N7261

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 544 of 2015

THE STATE

V

MOSES JIGIMBE

Lae:  Kaumi AJ
2018: 26, 27, 28, 29 March

CRIMINAL LAW – Practice and Procedure-No case To Answer Submission-Criminal Code Act 1974, Part V-Offences Against the Person and Relating to Marriage and Parental Rights and Duties, and Against the Reputation of Individuals, Division 3-Homicide: Suicide: Concealment of Birth-Section 299 subsection (1)-Application that Case should be Withdrawn from the Tribunal of Fact-Two limbs of The State v Paul Kundi Rape relied upon

CRIMINAL LAW-No Case To Answer Submission-First Limb-There Is Evidence on Elements of the Charge-Second Limb-Evidence on identification Inconsistent, Incredible and Discredited in Cross-Examination and Embellishing.

CRIMINAL LAW- State bears onus of establishing the charge against an Accused person on the required Standard of Proof, Beyond Reasonable Doubt-Prosecution case Would Not Improve If Accused called upon to answer the Charge-Accused has No Case To Answer on the Second Limb of Rape.
CRIMINAL LAW-Prior Statement that omits other evidence, But Included Subsequently in the Oral Testimony of a witness, Does Not Amount to Prior Inconsistent Statement.

The accused pleaded not guilty to willfully murdering a man and a no case to answer submission was made at the close of the prosecution case.

HELD:

[1]The case law on no case to answer submissions is well settled in this country. In the seminal case of The State v. Paul Kundi Rape [1976] PNGLR 96, O’Leary. AJ stated two important principles which are often referred to as the first and second limbs.

[2]The principles of the Rape case were affirmed by the 5 men Supreme Court bench (Kidu, CJ, Kapi. DCJ, Andrew. J, Pratt. J and Kaputin. J) in State v. Roka Pep (No.2) [1983] PNGLR 287; SC 261

[3](Per Kidu CJ Kapi DCJ Andrew and Kaputin JJ)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. State v. Roka Pep (No.2) [1983] PNGLR 287; SC 261

[4](Per Pratt J) A tribunal 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 tenuous or incredible or discredited that it amounts only to a scintilla, and thus could not be accepted as persuasive by any reasonable person.State v. Roka Pep (No.2) [1983] PNGLR 287; SC 261

[5] (1) There is evidence of all the essential elements, but it is of a tenuous nature for example the evidence is weak or vague or inconsistent with other evidence. The question of law which arises at this point is whether there is sufficient evidence to support a conviction. A judge is required to direct his mind to the aggregate effect, or sufficient, of the whole prosecution evidence. The issue is not directed at the primary findings of fact, but to the conclusions which could reasonably be drawn from the primary facts to support a conviction. This is a question law, or at least of mixed fact and law. State v. Roka Pep (No.2) [1983] PNGLR 287; SC 261

[6] The premise on which the consideration of the second limb of Rape arises is that there is evidence of the elements of the offence, the question under this limb is whether this evidence is of a tenuous nature for reasons of being weak, vague or inconsistent with other evidence or put in another way does the state of the evidence provide a sufficient basis for which the court ought to convict the accused.

[7] I warn myself of the need to be eschew as much as possible when I consider this apparent contradiction in the prosecution evidence with regard to identification of the person responsible for stabbing the deceased. My consideration involves weighing up the evidence and this must be done sparingly.

[8] Whether or not the accused will be called upon to answer the charge is dependent on the nature of the evidence of the identification of the accused. More to the point, the court must be satisfied that the prosecution has provided prima facie evidence on the identification of the accused. The outcome will be determined by the quality and the probative value of the evidence provided by the prosecution witnesses on the issue of identification.

[9] The burden of proof in a criminal case is always on the State. It does not shift to the accused to prove his innocence. This would run contrary to the presumption of innocence of an accused person guaranteed under Section 37 (4) of the Constitution.

[10] In the assessment of witnesses and or their evidence in any case, logic and common sense usually played a major part. Garitau Bonu and Rosana Bonu v The State (1997) SC 528

[11] As would be apparent, directions of inconsistency does not arise until a witness gives a testimony that directly opposes or contradicts a statement previously given by the witness. Even in that case, that is not conclusive. As long as the Court warns itself of the kind of weight it should place on such evidence. Thus in our view, a prior statement that omits other evidence, but included subsequently in the oral testimony of a witness, does not amount to prior inconsistent statement. Balbal v State[2007] PGSC 16; SC 860 (22 February 2007) Sevua, Kandakasi, Gabi JJ

[12] His Honour is clearly accepting their prior written statements as the truth of what they stated there in as opposed to their sworn oral testimony. Those two statements were tendered in cross-examination with the purpose of contradicting their sworn testimony in court. The effect of these statements going into trial is that the sworn testimony of the witnesses concerned has now become unreliable and they remain discredited. Their credibility as witnesses have been seriously tainted and reduced and none of their stories can now carry any weight and ring of truth. This is really the ultimate goal of tendering into court prior inconsistent statements of witnesses.” Kandakason v The State [1998] PGSC 20; SC 558 (7 July 1998) Amet CJ Los, Kirriwom JJ.

Cases Cited:

Balbal v State [2007] PGSC 16; SC 860 
Garitau Bonu and Rosana Bonu v The State (1997) SC 528
John Beng v. The State [1977] PNGLR
Kandakason v The State [1998] PGSC 20; SC 558 
State v. Roka Pep (No.2) [1983] PNGLR 287; SC 261
State v.Tom Tomugal (2016) N6329 
The State v Boana Bonat (2016) N6217 
The State v Cain Namah (2015) N5990 
The State v David Bal Kuro (2016) N6261
The State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (16/10/01) N 2298
The State v Gore (No.1) (2004) N2639
The State v Henry Osare Kales (2001) N2115
The State v Herman (2003) N2475
The State v Kuriday (1981) N300
The State v Kwale Dire (2001) N2178
The State v Loya Yama (2015) N6100
The State v Mahari Dippon (2014) N5705
The State v Nicky Paul (2016) N6428
The State v. Paul Kundi Rape [1976] PNGLR 96
SCR No 1 of 1980: Re s.22A (b) of the Police Offences Act (Papua)
The State v Robert Tamtu (2001) N2166
The State v Tauvaru Avaka (2000) N2024
The State v Thomas Sange (2005) N2805
The State v Tolly Amindi (2004) N2683

Legislation Cited: 

Constitution of Papua New Guinea
Criminal Code 1974

Counsel:

Ms. Theresia Aihi, for the State
Mr. Isaac Tsipet, for the offender

29th March, 2018

1.	KAUMI AJ: INTRODUCTION: This is a ruling on a no case submission by a man who is facing an indictment that he wilfully murdered a man contrary to Section 299 (1) of the Criminal Code Act Chapter 262.

BACKGROUND

2.	The incident was alleged to have occurred on Saturday 4th October, 2014 at about 8 p.m. at Montoro Street in Lae when the accused stabbed the deceased Kenneth Ombika with a knife that led to his death.

3.	The accused was indicted pursuant to Section 299 (1) of the Criminal Code as follows:

MOSES JIGIMBE of WAMAYANG VILLAGE, YANGORU, EAST SEPIK PROVINCE stands charged that he on the 4th October, 2015 at PNG Ports Compound, Lae, and Morobe Province wilfully murdered KENNETH HOMBIHA.

4.	The accused pleaded not guilty and the trial started on the 26th March, 2018. The prosecution tendered by consent nine (9) exhibits and called two (2) witnesses who gave sworn testimonies. It closed its case on 27th March, 2018 and the no case to answer submission was made thereafter.

5.	Mr Tsipet of counsel in making the no case to answer submission and relies on both limbs of State v Paul Kundi Rape[1976] PNGLR 96.

FACTS

6.	It was alleged that on 4th October, 2015 at about 8.00 pm, the accused was at PNG Ports Compound, Montoro Street in Lae.

7.	The accused was with the deceased and others drinking together. At that time the accused and the deceased had an argument over the deceased’s sister ‘Noeline’ who was a former girlfriend of the accused. This argument led to a fist fight between the accused and the deceased. They were stopped by the others who were drinking with them.

8.	The deceased walked away but was still upset so he went back and fought with the accused again. They were stopped by the others. The deceased then walked towards the gate of the premises. It is alleged that the accused ran after him and stabbed him with a knife.

9.	The deceased was assisted by others to seek medical treatment and died thereafter having suffered blood loss from the injury allegedly caused by the accused.

ISSUE

10.	The issues before this court are:

1. Whether or not there is some evidence of each element of the offence of wilful murder for the accused to answer;
2. Whether although there is a case for the accused to answer, the state of the evidence is such that it is so weak or unreliable that no reasonable tribunal of fact could base a conviction on it, so the Court should exercise its discretion and stop the trial.

IDENTIFICATION

11.	The prosecution raised the issue of identification therefore the court must be satisfied that there is evidence provided by the prosecution identifying the accused.

LAW

12.	The case law on no case to answer submissions is well settled in this country. In the seminal case of The State v. Paul Kundi Rape (supra) O’Leary. AJ stated two important principles which are often referred to as the first and second limbs:

That at the close of the prosecution case two quite separate and distinct questions may arise for consideration at this stage of a criminal trial; one, whether there is a case for the accused to answer; and secondly, whether although there is a case for the accused to answer, the state of the evidence is such that the Judge ought to withdraw the case from the jury, or at least, tell the jury that they are entitled to indicate that they do not wish to hear any further evidence.

13.	The principles of the Rape case were affirmed by the 5 men Supreme Court bench (Kidu, CJ, Kapi. DCJ, Andrew. J, Pratt. J and Kaputin. J) in State v. Roka Pep (No.2) [1983] PNGLR 287; SC 261 where it stated in its head note:

(Per Kidu CJ Kapi DCJ Andrew and Kaputin JJ) 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.
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.

The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96, adopted and applied.
(Per Pratt J) A tribunal 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 tenuous or incredible or discredited that it amounts only to a scintilla, and thus could not be accepted as persuasive by any reasonable person.

(Per Kapi. DCJ) Is there any evidence of all the essential elements of the offence? This is a question of law. At this point there is no assessment of the credibility of any of the witness, either individually or with other witnesses. There is also no consideration given to the sufficiency of the whole prosecution evidence. If there is no evidence at all of any one of the essential elements of the offence, there is no case to answer and the accused must be discharged as a matter of law. The latter situation may arise in one of three ways: 
(i)	the State may fail to lead any evidence at all on any of the elements; or the identity of the accused, or,
(ii)	State’s witness, or witnesses, may give evidence to support the elements, but during the prosecution case, either in examination-in-chief or cross-examination, it is revealed that the witnesses are giving hearsay or otherwise inadmissible evidence in support of the essential elements. In law, that evidence is not to be treated as evidence in the trial. In effect there is no evidence of that particular element of the offence – no assessment or weighing is involved, or
(iii)	there may be evidence of all elements of the offence, but then the witness confesses during the cross-examination, that he is a liar and the evidence which he gave in support of an essential element of the offence was not true. This virtually amounts to withdrawal of the evidence resulting in no evidence on that particular element. This type of witness is very rare. No assessment or weighing in involved. That is the end of the proper no case issue. The State v. Roka Pep (supra).

(1)	There is evidence of all the essential elements, but it is of a tenuous nature for example the evidence is weak or vague or inconsistent with other evidence. The question of law which arises at this point is whether there is sufficient evidence to support a conviction. A judge is required to direct his mind to the aggregate effect, or sufficient, of the whole prosecution evidence. The issue is not directed at the primary findings of fact, but to the conclusions which could reasonably be drawn from the primary facts to support a conviction. This is a question law, or at least of mixed fact and law.
	
14.	Cannings. J in The State v Sange (2005) N2805 gave a simple yet encapsulating commentary on the principles of the Rape case which I reproduce:

“In his famous judgement in Rape’s case O’Leary AJ pointed out that when the prosecution has closed its case two distinct and separate questions can arise.

Question 1 – also called the first limb or test – is there some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred?
Note that the question is not: is every element of the offence established beyond a reasonable doubt? That question can only be answered at the end of the trial – if it proceeds – on the whole of the evidence, i.e. including any evidence adduced by the accused.
If the answer to question 1 is no: the conclusion will be that on the evidence as it stands the accused could not lawfully be convicted. This is an issue of law. The accused will have no case to answer. The accused will have not be required to answer the charge. The accused will be entitled to an acquittal. 
If the answer to question 1 is yes: the trial should proceed unless question 2 is answered in the negative.

Question 2 – also called the second limb or test – although there is a case to answer; is there sufficient evidence on the basis of which the court ought to convict the accused?
Again, the question does not ask whether the prosecution has proved its case beyond reasonable doubt. It is directed at the situation where there is only a scintilla of evidence or where the evidence is so weak or unreliable that no reasonable tribunal of fact could base a conviction on it.
If the answer to question 2 is no, i.e. there is insufficient evidence: the trial judge has discretion to either not call upon the accused (i.e. enter an acquittal) or order the trial to proceed.
If the answer to question 2 is yes: the trial must proceed.” 

15.	The National Court has over 42 years reaffirmed these principles in many cases and some of which I have had the benefit of reading are: The State v Kuriday (1981) N300, Kearney. DCJ; The State v Tauvaru Avaka (2000) N2024, Gavara-Nanu. J; The State v Henry Osare Kales (2001) N2115, Kirriwom. J; The State v Robert Tamtu (2001) N2166, Lenalia. J; The State v Kwale Dire (2001) N2178, Gavara-Nanu. J; The State v Herman (2003) N2475, Lenalia. J; The State v Tolly Amindi (2004) N2683, Kandakasi. J; The State v Gore (No.1) (2004) N2639, Manuhu. AJ; The State v Thomas Sange (2005) N2805, Cannings. J; The State v Mahari Dippon (2014) N5705, Kirriwom. J; The State v Loya Yama (2015) N6100, Nablu. AJ; The State v Cain Namah (2015) N5990, Geita. J; The State v Boana Bonat (2016) N6217, Murray. J; The State v David Bal Kuro (2016) N6261, Liosi. AJ; The State v Nicky Paul (2016) N6428, Toliken. J.

ELEMENTS OF WILFUL MURDER

16.	In State v Daniel [2005] PGNC 89; N2869 (15 July 2005) Cannings. J stated the elements of the offence of wilful murder that the prosecution had the onus of proving beyond reasonable doubt in the following terms that:

•	the accused killed the deceased; (identification)
•	The killing was unlawful; and
•	The accused intended to cause the death of the deceased.
	
THE NO CASE SUBMISSION

17.	Mr Tsipet made a no case submission at the close of the prosecution case relying on both limbs of the Rape case.

18.	Firstly, that the State has failed to adduce evidence on the essential elements of the offence.

19.	Secondly, that if the court found that there was some evidence on the elements of the offence such evidence was lacking in weight and reliability that no reasonable tribunal could safely convict on it. He urged the court to use its discretion under the second limb of Rape to stop the case at this juncture and acquit the accused of the charge.

SUBMISSION FOR THE STATE

20.	Ms. Aihi of counsel submitted with respect to the elements of the offence of wilful murder:

[i] A person killed another person intending to cause his death-

•	The evidence of Kessan Mariori identified the accused as the person who stabbed the deceased. That Kessan said he didn’t know where the accused got the knife from but that as he ran past him he looked aggressive and wanting to fight the deceased.
•	That there was light at the gate and he could see activity at the gate.
•	That the identification was not a fleeting glance of a stranger as the accused, Kessan and the deceased were related and family members.
•	That the accused after stabbing the deceased told him what he had done.

[ii] Unlawful killing

•	That the accused had no legitimate excuse for killing the deceased by stabbing him with a kitchen knife.

[iii] Intention

•	That the accused had a motive to harm the deceased.
•	That the accused and the deceased had fought three times over the deceased’s sister. That it was after the third fight that as the deceased was walking to the gate, the accused ran after him and stabbed him with a knife.
•	That the accused had a motive to cause the death of the deceased and he carried an offensive weapon to cause the death of the deceased.

21.	Ms. Aihi further submitted that the other State witnesses didn’t see who stabbed the deceased. That they saw or heard what happened after the alleged stabbing.

22.	In concluding Ms. Aihi submitted that there was evidence supporting each element of the charge of wilful murder and that the accused had a case to answer, 

APPLICATION OF PRINCIPLES

23.	As to the application of the principles on no case to answer submissions Anis. AJ (as he then was) stated in The State v.Tom Tomugal (2016) N6329 and at paragraph 12 the role of the Court in no case to answer submissions and which I find to be of invaluable assistance and reproduce as follows:

(i)	 Identify the essential elements of the offence (first limb).
(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 and 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 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).

24.	The applications of these principles are well stated in this country and I see no need to add to the commentary or to deviate from them.

THE EVIDENCE (EXHIBITS TENDERED BY CONSENT)

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

TABLE.1-SUMMARY OF EXHIBITS

Exhibit	Witness	Evidence	
A1	Statement of Elton Suakumbo dated 09th October, 2014.	He was at the premises where the alleged incident occurred and had been drinking with the accused, deceased and another but was sleeping at the time of the alleged incident and did not wake up until Police arrived two hours later. He did not see anything.	
A2	Statement of Robby Sakora dated 23rd November, 2014.	This witness was at the front of the residence when he saw a particular person walking towards the gate.He went out of the gate and fell. An in-law of Robby was also with them so he went to check out the person. We followed him outside. This person appeared to be stabbed at the left side just above the hip.
These fellows who were also drinking with this person also came to the spot. It was raining at the time so I decided to pack up the table market and move into the residence.	
A3	Statement of Neil Metine dated 23rd November, 2014.	He was at the PNG Ports compound. While waiting with his wife for their child to stop crying at the laundry he heard noise at Benjamin’s house starting to get rowdy. Fearing for their safety they moved back to the front of the house. Not long after he saw a person stagger towards the gate and bump into the wired fence. By reflection from the light from South Pacific Steel premises, he saw that this person had been wounded.He saw signs of blood. The person then walked out and fell down. Neil thinks it was Norbert and the other person whom he wasn’t familiar with his name; they rushed to the gate towards the person who had fallen down. He followed these two and came to where they were and gave assistance. 	
A4	Statement of Wallen Wama dated 10th October, 2014.	He was at the premises of the alleged incident and did not see or know what happened at the material time as he was asleep and woke after the alleged incident had happened. The accused told him to take the deceased to the hospital. Kenneth was lying down so he woke him up and Kessen Mariori assisted him put Kenneth on an ESS Security Vehicle and he took him to Lae Inter Hospital.	
A5	Statement of Benjamin John dated 9th October, 2014.	Owner of the house in which the alleged incident happened and was not present at the material time.	
A6	Statement of Senior Constable Yaeng Birum undated	Corroborating Officer in the ROI with the accused.	
A7	Statement of Sergeant Max Makeso undated	Conducted the ROI with the accused.	
A8	ROI between Police and the accused. Original Pidgin version.
The Record of Interview is unremarkable and self-serving especially at answers 16, 17, 18, 19, 20, 21, 22 and 25 where the accused says the deceased stabbed himself accidently (self-inflicted) and denies having stabbed the deceased though he had fought with the deceased.	Question 16: Can you tell us what actually happened when Kenneth (deceased) do that you both fought each other.
Answer: Kenneth was arguing with me regarding his sister by the name of Noelin…He started arguing with me since Thursday to Friday which the boys stopped us. And on that Saturday he argued with me again and threw the 40 ounce bottle coffee punch at me. I ducked and the bottle missed me that time I fought with him. The boys stopped us and I returned to my chair and sat down and HE (Kenneth) walked out to the road.
Question 17: Where did Kenneth go?
Answer: I would not know because it was dark.
Question 18: What did you use to fight with?
Answer: We both used our hands to fight.
Question 19: I have information that you stabbed Kenneth with a knife. What do you say about that?
Answer: No I did not stab him with a knife
Question 20: And who stabbed him with the knife?
Answer: He stabbed himself.
Question 21: How would he stab himself, would you explain that?
Answer: I was sitting on a chair when he went outside and later returned back armed with a knife. He swung the knife at me  and I grabbed his hand that same time I was off balance and fell off the chair he also fell down, me still holding onto his hands which accidently the knife he was holding stabbed himself with it.
Question 22: Whose knife was he holding?
Answer: His own knife.
Question 25: Who was there that saw you and Kenneth fighting 
Answer: Kessen Mariori, Valentine Wama and Fenon.	
A9	ROI English	A translated version of the original pidgin interview between the Police and the accused.	
A10	Affidavit of Dr Sanoh Tahon	He conducted the post mortem of the deceased and the Annexures are the Medical Certificate and Medical Certificate of Death.	

EVIDENCE

26.	Dr. Komati’s sworn testimony was about his qualifications as a medical doctor and work as the head of the Pathology Department at the Angau Memorial Hospital and the findings of Dr. Sanoh Tahon who conducted an autopsy on the body of the deceased.

27.	Mr. Kessen Mariori gave a sworn testimony that he was at the premises of Benjamin John when the alleged incident happened. His evidence was that over the course of 3 consecutive days the accused and deceased been drinking alcohol intermittently and had three fist fights over the deceased’s sister (former girlfriend of the accused) both of which were stopped by himself and Valentine Wama. He said that there was a security light at the gate and its beam was shining on that spot so that any activity could be seen. That the weather at that time was fine. After the third fight between the deceased and the accused on the night of Saturday 4th October, 2015 the deceased walked away. The accused ran past the witness after the deceased and he did not see the accused carrying a knife at that moment but saw him stab the deceased with a knife at the gate because there was light. The light there was from a light from the front of the house and the security light beaming its light at the gate.

28.	In evidence in chief Kessen said he saw the accused stab the deceased from a distance of 7 to 10 meters away. Under cross-examination when asked to show to the court the distance from where he was to where he says the accused stabbed the deceased, he pointed out and told the court that it was a distance from where he was in the witness box to the Lae National Court Complex main gate, a distance agreed to by both Counsels to be 15 to 20 meters. He said that there were other people near the area of the gate sitting at the market tables at the time of the incident.

29.	Under cross-examination the witness said the accused had come back to him and said he had stabbed the deceased with a knife and showed him the knife he had used and that he needed assistance to rush the deceased to hospital. A statement dated 9th November, 2014 given to police by the witness was shown to him and upon being asked by the defence counsel to read it and show where in it he had mentioned this particular part of his evidence, he replied that it wasn’t in there. In re-examination he said he had told police everything he had seen and heard at the material time and that what he said was typed on a computer.

IS THERE SOME EVIDENCE OF ALL ELEMENTS OF THE OFFENCE?

30.	The elements of the charge of wilful murder are: 

•	The accused killed the deceased.
•	The killing was unlawful
•	The accused intended to cause the death of the deceased,

31.	Is the evidence adduced to the court by the prosecution at this juncture of the trial sufficient within the context of Rape’s case to warrant the accused being called upon to answer his charge of wilful murder?

32.	With respect to the first limb of Rape I consider that there is some evidence of all elements of the offence which if accepted would either prove the element directly or enable its existence to be inferred.

33.	The premise on which the consideration of the second limb of Rape arises is that there is evidence of the elements of the offence, the question under this limb is whether this evidence is of a tenuous nature for reasons of being weak, vague or inconsistent with other evidence or put in another way does the state of the evidence provide a sufficient basis for which the court ought to convict the accused.

34.	It is a question of law that arises at this juncture of a trial when a no case to answer submission is made by an accused. A question of law whether there is sufficient evidence to support a conviction.

35.	And I remind myself that I must direct my mind to the aggregate effect, or sufficient, of the whole of the prosecution evidence. State v. Roka Pep (No.2) (supra)

36.	The question of whether there is sufficient evidence is not directed at the primary findings of fact, but to the conclusions which could be reasonably drawn from the primary facts to support a conviction and this is a question of law or at least of mixed fact and law. State v. Roka Pep (No.2) (supra)

37.	I am conscious that it is trite law that the exercise of my discretion under the second limb of Rape entails that it must done in an eschewing manner as far as possible and then again only in circumstances where the evidence is one of such a hopeless and insuperable nature. 

38.	Whether or not the accused will be called upon to answer the charge is dependent on the nature of the evidence of the identification of the accused. More to the point, the court must be satisfied that the prosecution has provided prima facie evidence on the identification of the accused. The outcome will be determined by the quality and the probative value of the evidence provided by the prosecution witnesses on the issue of identification.

39.	Again any evidence of the prosecution evidence which is so dubious, lacking in weight or so damaged by cross-examination will be detrimental to its cause.

40.	From the evidence adduced by the prosecution to court I make the following primary findings of fact:

[i].	The main or exit gate to the PNG Ports compound at Montoro Street Lae on 5th October, 2014 was lit up by a security light whose beam was focused on the main gate and also lighting from the front house closest to this main gate.
[ii].	The accused, deceased and three others had been drinking alcohol intermittently over three days from 1st October, 2014 to 4th October, 2014 at the house of the accused’s older brother Benjamin John at the PNG Ports compound at Montoro Street, Lae, Morobe Province.
[iii].	On the night of 4th October, 2014 the accused, deceased, Kessan, Elton Suakumbo and Wallen Wama were at Benjamin John’s house before, during and after the alleged stabbing.
[iv].	The accused, Kessan Mariori and Valentine Wama are closely related and come from Yangoru and the deceased is distantly related to them but comes from Kubalia in the East Sepik Province.
[v].	The accused and deceased had three fist fights over this period of time and the last two fights being on the night of 4th October, 2014.
[vi].	Kessan said Wallen assisted him to stop the last two fights between the accused and the deceased. Wallen said he was asleep inside the house and did not know or see what was happening outside the house and was woken by the noise of the four drunken boys and came outside and was told by the accused to take the deceased to the hospital.
[vii].	There was another employee Mr. Neil Metine of the PNG Ports who also resided in a house at the Montoro Street compound with his wife and small child and his brother in-law Robby Sakora and they were all present there before, during and after the stabbing.
[viii].	Neil Metine’s house is in the front of Benjamin John’s house and next to the main gate and its front light shines on this main gate.
[ix].	Only one prosecution witness, Kessan Mariori said he saw the accused run after the deceased as he was walking out the said PNG Ports Compound.
[x].	Kessan Mariori is also the only witness for the prosecution who says he saw the accused stab the deceased at the main gate to the PNG Ports compound.
[xi].	Kessan Mariori said that when he saw the accused run past him after the deceased but he did not see him carrying a knife at that moment.
[xii].	In evidence-in-chief Kessan Mariori said he saw the accused stab the deceased at the main gate from a distance of 6-7 meters away.
[xiii].	In cross-examination Kessan Mariori changed this distance to 15 to 20 meters away when he pointed out the distance from where he was in the witness box to the Lae National Court complex main gate.
[xiv].	Further in cross-examination Kessan Mariori said that after the accused had stabbed the deceased he came back to him and told him what he had done to the deceased and showed him the knife. In furtherance to the witness’s answer a three page signed statement dated 9th November, 2014 made by him (Kessan Mariori) to police was produced to him by Mr. Tsipet of counsel and he was asked to read it and show where in it he had mentioned the accused showing him the knife after the stabbing. He read the document then told the court that this part of his evidence was not part of the statement he had given to Police.
[xv].	In re-examination Kessan said he had told the Police everything he’d seen and heard and that his statement was recorded by being typed on a computer.
[xvi].	The evidence of Robby Sakora and Neil Sakora was that they:
a.	Heard loud noises of fighting coming from the back unit belonging to Benjamin John.
b.	Neil’s young child had been crying so he and his wife took it to where the sink was to stop it crying and whilst there heard the noise at Benjamin’s house getting rowdy. Due to previous experience of fighting there and fearing for their safety they moved to the front of their house.
c.	Neil from the front of his house saw a person coming from the back of his house stagger towards the main gate. This person then bumped into the wired fence and then walked out of the main gate of the PNG Ports compound and fell down. By the reflection of the light from the South Pacific steel premises Neil saw that this person had been wounded and bleeding. Neil then saw Norbert and another rush to the gate towards the person who had fallen down and he followed them out and gave assistance to the person who had fallen down. Neil was informed the next day that the person had died.
d.	Robby had seen the deceased since Tuesday 31st September, 2014 at the PNG Ports compound. On 4th October, 2014 he had been drinking with four others at Benjamin’s house which was situated at the back of his In-law’s house He heard the noise of fighting at the back of Neil’s house and this noise of fighting had been going on all week so he took it to be normal. Robby was at the front of Neil’s house when he saw the deceased walking towards the gate and saw the deceased walk out of the gate and fall down. Neil was with him and he went out to check the deceased and Robby followed him outside. Robby saw that the deceased appeared to be stabbed on the left side just above the hip. He saw the fellows who were also drinking with the deceased also come to where the deceased was.
e.	Neil and Robby were much closer to the main gate and did not see any other person besides the deceased as he walked or staggered to the main gate.
f.	Neil and Robby did not see anyone with the deceased at the main gate.
g.	Robby and Neil did not see the accused stab the deceased at the main gate.
h.	The main gate was illuminated by lights from a security light and the front house.

41.	These are the primary findings of facts in the prosecution case so what are the conclusions that I can reasonably draw from them that could sustain the conviction of the accused in the absence of an explanation or contradiction.

42.	With respect to the weighing up of evidence in a no case to answer submission Kearney DCJ in State v Kuriday [1981] PGNC 28; N300 (18 June 1981) stated:

“This question is decided by the judge as a question of law. The answer depends on the state of the evidence, bearing in mind that the weighing of the evidence is to be eschewed as far as possible.” 

43.	With respect to the second limb of Rape Kearney DCJ in State v Kuriday (supra) stated:

“It appears to me that a submission on this basis should be entertained only when the judge really has no weighing up to do. That is, it must be a very clear case, where the State evidence is so dubious, or so tainted, or so lacking in weight or reliability, or has been so discredited in cross-examination, that it is clear that no reasonable tribunal could safely convict on it…”

44.	I warn myself of the need to be eschewed as far as possible when I consider this apparent contradiction in the prosecution evidence relating to the identification of the person responsible for stabbing the deceased. My consideration involves weighing up the evidence and as such must be done sparingly.

PRINCIPLES OF IDENTIFICATION

45.	I remind myself of what the Supreme Court has said on identification in the case of John Beng v. The State [1977] PNGLR that when the quality of identification is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of identification, an acquittal should be entered.

46.	The Court further notes what Frost CJ said in State v John Beng (supra) "that where evidence identification is relevant, the Court should be mindful of the inherent dangers. There is no rule of law that the evidence of one witness is insufficient, nor is there any rule of law that there must be a police parade for purposes of identification nor is there any rule of law that in every case, a warning ought to be given (to the jury), it all depends upon the circumstances of the case before the court."

47.	In this case I note that it is not one of identification of a stranger as both the deceased and the accused and Kessan were related to each other and knew each other well. It is not a matter of my having identify who the perpetrator was but rather whether it was this accused or someone else who was the perpetrator.

48.	In examination-in-chief Kessan told the court that he saw the accused stab the deceased at the main gate. In cross-examination in addition to what he said about of the stabbing he said further that the accused showed him the knife after the stabbing and told him that he had stabbed the deceased. Pursuant to this he was cross-examined in relation to the statement he gave to police on 9th November 2014, one month and seven days after the incident and he told the court that this part of his evidence was not in the statement he gave to police. This statement made by Kessan was not tendered to court for the purpose of contradicting his sworn testimony in court.

49.	I note that what Kessan said in cross-examination is not inconsistent to anything he said in his statement to police but rather is in addition to it and as such cannot be said to be inconsistent. I find support for my view by what the Supreme Court said in two cases of Balbal v State [2007] PGSC 16; SC 860 (22 February 2007) Sevua, Kandakasi, Gabi JJ and Kandakason v The State [1998] PGSC 20; SC 558 (7 July 1998) Amet CJ Los, Kirriwom JJ.

EVIDENTIARY VALUE OF PRIOR INCONSISTENT STATEMENT

50.	These two cases stated the law on the evidentiary value of prior inconsistent statement.

51.	Firstly in Kandakason v The State (supra) the Supreme Court in discussing this area of law stated:

“Two of the three witnesses were cross-examined in relation to their statement they gave to the police about two weeks after the incident. In their statement they told the police that they saw the accused throw the object which exploded. These statements were made some one year nine months ago. Now, in the light of these inconsistencies; that are between their sworn evidence and those statements, and my observation of their demeanour in Court; I give very little weight to their sworn testimonies. I accept what (sic) each said in his (sic) statement as the truth.”

“The critical part or sentence in the passage quoted is the last line. His Honour is clearly accepting their prior written statements as the truth of what they stated there in as opposed to their sworn oral testimony. Those two statements were tendered in cross-examination with the purpose of contradicting their sworn testimony in court. The effect of these statements going into trial is that the sworn testimony of the witnesses concerned has now become unreliable and they remain discredited. Their credibility as witnesses have been seriously tainted and reduced and none of their stories can now carry any weight and ring of truth. This is really the ultimate goal of tendering into court prior inconsistent statements of witnesses.”  

52.	In Balbal v. State (supra) the Supreme Court stated that:

“As would be apparent, directions of inconsistency does not arise until a witness gives a testimony that directly opposes or contradicts a statement previously given by the witness. Even in that case, that is not conclusive. As long as the Court warns itself of the kind of weight it should place on such evidence. Thus in our view, a prior statement that omits other evidence, but included subsequently in the oral testimony of a witness, does not amount to prior inconsistent statement”

53.	The effect of Kessan’s statement to police not being tendered to court is that it is not in evidence before this court for its consideration and the court is left only with his oral testimony and all the other prosecution evidence that was tendered by consent for it to consider.

54.	In my consideration of these primary facts I ask myself what was the reason for this contradiction between the oral evidence of Kessan and the evidence in the statements of Neil Metine and Robby Sakora? Why were persons mentioned by Kessan as being present during the drinking session and fights conspicuously absent as per their tendered statements?

55.	I note from these primary findings of fact that Kessan Mariori is the only prosecution witness who says he saw the accused stab the deceased from a distance of 15 to 20 meters away at the main gate. Yet I also note that this is in direct contradiction to what Robby Sakora and Neil Metine said and they were much closer to the main gate and yet never saw the accused stab the deceased from the back either at the main gate or as the latter was walking or staggering out the said main gate. I note that there were two sources of light illuminating the main gate, a security light and a light from a front house so there would have been enough light to see anything happening there. And given this condition of lighting the logical question that presents itself is, if the main gate was well lit up, how could Robby and Neil not have seen the accused stab the deceased there when they were much closer to the main gate.  They say they only saw the deceased stagger towards and out the main gate and then fall down and that at this stage he was already wounded, so where and when was he wounded? Furthermore where did the accused get the knife after he ran past Wessen and stabbed the deceased from the back at the main gate, did he pluck it out of thin air? If what Robby and Neil are saying is to be believed then it means the deceased was stabbed well before he walked or staggered to the main gate. I note there were other persons drinking with the deceased and accused who were more closely related to the accused and were there during the fights on 4th October, 2014 and in my view they are all equally suspect to the stabbing.

56.	I am required to direct my mind to the aggregate effect or sufficient of the whole prosecution evidence. In other words to consider what the aggregate effect is of what Kessan said in his sworn testimony and what the other State witness said regarding the identification of the perpetrator.

57.	I note that sworn testimonies given in the trial carry more weight than tendered statements as the former is subject to the rigours of cross-examination and allows the Court better advantage of assessing the general appearance and demeanour of the witness in the witness box. Bearing this in mind and given the apparent contradiction in the prosecution evidence adduced to the Court, the outcome boils down to an assessment of the demeanour of Kessan in the witness box. And I have found Kessan’s demeanour, general appearance and performance in the witness box to be wanting. I note that right through his testimony, he never looked at the bench when giving oral testimony, deliberately avoided direct eye contact with the bench. And his performance can best be described as calculating and his evidence embellishing. I say this of his performance as being calculating as he was quick to answer question favourable to the cause of the prosecution and he would at times give different versions of an answer to a question to tailor it better in succession. He was slow and calculating in his answers to questions that favoured the accused. He changed parts of his oral evidence on crucial matters such as the distance and the location from where he was to the location of the incident at the main gate. He told the court on oath of not seeing the accused carrying a knife as he went past him after the deceased but of seeing him stab the deceased from the back with a knife only moments later at the main gate. So where did this knife come from? In cross-examination he told the court something he had not mentioned in examination-in-chief and that was about the accused showing him the knife and telling him he had stabbed the deceased. In my opinion this was a case of the witness embellishing his evidence. He was obviously making it up as he went along. I am not convinced by Kessan’s evidence and I give very little weight to his sworn testimony as a result. And further to this his statement to police was not tendered to court.

58.	The Supreme Court judgment in Garitau Bonu and Rosana Bonu v The State (1997) SC 528 applied the rule that in the assessment of witnesses and or their evidence in any case, logic and common sense usually played a major part. This was affirmed in The State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (16/10/01) N 2298. I accept the evidence of Neil and Robby from their statements as they are logical, common sense and stand to reason. If as they say they both saw the deceased stagger or walk towards the main gate then walk out of it and fall down wounded then logically he was stabbed somewhere else before they saw him heading towards the gate. Obviously he was stabbed at the scene of the fight at the back of Neil Metine’s house at Benjamin John’s house where they could not see him and someone stabbed him there but who was the perpetrator?

59.	 I have been made none the wiser by a plausible explanation by the prosecution for the contradiction in its evidence. In my view the evidence adduced by the prosecution on the issue of identification borders on the incredulous at the very least and ludicrous at the extreme and would be laughable if it wasn’t as serious a matter.  In plain English Kessan is lying, but why was he lying, who was he covering up for. Whoever it was the fact remains that this state of evidence does not help the cause of the prosecution. I consider this evidence to be unreliable, so dubious and incredible and discredited in cross-examination and this has the effect of depleting any real weight that might have been attached to it at face value.

60.	Matters are not helped by the self-serving answer of the accused in his Record of Interview at answer 22 in which he casts the blame for the stabbing on the deceased, that the stabbing was self-inflicted.

61.	Incredulous as this self-serving answer might seem, I cannot see the prosecutor’s case improving if I was to call upon the accused to answer the charges and he was to continue to maintain this line (self-inflicted stabbing) or elected to remain silent.

62.	The aggregate result of this apparent contradiction of the prosecution evidence is that I find the statement by Kessan on identification of the accused as being responsible for the stabbing of the deceased to be of no probative value to the issue of identification. The issue of identification is pertinent to all the elements of the offence.

BURDEN OF PROOF

63.	The burden of proof in a criminal case is always on the State. It does not shift to the accused to prove his innocence. This would run contrary to the presumption of innocence of an accused person guaranteed under Section 37 (4) of the Constitution.

64.	It is settled law that the State has the onus of establishing the charge against an accused person on the required standard of proof, beyond reasonable doubt. This is particularly pertinent to the essential elements of the offence. The law requires the prosecution in every criminal case to establish each of the elements constituting an offence beyond any reasonable doubt to secure a guilty verdict and conviction. The Supreme Court in SCR No 1 of 1980: Re s.22A (b) of the Police Offences Act(Papua) Greville Smith J made this clear in the terms:

“The general rule is that in criminal case it is for the prosecutor to prove, and to prove beyond reasonable doubt, every element of the alleged offence…The rule applies equally to negative elements as well as, for instance, absence of consent in cases of Rape. Accordingly the Crown must prove every fact, whether affirmative, or negative, which forms an indictment of the offence.”

CONCLUSION

65.	For the foregoing reasons I consider that the State’s case would not be improved by calling the accused to answer his charge and in concluding I agree with Mr. Tsipet of counsel that the evidence of the State in this matter is such that I can use my discretion to stop this case.

66.	I consider that the accused has no case to answer on the second limb of the Rape case.

67.	The accused is acquitted and discharged forthwith. 

___________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender