State v Tomur [2017] PGNC 138; N6798 (5 July 2017)

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CRIMINAL LAW – no case submission - no express provisions in law or rules but a practice - also provided in the case law - available after the prosecution closes under section 572 of the Criminal Code Act Chapter No. 262 - the principle significantly reinforces sections 37(4)(a) and 37(10) of the Constitution in this jurisdiction

The State v. Lasebose Kuriday (1981) N300
The State v. Tom Tomugal, Norris Padiru and Bobby Nick (2016) N6329
State v. Roka Pep [1983] PNGLR 287
State v. Paul Kundi Rape [1976] PNGLR 96

1. ANIS AJ: The three (3) accused charged with wilful murder made a 'no case to answer' application on 19 June 2017. This was immediately after the prosecution had closed its case during the trial of the matter. After hearing submissions from both sides, I reserved my decision and informed the parties that I will advise them through my associate when the decision is ready.

3. The application was oral. I recall asking the defence counsel to state its source. Counsel was unable to refer to the exact source. I allowed counsel to complete her submission. During the presentation, counsel made references to case law. I make particular mention to two (2) of the cases, that is, (i) The State v. Lasebose Kuriday (1981) N300 and (ii) State v. Roka Pep [1983] PNGLR 287. The two (2) cases, in my view, after having the opportunity of reading them before writing this judgment, were relevant to my query on the source of a 'no case to answer' application.

4. Let me begin by saying this. There are no express provisions in the Criminal Code Act Chapter No. 262 (Criminal Code) that provides for a 'no case to answer' application or submission. It is instead an acceptable practice, which is allowed in this jurisdiction. Justice Kaputin in the Supreme Court case of State v. Roka Pep (supra) said and I quote, “In Papua New Guinea there is no statutory law on this subject. However, it has been recognized as a principle under case-law”. The right or the opportunity to make a ' no case to answer' application becomes available at the close of the prosecution's case or evidence: See section 572 of the Criminal Code, which I have set out below in my judgment. I also note that the significance of its practice in this jurisdiction would be to reinforce the law on (i) the presumption of innocence until proven guilty under section 37(4)(a) of the Constitution, and (ii) the right to remain silent under section 37(10) of the Constitution. [See case: The State v. Lasebose Kuriday (supra)].

(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and

(10) No person shall be compelled in the trial of an offence to be a witness against himself.

(1) At the close of the evidence for the prosecution, the proper officer of the court shall ask the accused person or his counsel whether the accused intends to adduce evidence in his defence or whether he desires to make a statement to the court before he or his counsel addresses the court.

(2) Whether or not the accused intends to adduce evidence in his defence he is entitled to make a statement to the court.

(3) When the accused makes a statement to the court he shall make the statement at the close of the evidence for the prosecution and before adducing any evidence in his defence.

8. The three (3) accused were alleged to have wilfully murdered Ereman Pulson (the deceased) on the night of 18 April 2015. The incident occurred at Makurapau ward, Bitapaka LLG, Kokopo District, East New Britain Province. The alleged assault took place on the main village road. It is alleged that the deceased was assaulted by the three (3) accused because the deceased had refused to give them beer that he was carrying in his basket. It is alleged that the three (3) accused used their hands as well as a tree stump or branch to hit the deceased on his neck. It is alleged that the deceased fell to the ground at one point. It is alleged that the three (3) accused pulled him up where the deceased was supported by them along the road. It is alleged that the three (3) accused were heard saying that they would throw the deceased into a hole if they found one.

9. It is alleged that the deceased was then taken to a nearby house that belonged to one Erik. There, according to the prosecution, the deceased was laid on a bed. It is alleged that the next day the deceased's wife and others took the deceased to St. Mary's Vunapope Hospital where he was admitted. It is alleged that on Monday 20 April 2015, the deceased was taken to the Nonga General Hospital where he was admitted. It is alleged that the deceased died two (2) weeks later due the severe injury he had sustained to his neck from the assault by the three (3) accused.

10. The defence submits that its 'no case to answer' application is based on the second limb. Let me begin by stating the Court's role regarding the two (2) limbs. I refer to my earlier decision in the case The State v. Tom Tomugal, Norris Padiru and Bobby Nick (2016) N6329. I held and I quote:

(ii) Review the prosecution's evidence taking into account what had transpired during examination in chief, cross-examination and re-examination together with the evidence tendered without objection or evidence tendered by consent, and then consider as a matter of law whether there is evidence that supports each element of the offence (first limb).

(iii) If one or more of the elements of the offence does not have evidence supporting it, the Court must uphold the no case to answer submission and acquit the accused (first limb).

(iv) If there is evidence supporting each of the elements of the offence generally, the next consideration again as a matter of law is whether the evidence is insufficient or is tenuous. Matters such as credibility, inconsistency and weighing of evidence are irrelevant. The presiding judge must ask himself or herself this hypothetical question: Could a judge of fact, considering the prosecution's evidence at its highest and as accurate, convict the accused? If the answer is 'yes', the Court should allow the trial to continue. If the answer is 'no', the Court may exercise its discretion and stop the trial (second limb).

(v) The Court's power under the second limb is discretionary. This means that even after the Court finds insufficient evidence on the elements of the offence it may nevertheless order the trial to continue (second limb).

11. I adopt the above therein to the present case. The defence, as stated in its submission that it will only argue the second limb, assumes, I suppose, that there is evidence disclosed by the prosecution that supports the elements of the wilful murder. I will address the matter on that basis, that is, I will only consider the submissions of the parties based on the second limb and make my finding. This means that it may not be necessary for me to make a finding as to whether the prosecution has furnished sufficient evidence on each of the elements of the offence of wilful murder. But before I move on, let me state the elements of wilful murder that are found under section 299 of the Criminal Code:

12. The defence submits the prosecution has not established sufficient evidence that would warrant a proof beyond reasonable doubt, in law, and as such the case should be stopped and the three (3) accused should be discharged forthwith. The key submission by the defence is that the witnesses gave different facts or variation of the facts against the material facts relied upon by the prosecution to lay the charges.

13. The State objects to the application. It submits that it has disclosed sufficient evidence and if considered at its fullest based on law, a conviction would follow. Therefore, it submits that the trial should continue and the defence should be given the opportunity to call its evidence to disprove the facts.

15. A total of nine (9) exhibits have been tendered by consent. I set them out herein.

Exhibit No.	Description	Date
“A”	Record of Interview with Titila Tomur, by Sergeant Mary Tobing, English/Pidgin version	28/05/15
“B”	Record of Interview with Leny Uraliu, by Sergeant Mary Tobing, English/Pidgin version	28/05/15
“C”	Record of Interview with Junious Turkeke, by Sergeant Mary Tobing, English/Pidgin version	29/05/15
“D”	Statement of Sergeant Mary Tobing for ROI with Titila Tomur Statement of Sergeant Mary Tobing for ROI with Leny Uraliu Statement of Sergeant Mary Tobing for ROI with Junious Turkeke	01/06/15 01/06/15 01/06/15
“E”	Statement of Policewoman, Dorcas Manakat for ROI with Titila Tomur	01/06/15
“F”	Statement of Policewoman, Dorcas Manakat for ROI with Leny Uraliu	01/06/15
“G”	Statement of Policeman Roger Tarataon for ROI with Junious Turkeke	01/06/15
“H”	Statement of Stanley Palume, pidgin version	29/05/15
“I”	Post Mortem Examination Report	14/05/15

16. I do not intend to spend too much time looking in depth or detail on each of the prosecution's evidence. It is not the time for this. What I can do now is determine whether there is evidence of facts that supports the material facts, which if accepted at their highest weight or value, would, based on law, be sufficient for me to convict the three (3) accused for the offence of wilful murder. I refer to witness Toving Longit. Mr Toving said he recalled the incident that Saturday night on 18 April 2015. He said he was at his house. He said he did not consume any alcohol at that time. He said he heard noise outside his house from drunkards fighting. He said he walked out of his house to inquire. He said the area where he went and stood to observe was lit up by light that was coming from a nearby shop. He said he stood six (6) meters away from the incident in the dark and observed. He identified the three (3) accused in Court as the persons he said he saw that night fighting the deceased. He said the accused Turkeke punched the deceased on his neck and the deceased fell down to the ground. He said the accused Leny and Tomur were standing there and did nothing. He said nobody else was there with them. He said the three (3) accused pulled the deceased up to his feet from the ground. He said the deceased was in pain and agony then and could not support himself so the three (3) accused supported him and they all walked away. He said he heard the three (3) accused say that they would look for a hole and throw the accused in. The medical report shows that the deceased had suffered a dislocated or fractured neck or cervical spine bone 3 with a collapsed disc space between cervical bones 3 & 4. The said collapse of the cervical bones compressed the deceased's spinal cord, which caused shocks and eventually caused his death. Dr Tommy Walters was called who testified and verified his report.

17. Now without putting these evidence to test (for example, inconsistencies or weighing them), I ask myself this. Could a judge of fact, considering the prosecution's evidence at its highest and as accurate, convict the three (3) accused herein? I would answer "yes" to the question. In my opinion and based on the requirement under the second limb, I am satisfied that the evidence that I have referred to sufficiently covers or proves the second limb, which if accepted at their highest weight or value, would amount to a conviction of the three (3) accused. I therefore find that the cases warrant the trial to continue. I am also mindful that my powers under the second limb include this. Even if the evidence is insufficient, I can still order a trial to continue.

18. I also note that in a charge of wilful murder, the Court can and may convict an accused person of a lesser charge other than wilful murder like murder or manslaughter under the Criminal Code Act. Therefore, when I answered "yes" above, I have also taken into account these possibilities. In other words, I have weighed the possibility of alternative convictions as one of the valuable considerations in the exercise of my discretionary power in this application. And with this additional consideration, the scale tend to 'tip well over' or favour the side which says that the trial should continue for now.

19. The defence's claim of 'tainted facts' or inconsistent facts is noted. They are valid arguments for consideration but I do not think that this is the correct time to raise them. I particularly note the defence submissions of alleged inconsistencies. These should of course be raised after the trial is concluded.

20. I will dismiss the 'no case to answer' application. I will order the trial to continue as soon as possible.

2. The trial of the matter shall immediately continue without further delay.
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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the three (3) Accused

National Court of Papua New Guinea

State v Tomur [2017] PGNC 138; N6798 (5 July 2017)