Police v Hetaro [2017] PGDC 50; DC3076 (30 November 2017)

DC3076

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]

COM 52 of 2017

BETWEEN

POLICE

Informant

AND

BUKA HETARO

First Defendant

AND

AUSONI HETARO
Second Defendant

Goroka, L Sani, Magistrate

2017: November 30

CRIMINAL (COMMITTAL)

Cases Cited
Nil

References
Nil

Counsels

Lawyer for the Police, State Prosecution

Lawyer for the 1^st Defendant, In Person

Lawyer for the 2^nd Defendant, In Person

30^th November, 2017

RULING ON PROSECUTION EVIDENCE

L SANI, Magistrate: This instant case arose out of information laid by a Senior Police Constable David Yaplin of the National Criminal Investigations Unit attached to Goroka Police Headquarters, Eastern Highlands Province, in Papua New Guinea. The two Accuseds namely: 1. Buka Hetaro aged 42 years and Ausoni Hetaro aged 46 years are two biological brothers hails from Kamaiufa village outside of Goroka town. They have been jointly charged for “Wilful Murder” under section 299 (1) of the PNG Criminal Code.

PROSECUTION EVIDENCE:

BRIEF FACTS:

2. It is alleged that On Saturday 26^th August, 2017, between 6:30am and 7:00 am, the two (2) accused namely Buka Hetaro was armed with a bush knife while his brother was armed with a bamboo stick. Atthe alleged date and time one (1) of the Police Witness namelyPhilip Huma and the deceased namely Elias Thomas was in the company of other youths who were watching movies, listening to music and drinking home-brew in Kamiufa village. Whilst under the influence of illicit drink Philip Huma started an argument with his brother in-law Jonah Luff on some personal matters then struck him with a coffee stick. Jonah Luff fell down with blood all over his face. Philip Huma’s father namely Huma Hetaro arrived and grabbed Philip and Deceased Elias Thomas pushed them away from the area and told them to go back to their social house. Philip and Elias retaliated went and pulled out a stick each from Kaiko’s stall went wild which drew crowd’s attention and fear to the villagers. At that the two (2) accuseds also got frustrated over their behavior. Both of the accuseds then ran towards them to fight with them. The accused namely Buka Hetaro ran into Kaiko’s house and came out with a bush knife whilst Ausoni Hetaro harmed with a bamboo stick went and hit Philip Huma on his head. Buka Hetaro chased the deceased Elias Thomas and chopped his head four (4) times, blood spilled from his head, the deceased fell faced down and died.

THE LAW:

3. The Charge: Section 299 – WILFUL MURDER

(1) Subject to the succeeding provisions of this code, a person who unlawfully kills another person, intending to cause his death, or that of some other person, is guilty of ‘willful murder’.

4. Penalty: A person who commits willful murder shall be liable to be sentenced to death.

5. ELEMENTS OF THE CHARGE

1. A person
2. Unlawful Killing
3. Intention to cause death
4. Causedthe Death of Elias Thomas
5. Date, time and Place
   

ASSESSMENT OF EVIDENCE:

6. Prosecution brought 5 key witnesses whom identified the death of the deceased. The Police witnesses are the two(2) who conducted the R.O.I including the Corroborator. The Medical Report of the Autopsy - Post Mortem and the Death Certificate filed supports and confirms the statements of the witnesses.

7. ACCUSED BUKA HETARO

1. A person is the Accused identified by the three (5) witnesses namely: Alphonse Nambson, Philip Huma, Huma Gotuno, Cathy Harry and Rolly Bathsheba.
2. Unlawful Killing – According to the same 3 witnesses the accused Buka Hetaro was sober at the time he killed him ran after the deceased without any good reason, armed with a knife and swung the knife four (4) times on deceased’s head. After the deceased fell down he continued to cut his head without any direct provocation as well causing instant death.
3. Intention to cause death – According to the evidence of three (3) witness’s statements namely: Huma Gotuno, Cathy Harry and Rolly Bathsheba the Accused on the 26/8/17, was angered by the actions and noise cause by the two (2) youths whom were under the influence of home-brew were running wild around the village armed with sticks threatening to kill anyone.Buka Hetaro did not like what he saw.
4. Willful Murder - He ran into kaiko’s house and came out with a bush knife and chased the deceased and cut his head where the blood gushed out from the knife wounds. This is confirmed by Cathy and Rolly. The other 3 witnesses also confirmed seeing Buka Hetaro using the knife to chop the deceased and the deceased fell to the ground.
5. Date, Time & Place – Murder took place on the 26^th of August, 2017, between 6:30 am – 7:00am at Kamiufa Village, Goroka, Eastern Highlands Province. All the 5 witnesses confirmed and supported in their statements.
   

8. Medical Evidence:It is noted and confirmed with the Medical Evidence upon the Doctor’s Examination revealed four (4) bush knife wounds on the head and right-side of his ear. This evidence is provided by Dr. Michael Maiti a Registered Medical Officer who did the Autopsy is from the Goroka Provincial General Hospital in the Eastern Highlands Province. The Medical Report is supported with the Certificate of death.

9. Record of Interview: Q26 & Q29 - The accused Buka Hetaro admitted to chopping Elias Thomas on the head once; however the medical Autopsy support and confirm the witnesses’ evidence.

COURT FINDINGS:

10. The Prosecution Evidence containing both written and oral statements of witnesses including other material and documental evidence has been analyzed, assessed and tested to my satisfaction. The statements of the witnesses are supported by the medical evidence that the death took place as a result of knife wounds around the head of the deceased. The Accused admits committing the offence, however raises defense of provocation on part of the deceased victim. The deceased and one Philip Huma – 2^nd Witness were involved in causing public nuisance after drinking home-brew and threatening everyone in the village to kill them. All the statements by the 5 witnesses support the status of the circumstances leading to the death of the deceased.

AUSONI HETARO –

11. Witness 1 – Alphonse Namson’s statement about what happened on the 24^th August, 2017 is hearsay and is not supported by other 4 witnesses.There is no evidence to sustain the elements of the charge against this accused. The R.O.I is also non-admissible due to breach of evidence rules. The evidence containing circumstantial evidence cannot be relied upon by prosecution to establish the Prima-facie case against defendant. The circumstantial evidence is unreliable to show proof of the matter, therefore is non-admissible.

CONCLUSION:

12. Finally the test is whether in the court’s opinion in good faith, there is “Sufficient Prima-facie Case” against the Accused to answer in the National Court? Re: R-v-McEachern (1967-1968) PNGLR 48.

13. 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 ‘SUFFICIENT EVIDENCE’ to establish a ‘Prima-Facie Case’against Accused/Defendant– BUKA HETAROto answer in the National Court.

14. AUSONI HETARO: There is insufficient evidence to establish a ‘Prima-Facie Case’ against defendant to answer in the National Court.

15. SECTION 96– Court administered section 96 – Defendant BUKA HETAROis to say whether he wishes to say anything towards the charge to be administered upon oath or without, sworn or unsworn statement.

16. COURT ORDER:

1. Defendant 1 – BUKA HETARO has a case to answer in the National Court.
2. The HUB Files inclusive of the Prosecution Evidence and the Court Depositions be transferred to the National Court A/Registrar for call-over on the 7/12/2017 at 9:00 am.
3. That the Defendant be notified promptly of the same by the A/Registrar.
4. That the defendant be remanded in CS Bihute, and
5. That a remand warrant be issued forthwith.
6. Defendant 2 –AUSONI HETARO has NO CASEto answer in the National Court.
7. Case is struck out.
8. Defendant be discharged from this information, and
9. That the defendant be released from CS Custody forthwith.
   

Dated at Goroka on the 30^th of November, 2017.

Counsels

Lawyer for the Police, State Prosecution

Lawyer for the 1^st Defendant, In Person

Lawyer for the 2^nd Defendant, In Person