Dioro v Dominic [2020] PGDC 30; DC4088 (17 November 2020)

DC 4088

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]

CCC 159 of 2019
BETWEEN

SERGEANT STANELY DIORO

Informant

AND

MARI DOMINIC
Defendant

Waigani: L Wawun-Kuvi

CRIMINAL LAW-CRIMINAL PRACTICE AND PROCEDURE- COMMITTAL PROCEEDINGS- Sufficiency of Evidence

Cases Cited
Henry v Arua [2020] PGDC 3: DC4048
Police v Waluka [1999] PGDC 2; DC48 (25 March 1999)
Yarume v Euga [1996] PGNC 24; N1476 (6 September 1996)
State v Kai Wabu [1994] PNGLR 498 (25 May 1994)

Overseas Cases
R v Plummer [2012] NTSC 30 (17 April 2012)
Ebatarinja v Deland (1998) 194 CLR 444; [1998] HCA 62
R v Howard Mungaribi [1988] NTSC 49; 55 NTR 12; 92 FLR 264

References
Criminal Code Act
District Court Act

Counsel

Lawyer, for the Senior Constable George Vetari

Lawyer, for the Ms Agnes Peter

17 November 2020

RULING ON SUFFICIENCY OF EVIDENCE

L Wawun-Kuvi, Magistrate:

1. The defendant is charged with:

Murder contrary to section 300(1) (a) of the Criminal Code Act (Chapter 262) (the Code);

The Elements

2. The elements of Murder are:
   • 2.1. Accused
   • 2.2. With intent to cause grievous bodily harm
   • 2.3. Kills
   • 2.4. Another person

The Law on Committal Proceedings

3. The role of the Committal Magistrate is to determine whether the evidence is sufficient to commit the defendant to stand trial.^[1]
4. It is a safeguard to protect the rights of defendants.
5. Section 95 is the decision after the close of the evidence by the prosecution. It entails a process similar to a no case submission but with the distinction that there is no determination of guilt or innocence, see Police v Waluka [1999] PGDC 2; DC48 (25 March 1999).
6. Having been satisfied the Court then informs the Defendant of his rights under section 96 and administers the caution. The words “to say something or give evidence on oath” (emphasis mine) are remnants of the old procedure of giving oral evidence. Whatever the defendant decides, it is considered in totality with the prosecution evidence. The final decision to commit is under s 100 DCA.

Prosecution Evidence

7. The prosecution has given all of its evidence pursuant to s 95 (1) DCA.
8. Ms Peter has submitted that the witnesses Rose Paul and John Aiva did not write the statements themselves. It is for that reason their statements are defective and inadmissible.
9. There is nothing to substantiate this submission in the way of evidence other than pure speculation.
10. In any event her submissions come well after the close of the prosecution evidence. On close reading of section 94C and section 95 it is noted that s 94C is an inspection of the statements during the hearing. If no objection is raised or the Court has decided that there are no issues with the statements or exhibits it becomes part of the prosecution case.
11. At s 95(1) it is too late for the submissions that the Court should not consider the evidence as it has already become part of the prosecution case.
12. Counsels for defence have to appreciate the history of Committal procedure as derived from England to Queensland and subsequently to Papua New Guinea. Committals in Papua New use to be by way of full oral hearing. Remnants of which still exist in the District Court Act. Queensland still maintains this procedure.
13. Coming back to Ms Peter’s submission, s 94C of the DCA(2) requires that before I accept and admit into evidence witness statements, I have to be satisfied that they have read and understood the statements^[2]. I have already read each of the statements of the witnesses and am satisfied that all the deponents have read, understood and signed their statements. That is the reason why I have proceeded to this ruling on the entirety of the prosecution evidence.
14. Ms Peter has failed to take into account the provisions of section 94 (1) (d), s 94 (1A) and s 94 (1B) which provides in effect that once the deponents sign, they confirm that they have read and understood their statements and the statements are treated as affidavits pursuant to the Evidence Act.
15. I have accepted all the evidence of the witnesses because contained in all their statements is the warning clause pertaining to giving of false evidence and their signatures.
16. Contrary to Ms Peter submission, both witnesses have tok pisin version of their statements which they have signed. There are English translation which are unsigned but placed in the file was ease of reference. The Statements of Rose Paul and John Aiva have been admitted and accepted on that basis.
17. I now proceed on to the submissions on the sufficiency of the Evidence.
18. Ms Peter has cited the case of Yarume v Euga [1996] PGNC 24; N1476 (6 September 1996) to support her contention that I should conduct an exhaustive enquiry into the Complainant’s statement.
19. Ms Peter submits that the Court should not accept the prosecution evidence because:
    1. Witnesses Rose Paul and John Aiva statements are inadmissible as they were not the authors;
    2. Garry Omari did not see who stabbed the deceased;
    3. The Medical Report is inadmissible as the Doctor did not provide an affidavit;
    4. The Defendant was not administered her constitutional rights and so the Record of Interview (ROI) is inadmissible.
20. Ms Peter’s submissions are in fact inconsistent with the ruling in Yarume v Euga (supra). Yarume v Euga reinforces the principal that findings on the weight of the evidence is done by the National Court in the trial of the accused. The Committal Court’s role is to determine whether there is evidence to identify elements of the offence.
21. I have already accepted into evidence the statements of Rose Paul and John Aiva. The witnesses clearly identify the defendant as the person who stabbed the deceased. Their evidence is supported by the witness Gary Omari.
22. The Defendant further makes admissions in her ROI. Whether or not her constitutional rights were not administered is a matter for voire dire before the National Court.
23. I find that there is sufficient evidence establishing the elements of the offence of murder.
24. I shall now proceed to the caution and examination under section 96 of the District Court Act.

Section 96 Statement (17 November 2020)

25. On 6 October 2020, Ms Peter for the Defendant made an application for an adjournment to speak to her client regarding the section 96 statement. She submits that she needed time to obtain the statement.
26. I had granted the application for the purpose that she advise her client on what was involved in a section 96 District Court Act. In the event her client does provide a statement, it does not remove my role to specifically and sufficiently put the words of section 96 to the defendant and obtain her response.
27. When the matter returned on 13 October 2020, Mr Peter still had no spoken to her client. The matter was adjourned because police had not brought the defendant.
28. There have been several adjournments until today when the Defendant was finally brought from custody. There was no appearance from Ms Peter.
29. The Defendant has a right to have her matter expediently determined. I proceeded to explain section 96 of the District Court Act to the Defendant in the pidgin language. The defendant stated that she understood and decided to give a sworn statement. She also signed her statement.
30. I have noted that most of the cases are delayed after the Court has already made a determination because counsels want to file section 96 statements. There is nothing in the written law that provides for the filing of a section 96 statement. That is the sole responsible of the committal magistrate. See my ruling in Henry v Arua [2020] PGDC 3: DC4048, where I discussed that it may amount to a procedural defect where a Magistrate fails to clearly put the words of section 96 to a Defendant. In that case I referred to the case of R v Howard Mungaribi [1988] NTSC 49; 55 NTR 12; 92 FLR 264, R v Plummer [2012] NTSC 30 (17 April 2012) and Ebatarinja v Deland (1998) 194 CLR 444; [1998] HCA 62.
31. Having put the caution under section 96, the defendant has decided to give a sworn statement. She says words to the effect:

“I want to say sorry to the Court. I feel guilty. He has a sister. I say sorry to my family because of the problem they are scattered everywhere. I was married 3 years to him to and he use to do all kinds of things to me. He hit me. He stabbed me. He smoked marijuana. He stabbed me with a knife and I left him and went and lived with my mother and father. For 3 years but he would still come back and stab me with a knife. He would do that until that night we were at the party and the problem happened. I was sitting behind my big sister, he got a stone and wanted to break my head, the boys shouted and I pushed him and he fell. He used to say that he would kill me. I always remember that. I stabbed him with the knife in self- defence. I did not think he would die. After the incident his family went after my brother. I was already in the hands of the law. They set fire to my family home and attempted to kill my younger brother. That’s all.”

32. Considering all the evidence including the statement by the defendant, I am satisfied that the evidence is sufficient and so commit the defendant to stand trial in the National Court.

Orders:

33. The Defendant is committed to stand trial in the National Court.
34. The Defendant is to appear on Monday 23 November 2020 at the National Court Waigani for listings.
35. Defendant is remanded until Monday 23 November 2020 for listings.
    

Lawyer for the Informant, Police Prosecution

Lawyer for the Defendant, Office of The Public Solicitor

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^[1] Yarume v Euga [1996] PGNC 24; N1476 (6 September 1996)
^[2] State v Kai Wabu [1994] PNGLR 498 (25 May 1994) and Yarume v Euga [1996] PGNC 24; N1476 (6 September 1996).