Gwampom v Samuel [2022] PGDC 107; DC9037 (25 October 2022)

DC9037

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION

NCC NO 409 OF 2022
NCC NO 410 OF 2022
CB NO 680 OF 2022
CB NO 680 OF 2022

BETWEEN:

YAKU GWAMPOM
[Informant]

AND:

LOHIA BOE SAMUEL
FABIAN HERA
[DefendantS]

Waigani: Paul Puri Nii

25th OCTOBER 2022

COMMITTAL PROCEEDINGS: -Charge- Murder -Section 300(1)(a) of the Criminal Code Act 1974 (Chapter No. 262). Investigation to offer prima facie practical evidence sustaining the elements of the accusation to have the Defendants committed.

EVIDENCE: Unobjectionable responsibility for prima facie case-Establishment of the charge of Murder–Evidence is habitually circumstantial-Evidence of the accuseds and victim present at the murder scene-Prima facie evidence connects both defendants to the offence-Elements of the charge of Murder is sustained.

PNG Cases cited:

Akia v Francis [2016] PGNC 335; N6555 (24 August 2016)
Yarume v Euga [1996] PGNC 24; N1476 (6 September 1996)
Police v Koka [2021] PGDC 53; DC6010 (31 May 2021)
Police v Kambian [2021] PGDC 66; DC6021(30^th June 2021)
State v Galasboi [2012] PGNC 375; N4629 (11 April 2012)
Japele v Raka[2021] PGDC 166; DC7022
State v Nicky [2016] PGNC 169; N6360
Police v Medako [2021] PGDC 54; DC6011
State v Ova [2021] PGNC 469; N9335
Paulus Pawa v The State [1981] PNGLR 498
State v Tom Morris [1981] PNGLR 493

Overseas cases cited:

Nil

References

Legislation
Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40

Counsels
Police Prosecutor: Chris Iga For the Informant
Defendants: Sasingian Lawyers & Public Solicitors For the Defendants

RULING ON POLICE EVIDENCE

25^th October 2022

INTRODUCTION

NII, P. Paul Magistrate. My ruling on whether a prima facie case is satisfactorily documented within the implication of Section 95 of the District Court Act 1963. The declaration is reached after Police and defendants interests are judiciously distinguished. Defendants resists in their case evidence is mostly circumstantial and hence it is deficient to commit them while the State through the Police Prosecutor endures evidence in the Hand-Up-Brief is relevant to commit both Defendants to trial in the National court and henceforth in the succeeding lines are my pronouncement on the assessment of police evidence.

CHARGE

1. The accuseds are charged with one count of Murder each under Section 300(1) of the Criminal Code Act 1974. The inclusive necessities of the charge is publicized now under:
   

“300. Murder.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person

Penalty: Subject to Section 19, imprisonment for life”.

SUMMARY OF FACTS

2. Police says Defendant Lohia Boe Samuel is aged 52 years and of Elavara village of Motu Koitabu in National Capital District and Defendant Fabian Hera is aged 26 years and of Koukou village of Motu Koitabu in National Capital District. The victim is identified as Robert Jerry aged 38 years of Lagis village, Bulolo district in Morobe Province. Police allege that both defendants and accused were seen inside the Fusion 2 restaurant along Cameroon road in NCD between the hours of 7.15pm and 8.00pm on Friday the 11^th of March 2022. Police say accused Fabian Hera is defendant Lohia Boe Samuel’s protocol officer since defendant Lohia Boe Samuel is a Member of Parliament representing the people of Port Moresby North west in NCD.
   
3. Police says the three were having dinner and instantaneously told stories, nevertheless, during the progression of their meals and stories, an abnormality must have stimulated between them and hence Defendant Lohia Boe Samuel got his reserved sidearm, a pistol which was in his custody at the time of the disparity and shot the deceased on his right head just below the ear and the deceased was lying on the dining table with his head on and hands dangling. Police says immediately after the shooting, defendant Lohia Boe Samuel put the murder weapon on the seat and stood up and banged the dining table and screamed out Defendant Fabian’s Hera’s name twice by saying “Fabian why did you do that” and he walked out of the restaurant while defendant Fabian Hera stood there at the crime scene with his hands on his head looking lost.
   
4. Police says after when defendant Lohia Boe Samuel left, an observer named Daniel Oaisa who was in the restaurant heard the gun shot and quickly approached the table and got the murder pistol which was aiming towards Defendant’s Fabian Hera and hence cleared the chamber with one cell still loaded. Another bystander named Lydia Kailap, an alien who was having dinner with her family in the same restaurant rushed to the victim’s aid and asked for support but could not do much since the victim was already dead. An ambulance later arrived at the scene and took the deceased body to the Port Moresby General Mortuary to be preserved for burial.
   
5. Police also say approximately after the shooting defendant Lohia Boe Samuel went out and drove to the Prime Minister’s house. Soon after this defendant left, St John's ambulance, Police CID Homicide Squad and Police Forensic Crime Scene examiner arrived at the restaurant after being informed by the restaurant workers. The defendant Lohia Boe Samuel reverted to the crime scene after his meeting with PM was rescheduled to the next day and provided his details to the police who were there. He was then asked to report to the Police statin the next day which he did and one 17^th March 2022, defendant Lohia Boe Samuel was authoritatively arrested and charged for the offence of Murder under Section 300(1)(a) of the Criminal Code Act. Moreover, police allege that defendant Fabian Hera was told to assist the Police investigation and later clear his name but decided to endure silence in the initial police Interrogation and thus he was also charged under Section 7 of the Criminal Code Act for covering defendant Lohia Boe Samuel.
   

ISSUE

6. Whether a prima facie case is judiciously demonstrated and that is whether Police evidence is sensible to produce a prima facie case against the Defendants.
   

THE LAW

The Laws leading Committal Court Proceeding

7. The Regulations under Sections 94-100 of the District Court Act 1963, delivers the sanctioned base on how to undertake the assessment of evidence and arrive at a conclusion on committal. The court would be engrossed well with evidence by meeting the elements of the criminality to create a prima facie case against the defendants. The committal court in Police v Kambian[i] modified the values in Akia –v- Francis[ii] and administrated that the committal court maneuvers as “an administrative process” where prosecution evidence is evaluated to ensure there is appropriate evidence sustaining the elements of the allegation of Murder. Although the court considered the purposes of committal court as an administrative process, reliable to Section 95 of the District Court Act and additionally sustained by the philosophies in Yarume –v- Euga[iii] this court is indebted to assess each police evidence in the police file and weigh them to select whether a prima facie case is reasonably made out against the defendants.
   

ELEMENTS OF THE OFFENCE

8. The court in Police v Medako[iv] oversaw that prosecution should create to the court with continuous evidence to institute the elements of the accusation. In the existing allegation, Police must link the elements of the charge of Murder. The court in State v Galasboi[1] established that there are two elements of Murder under Section 300(1)(a) of the Criminal Code Act and they are that the that the “accused killed the deceased and that the accused intended to cause grievous bodily harm to the deceased (or some other person)”. These elements of the charge should be sufficiently met by police in their evidence.
   

EVIDENCE

9. Evidence particularly delivered by police plays an imperative character in the improvement of criminal justice to harvest an impartial decision. Evidence incorporated in the prosecution case served on the Defendants dated10th August 2022 would gratify the elements of the allegation against the Defendants. Police case must establish the allegations by connecting to the elements of the allegation (charge of Murder) and this is the method in the case of Police v Koka[v].
   

PROSECUTION CASE

10. Police Prosecutor Chris Iga submitted in backing of the police evidence through a submission in response filed dated 2th August 2022 that there is prima facie satisfactory evidence against the Defendants to commit them for the charge. Prosecutor further submits that there is sufficient evidence against defendant Fabian Hera for him to be committed to trial but did not raise any issue on evidence concerning the defendant Lohia Boe Samuel but instead asked the court to make its own finding and draw a ruling on this defendant on the issue of evidence and a prima facie case.
    

Prosecution evidence-from other people

1. Marilyn Espolong –Witness says she is the owner of the Fusion restaurant in which the alleged murder took place. Witness says at about 3.30pm on the 11^th March 2022 the defendant Loiha Boi Samuel came to the restaurant. Witness says this defendant is a regular customer. Witness says at around 5.30pm defended Fabian Hera entered the restaurant, witness says he also recognized him since he was her FB friend. Witness says the accused was sitting on the dining table together with the two defendants facing the accuseds. Witness says Deceased was facing towards the restaurant while the defendants were giving their backs to the restaurant. Witness says after some moments she heard a gunshot and after the shot she heard Defendant Loiha Boi Samuel said “Fabian why did you do that”. Witness says after the shooting both defendants panicked. Witness says later she called the ambulance and police who came and attended to the allegation.
   
2. Numa Ben- Witness says he works at Fusion restaurant and says on the 11^th March 2022 between the hours of 7pm- 8pm there was a shooting from the table where the defendants and the deceased sat and says people sitting at the table were responsible for the shooting. Witness says he only heard the shooting.
   
3. Edna Smith-She says she is a waitress at the restaurant and on the 11^th March 2022 between 7pm -8pm, she heard a gunshot followed by the defendant Loiha Boi Samuel saying “Fabian why did you do that”. Witness says she could recognize the defendant Loiha Boi Samuel since he is a regular at Fusion restaurant.
   
4. Amanda Cecilia Maino- Witness says on the Date and time of allegation she was in the restaurant and heard the gunshot. Witness says prior to the shooting; she saw defendant Fabian Hera walking into the restaurant with signs of ill-fated face followed by the deceased. They both walked over to where defendant Loiha Boi Samuel was sitting. Witness says defendant Loiha Boi Samuel sat to the left of the defendant Fabian Hera with his back positioned facing the victim. The victim was seated on the other side of the table opposite the defendant Fabian Hera. Witness says she heard defendant Loiha Boi Samuel speaking hard about the cost of fuel but could not hear anything further after that. Witness says defendant Fabian Hera was seen walking in and out of the table for some time until the shot was fired followed by defendant Loiha Boi Samuel’s words “Why did you have to do that Fabian”.
   
5. Daniel Oaisa- Witness says he knows defendants Loiha Boi Samuel and Fabian Hera and says on 11^th March 2022 between 7pm -8pm was at the Restaurant having dinner with some friends and heard the shooting. Witness says after the shooting she heard the words “Fabian why the fuck you did that Fabian”. Witness says he immediately looked down to the couch where defendant Loiha Boi Samuel was sitting and saw the loaded firearm, a Glock 19.9mm pistol and the firearm was facing towards the restaurant so he picked it up and cleared the chamber to make sure it is safe to handle and carry. Witness says later he gave the pistol to Sergeant Nei Pige.
   
6. Jenny Kennedy- this witness says she met the victim on the 11^th March 2022 outside the Fusion restaurant and the victim told the witness that he was there to see defendant Loiha Boi Samuel. However, the witness says in the next few days she heard that the victim was killed.
   
7. Lydia Kailap-Witness says on the date of the allegation he took his family to fusion restaurant to have dinner. Defendant says there were three men at the other side but did not recognize them. This witness says while waiting for his orders to be served, he heard a loud explosion. Witness says after the sound he heard a man saying "Why did you do that, Fabian, why?" Witness says she was trying to assist the victim who was lying on the table but a man came and abused her not to do anything since it was none of her business.
   
8. Danlyne Wakai-Witness says she and some others went to have dinner at Fusion restaurant on the date of allegation at 7pm. Witness says after 30-40 minutes their meal was served and while they were eating she heard a gunshot and then someone was yelling out repeatedly “Fabian why did you do that”. Witness says soon afterwards he saw a man filled with blood spotted eyes walking out of the restaurant. This man walked out after the other men recurrently uttered words to the effect of “Fabian why did you do that”. Witness says later he realized that the defendant was Loiha Boi Samuel.
   
9. Dolye Kailap-Witness says on 11^th March 2022 at 7.15pm they were having dinner and he heard the gunshot and also says he heard the word “Fabian why did you do that” which he says later he realized was spoken by defendant Loiha Boi Samuel.
   

Prosecution evidence-from Police

10. Samuel Koi-This policeman says he is a Forensic officer who attended the crime scene on the night of 11^th March 2022 and took photos of the scene and also received the murder weapon, a Glock pistol from Detective Sergeant Pige. This witness gives a comprehensive detail of photos taken including the victim’s image and the location.
    
11. Joseph Numbois- Witness says he works with the National Forensic Science center and says he was the one who tested the murder weapon and confirmed that it was a usable arm that was in good condition and also confirmed that the bullet fired was from Glock pistol with serial number BTKL072.
    
12. Nei Pige- Witness says he is a Criminal Investigative detective and on the 11^th March 2022 at 7.15pm, he received a call from Danny informing him of the incident. Witness says soon after the call he made his way to the crime scene and met Danny who then gave him the murder weapon (pistol) without the magazine. Witness says later defendant Loiha Boi Samuel told defendant Fabian Hera to go and get the magazine in defendant Loiha Boi Samuel’s vehicle. Witness says he took the murder weapon and delivered to Chief Sergeant Joseph Numbos to have the firearm tested.
    
13. Mark Moika- Witness says he is the Police Corroborator with the arresting officer when the defendant Fabian Hera was interrogated.
    
14. Ronald Sakai- Witness says he was the Police Corroborator with the arresting officer when the defendant Loiha Boi Samuel was interrogated.
    
15. Samson Kami- this witness says he is a homicide investigator who was involved in the investigation and interrogation regarding defendant Fabian Hera.
    
16. Yaku Gwampom- he is the case officer who did the initial investigation leading to the charge against the defendants. Witness says on 22 March 2022, there was a confessional statement made by defendant Fabian Hera however, witness says he did not include that in the ROI since he did not know where the statement was coming from. Moreover, witness says, initially particulars on the information was that defendant Loiha Boi Samuel was remanded and accused Fabina Hera was released on a National court bail.
    

Coroner’s report

17. Dr Seth Pose- Medical Doctor who conducted the post mortem and did the Autopsy report which established the cause of the death involving the deceased. The report concluded that the deceased was in the company of the defendants. They were sitting around a table in Fusion restaurant at Waigani when he was shot with a firearm and died at the scene and the date of death was recorded as 11^th March 2022 at 19.15 hours.
    

DEFENSE CASE

11. There are two dissimilar submissions for both defendants through their legal representatives. Defendant Lohia Boe Samuel’s submission was filed on 22^nd August 2022 by Sasingian Lawyers and Defendant Fabian Hera’s submission was filed on the 15^th August 2022 by the Public Solicitors. Both Lawyers have reasoned on their cases contrarily although both defendants were charged with the matching offence and equivalent set of facts and henceforth the courts motivation will also shadow in that custom.
    

i. Lohia Boe Samuel

12. This defendant through a submission filed on 22^nd August 2022, intensely contended there is no eye witness or undeviating evidence of the alleged killing and the identification of the individual who purportedly shot the casualty. Defendant through his Lawyer Edward Sasingian argued that there is nothing in the police file authenticating the allegation in the police summary of facts and also there is no evidence attaching defendant Lohia Boe Samuel to the accusation of Murder. Defense argued that there is nothing in the evidence of all the state witnesses asserting they have identified defendant Lohia Boe Samuel as the one who shot the victim.
    
13. Defense also disputed that the only circumstantial evidence is the statement “Fabian why did you do that”, an announcement professedly heard from the defendant Lohia Boe Samuel proximately after the suspected shooting. The defendant argued that among all the 9 state witnesses, statements of Marilyn Espolong, Amanda Cecella Maino and Danylne Wakai have all heard the word “Fabian why did you do that”.
    
14. Finally, defense submitted that Defendant Lohia Boe Samuel’s co accused Defendant Fabian Hera self-confessed to the allegation as he was involved through an admission declaration to police but not defendant Lohia Boe Samuel and consequently strongly argued that there is insufficient evidence meeting the elements of identification and asked the court to discharge the information holding the charge of Murder under Section 300(1)(a) of the Criminal Code Act.
    

ii. Fabian Hera

15. Defendant through his Lawyer argued that the whole evidence against him is exclusively circumstantial since no individual had essentially appreciated who shot the deceased victim. Defendant argued in the nonexistence of any eye witness evidence, the delivered evidence against him is laughable to institute the significant element of ‘murder’ which is “intent” to cause grievous bodily harm. Defense says ‘the ‘police allegation of facts’ as named ‘summary of facts’ do not in themselves establish any evidence.
    
16. Defendant argued that notwithstanding there are some unimportant admission or evidence against him, all these evidence also miscarry to aptly gratify the elements of murder that he essentially had an intention to kill the deceased. Defendant through his lawyer claimed that the proceeds from the defendant’s Record of interview was modestly an act of inadvertent than any calculated act.
    
17. Lastly, defendant argued that the statement from him would exclude defendant Lohia Boe Samuel’s assumed contribution in the allegation and thus argued that this defendant be excused from the commitment of murder. Finally, defendant argued that him be discharged from the information of murder under Section 300(1)(a) of the Criminal Code Act.
    

CONSIDERATION OF EVIDENCE

18. On the 11^th of March 2022 between the hours of 7pm and 8pm, the deceased and the defendants were at Fusion 2 restaurant exclusive to the Kina bank complex at Waigani in NCD. They were in a restaurant maintained and operated by Marilyn Espolong, a Filipino national who was at the date of occurrence had been in PNG for the past 22 years. Defendant Lohia Boe Samuel was previously in the restaurant trailed by Fabian Hera and the accused. While in the restaurant, the defendants and the deceased victim were having some discussions which were only known to them. Defendants were sitting on the matching row facing the deceased while the deceased was sitting on the opposite row fronting the defendants. During the conferences, a gun shot was fired and the deceased who was sitting on the opposite seat facing the defendants was shot on his right side of the neck just below the ear lobe. The gunshot came from a Glock pistol with serial number BTKL072. At the time of allegation, this weapon was licensed to the Defendant Lohia Boe Samuel.
    

COURT’S RULING

19. On the date of the alleged murder there were the defendants and the accused seated around a dining table facing each other and were conversing on a topic which police witness Amenda Cecilia says ‘about cost of fuel’. This witness further says defendant Loiha Boi Samuel sat to the left of the defendant Fabian Hera with his back positioned facing the victim. The witness’s statement regarding the sitting arrangement is additionally maintained by photo sketch at pages 30, 35, 40 and exhibit on page 108. Having provided that, I will say the victim was seated on the other side of the table opposite the defendant Fabian Hera. This means both defendants were sitting next to each other on the same row facing the victim while the victim was on the other seat facing the defendants. The dining table detached the defendants from the victim.
    
20. With reliable evidence, I have cautiously dignified and noted there is no uncertainty that on the 11^th of March 2022 between 7pm and 8pm, there was a shooting involving the defendants and the victim. When scrutinizing each and every statement in the police file that was served to the court on 10^th August 2022, a gunshot was heard inside the limitation of where the defendants and the victim sat. Since the victim was shot, evidence suggests one of the defendant’s must have pulled the trigger since no one else was there in the killing proximity except the defendants and the firearm.
    
21. The police summary of particulars say defendant Lohia Boe Samuel got his pistol and shot the victim after a disagreement. The police summary of facts is a replica of the information but a little in detail. Both the summary of facts and the information are not evidence but the skeleton description of the police case which is only authenticated by liberated police witnesses. Coincidently, police witnesses are people who were having their dinners in the restaurant at the time when the allegation took place. I have read each and every statement and observed no uninterrupted evidence joining neither defendant Lohia Boe Samuel nor Fabian Hera to the allegation. All the witnesses say they only heard a gunshot and after the shot, they saw the defendants and the victim at the murder scene. Witnesses Marilyn Espolong, Numa Ben, Edna Smith, Amanda Cecila Maino, Daniel Oaisa, Lydia Kailap, Danlyn Wakai and Dolyn Kailap say they heard the statements ‘Fabian why did you do that” from the Defendant Lohia Boe Samuel proximately after the alleged shooting.
    
22. All state witnesses have unvaryingly quantified that they did not witness what happened but only heard the gunshot and the word ``Fabian why did you do that” from Defendant Loiah Boe Samuel. In the nonexistence of any direct evidence, what seems pertinent for reflection now is secondary evidence or otherwise circumstantial evidence. All evidence does not, on its face prove the fact in issue, nonetheless, the statement ‘Fabian why did you do that” and the position of the murder weapon on the seat after the shooting as per sketch 40, Defendant Loiah Boe Samuel’s arguments on rising fuel price and Defendant Fabian Hera’s troubled feelings on his face instance before the shooting as itemized by Amanda Ceceil Maino’s statement upsurges to a logical inference that the fact exits. These will now draw additional reasonable inference in order to support the assertion of murder.
    

Who shot the victim?

23. His honor J Anis’ opinion on the laws of circumstantial evidence is well netted in State v Nicky [2016] PGNC 169; N6360. His honor has adapted the principles of the High Court of Australia in Barca v The Queen [1975] HCA 42; [1975] HCA 42; [1975] 50 ALJR 108 at p 117:
    

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused”

24. I will now take into account an important fact and that is the purported crime transpired inside Fusion restaurant between the hours of 7pm -8pm on 11^th March 2022, did not happen at some secluded location or some other unknown places. Given this, the number of people in the building would be reasonable to conjecture they heard the allegation and there were two accused and the victim. The sudden words of “Fabian why did you do that” from the Defendant Loiah Boe Samuel after the shooting forces all state witnesses in the restaurant to pull their orientation towards defendant Fabian Hera as the alleged shooter. But, the court in my opinion could be wrong in too quick to draw the hypothesis that defendant Fabina Hera as the alleged shooter just because of the words spoken by Loiah Boe Samuel but I am of the opinion that activities leading to and after the allegation will also deliver much wanted evidence joining the act and effect with the perpetrator and thus I will also assess them.
    
25. With regard to the values in State v Nicky[2], the circumstantial evidence should be consistent to draw a reasonable hypothesis that the spoken words meant defendant Fabian Hara shot the victim. The reliable evidence from State witnesses in the restaurant are the identities of the defendants and the victim and the words “Fabian why did you do that”. Other evidence should also support the defendant Loiah Boe Samuel’s statement. All pieces of evidence should stand combined to sympathetically build a case of circumstantial evidence in order to succeed a hypothesis that connects the defendants to the allegation. The following are some questions I have asked and answered which might assist in the buildup of circumstantial evidence:
    

No	Questions	Answers	Sources
1	Who owned the firearm?	Loiah Boe Samuel	Question 32; ROI
2	Is Loiah Boe Samuel an experienced gun handler?	No	Question 65; ROI
3	What was the position of the firearm after the shooting?	Towards the bar	Sketch at page 40
4	What was defendant Fabian Hera’s feeling before the shooting?	Had uneasy feelings on his face	Amanda Cecilia Maino’s statement at paragraph 2, page 36
5	What was defendant Loiah Boe Samuel’s feeling before the shooting?	Spoke hard about the cost of fuel	Amanda Cecilia Maino’s statement at paragraph 3, page 37
6	Which side of the body was the late victim shot?	Right side of the neck.	Medical report at page 120
7	Which position was the victim facing defendant Loiah Boe Samuel’s?	The victim was facing his right ear to Loiah Boe Samuel’s face	Crime scene sketch @ page 108 and witness Marilyn Espolong statement.
8	Which position was the victim facing defendant Fabian Hera?	The victim was facing his left ear to Fabian Hera	Crime scene sketch @ page 108 and witness Marilyn Espolong statement
9	What happened to the magazine after the shooting?	Taken away by defendant Loiah Boe Samuel on his vehicle	Nei Pige’s statement at paragraph 4, page 61
10	What happened to defendant Loiah Boe Samuel after the shooting?	Went to the Prime Minister’s house to report the matter	Page 150 @ question 47 of the ROI
11	What happened to both defendants after the shooting?	They both walked out of the restaurant	Statement of Dolye Kailap @ page 47 on paragraph 3
12	Who brought the gun into the restaurant?	Fabian Hera	Page 153 @ question 86 of the ROI
13	Who had the gun the whole day prior to the incident?	Fabian Hera	Page 154 @ question 106 of the ROI

26. In the assessment of evidence provided in the table above, I have seen that accused Fabian Hera in his ROI at page 158 has undecidedly confessed that the victim was misfortunately shot after a turmoil with him. I see this statement now appears to marginally push away defendant Loiah Boe Samuel’s relationship to the allegation. Defendant Fabian Hera’s statement is now a first step testament to tie the hypothesis of who held the murder weapon at the time when the victim was shot. When bonding together Defendant Loiah Boe Samuel’s statements of ‘Fabian why did you do that” and the troubled feelings on Defendant Fabian Hera’s face before the shooting as revealed by witness Amanda Cecilia Maino at paragraph 2, page 36 now upsurges and amplified the hypothesis to tie defendant Fabian Hera to the supposed murder. Although defendant Fabian Hera’s confessional statement in itself forms the ingredients precondition for a prima facie case, other activities leading to the allegation now put me in an appropriate position to complete the postulate by attaching defendant Fabian Hera to the allegation of Murder.
    
27. Having said that, I will now further assess evidence to ascertain defendant Loiah Boe Samuel’s role in the allegation. The initial police information says defendant Loiah Boe Samuel was the one who allegedly shot the victim. However, defendant Fabina Hera’s confessional statement now seems to distract the course. Defendant Loiah Boe Samuel denies the allegation on his ROI and says he was awfully struck from the aftershock of the suspected shooting. When I read though his ROI, accused Loiah Boe Samuel says at question 94 that the victim got the murder weapon from his bag(bilum) and defendant Fabian Hera told him to given it back to him. Also at question 98 he says, defendant Fabian Hera moved forward to the victim in an attempt to get the gun. This account now seems to verify Defendant Fabian Hera’s confessional statement that he hurled forward and reached for the gun. The only visible witness apparent is Marilyn Espolong since she was at the restaurant and positioned her eyes towards the Defendants and the victim and she was the one who correctly stated their sitting arrangements before the shooting but this witness did not mention anything about the altercation leading to the alleged murder and who sot the victim. Moreover, none of the other witnesses have identified the defendants as the alleged shooter and thus everything now reverts back to circumstantial evidence again.
    
28. The attitude in State v Ova [2021] PGNC 469; N9335 will be shadowed in my ruling. I will now assemble all the pieces of circumstantial evidence and assess them independently, if they all point to the same direction with a common goal of maneuvering everything to the assertion then these in itself would overwhelmingly remove the cloud of vagueness I have for the proposition to relate evidence to the allegation. I will now consider the following events leading to the alleged murder and will try to relate whether they all connect to the alleged murder:
    
    1. Evidence suggests the alleged murder side arm is licensed to the defendant Loiah Boe Samuel, this means he is the custody of the firearm including the possession all the time until and unless the license is revoked by the issuing authority or an order from the court of competent jurisdiction to remove the license and the possession. Nevertheless, evidence at question 86 of the Defendant Loiah Boe Samuel’s ROI shows defendant Fabian Hera brought defendant Loiah Boe Samuel’s alleged murder weapon from his car to the restaurant. At the time of the shooting and moments before the shooting the firearm was in possession of the defendant Fabian Hera. Defendant Loiah Boe Samuel at all-time knew it was unlawful to hold a fireman without a license to carry but yet permitted and added defendant Fabian Hera to illegally carry the firearm and the very firearm allegedly triggered the killing.
       
    2. Evidence of Crime scene sketch @ page 108 and witness Marilyn Espolong statement documents the victim was facing his right side of the ear to the defendant Loiah Boe Samuel and left side of the ear to defendant Fabian Hera. Doctor’s report says the victim was shot on the Right side of the neck; this now matches the victim and defendant Loiah Boe Samuel’s sitting position at the table before the killing. Therefore, there is a likelihood that the shooting came from defendant Loiah Boe Samuel’s sitting position.
       
    100. Amanda Cecilia Maino’s statement at paragraph 3, says moments before the alleged shooting defendant Loiah Boe Samuel was heard speaking hard about the cost of fuel. This leads me to believe an argument must have aroused between defendant Loiah Boe Samuel, Fabian Hera and the victim. Therefore, I may believe that the shooting came after the argument.
         
    4. Statement of Dolye Kailap on paragraph 3 says both defendants Fabian Hera and Loiah Boe Samuel left the restaurant after the shooting. This now compels me to believe that both defendants knew something about the shooting.
       
    5. The sketch at page 40 of the Police file shows the murder weapon was facing the restaurant after the shooting. The murder weapon was placed at where defendant Fabina Hera sat facing the restaurant. From the sketch evidence, I am able to tell that it would be possible to have the firearm positioned towards the restaurant by the defendant Loiah Boe Samuel than Fabian Hera. If it was defendant Fabian hera then the firearm would have been positioned at a location other than where he sat. This is the assessment of rationality consistent with the sketch as part of police evidence.
       
    6. Evidence shows immediately after the alleged shooting the magazine was removed from the gun and was taken away by defendant Loiah Boe Samuel when he went to see the Prime Minister. Both defendants have stated noticeably in their respective statements that they did not know what happened to the murder weapon after the shooting since they were both in a state of shock and horrified. Defendant Loiah Boe Samuel says he was shocked and went to see the Prime minister after the shooting but interestingly evidence shows he ejected the magazine and took with him in his car to the Prime Minister’s house. Later when asked by police what happened to the magazine, he told them it was in his car. How could a person who was in a state of shock, confused and horrified would quickly eject the magazine immediately after the killing and take it with him? This part of the Defendants arguments does not make sense.
       
29. In the case of Paulus Pawa v The State [1981] PNGLR 498, the court indicated that: “When a case against an accused person rests substantially upon circumstantial evidence there should be an acquittal unless all the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilty of the accused.” Consequently, the court must apply pronounced caution in such circumstances and be watchful that any interpretation brought up needed to be verified against the prohibition of any practical assumption that might specify innocence.
    
30. In the case of State v Tom Morris [1981] PNGRL 493. The judge pronounced that: “Where there are a number of competing inferences, it is a question of fact for the court to decide which inference should be drawn, which to be rejected and which are reasonable, which are mere conjecture, and which party, if any, they favor.” When considering a case made of circumstantial evidence, all the isolated and subsidiary evidence should be independently and cautiously assessed by linking and consolidating to give effect to the hypothesis so that a connection will be perceptibly drawn.
    
31. I have assessed all the material evidence I have gathered and assembled in a table above and noted that there are some interrelated circumstances hence drawing a durable case of prima facie by disproving any mere conjecture. All events leading to the allegation appear to be reasonable for a case of strong hypothesis by linking both defendants to the allegation although Police have submitted that defendant Fabian Hera had confessed and thus only him be committed.
    
32. I have also noted the spoken words from defendant Loiah Boe Samuel immediately after the shooting words to the effect “Fabian, why did you do that’? The phrase to me appears like someone was concerned about the action of another and was trying to find out the cause. No state evidence has supported my assumption that defendant Loiah Boe Samuel said that after Fabian Hera shot the victim. Moreover, no witness evidence suggests defendant Fabian Hera shot the victim except his own confessional statement to police. Only God reads people's minds but the courts read from evidence provided and thus I cannot prematurely conclude anything here about the purpose of the phrase ““Fabian, why did you do that’? but will let the trial court decide.
    
33. Defense have submitted that defendant Fabian Hera be committed since he had declared on his confessional statement that he accidently pulled the trigger and not Loiah Boe Samuel and this stand was supported by Police. Police and defense Lawyers position was for defendant Fabian Hera to be committed and Defendant Loiah Boe Samuel to be discharged. Nevertheless, when I assessed evidence, I am satisfied that there is direct evidence on the part of Defendant Fabian Hera and there is also indirect evidence of defendant Loiah Boe Samuel. Therefore, both defendants are equally liable for the death of the deceased.
    
34. The sitting positions at the restaurant, defendant Fabian Hera’s illegal procession of the firearm, the body part and direction where the victim was shot, the position of firearm after the shooting, the removing of the magazine and words of anger uttered by defendant Loiah Boe Samuel about increased costs of fuel ultimately attaches defendant Loiah Boe Samuel to the allegation. Thus, it now draws a comprehensive case of circumstantial evidence by connecting defendant Loiah Boe Samuel to the allegation.
    
35. After going through all these, I am duty-bound by circumstantial evidence to believe that defendant Loiah Boe Samuel had aided and assisted defendant Fabian Hera in committing the offence under Section 300(1) of the Criminal Code Act and moreover defendant Loiah Boe Samuel procures defendant Fabian Hera to commit the crime. Therefore, under Section 7(1)(c) and (d) of the Criminal Code Act, there is sufficient circumstantial evidence making a prima facie case against the defendant Loiah Boe Samuel for the offence under Section 300(1)(a) of the Criminal Code Act. Moreover, there is sufficient prima facie evidence against defendant Fabian Hera for the offence of Murder under Section 300(1)(a) of the Criminal Code Act.
    

CONCLUSION

36. In my calculation of evidence, I have distinguished that the primary allegation in the Police information and the summary of facts is about defendant Loia Bou Samuel but defendant Fabian Hera was arrested under Section 7 of the Criminal Code for not revealing material about defendant Loia Bou Samuel. Nevertheless, later there was a confessional statement delivered to the court asserting that defendant Fabian Hera accidently pulled the trigger. Police and defense both have strongly submitted that Defendant Fabian Hera be committed and not Loa Bou Samuel. Nonetheless, captivatingly, evidence is a little out of what I hear from the parties than what I read from the police file. When I assed all the evidence from all approaches, there is circumstantial evidence linking defendant Loia Bou Samuel to the allegation of murder under Section 300 of the Criminal Code with reliable to Section 7 of the Criminal Code and Defendant Fabian Hera under Section 300 of the Criminal Code Act.
    
37. There is sufficient evidence to make a prima facie case against the Defendant Fabian Hera for the charge of Murder under Section 300 (1)(a) of the Criminal Code Act and thus the allegation against him is sustained. Moreover, there is sufficient prima facie circumstantial evidence against defendant Loiah Boe Samuel under Section 300 (1)(a) of the Criminal Code Act consistent with Section 7(1)(c) and (d) of the Criminal Code Act and thus the charge against him is also sustained.
    

FINAL COMMITTAL ORDERS

1. Evidence is sufficient to commit the Defendant Fabian Hera for the charge of Murder under Section 300(1)(a) of the Criminal Code Act.
   
2. Evidence is sufficient to commit the Defendant Loiah Boe Samuel for the charge of Murder under Section 300(1)(a) of the Criminal Code Act consistent with Section 7(1)(c) and (d) of the Criminal Code Act.
   

c) Evidence is sufficient to commit both defendants.

d) Defendants bail extended

e) Matter adjourned for Section 96 Statement.

Sasingian Lawyers & Public Solicitors For the defendants
Police Prosecutor For the State

[1] [2012] PGNC 375; N4629 (11 April 2012)
[2] [2016] PGNC 169; N6360

[i] [2021] PGDC 66;DC 6021(30^th June 2021)
[ii] [2016] PGNC 335; N6555 (24 August 2016)
[iii] [1996] PGNC 24; N1476 (6 September 1996)
[iv] [2021] PGDC 54; DC6011 (31 May 2021)
[v] [2021] PGDC 53; DC6010 (31 May 2021)