State v Umbun [2017] PGNC 129; N6765 (25 April 2017)

N6765

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NOs. 663, 664, & 655 OF 2013

BETWEEN

THE STATE
AND
MAXILLUS UMBUN,
EXAVIOUR UMBUN

AND
MORRIS LAWRENCE

Kimbe : Miviri AJ
2017 : 24^th 25^th April

CRIMINAL LAW - Trial- Murder Section 300 (1) (a) CCA – Section 7 & 8 Principal offenders-Identification-self-defence-no case submission-ruling case to answer.

Cases cited:

The State v. Paul Kundi Rape [1976] PNGLR 96

Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 514; [1983] PNGLR 287 (14 September 1983)

Counsel:
A. Bray, for the State
B. Popeu, for the Defendants

DECISION ON SENTENCE

25^th April, 2017

1. MIVIRI AJ: Maxillus Umbun and Exaviour Umbun both of Toukim village and Morris Lawrence of Nale village, all from Wosera, East Sepik Province are jointly charged that they on the 28^th day of February 2012 at Mamota section 3 murdered Jonas Koroi.
   

Brief Facts on arraignment

2. On the 28^th February 2012 at 6.00 am the three of you Maxillus Umbun, Exaviour Umbun and Morris Lawrence were at Mamota block 986 where you entered and woke up Jonas Koroi demanding that he pay K30 to you for chicken that he had obtained from you on credit previously. You three were in the company of Casper and Elizer who are both not in court now. You Maxillus Umbun and Exaviour Umbun waited whilst Morris and Casper and Elizer woke up Jonas Koroi. A fight started and Exaviour Umbun joined the fight and cut Jonas Koroi on the head. Jonas Koroi armed himself with a bush knife and chased his attackers. He caught up with Exaviour Umbun and as he cut him, Morris Lawrence picked up a rock and threw it at Jonas Koroi hitting him on the left side of the head. He fell to the ground. He was rushed to the Kimbe General hospital but died. The defendant intended to cause grievous bodily harm at the time that he threw the stone. Morris intended to cause grievous bodily harm pursuant to Section 300 (1) (a) and also invokes Section 7 and 8 against each of the defendants.
   

No case submission defence

3. At the close of the State’s case the defence has made a no case submission relying on The State v. Paul Kundi Rape [1976] PNGLR 96 and also Roka Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287; [1983] PNGLR 287 (14 September 1983)
   
4. In particular the defence is contending and invoking the second leg of Roka Pep’s case (supra) that there is discretion in the judge to stop the case here against Maxillus Umbun and Exaviour Umbun. Plainly put, yes there is some evidence but it is so lacking in weight and credibility that it is so unsafe and unsatisfactory, that to call upon the defendants to answer will not improve the case any further, the court has discretion to stop the case there and then. Cross examination of the witnesses and evidence of the state has so weakened that even without the defendants going into evidence it will not improve the case for the prosecution any further against the defendants. It is not for the defence to prove the prosecution case for them. Accordingly the court is vested with discretion here to stop the case as it were.
   
5. It must be clear that there cannot be any weighing up as that is always at the end of the case and not before. It goes without saying that a man can only be tried once for his crime not twice and therefore weighing evidence is only once not twice, one in the no case and the other at the end of the case is contradicting the law and the Constitution. That is not our law and is unconstitutional. Here therefore I am called to see prima facie on the face as opposed to seeing weighing out credibility and the like in determining guilt or innocence. Making comparisons scrutinizing evidence drawing differences in witnesses evidence one from the other that is not my task at this juncture of the proceedings: See Pep’s case (supra):
   

“The former Deputy Chief Justice Kearney J in The State v. Lasebose Kuriday, (supra) stated that this submission can be entertained where there is no weighing up of the evidence involved. A judge in applying these guidelines or the principles is posing a question for the jury. In answering the query which he poses for the jury, he assumes the facts and considers what the jury may do. This is a hypothetical situation. This is significant because it avoids the possibility of a judge actually weighing the evidence. I have accepted these principles insofar as they were stated in the case of The State v. Paul Kundi Rape. It is clear from the cases I have discussed so far that the separation of the function of judge from jury has a significant influence in shaping the principles above. I am convinced that they are the proper principles to be applied in a jurisdiction where there is a jury trial. See also R. v. Prasad (1979) 23 S.A.S.R. 161.

The question that arises in our jurisdiction is where there is no jury trial, should these principles be applied strictly? I do not think that there is any difficulty with the application of the first leg of the submission. However, on the second leg, the courts should view the principles carefully as we do not have any jury. The former Deputy Chief Justice Kearney J in The State v. Lasebose Kuriday attempted to do this. In Papua New Guinea, even though we do not have a jury trial, questions of law are still different from questions of fact and the principles stated above are helpful so far as they highlight the issues and the principles to be applied. However, in a jury trial a judge can only go as far as posing a question to the jury and assume what the jury may do in viewing the evidence at the end of the prosecution case. In a jury trial the function of assessing and weighing the evidence is the function of twelve different minds.

In Papua New Guinea, where there is no jury trial, it is the same mind which also decides questions of fact. Whether the judge is applying his mind as a judge of law or as a judge of facts, his assessment of facts would be the same because it is the same mind. Therefore in Papua New Guinea, the hypothetical question which is posed for the jury is unreal and should not be maintained strictly. It could be logically concluded from this that the second leg of the test does not arise. Then it could be argued that a judge who is also the judge of facts could weigh the evidence in the sense which is prohibited by Barker’s case. However, there is a valid objection why the approach which I have just stated should not be adopted here. The objection is that it is of fundamental importance for a fair trial that a judge should only be required to weigh up the evidence once and that is only after all the evidence is in. See The State v. Lasebose Kuriday at 2, and The State v. Delga Puri and Tapri Maip. I would adopt the statement by the former Deputy Chief Justice in The State v. Lasebose Kuriday, who said:

“It follows, I think, that in our system any weighing of the evidence by the judge or magistrate, required by a no case submission at the close of the State case, should be kept at the absolute minimum”.

In my view, this is a good reason for adopting the view that a judge in a non-jury trial should not actually weigh the evidence in the sense which is prohibited by Barker’s case and should retain the second leg as set out in R. v. Galbraith (supra). It is a discretion which accords with good sense and the proper administration of justice. See Mohr J in R. v. Prasad (1979) 23 S.A.S.R. 161 at 177. It suspends the actual weighing of the evidence until all the evidence is in. At this point, a judge should keep an open mind about the prosecution evidence.

6. In the facts before me there was argument over K30 for chicken outstanding yet to be paid by the deceased Jonas Koroi. Which Casper, Elizer and Morris went to collect from him. Argument developed into a fight there. Exaviour Umbun armed with a grass knife with Maxillus Umbun ran up and the former cut Jonas who reverted back to his kitchen returning with a bush knife that he used to pursue and cut Exaviour with on the stomach and Morris Lawrence at that instant threw a stone which hit Jonas Koroi on his left side of the head. He fell to the ground and was taken to the hospital in Kimbe where he died from internal bleeding therefrom. The five were drinking as they were heard to be singing and when they came for the money owing the Umbun brothers remained on the wayside did not go all the way in, whilst the three went into the premise where the fight started spilling onto the road paved with rocks and culminated in the death when Jonas Koroi was hit with a stone to the left side of his head.
   

Case to answer

7. On the face of it or prima facie, I find that there is a case to answer against the defendants Exaviour Umbun and Maxillus Umbun and Morris Lawrence. That they aided and abetted each other in the murder of Jonas Koroi and have a case to answer.
   
8. It follows, I think, that in our system any weighing of the evidence by the judge or magistrate, required by a no case submission at the close of the State case, should be kept at the absolute minimum.
   
9. In my view, this is a good reason for adopting the view that a judge in a non-jury trial should not actually weigh the evidence in the sense which is prohibited by Barker’s case and should retain the second leg as set out in R. v. Galbraith (supra). It is a discretion which accords with good sense and the proper administration of justice. See Mohr J in R. v. Prasad (1979) 23 S.A.S.R. 161 at 177. It suspends the actual weighing of the evidence until all the evidence is in. At this point, a judge should keep an open mind about the prosecution evidence.
   
10. I wish to point out, however, that this procedure does not have to be adopted in every case. It will depend on the facts of each case. The failure to adopt this procedure in itself cannot invalidate subsequent proceedings. Even when such a submission is made, whether or not, it will be successful depends on the facts of each case.
    
11. The question that arises in this case is whether a conviction should be quashed where a defence counsel is not allowed to make a no case submission. Counsel for the appellants has submitted that a denial of such submissions would result in a miscarriage of justice. On the other hand, counsel for the respondent has submitted that while a refusal to hear counsel on such a submission may result in an irregularity, the question whether there is a miscarriage of justice is a matter, which has to be determined from the facts of each case. Avini v The State [1997] PNGLR 212.
    
12. Angitai v The State [1983] PNGLR 185 (6 June 1983) stands for the proposition that the court in a no case submission can be made in a number of different situations. Except where an accused is acquitted, I consider no reasons should be given. The different situations in summary form are as follows:
    
    • (1) Reject a no case submission - no reasons
      
    • (2) Accept a no case submission and - give reasons acquit the accused.
      
    • (3) Accept a no case submission in - no reasons relation to one charge but allow the trial to continue in relation to a second charge, or a lesser charge open on the indictment.
      
    • (4) On a joint trial, accept the submission in relation to one accused, but reject it in relation to others. - acquit that accused without giving any reasons. Later, at the end of the trial of the other accused give reasons for that acquittal”
      
13. Accordingly the court returns that each of the defendants Exaviour Umbun and Maxillus Umbun and Morris Lawrence have a case to answer in the murder of Jonas Koroi as they aided and abetted each other leading to the death of Jonas Koroi.
    
14. It is not my task at this juncture to dig deep to analyse , scrutinize, unearth differentiate and reason deep as to why I am returning that there is a case to answer. It is sufficient prima facie to hold as set out above that you three defendants Exaviour Umbun and Maxillus Umbun and Morris Lawrence have a case to answer for the murder of Jonas Koroi. He died as a result of being hit on the head with a blunt object which is a stone. He was immediately before his death involved in a fight allegedly with the three of you .You have a case to answer on the murder indictment presented. I stress that I do so here as there are prima facie evidence on the face of it against the three of you. I have in no way reasoned out, differentiate or scrutinized evidence by the prosecution to arrive at this ruling. I have decided according to law and not facts, that lawfully there is a case to answer against you as it is a question of law as opposed to facts here.
    
15. I reject the no case submission by you the defendants Exaviour Umbun, Maxillus Umbun and Morris Lawrence.
    
16. I rule and hold that you the defendants Exaviour Umbun, Maxillus Umbun and Morris Lawrence have a case to answer.
    

Orders accordingly.

_____________________________________________________________

Public Prosecutor : Lawyer for the State

Public Solicitor : Lawyer for the Defendant