Police v Francis [2021] PGDC 129; DC6084 (14 April 2021)

Papua New Guinea

[ In the Criminal Jurisdiction of the District Court Held in Waigani]

Case No. of 711 of 2020

BETWEEN:
THE POLICE
[Informant]

AND:
OSCAR FRANCIS
[Defendant]

Wagaini: Jacinta Yoshida Doa

2021: 14^th April

CHARGE: Assault occasioning bodily harm-Section 340 of the Criminal Code Act 1974-Has the Police delivered a prima facie reasonable evidence to commit Defendant to stand trial in the National Court.

PNG Cases cited: [2010] PGDC 28; DC 1038 (8^th April 2010)

Overseas cases cited: Nil

Reference
Legislations
Criminal code Act 1974 Chapter 262
District Court Act, Chapter 40

Counsel
Police Prosecutor: Sgt Polon Konius For the Informant
Defendant in Person.

RULING ON SUFFICIENCY OF EVIDENCE.

INTRODUCTION:

This is a ruling on sufficiency of Evidence after Police Hand up Brief has been completed and served on Defendant.

CHARGE

The Defendant is charged with; “ Assault occasioning bodily harm” under Section 340 (1) of the Criminal Code Act being a Schedule 2 Offence under Section 342 (1)(b) Summary Jurisdiction .

The Information incorporates the Charge as:” did unlawfully assault Joycelyne Nemo and by doing so caused her bodily Harm” I consider these as elements instituting the charge.

FACTS

This is an allegation of Sunday 15^th June 2019 at 4 Mile inside the incomplete 5 Star Hotel Construction Site the Defendant assaulted the Complaint .She sustained injuries being fractured bones to the left and right legs. The Defendant is married to the Complaint with a 6 six years old child.
It was further alleged the Complaint lodged complaint with Family Sexual Violence Unit at Boroko Police Station which led to the subsequent arrest of the Defendant on the 18^th June 2020.

ISSUE

The issue now is whether a prima facie case is acceptably proven thus whether police evidence in the Police Hand Up Brief is agreeable to commit the Defendant.

THE LAW

The Law on Committal Proceedings

Committal Court is a court of controlled jurisdiction where is reigning power is derived from instituting legislations the District Court Act Section 94-100 sets out the basis for committal proceedings. The Maela vs Yahamani provided the foundation for committal hearings “This Court may act as a cleaning process where it filters evidence to ensure there is a case on merit that would warrant a trail proper. At this stage the court will measure the strength and weakness of charges. If the charges are not proper and if the evidence does not support the elements of the charge, then the court may strike out the charge. On the other hand, if charges are supported with evidence then matter will be committed or sent to the National Court.”

The Offending Charge-

SECTION 340 ASSAULTS OCCASSIONING BODILY HARM

(1) A person who unlawfully assaults another and doing so does him bodily harm is guilty of a

Misdemeanour

Penalty: Imprisonment for a Term not exceeding three (3) years.

PROSECUTION CASE

The Police Hand Up Brief was served on the 15^th December 2019 . This File is made up of the Police File.

Witness Statements.

1. Ms Joycelyn Nemo – witness is the victim and wife of the Defendant. She has provided statement about what the accused did to her on Monday 16^th June 2019. She will identify the accused and testify of what the accused did to her.
   
2. Miss Florence Areke- witness is a neighbor who was watching as the accused assaulted the victim, she will identify the accused and testify to where the assault occasioning bodily harm occurred and identify exhibits used to assault the victim.
   

Police Statements

3. Senior Constable Billy Pokom- state witness will testify on the conduct of the Record of Interview, Arrest and Identify the Accused.
   
4. Constable Philip Tamatal- State witness who will corroborate and testify on the conduct of record of Interview.
   

Expert Witness.

5. Doctor Duncan Sengiromo- Expert Witness is a Medical Doctor at Port Moresby General Hospital who attended to the victim during her treatment of her injuries. He produced the Medical report upon his examination findings and treatment of the victim.
   

Prosecution case is made up in the Police Hand Up Brief which consists of victim and witness statements, Medical Report and Record of Interview. This Police File which supports the prosecution case against the Defendant. Under the District Court Act the law requires the court to assess the evidence after it is served on the court. The Court will proceed to make a ruling on the sufficiency of evidence on whether to commit defendant or not.
The Defendant is also given an opportunity to respond on the evidence on the Police File.

The Defendant has filed a Submission on Insufficiency of Evidence tendered in court on the 25^th February 2021 and this now forms the Defence case. The submission comprises of the analysis of witness statements, record of interview and exhibits in the Police Hand Up Brief.

DEFENCE CASE

The Defence raised five grounds

1. The Defence submits that Complaint witness statements contain serious discrepancies and deficiencies. The Statements were alleged to have been written by an educated third party and not the witnesses who were both not proficient with English and Tok Pisin. Thus their statements could not be genuinely capturing actual events described by the witness namely Florence Areke .Thus statement could be flawed and defective in content.
   
2. The Absence of a Certificate of a Translator meant any translations done could not have been done properly rendering any translation done unreliable and inadmissible by virtue of S.94C (2) of the District Court Act. Thus witness statements should be inadmissible.
   

Police Statements

3. The Police Officers who compiled Police Hand up Brief tendered Hearsay Evidence rendering his statement inconclusive.
   
4. The Record of Interview was said to be obtained under duress so it was flawed and breached Human Right of the Accused under Section 36 of the Constitution.
   

Expert Statements

5. The evidence of Victim like exhibits and photographs were said by the Defendant to be inconclusive and Medical Report lacked authentication.
   

In brief the Defendants strongly submit that Police evidence in the Hand Up Brief be dismissed for being insufficient to make a case against the Defendant.

CONSIDERATION OF THE DEFENCE CASE

I respond to Defence submission follows;

1. Defence raised five grounds all evidence enclosed in the Police file be dismissed. The First, Second and Third ground basically claim that Evidence was Hearsay and written by third party.
   
2. The Court had the honour of going through all evidence in the police file comprising the information covering charge. The Defendant is charged under Section 340 (1) Criminal Code Act on Assault Occasioning Bodily Harm.
   
3. The court duty is to make an assessment on the issue of whether the witness statement substantiate the offence and victim’s statement. All witness statement should give effect to the allegation and proven in court by material evidence. The Defence submit the evidence is hearsay and inadmissible; I have considered these submission and have formed a view that it is for the higher court to decide on these issues.
   

EXAMINATION OF EVIDENCE IN POLICE FILE

I have read through the Police File consisting of Records of Interviews. Medical Reports, Victim Statements and Witnesses Statements. From all these there is Evidence that Victim was assaulted by the Defendant. In reference to issues raised by Defence submission on hearsay, translation and third party statements among others raised by the Defendant relate to credibility of evidence.

The Victim can positively identify Defendant as the one who assaulted her causing bodily harm.
Moreover; the witness identified the Accused as the person who assaulted the victim and even assisted victim to seek help.

EVALUATION OF EVIDENCE OF BOTH PROSECUTION & DEFENCE CASE

I have considered the Defence case in detail and concluded that the issues raised does not affect sufficiency of the evidence in the Police File, it was only questioning credibility of the evidence.
The elements of the Charge being the direct strikes,application of force without her consent and the intent to harm are evident. The issue of credibility can be raised at National Court during Trail proper.

Therefore there is sufficient prima facie evidence for the charge of Assault occasioning Bodily Harm under Section 340 (1) of the Criminal Code Act 1974.

CONCLUSION

I have considered the Defence submission and Prosecution file on the issue of evidence and assessed both of them conforming to the prevailing laws and I find there is sufficient evidence to progress a prima facie case to commit the Defendant for the charge of Assault occasioning Bodily Harm under Section 340 (1) of the Criminal Code Act 1974.

ORDERS

There is sufficient evidence to commit Defendant.

Defendant in Person
Police Prosecutor.