Police v Kende [2020] PGDC 37; DC5024 (26 October 2020)

DC5024

Papua New Guinea

In the District Court

Held at Waigani

Sitting in its Committal Jurisdiction

Comm. Nos. 1148 of 2019

BETWEEN:
THE POLICE
Informant

AND:
PHILIP KENDE
Defendant

Port Moresby: T. Ganaii
2020: 26^th October

COMMITTAL PROCEEDINGS – Two counts of Deprivation of Liberty contrary to section 355(a) of the Criminal Code Act – Prima facie sufficiency of evidence to commit the defendant to stand trial in the National Court - Legal requirements for prima facie case - Presence of the elements of the charges - Evidence is sufficient to commit the defendant to stand trial in the National Court

COMMITTAL PROCEEDINGS – Evidence of touching the complainant without his consent, ordering him to surrender and move out of a shop although for a brief moment amounts to deprivation of liberty – Evidence of tying of legs and hands and taking away against Complainant’s will amounts to deprivation - Sufficient evidence to make out a prima facie case on the two charges of Deprivation of Liberty
Cases cited
Akia v Francis PGNC 335; N6555
R-v- McEachern [1967-68] PNGLR 48
Maladina v Principal District Magistrate Posain Poloh [2004] PGNC 208
Yarume v Euga [1996] PGNC 24; N1476

Overseas Cse
R v Awang [2004] QCA 152; [2004] 2 QLD R 672

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

Counsel
Police Prosecutor: Koniu Polon For the Informant
Mr Alois Jerewai For the Defendant

RULING ON SUFFICIENCY OF EVIDENCE

26^th October 2020

Introduction
Ganaii, SM . This is a ruling on whether a prima facie case is made out within the meaning of Section 95 (1) of the District Courts Act (DCA) where all the evidence of the Prosecution is received in the form of a Police Hand Up Brief (PHUB) and the Court is required to consider whether it is sufficient to put the defendant on trial. Defence submission is also considered in this ruling.

Charge
2. The defendant is charged with two counts of Deprivation of Liberty under section 355 (a) of the CCA.

4. The charges read as follows:

Count 1 Deprivation of Liberty on the 30^th of June 2006

4.2 On the 30^th of June 2006 at Arere Street, Tokarara June Valley, NCD, the defendant Philip Kende, 56 years of age, from Sambirigi village, Erave in the SHP did unlawfully confine another namely Mathew Sisimolu at Section 23, Allotment 231, Arere Sreet, Takarara June Valley against his will

Count 2 Deprivation of Liberty on the 15^th of June 2019

4.1 On the 15^th day of June 2019, at Uni Style Clothing Shop, Vision City Mega Mall, Waigani, NCD, the defendant Philip Kende, 56 years of age, from Sambirigi village, Erave in the SHP did unlawfully confine another namely Mathew Sisimolu in Uni Style Clothing Shop Vision City Mega Mall against his will .

Facts
5. According to the facts contained in the PHUB, the complainant is known to the defendant and his other accomplices namely Philemon Tuki and Kisa Walama and oethers unknown. They are land owners from Southern Highlands Province and are associated with Petroleum Resources Gobe Ltd. The complainant was involved in the laying of a criminal charge of fraud against the defendant in 2006 where the defendant was arrested and charged for fraudulently obtaining monies.

6. In relation to count one Police allege that on the 30^th of June 2006, the first act of deprivation occurred. The complainant was at his home at Burns Peak, Hohola. The defendant and others came in a Dyna Truck and approached the complainant. They tied his hands and legs, put him in the truck and took him to Section 23, Allotment 231, Arere Street, Tokarara June Valley They accused the complainant of being involved in sorcery resulting in the death of one of their relatives. He was then forced to sign an agreement for the release of some landowner monies. He was later released at 9pm that night.

7. In relation to count two, on the on the 19^th of June 2019, the complainant was in Uni Style Clothing at Vision City Mega Mall trying to purchase some clothing item. He was surrounded by the defendant, his accomplices Philemon Tuki and Kisa Walama and several others of their relatives. They swore at him, held his hands without his consent, pushed him and demanded that he surrender so they will take him out of the shop. At that instant and for a brief moment he was stopped from doing what he wanted to do. He realized he was under attack and so he alerted the security guards who went to his rescue. He went with the guards into the safety of their office and stayed there until his relatives came and he went with them.

Issue
9. The issue before this court is whether a prima facie case is made out and that is whether the evidence received from the prosecution is sufficient to warrant the committal of the defendant to stand trial at the National Court on the two information laid.

10. The sub-issue is whether there is sufficient prima facie evidence on each elements of the two offences of Deprivation of Liberty under section 355 (a) of the CCA.

The Law
The Law on Committal Proceedings

11. Part VI of the District Courts Act (DCA) provides the legal basis for committal proceedings specifically under Section 94 to Section 100 of the DCA.

12. The Committal Process whilst requires the Court to make a finding on the evidence presented by the Police, this process is very administrative in that the Court need only to form an opinion that there is a bona fide prima facie case against the Defendant; as per Akia v Francis ^[1]and R-v- McEachern^[2].

13. In the matter of Maladina v Principal District Magistrate Posain Poloh ^[3]His Honour Injia DCJ (as he then was); expressed in his opinion that the Committal process involves two phases, the first is when the Committing Magistrate makes a finding on whether or not there is sufficient evidence and whether a prima facie case is made out under Section 95 of the DCA on whether to discharge or commit the Defendant only after the Court administers an examination of a Defendant under Section 96 where the defendant is asked whether he desires to give evidence.

14. Furthermore, in the case of Yarume v Euga ^[4]the National Court said in respect to committal hearings that the process of committal requires proper and reasonable assessment of the evidence with a view to see whether all the elements or ingredients of the offence is present before he can commit the accused; Section 94B, 94C, 95 and 100 to be read together.

The law on the offending provision(s)

355. DEPRIVATION OF LIBERTY.

A person who unlawfully—

(a) confines or detains another in any place against his will; or

(b) deprives another of his personal liberty,

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

Elements
15. In the case of R v Awang [2004] QCA 152; [2004] 2 QLD R 672, Williams JA stated the terms ‘confines’, ‘detains’, ‘deprives’ and ‘liberty’ should be given their ordinary and natural meaning. He stated that most opposite meaning of ‘liberty’ was ‘the condition of being able to act in any desired way without restraint or power to do so as one likes’. He went on to state that to ‘deprive’ includes the denial of enjoyment of something and ‘detain’ has a variety of meaning including ‘keep in a confinement’, ‘hold back’, ‘delay’ and ‘stop’.

Prosecution Case
16. To prove its case the Prosecution produced twelve (12) witness statements. The witness statements are of:

(1) Mathew Sisimolu– who is the main complainant. His evidence is that the defendant and others took him away and held him against his will on two different occasions. The first alleged incident happened on the 30^th of June 2006 and the second incident occurred on the 19^th of June 2019.

(2) Sange Kerire – who is the complainant’s nephew. His evidence is that he was with the complainant at Vision City Mega Mall when the defendant and others surrounded the complainant, assaulted him and pushed him out of the store.

(3) Jeffery Tomo – who is the security officer at Vision City who rescued the complainant.

(4) Steven Eiyu – who is the security officer at Vision City who rescued the complainant.

(5) Israel Jimmy – who is the security officer at Vision City who rescued the complainant

(6) Randy Moses – who is the security officer at Vision City who rescued the complainant

(7) Paul Kiripe – who is a cousin of the complainant. He stated that he was with the defendant and he heard the defendant say that he will kill the complainant..

(8) Akoa Mike Pialia – who is the elder brother of the complainant. His statement is about how he was with the complainant at his house on the 3th of June 2006 when the defendant and others took the complainant away against his will.

(9) Sevanaia Koroi – who is the Security Manager for Vision City Mega Mall. He statement is about obtaining the CCTV footage in the Uni Style Clothing Shop and handing it to the case investigating officer.

(10) Lazarus Ikamata – who is a Police Officer involved in the conduct of the Police interview with the defendant as the interviewer.

(11) Bradley Murrie – who is a Police Officer involved in the conduct of the Police interview with the defendant as the corroborator.

(12) Gilford Avenoma - who is a Police Officer involved in investigations, arrest and charging of the defendant.

Documentary Evidence
17. Police rely on the following documentary evidence:

1. Record of Interview, in the English Language.
   
   • - In Q&A 30 and 31, relating to the allegations on the 19^th of June 20019, the defendant said he approached the complainant in a polite manner and calmly asked him a question. He denied the allegations.
     
   • - In Q&A 38-43, the defendant denied the allegation on the 30^th of June 2006.
     
2. Incident Report by complainant to the Security Manager of Vision City Mega Mall requesting the CCTV footage .
   

100. Letter by Police to the Security Manager of Vision City Mega Mall requesting the CCTV footage .
     

4. Photographs
   
   • - 13 x photos depicting where the complainant was approached at Vision City Mega Mall
   • - 4 x photographs depicting the scene of alleged first offence of deprivation at the complainant’s home
   • - 9 x photographs taken from CCTV footage at Vision City Mega Mall
     
5. Antecedent Report – Except for details on defendant’s origin and personal particulars, this document is not considered for now.
   

Defence Submission
18. Defence made submissions relying on a typed submission filed on the 17^th of August 2020. A summary of their submission is as follows:

1. In relation to the first alleged incident of deprivation of liberty, the complainant failed to report that incident to the Police there and then. The allegation is now 13 years old and the complainant does not provide any reason why he is laying charge now;
   
2. In relation to the second alleged incident of deprivation of liberty on the 19^th of June 2019, the CCTV footage does not show deprivation of liberty but a simple assault by unlawful touching or an attempt to hold the complainant’s arm for whatever reasons. The defendant appears to be demanding the complainant to go out of a shop in a ‘menacing manner’;
   

100. Upon intervention by the Security Officers, a simple offence of assault only would have been committed; and
     

4. The offence of Deprivation of Liberty does not stand.
   

Prosecution Submission:
20. Prosecutions submitted as follows:

Count 1 First act of Deprivation of Liberty on the 30^th of June 2006

1. There are no time bar to criminal prosecution of indictable offences;
2. There is sufficient prima facie evidence of the incident of deprivation of liberty where the complainant was taken away from his house against his will;
   

100. Complainant’s evidence is supported by his brother Mr Pialea Mike’s evidence who was with him when the kidnapping occurred and
     

4. The motive behind the kidnapping was established.
   

Count 2 Second act of Deprivation of Liberty on the 19^th of June 2019

5. From the period of time when the complainant was approached, held against his will, sworn at, threatened and commanded to comply with the defednat’s orders to the time the security officers intervened, he was denied his liberty to think and move freely;
   
6. The defendant’s actions were done without lawful excuse or justification and
   
7. There are sufficient supporting evidence from five others witnesses.
   

Analysis of the Evidence and Consideration of Defence Submission:
21. In response to the submissions and the court’s analysis of the evidence, the court responds in the following manner:

1. For the first alleged incident on the 30^th of June 2006, it does seem that identification and involvement is disputed when the defendant remained silent in the ROI and in their submissions, they only argue that the case is old and should not stand. Court finds that there is sufficient evidence to make out a prima facie case against the defendant based on the complainant and his brother Mike’s story. They identified the defendant who is associated with them. They say the complainant’s hands and feet were tied and he was accused of sorcery and was taken away against his will. There is sufficient evidence on the elements of the charge of deprivation.
   
2. In relation to the second alleged offence on the 19^th of June 2019, I find that for the brief moment that the complainant was stopped, ordered to surrender, held on his hands and pushed out of the shop, his liberty was taken away from him. The expression in the case of R v Awang ^[5] where Williams JA stated the terms ‘confines’, ‘detains’, ‘deprives’ and ‘liberty’ should be given their ordinary and natural meaning. The manner in which the complainant was approached, spoken at and held and pushed amounts to deprivation. When the complainant’s liberty was deprived by the defendant’s actions and words so that the complainant is not free to do so as he desires or wishes, before the security guards came to his rescue, that amounts to deprivation. The simple act of stopping holding back and delaying the complainant from doing what he wanted to do is deprivation.
   

100. Court is therefore satisfied that there is a prima facie case made out against the defendant on the evidence contained in the PHUB on both charges.
     

Conclusion

22. Upon a requirement under Section 95 (1) of the DCA to make a determination on whether there is some evidence on each element of the offence to make out a prima facie case against the defendant to warrant his committal to the National Court and that is whether there is sufficient evidence on each element of the offence contained on the Police Hand Up Brief to warrant a committal on each charge as per the Information, I find sufficient prima facie evidence that Mr. Philip Kende did commit the alleged offences of Deprivation of Liberty under section 355 (a) of the CCA. Consequently, I form a bona fide opinion that there is sufficient evidence against the defendant in order to commit him to stand trial.

Administration of Section 96
23. After the requirements of section 96 were explained to the defendant which he understood, though his lawyer, he opted to remain silent.

24. The ruling on prima facie sufficiency of evidence is intact. There is sufficient prima facie evidence to make out a case against the defendant on two counts of Deprivation of Liberty.

Final Orders

25. The court’s final orders are:

1. There is sufficient prima facie evidence to committed the defendant to stand trial in the National Court on two counts of Deprivation of Liberty under section 355 (a) of the CCA;
   
2. The defendant is committed to stand trial in the National Court on two counts of Deprivation of Liberty under section 355 (a) of the CCA;;
   
3. The defendant is to appear at the Waigani National Court, Criminal Listings on Monday 23^rd of November 2020 at 9:30 am; and
   
4. The defendant’s District Court bail is extended on same conditions
   
5. The defendant is to appoint two guarantors who shall file affidavits and appear the National Court Criminal Listings on bail review. The Guarantors are required to sign Certificates of Guarantors at the National Court.
   

Police Prosecution For the Informant
Jerewai Lawyers For the Defendant

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^[1] PGNC 335; N6555
^[2] [1967-68] PNGLR 48
^[3] [2004] PGNC 208
^[4] [1996] PGNC 24; N1476
^[5] supra