Waiya v Malaka [2021] PGDC 46; DC6004 (14 May 2021)

DC 6004

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]

SUM 742, 743& 744 of 2021
BETWEEN

SENIOR CONSTABLE ALPHONSE WAIYA

Informant

AND

MICHAEL MALAKA, BOBBY MICHAEL AND VINCENT SARUS
Defendants

Lae: L Wawun-Kuvi

2021: 14 May

CRIMINAL LAW-CRIMINAL PRACTICE AND PROCEDURE- SUMMARY PROCEEDINGS- Summary Offences Act, section 6-Unlawful Assault-No case to answer

Cases Cited
Loho v Hambindua [1985] PNGLR 286 (11 September 1985)
Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PGSC 16; [1983] PNGLR 287 (14 September 1983)
Pep, The State v [1983] PNGLR 19 (14 February 1983)
The State v Paul Kundi Rape [1976] PNGLR 96

Legislation
Summary Offences Act

References

N.K.F O’neill and R.N Desailly ,The Criminal Jurisdiction of Magistrates in Papua New Guinea New South Wales Institute of Technology Sydney,1982

Counsel
Police Prosecutor Constable Emma Wali
Defendant’s Self Represented

14 May 2021

RULING ON NO CASE TO ANSWER

L Wawun-Kuvi, Magistrate:

1. At the close of the Prosecution case, as the Defendants are unrepresented, the Court has proceed to determine whether the Defendants have a case to answer.
2. Constable Wali for the Prosecution in response stated that the evidence of the prosecution is sufficient and therefore the Defendants have a case to answer.

What is the law?

3. In deciding whether to dismiss an information at the close of the Prosecution case, upon a submission for a no case to answer, the test to be applied to be applied is whether there is evidence which, if accepted, would provide evidence to some each element of the charge. Even if there is such evidence, it may be so lacking in weight and reliability, that it is open to the Court to dismiss the information, see The State v Paul Kundi Rape [1976] PNGLR 96.
4. A lot of process will be made clear when counsels fully appreciate that our laws are derived from jurisdictions that have jury systems. In jury systems after the close of the prosecution case, the jury is excused, and the no case submission is made to the Judge, being the decider of law. The submissions are based on questions of law.
5. In Papua New Guinea, the law makers decided that considering our societal and cultural dynamics, jury systems would not be appropriate, as such the Judge or Magistrate has become both the trier of fact and law.
6. Considering this, my humble view is that no case submissions in our jurisdiction should be infrequent or at least very short because the relevant judicial officer has already heard the evidence, and it is his or her discretion to allow the matter to continue or not, see Pep, The State v [1983] PNGLR 19 (14 February 1983)
7. Most counsels refer to the no case as having two limbs, however in lights of the decision of Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PGSC 16; [1983] PNGLR 287 (14 September 1983), it is noted that there are three:
   1. Where there is no evidence
   2. Where there is very little evidence
   3. Where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.
8. The three are separate and should not be invoked at the same time as forming the basis of the submission nor should judicial time be wasted when the prosecution case does not fall into one of the three legs.
9. Summary proceedings by their nature are intended to be quick. It is upon police to prove their case and where there are unrepresented defendants’, the Court must adopt the process, apply one of the three limbs and stop the case, when the evidence by the prosecution falls into either one.

Does the present case fall into one of the three categories?

10. Yes.
11. The Defendants have been charged for Unlawfully on Premises contrary to section 20 of the Summary Offences Act.
12. The elements of the Offence are:
    1. The Defendant
    2. Was on the premises
    3. He had no lawful excuse to be there
13. Whilst the onus is on the defendant to establish that he was there for some lawful purpose, it is still the burden of the prosecution to show that the defendants had some criminal intent to be present on the premises.^[1]
14. Pratt, J in Loho v Hambindua [1985] PNGLR 286 (11 September 1985), held that a person can only be found guilty of unlawfully on premises where the prosecution establishes that he was there preparing to commit an offence or in furtherance of some criminal purpose.
15. The Complainant in the present matter was not present at the relevant time. His evidence is hearsay and not admissible against the defendants.
16. What is interesting is that he does not dispute the questions that the defendant put to him in cross examination. Specifically that at the police station he and the policeman demanded K5000 from each of the Defendants in exchange for not pressing criminal charges. When the Defendants refused, the police charged each of them.
17. I address the evidence as presented against each defendant.

Michael Malaka

18. The evidence against this defendant was given by the ward councillor one Kaila Kutumeng.
19. His evidence is that the Defendant made a complaint for sorcery against the Complaint. The Complainant was informed of the proceedings but was away attending to a ‘haus krai’ or wake at his wife’s village. He and the Village Court Officials and the Church representatives conducted a hearing. As part of the hearing they proceeded to the Complainant’s house with the Defendant. There were no items of sorcery and so the case by the Defendant was dismissed.
20. There is no evidence establishing that the defendant was there preparing to commit an offence or in furtherance of a criminal purpose. The evidence by the prosecution establishes that the Defendant was there as part of an official Village Court hearing.
21. If the Complainant is aggrieved that it is a civil case.

Bobby Michael

22. The evidence against this defendant is given by the adopted son of the Complainant.
23. He says that the Defendant came and asked where the Complainant was. After which he told him to remove the properties from the house so that he will burn the house. The witness was asked questions about what happened before or after the statement was made but the witnesses did not have an answer. When I asked him what happened at the Defendant did not burn the house, the witness said that the Defendant just said that and left. Most of the time the witness was barely audible and was staring at his feet.
24. I find this evidence so lacking in weight and reliability.

Vincent Sarus

25. The evidence against this Defendant comes from the ward councillor one Kaila Kutumeng. He says that he saw the defendant in the Complainant’s garden standing next to some cut bananas. He asked him where the owner of the garden was and the Defendant replied that the owner gave him permission.
26. From his own evidence he had said that the Complainant was away at the time, yet he said when he met the Defendant he asked about where the owner of the garden was. Furthermore he did not see the defendant cut the banana tree. In fact the evidence as presented by the police is that the defendant was part of the Court party then went to check for the sorcery implements.
27. There is very little evidence to establish that the defendant cut the banana or was there in furtherance of a criminal purpose or was about to commit any offence.

Conclusion

28. Considering all of the above, I find that each of the Defendants do not have a case to answer and acquit them of the charges of Unlawfully on Premises.

Orders

29. The Orders of the Court are as follows:
    1. The Informations for unlawfully on premises against each defendant is dismissed.
    2. The Defendants are acquitted.
    3. Bail is refunded.
       

Lawyer for the Informant, Police Prosecution

Lawyer for the Defendant, Self Represented

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^[1] Criminal Jurisdiction of Magistrates in Papua New Guinea at paragraph 4.167