Police v Naria [2021] PGDC 119; DC6074 (25 August 2021)

DC6074

Papua New Guinea

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

COM NO 174 OF 2020
CB NO 862 OF 2020

BETWEEN:

THE POLICE
[Informant]

AND:

JAMES DICKSON NARIA
[Defendant]

Waigani: Paul Puri Nii

25 August 2021

COMMITTAL PROCEEDINGS: -Charge- Murder -Section 300 (1)(a) –of the Criminal Code Act 1974, Chapter No. 262. Evidence in the police file must provide prima facie acceptable evidence meeting all the elements of the charge to commit the Defendant.

EVIDENCE: Legitimate prerequisite for prima facie case-Existence of the basics of the charges of Murder– Defendant must be accurately identified as the perpetrator – identity parade must be conducted-Description given to Police is misleading-Elements not satisfied for Murder-.Evidence is not decent to commit the Defendant. Evidence is insufficient-Allegation dismissed

PNG Cases cited:

Police v. Medako [2021] PGDC 54; DC6011
State v. Paina [2014] PGNC 182; N5819
Police v. Kambian [2021] PGDC 66; DC6021
John Beng v. The State [1977] PNGLR 115
Biwa Geta v.The State [1988-89] PNGLR 153

Overseas cases cited:
Nil

REFERENCE

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

Counsel
Police Prosecutor: Sgt Joseph Sangam For the Informant
Bosky Koke: Office of the Public Solicitor 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. The decision is completed after wisely considering the evidence in the Police file and Defense submission wrangling police evidence. On 22^nd July 2021, Defendant made an oral urging to the court through a written submission filed on 08th April 2021. Prosecution made no objection and now is my ruling.

CHARGE

1. Defendant appearing from remand is charged on one count of Murder under Section 300(1)(a) of the Criminal Code Act 1974, Chapter No. 262.
   

FACTS

2. Police recognized the Defendant as aged 22 years of Wala village in Pangia, Southern Highlands Province. Police allege on 17^th November 2018, victim walked home from her work place and when about to reach her home gate, Defendant approached from behind and seized her by trying to rape the victim but she resisted and thus Defendant lifted the victim and landed head first on the ground. Police allege that when the Defendant sighted victim was bleeding from the impact of landing on the ground, Defendant left the victim and ran away. Victim upon gaining her conscious ran back to her work place and alerted the accident which then prompted her employer to lodge a criminal complaint which subsequently led to the Defendant’s arrest, interrogating and charge.
   

ISSUE

3. The inquiry of appropriate evidence will be determined by the court after police evidence is considered.
   

THE LAW

4. The authorities of this court to make ruling on committal is under Section 95 of the District Court Act. This power is implemented only after when evidence against the accused is presented to court and parties make submissions on the adequacy of evidence. In the present framework, the quoted rule is relevant and hence I declaim the law below:
   

95. Court to consider whether prima facie case.

(1) Where all the evidence offered ^[1]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 Law in the Criminal Code that institutes the charge against the Defendant is characterized below:
   

300. Murder.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person. Penalty: Subject to Section 19, imprisonment for life.

ELEMENTS OF THE OFFENCE

6. I have publicized in a committal case that I headed in Police v Medako^[1] that police must verify the foundations (elements) of the allegation under inquiry. It is a permitted obligation that Police evidence must meet all the elements of Murder. In State v Paina^[2], his honor Cannings J, recognized two (2) elements of murder, which are:
   
   1. that the accused killed the deceased.
   2. the accused intended to cause grievous bodily harm to the deceased (or some other person).
      

EVIDENCE

7. Evidence is very essential when overseeing the utilities of the committal court. I have quantified in Police v. Kambian^[3] that evidence plays an authoritative part in the organization of criminal fairness to certify an unbiased and reasonable conclusion is reached. Evidence for the allegation of Murder provided by police and served on the court on 21^th October 2020, must gratify the two (2) elements of the charge against the Defendant.
   

PROSECUTION CASE

8. Police Prosecutor Joseph Sangam representative of the Police informant requested the court to scrutinize the evidence in the Police Hand-Up-Brief and make a ruling. I will now examine the police file encompassing all witness statements comprising the Police arresting Officer and corroborator. Police file was served to the court on 21/10/2020.
   
9. In instantaneous, police file is made up of resulting people, their statements and what they have provided to police which is part of the police hand-up-brief. I have put them in the table below:
   

Contents of Police file

No	Name	Evidence	Statements
1	Ken Delaney	Victim’s husband	victim as his wife
2	Raymond Pythias	Victim’s Employer	Deceased left her work place before she was murdered
3	Mugs Lama	Accused’s relative	He was drinking alcohol with the Deceased prior to the incident
4	Eugene Bune	Policeman	He attended to the accused
5	Sgt Samuel Koi	Crime Examiner	He has photos of the crime scene and victim
6	PWC Celcila Dangi	Police Corroborator	Assisted the arresting officer during interrogation
7	S/G Yaku Gwampom	Arresting Officer	How he interviewed the victim and obtained his statement.
8	Dr Joe Norroe	Autopsy Report	Causes of dead

DEFENSE CASE

10. Defendant through his Lawyer Bosky Koke disputed the evidence is not appropriate to institute a prima facie case of Murder against the Defendant. Defendant strongly contended on the issue of personality or identity that the indication delivered by police does not bond the accused to the crime. Defendant submits Police have failed to conduct identification parade so that the accused would be suitably recognized as the creature subject of contention. Defense argues the account specified by state witnesses and police do not give a fixed narrative of the accused and therefore the accused was mistakenly identified as person of interest. In the nut shell, Koke for the accused says; Police confirmations have failed to meet the first element of Murder. Defense argues he was not the being who was suspected to have committed the crime of Murder against the deceased.
    

CONSIDERATION OF EVIDENCE

11. The statement of Delany Ken indicates the Defendant lives some 100 meters away from the accused home and also says the deceased victim bitten the Defendant’s hands and in anger of that victim was lifted and slammed head first on the ground where she sustained brain injuries and later died.
    
12. The statement of Raymond Ken Pathias provides a portrayal of a person as one of the betel nut sellers who sells red nuts outsides the lodge gate. This witness went on to say the suspect is solid (stocky) in built and has a dot tattoo on his forehead. Witness says prior to the incident he saw the Defendant got drunk with another betel nut vender next to the betel nut market.
    
13. Statement of mugs Lama says when he was at works compound after his off day, Defendant was alleged to have committed the crime. Witness Nou Sere says he was informed by the deceased that she was attacked by the betel nut seller.
    
14. Statement of Eugene Bune says the Defendant allegedly committed the offence in 2018 but was on the run until in February 2020, he was caught after a tip off by an informant. The suspect was subsequently taken to Boroko Police station where he was arrested and charged. The other police witness all transmits to the arrest and interrogation against the Defendant.
    
15. The Autopsy Report conducted by Dr Joe Norrie of Port Moresby General Hospital on 1^st June 2020, shows victim had multifocal, subarachnoid, haemorrhage with collection of old blood with clots at the base of the skull surrounding the mid brain, pons and medulla oblongata. A convoluted and exclusive medical term used to describe that the victim succumb to her death thought skull and brain injury.
    

RULING

16. The victim is now deceased and she is not alive to give evidence and therefore police statements must wisely meet the two (2) elements of the offence of murder which Cannings, J declared in State v. Paina^[4] that the accused killed the victim and the accused intended to cause grievous bodily harm to the deceased (or some other person). The issue of identification now becomes pertinent in the existing case. In order to ratify the defendant as the person who killed the victim to endorse the first element of murder, the accused must be identified by witness to be the person murdered the victim. The rule of identifying and recognizing an accused is well established in our dominion in the matter of John Beng v. The State^[5]. I remind myself of these doctrines and will adapt them here. An important distinction made by the court was on the issue of identification and recognition. The court concluded that recognition is not the same as identification; the burden to be agreed upon evidence of recognition depends upon the dimension and degree of previous acquaintance that is whether the Defendant and victim had known each other for some time or the witnesses had known the Defendant for some time.The only evidence of recognition is from the statement of Raymond Ken Pythias where he says he identified and labeled the Defendant as having a dot tattoo on his forehead. Moreover, the statement of Sere Nou says he was told by the vicitm that she was attacked by a betel nut seller. To me this is not identification but recognition because Defendant sells betel nuts next to the deceased’s former place of employment and known by people including the decease who go there to buy red nut.
    
17. The court in Biwa Geta v. The State^[6] says recognition could be more consistent than identification of a person you do not know; nevertheless the court^[7] says one of the serious blunders witness makes is even when the witness is claiming to recognize someone they know, they may recognize someone for some other person. The witness statement of Raymond Ken Pythias says the Defendant is stocky and has a dot tattoo on his forehead. The statement of Nou Sere represents what he heard from the victim. He was told the victim was attacked by a betel nut seller. With consistent to the principles under John Beng ^[8]and Biwa Geita^[9] cases, I am convinced the victim’s attacker was not cautiously recognized by the witnesses but they recognized someone who had the feathers of a betel net seller, someone who is stocky and has a dot on his forehead. Is Defendant the best description of this person?
    
18. In the absence of Identification, the qualification under Biwa Geta^[10] and John Beng^[11] cases are fittingly relevant here where there must be evidence of the Defendant and victim knew each other as friends, shared the same neighborhood, attended same school and grew up together. In here none of this is related but Defendant is attached to the crime against the victim through some descriptions. To me the evidence of having tattoo on the forehead, stocky in built and betel nut seller does not give a preeminent narrative of the Defendant. I am satisfied the evidences delivered by police do not satisfy the first element of the offence of murder and so do the second element. Therefore, it is my decision that Defendant currently under enquiry is wrongly recognized and subsequently charged.
    

CONCLUSION

19. I am satisfied the Defendant was not identified by the witness but was inaccurately recognized for some other person. The descriptions provided by the state witness in their statements do not tie the Defendant to the crime. The descriptions to me were for some other person and not the best portrayal of the Defendant. The evidence against the Defendant for the information under enquiry for the offence of Murder pursuant to Section 300(1)(a)^[12] is insufficient to commit the Defendant. This is my ruling under Section 95(2) of the District Court Act.
    
20. ORDERS
    
    1. Evidence is insufficient to commit the Defendant.
       
    2. The Information holding the charge of Murder under Section 300(1)(a) of the Criminal Code Act [chapter 262) is Dismissed.
       
    100. Defendant is discharged from Custody.

.

Public Solicitor For the defendant
Police Prosecutor For the State

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^[1] [2021] PGDC 54; DC6011 (31 May 2021)
^[2] [2014] PGNC 182; N5819
^[3] [2021] PGDC 66; DC 6021
^[4] Supra ( the elements of Murder)
^[5] [1977] PNGLR 115
^[6] [1988-89] PNGLR 153
^[7] Supra ( I restate his owners words)
^[8] Supra
^[9] Supra
^[10] Supra
^[11] Supra
^[12] Criminal Code 1974