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State v Bubu [2017] PGNC 345; N7026 (8 August 2017)

N7026

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR No. 93 & 94 OF 2014

THE STATE

V

CHRIS BROWN BUBU & MICHAEL BABO URA
Kimbe: Miviri, AJ

2017: 8^th August

CRIMINAL LAW - PRACTISE & PROCEDURE Trial-offence of GBH-victim evidence -no further evidence-state close case-no case submission

CRIMINAL LAW - no case submission-second leg Paul Kundi Rape-application to withdraw the case from Jury-discretion to stop case-very clear case no weighing-dubious tainted lacking in credibility-stop case-no case submission upheld-acquitted discharged-bail refunded x2.

Facts

Prisoners fought with victim poured petrol on his back and set him alit. He was burnt over his back was hospitalized and recovered with scars.

Held

1. No case submission
2. Application of Paul Kundi Rape second leg
3. Discretionary to stop case.
4. Insufficiency of evidence
5. Dubious tainted so lacking in weight and credibility
6. Case stopped exercise of discretion
7. Acquitted discharged x2.
8. Bail refunded x2.

Cases cited:
State v Kuriday [1981] PGNC 28; N300
State v Sange [2005] PGNC 145; N2805
Pep; Re Reservation of Points of Law under s21 Supreme Court Act (ch37),
The State v [1983] PNGLR 287

The State v Rape, [1976] PNGLR 96

Counsel:
D.Kuvi, for the State

B. Popeu, for the Defendant

RULING ON NO CASE SUBMISSION

9^th August 2017

1. MIVIRI AJ: This is the ruling of the court in an application on a no case submission made by Michael Babo Ura and Chris Brown Bubu who are both jointly charged with intent to cause grievous bodily harm pursuant to section 315 of the Code.
   
2. Both are alleged to have fought Henson Kaveu Robert on the night of the 12^th April 2012 poured petrol as he lay on the ground and then to set him alight where he suffered burns to his back and ear where he was hospitalized.
   

Law

3. Section 315 provides for ACTS INTENDED TO CAUSE GRIEVOUS BODILY HARM OR PREVENT APPREHENSION reads:”

A person who, with intent–

(a) to maim, disfigure, or disable any person; or

(b) to do some grievous bodily harm to any person; or

(c) to resist or prevent the lawful arrest or detention of any person,

does any of the following things is guilty of a crime:–

(d) unlawfully wounding or doing a grievous bodily harm to a person;

(e) unlawfully attempting to strike a person with a projectile;

(f) unlawfully causing an explosive substance to explode;

(g) sending or delivering an explosive substance or other dangerous or noxious thing to a person;

(h) causing any substance or thing referred to in Paragraph (g) to be taken or received by a person;

(i) puts a corrosive fluid or destructive or explosive substance in any place;

(j) unlawfully casts or throws a fluid or substance referred to in Paragraph (i) at or on a person, or otherwise applies any such fluid or substance to the person of a person.

Penalty: Subject to Section 19, imprisonment for life.

4. Section 315 (b) (d) are invoked against each of the accused. The elements of which are:

(a) a person

(b) with intent

(c) to do grievous bodily harm

(d) to any person or

Section 315 (d) is similar in the elements required to be satisfied by evidence.

Evidence

5. State tendered the records of interview Exhibit S1, S2, of Chris Brown Bubu and Exhibits S3, S4 of Michael Babo Ura. In there the defendants state they are related to the victim and did not pour petrol on him as he contended and then set him alit. In their pleas both admitted fighting but denied setting the victim on fire as he contended.
   
6. The medical affidavit and report of Doctor Jackson Nuli dated the 18^th October 2012 was Exhibit S5 it established that the victim had 38percent burns to the back, neck and the arms. He was managed for two weeks and discharged. He recovered well but needed physiotherapy on his neck and arms.
   
7. This is also the evidence of Henson Kaveu Robert that he suffered burns to his back, ear, and hand as a result of petrol being poured on him after which he was set alit by Michael Babo Ura. Chris Brown Bubu swore and urged he be beaten up.
   

No Case submission

8. Counsel for the defendants has submitted at the close of the State case asking the court to stop the case in accordance with the second leg of Rape, The State v [1976] PNGLR 96 which is:
   

“Whether the state of the evidence is such that the Judge ought to withdraw the case from the Jury or at least tell the Jury, that it is open to them to say at any time that they do not wish to hear any further evidence. In these cases the test is a quite different one. As I understand it, the question there is not whether there is any or some evidence on which a jury could lawfully convict, but whether there is sufficient evidence on which a reasonable jury ought to convict. It was formally considered necessary in all cases to leave the question to the Jury if there was any evidence, even a scintilla, in support of the case; but it is now settled that the question for the Judge (subject of course to review) is, ... not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.” Rape, The State v [1976] PNGLR 96; State v Sange [2005] PGNC 145; N2805

Issue

9. Whether there is sufficient evidence on which a reasonable jury ought to convict?
   

Ruling

10. Sufficiency is different from beyond all reasonable doubt. It derives in all probability from the “unsafe or unsatisfactory” ground of appeal against convictions laid out by the Supreme Court Act. The latter is usually at the end of all evidence for and against. It is trite that no case can be weighed twice. So here where the plea is to have the Judge stop the case as it were, it must be a very clear case, where the state evidence is so dubious, or so tainted, or so obviously lacking in weight or reliability, or has been so discredited in cross examination that it is clear that no reasonable tribunal could safely convict on it. The evidence by far is set out above: State v Kuriday [1981] PGNC 28; N 300; Pep; Re Reservation of Points of Law under s21 Supreme Court Act (ch37), The State v [1983] PNGLR 287.
    

Sufficiency

11. There is sufficient evidence that Henson Kaveu Robert suffered 38 percent burns to the back, neck and the arms. He was managed for two weeks and discharged. And it was a grievous injury that was life threatening and left permanent scars on the back of Henson Kaveu Robert. Defined under section 1 of the Criminal Code, “means any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health”. This satisfies sufficiency of evidence towards grievous bodily harm upon a person here Henson Kaveu Robert.
    

Insufficiency

12. There is insufficient evidence that there was a fight in the way as described by the victim,HB because Chris Brown Bubu in his record of interview does not describe the fight in likeness as described by Henson Kaveu Robert when he gave evidence. And Michael Babo Ura also in his record of interview does not describe the fight as done by Chris Brown Bubu or Henson Kaveu Robert.
    
13. There are three different views on the fight or what was supposedly the fight. It does not show sufficiency in the element of intent to cause Grievous bodily harm upon the two defendants.
    
14. There is insufficient evidence as to how the victim was set alight. His description is insufficient in the element of intent to cause grievous bodily harm and by whom. Intent being a personal matter unto the defendants in this case Chris Brown Bubu and Michael Babo Ura. One cannot look into their mind to bring out the sufficiency in their intent as an element to the charge. Accidently setting alit is there in view of the fact that the victim had been consuming alcohol whole day and was affected by alcohol up to the time immediately before the injury he was wrestling with Tiotam over the knife. And that it was he who had brought the 5 litre petrol container there and charged at those who were swearing at him.
    
15. There is insufficient evidence as to whether he was intentionally set on fire or accidentally set on fire. There is insufficient evidence satisfying the elements of section 315 (b) (d) of the Criminal Code in the matter of Michael Babo Ura and Chris Brown Bubu.
    
16. Henson Kaveu Robert had his face down making the observation from the side and was struggling along time as to who will get the knife with Tiotam who could cut him so his full concentration was there because Tiotam would have done something to him if he got the knife and could not have seen who was responsible for the petrol onto his back.
    
17. I consider that there is a very clear case here that the State evidence of Henson Kaveu Robert, the principle witness, is dubious and tainted, lacking in weight and credibility and reliability. It would be unsafe and unsatisfactory to rely on it as it is insufficient after closure by the Prosecution. And I make this determination in the light of the fact that it is apparent and I really have had no real weighing to come to this view.
    
18. Accordingly, in the exercise of my discretion, I uphold the application made pursuant to the second limb of Paul Kundi Rape (supra) and stop the case here. That the defendants have no case to answer and I acquit and discharge both defendants from the charge forthwith. I further order that their bail moneys be refunded forthwith.
    

Orders accordingly.

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