Police v Waula [2021] PGDC 115; DC6071 (25 August 2021)

DC6071

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION

COM NO 47- 48 OF 2020

BETWEEN:

THE POLICE
[Informant]

AND:

ASHLEY WAULA
[Defendant]

Waigani: Paul Puri Nii

25 August 2021

COMMITTAL PROCEEDINGS: -Charge- Two counts of Grievous Bodily Harm -Section 319 –of the Criminal Code Act 1974, Chapter No. 262. Evidence in the Police Hand-Up-Brief must deliver prima facie suitable evidence meeting all the elements of the charge to commit the Defendant. Evidence is satisfactory to commit the Defendant.

EVIDENCE: Statements of victims-Defendant identified by the victims-Defendant is recognized by the community as the accused-Direct evidence against the Defendant. Evidence is sufficient-Defendant is committed.

PNG Cases cited:

Police v. Medako [2021] PGDC 54; DC 6011
Police v. Kambian [2021] PGDC 66; DC 6021
Police v.Oa [2020]PGDC 40; DC 5020
State v Kramer [2019] PGNC 98; N7804
The State v Raphael Kuanande [1994] PNGLR 512
State v John [2009] PGNC 237; N4128
State v Timothy [2017] PGNC 277; N6929

Overseas cases cited:
Nil

REFERENCE
Legislation

Constitution
Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40

Counsel
Police Prosecutor: Sgt Joseph Sangam For the Informant
Public Solicitor : Caroline Bomai For the Defendant

RULING ON EVIDENCE

25^th August 2021

INTRODUCTION

NII, P.Paul Magistrate. This is my ruling under Section 95 of the District Court Act 1963. My decision is administered after considering evidence in the Police file that was served on the court on 30^th June 2020. On 22^nd July 2021, Defendant though his Lawyer informed the court she will make no submission but for the court to consider evidence in the police file and make a ruling and therefore it is my ruing on the sufficiency of evidence.

CHARGE

1. Defendant is on bail and is charged on two (2) count of Grievous Bodily Harm under Section 319 of the Criminal Code Act 1974, Chapter No. 262.
   

FACTS

2. Police identified the Defendant as 27 years of age and of Dulai village in Salt Nomane District, Simbu Province who is a regular policeman in National Capital District. It is alleged on 27^th October 2019 at 3 am to 4 am, the Defendant in the accompany of other Police personnel who are all attached to the NCD Arm robbery squad entered a residential house at Ivani Block at six mile without a search warrant and harassed residents. It was alleged that the Defendant discharged several gun shots terrifying the residents and in the process shot and wounded two victims namely Max Clement and Jacob Vino. The victims were later transported to Port Moresby General Hospital’s emergency ward for treatment by the Defendant and his co-accused’s and they left. It was further alleged that on some other subsequent dates between 30^th October 2019 and 13^th November 2019, Defendant continuously harassed, intimidated and used threatening words to the witness in the case against the Defendant by threatening them that he will shoot them with gun. A complaint on the allegation was lodged and on 14^th January 2020, Defendant was arrested and charged for the offence.
   

ISSUE

3. Whether or not there is sufficient evidence to commit the Defendant for the information under enquiry.
   

THE LAW

4. The establishment of this court to create decision on committal is recognized under Section 95 of the District Court Act. This authority is executed only after when evidence against the accused is offered to court and parties make submissions on the competence of evidence. In the present context, parties let court to consider the police file and make a ruling. I pronounce the law hereunder:
   

95. Court to consider whether prima facie case.

(1) Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.

(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division.

CHARGE

5. The offending charge under which the Defendant is charged with is described beneath:
   

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.

ELEMENTS OF THE OFFENCE

6. In Police v Medako^[1] the court says evidence must meet the elements of the allegation under investigation. It is a permitted obligation under the law that Police evidence must meet all the elements of the allegation. The elements of the charge of Grievous Bodily is classified as below:
   
   1. A person who unlawfully does grievous bodily harm.
   2. To another person is guilty of a crime
      

EVIDENCE

7. Confirmation of an allegation based on facts and evidence is indispensable in the administration of criminal justice at the initial stages. The court in Police v. Kambian^[2] elaborates the importance of evidence. It says evidence plays a commanding measure in the union of criminal justice to verify a neutral and equitable end is gotten. Evidence bounded in the police file for allegation of Grievous Bodily Harm must achieve to satisfy all the elements of the charge against Defendant.
   

PROSECUTION CASE

8. Prosecution case is made up of victim statements, medical reports, Police arresting officer and Police corroborator statements to court. Each police witness statement shall be warily looked into and assess to ratify whether there is agreeable evidence against the Defendant to authorize a committal. The evidence must be sound enough to gratify the elements of the offence; otherwise police evidence will have no utility to make a case against the Defendant.
   

No	Witness	Particulars	Statements
1	Max Clement	Victim	This witness says he was wounded by the Defendant
2	Jacob Vino	Victim	This witness is the second victim wounded by the Defendant
3	Lindo Allan	Witness	He says he was also assaulted by the Defendant
4	Paul Kulolo	witness	He says he saw the incident
5	Junior John	Witness	He say the Defendant fired gun shots on the victims and harassed bystanders
6	Therese Arawe	Witness	She saw the Defendant with a gun at the time of incident
7	Pricilla Max	Witness	She came out and saw two(2) victims lying on the ground
8	Ambrose Rose	Witness	He was at the scene of the incident and identified the Defendant
9	Itori Michael	Witness	This witness says he know the Defendant who assaulted the victim
10	Joseph Kove	Witness	He lives with one of the victim’s and he says he saw the victim being wounded by the Defendant.
11	Larup Michael	Witness	He says he identified the Defendant as a habitual offender who on some other occasions after the incident also went to the place and threatened to shoot the victims with a gun.
12	Tumai Banabas	Witness	He says he was assaulted and abused by the Defendant after he assaulted the victims
13	Solomon Tonare	Witness	He says he was threatened by the Defendant during the incident
14	Tony Avaut	Witness	He says he saw the Defendant threatened the victims and wounded them
15	Moses Vavine	Witness	He says he collected empty bullet shell from the accident scene after fired by the Defendant
16	Dr Sonny Kibob	Medical Doctor	His reports contains how he attended to the wounds and treated them at Port Moresby General Hospital
17	Robert Stuart	Forensic Officer	He went to the crime scene and took photographs of the incident scene
18	Cont Stanley Billy	Police Corroborator	He was with the arresting officer when the Defendant was corroborated
19	Joshua Kriap	Police informant	He is the policeman who arrested and charged the Defendant for the allegations of grievous Bodily Harm

DEFENSE CASE

9. Defense through Lawyer Caroline Bomai of Public Solicitors Office informed the court that she will not make submission on behalf of her client and asked the court to scrutinize the Police file and make a decision. The same attitude was adapted by Sgt Joseph Sagam for the Police Prosecution. Therefore, the court will exclusively exercise its jurisdiction under Section 95^[3] and deliver its findings on the issue of sufficiency of evidence.
   

CONSIDERATION OF EVIDENCE

10. Police have provided a total of 19 witness statements against the Defendant. These witness statements among the rest including two victim statements, a Medical statement and forensic photographer’s report. Statement of first victim Max Clement says on 27^th October 2019, at 3am to 4am in the morning, he heard a gunshot next to where he was standing so when the victim advanced to perceive the source; to his disclosure he sighted the Defendant. He termed the Defendant as was wearing a black trousers, white and back stripe shirt, he held a pistol in his right hand and fired shot by swearing in the pidgin language to the extent of blaspheme, as I quote, “yu kaikai kan blo mama blo yu, slip go down”, (end of quote) implication is Defendant swore at the victim by telling him to ingest his mother’s vagina. Victim says in fear of his life he layed on the ground and he overheard his wife coming out of their inhabited community and started enquiring why Defendant acted the way he did. Nonetheless, Defendant without any practical explanations yelled words of blasphemy similar like what he said to the victim to his wife and commanded her to go inside their house and switch off the lights. Victim says while he was lying on the ground he heard several gun shots fired by the Defendant and instantaneously both his legs moved perpendicularly up the space and down without him moving. Victim says few instants later he felt his left leg disoriented and successively blood discharged out from the wound. Witness says he was later taken to Port Moresby General Hospital by the Defendant and his accomplices on their vehicle for further handling.
    
11. The statement of Vinio Jacob says he was also forcefully commanded by the Defendant to lay down on the ground with Max Clement and says he was also shot by the Defendant on his legs. He says he did not comprehend what transpired on his legs upon fear of gun shots, ill-treated and terrorization personality exhibited by the victim until felt pain on his legs after when his pure sentient returned. He says later he was also taken to Port Moresby General Hospital together with victim Max Clement by the Defendant.
    
12. All the other state witnesses’ statements of Lindon Allan, Paul Kulolo, Pricilla Max, Therese Alave, Rose Ambrose and Michael Itori have established the incident of 27^th October 2019. These witnesses say they have clearly identified the Defendant as the one who shot the victims. Moreover, statements of Joseph Kovei, Michael Larup, Solomon Tonarare and the rest of the state witness also confirmed the incident and say they know the Defendant and therefore he was identified. Most of the witness statements say they did not only identified the Defendant but recognized him clearly because he is a regular at the six mile area and known to most of the witnesses.
    
13. Therefore there is no issue of identification and recognition since all these is established. Statement of Tony Avaut at paragraph 3 says Defendant shot the victims on their legs while they were lying on the ground. Statement of Therese Alave says she saw the Defendant standing close to the victim and was swearing at her not to call the Defendant’s name. Statement of Max Pricilla says Defendant swore at her after shooting the victims. All these evidence are not isolated, they are all coming from the community where the victims’ inhabit. The statements of the victims about the identification of the Defendant and the alleged crimes are well established by the statements provided by state witness.
    
14. The Defendant decided to remain silent in his record of interview and told the arresting officer that he would not sign the record of interview and prove his innocence before the court. To my understanding, I believe Defendant choose to deny the allegation by entering an early plea of not guilty when charge was administered against him through the ROI. While that being the Defendant’s constitutional right, I will not enquire on the plea here as this is not appropriate. My jurisdiction is not to entertain plea but on the assessment of evidence.
    

RULING

15. If statement presented to court by police contains direct evidence that connect the Defendant to the allegation of Grievous Bodily Harm then Defendant has a case to answer as is the principle in Police v.Oa [2020]PGDC 40; DC 5020. The evidence is direct; Defendant is linked to the allegation. I therefore accept the victim’s and witness statements because it bonds the Defendant to the allegation.
    
16. The medical reports and medical attention would indicate the seriousness and gravity of the injury sustained by the victims as per State v Timothy [2017] PGNC 277; N6929. The medical report of Dr Sonny Kibob dated 30^th October 2019, says the victim sustained painful swollen left foot with difficulty ambulating. Also it says victim cannot stand alone for hours and do household chores. I therefore accept the medical report that there is evidence of severe bodily wound.
    
17. If the victim ended up in a hospital or dying then such attacks are serious as per State v John [2009] PGNC 237; N4128. The fact that the victims were dropped off to hospital by the Defendant himself signifies that Defendant saw the injuries sustained were serious and therefore the evidence of grievous bodily Harm is accepted.
    
18. Police must prove the elements of the allegation that Defendant was the perpetrator and he used a weapon to wound the victim and the injury sustained by the victim is permanent which is the principle in State v Kramer [2019] PGNC 98; N7804. Evidence of allegation of firearm and rounds of bullets discharged by the Defendant is evident in the witness statements and hence I am satisfied with state witness the Defendant allegedly used a firearm and shot the victims.
    
19. I am satisfied the statements of victim and his wife among many others about the alleged behavior communicated by the Defendant signifies the Defendant had an intention to cause harm on the victim thereby the injury was caused. “It may be proven by direct evidence of the accused’s expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior, at the time and subsequent to the act constitution the offence.”(Injia AJ (as he then was in The State v Raphael Kuanande [1994] PNGLR 512 at page 514,). Therefore evidence presented in the police file is convincing to believe Defendant had an intention to commit the act.
    

CONCLUSION

20. After careful consideration of the police file containing the witness statements and medical reports, the court is satisfied that there is prima facie satisfactory evidence for the allegation of Grievous Bodily Harm against the Defendant. This is the court’s ruling under Section 95(1) and (3) of the District Court Act.
    
21. ORDERS
    
    1. Evidence is sufficient to commit the Defendant for the offences of two(2) counts of grievous bodily harm against the victims pursuant to Section 319 of the Criminal Code Act, [chapter 262]
       
    2. Defendant is committed

.

Public Solicitor For the defendant
Police Prosecutor For the State

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^[1] [2021] PGDC 54; DC6011 (31 May 2021)
^[2] [2021] PGDC 66; DC 6021
^[3] Supra (the Jurisdiction basis of committal hearing)