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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR NO. 76 OF 1996
THE STATE
v
JIMMY KIPMA
Waigani
Batari AJ
4 April 1997
8-9 April 1997
CRIMINAL LAW - Practice and Procedure - Submissions on No Case to Answer - Relevant principles - Consideration of - Exercise of Discretion - Insufficiency of evidence.
CRIMINAL LAW - Evidence - Identification - Voice identification - Proof of.
Cases Cited:
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Delga Puri & Anor [1982] PNGLR 395
The State v Daniel [1988-89] PNGLR 580
R v E J Smith (1984) NSWLR 462 (1984) 12 CRIM R 439
Counsel:
D Mark for the State
S Holland for the Accused
RULING ON NO CASE TO ANSWER APPLICATION
9 April 1997
BATARI AJ: Jimmy Kipma is on trial accused of aiding and abetting the deaths of Philip Wamakabi and Francis Poiuari by virtue of s.7 of the Criminal Code Chapter No.262. His guilt was also alleged s.8 that that he murdered the deceaseds in the prosecution of a common purpose with others. Hendicted on the two countcounts of wilful murder under s.299 of the Code.
(a)҈& le Allegatiogations
sState has alleged that on 24 November, 1994 the accused was amongst a group of youths who attacknumber of houses and the occupants
at 9 Mile Sepik Settlement, in the National Capital Dist District. On the night of that day,mthe mob broke into a canteen owned
by a married couple from Morobe Province. Alerted by the no the two two deceaseds andew Ani went to investigate. The thre were
set upon andn and beaten up by the mob.. Andrew Ani ed with injuriejuries whis two companions died subsequently from their injuries.&#es.
The mob aphed another hous house and the accused was heard urging thehs to attack that house and kill its occupants. It waIt was
also allthat that the tall big man amongst the mob fitted the descre physique of the accused. (b) Ppinciofes 821&#No C;sese’ When State concluts evidence yesterday, Coun Counsel for the Accused, Mr Holland made a ‘no case submission’ on his client’s
behalf.; Theence st the accused aded adducedduced thus thus far, has been in the form of sworn testimony of three witnesses besides
the Police Investigator and documentary evidence which included the Record of Interview and Medical Report. I have had the opportunity to read the evidence. I have also considthe evid evidence in the light of the principles of ‘no
case to answer’ as enunciated in the case of The State v Paul Kundi Rape [1976] PNGLR 96. As stage, I am not requirequired to examine the evidence in detail and apply it on the higher standard. To do so would be erranes
s as warned by Kidu, CJ in the case of The State v Delga and Anor [1982] PNGLR 395 w395 where the Late Chief Justice stated that it is wrong for a judge to decide after the prosecutions caseher or not he is satisfied
fied beyond reasonable doubt of the guilt of the accused before all the evidence is before him. The essential question in a ‘no case’ application is whether on the evidence as it stands, the accused would be lawfully
convicted. This is a que of law.  I am required onlassess whss whether the evidence produced thus far, either directly or indirectly
make out all the elements of the charge. Furto this is the questionstion of the exercise of the discreti power of the Court commonlmmonly
referred to as the second leg of Paul Kundi Rape’s case. Undis second principle, tue, turt decides whether or not not the
case would proceed beyond the State’s case. The rationale is rule is t is that the eve supporting all or some of the elements
of the offence aree are so vague, so insufficient or so unsatisfactory that the accused shout be called upon to answer it. her words,
beyondeyond thed the State’s case the evidence may not improve to stand the test of prove beyond reasonable doubt on the question
of facts. (c) 16;82 Caso’ - Questioestion of Law The accused is charged with two counts of wilful murder. I must con whether or not not all elements have made Under9(1) e Cri Code,
the elementsments of w of wilfulilful murd murder arer are: (i) offender (ii) intent to cause death (iii) the act of killing av)
death. The elemenlement of death is uncontested. The of two deaths on the nthe night of 24 November, 1994 is thus, conclusive. The elements
of ̶ent&#ent” and “act of causing death” may be inferred from the Medical Repsupported by the evidence once
of Andrew Ani who said he was in his when he heae heard noises of people talking and banging on the roof of a house at about 8.00
pm. He went to investigate but was attacked by sixteen to seventeen men about two to three meters ont of his house. At ; At that
time and plac place, Philip and Francis were also attacked. He ed to Noah’s hous house and returned a short time later, to
find the two men were lying on the ground. Eddie Wakuna said s at Ambt Ambros’ houd heard noises of people talking and breaking
into a house ouse in the direction of Andrew Ani’s house. He went there to tigatompacompanied by his uncle Ambros and Edward
Ambuka.&#ka. The n ceased and a mob of b of about thirteen men proceeded in trection of Ambros’ house. The onfronted Eddie
Wakunaakuna and his companions anns and threatened them with a gun. &#They escap Lawrencecece’s house while the group
proceeded to Ambros’ house and attacked him. Eddie Wakuna later we Andrew Ani’s house and saw Philip and Francis lying
next to the other, dead. E60; Edward Ambuve similarmilar evidence abhe noises and house breaking. Inferentially, the evidence of
noises ous house-breakineaking together with Andrew Ani’s eve and the resultant injuries to the bodies of the two deceadeceased’s
show the intention to kill and the act of killing. The accused is linked to the double murder by the evidence of Eddie Wakuna and Edward Ambuka. Both stated they tall bigl big man
as the only one amongst the group of men who were mostly short in stature. Tcused is a tall well-buil-built man and fits the description
given by Eddie Wakuna. What man spelling the othe othe others to attack and kill Ambros, the two witnesses recognised the voice
as that of the accused’s.[1988-89] PNGLR 580: “Evidence that the voice of a person involved in a crime is the voice of an accused is admissible to prove identification of
the accused where: (a) & the voie voice is known by the witness and recognised by the witness; and (b) &ـ the voie voice is e is not previously known to the witness but has sistin featthat it leaves a clear mental impression
in n in the mthe mind oind of the witness enabling him to draw the conclusion on hearing it later that it was the same voice.” Like visual identification, voice identification testimony has been regarded as legitimate and competent to establish identity in
both criminal and civil cases. See R v EJ Smith (1984) 4WLR 462 (1984) 12 A CRIM R 439. Voice identification evidence in this case has not been challenged on its admissibility. TheState witnesses ward thrd the voice
said they had known the accused for nine mont months prior to the date in question and are familiar with his voice as they hnversed
with him on several occasions. Their evidencidence on what was uttered further supported the element of intent. w Ani also gave evidence once of a similar description
of the taller and bigger man amongst the mostly short men in the group.&#He did not however hear that man utter anything. On the
evidencvoice identidentificatfication by witnesses Eddie Wakuna and Edward Ambuka, I am satisfied that all the elements of wilful
murder are made out against the accused. (d) ;𩄘No Ca2e̵̵’ - Question of Discretion I now consider the discretionary question of whether or not the trhouldeed b this point. In Paul Kundi Rape7;s case case, it is stated
that what where here therethere is a case of insufficiency of evidence, the accused as a matter of law may be called upon to answer
it, but there is a discretion in the judge either or not to call him at all. State has sought to establish two points of identification against the accused: (i) his physical stature and (ii) his voice. The
three maine witnesses sses know the accused by name and in person. They areed a tall big man man was amongst the mob which attacked
the settlers on the night in question. I infer that he stood out amongst the mostly shorter pe and was their leader. The witnessesnot
give anye anye any other visual physical description of that man. The accused as e observedefitted the description of a tall well-built
man. man. If the dption was too vagu vague against the accused, the evidence drew Ani makes the visual identification much more
doubtful when he said, the person he sawe saw was much bigger than the accused.t one stage, he was only twly two meters from that
man but did not recognise him as the accused. The voice identification testimony was given by Eddie Wakuna and Edward Ambuka. Andrew n the other did notd not hear the tall big
man utter anything. is a trait of uncertaintyainty in the evidence. Edward Ambuka red tentativtative in his testimony. He said
thee soulike that of the the accused’s. Fu, Andrew Ani gave evidenvidence that he esca escaped to Noah’s house some
forty-metery from his house ouse and saw the accused at the home of Lucas. Fromevidence, I e, I inferinfer the house of Noah and
Lucas were in close proximity of the other. I also infer from the evidence of Eddie Wakuna and Andrew Ani that the distance between Amb8217; house and Andrew Ani& Ani’s
house was between sixty and a hundred meters. There is er no other evideevidence on the distances between the houses of Ambros,
Lawrence, Lucas and Noah and their directional locations to each other and to Andrew An17;s house. This is a crucial oon as t as
the evidencidence of State witnesses suggest a tall big man was sighted at two different places within a short time of the first
sighting and further that Andrew Ani saw the accused at Lucas’s house at about the same time a big tall man was seen and heard
encouraging others in the vicinity of Ambros’ house. There are two possibilities from the evidence: (i) the accused was at the home of Lucas at all relevant times as the evidence of Andrew
Ani suggested. Or (ii) the tall big as thas the accused heard near the home of Ambros encouraging others to kill Ambros. That,
haviged the attack oack on Ambros, the accused retreated to the home of Lucas, ahead of Andrew Ani. This would mean that the hof
Ambros and Lucas either stood together, or were within close proximity of the other.. This lapossibility is howe howeverupported
by evidence. Whether the evidence of identification against the accused woud would improve will depend on whether or ny new evidence is expected.
Thte has rested itsd its cits case at the highest. The only otherence which mich might be expected may come from the accused.
InRecord of Interview, he , he has denied his involvement. It is nown whether or n wo n would exercise his right to give evidence
in response to t to the State’s case. If he does give eve, he wohe would most likeleat his answers in the Record of Interview.
For thosethose reasons, ofam of the view that the State’s case will not improen if the accused is called upon to answer the
charges. . I exercy discretion in his his favour and stop the case here.e accused is discharged.
Lawyer for the State: Public Prosecutor Lawyer for the Accused: S Holland
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