Pii v Anton [2022] PGDC 26; DC8037 (22 February 2022)

DC8037

Papua New Guinea

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

NCC NO 751 OF 2021
CB NO 1389 OF 2021

BETWEEN:

JOHN PII
[Informant]

AND:

ROMAN ANTON
[Defendant]

His worship -Paul Puri Nii

22 February 2022

COMMITTAL PROCEEDINGS: -Charge- Grievous Bodily Harm -Section 319- of the Criminal Code Act 1974(Chapter No. 262). Prosecution to provide prima facie acceptable evidence amplification to the elements of the allegation to have the Defendant committed.

EVIDENCE: Legal obligation for prima facie matter-Establishment of the charge of Grievous Bodily Harm– Elements of Grievous Bodily Harm are not met.

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)
Anton v Chea [2021]PGDC 103; DC6056(22 July 2021)

Overseas cases cited:

Nil

References

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

Counsel
Police Prosecutor: Sgt Chris Iga For the Informant
Roman Anton, In person For the Defendant

DECISION ON POLICE EVIDENCE

22^th February 2022

INTRODUCTION

NII, Paul Magistrate. Decision on whether a prima facie case is correctly recognized within the meaning of Section 95 of the District Court Act 1963. The decision is reached after Police evidence in the Police Hand Up brief and Defense case are carefully measured. Defendant argues evidence is insufficient to commit him while Police maintains evidence is sufficient to commit the Defendant and therefore in the subsequent lines is now my decision on police evidence.

CHARGE

1. The accused is charged with Grievous Bodily Harm Overstepping Section 319 of the Criminal Code Act 1974, Chapter No. 262.
   

FACTS

2. Police summary of facts reads on 22^nd April 2021 at around 7am, the Defendant was at NHC compound at Konedobu, NCD. Police identified the Defendant as aged 30 years and of Mapumanda of Laiagam District in Enga Province who was at the time of offence was a policeman in the RPNGC serving at Gerehu Station.
   
3. Police allege that Defendant was at the time drunk and mobilized his tribesmen and entered the dwelling home of the Complainant and started attacking him. Police maintained that the accused swung an iron bar towards the Complainant’s nose by hitting him right on the nose causing it to bleed profoundly. The Defendant and his tribesman started attacking anyone and damaged properties inside the
   
4. . Subsequently the Complainant escaped and sought medical attention where it was confirmed that his nose was fractured and disfigured. The matter was subsequently reported to Police and thus Defendant was arrested and charged under Section 319 of the Criminal Code Act 1974(Chapter No. 262) for the allegation of Grievous Bodily Harm.
   

ISSUE

5. Whether a prima facie case is sensibly time-honored and that is whether Police evidence is sufficient to make a case against the Defendant.
   

THE LAW

The Law on Committal Proceedings

6. Sections 94-100 of the District Court Act 1963, provides the dependable foundation on how to administer committal ruling and in doing so the court should be guided well with evidence meeting the elements of the offence to make a prima facie case against the Defendant. The court in Police v Kambian[i] adapted the principles in Akia –v- Francis[ii] where it labels the committal hearing as “is an administrative process” where evidence in the police file is assessed to make sure there is sufficient evidence matching each and all the elements of the allegation. Although the court consider the functions of committal court as an administrative process, under Section 95 of the District Court Act with consistent to the case of Yarume –v- Euga[iii] I will go through each statements provided in the police file and asses all of them to determine where a prima facie case is established against the Defendant.
   

ELEMENTS OF THE OFFENCE

7. In the matter of Police v Medako[iv] I ruled that police must demonstrate with reliable evidence the elements of the allegation. In this case, Police must meet the elements of the charge of Grievous Bodily Harm. The following are the element of the charge:
   

319. Grievous Bodily Harm.

(1) A person

(2) who unlawfully

(3) does grievous bodily harm

(4) to another person

EVIDENCE

8. Police evidence plays a domineering part in the direction of criminal justice to ensure an unprejudiced conclusion is reached. Evidence encircled in the Police Hand Up brief served on the Defendant should appreciate the elements of the charge against the Defendant. Prosecution case must show the allegation and this is the attitude in the case of Police v Koka[v].
   

PROSECUTION CASE

9. Police Prosecutor Sergeant Chris Iga submitted in support of the police evidence that there is prima facie sufficient evidence against the Defendant to commit him for the offence of Grievous Bodily harm.
   

Police evidence

1. Steven EKERAM – this witness is the victim and he says on 22^nd April 2021 at around 7am, he was at his cousin sister’s house at NHC compound at Konedobu when he was allegedly attacked by the Defendant and his relatives. He says Defendant was drunk and was in civilian and attacked him with an iron bar thus fractured his nose and was bleeding heavily. Witness says he was attacked by the Defendant for reasons known to himself.
   
2. Masep Piokole-this witness says he was at the place of allegation when a group of men went and attacked him. He says there were about 30 men who swore at him and were very violent. Witness says Defendant ordered the assault on him and others.
   
3. Kenneth Kipuli- this witness says a group of men believed to be the Defendant’s relatives went and attacked him. Witness says they were all armed and stole his mobile phone and other properties. Witness says the Defendant and his relatives attacked the victim.
   
4. Susan Kipuli-this witness says she was also attacked by the Defendant after she asked the Defendant why he brought police over to her property.
   
5. Terry Apolos and John Pii- they are policemen who were involved in the arrest and corroboration of the Defendant.
   

Medical evidence

6. Dr Joseph Amos-Medical report dated 01-05-2021 confirming the extent of injuries sustained by the victim that he was subsequently treated and attended to.
   
7. Dr Posing Posanau- medical report dated 27^th April 2021 confirms that victim’s nasal bone was fractured with significant displacement.
   

DEFENSE CASE

10. Defence objected to the Police evidence on two grounds and these are the evidence itself and procedural defects.
    
11. Procedural Defects-Defendant says his rights under Section 42(2) of the Constitution was breached when the charge against him was not read to him. Defendant says the charge should be administered to him on the Record of Interview but this was not done.
    
12. Inconsistencies in the statements- Defendant says witness Susan Kupili’s statement is inconsistent as one in pidgin and another in English and there were conflicting dates as one being on 22^nd April 2021 and another on 23^rd April 2021 and thus Defendant argued for the information to be struck out as the date of allegation is prior to the date of incident itself.
    
13. Submission on the substantive allegation- Defendant says there were three different commotion involving three different dates. The First on 21^st April 2021 and second on 22^nd April 2021 while the last on 23^rd April 2021.
    
14. Defendant alleged that on 21^st April 2021 the Complainant was drinking alcohol with his relatives and thus there was a fight between him and some of his varying trouble tribes of Enga and hence he was wounded in that fight.
    
15. Defendant says the second incident happened when he called on Police to arrest people drinking alcohol. Defendant says witness Susan Kipuli argued with him for why he was contracting police and thus she was punched on the face by her son Kenneth Kipuli for causing nuisance.
    
16. The third incident was when the members and relatives of a deceased who mourn the loss of their loved one went and attacked the Compliant and his relatives for causing disrespect and disturbance while they were mourning.
    
17. Defendant denied the allegation that he was not involved in the allegation but was at Gerehu and thus shifted the blame to other people.
    

CONSIDERATION OF EVIDENCE

18. I have read through the Police evidence and found out that there was a brawl involving the victim and some men on 22^nd April 2021 at 7am at NHC compound at Konedobu. There is no issue that there was never a fight on date and is consistent with police evidence and Defence submission. There appears to be three different fights in which the victim was purportedly involved and also there is evidence that the Defendant appears to have been present in one of them. The issue is, did the Defendant involve in the fight that led to the victim being injured?
    

RULINGS

The Rights under Section 42(2) of the Constitution

42. Liberty of the Person

(2) A person who is arrested or detained-

a) Shall be informed promptly, in a language that he understands, of the reasons for his arrests of detention and of any charges against him.

19. The Law requires for a person who has been charged with an offence to be told of the reason for his arrest and the charge against him or her. In most cases, the enforcement of Section 42(2)(a) of the Constitution is administered through the Police Record of Interview. During police interrogation with the accused, the defendant is communicated in a language he understands the charge and the reason why he/she was arrested. This is the constitutional requirement and thus it must be administered.
    
20. At question 21 of the Defendant’s ROI, police informed the Defendant in a language that he understands (Tok pisin) why he was brought to the police station to be interrogated. I am satisfied the reason is stated in the ROI but not the charge itself. Would the information be dismissed for the reason that charge was not communicated to the Defendant? Charge and the reason for the arrest must be communicated to the Defendant. The law provides that one shall not take the place of the other but both shall be administered on the defendant. I note from the ROI the Defendant was told of the reason why he was taken to the police station but the charge was not communicated to the Defendant. Even though Defendant may know why he was arrested, the charge should be communicated to him during the ROI, however evidence shows that was not done.
    
21. My record shows Information containing the charge against the Defendant was laid on the 24^th May 2021 and ROI was conducted on the 14^th May 2021, so practically it means after when the Defendant was informed of the reason why he was taken in for questioning, he was later charged without informing him of the charge. Subsequently, I concur with the argument on Section 42(2) of the Constitution, that Defendant’s liberty was breached, thus charge was not communicated to the Defendant.
    

Issue under Section 94(1A) of the District Court Act

22. The Law requires that the maker of a statement must read through his or her statement and sign it off at the bottom to signify that the contents of the statements are their own. This is basically to avoid fake and counterfeit evidence. Evidence and statements brought to the court should be a trustworthy and authentic account of testimonies, not phony nor hearsay. The above principle is well captured in the case of Anton v Chea [2021] PGDC 103; DC 6056(22 July 2021)
    
23. I have measured the evidence of witness Susan Kipuili. It was first written in the pidgin language on 2 April 2021 and later translated to the English language. The pidgin version was signed by the witness and thus I would rule that the statement was from the maker who was the witness and thus the witness signed her own statement.
    

Defendant’s Denial of participation

24. Defendant denied the allegation that he was not present at the time of allegation. He says he was at Gerehu. The victim says on 22^nd April 2021 at around 7am he was hit by an iron bar on his nose by the Defendant. Statement of Masep Piokole says on 23^rd April 2021, his brother (referring to the victim) bleeding heavily on his nose and thus he says he saw the Defendant drunk and yelling at him. Statement of Kenneth Kipuli says on 22^nd April 2021 he was assaulted by a group of men and the cause of the attack was instigated by the Defendant. Statement of Susan Kipuili says she was assaulted on the 21^st April 2021 she was assaulted by the Defendant for questioning him why he was bringing police and subsequently received severe cuts on her face.
    
25. There were three different occasions of allegations against the Defendant, the first on 21^st April 2021 in which witness Susan Kipuli was injured and second on 22^nd April 2021 in which the victim was injured and lastly on 23^rd April 2021 in which Masep Piokole was assaulted and chased. Where was the Defendant on the 22^st April 2021, the date in which the victim was mounded? The four Sate witnesses are giving different dates of allegation. Evidence shows Defendant lives at Konedobo but works at Gerehu police station.
    
26. After assessing the evidence, Defendant did not deny that there was never a fight but despite there being a fight, he was not there. Evidence shows there were fights between the dates of 21^st April 2021, 22^nd April 2021 and 23^rd April 2021 allegedly involving the Defendant. Complainant alleges that he was assaulted by the Defendant on 22^nd April 2021. However, the evidence of Susan Kupuli says Defendant was seen on 21^st April 2021 while the evidence of Masep Piokele says on 23^rd April 2021 the victim was assaulted by the Defendant.
    
27. After reading through all the witness statements, they all have different dates. These dates do not correspond to the date of allegation mentioned by the Complainant. Support statements should corroborate the Complaint statement. All statements should be uniform by corresponding to the date of allegation, place, time, and facts. Nevertheless, this is not the same here. Evidence is not corresponding and thus there is no corroboration in the statement.
    
28. Given the above, it is my decision under Section 95(2) of the District Court Act that Defendant is identified to be the person who was at the scene of allegation at different dates but he did not unlawfully do grievous bodily harm against the victim.
    

CONCLUSION

29. Evidence is insufficient to make a prima facie case against the Defendant and thus evidence demonstrates Defendant between the dates of 21 April 2021 to 23^rd April 2021 did not unlawfully do grievous bodily harm against the victim and other state witnesses.
    

ORDERS

1. Evidence is insufficient to commit the Defendant.
   
2. Information of Grievous Bodily Harm under Section 319 of the Criminal Code Act is dismissed.
   

100. Defendant’s bail be refunded.
     

In person For the defendant
Police Prosecutor For the State

[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)