Police v Naumo [2021] PGDC 196; DC7053 (6 August 2021)

DC7053

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS COMMITTAL JURISDICTION]
DCC NO: .... /2021.

In the matter of Ruling On Sufficiency of Police Hand-Up Brief(s) pursuant to of the District Court Act 1963

IN THE MATTER BETWEEN:

POLICE/STATE.
Informant.
.
AND.

LABAN NAUMO
Defendant/Accused.

Popondetta: Michael W. Apie’e

2021: July 07^th and 12^thAugust 06^th.

CRIMINAL LAW. Practice and Procedure-Sufficiency of Police hand-up brief, Section 95 of District Court Act. Whether Element of the offense of Murder under section 300 of Criminal Code Act is established.
Practice and Procedure-Consideration under Section 95(1) and (2) of the District Court act requires Committal court to make prima facie assessment on sufficiency of the Police hand-up brief only,

Cases Cited:
Akia v. Francis PGNC 335, N6555
R v. Mc Eachern [1967-1968] PNGLR 48
Maladina v. Principal District Court Magistrate Posain Poloh [2004] PGNC 204, N2568
State v. Natpalau Tulong[1995] PNGLR 329

References:
District Court Act.
Criminal Code Act

Representation;
Defendant in person.
Senior Constable M. Konte for the Respondent.

RULING(S) ON SUFFICIENCY OF POPLICE HAND-UP BRIEF.

Background.

1. The Defendant was Charged with one Count of Murder Contrary to Section 300(1) (a) of the Criminal Code Act chapter 340.
   
2. He is charged that ‘on the 18^th of January 2021 at Godibehi village in the Kokoda LLG area of Northern Province, he with intent to cause grievous bodily harm to one David SARE, did cause the death of the said David SARE’.
   
3. The Defendant were taken into custody and charged and thereafter brought to court on the 30^th of June 2021.
   
4. The Police Hand-up Brief (PB) is served on the Defendant and tendered to court on the 19^th of July 2021 or thereabouts and this matter now comes for Committal Ruling.
   

Section 95 of the District Court Act.

5. Section 95 of the District Courts Act states;
   

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.

6. In the cases of Akia v. Francis PGNC 335, N6555 and R v. Mc Eachern [1967-1968] PNGLR 48, the general principle is posed that ‘Committal Processes whilst it requires the Court to make a finding on the Evidence presented by Police, this Process is administrative in nature in that the court need only to form a view that there is a Bona Fide Prima Facie case against the Defendant to commit.’
   
7. In the case of Maladina v. Principal District Court Magistrate, Injia DCJ, as he then was, in commenting on Section 95 and 96 of the District Court Act said ‘Committal Processes involves two phased; “The first is when the Magistrate ‘receives’ or ‘hears’ evidence offered by the prosecutions only and considers the evidence 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 (Section 95). 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, the Court Proceeds with the Examination of the Defendant under Section 96.”
   
8. The PB contains the evidence of Six (7) witnesses namely; Evetus NIDUVE, Emmanuel SARE, Ray SARE, Kevin NIDUVE, Ijova NIDUVE, Peter SARE SIHEWO.
   
9. Other Statements are from the Informant and Corroborator as well as translator from Omi Language to Tok-Pisin and an undated report titled Medical Report by one Mr. Donald Salapwi from Saiho Health Center and also there is the Exhumation and Autopsy report compiled by Mr. Gerard Zorro, Clinical HEO from Popondetta Hospital on his findings on the body of Late ‘David SARE’.
   

OBSERVATIONS.

10. Regarding the PB, the following is the Courts Observations;
    
    1. Witness Evatus Niduwe, Emmanuel Sare, Ray Sare and Kevin Niduwe, all young men all reported of being at the scene of the incident with each other, going to work in the bushes in clearing a new garden patch on the 18^th of January 2021.
       
    2. They all reported that they were working on one side whilst the deceased was working at the other side of the ridge cutting down trees.
       
    100. They all heard the deceased cry out ‘Apo/ Mamo’ or ‘Father/Mother’ in the local dialect and so they came up and claim that they saw the Defendant assailing the Deceased, for instance in Evetus Niduwe’s statement, he claims ‘ ..mipela kam antap lo lukim dispel boi na Lukim Dispela Man Laban i holim stick lo rait han and long left han holim naip, mipela i lukim dispela man i katim dispel liklik boi wantaim long skin bilong en na emi katim em wantaim naip....’
         

In English ‘We came up to see the boy (deceased) and we saw this man Laban holding a stick in his right hand a knife in his left hand, we saw the man (Laban) cut the small boy on his body and he cut him (the boy) with the knife.’

4. Then they all strangely added, for instance Evetus Niduwe stated, ‘Taim mipela I kam long pes bilong liklik boi David Sare na i askim olsem, Husat tru i paitim yu(?) na em i bekim tok lo mipela olsem dispela man em Laban Naumo katim David SARE i wantaim naip.’
   

In English; ‘When we arrive in front of or near the boy David Sare, we asked him this “Who fought or hurt you?” And he replied and told us that the man Laban Naumo Cut him (the deceased David Sare) with a knife’

5. They all firstly claim that they saw the Defendant attacking the deceased with their own eyes, actually cutting the deceased, with a knife, then yet again they all say that they had to ask the deceased ‘Who attack you?’ If they saw the Defendant cut the Deceased in the first place, what was the point of asking him, unless they never saw the Defendant attack the Deceased in person!
   
6. They also reported that a Health worker named Gil Osi was the first to attend to the deceased on the 18^th of January 2021 when they returned the deceased to the village/’Haus wind’ and Evetus Niduwe says that when Gil Osi asked them what happened, he said they told him that the Defendant Laban Naumo Killed him, to which, ‘Gil Osi said this is murder!’
   
7. However, this contention cannot be corroborated or verified as this Gil Osi is not listed as a witness let alone his statement obtained, thereby making this contention unverifiable.
   
8. Gil Osi then Left Godibehe village to go to Asafa to get medicine to help the Deceased, but he obviously did not return with the medicine in time to help the deceased, because in the next breath Evetus Niduwe and all the witnesses reported on the Police and Medical team arriving at Godibehe on the 21^st of March 2021 to exhume and conduct the autopsy on the body of Late David SARE a full two months later.
   
9. They did not report of taking the deceased anywhere else nor of any other Medical personnel attending to the deceased after Gil Osi’s initial attendance of the Deceased.
   
10. The witnesses then report that on the 21/03/21, they went to the site of the incident and showed the investigating team where the deceased was discovered, then thereafter the exhumation and autopsy was conducted on the deceased’s remains.
    
11. Why Gil Osi not interviewed and listed as a witness himself is not clear, which is vouched for by the witnesses, as his account and observations on the 18^th of January 2021 in addition to Donald Salapwi’s dubious medical report would have being most helpful in explaining and confirming the injuries sustained, and he would have help Autopsy Examiner Mr. Zorro to confirm his findings more so.
    

50. The other question is ‘At what time did Health Extension Officer Donald Salapwi attend to and made observations on the deceased if he did indeed do that at Godibehe village or where-ever after the incident?
    

13. The witnesses also never reported in their Statements about any other Community Health Worker from Saiho Clinic visiting to make observations of the Deceased after the incident as is claimed by HEO Mr. Donald Salapwi in his undated report on the PB.
    
14. Donald Salapwi does not reveal when he is supposed to have visited and made these observations on the deceased.
    
15. Questions arise as to When was this Report compiled and tender to the Police, is it genuine or is it based on Actual observations or rather compiled from hearsay recitations later? Why is it undated?
    
16. Witness Ijova Niduve reports of;
    
    1. hearing an exchange between the Defendant and his daughter and of them giving his ‘Brus/Tobacco’ in which he claims the Defendant admitted to killing the deceased.
       
    2. However, he only reveals this in a statement dated 28/06/21 some five months later.
       
17. The Letter by Peter Sare Sihevo appended to the PB relates to the aftermath of the incident and also the apprehension of the Defendant so is not relevant to the court consideration on whether or not to commit.
    

11. The Exhumation and Autopsy Report compiled by HEO Gerard Zorro is heavily slanted towards the claim of Murder, as he was acting on hearsay reports and not fresh observations, if he had had the ability to consult with the said Gil Osi, but that ability was obviously not availed to him. It seems his report is a follow-up from the undated Medical Report by Donald Salapwi.
    
    1. For instance, he out-rightly discounted the possibility of a tree falling on the deceased saying that a falling tree would inflict more serious injuries on the deceased than what he observed, but his contention does not eliminate the possibility that a smaller sized tree fell on the deceased and not a big tree as he obviously had in mind.
       
    2. The Court is mindful that the first story told when the deceased was brought back was that a tree fell on the Deceased, until the Autopsy Examination a full two months later on the 21/03/21.
       
    100. The Cut wound at the back of the Deceased leg can easily be explained by the fact that the Deceased was working with a bush-knife felling tree’s when he was injured, so if a tree falls on him and crumples him, he could easily fall back on his own knife if the positioning was right and thereby cut himself. But that is just an inference or assumption on the alternate that is inferred given the dubious accounts by the ‘Witnesses’.
         
    4. It is further becoming apparent to this court that the so called eye witnesses never told anyone the versions contained in their Statements in the PB and held their peace until after the Autopsy of 21/03/21 a full two months later.
       
    5. This ‘Silence’ for two months by the so-called witnesses is striking, as whatever they claim and describe to have seen was in itself sufficient to have led to the Defendants arrest without the need for Coronial Intervention in this matter by the District Court.
       
    6. The Autopsy Report and findings of Mr. Gerard Zorro of the wounds and injuries apparent on the Deceased remains are slanted toward the conclusion of ‘homicide/murder’ and therefore not from an impartial medical observation or stand-point.
       
12. The Defendants Record of interview discloses no admissions or confessions and is also badly recorded in that the Original ‘Tok pisin’ version is almost un-readable or in-eligible to a Tok-pisin speaker and reader like myself, and also its correlation to the English version almost dubious and unreliable.
    
13. The So-called Confessional Statement does not contain any Confessions, and leaving it titled as such on the PB is almost misleading to the reader of the PB but more so to the Court as the Defendants clearly states ‘ mi ino sent..’ (I am innocent..). So how is this statement titled a ‘Confessional Statement and allowed to remain on the PB?
    
14. The Sketch map upended in the PB is in-eligible cannot be understood and says and reveals absolutely nothing and does not add any probative value to the overall case against the Defendant.
    

ASSESSMENT:

15. The Court having considered the PB must now assess on the sufficiency of the Case against the Defendant as follows;
    
    1. Does the Police Hand Up Brief establish a Prima Facie Sufficient case against the Defendant in relation to the Count of Murder Preferred against him?
       
16. The Charge of Murder under Section 300 (1) (a) reads;
    

300. MURDER. (1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;

17. The So-Called Eye witness all claim in their Statements of 21/03/21 to have seen the Defendant Attacking the Deceased, yet the following inconsistencies standout in opposition to their contentions;
    
    1. After supposedly seeing the Defendant attack their relative on the 18/01/21, yet they reported initially that the deceased was killed by a falling tree.
       
    2. They first claim that they saw the Defendant attacking the deceased, then they all said that they had to ask the deceased as to who attacked him. Why ask who attacked him is they had already seen the Defendant attacking him?
       
    100. Then, they remain silent of what they supposedly/allegedly saw the Defendant doing to the deceased for a full two months without reporting to Police until the Police and Medical team arrived at their village on the 21/03/21 upon the Coronial Intervention in this matter by the District Court Orders, then they spilled their guts on what they supposedly and allegedly saw the Defendant do to the Deceased on the 18/01/21.
         
    4. They had the opportunity to come clean and reveal what they claimed in their Statements on the 20^th of January 2021 just two days after the incident when one Mr. Allan Rusor laid the initial report to Police, but they did not and kept their silence on this matter.

5. The ‘witnesses’ all were armed with knives on the 18/01/21 when they say they saw the 79year old Defendant attacked the deceased, yet they being young men did not chase the defendant down nor try to attack him to exact revenge on him, not that that would a good thing, but that would have been the natural thing to do given that the deceased is their younger relative to whom they would have felt protective over.
   
6. Then after that, they reported that the deceased is killed by a falling tree and then they actually remain silent for two full months until the Coronial intervention by the District Court opens up the way for them to rehearse and retold their stories again to police on the 21/03/21, this time implicating the Defendant.
   
7. Why would they blame the Defendant? Why not, he seems to have existing Land issues with them, so why not use the death of the young boy to take the Defendant out of the picture?
   
8. Mr. Allan Ruzor, who reported the Death to Police on the 20^th of January 2021 could have being better assisted if the Witnesses had spoken out to him sooner on what they saw, but then again, they remained silent, Why? Was it because they probably never saw anything that day?
   
9. The Elements of the crime of murder is that; Grievous or Serious Bodily Harm must be inflicted on the Victim/Deceased by the Defendant, which results in his or her death.
   
   1. In this case, the Eye Witnesses Accounts is so dubious and unreliable due to the inconsistencies in their story line, I am not satisfied that they saw how the Deceased was injured or wounded in the head and back of the leg.
      
   2. Therefore, they initially alleged him being hurt by a falling tree and never sought out of implicate the Defendant for a full two months until after the 21/03/21.
      
   3. That also explains why they all say had to ask the Deceased, ‘who or how did you get hurt?’ even after claiming that they saw the Defendant attacking him.
      
   4. The supporting witnesses Ijova Niduwe and Peter Sare Sihevo statements are also given well after the Exhumation and Autopsy of the deceased body on the 21/03/21 and so is in my opinion unreliable and cannot stand alone to carry this case through, given this Court’s opinion on the problems inherent in the other so called Eye Witnesses Statements.
      

18. In the final Analysis, the Court finds and Rules as follows that;
    
    1. The Police hand-up brief, especially in the area of Eyewitnesses accounts is dubious and riddled with inconsistencies and does not provide the sufficiency required in the opinion of this court to carry this matter past the requirement of Sufficiency on face value/Prima Facie to commit this to the National Court.
       
    2. As stated by Doherty J in the1994 case of Natpalau Tulong in Kavieng New Ireland Province, ‘The District Court committal proceedings are not automatic, it is incumbent on the Magistrate to check that the Law has being complied with, and not to rubber stamp every information before it.’
       
    3. In the final analysis, Section 95(1) and (2) of the District Court Act requires that I be Prima Facie (on face value) convinced that the Case offered against the Defendant is Sufficient to Put the Defendant on Trial.
       
    4. I am not Convinced Prima Facie/On the face value of the PB offered here that a Sufficient case has being established to put the Defendant on Trial for murder.
       
    5. The Police/State, however reserves the right to have this matter proceed through other avenues if they so wish, such as Ex-Offio Indictments.
       
19. Accordingly, the Court orders as follows;
    
    1. On the Count of Murder Preferred against the Defendant the Court Finds no Prima Facie /Sufficient Case against the Defendant on the Police Hand Up Brief and so discharges him from that Charge.
       
    2. The Defendant is therefore to be discharge and released from custody forthwith unless other charges are pending against him.

Police Prosecutions for the State.
Defendant in person.