Police v Oa [2020] PGDC 40; DC5028 (30 November 2020)

DC5028

PAPUA NEW GUINEA

[IN THE WAIGANI DISTRICT COURT OF JUSTICE
SITTING IN ITS COMMITAL JURISDICTION]

Committal No 663 of 2020

BETWEEN

POLICE
Informant

AND

MURRAY OA

Defendant

Port Moresby: A/PM T. Ganaii
2020: 30^th November

COMMITTAL PROCEEDINGS – Charge - One count of Grievous Bodily Harm, contrary to section 319 of the CCA - Legal requirements for prima facie case - Presence of the elements of the charge - Elements of charge of Grievous Bodily Harm is present - Evidence is sufficient to commit the defendant to stand trial in the National Court

COMMITTLAL PROCESS – Definition of Grievous Bodily Harm – Permanent Disability - Doctor to explain what ‘cosmetic disability’ is at trial proper or the Public Prosecutor is verify that aspect of the evidence to ascertain an appropriate charge or action

COMMITTAL PRPCESS – Phase two of committal process - Section 96 requirement was explained - Defendant wishes to remain silent. Defendant is committed to stand trial
Cases cited
Maladina v Principle District Magistrate [2004] (25/06/04) Injia DCJ
Police v Famundi [2008] PGDC 99; DC800 (16 May 2008)
Regina vs. McEachern [1967-68] PNGLR 48
SCR No 34 of 2005 – REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2) (b): Application by Herman Joseph Leahy
State v. Carol Peter [2011] PGNC 131, N4299 (31^st May 2011)
State v. Coney Fasean, [2014] PGNC 68, N5596 (13^th May 2014)
State v. Kai Wabu [1994] PNGLR 94

Overseas Case
Barca v The Queen [12] [1975] HCA 42; [1975] 50 ALJR 108 at p.117

References
Hill E R Powles G; Magistrates Manual of Papua New Guinea, Lawbook Co. (2001).Sydney NSW 2009

Hill Gerald N and Hill Kathleen T., Online dictionary, The free dictionary ‘CITE’, 1981- 2005
Legislation
The Constitution of the Independent State of Papua New Guinea
Criminal Code Act, Chapter 262
District Court Act, Chapter 40

Counsel
Police Prosecutor: Koniu Polon For the Informant
Mr M. Kombri, Kombri and Associates For the Defendant

RULING on SUFFICIENCY of EVIDENCE

30^th November 2020

Introduction
Ganaii, A/PM. This is a ruling made pursuant to s.95 (1) of the District Courts Act (DCA^[1]), after the receipt of all the evidence offered on the part of the police prosecution where this court sitting as a committal court is required by this provision to consider whether the evidence as it stands at this stage of the proceedings is prima facie sufficient to commit the defendant to trial in the National Court.

Charge

2. The defendant is charged for one count of grievous bodily harm under section 319 of the CCA. The charge reads as follows:

The defendant ‘unlawfully did grievous bodily harm to Debbie Kaora, a national female by placing a heated iron on her left thigh, left cheek, chest, abdomen and left side of the forehead.
Statement of Facts:

3. The defendant and the complainant are in a defector relationship. The defendant is a PNGDF soldier. They reside at the Goldie River Army Barracks. Police allege that on the 04^th of June 2020 at Goldie River Barracks, Central Province, the complainant was at home with their children and another adult female. The defendant came home and whilst under the influence of alcohol he assaulted her by punching her on her face with his folded fist. He then armed himself with a hot iron and burnt the complainant on her left thigh, left cheek, chest, abdomen and left side of the forehead.
Issue
4. The issue is whether a prima facie case is made out. This requires the court to determine whether the evidence received from the PHUB is sufficient to warrant the committal of Mr. Oa to the National Court for trial on the charge.

5. The sub-issue is whether there is sufficient prima facie evidence on each of the elements of the offence of Grievous Bodily Harm under section 319 of the CCA?

6. A proper and reasonable assessment involves the Court to make an assessment under s 94C of the DCA and to make an assessment on all the established elements of the charges.

The Law:

The Law on Committal Proceedings

7. Part VI of the DCA provides the legal basis for committal proceedings specifically under sections 94 -100 of the DCA.

8. The Committal process whilst it requires the court to make a finding on the evidence presented by the police, this process is administrative in nature in that the court need only to form a view that there is a bona fide prima facie case against the defendant as per the case law of Akia v. Francis PGNC 335, N6555 and R v Mc Eachern [1967-68] PNGLR 48

9. In the matter of Maladina v Principle District Magistrate¹ Injia DCJ (as he then was) expressed his opinion that the Committal process involves two phases: the first is when the Magistrate "receives" or "hears" evidence offered by the prosecution only, considers the evidence, and decides whether the evidence "is sufficient to put the defendant on trial." If the Court is of the opinion that there is insufficient evidence, the Court discharges the defendant on the information. That is the end of the matter. If the Court is of the opinion that the evidence is sufficient to put the defendant on trial, then the Court proceeds with the examination of the defendant under s.96.

10. Phase two is the examination of the defendant by the Magistrate under s.96. The prescribed wording of s.96 statement, which the Magistrate puts to the defendant, is part of that provision. The statement implies that the defendant has "heard" the evidence for the prosecution, which the Magistrate has considered, and made his decision under s.95. The Magistrate gives the defendant an opportunity to give evidence and to say anything in relation to the charge, if he so wishes to.

11. Furthermore, in the case of Yarume v Euga [1996] PGNC 24, N1476 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 seeing whether all the elements or ingredients of the offence is present before the defendant can be committed, sections 94B, 94C, 95 and 100 to be read together.

The Law on the Offending Provision:

12. The law on the offending provision reads:

319. Grievous Bodily Harm.

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

Penalty: Imprisonment for a term not exceeding seven years.

SECTION 1 INTERPRETATION

13. Definition of Grievous Bodily Harm is “any bodily injury of such a nature or be likely to endanger life, or to cause or be likely to cause permanent injury to health”.

Definition of Permanent Injury/disability

14. An injury which impairs the physical and or mental ability of a person to perform normal work or non-occupational activities supposedly for the remainder of his/her life^[2].

Elements of the Offence

Case Law:

15. In the case of The State v. Coney Fasean^[3], the court held that there are two main elements of the offence of grievous bodily harm namely: doing grievous bodily harm to another person and doing it unlawfully.
    
16. In the case of The State v. Carol Peter^[4], the court held that to satisfy the first element the State must prove that the nature of the grievous bodily harm done is made out according to section 1 CCA definition of the phrase ‘grievous bodily harm’. The court also held that the second element of unlawfulness is proven if there is no lawful justification or excuse for the defendant’s action.

Evidence in Written Statement

17. Section 94C of the DCA requirements in the committal process must be fulfilled.
    

94C. Regard To Evidence, Etc.

(1) When conducting a committal hearing under this Part, the Court may, subject to Subsection (2), have regard to–

(a) the evidence contained in a written statement; and
(b) documents and exhibits,

of which a copy has been served on the defendant under Section 94(1) or made available for inspection under Section 94(2).

(2) Before admitting a written statement, the Court shall be satisfied that the person who made the statement had read and understood it, or if unable to read, had had it read to him in a language that he understood.

18. The case precedents in support of these legal requirements are The State v. Kai Wabu^[5] and Police v Famundi^[6].

The Police Case
19. The Police evidence in the PHUB can be categorized as follows:-

Witness Statements:

1. Debbie Kaore – this witness is the complainant. Her statement is about the assault causing grievous bodily harm by the defendant.
   
2. Marie-Theres Okuau - this witness was as the house with the complainant when the assault occurred. Her story corroborates the complainant’s story.
   

100. Bill Pokom - Police officer who was involved in the investigation, arrest and charge of the defendant
     

4. Job Eremugo – this witness is the Police Officer who was involved in the Police in interview as the corroborator
   
5. Dr Frank Lakar - This witness is the Doctor who examined the complainant and produced two different medical examinations.
   
6. Dr Dora Lenturut-Katal – This witness is a radiologist who conducted x-ray on the complainant and produced a medical report.
   

Documentary Evidence
20. Documentary evidence are as follows:

1. Records of Interview (2x ROIs) English and Pidgin (translation) languages

The ROI is relevant for showing that the process involved in conducting the interview is fair and proper. It also shows whether or not there are admissions being made and if so whether or not they were made voluntarily. In this present case, prima-facie evidence shows that the ROI was properly conducted and the defendant admitted to the actions raising provocation in Q&As 31, 32, 33, 34, 36, 37 and 38.

2. Photographs – showing injuries and assault weapon
   

100. Medical Report – This report is dated 05^th June 2020. It contains reports on the initial examination on the complainant at the Emergency at Paradise Private Hospital. The reports shows injuries sustained to be: laceration measuring at 6am in length and 1com in depth with skull exposed. Report also shows multiple burns wounds on the left thigh, left chin, anterior of her chest and abdomen.
     

4. X ray Report – This report confirms that an x-ray examination was done revealing no fracture, or bone abnormality.
   
5. Medical Report (Review) – This is a review report dated 30^th July 2020. It says the complainant had recovered well; there are no permanent disability but except for cosmetic disability (scar) on the forehead which may or may not clear over time.
   
6. Antecedent Report - The report is irrelevant at this time as it only becomes useful at trial proper after the defendant is found guilty and convicted. If there are prior convictions, they are matters that impact on the kind of penalty the courts can impose and hence should never be considered at the committal stage and this report is not considered by this court in its present function.

ASSESSMENT of the EVIDENCE in the light of the LAW

21. The evidence collated and presented to court by the Police against the defendant in the form of witnesses’ statements and documentary evidence including admissions in the ROI are in support of their assertion that the defendant did commit the offence of grievous bodily harm.

22. On prima facie assessment of the elements of the charge, the following is said:
a. by punching the complainant with such force on her face; and

2. by using an iron to burn the complainant on various parts of her face and body;
   

resulting in laceration on the forehead and cosmetic disability, the elements of the charge of grievous bodily harm is made out. Where the defendant has raised ‘provocation’ this is a matter for trial.
Direct and Circumstantial Evidence:

23. Police has presented direct evidence from the complainant and another eye witness who saw the defendant do the alleged act. There are direct admissions made by the defendant in his ROI whilst raising a defence in law and the medical report shows permanent injury in the form of permanent scar. Consequently, the evidence of all witness and documentary evidence contain prima facie evidence of elements of the alleged offence as charged.

24. Looking at the definition of Grievous Bodily Injury, I raise the concern about the medical terminology used to describe the after effect of the scar on the forehead of the complainant. The concern I have is that the words ‘cosmetic disability’ may infer a form of disability. For me to speculate may not be proper. The doctor can be called to explain that at trial or before that the Public Prosecutor can seek an explanation from the Doctor to assist them in the determination of an appropriate charge. For now, I accept that there is a disability in that manner.

Determination/Findings

25. On the relevant issue of whether or not the evidence presented in the Police brief discloses sufficient prima facie evidence to put the defendant on trial for the offences for which he has been charged with on the Police information; and on the basis of the above answers, this court as a result of the performance of its committal function as an investigator into the strength of the case being mounted by prosecution and not as an adjudicator, has assessed the evidence in totality and makes the final finding that there is prima facie sufficient evidence on the essential elements of the charge of grievous bodily harm.

26. I find sufficient prima facie evidence that the defendant did commit the alleged offence of grievous bodily harm. Consequently, I form a bona fide opinion against the defendant that there is sufficient case against him in order to commit him to stand trial for the alleged offence of grievous bodily harm under s319 of the CCA.

27. I make the following orders:

27.1 There is prima facie sufficient evidence to commit the defendant to stand trial in the National Court on one count of grievous bodily harm contrary to s319 of the CCA;

27.2 Section 96 of the DCA was explained to the defendant. The defendant has exercised his right to remain silent and had not made a statement;

27.3 The defendant is committed to stand trial in the National Court at Waigani on one count of Grievous Bodily Harm under section 319 of the CCA;

27.4 The defendant shall appear at the Waigani National Court, Criminal Listings on Monday 08^th of February 2021 at 9:30am;

27.5 Defendant’s District Court bail of K1, 000 is extended on the same conditions and

27.6 The defendant’s two guarantors shall appear at the Waigani National Court for bail review and to sign certificates of guarantors.

Police Prosecution For the Informant
Kombri & Associate Lawyers For the Defendant

__________________________

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^[1] Chapter No. 40
^[2] Hill, Gerald N and Hill, Kathleen T., Online dictionary, The free dictionary ‘CITE’,1981-2005
^[3] [2014] PGNC 68, N5596 (13^th May 2014)
^[4] [2011] PGNC 131, N4299 (31^st May 2011)
^[5] [1994] PNGLR 94 (Injia, J.)
^[6] [2008] PGDC 99; DC800 (16 May 2008).