Billy v Simon [2021] PGDC 154; DC7009 (3 November 2021)

DC7009

Papua New Guinea

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

COM NO 928 OF 2019
CB NO 3724 OF 2019

BETWEEN:

STANLEY BILLY
[Informant]

AND:

GERRISON SIMON
[Defendant]

Waigani: Paul Puri Nii

3rd November 2021

COMMITTAL PROCEEDINGS: -Charge- Grievous Bodily Harm -Section 319-of the Criminal Code Act 1974, Chapter No. 262. Valuation of evidence to begin a prima facie evidence meeting all elements of the accusation in which the Defendant is charge with to make a case against him.

PRACTICE AND PROCESS: Permissible responsibility for prima facie Case-Evidence base of the nitty-gritties(fundamentals) of charge of Grievous Bodily Harm–Police evidence and witness statements. Defendant repudiated the allegation. Defendant argued allegation was framed up. Evidence is sufficient to commit the Defendant.

PNG Cases cited:

Police v Medako [2021] PGDC 54; DC6011 (31 May 2021)
Police v Koka [2021] PGDC 53; DC6010 (31 May 2021)

Overseas cases cited:
Nil

References

Legislation

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

Counsel

Police Prosecutor: Joseph Sagam For the Informant
Public Solicitor: Luke Simiji For the Defendant

DECISION ON COMMITTAL

3^rd November 2021

INTRODUCTION

NII, P. Paul Magistrate. My judgement is on the valuation of whether a prima facie case is appropriately recognized within the meaning of Section 95(1) of the District Court Act 1963. This is done after the Police file and Defendant’s cases are rationally measured. On 29^th September 2021, Defendant through his Lawyer submitted to the court evidence is inadequate to commit the Defendant. Police Prosecutor Joseph Sagam accused and asked the court to consider the police file and make a ruling. I have carefully measured submission from the Defendant and police evidence and now is my conclusion on committal.

FACTS

1. Police recognized the Defendant as aged 36^th from Anditale village in the Kompiam Ambum district of Enga Province. Police allege on 21^st December 2018 at 7.am, victim and Defendant had a domestic argument and consequently Defendant wounded the victim with furniture whereby victim lost two (2) broken teeth and received wounds on her forehead. Subsequently police allege the matter was addressed though a peace mediation whereby the victim was paid K2000 by the Defendant as compensation or out of court settlement of the initial K15,000 as demanded, however, Defendant was arrested and charged after he had failed to settle his balance of K13,000. Subsequently Defendant was arrested and charged under Section 319 of the Criminal Code Act.
   

CHARGE

2. Defendant is arrested and charged under Section 319 of the Criminal Code Act 1974, Chapter No. 262. The criminal responsibility is publicized below:

“ 319. Grievous bodily harm.

A person who unlawfully does grievous bodily harm to another person is guilty of a crime. Penalty: Imprisonment for a term not exceeding seven years.”

ISSUE

3. Whether evidence is enough to commit the Defendant for the allegation of Grievous Bodily Harm against the victim.
   

THE LAW

Jurisdiction of the court

4. I have jurisdiction under Section 95 of the District Court Act to rule on the issue on sufficiency of evidence.
   

“ 95. Court to consider whether prima facie case.

(1)[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”.

ELEMENTS OF THE OFFENCE

5. The case of Police v Medako [2021] PGDC 54; DC6011, forms the substance, that prosecution evidence in the hand-up-brief must fulfill the elements of the accusation of Grievous Bodily Harm.
   

Elements of Grievous Bodily Harm under Section 319 of the Criminal Code Act

a) A person

b) who unlawfully

c) does grievous bodily harm

d) to another person

EVIDENCE

6. Consistent with the principles in Police v Koka [2021] PGDC 53; DC6010, I will assess police evidence in the police hand up brief and make my ruling on evidence.
   

PROSECUTION CASE

7. Police evidence in the police hand-up-brief.

No	Name	Particulars	Statements
1	Sandy Amaiu Iparas	victim	Victim says she was attached by the Defendant with a table and sustained injuries as a result from the attack
2	Apolos Terry	witness	Witness says he mediated for out of court settlement, however, Defendant was arrested when he refused to pay the balance.
3	Dr Daniel Kanasa	Medical Doctor	He is a medical doctor who described the wounds sustained by the victim.
4	Constable Joshua Kraip	Corroborator	He is the policeman was present with the arresting officer during the ROI
5	Stanley Billy	Arresting officer	Policeman who conducted the ROI and arrested and charged the Defendant

DEFENSE CASE

7. Defendant argues that the witness statement of Terry Apollos is unrelated as it does not mention about the assaults but mediation. Defendant also says the statements of arresting officer and Corroborator do not weigh a lot since the Defendant did not admit about the allegation in the ROI. Defendant moreover objects that medical report and photo exhibits should not be accepted as they do not conform with the Requirements under Section 37 of the Evidence Act since there are no affidavits accompanying the document and photo exhibits. Lastly, Defendant argues he was arrested because he did not pay K13,000 outstanding compensations and thus his arrest amounts to extortion against the victim and her witnesses. Finally, Defendant denies he did not break the victim’s teeth and also argues she fell on the table by herself and was wounded.
   

CONSIDERATION OF EVIDENCE

8. I have considered the evidence of Terry Apollos, the arresting officer and police corroborator and noted Defendant was arrested and charged because of a failed criminal compensation of K15,000 for assaulting his wife the victim. My question is why proposing and paying compensation if Defendant had nothing to be accountable for? Defendant although submitted he did not assault the victim, the paying of K2,000 as part payment to the victim shows defendant was accountable for an act of grievous bodily harm against the victim, in which he took responsibility.
   
9. I note the Defendant's argument under Section 37 of the Evidence Act that there are no Affidavits accompanying the documents and exhibits such as photos. Although such an argument appears to be genuine, at this stage my jurisdiction under section 95 of the DCA is only to assess evidence and nothing else. However, the issue raised is a matter of credibility and reliability of evidence where the National court may determine when evidence is tested but not now when evidence is assessed.
   
10. Defendant also says police were trying to use the criminal complaint to extort him to pay compensation. I note this argument but a person has a right to institute whatever proceedings he/she wishes. Criminal and Civil proceedings may run simultaneously or one for the other or one may be withdrawn and let only the other run and nothing is wrong unless a person is arrested and charged for the same offence twice or an issue which was already decided and a conclusion was reached is raised again. In here evidence displays, Defendant had lodged a Criminal Complaint against the Defendant after she decided to withdraw the mediation and it is her right to do so and thus the proceeding is properly before the court.
    
11. After assessing the evidence, I am satisfied that on the morning of 21^st of December 2018, the Defendant while at Red Sea Police barracks in NCD assaulted the victim who was his wife with a table which resulted in the loss of her two teeth and wounds to her forehead.
    

RULING

12. In my assessment of evidence under Section 95 of the District Court Act, I am content police evidence is meeting all the elements of the offence of Grievous Bodily Harm under Section 319 of the CCA that Defendant unlawfully caused grievous bodily harm against the victim.
    

CONCLUSION

13. Evidence is sufficient to commit the Defendant for the offence of Grievous Bodily harm against the victim.
    

ORDERS

14. My Final Orders
    

1. Evidence is sufficient to commit the Defendant.

Public Solicitors For the defendant
Police Prosecutor For the State

[1] Section 95(1) amended by No. 31 of 1980, s4.