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State v Iroto [2019] PGNC 188; N7928 (22 July 2019)

N7928

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS. 994, 995, 996, 998, 999, 1000, 1001, 1002, 1003, 1004 of 2016 and 110 of 2018

THE STATE

V

JULY IROTO, GUNAN SAKAPIOK, NGUNIA PAIPO, BUBU VALUE, TIMOTHY SAMMY, EPHRAIM RANUI, BILLIE ROBIN, BENJAMIN PAIPO, ROMANUS TAENGE, TEKO GIRE, and NOEL BURBUR

Kerevat: Anis J
2019: 8 & 22 July

CRIMINAL LAW – No case to answer application – charge - wilful murder under section 299 of the Criminal Code Act Chapter No. 262 – second limb – whether all, some, one or none of the accused have been identified at the crime scenes – whether evidence tenuous and whether the case should be stopped - inconsistencies – whether inconsistencies are a material consideration in a no case to answer application – whether State evidence if considered at their highest and as accurate would result in a conviction

Cases Cited:

State v. Roka Pep [1983] PNGLR 287
State v. Tom Tomugal (2016) N6329

Counsel:

Ms J. Batil, for the State
Mr A. Tunuma, for the Eleven Defendants

RULING ON NO CASE

22^nd July, 2019

1. ANIS J: The eleven (11) co-accused (defendants) were indicted to stand trial for wilful murder under section 299(1) of the Criminal Code Act Chapter No. 262 (Criminal Code) on 1 July 2019.

2. The trial commenced at 9:30am on 4 July 2019. At the end of the State’s case, the defence made a no case to answer application on 8 July 2019. I heard oral submissions from the parties and reserved my ruling.

3. This is my ruling.

BACKGROUND

4. The defendants are all from Kabakada village. It is situated in Reimber/Livuan LLG which is in the Gazelle District of East New Britain. It is alleged that on 17 April 2015, at Vunairoto village, the 11 co-accused wilfully murdered one August Guere.

5. The allegation made against them is this. Between 10am and 11am on the said date, the defendants were at their neighbouring village Vunairoto. The deceased was also at the same village with 2 other men. The deceased and the 2 men were drying copra at a copra dryer. A group of men shouted and approached the 3 men. The 2 men who were with the deceased ran away leaving the deceased behind. Amongst the men that approached the deceased were defendants July Iroto, Benjamin Paipo, Ngunia Paipo, Timothy Sammy, Noel Burbur, and Romanus Taenge. The deceased was attacked where defendant July Iroto cut the deceased on his back with a bush-knife. The deceased fell to the ground. He was assaulted as he laid on the ground, and one of the men who was not identified stabbed his head and ears with a screw driver. They later tied his hands and legs together and carried him down to the road. On the road, defendants Gunan Sakapiok, Ephraim Ranui Jnr, Bubu Value, Billie Robin and Teko Gire joined in and the defendants continued to assault the deceased. Police arrived later at the scene and the deceased was taken to the hospital. The deceased died a few days later from severe head injuries that had been sustained from the assault on him by the defendants.

ISSUE

6. The defence rely on the second limb in its no case application. The second limb, as held in State v. Roka Pep [1983] PNGLR 287 of course is whether the evidence that have been adduced by the State on each of the elements of the offence, are tenuous, and if so, whether therefore the Court should exercise its discretion and stop the proceeding.

SECOND LIMB

7. The defence’s main argument is inconsistency. It challenged each of the witnesses’ evidence. Let me say this at the outset. The second limb is assessed beyond inconsistencies or credibility of witnesses. Former Chief Justice Sir Mari Kapi, then Deputy Chief Justice, in State v. Roka Pep (No. 2) (supra), stated and I quote in part:

(2) There is evidence of all the essential elements, but it is of a tenuous nature for example the evidence is weak or vague or inconsistent with other evidence. The question of law which arises at this point is whether there is sufficient evidence to support a conviction. A judge is required to direct his mind to the aggregate effect, or sufficiency, of the whole prosecution evidence. The issue is not directed at the primary findings of fact, but to the conclusions which could reasonably be drawn from the primary facts to support a conviction. This is a question of law, or at least of mixed fact and law. See Edwards (Inspector of Taxes) v. Bairstow [1955] UKHL 3; [1956] A.C. 14, British Launderers' Research Association v. Central Middlesex Assessment Committee and Hendon Rating Authority [1949] 1 All E.R. 21 and Instrumatic Ltd v. Supabrase Ltd [1969] 1 W.L.R. 519. These cases are all referred to in Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (Unreported Supreme Court judgment SC185 dated 25 November 1980). At this point, a judge is not required to have any regard to inconsistencies, or credibility of witnesses supporting the prosecution case. All these and matters of credit are ignored.

(Underlining mine)

8. I adopted the principles in the case State v. Tom Tomugal (2016) N6329, and I summarised the Court’s role when faced with a no case to answer application. In relation to the second leg or limb, I held and I quote in part:

(iv) If there is evidence supporting each of the elements of the offence generally, the next consideration again as a matter of law is whether the evidence is insufficient or is tenuous. Matters such as credibility, inconsistency and weighing of evidence are irrelevant. The presiding judge must ask himself or herself this hypothetical question: Could a judge of fact, considering the prosecution's evidence at its highest and as accurate, convict the accused? If the answer is 'yes', the Court should allow the trial to continue. If the answer is 'no', the Court may exercise its discretion and stop the trial (second limb).

(v) The Court's power under the second limb is discretionary. This means that even after the Court finds insufficient evidence on the elements of the offence it may nevertheless order the trial to continue (second limb).

9. I adopt the above herein.

INCONSISTENCIES

10. The defence no case to answer application was made orally. The defence alleged various purported inconsistencies. They were highlighted in its oral submission, and I summarise them as follows:

(i) It says witness Steven identified only 4 defendants and he made no mention of the others;

(ii) It says witness Steven said that he saw 2 men carried the deceased out of the bush whom he did not recognise. It says witness Steven did not say that the deceased was assaulted at the second location;

(iii) It says witness Steven said that the deceased was carried on both his hands out of the bush whilst witness Birau said that the deceased’s hands and legs were tied to a pole before he was carried;

(iv) It says witness Colleen Kopis only identified 6 defendants and not all 11 or the other 5;

(v) It says witness Birau only identified 6 defendants and not the other 5;

(vi) It says witness Birau said that defendants July Iroto and Romanus Taenge had used bush-knives to cut the deceased on his back, which is not reflected in the medical report.

STATE EVIDENCE

11. The State called 3 witnesses. They are witnesses Steven Joshua, Kopis Colleen and Potol Birau. And it tendered a total of 37 exhibits.

12. The defendants are charged with 1 count each of wilful murder. Let me begin with the elements of the offence. According to section 299 of the Criminal Code, they are, (i), a person, (ii), killed another person, (iii), the killing was unlawful and (iv), there was an intention to cause the death of the deceased.

13. In relation to the element a person I have this next question. Did the State witnesses and the tendered exhibits, identify all the defendants? The answer to that is, “yes they do”, and I refer in particular to (i), the sworn testimony of witness Steven Joshua and his tendered statement to police which is marked as Exhibit P35, (ii), the sworn testimony of witness Kopis Colleen and her tendered statement to police which is marked as Exhibit P36, and (iii), the sworn testimony of witness Birau Potol and his tendered statement to police which is marked as Exhibit P37.

14. The allegation of wilful murder is primarily based at 2 locations. The first alleged location is at a copra dryer inside the Vunairoto village, and the second is next to the main road of the village. Witness Birau’s evidence relates to what he said had happened at the first location. He said the day was on Friday 17 April 2015. He said it was sunny and the incident occurred between 10am and 11am. He said he was with the deceased and a Tade Boana when the men came shouting their way. He said he and Tade Boana ran away and left the deceased behind. He said he went and hid in nearby bushes about 10 meters away and looked back to see what was happening to the deceased. He said he recognised and identified 6 of the defendants, namely, July Iroto, Bengamin Paipo, Ngunia Paipo, Timothy Sammy, Noel Burbur and Romanus Taenge. He said there were 3 other men as well but that they had masks on their faces. He said they attacked the deceased. He said defendant July Iroto used a bush-knife to cut the deceased on his back. He said the others attacked the deceased with sticks. He said defendant Romanus Taenge also used a bush-knife to cut the deceased on his back. He said one of the masked men pierced the deceased’s head and both ears with a screw driver. He said later, they tied the deceased’s hands and legs to a pole and carried him away. He identified the 6 defendants in Court.

15. The State’s other 2 witnesses gave evidence in relation to the alleged attack at the second location near the main road of the village. Witness Steven Joshua said these. He said on Friday 17 April 2015 between 11am and 12pm, he was walking back to his house at Vunairoto village. He said he saw 2 men carrying the deceased on each sides of his arms, out of the bush. He said the deceased was covered in blood. He said the deceased cried out to him for water. He said he fetched water from his house and gave it to the deceased. He said he saw defendants Noel Burbur, July Iroto, Billie Robin and Teko Gire standing beside the deceased. He said he heard defendant Teko Gire said loudly that they were going to gather dry coconut leaves and burn the deceased like a pig. He identified the 4 defendants in Court. The 3^rd State witness is Kopis Colleen. She said on 17 April 2015 between 11am and 12pm, she was at her house at Vunairoto village. She said she heard a commotion. She said she then ran outside and up to the main road. She said when she arrived, she saw defendants Bubu Value, Timothy Sammy, Ephraim Ranui Jnr, Gunan Sakapiok, July Iroto and Romanus Taenge. She said she stood 3 meters away from them. She said other men were also there but she could not recognise them. She said in the midst of the men, she saw the deceased who was there covered with blood all over his body. She said the men stood there whilst defendants Timothy Sammy, Ephraim Ranui Jnr and another man (named) assaulted the deceased. She said defendant Timothy Sammy assaulted the deceased by using his fist to beat the deceased on his face. She said defendant Ramanus Taenge assaulted the deceased by kicking him on the side of his abdomen with his boot. She said she then ran in and held the deceased in her arms and cried. She said defendant Romanus Taenge dragged a bush-knife on the bitumen whilst the other men there swore at her and the deceased. She said the deceased later began to rub various parts of his body with his hands in agony. She said a short while later, police arrived and took the deceased away.

16. Medical report concerning the death of the deceased is tendered and is marked Exhibit P34. I note its content. It reports of head injuries, lacerations or several cuts to the back shoulders of the deceased, and bruise on his left abdomen.

17. When I consider the State evidence, I note that it also contains evidence of the element death of the deceased. The killing also indicates that there may not have been a lawful justification. And it also indicates that the defendants, who have been identified, may have intended to cause the death of the deceased, before he was killed.

CONSIDERATION

18. I have to ask myself this. Can I convict the defendants based on the State evidence, that is, if the evidence are considered at their highest and as accurate? Do the defendants have a case to answer? I would answer “yes” to both questions. In my view, this Court’s assessment goes beyond mere inconsistencies. I am bound to look at the evidence as a whole and make a determination that is based on law or mixed fact and law, in relation to the no case to answer application. In this case, I have already set out above the material State evidence. It shows evidence that is not tenuous and in my view, calls for the defendants to answer to.

19. The State has invoked section 7(1)(a)(b) and (c) of the Criminal Code. It reads, and I quote in part:

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

20. Again, the evidence that have been adduced by the State, when considered at their highest and as accurate, also implies each of the defendants as possible principal offenders in that they may have had aided and abetted each other in possibly committing the offence at both crime scenes. Their presence at the crime scenes with the other defendants, their uttered words at the crime scenes, the weapons that they possessed at the crime scenes, and their actions or inactions at each of the crime scenes, are some of the considerations the Court would also consider to determine whether each one of the defendants would qualify as a principal offender. It means that those defendants who, where evidence has shown that they did not physically assault the deceased at the crime scenes, are captured by section 7(1)(a)(b) and (c) of the Criminal Code and as such, they also have a case to answer at this stage.

21. I will reserve my findings in relation to the alleged inconsistencies until all the evidence are in or until the trial on verdict is concluded.

ORDERS OF THE COURT

22. The defendants’ no case to answer application made on 8 July 2019 is refused. The trial on verdict shall proceed.
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Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Eleven Defendants