State v Orosota [2018] PGNC 424; N7474 (6 July 2018)

N7474

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.1406 OF 2014

THE STATE

V

SELWIN OROSOTA

Lorengau: Gora, AJ
2018: 3^rd, 5^th & 6^th July

CRIMINAL LAW – Offence of Manslaughter Section 302 Criminal Code – No case Submission – Elements of offence – Evidence show elements of offence – Accused has a case to answer.
Cases Cited

The State v. Paul Kundi Rape (1976) PNGLR 96
Ropa Pep v. The State (No.2) (1983) PNGLR 287

Counsel

P. Kaluwin, for the State
L. Siminji, for the Defendant

RULING ON NO CASE SUBMISSION

6^th July, 2018

1. GORA AJ: INTRODUCTION: Accused pleaded not guilty to one count of manslaughter under Section 302 of the Criminal Code.
   
2. State alleges that on the 14^th of July 2013 at Lorengau police station in Manus Province the accused caused the death of Raymond Sipahu Junior. It is alleged that he took part in the killing of the deceased. The State invoked Section 7 of the Criminal Code.
   
3. At the end of the prosecution’s case Mr. Luke Siminji for the accused informed court that he would make a submission on a No Case to Answer application. Leave was granted and he moved an oral application for the case to be stopped at this stage for want of sufficiency of prosecution’s evidence. Public prosecutor Mr. Pondros Kaluwin also made an oral response maintaining that state’s evidence had established elements of the offence and case should continue.
   

ISSUE

4. Whether evidence support elements of the offence.
   

LAW

5. The law on the offence of manslaughter under Section 302 of the Criminal Code is stated in the following terms: “A person who unlawfully kills another under such circumstances as not to constitute willful murder, murder or infanticide is guilty of manslaughter. Penalty: Subject to Section 19, imprisonment for life.”
   

ELEMENTS OF THE CHARGES

6. The elements of the offence of manslaughter are:
   
   • (a) That a person
   • (b) Unlawfully kills another person
   • (c) Under such circumstances as not to constitute willful murder, murder or infanticide.
     

UNDISPUTED FACTS

7. That deceased died as a result of police assault at the Lorengau police station.
   

DISPUTED FACTS ARE:

8. (a) Accused was involved

(b) Accused participated,

(c) Accused used a police issued boot to kick deceased on the head against the brick wall

BURDEN OF PROOF

9. It is a trite Law that in criminal proceedings the onus of proof rests entirely on the state from the beginning to the end meaning that the state must prove the elements of the offence BEYOND REASONABLE DOUBT.
   

LAW ON NO CASE SUBMISSIONS

10. The law in relation to No Case Submission is well settled in our jurisdiction as per the case of The State v. Paul Kundi Rape (1976) PNGLR 96. In the case of Ropa Pep v. The State (No.2) (1983) PNGLR 287 the Supreme Court followed the principles pronounced in Paul Kundi Rape (supra). Principles followed are that:
    
    • (a) Where in criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the question for the judge as a tribunal of law is whether the evidence supports the elements of the offence.
      
    • (b) Where the tribunal decides there is no case to answer the accused is acquitted and that is the end of the matter.
      
    • (c) 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 scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.”
      
11. It follows therefore that where an accused makes a no case submission, the court should make a finding of a case to answer where;
    
    • (a) There is no evidence to establish an element of the offence; or
      
    • (b) There is some evidence covering the element of the offence charged with but it is so incredible or discredited that there is a mere scintilla of evidence and hence could not be accepted as persuasive by any reasonable person. If this court makes neither of those findings, it should find there is a case to answer. The test is not whether on the evidence as it stands, the accused ought to be convicted, but whether on the evidence as it stands, accused can be lawfully convicted.
      

DEFENSE SUBMISSION

12. Defense submission is that the facts and circumstance are before the court. Deceased was picked up by the members of the mobile squad who were on operation in Lorengau. Deceased was initially picked up at Ward 2 and taken to Lorengau police station but he escaped sometime later and recaptured at Lorengau market and taken back to the police station.
    
13. Defense submits that during the first apprehension deceased was assaulted by members of the mobile squad hitting him with stone. The members of the mobile squad were Francis Lamei, Mark Moina, Alex Aring and Aipe Gene. These persons were charged together with accused Selwin Orosota for murder of the deceased. However Selwin Orosota’s charge was separated from the rest.
    
14. Deceased was drunk at that time and acted in a disorderly manner and it would seem that when he was apprehended he was assaulted by the members of the mobile squad. Accused’s part was only at the police station. Therefore the question is whether accused assaulted the deceased in the manner which contributed to the deceased’s death bearing in mind the charge being for manslaughter.
    
15. From medical report deceased died of head injuries. Court should find whether accused assaulted the deceased and whether the assault was to the extent which could have caused death of the deceased.
    
16. Two witnesses testified against the accused. They are Senior Constable Frank Guka and Constable Barbara Leslie. They were both on duty at the Lorengau police Station at the time of the incident.
    
17. Defense counsel urged the court to apply the second leg of the principle pronounced in Paul Kundi Rape (supra) and use its discretion to stop the case at the stage on the basis that the oral evidence of the two state witnesses mentioned above lacks weight and credibility. Their evidence has no real weight for accused to be called to answer to the charge.
    

Evidence of Frank Guka

18. Defense counsel submits Guka’s evidence lacks credibility and is highly questionable. State has invoked Sections 7 and 8 of the Criminal Code. He (witness) was a party to the incident and could have been an accomplice during and after the offence. He was in-charge of the station at that time and could have stopped the assault. He could have made the members of the mobile squad account for their actions. He could have prevented the deceased from escaping from the police station. When deceased was assaulted at the police station the second time he could have stopped them but he did not do anything to stop the assault. He denied he was the duty MCO. He had something to hide. There is no weight and credibility to his evidence.

Evidence of Barbara Leslie

19. Defense submits her evidence also lacks weight and credibility. Her evidence and that of Frank Guka have two sets of evidence, oral and written statements. Their evidence show deceased died from assaults.

20. Defense further submits identification is an issue – witness evidence lacks credibility as to the identity of the accused. Therefore court should stop case at this stage.

STATE RESPONSE

21. State submits it is settled law that consideration of weight and credibility of evidence at this stage is not relevant. Court must consider hearing of defense case to determine weight of evidence.

22. State further submits elements of charge have been established. Issue of identification had been established. Court can lawfully convict based on evidence given thus far by two state witnesses. These two witnesses have testified that defendant was there and he participated in the assault of the deceased, they know the defendant. Under Section 7 of the Criminal Code he is guilty of the charge.

COURT DECISION

23. Paul Kundi Rape’s case is the authority on No Case to Answer Submissions. Principles pronounced in this case have become settled law in our jurisdiction. The question for the judge as a tribunal of law is whether evidence supports the elements of the offence. It is not in dispute that deceased died as a result of being assaulted by the police, that element is established. State evidence further show that deceased died under circumstances which did not constitute willful murder, murder or infanticide. Hence this element being established too. Lastly the identity of accused is not in dispute, State’s evidence show accused was clearly identified by the two police officers who were on duty at that time and were able to identify the accused involved in the assault of the deceased, hence all elements of the offence have been established, therefore the accused has a case to answer. Furthermore the credibility of states evidence must be put to test and accused given the opportunity to give his evidence in his defense. Therefore the trail must continue. Hence no case submission refused.

Public Solicitor: Lawyer for the Applicant/Accused
Public Prosecutor: Lawyer for the State