Paijo v Hengepe [2021] PGDC 3; DC5049 (2 February 2021)

DC 5049

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]

CCC 128-130 of 2020
BETWEEN

CONSTABLE RONALD PAIJO

Informant

AND

NETTY HENGEPE
Defendant

Waigani: L Wawun-Kuvi

2021: 10, 15, 24 September, 20 October, 26 November, 8, 15, 22 December, 5, 12, 14, 19, 2020, 29January, 2 February 2021

CRIMINAL LAW-CRIMINAL PRACTICE AND PROCEDURE- COMMITTAL PROCEEDINGS- Sufficiency of Evidence

Cases cited:

Police v Parata [2020] PGDC 28; DC4085

Police v Waluka [1999] PGDC 2; DC48 (25 March 1999)

Yarume v Euga [1996] PGNC 24; N1476 (6 September 1996)

The State v Kuanande [1994] PNGLR 512 (28 February 1994)

References
District Court Act 1963
Criminal Code Act, Ch 262

Counsel

For the Prosecution, Senior Constable Malot Asi

Mr Francis Baundo for the Defendant

2 February 2021

RULING ON SUFFICIENCY OF EVIDENCE

L Wawun-Kuvi, Magistrate:

1. The defendant is charged with:
   1. Wilful Damage contrary to section 444(1) of the Criminal Code Act, Ch 262.
   2. Wilful Damage contrary to section 444(1) of the Criminal Code Act, Chapter 262,
   3. Wilful Damage contrary to section 444(1) of the Criminal Code Act, Chapter 262.

Submissions on jurisdiction

2. Mr Baundo for the Defendant submits that the evidence is insufficient and in the alternative the entire matter should be dismissed for being incompetent.
3. Mr Baundo invokes section 5 of the District Court Act 1963 and section 185 of the Constitution as the basis for his application. Although counsel invokes the above legislations and cites provisions, he makes no submissions as to the relevance of those sections to the present proceedings. Section 5 DCA refers to the exercise of jurisdiction whilst section 185 of the Constitution refers to the making of procedure by the National Court. Those provisions are not relevant for the present proceedings.
4. Mr Baundo further submits that the standard of proof is lower or less than beyond reasonable doubt and relies on the cases of R v McEchhern [1967-68] PNGLR 48 and Police v Parata [2020] PGDC 28; DC4085.
5. Those two cases cited by counsel as well as Yarume v Euga [1996] PGNC 24; N1476 (6 September 1996) and Police v Waluka [1999] PGDC 2; DC48 (25 March 1999) form the basis that the Committal Court’s role is to, simply form an opinion on the evidence. As correctly stated by my brother Magistrate in Police v Parata questions the weight of the evidence or their constitutionality is a matter for the National Court.
6. Other cases cited by Mr Baundo, i.e., Kemuel v The State [2016] PGSC 90; SC1640 and Wangunu v Tomi [2008] PGDC 137; DC 1021, are not relevant to the present proceedings.
7. Mr Baundo further refers to the Court to section 397 of the Criminal Code Act, Ch 262 and states that that section is repealed. It is bewildering to the Court as to why counsel would cite section 397 when his client has been charged with three counts of wilful damage, all found under section 444(1) of the Criminal Code Act, Ch 262. In any event counsel is mistaken to say that section 397 has been repealed. The section is still in force, creating the offence of entering a dwelling house with an intent to commit an offence.
8. Whist it is a lawyer’s duty to assist his client, he has a duty to act professionally and to assist the Court to ensure that justice is achieved. It is quite unprofessional of Mr Baundo to invoke laws and cite cases that are irrelevant to the present proceedings.

The Prosecution Evidence

9. The following is the evidence of the prosecution:

Peter Yeape

10. He was at work, when he received a phone call from his uncle James Haluke that a woman went to the house and damaged two vehicles, the houses glasses and a TV screen. He was further told that the woman was heading to the market to pick a fight with his wife. He drove home and met his wife and his brother Pere Pawiya. They informed him that the defendant took a short cut heading in the direction of the Pacific Adventist University.
11. He drove in the direction and saw the defendant approaching armed with an iron picket and small knife. He drove to the securities and informed them about the defendant. When his wife arrived, she and the defendant had an argument which the securities stopped. He later drove home and confirmed the damage done to the properties. He reported the matter to the police.

Tommy Kila

12. He was at his house when he heard noises of smashing glass and people talking two houses away. He went and stood at the gate and saw a woman armed with an object. She was swearing and smashing the glasses of two vehicles, a dark green CRV and a bluish purple Rav 4. After she damaged the vehicles she headed up into the house. The witness the noise of breaking glass. She then left the premises.

James Haluke

13. He was asleep in the house when he was awoken by the sound of smashing glass from downstairs.
14. He came out of the room and saw a woman. She was armed with an iron about a metre long. When he saw her, he thought that his son had caused some trouble and his enemies came.
15. The woman went into the living room and smashed the TV screen. Then she smashed the louver from the two windows in the living room. She did the same for the room he was sleeping in. He was shocked and just stood and watched.
16. She did not say anything and left. He called Peter Yeape and informed him.

Essy Kuriya

17. She is the wife Peter Yeape. Her account is a meeting the defendant and the fight that occurred. She was not present when the damage was done to the properties.

Gerald Saiguyau

18. He is the police photographer.
19. He took photographs of the house and the damaged properties subject of the charges.

Tony Engi

20. He is the police corroborator.

Ronald Paijo

21. He is the arresting officer. His evidence is about the investigation and the interview with the defendant.

Record of Interview

22. At question and answer 18, the defendant says that she committed the offence.
23. In answer to question 21, the defendant stated:

“I went to the house and what the woman said provoked me. I came in a good manner where I wanted to stay with them. But the woman came out of the gate and provoked me by defaming me, told me that the man paid her bride price and bought stuff for her and defamed me and my children. She benefit from the house and vehicle and she did that. That man owns the properties. If it’s a company vehicle, his employed and everything will be under his name. He will replace everything I damaged. I was angry and I did this. I thought I did the right thing but I was wrong and I broke the law of the government.

24. At question and answer 26, the defendant stated that he damaged the properties.
25. At question and answer 27, the defendant stated that she damaged he vehicle glasses, TV screen and some house glass.
26. She goes on from question and answer 28 to 37 to describe specifically what property she damages, how she damaged them, what she used to damage the property and in what order she damaged them.

Submission on the evidence

27. Mr Baundo submits that the evidence is insufficient because:
    1. the evidence does not establish wilful intent.
    2. The complainant’s evidence is hearsay as he was not present.
    3. There is no evidence to establish ownership.
    4. There is no evidence of anyone seeing the defendant smashing the TV screen or motor vehicles.
    5. That Kila Tommy statement should not be relied on as he was 30 metres away and he said he could not see clearly. The witness said that his sight was obstructed by some surrounding plants. His statement appears fabricated to support Haluke James statement.
    6. Essy Kuriy was not present at the time of the offence.
    7. Paijo Ronald confirms that the defendant was provoked.
    8. Engi Tony confirms that the offence was committed out of provocation.
    9. Gerald Saiguyau’s evidence is irrelevant as the there was no photographs to establish ownership and also the photographs are either staged or falsified as a result of some advance graphic design.

Ruling

28. The charges against the defendant are laid pursuant to section 444(1) of the Code, which states:

“444. Malicious injuries in general: punishment in special cases.

(1) A person who wilfully and unlawfully destroys or damages any property is guilty of an offence that, unless otherwise stated, is a misdemeanour”

29. Intention is a matter that speaks to the mind of the defendant. As stated by Injia, CJ as he was then, in The State v Kuanande [1994] PNGLR 512 (28 February 1994) regarding intention:

“Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence. I wish to deal.”

30. The evidence as provided by police support that the defendant went to the house and began damaging the properties. She was later confronted by the complainant and a further altercation occurred. The Defendant in her police interview says that she was provoked by the complainant’s wife.
31. Whether or not there was provocation is not for this Court to determine. What is sufficient to show from the evidence is that there was an intent to damage the properties concerned. It is therefore my opinion that the evidence sufficiently establishes the element of intent to damage the properties.
32. Further as stated by Yarume v Euga [1996] PGNC 24, it is not the role of the committal magistrate to weigh the evidence. Mr Baudo’s submissions as to the reliability of the evidence is a matter that falls into the hands of the trial Court.
33. Much of counsel’s submissions are also based on speculation.
34. Having perused the evidence and considered the submissions, I am satisfied that the evidence is sufficient for the defendant to stand trial for all three counts of wilful damage.

Section 96 District Court Act

35. Having found that the evidence was sufficient, the words to the effect of section 96 of the District Court Act were put to the defendant in the pidgin language.
36. The defendant elected to given an unsworn statement in the pidgin language. The statement is translated as follows:

“Some things I did. Some things I did not do.”

37. The Defendant signed her statement.

Section 100 District Court Act

38. I have considered the evidence in its totality and am satisfied that there is sufficient evidence for the defendant to stand trial.
39. The Defendant is therefore committed to stand trial in the National Court on three counts of wilful damage, all contrary to section 444(1) of the Criminal Code Act, Ch 262.

Orders:

40. The Orders of the Court are as follows:
    4. The Defendant is committed to stand trial in the National Court.
    5. The Defendant shall appear on Monday, 22 February 2021 at 9.30 am for listings at the National Court.
    6. The Defendant is remanded in custody at Bomana Correctional Institution.

Lawyer for the Informant, Police Prosecution

Lawyer for the Defendant, Self Represented