Tangele v Kilikba [2022] PGDC 68; DC8071 (5 May 2022)

DC8071

Papua New Guinea

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

COM NO 1237 OF 2021

BETWEEN:

NICK TANGELE
[Informant]

AND:

FRANCIS KILIKBA
[Defendants]

Waigani: Paul Puri Nii

05th May 2022

COMMITTAL PROCEEDINGS: Charge-Grievous Bodily Harm-Section 319 of the Criminal Code Act. Witness statements- State evidence- suitable formation of prima facie evidence - elements of the charge persistent –Evidence is equal- Defendant committed to stand trial.

PRACTISE AND PROCEDURE: Calculation of evidence under Section 95 of the District Court Act. Defendant admitted to commission of the offence-elements of intention and premeditation. Evidence of Grievous Bodily Harm. Defendant committed on one count of Grievous Bodily Harm. Elements of the offense sustained.

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 Solicitor: Luke Siminji For the Defendant

COMMITTAL RULING

5^th May 2022

INTRODUCTION

NII, P. Paul Magistrate. Conclusion on committal under Section 95 of the District Court Act. On 17^th March 2022, the accused's Lawyer argued evidence is lacking to commit the defendant while the police prosecutor says evidence is sufficient and hence is my ruling on the parties’ arguments regarding the weight of police evidence.

CHARGE

1. Defendant is charged under Section 319 of the Criminal Code Act. The details of the charge are publicized below:
   

“319. Grievous bodily harm.

A person who unlawfully does grievous bodily harm to another person is guilty of a crime. Penalty: Imprisonment for a term not exceeding seven years”.

BRIEF PARTICULARS

2. Police information reads, the defendant is aged 40 years old and of Bonguora village of Maprik in East Sepik Province who was on 28^th August 2021 between 7pm and 8pm was travelling in his brother in-law’s vehicle on Waigani drive from VC towards North Waigani Traffic lights. Complainant was also travelling in his vehicle towards the same direction as the defendant.
   
3. Police says Complainant was travelling at the back of the car the defendant was travelling in. When they had approached the lane opposite the new gas station, referred to as Total Fuel Service station, the cars bumped. Complainant after realizing what had happened, came out of his car and informed the Defendant for the traffic police to deal with the accident. However, police say the defendant was so aggressive and was trying to assault the victim so the victim walked towards the opposite lane close to the new gas station where some people were standing. Police say the defendant walked over to where the victim was standing and punched him on his mouth and hence the defendant lost 5 of his teeth.
   
4. Police says bystanders who were at the scene came and stopped the defendant and the victim and subsequently a report was lodged with police which led to the Defendant’s arrest and charge under 319 of the Criminal Code Act.
   

ISSUE

5. The enquiry of evidence is authoritative here and that is whether or not there is appropriate evidence to commit the Defendant for the subject allegation.
   

THE LAW

6. The court will rely on Section 95 of the District Court Act and make a ruling on police evidence. The subject law is supplicated 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

a) A person

b) who unlawfully

c) does grievous bodily harm

d) to another person

EVIDENCE

Police case

7. Police evidence is in the police file served on 7^th January 2021. It contains victim and witness statements including the ROI and medical reports.
   
8. List of police evidence:
   

No	Name	Particulars	statements
1	Joel Ross	Complainant	Witness says he is the victim who was assaulted by the Defendant. The Complainant says after his car bumped the defendant’s car, he went outside and apologized to the victim. However, the driver of the victim's car remained calm but the defendant was so aggressive and punched him on the mouth which caused 6 teeth to come out.
2	Nasson Seki	Witness	Witness claims he was with the victim when the defendant approached and punched him on his mouth. Witness said he had witnessed the incident.
3	David Haniken	Witness	Witness says he was with witness Nasson Seki and his story is same as Nasson Seki’s
4	Johnny Seki	Witness	This witness was with the other witnesses and his story is also the same as the witnesses.
5	Samuel Koy	Police forensic officer	Policeman who took photographs of the teeth that came out from the punch.
6	Rex Essau	Police Corroborator	Police witness who corroborated the ROI.
7	Nick Tangele	Arresting officer-	Police arresting officer who did the initial investigation including the ROI.

Defense case

9. Defendant objected to the evidence that it does not comply with the requirements under Section 94 of the District Court Act. Defendant argued that the statements obtained are in breach of the Evidence Act. Moreover, the defendant argued that the teeth are of a different person and not of the defendant as the teeth are stained.
   
10. Defendant at question 18 of his ROI says he was really upset when his car was bumped by the victim. Additionally, at questions 22 and 23 of the ROI, the defendant says he only slapped the victim but since the victim was over drunk he fell down.
    

DELIBERATION OF EVIDENCE

11. Evidence shows on 28^th August 2021 between 7pm and 8pm, there was a car accident along the waigani drive near the new Total service station in which the victim and the Complainant’s car were involved. Evidence shows at the time of the incident; the victim was with three other witnesses who had also submitted statements in support of the police case. Evidence shows the defendant walked over to where the Complainant was but he says he did not punch him but only slapped him.
    

RULING

12. There is no issue about the defendant being at the scene and his identification but the issue is of the allegation. Defendant says he did not punch him but only slapped him. I have carefully assessed all the evidence and found out that the defendant followed the victim to the other side of the road which the defendant also admitted on his ROI. Defendant also says he was upset when his car was bumped by the victim. Even though the victim was going towards the other side of the road in order to avoid confrontation from the defendant, the defendant followed him because he was upset.
    
13. Evidence shows when the defendant followed him after being upset, he had premeditated with irritation and frustration against the victim and once being approached the defendant had released his frustrations and anger on the victim by way of an act constituting bodily contact. Given the circumstances the defendant was placed with and consistent with the witnesses’ statements, I do not think the victim was only slapped but was punched.
    
14. I have considered the arguments on the legality of police statements, however, these are matters for trial court when police evidence is actually tested but for my jurisdiction under Section 95 of the District Court Act, after assessment of evidence, I am satisfied there is a case against the defendant.
    
15. I am satisfied with police evidence that 28^th August 2021 along Waigani drive near the new Total service station, Defendant had unlawfully did grievous bodily harm on the defendant and thus evidence is sufficient to make a prima facie case against the defendant.
    

CONCLUSION

16. Consequently, under Section 95(1) of the District Court Act, I rule that police evidence is adequate to make a prima facie case against the Defendant for the charge of Grievous Bodily Harm under Section 319 of the Criminal Code Act.
    

ORDERS

17. My Orders:

1. Evidence is sufficient to commit Defendant Francis Kilikba for the charge of Grievous Bodily Harm under Section 319 of the Criminal Code Act.
   
2. Defendant is committed to stand trial.
   

c) Defendant’s bail is extended.

Public Solicitor For the defendant
Police Prosecutor For the State