Pige v Ombi [2021] PGDC 155; DC7010 (4 November 2021)

DC7010

Papua New Guinea

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

COM NO 1358 OF 2019
CB NO 962 OF 2019

BETWEEN:

NEI PIGE
[Informant]

AND:

JOHNSON OMBI
[Defendant]

Waigani: Paul Puri Nii

4th November 2021

COMMITTAL PROCEEDINGS: -Charge- Willful Murder -Section 2991 (1) of the Criminal Code Act 1974, Chapter No. 262. Calculation of evidence to create a prima facie evidence satisfying the elements of the allegation in which the Defendant is charged with.

PRACTICE AND PROCESS: Permissible compulsion for prima facie Case-Evidence base of the fundamentals of charge of Willful Murder–Prosecution evidence and witness statements considered- Accused repudiated the allegation. Defense of Identification-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)
Police v Dunamis [2021] PGDC 121; DC6067
Police –v- Kauna [2021] PGDC 120; DC6075

Police v Naria [2021] PGDC 119; DC6074 (25 August 2021)

Overseas cases cited:
Nil

References

Legislation

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

Counsel

Police Prosecutor: Polon Koniu For the Informant
Public Solicitor: Western J Leah For the Defendant

COMMITTAL RULING

04^th November 2021

INTRODUCTION

NII, P. Paul Magistrate. Court’s decision on the assessment of whether a prima facie case is properly proven within the demonstration of Section 95(1) of the District Court Act 1963, when arguments from parties are considered. On 1O^th December 2020, Defendant though his lawyer filed his submission arguing police evidence is insufficient to commit the Defendant. On 23^rd September 2021, parties asked the court to consider the Defense submission and Police file and make a pronouncement. I have responsively measured suggestions from parties and now is my judgement on evidence.

FACTS

1. Police recognized the Defendant as aged 18 years now but at the time of the alleged commission of offence was 16 years old and from Kauwo village in Pangia, Southern Highlands Province. Police allege on 6^th August 2019, at 8.00pm, Defendant and the accused with few others walked to an unoccupied house and were smoking weed or marijuana. Police allege after consumption an argument arose between them which led to the Defendant lifting a bush knife and chopped the deceased on his head and other parts of his body. The accused with others fled the scene after the incident but surrendered to police with the assistance from the victim’s relatives and Police and Defendant was subsequently arrested under Section 299(1) of the Criminal Code Act for Willful Murder.
   

CHARGE

2. Defendant is charged under Section 299(1) of the Criminal Code Act. The offending charge is particularised below:
   

“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”.

ISSUE

3. Whether evidence is sufficient to commit the Defendant to stand trial in the National court.
   

THE LAW

Jurisdiction of the court

4. I have the authorities to hear committal hearing on the issue of evidence pursuant to Section 95 of the District Court Act. My powers are supported in the matter of Police –v- Dunamis [2021] PGDC 121; DC 6067 and Police –v- Kauna [2021] PGDC 120; DC 6075. I reaffirm my authority under the District Court Act, below:
   

“ 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. Police evidence restricted in the police file must satisfy the elements of the offence of Willful Murder. This principle is further supported in the case of Police v Medako [2021] PGDC 54; DC6011.
   

Elements of Wilful Murder-404(1)(a) CCA

a. a person

b. who unlawfully kills another person,

c. intending to cause his death or

d. that of some other person

EVIDENCE

6. The matter in Police v Koka [2021] PGDC 53; DC6010, institutes the principle that an allegation shall only be proven by evidence. and therefore prosecution evidence must please the accusation brought against the Defendant. The further say:
   

“An allegation will only be proven through evidence since it is the accessible body of facts or material designating whether the allegation against the Defendant is proper or made-up”

7. I will assess police file tended to court on 23^rd September 2021 and determine whether evidence provided by police satisfies the elements of Willful Murder to establish a case against the Defendant.
   

POLICE CASE

8. Police case is in the police file.
   

Police evidence in instantaneous:

No	Names	Particulars	Statements
1	Tom Puk	Eye Witness	Witness says he was with the accused at the time when the accused chopped the Victim.
2	Agnes Rema	Witness	This witness says after the date of the purported murder on the decease, she saw the Defendant holding the bush knife used in the killing.
3	Josephine Oglaiye	Witness	She say she saw her late husband(victim) with the Defendant moments before the allaged murder
4	Christine Kununbu	Witness	This witness says the Accused was her cousin and she went to the murder scene and identified the deceased and informed her relatives about the murder.
5	Joan Ombi	Witness	Her statement is about what she heard from people on the street that her brother killed the victim.
6	Dr Bannick	Medical Evidence	Dr who operated on the victim and conducted an autopsy
7	Sgt Samson Pantom	Police witness	Police forensic officer who attended the crime and got photographs of the victim.
8	C/Mark Moikia	Corroborator	Police man who was with the arresting officer at the time when the interview took place
9	Sgt Nei Pige	Arresting officer	Case officer who conducted the ROI and Arrest and charge.

DEFENSE CASE

9. Defense submits evidence of witness Tom Puk is contradicting since the evidence does not particularize the exact timing and location of the deceased and Defendant. Defendant says witness misleading the court by saying he identified the defendant since the timing of the purported murder was in the night and the murder scene has no electricity or lights. Defense argues that those people whom this witness immediately communicated to them about the murder have not given evidence to corroborate the whiteness statement and thus submits witness evidence is unsubstantiated.
   
10. Defendant further went on to say witness Agnes’ Rema’s statement is hearsay as she was told of the incident by her sister’s son and statement of Josephine Oglaiye is remotely connected to the purported murder as she did not witness the exact murder and Statement of Christine Kukunbu is misleading and is not consistent with the other state witness statements. Defense further says the statement of witness Ombi Joan is confusing and misleading because she was informed of the incident by other people who did not witness the purported murder. Finally, Defendant submits the statements of police arresting officer, Police corroborator, police photographer and Doctor’s report as unimportant because they were not there at the crime scene when the purported murder took place but only herd form other state witness.
    

CONSIDERATION OF EVIDENCE

11. When assessing the evidence, I am satisfied there was a purported murder which costed an innocent life. All state witness has indicated to me that a purported murder had taken place at the date and location. Defendant utterly denies the allegation of willful murder. Defendant’s position is he maintained his innocence by rejecting his participation in the purported death involving the victim. Defendant’s attitude will either be corroborated or uncorroborated by state evidence.
    
12. Defendant objects to Tom Puk’s statement that it was late in the night at 8pm and would be difficult for the witness to identify and witness firsthand the purported action as it was also dark and there were no lights nearby. Evidence of Tom Puk says Defendant was armed with a bush knife, when deceased, Defendant’s elder brother, witness and Defendant went to look for weed (drug) along the Kennedy estate from Morauta 3. Witness says while they were approaching the location to buy weed, the Defendant who was walking last in the queue suddenly chopped the victim who was walking before the Defendant.
    
13. Witness Agnes Rema says the Defendant is her sister’s son. Witness says between 9-10pm in the night on 6^th August 2019, Junior Ombi ran towards where she was and told her that Jonathan Ombi, the accused chopped someone. Witness says at first she did not believe but when the announcement was repeatedly expressed by Junior Ombi by saying in the pidgin language as “Jonathan katim marn an mi lukim na kam” which translate to mean “I saw Jonathan chopped a man”, and at the same time Junior Ombi was trembling and urinating on his trousers as a symbol that he had observed an unusual encounter, she says believed what was being told. Witness says soon after that she was informed by Junior Ombi that Defendant was hiding at the back of their house. Defendant then walked out of his hiding place. Witness says she saw Defendant was holding a long bush knife and walking towards them.
    
14. The statement of Josephine Oglaiye says the victim is her late husband and they rent a property owned by the Defendant’s father and moments before her husband was murdered she says she saw her late husband with the Defendant, Tom Puk and Junior Ombi telling stories outside their rented house. Witness then says she was informed by her late husband that him, Defendant and Tom Puk were going somewhere to buy a flex car and would return. This witness says some minutes later Defendant and his brother Junior Ombi jumped over the fence and walked into their house.
    
15. Defendant objected to the police file on the basis that no one saw the murder and also state evidence is unsupported. When I assess the evidence, I am satisfied, moments before the alleged murder, evidence displays which is dependable in the statements of Tom Puk and Josephine Oglaiye that Defendant was with the victim and 2 others. Evidence of Josephine Ogalaiye says Defendant went to buy a flex card with the Defendant and 2 others. However, evidence shows the victim and Defendant proceeded to buy weed after buying flex card or mentioning flex car as a cover up to buy weed but decisively they were together.
    
16. The evidence of Tom Puk is corroborated with Agnes Rema that Defendant before and after the alleged murder was holding a bush knife. While connecting the Defendant with the bush knife and the victim are all connected. Evidence shows Defendant was with the victim before the alleged murder and during the murder. There is no issue about the Defendant and victim being together but was the Defendant appropriately identified to be the person who was allegedly involved in the commission of the crime?
    

RULING

17. Am satisfied with state evidence Defendant is connected to the weapon that was allegedly used in the commission of the crime. Am also satisfied with evidence Defendant and the victim were together prior and at the time of purported murder. However, I must be very careful in my decision about the Defendant’s identification. Defendant denies the allegation, but all the people who are giving evidence are not strangers to the Defendant. The live at the same location as the victim and the Defendant and they know each other. The principle in Police v Naria [2021] PGDC 119; DC6074, is appropriate here where the court says when identifying the Defendant, he/she must also be recognized. Although recognition and identification may not be the same, identification is consistent evidence based confirmation while recognition is on prior acquaintance or familiarity of someone. When evidence of Tom Puk and Josephine says they saw the Defendant and victim together prior and during the incident, it confirms Defendant was identified. Moreover, when all state witness excluding the police evidence says they saw and heard about the purported murder of the deceased by the Defendant, they did not only identify the Defendant but also recognized him because they all stay at the same neighborhood and all know what Defendant looks like.
    
18. After assessing police evidence and defense submission, I am satisfied with police evidence that Defendant is connected to the weapon allegedly used by the Defendant to commit Murder and the location of the supposed murder and the deceased. I am also satisfied Defendant was not only identified by witness but was also recognized by evidence as he was the purportedly involved in the murder of the deceased.
    

CONCLUSION

19. I have assessed Police evidence tendered to the court on 23^rd September 2021, and Defense submission filed on 10^th December 2021, and gratified police evidence establish a prima face sufficient evidence satisfying all the elements of the offence of Willful Murder under Section 299(1) of the Criminal Code Act. Subsequently, evidence is sufficient to confirm Defendant is identified as the person who unlawfully killed the victim.
    

ORDERS

20) My Final Orders

1. Evidence is sufficient to commit the Defendant

2. Defendant is committed to stand trial in the National Court.

.

.

.

Jopo Lawyers For the defendant
Police Prosecutor For the State

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