Korugl v Segive [2022] PGDC 76; DC9012 (26 June 2022)

DC9012

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS COMMITTAL JURISDICTION]

COM NO 1648 of 2021
BETWEEN

RAPHAEL KORUGL
Informant

AND

ENA SEGIVE
Defendant

Waigani: O Ore Magistrate

2022: 23^rd June
      

COMMITTAL PROCEEDINGS – Stealing – Section 372 (1) – Criminal Code Act Chapter 262- elements of offence – whether evidence is sufficient to commit defendant to stand trial in the National Court – Evidence Sufficient to warrant committal to National Court

PNG Cases Cited
Regina v McEachern [1967-68] PNGLR 48

Overseas Cases

References

Legislation
Criminal Code Act Chapter 262
District Court Act 1963

Counsel

Kilip R, for the Informant

Kayok D, for the Defendant

RULING ON SUFFICIENCY OF EVIDENCE

26^th June 2022

1. O Ore, Magistrate: The Defendant in this case, Ena Segive is charged with one count of Stealing under Section 372 (1) of the Criminal Code Act Chapter 262. The charge itself falls under the category of offences listed in schedule 2 of the Criminal Code Act. Being schedule 2 offence, the Police Hand Up Brief (PHUB) was sent to the Office of the Public Prosecutor (OPP) for election. The OPP after reviewing the PHUB made the decision to have this matter elected for committal considering that the amount involved was significant.
   
2. This matter came before this Court on 08^th of June 2022 for submissions on sufficiency of evidence. Madam Prosecutor Regina Kilip for the informant asked the Court to look at the evidence contained in the PHUB and make its ruling. Counsel David Kayok for the Defendant submitted that there were admissions made by the Defendant and asked the Court to consider the file and make its decision.
   
3. This is now my ruling on whether there is sufficient evidence in the PHUB to commit the Defendant to stand trial at the National Court pursuant to section 95 (1) of the District Courts Act 1963 (DCA).
   

FACTS

4. The following are the summary of facts alleged by police to have taken place.
   
5. It is alleged that the on the 23^rd of November 2021, between 1pm and 1:30pm, the Defendant stole K15,000in cash at the Pandora Ridge Apartments at Down Town, Port Moresby from the Complainant one Kevin Loh Kock Loon.
   
6. The Defendant at that time was employed by the Complainant as a cleaner. After taking the money, she fled the scene and headed back to her residence at ATS First Block
   
7. She was on the run until 28^th November 2021 at around 3:00 pm when she was apprehended at her residence. During her apprehension, cash monies amounting to K1300 was recovered in her possession.
   
8. It is alleged that she admitted to committing the offence so her admission was recorded by video and also prepared as a confessional statement before she was formally arrested and charged.
   

ISSUE

9. Whether, the evidence in the Police Hand-up Brief is sufficient to commit the Defendant to stand trial in the National Court, for the commission of the alleged offence.
   

RELEVANT LAW

10. Section 372 of the Criminal Code Act provides for the offence of stealing. It is in the following terms:
    

372. Stealing.

(1) Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: Subject to this section, imprisonment for a term not exceeding three years.

11. For purposes of this committal proceedings, the evidence must show prima facie that the Defendant stole something that was capable of being stolen.
    
12. The District Court sitting in its Committal Jurisdiction is given the power under Section 95 of the District Courts Act to make a cursory enquiry into the evidence provided by the Police and establish whether the evidence is sufficient to put the defendant on trial.
    
13. Section 95 of the DCA states:
    

“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.”

14. At this stage of the committal process, a cursory enquiry in my view involves two separate processes. Firstly, an enquiry into whether the administrative process under Sections 94, 94A, 94B and 94 have been fully administered.
    
15. Secondly, an enquiry into the evidence that has been offered by the prosecution. The enquiry at its best should be cursory or made prima facie. It is my view that the elements of the offence itself should not be discussed or tested in depth. To test the evidence in depth would be seen as assuming the role of a trial judge.
    
16. Any defence raised by Defendants should be left alone and left for the trial Court to decide if the matter is committed. Consideration of any defence raised in my respectful view goes against the intent of Section 95 of the District Courts Act which is to decide whether or not the evidence offered by the prosecution is sufficient to put the Defendant to trial.
    
17. In Regina v McEachern [1967-68] PNGLR 48, the standard of proof required of a Magistrate siting at the Committal Court is one lower then beyond reasonable doubt. A quote from the Court in that case:
    

"To decide that the evidence offered by the prosecution in committal proceedings is sufficient to put the defendant on trial.... The Court has only to form a bona fide opinion that there is a sufficient prima facie case against the defendant.”

EVIDENCE

18. The evidence contained in the PHUB comprises of:
    
    1. Statement of 12 Witnesses
    2. Record of Interview both Original and Translated
    100. Confessional Statement both Original and Translated
    4. Crime Scene Photographs
    5. CCTV Footage 2x
    6. Confession Video Taken by Phone
    7. Indemnity Receipt for money given to Exhibit Officer with case of K1300
    8. Antecedent Report
       

Witness Statements

1. Kelvin Kock Loh
   

19. He is the principal complainant who is also the victim and the employer of the Defendant. He will testify that the Defendant stole his money.
    
    2. Joedin Ulnagan
       
20. He is the Security Manger for Phoenix Group of Group of Companies. He will testify on how he got the information from his superior the who is the Complainant and also on how he assisted in the investigation.
    
    100. Raynold V Manas
         
21. He is the IT Specialist for Phoenix Group of Companies. He will testify on how he obtained the CCTV footage.
    
    4. Jayne Ann C Gonzales
       
22. She is the Company Secretary with Phoenix Group of Companies. She will testify that she took the photos of the interior of the apartment.
    
    5. Korugl Raphael
       
23. He is the case officer. He will testify on how, when, why and what regarding the stealing. He will tell the Court the reason why he arrested the Defendant and present evidence in Court.
    
    6. Sgt Eddy Niahara
       
24. He is the exhibit officer who was handed the exhibit.
    
    7. Sgt Samson Pantan
       
25. He is the forensic photographer who attended the scene so he will supply the photographs of the scene depicting the place of stealing to the place of apprehension.
    
    8. Jeffery Bellie
       
26. He assisted in the apprehension of the Defendant and will corroborate the case officer’s story.
    
    1. Sgt Naime Jimmy
       
27. He was driver of the vehicle hired by the Police used during the apprehension of the Defendant. He will give his side of the story on how the Defendant was apprehended.
    
    10. Robin Slim
        
28. He is a Police Detective Constable of CID Armed Robbery Squad, who was the corroborator during the ROI for the Defendant.
    

PROSECUTIONS CASE

29. The Prosecution through Prosecutor Regina Kilip on submission submitted that she will not make submissions. She submitted that everything is in the Police file and that the Court should consider it (Police File) and make a decision.
    

DEFENDANT’S CASE

30. The Defendant is represented by Mr David Kayok from the Office of the Public Solicitor. Counsel indicated to the Court during hearing that he had opted not to file any submissions. This was because there were admissions made by his client that are contained in the PHUB. He asked the Court to look at the file and make its decision.
    

CONSIDERATION OF EVIDENCE

31. The evidence offered by the prosecution witnesses is that the Defendant was the person who stole the Complainant’s money. She was the only person who cleaned the Complainant’s room. She was the only person in the house at that time when the money went missing. She was identified from the CCTV footage as the person who stole the money. She was apprehended and confessed to stealing the money and gave back K1300 which is what is claimed to be the remaining portion of the money that she stole.
    
32. The Defendant has also admitted in the record of interview that she did take the money which include two bundles of K4000. She took the money out of frustration after her salary was cut for not turning up for work.
    
33. She also further admits in a confessional statement that she took the money citing the same reasons provided above. She says that the money she took was not K15,000 but K8,000.
    

FINDINGS

34. I now go into my findings on the issue at hand which is whether the evidence is sufficient to commit the Defendant to stand trial at the National Court.
    
35. Upon a close review of the PHUB and also given that no issues were raised during hearing on the administration of the proceedings, I am satisfied that administrative process under Sections 94, 94A, 94B and 94C have been fully administered.
    
36. As to my enquiry into the sufficiency of the evidence provided by the Prosecution, I find that evidence produced by the prosecution is sufficient to warrant a committal of this matter to the National Court.
    
37. I therefore find that there is sufficient evidence prima facie to warrant the committal of the Defendant to stand trial at the National Court for the charge of Stealing under Section 372 (1) of the Criminal Code Act Chapter 262.
    

Administration of Section 96 Statement

38. After finding that there is sufficient evidence warranting the committal of the Defendant to stand trial at the National Court, the Defendant was given the opportunity to make a statement under Section 96 of the District Court Act. She did so thorough her lawyer by filing a written statement. It was filed and later identified by her in Court.
    
39. Her statement is basically a repeat of what she said during the record of interview. She also further confesses in her statement to taking the money. She further states the reason why she took it which was because of being underpaid.
    
40. The statement itself does not raise anything new on my earlier ruling finding prima facie sufficient evidence that would affect it. Thus, the ruling on sufficiency of evidence is in order and remains.
    

COURT ORDERS

41. I make the following orders;
    
    1. There is sufficient evidence warranting the committal of the Defendant to the National Court for one count of Stealing under Section 372 (1) of the Criminal Code Act Chapter 262.
       
    2. The Defendant is committed to stand trial in the National Court on one count of Stealing under Section 372 (1) of the Criminal Code Act Chapter 262.
       
    100. The Defendant is to appear at the Waigani National Court, Criminal Listings on 26^th September 2022 at 9:30 am.
         
    4. The Defendant’s District Court Bail is extended on the same conditions.
       

Lawyer for the Informant Police Prosecutions
Lawyer for the Offender: Public Solicitor