N8161

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 16 of 2019

THE STATE

V
KARUA POMERI YOHANG

Lorengau:  Geita J
2019: 11th & 14th October

CRIMINAL LAW – No case submission – Element of intention not successfully made out - Effect of—Accused have no case to answer - Accused Acquitted – s. 299 Criminal Code wilful murder – Alternative charge of murder not available to the State – The accused has not yet been tried and convicted.  

Cases Cited: 

Kemuel & Kopol Kepao v The State [2016] PGSC 90; SC 1640
The State v. Paul Kundi Rape [1976] PNGLR 96 
The State v. Roka Pep (No. 2) [1983] PNGLR 287

Counsel: 

Ms. Linda Maru, for the State 
Mr. Kusunan Pokiton, for the Accused 

RULING ON NO CASE SUBMISSION

14th October, 2019

1. GEITA J:  	The accused pleaded not guilty to one count of wilful murder contrary to s. 299 (1) of the Criminal Code Act, Chapter 262 (hereafter referred to as the “Criminal Code”). The count of murder also included in the alternative.  

2. 	The State alleges that on 18 December 2006 at Ndranou village, Manus Province, the accused wilfully murdered Peter Balas Tawe.  

3.	 At the close of prosecution case Mr. Pokiton made a no case application on behalf of the accused. He relied on both limbs as set out in the lead authority in The State v. Paul Kundi Rape [1976] PNGLR 96. It is therefore incumbent on the Court to make a finding of no case to answer where (a) there is no evidence to establish an element of the offence charged; or (b) there is some evidence covering the elements of the offence charged but it is so incredible or discredited that there is a mere scintilla of evidence and hence could not be accepted as persuasive by any reasonable person. If this Court makes neither of those findings, it should find there is a case to answer. The test is not whether on the evidence as it stands, the accused ought to be convicted, but whether on the evidence as it stands, they both can lawfully be convicted: (Paul Kundi Rape).
4.  	Both Counsel were heard on the no case and the matter reserved for ruling. This is the ruling I reserved.   

The Law on No Case Submissions
5.	 The law in relation to no case submissions is well settled in our jurisdiction as per the case of The State v. Paul Kundi Rape [1976] PNGLR 96. The Supreme Court case of Roka Pep v. The State (No. 2) [1983] PNGLR 287 followed the principles pronounced in this case:

"Where in criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the question is 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."
The Law
6.	Section 299. WILFUL MURDER
(1) Subject to the succeeding provisions of this code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.
(2) A person who commits wilful murder shall be liable to be sentenced to death.
7.	To my mind the crucial elements are; 1. …a person; 2. who unlawfully kills; 3. Intention to cause his death.
8.	As to the first limb Mr Pokiton submits that the critical element of intention in wilful murder cases has not been successfully made out by the prosecution at the close of its case. The eye witness account of June Lapun Enoch standing some 10 meters away and witnessing Ben Wangia swing a knife that the accused is said to have chopped the deceased’s neck ought not to be believed. The deceased and her were caught in the act of a sexual encounter when they were disturbed by the Sepik and the accused. She was naked at the time and ran away and hid some 10 meters away.  
9.	Mr. Pokiton submitted that her supposed eye witness account of events bore no relevance to the presence of intention in this crime. She was chased away from the crime scene and took flight half naked.  He argued that the trial ought to be stopped, the accused’s no case submission upheld and the accused acquitted. 
10.	Ms Linda Maru submitted that the element of intention was successfully made out. The Court need not look further but to have reliance on the post mortem report and the grotesque set of photographs before it. She said in light of the multiple injuries inflicted on the deceased the court ought to find that someone intended to cause harm. Furthermore, the accused boasting and prowess over this killing was testament to his intention to cause harm to the deceased, prosecution submitted. The prosecution assert that they have successfully made out the element of intention, so the accused no case to answer submission should be dismissed and the accused put to trial. 
11.	Without a credible and unblemished direct eye witness account of who did what to whom and the ferocious nature of the wilful murder, the prosecution evidence thus far wanting the presence of intention. It is unsafe to conclude from the post mortem report and photographs that the accused ought to be singled out as the principal perpetrator. Two other persons were seen on that day at the scene of the crime. One, referred to as the Sepik caught his wife, the eye witness, red handed in the act of sexual intercourse and chased her away.
12.	As regards the accused boastings and prowes at different times to different people over the killing of the victim, all accounts remain uncorroborated and unreliable. They all fall short of any suggestions on the presence of intention. I remind myself that this is not a question of fact to be determined at this stage. That question is decided at the end of all the evidence both for the State and Defence.
13.  	Accordingly, the evidence so far adduced by the prosecution do not support the essential elements of the offence of wilful murder. The finding of this Court is that the element of intention has not been successfully made out. It follows that the no case submission must prevail and the accused acquitted.
14.	As regards the second limb, the prosecution came empty handed. Mr Pokiton submitted that even if the Court finds that there is a mere scintilla of evidence it is so lacking in weight and reliability and this Court could not safely and legally convict on it.
15.	The efficacy of second limb is the Courts ‘exercise of discretion in determining, when at the close of prosecution case the court can rely on evidence thus far and allow the case to trial. In this case I am not satisfied on the quality and evidence and weight. It is not the duty of the accused to improve the prosecutions’ position. This Court is therefore of the view that the exercise of its discretion to stop the case is favoured towards the accused. 
16.	As to whether the prosecution is entitled to rely on the alternative count of murder, Mr Pokiton submitted that by operation of s. 539 (1) Criminal Code the accused has yet to be tried and convicted. The prosecution therefore is not entitled to this process. (Laurie Kemuel & Kopol Kepao v The State [2016] PGSC 90; SC 1640, (9 September 2016) Again, the prosecution came empty handed. For the moment that appears to be the correct position pursuant to the SC decision on this point which is adopted and applied here. 
17. 	Due to the foregoing reasons, the accused no case submission on both limbs is upheld. The accused is acquitted forthwith.

Orders accordingly. 
_______________________________________________________________
Public Prosecutor: Lawyer for the State 	
Public Solicitor: Lawyer for the Accused