Police v Dunamis [2021] PGDC 121; DC6076 (25 August 2021)

DC6076

Papua New Guinea

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

COM NO 1817 OF 2020

BETWEEN:

THE POLICE
[Informant]

AND:

JACOB DUNAMIS
[Defendant]

Waigani: Paul Puri Nii

25^th August 2021

COMMITTAL PROCEEDINGS: -Charge- Attempt Murder -Section 304 (a) –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: Sincere precondition for prima facie case- Reality of the fundamentals of charges of Attempt Murder– Defendant is identified and recognized as the offender – Defendant is known to the victim-identification parade not needed –words of mouth evidence- 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. Tulong [1994] PGNC 165; [1995] PNGLR 329
Akia v. Francis [2016] PGNC 335; N6555
Yarume Eugua[1996] PNGNC 24; N1476
Police v. Aiyok [2020] PGDC 52
Beng v. The State [1977] PNGLR 115

Overseas cases cited:
Nil

REFERENCE

Legislation
Constitution
Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40
Arrest Act 1977 [Chapter 339]

Counsel
Police Prosecutor: Sgt Joseph Sangam For the Informant
Gibson Bon: Gibson Bon Lawyers For the Defendant

RULING ON EVIDENCE

25^th August 2021

INTRODUCTION

NII, P.Paul Magistrate. This is the court’s ruling made under Section 95 of the District Court Act 1963. The decision is accomplished after prudently considering evidence in the Police file and Defense submission disputing police evidence. On 15^th July 2021, Defendant made oral arguments to the court through an inscribed compliance filed on 14^th July 2021. Prosecution consequently protested to the Defendant’s interest for court to ruminate the contrasting and thus is my ruling on committal.

CHARGE

1. Defendant currently in court is appearing from remand and charged with one count of Attempt Murder under Section 304(a) of the Criminal Code Act 1974, Chapter No. 262.
   

FACTS

2. In instant, Police material in the form of information says Defendant is aged 31 years and originates from Sarang village in the Sumkar District of Madang Province, PNG. Police allege on 9^th July 2017, at the Bush wara block in 9 mile, NCD, Defendant endeavoured to criminally murder the victim but she subsisted. The further and restored facts about the allegation will be revealed in bullet points. Here are the realities:
   
   1. Police says on Sunday the 9^th July 2017 at 6.am, Defendant was at Bush Wara block in Nine mile, NCD and confronted the victim who was waiting for public transport for morning shift work with Pacific International hospital. Police allege the victim was slashed with a 1 meter long bush knife which is branded as tramontina.
      
   2. Police allege Defendant cut the victim’s right leg off and she felt to the ground shattering in agony for comfort but Defendant continued his violence on other parts of the victim’s body where he utterly cut off four(4) of her right fingers. Defendant then took the victim’s bag holding valuable items like phone, money and bank cards before running away.
      
   100. Police say victim was salvaged by the public who were at the proximate of the accident scene and subsequently taken to Pacific International Hospital where she was treated for the wounds sustained.
        
   4. Police allege Defendant flew to Madang after he allegedly committed the offence against the victim until he was captured on 6^th November 2019 and on 8^th November 2019; Defendant was formally arrested and charged.
      

ISSUE

3. The question on focus for my contemplation is whether the contents of police file are satisfactory to commit the Defendant.
   

THE LAW

4. The principles under the law for this court to deliver its ruling on committal are per Section 95 of the District Court Act. This command is executed only after when evidence against the accused in the police file is served to court and thereafter submissions from parties are received. In the present context, the recited law is pertinent and thus, I pronounce the law beneath:
   

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 offending Law under which the Defendant was arrested and charged is under Section 304(a) of the Criminal Code Act. The characterization of the law as I deliver is as follows:

304. Attempted murder, etc.

A person who—

(a) attempts unlawfully to kill another person is guilty of a crime. Penalty: Subject to Section 19, imprisonment for life.

DEFENSE CASE

6. Defendant though Gibson Bon Lawyers contended on the competence of Police file through a submission on adequacy of evidence which was filed on 14^th July 2021. Mr Bon raised some opening concerns that Police Hand-up-brief does not encompass a charge sheet and there is no Crime Report lodged and hence he argues that there is no evidence that the Defendant was arrested under Section 18(1)(b) of the Arrest Act 1977 [Chapter 339]. Defense argues the charge is thus unacceptable and flawed by supporting his argument on State –v- Napa Tulung (1995) PNGLR 3299.
   
7. Defendant’s Lawyer argues his client did not commit the offence as what maintained by Police. Bon for the Defense disputes that Police statement did not conform to the obligatory legal requirement under Section 94 (1A) and 94 (1B) of the District Court Act and hereafter intensely requested for the court not to admit the statements. Defendant’s lawyer claims Statement of Susan Manidu is inconclusive as there is no certification passage at the bottom of the statement.
   
8. Defense says the statement of Dr Torovo Frank, Dr Wawi Siwi and victim Marken Linday are not signed and therefore should not be accepted by court. Defense takes no issue on the statement of Dapal Daniel Paul and Christopher Uro,o but the statements of Fofosiar Emmanuel and Henry Dabiri as not applicable as they were Police arresting officer and corroborator. Lastly, Defendant objected to the statement of Saula Bertah by saying she was not present at the crime scene but only assisted in the arrest of the Defendant and hence should not be admitted.
   
   9. Defendant also argued the Record of Interview is not signed by the victim and therefore should not be admitted by the court. Finally Defense says police have not enclosed exhibit evidence to link the crime to the Defendant but presenting of photos of wounds and treatment in the hospital is not direct evidence and hence evidence is not clear and should not be accepted by the court.
      

PROSECUTION CASE

10. Prosecution case is bounded in the police file holding lists of witness and evidence including medical report. There are whole of nine (9) witness statements delivered in backing of police case. For useful resolves, I have recuperated the witness in terms of their roles and statements which are précised in the board below:
    

No		Name	Particulars	Evidence
1		Lindy Marken	Victim	She says how she knew the Defendant and the attempt murder and the Defendant’s identity.
2		Susan Mandu	witness	Her statement to police including victim’s last home where she slept and to whom the victim spent the night.
3		Danuel Paul Dapal	Victim’s Husband	His statement including how he was informed of the attempt murder on the phone when he called the victim and how he looked after the victim at Port Moresby General Hospital.
4		Bertha Saula	Victim’s niece	Her evidence including how the Defendant was lured to Port Moresby from Madang and how he was tracked down and arrested by Police
5		Dr Frank Torovo	Medical Doctor	His evidence comprise of how he first treated the Victim
6		Dr Siwi Wawe	Medical Doctor	His statement is about how he treated the victim when she was taken to Port Moresby General Hospital from Pacific International Hospital
7		Christopher Uro’o	Police man	His statement contains how the Defendant was arrested at Vision City and taken to prison
8		Henry Dabiro	Police corroborator	His statement says he is a policeman who was with the arresting officer when the Defendant was arrested and charged.
9	Emmanuel Fofosiar		Arresting Officer	He is the police arresting officer and states how he conducted the ROI

Police witness statements

11. Police Prosecutor Joseph Sangam submits the evidence is sufficient to commit the Defendant and court should accept all evidence and commit the Defendant. Prosecutor Sangam says issues of not signing the witness statements are not matters relevant in this court since such would be raised during trial in the National Court. Prosecutor Sagam also says this court is sanctioned to deal with sufficiency of evidence in the Police file and not to test the evidence while the later shall be done in the National court. Prosecutor also informs the court that it was the Defendant’s Constitutional right not to sign the Record of Interview and therefore this issue is inappropriate before the court.
    

CONSIDERATION OF EVIDENCE

12. The arguments before the court is in two limbs, the first is on procedural necessities and second on substantive. The Lawyer for defense raises some preliminary issues as part of his argument and thus those will be deliberated. Defendant says there is no charge sheet and Crime Report and thus the arrest against the Defendant was improper as it conflicts Section 18(1)(b) of the Arrest Act. I narrate the Act below:
    

18 DUTIES OF OFFICER-IN-CHARGE OF STATION.

(1) Where a person has been arrested and taken to a police station, the officer-in-charge of the police station shall—

• (b) if he does not release the person under Paragraph (a)—take the person into custody and enter in a permanent register of arrests the name of the person and if it appears that the person arrested—
  

(i) has committed an offence—the nature of that offence; or

(ii) has been arrested for some other reason—that reason.

13. Funded on the above provision, Defendant says the arrest against him was not executed according to Law as is the Principle in State v Tulong [1994] PGNC 165; [1995] PNGLR 329. In the matter of Tulong^[1] court found out that Defendant was arrested without a warrant of arrest. Court noted that the charge under which the Defendant was arrested obligated police to arrest through a warrant of arrest. On this foundation the indictment was terminated by the National court. The current charge of attempt Murder under Section 304(a)^[2] against the Defendant does not necessitate Police to arrest through a warrant of arrest.
    
14. From a judicial perspective “a crime Report” is a written description of a happening witnessed from one or more bases and a “charge sheet” is a notice to notify a person of charges being laid against him or her by their employer. Once a Criminal complaint is lodged against any person, a crime report may be written to keep an account of allegations for record purposes but what matters is the actual complaint. Someone has to lay a Compliant and in the existing allegation the Complainant declared at paragraph 9 of her statement at page 4 that Defendant had escaped from Police after the incident. This amply demonstrated a criminal complaint was lodged against the Defendant after the incident but Defendant allegedly flew to Madang until he was apprehended. However, not only that but I am satisfied a crime report was also lodged by the victim as Crime Report Number 2843 of 2019 and it is shown at paragraph No 6 of the Victim’s statement at page 4.
    
15. A ‘Charge sheet’ is on the other hand a piece of paper which is used by police for charging police employees administratively and the outcome would either be demotion, reduction in pay or the worse be termination from employment, it does not transmit criminal prosecution. A complaint on an Occurrence book (OB) and crime reports are approaches Police employ to lay criminal charges and I am satisfied this was followed by the Complainant when the allegation against the Defendant was made known to Police and therefore I refuse to accept the Defendant’s argument under the issues of not complying with a crime report and charge sheet.
    
16. Defendant also raises another question of not complying with 94 (1A) and 94(1B) of the District Court Act. I will state the laws subject of Defendant’s arguments below:
    

94 Copy of information, etc., to be served.

(1A) A statement referred to in Subsection (1)(d) shall contain the following warning to the maker of the statement and shall be signed by the maker of the statement:—

'I...certify that this statement is true to the best of my knowledge and belief. I make it knowing that if it is tendered in evidence I will be liable to prosecution if I have knowingly stated anything that is false or misleading in any particular.

(1B) A statement referred to in Subsection (1)(d) shall, for the purposes of Division III.2 of the Evidence Act (Chapter 48), be treated as an affidavit.

17. Defense argues that statement of Susan Mandui contradicts Section 94 (1A) of the District Court Act, and is not accurately before the court. Defendant argues the maker of the statement did not sign the statement and she did not know and understand what was in her statement. I have noted there are two (2) statements submitted to Police by witness Susan Mandiu. The first one which is not dated holds witness signature and second one dated 2^nd December 2019, none. For the purpose of my ruling, the first statement is accepted but for the second, there is no clear explanation why it was not signed and hence is refused as it conflicts Section 94(1A)^[3].
    
18. Defendant also argues the statement of Dr Torovo Frank, Dr Wawi Siwi and victim Marken Linday be refused as they are not signed. Dr Frank Torova, a consultant Surgeon with Pacific International Hospital through a letter dated 30^th October 2018 describes the victim’s injuries and the treatment the patient/victim went through. Moreover, Dr Siwi Wawe a Specialist Orthopedic Surgeon with the Port Moresby General Hospital’s medical report dated 13^th March 2018, describing the injuries, its extent, medications and the complications victim went through. Both these reports are signed off by the medical Physicians.
    
19. However, there are two (2) reduced unsigned version of the statements to police which are identical to what was signed. Although these statements are not signed it does not defeat the purpose of Section 94(1A)^[4], as I am satisfied the primary statements are signed by the makers and therefore the argument by the Defendant under the issue of not having Medical Doctors statements signed is refused.
    
20. Defendant further argues the Record of Interview is not signed off by the Defendant and thus he was not officially arrested. Evidence designates Defendant decided to remain silent all through the sequence of interview with police. Defendant exercised his rights under the Constitution^[5] not to talk which then followed by him not signing the Record of Interview, it was his right not to sign and hence no one will force him to sign. Therefore, the argument that the arrest against the Defendant is not proper as he had not signed the ROI is refused.
    
21. It is my opinion when Defendant remains silent during interview with police it may mean three(3) things; firstly; it means the offence was not committed, secondly; it means the offence was committed, and lastly; it means Defendant may talk in the national court and testify during trial. After assessing the assumptions, I am convinced to accept the last assumption and that is Defendant may talk in trial.
    
22. Defendant finally questions victim statement as unsigned, no exhibits of the weapon used in the allegation of Attempt Murder, no transcripts of telephone conversations, no photos of crime scene and no photos of alleged stolen item with money and therefore asked the court to refuse the victim’s evidence. I have considered this argument but to my satisfaction the Victim’s statement to Police dated 12^th December 2019, is signed. Moreover, the issue of exhibits and others including telephone conversations does not fall under the category of Section 95^[6]. Defense is asking the court to test the evidence but this is not my jurisdiction. My authority is to weigh the evidence to ascertain its sufficiency on whether to commit the Defendant or not. When exercising my judicial authority under the law, I will only weigh on the evidence that is before me.
    
23. The court in Police v. Aiyok [2020] PGDC 52; DC041, declared and authorized the principles in Akia v. Francis [2016] PGNC 335; N6555, and Yarume v.Eugua[1996] PNGNC 24; N1476, where it was held committal court’s prime function is to measure evidence in the police file and make a ruling on committal. The court went on to say if evidence is sufficient then court should return a verdict to commit, however, if evidence is insufficient then information would be dismissed.
    
24. The committal court’s function under the law is to assess evidence in the police file and make a decision on committal. The court must not outspread its functions to jurisdictions where it has no authority. Consequently, it is an abuse of process and want of authority if I go outside the box by crossing the boundaries to entertain the merit and reliability of evidence. Only the National court has the inherent powers to test evidence during trial, not committal court.
    

RULING

25. Defendant did not raise the issue of identification and recognition but I will raise this here in my ruling. The court in Beng v. The State [1977] PNGLR 115, says the degree of recognition depends on prior acquaintance that is how much the Defendant and victim had known each other. Victim states in her statement to Police that Defendant was her former boyfriend and also says she called out the Defendant’s name to stop when she was attacked at Buswara. I am thus satisfied with the principle in Beng v. State ^[7]that the Defendant at the time of allegation was not only identified but recognized by the victim as the person who allegedly attempted to murder her.
    
26. I have cautiously exercised my jurisdiction under the Law and assessed all the evidence that is put before the court by police. I have examined the victim statement, medical reports, witness statements and Record of Interview and satisfied the evidence before me meets the elements of the offence of attempt murder under Section 304(a) of the Criminal Code Act. It is concluded the Defendant is identified as the person who attempts to unlawfully kill another person who is the victim.
    

CONCLUSION

27. The Police hand-up-brief comprising Prosecution evidence tended in court dated 8^th December 2020, is accepted for purposes of my committal ruling. After assessment of evidence, I am satisfied there is prima facie satisfactory evidence meeting all the element of Attempt Murder to warrant a committal against the Defendant.
    
28. ORDERS
    
    1. Evidence is sufficient to commit the Defendant.
       
    2. Defendant is Committed.

Public Solicitor For the defendant
Police Prosecutor For the State

---

^[1] Supra( basis of the decision)
^[2] Criminal Code Act (Charge under which the Defendant was arrested)
^[3] Supra ('I...certify that this statement is true to the best of my knowledge and belief. I make it knowing that if it is tendered in evidence I will be liable to prosecution if I have knowingly stated anything that is false or misleading in any particular)
^[4] Supa (DCA)
^[5] See Section 46(1) of the Constitution
^[6] Supra (DCA)
^[7] Supra