Aua v Levi [2022] PGDC 53; DC8056 (29 March 2022)

DC8056

Papua New Guinea

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

COM NO 1331 OF 2021

BETWEEN:

STEVEN AUA
[Informant]

AND:

SAMUEL LEVI
[Defendants]

Waigani: Paul Puri Nii

29^th March 2022

COMMITTAL PROCEEDINGS: Offending charge-Attempt Murder-Section 304(a)–Criminal Code Act. Witness evidence- Medical evidence- suitable creation of prima facie evidence - elements of the charge of attempt murder sustained –Evidence is equal to the allegation- Defendants committed to stand trial.

PRACTISE AND PROCEDURE: Calculation of evidence under Section 95 of the District Court Act. Victim scrutinized by the Defendant-wounded by bullet penetration-elements of purpose and planning. Evidence of pursuing and infuriating factors prominent to the allegation.

PNG Cases cited:

State v Michael Nule(2011) N4198,
State v Raphael Kuanande [1994] PNGLR 512

Overseas cases cited:

Nil

REFERENCE

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

Counsel
Police Prosecutor: Jospeh Sangam For the Informant
Kawat Lawyers: Jonathan Asupa For the Defendant

COMMITTAL RULING

29^th March 2022

INTRODUCTION

NII, P. Paul Magistrate. Conclusion on committal under Section 95 of the District Court Act. On 7^th February 2021, parties argued on police evidence in respect to their interests and now is my ruling on police evidence.

CHARGE

1. Accused is charged under Section 304 (a) of the Criminal Code Act. The details of the charge are shown below:
   

“304. ATTEMPTED MURDER, ETC.

A person who–

(a) attempts unlawfully to kill another person.”

BACKGROUND FACTS

2. Police says Defendant is aged 30 years and of Konge village in Kabwum District, of Morobe Province, whom police alleged on 9^th July 2021, between 6pm-10pm was driving towards Bomana road to Bomana Police College in NCD, PNG. Police say while driving along the Bomana road, Defendant saw an oncoming Taxi bearing Kenny Trans Taxi Services logo. The Taxi was travelling towards 9mile way, however, Defendant turned around and was pursuing the Taxi. Defendant chased the taxi all the way to 9mile and stopped him near the nearly built roundabout at 9-mile and went out and attacked the Complainant without any valid reason.
   
3. Police says Defendant punched the victim while he was still in the car and later got his pistol out and pointed at the victim and shot him on his right foot. While the Defendant was still left in pain and agony was taken to Bomana police college boom gate and was attacked and assaulted again without having him charged and later released.
   
4. Subsequently a criminal Complainant was lodged at Gordons Police station and investigations into the allegation commenced until on 23^rd September 2021, the Defendant was called in and arrested for the offence of Attempt Murder under Section 304(a) of the Criminal Code Act and he is now in court on a bail of K1,000.
   
5. The victim in this case is Junior Samson aged 19 and from Kelam village of Hagen Central in WHP.
   

ISSUE

6. Whether or not there is sufficient evidence to commit the Defendant for the allegation of Attempted Murder.
   

THE LAW

7. My authority to rule on Police evidence after submission on evidence is established in Section 95 of the District Court Act. The court has the power to measure police evidence on a prima facie foundation to determine whether or not evidence is satisfactory to create a case against the Defendant. The law is stated 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 CHARGES.

Elements of Attempted Murder

a) A person who

b) attempts unlawfully

c) to kill another person

EVIDENCE

Police case

8. Police file contains police evidence tendered to the court on 10^th November 2021, which contains witness accounts and documented evidence comprising photo exhibits and medical reports.
   
9. List of State witness:
   

No		Name	Particulars	statements
1		Junior Samson	victim	Witness says he is a taxi driver and was attacked by the Defendant and later shot on leg by the Defendant without any apparent reasons.
2		Kindi Kundi	Eye witness	This witness says on 9th July 2021 at around 7pm, he was with the victim in the same taxi travelling up to Kinakon when they were stopped by the Defendant at the newly built roundabout at 9 mile and assaulted the victim. This witness says he was later commanded by the Defendant to run after pointing a pistol at him so he ran for some meters until he met some people who also heard the gun shots by the Defendant.
3		Jacob Mendi	witness	This witness is a taxi driver who says while he was approaching the accident scene, he saw the defendant punching the victim and was holding a pistol and talking aggressively to the victim to the effect of words “you lukim mi karim meri pikini blo mi too”. He says when he drove a few meters away, he heard gunshots coming from the place of allegation. .
4		Ishmael Nalinge	Witness	This witness says he was informed by witness Kindi Kundi that he was ordered by police to run and later he heard gunshots at the place of allegation.
5		P/C Plus Ruimb	Policeman	Witness says he was at Bomana boom gate and saw the victim’s Taxi being driven in. He also says he saw the Defendant assault the victim with other youths at the Bomana boom gate. This witness identified the Police vehicle used by the Defendant at the time of allegation as a blue Toyota land cruiser with registration LBR 268 and victim’s taxi with registration No T7283
6		Constable Jackie Kinaliu	Police witness	Witness says he was on duty on 9th July 2021 at 9pm and witnessed the Defendant and victim at Boman police boom gate. Witness says the victim was taken in by the Defendant as being drunk but was later released.
7		Joseph Numbos	Police forensic Officer	This witness says he is an experienced forensic officer and he did his own investigations into the allegation and found out that a pistol was allegedly used to inflict wounds on the victim’s legs.
8	Stanley Billy		Corroborator	Policeman who was present with the arresting officer at the time when the accused was interrogated.
9	Steven Aua		Arresting officer	He is the policeman who arrested the Defendant and the one who took the lead into the investigation that led to the Defendant’s arrest.

Defense case

10. Defendant through his submission filed on 3^rd February 2022 argues he followed the victim and signaled him to stop and subsequently used reasonable force to have him taken out of his taxi and brought him to Bomana police boom gate. Defendant argues that the victim was kept at the Boom gate and released the next day when he was sober. Defendant however, denies he shot him on his leg with a pistol.
    
11. Defendant while relying on the case of State v Michael Nule(2011) N4198, established 7 elements of Willful murder under Section 304(a) of the Criminal Code Act. The elements are:
    

a. The accused (person)

b. Intended actually to kill the Complainant

c. put his intention into execution by means adapted to its fulfillment

d. Acted unlawfully,

12. Defendant cited the case of State v Raphael Kuanande [1994] PNGLR 512 and argued on the issue of intention. Defendant argues there was no evidence of intention that Defendant had an intention to cause the act of attempt murder. Defendant submits that police evidence fails to establish the allegation of Attempt murder conforming to the respective elements.
    
13. Defendant in summary argues that police have not proven with evidence that defendant is the individual who had planned to murder the Complainant and this he laid his objective into implementation by means reformed to his fulfillment and the act was indeed criminal. Based on the above defendant argues evidence is insufficient to commit the defendant.
    

DELIBERATION OF EVIDENCE

14. Evidence shows there is an allegation of Attempt Murder on the 9^th July 2021 between 7pm to 8pm. There is evidence of the victim being shot on the leg. Police forensic officer confirms that a pistol was used to shoot the victim because the empty shell found near the alleged scene was that of a 9mm round.
    
15. There is evidence that on the date of allegation the victim was approached by the defendant at the place of allegation and the evidence further shows the victim was further taken away from 9-mile to Bomana police boom gate. Police have identified the following evidence:
    

a) The 9mm empty shell

b) The victim’s taxi/car

c) Defendant’s vehicle

d) A pump action/shot gun

16. However, Defendant through his Lawyer argues he did not shoot the victim with a pistol on his leg. Defendant strongly denied his involvement in the allegation.
    

RULING

17. Victim on paragraph 3 of his statement dated 10^th July 2021 says Defendant punched him while he was still inside his taxi. Defendant says then he pulled him out and pointed a pistol at him and Kindi Kundi and ordered Kindi Kundi to run and shot the victim on his leg. Victim says he was also assaulted by other crew members who came with the Defendant in his vehicle. The other witnesses of Kindi Kundi, Jacob Mendi and Ishmael Nalinge say they heard gunshots. Witness Kindi Kundi says someone was pointing a pistol at him and swore at him by saying “kan, lusim car na run” meaning pussy (vagina), leave the car and run.

Defendant denied he shot the victim. In the assessment of evidence, I am satisfied someone had fired shots. It happened at the place of allegation and time. There is evidence of a shotgun but the shotgun was never used and instead a pistol was used. The photo exhibits 9mm rounds of empty shells confirms this. However, who was the one who fired the shot since the defendant denied his involvement?

18. Evidence shows the shot was fired by someone within the group at the time of allegation. The victim says the defendant was holding a pistol while witness Kindi Kundi says someone pointed a pistol at him and ordered him to run. The evidence of victim, Kindi Kundi and Jacob Mendi say defendant was saying to the victim words to the effect as I quote “you lukim me karim meri pikinini blo me too” (end of quote) connotation that defendant was harsh on the victim that he was driving with his wife and children inside and thus victim should ruminate this and dive properly. These 3 witnesses say the victim was assaulted by the defendant at the allegation scene.
    
19. There is evidence of hash words and assault occasioned on the victim accompanied the gun shots signifies that these actions are connected and related. There is evidence from a state witness and all are corroborating that the defendant spoke hardly on the victim and later assaulted him. Defendant says he did not shoot the victim. Nevertheless, evidence shows the shooting was accompanied by the assault and harsh words and therefore evidence shows when the defendant assaulted and swore at the victim, he shot the victim on his leg.
    
20. Therefore, police evidence supports the elements of attempt murder as indicated in State v Michael Nule[i] that the suspect had actually anticipated to murder the victim and thus he put his target into implementation by means adjusted to his success and thus the act was illegally.
    

CONCLUSION

21. I have read the police file, Defendant’s ROI and Defense submission and after going through each of them, I am satisfied under Section 95(1) of the District Court Act, Police evidence has made out a prima facie case against the Defendant. Consequently, Police have provided sufficient evidence against the Defendants for the allegation of attempted murder against the victim under Section 304(a) of the CCA and thus Defendant is committed.
    

ORDERS

22. My formal orders:
    
    1. Evidence is sufficient to commit Defendant for the charge of Attempt Murder under Section 304(a) of the Criminal Code Act.
       

b) Defendants are committed to stand trial.

c) Bail Extended

In person For the defendant
Police Prosecutor For the State

[i] (2011) N4198