Agu v Kavi [2022] PGDC 42; DC8082 (18 May 2022)

DC8082

Papua New Guinea

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

NCC NO 1543-1544 OF 2021
CB NO 2892 OF 2021

BETWEEN:

BENNY AGU
[Informant]

AND:

MALI KAVI
[Defendants]

Waigani: Paul Puri Nii

18th May 2022

COMMITTAL PROCEEDINGS: Charges-Armed Robbery-Section 386(1)(2)(a)(b)(c)-Deprivation of Liberty-Section 355 and Abuse of Office-92(1)- of the Criminal Code Act. Witness statements- State evidence- not suitable formation of prima facie evidence -elements of the charges not persistent –Evidence are not equal- Defendant not committed to stand trial. Consideration of section 7 of the Criminal Code Act not relevant. Evidence of participation, aiding and assisting not available.

PRACTISE AND PROCEDURE: Calculation of evidence under Section 95 of the District Court Act. Defendant admitted that he was in the vehicle that was allegedly driven by other policeman but he was not involved in the allegation. Evidence of participation and aiding or supporting a crime to taken place is lacking.

PNG Cases cited:

NIL

Overseas cases cited:

NIL

REFERENCE

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

Counsel
Police Prosecutor: Chris Iga For the Informant
Defendant: Mali Kavi For the Defendant

COMMITTAL RULING

18^th May 2022

INTRODUCTION

NII, P. Paul Magistrate. Decision on committal under Section 95 of the District Court Act. On 23^rd March 2022, accused argued evidence is lacking to commit the defendant while police prosecutor asked the court to go through the police file and make a ruling.

CHARGE

1. Defendant is charged under Section 386(1)(2)(a)(b)(c) of the Criminal Code Act for Armed Robbery, Section 92(1) of the Criminal Code Act for Abuse of Office and Section 355(a) of the Criminal Code Act for Deprivation of Liberty. The particulars of the charges are publicized below:
   

“^[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 exceeding14 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.”

92. Abuse of office.

(1) A person employed in the Public Service who, in abuse of the authority of his office does, or directs to be done, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour.

“^[4]355. Deprivation of liberty.

A person who unlawfully—

(a) confines or detains another in any place against his will; or

(b) deprives another of his personal liberty,

is guilty of a misdemeanour.

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

BRIEF PARTICULARS

2. Police allege defendant is aged 30 years and of Auwi village of Koroba in the Hela Province who is a policeman who was on 7^th April 2021 was part of a group of policemen who were on duty and patrolling the Erima area on a ten sitter Toyota land cruiser. It was alleged that during their duty they had picked up the victims who were alleged of selling red nuts (betel nuts) and other goods near the road.
   
3. Police then allege that instead of having the victims taken to a nearby police station to be death with, were taken to a secluded location at the back of ATS and 7 mile and they were assaulted by members of the police and robbed their personal items including money. A complaint was subsequently lodged and the defendant now in court was arrested and charged by police for the allegations of abuse of office, deprivation of liberty and Armed robbery.
   

ISSUE

4. The examination of evidence in the police file is authoritative here and that is whether or not there is suitable evidence to commit the Defendant for the emphasis allegations.
   

THE LAW

5. There are numerous case laws both in the committal court and national court that evidently describes the function of committal courts as in so far as assessment of police evidence under Section 95 of the District Court Act is concern. The court will now rely on Section 95 of the District Court Act and make a ruling on police evidence. The issue law is petitioned below:

“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.”

ELEMENTS OF THE OFFENCE

6. This is a crucial part of the examination of police evidence. Police evidence in the police file must meet the elements of the allegations of Armed Robbery and Abuse of Office. The elements of the offences are the features to the allegation confined in the criminal Code Act that defines what the allegation is.
   

EVIDENCE

Police case

7. Police evidence is in the police file served on 17^th February 2022. It covers victims and witness statements including the ROI and photo exhibits.
   
8. List of state witness:
   

No	Name	Particulars	statements
1	Pendon Don	Complainant	Witness says he was assaulted and robbed by police on 7th April 2021. He says policeman came on a Toyota Land cruiser bearing registration number BFZ 002 and took him to an isolated location at the back of 7 mile where his personal items including betel nuts and cash money of K300 was robbed by policemen. This witness says he saw the defendant in the car watching but did not do anything.
2	Walton Tongope	Victim	This witness says he is the second victim and he was also assaulted and robbed by police. He says police robbed K370 from him. Witness says other police men attached him and not the defendant but defendant was in the vehicle.
3	Peter Andony and Alah Koma	Witnesses	These witnesses say they had witnessed the allegation of 7th April 2021. They say were at the same location as the victim when police came and took the victim away. Witness did not mention the defendant but say police came and took the victim away.
4	Joseph Numbos	Police forensic Science officer	Witness says he is the policeman who took photos of the scene where the victims were allegedly picked up by police and the allegation scene.
5	Leo Sten	Police Corroborator	He is the policeman who was with the arresting officer at the time when the defendant was interrogated.
6	Benny Agu	Arresting officer-	Police arresting officer who did the initial investigation including the ROI.

Defense case

9. Defendant though his submission filed on 23^rd March 2022 disputing police evidence says, he was part of the policemen who were on duty and manning the Erima area since it was a sanctioned operation. Defendant says he knew the victim Pendon Don and hence after when the victim was taken by police he did not says anything nor take part in the allegation against him. The defendant says when the victim was taken to 7 mile and subsequently assaulted and robbed; he was in the vehicle and did not take part nor says a word nor assisted in the allegation since he was known to the other victim.
   

DELIBERATION OF EVIDENCE

10. Evidence shows defendant was on duty on the 7^th April 2021 and he was travelling with a group of policemen who were also on duty and were manning over the Erima area until they came to the location where the victims were and they picked them up. Evidence shows the victims where taken to a location at the back of 7 mile where they were assaulted and robbed off their personal belongings including cash money. Defendant was at the scene where the offence took place but he did not participate in the allegation.
    

RULING

11. Defendant is identified and he also admits that he as there at the time of allegation but did not take part in the allegations. The evidence of victim Pendon Don says Defendant was identified because he was at the scene. This witness also says, defendant neither taken part nor assisted in the allegation but he was at the scene. The defendant is identified by the victim since defendant is know to the victim and thus defendant’s arguments that victim was known to him and hence he did not do nor say anything is corroborated. The other state witnesses are not identifying the defendant as the alleged perpetrator but say policemen came and assaulted the victims.
    
12. One of the victims says defendant was identified not because he took part in the allegation but because he is known to the victim while the other victim only says police robbed and assaulted him. The victim who identified the defendant says defendant was observing the victim being assaulted and robbed but did not do anything. Given no direct participation by the defendant in the allegations, should I commit the defendant under Section 7 of the Criminal Code Act for being at the scene and was with the policemen who caused the alleged assault and robbery?
    
13. Section 7 of the Criminal Code Act extends criminal burden to any person who assist, facilities, controls and aid someone to trigger any allegation as the principal offender although they may not openly participate. Would the defendant be committed under Section 7 of the criminal code Act since he was seen at the allegation scene? Seen at the allegation is not the same as assisting and facilitating someone to commit the crime. All police evidence including the victims says defendant did not participate in the allegation.
    
14. Therefore, evidence shows defendant was on duty with a group of policemen on 7^th April 2021 and was with those policeman conducting patrols around Erima area and they took the victims to a location at the back of 7 mile and the victims were allegedly robbed by the policemen but not the victim nor he had facilitated and aided in any manner or what so ever thus Section 7 of the Criminal Code Act is not applicable. Looking at some from being robbed is not the same as assisting the victim person to be robbed and thus evidence is not sufficient to make a case of 2 counts of Armed Robbery under Section 386(1)(2)(a)(b) and (c) of the Criminal Code Act, 2 counts of Abuse of Office under Section 92(1) of the Criminal Code Act and 2 counts of Deprivation of Liberty under Section 355(a) of the Criminal Code Act.
    

CONCLUSSION

15. Accordingly, under Section 95(2) of the District Court Act, I rule that police evidence is not acceptable to make a prima facie case against the Defendant for the charges of 2 counts of Armed Robbery under Section 386(1)(2)(a)(b) and (c) of the Criminal Code Act, 2 counts of Abuse of Office under Section 92(1) of the Criminal Code Act and 2 counts of Deprivation of Liberty under Section 355(a) of the Criminal Code Act.
    

ORDERS

16. My Orders:
    
    1. Evidence is insufficient to commit Defendant Mali Kawi for the charges of 2 counts of Armed Robbery under Section 386(1)(2)(a)(b) and (c) of the Criminal Code Act, 2 counts of Abuse of Office under Section 92(1) of the Criminal Code Act and 2 counts of Deprivation of Liberty under Section 355(a) of the Criminal Code Act.
       
    2. The three (3) information under enquiry are dismissed.
       
    100. Defendant’s bail is refunded forthwith.
         

In person For the defendant
Police Prosecutor For the State

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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.
  

^[4] See, Constitution, Sections 42 and 43.