Police v Buka [2017] PGDC 47; DC3075 (9 November 2017)

DC3075

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OFJUSTICE

SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]

COM 39 of 2017

BETWEEN

POLICE

Informant

AND

JACOB BUKA

Defendant

Goroka,L Sani, Magistrate

2017: November 09

CRIMINAL (COMMITTAL):

Cases Cited

Nil

References

Nil

Counsels

Lawyer for the Police, State Prosecution

Lawyer for the Defendant, In Person

09^th November, 2017

RULING ON PROSECUTION EVIDENCE

L SANI, Magistrate: The primary objective of the committal proceedings is to determine in the opinion of the Committal Court whether in good faith that there is “Sufficient Evidence” to establish a “Prima-Facie Case” against the accused for him or her to answer in the National Court. If so then the defendant/accused is committed to stand “Trial” in the National Court. This proceeding is conducted in accordance with the procedures outlined under sections 94, 95 & 96 of the District Court Act, Ch. 40.

Present Case:

2. This instant case arose out of information laid by a Police Detective Senior Constable Richard Nandi attached to the CID Section of Goroka Police Headquarters, Eastern Highlands Province, Papua New Guinea. The accused is Jacob Buka aged 35 yearsand hails from Kotuni village in Goroka, EHP. He has been charged for “Unlawfully causing grievous bodily harm to another person namely Andrew Mangua”thereby contravening section 319 of the PNG Criminal Code Act, Ch. No. 262.

PROSECUTION EVIDENCE:

Brief Facts:
3. It is alleged that on Saturday, 17^th September, 2016 at about 10:00 pmat Leigh Vial Streetthe accused namely Jacob Buka a fully attired as a policeman on duty and armed with rifleapproached the complainant without any warning and punched him. Then he used the police riffle to gun butt the complainant on his mouth several times resulting in loss of two of his teeth and heavy bleeding, swollen face and severe pain. The complainant attended the hospital the next day and received medical treatment and reported the matter to the police.

LAW:

4. The Charge: GREVIOUS BODILY HARM – Section 319 of PNG Criminal Code Act, Ch. 264

5. A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

6. Penalty: Imprisonment for a term not exceeding 7 years.

7. Elements of the charge:

1. A person
2. Did Unlawfully
3. Cause Grievous bodily harm
4. Date, time & place
   

ASSESSMENT OF EVIDENCE: (Analysis)

8. A person- is identified by 5 witnesses is a fully armed and attired Policemannamely Jacob Buka. He is the policeman on duty on the 17^th September, 2016. He is identified by a total of 5 eyewitnessesincluding the complainant/victim who actually saw the accused assault and used gun to gun-butt the victim. They are: Andrew Mangua (victim), Geru Tanawa, Starklyn Tanawa and Johnnie Konda. The final witness who identifies the accused as the policeman is the informant who conducted the R.O.I.

9. Did Unlawfully–Any act or omission that is a lawful duty to do, by which act or omission cause bodily harm to another person, that person’s action or omission is deemed to be unlawful.The accused being a policeman used thepolice rifle to gun-butt and assault the victim and inflict severe injuries in the cause of his duty whilst in his official capacity. Four (4) of the Police Witnesses saw/identified and gave evidence that the accused in full police uniform and carried a gun on him.

10. Cause Grievous Bodily Harm – 1. Andrew Mangua (victim) –gave evidence that the accused was in full uniform and used police riffle/gun to gun-butt and assaulted him causing bleeding and loss of his front teeth.2. Geru Tanawa – saw accused gun-butt the victim breaking his mouth causing heavy flow of blood and loss of two teeth. 3. Starklyn Tanawa and Joni Konda gave similar evidence. All their evidence they stated seeing a policeman in full uniform and used the police rifle to gun-butt the victim/complainant namely Andrew Mangua.

11. Date, time & place – All 4 witness’s evidence recall and describe and confirmed what happened on Saturday, 17^th of September, 2016 at around 10:00 pm at the front of the Goroka Hospital Gate.

12. Medical Evidence:Examination as diagnosed and reported by Dr. Toki Inina is expert evidence. The report shows the victim sustained multiple cuts to his lower and upper lips and loss of two upper-right front incisor teeth. This is confirmed by the 4witness’s statements.

13. Photograph: The date which the photograph was taken is unknown; however it seemingly confirms the status of the victim after he received the injuries to his mouth and teeth.

14. Record of Interview: The accused answered all the questions posed to him by the informant who ties and support the evidence of the 4 witnesses.

15. Exhibit: Police Rifle not yet in court for its viewing.

CONCLUSION: {My Findings}

16. The Prosecution Evidence containing both written and oral statements of witnesses including other material evidence has all been analyzed, assessed and tested to my dissatisfaction. Witness’s statements are supported with other material evidence such as medical, photograph, R.O.I and the police rifle if brought to court in trial.Basing on evidence disclosed by 3 eye-witnesses shows gross abuse of police firearm to assault the victim. As a resultthe victim/complainant sustained grievous bodily harm to his mouth (multi-cuts on the victim’s lips/mouth) andbroken/loose teeth causing substantial amount of bleeding.

17. In the final analysis I find that the facts do not supportall the elements of the charge.The facts show the accused whilst in his official capacity omitted to arrest and charge the complainant and acted negligently and caused bodily injury to the complainant. In other words, the accused is not an ordinary person he is a policeman who was on duty at the time of the offence and what he did at the time was negligent. Therefore the facts donot disclose all the evidence relevant to the present charge.

COURT RULING:

18. Finally the Test is whether in the court’s opinion in good faith, that there is “Sufficient Prima-facieCase”against the accused to answer in the National Court? Re: McEachern (1967-19680) PNGLR 48.

19. Based on the foregoing assessment and analysis of the Prosecution Evidence whilst administering Section 95 of the District Court Act, Ch. 40, I find in my opinion, that there is “Insufficient Evidence” to establish a “Prima-Facie Case”against the Accused/Defendant to answer in the National Court.

20. COURT ORDER:

1. Defendant has NO CASEto answer in the National Court, and
2. That the case against the defendant isStruck Out.
3. That the defendant’s bail be refunded forthwith.