Miki v Nablup [2022] PGDC 123; DC9060 (5 October 2022)

DC9060

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS COMMITTAL JURISDICTION]

COM NO 343-346 of 2021
BETWEEN

DAVID MIKI
Informant

AND

GIBSON NABLUP & HENRY LABELI
Defendants

Waigani: O Ore Magistrate

2022: 05^th October 2022
      

COMMITTAL PROCEEDINGS – Armed Robbery – Section 386 (1) (2) (a)(b)(c) Criminal Code Act Chapter 264 – Assault Occasioning Bodily Harm – Section 340 Criminal Code Act Chapter 264 – whether evidence is sufficient to commit defendant to stand trial in the National Court – Evidence Sufficient to warrant committal to National Court

PNG Cases Cited
Regina v McEachern [1967-68] PNGLR 48

Overseas Cases

References

Legislation
Criminal Code Act Chapter 264

Counsel
Kilip R, for the Informant
Defendants in Person

05^th October 2022

1. O Ore, Magistrate: Both Defendants in this matter are co-accused’s and have been charged for one count of Armed Robbery under Section 386 (1)(2) (a)(b)(c) of the Criminal Code Act Chapter 264 and one count of Assault Occasioning Bodily Harm under section 340 of the Criminal Code Act Chapter 264.
   
2. This is my decision after submissions were made by respective parties on sufficiency of evidence.
   

FACTS

3. The following are the summary of facts alleged by police to have taken place.
   
4. It is alleged that on the 19^th of February 2022 between 7:30pm to 9:30pm in the evening, the Defendants including several others were at Taurama New Block settlement (Bogi Valley) Port Moresby NCD. Also, around the same time, the victim and his family (wife and two children) were spending their weekend at his step-mothers residence situated next to the main road at the same area.
   
5. Whilst there, the victim heard a group of male suspects arguing and swearing on the main road. Being a Police Officer, the Victim called out to stop at the same time making it known to them that he was a Police Officer. Someone from the group picked up a stone and threw it at the victim missing him and landing between the victim and his wife. The victim seeing this, pulled out his police issued firearm and fired a warning shot to disperse the group of men.
   
6. The group of men ran away and regrouped after a few minutes and came back armed with bush knives, sticks and stones. They started throwing the sticks and stones towards the victim’s house where himself and his family were. Seeing this, he feared for his wife and children’s safety and quickly took them to the back of the house where they hid.
   
7. Whilst the sticks, stones and objects were hitting the house, the victim realised that he had endangered his family’s life so he hid the pistol, walked out and surrendered himself leaving his wife and children who were traumatized. As he was walking towards that main gate where there was solar light, he could see the Defendant Gibson Nablup a community leader armed with a long bush knife and was in the company of several other armed suspects including the co-accused Henry Labeli.
   
8. There, Gibson Nablup began to question him about the pistol at the same slapping him with the bush knife using its flat side repeatedly on his back and across his back. The victim attempted to remove the bush knife from Gibson Nablup and that was when he was attacked by other suspects who aided Gibson Nablup to attack him. Amongst those suspects was Henry Labeli who hit the victim on his head several times with a stick and the other suspects continued punching him and they dragged him out of his step mother’s residence. The beating and ordeal continued for almost 30 minutes and the suspects left leaving him bleeding with injuries all over his body.
   
9. During the course of the beating, several properties belonging to the victim and his relatives that were inside their house was stolen. They included a wallet containing K100 cash, small black JBL Boom box and a Dell laptop worth K4000.
   
10. The next day Police responded and went to the scene and apprehended the two Defendants now before the Court whilst the rest of the suspects ran away. Both Defendants were formally arrested and charged.
    

ISSUE

11. Whether, the evidence in the Police Hand-up Brief is sufficient to commit the Defendant to stand trial in the National Court, for the commission of the alleged offence.
    

RELEVANT LAW

12. Section 95 of the District Court Act provides this Court with the necessary powers to consider whether a prima facie case exits. It states:
    

“95. COURT TO CONSIDER WHETHER PRIMA FACIE CASE.

(1) Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.

(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division.”

Offending Provisions – Armed Robbery

13. Section 386 (1)(2) (a)(b)(c) of the Criminal Code Act provides for the offence of armed robbery.

“^[1]386. The offence of robbery.
(1) A person who commits robbery is guilty of a crime.
^[2]

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.
(2) If a person charged with an offence against Subsection (1)—

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,
^[3]

he is liable to be sentenced to death.”

Assault Occasioning Bodily harm

14. For the second charge of Assault Occasioning bodily harm, Section 340 of the Criminal Code Act provides as follows:
    

“340. Assaults occasioning bodily harm.

(1) A person who unlawfully assaults another and by doing so does him bodily harm is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.”

15. The standard of proof required when assessing the evidence by the police is one that is lower than beyond reasonable doubt. See Regina v McEachern [1967-68] PNGLR 48
    

EVIDENCE

16. The evidence contained in the PHUB comprises of:
    
    1. Statement of 13 witnesses
    2. Record of Interview of both Defendants
    100. 14 Exhibits
    4. 1 Crime Report
    5. Other supporting documents which can be identified in the Court file Content
       

PROSECUTIONS CASE

17. On submissions, Madam Prosecutor Kilip asked the Court to look at the Police Hand Up brief and make a ruling. Such a submission is too general. It would have made much more sense if Madam Prosecutor had just simply submitted that evidence was sufficient to warrant a committal rather than live it to the Court to decide.
    

DEFENDANT’S CASE

18. Both Defendants have prepared a written submission and both chose to rely on it. In their submission, they basically questioned the authenticity and credibility of the prosecution’s witnesses. On the charge of Armed Robbery, they raised the Defence of Identification saying that none of the prosecution’s witnesses have identified them as the persons who stole the properties that were alleged to have been stolen. All in all, they basically say that the evidence is insufficient to warrant their committal to stand trial in the National Court.
    

CONSIDERATION OF EVIDENCE BY THE POLICE AND FINDINGS

19. My review of the PHUB indicates that process under Sections 94, 94A, 94B AND 94C of the District Court Act have been properly administered. All statements and evidence taken and collated have been done properly and are properly before the Court.
    
20. In regards to the issue on sufficiency of evidence, I find that there is sufficient evidence to warrant a committal of the Defendants to stand trial at the National Court for both counts of Armed Robbery and Assault Occasioning Bodily Harm.
    
21. Having assessed the evidence by the Police, I find that there is prima facie sufficient evidence putting the Defendants at the scene of the crime. Both Defendant’s in their submission did not dispute the fact that they were both at the crime scene. For the offence of Assault Occasion bodily harm, multiple witnesses including the victim clearly saw the Defendants attacking him. If there is any doubt to this, it can be addressed in the trial Court.
    
22. For the charge of Armed Robbery, evidence shows that they were at the crime scene when the offence took place. They can be seen as principal offenders. Section 7 of the Criminal Code Act Principal Offender provision applies. Again, any doubts or Defences raised is a matter for the trial Court to determine.
    

COURT ORDERS

23. I make the following orders;
    
    1. There is sufficient evidence warranting the committal of Gibson Nablup to the National Court for one count of Armed Robbery under Section 386 (1)(2)(a)(b)(c) of the Criminal Code Act Chapter 264.
       
    2. There is sufficient evidence warranting the committal of Gibson Nablup to the National Court for one count of Assault Occasioning Bodily Harm under Section 340 of the Criminal Code Act Chapter 264.
       
    100. There is sufficient evidence warranting the committal of Henry Labeli to the National Court for one count of Armed Robbery under Section 386 (1)(2)(a)(b)(c) of the Criminal Code Act Chapter 264.
         
    4. There is sufficient evidence warranting the committal of Henry Labeli to the National Court for one count of Assault Occasioning Bodily Harm under Section 340 of the Criminal Code Act Chapter 264.
       

Lawyer for the Informant Police Prosecutions
Lawyer for the Defendant: In person

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^[1] Amended by Act No. 29 of 1983, s5.

^[2] The penalty provision of Section 386(1) was repealed and replaced by the Criminal Code (Amendment No. 2) Act 1986 (No. 17 of 1986), s20(a).

^[3] Section 386(2)

• amended by the Criminal Code (Amendment No. 2) Act 1986 (No. 17 of 1986), s20(b). Note that the amending section mistakenly referred to "not exceeding life imprisonment" instead of "up to life".
• amended by Criminal Code (Amendment) Act 2013 (No. 6 of 2013), s7.