Police v Maigen [2021] PGDC 247; DC8089 (6 October 2021)

DC8089

PAPUA NEW GUINEA

DISTRICT COURT

IN THE MATTER OF COM. No.179 OF 2021:

In the District Court of

Justice held at Madang

Between:

THE POLICE

And:

AUGUSTINE MAIGEN

WAIGANI: B. KOME (A/PM)

2021: 14 July

COMMITTAL PROCEEDING: Practice & Procedure – Charge - One (1) count of Wilful Murder – Section 299 (1), Criminal Code Act, 1974 - Police Hand-Up Brief filed –Submission on Sufficiency of Evidence filed by Defendant

COMMITTAL PROCEEDING: Practice & Procedure – Ruling on Sufficiency of Evidence – Issue of Circumstantial Evidence - Prima facie case made out –Sections 95(1) & 95 (3), District Court Act

COMMITTAL PROCEEDING: Practice & Procedure – Evidence sufficient to commit Defendant – Administration of Section 96, District Court Act statement to Defendant – Final Ruling to Commit Defendant to stand Trial at National Court – Section 100, District Court Act

Cases Cited:

State v Gomang [2020] PGNC 163; N8381

Counsels:
First Constable Wanai, E for the Informant
Defendant in Person

RULING ON SUFFICIENCY OF EVIDENCE

October, 6, 2021

1. Introduction: KOME, B; In this committal proceeding, the Court will have to make its Ruling under Section 95 (1) of the District Court Act (DCA), on the issue of whether there is sufficient evidence in the Police Hand up Brief (HUB) to prove the elements of the charge brought against the Defendant or not.
2. In this case, the accused, Augustine Maigen, a 23 year old male from Motonau village in Madang District, Madang Province was charged with one (1) count of murder under Section 299 (1) of the Criminal Code Act, (Chapter No. 262).
3. The final Ruling of the Court as to whether there is sufficient evidence to commit the Defendant to stand trial at the National Court as per Section 100, DCA will also include the statement of the Defendant given pursuant to Section 96 of the DCA.

Facts and elements of the Charge

4. The brief facts in the HUB state that on 12 February 2021, the accused and the deceased (Jeffery Kabo) were in the company of three (3) others, namely Kevin Bilot, Walter Maigen (Accuseds younger brother), and Billy Busiram at Motonau village, drinking alcohol (distilled spirit) around the earlier part of the stated day.
5. It is further stated that Accused had bought the alcohol and got angry with the others for not contributing and as a result of that, Accused assaulted the others who then ran away, leaving the Accused and deceased on their own.
6. The facts in the HUB states that the Accused had used an iron rod to assault the others and after they ran away, he then returned to where the deceased was and hit him with the iron rod, which resulted in the death of the deceased. The statement estimates the time of death at round 3pm to 4 pm and states that people found out about the death at around 8 pm on the stated date (12 February 2021).
7. The Defendant is charged with the section stated 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.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

Elements of the Charge:

8. The elements of the stated charge can be categorized as follows:
   1. That the accused killed the deceased.
   2. That the killing was unlawful.
   3. That the accused had the intention to kill.

Issue:

9. Whether there is sufficient evidence to sustain the elements of the charge and whether this evidence is consequently sufficient to commit the Defendant to stand trial at the National Court.

Analysis of Police Evidence and Defendant’s submission

10. The main State witnesses are: Kevin Bilot, Walter Maigen, Billy Busiran, Elijah Koli, David Magil, Gilob Balal and James Koli. The other witness statements are from the Arresting officers and officers who conducted the interviews which are not relevant here.
11. From these witnesses, and as stated in their statements given to the Police, three (3) of the witnesses, namely, Kevin Bilot, Walter Maigen and Billy Busiran were with the Accused and deceased from around 7 am to 8.30 am.
12. From their statements, the Accused got angry with Kevin Bilot saying that the older guys do not usually buy alcohol for them to drink. That the three witnesses got scared of Accused and left the area where they were drinking and went into the nearby yard of Elijah Koli. Kevin said he wanted to take the deceased (who is disabled) with him but deceased said he would follow them later.
13. The three witnesses (Kevin, Walter and Billy) stated after they went into Elijah Koli’s area, Billy Busiran got his phone from Kevin and left them. Walter and Kevin stated that they were in Elijah’s area when Accused got a bamboo and followed them and hit them with it and when it broke on them, he then ran under the house and got an iron rod and swung it three times at Kevin who swerved to avoid being hit.
14. That Kevin then ran away and Accused then swung the rod at his brother, Walter who also avoided getting hit and ran away from the accused before the accused could hit him.
15. The other state witnesses, namely, Elijah Koli, David Magil and Gilog Balal confirmed the evidence of the violent behavior of the Accused where he attacked the other two witnesses (Kevin and Walter) and also gave statements of what Accused said that implied that he had caused the death of the deceased.
16. Witness Magil, a PMV crew said around 3 pm, Accused had armed himself with a metal rod and a chain and said; “Hoi, hevi em kamap pinis, you go down na salim polis lo Jomba kam.” (In English, this would translate something like this; “Problem has already happened, you go down and send the police from Jomba”).
17. Also witness Gilob Balal said that around 3.30pm to 4pm, Accused was swearing and destroying the houses in front of his house with an iron rod and said that he would kill a Salapdik man. Salapdik is the tribe which had adopted the deceased.
18. Balal said that when Accused said that, he (Balal) questioned the Accused, who left the iron rod and came and sat down with Balal. That Accused then started crying and said that he did a lot of work for Jeffery (deceased) and came. In pidgin; “Mi hatwok lo Jeffery go na mi kam.”
19. The Court also noted the Medical Report compiled by Dr. Jiuth Gawi which basically states that the death was a result of direct hit or trauma to the head causing primary brain injury.
20. After the Police file was completed and served on the Accused, the Court directed him to file his submission on sufficiency of evidence. Accused then drafted a hand written submission which he tendered to Court on 23 August 2021.
21. In his hand written submission, Defendant only talks about the timing of events given by only one (1) witness (Elijah Kolis).
22. In the Record of Interview, the Accused remained silent and did not answer most of the crucial questions asked regarding his allegation.

Court’s Ruling as to Sufficiency of Evidence under Section 95, DCA

23. After carefully perusing the evidence in the HUB and taking into consideration the Defendant’s submission, and pursuant to Section 95 (1), (2) & (3) DCA, this Court is satisfied that there is sufficient evidence to sustain the elements of the charges brought against the Accused.
    
24. The Court is satisfied that there is sufficient evidence from the state witnesses of the aggressive behavior of the Accused and the words that he had uttered.
    

Circumstantial Evidence

25. In making it’s ruling, the Court is mindful of the fact that all of the State evidence is circumstantial in nature. However, this Court has noted from case laws that the National Court has found Defendants guilty, even when the State witnesses had given circumstantial evidence.
26. In the case of State v Gomang [2020] PGNC 163; N 8381, His Honor, Justice Geita stated and I quote; “the law on circumstantial evidence is that, where a case against an accused person rests substantially upon circumstantial evidence, the question for the Court is whether the guilt of the accused is the only rational inference that in all the circumstances would enable it to draw.”
27. In my view, this basically means that in instances where the Trial Courts are faced with mostly or only circumstantial evidence, they can still proceed on, taking into consideration the question that his Honor raised, which is “whether the guilt of the accused is the only rational inference that in all the circumstances would enable it to draw.”
28. This Court is thus satisfied that it can commit the Defendant, even if all the evidence are only circumstantial.
29. The Court also noted that the medical report is also consistent with the injuries sustained by the deceased.
    

ADMINISTRATION OF SECTION 96 STATEMENT

30. The Court then proceeded to explain what a Statement under Section 96 of the District Court Act was and asked if Accused wanted to make a statement under the stated provision.
31. In response to that, the Accused stated that he will remain silent and speak at the National Court.

FINAL RULING UNDER SECTION 100, DCA AS TO WHETHER ACCUSED SHOULD BE COMMITTED TO THE NATIONAL COURT OR NOT

32. Court has taken into consideration the Accused’s right not to make a statement and after carefully perusing all the evidence before it, the Court is satisfied pursuant to Section 100 of the District Court Act that there is sufficient evidence to commit the Defendant to stand Trial at the National Court.
    
33. The final orders of this Court are as follows:
    • 33.1 The Court finds that there is sufficient evidence to commit the Defendant as per his charge of Wilful Murder under Section 299 (1) Criminal Code Act.
    • 33.2 Defendant is committed to stand Trial at the National Court and his case will be mentioned at the Madang National Court at the next Call-over.
    • 33.3 Warrant of Remand is extended.

Lawyers for the Informant: First Constable Wannai, E.
Lawyers for the Defendant: In Person