Poye v Tabo [2022] PGDC 43; DC8083 (19 May 2022)

DC8083

Papua New Guinea

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

COM 190-191 OF 2021
COM 107 OF 2020
CB NO 205 OF 2021

BETWEEN:

JOE POYE
[Informant]

AND:

JASON ANDREW TABO
[Defendant]

His worship Paul Puri Nii

19th May 2022

COMMITTAL PROCEEDINGS: -Charges- Willful Murder-Section 299(1)-Attempt Murder -Section 304(a) and Deprivation of Liberty under Section 355(A) of the Criminal Code Act 1974(Chapter No. 262). Prosecution to deliver prima facie suitable evidence strengthening the elements of the accusation to have the Defendant committed.

EVIDENCE: Permitted prerequisite for prima facie matter-Establishment of the charge of Willful murder, Attempt Murder and deprivation of Liberty– Assessment of evidence-Elements are met. Evidence shows accused had planned to murder the victim and deprived the surviving victim of his liberty. Defendant is committed

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)

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
Public Solicitor: David Kiok For the Defendant

RULING ON POLICE EVIDENCE

19^th May 2022

INTRODUCTION

NII, P. Paul Magistrate. Announcement on whether a prima facie case is befittingly predictable inside the reputation of Section 95 of the District Court Act 1963. The finding is learned after Police evidence restricted in the Police file and Defense case are cautiously distinguished. Defendant through his submission contends police evidence is unsatisfactory to commit him while Police argues evidence is appropriate to commit the Defendant and therefore is my result here under:

CHARGES

1. The accused is charged with Wilful Murder under Section 299(1), Attempted Murder overstepping Section 304(a) and Deprivation of Liberty under Section 355(a) of the Criminal Code Act 1974, Chapter No. 262.
   

“299. Wilful murder.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.”

“304. Attempted murder, etc.

A person who—

(a) attempts unlawfully to kill another person is guilty of a crime. Penalty: Subject to Section 19, imprisonment for life”.

“[i]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”.

POLICE SUMMARY OF FACTS

2. Defendant is aged 27 years old and of Arrango village of Unagi in the Eastern Highlands Province who was a Policeman and attached to MS 4 at McGregor Police Barracks.
   
3. Police alleged that the Defendant’s mother passed away and the family members were mourning over the loss at Sabama in NCD and on the 11^th September 2020, as was their custom they decided to have a feast to officially close the house cry or mourning period. Thus, the defendant and some of his relatives went to Laloki, an area some few kilometres out of NCD for the feast preparation.
   
4. The feast party including the defendant returned with 2 life pigs and fire-woods for the feast. At Sabama pigs were slaughtered and shared among the relatives. During the mourning there were allegations of sorcery practised by certain people within the Sabama area that caused the death of the defendant’s mother and thus defendant decided to take revenge and so as soon as the feast was over defendant with other alleged suspects went and searched for people whom they suspected of sorcery (saguma).
   
5. The defendant and other suspects had allegedly identified the Complainant and the late victim as the alleged perpetrators of witchcraft (samguma) and thus were identified somewhere at Sabama and were allegedly taken up to the defendant’s area and allegedly assaulted them. Defendant allegedly cut the late victim ( a female) on her limbs and head until she died instantly while the Complainant was tied to a file of woods and stones and was about to be burnt alive until police came and rescued him. The body of the deceased victim was buried by the defendant and his suspects somewhere near the bushes of Sogeri which was later retrieved by the relatives.
   
6. The news of the allegation spread throughout the Sabama community which resulted in a Criminal Complaint was lodged with police by the deceased and victim’s relatives which eventually led to the arrest and laying of the 3 charges against the defendant
   

ISSUE

7. Whether a prima facie case is farsightedly demonstrated and that is whether Police evidence is proper to make a case against the Defendant for the subject allegations.
   

THE LAW

The Law on Committal Ruling

8. Sections 94-100 of the District Court Act 1963 delivers the groundwork on how to accomplish committal ruling. The provisions guide the court with evidence to ensure police evidence meets the elements of the subject allegation to make a case against the accused. In Police v Kambian[ii] the court has enhanced the principles in Akia –v- Francis[iii] that the primary work of the committal court is to measure evidence and make an assessment. With dependable to Section 95 of the District Court Act and the principles in Yarume –v- Euga[iv] I will afterwards assess the police file and afford my decree on the power of police evidence.
   
9. It is also important to note that the court’s function under Section 95 of the Criminal Code Act on the criminal burden of proof is not to prove police evidence beyond reasonable doubt but on a balance less than that perhaps on a prima facie basis (on the face of evidence).
   

ELEMENTS OF THE OFFENCE

10. The principle in Police v Medako[v] is relevant in the case here and that is police evidence should fittingly meet or appreciate the elements of the allegations against the Defendant.
    

299. Elements of Willful Murder-Section 299(1) of the CCA

a. A person

b. who unlawfully kills another person,

c. intending to cause his death or

d. that of some other person

304. Elements of Attempt Murder-Section 304(a) of the CCA.

a. A person who

b. attempts unlawfully

c. to kill another person

355(a)(b). Elements of Deprivation of Liberty-Section 355(a)(b) of the CCA.

a. A person

b. who unlawfully

c. confines or detains another

d. in any place against his will; or

e. deprives another of his personal liberty

EVIDENCE

11. Prosecution evidence plays a demanding portion in the supervision of criminal fairness to warrant a nondiscriminatory finish is clenched. Evidence abutted in the court file and served on the Defendant should thoughtfully meet the elements of the three charges. Police evidence must meet the elements of the charges to reach a prima facie case as instituted in the case of Police v Koka[vi].
    

PROSECUTION CASE

12. Police evidence is in the Police Hand Up brief including witness statements, medical reports, record of interview, photo exhibits and confessional statements.
    

Police evidence

1. Weki Mirigine – this witness says the late victim was his wife and he was part of the group that went looking for firewood and pigs for the closing feast to end the mourning period. Witness says after they distributed the items, the defendant and him were drinking and immediately after drinking the defendant pulled his aunty named only as Betty and his grandmother also named only as Wena into a secluded location and he poked them with a sharp metal object which betel nut venders use to check betel nuts before buying them. Defendant then forcefully asked the women to reveal to him who killed his mother through sorcery. Witness says after he had witnessed what had happened he went to his house and hid himself. He says his late wife was not there but she was later apprehended by the defendant and brought to the location. Witness says it all happened when he was hiding but he only witnessed the poking allegation.
   
2. David Goro-this witness says the defendant is his first cousin and the late victim was his mother and on the date of allegation he was chased away by the defendant and other suspects after the witness returned from 4 mile. Witness says in fear of his life he jumped over a fence and hid himself at Vadavada until 2 days later he found out from his relatives that his mother was killed by the defendant and the body was buried somewhere up the bushes close to Sogeri.
   
3. Anne Weki- witness says the late victim was his mother and she is not a witchcraft as alleged by the defendant but a caring and loving mother. Witness says on the date of allegation he was doing rugby training at the Sabama rugby field with his girl when the defendant and his suspects came and announced they were looking for people involved in the witchcraft that caused the defendant’s mother’s death. Witness says he heard the defendant calling his late mother a suspect in the sorcery and they would hunt her down. Witness says after he heard that he left training and went looking for his mother but was late as she was already taken custody by the defendant and his suspect numbering up to more than 10. Witness says the time was around 7pm in the night and she was forcefully taken up to the defendant’s place where she was stripped and murdered. Witnesses say he could not do anything as he also feared for his life and he went into hiding. Witness says he heard his mother crying out in pain and he also cried until at 11pm in the night where her cry had stopped indicating she was already dead.
   
4. Nika Jerry- this witness says he was selling betel nuts and witnessed the defendant and others came and took the deceased victim up to the defendant’s place and the defendant chopped her with a knife. Witness says he saw the defendant cut the late victim first on her leg and then on her head until she died. Witness says he could not do much since all the boys with the defendant were drunk and they had in their possessions dangerous weapons such as knives, irons, stones and sticks and anything capable of inflicting serious wounds and he says he also feared for his life.
   
5. Kori Nigani-this witness says he is the surviving victim and he was also captured by the defendant and his team of men numbering up to 20 for allegation of witchcraft where he was also suspected of killing the defendant’s mother. Witness says he was forcefully taken up to the mourning location (ples bloing holim haus karai) and was repeatedly bitten with sticks and stones and also he had sustained knife wounds. Witnesses say he was being tied up by sharp wires and ropes and was placed in an enclosed canvas where he was put there to die. Witness says there were also two other women chopped and assaulted by the defendant and those women were brought in after him. Witness says while he was still lying unconsciously, he says the defendant chopped the deceased head with a knife resulting in her instant death. This witness says he was luckily saved by policemen and thus was taken to Port Moresby general hospital where his life was fully recovered.
   
6. Sivi John-this witness says he was there at the funeral place when the defendant got a knife and chopped the late victim’s head and she died instantly. Witness says he was extremely terrified and ran into hiding after he saw what had happened.
   
7. David Goro- this witness says the defendant’s late mother is her cousin. This witness says she saw the defendant and others wrapped the later victim’s body and was taken into an awaiting vehicle which later took the body away.
   
8. Linda John- She says she was informed by her son John Sivi that the victim was murdered by defendant and his suspects.
   
9. Josephine Bai- this witness says she is the surviving victim’s wife and she was the one who told police about the allegation that led to police rescuing her husband.
   
10. Eddie Mai- he says he called a police friend to assist in rescuing the surviving victim but unfortunately the person whom he called was off duty hence another policeman came and rescued the victim who could otherwise have died if police presence was delayed.
    
11. Jenny Joe-Witness says the surviving victim was apprehended by the defendant and his associates and was taken up to the mourning place where he was tortured until police arrived and saved him life.
    
12. Brian Tamitali, Junior Yosman, Thokas Brandy, Saine Sandy Jonathan Taiwi and Andrew Ango- All these witnesses are giving an account of what transpired on the 11^th September 2020. All the witnesses are saying the late victim and surviving victim were tortured by the defendant and his associates until one victim died leaving other others.
    
13. Kemnos Konga- he is a police forensic officer who took photos of the crime scene and the victims.
    
14. Samuel Gomoro-this witness is a policeman who says he attended the crime scene after he was communicated on the police radio after the incident involving the defendant.
    

xv. Nei Pige- he is the Police corroborator

xvi. Yaku Gwampom-Police arresting officer

DEFENSE CASE

13. Defendant through his submission filed on 21^st March 2021 say state evidence is unconvincing and unreliable as to the contents of the evidence and asked the court not to consider the evidence. Defendant say the evidence is biased, inconsistent and it is contradicting. Defence submits there is no evidence of intention established by police and thus asked the court to dismiss the information against the defendant.
    
14. Defendant on his record of interview denied some of the questions asked and in others he remained silent.
    

CONSIDERATION OF EVIDENCE

15. Evidence presented to the court shows on 11^th September 2020 there were allegations involving the Police against the defendant in which defendant was charged with Wilful Murder under Section 299(1), Attempted Murder under Section 304(a) and Deprivation of Liberty under Section 355(a)(b) of the Criminal Code Act.
    
16. Evidence shows the defendant's mother died some weeks prior to 11^th September 2020 and on the 11^th September 2020, it was alleged that the defendant’s mother’s death was linked to sorcery. Evidence further shows the defendant and certain people accused the late and the surviving victims as the ones allegedly practicing witchcraft.
    
17. Evidence shows three people were subjected to torture, murder, torture violence and assault allegedly occasioned by the defendant in which a Rindo Goro was murdered, a Nigani Kori rescued by police and other woman ran for her safety.
    

RULINGS

There are three allegations so I will administer each and every allegation separately.

a) Wilful Murder-Section 299 of the Criminal Code Act

18. Willful murder is an individual who criminally murders another individual, planning to cause his/her death. Prior to the act, there should be evidence of planning. The aftermath event should emanate from the planning. The planning should wisely establish how the act should be magnificently carried out. If there was a planning, then obviously the alleged perpetrator had an intention to carry out the plan. The subjective state of the mind should supplement the act to carry out the arrangement and hence the act.
    
19. Statement of Witness Weki Mirigine says the defendant forced two women to reveal the names of people allegedly involved in witchcraft. Evidence of Jason Goro says he was chased away by the Defendant and his associates after returning from 4 mile. Statement of. Anne Weke says the defendant made a public announcement at a public place that he and others were looking for suspects involved in the sorcery and witness John Horo says he saw the victims’ body being rapped and was taken away in a vehicle. Evidence of Kori Nigani says he was the surviving victim who was later rescued by police and he says the defendant chopped the deceased with a knife which resulted in her death. Finally, evidence from John Sivi says he was at the funeral place and saw the defendant chop the deceased with a knife.
    
20. I have considered defense submission in respect to the allegation of Willful murder. I have gone through the submission, however in the exercise of my powers under Section 95(1) of the District Court Act, I have noted there is evidence of planning and intentions demonstrated by state witnesses. Police evidence shows the defendant on the 11^th September 2020, was going around with a group of men and searching for people whom he thought were allegedly involved in his mother’s death. Evidence shows the same group of men went and apprehended the late victim who was later chopped to death and the surviving victim was saved by police.
    
21. Therefore, police evidence has met the elements of the offence of Willful murder under Section 299(1) of the Criminal Code Act that on the 11^th of September 2020, the defendant was carefully identified by all the state witnesses that he was the person who had planned for the alleged murder of the deceased and subsequently evidence shows Defendant thus unlawfully killed the victim. Evidence is thus sufficient to commit the defendant for the charge of Willful murder under Section 299(1) of the Criminal Code Act.
    

b) Attempted Murder-Section 304(a) of the Criminal Code Act

22. Attempted Murder is when an individual who endeavors criminally to slaughter another individual but that individual survives. The wounds occasioned from the act could either be perpetual or not permanent depending on the degree of wounds inflicted. Evidence of Kori Nigani the surviving victim says he was tied up with wires and was put in a closed canvas for him to suffocate and die. Photo exhibits “E” and “F” enclosed in the evidence show the surviving victim was tied up with wires and let alone to die until police came and rescued him.
    
23. I have assessed the evidence and noted the victim’s version of the evidence about the allegation corroborates the photos exhibits relating the defendant to the act of attempted murder under Section 304(a) of the Criminal Code Act. On a lesser criminal burden of proof, am satisfied under Section 95(1) of the Criminal Code Act that on 11^th September 2020, the defendant is identified to be the person who attempted to unlawfully kill the surviving victim and thus evidence is sufficient to commit the defendant for the offence of Attempted Murder under Section 304(a) of the Criminal Code Act.
    

c) Deprivation of Liberty -Section 355(a)(b) of the Criminal Code Act

24. Deprivation of Liberty is an individual who criminally restrains or hinders another individual in any habitation against his/her self-control; or denies another individual of his/her private freedom.
    
25. Evidence shows on the 11^th September 2020, the surviving victim and the deceased were forcefully taken away against their will by the defendant and his associates. The late victim had succumbed to her demise while victim Kori Nigani survived the ordeal through police intervention. Evidence shows the moment after when the victim was forcefully apprehended by the defendant and his associates, his freedom to move and make decisions on his own wish was restricted and confined to achieve the defendant’s motive and that was to have him subjected to force, intimidation and attempted murder.
    
26. In the assessment of evidence under Section 95(1) of the District Court Act, I am satisfied with police evidence that there is sufficient prima facie evidence to commit the defendant for the allegation of Deprivation of liberty under Section 355(a)(b) of the Criminal Code Act.
    

CONCLUSION

27. Police evidence is sufficient to make a prima facie case against the Defendant for the allegations of Willful Murder under Section 299(1), Attempt Murder under Section 304(a) and Deprivation of Liberty under Section 355(a)(b) of the Criminal Code Act and thus evidence demonstrates Defendant has a case to answer in the national court.
    

ORDERS

1. Evidence is sufficient to commit the Defendant for the charge of Wilful Murder pursuant to Section 299(1) of the Criminal Code Act.
   
2. Evidence is sufficient to commit the Defendant for the charge of Attempted Murder pursuant to Section 304(a) of the Criminal Code Act.
   

100. Evidence is sufficient to commit the Defendant for the charge of Deprivation of Liberty pursuant to Section 355(a)(b) of the Criminal Code Act.
     

4. Defendant is now committed to stand trial for the three charges.
   
5. Defendant’s bail is extended
   

Public Solicitor For the defendant
Police Prosecutor For the State

[i] See, Constitution, Sections 42 and 43.
[ii] [2021] PGDC 66; DC6021(30^th June 2021)
[iii] [2016] PGNC 335; N6555 (24 August 2016)
[iv] [1996] PGNC 24; N1476 (6 September 1996)
[v] [2021] PGDC 54; DC6011 (31 May 2021)
[vi] [2021] PGDC 53; DC6010 (31 May 2021)