Police v Dicka [2022] PGDC 21; DC8032 (22 February 2022)

DC8032

Papua New Guinea

In the District Court

Held at GOROKA

Sitting in its Committal Jurisdiction

Comm. Nos. 953,954 &955 of 2021

BETWEEN:
THE POLICE
Informant

AND:
ISSAC DICKA, DERICK SEHUKO & ILAI SEHUKO
Defendants

GOROKA: BGORE

2020/2021: 22^th SEPTEMBER, 8^th November 2021 &22^nd of February 2022

COMMITTAL PROCEEDINGS – Committal Ruling pursuant to Section 95 of the DCA - Phase One of the Committal process – One count of grievous bodily harm under section 319 of CC - Sufficiency of Evidence on all of the elements of the offences charged – Evidence is sufficient to make out a prima facie against the defendant

JUVENILE JUSTICE ACT S.17 & 20, Jurisdiction of Juvenile Court .Juvenile Court does not have the power to deal with homicide, rape or any other offences punishable by death or life imprisonment.

COMMITTAL PROCEEDINGS – Committal Ruling pursuant to 100 of the DCA – Phase Two of the Committal Process - Section 96 administered – ROI contains admissions– Ruling on Sufficiency of Evidence under section 95 is intact – Defendant is committed to stand trial in the National Court on three counts of arson under s.436(a) of the Criminal Code Act
Cases cited
Akia v Francis PGNC 335; N6555
Maladina v Principal District Magistrate Posain Poloh [2004] PGNC 208
R-v- McEachern [1967-68] PNGLR 48
State v. Kai Wabu [1994] PNGLR 94
State v Kepo [2019] PGNC 74; N7807 (23^rd April 2019)
State v Oba [2016] PGNC 89
Yarume v Euga [1996] PGNC 24; N1476

Overseas Case
R v Austin Yam Unrep. Crim Appeal Case No 33 of 1994, Palmer J

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

Counsel
Police Prosecutor: Sergeant Warkia -For the Informant
Defendants appeared in person

RULING ON SUFFICIENCY OF EVIDENCE AND COMMITTAL

2021: 8^th of November

1. Introduction
   

This is a ruling on whether a prima facie case is made out within the meaning of Section 95 (1) of the District Courts Act (DCA) where all the evidence of the Prosecution is received in the form of a Police Hand Up Brief (PHUB) and the Court is required to consider whether it is sufficient to put the defendants on trial.

The ruling also considers the administration of sections 96 and a final determination under section 100 of the DCA which completes the committal process.

2. Charge(s)
   

All three accused (juvenile) stands charged with three counts of arson pursuant to section 436(a) of Criminal Code Act:

Count 1:‘On the 12^th day of January 2021 at Zogu Village,Goroka,did each and severally unlawfully set fire to a permanent building valued at K100,000.00,the property of Gipene Pirehu” thereby contravening s.436(a) of the Criminal Code Act’.

Count 2: On the 12^th day of January 2021 at Zogu Village,Goroka,did each and severally unlawfully set fire to a permanent school building valued at K50,000.00,the property of Education Department,thereby contravening s.436(a) of the Criminal Code Act’

Count 3: On the 12^th day of January 2021 at Zogu Village,Goroka,did each and severally unlawfully set fire to a permanent building valued at K115,000.00,the property of Gipene Pirehu” thereby contravening s.436(a) of the Criminal Code Act’

3. Facts
   

All three (juvenile) accused and the complainants come from the same Zogu Village in Goroka, EHP. On the 1^st of January 2021 after new year celebration, some suspects from the accused team attacked one Mastako Lusaro with a bush knife injuring his head, the victim escaped into the nearby bushes, the accused and his team then went into Lino Lusaka house asking for whereabouts of the victim Mastako. Having seen all the accused and their team under the influence of liquor and were armed, Lino Lusaka escaped into Gipere Pirenhu’s house. The accused and their team went there asking for whereabouts of Lino again and started damaging Gipere’s properties, that includes spot light, poultry house and they cut down garden crops and killed farm animals.

In fear of being killed, Girepe, his wife and others escaped leaving their house to them. The accused persons then shouted to their mob to burn down Gipere’s and Lino’s house, upon hearing that; the other members of the team burnt down Gipere’s house with everything inside.

They then went to Gavehumito Elementary school area which is few meters away from Gipere’s house and burnt down the classroom building with all its contents of school materials supplied by AT Project. Within the same vicinity, they also burnt Mastako Lusaro’s permanent house with two other houses with everything inside.

On the 5^th of Januarys 2021 at about 2pm, the accused and their team mobilized and burnt down Gipere Pirenhu’s poultry house and his other permanent house built under SMU Village Housing Project.

Police case is one based on direct and circumstantial evidence alleging defendant had unlawfully set fire to the complainants’ properties.

4. Issue
   

4.1 Jurisdiction of Juvenile Courts.

The defendants in this case are all juvenile, under the age of 18 therefore it is important to state at the outset whether or not this court has the power to deal with the matter or commit them to the national court.

Below are the two important provisions that explicitly set out the road map for us to follow when we dealing with cases involving juvenile.

S.17^[1]. GENERAL JURISDICTION OF JUVENILE COURTS.

(1) A Juvenile Court has exclusive jurisdiction in the area for which it is established in respect of a juvenile (a) to hear and determine summarily an offence punishable on summary conviction and otherwise triable in a District Court; and (b) subject to Subsections (2) and (3), if the juvenile is charged with an indictable offence, to hear and determine the charge summarily in accordance with the provisions of this Act.
(2) Subsection (!)(£) does not apply to homicide, rape or any other offence punishable by death or imprisonment for life.
(3) Proceedings for an offence under Section (!)(£) must be heard and determined by a Juvenile Court constituted by a Juvenile Court Magistrate.
(4) To avoid any doubt, and despite any other Act or law, a Juvenile Court has exclusive jurisdiction to hear and determine summarily, proceedings for an offence under Subsection way of information, without the need for election by the prosecuting authority.

S.20 EXERCISE OF JURISDICTION BY NATIONAL COURT.

(1) If a juvenile is charged with homicide, rape or other offence punishable by death or imprisonment for life (a) the Juvenile Court shall deal with the committal proceedings; and (b) the National Court shall hear and determine the trial.
(2) If proceedings are brought in respect of two indictable offences of which (a) one offence is an indictable offence to which Subsection (1) applies; and (b) the other offence is an indictable offence to which Subsection (1) does not apply, both offences shall proceed on indictment, and the National Court shall hear and determine both offences together.
(3) When exercising jurisdiction under this section, the National Court shall, so far as is practicable, sit and conduct proceedings in accordance with this Act.
The issue before this court is whether a prima facie case is made out and that is whether the evidence received from the prosecution is sufficient to warrant the committal of the defendant to stand trial at the National Court.

By virtue of the above provisions, this case involve three charges of arson which carry maximum penalty of life imprisonment therefore this matter will be with at the national court should there be prima facie evidence.

4.2 prima facie evidence

The next issue is whether there is prima facie sufficient evidence on each of the elements of all the three offences and whether the witnesses’ statements are admissible.

5. The Law
   

The Law on Committal Proceedings

Part VI of the District Courts Act (DCA) provides the legal basis for committal proceedings specifically under Section 94 to Section 100 of the DCA.

The Committal Process whilst requiring the Court to make a finding on the evidence presented by the Police, this process is very administrative in that the Court need only to form an opinion that there is a bona fide prima facie case against the Defendant; as per Akia v Francis ^[2]and R-v- McEachern^[3].

In the matter of Maladina v Principal District Magistrate Posain Poloh ^[4] His Honour Injia DCJ (as he then was); expressed in his opinion that the Committal process involves two phases, the first is when the committing magistrate makes a finding on whether or not there is sufficient evidence and whether a prima facie case is made out under Section 95 of the DCA on whether to discharge or commit the defendant only after the Court administers an examination of a defendant under Section 96 where the defendant is asked whether he desires to give evidence.

Furthermore, in the case of Yarume v Euga ^[5]the National Court said in respect to committal hearings that the process of committal requires proper and reasonable assessment of the evidence with a view to see whether all the elements or ingredients of the offence is present before he can commit the accused; Section 94B, 94C, 95 and 100 to be read together.

6. Evidence In Written Statement

Section 94C requirements in the committal process must be fulfilled and is in the following terms:

7. S.94C. Regard to Evidence, Etc.

(1) When conducting a committal hearing under this Part, the Court may, subject to Subsection (2), have regard to–

(a) the evidence contained in a written statement; and
(b) documents and exhibits,

of which a copy has been served on the defendant under Section 94(1) or made available for inspection under Section 94(2).

(2) Before admitting a written statement, the Court shall be satisfied that the person who made the statement had read and understood it, or if unable to read, had had it read to him in a language that he understood.

The case precedent on this principle of law in relation to written statements is in the case of The State v. Kai Wabu^[6] . In Kai Wabu (supra) the court held that the combined effect of ss 94 (1A) and 94C (2) of the District Courts Act is that the committal Court must conduct an enquiry to ensure that the makers of statements had full knowledge of the contents, correctness, and truth of written statements they are responsible for signing. This requirement is mandatory and requires strict compliance. This enquiry is an independent one, which the Court must conduct in the exercise of its judicial function. The court further stated that after having conducted the enquiry, the Court has discretion to admit or reject the written statement. The Court must then record the nature and extent of the enquiry conducted and records its findings. A failure to conduct such enquiry and record its finding may result in voiding the committal.

7. The law on the offending provision(s)

S.436. ARSON.
A person who wilfully and unlawfully sets fire to–
(a) a building or structure, whether completed or not; or
(b) a vessel, whether completed or not; or
(c) a stack of cultivated vegetable produce; or
(d) a stack of mineral or vegetable fuel; or
(e) a mine, or the workings, fittings or appliances of a mine; or
(f) an aircraft or motor vehicle,
is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

Elements of the Offences s.436(a)

1. A person who
2. Willfully and Unlawfully set fire
3. To a building or structure whether complete or incomplete
   
8. Prosecution Case

To support its case, the Prosecution produced eight (8) witness statements. The statements are from: the complainants namely: Mastako Lusaro,Lino Lusaka,Gipene Pirenhu,Nowie Kelevi, Herosie Pirehu,Maureen Pirehu,Alio Lusaka,Lusaka Izeho, who gave eye witness account of the incident plus Enock Yabimo country Director for SMU Projects who will confirm building Gerepe’s House, Hemuli Atere who is head teacher for the Elementary School that was burnt will give evidence of material lost in the fire, Arthur Layton, Project Manager with AT Projects who will confirm installing water and sanitation at the burnt elementary school and cost of the materials and projects. Joe Mangre ,a senior investigator gave evidence of attending to crime scene and taking photographs of burnt houses plus statements arresting officer and corroborator.

9. Documentary Evidence

Police rely on the following documentary evidence:

1. Record of Interview for all three accused persons, Accused Issac Dicka and Derick Sehuko dated 21/01/2021 and Ilai Sehuko dated 25^th of January 2021 both Pidgin and English version, all containing admissions.
   
2. Letter from SMU Village Housing Project attaching quotations.
   
3. Quotation of materials plus the school building itself
   
4. Photographs of burnt houses.
   
5. Antecedent Report – Contains the personal particulars of the defendants and whether there are prior convictions. Not to be considered at this stage.
   

11.Defence Submissions

I have noted the defense verbal submission in full. They raise the defence of provocation under s. Section 267 Defence of Provocation

(1) A person is not criminally responsible for an assault committed on a person who gives him provocation for the assault; if he :-

• (a) is deprived by the provocation of the power of self-control; and
• (b) acts on it on the sudden and before there is time for his passion to cool,

if the force used is not disproportionate to the provocation, and is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2) Any question whether or not –

• (a) Any particular act or insult is likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered; or
• (b) In any particular case, the person provoked was actually deprived by the provocation of the power of self-control; or
• (c) Any force used is disproportionate to the provocation,

is a question of fact.

Thus the elements of the defence of provocation are set out per sub-section 267(1) of the Criminal Code, which the Defendants must establish for the benefit of his defence.

The elements are set out as follows;

“A person who is charged with an offence is not criminally responsible for the assault committed on a person who gives him provocation for the assault, provided that the person charged;

(1) Is deprived by the provocation on the sudden; and
(2) He acts on the provocation on the sudden; and
(3) Before there is time for his passion to cool; and
(4) Provided that the force used by the person charged is not disproportionate to the provocation; and
(5) Is not intended to cause death or grievous bodily harm; and
(6) The force used is not likely to cause death or grievous bodily harm. “

The prosecution then has the onus to negative the elements of the defence of provocation and establish that the assault was unlawful. In the case of State v Yangidao [1980[ N278, the onus is on the prosecution to negative the defence of provocation, when there is sufficient evidence to raise the defence of provocation,however those are matters for trial proper.
12. Prosecutions Submissions

I have noted the prosecution verbal submission. Their submissions can be summarized as follows:

1. There are admissions in the ROI
   
2. The statements of witnesses are admissible having complied with section 94C of the DCA and the principles in Kai Wabu’s case.
   
3. There is sufficient prima facie evidence on the three charges.
   

13. Court’s Assessment of the Evidence in the light of the Law

The statements of witnesses are admissible having complied with section 94C of the DCA and the principles in Kai Wabu’s case.

On prima facie assessment of the elements of these charges, there is sufficient prima facie direct evidence to show that the accused had in fact each and severally willfully and without lawful excuse committed the offence of arson against the complainants.

Turning to the defence of provocation raised by the defence, the defendant did not act in a heat of a moment but those are matters for trial proper.

14. Findings

On the basis of the above analysis, this court as a result of the performance of its committal function as an investigator into the strength of the case being mounted by prosecution and not as an adjudicator, has assessed the evidence in totality and makes the final finding that there is sufficient evidence on the essential elements of the charge of arson.

The court accepts that the witness statements comply with s94 of the DCA and the principle enunciated in the case of Kai Wabu.

I find sufficient evidence to make out a prima facie case that the defendants did commit the alleged offence consequently; I form a bona fide opinion against the defendants that there is sufficient case against defendants in order to commit each of them to stand trial on the charge of Arson pursuant to s.436 (a) of the CCA.

15. Administration of Section 96 of the DCA

Section 96 of the DCA was explained to the defendants. They all chose to remain silent:

The court had considered the defendant’s section 96 and rule as follows:

1. Any possible defence is a matter for trial proper.
   
2. The ruling on sufficiency of evidence is intact.
   

Final Orders

I make the following orders:

1. There is sufficient evidence to commit the defendants to stand trial at the Goroka National Court on three counts of arson under 436(a) of CCA
3. The defendants shall appear at the Goroka National Court, first crimes call over of April 2022 on at 9:30am.
4. Their bail is extended on same conditions until their appearance at crimes call over at the National Court.
   

Police Prosecution: For the Informant

Pubic prosecutors for the Defendants

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^[1] Juvenile Justice Act 2014
^[2] [2016] PGNC 335; N6555
^[3] [1967-68] PNGLR 48
^[4] [2004] PGNC 208
^[5] [1996] PGNC 24; N1476
^[6] [1994] PNGLR 94 (Injia, J.)