Police v Malaga [2021] PGDC 250; DC8090 (22 November 2021)

DC8090

PAPUA NEW GUINEA

IN THE MATTER OF COM. No.22 OF 2021:

In the District Court of

Justice held at Madang

Between:

THE POLICE

And:

RUBEN MALAGA

MADANG: B. KOME (A/PM)

2021: 30 July

COMMITTAL PROCEEDING: Practice & Procedure – Charge - One (1) count of Unlawful wounding – Section 322 (1),(a) Criminal Code Act, 1974 - Police Hand-Up Brief filed –Defendant’s Submission filed by way of affidavits

COMMITTAL PROCEEDING: Practice & Procedure – Ruling on Sufficiency of Evidence – Defendant admits to fighting with Complainant, but denies extent & cause of injuries - 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: Nil

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

RULING ON SUFFICIENCY OF EVIDENCE

November 22, 2021

1. Introduction: KOME, B; In this committal proceeding, the Accused, Ruben Malaga, a 30 year old male from Odd village, South Ambenob, Madang District, Madang Province was charged with one (1) count of unlawful wounding under Section 322 (1)(a) of the Criminal Code Act, (Chapter No. 262).
2. 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.
3. The final Ruling of the Court as to whether the totality of the evidence is sufficient 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 allege that on 1 January 2021, the accused and his brother, Donald Malaga attacked the Complainant, Russell Mane and as he fell down, the Accused got a big stone and threw it at Mane. That the stone hit him, causing him to bleed heavily.
5. The facts further state the complainant was scared for his life and ran away and was taken to the Hospital where he received 39 stitches.
6. The Defendant is charged with the section stated below:

322. WOUNDING AND SIMILAR ACTS.

(1) A person who–

(a) unlawfully wounds another person; or
(b) unlawfully, and with intent to injure or annoy any person, causes any poison or other noxious thing to be administered to, or to be taken by, any person,

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

Elements of the Charge:

7. The elements of the stated charge can be categorized as follows:
   1. That the accused wounded the complainant.
   2. That the wounding was unlawful.
   3. That the accused had the intention to wound.

Issue

8. 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 submission by Defendant and the Evidence in the HUB

9. Accused was served his Police file and the Court directed him to file his submission on sufficiency of evidence. Accused then filed three affidavits, one by himself and the other two (2) by Sala Lato, a LLG Ward member and the other one by Martin Gosiba, a Village Law and Order Committee member in their area.
10. The Accused stated in his affidavit, and also in his answers in the Record of Interview (Questions 15 & 16), that he did fight with the Complainant after Complainant has shown a bright torch light into his face. Accused however, denies that he had thrown a stone at the Complainant’s face, causing serious injuries and that they had only fought with fists.

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

11. The Court has perused the HUB and the affidavits that Accused has filed and it is clear that there is sufficient evidence to sustain the charges brought against the Accused.
12. The Accused has not denied fighting with the Complainant, the only issue now would be whether the Accused had inflicted the serious injuries sustained by the Complainant and whether Accused may have any other defence like provocation recognized by the Law.
13. These issues are obviously matters for the National Court to ascertain if Accused is committed.
14. This Court is thus satisfied under Section 95 (1), (2) & (3) DCA, that there is sufficient evidence in the HUB to commit the Defendant.

ADMINISTRATION OF SECTION 96 STATEMENT

15. After discharging it’s first part of the Committal proceeding under Section 95 (1), (2) & (3) DCA, the Court then proceeded to the next phase which is the administration of the Defendant’s statement as per Section 96 of the District Court Act.
16. The Court explained 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.
17. The Accused responded that this case involved family members and they should be allowed to settle this issue among themselves instead of going further to the National Court.
18. The Court then informed the Accused that if they intended to settle among themselves, then they should have done that before the matter was filed as a criminal matter. That now that it has been filed, it’s a criminal matter and needs to proceed until it is duly determined by the Courts.
19. The Court also told the Accused that what the he has raised are issues that may be considered by the National Court if he is committed. Accused then stated that he had nothing further to say.

Final Ruling under Section 100, DCA as to whether Accused should be committed to the National Court or not

20. The Court has considered the statement of the Accused and after careful perusal of 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.
    
21. The final orders of this Court are as follows:
    • 21.1 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.
    • 21.2 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.
    • 21.3 Defendant’s bail is extended with conditions.
      

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