N11462
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 2128 OF 2023

THE STATE

V

THOMAS TAPA

MINJ: CROWLEY J
14, 15, 16, 17 JULY 2025

CRIMINAL LAW – decision on No Case Submission - Terms of Indictment for offence of wilful murder - Section 299(1) of the Criminal Code. 

Cases cited
The State v Paul Kundi Rape [1976] PNGLR 96

Counsel
Ms. Kalg, for the State
Mr. Tame, for the accused

1. CROWLEY J: Thomas Tapa of Wangai Village, Ialibu, Southern Highland Province was charged that on 5 June 2022 at Kindeng Coffee Plantation, in Papua New Guinea he wilfully murdered one Rex Popono contrary to s299(1) of the Criminal code. 
2.     The Brief Facts the State produced were: 

It is alleged that on 5 June 2022 around 4pm, the accused Thomas Tapa and other security members employed by the Company WR Carpenters Limited chased some men whom they allege stole coffee cherries from Kindeng Coffee Plantation. They chased them out into a small market near the Planation. At the said market, the accused who was armed with a Company-issued firearm described as a black pump action shot gun, fired four (4) bullets into the crowd at the market.

At that time, the deceased Rex Popono was among the crowd at the market with a lot of other people. It is alleged that one of the pellets from the bullets fired from the accused’s shot gun, penetrated the deceased’s lungs from which he died instantly. Others who received pellet wounds to parts of their bodies were taken to hospital and treated. 

An Autopsy was conducted on the deceased which revealed that the deceased died from excessive blood loss due to gunshot wound to his left chest.

State alleges that when the accused fired the gun shot towards the crowd, he intended to cause the death of the deceased (or anyone else in the crowd); and his action contravened Section 299(1) of the Criminal Code. 

Procedural History

3.     The trial commenced before me at Minj on Monday 14 July 2025. The State proposed to call 7 witnesses James Jacky, Bill Kundala, Paulus Simon, Tomun Koip, James Kombil, Paulin Paul and Dr Glen James. On the first day of trial only James Jacky had attended court. The police officer Bill Kundala was available and Dr Glen James was not initially going to be required but later the Defence wanted him for cross examination 

4.     I had the names of Paulus Simon, Tomun Koip, James Kombil called three times then issued summons for them to attend court the next day. 

5.     The State called James Jacky to give his evidence which I will address below. Then the matter was adjourned to the following day. 

6.     On Tuesday 15 July I had the names of Paulus Simon, Tomun Koip, James Kombil called three times but there was no appearance. I issued warrants for their arrest.

7.     The State then called Senior Sergeant Bill Kundala whose evindece I will briefly address below. The matter was adjourned to the following day in the hope that the States witnesses would be arrested and brought to court. 

8.     On Wednesday 16 July. I withdrew the warrant of arrest for James Kombil because it seems he was not served with the summons. But there was still no appearance by him or Paulus Simon and Tomun Koip. I adjourned to the following day. 

9.     On Thursday 17 July part-heard, I later adjourned it to today the witnesses having not been arrest. 

10.     Today the State closed it case without calling further witnesses. Mr Tame brought an application for No Case to Answer.

The Law

11.     The essence of a no case submission is that the defence submit that the evidence in the States case is such that there is no evidence of one or all of the elements of the offence: The State v Paul Kundi Rape [1976] PNGLR 96. This means that the evidence is so lacking that the Court does not need to weigh any evidence. It is not sufficient for the accused to be called upon to answer it.

12.     If the Court is asked to weight the evidence in a no case to answer submission that usually indicates that the no case submission should fail. The prosecution case needs to be hopeless (in that no evidence for one of more elements has been provided OR in rare cases, the evidence provided is on its face insufficient to convince the court beyond a reasonable doubt. 

The Element 

13.     So what are the elements of the offence of wilful murder?

14.     Section 299 of the Criminal Code states that:

(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.

15.     The elements are:

•	“A person” there is evidence of the identify of the accused 
•	Unlawfully kills- there is evidence that the accused “caused the death” of the victim
•	And in causing the death the accused “intended to cause the death”

Is the element before the court for each element of the case?

16.      As to the first “identify”. Is there evidence that the accused was at the location where the victim died?

17.     Yes, the ROI was tendered through the arresting officer Bill Kundala and became Exhibit 7 in that ROI, the accused admitted that “...he was at the crime scene and fired four shots from the company issued firearm to disperse the block holders who were stealing coffee cherries in the planation”. That statement of the accused was also contained in the Statement of the corroborating officer Pauline Paulus which was tendered without objection and had been marked as exhibit 4. 
So there is evidence of the element of identify which I must consider. 

18.    Is there evidence of an unlawful killing in the sense of the accused “causing the death of” the victim?

19.     Again the answers given by the accused in the ROI that appear at both Exhibit 4 and 7 indicate that the accused admitted to firing 4 shots from his company issued firearm. There is evidence from Bill Kundala that when asked for the company to produce the gun used on the day the company provided him with a pump action shotgun. A colour photo of the gun was tendered as exhibit 6. The gun itself was produced and identified by the witnesses but was not tendered. 
There were three other exhibits that indicate the accused died from a shot gum blast to the chest. They were tendered by consent. 

20.   They were:

Exhibit 1 was the post-mortem report of Rex Popono dated 5 June 2022 and authored by Dr Glen James. It was a five page document that concluded that the direct cause of death was excessive blood loss and the antecedent cause of death was a gunshot wound to the left chest.
Exhibit 2 was a 1-page Affidavit from Dr Glen James deposing to Dr James having performed the post mortem and authored the Post Mortem report. It was dated 9 June 2022.
Exhibit 3 was the one page Medical Certificate of Death. It was dated 9 June 2022 and signed by Dr Glen James. It identified that the direct cause of death was Cardiorespiratory arrest due to Haemorrhagic shock resulting from a “gunshot wound left chest”.

21.     So, there is evidence before me that I must consider and weight up that suggest the actions of the accused in firing his shotgun caused the death of the victim. 

22.     Finally, is there evidence of an intention to kill the victim or someone else on the part accused. The evidence identified above that being the answers in the ROI of the accused and the evidence of the cause of death of the victim is evidence of intention that must be considered. In that without a confession, intention is established by inferring it from thew actions of a person. The only inference to be drawn from a person who fires a shotgun into a crowd is that they intended to kill.

As such there is evidence before me which must be considered in terms of the element of intention. 

23.     Whether any of this evidence is sufficient to convince me beyond reasonable doubt is a different question but the State case is sufficient to be properly considered. 

24.     As such I dismiss the application that the accused has no case to answer. 
________________________________________________________________
Lawyer for the State: Public Prosecutor 
Lawyers for the offender: Pacific Attorneys and Consultants