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State v Nasa [2014] PGNC 337; N5941 (14 August 2014)

N5941

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO 805 OF 2012

THE STATE

V

LINDA NASA

Wabag: Kawi-iu AJ
2014: 15, 16, 21, 25 July
14 August

CRIMINAL LAW – Practice and procedure – No case submission – Wilful Murder – No admissible evidence of killing of deceased by accused – Criminal Code act Ch. 262, s 299.

CRIMINAL LAW – Defence of accident – Whether defence of self defence is an admission by the accused of the element of killing or material fact alleged against him.

Cases Cited:
The State v Ali Kei Paiya, CR No 478 of 2004 (Unnumbered and Unreported judgement of 09th August 2005)
The State v Martin Maso Naipo: CR No 92 of 2004, 21.06.05
The State v Paul Kundi Rape [1976] PNGLR 96.

Counsel:
Ms Sheila Luben, for the state

RULING ON SUBMISSION ON NO CASE TO ANSWER

14th August, 2014

1. KAWI-IU, AJ: The accused Linda Nasa stood charge on one count of unlawful homicide alleging that she did on the 09th day of February 2012 at Kaipale village, Laiagam District, Enga Province wilfully murdered one Mason Tumu pursuant to section 299 (1) of the Criminal Code Act. She pleaded Not Guilty to the charge.

2. The State initially had six witnesses listed on the indictment which it intended to rely upon in the prosecution of its case against the accused. After the plea, Sheila Luben of counsel for the State informed the court that State will be calling three witnesses for oral examination and three others will have their statements tendered by consent. The State at this stage intimated that it may encounter some difficulty in locating the three witnesses, and informed the court that it will consider applying for summons for their appearance in court. The case was stood over to the afternoon for the trial to commence.

3. In the afternoon when the case resumed State informed the court that the three witnesses (Nos. 1, 2 & 3) are not present in the precincts of the court, and formally applied to have the three witnesses summoned and the case adjourned to the following day to commence trial.

4. On the 16 July the 6th witness Dr Timothy Pyaku was called to give evidence in respect to his post mortem report after which he was examined by both the Defence and State. After the doctor had testified the state was called for its other witnesses. State then informed the court that the three state witnesses despite being served with summons were not present. At this point state applies for adjournment to the following day. However, the trial did not commence on the next day until the 21 July.

5. When the trial resumed on the 21st July, State with the consent of defence tendered the following documents:

Record of Interview Pidgin version Exhibit "B"

Record of Interview English version Exhibit "C"

Statement of Gideon Gibson Exhibit "D"

Statement of Elly Lati Exhibit "E"

6. As to the three remaining witnesses previously summoned to give evidence, the state informed the court that they were still unavailable. At this stage state informed the court that it will now close its case, without calling the three witnesses.

7. Immediately after the close of the prosecution's case, defence in a brief oral submission submits that the evidence so far adduced by the prosecution is such that the accused cannot be called to give evidence to supplement the state's case and that the accused has no case to answer. The case was then adjourned to the 25th July for ruling on the no case to answer submission.

8. The state's case consists of the records of interview, statement of Gideon Gibson, statement of Elly Lati and evidence of Dr Timothy Pyaku and his post mortem report which was tendered and marked as Exhibit "A".

9. The State's reliance on the purported admission of the accused in the Record of Interview is shaky as the accused had not made any unequivocal statements relative to her guilt. She denied the charge and it is for the State to prove its case. Any purported admission is not supported by any other credible evidence.

10. The two State witnesses of Gideon Gibson and Elly Lati are policemen who were involved in the conduct of the ROI. Their evidence is confine to the conduct of the interview and is not relevant to proving the charge against the accused.

11. The conversations resulting in the production of the ROI was conducted out of court and were unsworn therefore less reliance should be given, see The State v Ali Kei Paiya, CR No 478 of 2004 (Unnumbered and Unreported judgement of 09th August 2005) by Sawong J, and in The State v Martin Maso Naipo: CR No 92 of 2004, 21.06.05, by Kirriwom J.

12. In The State v Ali Kei Paiye: CR No 478 of 2004 (supra) Sawong J, said:

It is also trite that whilst a record of interview which is not contested in evidence, it is not of equal weight to the sworn evidence. A sworn evidence which has been tested or untested in cross-examination has far more weight than an unsworn statement."

13. And in The State v Martin Maso Naipo, CR No 92 of 2004, 21.06.05, Kirriwon J said:

"... the only reliable evidence given under oath and tested in cross-examination is what the accused told the court. That is what must be believed. The court need not place much weight to the accused's record of interview which is an out-of-court statement although tendered by consent of the defence."

14. Dr Timothy Pyaku's evidence in respect to his post-mortem report (Exhibit "A") is well presented. It is the only evidence for the prosecution that stands out. The evidence is confine to his findings as reported in his post-mortem report. The report is good in itself. However, in order for it to have any impact on the State's case it must be supported by other evidence to implicate the accused. In short, the only evidence before the court that is of substance is this evidence. As there are no other evidences to corroborate this evidence, it loses its weight and credence.

15. At the conclusion of the State's case it is obvious that all the essential elements of the charge of the offence of wilful murder had not been proved.

16. When there is a submission of no case to answer at the close of the case for the prosecution, the question to be asked is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands the accused could be lawfully be convicted. This is a question of law, to be carefully distinguished from the question of fact to be asked at the close of all the evidence, namely, whether the prosecution has proved its case beyond reasonable doubt: The State v Paul Kundi Rape [1976] PNGLR 96.

17. Thus in all the circumstances the accused cannot be called as a matter of law to answer to the charge laid against her or for any other.

18. The submission of no case to answer is therefore upheld.

19. I acquit her of the charge and order that she be discharged forthwith.
Orders accordingly
____________________________________________________________
Public Prosecutor- Lawyer for the State
Public Solicitor- Lawyer for the Accused