PAPUA NEW GUINEA
[IN THE DISRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]

SUM 74-79 of 2021

BETWEEN

POLICE
(Informant)

AND

KENNY MAYANI, LYNUS WAMPAI & ALBERT MUTUMAP
(Defendants)

Vanimo: B. Fehi
         2021: 07th May

CRIMINAL SUMMARY: No case submission – all accused persons denied charges of threatening words and insulting words pursuant to Section 7 (b) of the Summary Offences Act – at the end of the police case accused counsel made no case submission – Principles in the case of State v. Paul Kundi Rape applied – nothing in the evidence as presented establish all the elements of the offences against Lynus Wampai – first test not satisfied with – No case to answer submission sustained for accused Lynus Wampai – accused Kenny Mayani and Albert Mutumap have respective cases to answer- both tests satisfied with – sufficient evidence produced requiring them to answer to the charges – Accused Lynus Wampai be removed from the Police Information

Cases cited:

i.		State v. Paul Kundi Rape [1976] PNGLR; and
ii.		The State v. Boana Bonat [2016] N6217

Legislation:

•	Summary Offences Act

Representation:

Snr. Constable C. Manbo for the Prosecution

M. August from M. Smiley Lawyers for the Defendants

RULING ON NO CASE TO ANSWER SUBMISSION

07th May 2021

1.	FEHI. B DCM: Defendants stand charged before me jointly for the respective charges of threatening behavior and insulting words pursuant to Section 7 (b) of the Summary Offences Act. Matter was trialed and after the close of the Police case, defence made this no case submission. 

RECORD OF PROCEEDINGS

2.	Sgt. Musai for the prosecution on 26th April 2021 presented two Police Information documents before me bearing Summary File Number: 74, 75, 76, 77, 78, & 79 of 2021. I arraigned the defendants on both the information and they all respectively denied the charges. Matter was then set down for trial and adjourned to 05th May 2021, however, due to the reasonable non availability of Police witnesses matter was further adjourned to 07th May 2021. Trial thereafter commenced as scheduled with prosecution calling three witnesses to testify for the Police. At the closing of the Police case, Mr. August for the Defendants made an oral no case submission to which I handed down a brief oral ruling. 

3.	I now provide hereunder the full ruling on the no case submission.

POLICE SUMMARY OF FACTS 

4.	On Tuesday 08th December 2020 between 1:35pm to 2:00pm the defendants were all at Vanimo Town within the vicinity of the Provincial Administration building complex, Vanimo Green District, West Sepik Province. It was on that mentioned date and time they met up somewhere in Vanimo town and discussed about their suspension, during which, Kenny Mayani took a hammer from the back of the Provincial Fisheries vehicle and walked to the Provincial Administration office with some timbers and nails. He went into the building and made his way to the Provincial Administrator’s Office. He was at all material times accompanied by Lynus Wampai and Albert Mutumap. They then threatened and swore the Administrator’s Secretary namely Mrs. Rose Thomson and ordered her to leave her work station and get out from the Provincial Administrator’s Office front desk. They threatened her by saying “Yu Kam aut hariap lusim displa office! Nogat bai mipla paitim yu”! She replied and they responded with swearing “Fuck! Kan!” All these happened while she was still at her work station inside Provincial Administrators Office.   

PRINCIPLES OF LAW APPLICABLE IN A NO CASE SUBMISSION

6. 	The principles governing no case submissions were developed from case laws, formulated overtime by the higher courts. The principle firmly took shape in the much celebrated case of The State v. Paul Kundi Rape [1976] PNGLR, from then until now, this case is synonymous with this principle. With respect to the development of this principle by judges over the years, I consider the judgment of Justice Murray in the case of The State v. Boana Bonat [2016] N6217 to be best suited for my borrowing and application, that is, in the context of the District Courts were emphasis must be placed on explicit contents easy for the users reading and understanding. 

7.	I borrow and apply as relevant the following paragraphs of Her Honor’s decision:
	
	“22.	The case of State v. Paul Kundi Rape [1976] PNGLR 96 sets out the test or 					principles for the Courts in our jurisdiction to consider when hearing an 					application for no case to answer. That was confirmed in the Supreme Court case 				of State v. Roka Pep (No.2) [1983] PNGLR 287. That remains the law to date.

	“23.	In Paul Kundi Rape case, the court said:

			“Where there is a submission of a no case to answer at the close of the case of 					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 he could lawfully be convicted. This is a question of law to be carefully 					distinguished from the question of facts to be asked at the close of all the 					evidence namely whether the prosecution has proven its case beyond 						reasonable doubt.”   

	“24.	And in Roka Pep (No.2) the Supreme Court per Prat J said:

			“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 to only a scintilla and thus could not be 				accepted as persuasive by any reasonable person.” 

	25.	Prior to the Supreme Court case of Roka Pep (No.2) Kearney DCJ, in the State v. 				Lasebose Kuriday (1981) N300, applying the tests set out in Paul Kundi Rape said:    

			“The nature and purpose of a no case to answer submission raises a question of 				law. A no case submission should be upheld in two situations. First if there is no 				evidence or no more than an iota of evidence to support one or more of the 					elements of the offence. Secondly, if there is more than an iota of evidence, but 				the Judge really has no weighing of the evidence to do by reason of the State’s 					evidence being so tainted or so obviously lacking in weight or credibility that no 				reasonable tribunal of fact could safely use it as the basis of a conviction.” 

8.	I will deal with the present no case submission using the above explanation as a guide for my application. 

THE OFFENCE   
	
9.	As alluded to, all charges were brought pursuant to Section 7 (b) of the Summary Offences Act. This section reads:

	7. Provoking A Breach of the Peace.

	A person who – 
	
	(a)	uses threatening, abusive or insulting behavior; or
	
	(b)	uses threatening, abusive or insulting words; or………….(extension not 			relevant)

10.	The Police as per the above provision have called 3 witnesses who individually gave evidence on oath. I will briefly state hereunder the police case and apply the no case submission test and weigh it against the submission of the defence counsel.

THE POLICE CASE 

11.	In brief, Police key witness Mrs. Rose Thomson gave oral testimony that on the 08th December 2020 between the hours of 1:00pm to 1:30pm she was stationed at her usual work area within the Provincial Administrator’s Office main reception. The three defendants approached the area where she was and forced her to leave the work station. She asked if she could be given time to remove her bag and phone from the office but they aggressively demanded her to leave by saying “yu kam aut hariap, sapos u no mekim ba mipla paitim yu”. They also swore at her by saying “Fuck Kan”. After all these she left the Provincial Administrator’s Office and came out onto the main Administration reception area, the defendants than took a timber which they had brought along with them and nailed it to the door of the Provincial Administrator’s Office.

12.	When questioned by the prosecutor, witness confirmed that she knew the three defendants very well and they are like brother colleagues to her. Questioned as to what swearing words they used, witness confirmed them saying “Fuck kan” towards her. Also she was asked to confirm her whereabouts at the time the defendants approached the Provincial Administrator’s Office and she re-affirmed that she was at her work station when they arrived. Further she confirmed that the defendants nailed a timber to the door of the Provincial Administrator’s Office. 

13.	When challenged through cross-examination, witness maintained that the 3 defendants had issues with the Provincial Administrator that was why they approached the office. She agreed with defence counsel that swearing words were not directed at her, however, she clarified that they ordered her to get out and whilst they were in the office they made those swearing words. She maintained that, while in her presence they acted aggressively directing her to leave. When asked as to who amongst the three defendants swore and threatened her she mentioned defendants Kenny Mayani and Albert Mutumap. When asked to be specific she pointed out that defendant Kenny Mayani to be the one who swore at her. Counsel queried as to why it took that long for this matter to be prosecuted before the Court, she replied saying that it was an administrative matter.

14.	Through re-examination, witness clarified that defendant Lynus Wampai was outside the main reception area and that the reason for him to be there she wouldn’t know, only the three of them would know because she was inside the Provincial Administrator’s Office.

15.	The second police witness Mr. Eric Sakin provided supporting oral testimony to Mrs. Thomson by briefly stating that he came inside the office after hearing noises, something like a commission. He then heard voices saying, “Kam autsite lon opis bifo mipla paitim you.” He again heard them saying “Fuck Kan”. He then proceeded to where they were nailing the timber to the door of the Provincial Administrators Office. He saw defendants Kenny and Albert nailing the timber, defendant Lynus Wampai sat outside the couch in the Executive Office. There was also another person with them named Kevin Muriki.

16.	When questioned by the prosecutor as to whom exactly amongst the three defendants uttered the words he heard, he replied saying that he could not tell, he only saw the three defendants.

 17.	When challenged through cross-examination he maintained that during the commotion, he entered the office and saw the 3 defendants, however, he was not sure as to who was the one who swore. 

18.	Witness Jack Ambasi for the Police was disqualified from giving evidence after objection from the defence counsel and I agree that the witness was far removed from the scene of the allegations to be in a position to give quality evidences.

19.	After closing of the Police case, Mr. August, counsel for the defendants orally challenged the entirety of the police case, insofar as each defendant are alleged to have participated in the whole incident. He pointed out through his submission that the police have presented no evidence whatsoever implicating defendant Lynus Wampai and therefore all charges against him be dismissed with him removed from this proceedings.

20.	Senior Constable Manbo for the prosecution replied saying defendant Lynus Wampai was part of the group that entered the Provincial Administrator’s Office and therefore he must also be required to explain his part in the whole saga and should not be removed as there are enough evidence for trial to proceed on all 3 of them.

FINDINGS 

21.	The relevant elements of the offence of provoking a breach of the peace through the use of insulting and threatening words can be reduced down to the following main points:

a)	Clear identification of persons, alleged to have participated or displaying criminal behavior;
b)	The criminal behavior involves the use of insulting or threatening words; and
c)	There must be present on each of the defendants an intention to provoke a breach of the peace.

22.	Simply put, the requirement at this stage is for police to firstly show that they have enough evidence on respective elements of the offences, if they satisfy this test, it’s upon me as a tribunal of fact and law to assess the quality and relevance of these evidences after it being subjected to necessary challenges by way of cross-examination. The test is for me to decide whether the evidences are such that I require the defendants to convince me as to why I should not find established against them each of the element of the offences.

23.	The police in my view have produced clear identification of each defendant. However, they failed to produce clear evidence to implicate Defendant Lynus Wampai as having participated in making insulting and threatening words at all material times of the offence. Police have only produced enough evidence supporting each elements of the offence against Defendant Kenny Mayani and Albert Mutumap.

24.	The defence in my view has not reduced the quality and relevance of the evidence insofar as the respective elements are concerned, for me to invoke my discretion to stop the proceedings and discharged the defendants Kenny Mayani and Albert Mutumap.

25.	I find the police evidence to fail the first test of the no case assessment towards defendant Lynus Wampai, therefore, I will not allow the allegations against him to proceed any further and discharge him from this proceedings. I find there to be enough evidence passing both test against the defendants Kenny Mayani and Albert Mutumap, as such, both will be required to appear and provide evidences to convince me not to find against them the police evidence as it stands.

CONCLUSION   

26.	Defence No Case Submission on behalf of defendant Lynus Wampai is sustained. Defendants Kenny Mayani and Albert Mutumap case will continue for them to give evuidence on their respective defences. 

27.	I hereby make the following orders to satisfy the above findings:

COURT ORDER:

A.	No case submission sustained in favor of Defendant Lynus Wampai, trial to continue with 	Defendants Kenny Mayani and Albert Mutumap;

B.	Defendant Lynus Wampai is discharged from this proceeding, direction issued for clerk 	responsible to remove his name from the court records; and

C.	Bail to be refunded forthwith.