Police v Kauna [2021] PGDC 116; DC6072 (25 August 2021)

DC6072

Papua New Guinea

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

CB NO 2572 OF 2020
CB NO 3744 OF 2020
CB NO 3745 OF 2020

BETWEEN:

THE POLICE
[Informant]

AND:

ROBERT KAUNA, SLEDGE KAUPA MALO AND ZERAD KAUNA
[Defendants]

Waigani: Paul Puri Nii

25 August 2021

COMMITTAL PROCEEDINGS: -Charge- Willful Murder -Section 299 (1) –of the Criminal Code Act 1974, Chapter No. 262. Evidence in the police file must afford prima facie conventional evidence satisfying all the elements of the charge to commit the Defendant.

EVIDENCE: Genuine prerequisite for prima facie case- Authenticity of the essentials of charges of Willful Murder– Defendant is recognized and known as the offender – Defendant is known to the victim/deceased-victim’s relatives identified the Defendant - credibility of evidence will be proven at trial-Preliminary issues raised are not suitable at this stage-Evidence is decent to commit the Defendant –Defendant Committed.

PNG Cases cited:

State –v- Apuga [2009] PGNC 192; N3811,
Police –v- Fango [2021] PGDC 109; DC6064 (12 August 2021)
Beng –v- The State [1977] PNGLR 115
State –v- Petrus [2020] PGNC 162; N8380 (22 June 2020)
British American Tobacco (PNG) Ltd –v- TST 4 Mile Ltd [2011] PGNC 178; N4589 (8 November 2011)
State –v- Yau [2015] PGNC 288; N6274 (3 December 2015)

Overseas cases cited:
Nil

REFERENCE

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

Counsel
Police Prosecutor: Peter Samghy For the Informant
Friedrich Kiriwom: Public Solicitor For the Defendant

DECISION

25^th August 2021

INTRODUCTION

NII, P.Paul Magistrate. This is my ruling made under Section 95 of the District Court Act 1963. The decision is reached after carefully considering evidence in the Police file and Defense submission arguing police evidence. On 16^th August 2021, Defendants Lawyer asked the court to consider his clients submission filed on 20^th May 2020 with respect to the police file and make a ruling. Prosecution adapted the Defendant’s attitude and thus this is my ruling on committal.

CHARGE

1. Defendants now before me are appearing from remand and are charged on one count of Wilful Murder under Section 299(1) of the Criminal Code Act 1974, Chapter No. 262. I recite the offending charge below as how it appears:
   

“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 wilful murder.”

FACTS

2. Defendants are suspected of causing the murder against the deceased.
   
3. Police allege on 6^th September 2020, Defendants were seen at a gambling area at Erima, wildlife settlement in NCD where they drank alcohol with the victim and some other men. Moments later the deceased hoped on a vehicle labelled as Nissan Navarra and double cab with registration Number BDK 999 to the nine-mile area which was allegedly driven by a relative of the Kauna family. Police allege the occupants of the vehicle purchased some alcohols which they drank and drove all the way to 14 miles.
   
4. Police allege after 14-mile, they dove back and Defendants collaborated and murdered the Deceased because of an allegation where the deceased’s mother was practising witchcraft and killed a relative of the Defendants. Police allege the Deceased’s body was left somewhere at 8-mile which was later taken to the hospital by some security officers. It was alleged the Defendants murdered the victim and left his body at 8-mile and left.
   

ISSUE

5. The question is whether evidence in the police file establishes a prima face case against the Defendants that would warrant the Defendants committal for trial.
   

THE LAW

6. The philosophies under the law for me to deliver ruling on committal is under Section 95 of the District Court Act. This appreciation is performed only after evidence in the Police file against the Defendants are served on court and afterwards submissions from parties are established. In the existing setting, the narrated law is relatable and thus, I enunciate the law underneath:
   

‘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”.

EVIDENCE

7. Police evidence in the Police-hand-up-brief must satisfy all the elements of the offence of Willful murder under Section 299(1) of the Criminal Code Act. The prominence of evidence is underlined in the case of Police –v- Fango [2021] PGDC 109; DC6064 (12 August 2021). The determination for evidence constructed ruling is predominantly for the court to reach at a fair and just outcome.
   

ELEMENTS OF THE OFFENCE

8. The court in Police –v- Fango^[1], adapts the elements of Willful murder in State -v - Apuga [2009] PGNC 192; N3811, and amalgamated in to the following:
   
   1. is a person.
   2. Kills
   100. another person
   4. intending to cause
   5. that person's death
      
9. In the application of my committal authority under Section 95 of the District Court Act, I must make sure Police evidence mollifies each of the above elements.
   

DEFENSE CASE

10. Defense submits police evidence is based on secondary information and hypothetical. Defendants argue the assertion by the Deceased mother that Defendants killed her son as a payback killing for allegation of witchcraft where she killed one of Defendants relative is baseless as witness did not see the killing.
    
11. Defendants through their Lawyer says the witness statement of Jones Bonge is unreliable since the witness did not see the act of murder but only suspected the accuses because of some prior allegation that the victim’s mother through witchcraft and sorcery killed one of Defendants relative. Defense also argue the witness statement of Jessica Kaupa is inconclusive as witness did not see the real act of murder by the Defendant.
    
12. Defendants says the statement of witness Ruben Hugo is not related to the allegation and thus be refused as this witness was dropped off at 9-mile when coming back form 14-mile where they were drinking and thus he was not at the location of the murder at 8 miles. Moreover, Defense argues that the witness evidences of Nathan Justin and Jerry Joseph are not reliable because they did not see the occupants of the vehicle which was described as BDK 999 but sighted it going into a feeder road within the 8-mile area. Defendants finally submit the remaining of the state witnesses are form people who did not actually witness the murder and hence ask the court not to entertain the evidence.
    

PROSECUTION CASE

13. Police case is made up of state witness, record of interview and police witness statements. The following are state witnesses and their evidence in brief:
    

“List of witness and Evidence in brief for the state case”

No	Witness	Particulars	Statements
1	Pao Kaupa	Deceased’s mother	She is the victim’s mother and her statement says the Defendant and his relatives had accused her and her son for sorcery over a Defendant’s relative’s death. Her statements also says Defendant and his relatives including his co accused were plotting to kill her and her son and therefore she allege the Defendant and his co accused killed the victim.
2	Jones Bongi	Unemployed and resides at Wildlife settlement	This witness says the Defendant’s co accused Junior Robert Kauna told him that the Deceased’s mother and victim were responsible for the death of one of his relative.
3	Jessica Kaupa	Deceased’s wife	This witness says, she is the victim’s wife and the Defendant and his co-accuses picked up the victim on a vehicle which she describe as with the registration No BDK 999.
4	Ruben Hugo	Resident at wild life	This witness says he witnessed the suspect and the victim were together when the victim was picked up by the suspect namely Robert Kauna and drove away to 14 mile.
5	Justin Anthon	Security Guard	This witness says he was on duty when he noticed the vehicle Nissan Navara, double cap and red with registration No BDK 999 was driving up the North Lake estate area with some people at the back
6	Jerry Joseph	Resident of Morauta Swamp	This witness says he saw a vehicle with registration number BDK 999 driving towards back road 8-mile area. Witness says he later went to the murder scene with his relatives and discovered the deceased body.
7	Grai Simon	Resident of wild life	Witness says he saw the suspect Sledge kaupa who was driving the vehicle described as BDK 999
8	Timothy Malare	Security guard	This witness says he saw the suspects namely Robert Kauna Junior, Sledge Kapua Malo, Zared Kauna and Robert Kauna with the deceased at 14 mile .
9	Thresea Mark	8 mile settler	She said she saw a red vehicle parked underneath a big tree in which some people were drinking and also she sold some fish to an elderly guy.
10	Kello Tolo	Deceased’s brother	He says he received some text messages from suspect Robert Kauna which was witnessed by Joel Eremuga about the Deceased’s death.
11	Joel Eremomugo	Self-Employed	This witness says he heard from Kelly Toko that Robert Kauna killed the victim.
12	Hemsley Babona	Logistical Officer	Witness says the suspect Malo Kaupa went and stayed with him in fear for threats until he was arrested by police.
13	Kemos Ponga	Police forensic officer	Policeman who took photographs of the victim’s corpse.
14	Dr Philip Golpak	Pathologist.	He is the medical doctor who conducted the postmortem into the victim’s corpse
15	Mark Moika	First Constable	He is one of the police corroborator and the one who took the confessional statement from suspect Junior Robert Kauna
16	Nei Pige	Detective Sergeant	Police corroborator who was with the arresting officer
17	Steven Eka	Arresting Officer	He is the one who arrested the Defendant and his co-accuse in relation to the allegation of murder against the victim.

CONSIDERATION OF EVIDENCE

14. The witnesses statements of Pao Kaupa says she was accused of sorcery when some of her relatives and Defendants died of some known diseases. The witness says the allegation of sorcery and witchcraft was spoken by Joel Eremuga and Robert Kauna which was conveyed to her by her son Daniel Kaiapo. Witness says accused Robert Kauna’s sister Teine Barus died in September 2020 and Robert Kauna suspected her of killing her but he could not do anything against her and that was why the Defendant and his co-accuses decided to kill her son first.
    
15. Witness Jones Bongi says on 31^st August 2020, he went to accused Robert Kauna’s sister’s funeral and saw the accused Kauna Zerad, Junior Robert Kauna and a Michael Kauna. After few minute he was informed by Junior Robert Kauna that his aunty which was his father Robery Kauna’s sister was killed through sorcery. Witness further says Robert Junior Kauna told him that his aunty was killed by the deceased and his mother through sorcery.
    
16. The evidence of Jessica Kaupa says on 6^th September 2020, her husband the deceased told her that the accused Junior Robert Kauna bought him beer and he was drinking. Witness says she saw a vehicle but could not recognize the words on the registration but she could remember the number as 999 and saw one of the accuse sledge Kaupa Malo inside the vehicle. Witness says when she went out to check for his late husband, a person who was only described as Jethro form Enga told her that her husband was taken away by Junior Robert Kauna and Sledge Kauna zerad.
    
17. The evidence from Hugo Ruben says on 6^th September 2020, he hoped on the vehicle which he described as Nissan Navara double cab with registration number BDK 999 and they all went to 14-mile from wild life. He says before reaching 14-mile they bought some alcohol at 9-mile where the accused Robert Kauna was surprised to see him in the vehicle, however, they proceed to 14-mile. Witness says he went to 14-mile on the vehicle with the suspects Robert Kauna Junior, Robert Kauna, Sledge Kaupa Malo, and Kauna Zerad and they drove back. Witness says he was dropped off at 9-mile and the rest drove off. However, witness says later he got on a Taxi and went direct to wildlife and enquired about the suspects but did not see them.
    
18. The witness statement of Jerry Joseph says on 6^th September 2020 at about 7.30pm, he was returning home with his family after selling fish at 9-mile market when he spotted the vehicle descried as BDK 999 was driving out from a feeder road in 8-mile and soon after that he heard a voice of a man shouting in pain to die. Witness says when they went closer to where they heard the voice, the saw the victim covered in blood. Witness says they quickly alerted the nearby security guards who later responded to the body.
    
19. The evidence of Timothy Malare who says he resides at wildlife that on 6^th September 2020, he went to 14-mile with 2 of his work mates as it was his off day to wash. Witness says while at 14-mile, he saw the victim and the suspects Robert Kauna, Junior Robert Kauna, Sledge Kaupa Malo and Kauna Zerad at 14-mile.
    
20. The evidence of Kelly Toko says on 7^th September 2020 he got a phone call from the suspect Robert Kauna that the boys went and involved in a trouble because of reason that his sister and others died on the hands of the victim and his mother though sorcery.
    
21. Evidence of Joel Eremogo says he was informed by Kelly Togo that Robert Kauna and his three(3) sons killed the victim. Kelly Togo told Joel Eremogo on the phone about this information.
    
22. When assessing the State evidences of Joe Eremogo, Kelly Togo, Timothy Malare, Jerry Joseph, Hugo Ruben, Jessica Kaupa, Jones Bongi and Pau Kaupa, am satisfied these witnesses are no stranger to the Defendants. Evidence indicated most of them have known each maybe either for province of origin, current place or resident or peer groups and family ties. Most of these witnesses say, they saw the Defendants with the deceased on 6^th September 2020 at Wildlife. The same witnesses say the Defendants including the victim went to 14-mile and came back. One witness says the vehicle which was described as BDK 999 was leaving the murder scene at 8-mile on the night of 6^th September 2020.
    

RULING

23. The evidence of Jones Bongi says he was informed by the Defendants that their aunty was killed by the victim and his mother. To my understanding, there was a preconceived thought developed by the Defendants that the victim was responsible for their aunty’s death. Witness statement of Jessica Kaupa says her late husband was drinking alcohol with the Defendants and were driving out from Wildlife Erima on a Nissan Navarra double cab with registration number BDK 999. To me, this is the start of the strategy of payback against the victim for the death of the Defendants aunty. The evidence of Hugo Robert says he was with the victim and the Defendants on the same vehicle BDK 999 to 14 mile, however, at 9-mile while they were stopping by to buy some alcohol, Defendant Robert Kauna was surprised to see the witness in the vehicle. To me this aspect of the evidence of Hugo Robert shows witness was seen as a person that was there to disturb the Defendants plans to execute the payback killing. Statement of Timothy Malare says he saw all the Defendants and the victim at 14 mile drinking. This mean, the plan to cause payback killing is in the process. The witness statement of Kelly Toko says, on 7^th September 2020, he got a phone call from the suspect Robert Kauna that the boys went and killed the victim. To me this suspect has confirmed that the strategy and plan to do the payback killing is now complete.
    
24. Evidence shows the events prior to the allege murder and moments leading to the murder are all connected, they all connect the deceased to the defendants. I am satisfied the vehicle which was used in the purported planning and aiding for the murder is not only recognized by one witness but with many witnesses and their descriptions are uniform all through. The evidence must link the allegation to the Defendants as reliable in the case of State v Yau [2015] PGNC 288; N6274 (3 December 2015).
    
25. I am also satisfied that the date, timing and location of the allege murder by the Defendants are not only consistently stated but well identified and recognized by the State witnesses. Evidence must link to the Defendant and the allegation. If evidence are lacking to connect the defendants to the allegation, then there are no case against the Defendants as stated in British American Tobacco (PNG) Ltd v TST 4 Mile Ltd [2011] PGNC 178; N4589 (8 November 2011).
    
26. Evidence indicates all these events connect to the allegation of murder against the Defendant and his co-accuses. Defendants have a case to answer if the state evidence is no only credible but connects to the allegation as is the principle in State v Petrus [2020] PGNC 162; N8380 (22 June 2020).
    
27. In the exercise of my committal jurisdiction under Section 95 of the District Court Act, I am satisfied the victim is known to the entire Defendants and the Defendants and the victim are known to the state witnesses. They stay at the same location which is wild life area of Erima. I also have evidence that Defendants had accused the deceased and his mother for practicing witchcraft. The Evidence before me suggests it was a payback allegation for the death of the Defendants relative.
    
28. Defendants through their Lawyer raised issues of speculative and circumstantial meaning no one had essentially saw the allegation of murder and identified the Defendant. However, the court in Beng –v- The State [1977] PNGLR 115, says the degree of recognition depends on any previous acquaintance that is how much the Defendants and victim had known each other. The parties including the victim and State witnesses were known to each for some time. The pattern of evidence from the start at wild life all the way to 14-mile and back to 8-mile where the allege murder purportedly took place is all comprehensive and intact which are connecting the Defendants to the allegation. Evidence shows it was a pre-planned murder that was successfully executed by the Defendants.
    
29. I have carefully implemented my jurisdiction under the Law and measured all the evidence that is put before me by police. I have scrutinized the witness statements, medical reports, and Record of Interview and gratified the evidence before me meets the elements of the offence of Willful Murder under Section 299(1) of the Criminal Code Act. Therefore, the evidence before me agrees the Defendants were identified and recognized by linking to the allegation through the witness statements as they were the persons who allegedly killed the victim.
    

CONCLUSION

30. There is sufficient prima face evidence before me qualifying that Defendants have a case to answer in the higher court for the allegation of willful murder under Section 299(1) of the Criminal Code Act 1974.
    
31. ORDERS
    

My final orders:

1. Evidence is sufficient to commit the Defendants namely Robert Kauna, Sledge Kaupa Malo and Zerad Kauna.
   
2. Defendants are Committed.
   

Public Solicitor For the defendant
Police Prosecutor For the State

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^[1] Supra( Case establishing the elements of the offence)