State v Wakon [2010] PGDC 57; DC2008 (21 July 2010)

DC2008

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

COM 28 of 2010

BETWEEN

STATE

AND

ROBERT WAKON
Defendant

Madang: J Kaumi
2010: 13th, 14th May,09th, 23rd June, 07th, 21st July

COMMITTAL PROCEEDINGS: Hand-up brief – Defendant charged with one count of Armed Robbery, Section 386(1)(2)(a)(2)(b) of the Criminal Code Act of PNG-issue whether evidence in the hand up brief sufficient to commit the defendant to stand trial for the offence he stands charged.

Cases cited

Regina vs. McEachern [1967-68] PNGLR 48
State vs. John Beng [1976] PNGLR 421
SCR No 34 of 2005-REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2) (B) Application by Herman Joseph Leahy
Liri vs. State [2006] N3110 [17/11/06]
Bukoya vs. State [2007] Sc 887 [12/10/07]

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

Legislation
Constitution of PNG
Criminal Code Act, Chapter 262
District Court Act, Chapter 40

Counsel
Sgt. Suamani, for the Informant
Defendant in person

RULING
5th July2010

INTRODUCTION

1. Kaumi, M The defendant is charged with one count of Armed Robbery contrary to Section 386 (1)(2) (a)(2)(b).

SUMMARY OF FACTS

2. This court adopts the brief facts of the police hand up brief and therefore will not repeat them all but in summary that it is alleged that on 2nd February 2010, between the hours of 10:00am and 12:00 midday he and several other people were seen loitering around the Oriental Star Office situated at Machine Gun along Coronation Drive. It is further alleged that on the said date, time and place the defendant and his accomplices saw the branch manager of Kwima Security Service Mr. Bonny Kune escorted the money for the company in and the security guards open the gate and he drove in. As soon as the security guards wanted to lock the main gate the defendant and his accomplices pushed the gate and rushed into the yard.

3. The defendant and his accomplices pulled out two pistols they concealed in their bags, one was a factory made and the other one was a home made. They held up the security and Mr. Bonny Kune and ordered them to sleep face down on the cement floor and stole the money totaling to K198, 000.00.

4. Later they got the key to the manger's vehicle and started it and made their get away with the money and nothing has been retrieved.

5. The defendant was later then arrested and charged for the offence. He was cautioned, told of his rights and placed in the cell.

6. The police in their investigation have collated evidence from a number of witnesses.

THE RELEVANT ISSUE

7. The issue in this matter is whether or not the evidence presented discloses sufficient evidence to put the Defendant on his trial for the offence for which he is charged?

FUNCTIONS OF THE COMMITTAL COURT

8. "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]

9. 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]

10. 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]

11. Bukoya v State [2007] ^[4] 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.

12. In Liri v State [2006] ^[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."

13. 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

14. The standard of proof in committal proceedings is stated in Regina v McEachern ^[7] where it held:-

"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."

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

16. Now having alluded to these underlying principles governing the committal process I address the issues.

CONSIDERATION OF WITNESSES STATEMENTS

17. This Court when perusing the Police Hand up brief bears in mind its role in committal proceedings ^[8] and the various Supreme Court authorizes on issue of identification ^[9].

18. The court has had the benefit of perusing and considered the evidence of the witnesses immediately before and during and after the robbery and notes the witnesses in this matter are the same as those in the matter against Terence Irum his co-defendant.

19. Secondly the record of interview.

Before robbery

20. The Court notes the evidence of Joyce Philip and it can be best summarized as follows:-

(i).She met and recognized this defendant and two others at around 6.00am on 1/02/10 at Modilon Supermarket and had a conversation with them. She describes this defendant as being Robert Mero her boyfriend. They asked her if she wanted an ice cream and bought her one and then left her saying they were going to the sea front. She asked to follow them but they refused. She identified them being together and said she had known them well for quite some time, even going to the extent of giving brief descriptions of their personal backgrounds.

During robbery

21. The Court notes the evidence of Ben Dina, Jim Tella, Bonny Kune and Cynthia Mackay Mathias and it can be best summarized as follows:-

(i).They all saw two of the robbers because they were all unmasked at all times;

(ii).They all saw the two robbers given that it was broad day light and were in close proximity to them

(iii).They all recognized two of the robbers given the extended period of time the robbers were around them in close proximity.

(iv). Their description of the clothing worn by the perpetrators though differing in some respects was similar to descriptions given by Joyce Philip and Stanley Samuga.

22. The Court notes that they did not mention any names in their respective statements to Police but that one of them stated that he could identify two of the robbers if they were apprehended later and he was asked to identify them.

23. The Court also notes that there appears on the face of the Statements to have not been any Police Identification parade conducted.

24. The Court notes further that Police witness Ben Dina who was at the scene at the material time and had a physical confrontation with the robbers accompanied Police personal to the Sagalau Market later on the same day where he identified and recognized this defendant as one of the perpetrators resulting in his apprehension.

After robbery

25. Witnesses - Joyce Philip, Stanley Samuga, Eddie Philip, Joh and Yama and Ben Dina.

26. Firstly, the Court notes that at 12.00 midday of the same day Joyce Philip was at her house at Binnen Point with her foster father and two brothers and saw this defendant again and the same two others whom she identifies and saw this defendant carrying a small black bag and had two factory made pistols wrapped in a laplap or piece of cloth and a homemade gun in his hand and she also saw Robert's friend Terence holding a homemade pistol and further describes the type of clothing each was wearing. She states that the defendant and his friends asked her to hide them but she refused to as in the past she entertained them and as a result she and her family had been beaten up by Police and so they left her.

27. Secondly, John Yama was present when Joyce Philip and Ben Dina both identified this defendant sitting at the side of the store at Sagalau Market as being one of the perpetrators of the said robbery resulting in him being apprehended there on the same day (1/02/10).

28. In relation to record of interview the defendant chose to exercise his right under Section 42 (2) to remain silent on the questions relating to the material facts.

Identification

29. Secondly the Court noted the following principles on identification in:

(i). Frost CJ in State v John Beng ^[10] that where evidence of identification is relevant, the court should be mindful of the inherent charges. There is no rule of Law that the evidence of one witness is insufficient, nor is there any rule of law that there must be a police parade for purposes of identification nor is there any rule of law that in every case, a warning ought to be (given to the jury,) it all depends upon the circumstances of the case before it.

(ii). State v Yakoto Imbuni ^[11] which followed John Beng. In this case three witnesses gave evidence that they saw the incident involving the killing of three people, which lasted 10 to 15 minutes. The attack took place in broad day light and the attackers did not cover their faces. In the circumstances Akuram .J held that he could safely say the witnesses' identification was good and they could be believed. It was irrelevant that the witnesses were unable to name the accused in their witness statements to the Police.

(30). The immediate case before this court is only committal in nature, and certainly has not had the benefit of the trial process played out before it.

DETERMINATION

(31). In summation this court in reaching its findings has considered the totality of the evidence of the particular Police witnesses it has referred to, and having outlined especially the principles regarding identification with emphasis on the nature of the statement of the witnesses this court in the exercise of its committal function bearing in mind the pre requisite standard of proof makes the following findings:

(i). In relation to one count of robbery contrary to section 386 (1) (2) (a) (2) (b) of the Criminal Code Act, sufficient evidence on the essential elements of the charge and commits him as charged;

(32). I now administer Section 96 to the defendant.

Police Prosecution for the informant
None for the Defendant

---

^[1] Hill E R Powles; Magistrate's Manual of Papua New Guinea, Law book Co. (2001) Sydney NSW 2009

^[2] Supra note 1

^[3] SCR No 34 of 2005

^[4] [2007] SC. 887 (12/10/07)

^[5] [2006] N3110 (17/11/06)

^[6] Supra Note 1

^[7] [1967-1968] PNGLR 48

^[8] Supra Notes 1, 3, 4,5

^[9] St v John Beng [1976] PNGLR 421, St v Yakoto Imbuni [1997] N1558

^[10] Supra Note 9

^[11] Supra Note 9