State v Moibamo (No. 1) [2011] PGNC 348; N4342 (15 July 2011)

N4342

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 38 OF 2010

STATE

V

FAMUND BADI MOIBAMO (No. 1)

Accused

Goroka: Ipang AJ
2011: 14th & 15th July

CRIMINAL LAW – Practice and Procedure – No Case Submission – principles well established – Paul Kundi Rape's case & other subsequent National Court Judgments – State v Thomas Sange & Ors (2005) N2805 & State v Nathan Kovoho CR. No. 163 of 2005, N2810.

CRIMINAL LAW – identification – though a stranger State witness – close proximity at the scene of crime – held on accused talked to him and had no difficulty pointing directly and identifying accused as the person who stabbed deceased – issue of intention extensively addressed – No case submission over –ruled – Accused had a case to answer.

Cases Cited

State v- Paul Kundi Rape [1976] PNGLR 96
State v Aige Kola [1976] PNGLR 620
State v Roka Pep (No.2) [1993] PNGLR 287
Joshua Yaip Avini & P.N.Acosta [1997] PNGLR 212
State v Tanuaru Avaka (2000) N2024
State v Henry Osare Kales (2001) N2115
State v Robert Tamtu (2001) N2166
State v Atau Gore (No.1) N2004
State v Tolly Amindi (2004) N2683
State v Thomas Sange & Ors (2005) N2805
State v Nathan Kovoho CR No.163 of 2005 (N2810)

Counsel

Ms. V.Mauta, for the State

Mr. R.Kasito, for the Accused

RULING ON NO CASE SUBMISSION

15 July, 2011

1. IPANG AJ: This is the ruling on the no case Submission by Mr. R. Kasito of counsel for the accused and the reply by Ms. V.Mauta of counsel for the State. At the close of the case for the prosecution on a charge of willful murder, counsel for the accused submitted that the accused has no case to answer and as the case stood, the court should be satisfied that the evidence for the prosecution is insufficient and therefore should acquit the accused.
   
2. The law on the no case submission is well settled in this jurisdiction. The Court in the case of State v Paul Kundi Rape [1976] PNGLR 96 held that;
   

"Where there is a submission of no case to answer at the close of the case for the prosecution, the question to be asked is not whether on 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 a question of law; to be carefully distinguished from the question of fact to be asked at the close of all the evidence whether prosecution has proved its case beyond reasonable doubt."

3. In the same year 1976 in another case of State v Aige Kola [1976] PNGLR 620, the Court held that;
   

"Where there is submission of no case to answer at the close of the case for the prosecution, there are two questions to be determined;

1. Whether there is sufficient evidence on which the accused could lawfully be convicted; and
   
2. Whether there is sufficient evidence on which the accused ought to be convicted; i.e. whether the evidence is so insufficient that the accused ought not to be called upon to answer to."
   
4. In the more recent case, of CR No. 163 of 2005 (N2810), The State v Nathan Kovohos, Cannings J elaborated in detail the principles of no case submission as found in Rape's Case (supra). In Kovohos case Cannings, J re-iterated that there are two distinct and separate questions that arise. His Honour mentioned these as the first limb or first test followed by the second limb or second test.
   

First Limb or First Test

5. Q1: Is there some evidence of each element of the offence which, if accepted would either prove the element directly or enable its existence to be interfered?
   
6. If the answer to question 1 is "no" the conclusion will be that on the evidence as it stands the accused could not be lawfully convicted. This is an issue of law. The accused will have no case to answer. The accused will not be required to answer the charge. The accused will be entitled to an acquittal.
   
7. If the answer to question 1 is "yes" the trial should proceed unless question 2 is answered in the negative.
   

Second Limb or Second Test

8. Although there is case to answer – is there sufficient evidence on the bases of which the court ought to convict the accused? This question arises in situations where the evidence is so weak that no reasonable tribunal of fact could base conviction.
   
9. If the answer to question 2 is "no" i.e., there is sufficient evidence, the trial judge has a discretion to either not call upon the accused (i.e. enter an acquittal) or order trial to proceed.
   
10. If the answer to question 2 is "yes" the trial must proceed.
    
11. The above approach was taken in State v Roka Pep (No.2) [1983] PNGLR 287, Joshua Yaip Avini & Plaridel Nony Acosta v State [1997] PNGLR 212, State v Tanuaru Avaka (2000) N2024 Gavara Nanu, J, State v Henry Osare Kales (2001) N2115 Kirriwom J, State v Robert Tamtu (2001) N2166 Lenalia,J State v Atau Gore (No.1) N2004 Manuhu, J, State v Tolly Amindi (2004) N2683 Kandakasi, J, and State v Thomas Sange & Ors (2005) N2805 Cannings,J.
    

Charge

12. The accused has been indicted on one count of willful murder. The State alleged that the accused Famund Badi Moibano of Artigu Village, Unggai, Eastern Highlands Province on the 13th of September, 2009 at Goroka, willfully murdered one Dorcas Pepeto contrary to Section 299 (1) of the Criminal Code Act.
    

Brief Facts

13. The brief facts of the case are as follows: On the 13th of September, 2009 at around 4:00pm near YWCA Hall in Goroka, the accused was walking along the road with the deceased Dorcas Pepeto, his wife. They were arguing as they walked. The accused who had a long sharp knife in his possession pulled the knife and stabbed the deceased on her right (side) lower abdominal.
    
14. Deceased fell down on the ground and called out in pain. One Sailas Araupa who was walking along the road ran to her aid. Sailas asked the accused why he stabbed the deceased. The accused replied "deceased misbehaved having affairs with other man so I intend to kill her so I killed her". After saying this accused left the scene with knife in his right hand. Sailas was with the deceased on the road side. Sailas stopped a white double cab Ute belonging to the Protect (now G4S) Security and assisted the deceased to the Goroka Base General Hospital. However, the deceased was confirmed dead on arrival. Sailas remained with the body till one of the deceased relatives came and Sailas left and reported the matter to the police. Accused was apprehended, arrested and charged.
    

STATE'S CASE

15. At the beginning of its case, the State through counsel Mauta tendered the following documentary evidence by consent from defence counsel. The following are the documentary evidence tendered as evidence;
    

(1) The record of interview "both Pidgin" and English Version. The Record of Interview conducted on the accused by Sgt. Peter Kafare and corroborated by Rex Dala on the 29th September, 2009. The Pidgin version is marked as Exhibit "A" and The English version is marked as Exhibit "B"

(2) The document tendered with consent is the statement of the investigator in English. Investigator Peter Kafare, just one (1) page and it is marked as Exhibit "C"

(3) The Corroborator Rex Dala's statement in English a one page marked as Exhibit "D"

16. Apart from the tendered documentary evidences, the State called one (1) witness. The only state witness is Sailas Araupa. This witness gave the following sworn evidence. He said on the 13th September, 2009 in the afternoon, he was in Goroka at the YWCA. He was walking down to the market where he saw a couple, a man and a lady both walking and arguing. They were walking on the right side of the road and going towards North Goroka. The witness said he was walking on the left –side of the road. The witness estimated the distance from where he was sitting to the entrance door to the court room. Both counsels agreed that it's around 5 metres.
    
17. The witness said as he walked he saw the accused hold the deceased on her left shoulder with his left hand. He pulled the knife with his right hand and stabbed her and pulled out the knife again. The witness said the lady shouted and blood spilled out. He said he went to the aid of the lady. He said the lady slept on his lap. Blood poured out. He said he held the accused and asked why he stabbed her with the knife. The accused replied "She had affairs with other man, so I intend to kill her so I killed her, she is my wife."
    
18. The witness said he does not know the lady but wanted to save her life. He said he saw the accused clearly. In the examination – In –chief the witness was asked to look around the court room and to identify the man, who stabbed the lady on the 13th September, 2009. The witness replied the man is in court and pointed to the accused person. The witness said he knew the accused only at the time when he (the accused) did the trouble.
    
19. State's counsel put to the witness during re-examination that he told the court that the accused replied – "she had affairs with other men so he wanted to kill her so he killed her". The witness said that's true. He said after the accused made that statement he got his knife and walked towards town. The witness said he tried to find a vehicle and save the woman. The Protect Security vehicle came from North Goroka; he (the witness) stopped the vehicle put the deceased on the vehicle and took her to the hospital. At the hospital, the doctors tried to save her but she died.
    
20. During the cross-examination the following answers were given by the State witness. The witness said I know the couple were arguing as they were talking in Unggai language. He said he is from Eastern Highlands Province and he could quite easily recognize languages. He said he understood Unggai language.
    
21. He said the accused held the lady with his left hand. He (Accused) held her on her right shoulder and stabbed her on the right side of her stomach. The witness said he saw the accused once during the scene of offence. He said police never took him to identify the accused at the police station. He said he has no eye problem and he wasn't drunk and he could easily identify the accused.
    
22. He also told the court that the deceased did not attack the accused. Deceased wasn't walking with another man. It was a sunny day and the accused did not slip off. Deceased did not fall on top of the accused. Deceased took out a pocket knife but did not threaten the accused. Accused wasn't scared. Accused did not defend himself. There was no scuffle. Deceased did not cut accused's fingers.
    
23. These were basically the evidence before the court at the close of State's case.
    

No case submission by defence Counsel.

24. Defence Counsel raised the two principles on No case submission as stated in the case of State v Paul Kundi Rape (Supra) and further elaborated in the case of State v Thomas Sange & Ors (2005) N2805 (Supra). I have re-stated these principles at the beginning of this judgment.
    
25. Counsel for the accused submitted that under Section 299 of the Criminal Code Act, the following elements of the offence of willful murder need to be established. Counsel submitted that State has not established the following elements;
    
    1. "a person" (who unlawfully kills )
       
    2. "intention"
       
26. On the issue of first element, the defence counsel submitted that State's evidence cannot identify the accused as the perpetrator. Counsel said State witness Sailas Araupa is a total stranger to the accused. Counsel submitted that State witness Sailas Araupa did not identify the accused at the Police Station. This submission can now be ruled off as in John Beng v State [1977] PNGLR 115 at p.124 it was held that, "there is no rule of law that there must be a police parade for the purpose of identification".
    
27. Defence counsel also submitted that the State witness Sailas Araupa being a stranger, his identification of the accused is not reliable. He said had the witness had previous knowledge of the accused his evidence would be more reliable. Counsel quoted John Beng v State (Supra) at p.127 where the court mentioned in obita dicta that, "Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made".
    
28. Still on John Beng's case, State Counsel raised issue that John Beng's case also raised issue of quality of identification. On page 123 of John Beng's case it was stated that, "All these matters go to the quality of identification evidence. When the quality is good, the jury can safely left to assess the value of the evidence even though there is no other evidence to support. In the present case, the State witness said as he walked .... he saw the accused hold the deceased on her left shoulder with his left hand. The accused pulled the knife with his right hand and stabbed the deceased and pulled out the knife. He said he went to the aid of the deceased. He said he held the accused and asked why he stabbed her with the knife.
    
29. The close proximity or contact by the State witness and the accused makes it clear for the state witness to clearly identify the accused. There was clear visibility and no obstacle denying the clear access to see the accused. The weather was fine. It wasn't a fleeting glance. The State witness held the accused and asked the accused why he stabbed the deceased with the knife. I take note of the caution in John Beng's case at p.123 where the court said "When the quality of the identifying evidence is poor-i.e. a fleeting glance or a longer observation made in difficult conditions –the judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes towards the correctness of the identification". Such a caution can be excused in the case as the evidence is one of clear visibility and of quality identification of the accused.
    
30. The next ground raised by the defence Counsel in his no case submission is one of the element of "intention." The counsel argued that though there was stab, there was no evidence to support the issue of "intention" Counsel referred to the Record of Interview (ROI) especially question 36 .
    

"Q. Have you got anything to say?

1. At the time I did not mean to murder her but I met her with another man and as a result we started the argument that resulted in the incident."
   

31. A further skim through the Records of Interview (ROI) revealed the following;
    

Q16. There is evidence here that at the time, you had an argument with her (deceased) on the way. As the result you did stab her with a knife and she fell down on the ground. What would you say?

A. At the time I met her with another man and tried to attack him with the knife but escaped so I did stab her.

Q20.What was your intention to do that to her (Dorcas) at the time 13/09/09

A. She is my wife and a mother but failed to listen and change her bad behavior.

Q27.Where did you stab her (Dorcas) at the time?

A. On the stomach (right side)

Q28.What did you do after you have stabbed her with the knife?

A.I left her there and I ran away to my village.

Q29.Why did you do that?

A.I saw her fell onto the ground so I left.

32. Apart from the Record of Interview (ROI) the State's witness own version of evidence is that, when he saw the accused stabbed the deceased he went to the aid of the deceased. He told the Court, the lady (deceased) slept on his lap and blood poured out. He said he asked the accused, why he stabbed her with the knife. He said the accused replied, "She had affairs with other men so I intend to kill her so I killed her. She is my wife."
    
33. Sir Buri Kidu CJ (former CJ and now deceased) stated in State –v- Roka Pep (No.2) (Supra) that, "It appears to me that a submission on this basis should be entertained only when the Judge has no weighing up to do. That it must be very clear case, where the State evidence is so dubious, or so tainted, or so obviously lacking in weight or reliability, or has been so discredited in cross – examination that it is clear that no reasonable tribunal could safely convict on it".
    
34. Given the above, I am in agreement with the State Counsel in that State's case is clear, there is nothing sort of dubious or defence had not discredited the State's case.
    
35. Applying the tests in State v Paul Kundi Rape's case, the Aige Kolas case and followed by Cannings, J in State v Nathan Kovoho CR No.163 of 2005 (2810), I find there is sufficient evidence and find there is a "prima facie" case established. In doing so, I over rule the no- case submission by the defence counsel.
    

____________________________________

Public Prosecutor: Lawyer for the State

Paraka Lawyers: Lawyer for the Accused