N7397
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 768 of 2014

THE STATE
V

ROY NOAH

Lae:  Kaumi AJ
2018: 14, 15, 16, 17 May 2 July

CRIMINAL LAW – Practice and Procedure-No case To Answer Submission-Criminal Code Act 1974, Part V-Offences Against the Person and Relating to Marriage and Parental Rights and Duties, and Against the Reputation of Individuals, Division 3-Homicide: Suicide: Concealment of Birth-Section 299 subsection (1)-Application that Case should be Withdrawn from the Tribunal of Fact-Two limbs of The State v Paul Kundi Rape relied upon

CRIMINAL LAW-No Case To Answer Submission-First Limb-Circumstantial Evidence Adduced by Prosecution Does Not Allow Court To Draw Only Rational Hypothesis That The Identity of the Perpetrator was The Accused-A Number Of Rational Hypotheses Could Be Drawn. 

CRIMINAL LAW- State bears onus of establishing the charge against an Accused person on the required Standard of Proof, Beyond Reasonable Doubt-Prosecution case Would Not Improve If Accused called upon to answer the Charge-Accused has No Case To Answer on the First Limb of Rape.

The accused pleaded not guilty to willfully murdering a man and a no case to answer submission was made at the close of the prosecution case.

Held:

[1] That at the close of the prosecution case two quite separate and distinct questions may arise for consideration at this stage of a criminal trial; one, whether there is a case for the accused to answer; and secondly, whether although there is a case for the accused to answer, 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 they are entitled to indicate that they do not wish to hear any further evidence. The State v. Paul Kundi Rape [1976] PNGLR 96, O’Leary. AJ 

[2] When the case against an accused person rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be in consistent with any reasonable hypothesis other than the guilt of the accused. State v Tom Morris [1981] PNGLR 493 by Miles J at p.495

Cases Cited:
Papua New Guinea Cases

Andrew v The State [2009] SC 997 
Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State (2002) SC 698
John Beng v. The State [1977] PNGLR
Paulus Pawa v The State [1981] PNGLR 496
State v Morris [1981] PNGLR 493
SCR No 1 of 1980: Re s.22A (b) of the Police Offences Act (Papua)
State v. Roka Pep (No.2) [1983] PNGLR 287; SC 261
State v Daniel [2005] PGNC 89; N2869 
State v Ray Johnson (2016) N6379
The State v. Paul Kundi Rape [1976] PNGLR 96
The State v Kuriday (1981) N300

Overseas Cases

Barca v The Queen [1975] 50 ALJR 108 at 117

Legislation Cited: 

Constitution of Papua New Guinea
Criminal Code Act 1974

References

Oxford English Mini Dictionary, Seventh Edition. Oxford. University Press. 2008 NewYork.

Counsel

Ms. Comfort Langtry, for the State
Mr. Isaac Tsipet, for the offender

05th August, 2018

1.	KAUMI AJ: INTRODUCTION: This is a ruling on a no case submission by a man who is facing an indictment that he wilfully murdered a man contrary to Section 299 (1) of the Criminal Code Act Chapter 262.

Background

2.	The incident was alleged to have occurred on Saturday 14th December, 2014 at about 8 p.m. at Butibum village in Lae when the accused stabbed the deceased Brown Kahata with a knife that led to his death.

3.	The accused was indicted pursuant to Section 299 (1) of the Criminal Code as follows:
ROY NOAH of BUTIBAM VILLAGE, LAE, MOROBE PROVINCE stands charged that he on the 14th day of December, 2014 at Lae in Papua New Guinea, wilfully murdered one BROWN KAHATA also known as HAROLD HAKI.

4.	The accused pleaded not guilty and the trial started on the 14th May, 2018. The prosecution tendered by consent two (2) exhibits and called two (2) witnesses who gave sworn testimonies. It closed its case on 16th May, 2018 and the no case to answer submission was made thereafter.

5.	Mr Tsipet of counsel in making the no case to answer submission relies on both limbs of State v Paul Kundi Rape [1976] PNGLR 96.

Facts

6.	The State alleges that on the 14th day of December 2014, the deceased, Brown Kahata also known as Harold Haki, ran after the accused brother, Samuel, who had sworn at the deceased and one Mark Alu and had run away to his residence. It is alleged that Brown Kahata followed Samuel Noah to his house where he disappeared. On seeing the deceased in his yard, the accused rushed at him and stabbed him with a knife on the left chest. The knife punctured the deceased‘s lung and caused his death.

7.	The State therefore alleges that when the accused stabbed the deceased he unlawfully killed the deceased and at that time he intended to cause the deceased’s death and thereby contravened section 299(1) of the Criminal Code Act.

Issue

8.	The issues before this court are:
(a) 	Whether or not there is some evidence of each element of the offence of wilful murder for the accused to answer;
(b) 	Whether although there is a case for the accused to answer, the state of the evidence is such that it is so weak or unreliable that no reasonable tribunal of fact could base a conviction on it, so the Court should exercise its discretion and stop the trial.
Identification

9.	The prosecution raised the issue of identification, therefore the court must be satisfied that there is evidence provided by the prosecution identifying the accused.

Law

No Case to Answer Submission

10.	The case law on no case to answer submissions is well settled in this country. In the seminal case of The State v. Paul Kundi Rape (supra) O’Leary. AJ stated two important principles which are often referred to as the first and second limbs:

That at the close of the prosecution case two quite separate and distinct questions may arise for consideration at this stage of a criminal trial; one, whether there is a case for the accused to answer; and secondly, whether although there is a case for the accused to answer, 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 they are entitled to indicate that they do not wish to hear any further evidence.

11.	The principles of the Rape case were affirmed by the 5 men Supreme Court bench (Kidu, CJ, Kapi. DCJ, Andrew. J, Pratt. J and Kaputin. J) in State v. Roka Pep (No.2) [1983] PNGLR 287; SC 261.

(Per Kidu CJ Kapi DCJ Andrew and Kaputin JJ) Where in criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the matter is a question of law for the judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence.
Where the tribunal decides there is no case to answer the accused is acquitted and that is the end of the matter.
Where the tribunal decides there is a case to answer, it nevertheless has a discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.

12.	With respect to the weighing up of evidence in a no case to answer submission Kearney DCJ in State v Kuriday [1981] PGNC 28; N300 (18 June 1981) stated:

“This question is decided by the judge as a question of law. The answer depends on the state of the evidence, bearing in mind that the weighing of the evidence is to be eschewed as far as possible.” 

13.	The National Court has over 42 years reaffirmed these principles in many cases. 

Elements of Wilful Murder

14.	In State v Daniel [2005] PGNC 89; N2869 (15 July 2005) Cannings. J stated the elements of the offence of wilful murder that the prosecution had the onus of proving beyond reasonable doubt in the following terms that:
(a)    The accused killed the deceased; (identification)
(b)    The killing was unlawful; and
(c)    The accused intended to cause the death of the deceased.
Principles of Identification

15.	I remind myself of what the Supreme Court has said on identification in the case of John Beng v. The State [1977] PNGLR that when the quality of identification is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of identification, an acquittal should be entered.

16.	The Court further notes what Frost CJ said in State v John Beng (supra) "that where evidence identification is relevant, the Court should be mindful of the inherent dangers. There is no rule of law that the evidence of one witness is insufficient, nor is there any rule of law that there must be a police parade for purposes of identification nor is there any rule of law that in every case, a warning ought to be given (to the jury), it all depends upon the circumstances of the case before the court."

Circumstantial Evidence

17.	The Supreme Court in Paulus Pawa v The State [1981] PNGLR 498 affirmed the principle stated in State v Tom Morris [1981] PNGLR 493 by Miles J at p.495 on circumstantial evidence and stated that in order for the Court to be satisfied beyond reasonable doubt of the guilt of an accused person, it is necessary not only that this should be a rational inference but that it should be the only rational inference that can be drawn.

18.	The Supreme Court bench comprising Cannings, Gabi and Yagi. JJ in the matter of Andrew v State [2009] SC 997 (3/11/09) stated that the law on circumstantial evidence was stated in the State v Tom Morris [1981] PNGLR 493 by Miles J at p.495. 

“I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Ct of Australia in Barca v The Queen [1975] 50 ALJR 108 at p.117

“When the case against an accused person rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be in consistent with any reasonable hypothesis other than the guilt of the accused.”

19.	These principles have been adopted in many subsequent cases.

The No Case Submission

20.	Mr Tsipet made a no case submission at the close of the prosecution case relying on both limbs of the Rape case.

21.	Firstly, that the evidence adduced by the State did not establish the essential elements of the offence. That there was no direct or credible evidence substantiating that Roy stabbed Brown and that from the evidence there were other reasonable inferences that the court could infer. Further that because identification was never made out and the second and third elements were also in issue and that the State had fallen short of establishing those two other essential elements of the charge. Therefore the offender could not be lawfully convicted and must be discharged and acquitted.

22.	Secondly, that if the court found that there was some evidence on the elements of the offence such evidence was dubious or tainted and unreliable that no reasonable tribunal could safely convict on it. He urged the court to use its discretion under the second limb of Rape to stop the case at this juncture and acquit the accused of the charge.

Submission for the State

23.	Ms. Langtry of counsel submitted there was no direct evidence that the accused was the one who wielded the weapon and wounded the deceased. Essentially that the evidence adduced by the State thus far in the trial was circumstantial. She cited the case of The State v Morris [1981] PNGLR 493 which is an authority on circumstantial evidence in this jurisdiction that states that where at the end of the prosecution case there are inferences inconsistent with the guilt of the accused, there is a discretion to acquit. The evidence must be such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.

24.	Ms. Langtry submitted that the accused was the only person who was armed and who had the means to hurt the deceased and that he was armed for 20 minutes from the time Mark Alu was stabbed to the time Enoch Kahata got to the material scene. 

25.	That the accused was the only one who had a motive to harm the deceased. Someone from outside his village who had the nerve to come to his village and chase his brother on his own turf.

26.	That evidence of intention was the use of the dangerous weapon, a knife by the accused knowing very well the capacity of it to cause serious harm and secondly the nature of the injury.

27.	In concluding Ms. Langtry submitted that there was evidence supporting each element of the charge of wilful murder and that the accused had a case to answer.
The Evidence (Exhibits Tendered By Consent)

28.	Column 1 of the table gives the exhibit number, column 2 describes each witness and column 3 summarises their evidence.

Table.1-Summary of Exhibits

Exhibit	Witness	Evidence	
A1	Record of Interview	Does not contain any admissions by accused.	
A2	Antecedent Report	No prior convictions alleged.	

Evidence

Mark Alu

29.	Mark Alu’s sworn testimony was that he was 40 years old and of mixed parentage of Butibum and Siassi and resided in a part of Butibum village called Hengali. He was a cousin of the deceased person, the late Brown Kahata. Mark recognized and pointed out the accused in the dock as the person who stabbed the deceased and that he knew him well because they lived togather at Butibum. The accused lived at a part of Butibum village called Wapiguhu. He told the court in chief that on Saturday 14 December 2014 he joined a group of men who were already drinking and started drinking alcohol with them from around 4pm to 8pm by which time he was drunk but not over drunk. At 8pm he left the group and went to a store to look for smokes and met Samuel the younger brother of the accused there and had an argument with him over a previous problem between them. As a result of this argument Samuel ran off challenging Mark to follow him to his home at Wapiguhu and which he did by chasing Samuel to his house which was 200 meters away. The accused, Samuel and their relatives all lived here at Wapiguhu. Mark said that as he was chasing Samuel there was only the two of them and that when the deceased heard Mark chasing after Samuel he and others ran after them. When they reached Wapiguhu Samuel ran out of sight amongst the houses there and he was then approached by the accused who asked him from a distance of 3 to 5 meters away, ‘You’ to which he replied that he had chased Samuel. The accused then stabbed him with a knife he had hidden under the palm of his hand. He recognized the accused because there was light from the surrounding houses in the form of fluorescent lights. When the accused stabbed him and pulled the knife out, blood came out and he felt dizzy, fainted and his eyes didn’t function well so he moved out from where he was and headed for the main road. As he was moving out he looked back and saw the accused running after him. When he was running out he saw Brown Kahata (deceased) but couldn’t see anyone else and tried to call him but he couldn’t speak loudly and his voice could not reach the deceased because he had lost a lot of blood as a result of the stabbing. He saw a vehicle and stopped it and was taken to the hospital. 

30.	I highlight hereafter crucial questions and answers which Mark was subject to during the evidentiary process and which I will refer to later as they have an effect on my consideration of his circumstantial evidence.  

31.	In examination-in-chief he was asked questions relating to the issue of identification:
(a)	Question: “You say the accused stabbed Brown Kahata, were you there when it happened?”
           Answer: “Yes, he stabbed me first and I came out”.
(b)	Question: “Where was Brown at this time (at the time the witness was stabbed)?”
Answer: “When I was stabbed and came out I saw Brown and couldn’t see others because I was stabbed.
(c)	Question: “Where were you at this time, in the accused area or where?”
Answer: “I was in the residential area but not really inside, there were some houses before Roy’s (accused) house some meters away”.
(d)	Question: “The houses nearby who did they belong to?”
Answer: “In a village and belong to relatives of the accused”.
(e)	Question: “Do you know these people?”
           Answer: “Yes”.
(f)	Question: “When he stabbed you was there anyone else when he stabbed you?”
Answer: “I only saw the person who stabbed me and not anyone   else”.
(g)	Question: “There was no one else besides you two?”
Answer: “Only both of us. After the stabbing when I ran out that’s when Brown came”.
(h)	Question: “Anyone else?”
Answer: “No one”.

32.	In cross-examination he was also asked question relating to the lighting on the road between Hengali and Wapiguhu at the time:

(i)	Question: “When you came to the road, you guys were drunk?”
Answer: “Yes, we were drunk and came out”.
(j)	Question: “You told the court that the incident happened at around 8 to 9pm at night?”
Answer: “Yes”.
(k)	Question: “The place was dark?”
Answer: “Yes”.
(l)	Question: “And you were running after Samuel?”
Answer: “Yes”.

33.	 In cross-examination he was also asked about what happened after he was stabbed:
(m)	Question: “I suggest to you that you were drunk and when that person attacked you, you fell down?”
Answer: “I didn’t fall down, I wasn’t overdrunk but when they stabbed me, I didn’t fall down I went to get assistance to help me”.
(n)	Question: “So you came out from where you were for assistance?”
Answer: “Yes, I ran out to find assistance so when I came out to the road I stopped the car to help me”.
(o)	Question: “That would be some distance from where you were stabbed?”
Answer: “Yes”.

34.	In re-examination he was asked:

(p)	Question: “In cross-examination the lawyer suggested to you that it was dark and you fell down, do you recall that question?”
Answer: “I didn’t fall down after being stabbed, I sensed the knife wound so I ran to the main road to look for help”.

Enoch Kahata

35.	Mr. Enoch Kahata gave a sworn testimony that he was 36 years old of mixed parentage being his mother from Madang and father from Butibum, and that he had lived all his life at Butibum and knew the accused for a long time because they grew up together in the same village. On the 14 December 2013 he was at Hengali junction together with the deceased, Mark Alu, Mack Steven. He was standing here for 20 to 30 minutes and wanted to look for smokes so he told Canon Kahata and Canon Micheal that he wanted to look for a smoke and left them, he got a smoke and lit up and walked to Wapiguhu junction.  He arrived at Wapiguhu 20 minutes after Mark Alu had ran after Samuel. On the road outside Wapiguu he met Mark Alu running out and Mark told him to go in and check on Brown and Mack. When he went 2 to 3 meters into Wapiguhu he saw Mack Steven sitting there and that there was light there. The accused approached him with a knife in his right hand and asked him, “Are you one of them” to which he replied “I came to stop the fight”. The accused then left him and his brother Malcom came and took him away. He saw his brother Brown (deceased) lying on the ground with his head resting on Mack Steven’s leg. He checked the pulse of the deceased and there was none. Mack Steven told him that the accused had stabbed the deceased. He then left to get assistance to take the deceased to the hospital.

36.	 Enoch said that there was light from fluorescent lights from houses there and this enabled him to see the accused. There were people from that community at Wapiguhu also at the scene but standing some meters away from him, the deceased and Mack Steven. 

37.	I highlight crucial questions and answers which Enoch was subject to during the evidentiary process the reasons for which I will refer to later.

38.	He was asked in examination-in-chief regarding his whereabouts when the deceased was stabbed:

(a)	Question: “You were there when he died?”
Answer: “Not exactly at the time, I came in after. I wasn’t there at the time of his death but after his death I came in”.
(b)	Question: “Was your brother Brown Kahata, was he bleeding on the ground?”
Answer: “No, no blood”
(c)	Question: “Did you check to see if there was any blood?”
Answer: “No, I didn’t bother to check this, I was rushing to get help for him”
(d)	Question: “Did you see any blood on him that night?”
Answer: “No”

39.	Enoch said he had been drinking alcohol with others that night before the incident.

Primary Findings of Facts

40.	From the evidence adduced by the prosecution to court at this juncture of the trial I make the following primary findings of fact:

(a)	Mark Alu lives at Hengali in Butibum village and had been drinking alcohol with others at Hengali in Butibum village on 14 December 2014 from 4pm to 8pm after which he went to a nearby store to buy smokes and met Samuel the younger brother of the accused.
(b)	Mark had an argument with Samuel over an earlier problem during which Samuel used harsh language to Mark at the store. There was an ensuing chase and Mark chased Samuel to Wapiguhu where he ran between houses that were located there and out of sight.
(c)	The road between Hengali and Wapiguhu was dark.
(d)	After Samuel ran out of sight the accused then approached Mark and there a short exchange of words between them.
(e)	At this time the accused was armed with a knife which he stabbed Mark with on his chest and there was no one else with or near them.
(f)	After Mark Alu was stabbed by the accused he lost a lot of blood and became dizzy, fainted and could not see properly.
(g)	After Mark Alu was stabbed by the accused he moved away from the accused who chased after him but he managed to stop a car at the road outside Wapiguhu which assisted in taking him to the hospital.
(h)	Mark Alu was not at Wapiguhu when the deceased (Brown Kahata) died and did not see how he died.
(i)	On the night of Saturday 14th December 20134 at 8.00pm at Wapiguhu, Butibum village there was fluorescent lighting from the houses of Nick Wambu and Kipuk Yali which were 25 and 30 meters respectively away from the material scene. This lighting enabled Mark to see and recognize the accused.
(j)	Wapiguhu is a part of Butibum village where the accused and his relatives including his brothers Samuel and Malcom have their homes and reside.
(k)	Enoch Kahata’s house is quite a distance from Wapiguhu.
(l)	Enoch had been drinking alcohol prior to the incident.
(m)	Enoch Kahata followed Mark Alu and Samuel 20 minutes later and when he arrived at Wapiguhu he saw his brother Brown Kahata lying on the ground with his head resting on Mack Steven’s leg.
(n)	Upon his arrival Enoch was asked by the accused who was armed with a knife if he was one of them to which he replied that he had come to stop the fight. The accused’s brother Malcom then led the accused away.
(o)	Enoch checked Brown’s pulse and found no pulse and saw no blood on the body of the deceased or on the ground where he lay.
(p)	The accused person’s house was a long way away from where they found him.   
(q)	There were people gathered around at the scene as well who lived around the scene at Waiguhu and were standing a few meters away. Enoch did not see who stabbed the deceased Brown Kahata.    
(r)	Neither of the two prosecution witnesses saw who stabbed the deceased.
(s)	Mark and Enoch had been drinking alcohol and were drunk between 8pm and 9pm on 14/12/13.  
(t)	Enoch told the court that Mack Steven told him that the accused had stabbed the deceased. This is hearsay and as such it is evidence that I do not accept.
41.	These are the primary findings of facts in the prosecution case and so what are the conclusions that I can reasonably draw from that could sustain the conviction of the accused in the absence of an explanation or contradiction and having said this I bear in mind that the evidence by the prosecution witnesses was circumstantial.

42.	Since the evidence is circumstantial in nature I pose an initial question and that is: it is the only rational hypothesis that could be drawn from the circumstances one that the identity of the person who killed Brown Kahata was the accused.

Assessment of the Evidence

43.	The evidence adduced by the prosecution against the accused at this juncture of the trial is in the form of two witnesses and two pieces of documentary evidence, the Record of Interview and Antecedent Report of the accused.

44.	Firstly in this case I note that it is not one of identification of a stranger as both the deceased and the accused and the two State witnesses were all from Butibum village and knew each other well. It is not a matter of my having identify who the perpetrator was but rather it is an issue of whether this accused or someone else who was the perpetrator. 

45.	I caution myself of the inherent danger of convicting an accused on the basis of identification. John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC 698 and I will demonstrate in my assessment of the evidence of the prosecution witnesses how I have exercised the principles of identification evidence.

Did The Accused Kill The Deceased?

Mark Alu

46.	To answer this question I begin with an assessment of the prosecution witnesses then the medical report and so firstly Mark Alu whose evidence was circumstantial in nature.

47.	There are certain parts of Mark’s evidence that I find are either not logical or rational or make no sense at all, and which make me wonder whether Mark was telling the whole truth or being selective about what he wanted the court to hear. Firstly, if as he says he saw the deceased at the road outside Wapiguhu after he was stabbed then it would be common sense that the deceased would have also have seen him and stopped to assist him as his cousin brother. And I say it is common sense because Mark had just been stabbed with knife and had lost a lot of blood as a result, and was in such a state of shock that he could hardly see, talk, was disorientated and in urgent need of medical assistance and so Brown would rushed him straight to the hospital for such help. Why would the deceased leave Mark unattended to and run into Wapiguhu where the accused, and his brothers Samuel and Malcolm and their relatives lived and run the risk of being attacked in there? I find that what Mark told the court here unbelievable. Secondly, I have issues also with what Mark said about seeing the deceased at the road outside Wapiguhu after he was stabbed when I consider the conditions of lighting at the road outside Wapiguhu. He told the court that it was dark on the road so how was he able to see the deceased at all. He said it was 8pm to 9pm, the road was dark and the only light was from the fluorescent at Wapiguhu which was some distance away from the road. Given this condition of lighting how could he have possibly seen the deceased at the main road? He did not tell the court how he was able to do so, was there moon light or was it a clear and starry night. It is not possible him to have seen the deceased in such conditions of lighting. Mark had been stabbed and lost a lot of blood as a result and was in such a state of shock he unable to see properly and fainted as he told the court. I find that he was also unable to see properly because he was drunk. He unconvincingly tried to convince the court that despite all of these factors he was still able to see the deceased in darkness. I am not convinced at all because not only is it incredible but it is just humanly impossible to see in the dark. By way of analogy I note that there is a whole array of nocturnal creatures such as bats, flying foxes and owls for example that have sonic vision that enables them see in the dark and unless Mark had similar kind of vision or was enabled by night vision googles to see in the dark (evidence of which was not provided to me) then he was plain lying. He did not see anyone let alone the deceased on the road outside Wapiguhu. I find that he came to the road after being stabbed and stopped a car which took him to the hospital and indeed that is what he told the court in cross-examination and again in re-examination.

48.	 The third part of Mark’s evidence that I have issue with is what he told the court about the Roy chasing after him after Roy had stabbed him. If as he says the accused was indeed chasing after him after stabbing him then it is logical that Roy would have caught up with Mark given his state of disorientation, weakness and loss of blood and secondly the accused would have run straight into the deceased at the road. But Mark did not tell the court if the accused caught up with him or not nor did he say anything about seeing anyone else on the road besides Brown. I find that this did not happen for the simple reason that Mark was lying.

49.	Fourthly, Wapiguhu is traditional home of the accused and his relatives’ traditional land. Indeed the accused, his brothers and relative’s had their homes there and lived there. When Mark chased Samuel after the latter challenged him to follow him to Wapiguhu he did so in anger. Samuel ran there because he knew he would get support from his relatives who lived. And Mark being from Butibum and having grown up there would have also known this. Therefore when Mark ran into Wapiguhu he met the accused who stabbed him after he told him his reason for being there. I find that Mark threw caution to the winds and ran straight into his adversary’s traditional home because he was drunk.

50.	Lastly, Mark Alu told the court in chief that he had been drinking alcohol for four (4) hours from 4pm to 8pm and he was not overdrunk and yet could not remember how much alcohol he had consumed. In response to a question in cross-examination he told the court that he and those he was drinking with that night were drunk when they came out to the road. In my view whether a person is overdrunk or just plain drunk the fact remains that you are drunk as a result of consuming alcohol. The Oxford English Mini dictionary defines the word ‘drunk’ as strongly affected by alcohol. It also defines the noun ‘alcohol’ as drinks containing an intoxicating liquid, such as wine, beer, and spirits. It further defines ‘intoxication’ as of alcohol or a drug causing loss of control. Mark Alu deliberately attempted to downplay his state of inebriation and convince the court that despite drinking alcohol for four hours he was normal and in full control of all his bodily functions. I take note of what Anis. J said in the case of State v Ray Johnson (2016) N6379 and apply it in this case, Anis. J stated:

“Courts in this jurisdiction have considered influence of alcohol detrimental to a witness’s judgment or capacity to for example recall an event or behave, and courts should and must continue to take greater care when deciding whether to accept evidence from witnesses who are under the influence of alcohol”.
 
Enoch Kahata

51.	Next I consider the evidence by the second prosecution witness Enoch Kahata whose evidence was also circumstantial in nature.

52.	Enoch said that 20 minutes after Mark had chased after Samuel from Hengali he came to the road outside Wapiguhu where he met Mark who told him to go into Wapiguhu and check on Brown and Mack Steven. I do not accept what Enoch has said for a number of reasons. Firstly, Enoch’s evidence about Mark does not make sense when I consider what Mark said on oath that when he reached the road outside Wapiguhu after being stabbed he saw only Brown and no one else. What Enoch has said is in direct contradiction to what Mark said. I have already disregarded Mark’s evidence about seeing Brown at the road outside Wapiguhu (for the reasons I gave) and what this means now is that I do not believe either of them on this aspect of the events that happened on the road outside Wapiguhu after the stabbings. Who did Enoch talk to, in my view he talked to no one, let alone Mark Alu who was either at the hospital or on his way there by the time he got to the road outside Wapiguhu 20 minutes later. Secondly when I consider the time factor involved it is logical that Enoch did not speak at all to Mark. I note that he entered Wapiguhu 20 minutes after Mark had entered. I have accepted that Mark was stabbed by Roy shortly after he entered Wapiguhu and left shortly after that and when he left neither Enoch nor the deceased had arrived there yet. Enoch arrived at Wapiguhu 20 minutes later to find the deceased lying on the ground so it stands to reason that he did not speak to Mark at all let alone see him. I also note that Mark said on oath that he couldn’t talk as a result of his stabbing so what Enoch has done in my view has been to embellish his story to court in an attempt to convince it that he should be believed. His demeanour in court was of a witness who could not clearly recall the events of an incident that happened five years ago and I accept that that is human nature however his attempt to make up for this loss of memory by embellishing his story to court and confusing himself if I may add plus contradicting Mark is what has caused me not to believe much of what he said. 

53.	There are other parts of Enoch’s evidence that are irrational as well; take for example Mark said he was stabbed on his chest and Enoch said when he spoke to Mark on the road outside Wapiguhu Mark was holding his stomach, why would Mark hold his stomach when his wound was to his chest. Another example is that Mark never mentioned Mack Steven and the deceased as being with him at Wapiguhu when he was stabbed. He said there was only the accused and he and I have accepted this and yet Enoch said that Mark told him to go and check Brown and Mack which also contradicts Mark and I find illogical for the reasons I have already alluded to above. This reinforces my view of Enoch as being a witness whose recollection of the events of the night of 14/12/13 was hazy and unreliable and untrue.

54.	I note that Samuel had sworn at Mark and had a previous argument with him and was present at Wapiguhu but hiding amongst the houses there.

55.	I am not certain when the deceased and Mack Steven entered Wapiguhu. Given the primary findings of facts in the prosecution case that I have already made it can be reasonably inferred that they entered Wapiguhu after Mark was taken to the hospital and before Enoch arrived there. 

56.	There is no direct evidence before me as to what happened after they entered Wapiguhu. What that means is that I don’t know what happened to Brown during the time he and Mack Steven were at Wapiguhu until Enoch came to them. The time when Mark ran after Samuel and when Enoch entered was 20 minutes long so what happened during this 20 minute interval of time is not clear from the evidence adduced to the court by the prosecution.

57.	The evidence about the accused being armed with a knife before the stabbing and 20 minutes after does not necessarily import the inference that Roy stabbed Brown. And as such is one of the reasons why I cannot conclude with certainty that Roy stabbed the deceased.

58.	There were other relatives of the accused living in the area and they were in a position to attack the deceased. Samuel was in the area and so was Malcolm.

59.	The discrepancies in the evidence of the State witnesses as to what happened at the road on the night of 14/12/13 maybe a periphery matter but the effect of my findings on the circumstantial nature of the evidence of Mark Alu and Enoch Kahata does impinge on the outcome of the first issue, and that is whether or not their circumstantial evidence enough to satisfy me beyond reasonable doubt of the guilt of Roy Noah and his guilt should not only be a rational inference but that it should be the only rational inference that can be drawn.
Mack Steven

60.	Mack Steven was listed in the indictment as witness number four (4) but he was not called to testify as he could not be located. His evidence was crucial to the issue of identification of the perpetrator as he was present when Enoch found the deceased with his head resting on his leg and was with Brown when he was stabbed.

61.	What Enoch told the Court about Mack telling him about the accused stabbing the deceased is hearsay and inadmissible. Without Mack’s evidence it is not clear or certain to the Court as to what actually happened on the night of 14/12/18 at Wapiguhu when Brown was there.

Medical Evidence

62.	There is also the matter of the medical certificate of death. There is no medical evidence before the Court to confirm the nature of the deceased’s or specifically what caused his death. The State had attempted to tender the medical report into evidence as its author (who had left the country) was not present and the defence counsel objected to this and I upheld his objection so the State changed tact and tried to tender it as a business record pursuant to section 61 of the Evidence Act. As a result of this I invited both counsels to address the court on this issue and adjourned to allow them to prepare their submissions. 

63.	Upon commencement of the trial the Court was informed by counsel for the State that it was abandoning its attempt to tender the medical certificate of death as a business record resulting in nothing in terms of a medical report on the cause of death of Brown Kahata as evidence before the court for its consideration.

64.	There must be a chain of causation linking the accused to the crime. The State alleges that the accused stabbed the deceased and he died as a result but I have not seen any medical certificate of death confirming the cause of his death. So what did Brown Kahata die of on the night of 14/12/13? 

65.	A medical certificate of death is evidence and evidence of a hearsay nature but is nevertheless an exception to the hearsay rule. The evidence provided by a medical certificate has the crucial effect of corroborating direct or indirect evidence that is properly adduced to court about the cause of death of a person. 

66.	In this case this crucial aspect of the prosecution case is not before the court for its consideration and its absence has a detrimental impact on the prosecution cause. The chain of causation is broken. I have accepted that the deceased did die on the night of 14/12/13 between the 8pm and 9pm but what I don’t know is what he died of or how he may have died.

67.	Enoch said he saw no blood on the body of the deceased or on the ground next to him and this adds to the uncertainty over the nature of the death of Brown Kahata. 

68.	In determining the first question and drawing from the circumstances I find that there are a number of rational hypotheses that could be drawn and are as follows:-

(a)	The deceased was attacked and killed by Samuel during after Mark Alu had left Wapiguhu for the hospital; 
(b)	The deceased was attacked and killed by someone from the Wapiguhu community whose houses were located there after Mark Alu had left Wapiguhu for the hospital; or
(c)	The deceased was attacked and killed by the accused’s brother Malcom after Mark Alu had left for the hospital; or
(d)	That the deceased was attacked by a relative or relatives of the accused who also lived at Wapiguhu after Mark Alu had left for the hospital; or
(e)	That the deceased was stabbed by the accused after Mark Alu had left for the hospital; or
(f)	That the deceased was attacked and killed by a friend of the Noah family after Mark Alu had left for the hospital.

69.	In my respectful view these are a number of hypotheses that could be rationally drawn from the circumstances in this case and I am sure that had Mack Steven testified some light would have been shed on the identity of the perpetrator of this serious offence and the absence of evidence with regard to identification coupled with no medical evidence leaves a serious deficiency in the prosecution case which cannot be improved by calling upon the accused to answer. 

70.	Therefore in answering the first question I find that the evidence adduced by the prosecution is insufficient to allow me to draw the only rational inference that the identity of the person who fatally stabbed and killed Brown Kahata was the accused.

71.	The issue of identification is pertinent to all the elements of the offence and having answered the first question in this manner there is no need for me to answer the last two questions.

Burden Of Proof

72.	The burden of proof in a criminal case is always on the State. It does not shift to the accused to prove his innocence. This would run contrary to the presumption of innocence of an accused person guaranteed under Section 37 (4) of the Constitution. SCR No 1 of 1980: Re s.22A (b) of the Police Offences Act(Papua) Greville Smith J

Conclusion

73.	For the foregoing reasons I agree with Mr. Tsipet of counsel that the evidence of the State in this matter is such that I can use my discretion to stop this case.

74.	I consider that the accused has no case to answer on the first limb of the Rape case.

75.	The accused is acquitted and discharged forthwith. 

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