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State v Magun [2025] PGNC 152; N11285 (13 May 2025)

N11285

PAPUA NEW GUNIEA
[NATIONAL COURT OF JUSTICE]

CR NO. 478; 479; 480 & 481 OF 2023

BETWEEN:
THE STATE

AND:
MAL MAGUN; AKOI KAUTIL; SAUN MEKIM; AND JOHN AME
Accused

MADANG: NAROKOBI J
11 APRIL, 13 MAY 2025

CRIMINAL LAW– No case to answer application – whether the Accused have a case to answer.

Facts
The accused were all charged with one count of wilful murder contrary to s 299(1) of the Criminal Code Act 1974, in that they aided and abetted each other to wilfully murder, one Collins Augustine Sar, on 29 October 2022, at Biranis Village, Sumkar District, Madang Province, and that this was carried out by each of them aiding and abetting each other under s 7(1)(c) of the Criminal Code. The only evidence connecting them to the crime was a single witness who said one of the Accused confessed to him, in the presence of two of the other accused.

Held:

(1) In a homicide trial in which conviction turns on circumstantial evidence, the trial judge should make clear findings as to who killed the deceased and where, when, how and why the deceased was killed. Failure to do so will constitute an error of law. Whilst the Accused have not been called to give evidence, this proposition points to how the court should assess the adequacy of the State’s case at its closure (David v State (2006) SC881, followed, see also State v Asagar (2025) N11216).

(2) On both limbs of The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96 each of the Accused have no case to answer as there is no evidence of who killed the deceased, the motive of the killing and the role of each of the Accused in the killing.

(3) The charge of wilful murder against each of the Accused is therefore dismissed and they are to be released from custody forthwith.

Cases cited
Aieni v Tahain [1978] PNGLR 37
David v State (2006) SC881
The State v. Paul Kundi Rape [1976] PNGLR 96
State v Peter (2022) N9415
The State v Roka Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287
State v Tokarep (2025) N11238
Paulus Pawa v The State [1981] PNGLR 498

Counsel
Mr J Kasse for the State
Mr T Kerari for the accused

RULING

1. NAROKOBI J: The State has brought a case against Mal Magun, Akoi Kautil, Saun Mekin and John Ame (Accused) that they wilfully murdered Collins Augustine Sar on 29 October 2022, at Biranis Village, Sumkar District, Madang Province, contrary to s 299(1) of the Criminal Code, and that this was carried out by each of them aiding and abetting each other under s 7(1)(c) of the Criminal Code.
   
2. The State made the following allegations. On 29 September 2022, between 4pm and 8pm, the Accused were drinking homemade alcohol along the beach front at Biranis Village, located in the Sumkar District, of Madang Province. They decided to steal from Collins Augustine Sar, a local businessman, who comes from the nearby Megiar Village. At the material time, Collins was drinking beer with his friends.
   
3. Earlier, the Accused had asked him for K10.00 but he did not give them the money. They were angry and came up with the idea of robbing him. While Collins and his friends were drinking they were monitored by the Accused, and as soon as Collin’s friends left, they came to attack him. He was alone with his girlfriend Tracy Piauri. He was stabbed several times with a machete, and left the scene with Collin’s small bag.
   
4. Collins was then rushed to the Mugil Health Centre, but was pronounced dead.
   
5. The State relied on documentary evidence tendered by consent, and from the oral testimony of three witnesses - Detective Senior Constable Chanel Sagem, Tracey Piauri and Gerard Graham, but it was really Tracey Piauri and Gerard Graham accounts that were the evidence of the allegations against the Accused.
   
6. At the end of the State’s case, the Accused applied for their case to be dismissed on the basis that they did not have any case to answer from all the evidence brought by the State before the court.
   
7. The principles to be applied in such an application has been well stated by the Supreme Court in The State v Roka Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287 where the Court adopted and applied The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96 (Paul Kundi Rape). In The State v Roka Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), the Supreme Court went on to observe:
   

Where the question is whether there is a case to answer the principle to be applied is quite clear. In May v. O’Sullivan [1955] HCA 38; (1955) 92 C.L.R. 654, at 658, the Full Court of the High Court of Australia expressed it in these terms:

When, at the close of the case for the prosecution, a submission is made that there is no case to answer, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a case to answer has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. That is a question of fact.

8. From these authorities, my role is not to ask myself whether at the close of the State’s case, the Accused can be convicted on the evidence, but whether from the admissible evidence, the Accused can be lawfully convicted.
   
9. The question of whether the Accused can be lawfully convicted is resolved by answers to two further questions. These questions were stated well by Justice Pratt in The State v Roka Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) but have come to be popularly regarded as the two limbs of a no-case submission in Paul Kundi Rape:
   
   • (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 tenuous or incredible or discredited that it amounts to only a scintilla, and thus could not be accepted as persuasive by any reasonable person.
     
10. The elements of the offence of wilful murder under s 299 of the Criminal Code, are widely settled in our jurisdiction, for example see State v Tokarep (2025) N11238). These elements are:
    
    • A person was killed by the accused;
    • The killing was unlawful;
    • Accused had an intention to kill.
      
11. The Accused relies on both limbs of a no case to answer submission in Paul Kundi Rape, so I ask myself the relevant questions, and resolve them after considering all the evidence the State has tendered and led from its witnesses.
    
12. Tracy Piauri’s evidence is that she was drinking with the deceased and some other mutual friends. Their other drinking friends left, and she remained with the deceased. They then had sex. He was on top of her. She then heard him gasp, stating that he had been stabbed. It was about 7.00pm, and quite dark. She then got up and after some effort brought him to the hospital, where he was pronounced, dead. Because of the position she was in, with the deceased on top of her, and that it was dark, she did not see who stabbed the deceased.
    
13. Gerhard Graham, said three of the accused came into his area, Mel Magun, Akoi Kautil and Saun Mekin. Then Saun Mekin (also known as Sari Koni) told him that they had killed Collins Augustine Par. He noticed that there was blood on the knife. He then told them to leave his premises. He later reported the incident to the village authorities.
    
14. That is the evidence of the allegation that the State has brought against the Accused. From that evidence, I immediately acquitted the Accused John Ame because there was no evidence at all, against him. None of the witnesses mention his name, and why he was charged. His case falls under the first limb of the more commonly referred to description of Paul Kundi Rape.
    
15. As to the three other Accused, in my view on the first limb, again there is no case to answer. Evidence before the court shows that a person was killed, there was no justification for the killing and the intention can be inferred from the nature of the injuries suffered by the deceased. But the crucial question, of who killed the deceased is not fully answered by the confession of one of the Accused and the two other accused present with him when he is alleged to have made the confession.
    
16. Even if I am wrong on the application of the first limb, I also note on the second limb, that is on the quality of the evidence, the State’s case is essentially circumstantial. A case built on circumstantial evidence must lead to the conclusion that there is no other reasonable hypothesis inconsistent with the guilt of the Accused (Paulus Pawa v The State [1981] PNGLR 498). I have serious questions, about the adequacy of the State’s evidence. The State’s main evidence is based on a confession by one of the Accused. That evidence is not corroborated, like for instance in the case of State v Peter (2022) N9415, where the confession was made to three independent and credible witnesses. It would be unsafe for me to rely on the single evidence of an accused where there is no account of the role each of the accused played and the motive for the killing. Although the State allege that the motive was retaliation because the deceased refused their request for K10.00, no evidence was led to support this allegation.
    
17. In addition, this is a case of four accomplices, and so the State alleges, aiding and abetting under s 7(1)(c) of the Criminal Code. In Aieni v Tahain [1978] PNGLR 37 it was held that the two elements of aiding and abetting are that there was an intention to encourage the commission of an offence, and an encouragement in fact to commit the offence. David v State (2006) SC881 (see also State v Asagar (2025) N11216) held that in a homicide trial in which conviction turns on circumstantial evidence, the trial judge should make clear findings as to who killed the deceased and where, when, how and why the deceased was killed. Failure to do so will constitute an error of law. Whilst I note that the Accused have not been called to give evidence, it points me to how I should assess the adequacy of the State’s case.
    
18. There is next to no evidence of the role of each of the Accused and why the deceased was killed. It would not lead to much if I were to call the Accused to respond to the State’s evidence (accepting their right to remain silent), when the State’s evidence would be a single confession with insufficient details, tying each of the Accused to the crime. I am therefore drawn to the conclusion that there is no case to answer by each of the Accused, on both limbs of Paul Kundi Rape as there is no evidence of who killed the deceased, the motive of the killing and the role of each of the Accused in the killing.
    
19. Based on the foregoing, the charge against each of the Accused is dismissed and they are to be released from custody forthwith.

________________________________________________________________
Lawyer for the State: Acting Public Prosecutor
Lawyer for the accused: Public Solicitor