State v Kombi [2022] PGNC 156; N9538 (9 February 2022)

N9538

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 31 OF 2019

BETWEEN:
THE STATE

AND:
DONAS AWA KOMBI

Wewak: Rei, AJ
2022: 2^nd, 7^th & 9^th February

CRIMINAL LAW – PRACTICE & PROCEDURE – no case submissions – no witnesses appeared to give evidence – witness advice of trial date 7 days previous – police investigation officer only witness – no eye witness gave evidence – whether the accused has case to answer – case dismissed.

Cases Cited:

The State -v- Laseboase Kuriday (1981) N300
The State -v- Roka Pep [1983] PNGLR 19
The State -v- Aige Kola [1979 PNGLR] 620.
The State -v- Paul Kundi Rape [1976] PNGLR 96

Legislation:

Criminal Code Section 300 (1) (a)

Counsel:

Ms. T. Aihi, for the State
Mr. S. Parihau, for the Defence

09^th February, 2022

1. REI AJ: The call-over for Wewak, East Sepik Province was held on 2^nd February 2022 after the opening of the Legal Year on 1^st February 2022.

2. During the call over on 2^nd February 2022, both Ms. T. Aihi for the State and Mr. S. Parihau agreed that this matter be set down for trial commencing on 7^th February 2022 which trial should commence after bail review.

3. At the call-over, Ms. T. Aihi submitted that she will call three (3) witnesses to give evidence.

4. The matter came on for trial at 11:00 am on 7^th February 2022 after the bail review.

5. When the Court attendant called out for the first witness to give evidence, there was no response.

6. Ms. T. Aihi then made an application the matter be adjourned for 5 minutes to enable her to ensure attendance witness.

7. An adjournment was allowed to 1:30 pm but no witness had appeared.

8. Ms. T. Aihi made a further application for a 5 minutes adjournment. I allowed her 10 minutes.

9. When the matter resumed at 2:00 pm, Ms. T. Aihi submitted she will call one witness, a Senior Sergeant Wesley Kongo, to give evidence as to the reasons why witnesses could not attend.

ARRAIGNMENT

10. Prior to the adjournment to 1:30 pm, the accused was arraigned in which the charge laid under Section 300 (1) (a) of the Criminal Code was read as well as the brief facts to the accused.

11. The accused entered a plea of not guilty and said he relies on the defence of self defence. Mr. S. Parihau defence Counsel submitted the plea was consisted with his instructions.

12. Briefly, the charge reads that the accused murdered a Anton Caspar on the 26^th of April 2018 at Hagama Village, Yangoru District, East Sepik Province with the use of a bush knife.

13. The State alleged that an argument erupted between the deceased and the accused in which the deceased blamed the accused for the alleged loss of his timber. The accused being angry with the deceased took a bush knife and went into the cocoa garden. He was then followed by the deceased.

14. The State alleged further that it was in the cocoa garden that the accused slashed the foot of the deceased; not a vulnerable part of the body like the head or chest or face area (of the body), on 26^th April 2018 as is alleged in the indictment.

15. The State did not call any other witnesses to testify against the accused especially first hand evidence of those who may have witnessed the incident. Although Ms. T. Aihi stated in her opening address that the medical practitioner who inspected the deceased would come to give evidence, that witness was not called.

EVIDENCE OF SNR SGT WESLEY KONGO

16. Snr Sgt Wesley Kongo was a Senior Constable at the time of the incident. He investigated the matter by collecting evidence from witnesses, taking photographs and drawing a sketch of the crime scene.

17. At the time he gave evidence, he had been promoted to Snr Sergeant.

18. Ms. T. Aihi stated in her opening address that this witness was to (and did) give evidence as to why the other witnesses could not come forward to give evidence.

19. In examination in chief, he was asked to give an account of the reasons of the failure of witness.

20. He stated that the witnesses did not come because the son of the accused was murdered on the 6^th of February 2022, the night before and, as they are relatives, they could not come.

21. No real evidence by way of documents were provided nor any eye or independent witnesses from the village were called to testify on the veracity of this evidence.

22. Mr. S. Parihau for the defence cross examined the witness by putting it to him that according to the document he prepared dated 25 June 2018, the death occurred on 25^th April 2018 and not the 26^th of April 2019.

23. The witness was indeed confused and could not ascertain in evidence when exactly the death occurred.

ISSUES

24. The issue is whether there is sufficient evidence for me to allow the accused to give evidence in his defence, should he choose to do so.

25. The issues that arise from the evidence given by Snr Sergeant Wesley Kongo include:

(i) the date on which death occurred – 25^th or 26^th April 2018;
(ii) whether the injuries inflicted on the foot were life threatening such that death was imminent;
(iii) identity of the accused as the Statement of Facts reads ”that when the accused took his bush knife and went to the cocoa trees, the deceased followed....” It does not say an eye witness saw him inflict the wounds in the cocoa garden;
(iv) identification of the deceased by a close relative.

26. These issues remain unresolved because no independent witnesses gave an account on them.

NO CASE SUBMISSION

27. On the 8^th of February 2022, Mr. S. Parihau for the defence made a no case submission. That the case be stopped as there is insufficient evidence to warrant the continuation of the trial. Ms. T. Aihi for the State submitted that while the defence of self defence is relied on the answer to Q29 of the record of interview implicates the accused. She however conceded there is no evidence such that the trial continues.

28. The defence relied on the cases of The State -v- Laseboase Kuriday (1981) N300, The State -v- Roka Pep [1983] PNGLR 19, The State -v- Aige Kola [1979] PNGLR 620. These cases generally say that an accused person is not to be called upon to give evidence in his defence if the prosecution fails to prove beyond reasonable doubt that he has a case to answer.

29. Mr. Parihau specifically cited the case of The State -v- Paul Kundi Rape [1976] PNGLR 96 in which the Court said that “[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 tribunal.”

30. The evidence as given by Senior Sergent Wesley Kongo falls within the scope of element”(s)” of the decision in the Paul Kundi Rape case. Indeed, the elements of the charge of murder have not been proven beyond reasonable doubt.

31. It is on the basis of the above reasons that this case be dismissed forthwith.

32. The orders of the Court are that:

(i) The accused is acquitted of the charge of murder laid under Section 300 (1) (a) of the Criminal Code
(ii) The accused be forthwith discharged from Boram CIS.

________________________________________________________________

Public Prosecutor: Lawyer for the State

State Solicitor: Lawyer for the Defendants