Poye v Pitu [2022] PGDC 75; DC8078 (17 May 2022)

DC8078

Papua New Guinea

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

NCC NO 1525 OF 2021
CB NO 2801 OF 2021

BETWEEN:

JOE POYE
[Informant]

AND:

TONY PITU
[Defendant]

Waigani: Paul Puri Nii

17th May 2022

COMMITTAL PROCEEDINGS: -Charge- Attempt Murder -Section 304a)- 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: Permissible requirement for prima facie matter-Establishment of the charge of Attempt Murder– Elements are not met. Section 7 of the Criminal Code Act not pertinent in the circumstance.

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
Defendant: In person For the Defendant

CONCLUSION ON POLICE EVIDENCE

17^th May 2022

INTRODUCTION

NII, P. Paul Magistrate. Pronouncement on whether a prima facie case is suitably documented within the importance of Section 95 of the District Court Act 1963. The judgment is stretched after Police evidence in the Police Hand Up brief and Defense case are judiciously dignified. Defendant argues evidence is insufficient to commit him while Police preserves evidence is suitable to commit the Defendant under Section 7 of the Criminal Code Act and consequently in the ensuing lines is currently my result on police evidence.

CHARGE

1. The accused is charged with Attempted Murder overstepping Section 304(a) of the Criminal Code Act 1974, Chapter No. 262.
   

“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”.

FACTS

2. Police allege the accused is 37 years old and from Yaipos village of Wapenamanda district in Enga Province and he is a police man attached with Mobile squad 4 of NCD who was on the 19^th November 2020 was drunk with his relatives at Boman Red sea police Barracks where he lives. Police allege that the accused’s brother and his wife walked towards where the victim was and had an argument with him and subsequently that had led to a fight where the victim was badly injured by the accused’s relatives.
   
3. Police allege that the accused’s relatives attacked the victim with all weapons such as sticks, stones, empty bottles and other weapons until he was unconscious and fell to the ground. Police allege that during the course of the flight, the defendant allegedly uttered words to the effect in the pidgin language as “pig money stap ya kilim m” by referring to his relatives to inflict the wounds on the victim and hence his relatives’ actions would be relieved with compensation.
   
4. Police finally says victim was later taken to Port Moresby general hospital Emergency and accident ward for medication and subsequently the defendant was arrested and charged for the offence of Attempted Murder under Section 304(a) of the Criminal Code Act.
   

ISSUE

5. Whether a prima facie case is prudently proven and that is whether Police evidence is appropriate to make a case against the Defendant.
   

THE LAW

The Law on Committal Proceedings

6. The law under Sections 94-100 of the District Court Act 1963, offers the reliable groundwork on how to manage committal ruling so the court would be guided well with evidence meeting the elements of the offence to make a prima facie case against the Defendant. In Police v Kambian[i] I have improved the principles in Akia –v- Francis[ii] that the principal occupation of the committal court is to assess police evidence and make a decision. Under Section 95 of the District Court Act with unfailing to the case of Yarume –v- Euga[iii] I will now assess the police file and provide my verdict on the strength of police evidence on a balance preferably less than the criminal balance of proof.
   

ELEMENTS OF THE OFFENCE

7. I have ruled in the case of Police v Medako[iv] on how a matter should be dealt with when assessing police evidence. I went on to state that police must establish with consistent evidence the elements of the allegation. Hence, in this case, Police must meet the elements of the allegation of Attempt Murder. The succeeding are the element of the focus charge:
   

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

a. A person who

b. attempts unlawfully

c. to kill another person

EVIDENCE

8. State/Police evidence plays an authoritarian fragment in the administration of criminal justice to guarantee a fair end is grasped. Evidence bordered in the Police file served on the Defendant should judiciously meet the elements of the allegation against the Defendant. Police case must gratify the elements of the charge and this is the attitude in the case of Police v Koka[v].
   

PROSECUTION CASE

9. Prosecution case is in the police file in terms of witness statements, medical reports, record of interview and other photo exhibits.
   

Police evidence

1. Anderson Benford – this witness says he was the victim who was attacked on 19^th November 2020. The Victim says he was attacked by the Defendant’s relatives including the defendant himself who threw several punches against the victim.
   
2. Brent Seno-this witness says he was the one who was previously attacked by the defendant’s relatives which then led to the victim’s attack. He says he saw the defendant and his relatives running towards him. However, he says he ran for his life and was hiding somewhere where he could not be seen. Witness says he later felt stones and stocks flying towards his direction.
   
3. Janet Alo- this witness says the victim was with her at the time when he was attacked. This witness says the defendant’s relatives went and attacked him with a bush knife, stones and sticks, however, she says since the victim was athletic and does regular physical exercise, he survived the attack which would otherwise have been a fatal incident. Lastly witness says he heard the defendant saying “ pig na money stap ya kilim m” meaning for the assailants to murder the victim and later compensation would take care of the effect.
   
4. Enock Martin- this witness says a group of men believed to be the Defendant’s relatives went and attacked the victim. He says he had witnessed the entire allegation where the victim was assaulted and wounded by the defendant’s relatives. He says the defendant was running towards the allegation scene and also heard him supporting his relatives to attack the victim and later the victim would be compensated.
   
5. Robert Albert-this police witness says he was a police corroborator who was with the arresting officer at the time when the defendant was interrogated.
   
6. Joe Poye- this state witness is the arresting officer, the case officer who did the investigation leading to the arrest and the subsequent charge against the defendant.
   

DEFENSE CASE

10. Defendant through his submission filed on 14^th March 2022 says state evidence is inconclusive and inconsistent with the dates and thus the contents of the evidence not to be trusted. Moreover, defence submits that he was not part of the allegation as he was not there at time of allegation. Therefore, he submits that police evidence is not sufficient to commit him for the offence under enquiry.
    

CONSIDERATION OF EVIDENCE

11. Police evidence shows on the 19^th November 2020, there was a fight between some people at the red sea police barracks in NCD in which the victim was badly wounded. The fight occurred between the occupants of two police houses namely Tony Pitu and Simson Alo. Prior to the moment leading to the allegation, the assailants were staying at the defendant’s house while the victim was staying in another house.
    
12. Medical reports and police statements show the victim was wounded by some people on the night of 19^th November 2020.
    

RULINGS

13. The victim was wounded on the night of 19^th November 2020. The statement of the victim dated 4^th January 2022 says he had a fist fight with the defendant before he was assaulted by the defendant’s relatives. Statement of Brent Seno says the defendant was running towards the allegation scene. Witness Brent Seno did not say he saw the victim being assaulted by the defendant but was running towards him. Statement of Janet Alo and Enock Martin did not say they saw the defendant assaulted or wounded the victim but they said they heard the defendant saying he would meet the compensation demands and therefore the assailants to proceed and assault the victim.
    
14. The victim’s statement is not corroborated by other witness statements that the defendant had a fist fight with the victim at the time when the defendant‘s relatives wounded the victim. Unlike some specific offences in the Criminal Code Act where corroboration may not be required, the present charge necessitates corroboration to substantiate the subject allegation.
    
15. Circumstantial and implied evidence may not magnificently bond an allegation to the defendant if corroboration is not established through police evidence. All witness evidence has demonstrated that the victim had a fist fight and was running towards the allegation scene. However, they have not identified the defendant to be the person who had either used a stone, stick or bus knife and attempted to unlawfully kill the victim. Thus police evidence is not fittingly assisting me to draw me attention to Section 95(1) of the District Court Act and thus it is now my ruling under Section 95(2) of the District Court Act that Police have failed to make a prima facie case against the defendant for the offence of Attempted murder under Section 304(a) of the Criminal Code Act. The evidence provided in the police file is not meeting the elements of the offence and thus the information is dismissed.
    

CONCLUSION

16. Police evidence is insufficient to make a prima facie case against the Defendant for the allegation of Attempt Murder under Section 304(a) of the Criminal Code Act and thus evidence demonstrates Defendant on 19 November 2020 did not attempt to murder the victim.
    

ORDERS

1. Evidence is insufficient to commit the Defendant.
2. Information of Attempt Murder under Section 304(a) of the Criminal Code Act is dismissed.

100. Defendant’s bail is refunded forthwith.
     

In person For the defendant
Police Prosecutor For the State

[i] [2021] PGDC 66;DC6021(30^th June 2021)
[ii] [2016] PGNC 335; N6555 (24 August 2016)
[iii] [1996] PGNC 24; N1476 (6 September 1996)
[iv] [2021] PGDC 54; DC6011 (31 May 2021)
[v] [2021] PGDC 53; DC6010 (31 May 2021)