State v Marme [2008] PGNC 178; N3531 (10 November 2008)

N3531

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1641 OF 2006

THE STATE

V

EMMANUAL MARME

Waigani: Paliau, AJ
2008: 4th, 5th & 10th November

CRIMINAL LAW – No Case to Answer Submission – Murder – Charge of – Not Guilty Plea – Criminal Code S. 300 (1) (a).

Cases cited:

Papua New Guinea Cases
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Roka Pep (No.2) [1983] PNGLR 287
The State v John Wanjil (1997) N1516

Overseas Cases
Zanetti v Hill (1962) 108 CLR 438

Counsels:
Mr. C. Sambua and Mr. D. Kuvi, for the State
Mr. J. Mesa and Ms. G. Peu, for the Accused

10 November, 2008

1. PALIAU, AJ: The accused pleaded not guilty to one count of murder. The crime was alleged to have taken place at 5 mile, Kanage Street, National Capital District, between 6 and 7pm on the 5th July, 2006.

2. It was alleged that the accused and the deceased were with the other street boys drinking. They started drinking about 12 noon and continued until 6 pm. After drinking they walked down to where they were going to watch the 3rd State of Origin which was to be telecast that evening. On the way an argument started between the accused and the deceased and they exchanged punches using small knives. The deceased received stab wounds to his body. They continued walking when the deceased collapsed. The deceased was pronounced dead on arrival at the hospital.

3. The State called only one witness namely Roger Peter Bomai and tendered by consent the following documents:

- Record of Interview, Pidgin Version Exhibit "A"

- Record of Interview, English Version Exhibit "B"

- Affidavit of Dr. Golpak annexing

Autopsy Report Exhibit "C"

4. After the close of the State’s evidence, the Defense made a No Case to Answer Submission. The Defense relied on the second limb principle in The State v Paul Kundi Rape [1976] PNGLR 96. The Defense submitted that the Court has the discretion to stop the case at this stage if the evidence presented by the State is lacking in weight and unreliable that no reasonable tribunal can safely convict. The evidence adduced so far by the State is so lacking in weight and unreliable that the accused should not be convicted but acquitted and discharged. The accused should not be called to answer the charge.

5. The issue I am to determine is whether at the end of the State’s case there is some evidence if accepted by me would go towards proving the element of the offence of murder directly or by its mere existence or presence I am able to draw conclusions from.

6. It is simply a question of law whether the accused could lawfully be convicted on the evidence presented thus far. It is not a question of fact to be determined at this stage whether every element of the offence is established beyond reasonable doubt. The question is decided at the end of all the evidence both for the state and the Defense. See The State v Paul Kundi Rape (supra), The State v Roka Pep (No.2) [1983] PNGLR 287, The State v John Wanjil (1997) N1516 and Zanetti v Hill (1962) 108 CLR 438.

7. In the present case, at the conclusion of the State’s evidence, is there established some element of the offence of murder?

8. The elements of murder under Section 300 (1) (a) of the Criminal Code are:

- A person,

- Who kills,

- Another person, and

- the person who kills intended to do grievous bodily harm to the person killed.

9. I am of the view that at the end of State’s evidence, I am unable to lawfully ascertain that the State has adduced evidence which either prove the element directly or would enable its existence to be inferred.

10. The evidence of the State’s only witness is so inconsistent in terms of the time of offence, the reason for the argument between the accused and the deceased and whether visibility was good that it has not directly proven the elements of the offence.

11. The witness admitted that he was drunk after taking part in the consumption of 4 bottles of red wine and drank 4 bottles of beer from 12pm to 6pm. This in my view had a drastic effect on the witness’ sense of time, direction, distance, visibility and identification, so much so that it rendered the State’s evidence unreliable and lacking in weight.

12. It must be noted also that the witness was 17 years of age at the time of the offence. At that tender age the consumption of that amount of alcohol would have definitely in my view impaired his sense of reasoning to say the least.

13. Therefore at the end of the State’s case, I find that there is no evidence that goes towards proving the element of the offence directly or otherwise. By law the accused cannot be convicted on the evidence presented at this stage. I will not allow the case to continue any further. The accused should not be allowed to call evidence.

14. The accused is acquitted and discharged forthwith.

Ordered accordingly.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused