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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 1104 OF 2010
THE STATE
V
LIYA ROY
Porgera: Gauli, AJ.
2011: 12, 13 September
CRIMINAL LAW – Willful Murder – Trial – No Case Submission – State's only witness being the interrogation officer.
The accused stabbed the victim on the side of her back with a sharp kitchen knife that penetrated and pierced the left lung and the spleen causing her death.
Held:
3. A statement put to the accused in a record of interview that the accused intended to cause the death of the deceased, can be regarded as hearsay without calling the witness to confirm it.
Cases Cited
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Roka Pep [1983] PNGLR 287
The State v Aige Kola [1979] PNGLR 620
The State v Lasebose Kuriday [2001] N300
R v Nikola Kristeff [1967] No. 445
The State v Takip Palne of Dumbol [1976] PNGLR 90
Tapea Kwapena v The State [1978] PNGLR 316
The State v Ali Kei Paiya CR No. 478 of 2004
The State v Martin Maso Naipo, CR No. 92 of 2004, 21.06.05
The State v Peter Raima [1993] PNGLR 230
Counsel
Mr. M. Ruari, for the State
Mr. M. Nagle, for the Accused
NO CASE SUBMISSION
15th September 2011
1. GAULI AJ: The accused Liya Roy pleaded not guilty to the charge on the advise by the defence counsel, for the offence of willful murder, charged under section 299 (1) of the Criminal Code Act Chapter 262. It is alleged that she willfully murdered the deceased by stabbing her on her back with a kitchen knife.
2 After hearing the evidence for the State and the submissions from the defence and the State, I rule that the evidence for the state was insufficient and I dismissed the case and acquitted the accused. And I said that I will provide my decision in writing later and this I do now.
INDICTMENT
3 "Liya Roy of Maramuni, Wabag in the Enga Province stands charged that she on the 12th day of March 2010 at Anawe, Porgera in Papua New Guinea willfully murdered one Anjala Mariyo."
THE LAW
4. The law in relation to willful murder as prescribed under s 299 of the Criminal Code Act is as follows:
299 Willful Murder
(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of another person, is guilty of willful murder.
5. The elements for the offence of willful murder are:
(a) The identity of the accused a person.
(b) Kills another person
(c) The killing is unlawful.
(d) There is an intention by the accused to cause the death of the deceased.
6. For the charge of willful murder to be sustained, there must be evidence to prove to the Court that the accused had the intention to kill or to cause the death of the deceased.
SUMMARY OF FACTS
7. On 12th of March 2010 in the afternoon about 12:00, the accused went to Anawe village in Porgera. She saw Anjala Mariyo playing cards with others in Anawe. Anjala and the accused fought over their husband. During the fight, the accused took a kitchen knife and stabbed Anjala on her left back. The knife penetrated and pierced the left lung causing massive bleeding. Anjala was rushed to the hospital but she died before reaching the hospital. The State alleged that the accused killed the deceased and at the time the accused intended to kill the deceased.
PROCEEDINGS
8. During the Call-Over on 14th July 2011 at Baisu Corrective Institution in Mt. Hagen, this matter was fixed for trial in Porgera from 8th to 9th September 2011 during the National Court Circuit in Porgera commencing from the 5th to 15th September. Since I was still conducting a trial on another criminal case on the 8th and 9th September, the proceeding on this matter was stood over to the 12th September for trial. At the trial, the accused entered a plea of guilty. But the Court amended the plea to not guilty through the advice of her lawyer. And the matter proceeded to trial.
EVIDENCE FOR THE STATE
9. The State called the only one witness Senior Constable Joe Italiwe, the investigating officer. His evidence is that he conducted the investigation into the accused in this matter when she was brought into the police station by the officers of the operating team. During the investigation, he obtained the statements from the witnesses, the medical autopsy report and he also took the photographs of the deceased.
10. Doctor Allan Nadal's Autopsy Report dated 16/03/10 (marked EXHIBIT "A") and the 8 Photographs of the deceased taken by the witness Joe Italiwe (marked EXHIBIT 'B1 – B8") were tendered by consent. After the witness was Cross – Examined, the Record of Interview conducted on the 6th of April 2010, was tendered to Court and marked EXHIBIT "C1", the original Pidgin version and EXHIBIT "C2" the English translation.
11. In the R.O. I the accused admitted stabbing the deceased with a kitchen knife but she said that it was done in self-defence. In her answer to Q.39 in the R.O.1, she said:
"I went to the house. I saw the deceased sitting at the doorway of the house. I asked her, where is your husband? The deceased said, your husband went to work. At that time some of his brother asked me, why are you looking for him? I told them, I am looking for my husband, why are you people asking me. The deceased then said, your husband said you have a sick aids so he left you and he is now with me, why are you looking for him. I told her, I am not here to argue with you or fight with you, why are you saying that. One of his brothers came and assaulted me and the deceased got a wood and strike me on my head. While we were fighting, I saw the deceased coming with a knife. I did not have a knife. I saw a small girl with a kitchen knife so I pulled if from her. There were too many people assaulting me, I have no way to escape so I swung the knife when the deceased came at a force towards me and the knife landed in the deceased. The people said I have stabbed the deceased. And I was surprised to hear, I did not mean to stab her. After I heard that I asked another boy to take me to police station because I have committed an offence against the laws. I surrendered myself to police. That's all."
12. The medical Autopsy Report (EXHIBIT "A") stated that the deceased was stabbed on the left chest. The stab would measured 5cm on the left chest just below the tip of the left scapula. There was penetration of the left thoracic and abdominal cavities. The inferior lobe of the left lung was lacerated. The left diaphragm was lacerated 5cm long. There was a laceration at the spleen 6cm long. Massive blood was found at the abdominal and left thoracic cavities. Cause of the death was massive bleeding from the left inferior lobe of the lung and the spleen.
13. The other witnesses failed to appear and the prosecutor closed the case for the State. Above been the only evidence for the State, the proceedings was adjourned to the 13 September for a no case submission by the defence.
SUBMISSION BY DEFENCE
14. The leading case in relation to a no case submission is The State v Paul Kundi Rape [1976] PNGLR 96 which sets out two limps. First limp, the question to be determined is whether or not the evidence as it stands, the accused could lawfully be convicted. The second limp is that even if there is evidence establishing all the essential elements of the charge, the tribunal of law still has the discretion to stop the case there and then because the State's case is so wanting and is so insufficient.
15. The Court can only weigh the evidence once all the evidence is in. But the Court still has the discretion to stop a case and weigh the evidence in very clear cut cases, where the State's case will not improve, see The State v Aige Kola [1979] PNGLR 620 at 622 as per Kapi DCJ. The court may weigh the State's evidence where the State's case is clearly hopeless and intrinsically very weak, see The State v Lasebose Kuriday (2001) N300, as per Kearney DCJ.
16. The State only called the witness Joe Italiwe relating to the R.O.I he conducted with the accused in Pidgin and English. No other witnesses were called. The accused made admissions in the R.O.1. in answers to Q. 39 and Q. 56. In the answers to Qs, 39, 42, 43 and 45 of the R.O.I, the accused raised self-defence which is a complete defence in willful murder under section 269 of the Criminal Code Act. Once the accused raises self defence the onus rests on the prosecution to disprove the defence: refer to R v Nikola Kristeff (1976) No. 445.
17. The State has not adduced evidence to dispute the self defence raised by the accused in R.O.I. The State bears the onus of at least establishing that the accused did not act in self defence. The accused's self-defence may still stand and the force used is lawful even though it caused the death of the deceased: The State v Takip Palne of Dumble [1976] PNGLR 90 and Tapea Kwapena v The State [1978] PNGLR 316.
18. The State relied on the admissions made by the accused in the R.O.I. These were made out of court and were unsworn therefore less reliance should be given, see The State v Ali Kei Paiya, CR No. 478 OF 2004 (Unnumbered and Unreported Judgment of 09th august 2005) by Sawong J, and in The State v Martin Maso Naipo, CR No. 92 of 2004, 21. 06. 05, by Kirriwom J.
19. The State's only witness attempted to confirm the admission made by the accused, but these are only hearsay evidence. No witness to corroborate those admissions of the accused in the R.O.I. The law on hearsay evidence is very clear in The State v Peter Raima [1983] PNGLR 230. Therefore defence submits that his evidence does not establish the essential elements of the offence, that is the killing was unlawful. Even if the court accepts the admissions made by the accused in the R.O.I. the accused has raised the defence of self-defence in the R.O.I. which the State has not adduced evidence to negate this defence. Therefore the accused has no case to answer and the case be dismissed and the accused acquitted.
REPLY BY STATE
20. The State also referred to The State v Paul Kundi Rape [1976] PNGLR 96, in respect to the principles on no case submission. The prosecutor simply submitted that there is sufficient evidence for the accused to answer the charge. All the elements of the charge are present in that the accused was identified, the accused stabbed the deceased, the deceased died and the cause of the death is the assault by the accused. The intention is the matter within the accused mind that may be inferred from other facts like motive, the force of the blow and the part of the body injured.
21. The Court is not bound to weigh up the evidence at this stage unless the evidence is so lacking in weight or so dubious that no tribunal could rely on it. There is some evidence supporting the State's case in the accused own R.O.I. and submit that the evidence is strong.
RULING BY THE COURT
22. In a no case submission at the close of the prosecution's case, the law is well established in The State v Paul Kundi Rape [1976] PNGLR 96 where it was held that:
"Where there is a submission of no case to answer at the close of the case for 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 the 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 proved its case beyond reasonable doubt".
23. This principle has two limps. The first limp is whether on the evidence as it stands he could lawfully be convicted. And the second limp is that even if there is evidence establishing all the elements of the offence, the tribunal of law still has the discretion to stop the case there and then because the State's evidence is so wanting or so insufficient.
24. The only evidence for the State is the R.O.I. tendered through the interrogating officer where the accused seemed to have made some admission that she stabbed the deceased with a kitchen knife. The officer who corroborated at the R.O.I. has not been called to give evidence in Court. The R.O.I. was conducted in pidgin language, the language which the accused speaks and understands. The accused signed the R.O.I, by imprinting her finger print after it was read back to her. This indicates to me that the accused could not read and or write pidgin language. That casts doubt in my mind whether the admissions made by the accused in her R.O.I. were actually her true admissions in the absence of any supporting evidence from either the corroborator of the R.O.I and or from the eye witness who saw the incident.
25. Where the record of interview conducted in Pidgin, in which the accused made some admissions of the offence charged, but the accused person is not able to read the content of the record of interview herself or himself before signing it or placing the imprint of his or her finger print, or the content is read back but the accused refuses to sign, or the accused refuses the content to be read back the accused either signs or refuses to sign the record of interview, such admissions would have less or no weight attached to it, as it been made out of court. In The State v Ali Kei Paiya: CR No. 478 of 2004 (above) Sawong J said:
It is also trite that whilst a record of interview which is not contested in evidence, it is not of equal weight to the sworn evidence. A sworn evidence which has been tested or untested in cross-examination has far more weight that an unsworn statement.
And in The State v Martin Maso Naipo, CR No. 92 of 2004, 21.06.05, Kirriwom J said:
"...the only reliable evidence given under oath and tested in cross-examination is what the accused told the court. That is what must be believed. The court need not place much weight to the accused's record of interview which is an out-of-court statement although tendered by consent of the defence."
26. I do confer what my brother Judges Sawong J, and Kirriwom J, have said and I apply it here. In the absence of the evidence from any eye witnesses, it is doubtful whether or not the accused intended to kill the deceased. One must remember that accused cannot be a witness for the prosecution. The State therefore could not rely on the R.O.I. without the supportive evidence from an eye witness. A statement put to the accused, in the record of interview, that the accused intended to cause the death of the deceased can be regarded as hearsay without calling a witness to confirm it. And hearsay evidence is inadmissible in law. The law is very well stated in The State v Peter Raima [1993] PNGLR 230 where it was held that:
"The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoke. A question of hearsay only arises when the words spoken are relied on testimonially, i.e. as establishing some fact narrated by the words."
27. The R.O.I. stated that the accused assaulted the deceased using a kitchen knife and caused the death of the deceased. But the evidence of intention to cause the death of the deceased has been established. The element of intention to kill must be established by evidence. It cannot be inferred without the evidence from an eyewitness.
28. The accused also raised a defence of self-defence in the record of interview. It is a statutory defence provided for under section 270 (1) of the Criminal Code Act Ch. 262, that a person who assaults another on being provoked and that assault results in death, he is not criminally responsible. This provision states that:
"(1) Subject to Subsection (2), when –
(a) A person has unlawfully assaulted another person, or has provoked as assault from another person; and
(b) The other person assault him with such violence as –
(i) To cause reasonable apprehension of death or grievous bodily harm; and
(ii) To induce him to believe, on reasonable grounds that it is necessary for his preservation from death or grievous bodily harm to use force in-self-defence,
the first mentioned person is not criminally responsible for using any such force as is reasonably necessary to such preservation, even if it causes death or grievous bodily harm".
29. When a defence of self defence is raised the burden of proof never shifts to the defence, the burden always remains with the prosecution to disprove self-defence. In R v Nikola Kristeff (1967) N 445 the pre-independence Supreme Court held that:
"As to the onus of proof, so far as the defence of self-defence and provocation are concern, there is no onus on the defence to establish defence. One a ground is disclosed by the evidence upon which a plea of self-defence may arise, or provocation, it is essential to a conviction of murder that the jury shall be satisfied beyond reasonable doubt that one or other of all the ultimate facts which establish those pleas are not present."
30. I find that the prosecution's case is so insufficient and weak to establish the charge of willful murder against the accused. Even if there is evidence established in the record of interview, the prosecution has no evidence to prove beyond reasonable doubt that the accused did not act in self defence. I find the prosecution's evidence both insufficient and weak. I uphold the no case submission and I acquit the accused of willful murder.
31. I ask myself should the accused be convicted on a lesser charge namely murder or manslaughter. The Section 539 of the Criminal Code Act does allow the Court to convict the offender for murder or manslaughter where a person is originally charged with willful murder.
32. This provision may be applied where the offender is found not guilty of willful murder but the evidence proves otherwise that the offender may be convicted of a lesser charge. Since the State had not called eyewitness to give evidence in Court, I am of the view that it is not necessary to consider any charge lesser than willful murder.
33. For the above reasons it follows that the accused has no case to answer, I find the accused not guilty of willful murder. I acquit the accused and I order that the accused be discharged from custody forthwith.
Ordered as above.
________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused
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