State v Kuro [2016] PGNC 92; N6261 (4 May 2016)

N6261

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No: 825 of 2012

THE STATE

V

DAVID BAL KURO

Kundiawa: Liosi, AJ
2016: 03^rd, 04^th May

CRIMINAL LAW – Trial – 3 Counts Arson – 1 Count Grievous Bodily Harm – Criminal Code s436 and Section 319 – Application to Amend Indictment to include 1 Count of Grievous Bodily Harm – Section 557 and 553 of the Criminal Code – No Case Submission – Accused Acquitted.
Cases Cited:

Paul Kundi Rape (1976) PNGLR 96.
Legislation:

Criminal Code
Counsels:

K. Umpake, for the State
M. Yawip and B. Popeu, for the Accused

CHARGE

4^th May, 2016

1. LIOSI, AJ: The Accused was charged with 3 counts of Arson.

Count 1: DAVID BAL KURO of Munuma village, Gumine in the Simbu Province stands charged that he on the 01^st day of April, 2012, at Munuma village, Gumine in Papua New Guinea wilfully and unlawfully set fire to a building, namely, a dwelling house the property of one RAPHAEL KEE.

Count 2: And also that the said DAVID BAL KURO of Munuma village, Gumine in the Simbu Province stands charged that he on the 01^st day of April, 2012, at Munuma village, Gumine wilfully and unlawfully set fire to a building, namely, a dwelling house the property of one Raphael Kaile.

Count 3: And Further that the Said DAVID BAL KURO of Munuma village, Gumine in the Simbu Province stands charged that he on the 01^st day of April, 2012, at Munuma village, Gumine in Papua New Guinea wilfully and unlawfully set fire to a building, namely, a election campaign house the property of one Joe Korane.
Thereby contravening Section 436(a) of the Criminal Code Act chapter 262

Count 4: And Finally that the said DAVID BAL KURO of Munuma village, Gumine in the Simbu Province stands charged that he on the 01^st day of April, 2012, at Munuma village, Gumine in Papua New Guinea unlawfully did grievous bodily harm to one Lucas JoeMasta.
Thereby contravening Section 319 of the Criminal Code Act chapter 262

Amendment to the Indictment

2. Prior to presentation of the Indictment and arraignment of the Accused. The State sought to amend the Indictment to include a 4^th count of Grievous Bodily Harm. The state submitted that the new count arises out of the same set of facts. The Defence did not object to the charge although it says the evidence in respect of the count was never part of the committal proceedings. After hearing submissions the court allowed the Amendment. Section 535 deals with amendments of Indictments. It states amendments maybe permitted if the accused is not prejudiced in his defence. S.557 states further, a trial begins when an accused person is called upon to plead to the Indictment which has not happened. Because the charge arises out of the same set of facts as the Arson charges and the accused had not been arraigned, the application was granted.

Facts for Arraignment

3. The State alleges that one of the victims of arson Mr. Raphael Kee and his team were assisting the Electoral Commission to update the common roll for the Digine Local Level Government in the Gumine District. On the 01^st April, 2012 at Munuma village in Gumine the accused and his clansman approached Raphael Kee and his team armed with bush knives and axes and with threats demanded to see the common roll that was being updated. They were shown the common roll but they were not satisfied. An accomplice by the name of Apane Gram charged at one Lucas Joe Masta and chopped him on his forehead with a bush knife. Lucas Joe Masta sustained a fractured skull. The accused and his clansmen chased all the people there. They fled in all directions. Raphael Kee managed to get Lucas Joe Masta to Kundiawa hospital. The accused and his accomplice, Apane Gram then set fire to Raphael Kee’s dwelling house. After some time the accused and his clansmen regrouped and set fire to one Joe Korane’s election campaign house. They also burnt down a dwelling house belonging to one Raphael Kaile.

Section 7 and 8 of the Criminal Code were also alleged.

Plea

4. The accused pleaded not guilty to the 3 counts of Arson and 1 count of Grievous Bodily Harm.

Trial

5. The State initially indicated calling 8 witnesses so a two day trial was allocated. The State called the first witness namely Lucas Joe Masta.

Evidence of Lucas Joe Masta

6. His evidence was that at the relevant time he and 3 others were updating the common roll. They were engaged by the Electoral Commission to update the Common Roll for the Digine Local Level Government under ward nine (9) in Munuma, Gumine. The accused David Bal Kuro was a team member doing the updating. Some of the uncles of the former Lands Minister Lucas Dekena who was a former member for Gumine confronted them and asked for the Common Roll. He gave it to them. One of the men came and struck him with a bush knife on the forehead rendering him unconscious. He didn’t know what happened next until he regained consciousness at the hospital. He said their supervisor was Raphael Kee. The people who confronted them were Apane Joseph, Apane Gram, Kuria Kaupa and many of them whom he did not recognise. The accused was with them as he was part of the team updating the Common Roll.

7. The State was unable to call any further witnesses and closed its case.

No Case Submissions.

8. The Defence then made a no case Submission pursuant to the first limb of Paul Kundi Rape.

9. Mr. Yawip submits the witness Lucas Joe Masta was the key witness in relation to the 4^th Count of Grievous Bodily Harm. His evidence did not implicate the accused in respect of the Counts of Arson and 1 count of Grievous Bodily Harm. He submits they were in the same team upgrading the Common Roll in the Ward 9 Area of Digine Local Level Government, Gumine. In the Record of Interview the accused denies committing the offence although he says he was there with the Common Roll update team. He submits as a matter of Law the accused cannot be called upon to answer the charges.

10. Mr. Umpake in reply says the only evidence tendered which is the Record of Interview does not implicate the accused in any way. The only State witness called says the accused was there and observed the incident.

Ruling

11. The Accused David Bal Kuro was charged with 3 Counts of Arson pursuant to s.436(a) of Criminal Code and 1 Court of Grievous Bodily Harm pursuant to s 319 Criminal Code Act. By consent State tendered the accused Record of Interview dated 28^th April 2012. The State initially indicated calling 8 witnesses altogether to prove its case against the accused.

12. The State called the first witness Mr. Lucas Joe Masta. The witness gave sworn evidence in Pidgin and appeared to be the key witness on the 4^th Count of Grievous Bodily Harm. He says on 01^st day of April 2012, he was with 3 others updating the common roll for ward nine (9) which was under Digine Local Level Government, Munuma in Gumine. They were engaged by the Electoral Commission. He was with Mark Peter, Robert Kenny and Bal David. Their Supervisor was Raphael Kee.

13. Whilst they were updating the Common Roll some of the uncles for the former member for Gumine Lukas Dawa Dekena namely Apane Joseph, Apane Gram, Kuria Kaupa and others were also there. They charged at Lucas Joe Masta and asked for the updated Rolls which he gave them. Apane Gram then chopped him on the forehead with a bush knife. He fell down and fainted. When he regained consciousness he was in the hospital.

14. In Examination in chief he said the accused was a team member and was working with them updating the Common Roll. The accused was one of them observing when he was attacked. Having called this Witness, the State indicated it was not calling any further witnesses and closed its case.

15. Defence then made a no case submission on the first leg of Paul Kundi Rape.
    
16. The Law on a No Case Submission is well settled. As a matter of Law, where there is no case to answer, the accused may not be called to answer it. Where there is a case of insufficiency of evidence, an accused may as a matter of law be called upon to answer it, but the court still has discretion to stop the case if the evidence is so grossly tainted and weak that no reasonable tribunal would allow it to proceed.
    
17. In this case, I find there is no evidence at all implicating the accused either on the 3 counts of Arson or on the 1 count of Grievous Bodily Harm. I note the State also alleges s. 7 and 8 of the Criminal Code relating to the accused as being a Principal offender as well as a participant in a commission of an offence committed in prosecution of a common purpose. In this respect I also find no evidence.

18. Accordingly I find the accused not Guilty on the 3 count of Arson and 1 count of Grievous Bodily Harm.
    
19. The accused is acquitted of the charges and I Order that his bail money be refunded.

Orders accordingly,

________________________________________________________________
Public Prosecutor : Lawyers for the State
Public Solicitor : Lawyers for the Accused