Atuso v Kapo [2022] PGDC 5; DC8002 (4 January 2022)

DC8002

Papua New Guinea

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

COM NO 522 OF 2021
COM NO 551 OF 2021

CB NO 1062 OF 2021
CB NO 1061 OF 2021

BETWEEN:

PAUL ATUSO
[Informant]

AND:

LEAH KAPO
REX KAPO
[Defendants]

Waigani: Paul Puri Nii

4th January 2022

COMMITTAL PROCEEDINGS: Charge-Willful Murder-Section 229(1)–Criminal Code Act. Witness statements- State evidence- appropriate formation of prima facie evidence - elements of the charge sustained –Evidence is evenhanded- Defendants committed to stand trial.

PRACTISE AND PROCEDURE: Assessment of evidence under Section 95(1) of the District Court Act. Victim perused by the Defendants-elements of intention and premeditation. Evidence of chasing and aggravating factors leading to the death.

PNG Cases cited:

Yarome v Euga No 366 of 1995 (1995) N1476,
State v Kwaram (No 1)(2020) N8406

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
Millennial Lawyers: David Dusal For the Defendants

COMMITTAL RULING

4^th January 2022

INTRODUCTION

NII, P. Paul Magistrate. Decision on committal pursuant to Section 95 of the District Court Act. On 16^th December 2021, parties made submission in admiration to their interests, Prosecution argued evidence is sufficient to commit the Defendant and Defense objected to the arguments and now is the court’s ruling after assessing both arguments.

CHARGE

1. Defendants are charged under Section 299 (1) of the Criminal Code Act. The particulars of the charge are shown below:
   

“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.”

BRIEF PARTICULARS

2. On 25^th November 2020, a group of men from the Highlands believed to be betel nut (red nut) traders were returning back from Kerema town after a betel nut buying trip. They killed a Goilala man who was on his way to the main road to do some marketing along the Hiritano highway at a place called Martin river. The reason for the killing is unknown but the killing of the Goilala man triggered the Goilala men to take revenge.
   
3. On 26^th November 2020, Goilala community retaliated and killed three Highlanders at Doa Rubber Plantation of which two males from Eastern Highlands and one from Enga Province. The Enga lives in Kerema. Police information displays the Engan man as Lewa Pwayali.
   
4. On 29^th November 2020, the Engans and other Highlands community had a meeting in Kerema and found out that the deceased Lewa Pwayali is related to a Rollan Kapo, businessman who lives in Kerema. From the meeting the Engans had concluded that some men form Western Highlands had killed the Goilala and thus the man from Wabag was wrongly killed in retaliation by the Goilalas and therefore the Engans were trying to take revenge on a Western Highlander.
   
5. Police allege that it was from that planning and premeditation, the victim was pursued by the Defendants and their accomplices and finally he was murdered. Police allege that the victim who was allegedly murdered by the Defendants and others is late Joe Tep Ten, 45 from Kenta village of Hagen in the Western Highlands Province. Married with 2 wives and 6 children.
   
6. The Defendants now in court were arrested and charged for Wilful Murder pursuant to Section 299(1) of the Criminal Code Act. Police allege that Defendants were part of the people involved in the death of the victim while others are still pending arrest and charge.
   

ISSUE

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

THE LAW

8. 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.”

ELEMENTS OF THE CHARGES.

Elements of Willful Murder

a) a person

b) who unlawfully kills another person,

c) intending to cause his death

d) or that of some other person

EVIDENCE

Police case

9. Police evidence is in the police file tendered to the court on 20^th September 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. Police says Defendants had well planned and had an intention to kill the victim since the victim was pursuant and chased all the way along Hiritano highway and was killed.
   
10. The list of witness for the police case and their evidence is well summarized below:
    

No	Name	Particulars	statements
1	Mathew Yop	ATS, 8 MILE,	Witness says he was with the victim at the time when he was allegedly murdered by the Defendants.
2	Paul Mek	Unemployed	He says he was chased away by the Defendants and later the victim was killed by the Defendants.
3	Emmanuel Milara	Unemployed	Witness says on 30th November 2020, he witnessed two10 seater Toyota land cruiser chasing each other and drove past where he was. Witness says the white 10 sitter is owned by Roland Kapo.
4	Jeff Soka	Reserve Policeman	He says he heard people talking about a car accident in which a man was killed so he walked up to Ilavala village and confirmed the story.
5	Joe Kose	Reserve Policeman	This witness says he was standing at Losipi market and witnessed two land cruiser chasing. Witness says the white land cruiser at the back was chasing the brown land crusader in the front. Witness says he later heard people saying the brown land cruiser crashed a couple of meters away from Lakekamu bridge.
6	Steven Meheri	villager	He was on the date of the incident, was at Lakekamu bridge and saw the two vehicles traveling past and the white land cruiser was chasing the brown. He says later he went up and saw the deceased victim in the brown Toyota land cruiser.
7	Samson Satoro	villager	He attended the scene immediately after the accident and saw 10 men and 1 woman walking out of the brown 10 sitter into the white ten-seater and drove away. He says he was the one who looked after the deceased body until police came and took the later victim’s body away.
8	Safe Eka	villager	He says he was asleep in his house when the incident happened. He ran out but was late to see them as the defendants and others quickly hopped on the white ten-seater and drove back towards Kerema way.
9	Benny Kuringi	Betel nut seller	Witnesses say he was picked up by the Defendants and others on their way to Kerema after the incident involving the death. He said he had identified the vehicle as that of Rolland Kapo and he went on to state that he had identified some occupants of the white ten-seater since they were known to him. Witnesses say both accused were in the 10 seater land cruiser that was involved in the incident causing the victim’s death. He says he had identified both Defendants.
10	Carolyn Thomas	Betel nut seller	Witness says she was on her way to Kerema to buy betel nut when she was kidnapped by the Defendants and the co accused yet to be arrested after they knew she was from Hagen. Witness says if it was not of Benny Kuringi, she could have been murdered. Luckily she says she made her way to the Kerema police station where she was saved. During the travel, witness says she recognized the driver of the white 10 sitter and Defendant Leah Kapo as was sitting in the front seat and other suspects who are still on the run. Witness says the suspects are from Enga
11	Wilson Paraia	Policeman	He says he was at Malalaua police station when was told of a car accident involving two Toyota land cruiser 10-seaters. Witness says he went to the scene and confirmed that the victim was killed and lying in the brown ten sitter. Witness said he had identified the suspects to be from Enga.
12	Laurie Steddy	Police officer	Witness says he drove to the accident scene and identified the victim’s vehicle as a Brown 10 seater with registration number BEU 447. Witness said the body was later transported to the Kerema morgue.
13	David Javen	Policeman	Policeman said he had identified the suspects’ vehicle as a white Toyota land cruiser bearing registration BDM 948 and owned by a Kerema based businessman from Wabag named Roland Kapo.
14	David Javen	witness	This witness was part of the search party that went to the accident scene and loaded the victim’s body back to Kerema hospital morgue.
15	John Kuman	Betel nut seller	Witness says a group of Highlanders of Enga origin came to his location where he was selling goods at Kerema and were about to kill him thinking that he was from Hagen however, one of the people within the group recognized him and alerted the rest of the members that that witness was from SHP and thus they did not do anything to him
16	Leana Moera	Policeman/Lead investigator	Witness says he was the one who took the lead in the investigation involving the late victim. He says he had interviewed both Defendants. Witness says during the ROI, the Defendant Rex Kapo admitted that his real name is Kenny Miname and comes from Winikos village in the Kompiam Ambun district of Enga province.
17	John Opa	Medical Doctor	Witness’s confided that the victim’s body was received at Kerema General hospital
18	Paul Dupi	Policeman	He is a policeman and was with the lead police investigator at the time when the Defendants were interrogated. He says Defendants voluntarily signed the ROI after answering all the questions.
19	Dr Seth Fose	Medical Doctor	He was the one who conducted the postmortem on the late victim’s body and did his report on how the vicmt died.
20	Murphy Dagaua	Course coordinator	He confirmed the date in which the Defendant Leah Kapo was supposed to graduate with a Diploma in Public Administration. Witness says graduation was planned for 2021 but the defendant did not graduate.

Defense case

11. Defendants through their Lawyer submits that evidence is not appropriate to hold the Defendants liable for the offence of willful murder against the victim. The Defendants in their submission on evidence led the court to its functions under Section 94-100 of the District Court Act and the principles in Yarome v Euga No 366 of 1995 (1995) N1476, per Akuram, J which expounds the legislative provisions of the committal court.
    
12. Defendants submits that the elements of the offence of Willful murder under Section 299(1) of the CCA is provided in the case of State v Kwaram (No 1)(2020) N8406, as in is stated under:
    

a) That the accused killed the deceased (Identification)

b) That the killing was unlawful

c) That the accused had the intention to kill

13. Defendants through their lawyer submits police evidence complied by police is not sufficient to establish the existence of the elements of the offence of willful murder. Defense alleges that Defendant Rex Kapo was wrongly identified. Defendant argues that the accused identified to be Rex Kapo is Kenny Miname. Defendants take issue on the identification. Lawyer for the accused adopted the same arguments on Leah Kapo that she was also wrongly identified and there is no evidence of her part in the allegation that led to the willful murder on the victim.
    

DELIBERATION OF EVIDENCE

14. Both Defendants denied their involvement in the allegation causing the death of the victim. Defendant Rex Kapo and Leah Kapo denied their involvement in the allegation. Both their denials are consistent in their record of interview. However, evidence is consistent about the involvement of two vehicles in the allegation. There is sufficient evidence to demonstrate that on 30^th November 2019, along the Hiritano Highway between Central Province and Gulf Province, a Toyota Land Cruiser, 10-seater, white in color, bearing the registration Number BDM 948 was chasing another Toyota Land cruiser, 10 seater, brown in color with registration number BEU 447. There is also evidence that 10 male and a lone female were traveling on the white land-cruiser (the chaser) while the late deceased and other male were traveling on the brown land cruiser(victim).
    
15. Police evidence is consistent that there was a vehicle chase from Meporo village to Epo village in the Malalaua area towards Kerema way along the Hiritano highway. However, at Malalau there was a shift in the direction and the chase now headed towards Port Moresby way. Evidence shows the later victim’s vehicle veered off a couple of matters away from the road at Lakekamu one-way bridge and crashed into a nearby tree. However, evidence provided shows the chasers pursued to where the victim vehicle was and they allegedly murdered the deceased. Police evidence shows the chasers were from Enga and the victims including the deceased were from Hagen and the victim’s including the deceased was identified but The question is, were the Defendants identified?
    

RULING

16. Evidence for both Defendants shall be assessed separately in the ruling.
    

Accused REX KAPO/BILL MINAME

17. Lawyer for the accused raised an issue on identification that this Defendant was not correctly identified. Defense says the legal name for the Defendant as shown on his official documents such as his Identification card is as “Kenny Miname” but was mistakenly named as “Rex Kapo”. At question 11 on the ROI, defendant raised the issue that his name was mistakenly spelt and thus when the arresting officer enquired on his correct name, defendant responded by saying he would be called “Kenny Miname” and that was the name given by the defendant himself. In the record of Interview, the defendant confirmed that his name was Kenny Miname and not Rex Kapo.
    

Elements of Identification

No	Elements	Description
1	Physical appearance	Built, color, width, length, weight, young, old, etc
2	Ethnicity	Highlander, coastal, white, black, Pacific islander, Africa, Maori or whatever race
3	Name	Whatever name he/she is known with/for
4	Education	His/her qualification(s) or educational level
5	Employment history	Past and present employment
6	contacts	Phone number, place of residence and address
7	Sex	Male, female, gay, lesbian, homosexual and etc
8	Character	Bad, good, humble, socializable, funny, etc
9	Religion	Christian (catholic, SDA, Pentecostal, AOG, Lutheran, and etc), Muslim, Buddhism, and other churces
10	Sports	Participation in sports and other related activities.

18. Identification is about establishing or demonstrating who or what someone or something certainly is. Correct person must be identified consistent with evidence and accuracy in the description. The issue of not identifying and describing an object correctly is not the same as identifying the object but with the wrong name. A change in a name may not derail or defeat the purpose of an accurate description and features of an object that may lead to the correct identification.
    
19. On the other hand, if a particular object is mistaken for another or wrongly identified or substituted for another then definitely it would raise the issue of identification since the features and descriptions may not match the object. Therefore, the issue now is “was the Defendant wrongly identified with the wrong features and description” or “correctly identified with the correct features and description but with the wrong name”? The answer to the Defendant’s issue on identification is addressed by the statement of Benny Kuringin at paragraph 4 sworn on 24^th November 2020. When this witness was given a photo to confirm, the witness identified with given features and description of the defendant as Rex Kapo, which the defendant corrected himself later on the ROI as Bill Miname. Name is only one feature or element of identification; it does not constitute the entire element of identification. Moreover, Defendant was identified by state witness that he was in the vehicle that was used to chase the deceased vehicle.
    
20. To my understanding the Defendant Rex Kapo is the same Bill Mainame, change in the name does not change the correct features including the physical appearance and description of the defendant including its ethnicity. Therefore, it is my ruling that Defendant Rex Kapo or Bill Miname although he may not be the person that allegedly committed the offence of Willful murder, under Section 7(1)(c) and (4) of the Criminal Code Act, evidence is sufficient that Defendant was identified to be part of the group of people that allegedly involved in the death of the victim. Therefore, evidence is sufficient to make a case against the Defendant.
    

Accused LEAH KAPO

21. This accused denied her involvement in the allegation. She maintained her stand in the ROI that she had no knowledge of the allegation. Her defense is of general denial or she strongly refuses to declare the reality or actuality of the facts/evidence pertaining to the allegation. Police evidence says there were 10 men and 1 female and they were of Engan origin in the land cruiser that was chasing. Would the lone female be the Defendant? Defendant Leah Kapo did not raise the issue of Identification but general denial about her involvement. Statement of state witness Benny Kuringin says he recognized the vehicle that was allegedly involved as owned by Rollan Kapo and also the occupants of the vehicle since they all know each other as they stay at Kerema. Witness also says the accused in the vehicle also recognized him and subsequently he was picked up along the road to Kerema after the incident.
    
22. Witness says he had recognized and identified the Defendant Leah Kapo siting in the middle front seat of the land cruiser that was allegedly used in the murder. Moreover, the witness statement of Caroline Thomas says she was kidnapped by the Defendants and their co accused on their way to Kerema after the alleged murder. Witness says while along the way she recognized and identified the accused as was sitting in the middle front seat.
    
23. When police asked what the Defendant was doing on the date of allegation, she said she was in Port Moresby waiting for her graduation since her graduation was delayed due to the novel pandemic coronas virus. Defendant claims that on 30^th November 2020(date of allegation) she was in NCD waiting for her graduation at formerly Administrative college but now renamed to Pacific Institute of leadership and Governance. There is a letter from the course coordinator of the institute dated 16^th August 2021 confirming the Defendant’s enrolment status that she successfully completed her courses in 2020 and was due for graduation in 2021 but did not graduate. The course coordinator also says he did an employment and character reference for the Defendant upon her request but she did not call back to check on this.
    
24. Defendant says on her ROI that in 2020 she was in NCD and was not aware of the incident along the Hiritano highway. Furthermore, Defendant says she was now aware of the graduation date due to CoronaVirus. Letter from the court course coordinator says Defendant missed her graduation and also did not pick up her reference. If the Defendant was in NCD in November 2020 and 2021 as she claimed on her ROI, why did she not graduate in 2021 and pick up her reference in 2020? If she was in NCD, she could be well versed with the changes in the dates where she could graduate but why did she miss out on the graduation? Moreover, why did she not pick up her reference in November 2020 if she was in NCD? Given this, evidence shows Defendant’s assertion she was in NCD waiting for her graduation is not true.
    
25. Therefore, evidence in the police file shows Defendant on 30^th November 2020, was part of a group of men that allegedly involved in the allegation of murder against the victim. Under Section 7(1)(c) and (4) of the Criminal Code Act, evidence suggests that Defendant Leah Kapo was traveling with the rest of the other suspects including Rex Kapo/Bill Miname in the vehicle which was described as Toyota Land Cruiser, 10-seater, white in color with registration number BDM 948 and this evidence is sufficient to link the Defendant to the allegation.
    

CONCLUSION

26. I have perused the police file and Defense arguments in respect to the allegation of Willful murder against the Defendants Rex Kapo/Bill Miname and Leah Kapo and after careful assessment of evidence, I am satisfied and with consistent to Section 95(1) of the District Court Act, Police evidence has made out a prima facie case against the Defendants. Subsequently, Police have provided sufficient evidence against the Defendants for the allegation of Willful murder of the deceased under Section 299(1) of the CCA and thus Defendants are committed. Therefore, the elements of willful murder are met by police evidence that the accuses killed the deceased and the killing was unlawful that the accuses had the intention to kill.
    

ORDERS

27. My formal orders:
    
    1. Evidence is sufficient to commit Defendant Rex Kapo/Bill Miname for the charge of Wilful Murder under Section 299(1)(a) of the Criminal Code Act.
       
    2. Evidence is sufficient to commit Defendant Leah Kapo for the charge of Wilful Murder under Section 299(1)(a) of the Criminal Code Act.
       
    100. Defendants are committed to stand trial.
         
    4. Warrant of remand for Defendant Rex Kapo/Bill Miname to be remanded and Defendant Leah Kapo’s bail is extended.
       

Millennial Legal For the defendant
Police Prosecutor For the State