ car park. Two decently dressed gentlemen walked into the main office and held up the staff.
   
5. It is alledged the accused was not directly involved in the actual hold up but it is alleged that he had assisted the people who held up Dylup plantation by assisting them in hiring the vehicle that was used in the hold up, transporting them and aiding them in there escape after holding up the staff at Dylup plantation.
   
6. The accused and the driver of the 6B PMV bus were seen driving up and down the plantation before during and after the robbery.
   

ISSUE:

7. Whether there is sufficient evidence to put the Accused to stand trial for the offence he is charged with.
   

THE LAW:

386. THE OFFENCE OF ROBBERY.

(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against Subsection (1)–

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life.

FUNCTIONS OF THE COMMITTAL COURT

8. The committal proceedings are not intended to determine the innocence or the guilt of an Accused and cannot result in an acquittal: SCR No. 34 of 2005 – Review pursuant to the constitution section 155(20(b) the application of Herman Laehy.
   
9. The question that is posed in committal process is whether or not a prima facie case is established against an accused. In other words it is the strength of the evidence put forward by the prosecution (Bukoya -v- State SC 887 (17 October 2007).
   

STANDARD OF PROOF

10. The standard of proof in committal proceedings is stated in Regina –v- McEachern [1967-68] PNGLR 48 (24 May 1967)where it held:
    
    • (a) To decide that the evidence offered by the prosecution in committal proceedings before the District Court “is sufficient to put the defendant upon his trial” within the meaning of that phrase in s. 102(1) of the District Courts Ordinance 1963 the court has only to form a bona fide opinion that there is a sufficient prima facie case against the defendant.
      
11. This translates effectively that the measure of this standard is much less then the standard in trial where it must be proof beyond a reasonable doubt.
    

CONSIDERATION OF WITNESS STATEMENTS.

12. The state has brought several witnesses to establish their case against the defendant. The evidence of several workers on the plantation both in the office and outside fail to identify the defendant. These witnesses bring evidence of the actual robbery.
    
13. However there is evidence from one witness that points to the involvement of the accused. The evidence of Jason James alladgese he saw the accused assisting the actually robbers from escaping the locality of the crime scene. He had stopped the accused and the driver asking for a ride to Dylup. the accused’s responce was they were no going as far as dylup. He observes the bus leave and some meters down the bus stops and six men rushed out of the buses and into the waiting bus.
    
14. Further the evidence given by the females Miriam maukao puts the accused and the driver as accomplices. Her evidence shows that the bus the accused was in had a hand in the preparation for the robbery some hours before the offence was committed. they had stopped to hire the vehicle that was used in the robbery
    
15. Having said this court needs only to form an opinion as to the defendant’s guilt to commit him to stand trial.
    
16. It is by this evidence this court concludes that there is prima facie evidence on all elements of the charge. why?
    

THE ELEMENT OF THE CHARGE:

17. none of these elements have been satisfied under section 386(1) the elements are:
    
    • that a person;
    • who commits;
    • the act robbery.
      
18. secondly under section 386(2) (a), (b) and (c) the element are that beingthat a person who commits the act robbery, and does so in the manner listed below, that being:
    
    • (a) with arms or offensive weapon or instrument; or
      
    • (b) is in company with one or more other persons;
      
    • (c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person.
      
19. Although there is no actual evidence the accused committed the offence, however in considering section 7(1) of the criminal code states.
    
    • (1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:–
      
      • (a) every person who actually does the act or makes the omission that constitutes the offence;
        
      • (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
        
      • (c) every person who aids another person in committing the offence;
        
      • (d) any person who counsels or procures any other person to commit the offence.
        
20. This court is of the opinion that the accused falls within the meaning of section 7(1) (a) (b) (c) and (d).
    
21. The intention of this section was that a high percentage of cases it usually involved the perpetrator and those who conspire with them to commit the offence. The inclusion of section 7 and 8 of the code was a deterrent.... to sent the message to those wishing to conspire and plan will be held to the same standard as those who committed the act.
    
22. It is under these provision of the criminal code this court finds prima facie case against the accuses
    

THIS COURTS FINDINGS:

23. This court in reaching its decision has considered the totality of the evidence presented, and considering the confession of the defendants taking into account the burned of proof on this court.
    
24. This court commits the Accusedto stand trial at the National Court for the charge of Armed Robbery pursuant to section 386 (1) & (2) (a) (b) (c) of the Criminal Code Act on 28 February 2010. Section 96 is now administered to the defendant.
    

E Wilmot (DCM)

_______________________________
Police prosecutor for the informant
Public Solicitors for the Defendant.