Woyenu v Kundai [2022] PGDC 48; DC8051 (24 February 2022)

DC8051

Papua New Guinea

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

COM NO 26 OF 2021

BETWEEN:

NOEL WOYENU
[Informant]

AND:

WARI KUNDAI
[Defendants]

Waigani: Paul Puri Nii

24th February 2022

COMMITTAL PROCEEDINGS: Charge-Murder-Section 300(1)–Criminal Code Act. Witness statements- State evidence- appropriate formation of prima facie evidence - elements of the charge sustained –Evidence is evenhanded- Defendant committed to stand trial.

PRACTISE AND PROCEDURE: Assessment of evidence under Section 95 of the District Court Act. Victim perused by the Defendant and assaulted-elements of intention and premeditation. Evidence of attempted murder.

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: Joseph Sangam For the Informant
Public Prosecutor: Caroline Bomai For the Defendant

COMMITTAL RULING

22^th February 2022

INTRODUCTION

NII, P. Paul Magistrate. Decision on committal pursuant to Section 95 of the District Court Act. On 17^th January 2022, Defendant asked the court to go through the Police file and make a ruling. The same approach was taken by police and thus is my ruling.

CHARGE

1. Defendant is charged under Section 300 (1) of the Criminal Code Act. The particulars of the charge are shown below:
   

“300. MURDER.

(1)[1] [2]Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;

(b) if death was caused by means of an act–

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life;

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.”

BRIEF PARTICULARS

2. The Defendant is aged late 30s form Sak village of Wapanamanda district in Enga province who was arrested and charged for the murder of late Paul Piramb Mai under Section 300(1) of the CCA. Police allege that on 01^st January 2021 between 7am and 8am, the accused was drinking beer with some of her friends to celebrate the new year 2021. The deceased and his wife were walking on the road going home when they saw the accused drinking beer and asked her for some beer. However, an argument arose thereafter and as a result the Defendant and accused threw bottles of alcohol at each other and it was further alleged that it was during one of those throws, an alcohol bottle broke and landed on the deceased’s neck causing heavy loss of blood which then affected his life. The accused was subsequently arrested and charged under Section 300(1) of the Criminal Code Act.
   

ISSUE

3. Whether or not there is acceptable evidence to commit the Defendant for the allegation of Willful murder.
   

THE LAW

4. The court’s authority to rule on police evidence is under Section 95 of the District Court Act. The court has the power to assess evidence on a prima facie basis to establish whether or not evidence is sufficient to make a case against the Defendants. The focus authority is presented hereunder:
   

“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.”
EVIDENCE

Police case

5. Police evidence is in the police file tendered to the court on 10^th November 2021, and it comprises witness statements and documentary evidence including photo exhibits and medical reports. Police in brief maintained that evidence is sufficient to commit the Defendant for their alleged actions in causing the victim’s death.
   
6. The list of witness for the police case and their evidence is well summarized below:
   

No	Name	Particulars	statements
1	Cathy Yakin	Deceased’s wife	Witness says the Defendant threw a bottle of beer on the deceased and deceased threw another on the Defendant. This witness says Defendant and deceased exchanged swearing words which later led to the incident of bottle throwing and death.
2	Alois Michael	Witness	This witness says he lives next to the incident scene and witnessed the whole incident. Witness says Defendant hit the accused twice on his head and later stabbed the deceased on his neck.
3	Jackeline Stanley	Witness	Witness says she stopped the Defendant from hitting the accused but she says she was overpowered by the Defendant and went straight to the deceased and hit him with an empty bottle of 125 liters’ trade winds Rum Blue berry.
4	Ronia Siwi	Witness	This witness says she saw the Defendant hitting the accused twice on his head with an empty bottle and later stabbed him with a broken bottle on his neck.
5	Dr Sylvester Kotapu	Medical Doctor with Port Moresby General Hospital	This witness is the one who conducted the postmortem on the deceased late Paul Piramb Mai and found that there was redirection force applied at the impact moment causing the cut on the neck that led to the victim losing his life. Doctor says the cause of death is losing a lot of blood from the deep cut sustained.

Samuel Koe- this witness is a policeman who works with the Police Forensic Science and he says he attended the crime scene and took photos and inspected the whole scene.

Cecelia Dangi- She is the policewoman who investigated the allegation and thus led to the arrest of the Defendant.

Defense case

7. Defendant through her lawyer from the office of the public solicitor argued her case to one point and that is on the issue of Intention. Defendant says although there was a commotion between the parties on the 1^st of January 2021 in which all parties were involved in the commotion and Defendant was part of the group but she had no intention to cause harm or injury to the deceased.
   
8. Defendant further submits there was provocation
   

DELIBERATION OF EVIDENCE

9. Evidence shows in the morning of 1^st January 2021 at the wildlife area of NCD, the deceased and victim were drinking alcohol throughout the early part of the morning as part of the new year celebrations. Evidence also demonstrates there was a commotion leading to an empty bottle fight between the Defendant and the deceased over a disagreement in refusing to lend alcohol to the deceased.
   

RULING

10. Defense raised the defense of provocation and elements of intention. Defendant stated in her confessional statement that she pursued the accused in an attempt to wound him. The same statement was maintained on question 31 of the accused’s ROI that accused got an empty bottle of blue berry and was trying to hit the accused and his wife but they were running so she said she followed them.
    
11. Intention is when something is planned and aimed towards achieving. The fact that Defendant stated both in her confessional statement and ROI that she chased the accused to hit him which to me indicates that there is evidence where Defendant planned and aimed at attacking the deceased and thus her aim was achieved when she followed the accused and allegedly landed the broken bottle on the deceased head and neck. Therefore, in the assessment of evidence, there is evidence of intention.
    
12. All witnesses have identified the Defendant and confirmed the allegations against her which Defendant has also corroborated in her ROI and confessional statement. I also note Defendant had raised the issue of Provocation. The defense of provocation under Section 267 of the CCA as part of defense argument attacking police evidence at the committal hearing is inappropriate. Defense of provocation can be considered at the trial court when evidence is tested on the criminal burden of proof which is to prove beyond reasonable doubt. It is the trial court's function and not mine.
    

CONCLUSION

13. Therefore, it is my ruling under Section 95(1) of the District Court Act that police evidence is sufficient to make a prima facie case against the Defendant that the Defendant’s action on the morning of 1^st January 2021 had caused the death of the deceased and thus the elements of Murder under Section 300(1) of the CCA are sustained.
    

ORDERS

14. My formal orders:
    
    1. Evidence is sufficient to commit Defendant Wari Kundai for the charge of Murder under Section 300(1) of the Criminal Code Act.
       
    2. Defendant is committed to stand trial.
       
    100. Warrant issued Defendant is Remanded.
         

Public Solicitor For the defendant
Police Prosecutor For the State

[1] Section 300(1) amended by Act No. 13 of 1977, s22; amended by Act No. 12 of 1982, s3.
[2] Section 300(1) amended by Act No. 13 of 1977, s22; amended by Act No. 12 of 1982, s3.