Police v Lenda [2021] PGDC 140; DC6091 (14 September 2021)

DC6091
Papua New Guinea

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

NCC NO 308 OF 2021
CB 694 OF 2021

BETWEEN:

THE POLICE
[Informant]

AND:

JULIE LENDA
[Defendant]

Waigani: Paul Puri Nii

14^th September 2021

COMMITTAL PROCEEDINGS: Charge-Willful Murder- 299 (1)-Criminal Code Act 1974. Scrutiny of state witness- Police evidence must establish a prima facie evidence by meeting the elements of the charge levelled against the Defendant in order to hold her answerable.

PRACTISE AND PROCEDURE: Court’s power under Section 5 of the District Court Act. –Significant for court to meet the elements of allegations to institute a prima facie case- Legal constituent of the charge– Defendant brought in from custody–Victim statements –- Evidence is sufficient enough to commit the Defendant for the allegation.

PNG Cases cited:

Police –v- Kimisopa [2021] PGDC 76; DC6031
Yarume –v- Eugua[1996] PNGNC 24; N1476
Police –v- Medako [2021] PGDC 54; DC6011
Akia –v- Francis [2016] PGNC 335; N6555
Police –v- Fango [2021] PGDC 109; DC 6064
State -v - Apuga [2009] PGNC 192; N3811

Overseas cases cited:
Nil

REFERENCE

Legislation
Constitution
Criminal Code Act 1974, [Chapter 262]
District Court Act 1963, Chapter 40
Liquor Licensing Act 1963

Counsel
Police Prosecutor: Samghy For the Informant
Public Solicitor: Kaiok For the Defendant

DECISION

14^th September 2021

INTRODUCTION

NII, P.Paul Magistrate. This is my ruling under Section 95 of the District Court Act 1963. My decision is arrived at after evidence in the police file is carefully examined with respect to the Defense submission. Hence, my decision is about the outcome of the state evidence.

CHARGES

1. Defendant is charged on one (1) count of Wilful Murder under Section 299(1) of the Criminal Code Act 1974.
   

Specifics of the offending laws and wordings:

1. Section 299(1)-CCA
   

“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’’.

BRIEF FACTS

2. Police labelled the Defendant as 28 years old and from Yabois village in the Wapanamanda District of Enga Province. Police allege on 27^th February 2021, Defendant was drinking beer with the deceased. Defendant and deceased were wife and husband. While drinking, Police allege Defendant and Deceased got into an argument over a money deal where deceased was accused of using the loan money with another woman. Police allege deceased then walked out of their home towards the gate. However, Defendant followed her towards the gate and hit him with a large rock on his head. Police says accused continued to hit the deceased with rocks until he did not move. Police says, Bystanders and witness then intervened and stopped the accused from further harm. Deceased was later taken to the hospital but was pronounced death upon approval and thus the accused was arrested and charged for the offence of Willful Murder under Section 299(1) of the Criminal Code Act.
   

ISSUE

3. The question relevant at this stage is on the strength of evidence that is whether police evidence is sufficient to commit the Defendant?
   

THE LAW

4. The jurisdiction of the committal court to weigh evidence is under Section 95 of the District Court Act. Nevertheless, this law is further reinforced in the case of Yarume v. Eugua[1996] PNGNC 24; N1476 and Akia v Francis [2016] PGNC 335; N6555. Apart from the two cases, the court in Police-v-Kimisopa [2021] PGDC 76;DC 6031 also says the committal court functions as a filtering process where evidence in the police-hand-up-brief is scanned to make sure the contents meets the elements of the allegation . I will restate the written Law as below:
   

“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

5. In the implementation of my committal authority, I will make sure there is satisfactory evidence delivered by police against the Defendant. The position in Police v Kimisopa [2021] PGDC 76; DC6031, is lively and appropriate in the current allegation against the Defendant where every witness declaration shall be evaluated with the compatible charge to ascertain whether the evidence meets the elements of the subject allegation.

ELEMENTS OF THE CHARGES

6. Police evidence in the police file must satisfy and meet all elements of the allegation against the Defendant. This has been the committal court’s position and this position is also maintained in the case Police v Medako [2021] PGDC 54; DC6011.
   
7. The court in Police –v- Fango [2021] PGDC 109; DC 6064, acclimates the elements of Willful murder as what was detailed in the case of State -v - Apuga [2009] PGNC 192; N3811, which is now integrated in to the resulting:
   
   1. is a person.
   2. Kills
   100. another person
   4. intending to cause
   5. that person's death
      

Prosecution Case

8. Prosecution has provided names of nine (9) people who tended statements for the State.
   1. Justin Anga- this witness is the state’s first witness, he says before the accused was murdered by the Defendant, he was drinking beer with him.
      
   2. Sapo Tina-this witness says he was at the scene and witnessed what had happened that resulted in the death of the deceased. This witness says the deceased was chased out of the gate by the Defendant and attacked with a stone.
      
   100. Kevin Robert and Lazarus Lenda-they are witness who says they were at the crime scene and witnessed the whole incident where the Defendant allegedly murdered the Deceased.
        
   4. Yaku Gwampom, Constable Gerald Siaguya, Det F/C Mark Moika and Det Constable Samson Kami are police arresting officer, corroborator and others who were there at the police station when Defendant was arrested, taken into the police station and interrogated.
      
   5. Dr Sylvester Kotapu- A Medical Doctor who conducted the postmortem on the corpse and made his findings about what caused the deceased’s death.
      

Defense case

9. Mr Kaiok who was standing in for Mr Koky, both lawyers from the office of the public Solicitor informed the court to go through the statements in the police hand-up-brief and make a ruling. Police Prosecutor Peter Samghy concurred with the approach undertaken by Defense counsel and thus I will now look at the police file and make my ruling.
   

DELIBERATION OF EVIDENCE

10. Evidence of Justin Anga says he returned with the deceased to 9-mile form Gaire in Central Province at around 9pm. He says while they were at 9-mile he saw the Defendant drinking beer with her brothers. The accused later joined in and they all drank. Defendant says he left them for home at 12am in the morning but later found out defendant was murdered by the accused.
    
11. Statement of Lazarus Lenda says he was playing gamble with some boys when Victim ran towards where they were, opened the gate and collapsed. Witness says he did not see what went inside the house nor caused the death but only saw the deceased collapsed in his presence.
    
12. Witness statement of Kevin Robert says he heard a loud noise inside the Deceased and Defendant’s home. Witness says later deceased ran towards where he was and collapsed near the gate. Witness went on to say soon after when deceased collapsed, Defendant followed him and hit him with a rock by saying Deceased was only pretending to die, however a Tari guy later came and pushed the Defendant away and told her not to assault the deceased again since he was death. This witness says when the deceased’s body was taken to the hospital; the Defendant’s relatives who reside near the Deceased’s place left the dwelling house in fear of being retaliated.
    
13. Statement of Tina Tapo says he heard Defendant and deceased were arguing over money and soon after that he heard a loud voice in the Defendant and deceased’s home. Nevertheless, moments later Defendant was running after the deceased and started to hit him with rocks near the gate when Deceased was already lying on the ground until some men went and stopped the Defendant from causing further harm to the Deceased. Witnessed says Deceased was later taken to Port Moresby general hospital but was pronounced death upon arrival.
    
14. When assessing the Evidence of all the state witness, am pleased the Defendant and deceased were wife and husband. The evidence also suggests moments before the alleged murder, Defendant and deceased were drinking alcohol together and later they went home. The evidence suggests that Defendant and Deceased victim had an argument over some money from where they were drinking and took the argument with them home. There is evidence that from the drinking arena to the Defendant and victim’s home, they were travelling with evidence of disagreement over something and their dispute worsened at their dwelling home. Moments before the alleged murder, the witnesses’ statements of Tina Tapo and Kevin Robert confirms the Defendant and deceased were arguing at home. Their evidence also says while the victim was lying outside the gate, Defendant continued to assault and hit him with rocks thinking he was untruthful about his laying near the gate. Evidence shows Defendant and deceased were the only people left the drinking place and went to their home and later to the gate where victim collapsed and died.
    

RULING

15. I have adequate evidence that Defendant and deceased were the only people going from the drinking place to their home and suddenly deceased ran out from their home and had collapsed near their gate. None of the witness statements say they actually witnessed and saw Defendant killed the victim; therefore, I will examine the witness statements sensibly here. The witness statements of Tina Tapo and Kevin Robert says they heard a loud noise inside the Defendant and victim’s home and later victim ran out from that loud noise and collapsed near the gate. The witness statements say Defendant kept hitting the victim with rocks even after when he was lying on the ground. Witness says Defendant was heard saying victim was lying and sleeping on the earth. The assertion by Defendant that victim was lying proves to me that victim was chased and bitten by objects by the Defendant which is not known to anybody. The passage of words uttered by the Defendant against the victim (to the effect of victim was deceiving while lying on the ground and continuously being bitten by rocks while lying on the ground) also shows Defendant came to the scene where victim was lying to complete her mission that she started at home and that was the mission to murder the victim.
    

CONCLUSION

16. I have sensibly studied the witness statements and gratified state evidence is connecting form one scene to another with all elements of the offence carefully linking the offence. Evidence consistently displays Defendant and victim were the only characters from beginning where they drank alcohol together when victim returned from Gaire and to the allege murder outside the gate. Evidence is satisfying me defendant is linked to the allegation of murder as the person who allegedly murdered the Defendant with rocks and thus it caused his death. In conclusion, evidence is sufficient to draw a case against the Defendant.
    

ORDERS

17. My formal orders:
    
    1. There is sufficient Evidence to Commit the Defendant for the charge of Wilful Murder under Section 299(1) of the Criminal Code Act 1974.
       
    2. Defendant is committed to stand trial in the National Court.
       

Public Solicitor For the defendant
Police Prosecutor For the State