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State v Gigmai [2010] PGNC 224; N4211 (20 October 2010)

N4211

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1066 of 2008

THE STATE

V

CHRISTINA GIGMAI

Mt. Hagen: Sagu AJ
2010: 18th & 20th October

CRIMINAL LAW - wilful murder – husband- no case submission- identification in issue - state failure to establish prima facie evidence - accused, no case to answer as matter of law – accused acquitted.

Cases Cited.

Roka Pep v The State (No.2) [1983] PNGLR 287
Paul Kundi Rape v The State [1976] PNGLR 96

Counsel

Mr. N. Miviri, for the State
Ms. Ohumu, for the Accused

RULING ON NO CASE TO ANSWER SUBMISSION

20th October, 2010

1. SAGU AJ: The accused Christina Gigmai pleaded not guilty to the charge that she unlawfully and willfully killed her husband, EDWARD AREKAWALA contrary to Section 299(1) of the Criminal Code Act.
   
2. At the conclusion of the State's case, the accused applied to this Court for a ruling that the State has not established a case for her to answer and therefore, that the court should stop the case here. This is the ruling on that application.
   

Brief Facts on Indictment

3. The State alleged that on the 21st day of June 2008 at Manekumo Village, Kundiawa District in the Simbu Province, the accused had an argument with her husband Edward Arekawale. In the course of the argument, the accused assaulted her husband with a blunt piece of wood on his chest. Edward Arekawale sustained broken ribs which penetrated into his left lung damaging it. This caused excessive bleeding which led to heart failure. The victim was rushed to the Kundiawa Hospital but died upon arrival. The State alleged that at the time the accused assaulted the deceased, she intended to cause his death.

STATE EVIDENCE

4. The State evidence consisted of three witnesses' sworn testimonies and the following documentary evidence tendered by consent:-

Exhibit P1 (a) – A Record of Interview (ROI) conducted on 1.9.2008 pidgin version

Exhibit P1 (b) - ROI the English version

The accused denies the charge and says she does not know how he died. She is his fourth wife and they have had domestic arguments on and off for a while prior to the death of her husband. She was married to him for 11 years as a fourth wife and they have 2 children. They lived in Bandi Block opposite Gon School in Gon.

She denies she killed him and says they were all together at her brothers' funeral and on the way the deceased complained of chest pain and they brought him to the car on the Okuk Highway to the hospital but he died.

Exhibit P2 (a-2) Affidavit of Francis Wakai who took 6 photo shots of the body of the Deceased during the post mortem at Kundiawa Hospital.

Exhibit P3 - Affidavit of Dr. Moses Aiwa of Kundiawa General Hospital the Doctor who conducted the post mortem. This Doctors findings are as follows:-

"The findings of massive haemoitomoas over the left anterior chest covering ribs 1,2,3,6 and 7 with associated fractures of Ribs 3rd and 6th, left anteriorly concluded that there was blunt trauma applied directly over the left chest anteriorly.

With a past history of being an asthmatic patient and further findings of massive adhesions of his right lung (whole) to chest walls, in all directions. I conclude his normal left lung was compromised in its functions during the direct blunt trauma applied resulting in his cardio-respiratory arrest.

Exhibit P4 & P5 - Affidavit statements of the C.I.D Investigating Officer and the corroborator deposing to the conduct of the ROI were in order.

Exhibit P6 - Affidavit of Peter Bari from Kond Village, Kundiawa who drove the deceased to the Kundiawa hospital on the day.

He says he was called out to drive the vehicle in which the injured deceased was in, to the hospital which he died. He does not know how the deceased received the injuries.

Exhibit P7 - Affidavit of Witness Rita Wanpis was tendered through herself. This was the statement she gave to the police during the investigation which she placed her mark on. I will address the contents of her statement together with the second State Witness, Sila Kamtai.

ORAL TESTIMONIES

5. The First state witness is Rita Wanpis, who tendered her statement as in Exhibit P7. She said that on the day 21.6.2008, she herself, the deceased Mr. Edward Arakawale, Sila Komtai and Martin Are went to Christina's house in Mainekumo Village for her late brother's funeral feast. They brought two live pigs and food stuff to the Haus Karai, as she had left the village and gone there to the funeral some days earlier. She gave an account of Christina not being happy when they arrived. There was a Mumu and they shared the food which they were given. It was time to go back and Christina was not willing to join her husband and his group on the return trip to Gon. The deceased told the Witness, Sila and Martin to go ahead while he delayed a bit to find out why the accused was not willing to go with him. The witness and others came to the main road at the Okuk Highway and waited. After about 15 minutes the accused came up breathless to where the vehicle was parked and signaled for them to come and get into the vehicle. Not long after two men from the village of the accused carried the deceased to the road and put him in the vehicle and left without saying or giving any explanation. They called to an ambulance Driver Peter Bari who drove the vehicle down to the Kundiawa hospital, as the deceased could not drive. They arrived at Kundiawa Hospital but Edward died. This witness was not at the crime scene and said she did not know what had happened to the deceased or how he sustained the injuries.

6. Second Witness Sila Komtai supports the first Witnesses story. She also does not know how the deceased died.

7. Third State Witness. - Are Cosmos: This witness is the son of the deceased. He is a teacher at Mingendi School now, but at the time of the incident he was teaching at Don Bosco. He was not at the scene of the crime. He learnt the next day of his Father's death. He however, says that his Father had called him the Friday before to come so they could go to the village of the accused to give the pigs and the food stuff. He then reluctantly came on Saturday and assisted his father to hand them over to the relatives of the accused and he left soon thereafter. He did not stay around for the Mumu and the feast. He left and he found out on Sunday morning that his Father had passed away the night before. He came down and took his Father's office key and searched the office and found his pay slips and a brown envelope containing his statements in relation to the accused and him having marriage problems. He said the accused and his deceased father argued and fought a lot during their marriage. He did not know how his father died.

THE CHARGE of WILLFUL MURDER 299(1) CCA

8. The accused is charged with the unlawful and willful killing of her husband Edward Arekawale under Section 299(1) of the Criminal Code Act which provides:-

"299. Willful murder.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of willful murder."

9. The elements of the above offence in this case are that:-

1. A person; is there any evidence present to show that the accused was the prime suspect who administered the fatal assault onto the chest of the deceased that caused his death; and
   
2. Killed another person namely, the deceased Edward Arekawale; and
   
3. Unlawfully, was the assault unlawful meaning the absence of any provocation, Self defence, or the execution of death under any other law; and
   
4. Intentionally, is there any evidence to show the assault was administered with the intention to cause the death of the deceased?
   

RELEVANT LAW

10. The principles governing a no case to answer submission is well settled in the Supreme Court case of Roka Pep v The State (No.2) [1983] PNGLR 287 in which the case reiterated the principles that were earlier discussed and enunciated in Paul Kundi Rape v The State [1976] PNGLR 96 which has laid the basis for the defence applying to the Court after the prosecution has closed its case seeking acquittal of the accused person on a criminal trial on two basic grounds:

"(1) As at the end of the prosecution case there is no evidence at all adduced to prove any of the essential elements of the charge against the accused. If there is no evidence at all to at least one of the element of the offence that on the evidence as it stands the accused could not lawfully be convicted then the accused will have no case to answer as a matter of law. The case will stop here and that's the end of the matter. The accused will be entitled to an acquittal.

(2) Secondly, if however there is some evidence to each of the essential elements of the offence, or there is a mere scintilla of evidence or that the evidence is so lacking in weight or reliability that no reasonable tribunal could safely convict on it, the Court in the exercise of its discretion may decide to dismiss the charge."

11. In considering whether there is a case to answer or not, the question is not whether the State has proven its case beyond reasonable doubt. That comes at the conclusion of all the evidence including the defence's evidence. The appropriate question is whether the State has adduced sufficient evidence to establish a prima facie case against the accused for her to answer.

IN THIS CASE

12. In this case, the Applicant submits on the first leg of the principle of no case to answer submission in Roka pep (supra) in that the State has failed to adduce any evidence at all that it was the accused who unlawfully and willfully killed the deceased and that on the evidence as it stands she could not lawfully be convicted. She submits that the case be stopped here and that she should be acquitted of this charge.

13. The issue here is one of identification, not only that, but was the killing unlawful and intentional?

14. The question I need to ask is: Is there any evidence suggesting that the accused is the prime suspect for willfully and unlawfully causing the death of the deceased?

15. The collective State evidence is that the accused is the 4th wife of the deceased, Edward. They have been married for 11 years and have 2 children. There has been prolonged fighting between the couple. On the 21st of June 2008, the deceased with Witness Rita Wanpis and Sila Komtai went to visit the accused who was at the funeral of her late brother at her village in Manekumo. They brought two live pigs and food which were handed over to the accused relatives as contribution towards the funeral party. The food was cooked in the underground pit and distributed and they were given their share.

16. When it was time for the deceased and the witness to return to their village, the accused was not willing to return with her husband the deceased. The deceased indicated to the two State Witnesses Rita, Sila and Martin Are to go ahead while he delayed a bit to enquire of his wife's reluctance to join him in going back home. So Rita, Sila and Martin went on ahead back to the village of the deceased while the deceased stayed back to enquire of his wife's unwillingness to accompany him back.

17. They arrived at the Okuk Highway and waited. After about 15 minutes, the State Witnesses Rita and Wanpis saw the accused come up to where the vehicle was and signaled for them to get into the vehicle. Not long after they saw two men carrying the deceased onto where the vehicle was and place him inside.

18. The deceased could not drive so a Peter Bari was called to drive the vehicle to the Kundiawa Hospital where he died. Witnesses Rita and Sila did not see how the deceased sustained those injuries. The third state witness Are Cosmos, did not know how his father died.

19. There is medical evidence stating that Edward died as a result of an assault caused by a blunt object applied to his chest which resulted in two broken ribs which perpetuated into the lung causing excessive internal bleeding resulting in heart failure. There is absolutely no evidence that the accused administered the assault. There is no evidence describing the manner in which the assault was administered. Nobody knew or saw how the deceased received the broken ribs.
There is no evidence.

20. Identification is an essential element of this offence. There is no evidence at all that identifies the accused as the one who administered the assault on the chest of the deceased thereby killing him. There is no evidence of the unlawful and willful killing of the accused. Under these circumstance, on the evidence as it stands the accused cannot lawfully be convicted and I form the view that the accused has no case to answer as a matter of law. The case will stop here and that's the end of the matter. The accused is entitled to an acquitted and I so order that she is acquitted of the charge of willful murder and she is discharged forthwith.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence