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State v Waflou [2021] PGNC 260; N8970 (16 June 2021)

N8970

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 325 OF 2019

BETWEEN:
THE STATE

AND:
GREG WAFLOU

Aitape: Rei, AJ
2021: 16^thJune

PRACTICE AND PROCEDURE – Criminal Law -Intent to cause Grievous Bodily Harm – What is the Appropriate Sentence to impose – Criminal Code Act – Acquittal on basis of lack of evidence.

Cases Cited:

The State -v- Henry Keles [2001] N2115
The State -v- Paul Kuali Rape [1976] PNGLR 96
The State -v- Sange [2005] N2810
The State -v- Roka Rep (No.2) [1982] PNGLR 287

Legislation:

Evidence Act

Counsel

Ms T. Aihi, for the State
Mr J August, for the Defendant

16^thJune, 2021
1. REI. AJ: BACKGROUND: The accused Greg Waflo was, on the 29^th day of August 2018 arrested and charged with intent to cause grievous bodily harm to one Janet Waflo his wife.

2. The brief facts are that on the 20^th day of July 2018, he had domestic argument with his wife Janet Waflo at their house located at Aitape Vocational Centre. The accused punched Janet Waflo twice around the area of the head and between her ear and the nose. She was taken to Raihu District Hospital at Aitape and died several days later.

INDICTMENT

3. The State presented an indictment on the 15 of June 2021.

4. The accused entered a plea of not guilty and a trial was conducted which ended on 16^th June 2021.

5. The State called three witnesses.

WITNESSES

6. The first witness was Mr. Richard Waite.

7. This witness gave evidence on what happened after the events which took place on the 20^th of June 2018.

8. Most of his evidence was based on hearsay and assumptions as he admitted that he was not at the scene of the incident on 16^th July 2018.

9. He met with the deceased Janet Waflo on 23^rd July 2018 when he was called by phone to go and see her.

10. He did not see what happened on the 20^th of July 2018.

11. The second witness called by the State was a Leo Ururu who is a nursing officer at the Raihu District Hospital who said he assisted Dr. Athanasius Kari who carried out the post-mortem examination on the body of the deceased on the 15^th August 2018.

12. This witness is not a medical practitioner. He is not a medical doctor by profession. He was unable to assist the Court as to the contents of the autopsy report. He merely presented the medical certificate on the postmortem examination.

13. Because he is not a registered medical practitioner, parties were unable to examine him on the authenticity of the post-mortem examination and to elaborate on its contents.

14. The third witness was the adopting father of the deceased Janet Waflo who is Mathew Salas, a 76 year old man.

15. This witness said that he was present in the house of the deceased when he saw the accused punch the deceased twice. He however did not say whether those punches were fatal to cause the death of the deceased.

SUBMISSIONS

16. Mr. August for the accused submitted that the evidence given by the witnesses were hearsay and based on assumptions. He further submitted that based on this, the case should be stopped.

17. Ms. Aihi for the State submitted that there is enough evidence to warrant the continuation of the trial and that the accused be called to take the witness stand. She relied on the medical report and the record of interview tendered in evidence obviously because of the weakness in the oral evidence adduced in Court.

DECISION

18. Medical evidence on the autopsy or post-mortem examination is not the sole evidence that should be relied on as proof of the commission of a crime. It is relevant evidence. But it should indeed corroborate oral evidence given by witnesses.

19. Dr. Athanasius Kari was not called. The State had serious difficulties calling her as she had left Aitape and is in Port Moresby.

20. Neither the State nor the defence called an independent medical practitioner to give an expert opinion on the post-mortem examination previously done by Dr. Athanasius Kari.

21. As I stated earlier, a medical report on any criminal case is not the only evidence to be relied on. It is evidence that should corroborate the oral evidence adduced in Court.

22. In this case, although the medical report of the post-mortem examination done by Dr. Athanasius Kari contained evidence of brutal forces applied to the body of the deceased, the oral evidence adduced from Mathew Salas did not demonstrate that the forces inflicted by the accused were forceful enough to cause death.

23. The evidence of Mathew Salas fell short of the required standard of proof beyond reasonable doubt.

24. The law on no case submission is well established in this jurisdiction which is to the extent that the Court has a discretion to stop a case if it is of the opinion that, at the close of the case of the State, the evidence is lacking so as not to allow the accused to be called to give evidence in his defence.

25. Applying the cases of State -v- Paul Kundi Rape [1976] PNGLR 96, State -v- Roka Rep (No.2) [1982] PNGLR 287 and The State -v- Henry Kales [2001] N2115, The State -v- Sange [2005] N2810, this case should be stopped here.

26. Although there is some evidence, the evidence is insufficient for the Court to allow the accused to testify. The first two witnesses are all related to the deceased. Their evidence may be unreliable most of which was hearsay and based on assumptions. No independent witnesses were called to give an account of what happened on the 20^th and 21^st July 2018 because it was admitted by Mathew Salas that the deceased and the accused live in an area within the Aitape Vocational Centre where other people also live.

27. Mathew Salas in examination in chief did not fully describe whether the blows inflicted (by punching) were fatal. He described that the deceased looked frail and took her to the hospital. This account would very much be hearsay and unreliable.

28. The Court therefore orders that:

(i) the accused is acquitted

(ii) bail monies to be refunded
_______________________________________________________________
Public Prosecutor: Lawyer for The State
Public Solicitor: Lawyer for the Defendant