N7924
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1248 of 2015

THE STATE

V

LIGUR GESLING

Kerevat:  Anis J
2019:  1, 22, 26 & 30 July

CRIMINAL LAW – No case to answer – charge – 1 count of wilful murder – section 299(1) of the Criminal Code Act Chapter No. 262 – tendered exhibits by consent – no witness called by the State – proposed defence of insanity – evidence of insanity – State concedes to insanity status of the accused at the time when the offence was committed – exercise of court’s power under section 592 of the Criminal Court – whether section 592 applicable in this instance

Case Cited:

State v Paul Kundi Rape [1976] PNGLR 96

Counsel:

Ms J. Batil, for the State
Mr M. Peter, for the Accused

RULING ON NO CASE
30th July, 2019

1.	ANIS J:	The accused was indicted with 1 count for the wilful murder of his biological daughter on 1 July 2019.  At the end of the prosecution’s case on 22 July 2019, the defence made a no case to answer application.  The application was made on 26 July 2019.  I reserved my ruling to today at 9:30am.

2.	This is my ruling.

BACKGROUND

3.	The indictment and its brief facts, cite the offence, wilful murder, under section 299(1) of the Criminal Code Act Chapter No. 262 (Criminal Code).  

4.	The accused is the biological father of the deceased (named).  He is from Mei-Livuan village (the village) which is situated in the Reimber/Livuan LLG, Gazelle District of East New Britain.  The alleged incident was said to have occurred on 12 May 2015 at Tavaluai Block in Lassul Baining LLG (the block), which is situated in the Gazelle District of East New Britain.

5.	The allegation is this.  Between 9am and 10am that day, the accused was at the block.  His daughter (the deceased) was 6 years and she was also there.  She was seated under their dwelling house with her uncle (accused’s brother) and her grandmother (accused’s mother).  The accused approached them with a long bush-knife and he told her daughter that he would cut her with the bush-knife.  Her uncle scolded him so the accused walked away.  Then suddenly, the accused came charging back.  He swung the bush-knife at his brother.  The knife missed his brother and cut the deceased.  She was cut on her right-side abdominal area.  The deceased died instantly.

6.	The accused was arraigned to the charge of wilful murder on 22 July 2019.  He pleaded not guilty to the charge and the trial proceeded thereafter.

EVIDENCE

7.	The State did not call any witness to come forward to testify.  It, however, tendered a total of 12 exhibits without objection.

NO CASE APPLICATION

8.	The defence’s no case to answer application was made orally.  It is based on the first limb as stated in the case of State v Paul Kundi Rape [1976] PNGLR 96.  In summary, the first limb states that if the State fails to adduce evidence to establish or support one or more of the elements of the offence which an accused person is charged with, the Court will be obligated to stop the proceeding and acquit the accused.

9.	In support of its argument under the first limb, the defence argues that the State has failed to adduce evidence to support the element intention to kill.  The defence submits that it had given notice to the State of its intention to rely on the defence of insanity under section 28 of the Criminal Code.  It submits that the prosecution did not call witnesses or tendered evidence to disprove the said proposed defence of insanity.  As such, it submits that there was no case to answer, and that the trial should stop.

10.	The State has conceded to the contention of the defence’s defence of insanity.  However, it argues that the Court should, pursuant to section 592 of the Criminal Code, make orders in relation to the further detention of the accused which is mandatory under the circumstances of the case.

ISSUE

11.	The main issue in this case is whether the Court has jurisdiction to issue orders as required under section 592 of the Criminal Code whilst hearing or in a no case to answer application. 

COMMON GROUND

12.	The parties are at common ground that the accused is currently mentally stable.  This had led to him being arraigned in Court earlier at the commencement of the trial on verdict.

13.	The parties are also at common ground that the accused was mentally insane or that he was in a state of mental infirmity at the time when he committed the offence of wilful murder upon the deceased; that his mental infirmity has caused him unable to understand what he was doing or that it has controlled his action, at the time when he committed the offence.  See section 28 of the Criminal Code.  

SECTION 592

14.	Section 592 of the Criminal Code states, and I quote:

92.	Acquittal on grounds of insanity.
(1)	If on the trial of a person charged with an indictable offence it is alleged or appears that he was not of sound mind at the time when the act or omission alleged to constitute the offence occurred, the court shall—
(a)	if it finds him not guilty, find specifically whether or not he was of unsound mind at the time when the act or omission took place; and
(b)	whether he is acquitted on account of such unsoundness of mind.
(2)	If in a case to which Subsection (1) applies the court—
(a)	finds that the accused person was of unsound mind at the time when the act or omission took place; and
(b)	says that he is acquitted on account of that unsoundness of mind,
it shall order him to be kept in strict custody in such place and in such manner as the court thinks proper pending a decision by the Head of State, acting on advice.
(3)	In a case referred to in Subsection (1), the Head of State, acting on advice, may give such order for the safe custody of the person pending a decision by the Head of State, acting on advice, in such place or confinement and in such manner as the Head of State, acting on advice, thinks proper.
(4)	Where a person is confined under this section, the Head of State, acting on advice, may at any time order that he be released from custody either unconditionally or on such conditions as are laid down by the National Executive Council.
(5)	Where it is given in evidence on the trial of a person charged with an offence that   person was suffering from insanity as provided in Section 28 of the Criminal Code at the time of the committing of the offence and the person is acquitted, the Court shall be required —
(a)	to find specifically whether that person was suffering from insanity at the time of committing of the offence; or
(b)	to declare whether it has acquitted him on account of such insanity.
(6)	Where the Court finds that the accused was suffering from insanity at the time of committing of the offence, the Court shall order that the accused be confined in a Mental Health Care Centre indefinitely and shall be released only by the Minister on recommendation by the Mental Health Tribunal.
(7)	The Court shall not make a finding under Subsection (1) except on the evidence of not less than two (2) registered Psychiatrists.

CONSIDERATION

15.	The real issue I had posed to counsel at the hearing of the no case to answer application is this, whether this Court, at this juncture and considering the application, has jurisdiction to make orders as required by section 592.

16.	I note submissions by both counsel who gave differing views.  For the State, it submits that the Court has jurisdiction.  Counsel also submits that the said power is mandatory, that is, in the event of the Court acquitting an accused person based on the defence of insanity.  The defence on the other hand submits this.  It says that the Court should make its findings strictly based on the application.  It submits that in this case, it has proven that the State lacked evidence to establish the element intention to kill, and as such the Court should stop the proceeding and acquit the accused without any further others.

17.	I cannot find a case law on point which is similar to the present case where section 592 is raised in a no case to answer application.  But having said that, I think the issue can be easily resolved in this way.  I note that the no case to answer application or submission is made in the middle of the trial on verdict.  On that basis, I find that section 592 is applicable in this instance by the Court because it refers to Court exercising its powers therein at or in a trial.  Moving on, I note that the parties are at common ground that the accused was in a state of mental infirmity at the time when he committed the offence, wilful murder, upon the deceased.  I find that to be the case, and these are confirmed in the tendered exhibits by the State.  I, in particular, refer to exhibits P10, P11 and P12.  Exhibit P10 is a Psychiatric Report from the Laloki Mental Hospital which is dated 10 July 2018.  The accused was diagnosed with a psychotic disorder called Schizophreniform where the accused may be self-aware that he is mentally ill and where he would feel that he is being controlled by some external force.  Exhibits P11 and P12 were his earlier provisional diagnosis reports.  They had been conducted at the Nonga Base Hospital and both reports or letters, are dated 19 July 2016.  The accused was suspected of suffering from Neurosis Psychosis, like for example loss of touch with reality.  He was also found to have developed a condition called reactive depression.  The evidence, in totality, reveal that the accused was suffering from insanity at the time when he committed the offence on 12 May 2015.

18.	In my view, subsection 6 of section 592 is relevant and applicable to the present case.  It states, and I quote in part: Where the Court finds that the accused was suffering from insanity at the time of committing of the offence, the Court shall order that the accused be confined in a Mental Health Care Centre indefinitely and shall be released only by the Minister on recommendation by the Mental Health Tribunal.  

SUMMARY OF FINDINGS

19.	In this case, I firstly rule that the State has not adduced evidence to establish the element, intention to kill, for the offence, wilful murder, in relation to the tragic incident that had occurred on 12 May 2015.  The basis for that is because the accused was mentally insane or that he was in a state of mental infirmity at the time when he committed the offence of wilful murder upon the deceased.  The said medical condition of the accused was not disputed.  I have also found that to be the case with the tendered exhibits from the State.  I will therefore uphold the no case to answer application of the defence, and in doing so acquit the accused.

20.	Upon reaching the above decision which is based entirely on the insanity of the accused, I am obliged under section 592(6) of the Criminal Code to order that the accused be confined in a Mental Health Care Centre indefinitely and shall be released only by the Minister on recommendation by the Mental Health Tribunal.  I will also make orders to that effect.  

ORDERS OF THE COURT

21.	I make the following orders.

(i)	I uphold the no case to answer application by the defence and the accused is acquitted of the charge of wilful murder.

(ii)	Pursuant to the Court’s power under section 592(6) of the Criminal Code, I further order that Ligur Gesling shall be kept at CS Kerevat and shall without delay be transferred to the Laloki Mental Hospital in Port Moresby where he shall be confined there indefinitely and shall be released only by the Minister on recommendation by the Mental Health Tribunal.

(iii)	I make a further consequential order that the Laloki Mental Hospital shall be immediately notified and that the said institution shall take all necessary steps to ensure the immediate and smooth transfer of Ligur Gesling from CS Kerevat to Port Moresby and onto the Laloki Mental Hospital outside Port Moresby.
________________________________________________________________
Office of the Public Prosecutor:	Lawyer for the State
Office of the Public Solicitor:	Lawyer for the Accused