Police v Kandiu [2021] PGDC 128; DC6083 (13 August 2021)

DC6083

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS COMMITTAL JURISDICTION]

Comm. No 19 of 2021
BETWEEN

THE POLICE
Informant

AND

JASON KANDIU
Defendant

Wabag: M Maitang

2021: 12 July and 13 August
      

COMMITTAL PROCEEDINGS - Charge- One Count of Attempted Murder contrary to section 304(a) of the Criminal Code Act (CCA)– Whether Police Evidence prima facie sufficient to commit the Defendant to stand trial at the National Court.

COMMITTAL PROCEEDINGS – Legal requirements for prima facie case – Elements of Attempted Murder – whether prima facie evidence present to meet the elements of the charge of Attempted Murder – Evidence is sufficient to commit the Defendant to stand trial in the National Court.

Cases Cited

Backley Yarume –v- Sylvester Euga (1996) N1476;
Maladina –v- Principal District Court Magistrate Posain Poloh & The State (2004) N2468;
Mika Akia & Anor –v- Derrik Francis & Anor (2016) N6555
James Pah –v- The State [1985] PNGLR 188
The State –v- Andew Sinogup (2015) N5880
The State v Henry Judah Les (2005) N2950
The State v Michael Nuli (2011) N4198
The State –v– Raphael Kuanande [1994] PNGLR 512

Legislation

Criminal Code Act (CCA)
District Courts Act (DCA)

Counsel

Senior Constable Jonathan Nefoti, for the Informant

Mr. L. Toke, for the Defendant

RULING ON SUFFICIENCY OF EVIDENCE under section 95 (1) DCA

13 August 2021

Introduction

1. M Maitang: This is a ruling on whether there is sufficient evidence in the Police Hand Up Brief (PHUB) to commit the Defendant to stand trial at the National Court pursuant to section 95 (1) of the District Courts Act (DCA).
   

Charge: Attempted Murder; s. 304(a) of the Criminal Code Act

2. The Defendant was initially charged with one count of Attempted Murder under Section 304 of the Criminal Code Act (CCA).
   
3. According to the Charge, police state that “on the 24^th day of February 2021 at Lakopend Village in Ale Valley, Wabag District of Papua New Guinea, the Defendant Mr. Jason Kandiu, aged 24 of Irelya Village of Wabag District in Enga Province did unlawfully attempt to kill another person namely Priscella Kati, a national female thereby contravening section 304 of the PNG Criminal Code Act, Chapter 262.”
   
4. On 10^th August 2021, Mr. Jonathan Nefoti of Police Prosecutions made an application under section 32 of the District Courts Act to amend the charge from section 304 to section 304 (a) of the CCA. There was no objection to the application from the Defendant.
   
5. The Court granted the amendment as there was no prejudice on the Defendant. The amendment sought was not substantial in nature except that it merely sought to insert the correct proviso of the Criminal Code, which proviso was already reflected in the wording of the charge itself.
   
6. The Charge of Attempted Murder is now mounted under section 304(a) of the CCA.
   

Statement of Facts:

7. As per the Summary of Facts contained in the PHUB, the Police allege that at around 7:00pm on 24 February 2021, the Defendant for no apparent reason chopped his own wife and informant, Priscella Kati, when she was on her way back home from Lakopend market with her in law, one Sila Don.
   
8. It is alleged that the Defendant had previously chopped his wife, Priscella Kati, with a bush knife (machete) and that issue was heard by the Luketap Village Court on Monday 22 February 2021; and whilst pending determination, the Defendant again chopped her on Wednesday 24 February 2021.
   
9. The Police state that upon receipt of the complaint of the incident of 24 February 2021, they proceeded to obtain a statement from the victim, Priscella Kati, who was then admitted at Wabag General Hospital and, thereafter had the Defendant arrested and charged.
   
10. The Police further allege that the Defendant admitted during arrest and laying of the charge, to commission of the offence by chopping his wife Priscella Kati with his bush knife (machete) due to some mistakes she committed.
    
11. Accordingly, the Defendant was arrested and charged for Attempted Murder under section 304 (a) of the CCA and placed in police custody.
    

ISSUES:

12. The issue before the Court is whether there is prima facie sufficient evidence in the PHUB which meets the elements of the charge, so as to put the Defendant on trial at the National Court for the charge.
    

THE LAW

The Law on Committal Proceedings

13. The legal basis for Committal Proceedings is set out under Part VI, Division 1 of the DCA, specifically section 94 through to section 100.
    
14. Section 95 of the DCA stresses on the function of the Committal Court in the following terms:

“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."

15. Section 94C of the DCA provides for the manner in which evidence are to be adduced before the Committal Court. It is in the following terms:
    

“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.”

16. Case law is well settled on the practice and procedure of the Committal Court, and three (3) often cited and notable cases are; Backley Yarume –v- Sylvester Euga (1996) N1476; Maladina –v- Principal District Court Magistrate Posain Poloh & The State (2004) N2468; and Mika Akia & Anor –v- Derrik Francis & Anor (2016) N6555.
    
17. In Maladina –v- Principal District Court Magistrate Posain Poloh & The State (supra), His Honour Injia DCJ (as he then was) succinctly notes the Committal Court process as a two (2) phased process as follows:
    

“...I would describe as a two-phase committal process prescribed in Ss. 95, 96 and 100 and 103 (of DCA)...

In my opinion, the first phase of the committal process (apart from s.94B procedure on committal for trial without consideration of the evidence) takes place under S.95. 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.

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.

Under the two phase committal process that I have alluded to, it is clear that the Magistrate is required to form an opinion or judgement on the sufficiency of the evidence at two stages – a preliminary one under S.95 and a final one under S.100 (and S.103). The first is made solely on the evidence offered by the prosecution and the second is made based on the whole of the evidence – the evidence for the prosecution and the evidence on submissions, if any, made by the defendant. It is a fundamental principle of justice and fair hearing enshrined in the principles of natural justice adopted under S.59 of the Constitution, that the opinion formed under S.95 and S.100 must not only be fair but seen to be fair – in that justice by the District court must be not only be done but seen to done. A decision made and reasons for the decision under S.95 of course is not expressly required to be communicated to the defendant under S.95, but implied by principles of natural justice - that it must be communicated to the defendant, so that he understands that a prima facie case for committal has been made out by the prosecution, to which he has a right to respond under S.96, before a final decision to commit is made under S.100 or S.103. Under S.96, if he chooses to give evidence or say something either admitting or exculpating himself, it is to be recorded. If the Magistrate is satisfied on the whole of the evidence that the evidence is not sufficient to commit him, he must discharge the defendant under S.100 on that information.

Under S.100(1), the Magistrate considers whether "the evidence" is sufficient to put the defendant on trial. The general reference to "the evidence" in S.100(1) must be distinguished from the "evidence offered on the part of the prosecution" in S.95. By implication, S.100(1) "evidence" must relate to the whole of the evidence before the Court, that is evidence for the prosecution under S.95 and the evidence, if any, and anything said by the defendant under S.96. The final decision whether to commit the defendant for trial, is made under S.100 (or S.103 Committal for Sentence).”

(Emphasis added)

18. In Mika Akia & Anor –v- Derrik Francis & Anor (supra), His Honour Gavara-Nanu J, at paragraph 5 states as follows:
    

“5.The committal proceedings are governed by Part VI of the District Courts Act, Division1. It is of fundamental importance to note here that a committal proceeding is not a trial or a substantive hearing where a guilty finding or an acquittal of a defendant charged with an indictable offence can be made, it is an administrative process in which an inquiry is made into an indictable offence(s) charged to see if the evidence against the defendant constituted a prima facie case or is sufficient: Bank of PNG v. Eddie Oruba Mai (2007) SC862. At the end of such an inquiry the Committal Court may either discharge the defendant for lack of evidence or for lack of a prima facie case or commit the defendant to either stand trial or sentence in the National Court. The latter would be an appropriate order if the defendant admitted the offence as stipulated under s. 103 (1).”

19. In Backley Yarume v Sylvester Euga (supra), His Honour Akuram J, held as follows:
    

2. The purpose of Committal hearing is to gather evidence and assess them to see whether the evidence is sufficient to Commit the accused for trial or sentence in the National Court. This requires proper and reasonable assessment of the evidence with a view to see whether all the elements or ingredients of the offence is present before he can commit the accused. Sections 94B, 94C, 95 and 100 of Districts Courts Act, Ch 40 to be read together.

20. All in all, these cases show that, firstly, a Committal Court assesses only the Prosecution evidence contained in the PHUB to see if there is prima facie sufficient evidence which meets the elements of the charge, so as to put the Defendant on trial at the National Court. The Defendant will be discharged if the PHUB does not disclose prima facie sufficient evidence in relation to the charge. On the other hand, if there is prima facie sufficient evidence established in the PHUB, the Committal Court secondly considers the totality of evidence which includes that of the Defendant given at section 96 examination, and then decides to commit the Defendant to stand trial at the National Court or otherwise.
    
21. Further, the said cases point out that the Committal process is merely administrative in nature, whereby an inquiry is made into the sufficiency of evidence, and it is not trial proper.
    

The Law on the Charge of Attempted Murder under section 304 (a) CCA

22. Section 304 (a) of the CCA is reproduced below:
    

304. ATTEMPTED MURDER, ETC.

A person who–

(a) attempts unlawfully to kill another person; or
(b) ...,

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

23. Section 4(1) of the CCA states as follows:
    

“4. ATTEMPTS TO COMMIT OFFENCES.

(1) When a person, intending to commit an offence–

(a) begins to put his intention into execution by means adapted to its fulfilment; and
(b) manifests his intention by some overt act,

but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.”

24. In the Supreme Court case of James Pah –v- The State [1985 PNGLR] 188, His Honour Kidu CJ points out the elements of the offence in section 304(a) of the CCA and states:
    

“The elements of the offence in s 304(a) are:

(1) Intention actually to kill; and

(2) putting one’s intention into execution by some overt act.”

25. In The State –v- Andew Sinogup (2015) N5880, His Honour Justice Cannings expends further and lays out the elements of the offence of attempted murder under section 304(a) in the following terms:
    

“The elements of the offence of attempted murder under Section 304(a) are that the accused:

• intended actually to kill the complainant;
• put his intention into execution by means adapted to its fulfilment;
• manifested his intention by some overt act; and
• acted unlawfully.”
  

26. The said elements of the offence are also dealt with and explained in The State v Henry Judah Les (2005) N2950 and The State v Michael Nuli (2011) N4198.
    
27. This Court now has to consider the Prosecution’s evidence as contained in the PHUB and to assess whether there is prima facie sufficient evidence meeting all the elements of the offence of attempted murder under section 304(a) of the CCA, in order to put the Defendant on trial at the National Court.
    

PROSECUTION’S EVIDENCE IN POLICE HAND UP BRIEF

Witness Statements

28. The Prosecution adduced six (6) witness statements in the PHUB. A summary of each of the witness statements are set out below:
    
    1. Priscella Kati

She is the victim. She says, at around 6pm on the date of incident, she was on her way back home from Lakopend Market with her in-law, one Sila Don.

At about 7pm, half-way from the market and to her home, she and Sila Don were oblivious to any danger and were completely lost in their stories. At that time, suddenly someone approached from their back and swung a bushnife at her neck to chop off her neck. She bent over and the blade of the bushnife chopped the back of her head and she collapsed to the ground. The assailant then chopped her knee with the same bush knife and then she fell unconscious. When she came to, she was at the Wabag General Hospital bed. It was then, she realised she was chopped with the bushknife by her own husband, the Defendant. She says she was attended to by the doctors and nurses at the hospital, where her wounds were stitched and she was medicated.

She further says that sometime in Janaury 2021, she had filed for divorce with her husband at the Village Court due to being chopped by her husband and subjected to domestic violence many times. The matter was heard on Monday 22 February 2021 and decision was pending, when she was attacked and chopped by the Defendant on Wednesday 24 February 2021.

2. Sila Don
   

This witness was present with the victim at the time and date of the incident. She states that on Wednesday, 24 February 2021 at around 7pm, she accompanied her daughter Priscella Kati back from Lakopend Market. They were busy telling stories whilst walking back home. Suddenly she heard someone coming from their back and chopped Priscella Kati on her head.

She turned around and saw Priscella Kati’s husband, Jason Kandiu, was holding a bush knife and standing there. She was surprised and scared of her life. At that instance, Jason Kandiu again lifted the bushknife and chopped Priscella Kati on her knee (as she was on the ground) and the bushknife got stuck on Priscella’s knee. Jason Kandiu then left the bushknife where it was on Priscella’s knee and fled leaving also his coat behind.

She says after some time she saw the victim’s father, Erepia Kati come to the site of the incident and she informed him of the incident. Priscella was later assisted by Sopas Rural Hospital motor vehicle and taken to Wabag General Hospital.

3. Erepia Kati
   

This witness is the father of the victim. He says at the date of incident, between 7.00 and 7.30pm, he was on his way home from Lakopend Market. About 200m away, he heard a woman calling out in a loud voice that “Jason Kandiu chopped Priscella Kati and escaped”.

Upon hearing his daughter’s name being called out, he ran towards the scene of the incident to see what had happened. When he reached the scene, he saw a bush knife left stuck on his daughter’s knee so he removed it. He further looked around and saw a coat was left behind so he picked it up.

At that instance, he saw one Jacob Nee and Dick Sambao walking up so he informed them of the incident. The trio then shouted out for help and people at the Lakopend market came up to assist and they all took Priscella Kati to Lakopend Health Center. After that, help was sought from Sopas Hospital motor vehicle to take Priscella Kati to Wabag General Hospital, where she was treated and her wounds stitched.

4. Martin Kori
   

This witness is the Police investigator and arresting officer in this matter. He was involved in the investigations and conducting of the Record of Interview.

He says that after receiving complaint of the brutual attack and chopping of the victim, he went and found out that the victim was still alive at the Wabag General Hospital. So he took out her statement and had the Defendant arrested when he was brought in by the victim’s relatives.

He says, at the interview, the Defendant admitted to committing the offence.

5. Wini Lale
   

This witness is a R/Constable of Police attached with CID Section of the Wabag Police Station. He is the corroborator at the Police Record of Interview (ROI). He says the Record of Interview was conducted without any threat, assault or duress.

6. Dr. Solomon Palani
   

This witness is the medical doctor who attended to the injuries of the victim Priscella Kati. He says that the victim was initially seen at the hospital on 24 February 2021 for allegedly been slashed with a machete by her husband.

He says that from his initial examination, he noted multiple lacerations to the sculp and left lower limb with no bones involved. He also found no neurovascular compromise. The victim was treated; wounds were dressed as per the aseptic technique and EUA/debridement/suturing on 25 February 2021 and later discharged on antibiotics.

Documentary Evidence

29. In the PHUB, the Police Prosecutions rely on and attach the following documentary evidence:
    
    1. Record of Interview dated 19^th March 2021, both English and Pidgin versions. There were no admissions made.
       
    2. Medical Report dated 29^th March 2021, Surgical Department, Enga Provincial Hospital, indicating multiple lacerations to the scalp and lower limb.
       
    100. Antecedent Report – contains personal particulars of defendant and nil prior convictions.
         

Exhibits

30. The exhibits set out in the PHUB are as follows
    1. Photograph of victim’s left leg, which depict brutally chopped open wound
    2. Photograph showing victim’s bandaged head.
    100. Photograph showing victim in hospital bed being treated.
    4. Photograph of crime scene
    5. Sketch Map of Crime Scene
    6. Photograph of Defendant’s coat and bushknife (machete) left at crime scene
       

DEFENDANTS’ SUBMISSIONS

31. On 6^th May 2021, the Court directed the Defendant to file submissions, if any, on sufficiency of evidence.
    
32. By letter of 02 June 2021, Counsel for the Defendant, Mr. Toke from the Office of the Public Solicitors, opted not to file Submissions on Sufficiency of Evidence and requested for the Court itself to consider and make a ruling based on the PHUB.
    

PROSECUTION’S SUBMISSIONS

33. Mr. Jonathan Nefoti of Police Prosecutions conceded with the Public Solicitor’s letter of 02 June 2021 and orally submitted for the Court to make a ruling based on its own consideration of the evidence as set out in the PHUB.
    
34. Further, he orally submitted that the Police evidence in the PHUB was prima facie sufficient as it met all the elements of the offence.
    

ANALYSIS OF EVIDNECE IN THE POLICE HAND UP BRIEF

35. At this juncture, the Court must now consider the evidence in the PHUB and assess whether the evidence is prima facie sufficient and satisfies all the elements of the offence of Attempted Murder under section 304(a) of the CCA, in order for the Defendant to be put on trial at the National Court.
    
36. The elements of the offence of Attempted Murder under section 304(a) of the CCA are well encapsulated and discussed in the cases of James Pah –v- The State [1985 PNGLR] 188; The State –v- Andew Sinogup (2015) N5880; The State v Henry Judah Les (2005) N2950; and The State v Michael Nuli (2011) N4198. These elements are as follows:
    
    1. The accused (a person)
    2. intended actually to kill the complainant;
    100. put his intention into execution by means adapted to its fulfilment;
    4. manifested his intention by some overt act; and
    5. acted unlawfully.
       
37. The crucial element to prove in this case is whether the Defendant had the intention to kill the complainant. In The State –v– Raphael Kuanande [1994] PNGLR 512 Injia AJ (as he then was) made the following pertinent comments on proving intention:
    

"Intention is a matter which goes to the state of mind, of the accused at the time he acted. 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 constituting the offence."

FINDINGS

38. This Court after considering the evidence in the PHUB sets out below its findings on the elements of Attempted Murder as per the charge against the Defendant.
    
39. Firstly, evidence adduced identifies the Defendant as the assailant who yielded the machete and chopped the victim on her head and leg. The eye witness testimony of Silo Don unequivocally and directly identifies the Defendant as the assailant and places him at the scene of the incident. The victim, Priscella Kati herself also identifies the Defendant as the assailant who attacked and chopped her with his machete at the scene of the incident. Further, the Defendant in his answer to question 29 of the ROI admits to being the owner of weapon (i.e. machete) used in commission of the crime plus the coat found at the crime scene. That, also, by way of circumstantial evidence reinforces and identifies the Defendant as the assailant and perpetrator of the offence.
    
40. Secondly, on the element of intention to kill, this Court has to assess the action of the Defendant, prior to, at the time and subsequent to commission of the offence in accordance with the principle in State –v- Kuanande (supra) in order to ascertain the state of mind of the Defendant.
    
41. Evidence in the PHUB, indicate that the Defendant prima facie had the intention to kill the victim:
    
    1. The Defendant attacked the victim in the middle of nowhere and in the evening under the protection of the failing light and nearby bushes.
       
    2. The Defendant ambushed the Defendant and attacked her from the back, employing the element of surprise and the attack was on an unarmed and helpless victim.
       
    3. The Defendant swung the machete aiming for the neck of the Defendant, only for the victim to avert the blow at the last second by bending her head over and the machete struck the back of her head instead of her neck.
       
    4. The force of the machete blow to the head was effected with such savagery and ferocity by the Defendant, that, it as a result caused the victim to be knocked over and collapsed to the ground.
       
    5. The Defendant again lifted the machete and swung at the victim as she was lying on the ground and passing out, except that the machete struck the leg and could not be dislodged.
       
    6. That second blow of the machete was also inflicted with so much ferocity and savagery by the fact that the machete was stuck on the victim’s leg and was unable to be dislodged and further as indicated by the horrific nature of injury on the back of the victim’s leg.
       
    7. The Defendant after attacking the victim escaped into the night, leaving the victim behind helplessly.
       
    8. The picture of the machete used in the commission of the crime indicates a very sharp, shiny and offensive weapon intended for the purpose of butchering.
       
    9. The medical certificate confirms treatment of multiple lacerations to the victim’s head and the left leg.
       
    10. The Defendant had a history of chopping the victim but this time it was effected when the victim had filed proceedings in the Village Court pleading for a divorce with the Defendant due to his violence, and matter was heard only a few days prior and decision was pending.
        
    11. All these actions and circumstances surrounding the incident reflect an intention of the Defendant to kill the victim.
        
42. The Defendant “put his intention into execution by means adapted to its fulfilment” in that;
    
    1. He carried out the attack late in the evening in the middle of nowhere.
    2. He attacked from the back employing the element of surprise.
    3. He attacked an helpless and unarmed victim.
    4. He wielded a very long and sharp machete during the attack on the victim
    5. He struck the machete aiming to chop off the victim’s neck.
    6. The blows of the machete were employed with so much ferocity and savagery.
    7. He struck the machete multiple times at the victim, one when she was standing and the other when she was already injured and lying helplessly on the ground.
    8. He then left the victim helplessly where she laid and he escaped into the night.
       
43. Further these actions manifested the Defendant’s intention as they clearly constitute “some overt act”.
    
44. Finally, the Defendant acted unlawfully, as his attack on the victim and injuries effected on her with the machete were without any lawful excuse and unwarranted. The Defendant had no legal right to chop the victim the way he did and for the victim to sustain those injuries.
    

CONCLUSION

45. In conclusion, this Court is satisfied that all the elements of the offence of Attempted Murder under section 304(a) of the CCA are prima facie covered adequately by the evidence.
    
46. Pursuant to section 95 (1) of the DCA, this Court therefore finds that the Police Evidence is sufficient to put the Defendant on trial at the National Court.
    

COURT ORDERS

47. The formal Order of this Court is;
    
    1. There is sufficient evidence to put the Defendant on trial at the National Court for one count of Attempted Murder under section 304(a) of the CCA.
       

Lawyer for the Informant: Police Prosecutions

Lawyer for the Defendant: The Public Solicitor of Papua New Guinea