Police v Benam [2021] PGDC 236; DC8006 (10 November 2021)

DC8006

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITD CRIMINAL JURISDICTION]
DC Com NO: 238, 239, 240, 241, 242, 243, 244 and 245 /2021.

In the matter of Ruling On Sufficiency of Police Hand-Up Brief(s) pursuant to Section 95 of the District Court Act 1963

IN THE MATTER BETWEEN:

POLICE/STATE.
Informant.
.
AND.

1. Noel BENAM.
2. Lester SAGE.
3. Frencil GABOR.
4. Remingious AKWAHIR.
5. John OYABUA.
6. Carnelian KAYUET.
7. Lohito AUTI.
8. Jimmy TOBOROYAN
   

Popondetta: Michael W. Apie’e

2021: November 10^th.

CRIMINAL LAW. Practice and Procedure-Sufficiency of Police hand-up brief, Section 95 of District Court Act. Whether Elements of the offense’s established on hand-up brief;

-One count of Willful Murder contrary to Section 299A (1) of the Criminal Code Act.
Established on the Police Hand Up Briefs.

Cases Cited:
State v. Natpalau Tulong [1995] PNGLR 329
Akia v. Francis PGNC 335, N6555
Paulus Pawa v. The State [1981] PNGLR 498
References:
Criminal Code Act-
District Court Act

Representation;
Mr. E. Yawisa for the Defendants
Senior Sergeant B. Waimona for the Police/State.

RULING ON SUFFICIENCY OF POLICE HAND-UP BRIEF.

Background.

1. The Defendants are each and severally charged that on the 16^th of August 2021 by the Ahirim River beside the Marakof village in the Tufi LLG Area of the Ijivitari District of the Northern Province, the Defendants each and severally Willfully and Unlawfully murdered one namely Robin Safitoa on account of an accusation of committing sorcery contrary to Section 299A (1) of the Criminal Code Act.
   
2. The Defendants are charged and first brought before this Court on the 11/08/21 and their matter is mentioned subsequently on several occasions and the Defendants were each and severally served their Copies of the Police Hand-up brief on the 14/01/22 whilst the Court Copies tendered to Court on the mention of this case on the 17/01/22.
   
3. On the 17/01/22 the Court proceeded by way of Administering Section 96 of the District Court Act upon which the Defendants all indicated the desire to make Unsworn Statements’ from the Defendants Dock, however again upon request by the First Defendant Noel Benam, this matter is further adjourned to the 21/01/22 for mention after they further consult with a counsel of their choosing.
   
4. Mr. Emmanuel Yawisa from the Public Solicitors office attended in court on the 21/01/22 for the Defendants and after obtaining instruction from the Defendants he announced that the defendants will abandon the earlier intention to make unsworn Statements form the Defendants Dock, and instead will all remain silent in response to Section 96 of the District Courts Act.
   
5. Hence I return today for my Ruling on the Sufficiency of the Police Hand Up Brief against the Defendants each and severally.
   

Observations /Assessments.

6. Even though, neither the Defendants nor their Counsel, took any issue with the Police hand up brief and even though I had already formulated an opinion on the Sufficiency of the case on the 17/01/22 I still feel compelled to make the following observations.
   
   1. The Court in returning this ruling is mindful of the caution voiced by Doherty J in the 1994 case of Natpalau Tulong in Kavieng New Ireland Province where she said, ‘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.’
      
   2. By the 17/01/22 the Prosecution’s case insofar as the Police hand-up brief was concerned had being perused and considered fully and an opinion on Sufficiency had being formulated.
      
   3. On that basis, having formulated an opinion and determination on the issue of Sufficiency of the Police hand-up brief, I administered Section 96 on the Defendants on the 17/01/22, but the matter got sidetracked with their request for Adjournment.
      
   4. This was in keeping with the general direction of Committal Processes as outlined in the case of Maladina v. Principal District Court Magistrate, wherein 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.”
      
   5. In the interval from the 17/01/22 to current, this courts determination on the Sufficiency of the police Hand-Up brief against the Defendants each and severally remains the same.
      
   6. Regarding the Issue, I will observe as follows;
      
      1. On Face value, the Defendants have each and severally being identified and placed at the scene of Crime.
         
      2. The First Defendant as the ‘Soothsayer or Glassman’ accusing the Deceased of Practicing Sorcery and the other defendants as his Disciples or Enforcers
         
      100. The Police case is circumstantial but for all intents and purpose the test in the case of Paulus Pawa v. The State is qualified here and so the foregone determination in this matter.
           
   7. Accordingly, the Court Rules and Orders as follows;
      
   1. The Defendants are each and severally Committed to the National Court for Trial on the one count of Willful Murder on account of an accusation of Sorcery Contrary to section 299A (1) of the Criminal Code Act.
      
   2. The Defendants bail are each and severally remanded to appear for the mention of their case before the National Court at a time and date to be set by the National Court Registry
      

Police Prosecutions for the State.
Public Solicitors for the Defendants