Public Prosecutor v Koroka - Ruling [2006] VUSC 89; CRC 036 2006 (5 December 2006)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal jurisdiction)

CRIMINAL CASE No.36 OF 2006

PUBLIC PROSECUTOR

-v-

NADEGE KOROKA

Coram: Chief Justice Vincent Lunabek

Ms Kayleen Tavoa, the Public Prosecutor
Mr Felix Laumae for the Defendant

RULING ON "NO CASE" SUBMISSION

This is a submission of "no case" to answer. The Defendant, Nadege Koroka, is charged with the offence of Intentional Homicide, contrary to Section 106(1)(a) of the Penal Code Act [CAP.135].

The Defendant pleaded not guilty to the charge and the trial proceeded on that basis.

The prosecution intended to call 15 witnesses. The statement of the father of the victim deceased is accepted and admitted by consent of both counsel. The prosecution called 14 witnesses and their evidence are tested and challenged under cross-examination by the defence counsel.

Section 106(1)(a); (2) of the Penal Code Act provides:

"106. (1) No person shall by any unlawful act or omission intentionally cause the death of another person.

Penalty: (a) if the homicide is not premeditated, imprisonment for 20 years.

(b) ...

(2) For the purpose of subsection (1), premeditation consists of a decision made before the act to make a homicidal attack on a particular person or on any person or on any person who may be found or encountered."

The following are the essential elements of the offence of Intentional Homicide prohibited by Section 106(1)(a) of the Penal Code Act:

(1) A person intentionally caused an act on another person.

(2) The act caused on the other person is unlawful.

(3) The unlawful act caused the death of another person.

At the end of the prosecution case, the defence counsel made a submission of no case to answer and the Public Prosecutor provided a response submission. I have the benefit of hearing, reading and considering their submissions. I have also the benefit of reading and considering the notes of evidence in the Court file records. I have observed the witnesses and their demeanour in the witness box. I have also seen and considered the exhibits provided in support of the prosecution case.

I have relied on the authorities submitted in the case of PP v. Samson Kilman & ors, [1997] VUSC 21; Criminal Case No.17 of 1997; PP v. Siba Yamanga & Lichie David, [1999] VUSC 37; Criminal Case No.07 of 1999.

The approach to be taken when the defence made a submission under Section 164(1) of the Penal Code Act is laid down on those cases.

In essence, the test to be applied is as follows:

On the strength of the evidence so far laid before the Court, whether a reasonable court could convict the accused person, as a matter of law, on the strength of such evidence.

In the present case, there is evidence that a person died on 20 August 2006. There is evidence that the death of the victim was caused by the unlawful act of another person. A sharp object has been used. A clam shell with sharpened edge was exhibited. There were dried blood and human hairs sticking on the shell as a result of the drying process of the blood on the shell. This is consistent with the Medical Report about the sizes of wounds and injuries on the head and on the left forearm of the victim, one on the snuffbox area. The wounds were rugged. They were different from wounds inflicted by a knife. The victim died as a result of loss of blood and shock as shown in the medical examination given in evidence by Dr Sanctus Wari. The act done was unlawful and the seriousness and aggravation of the stabbed wounds indicate the intention of the perpetrator of the assaults on the body of Kathia Tom to cause her death. There was evidence that if believed could make out elements 3 and 2 of the offence on the criminal standard.

The only point of challenge is in respect to the first element of the offence, which is whether or not it was the Defendant/Accused who caused the death of the deceased girl on the 20th August 2006. The prosecution case is based on circumstantial evidence. All the evidence must be considered and assessed together at the end of trial by the Judge as the Judge of fact. However, at this stage, because a submission of no case is made, the Court must be satisfied, as a matter of law, that on the evidence, a reasonable court could convict on such evidence. If so, then, the Court must require the Defendant to put forward her defence.

On 20 August 2006, the Defendant was seen in the nearby area of the crime scene at about 6.00PM. The distance is between 50-100 meters.

There were evidence that Gerald Savoie who was drunk on 20 August 2006 went to Esmie’s house 3 times that day. The last time Gerald was at the yard, was about 6.00PM and Velina gave evidence that she and May took Gerald out from Esmie’s yard. After Esmie, Kathia, Diana and Stellio left on the taxi the evidence is that between 6.00PM and 6.15PM, Kathia was seen running toward Esmie’s gate, opened it and entered Esmie’s yard and got inside the house (Esmie’s).

There is evidence that a woman was assaulting another woman from the bedroom to the living room. The woman behind assaulted the one in front. There was evidence that the woman cried out "AH OH MAMA".

At about 7.00PM, Jimmy Bule saw the Accused at his nakamal Sokale. This was the second time the defendant was seen at the vicinity of the crime scene. This time was at about 50-60 meters. He described the action of the Defendant was strange. She was clearly in a hurry. She seemed to be concerned about something. Jimmy said the Defendant stood at a place before she drunk water and went to the toilet room for a short period of time. On next day (21 August 2006) Jimmy saw blood drops at the place where the Defendant was standing. He also found blood at the bottom of the sink in the toilet room. The evidence is that although there were few people, the Defendant was the last person to use the toilet room on the night of 20 August 2006.

Is the blood connected with the unlawful act causing the death of the victim, Kathia Tom?

It is a reality that there is no blood test carried out to show that the blood found is human blood. However, in the absence of scientific logistic means existing within the police investigation work in this country, a court could, nevertheless, convict if the Judge believes the prosecution witnesses and that the evidence of blood taken and considered together with other pieces of evidence before the court and if, on the evidence taken together as a whole, the Judge is satisfied on beyond reasonable doubt that the only rational inference and logical conclusion left for the court to draw on the evidence, is that the accused is the assaulting woman, then, a reasonable tribunal could convict on that evidence.

In the present case, the Accused was nearby the crime scene. She was seen before the commission of the crime. She was seen after the alleged crime. There were blood drops on the place of the nakamal where she was standing on 20 August 2006. She was the last person seen to use the toilet room in which the sink was. There was blood at the bottom of the sink.

The evidence (Ishmael Tabianga) is that on 20 August 2006 at about 7.00PM to 7.30PM o’clock, at Esmie’s house, where the alleged murder took place, a woman chased another woman from the bedroom to the living room. This evidence was corroborated and supported by other evidence which are consistent with it (Esmie, Diana, Stelio, Velina, Franco and Dr Wari).

The chasing woman assaulted the other in front from her back. The evidence established the noise, the cries at that time. The woman in front cried out "Ah Oh Mama" and then felt. The victim was covered with lots of blood. Tabianga’s evidence described the assaulting woman to be shorter than the one in front, not too fat; not too thin but "hemi stret nomo". This description does not fit Velina, Esmie, nor Diana. There was no other woman seen that night in the vicinity of the crime and the description given is not so dissimilar to the defendant’s.

There is a case made out against the Defendant, Nadege Koroka. The Defendant is, therefore, required to put forward her defence.

DATED in Luganville, this 5th day of December 2006

BY THE COURT

Vincent LUNABEK
Chief Justice