State v Tongop [2010] PGDC 35; DC1052 (1 September 2010)

DC1052

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

Cr No, 31, 34, 35, 42 of 2010

BETWEEN

STATE

V

RUDOLPH KIAKE TONGOP
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 V Kovoho (2005) NC2810
Lak V Magaru [1999] PNGLR572
Review Pursuant to Constitution s.155 (2) (b) Application by Herman Joseph Leahy (2000) SC855
Exparte CousensRe: Blackett (1964) 47SR (NSW) 145

REFERENCE:
Nil

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

RULING ON COMMITTAL

1. B.TASIKULa/PM: The defendant stands charge of three counts; On the first charge that he did dishonestly apply to his own use and to the use of others namely Mrs.B.A Kiakpe and Lonnie Menom Barok the sum of one hundred and eighty three thousand two hundred and fifteen Kina, sixty three toea (K183, 215.63) money belonging to Nimamar Rural Local Level Government.
   
2. On the second charge that between 6th August 2008 to 13th August 2008, did conspire with another person namely Lonnie Menom Barok to defraud Nimamar Rural Local Level Government by requesting a payment to repatriate his family from Australia to Papua New Guinea without the knowledge and approval of the Tumbawinlam Assembly members in which a payment of K183, 215.63 was obtained.
   
3. The final charge is that did by false pretence and with intent to defraud obtained from Nimamar Development Authority property money in the sum of K183,215.63 by claiming for repartition expenses for his family from Australia to Papua New Guinea.
   
4. The defendant was charge separately; however, because the evidence adduced by the State is one way or the other are relevant to all three charges, therefore I will hand down my decision as one judgment only for the three charges.
   
5. I have the benefit of reviewing the evidence that was tendered before me by the State. Likewise I also had the opportunity to read through both submission that was present before me by both the prosecution and the defense lawyers.
   
6. 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
   
7. 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 defendant to stands trial on all four charges.
   
8. Police obtained from witnesses, statements, including a record of interviews and other documentary evidence. These witnesses are Albert Bungim who is a ward 11 member of the Tumbawinlam Assembly, Joseph Siatze also ward 7 member and a committee of the Tumbawinlam Assembly Finance Committee. Herman Saet another member representing ward 15, Joesph Endo, who is the Sub District Administrator of Lihir Sub District , Daniel Alpheaus acting District Treasurer of Lihir , Gabriel Tukas who is the Senior Liaison Officer MRA office Mark Soipang chairman of LMALA ,George Minjihau the State Solicitor Bobby Aeron the Branch Manager with BSP Lihir, David Kawapure a Finance Inspector based in Port Moresby and the three police investigators from Police Headquarter attached with the National Fraud and Anti Corruption Directorate.
   
9. I do not wish to go through each of the witnesses’ evidence in detail however; I will make reference as to where I think it is necessary. According to the evidence the defendant was in Australia when he sent a letter to Lonnie Menom Barok requesting funds to repatriate his family from Australia to Lihir Island. Because of this letter Mr. Barok approval payment without the approval of the Tumbawinlam Assembly Finance Committee.
   
10. Documentary evidence shows that the sum of K183, 215.63 was process and paid to the defendant’s wife’s account. The money was from a 30% component from royalty money meant for community development projects.
    
11. There is also evidence that after payment was made he never inform the Tumbawinlam Assembly about this payment.
    
12. I noted from the two counsels submission where I was cited to number of case laws. 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 CanningsJ 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.

13. What his honor is saying, is 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 defense has adduced their evidence. This court is not a trial court.
    
14. 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 persons 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.

15. 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.

16. I hereby adopt his honors' view of the 1964 case. I am therefore of the view that the evidence before me are sufficient enough to commit the defendant to stands trial before the higher court. It is up to the trial Court to determine all the evidence and address other related issues, as this court has no jurisdiction to determine these issues under which he was charged with.
    
17. I am therefore satisfied that there is sufficient evidence to commit the defendant to stands trial before the National Court in all three charges.