State v Barok [2010] PGDC 33; DC1049 (1 September 2010)

DC1049

PAPUA NEW GUINEA
[In the District Court of Justice sitting in its criminal Jurisdiction]

Cr No 28, 43 of 2010

BETWEEN

STATE

V

LONNIE MENOM BAROK
Defendant

LIHIR: B.TASIKUL
1st September, 2010

CRIMINAL LAW: No case submission- Ruling on similar facts before a committal Court-Function of the committal Court. It is not necessary to established all element of the offence. It is the duty of the trial Court.

CASES CITED:
State V Paul Kundi Rape [1976] PNGLR96
State Kovoho (2005) NC2810
Lak V Magaru [1999] PNGLR572
Review Pursuant to Constitution s.155 (2) (b); Application by Herman Joseph Leahy (2000) SC855
Exparte Cousens: Re: Blackett (1964)47SR (NSW) 145

REFERENCE:
Nil

Appearing for the defendants: Seth Tanei of Kimbu & Associates Lawyers
Appearing for the Prosecution: Pare Kuiap of Police Legal Section

RULING ON COMMITTAL PROCEEDING

1. B: TASIKULa/PM: The defendant stands charged on two counts.
   

(1) Did conspire with another person namely Mr. Vincent Ambia, the ward one councilor of Nimamar Rural Level Government by accepting Mr. Vincent Ambia, s claim requesting Nimamar Rural Local Level Government to pay for his wife and himself personal properties value at K12, 000.00 that was stolen by thieves in a vehicle that was used by the defendant in Port Moresby on the 6th November 2008. Contravening Section 407(1) (b) CCA.

2. (2) Did dishonestly applied to the use of another person namely Mr. Vincent Ambia property namely K12, 000.00 the property of Nimamar Rural Local Level Government. Contravening Section 383(1) (a) CCA.
   
3. The defendant was charge separately from Mr. Ambia however, the evidence tendered by the prosecution contains substantially and fundamentally the same facts. However, because it is not a join trial I will rule on each case separately.
   
4. I have the benefit of reviewing the evidence that was tendered before me by the prosecution. Likewise I also had the opportunity to read through both submission that was present before me by both the prosecution and the defense lawyers.
   
5. As a committal Court my function is to consider the evidence presented by the state and decide whether or not there is sufficient enough evidence to make a ruling of a prima facie case to commit the defendants to stands trial in the National Court
   
6. This principle of law is well established in our jurisdiction from the case of State V Paul Kundi Rape [1976] PNGLR 96, and have been adopted thereafter by numerous cases. As to the present case on hand I also ask myself the same question as to whether the evidence now adduced by the state is sufficient enough to commit the two defendants to stands trial at the higher court.
   
7. According to the evidence presented by the State, police obtained statements from six witnesses, including a record of interviews and other documentary evidence. These witnesses are David Kawapuro who is a Principle Finance Inspector based in Port Moresby,Simion Malai, who is the Province Administrator of New Ireland, Robinson Panko a Bank South Pacific Manager at Lihir Branch, Margaret Daule,an employee with Investment Promotion Authority based in Port Moreby,and the two police investigators, namely Sergeant Aro and First Constable Sopota.
   
8. I do not wish to go through their evidence in detail however; I will make reference as to where I think it is necessary. There is no direct evidence to suggest that the defendant Lonnie Menom Barok has conspired with Mr.Ambia in which a sum of K12, 000.00 was paid to Mr.Ambia.
   
9. Likewise, there is no direct evidence that Mr. Barok did dishonestly applied to the use of another person in this case Mr. Ambia the sum of K12,000.00 which the property of Nimamar Rural Local Level Government.
   
10. However, there is evidence that Mr. Menom L. Barok was with the defendant at Port Moresby when Mr. Ambia s properties were stolen. There is also documentary evidence that the defendant was the officer that wrote to the Financial Controller authorizing him to execute the payment. The evidence further reveals that the defendant signed a Statutory Declaration outline the loss of Mr. Ambia s properties. For this reason I would conclude that the defendant and Mr. Ambia were aware of this transaction. There is further evidence the money was paid from the Nimamar Development Authority account.
    
11. I noted from the two counsels submission where I was drawn to numerous case laws citing issues as a matter of law. However, I must not lose track of what the committal court function is all about. In State V Kovoho (2005) National Court Unreported Judgment N2810, his honour Cannings J states as I quote;
    

Note that the question is not: is every element of the offence established beyond a reasonable doubt? That question can only be answered at the end of the trial – if it proceeds – on the whole of the evidence, i.e. including any evidence adduced by the accused.

12. What his honour is saying, that not all element of the offence need to be established beyond reasonable doubt. The only way for the prosecution to prove all the elements is at the end of the trial court after both the prosecution and the defence has adduced their evidence. This court is not a trial court.
    
13. The same was make mention in the case of Lak V Magaru [1999]PNGLR 572 where his honour Sheehan J (as he was then) alluded;
    

Notwithstanding that <committal> proceedings do make determination effecting a person’s rights thus enabling courts to consider applications for review, the fact is that a <committal> nonetheless makes no determination of liability or penalty. It is a preliminary process in the system of criminal justice where the prosecutor makes public disclosure to a <Committal> Court of evidence relied on to support an application for <committal> for trial of a charge. The National Court is where that evidence is to be tried, where it is to be tested. Thus upon <committal> the National Court is seized of a matter in its criminal jurisdiction. And there in the National Court, an accused has all the rights protections and appeal procedures that the criminal justice system provides. Because of this, Courts have long been disinclined to intervene in complaints regarding <committal> proceedings by use of a civil action of review when the matters may properly be dealt with under the criminal jurisdiction itself.

14. The supreme Court in the case of an Review Pursuant to Constitution Section 155(2) (b) Application by Herman Joseph Leahy (2006) SC855 unreported Judgment the bench adopted the view by his honour Mogish J held in the National Court as I quote;
    

That the role of a <committal> magistrate is not to decide whether to dismiss or acquit an accused person charged with an indictable offence or to determine the guilt or innocence of the accused. The magistrate's function under Part VI (proceedings in case of indictable offences) of the District Courts Act is to consider whether the evidence adduced is sufficient to put the accused on trial in the National Court. His Honour cited with approval the following dicta of the Full Court of the Supreme Court of New South Wales in Ex parte Cousens: Re Blackett [1946] NSWStRp 36; (1964) 47 SR (NSW) 145:

In substance a committing magistrate determines nothing except that in his opinion a prima facie case has been made out for committing the accused for trial. ...

In relation to charges of offences which they have no jurisdiction to try or dispose of, their authority is not judicial; they do not determine whether the accused is guilty or not guilty; they consider the evidence against him and if they think that there is enough to justify putting him upon his trial, they direct that he be held, or bailed, for trial by a court which has jurisdiction to try him. This is essentially an executive and not a judicial function.

15. I will therefore adopt his honors' view of the 1964 case. I am therefore of the view that what evidence before me may, not all have established all the elements of the charges, but there are sufficient evidence enough to commit the defendant to stands trial before the higher court. It is up to the National Court to determine all the evidence and address other issues, as this court has no jurisdiction to determine these offences which the defendant was charge with.
    
16. I am therefore satisfied that there is sufficient evidence to commit the two defendants to stands trial before the National Court.