State v Kubiha [2019] PGNC 244; N8011 (9 July 2019)

N8011

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 859 OF 2018

THE STATE

V

IVAN KUBIHA

Kerema: Koeget, J
2019: 09^th July

CRIMINAL LAW- Indictable offence – Murder pursuant to Section 300 (1) (a) of the Criminal Code – a trial – No case submission by defence counsel pursuant to the principle in The State –v- Paul Kundi Rape [1975] PNGLR 96, Roka Pep (No.2) [1983] PNGLR 287 - There is absolutely no evidence connecting the accused to the offence charged - accused has no case to answer.

Cases Cited:

The State –v- Paul Kundi Rape [1975] PNGLR 96
Roka Pep (No.2) [1983] PNGLR 287

Held:

There is absolutely no evidence connecting the accused to the offence charged and so he has no case to answer.

Counsel:

D. Mark, for the State
I. Pelaea, for the Accused

9^th July, 2019

1. KOEGET J: INTRODUCTION: The accused is charged with one count of Murder pursuant to Section 300 (1)(a) of the Criminal Code Act chapter 262.

FACT

2. On the afternoon of 1^st December 2016 between 5 o’clock and six o’clock the accused and the deceased Puri Eukaue where at Sorobe village, Turama in the West Kikori LLG, in the Gulf Province. The accused was drinking “tuba”, a locally brewed alcoholic drink made from coconut. A fist fight eventuated between men drinking tuba with the accused and another so bystanders intervened and stopped the fist fight.

3. The accused picked up a coconut husking stick and struck the deceased, who retaliated immediately and hit the deceased with a cane stick knocking him down to the ground.

4. The accused armed with a shot sharp pointed knife stabbed the deceased on the right hand side of the chest and also in the abdomen above the right hip. The deceased collapsed and died due to injuries inflicted by accused.

5. The location of the village where the incident occurred is very remote so no medical report on the deceased was prepared.

Trial

6. The accused pleaded not guilty to the charge and so the trial commenced. The State named on the indictment three witnesses to call in the trial and their names were called outside the court house three times each. None of them appeared so the learned State Prosecutor offered no evidence and closed the case for the State.

7. The learned Defence Counsel made a No Case to Answer Submission on behalf of the accused pursuant to the principle in The State –v- Paul Kundi Rape [1975] PNGLR 96. The submission was based on the first limb of the principle that “there is absolutely no evidence connecting the accused to the offence charged.” The no-case submission succeeded so he was discharged from the indictment. He was ordered to be discharged from the Kerema Police Station Cells forthwith.

ORDERS

(1) The accused is discharged from the indictment.
(2) The accused is discharged from the Kerema Police Cells forthwith.

__________________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Accused