State v Bore [2017] PGNC 303; N6977 (11 May 2017)

N6977

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 251, 252 & 253 OF 2015

THE STATE

V

ROBIN BORE, MATHEW BENO & FRANCIS ANDISAGU

Wabag: Auka AJ
2017: 8^th, 10^th & 11^th May

CRIMINAL LAW – Practice and Procedure- Submission of no case to answer – Relevant Principles – Proper tests – Two different tests to apply – Evidence – Test to be applied depends on evidence – Where no evidence at all against accused – Acquittal is appropriate – Where there is some evidence – Discretionary power of court not to call accused to answer charge – Accuseds acquitted - Criminal Code, SS. 299 & 7,

Cases Cited:
The State v. Paul Kundi Rape [1976] PNGLR 96
The State v. Roka Pep [1983] PNGLR 79
The State v. Roka Pep (No2) [1983] PNGLR 286

Counsel:

Ms. Rebecca Koralyo, for the State
Mr .Robin Yallon, for the Accused

RULING ON NO CASE SUBMISSION

11^th May, 2017
1. AUKA AJ: The three co-accused Robin Bore, Mathew Beno and Francis Andisagu pleaded not guilty to a charge of Wilful Murder pursuant to S.299 of the Criminal Code Act and a three (3) days trial was conducted.

2. The brief facts of the case alleged against the 3 accuseds are that the three (3) accuseds were on operation duties at Porgera Gold Mine in Enga Province during the month of December, 2011. The accused Robin Bore was the Commanding officer and they are all Policeman attached to one Unit.
On Sunday 25^th December, 2011 at about 4:00 pm in the afternoon, the deceased, one Londari Taupin was running away from being arrested by another Police Unit for being drunk and disorderly in public place. He was then chased by the Police down at Maiapan Greek at Porgera. At that time the accused’s Unit commanded by Robin Bore approached in another vehicle from another direction. State alleged that accused Robin Bore as the Unit Commander at that time issued orders to his men to “shoot to kill”. The State further alleged that the other policeman pursued the deceased on those orders and shot the deceased on his right knee. The deceased fell down and was bleeding, and was taken to the hospital and died from loss of blood.

The State alleged that the three accused intended to kill the deceased and by their actions contravened S.299 of the Criminal Code in conjunction with S.72 of the Code.

3. The State’s case consisted of five (5) witnesses. Apart from them, the State tendered the following documents into evidence by consent of the defence counsel:

The Medical Certificate of Death (Exhibit “A”), Post Mortem Report (Exhibit “B”), Record of Interview of Robin Bore (Exhibit “C”), Record of Interview of Francis Andisangu (Exhibit “D”), Sixteen (16) photographs depicting the deceased body and the location of the incident (marked Exhibit “E1 to 16”), Photograph of crime scene (Exhibit “F1 to 5”), Statement of Patrick Aipaun (Exhibit “G”), Details of Occurrence Book (Exhibit “H”) and Sketch Map (Exhibit “I”).

4. The Records of Interview of both Robin Bore and Francis Andisagu (Exh C & D) contain no admissions. The only story given by Francis Andisagu in his Record of Interview was that he arrived at the scene of the shooting some time after the shooting and when he arrived at the scene, he saw two Policemen standing there and were armed. For Mathew Beno he remained silent throughout his Record of Interview.

5. The five (5) witnesses called by the State are; Akus Panda, Ruben Lapet, Kuku Kayan, Patrick Aipane and Epen Mara.

6. The evidence of Akus Panda in chief is that he is from Wapenamanda District of Enga Province. He is 43 years old and does not work. He has lived at Porgera for 7 years and is a vendor at Porgera market. As a vendor he sells smoke and betelnut. He recalls that in the afternoon of 25^th December, 2011 he went to Porgera market. While he was there he saw the deceased holding a bush knife and running away from Police. And he told the deceased to throw the knife away. He then saw deceased running down to the Yanis creek. From where he was at the market, he saw two (2) Police vehicles arrive and stop at 60 metres away from him. He described one of the vehicles as a 5 door vehicle but does not know whether it was police vehicle. He said he saw the policemen open the doors, came out and fired shots at the direction of the creek. He said he felt scared and went further back towards the market. He said he knew that it was policemen who came out of the vehicles as they wore police uniforms. In chief when he was asked as to who held the guns, he replied and said they were in police uniforms and I did not go close to them.

In cross-examination he was asked to name the place where he lives and he said Luklap place which is 250 metres away which is from the witness box where he is sitting to Wabag Police Station. It takes 30 minutes to walk from his house to the Yanis creek. In cross-examination he was asked on what the deceased was doing before he started running away. He replied and said I saw him running and at the same time I saw police vehicles coming out. He was asked on how many Police vehicles were there at the time the deceased was running away? He replied and said the 10 seater vehicle chased the victim and at the back of the 10 seater was the 5 door vehicle. Then he was asked to describe the colour of the 10 seater and he said it is after 6 years and can’t think of the colour. As for the 5 door he remembered clearly that it was black in colour. He was asked that: “if you don’t know the colour of the 10 seater, how do you know the colour of the 5 doors vehicle? In reply he said because the 5 door is an ordinary vehicle. Further he was asked to give the registration number of the 5 seater vehicle and he said he can’t recall. He admitted that he doesn’t know the Registration number of the 10 seater vehicle. Finally when he was asked whether he was able to see who were in both vehicles and he said they were chasing and the vehicle was speeding and I only recognised them by their uniforms as Policeman.
I have considered the evidence of this witness and I don’t find any evidence of him identifying police man by name who opened the vehicle doors and fired shotguns and chasing the deceased towards the creek. I find that he has not at all identified the three (3) accuseds and of their participation in the commission of the offence. In fact this witnesses evidence doesn’t show anything on who shot the deceased. His evidence is insufficient and falls very short in connecting the three (3) accuseds involvement in the commission of the offence.

7. The evidence of Ruben Lapet in chief is that he is from Porgera and lives in Porgera. He is married and does not work. He sells ice blocks, scones and cordial in cups at Porgera main market and earns his living. He said on 25^th December, 2011 at about 3:00 pm he was standing at the gate of Bishop brothers company premises at Porgera. When he was standing there he saw the deceased Londari Taupin Mara who is his cousin brother acting crazy and was off his orderly manner. He said the deceased approached him and asked him to show him the way to escape so he told him that the way to escape was through the Bishop Brothers premises. As he watched the victim walk towards the way he had told him, a 10 seater white in colour arrived and it stopped on the main highway and he saw some policemen come out of the vehicle and fired warning shot. Then not long he saw a 5 door Maroon vehicle arrive and at the same time he saw the deceased run away. And he also ran away after he saw the police.

As he was running away he saw some people come out of the 5 door vehicle and chased the deceased. He said there were bushes that prevented him from seeing what was happening. However he wanted to see whether the victim will be caught so he stood there. When he was standing there he heard a gunshot only once. Then he heard the second shot and decided to walk down and stopped and as he was standing there, he saw those people coming up and he went around the other way to see. When he went to check he saw the victim sleeping on top of a stone and was in pain. So he asked him as to what had happened and the victim told him that “they shot me on my leg” and so he and others took him to the hospital and he died 30 minutes later. In chief he was asked whether he saw someone inside the 10 seater vehicle? In respond he said No he did not see anyone. He said he was 50 to 60 metres away when he saw the 10 seater vehicle stop. He said when he was standing near the gate he heard the warning shot fired, and he walked away to the other side and escaped. When he was asked as to who was driving the 5 door vehicle, he responded and said he saw Robin as driver and he pointed at the accused sitting in the dock. Then he was further asked, if you say Robin was driving, did you see anything else? He gave no answer, but later on he said it is 5 years ago, it’s hard for him to describe. There was some bush that prevented him from seeing them. However he said they were policemen because they were in Police Uniform.

In cross-examination, it was put to him that as soon as there was a warning shot he ran away and he said that’s right. Further it was put that as soon as he started running, the maroon vehicle arrived? In response he said that’s right. Furthermore it was put to him that because he was running away he did not see who was driving the 5 seater maroon vehicle? In response he said that is true. He was asked whether he told the court that the victim died after 30 minutes. He said that’s true. He was asked to tell the court his whereabouts when the victim died. In response he said he went back home when the victim passed away at the hospital and was crying and went to the hospital to see. This piece of evidence I note is in contradiction to the doctors report (Exh “A”) which show that the victim died on the next day.

I have also considered the evidence of this witness and I don’t find any evidence of him identifying policeman by name who opened the doors to the vehicles, chased the victim and fired warning shots. I find that he has not identified the three (3) accuseds of their participation in the commission of the offence. In fact this witness’ evidence don’t show the whereabouts of the accused when the victim was shot and by who. As I said about the first witness’ evidence, his evidence is insufficient and is incapable of connecting the three (3) accuseds involvement in the commission of the offence.

8. The evidence of Kuku Kaiyan is that he is from Paiyala Village Porgera in Enga Province. He is married and lives at Porgera station. He works at Porgera Urban Clinic as a cleaner and as a security guard for 11 years. His house is located at the back of the clinic building. He said on 25^th December, 2011 he was at his home preparing firewood and as he was doing that he saw three (3) policemen, one (1) was standing on the road while the other two (2) were chasing after a man. Suddenly he heard three (3) gun shots. As his house which has Pitpit fence is not far from the Maiapan creek, he heard someone saying “You got it”. He said the policeman after doing that, went back and he did not see them because there were bushes that prevented him from seeing them. He then went out to see what had happened and he saw that Taipin Mara’s son was shot on his leg and he took him to the Paiam Hospital and the victim died there. He was asked whether he knows any of the policeman and he said he could hardly see them. He was then asked, how do you know that they were policeman? In reply he said they were in their police uniform with arms. He was asked again whether he knows any of the policeman? In respond he said No I never knew them. In cross-examination when it was put to him that he did not see who fired the shots, and he said that is right.

I have also considered the evidence of this witness and I find that he did not see who shot the deceased as he was in his house. He said he only heard three (3) gunshots. He said he saw policemen because they were in police uniforms and had guns but did not know who they were. There were bushes and it prevented him from seeing them. As I said about the first and second witness’ evidence, this witness’evidence is insufficient and incapable of connecting the three (3) accuseds involvement in the commission of the offence.

9. The evidence of Patrick Aipane in chief is that he is a senior constable with PNG Police Constabulary attached with the Criminal Investigation Division (CID) at Porgera Police Station. He has been a CID officer for 21 years and he worked with the Porgera Police for 17 years. He is the investigation officer of this case. His witness statement was tendered into evidence. Also the Occurrence Book together with the sketch plan of the crime scene which he prepared were tendered into evidence by Consent of defence counsel and were marked as Exh “G” “H” “I”. Beside his statement, he also gave sworn evidence. He said he started the investigation in the case on 29^th December, 2011 some four (4) days after the shooting of the victim. He said that as part of his investigation, he was to travel to Port Moresby to carry out ballistic examination and compile a report on the bullet fragments that caused the death of the victim but he had difficulty with his travelling arrangements and therefore had to wait. He said while waiting for his travel to be finalised, the working files in the matter with the bullet Fragments were all burnt when the police station building at Porgera was completely burned to ashes.

I consider that the evidence of this witness is insufficient and in no way whatsoever connects the three (3) accuseds involvement in the commission of the offence.

10. The evidence of Epen Mara in chief is that she is from Laiagam in Enga Province. She is married and is the seventh wife of the deceased’s father Mara Taupin. She has three (3) biological children of her own. The other six (6) Co-wife’s have more children than her. She lives at Porgera. On 25^th December 2011, the deceased was with her in the house and later left the house and went his own way. She said not long after the deceased left the house, she had a gunshot. She then heard from other people that Londari Mara Taupin was shot and taken to the clinic. She saw a grey vehicle driving into the yard of the clinic and she asked Mr Bore who drove that vehicle why the innocent person was shot? And she said Robin told her that he was not aware of the shooting. She admitted that she learnt from others that the victim was shot. When she was asked that she did not see who fired the shotgun, she said she did not see with her own eyes.

I consider that the evidence of this witness is also insufficient and in no way connect the three (3) accuseds involvement in the commission of the offence.

11. There is no dispute that the deceased died from gunshot wound. Dr Alan Nadal carried out the Post Mortem on the deceased body which was identified by relatives. Based on his Post Mortem, he issued a Certificate of Death. Both the Post Mortem Report and the Certificate of Death are tendered into evidence by consent and marked Exhibit “A” and Exhibit “B” respectively.
In his Post Mortem report summary he said the deceased was brought to Porgera Hospital on 25^th December, 2011 at 5:30pm. The deceased had a gunshot wound at the posterior aspect of the right knee. He said when the deceased was brought and seen at the emergency room at Porgera Hospital, the deceased was talking nonsense due to influence of alcohol. The deceased’s Blood Pressure, pulse rate and respiratory rate were taken. He found that there was markedly swollen. The deceased was given appropriate treatment despite the treatment given the deceased died on the 26^th of December, 2011 at 1:45 am. Dr Nadal said that the deceased died from Hypovolenic shock secondary to bleeding from gunshot wound to the right knee.

12. I consider that beside the Medical certificate of death and the Post Mortem Report none of the other documentary evidence tendered into evidence including the sketch plan supports the state’s case or allegation that the three (3) Accuseds while in company of each other shot the deceased with intention to kill him. Also the documentary evidence does not support and prove State’s contention that Robin Bore issued orders to his men to shoot to kill.

13. Beside the documentary evidence providing no support to the State case, none of the evidence from the five (5) witnesses called by the State show or prove in any way the involvement of the three accuseds in the commission of the offence.

14. I have briefly set out the evidence of each of the witnesses both in examination in chief and cross-examination and after careful assessment of each of their evidence, I have found and concluded that the evidence is clearly insufficient in connecting the three accuseds in the commission of the offence.

15. Mr Yallon, Counsel for the three (3) accused has made a submission of no case to answer at the close of State’s case. The submission was of course in respect of the 3 accuseds and it was made under the first limb of the two tests in The State v. Paul Kundi Rape [1986] PNGLR 96. Basically, the submission was that there is no evidence at all linking the three accused to the crime therefore counsel submitted that the Court should stop the case and acquit the three accuseds.

16. The relevant principle in Paul Kundi Rape (supra), commonly referred to as the tests and/ or the first limb and the second limb of the tests are set out as follow:

“Where there is a submission of no case to answer at the close of the case for the prosecution, the question to be asked is not whether on the evidence as it stands, the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is a question of law, to be carefully distinguished for the question of fact to be asked at close of all of the evidence namely whether the prosecution has proved its case beyond reasonable doubt”.

“Where there is a case to answer, an accused may not as a matter of law be called upon 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 there is a discretion in the judge to take the case away from the jury a tribunal of fact or not”.

17. The first test or the first leg of the test in Paul Kundi Rape (supra) as Mr Yallon puts it is whether on the evidence as it stands the three accused could be lawfully convicted. That is purely a question of law for the Judge to decide as a tribunal of law. That test or principle was adopted and amplified by the Court in The State v. Roka Pep [1983] PNGLR 19, where the late former Deputy Chief Justice, Kapi DCJ expressed it his way:

“A submission of no case to answer at the close of the case for the prosecution is a question of law for the Judge to decide, the question begin whether there is evidence, which if accepted by jury would establish the elements of the offence”

18. The Supreme Court in the case of The State v. Roka Pep No.2 [1983] PNGLR 287 further adopted and applied the principles in Paul Kundi Rape, stated the rule in a more simplest manner. The Court held:

“Where in Criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the matter is a question of law 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”

19. In adopting and applying the principles of law established by Paul Kundi Rape (supra) in Roka Pep (supra), the second test is stated as follows:

“Where there is a case to answer but the Judge is of the view, on the facts, that no matter what the evidence may be called by the accused, the prosecution case will not be proved beyond reasonable doubt or the prosecution case will not improve, or the prosecution case is hopeless or intrinsically weak, then the judge has a discretion to acquit the accused on the no case submission”.

20. The Supreme Court in Roka Pep No.2 (Supra) expressed the second principle in the following manner;

“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 rare scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it”.

21. In applying the first test to the evidence in the present case, I find that the evidence against the three accused so far is insufficient and does not support and establish the essential elements of the offence and as such the three accuseds could not be lawfully convicted.

22. If the Court were to call the 3 accused to answer the charge of wilful Murder, I do not consider that their evidence will improve the state’s case to any greater height. They have already denied the offence in their Records of Interview and pleaded their innocence. I am of the view that if they were called to testify, their evidence would not assist the prosecution case to any extend on the charge of Wilful Murder.

23. It is therefore appropriate in my judgement to exercise Court’s discretion to stop the case here now and acquit the three accuseds.

24. Accordingly, I will exercise my discretion by not calling the three accused to answer the charge, but instead, stop the case here and acquit the accuseds.

25. I order that the three accuseds be acquitted of the charge of the Wilful Murder.

26. In the light of this Judgement on Verdict, it is appropriate to make the following orders;-

1. The accuseds are acquitted and discharged from the charge of Wilful Murder.
2. Their cash bail of K1000. 00 for each accused shall be refunded forthwith.

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