State v Lamei [2015] PGNC 29; N5912 (13 March 2015)

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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 – Accused not connected in any way to the murder – unsafe to convict- Accused cannot lawfully be convicted under these circumstances –

CRIMINAL LAW – No case submission - Section 7 and 8 Code not applicable in view of the absence of a main perpetrator not identified - Effect off – Accused no case submission succeeds-Discharged- Accused Acquitted.

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

1. GEITA J: The accused all pleaded not guilty to one count of murder contrary to s. 300 (1) (a) Criminal Code Act, Chapter 262 (hereafter referred to as the “Criminal Code”)

2. The State alleges that on 14 July 2013 at Lorengau Police Station in Manus Province the four accused persons caused the death of Raymond Sipahun Junior. It is alleged that they all took part in the murder of the deceased. The State also invoked Section 7 of the Code.

3. At the end of the prosecution case Mr. Sakumai for the accused advised court that he would be making a no case application, hence giving State notice of his intentions. On 11 March Mr Sakumai moved his application orally and asked court to terminate proceeding for want of insufficiency of evidence thus far. I also received a verbal reply from the Public Prosecutor Ms. Helen Roalakona. The State aggressively maintained sufficiency of evidence and invited Court to exercise its discretion and allow the case to continue.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:-

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; ...

4. The elements of the offence of murder are- 1. That a person, 2.Kills another person and 3. Intention to do grievous bodily harm.

5. There is no dispute that the deceased died as a result of Police assault at the Lorengau Police Station.

7. 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.

8. The prosecution’s evidence consisted of the following exhibits which were tended into court by consent and four oral testimonies given during trial.

9. Column 1 of the table gives the exhibit number, column 2 describes each witness and column 3 summarises their evidence.

Exhibit	Witness	Description of evidence
A(a)(b)	1st co-accused	Record of interview: English and pidgin. Team Leader- denied involvement in the murder – remained silent.
B	1st co-accused	Hand written statement given to Tukon Pake- denied involvement in the murder – seeing Selwin Orosota kick victim on head with police issue boot- told s to stop the beating.
C(a)(b)	2rd co-accused	Record of interview: English and Pidgin-denied involvement in the murder – remained silent.
D	2ns co-accused	Hand written statement given to Tukon Pake- denied involvement in the murder – seeing Selwin Orosota kick victim on head with police issue boot- surprised to see Selwin assault victim as he was not his suspect- told Selwin to stop the beating.
E	3rd co-accused	Record of interview: English and Pidgin-denied involvement in the murder – remained silent.
F	3rd co-accused	Hand written statement given to Tukon Pake- denied involvement in the murder – seeing Selwin Orosota kick victim on head with police issue boot- surprised to see Selwin assault victim as he was not his suspect- told Selwin to stop the beating.
G	4th co-accused	Record of interview: English and Pidgin-denied involvement in the murder – remained silent.
H	4th co-accused	Hand written statement given to Tukon Pake- denied involvement in the murder – seeing Selwin Orosota kick victim on head with police issue boot- surprised to see Selwin assault victim as he was not his suspect- told Selwin to stop the beating.
I & J	Selwin. Orosota	Record of Interview and State removed and not considered. Separate trial.
K (1-28)		28 sets of coloured photos showing crime scene
L	Dr. Vava	Autopsy Report by Dr. Samson Vava
M	A. Faregere	Statement from Faregere –CID Kokopo
N	W. Lane	Statement from Lane – CID Manus
O	T. Pake	Statement from Pake – CID Manus

10. 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."

11. It follows 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)

Defence Submission.

12. Mr Sakumai relied on both limbs of the no case principles in The State v Paul Kundi Rape case. [1976] PNGLR 96. The following case was also cited in support. The State v Raphael Kuanande [1994] PNGLR 512 at 514, Injia AJ as he was then.

The thrust of the mentioned cases 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). His principal argument was that the evidence did not in any way connect any of the four co-accused to the murder. 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.

13. All four accused were interviewed and their statements obtained. All opted to remain silent but shifted blame to another police officer. They were all charged for murder not on the strength of their Record of Interview but on the strength of witness statements and the Medical Report.

14. Mr Sakumai submitted that any initial findings must be based solely on the primary facts before the court. The State evidence as it stands according to Mr Sakumai is that the 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 four 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 Raymond Sipahun to any one of the accused. He further submitted that the accused intention was the apprehension and detention of the deceased at the police cells and none other. The victim was apprehended and presented at the police station on two occasions to be locked up until he sobered up and be released again. However that did not happen, he escaped as the cell keys were not readily available to the duty officer that day. Defence Counsel said the duty officer at the counter was equally responsible for the victim's death as he never intervened to stop the assaults on three occasions.

15. Defence counsel said the post mortem examinations and findings were consistent with the booting and assaults occasioned on the victim by another policemen Selwin Orosota. He said the primary key state witness failed to tell court what each of the accused did to the victim that fatal day.

16. Mr Sakumai relied on the case of Raphael Kuanande (supra) and advanced that intention was a crucial element and state must prove that all four accused had the intention to do grievous bodily harm to 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."

17. He submitted that the state witness should not to 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. Mr Sakumai submitted that the State evidence was insufficient and called for the court to stop the trial, saying they cannot be lawfully convicted on the evidence collected so far.

18. Ms. Roalakona on the other hand submitted for the State that, consistent with the principles in The State v Paul Kundi Rape's case: All that the prosecution needs to establish at this stage is to show that there is ample evidence supporting the elements. She said they were all co-accused and they all had a common intention in the apprehension of the victim on two occasions, giving rise to an opportunity to assault him the way they did resulting in his death.

19. Ms Roalakona submitted that the element of intentions of the accused were manifested in the medical report which detailed the nature of injuries suffered by the victim together with bruises and abrasions found on his body. The bruises on his back horizontally attributed to the whipping by one of the accused as told to court by a state witness. She submitted that there was sufficient direct and circumstantial evidence before the court showing instances of assault, intention and called for the progression of the case to full trial. She said the accused persons aided and abetted each other which resulted in the death of the victim and referred me to the application of section 7 of the Criminal Code. Put differently Ms Roalakona submitted that the court should not stop the case but call upon the four (4) accused persons to answer to the indictment

20. 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.

21. 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. I draw inference as follows: - State key witness Frank Guka described the assaults in very broad terms and failed to connect each of the accused persons and the roles they played in the actual assault. He was there throughout the assault and claimed he saw everything but fell short of connecting each of the accused to the assault. Most damming in my view was that he never raised the alarm or attempted to stop the victim's attackers. He was however forthright in identifying a Selwin Orasota whom he said took over from the accused and assaulted the victim by punching him and hitting his head twice and kicking him with his boot causing the victim to fall down.

22. It follows in my view that there is insufficient direct evidence that the four accused did any of the things set out in Section 300 (1) (a) of the Criminal Code and or Sections 7 of the Criminal Code that would make them criminally liable. That is all.

23. The utility of witness Abraham Jacob Popa's testimony was to show that he saw the four accused apprehend the victim with one of them whipping him with a branch from a nearby three prior to the police cell assault. Witness Nelson Tokel likewise only saw the victim's apprehension at the market place by the four accused and roughed him up a bit. That was all.

24. Witness Pake Tukon's testimony is of very little utility in the murder charge. He was not any eye witness and his testimony in parts stand hopelessly loose, hardly capable of corroborating any of the State testimonies save to tell court that he was directed to take charge of the investigation and later handed over the file to officers who had come from Kokopo. That is all.

25. The Doctor's report only confirms carrying out a post mortem on the deceased with clinical findings of bruises and abrasions and blood clot on the victims head. He attributed the cause of death to the application of a blunt trauma to the right hand side of the head and upper part of the deceased's head. He agreed that the injuries suffered by the victim were consistent with those of trauma from a boot. The crucial inference drawn from the doctor's report is that the evidence of kicking with a heavy boot was consistent with the trauma he observed. None of accused was connected to the "boot kicking incident" save a Selwin Orosota. Clearly the relevance of this statement is minimal and insufficient to connect the accused to the murder of the deceased save confirm his death. They cannot be lawfully convicted on this type of evidence.

26. 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. I find here that there is no evidence that the four accused persons did any of those things. To this end I make finding that since there is no evidence that all of the elements of the offence of murder are present the accused persons cannot as a matter of law be convicted. I fail to detect any credible evidence, express or inferential that connects the four accused to the death of the victim.

27. Having canvassed all the evidence, exhibits and other statements put before me thus far at the end of prosecution case 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.

28. 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 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 Defence.

29. 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.

30. 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).

31. 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).

32. Accordingly I find that your no case to answer submission is upheld. You are all entitled to an acquittal and your indictment dismissed. Your bail monies will be returned to you upon finalization of all necessary paper work.
Orders accordingly.

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

National Court of Papua New Guinea

State v Lamei [2015] PGNC 29; N5912 (13 March 2015)