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State v Kivong [2008] PGNC 270; N3892 (20 May 2008)

N3892

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO. 929 of 2005 & 930 of 2005

THE STATE

V

MICHAEL KIVONG AND MICHAEL BUTA

Bialla: Kandakasi, J.
2008: 19th - 20th May

RULING ON NO CASE SUBMISSION

CRIMINAL LAW – PRACTICE & PROCEDURE – No case submission – Second limb under State v Paul Kundi Rape [1976] PNGLR 96 – Direct evidence on issue for trial from alleged State witness - Serious inconsistency in State's case – Effect of – Accused having no case to answer.

Cases cited:
The State v. Paul Kundi Rape [1976] PNGLR 96

Counsel:

R. Luman, for the State
T. Gene, for the Accused

20th May, 2008

1. KANDAKASI J: The two of you stand charged with one charge of willfully murdering a child namely Fiona Bumale. You denied committing the offence, thereby raising the issue of your identification as the persons who committed the offence.

2. At the end of the prosecution case, through your learned counsel, Mr. Gene, you made a no case submission. You made your application under the second limb of The State v. Paul Kundi Rape [1976] PNGLR 96. The basis for your application was that, the evidence adduced by the State though it covers the issue for trial which is one of identification, it is not sufficient to enable the Court to find that you have a case to answer.
   
3. When a no case to answer submission is made under the second limb as in this case, the question to ask is, whether on the evidence as it stands you could lawfully be convicted and not whether, the Court can be satisfied beyond any reasonable doubt as to your guilt. A no case to answer usually invites the Court to stop the case half way in a criminal trial because of an argument by the defence that the State's case has fallen short of establishing a case for you to answer. In other words, the argument is usually that, the case thus far established by the State is hopeless and would not be improved upon for the State by the defence when the defence goes into evidence. That requires an examination of the evidence adduced not for the Court to be satisfied beyond any reasonable doubt as to the guilt of an accused but rather to decided whether the evidence is weighty and sufficient and that the accused could be lawfully convicted and is therefore necessary for the defence to be called upon to answer.
   
4. In this case, the State called two witnesses, one a supposed eye witness and another, a policeman who carried out investigations into the alleged murder of the deceased. The first witness gave evidence of seeing Michael Buta luring the deceased into Paul Kolele's house with the use of twisties. In the house, both of you held onto the deceased neck, squeezed it, killed her and put her into a chicken feed bag. Thereafter, Michael Buta took the bag with the deceased in it toward the river. This, the witness, said she was able to see by piping into a hole. After seeing that, the witness said she went and set on her veranda and cried and was shacking from shock, yet she was able to follow Michael Buta toward the river and was not able to tell where Michael Buta took the body to. Then she says, she went and did other things.
   
5. The witness spoke of Michael telling her sometime later twice not to tell anyone about what he did and threatened to cut her neck if she does. How did Michael come to learn that the witness saw the two of you, especially when she said you did not see her observing you and later following Michael Buta toward the river? There is no evidence on this. Also, the witness spoke of the two of you telling a Margaret to get out of the house before you proceeded to killing the deceased. Then she speaks of both her and Margaret piping through a hole and see you killing the deceased.
   
6. Further, the witness spoke of Michael Buta sending his wife to fetch her as he had something to tell. She went to Michael Buta's house but when she got there, Michael Buta did not tell her anything. So the witness said she returned. If she was threatened, what become of her fear and shock that day? Did she go with anyone? Where did her strength come from? She spoke of police investigating the murder of the deceased but she did not speak about going to the police during the rainy night in November, testified to by the policeman investigating the alleged murder. If that is correct, where did she get the courage from and what caused her to go to the police in that way? Besides, she demonstrated much reluctance in identifying the two of you in Court after stating clearly that she was under no fear. Why was she so reluctant to freely and readily face you and identify you especially when she said she was holding no fear? She also denied seeing Michael Buta at the field playing with other men or boys as opposed to the policeman's testimony. If we are talking about the same Michael Buta and both witness know him well and all this is happening during broad daylight. Why are there these and other inconsistencies? Furthermore, contrary to the policeman saying he got a blood stained napkin and bush knife some 5 – 6 meters away from the house, the key witness spoke of the police getting into the house and getting some blood stained item. None of those items are in evidence before Court. In any case, the police have not used the aid of finger printing to put both of you or one of you at the scene of the crime committing the offence. Why was the fingering printing technology not used is a matter within the police's own knowledge. In a case like this, finger printing should be a must rather than an option.
   
7. Still further and more importantly, how much time did Michael Buta have to organize the murder of the deceased after coming out of the police cells on the day of the incident in the morning, attending to a mediation process and in the afternoon join the boys and or men playing in the field? If he was in fact involved in killing the deceased, what was his motive to run around within such a short space of time, get Michael Kivong involved and choose to commit the offence in partial witness of Margaret? There is no evidence satisfactorily explaining these things.
   
8. The question then is, what is the effect of all of these? Has the State established a prima facie case against you? Or put another way; is there a case for you to answer? It is trite law that, the State has the burden throughout to establish a case against an accused person before an accused person can be called on to answer it. In my view, this means a clear prima facie case must be made out before the accused could be called on to answer.
   
9. In the present case, I accept that, there is some evidence pointing to you killing the deceased. Unfortunately for the State, however, I find the evidence is so lacking in weight that, I could not easily come to the decision that the State has established a prima facie for you to answer in view of the many questions that remain unanswered, and the inconsistencies that exist. If despite these problems with the State's case, you were called upon to go into evidence, it will not improve the State's case. It will therefore be a waste of the Court's time and unnecessary trouble for you to go through that process. Accordingly, I am of the view that, the case must end here with a decision that you have no case to answer. Hence, I uphold your no case to answer submission. Consequently, I order that the charge against you be dismissed and you be acquitted forthwith. Further, I order that your bails be refunded on provision of your respective bail receipts.
   

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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused