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State v Wair [2025] PGNC 272; N11358 (13 June 2025)

N11358

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR. NO 1319 OF 2024, CR. NO 383 OF 2025, CR. NO 384 OF 2025
CR. NO 385 OF 2025, CR. NO 386 OF 2025, CR. NO 387 OF 2025
& CR. NO 388 OF 2025

THE STATE

V

SIMEON WAIR, DAVID MONOU, GERAD MONOU
SAUGA WAGADI, LOSOI JORIR, MALON IREN & MANU JOHN

RAMU: GEITA J
11,12,13 JUNE 2025

CRIMINAL LAW – No case submission – After close of prosecution case – Court must stop and entertain no case submission - The two principles under The State v. Paul Kundi Rape relied upon – Court mindful of sitting without jury - No case to answer on charge presented.
CRIMINAL LAW – No case submission – Prosecution evidence insufficient -Essential elements not made out - Court discretion exercised – No case submission falling under exceptional circumstances- Prosecution case will not improve –Key state witness evidence found wanting – Save for two accuse, the rest not connected in any way to the willful murder – unsafe to convict- Others cannot lawfully be convicted under these circumstances - Acquitted.

Cases cited
The State v Aige Kola [1979] PNGLR
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Lasebose Kuriday (Unreported) N300 of 8 June 1981
The State v Roka Pep (No. 2) [1983] PNGLR 287
The State v Raphael Kuanande [1994] PNGLR 512

Counsel
Jethro Kase for the State
Cornelius Momoi for the accused

RULING- NO CASE TO ANSWER SUBMISSION

1. GEITA J: The accused all pleaded not guilty to one count of willful murder contrary to s. 229 (1) Criminal Code Act, Chapter 262 (hereafter referred to as the “Criminal Code”).

2. The State alleged that on 25 October 2023 at Kusubur, Ganoa junction and N7 location along Bruce Jephcoth Highway Primary School, willfully murdered Peter Tolpare, thereby contravening Section 299 (1) Criminal Code. The State also invoked Section 7 & 8 of the Criminal Code.

3. At the end of the prosecution case Mr. Momoi, for the accused, advised the court that he would be making a no case application, hence giving the State notice of his intentions. On 12 June Mr Momoi moved his application orally and asked the court to terminate the proceeding for want of credible evidence thus far. He relied on the case of Paul Kundi Rape [1976] PNG Law Report at page 96. Your Honour all the accused were charged for one count of Willful Murder under s.299(1) CCA.

4. As to the first limb of Paul Kundi Rape he said the State has not adduced evidence to support the essential elements of the offence of Willful Murder. The elements include:

1. The accused killed the deceased.
2. The killing was unlawful and
3. There was intention to cause the death of the deceased.
   

5. Defense also relied on the second limb of Paul Kundi Rape where there is some evidence before the court however the evidence is lacking in weight or credibility that the Court cannot rely on this evidence to lawfully convict the accused. The Court may stop the case.

6. Your Honour, firstly for the accused Malon Ireng and Manu John; it is our submission that the evidence as it does not implicate these two accused – Malon Ireng and Manu John. Their names were never mentioned and there is no evidence of their involvement in the committing of the offence.
Secondly, your Honour, there are some evidence before this court and the evidence is from the ROI of the accused persons where the accused persons names Semion, Losoi and another person named Yauri who is not in court as the main perpetrators. We concede that according to the ROIs, we consider these as under the law of circumstantial evidence.

7. Furthermore, it is our submission that David Monou, Gerad Monou were also not identified in their ROI – they were not named as the main perpetrators in the offence. Therefore, we submit that the court should find that there is no case to answer.

No Case to Answer Submission - The State

8. Counsel of State Mr Kase submitted that there is some evidence before the court and that the case should not be stopped at this stage and that all accused made to answer the allegations as they are caught under ss. 7 and 8 of the Criminal Code. The State aggressively maintained sufficiency of evidence and invited the Court to exercise its discretion and allow the case to continue to trial. Submitting that the accused aided each other and their actions violated ss.7 & 8 of the Criminal Code and must answer to the allegations.

The relevant laws

9. Section 299 Criminal Code Act creates the offence of willful murder, and it is in the following terms:

S. 299 (1) Wilful Murder

4. 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.
5. A person who commits wilful murder shall be liable to be sentenced to death.”

Elements of the Offence:

1. A person

2. Who unlawfully kills another person

3. Intending to cause his death.

10. It is not disputed that a lone off duty policeman was killed. It is however disputed that all the accused were involved, and they participated in the killing of the policeman with intention.

11. As to the burden of proof it is trite law that in criminal proceedings the onus of proof rests entirely on the State from the beginning to the end. And the prosecution must prove every element of the charge beyond reasonable doubt.

The law on no case to answer submissions
12. 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. I quote as follows:-

"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."

13. Intention is a crucial element. See case of Raphael Kuanande (supra) and advanced that intention was a crucial element and state must prove that all accused had the intention to wilfully murder the deceased, failing which the accused must be acquitted. I quote Injia AJ as he was then as follows: -

“Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused’s expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior, at the time and subsequent to the act constituting the offence.”

14. He submitted that the state witness should not be believed. Touching on Section 7 and 8 of the Code he said the primary facts were insufficient to sustain a finding that the accused aided and abetted in this crime. As it stands the accused cannot be lawfully convicted on the evidence collected so far.

Application of principles

15. At the outset I remind myself that in order for other persons to be convicted there must be findings and convictions on the main perpetrator without which the operation of Section 7 Criminal Code remains futile. I make reference to this as I have been invited by the Public Prosecutor to also consider the imposition of this provision of the Criminal Code.

16. It is observed that where an accused makes a no case submission, the court should 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 all can lawfully be convicted:

(Paul Kundi Rape)

17. The thrust of the seminal lead cases in no case submissions is whether on the evidence as it stands the defendants ought to be convicted, but whether on the evidence as it stands the accused could be lawfully convicted. (Emphasis mine There was some evidence that one of them was near the scene of the incident. There was no evidence that any one of them formed an intention to kill the deceased. There was no evidence that they acted in concert with the person who murdered the deceased.

18. Any initial findings by the Court must be based solely on the primary facts before the court. The State evidence as it stands is devoid of that crucial elements of intention and identification were not successfully made out. All descriptions of the assault said to be occasioned on the deceased by the accused were not direct and only given in very general and loose terms in that: “‘they assaulted the deceased”. None of the State’s witnesses connected the murder of the deceased to any one of the accused.

19. In view of the scantiness and unreliable evidence before me thus far and applying them to the evidence and law in this case it has become apparent that none of the State’s witness accounts of what happened on that fatal day appears convincing and credible.

20. Section 7 Criminal Code provides that it is possible for those who are not the main perpetrators to be also guilty however there must be some evidence of the wrong committed by that person (s) within the meaning of the provision. Only a single act or omission or a series of them is sufficient in Sections 7 or 8.

21. I return to the case of The State v Paul Kundi Rape and more particularly The State v Roka Pep [1983] PGNC 44; [1983] PNGLR 19; (14 February 1983). I take judicial notice of the key principles stated in those two cases discussed earlier and will not repeat discussing them here.

22. In the present case, especially after the close of the State’s case, I cannot confidently infer that all elements have been made out and, on the evidence, presented thus far for some of the accused could lawfully be convicted. 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 Defense.

23. Similarly, I caution myself that I was sitting alone as a single trial judge without a jury and addressed my mind to the cautions stated in the application of the second leg in the absence of jury tails in the country. In that the weighting of the evidence within the spirit of the second leg principle should be kept at the absolute minimum and that any weighing of the evidence by a court should be only after all the evidence is in.

24. However, in the exercise of my discretion I am of the view that there is good reason for this case to be weighed on the evidence presented before me by the State. I consider this case to be an exceptional one and must stop it from further progression into full trial. I am of the view that any further progression of this case will not improve the State’s position. Reliance is had on the case of The State v Lasebose Kuriday (unreported judgment of Kearney Deputy CJ N300 of 8 June 1981 as he was then said and I quote:

“...if, however, in very clearly hopeless case where the state is intrinsically very weak or has collapsed badly it would be the sort of case where the court itself would be considering acting on its own initiative to stop what amounts to a waste of its time and public money. (emphasis mine).

25. The then Chief Justice Sir Mari Kapi when he was Deputy Chief Justice said in case of The State v Aige Kola [1979] PNGLR) and I quote:

“...this procedure may be followed where at the end of the prosecution’s case, it is obvious to a judge that the prosecution case is such that no matter what evidence may be called by the accused, the prosecution case will not be improved beyond a reasonable doubt or to put it differently the prosecution case will not improve. In my opinion, this is where this procedure may be adopted and not otherwise.” (Emphasis mine).

26. I too agree, adopt and apply the two pronouncements in this case.

ORDER

27. Accordingly, I find that defense no case to answer submission is upheld in part. Malon Ireng, Manu John, David Monou and Gerard Monou are all entitled to an acquittal with dismissal orders. Any bail monies held against them will be returned to you upon finalization of all necessary paperwork. As for Simeon Wair and Losoi Jorir I find that both have a case to answer.

Orders accordingly.

_____________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the accused: Public Solicitor