Wilfred v Famini [2010] PGDC 43; DC1031 (9 November 2010)

DC1031

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (COMMITAL) JURISDICTION]

COM 198,199,200,201,202 & 203 of 2010

BETWEEN

ANDREW WILFRED
Informant

AND

JERWIN FAMINI, JUN ALON, FRANCISCO MONSALE, FRANZ OLIVA OYAO, RAMIL LUMACTOD & BONFACIO GELVOLEO
Defendant

Madang: J Kaumi
2010: 9th November

COMMITTAL PROCEEDINGS:- Defendants charged with one count of Murder contrary to Section 300(1)(b)(i) & (ii) of the Papua New Guinea Criminal Code Act -issue - whether evidence in the Hand up brief sufficient to commit the defendants to trial for the charge they stand charged.

Cases cited

Regina vs. McEachern [1967-68] PNGLR 48
The State vs. Tom Morris [1981] PNGLR 493
Paulus Pawa v The State [1981] PNGLR 498
State v Nelson Tuli (1997) N 1534, Batari. J
Maladina v Principle District Magistrate [2004] (25/06/04) Injia DCJ
State v Langu (No.1) (2004) N2651 (26/08/04) Cannings.J
SCR No 34 of 2005 – REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2) (b) Application by Herman Joseph Leahy
Andrew v State [2009] SC 997 (3/11/09)

Overseas Case

Barca v The Queen [12] [1975] HCA 42; [1975] 50 ALJR 108 at p.117.

References

Hill E R Powles G; Magistrates Manual of Papua New Guinea, Lawbook Co. (2001). Sydney NSW 2009.

Legislation

Criminal Code Act, Chapter 262
District Court Act, Chapter 40

Counsel

Sgt. P.Nonao, for the Informant
Mr. I R Shepherd for the six defendants

RULING

9th November 2010

A. INTRODUCTION

1. Kaumi, M This is a ruling made pursuant to s.95 (1) of the District Courts Act, Cht No. 40, after the receipt of all the evidence offered on the part of the police prosecution where this court sitting as a committal court is required by this provision to consider whether the evidence as it stands at this stage of proceedings is sufficient to put the six defendants (hereinafter referred to as the defendants) on trial.

B. TWO-PHASE COMMITTAL PROCESS

2. In the matter of Maladina v Principle District Magistrate¹ Injia DCJ ( as he then was ) outlined the committal process in the following terms:-

"These issues arises from what I would describe as a two-phase committal process prescribed in Ss. 95, 96 and 100 and 103. It is convenient to set out these sections:

...In my opinion, the first phase of the committal process (apart from s.94B procedure on committal for trial without consideration of the evidence) takes place under S.95. The Magistrate "receives" or "hears" evidence offered by the prosecution only, considers the evidence, and decides whether the evidence "is sufficient to put the defendant on trial." If the Court is of the opinion that there is insufficient evidence, the Court discharges the defendant on the information. That is the end of the matter. If the Court is of the opinion that the evidence is sufficient to put the defendant on trial, then the Court proceeds with the examination of the defendant under S.96.

Phase two is the examination of the defendant by the Magistrate under S.96. The prescribed wording of S.96 statement, which the Magistrate puts to the defendant, is part of that provision. The Statement implies that the defendant has "heard" the evidence for the prosecution, which the Magistrate has considered, and made his decision under S.95. The Magistrate gives the defendant an opportunity to give evidence and to say anything in relation to the charge, if he so wishes to.

In my view, there is no express provision in S.95 giving the defendant a right to be heard, before an opinion on the evidence is formed by the Court. There is also no provision for the defendant to give evidence and/or to make oral and/or written submissions. Likewise, there is no duty imposed on the Magistrate to afford a defendant or his counsel any such opportunity. His opinion on the sufficient of the evidence is formed purely on the basis of the evidence offered by the prosecution. At this stage where the Magistrate has formed an opinion that there is sufficient evidence for the defendant to stand trial in the National Court, the determination is preliminary only. No decision is yet made on whether to commit the defendant to stand trial.

In my view, under phase two (2) provision under S.96, there is no question of the defendant's right to be heard, before a final decision is made under S.100 or 103. This would be the time for him or his counsel, to stand up and present his written submissions and speak orally or even give evidence. "

C. FUNCTIONS OF THE COMMITTAL COURT

3. As I have reiterated the last few months in which I have been dealing with Committal matters that the role in PNG of committal Courts are well established and are inter alia as stated:

(i). 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 11.2.3²

(ii). 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. ³

(iii). Committal Proceedings do not determine the innocence or guilt of a defendant and cannot result in an acquittal. – SCR No 34 of 2005 – REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2) (b) Application by Herman Joseph Leahy. ⁴

(iv). 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.⁵

D. STANDARD OF PROOF

4. The standard of proof in committal proceedings is stated in Regina v McEachern ⁶ where it held:-

5. "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."

6. This measure of sufficiency is less than the trial standard of proof beyond reasonable doubt.⁷

E. BACKGROUND

7. I adopt the statement of facts in the Police hand-up brief and they are as follows that on the 29th March 2010, Fishing Vessel Dolores 838 was at position Latitude 2 degrees 04.5863 South and longtitude 142 degrees 04.80000 East.

8. After the morning fish harvest, the missing observer went to his cabin and rested. He and his PNG screw Scriven Wangi woke up in the afternoon where the National crew went out to the deck to prepare for the next harvest. The National Crew returned to the cabin after his preparation and joined the observer in their cabin.

9. Between 6:00 pm and 7:00pm all Philipino crews gathered and fronted up at the National cabin. Ramil Lumactod, a Philipino crew told the observer that the Captain wanted to see him in the mess hall, when in fact the captain did not say that.

10. The observer did not react that another Philipino crew Jun Alon rushed the observer to go quickly to the mess hall. The observer, being unhappy about the instruction, moved out and surrounded by all crews walked to the mess hall.

11. National Crew Scriven Wangi followed later to the mess hall for dinner and noticed the observer unhappy. As the National crew spoke to the observer, the observer did not talk but only nodded his head.

12. In the mess hall at that time, the Philipino crews were all drinking bottles of Genefer and Robinson whisky.

13. As the observer tried to leave, he put a cigarette on the National crews table to take after dinner. The observer then walked to the mess door and opened it. Before leaving he turned and looked into the mess.

14. Before the observer left, Ramil and Jun Alon rushed to him at the door way that in a way all three went out together and the door opened only once and closed once. It was 8:45pm when the observer left and in a space of 15 minutes, Ramil and Jun Alon rushed into the mess looking frightened with their facial appearance changed and prompting attention that something was not right.

15. The National crews rushed to check the observer but was no where to be seen. Captain was alerted and the vessel turned on reverse course to search but to no success. Ramil and Jun Alon rushed into the mess looking frightened with their facial appearance changed and prompting attention that something was not right.

16. The National Crews rushed on to check the observer but was no where to be seen. Captain was alerted and the vessel turned on reverse course to search but to no success. Ramil Lumactod and all crews were questioned and all denied knowledge of the missing observer when in fact they were the last persons with the observer and did not reveal the truth.

17. Following normal investigation, all first six accused were charged on the 15th July 2010 with one count of murder and detained for hearing.

F. THE POLICE CASE

18. At the outset the evidence collated by the Police against the defendants is in the form of 31 witnesses, 26 documents, the respective Records of Interview of all defendants and six statements made by them and these are all in support of their assertion that the defendants murdered Charlie Lasisi on 29th March 2010 in such circumstances as to come within the ambit of s.300 (1) (b) (i) & (ii) of the Papua New Guinea Criminal Code Act. The Police assert that though the evidence is circumstantial in nature, it points to the defendants as being responsible for the death of Charlie Lasisi.

19. The Police evidence collated in the Police hand-up brief can be categorized as follows:-

(A). Statements-

(i). 18 x Dolores crew members-

Mark Basnig - crew of Dolores 838 - his evidence is irrelevant as it does not touch on the relevant issue;

Kristian Ray Bolano - crew of Dolores 838 - cabin mate of Charlie and observed him to be a person of a quiet demeanour. On the 29/03/10 at around 8:00pm he passed Charlie on his way out of their cabin and that was the last he saw of him. His evidence is irrelevant as it does not touch on the relevant issue.

Edwin Oscares - crew of Dolores 838 - his evidence was that he observed Charlie to be a person of quiet demeanour and his account of what he did at the material time is irrelevant as it does not touch on the relevant issue.

Peter Bahena - crew of Dolores 838 - his evidence is that on 29/03/10 at 6:00pm when he had his dinner in the mess he did not see Charlie in the mess and was later woken by his cabin mate Franz Oyao that Charlie was missing and a search for Charlie was on. His evidence is irrelevant as it does not touch on the relevant issue.

Ronnie Capero - crew of Dolores 838 - his evidence was that at the relevant time he was in the engine room and irrelevant as it does not touch on the relevant issue;

Rojo Diantan - crew of Dolores 838 - his evidence is irrelevant as it does not touch on the relevant issue;

Antonio Masaglang - crew of Dolores 838 - his evidence is irrelevant as it does not touch on the relevant issue;

Jolito Ronillas - crew of Dolores 838 - his evidence is irrelevant as it does not touch on the relevant issue;

Rogelio Otero - crew of Dolores 838 - his evidence is that on 29/03/10 at 8:00pm he had his back to the door to the mess hall and kitchen whilst he was having his dinner and watching a movie and did not see who was behind him. At this time he was in the company of Wangi,Ramil and Jerwin and that at 9:00pm or 9:10pm he heard the Captain call over the Public Address system that Charlie was missing then he got up to search for Charlie and saw only Jerwin Famini so together they went to look for him. His evidence is irrelevant as it does not touch on the relevant issue;

Marven Serguiza - crew of Dolores 838 - his evidence is irrelevant as it does not touch on the relevant issue;

Diana Jomar - crew of Dolores 838 - his evidence is irrelevant as it does not touch on the relevant issue;

Leovi Magdaparan - crew of Dolores 838 - his evidence is irrelevant as it does not touch on the relevant issue;

Joselito Roca - crew of Dolores 838 - his evidence is irrelevant as it does not touch on the relevant issue;

Willonardo Malud - crew of Dolores 838 - his evidence is irrelevant as it does not touch on the relevant issue;

Marcilino Daniel - crew of Dolores 838 - cabin mate of Charlie and his evidence is irrelevant as it does not touch on the relevant issue;

Melben Mabalot -Chief Mate and crew of Dolores 838 - his evidence is that on 29/03/10 after he stayed at the bridge as the look out officer until he and the captain shut the engine at 1800pm then he went down to the mess hall for dinner where he saw Charlie sitting down and watching TV with other crew members and after having his dinner he went straight to his cabin and watched TV and sometime later he couldn't tell when he heard the captain over the PA system informing all the crew that Charlie was missing and then he joined in the search for him. He then states how the captain conducted the search from 2140hours to 2340hours that night and during the next day. His evidence is irrelevant as it does not touch on the relevant issue;

Allan Jay Baldelovar - Chief cook and crew of Dolores 838 - his evidence is mostly about conversations between Charlie and himself before and on the morning of 29/03/10 and his observations of Charlie as a result of these conversations and are irrelevant as it does not touch on the relevant issue;

Scrivan Wangi Crew of Dolores - he is the key Police witness and it is his evidence that the police hitch their case on so it is important to summarize his evidence and it is as follows:-

(a). his work history with RD tuna from 2006 to 3rd March 2010;

(b). his association with Charlie from 3/03/10 to 11/03/10;

(c). events from 11/03/10 to 18/03/10 after Dolores 838 sailed out of Vidar Harbour headed north to their fishing grounds in open seas;

(d). Events of the 18/03/10 to 29/03/10 after netting with Indonesian pump boats where fish was traded for cigarettes, biscuits, spirits (whisky) and sweets with the Indonesians;

(e). Events of 29/03/10 on board Dolores 838 from 1500hours onwards –

* Peter Bahena visited Charlie and Wangi in their cabin.

*Wangi left for deck duty at around 1500 hours and finished work at 4;30pm, returned to the cabin and found Charlie there.

*Between 6:30pm and 7:00pm, a number of Filipino crew members, Ramil Lumactod, Jun Alon and others came to their cabin and gathered at their cabin door.

*Conversation that transpired between Ramil, Charlie and Wangi and Alon's insistence that Charlie go quickly because the captain wanted to see him.

*Wangi's observation of Charlie's demeanour in the cabin at this time.

*Wangi entered the mess sometime after Charlie had left their cabin in the company of the Filipino crew and saw Charlie in the mess but that he didn't look happy and nodded in response to a question by him which Wangi said indicated to him that something was wrong.

*Wangi noted that the captain was not in the mess at this time and he became suspicious.

*Wangi noted bottles of Robinson and Genefer on the table, the crew drinking and drinks one glass of whisky.

*Wangi noted a conversation between Ramil, Alon and Melvin Malabot.

*Wangi noted Ramil and Alon leaving the mess at the same time Charlie leaves at 8:45pm.

*Wangi took his time having his dinner in the company of Roka and then he washed his eating utensils, locked them away and then made his way out of the mess.

*Wangi later notes Ramil and Alon entering the mess door in a rushed manner as he is leaving and judges from their facial expression that they appeared to be scared and frightened of a wrong.

*Wangi sensed something was not right and checked for Charlie in their cabin and on the bridge

*Wangi makes certain assumptions in paragraphs 86 to 89

*Wangi in paragraph 92 stated that Charlie had told him about girlfriend of mixed Rabaul parentage and a baby.

*Wangi's paragraphs.67 to the end of his affidavit concern matters not relevant to the relevant issue.

(ii) Qualified seamen and Fisheries staff

Issac Manuattah - seaman 26 years experience -this witness's conclusion as to what happened to Charlie is an assumption and would be unacceptable in a trial situation and in this instance irrelevant to the relevant issue.

Jerry Bagat - Captain and National Tutor at Fisheries College, Kavieng -his evidence is irrelevant as it does not touch on the relevant issue.

Herman Kisokau - VMS officer NFA - covered the route taken by Dolores on 29/03/10 - his evidence is irrelevant as it does not touch on the relevant issue.

Kemi Emo - Observer took photographs of illegal trade with Indonesians- his evidence is irrelevant as it does not touch on the relevant issue.

Casian Saroya - Provincial Fisheries Advisor/ Vanimo - searched for body- his evidence is irrelevant as it does not touch on the relevant issue.

(iii). Lasisi Family

Robert Lasisi - Father of Charles Lasisi/denies fighting with him or the girlfriend and baby - his evidence is irrelevant as it does not touch on the relevant issue.

Bewa Lasisi - Mother of Charles Lasisi/ corroborates Robert Lasisi - her evidence is irrelevant as it does not touch on the relevant issue.

John Lasisi - brother of Charles Lasisi/ corroborates Robert and Bewa Lasisi - his evidence is irrelevant as it does not touch on the relevant issue.

Pastor Willie Lavoi - corroborates Robert and Bewa Lasisi - his evidence is irrelevant as it does not touch on the relevant issue.

(iv). Police Investigation Team

Andrew Wilfred - Investigating Officer - his evidence is irrelevant as it does not touch on the relevant issue.

Rodney Rakum - Corroborating Officer - his evidence is irrelevant as it does not touch on the relevant issue.

Paul Musingan - Corroborating Officer - his evidence is irrelevant as it does not touch on the relevant issue.

Hendia Boti - Corroborating Officer - his evidence is irrelevant as it does not touch on the relevant issue.

(B). Documents

Record of Interview of Franz O.Oyao - do not contain any incriminating admissions.

Record of Interview of Ramil Lumactod - do not contain any incriminating admissions.

Record of Interview of Jun Alon - do not contain any incriminating admissions.

Record of Interview of Francisco Monsale - do not contain any incriminating admissions.

Record of Interview of Jerwin Famini - do not contain any incriminating admissions.

Record of Interview of Bonifacio Gelvoleo - do not contain any incriminating admissions.

4 page statement of Ramil Lumactod dated 17/04/10 - do not contain any incriminating admissions.

5 page statement of Franz O.Oyao dated 24/04/10 - do not contain any incriminating admissions.

4 page statement of Bonifacio Gelvoleo dated 10/04/10 - do not contain any incriminating admissions.

1 page statement of Jun Alon dated 11/04/10 - do not contain any incriminating admissions.

1 page statement of Jerwin Famini dated 15/04/10 - do not contain any incriminating admissions.

Incident report by Melvin Mabalot to R.T.Lamparero dated 30/03/10 - is irrelevant to the relevant issue.

Report of missing observer by R.T.Lamparero to Slyvester Pokajam, dated 31/03/10 - is irrelevant to the relevant issue.

Photographs of Dolores 838 - is irrelevant to the relevant issue.

Certificate of completion in Radar Navigation-B.Gelvoleo - is irrelevant to the relevant issue.

Certificate of completion in Basic Safety-B.Gelvoleo - is irrelevant to the relevant issue.

Major Paton Certificate-B.Gelvoleo - is irrelevant to the relevant issue.

Duty Roster-Dolores 838 - is irrelevant to the relevant issue.

Sunday Worship Attendance Record-7/03/10 - is irrelevant to the relevant issue.

Bible Study Attendance Record-24/03/10 - is irrelevant to the relevant issue.

30 photographs by Kemi Emo - is irrelevant to the relevant issue.

Criminal Code & Case law - is irrelevant to the relevant issue.

NFA VMS Satellite Track of Dolores 838 - is irrelevant to the relevant issue.

G. RELEVANT ISSUE

(i). THE LAW: THE CHARGE AND ITS ELEMENTS
CHARGE

20. The charge which the defendants have been charged with is one of Murder contrary to s.300 (1) (b) (i) (ii) of the Criminal Code Act of Papua New Guinea and is as follows:- Section 300. MURDER.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;

(b) if death was caused by means of an act–

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life;

ELEMENTS

21. In the matter of State v Langu (No.1) ⁸ his Honour Cannings.J outlined the essential elements of an offence contrary to s.300(1)(b)(i)(ii) that must be proven beyond reasonable doubt as follows:-

(a). that the accused killed another person;

(b). that the circumstances of the death were caused by means of an act done in the prosecution of an unlawful purpose; and

(c). the act was of such a nature and has to be likely to endanger human life.

(ii). DISCUSSION OF THE ELEMENTS OF THE CHARGE

22. His Honour Cannings.J in discussing the elements of the offence stated that in determining the first element, whether the accused had killed another person, s.291 of the Criminal Code was relevant and that provision provides that:-

"Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person."

23. In respect of the second element and third element he stated as follows:-

"The second and third actus reus elements must be separately proven. The unlawful purpose (second element) and the dangerous act (third element) relied on by the prosecution must be shown to be distinct. The dangerous act must be done while prosecuting some purpose other than the doing of the dangerous act itself. The provision is aimed at a situation where an act, eg striking, occurs when some other and distinct purpose, eg armed robbery, is being pursued."

24. His Honour therefore found that firstly in relation to the first element of killing, that the accused, Charlie Langu had directly caused the death of Rita Sora; by spearing her with a spear and that he killed her. Secondly in relation to the second element of unlawful purpose, the accused had taken part in a riotous assembly (see Criminal Code ss.63, 64) and that was an unlawful purpose, that his killing of Rita Sora had taken place in the course of prosecuting that unlawful purpose. Thirdly in relation to the third element of endangering human life that it had been proven beyond reasonable doubt that the act that caused Rita Sora's death-throwing of a spear at a person at close range- was inherently dangerous and that it was of such a nature as to be likely to endanger human life.

25. In State v Nelson Tuli ⁹ Batari . J stated that: "[f] or the purpose of that provision, the 'act' which is done in prosecution of the unlawful purpose is separate and distinct of the "unlawful purpose".

(iii) RELEVANT ISSUE

26. The issue of law that arises in the present case is therefore:-

Whether or not the evidence presented discloses sufficient evidence to put the six defendants on trial for the offence for which they have been charged?

27. I highlight this issue by posing the following questions:-

(i).Did the six defendants kill Charlie Lasisi?

(ii).Were the circumstances of the death of Charlie Lasisi caused by means of an act done in the prosecution of an unlawful purpose? And

(iii). was this act of such a nature and as to be likely to endanger human life

(iv) CIRCUMSTANTIAL EVIDENCE

28. The Supreme Court bench comprising Cannings, Gabi and Yagi.JJ in the matter of Andrew v State ¹⁰ stated that the law on circumstantial evidence was stated in the State v Tom Morris ¹¹ by Miles J at p.495.

"I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Ct of Australia in Barca v The Queen ¹² .

"When the case against an accused person rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be in consistent with any reasonable hypothesis other than the guilt of the accused."

29. The Supreme Court adopted these principles in Paulus Pawa v The State ¹³. In order for the Court to be satisfied beyond reasonable doubt of the guilt of an accused person, it is necessary not only that his should be a rational inference but that it should be the only rational inference that can be drawn.

30. These principles have been adopted in many subsequent cases.

H. ASSESSMENT OF THE EVIDENCE

31. The evidence collated by Police against the defendants in the form of 31 witnesses, 26 pieces of documentary evidence and the respective Records of Interviews x 6 are all in support of their assertion that the six defendants murdered Charles Lasisi on 29/03/10 in such circumstances as to come within the ambit of sec 300(1) (b) (i) + (ii) of the CCA.

32. This evidence is circumstantial in nature and this court has to assess it in totality in order to determine whether or not there is sufficient evidence on the pre requisite standard of proof of the three elements of the charge.

Question (i).Did the six defendants kill Charlie Lasisi?

33. Since the evidence provided is circumstantial I pose an initial question and that is, is the only reasonable hypothesis that could be drawn from the circumstances one that the six defendants killed Charlie Lasisi.

34. From the circumstances I find that there are a number of hypothesis that could be drawn and some of them are as follows:-

(i).That Charlie accidentally fell overboard in a drunken state; or

(ii).That Charlie deliberately jumped overboard; or

(iii).That Charlie was physically attacked and then thrown overboard; or

(iv).That Charlie was killed and weighed down with weights and thrown overboard; or

(v). That Charlie's body was concealed in a secret compartment on the Dolores 838; or

(vi).That Charlie left Dolores 838 in another boat.

35. These are a number of hypothesis and I am sure given human nature as it is there would be a rumor mill running as to what could have happened to Charlie, however I find that the evidence collated by the police insufficient to allow me to draw the only rational inference that the six defendants killed Charlie Lasisi either directly or indirectly.

Answer (i): No, there is insufficient evidence that the six defendants killed Charlie.
Question (ii).Were the circumstances of the death of Charlie Lasisi caused by means of an act done in the prosecution of an unlawful purpose?

36. The time frame when the incident is alleged to have occurred is between 10 to 15 minutes from 8:45 to 9:00 pm and there was consumption of alcohol in a cabin and the mess before 8:30 pm that night by certain crew members of Dolores 838 including Charlie and that he left the mess at around 8:45pm.

37. What happened after this is conflicting as to the exact time Ramil and Jun Alon left the mess, however what is significant for the purposes of these proceedings is what they did after they left the mess and there is absolutely no evidence of this to assist this committal court on this crucial aspect and the only suggestion is the speculation by Scriven Wangi. The behavior of Ramil and Alun at the material time may have been erratic but that is as far as it goes and it certainly does not shed any light on this aspect.

38. What happened to Charles Lasisi after he left the mess around 8:45pm is unknown and despite the large volume of evidence collated by police I am still unclear as to what happened to him, is he still alive today or isn't he, the brevity of evidence on this crucial aspect has not assisted matters.

39. There is insufficient evidence that the six defendants were partaking in an illegal activity between 8:45pm and 9:00pm when they are alleged to have killed Charlie.

Answer (ii).I find insufficient evidence that the six defendants killed Charlie during the course of prosecuting an unlawful purpose.

Question (iii). Was the act of such a nature and as to be likely to endanger human life?

Answer (iii). I find insufficient evidence of an act that was likely to endanger human life during the course of prosecuting an unlawful purpose.

I. DETERMINATION

40. The relevant issue is whether or not the evidence presented discloses sufficient evidence to put the six defendants on trial for the offence for which they have been charged and on the basis of the three answers this court has given above as a result of the performance of its committal function as an investigator into the strength of the case being mounted by prosecution and not as an adjudicator ¹⁴, it have assessed the evidence in totality and makes the following finding:-

(i).there is an insufficiency of evidence on the essential elements of the charge and therefore I cannot form a bona fide opinion against the six defendants that there is a sufficient prima facie case against them in order to commit them to stand trial for the crime of murder under s.300.1 b (i) and (ii) of the CCA PNG;

(ii).I discharge the six defendants as to the information;

(iii).I dismiss the information;

(iv).I order that bail monies are to be refunded to the six defendants forthwith;

(v).I order that their seaman books are to be returned to the six defendants forthwith.

Police Prosecution for the Informant
Blake Dawson for the Defendants

__________________________
1. [2004] (25/06/04)
2. Hill E R Powles G; Magistrates Manual of Papua New Guinea, Lawbook Co. [2001]. Sydney, NSW 2009.
3. [Supra note 2]
4. SCR No 34 of 2005 – REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2)(b) Application by Herman Joseph Leahy.
5. [Supra note 2]
6. Regina vs. McEachern [1967-68] PNGLR 48
7. [Supra note 2]
8. (2004) N2651 (26/08/04)
9. (1997) N 1534
10. [2009] SC 997 ( 3/11/09)
11. [1981] PNGLR 493
12. [1975] HCA 42; [1975] 50 ALJR 108 at p.117
13. [1981] PNGLR 498
14. [Supra note 2]