Gabe v Kamang [2010] PGDC 13; DC949 (21 April 2010)

DC949

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

COM: 340 of 09

BETWEEN:

ALOYSIUS GABE
Informant

AND:

PAUL KAMANG
Defendant

Madang: J Kaumi

2010: 21st April

CRIMINAL-Hand-up brief- Defendant charged with a count of Wilful and Unlawful Damage contrary to section 444(i) (2) PNG Criminal Code-Schedule 2 Offence. Defence no case to answer submission, pursuant to section 95 (2) of the District Courts 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
Review pursuant to Constitution, Section 155(2) (b) Application by Herman Joseph Leahy .SCR No 34 of 2005
Liri v State (2006) N3110 (17/11/06)
Bukoya v State (2007) SC887 (17/10/07)

References

Criminal Code Act 1974
District Court Act 1963
Hill E. R. & Powles.G; Magistrates Manual of Papua New Guinea, Lawbook, Co. (2001), Sydney, NSW 2009

Counsel

Sgt Suamani for the Informant
Ms. Wurr, for the Defendant

JUDGEMENT ON DEFENCE NO CASE TO ANSWER SUMISSION

INTRODUCTION

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

2. The defendant is charged with the following:-

1 x wilfully and unlawfully damaging property contravening section 444(1) (2) of CCA

BRIEF FACTS

3. This Court adopts the brief facts of the Police Hand Up brief and it was alleged that on the 05th August 2009 at opposite Jomba clinic the defendant aged 60 years old willfully and unlawfully damaged fencing materials SHS Steel Primed 65 x 65 x 3.0mm x 8.0mtr, SHS Steel Primed 75 x 75 x 3.0mm x 8.0mtr, RHS Steel Primed 50 x 25 x 2.5mm x 8.0mtr, Hardwood 75mm x 50mm Treated DAR, Cement Paradise 40kg, Paint DX All Metal Primer Red Oxide 4ltr and Paint DX S/Enamel H/Gloss Botanic 4ltr, the properties of APPAP Contractor Madang.

4. On 3rd August, 2009, the defendant went to the project site at Section 58 and Allotment 6 opposite Jomba Clinic where the contractor APPAP’s owner Kelvin Maxwell ( who won a contract to build houses for employees of the District Treasury Office) was and served a Restraining Order on Kelvin for APPAP to stop work. That although Kelvin saw that the said order had Nakun Pipoi’s name and not the defendants he did not argue with him.

5. Kelvin Maxwell then saw the District Treasury and Lands Offices about the said Restraining Order; he was told that APPAP should continue working and not stop so work continued on the project site.

6. On or about 5th August 2009 at about 9:30am the defendant’s boys went back to the said project site and threatened Kelvin and his workers. At 5:30pm of the same day the defendant and his boys went back to the said project site and damaged the fencing materials valued at K7, 289.15.They also threw iron bars at the Kelvin and one of his workers almost hitting them on their heads. The defendant and his boys left taking some materials with them.

7. The police in their investigation have compiled a list of 6 witnesses and their respective statements and exhibits.

NO CASE TO ANSWER SUBMISSION

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

RELEVANT ISSUE

9. The defense raises one issue:

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

RELEVANT CHARGE

10. The relevant charge is as follows:-

Section 444. MALICIOUS INJURIES IN GENERAL: PUNISHMENT IN SPECIAL CASES.

(1) A person who wilfully and unlawfully destroys or damages any property is guilty of an offence that, unless otherwise stated, is a misdemeanor.

Penalty: If no other punishment is provided by this section–imprisonment for a term not exceeding two years.

(2) If an offence against Subsection (1) is committed by night, the offender is liable to imprisonment for a term not exceeding three years.

ROLE OF COMMITTAL COURT

11. 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)

12. 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).

13. Committal Proceedings do not determine the innocence or guilt of a defendant and cannot result in an acquittal. – Review pursuant to Constitution, Section 155(2) (b) Application by Herman Joseph Leahy (3).

14. In Bukoya v State (4) it was 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.

15. 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."

16. Further 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

17. The standard of proof in committal proceedings is stated in Regina v McEachern (7) (1967-68) PNGLR 48 where it held:-

18. "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."

19. This measure of sufficiency is less than the trial standard of proof beyond reasonable doubt.

1. ADDRESSING THE ISSUE

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

(a). Whether the evidence presented discloses sufficient evidence to put the Defendant on his trial for the offences for which he is charged?

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

22. The evidence collated by the Police can be divided into three parts. Firstly, the Court considered the evidence of witnesses, Kelvin Maxwell, Samson Carl and Mathew Elizah all of whom were at the scene of the alleged incident and at the material time. Secondly, the evidence of Nakun Pipoi whose appears on the restraining order and thirdly, the evidence of the Interviewing Officer Aloysius Gabe and Corroborating Officer Richard Sibolo.

CONSIDERATION OF WITNESSES’ STATEMENTS

23. The court has perused the contents of the Police hand-up brief and finds:-

(a).There is some evidence from Kelvin Maxwell, Samson Carl and Mathew Elizah of seeing the defendant and his boys damage fencing materials;

(b). The documentary evidence purporting to be evidence of the value of the damaged property is in actual fact a quotation for brand-new items being sold at Carpenters Hardware shop, Madang and there is no documentary evidence of the alleged damage.

(c). The nature of the charge is damage to tangible items i.e. steel posts, cement on steel posts, paints and hardwood for the fence. In essence what it means is that any such purported damage to such items can be easily identified, itemized, quantumized and realized in a damage assessment report. So it follows that a damage assessment report is certainly different from a quotation which is normally given to a customer sourcing out the best possible price of goods offered for sale in a shop. It is one thing to say you saw damage to property being done willfully and unlawfully but quite another to show evidence of such damage especially considering the fact that Kelvin Maxwell is the owner of a building company and would be reasonably expected to know the difference between a quotation for brand new building materials and a damage assessment report of damaged building materials as opposed to someone who is not involved in the building industry.

(d). I agree with Counsel that the underlying issue here is a dispute over land of sorts and this court does not have the jurisdiction to adjudicate as a result and therefore I consider Nakun Pipoi’s evidence irrelevant as what this Court is concerned with is damage to property, a criminal matter.

24. I am not wading into the fray here but on the same token I am mindful of the responsibility or duty I am charged with by law to ensure that at the end of the day only those committal matters whose evidence is prima facie in value proceed up to the next level by way of a decision to commit; I am obliged to assess the evidence as presented to me on the pre requisite standard of proof.

25. That standard of proof is not the standard operable in a criminal trial nor is it that of the civil standard. All I have to do is to form a bona fide opinion that there is sufficient prima facie evidence against the defendant.

STRENGTH OF EVIDENCE

26. I agree with the counsel that there is insufficient evidence against the defendant on the essential elements of the charge he is charged with.

DETERMINATION

27. As a consequence of my committal function not as an adjudicator but an investigator into the strength of the case being mounted by the prosecution, and in view of the above reasons I make the following findings:-

(1) There is insufficient evidence to support the essential elements against the defendant.

(2) I strike out the charge that has been laid against the defendant and discharge him of the information

(3) His bail is to be refunded to him forthwith.

Lawyer for the Informant, Police Prosecution
Lawyer fro the defendant Public Solicitors Office

_______________________________________
[1] Magistrates Manual of PNG
[2] Supra Note [1]
[3] SCR No 34 of 2005
[4] (2007) SC887 (17/10/07)
[5] (2006) N3110 (17/11/06)
[6] Supra Note [1]
[7] (1967-68) PNGLR 48