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State v Ben [2016] PGNC 388; N6629 (24 August 2016)

N6629

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.No.624 OF 2015

THE STATE

V

GORDON BEN

Kokopo:Lenalia, J.
2016:15^th, 16^th, 17^th& 24^thAugust

CRIMINAL LAW – Wilful murder– Plea of not guilty – Trial – Evidence– Charge – Elements – Criminal Code s.299 of the Criminal Code.

CRIMINAL LAW –Evidence on trial by the prosecution – Submission of no case to answer – Principles – No case to answer submission upheld.

CRIMINAL PRACTICE & PROCEDURE – Where there is a submission of no case to answer at the close of the prosecution evidence, “the question to be asked is not whether of the evidence as it stands the accused person ought to be convicted but whether on the evidence as it stands the accused person could lawfully be convicted”.

Cases cited:

The State v Adam Kins & Joe Ari Kins (2008) N3479
The State v Delga Puri and Tapri Maip [1982] PNGLR 493
The State v Jenny Kebana Peter (2005) N2813
The State-v-Jimmy Kipma [1997] PNGLR 178
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Roka Pep (N0.2) [1983] PNGLR 287
The State v Ronald Robin (2008) N3584

Counsel:

Mr. L. Rangan,for State
Ms. J. M. Ainui,for the Accused.

Ruling on ‘no case to answer’ submission.

24^th August, 2016

1. LENALIA J: The accused is charged with one count of wilful murder contrary to s. 299of the Criminal Code. After arraignment, he entered a plea of not guilty. The prosecution commenced the trial by tendering a number of documents which I will refer to later and called two witnesses.
   
2. Those two witnesses are both police officers. The first witness called was Senior Constable Roger Tarataon. He is a member of the Criminal Investigation Division here in Kokopo. He was tasked to investigate the murder that took place on 22^nd November 2014. The killing took place at Vatu Club on the Vatu Logging Camp. That logging camp is situated on the border between East and West New Britain.
   
3. This witness was together with five other policemen went to the camp site on 23^rd November of that year. On 24^ththey started the investigation. Roger and his team started collecting witnesses’ statement. The witness said, he called the accused into the room in the office where he was questioning witnesses and called another three policemen into the room where he was using to collect statements. He named them as Senior Constable Ken McKenzie, Constable Robert and Constable Andrew.
   
4. The witness said, when he collected the statement form the accused, he admitted that he did not mean to kill the victim when he threw the short knife at him. That statement was tendered as Ex. “D”. What the witness referred to as ‘interview’ was not the interview in the sense of conducting a formal record of interview after formal warning has been given to an accused person. Rather it was at the time he collected statements from witnesses.
   
5. In cross-examination, the witness was asked if during the record of interview, he gave the formal warning to the accused. He said, he gave him the warning but the accused remained silent throughout the record of interview. The court takes that to be the record of interview conducted at Kokopo C.I.D office.
   
6. The next witness Inspector Stanis Denga. He was stationed on Vatu Logging Camp for maintaining law and order at the camp site to monitor logging activities on the camp site. He said, he was not on the scene that night but he heard news that a man named Michael Andrew had been killed at the Vatu club. He went to the crime scene next morning and used a yellow black masking tape to surround the place where the deceased dropped dead to protect people coming to that area. While he was doing this, he found two knives, one a short bush knife on the grass and the other a kitchen knife under the steps. (Ex. “E” & “E1”).
   
7. Asked in chief, why did he apply yellow masking tape to tie around the scene where the deceased was cut? He said, he did it to wait for the investigating team to come from Kokopo. Asked if he was with the investigating team to take statements from witnesses or did he assist in any way. He replied that, he left the investigation to be conducted by the team that came to investigate.
   
8. The witness said, after S/Constable Tarataon and his team came, he briefed them then left them. In cross-examination, he was asked if he found any blood on the two knives. He said, he did not see any blood.
   
9. The following exhibits were tendered with consent:
   
   • - Sketch map Ex. “A”,
   • - P/Mortem Ex. “B” “B1” annexure i.e. affidavit,
   • - Record/Interview Ex. “C” & “C1” Pidgin & English translation,
   • - Statement by accused Ex. “D”
   • - Short bush/knife & Kitchen knife Ex. “E” & “E1”.
     
10. Before the State’s case was completed, Mr. Rangan submitted that, there were no eye witnesses because those who witnessed the killing did not come to testify despite notices given to them. Counsel then closed the prosecution case.
    
11. At the end of the prosecution case, Ms.Ainui counsel representing the defendant announced she wanted to make a submission of no case to answer.

Counsel based her submission on the first leg of the principle stated in the case of The State v Paul Kundi Rape [1976] PNGLR 196. The first of those two principles stated in the above case is, as the evidence now stands could the accused be lawfully convicted? The law on no case submission has been stated over and over again.

12. In our jurisdiction, it is established law that, at the end of the prosecution case where a no case submission is made, the issue for the court to decide is, after considering all the evidence called and tendered on this trial by the prosecution, could the accused be convicted. From the vast volume of case law authorities on ‘no case submission’ like The State v Delga Puri and Tapri Maip [1982] PNGLR 395 or that of The State v Roka Pep (N0.2) [1983] PNGLR 287 or The State v Jenny Kebana Peter (2005) N2813 or the case referred to earlier, The State v Paul Kundi Rape (supra), the issue for the court on this trial is whether there is sufficient evidence upon which the accused could lawfully be convicted.
    
13. This is the issue of law as stated in the above cases is that, where there is no evidence to establish essential element or elements of the charge, or there is some evidence covering some elements of the offence but it is so tenuous, incredible or discredited that it amounts to a scintilla only and thus could not be accepted as persuasive by any reasonable person: The State v Roka Pep (N0.2) (supra and see also The State v John Wanjil & Others [1997] PNGLR 64), or the case of The State v Jenny Kebana Peter (2005) N2813
    
14. The trial before this court is one of wilful murder. Essential elements of the crime should be established by the prosecution. If this court decides that some elements of the crime of wilful murder has been made out, the court nevertheless has discretion to stop the case at the close of the State’s case. This discretion is exercised where there is a mere scintilla of evidence and where the evidence is so lacking in weight, reliability and credibility that no reasonable tribunal could safely convict on it, a case should not go past this stage of the trial: The State v Roka Pep (N0.2) (supra).
    
15. As such weighing of the prosecution evidence at this stage of the trial does not require me to examine the evidence in detail and apply it to the high standard of proof which encompasses the issue of “proof beyond reasonable doubt”. In practice that would be an error in law: The State v Delga Puri & Tapri Maip [1982] PNGLR 395. (See also The State-v-Lasebose Kuriday (1981) N300).
    
16. In assessing whether the accused has a case to answer, this Court is not required to examine the evidence in detail: The State v Jimmy Kipma [1997] PNGLR 178, or The State v Adam Kins & Joe Ari Kins (2008) N3479, see also The State v Ronald Robin (2008) N3584. The question of ‘proof beyond reasonable doubt’ does not arise at this stage of this trial. Such consideration is only considered after all evidence has been called both by the prosecution and defence.
    
17. I return to the question on the first principle in The State v Paul Kundi Rape (supra). The question is “as the evidence now stands could the accused be lawfully convicted? The second question I raise on this trial is, convicted of or for what crime?The obvious answer is, for the crime of wilful murder. I note the wording of s.542 of the CriminalCode which provides for charges involving specific result.
    
18. Where an indictment like the instant one which charges the accused person with wilful murder, wilful meaning the accused intended to kill the victim Michael Andrew. This requires the State to establish the intent to cause some specific result is an element, like on the instant case, the intention to kill. The prosecution bears the burden to establish such intents because the trial on this case is one for wilful murder.
    
19. At this stage, the issues of law as stated in the above cases is, where there is no evidence to establish an essential element or elements of the charge, or if there is some evidence covering the elements of the charge but the evidence is so tenuous, incredible or discredited such that it amounts to a scintilla only and thus could not be accepted as persuasive by any reasonable person, then the trial should not proceed past this stage: The State v Roka Pep (N0.2) (supra).
    

20. Having considered the evidence adduced by the prosecution and documents tendered at its current status, I consider that there is no case for the accused to answer. This case is dismissed and the defendant be discharge from custody.

----------------_______________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused.