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State v Kovoli [2025] PGNC 236; N11390 (22 July 2025)

N11390

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 282 OF 2024

THE STATE

V

RODNEY KOVOLI

Waigani: Miviri J
2025 : 21^st July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Trial – No Case To Answer – No Evidence Accused Identified – No Evidence Accused Assaulted Deceased – No Evidence As to How Accused Assaulted Deceased – Accused Chased Deceased Accompanied by others –– Material Inconsistencies in State Evidence At Close of – Accused Not Obliged to Give Evidence – Right To Silence – No Adverse findings Against – Accused Not Identified and Role – Death of Deceased From Stabbing to Chest – Intent to Cause Grievous Bodily Harm – No Duty Upon Accused to Prove his Innocence – No Case to Answer Upheld – Acquitted and Discharged Released from Custody Forthwith.

Facts
Accused was in the group that chased the deceased who was found dead with a stab wound to his chest.

Held
No identification of Accused
Death Established.
Cause of death not established.
No Evidence Prima Facie against Accused role.
Burden not on Accused to prove his innocence.
No Case to Answer upheld.
Acquitted and discharged.
Released from Custody forthwith.

Cases:
Pawa v The State [1981] PGSC 16; [1981] PNGLR 498 (27 November 1981).
Bonu and Bonu v The State [1997] PGSC 11; SC528 (24 July 1997).
Wani v The State [1979] PGSC 30; [1979] PNGLR 593 (30 November 1979)
Rape, The State v [1976] PNGLR 96 (17 March 1976).
Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PGSC 16; [1983] PNGLR 287 (14 September 1983).
Morris, The State v [1980] PGNC 87; [1981] PNGLR 493 (28 May 1980).
Barca v. The Queen [1975] HCA 42; (1975) 133 CLR 82 at p. 104; [1975] HCA 42; 50 ALJR 108 at p. 117

Counsel:
A. Kaipu & T. Konts, for the State
K. Watakapura, for the Defendant

RULING ON NO CASE

22^nd July 2025.

1. MIVIRI J: This is the ruling upon the application made by the accused after closure of the State Case that he has no case to answer of the allegation of murder that the State has levelled against him.
   
2. He is alleged to have been at the house of his aunty one Clency Dope’s on the 28^th April 2023 with friends named as Walter, Dinatu, Samuel, Koko and Dien drinking alcohol. In the early hours, 4.00am and 5.00am of the morning of the 29^th April 2023 with the others named they were standing on the road. They confronted one Allan and allegedly hit him with an iron rod. The deceased Kopere Lenny tried to intervene and stop the fight. Allan managed to escape. But the accused and accomplices Walter, Dinatu, Samuel, Koko and Dien held the deceased and assaulted him. He was punched and beaten up with an iron rod. Dinatu who was armed with a knife stabbed him multiple times on the body. And seeing that he was severely injured all escaped. Leaving him to be rushed to the Port Moresby General Hospital Emergency ward at about 5.00am but was pronounced dead upon arrival. Cause of death was a stab wound to the chest.
   
3. He had intended to cause grievous bodily harm upon the deceased together with his accomplices when they assaulted and stabbed him. Hence committing the crime of Murder pursuant to section 300 (1) (a) of the Criminal Code Act, which was in the following terms: -
   
   • (1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: –
     

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;

(b) if death was caused by means of an act–

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life;

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1) (b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1) (c), (d) or (e) applies, it is immaterial that the offender–

(a) did not intend to cause death; or

(b) did not know that death was likely to result.

4. It has also been sought that the accused had assisted and helped in the assault of the deceased and therefore was caught out by the provisions of section 7 of the Criminal Code of that murder pursuant to section 300 (1) (a) of the Criminal Code. He entered a not guilty plea maintaining that he was not identified as one of the assailants of the deceased responsible for his death.
   
5. The State tendered the following exhibits as evidence in the matter against the accused. Exhibit P1 Statement of Detective First Constable Jessica Tautau dated 28^th September 2023. Exhibit P2 Statement of Detective First Constable Celcila Dangi dated the 28^th September 2023. Exhibit P3 affidavit of Doctor Anthony Amof sworn of the 19^th September 2023. Exhibit P4 (1) to (19) photographs of the deceased body, stab wounds and crime scene. Exhibit P5 Autopsy Report of Doctor Anthony Amof of the deceased dated 24^th May 2023. Exhibit P6 (a) Pidgin record of interview of the Accused dated the 22^nd September 2023, and Exhibit P6 (b) English translation of the record of interview of the Accused.
   
6. This evidence in total established that Kopere Lenny was assaulted stabbed in the chest area on the 29^th April 2023 and died as a result. He obviously died unnaturally and as a result of serious assaults committed upon him. Those who had assaulted him obviously intended that he should suffer grievous bodily harm which secured his death.
   
7. In its endeavour to secure the indictment the State further called three witnesses named on the indictment. They were firstly the evidence of Susan Felix who saw the chase in which the Accused was involved. She saw him as he past the gate of the house of the deceased, where she stood with him and his wife. And he tried to stop them as they assaulted Allan who had run away with, they pursuing him also. The deceased was pursued into the dark nearby from where she stood. She did not see who did what was done to the deceased causing his death but only saw the accused participate in the chase. She does not see the accused and accomplices return from that dark area and then all go and discover the body of the deceased. This is not the evidence that has been led from this witness or the other two called.
   
8. And this lack is not improved by the last two witnesses Allen Mupanga and Moses Gigik who do not see the assault of the deceased. The effect is to make assumptions on the role of the accused. That he must have part took in the assault of the deceased and was there aiding that assault, and intent to cause grievous bodily harm. He is therefore prima facie answerable for the indictment now laid to answer. These assumptions must come with evidence supporting that there is no other reasonable hypothesis other than that conclusion. It is the only rational hypothesis and there is no other open on the evidence, Pawa v The State [1981] PGSC 16; [1981] PNGLR 498 (27 November 1981). The deceased lost his life in the presence of the accused assisting aiding his relatives who were with him on that night, Bonu and Bonu v The State [1997] PGSC 11; SC528 (24 July 1997). Yes, the medical report and autopsy establish very grievous injuries and obviously intended that he should sustain. But I cannot assume that the Accused because chased the deceased was one of those responsible for the injuries sustained. It would have gone that way had there being evidence from the persons who discovered the body. And where were the Accused and the others who had chased him at the time the body was discovered.
   
9. What I am urged to do is to hold the Accused has a case on the basis that the deceased is dead from serious assaults. He had a stab wound penetrating his chest wall leading to his death. I do not have evidence that the accused was holding a knife when he chased the deceased. I do not have any words uttered by the Accused Wani v The State [1979] PGSC 30; [1979] PNGLR 593 (30 November 1979) that lead that he assisted the relatives he was with to cause the demise of the deceased. I cannot assume without that evidence and call upon the accused to answer. It is a question of law and not of fact at this stage. In law considering all set out by the State, there leaves nothing prima facie to warrant the urge by the State as against the defence.
   
10. I am glossing prima facie based on Rape, The State v [1976] PNGLR 96 (17 March 1976) reinforced in Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PGSC 16; [1983] PNGLR 287 (14 September 1983), that the Accused could not be lawfully convicted because on the face of it, he was not identified as the person who assaulted the deceased, or that he not only chased but was responsible by his presence when the deceased was assaulted, but that he also part took in that assault upon the deceased. Even if he did it has not been pointed out by evidence prima facie. And these injuries emanated originated from the assaults that were inflicted by the accused on the deceased. It is a question of law, “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, Pep (supra). Which I am not allowed to ask at this stage.
    
11. Here the evidence I set out above show that accused chased the deceased accompanied by the others at large his relatives. But prima facie there is no evidence as to who inflicted the injuries that the deceased suffered. Which injuries were grievous and led to his death. It will not improve even if the Accused is called to testify, because he admits being with his relatives named. But denies that he was one of the person responsible for the assault upon the deceased sustaining the injuries that lead to his demise. And no evidence in this regard is on file to call him to answer. By dictate of section 37 (4) (10) the accused is not obliged to prove his innocence, the burden of proof is always on the State. They discharge it beyond all reasonable doubt. So effectively the accused has the right to silence, and it does not amount to anything in favour of the state if he chooses as he does to remain silent Morris, The State v [1980] PGNC 87; [1981] PNGLR 493 (28 May 1980). Which approved and endorsed Barca v. The Queen [1975] HCA 42; (1975) 133 C.L.R. 82 at p. 104; [1975] HCA 42; 50 A.L.J.R. 108 at p. 117. The burden upon the law entailing has not moved so that the accused be called to answer. What is lacking set out above will not improve calling the Accused to answer.
    
12. It must be a very clear case and here that is the status of the evidence. In the exercise of my discretion, I will stop the case here. If there are no other charges pending warranting further incarceration in custody, I order that the accused be released forthwith. Effectively I uphold the no case submission and discharge the accused forthwith on the indictment laid.
    

Ordered Accordingly
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant