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State v Kosayam [2016] PGNC 370; N6592 (17 February 2016)

N6592

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 684 of 2014

THE STATE

V

PAUL KOSAYAM

Daru : Koeget, AJ
2016 : 17^th February

CRIMINAL LAW: - unlawful killing- Section 302 of Criminal Code Act chapter 262- accused pleaded not guilty-trial - submission based on evidence in committal court depositions - no oral evidence called by parties.

CRIMINAL LAW - State elected not to response to No Case Submission by defence counsel - application that case should be withdrawn from the tribunal of facts - principle in The State vs Paul Kundi Rape and The State vs Roka Pep - whether there is sufficient evidence on the basis upon which court ought to convict the accused - application of principle in The State vs Paul Kundi Rape’s case - ruling in relation to evidence against accused - acquittal.

Case cited:
The State vs. Paul Kundi Rape [1976] PNLR 96
The State vs. Roka Pep (No 2) [1983] PNGLR 287

Counsel:
D. Mark, for the State
B Popeu, for the Accused

17^th February, 2016

INTRODUCTION

1. KOEGET AJ: The accused is charged with one count of lawful killing pursuant to Section 302 of the Criminal Code Act.

FACTS

2. It is alleged that on 13^th April, 2013 between 6 o’clock in the afternoon and eight o’clock at night at Malam village in the South Fly District of the Western Province, the deceased walked through the village singing and insulting people. The deceased insulted the accused so the accused picked up a black palm flooring measuring 2.15 metres in length, ran after the deceased and hit him in the back. The accused later went and admitted to EBAK EVESIE STEVEN that he hit the deceased with the black palm flooring.

3. On 16^th April, 2013 at Malam village, the deceased ran around the light aircraft that landed at the rural airstrip collapsed and died. His body was carried to the village by relatives. The Community Health Workers confirmed that the deceased died and both signed the hand written clinical report. The village is located in the Trans Fly and is isolated, only accessible by light aircrafts or walking on foot for weeks to a nearest river on coastal village to catch a motorised canoe or dinghy ride to Daru and return following the same route. So in this case no autopsy was performed on the body of the deceased to establish the cause of death. Thus, no post mortem report was produced to the court.

ARRAIGNMENT

4. The accused pleaded guilty to the charge after the arraignment so a professional guilty plea was recorded.

Held:

(1) Where an accused plead guilty to a criminal charge after arraignment and a provisional plea is recorded, the court has discretion to vacate the guilty plea and record a not guilty plea after application by counsel for the accused to change the plea pursuant to section 563 of the Criminal Code Act and direct a trial to commence.

EVIDENCE

5. The State tendered the following documents:

• Statement of Kuni Awaiyam dated 23^rd May, 2013.
  
• Statement of Michael Dobola dated 22^nd May, 2013.
  
• Statement of Michael Bomso dated 23^rd May, 2013.
• Statement of Police Investigator Thomas Temai dated 28^th May, 2013.
  
• Statement of Corroborator Dickson Aidali dated 28^th May, 2013.
  
• Hand written medical report dated 16^th May, 2013 signed by David Sige and Kara Agisa.
  
• Record of Interview between the accused and the police investigator.
  

These documents were accepted by the court.

RULING ON NO CASE SUBMISSION

6. The Defence Counsel objected to the documents received and accepted into evidence by the court. There were no reasons advanced by Defence counsel for the objection to tender of the documents by the State. In my view the learned Counsel misconceived the practices in criminal trials in particular after the State tendered the documents and they were accepted into evidence by the court. The learned Counsel ought to have objected to the tender of those documents at the very beginning and state the reasons for the objection. So in my opinion the documents were properly tendered and accepted into evidence by the court.

7. I perused the documents and conclude that the accused raised a defence so that the provisional guilty plea was vacated and not guilty plea recorded on his behalf. At the close of the case for the State, the learned Defence counsel made a No Case Submission on the principles of no case submission in The State v Paul Kundi Rape [1976] PNGLR 96 and The State v Lase Bose Kuriday [1981] N300.

LAW

8. The No Case To Answer Submission was made pursuant to the first limb of the principle in the case of The State v Paul Kundi Rape [1976] PNGLR 96 and The State v Lase Bose Kuriday [1981] N300. The principle is that “the accused cannot lawfully be convicted if there is no evidence or no more than an iota of evidence, in proof of any one element of the offence charged”.

9. In this case Defence Counsel submitted that there is no medical report to establish the cause of death of the deceased. There is no evidence from any eye witnesses that the accused assaulted the deceased, inflicted the injuries from which he died three days later.

10. I perused the committal depositions tendered by the State in this case and concluded that there is absolutely no evidence that the accused assaulted the deceased as alleged and inflicted the injuries from which he died. There is no evidence from the State witnesses statements tendered stating why the deceased fell down after he ran around the light aircraft that had landed at Malam rural airstrip. So the cause of dead of the deceased is unknown.

11. In my view the State’s case cannot improve any better should the trial continue. On the evidence as it stands at the close of the State’s case, accused cannot be lawfully convicted of the offence charged. Therefore, I find that the accused has no case to answer and he is acquitted of the charge of unlawful killing.

ORDERS:

(1) The accused is discharged from the indictment forthwith.

(2) He is also discharged from Daru Corrective Institutional Services.

Public Prosecutor: Lawyer of the State
Public Solicitor: Lawyer for the Accused