N7305

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 845 OF 2008

THE STATE

V

SANGI AIRE BESU

Lae:	Numapo AJ
2018:	18 & 21 May, 8 June

CRIMINAL LAW – Particular offence – Murder s.300 Criminal Code– Plea of Not Guilty – Documentary evidence – No Case Submission is a question of law- Elements of the offence not established – Evidence so tenuous and so lacking in weight and reliability – No reasonable tribunal can safely convict on it - Accused acquitted. 

Held:

(i)	A no case submission at the close of the prosecution’s case is a question of law and the test is whether the evidence supports the elements of the offence.

(ii)	State’s evidence does not support the crucial elements of Murder under section 300 (1) (b) of the Criminal Code, being; (a) the positive identification of the accused; (b) unlawfully killed the deceased and; (c) whilst prosecuting an unlawful purpose. 

(iii)	The evidence as it stands does not place the accused at the crime scene at the time of the incident.

(iv)	The statements of witnesses and police investigators do not contain any incriminating evidence against the accused nor does it link the accused to the crime.

(v)	State’s evidence is lacking in weight and reliability that no reasonable tribunal could safely convict on it.

(vi)	Accused acquitted and discharged.

Cases cited:
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Roka Pep (No.2); Re: Reservation on Points of Law under Section 21 of the Supreme Court Act (Ch 37) [1983] PNGLR 287

Counsel:

J. Done, for the State
S. Katurowe, for the Defence

    RULING ON VERDICT
8th June, 2018

1.   NUMAPO AJ: This is a ruling on verdict. The accused was indicted on one count of Murder contrary to Section 300 (1) (b) of the Criminal Code. The accused pleaded Not Guilty and the matter went to trial.

A.	CHARGE

2.  The accused SANGI AIRE BESU of Korepa village, Garaina, Morobe Province stands charged that on the 17th day of December, 2007 at Manki Mountain along the Bulolo/Watut road  in Papua New Guinea murdered another person namely, NATHAN AWIYAINO thereby contravening section 300 (1) (b) of the Criminal Code.

B.	BRIEF FACTS

3.   On the 17th of December 2007 between 1:00am – 2:00am the accused was at Manki Mountain along the Bulolo/Watut road with seven of his accomplices. They were armed with a factory made shotgun, six (6) homemade guns and a bush knife. They were all wearing masks and waiting to rob any vehicle travelling along the road at the time.   

4.   A tipper truck loaded with coffee bags and some passengers was driven by one, William Yotipo. With him inside the cabin was another person by the name of Bonsen Inias. The owner of the coffee bags Nathan Awinaiyo (deceased) was travelling in his Nissan open back vehicle following the tipper truck. 
When the tipper truck reached the top of the mountain the accused and his accomplices came out onto the road and held up the tipper truck.  The deceased arrived shortly after and tried to intervene but was shot and died instantly. 

C.	STATE’S CASE

5.   The State’s case was made up mainly of documentary evidence that were tendered to court by consent. State did not call any oral evidence and closed its case. Defence then made a No Case Submission. 

6.  The following documentary evidence were tendered to court:

(i)	Medical Report comprising of a Post Mortem Report by Dr Jack Markus; Affidavit of Dr Jack Markus and the Medical Certificate of Death – ‘’Exhibit 1”.

(ii)	Record of Interview (ROI) dated 8th June 2008 – “Exhibit 2”.

(iii)	Statement of Willie Glemus dated 13th June 2008 – “Exhibit 3”.

(iv)	Statement of Alphonse Takaila dated 14th June 2008 – “Exhibit 4”.

(v)	Statement of Apron Nathan dated 3rd January 2008 – “Exhibit 5”.

(vi)	Statement of Allan James dated 30th December 2007 – “Exhibit 6”.

(vii)	Statement of Bonsen Inias dated 30th December 2007 – “Exhibit 7”.

(viii)	 Statement of William Yotipo dated 30th December 2007 – “Exhibit 8”.

D.	SUMMARY OF DOCUMENTARY EVIDENCE TENDERED BY STATE

7.   In the Record of Interview (ROI) conducted on the 8th of June 2008 the accused denied committing the offence. 
 
8.   The statement by the Police Investigator Constable Willie Glemus (‘Exhibit 3’) stated that the accused and two other persons planned with another co-accused Watt Edwin to rob any vehicle that was travelling along the Bulolo/Watut road in the early hours of the morning. They met with four other boys and went to Manki Mountain armed with a factory made shotgun and some homemade guns. Watt Edwin was carrying a bushknife. Between 1:30am and 2:30am they held up a truck and during the process shot dead the deceased Nathan Awinaiyo. Police conducted an investigation and apprehended the accused and his co-accused Watt Edwin. Police decided not to charge Watt Edwin and instead to use him as state witness as part of the bargaining deal. Interestingly, and for reasons only known to the Police, Watt Edwin did not make a statement or give oral evidence as he would have been the star witness for the State. 

9.   The statement of witness Apron Nathan (‘Exhibit 5’) did not disclose anything of material significance to support the charge. The witness basically said that he took the money given to him by his late adopted father Nathan Awinaiyo and escaped into the dark when they were held up. He only heard the gun shots but did not see anything. After the criminals left he came out from his hiding place and realized that his adopted father was killed. 

10.   The statement of witness Allan James (‘Exhibit 6’) is not much of a help to the State’s case either. He said he saw the criminals and there were around six of them altogether. They all wore masks and armed with guns. It was dark so the criminals began flashing their torches at the passengers of the vehicle in front of them. He could not see their faces. Nathan (deceased) came out of his vehicle with a bushknife and charged at them. The witness jumped out of the vehicle and picked up some stones and tried to throw at them when he heard the gun shots. He ducked for cover at the side of the Nissan vehicle and escaped into the darkness. After the criminals left he returned back to the vehicle and found that Nathan was shot. 

11.  Witness Bonsen Inias in his statement (‘Exhibit 7’) stated that they were confronted by about 8 -10 youths covered with face masks at Manki Mountain. He was in the tipper truck which was the lead vehicle. At around 2:00am in the morning on the 16th of December 2007 as they were driving up the mountain when they were attacked. The criminals were carrying guns and one was armed with a bushknife. The person carrying the bushknife was slim in built and came towards him and hit him on the hand and ordered him to lay flat on the ground. Whilst he was lying on the ground the criminals stole all their money and other belongings. 

12.   He heard two gun shots whilst lying on the ground and did not see much as it was also dark at the time. After the criminals left he found out that Nathan Awinaiyo was killed.

13.  Witness William Yotipo is the driver of the tipper truck owned by the deceased Nathan Awinaiyo. He basically stated that he drove the tipper truck full of coffee bags bound for Lae on the evening of the 17th of December 2007. At around 2:00am they were climbing up Manki Mountain when they were confronted by about ten (10) masked men and they were all armed. They were armed with a shot gun and home-made guns and one had a bush knife. The criminals pointed the guns at them from the front. One of them carrying a factory made shot gun approached him and threatened to shoot him and he ducked for cover inside the vehicle behind the seat. He heard two gunshots fired towards the deceased’s vehicle at the back. He was still hiding inside and could not see what went on outside. He only heard the deceased calling out that he was shot. A few minutes after the criminals had fled he came out from where he was hiding and realized that the deceased was shot and died shortly after that. 

14.  Apart from the statements tendered, no witness was called in to give oral evidence. Furthermore, the deponents of the statements were not called in to be examined. The State closed its case and basically relied on the statements tendered to court.

E.	THE LAW ON NO CASE SUBMISSION

15.  The general principle on No Case Submission is that the court should not weigh up the evidence until the whole of the evidence is in - unless in what is clearly a hopeless case, where the prosecution is intrinsically very weak or has collapsed badly. It also applies in a case where the court considers that the prosecution’s evidence is so insufficient that it did not support the crucial elements of the charge for a reasonable tribunal to safely convict on it.  

16.   The law on No Case Submission is well settled in the much celebrated case of The State v Paul Kundi Rape [1976] PNGLR 96 (herein after referred to as Paul Kundi Rape) followed by the Supreme Court case of The State v Roka Pep [1983] PNGLR 287; (No.2); Re: Reservation on Points of Law under Section 21 of the Supreme Court Act (Ch.37) ( Kidu, CJ, Kapi, DCJ, Andrew, Pratt, Kaputin, JJ presiding) (herein after referred to as Roka Pep).

17.  The Supreme Court basically explained the two limbs of the Paul Kundi Rape rationale as follows:
“Where in criminal proceedings at the close of the case for the prosecution, there is a submission of a no case. The matter is a question of law for the judge as the tribunal of law; the test is whether the evidence supports the 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 the discretion to stop a case at the close of all 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” – per Kidu, CJ, Kapi, DCJ, Andrew, Kaputin JJ.

18.  Pratt J, put it in much simpler terms as follows:
“A tribunal should make a finding of a no case to answer where (a) there is no evidence to establish the element of the offence charged or (b) there is some evidence covering the elements of the offence charged, but is so tenuous or incredible or discredited that it only amounts to a scintilla, and thus could not be accepted as persuasive by any reasonable person” – per Pratt J

19.  The two limbs of the Paul Kundi Rape (supra) are firstly, at the close of the prosecution’s case it became obvious that there is no evidence to establish the elements of the offence charged and the court decides that there is no case to answer, then the accused must be acquitted and that is the end of the matter.

20.   On the second limb, even if there was some evidence covering the elements of the offence but that the evidence is so tenuous and so lacking in weight and reliability or discredited during cross examination so much so, that no reasonable tribunal could convict on it then the court must stop the case from progressing any further and acquit the accused using its discretion. 

F.	PRESENT CASE

21.  In the present case I find that the first limb of State v Roka Pep (supra) applies. The State’s case as it stands does not support the three crucial elements of a charge of Murder under section 300 (1) (b) of the Criminal Code being; (a) the positive identification of the accused - there is no evidence from the State witnesses that positively identified the accused as one of the eight (8) or so youths who held up the truck at Manki Mountain in the early hours of the 17th of December 2007; (b) unlawfully killing  the deceased Nathan Awinaiyo - there is not a shred of evidence that directly or indirectly linked the accused to the killing and; (c) whilst prosecuting an unlawful purpose i.e. armed robbery – there is no evidence to suggest that the accused was part of the group of boys that held up the truck at Manki Mountain on the night in question. I should add at this juncture that the State presented an indictment on the 24th of April, 2018 charging the accused with one (1) count of aggravated armed robbery pursuant to section 386 (1) (2) (a) (b) of the Criminal Code as an additional charge to this charge of murder. The set of facts and circumstances were the same. Accused pleaded not guilty to the charge. The State offered no evidence and the accused was acquitted and discharged.  Therefore, there is no evidence to suggest that the accused whilst committing an armed robbery (prosecuting an unlawful purpose) killed the deceased.

22.   All in all, I find that the various statements made by the witnesses does not at all link the accused to the crime. There is no incriminating evidence against the accused in the statements deposed by the police investigators. Identification appears to be the main issue.  All the witnesses stated that it was in the early hours of morning at around 2:00am and it was still pitched dark at the time when they were held up. The criminals covered their faces with masks and it was difficult to recognize and identify them. Furthermore, the witnesses have either ran into the bush to hide from being attacked or hid inside the vehicle and were not able to see what went on outside. After the gun shots were heard and the criminals had fled the scene that they all came out from their various hiding places and realized that the deceased was shot dead. 

23.   I find therefore, that the evidence as it stands does not place the accused at the crime scene at the time of the incident. The State’s evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. State has not made out a case against the accused and therefore, the accused has no case to answer.  

G.	DECISION

24.  Accused is acquitted and discharged.

Orders Accordingly,
__________________________________________________________________
Public Prosecutor	: Lawyer for the State
Public Solicitor	: Lawyer for the Defence