State v Soni [2018] PGNC 588; N7910 (29 October 2018)

N7910

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 761. 762 & 763 of 2015

THE STATE

V

SIMON SONI, TIMOTHY SIMON SONI & KATIO SIMON SONI

Maprik: Gora AJ
2018: 29^th October

CRIMINAL LAW – Not guilty plea – Charge of wilful murder – Section 299 (1) Criminal Code – No case to answer application – Whether to stop trial

CRIMINAL LAW – Not guilty plea – Wilful murder – Group fight – Accused persons seen in the group – Who killed deceased – Offender identified – Offender has case to answer

CRIMINAL LAW – Not guilty plea – Wilful murder – Insufficient evidence against co-accused – No evidence of involvement in the killing – No case to answer – Entitled to be discharged

Cases Cited

State v Paul Kundi Rape [1976] PNGLR 96

Counsel

Mr. A. Kupmain, for the State
Mr. J. Javapro, for the Defendant

RULING ON NO CASE TO ANSWER APPLICATION

29^th October, 2018

1. GORA AJ: INTRODUCTION: The three accused persons SIMON SONI, TIMOTHY SIMON SONI and KATIO SIMON SONI pleaded NOT GULITY to one count of wilful murder of one ALSON PITAU pursuant to Section 299 (1) of the Criminal Code.

2. They pleaded not guilty to an Indictment which is in the following terms:
   

“SIMON SONI, TIMOTHY SIMON SONI and KATIO SIMON SONI all of GWELIKUM village, Maprik, East Sepik Province, stands charged that the said SIMON SONI, the said TIMOTHY SIMON SONI and the said KATIO SIMON SONI on the 15^th day of December 2014 at GWELIKUM village, Maprik in Papua new Guinea wilfully murdered one ALSON PITAU.”

BRIEF FACTS

3. Brief facts are that on Monday 15^th of December 2014 at about 4.00pm at Gwelikum village, Maprik, NORBERT ALSON PITAU started a fight with his wife because she refused to give him money to buy a locally and illegally made alcoholic beverage known as ”Home Brew.” Accused SIMON SONI who is Norbert’s father in-law tried to stop them fighting but Norbert punched him on the nose and the fight went big. Two family groups, the SONI’s and the PITAU’s got involved and in the course of the fight Norbert threw a knife spear at Simon Soni but missed him. Simon Soni then picked up the same knife spear and threw it at Norbert but missed him too and instead hit the deceased ALSON PITAU on the head. The knife spear penetrated the deceased’s head resulting in his death.
   
4. The two family groups involved are closely related, deceased being SIMON SONI’s family brother. Timothy Simon Soni and Katio Simon Soni are Simon Soni’s sons. Norbert is deceased Alson Pitau’s son and son in-law to Simon Soni.
   
5. State alleges that Timothy Simon Soni and Katio Simon Soni were involved in the fight and therefore invoked Section 7 of the Criminal Code as they are principal offenders. State also alleges dangerous weapon, a knife spear was used and the accused persons had the intention to cause the death of the deceased.
   

ISSUE

6. Whether the accused persons have a case to answer.
   

LAW ON NO CASE TO SUBMISSIONS

7. No Case to Answer Submission arise at the end of the prosecution case when all the prosecution evidence has been presented and the defence counsel submits that the evidence is such that there is no evidence in proof of any one or all of the elements of the offence charged and there is no real weighing of evidence required.
   
8. General principle is that court should not weigh up the evidence until the whole of the evidence is in, unless in what is a clearly a hopeless case where the state’s evidence is intrinsically very weak or has collapsed badly.
   
9. The question therefore is two-fold. First, whether at this stage prosecution evidence is hopeless, weak and has collapsed badly. Secondly wether the prosecution’s evidence presented thus far is such that there is no evidence in proof of any or all of the elements of the offence charged and there is no real weighing of evidence required.
   
10. In the case of State v Paul Kundi Rape [1976] PNGLR 96, the court has pronounced the test to apply in respect of No Case to Answer Submissions. It held that “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 the accused could lawfully be convicted.” This is a question of law to be carefully distinguished from the question of fact to be asked at the end of the state’s evidence to be asked whether the accused can be lawfully convicted.
    

EVIDENCE FOR THE STATE

11. State did not call any witnesses to give oral evidence in support of its case but relied entirely on documentary evidence tendered to court by consent.
    

Documentary Evidence Tendered by Consent

12. The following documents were tendered to court by consent.
    
    1. Record of Interview of Simon Soni dated 23/03/15. English & Pidgin versions marked as Exhibit 1A & 1B respectively.
       
    2. Record of Interview of Timothy Simon Soni dated 24/03/15. English & Pidgin versions marked as Exhibit 2A & 2B respectively.
       
    100. Record of Interview of Katio Simon Soni dated 25/03/15. English & Pidgin versions marked as Exhibit 3A & 3B respectively.
         
    4. Medical Report dated 10/05/15 marked as Exhibit 4
       
13. After tendering of these documents State closed its case.
    

NO CASE TO ANSWER SUBMISSION

14. Defence submission on the question of whether on the evidence adduced thus far by the State the accused persons can be lawfully convicted, is that States evidence is entirely based on documentary evidence which is uncorroborated by any other evidence and therefore has no weight and is unreliable, such that the accused persons cannot be lawfully convicted on it.
    
15. Further issue however, is whether the evidence for the state at this stage shows the existence of the elements of the offence of wilful murder, such that the accused persons have a case to answer.
    

THE ELEMENTS OF THE OFFENCE

16. Accused persons are charged under Section 299 (1) of the Criminal Code which provides:
    

“(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other persons, is guilty of wilful murder; (2) A person who commits wilful murder shall be liable to be sentenced to death.”

17. Thus the elements of the offence of wilful murder under these provisions are:
    1. A person who
    2. Unlawfully kills
    100. Another person
    4. Intending to cause his death
       
18. These elements require firstly, that the identity of the accused must be shown. Second, it must be shown that the killing was unlawful. Third that death of a person has occurred and fourth, it must be shown that killing or death was intended, there must be a motive for the killing.
    
19. The question is whether the documentary evidence relied on by the State show proof of one or all of the elements of the offence of wilful murder.
    

BRIEF ANALYSIS

20. Medical Report (Exhibit 4) compiled by Dr Billy Witne shows that deceased had a penetrating wound to the left side of the head which was 20-30mm in diameter. He had a circular depressed skull fracture which was 35mm in diameter. The depression was 5-7cm in length extending from left cerebral hemisphere into mid brain. Medical finding was that deceased died from penetrating skull injury.
    
21. Medical Report is consistent with the Records of Interview of the three accused persons in so far as the injury on the deceased’s head is concerned. Firstly the Record of Interview (ROI) of Simon Soni. At question 28 of the ROI of accused Simon Soni, it was put to the accused that “when you were fighting and among the three of you, who actually speared ALSON PITAU with the iron spear.”
    
22. He replied:
    

“I want to say that while we were fighting my son in-law Norbert throw his knife spear at me and missed me and the knife spear cut me on my hand and I got hold of the knife spear belonging to Norbert I pulled out the piece of iron spear which I tacked it in the side of my trousers and I throw it at Norbert but missed Norbert and the spear landed on my brother ALSON PITAU’s head. I did not mean to spear Alson, I wanted to spear my son in-law Norbert but mistakenly Alson received the spear.”

23. Secondly the ROI of accused Timothy Simon Soni. At question 23 he was asked:
    

“I put to you that when you were fighting and among the three of you, who actually speared Alson with the Iron spear.” He replied: “my father Simon did spear Alson with his piece of iron spear.”

24. Thirdly the ROI of accused Katio Simon Soni. At question 29 the accused was asked;
    

“I put to you that when you were fighting your father speared Alson with a piece of iron spear and Alson Pitau died.”

25. He replied;
    

“Yes during the fight my father threw the spear at Alson’s son Norbert but missed him and the iron spear hit his father Alson Pitau and he died.”

26. All these evidence shows that deceased Alson Pitau was speared in the head by accused Simon Soni with what is described as “Knife spear”, a kind of spear which has a sharpened knife fitted at the end of a shaft or rod commonly used for hunting wild animals.
    
27. So there is no issue of death being caused to another person. Evidence is that Simon Soni speared deceased Alson Pitau in the head with a knife spear who died instantly. He freely admitted to this in his ROI and this occurred in the course of a group fight which was unlawful. Thus the elements of identity of accused, unlawfully killed another person (the deceased) have been shown by evidence for the State.
    
28. The question however is, did Simon Soni intended to cause the death of Alson Pitau or was there a motive for his killing. Intention is an important element relating to the offence of wilful murder. Simon says in his ROI that Norbert threw the knife spear at him but missed and he got the same spear and threw it at Norbert but missed him and instead hit the deceased on the head by mistake.
    
29. State’s argument is that Simon Soni’s intention was to kill Norbert with the spear but when the spear missed him that intention to kill him was extended to the deceased Alson Pitau when the spear hit him and therefore Simon intended to kill Alson Pitau. Hence satisfying the element of intention to cause death of the deceased. I do agree with the State to that extent but as it appears, the spear was directed at Norbert Pitau and not to the deceased. Therefore the element of “intention” or “motive” to cause death of the deceased, in my view is arguable. This in my view can be sufficiently determined after all evidence has been given at conclusion of the trial where the issue of whether the accused Simon Soni could be lawfully convicted is considered. Therefore the trial against accused SIMON SONI must proceed; he has a case to answer. Defence to open its case.
    
30. In respect of the two co-accused, Timothy Simon Soni and Katio Simon Soni, State has invoked Section 7 of the Criminal Code contending that they were involved in the fight during which Simon Soni speared the deceased to death by use of a knife spear and therefore are principal offenders by operation of Section 7 of the Criminal Code in that they aided and abetted each other in the commission of the offence.
    
31. Accused Timothy Simon Soni when asked in the ROI at question 17 of his involvement in the fight, he replied “while they were fighting and I went down and saw it, I have no weapon, I was only in possession of my bush knife.” At question 18 he was asked; “I put to you that when you arrived you helped your brother Katio and you fought with Alson Pitau and family.” He replied; “yes they were six (6) people so I helped my brother.” There is no doubt accused Timothy Simon Soni was involved in the fight; he admitted this in his ROI.
    
32. In respect of accused Katio Simon Soni, he was asked in the ROI at question 19; “I put to you that when you people were fighting your father Simon Soni came and joined you fellows.” He replied; “yes my father came later and joined us.” Meaning he joined them in the fight. There is no doubt Katio Simon Soni was also involved in the fight.
    
33. However, from evidence adduced in the ROI, their father Simon Soni came to the scene of the fight a bit later and a spear throwing fight ensued between him and his son in-law Norbert Pitau, during which Norbert threw a spear knife at him but missed. Simon Soni then picked up the same spear and threw it back at Norbert but missed and instead struck the deceased Alson Pitau on the head, thus penetrating his skull causing death. Simon Soni has admitted this in his ROI.
    
34. There is no evidence to suggest that Timothy Katio and Katio Soni were directly involvement in the killing of the deceased. Although they took part with many others in the group fight between the two family groups, they had no active part in the killing of Alson Pitau by their father Simon Soni, who says he killed him by mistake. I am therefore of the view that State’s evidence does not show existence of all the elements of the offence of wilful murder against the two co-accused. They have to no case to answer and therefore are entitled to be discharged at this stage.
    
35. Accordingly I find that both Timothy Simon Soni and Katio Simon Soni have no case to answer and therefore order that the trial against them be stopped and they be discharged from the charge and to be released from CS custody forthwith.
    

Ordered Accordingly
________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused