State v Kata [2011] PGNC 94; N4347 (14 July 2011)

N4347

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR. NO: 397 OF 2009

THE STATE

V

PIUS KATA

Kokopo: Maliku AJ
2011: 14th July

CRIMINAL LAW - Wilful Murder Section 299 of Criminal Code Act – Plea of Not Guilty

CRIMINAL LAW – Charge of wilful murder – Where a person is charged with wilful murder, essential element of intent to kill ought to be established in order to go pass the "No case to answer" submission.

CRIMINAL LAW – Charge of wilful murder – Evidence on trial – Submission of no case to answer – principles – No case to answer submission upheld – Case dismissed – Accused discharged.

Cases cited:

Paul Kundi Rape [1976] PNGLR 96
The State –v- Roka Pep [1983] PNGLR 287

Counsel:

Mr N. Miviri, for the State
Mr A. Kalandi, for the defendant

14 July, 2011

1. MALIKU AJ. The accused was indicted for unlawful killing of one Raphael Nataram Urapilak at Vunamuli village, Tamanairik, Toma, East New Britain Province in Papua New Guinea on the 24th day of March 2008, contrary to section 299 of the Criminal Code Act. The accused pleaded not guilty to the charge.
   
2. The State, prior to calling its witnesses tendered the following documentary evidence with consent which were accepted and marked as:
   
   1. Record of interview of defendant Pius Kata in Pidgin dated 01st April 2008 together with English version marked: Ex "A"
      
   2. Confessional Statement by defendant Pious Kata in Pidgin language together English version dated 25th March 2008 marked: Ex "B"
      
   3. Medical Report of deceased by Doctor Petro Varpit marked: Ex "C"
      
   4. Statement of Arresting Officer-Detective Senior Constable Poren Yagiri marked: Ex "D"
      
   5. Sketch Plan marked: Ex "E"
      
   6. Eight (8) photographs marked: Ex "F"
      
   7. Statement of Corroborating Officer- Constable Joe ToBirau marked: Ex "G"
      
   8. Statement of Chief Sergeant Oscar ToBing (officer that obtained the Confessional statement from the accused) marked: Ex"H"
      
   9. Statement of Senior Sergeant Alphonse Vagone( officer that corroborated the confessional statement made by accused) marked: Ex "I"
      
3. Mr Miviri indicated that the State will call Petro Varpit and Patricia Mar as its witnesses. I then proceeded to hear evidence from Petro Varpit and Patricia Mar. I have set out the evidence of Petro Varpit and Patricia Mar in a summary form below:
   

Evidence in Chief of Petro Varpit – Summary

4. The witness is the brother of the deceased and that he was there at about 3pm with his brother when the accused cut the deceased with a bush knife. He saw the accused first cut the deceased on his leg, then on his right hand while he was standing and falling to the ground and the third time on the right side of the ear while the deceased was lying on the ground.
   
5. He said, prior to the accused cutting the deceased, he was shouting "kill them, kill them" but did not know why the accused said kill them. He later said that it was not the accused that shouted kill them kill them, but the co accused who had been tried already. He said he was standing about 5-6 meters away from where the accused was cut by the accused and that there was no obstacles from seeing the deceased being cut by the accused.
   
6. In cross examination, the witness said there were no people at the scene of the fight. He said, there was only the deceased, his sister, (Patricia Mar) and himself when the deceased was cut. He further said his sister was on the other side of the road. He said he, and the deceased were both drunk that time.
   
7. He said the accused and his son earlier assaulted his father and later came to his area and cut the deceased without them doing any wrong. He said the accused was the first to go to his area followed by Christopher Mission.
   
8. Not long, he said others came to his area while he was standing with his brother (deceased). When asked as to his statement given to the police he said that what he told the police in his written statement is the truth and not what he was saying in court.
   

Evidence in chief of Patricia Mar -2nd State witness – Summary

9. This witness says she was there on the 24th of March 2008 at 3pm when the fight erupted causing the death of the deceased. She is the sister of the deceased and that she saw the accused fought with the deceased and cut the deceased with a bush knife on the deceased's head. After cutting the deceased on the forehead, she heard the accused said "kilim em" meaning "kill him" two times. She further said the deceased was cut while sleeping on the ground. She said she was 2-3 meters in distance from where the accused cut the deceased.
   
10. She further said when her father reported that he was assaulted by the accused, the boys all three brothers, including the deceased were there. They then shouted two times to ToVedo Pepeke's house which made the accused and the others come and cut the deceased.
    
11. She said the accused and the others came to their area with stones and sticks while the accused was holding the knife.
    
12. In cross examination the witness said all the three brothers were not there when their father came crying to the house. Only the deceased was sleeping there. She said she was some 5-6 meters in distance from where the deceased was sleeping.
    
13. The accused and the others entered their area at the same time and ToVedo Pepeke was the first to cut the deceased with a bush knife. The deceased received three bush knife cuts and one of them was by the accused, which was on the forehead. She said the deceased was cut while he was sleeping.
    

Submission on No case to answer – Defence

14. The Court should find that the accused has no case to answer because there are inconsistencies in the evidence already adduced from the documentary evidence tendered on behalf of the State and oral evidence on Oath of two witnesses called by the State. These inconsistencies are as follows:
    
    1. Inconsistencies on Evidence on Oath:
       
       1. Petro Varpit says he was there while Patricia Mar says he was not there.
          
       2. Petro Varpit says the accused was the only one who had a bush knife and who cut the deceased, while Patricia Mar says the Tovedo Pepeke cut the deceased first and the accused cut the deceased on the forehead furthermore Petro Varpit says the deceased was cut on the right side of the ear and not on the forehead while Patricia Mar says on the forehead.
          
       3. Petro Varpit says accused came first to their area, while Patricia says all the people including the accused came to their area at the same time.
          
       4. Petro Varpit says Patricia Mar was on the other side, while Patricia Mar says she was about 2-3 meters in distance from where the deceased was cut.
          
       5. Patricia Mar says the deceased was cut while he was sleeping on the ground, while Petro Varpit says the deceased was cut while he was standing.
          
       6. Petro Varpit says the accused said "kill him, kill them, before the deceased was cut, while Patricia Mar says the accused said "kill him," "kill him" after the deceased was cut.
          
       7. Petro Varpit in cross examination says the evidence he was giving on oath was not true and that his written statement was the truth.
          
    2. Inconsistencies on Written Evidence:
       
       1. Petro Varpit in his written statement says that his father was assaulted by two other people, Urari Kata and Tagul Kinku, but in the evidence on oath he says the accused and his son assaulted his father.
          
       2. Petro Varpit says when his father was crying he shouted to the other, but in oath says he shouted but they did not hear.
          
       3. Petro Varpit says in his written statement he saw ToVedo Pepeke cut the deceased on his leg and Chris Mission cut the deceased's hand and the accused threw the knife at the deceased and does not mention where the accused cut the deceased, but in evidence on oath he says he saw only the accused cut the deceased.
          
       4. Petro Varpit in his written statement says he heard Toveda Pepeke calling and shouting to kill Peter Varpit but in evidence on oath he heard the accused saying kill him twice after cutting the deceased which caused the death of the deceased.
          
       5. Patricia Mar in her written statement says she was there with her mother and younger brother and the deceased, but in her evidence on oath she says she was there only with the deceased.
          
       6. Patricia Mar in her written statement says three different people cut the deceased and the other hit the deceased while lying on the ground with sticks and stones, but in her evidence on oath she says only ToVedo Pepeke and the accused cut the deceased while he was sleeping.
          
15. Mr Kalandi referred the Court to the established principle of law stated in the case of Paul Kundi Rape [1976] PNGLR 96
    

Response by Counsel for State

16. The accused is charged that on the 24th of March 2008 at Bitakapuk, Toma area did wilfully murder one Raphael Nataram Urapilak, contravening Section 299 of the Criminal Code Act. Mr Miviri submits that at this juncture, the issue is only of a prima facie case in order for the accused to be called upon. The following has been established:
    

Raphael Nataram Urapilak died of server bleeding because he suffered a cut to his legs, right arm and also on the head. On the face there is a prima facie case based on the evidence of two witnesses which show only one person that attacked their brother now a deceased. On the evidence even without calling on the accused to answer, we humbly submit the accused could be lawfully convicted.

Ruling on No case to answer Submission

17. It is established law that when a submission of "no case to answer" is made at the end of the prosecution case, there are two distinguishable questions to be asked. The first question relates to the issue of law. The second question is about the facts and is usually asked at the end of all the evidence both for the prosecution and the defence. Such question deals with the assessment of all the evidence for all the parties in a criminal trial. This stems from the principle of "whether the evidence as it stands the accused could be lawfully convicted."
    

18. State –v- Paul Kundi Rape [1976] PNGLR 96 is referred. This question involves the issue of "proof beyond reasonable doubt" This is not the issue before this Court now.

19. The other question is whether at this stage of the trial as the evidence stands the "accused could be lawfully convicted." If the trail was allowed to continue past this stage, it has been stated that this is a question of law: The State –v- Paul Kundi Rape (above); The State –v- Roka Pep (No 2)[1983]PNGLR 287; The State –v- Delga Puri and Tapri Maip [1982] PNGLR 493.
    
20. The issue before this Court is whether there is with respect to all of the elements of the charge some evidence which, if accepted, would either prove the elements directly or enable its existence to be inferred.
    
21. Where the Court decides that there is no case to answer, the accused is then acquitted and discharged. However, where the Court decides the accused has a case to answer, the Court nevertheless has discretion to stop the case from proceeding further. This is 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" The State –v- Roka Pep (No2) [1983] PNGLR 287 (above).
    
22. In a charge of wilful murder the State must prove that it was the deliberate act of the accused that caused the death of the deceased, and that the act which caused the death was done with the intention to kill. This is however, to be considered by the Court at the end of trial when the evidence is considered in totality so as to establish whether the accused person is guilty or not guilty of the charge he has been indicted of. At this stage I am only to consider the evidence and to decided whether to allow the trial to go past the end of the prosecution case.
    
23. The State called two eye witnesses, namely Petro Varpit and Patricia Mar. I listened to both of them give their evidence on Oath in Chief. They were cross examined and re examined. I also read and considered the Record of Interview both pidgin and English versions of the accused. My careful reading and consideration of the Record of Interview is that I find no admission or confession by the accused to the commission of the crime.
    
24. The State however tendered Ex "B"- Confessional Statement of the accused in pidgin and English version. The accused confessed to have been present at the scene of the crime with the others he named in his confessional statement but made no admission or confession to the commission of the crime.
    
25. I also read and considered the written statements or affidavits of witness Petro Varpit and Patricia Mar made, signed and given to the police. Although these written statements were not tendered as documentary evidence, witnesses Petro Varpit and Patricia Mar were asked questions regarding these statements during cross examination by defence counsel.
    
26. In carefully analysing the evidence as it stands, I uphold the no case submission of the defence and find the accused has no case to answer. The evidence as it stands is weak. I agree that there are inconsistencies on the sworn evidence and written statement/affidavits of Petro Varpit and Patricia Mar.
    
27. One such inconsistency which the defence has shown and which I agree exists on the sworn evidence of both witnesses is that Petro Varpit says he was there at the scene of the crime while Patricia Mar says Petro Varpit was not there. This is a fatal on the State's case because it shows that one of them was not present at the scene of the crime to see what actually happened and may have been told of what happened at the scene of the crime. It hinges on whether the evidence of the State witnesses is credible, trustworthy and reliable.
    
28. The other inconsistency on the sworn evidence of the two witnesses is that Petro Varpit says the accused came to their area alone and ahead of the others and was the only one that had a bush knife, while Patricia Mar says the accused came together with the others and she saw ToVedo had a bush knife too. She says she saw ToVedo cut the deceased.
    
29. There is also inconsistency on sworn evidence of Petro Varpit and his evidence in his written statement/affidavit. For example on his written statement/affidavit Petro Varpit says he saw ToVedo Pepeke cut the decease on his leg and Chris Mission cut the deceased on his hand, while in his evidence on Oath he says the accused threw the knife at the deceased but does not say where on the body of the accused the knife fell on while on his evidence on Oath he says he saw only the accused cut the deceased. These inconsistencies cannot be overlooked because they affect the credibility, trustworthiness and reliability of the evidence to be used in deciding the fate of the accused now in court.
    
30. Because of these inconsistencies the evidence as it stands is lacking in weight and reliability that no reasonable tribunal could safely convict on it. Furthermore it does not sufficiently support the elements of the offence directly or to be inferred and as a result, the evidence is tenuous, incredible or discredited that it amounts only to being insufficient and thus could not be expected as persuasive by any reasonable person: The State-v- Roka Pep (supra). The accused is discharged forthwith.
    

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