State v Famini [2010] PGDC 65; DC2007 (9 September 2010)

DC2007

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

STATE

AND

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

Madang: J Kaumi
2010: 9th September

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 the District Court has the power to transfer the proceedings to another place.

Cases cited
Dowa v Independent State of Papua New Guinea [2009] N3819

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

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

RULING
9th September 2010

INTRODUCTION

1. Kaumi, M This is a ruling on an application made by Police Prosecution to this Court for orders that six (6) committal proceedings Com198,199,200,201,202 and 203 be transferred to Vanimo for the reasons that:-

(i) the alleged offence occurred in Sandaun Province; and

(ii) the arresting officer is resident in the Sandaun Province.

2. The defendants in the matter opposed the application on certain submitted grounds.

CHARGE

The six (6) defendants are charged with murder contrary to section 300 [1] [b] [i] and [ii] of the Papua New Guinea Criminal Code.

BRIEF FACTS

3. The charge arises from an allegation that the defendants on the 29th March, 2010 at Vanimo seas, in Papua New Guinea in the prosecution of an unlawful and of such nature as to be likely to endanger human life, did murder one, Charles Lasisi, a National Fisheries Observer.

4. All defendants are Filipino nationals.

ISSUE

5. The issue is whether the District Court has the discretion to transfer committals proceedings to another place.

LAW

6. I am grateful to counsel for assistance in form of case law he has alluded this Court to in his respective submission.

7. In Dowa v Independent State of Papua New Guinea [2009] N3819 his Honour Makail .J held;

"the power of the Court to transfer proceedings in the District Court is indeed an exercise of judicial discretion. It has been held by the National Court in so many cases that where the Court is exercising its discretionary power, it must do so on proper legal principles so that justice is attained."

"...that the Court in exercising its discretion to transfer committal proceedings from one location or place to another may take into account the following factors:

(a) Location of the accused;

(b) Location of the commission of the alleged offence(s);

(c) Location and accessibility of witnesses;

(d) Costs; and

(e) "Security of parties' witnesses."

8. I also consider section 115 of the District Courts Act to be of some assistance to the resolution of the relevant issue.

Section 115. INDICTABLE OFFENCES COMMITTED OUTSIDE JURISDICTION OR IN REMOTE PLACES.

Where a person is charged before a Court with an indictable offence alleged to have been committed in a place remote from it, but within the jurisdiction of the National Court, the Court shall receive such evidence in proof of the charge as is produced before it, and if, in the opinion of the Court, the evidence for the prosecution is sufficient to put the defendant on trial, shall proceed under Division 1.

DETERMINATION

9. In giving due consideration to all the factors in this matter I am satisfied that justice will be achieved by declining the application to transfer these committal matters to Vanimo and I dismiss it for the following reasons:

(i) The defendants are normally resident at Vidar, Madang Province and undoubtedly this was a consideration the National Court considered when the application for bail was made before it and in subsequently granting bail for the defendants;

(ii) An order for transfer of these committal matters to Vanimo would impose undue hardship and cost on the defendants and their respective guarantors in travelling to and from Madang and Vanimo to attend to their Court commitments;

(iii) This Court is empowered by the operation of sections 122 (3) and 115 of the District Courts Act to deal with the matter in Madang.

(iv). At the last adjournment this Court was informed by Prosecution that they were instructed by the arresting officer that he had come with the respective Police Hand-up to Madang and was going to do some final work on them before serving them on the defendants. This would mean that the investigation is nearing a finality and this puts paid to the application for transfer of these matters on the grounds relied on by the Prosecution.

Police Prosecution for the Informant
Blake Dawson for the Defendants