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State v Tade [2011] PGNC 98; N4346 (5 August 2011)

N4346


PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE


CR NO. 305 OF 2011


THE STATE


V


NICHOLAS TADE, DOUGLAS TITUS and ALOIS ELVIN


Kokopo: Maliku AJ
2011: 02nd, 03rd, 04th And 5th August


CRIMINAL LAW - Wilful Murder – s.300 - Criminal Code Act


CRIMINAL LAW - Plea of not guilty –Trial - No case submission at close of prosecution case - Insufficient evidence to lawfully convict - Identification of accused is an issue.


Cases cited:


The State-v- Paul Kundi Rape [1976] PNGLR 96
State v Roka Pep [1983] PNGLR 287
The State-v- John Beng [1976] PNGLR 471


Counsels:


Mr L. Rangan, for the State
Mr P. Kaluwin, for the 1st and 2nd defendants
Mr G. Kerker, for the 3rd defendant


5th August, 2011


  1. MALIKU AJ: The defendant each and severally were indicted with one count of murder of Balton Laten between the 31st of December of 2010 and 01st of January of 2011 at Waiware Area, East New Britain Province, Papua New Guinea, contrary to section 300 of the Criminal Code Act. The defendant each and severally pleaded not guilty to the charge.
  2. Prior to State calling oral evidence Mr Rangan for the State tendered with consent documentary evidence which the court accepted and are marked as follows:
    1. Record of Interview of defendant Nicholas Tade in Pidgin and English versions – marked Ex "A"
    2. Record of Interview of defendant Douglas Titus in Pidgin and English versions – marked Ex "B"
    3. Record of Interview of defendant Alois Elvin in Pidgin and English versions – marked Ex"C"
    4. Corroborating statement of Police Constable Nicholas Maela dated 11/01/2011- marked Ex "D"
    5. Corroborating statement of Police Constable English ToLimo dated 14/01/2011- marked Ex "E"
    6. Post Mortem Report by Doctor Hilton T Abraham on deceased Balten Laten- dated 13th January 2011- marked Ex "F"
    7. Affidavit of Doctor Hilton T Abraham- dated 08th of January 2011- marked Ex "G"
    8. Statement of Investigating Officer- Vanessa Niel dated 14th of January 2011- marked Ex "H"
    9. Hand written statement of Pat Gabriel in Pidgin dated 20/01/2011– marked Ex "I"
    10. Hand written statement for Royal Esau in Pidgin and typed English version dated 03/01/2011-marked Ex "J"
    11. Handwritten statement for Nick Sogra in Pidgin and English version dated 30/01/2011- marked Ex "K"
  3. During the trial Mr Kaluwin for 1st and 2nd defendant tendered in support of his clients, a hand written statement for Gabriel Tobua in Pidgin and English version- marked Ex "D1".

No Case Submission


  1. At the close of the prosecution case counsels for the defendants made No case submissions. Mr Kaluwin for 1st and 2nd defendants re stated the charges against the defendants and referred me to the case of The State-v- Paul Kundi Rape [1976] PNGLR 96, the leading authority on No case submissions in our criminal jurisdiction.
  2. Mr Kaluwin submits the evidence of the State, both oral and documentary evidence is supposed to sustain the charge that in the early hours of the 01st of January 2011 the deceased and his two friends went to the scene of the crime. The deceased had caused a commotion that resulted in him being assaulted and which led to his death.
  3. Mr Kaluwin submits that there is no dispute that a death occurred on the 01st of January 2011 at Waiware Blocks, however, the issue here is who caused the death of the deceased Balten Laten? This is the issue of identification and is a prime issue in the present case.
  4. Mr Kaluwin submits the question before this court is whether the evidence as it is now is sufficient to lawfully convict his clients. He submits the court has had the opportunity to hear oral evidence from the key witnesses and assessed it together with documentary evidence tendered to the court.
  5. Mr Kaluwin submits that the evidence is not sufficient. It is conflicting and inconsistent that this court cannot place weight on it. Mr Kaluwin further submits that evidence as it is points to other persons and not his clients. The evidence is incredible and cannot be relied on.
  6. Mr Kerker for the 3rd defendant submits he adopts the submission by Mr Kaluwin for 1st and 2nd defendants and referred to the case of Roka Pep (No2) [1983] PNGLR 287. Mr Kerker also adopts the elements of the charge adhered to by Mr Kaluwin to be the elements of the charge against his client. He submits the evidence at this juncture is insufficient against his client Alois Elvin. It cannot be relied upon because it is conflicting and inconsistent that this court cannot secure a lawful conviction against his client Alois Elvin.
  7. Mr Kerker further submits the evidence does not show the accused Alois Elvin was at the scene of the crime between the 31st of December 2010 and the 1st of January 2011. Mr Kerker submits that because the nature of the State's evidence is inconsistent and conflicting the matter should not proceed further and his client should be discharged.

Response by State- Mr Rangan


  1. The State agrees with defence that a death occurred between the 31st of December of 2010 and the 01st of January 2011 at Waiware Block Area.

Elements of murder – s.300


  1. Mr Rangan submits that there are four elements on the charge of murder.

These are:


  1. The defendants now in court are the persons that did the act that led to the death of the deceased.
  2. That the act was intended to cause grievous bodily harm.
  3. To another person (in this case the deceased person)
  4. That that other person died from the act that was intended to cause grievous bodily harm.
  1. Mr Rangan agrees with Mr Kaluwin for1st and 2nd defendants that there is no dispute on the elements 2, 3, and 4 however there is dispute on the element number one – who did the act that was intended to cause grievous bodily harm which led to the death of the deceased? Mr Rangan agrees that the issue here is one of identification.
  2. Mr Rangan further submits that the court should find from the evidence an alternate charge for which each defendant could be lawfully convicted of if the evidence is insufficient to lawfully convict the defendants on the charge of murder. Mr Rangan submits that the court should find the alternate charge of manslaughter under section 539 (2) of the Criminal Code Act.

Elements of Manslaughter charge – s.539


  1. Mr Rangan submits the elements of manslaughter to be as follows:
    1. A person
    2. Does an act
    3. An act which caused the death of another person
    4. The act is not authorized or justified by law.
  2. Mr Rangan submits the three defendants were at the scene of the crime and were seen by Nick Sogra who knows them. He may be confused with the names of the defendants. Mr Rangan submits the confusion of names is irrelevant. It is the face of the defendant that matters. He submits that according to witness Sogra the defendant Alois Elvin could also be known as Alois Polo Elvin. He submits that the defendant Alois Elvin has a case to answer.
  3. Finally in regard to the assault on the deceased Mr Rangan submits that according to the Record of Interview of defendant Nicholas Tade and Douglas Titus the defendants had admitted to assaulting the deceased.

Response by Mr Kaluwin to State submission-1st and 2nd defendants


  1. Mr Kaluwin submits in response to the State's submission that his clients admitted to slapping the deceased which is consistent with the evidence of Nick Sogra and the evidence of Gabriel Tabua that a person he identified as Polo slapped the deceased on the face. Mr Kaluwin submits that the evidence of Doctor Hilton on his oral evidence to this court is that a slapped or a punch on the face of a person with an enlarged spleen would not cause the spleen to rapture unless the slap or the punch is applied directly or around the area where the enlarged spleen is.

Response by Mr Kerker to State submission- 3rd defendant


  1. Mr Kerker agrees with State that Nick Sogra is the key witness in the present case as well as Gabriel Tabua whom he agrees were at the scene of the crime. Mr Kerker submits that witness Gabriel Tabua never identified Alois Elvin to have been in the scene of the crime, and also never identified him to be known also as Polo until this morning the witness Nick Sogra had identified his client to be also known to him as Alois Elvin Polo. We submit that the State has conflicting evidence in regards to the person known as Alois Elvin the defendant named in the Indictment presented to this court to the person known as Alois Elvin Polo. We submit the person named Alois Elvin and Alois Elvin Polo are two different persons. We submit that the State cannot merge two different persons as one person and to be known as Alois Elvin Polo.
  2. Mr Kerker submits that the submission by the State that the confusion on name is irrelevant but it is the face that matters is false. We submit that a person is identified both by his name and his face.
  3. Finally we submit that there is evidence from the Arresting Officer that the person known as Polo is another person and was released in January 2011 because of insufficient evidence against him by the Arresting Officer. Therefore our client is Alois Elvin named in the indictment presented to this court and not Polo and was never at the scene of the crime. We therefore submit that our client should be discharged.

What is the Issue?


  1. There are two issues in this matter. The first is identification of the defendants as persons that murdered the deceased. The second is lack of evidence due to conflicting or inconsistencies surrounding the evidence.
  2. It is not disputed that the deceased died between the 31st o f December 2010 and the 01st of January of 2011 at Waiware Blocks. The issue before this court to determine from the evidence is: Are the defendants before the court are the persons that murdered the deceased or caused the death of the deceased, and is the evidence as it stands is sufficient to lawfully convict each defendant on the charge of murder.

The State's Evidence


  1. The evidence of the State is both oral and documentary. This documentary evidence are statements obtained from witnesses Gabriel Tabua and Nick Sogra by the Arresting Officer and includes a Post Mortem Report of the deceased by Doctor Hilton and the Records of Interview of the three defendants.

Evidence of Police Woman Vanessa Niel- Arresting Officer


  1. The evidence of Police Woman Vanessa Niel is documentary and oral which reveals that:
  2. During her oral evidence the witness was asked the following questions.

Q. In your investigation you found evidence linking each accused to the crime?

A. Yes.


Q. You said earlier that you did not find anyone else linked to the matter now before the Court?

A. Yes I said that.


Q. Could you tell the court that who is Tony and who is Polo?
A. Tony is the father of the lady who caused the problem and Polo is a relative of the accused?


Q. Why did you let Tony and Polo go free?

A. During my investigation I found there was insufficient evidence for me to arrest and charge them.


Q. The statement you obtained from Nick Sogra shows Tony was involved in attacking the deceased – What do you say?

A. I sent him home and was to have picked him up later to arrest him later.


Q. What about Polo?

A. I can't recall now what I did with Polo?


Q. I put to you that you obtained other statements that showed that Tony and Polo were not involved so you let them go- what do you say?

A. No


Q. The statement you obtained from Nick Sogra shows that Tony and Polo were involved in attacking the deceased - what do you say?

  1. Yes.

Q. In your investigation you found that the deceased was only slapped- what do you say?

  1. I also said the deceased was attacked.

Q. Your witness said Tony kicked the deceased- what do you say?

A. I can't recall now.


Q. Could you for the last tell the court why you let Tony and Polo go free?

A. Yes I let them go. I tried to get them back but they escaped. I do can't remember now what I said to Polo.


  1. This evidence is centred on the arrest, charging, conducting of Record of Interview and corroborating of Records of Interview of each defendant. It is confusing in regard to what the Arresting Officer did with the persons named Tony and Polo. According to the oral evidence of Vanessa Niel, (Arresting Officer) Tony and Polo were sent home. There were two reasons of why they were sent home. One being that there was insufficient evidence against them and the other was that they were sent home for a while but were to be picked up later by the Arresting Officer. These reasons are inconsistent or conflicting with the other however, it is clear that they were never picked up at all in order to be further dealt with.
  2. Nevertheless, this evidence is clear that the person named Polo and Tony is not one of the defendants before me nor does the evidence shows that one of the defendants before the court is also known as Polo. The person known as Polo is not a defendant before the court.

The Evidence of Gabriel Tabua – State witness


  1. The evidence of Gabriel Tabua is both oral and documentary. The documentary evidence was hand written by the Arresting Officer in Pidgin and was later translated into English by the Arresting Officer.
  2. The oral and documentary evidence of this witness show that this witness, Nick Sogra and the deceased are married to three sisters and live at their respective Waiware Blocks of land. The evidence also shows that Gabriel Tabua, Nick Sogra and the deceased together with their wives and children were celebrating New Year eve of 2011 with food and liquor.
  3. The evidence further shows the deceased, Gabriel Tabua and Nick Sogra had been drinking since they began celebrating and continued on till mid night. It also shows that at about 1o'clock (1am) of the 01st of January2011 the deceased, Nick Sogra and Gabriel Tabua left where they had celebrated the New Year to look for smoke at Tony's block of land, and after they had bought smoke they then proceeded to where the music was played. It is at this place that the deceased was assaulted for allegedly making bad signs to a lady named Elmina.
  4. I have carefully considered the hand written statement in Pidgin language (Ex D1) of Gabriel Tabua. I find nowhere in this hand written statement that Gabriel Tabua had identified the defendants in court as the persons that attacked the deceased. However, this morning he had identified the defendants and has named the 1st defendant as Nicholas whom he says had assaulted him. In the typed English translation of the Pidgin version of Gabriel Tabua's statement which is attached to the hand written pidgin statement, I note that the witness says that he saw Polo hit the deceased first and then Douglas which caused the deceased fall to the ground. Some other men also joined in to kick and hit him. He further says in the English translation that he saw Kalaut (Nicholas) hit the deceased too.
  5. I am unable to establish from the Pidgin version of Gabriel Tabua's statement that contains the names of Polo, Douglas and Kalaut (Nicholas) which was translated into English version by the Arresting Officer Vanessa Niel.
  6. I am of the view that the English translated version which has the names of Polo, Douglas and Kalaut (Nicholas) in paragraph four (4) is not true and is not correct translation of the Pidgin version.
  7. In his oral evidence this witness Gabriel Tabua told the court that:

"After Nick Sogra had bought smoke he returned to where the music was played. While we were there the deceased was assaulted. I ran away to the road when I saw them assault Balten Laten. I was caught on the road and punched by the defendant in the middle. The 3rd defendant kicked me with boots. I do not know their names. Nick Sogra knows their names. I was taken from the road by Tony to his house where Balten was lying. I did not see the defendants when I was taken back from the road by Tony. Nick Sogar, my brother by marriage was not there too. He ran away leaving me behind. The distance from where the music was played to where Balten was first assaulted was about 7 meters. There was one light from a generator where the music was being played. At that moment of time I was standing with defendant sitting on the left (1st defendant) telling jokes. It was still dark. I saw the defendant sitting in the middle punched Balten first with his hand closed on the right side of the face which caused Balten fell to the ground. I saw other people went toward Balten but could not recognize them. I wanted to carry Balten Laten but he was heavy so I left him to look for assistance from our families. He had already died when we took him to the house."


  1. There is no evidence from this witness that the 1st and 3rd defendants assaulted the deceased. There is evidence from this witness that the defendant sitting in the middle of 1st and 3rd defendant punched the deceased on the right side of his face which caused the deceased fall to the ground.
  2. There is no evidence from this witness that the 2nd defendant continued to attack the deceased while on the ground. This is because this witness had run away to the road as soon as he saw the deceased assaulted.
  3. The evidence does show that the 2nd and 3rd defendants attacked the witness on the road but it is not the issue before me. Although there is conflicting evidence in regard to whether the deceased was taken to a house belonging to a Sepik man or a Morobe man after he was assaulted it is immaterial.
  4. This evidence as it is lacks to show and support that the 1st and 3rd defendant murdered or caused the death of the deceased. It also lacks to show and support that the 2nd defendant murdered or caused the death of the deceased because the evidence as it is from this witness is that the 2nd defendant had only used his hand to punch the deceased at the right side of his face. Such could not have possibly caused the death of the deceased.

The Evidence of State witness- Nick Sogra


  1. The evidence of this witness is also documentary and oral. In his oral evidence the witness gave his evidence in the following:
  2. During cross examination by counsel for the 1st and 2nd defendants, they were asked the following questions to the witness in which the witness answered accordingly:

Question: Yesterday the Police woman told the court that Polo was released from the cell in January 2011.


Answer: No I can see Polo sitting in court now. He is the 3rd defendant.


Question: You and Balten were drinking on that day?

Answer: Yes in the afternoon. When we ran out we stopped.


Question: Gabriel told the court that when you ran out of beer, you went looking for more beer – what do you say?


Answer: We went looking for smoke.


Question: Gabriel said that you kept drinking until 1o'clock (1 am) then you went looking for smoke – what do you say?

Answer: We had one bottle of beer each and it took us a long time then a bottle of home brew.


Question: Was it a big bottle or small bottle of homebrew?

Answer: Small bottle.


Question: You drank that small bottle till 1am of 01st of January 2011?

Answer: We had beer from the afternoon to 11pm then we had that small of homebrew.


Question: Your brother Gabriel said yesterday that Nicholas was standing with Gabriel and you when you were chased. Now you are saying only the two of you- what do you say?

Answer: Gabriel and I were standing together while Nicholas was standing on the side.


Question: Gabriel also said that when you were chased Nicholas also ran away with both of you- what do you say?

Answer: I saw Nicholas fight. I did not see him ran away.


Question: Gabriel also said that Douglas punched Balten once and then chased you- what do you say?

Answer: I saw Polo punched Balten and not Douglas. Yes. It is true Douglas chased us after he had punched Balten once on the face.


Question: It was Tony that kicked Balten- Is it correct?

Answer: Yes while Balten was lying on the ground.


Question: By that time Douglas had already chased you- Is it correct or not?

Answer: Yes it's correct.


Question: This event happened very quickly – Is it correct?

Answer: Yes.


Question: Do you know why Balten was assaulted?

Answer: Because of what the lady had shouted.


Question: Did Douglas have an argument with Balten that night?

Answer: No.


Question: Why was your boom box was with Douglas?

Answer: The boom box belonged to Balten. Douglas asked for it and if they could use it.


Question: Do you know that Douglas knew Balten very well?

Answer: We live at the blocks of land at Waiware. We know each other's. I know Balten knew Douglas but not much.


Question: If Douglas did not know Balten very well, why then he asked for Balten's boom box?

Answer: Balten asked for the boom box. Balten gave the flash drive to Douglas.


Question: Where did you go to after the fight?

Answer: I left for my house.


Question: At what time did you arrived at your house?

Answer: At 4.30am.


Question: Did you meet Gabriel at the house?

Answer: Yes he arrived after I had arrived.


Question: What happened then?

Answer: We both stayed at the house feeling pain from being assaulted.


Question: Who told the ladies about happened?

Answer: I did. I also told Balten's wife.


Question: Gabriel told his wife and not you- what do you say?

Answer: I arrived first and informed Balten's wife. Gabriel arrived later.


Question: You were too drunk the whole day so you could not recall what happened?

Answer: I was not too drunk.


Question: You were drunk because what Gabriel told the court is not the same as what you have told the court- what do you say?

Answer: I told what I know happened.


Question: You are a block holder at Waiware are you not?

Answer: It's my wife's block.


Question: You have been living there for some years - Is it correct?

Answer: Yes it's correct.


Question: You would then know people who live at Waiware blocks?

Answer: Yes we know each other.


Question: You would be able to know people living at the Waiware blocks of land by names?

Answer: Yes.


Question: You would be able to know the 3rd defendant by his name- what do you say?

Answer: He is known at Waiware block as Polo.


Question: What are Polo's two names?

Answer: Policewoman informed me that he is Alois Polo.


Question: If I tell you that that is not his name- what would you say?

Answer: No I do not agree.


Question: Is his name is Alois Polo or some other name?

Answer: No the 3rd defendant is Alois Polo.


Question: You must know the 3rd defendant's name. The policewoman does not live with him but you do?

Answer: The policewoman wrote down his name as Alois and not as Polo.


Question: You have lived with the 3rd defendant at Waiware block for some years. You would have known him by his two names- why did you not identify him as Alois and not Polo?

Answer: He is known as Polo at Waiware block. I know him as Polo and not Alois. I learnt of the name Alois from the policewoman.


Question: There were a lot of people at where you went to buy smoke – what do you say?

Answer: Yes, there were plenty of people.


Question: Were those people drunk?

Answer: Yes they were drunk


Question: Were you also drunk?

Answer: Yes I was drunk. We drank at our premises and not where the music was played.


Question: Because it was a New Year party so you did not concentrate on what was happening – Is it correct?

Answer: Yes.


Question: You did not expect that Balten would be assaulted did you?

Answer: Yes.


Question: When Balten was assaulted what were you doing?

Answer: I was standing with Gabriel. We were standing behind a tree and Balten was standing in front. He was telling stories with Douglas.


Question: What was the distance from you and Gabriel to where Balten Was?

assaulted?


Answer: From where I am sitting to where the prosecutor is standing. I say it was about 5 meters.


Question: Since Douglas is the uncle to Elmina he would have been the first person to react about Elimina- what do you say?

Answer: No.


Question: I put to you that the last defendant was not present at the scene of the crime, and never took part in the in the crime-what do you say?

Answer: I saw him.


  1. I have read the documentary evidence of the witness Nick Sogra marked Ex "K". This evidence can be summed up in the following:
  2. This evidence is contradictory to the evidence of the Arresting Officer in regards to the 3rd defendant whom this witness says is Polo. According to the evidence of the Arresting Officer the person named Polo was released in January of 2011. The reasons being there was insufficient evidence against him. I am not convinced that the 3rd defendant is Polo or is also known as Alois Polo Elvin or Alois Elvin Polo.
  3. It is also inconsistent with the evidence of Gabriel Tabua in regard to what happened to defendant Nicholas Tade. According to Gabriel Tabua the defendant Nicholas Tade ran away together with them. This witness says that Nicholas Tade did not run away but he saw him fight. This evidence also does not corroborate the evidence regarding the lightings where the music was played and where they were standing watching the DJ music played.
  4. According to Gabriel Tabua there was only one generator light which was where the music was played, however this witness says that there were three lights. One was where the music was played, the other was at the back of the house, and the third was underneath the house.
  5. Given their evidence that they were standing together with defendant Gabriel Tabua and Nicholas Tade while the deceased was standing in front of them watching DJ music played at a very close distance from where they were standing, their evidence in regard to the lighting should support the other so as to show that they were able to clearly see what actually happened.
  6. The evidence is further inconsistent or conflicting to the evidence of Gabriel Tabua who says that Douglas Titus was the person that punched the deceased which this witness denied saying the deceased was punched by Polo and not Douglas Titus.
  7. Because of the conflict on the evidence that I have set out above I am not prepared to accept the evidence of Nick Sogra. Finally this evidence also shows that the deceased was also attacked by other people while lying on the ground by the witness who could not recognize them.

Records of Interview


Records of Interviews of Alois Elvin


  1. The Record of Interview of Alois Elvin was tendered with consent and is marked Ex "C". It was conducted in Pidgin and later translated to English version on the 11th of January 2011 at 10.55 eleven days after the alleged crime was committed by Arresting Officer Police Woman Vanessa Niel and corroborated by First Constable Nicholas Maela.
  2. I read the record of interview of the defendant Alois Elvin referred to the court by the State witness Gabriel Tabua simply as the 3rd defendant and Nick Sogra as Polo.
  3. This record of interview contains no confession or admission by the defendant Alois Elvin but on the contrary it presents a defence of alibi. This defence is contained in the defendant's answer to Question 17 and which the defendant had filed a Notice of defence of alibi on.

Record of Interview of Nicholas Tade


  1. The Record of Interview of Nicholas Tade was conducted in Pidgin on the 11th of January 2011 eleven days after the alleged crime was committed by the Arresting Officer Police Woman Vanessa Niel at 11.55am and was later translated to English and was corroborated by Sergeant English ToLimo and is marked Ex "A". I have read the record of interview of Nicholas Tade and had paid attention to the following Questions 15, 16, 17, 18, 19, 20, 22 & 25 and the answers. It was tendered with consent of counsels for defendants.

Question 15: Will you tell us?

Answer: "I can remember on the new years eve 31of December 2010 I was at Tony's block at Waiware block. It was 10pm and we returned from church to his house. We prepared food with the mothers and children while our music was on. Then we saw three (3) men from another block in our area. The young man that died was making nuisance in front of us. He was saying stupid things to our niece then Douglas pulled him up and hit him first and then he turned to chase the other two. I took my turn to hit him too. It was not long then I left him"


Question 16: How did Douglas hit him?

Answer: I am not sure because it was dark.


Question 17: How did you hit him?

Answer: I hit him four times.


Question 18: Police received reports that you kicked him - what will you say?

Answer: I did not kick him.


Question 19: Which boys were with you?

Answer: Douglas and Alois.


Question 20: Witnesses say when you hit him he fell to the ground then you kicked him –what will you say?

Answer: No.


Question 22: Police had gathered information that you Alois and Douglas kicked and punched him- what will you say?

Answer: No.


Question 25: You hit Balten (deceased) but did not kick him- Is it true?

Answer: I hit him four times, not kicked him.


  1. This Record of Interview contains an admission only to hitting the deceased with his hand but not kicking of the deceased.

Record of Interview of defendant Douglas Titus


  1. I now turn to the Record of Interview of defendant Douglas Titus which was conducted on the 11th of January 2011 eleven days after the alleged crime was committed by the Arresting Officer Police Woman Vanessa Niel and was corroborated by First Constable Nicholas Maela. It was conducted in Pidgin and was later translated into English and is marked Ex "B".
  2. I have also read this Record of Interview and have paid attention to Questions 18, 19, 20, 21, 22, 23, 24, 28, 30, and 38 and Answers by the defendant which I have set out below.

Question 18: What were you doing?


Answer: We were preparing food for our New Year party around 10pm.


Question 19: Police gathered information that you were gathered there between 10pm – 3am (31/12/ - 01/01/2011) when three from a nearby block in Waiware went to your place then you and some others chased them and assaulted them then one of them died – what will you say?


Answer: They came and disturbed us while drunk with their loud music. The one (deceased) with a boom box told me that he would hold onto his boom box while it was in play. He stopped it, played it again which made the mothers complained about his noise and insisted they listened to their own music. I noticed that he was up to something and while watching I saw him winked at the mothers then while my niece Elmina was trying to get her radio tape from me I saw him whisper something to her which I did not hear. As she tried to pick up the tape, the deceased grabbed hold of her hand and tried to pull her into the dark. She responded by angrily saying "mi no meri blo yu na yu laik pulim mi go long tudak, bai yu wokim wanem lo mi?" I pulled him to the light and told him that he was wrong and I slapped him. He did not reply.


Question 20: We gathered that you did not slap him you hit him several times- what will you say?

Answer: No I slapped him once.


Question 21: If you say that you punched him first then Nicholas and Michael also hit him - what will you say?


Answer: I slapped him once then I chased his two friends Nick and Gabriel. Nicholas and Michael hit him. They were with me.


Question 22: Police have gathered from witnesses that you and Nicholas and Michael kicked him all over his body – what will you say?

Answer: I did not kick him. I slapped him. I left him with Nicholas and Michael and went to chase his two friends.


Question 23: You also continued to hit the deceased when he had fallen down- what will you say?


Answer: No.


Question 24: Witnesses say you, Michael, Alois Nicholas and Tony assaulted the deceased late Balten badly then a while later he died- what will you say?


Answer: I slapped him and left them to chase his friends and caught Gabriel.


Question 28: If I said that you Michael and Alois kicked and punched and kicked him- what will you say?


Answer: Not me.


Question 30: Did you see Balten when he was on the ground?


Answer: No.


Question38: You, Tony, Michael, Nicholas and Elvin all kicked Balten on the ground- what will you say?


Answer: No.


  1. The Record of Interview of Douglas Titus contains admission to slapping the deceased with open hand and not to kicking the deceased while on the ground.
  2. Apart from the Record of Interview of Alois Elvin which was tendered by

Mr Rangan for State with consent of Mr Kerker counsels for this defendant which contained a defence of alibi, Mr Rangan made references to the Records of Interviews of defendants Nicholas Tade and Douglas Titus submitting that both defendants had admitted to the charge of murder. This was rebutted by Mr Kaluwin in his submission for his clients 1st and 2nd defendants by submitting that both his clients had admitted only to slapping the deceased and did not attack the deceased as suggested in the questions put to them by the Arresting Officer.


The Evidence of Doctor Hilton


  1. The Post Mortem Report and oral evidence of Doctor Hilton show that the deceased had an enlarged spleen. Following the alleged abdominal trauma, it caused splenic injuries with subsequent profuse bleeding into the abdominal cavity which was 5litre in total. According to Doctor Hilton's oral evidence in court this morning a person with an enlarged spleen cannot die from an enlarged spleen ruptured unless the pressure or force which caused it to rupture is applied directly on to the area where the enlarged spleen is or around the area where the enlarged spleen is. In this case the deceased could not have died from being slapped or punched on his face. Doctor Hilton concludes that the deceased died from loss of blood.
  2. Having analysed the evidence of Gabriel Tabua and Nick Sogra it clearly shows they had been drinking beer and homebrew until mid night of the 31st of December 2010 and into the early hours of the 01st of January 2011. It is obvious that the witnesses were under the influence of intoxicating liquor (beer and homebrew).
  3. Being under the influence of intoxicating liquor it affected their ability to properly see and remember what actually occurred where the DJ music was played in which the incident occurred that led to the defendants charged with murder occurred so fast according to the evidence of Nick Sogra. This incident occurred at night.
  4. There is conflicting evidence from Gabriel Tabua and Nick Sogra in regard to the lightings on that night. The evidence of Gabriel Tabua is that there was only one generator light. This light was where the DJ music was played. However according to Nick Sogra there were three lights. He says one of the lights was under the house, the other was at the back of the house and the 3rd light was where the DJ music was played.
  5. Given their evidence in which they say they were standing not very far from where the music was played, which they also say where the deceased was first assaulted for sometimes with defendant Nicholas Tade and Gabriel Titus their evidence in regard to the lightings should support the other to show there was enough lightings for them to be able to see clearly what really took place at the scene of the crime in order to establish the defendants in court are the persons that assaulted the deceased and caused his death.
  6. There is also conflicting evidence from the witnesses on who was standing with each of them to watch the DJ music played. The evidence of Gabriel Tabua is that he was standing with the defendant Nicholas Tade while Nick Sogra says that he was standing with Gabriel Tabua. This is significant because it leads to whether the defendant Nicholas Tade was seen to have assaulted the deceased by the two witnesses.
  7. The evidence of Gabriel Tabua is that the defendant Nicholas Tabua was standing with him telling jokes and watching the DJ music played and were still together when the lady Elmina shouted the following: "Mi meri blo yu na yu passim eye lo mi?"(I am not your wife that you wink your eyes at.) It is immediately after this according to Gabriel Tabua the defendant Douglas Titus punched or slapped the deceased on the side of his face which caused the deceased to fall to the ground.
  8. While that caused a commotion which attracted others who were there drunk according to the evidence of Nick Sogra the witness Gabriel Tabua and the defendant Nicholas Tade ran away. The evidence of Gabriel Tabua shows the defendant Nicholas Tade did not assault the deceased because they ran away together. However according to Nick Sogra he says that he saw Nicholas Tade fight and he did not see him run away. This amounts to confliction of evidence of whether Nicholas Tade had assaulted the deceased.
  9. Given the evidence of both witnesses that they were together standing with the two defendants and watched the DJ music played at a very close distance of about 5meters their evidence should not be in conflict but support the other about defendant Gabriel Titus and Nicholas Tade assaulting the deceased.

Who assaulted the deceased?


  1. According to Gabriel Tabua the deceased was slapped or punched on the right side of his head by defendant Douglas Titus and while lying on the ground he was kicked by Tony, the owner of the block where the DJ music was played. According to Nick Sogra the deceased was assaulted by the defendant known to him as Polo which he identified to be the 3rd defendant in court.
  2. This evidence is in conflict with that of the Arresting Officer who said in her evidence that the person named Polo and Tony were released because of insufficient evidence against them in January of 2011. It is also conflicting evidence because Gabriel Tabua says the deceased was assaulted by Douglas Titus and kicked by Tony who is not a defendant before me while Nick Sogra says the deceased was assaulted by the person named Polo who is also not a defendant before me. This then leaves the evidence by Gabriel Tabua that the deceased was assaulted by Douglas Titus uncorroborated and weak.
  3. Because of the confliction on the evidence of the two key witnesses the evidence as it stands is lacking in weight and reliability that no reasonable tribunal could safely and lawfully convict each defendant on. Furthermore it does not sufficiently support the element in relation to whether the defendants were the persons that murdered the deceased directly or to be inferred and as a result it amounts only to being insufficient and therefore could not be persuasive to the court.
  4. The evidence also shows that the deceased was also attacked by other people whom Nick Sogra could not recognize while lying on the ground.
  5. This therefore causes doubts in my mind that the defendants now before me are the persons who caused the death of the deceased given that other people who were not recognized by Nick Sogra had also assaulted the deceased while lying on the ground.

Alternate charge – Manslaughter - Section 539


  1. Counsel for the State also submitted during the No Case Submission that there is an alternate charge against each defendant and for which they could be lawfully convicted of if the evidence is insufficient to convict them on the charge of murder. He submitted the alternate charge is manslaughter under Section 539 of the Criminal Code Act.
  2. I rejected this submission for three reasons: The first being that having concluded that the evidence as it stands is lacking in weight and reliability to lawfully convict each defendant of murder it also does not or would not support a conviction on an alternate charge of manslaughter under section 539 of the Criminal Code Act.
  3. Secondly; the submission in my view is misleading and is inappropriate at this stage. The alternate charge in my view could be considered if the trial had gone pass the No Case Submission stage and after the evidence have been put before the court in totality for consideration also in totality. It is only then at that stage in my view that an alternate charge could then be properly put to the court for consideration upon the evidence in its totality.
  4. Thirdly, I am tasked only at this stage to make a finding on whether a prima facie case has been established against each defendant on the charge of murder at the close of the prosecution's case.
  5. In conclusion the defendants each and severally have no case to answer on the charge of murder and are discharged forthwith.

__________________________________
Public prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the 1st & 2nd Accuseds
Paraka Lawyers: Lawyer for the 3rd Accused

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