Ako v Beto [2022] PGDC 13; DC8011 (8 February 2022)

DC8011

Papua New Guinea

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

COM NO 1460 OF 2020
CB 4214 OF 2020

BETWEEN:

VERONICA AKO
[Informant]

AND:

LEWIS DANNY LEVI BETO
[Defendant]

Waigani: Paul Puri Nii

8^th February 2022

COMMITTAL PROCEEDINGS: -Charges- Arson -Section 436(a)-Damaged Property-444(1)- of the Criminal Code Act 1974, Chapter No. 262. Court’s assessment on evidence to ascertain whether Police supplied prima facie practical evidence sustaining all the elements of the charge to commit the Defendant.

PRACTICE AND PROCESS: Legitimate responsibility for prima facie Case-Establishment of the fundamentals of charges–Witness statements. Evidence is lacking- All statements are not intact. Evidence is insufficient.

PNG Cases cited:

Police –v- Dunamis [2021] PGDC 121; DC6067
Akia –v- Francis [2016] PGNC 335; N6555
Police –v- Medako [2021] PGDC 54; DC6011
Police –v- Koka [2021] PGDC 53; DC6010

Overseas cases cited:
Nil

References

Legislation

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

Counsel

Police Prosecutor Joseph Sangam For the Informant
In person Lewis Danny Levi Beto For the Defendant

RULING ON COMMITTAL

08^th February 2022

INTRODUCTION

NII, P. Paul Magistrate. This is my decision on whether a prima facie case is appropriately confirmed within the submission of Section 95 of the District Court Act 1963, after the police file is considered. I have carefully deliberated on both arguments and now is my ruling on evidence.

FACTS

1. Police information says Defendant is aged 39 years and from Mambisanda village of Wapanamanda District in Enga Province. Police information reads “Defendant between 2^nd and 3^rd November 2020 at Gerehu stage 2, Vakai street in NCD had unlawfully damaged property namely vehicle, two windscreens (front and back), 2 window glasses, lights (indicators) headlamps total valued at K14, 624.00, the property of Danny Tanda Kopio. Police then arrested the Defendant for the charges of Arson under Section 436(a) and Damaged Property under Section 444(1) of the criminal Code Act and Defendant is now appearing from bail.
   

CHARGE

2. Defendant is charged with one count each of Arson under Section 436(a) and Damaged Property under Section 444(1) of the Criminal Code Act 1974, Chapter No. 262. The charge against the Defendant is illuminated in the subsequent style:

“436. Arson.

A person who wilfully and unlawfully sets fire to–

(a) a building or structure, whether completed or not; or

is guilty of a crime. Penalty: Subject to Section 19, imprisonment for life”.

“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.

Penalty: If no other punishment is provided by this section–imprisonment for a term not exceeding two years.”

ISSUE

3. Whether evidence in the Police file is sufficient to Commit the Defendant.
   

THE LAW

Jurisdiction of the Committal court

4. Sections 94-100 of the District Court Act 1963, requires Committal Court to decide on police evidence. The court in Police –v- Dunamis [2021] PGDC 121; DC 6067, obviously stretches weight to Section 94-100 of the District Court Act. The court in Akia v Francis [2016] PGNC 335; N6555, also says the occupation of Committal court is to assess police evidence and make a decision.
   

ELEMENTS OF THE OFFENCE

5. Police evidence must please the elements of the allegation in order to instigate a prima facie case against the Defendant. The principles in Police –v- Medako [2021] PGDC 54; DC6011 supports the above significance of the elements of the offence. The court demonstrates that police must inaugurate the elements of the appropriate charge compatible with evidence to carry a case against the Defendant. This obligation rests with Prosecution to prove this.
   

Elements of Arosn under Section 436(a) of the Criminal Code Act

a) A person

b) who wilfully and unlawfully

c) sets fire to a building or

d) structure, whether completed or not.

Elements of Damaged Property under Section 444(1) of the Criminal Code Act

a) A person

b) who wilfully and unlawfully

c) destroys or damages any property

EVIDENCE

6. Police evidence shows a major character in the organization of criminal ensuing. An indictment is a mere contention unless corroborated with evidence. The principles in Police v Koka [2021] PGDC 53; DC6010, has preserved this locus by further emphasizing as I (quoted) .....
   

.....“An allegation will only be proven through evidence since it is the accessible body of facts or material designating whether the allegation against the Defendant is proper or made-up” ....(end of quote)

7. Police file encompassing witness statements must sensibly link all the elements of the professed crime to the evidence to corroborate the evidence and indictment.
   

POLICE CASE

8. Prosecution case is apprehended in the police file. It incorporates witness declarations, proclamations from Police, Complainant/Victim testimonies’ and other textual suggestions such as exhibitions which are part of the police file.
   

Prosecution evidence in brief:

No	Name	Particulars	Statements
1	Danny Tanda Kopio,	Complainant	Complainant stated in his statement to police dated 23rd November 2019 that Defendant and two others burnt and damaged his property.
2	Nuta Maio	Witness	This witness says she was threatened by the Defendant to move out of her house. She Also says a female tenant’s babysitter messaged her on FB by informing her that her house was on fire. Witness says Defendant is the man to be blamed.
3	Eunice William	Witness	This witness says he saw two men communicating in the Enga language and ran straight to the Complainants car. Witness says later the Defendant came and told her to leave the property
4	Lionel Rich	Witness	This witness says he resides at Morauta 1 but on the date of allegation he received a phone call from the victim informing him about the destruction done on his property. Witness says later he went to the property and witnessed the Defendant standing and directing a backhoe driver to demolish the Complainant’s property.
5	Peter Larson	Witness	Witness says he saw Defendant standing on the ground and directing the backhoe driver to demolish the Complainant’s house and thus the house was demolished.
6	David Komba	Witness	This witness says he arrived at the allegation scene and though Defendant intervened in a problem which he was initially not a party to and thus caused destruction to the Complainant’s property.
7	SAMUEL Koe	Police witness	This witness says he is a crimes scene photographer with Police and on 23rd November 2020 he was informed of an allegation of arson and damaged property at Gerehu stage 2 and got photos of the damaged done on the property
8	Nick Tangele	Police Corroborator	This witness was with the arresting officer at the time when the Defendant was interrogated
9	Veronica Ako	Arresting Officer	The police officer/case informant who conducted the ROI

DEFENSE CASE

9. On 23^rd December 2021, Defendant disputed the police evidence by basing his argument on a submissions filed dated 23^rd December 2022. Defendant denied the allegation against him but he says on ROI that other people were involved in the ARSON and Destructing to Property and not him. However, the Police prosecutor argued that although Defendant did not directly commit the offence as alleged he should be committed under Section 7 of the Criminal Code Act since he had indirectly participated in the allegation by directing the backhoe driver to demolish the property.
   

CONSIDERATION OF EVIDENCE

10. Evidence provided to the court shows there was damage and arson to a property at Geregu stage 2, Vakari street, NCD on the 2 and 3^rd November 2020. Evidence shows both the Defendant and the Complainant had their properties erected on the same piece of land and they were residing. Police report also says the Complainant was on the date of allegation was alleged by some relatives of the Defendant and Complainant that he was involved in an allegation of Rape involving his brother’s wife and thus was chased by the alleged rape victim’s relatives in an attempt to have him injured but Compliant managed to run away. Moreover, evidence shows it was from that frustrations about the alleged rape incident had led to the damage and arson of the Complaint’s property by the rape victim’s relatives.
    

RULING

a) Allegation of Arson

11. I have read the entire police file but they have not touched anything about arson except the Complainant’s statements. The Complainant at paragraph 9 of his statement to police says he was informed by her wife that a tenant had called her wife and informed her about arson which was later conveyed to the Complainant. Moreover, the statement of David Komba says he realized Defendant had damaged and burnt the victim’s property. The other state witnesses have not mentioned anything about arson but destruction to property.
    
12. Complainant says he was informed by her wife which she also heard from another person while witness David Komba says he understood that Defendant allegedly burnt down the Complainant’s house. Moreover, the evidence of Eunice William says she was informed by the Defendant’s wife that they would burnt the Complainant’s house but this witness did not see the Defendant burnt down the house but only heard from the Defendant’s wife.
    
13. I have noted all this evidence is hearsay and not direct. They have not seen the Defendant burning down the house but heard and assumed Defendant could have burnt down the house because of the previous allegation against the complainant of rape and also from what they heard. Witness evidence is not corroborating to the allegation and Complainant’s statements in respect to the offence of arson. Evidence must satisfy the elements of allegation of arson that Defendant must be identified to be the person who willfully and unlawfully sets fire to the house property of the Complainant. in the absence of such, the allegation of Arson under Section 436(a) of the Criminal Code Act is Dismissed.
    

b) Allegation of Damaged Property.

14. Complainant says two men named Johny Waia and Kevin Kiap went to his property and started damaging the property. Complainant said Defendant joined the two men and they started damaging his property. Compliant says the Defendant said words to the effect “stupid man let them smash the vehicle and set fire” by referring to the Complainant and his property. The statement of Lionel Rich is appropriate here since he was informed of what had happened by the Complainant and immediately on 3/11/2020 he was at the Complainant’s property and witnessed the Defendant directing the backhoe to damage the Complainant’s property. The evidence of Larson Peter corroborates to witness Lionel Rich that Defendant directed the backhoe driver to damage the Complainant’s property. Witness David Komba’s statement is not helpful here since he says he implied/assumed Defendant must have intervened in the allegation of rape involving the Complainant and John Waia by destructing the Complainant’s property. The other police statements are not relevant as they only attended to the allegation after being reported, they did not witness the allegation.
    
15. The key word in the allegation is Defendant instructed and controlled the backhoe driver to damage the Complainant’s property. Would the Defendant be committed for commanding and directing the backhoe driver than actually damaging the property himself? The Law under Section 444(1) of the Criminal Code Act provides the following elements:
    

i. A person
ii. who wilfully and unlawfully
iii. destroys or damages any property

16. With consistent to the law, Defendant was identified to be the person who was at the scene, nonetheless there is no evidence of the Defendant’s direct participation that he had willfully and unlawfully destroyed or damaged the Complainant’s property. The offending Law here does not extend criminal responsibility to someone/persons who controls or directs some to do the act. The Law says the person of interest (being the alleged perpetrator) should/would be the person allegedly committing the crime, not directing or commanding. Thus, the Law does not appropriately capture the Defendant’s alleged conducts as indicated by state witness and thus this allegation is dismissed.
    
17. Moreover, the Criminal accountability of Section 7 of the Criminal Code Act is not pertinent here since the backhoe driver is not a co accused or a person of interest but a person who was purportedly hired to do this job worth the money. If the backhoe driver was arrested and charged for the offence of destruction as a principal offender then the Defendant should have been held liable for adding, procuring and abetting the principal offender. In the absence of that the application under Section 7 of the CCA is not relevant here.
    
18. In the conclusion evidence failed to demonstrate Defendant had willfully and unlawfully destroyed Complainant’s property and thus the charge of Damaged property under Section 444(1) of the Criminal Code Act is Dismissed.

CONCLUSION

19. I have carefully considered the evidence and assessed all, however, police evidence have failed to make a prima facie case against the Defendant under Section 95(1) of the District Court Act and thus it is my ruling under Section 95(2) of the district Court Act that the allegations of Arson under Section 436( a) and Damaged property under Section 444(1) of the Criminal Code Act are Dismissed
    

ORDERS

20. My Final Orders
    
    1. Evidence is insufficient to commit the Defendant for the charges of Arson under Section 436(a) and Damaged Property under Section 444(1) of the Criminal Code Act.
       
    2. The two Information carrying the charges are dismissed.
       
    100. Defendant be discharged from custody and further bail obligations forthwith.
         
    4. Bail money be refunded to the Defendant forthwith.
       

In person For the defendant
Police Prosecutor For the State