N5190

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 362 OF 2008

THE STATE

V

RONALD MADIO

Popondetta: Toliken AJ
2012: 24th & 25th October
 
CRIMINAL LAW – Practice and procedure – No case submission – Wilful Murder – No admissible evidence of killing of deceased by accused – Criminal Code act Ch. 2626, s 299.
CRIMINAL LAW – Defence of accident – Whether defence of self defence is an admission by the accused of the element of killing or material fact alleged against him. 
CRIMINAL LAW –Whether charge can be deemed as establishing or corroborating essential elements of the offence of wilful murder – Whether Section 539 (alternative verdicts) is available – Criminal Code Act Ch. 262, s 539; Criminal Practice Rules .
 
FACTS
The accused was indicted on a charge of wilful murder contrary to Section 299 of the Criminal Code Act Ch. 262. The State called one witness only who testified of having seen the accused allegedly throwing down his 4 month old infant onto the bitumen on the Kokoda Highway. She assisted the infant's mother in stopping a PMV to take the infant to the Popondetta Hospital and later heard that infant eventually died.

The State did not call the mother of the infant or any close relative to verify the death nor did it produce a Death Certificate or a Port Mortem Report. 

Counsel for the State argued, among other things, that (1) the charge in itself establishes or is corroborative evidence of element of killing, (2) that the defence of accident by the accused is an admission of the element of killing and (3) that it is open for the Court at this stage to continue the trial if there is evidence establishing alternative verdicts for murder or manslaughter under Section 539 of the Criminal Code Act Ch. 262.

Held:
 (1) The charge does not corroborate anything at all. It is a mere allegation which cannot corroborate itself or anything for that matter simply because it is not evidence. The argument that it is corroborative evidence is a misconception of the criminal process. It is an attempt to shift the burden of proof to the accused. It runs against the presumption of innocence of an accused person guaranteed under Section 37 (4) of the Constitution.

(2) To postulate that a defence, such as self defence, can be inferred as an admission of an essential element of a charge without further proof by the prosecution or a proper admission under Section 589 of the Criminal Code Act or the Criminal Practice Rules runs against the accused person's right under Section 37 (10) of the Constitution that no person can be compelled in the trial for an offence to be a witness against himself. 

(3) Section 539 of the Criminal Code Act does not avail itself until after the close of the evidence both for the State and the defence. To invoke the provision at this stage of the proceedings is prejudicial to an accused person who is entitled to meet the prosecutor's case on the charges he alleges in his indictment. An accused person cannot be left second guessing what the prosecutor might have up his sleeves nor should the accused be over burdened by what the court might find against him at this stage. If the court has to return an alternate verdict within its powers under Section 539 then it will only do so after it has heard all the evidence both for the State and for the accused. 

Cases Cited
The following cases are cited in the judgment:

The State v. Paul Kundi Rape [1976] PNGLR 96
Paulus Pawa v. The State [1981]PNGLR 498
The State v. Roka Pep [1983] PNGLR 19
The State v. Warun [1988-1989]PNGLR 327

Counsel
D. Kuvi, for the State
L. Mamu, for the accused

RULING ON NO CASE SUBMISSION

25th October, 2012 
1.	TOLIKEN AJ: The accused was indicted with one count of wilful murder. The State alleged that on the 04th day of October 2007 at Double Cross, Popondetta, the accused wilfully murdered one SILAS ISO RONALD thereby contravening Section 299 of the Criminal Code Act Ch. 262 (the Act).

THE ALLEGATIONS

2.	The brief allegations are that on the 04th of October 2007, between the hours of 5.30p.m. and 6.00p.m., the accused and his wife and their 4 months old infant Silas Iso were at the accused's in-law's place at Double Cross.

3.	The accused who was drunk got the infant and walked off to the main Kokoda Highway. Knowing that her husband was drunk, the wife asked the accused to give the infant back to her but the accused refused and an argument arose between them.

4.	In the course of the argument the accused lifted the baby up and then threw it onto the hard surface of the bitumen. The baby died almost immediately from the injuries it sustained. The mother flagged down a passing vehicle and rushed the baby to the Popondetta Hospital. Nothing could be, however, done as the baby was already dead.

5.	The State alleged that the accused intended to kill the baby when he threw the baby onto the bitumen. 

6.	On the 25th of October 2012 at Popondetta I made a brief ruling on a no case submission on this matter. I promised to give full reasons later. This I now do.

THE LAW

7.	The principles of the no case submission are well settled in this jurisdiction. Simply put the accused will have no case to answer if the State fails to establish all or any of the necessary elements of the charge or even if it did, the evidence has been so discredited by cross-examination or so lacking in weight that no court could lawfully convict the accused. The question for the court here is not whether the accused ought to be convicted but whether he can be lawfully convicted on the evidence as it stands: The State v. Paul Kundi Rape [1976] PNGLR 96; The State v. Roka Pep [1983] PNGLR 19. In other words all that the court has to be satisfied of is that the State has established a prima facie case.

8.	The elements of the charge of wilful murder are:

1.	The accused killed a person
2.	The killing was unlawful 
3.	The accused intended to cause the death of the deceased

9.	So on a charge of wilful murder the State must first and foremost establish or furnish evidence that the accused killed the deceased. Once this is established then it will become necessary to establish evidence on the other two elements.

THE EVIDENCE

10.	The State's case consisted only of the accused's record of interview (both Pidgin and English versions) and the sworn testimony of Anna Maris.

11.	Anna Maris testified that on the date in question, about 5.00 – 6.00 p.m., she and sisters were at East Ambogo when she noticed a couple arguing. The man was carrying a baby and was walking ahead of his wife. When they walked past Anna Maris heard the woman telling her husband to give the baby to her. The man, however, kept walking. When he was about 12 meters from her, Anna Maris said that the man threw the baby down to the bitumen. He kept walking away not bothering to look around or back.

12.	Seeing this, the mother ran to the baby. The witness also ran up to assist. She noticed the baby was convulsing, bleeding from the nose and also excreted. They flagged down a passing PMV bus and the mother rushed the baby to the hospital. The next morning the witness heard the news that the infant had died.
 
13.	In cross-examination the witness maintained under very strong suggestions to the contrary that the accused threw the baby down to the bitumen and not just dropping it as suggested to her by the defence.

14.	No medical or Post Mortem report was tendered into evidence. Furthermore no witness was called to verify that the infant had in fact died. 

15.	 So the question is; is there evidence to show that the accused killed the deceased or putting it another way is the child in question in fact dead? What is the evidence?

SUBMISSIONS

16.	Mr. Mamu for the defence submitted that there is no evidence that the child in question was killed by the accused and is in fact dead, either from a witness who saw him dead or by way of a Death Certificate or Post Mortem Report. He argued that the evidence of the only State witness is inadmissible.

17.	The State replied by posing this question: "If the child is not dead, why is the accused in Court?" Mr. Kuvi further said that the fact that the accused is charged for the child's murder is corroboration of the child's death. Thus, he says, there is prima facie evidence of the child's death, hence, the establishment of the element of killing.

18.	Mr. Kuvi further submitted that the accused defence of accident further establishes this element of the charge and raises the question of whether or not the accused could have foreseen the consequences of his actions – i.e. of throwing the child onto the bitumen.

19.	Mr. Kuvi finally submitted that an alternative verdict is available to the Court even at this stage.

20.	In response to this Mr. Mamu submitted the power to return an alternative verdict is not available until the close of both the State's and accused cases. 

ISSUES
21.	From the above the following issues arise for me to determine. These are:

i.	Whether the charge itself establishes or corroborates an Element of Offence.
ii.	Whether a defence of self defence is an admission of the death of the alleged victim without further proof.
iii.	Whether the Trial can continue on alternative charge.

DELIBERATIONS 
(i)	Whether the Charge itself Establishes or Corroborates an Element of Offence.

22.	So does, the charge and the fact that the accused is in court corroborate or establish that the child is dead?

23.	I say that these do not corroborate anything at all. The charge itself is a mere allegation which cannot corroborate itself or anything for that matter simply because it is not evidence.

24.	This argument is a misconception of the criminal process. It is an attempt to shift the burden of proof to the accused. It runs against the presumption of innocence of an accused person guaranteed under Section 37 (4) of the Constitution.

25.	Put simply, the State bears the burden – at this stage – of establishing all the essential elements of the charge, one of which is that the child is in fact dead.

26.	There is no Certificate of Death or a Post Mortem Report. The mother was not called to testify that the infant is dead. No other close relatives were called. There is no explanation why none of these witnesses were called. There is also no explanation why no Death Certificate or a Post Mortem Report was produced or tendered in Court. The effect of this is that the Court may therefore reasonably infer that these witnesses or documents would not have assisted the State' case: Paulus Pawa v. The State [1981] PNGLR 498.

27.	The only State witness' evidence that she later heard from others that the infant was dead is inadmissible hearsay. It is not covered by any of the exceptions to the Rule Against Hearsay. And while it may be seen as part of the res gestae it cannot be accepted in the absence of any direct evidence of the alleged killing.

(ii)	Whether a defence of self defence is an admission of the death of the alleged victim without further proof.

28.	Now is the accused's defence of accident an admission to this element of the charge? Again I say no, it is not and again the proposition that it is, is entirely misconceived.

29.	I say this because whilst Section 589 of the Code and the Criminal Practice Rules (Or. 4 rr. 1-3) allow for admissions by the accused of the facts alleged against him, such admissions if not made in court on arraignment, have to be made in writing by his counsel. The State v. Warun [1988-1989] PNGLR 327. No such admissions were made by the accused on arraignment nor did the accused's counsel provide a written admission to any material allegation of fact including the alleged killing of the infant.

30.	To postulate that a defence such as self defence can be inferred as an admission of an essential element of a charge without further proof or a proper admission runs against the accused's right under Section 37 (10) of the Constitution that no person can be compelled in the trial for an offence to be a witness against himself. 

31.	The upshot of all these is that the State has and retains the burden - from start to finish - to prove its case on the required criminal standard. At this stage, though, it is only required to establish a prima facie case.

32.	So on the question of whether or not the State has established the important element of death the killing of the child, I, unfortunately find that it has not done so.

33.	 The infant may indeed be dead. But where is the evidence to show that? Witnesses who could have been called to testify on this crucial fact were not called. Documentary evidence – Death Certificate or Post Mortem or other medical reports - which would have proved death, were not tendered and there is nothing to explain for this over-sight, if it is an over-sight at all.

34.	The unfortunate result is that this matter cannot proceed beyond this point on any lawful basis even though I am strongly inclined to rule otherwise. And in saying this, I cannot help but comment that this is a travesty of justice - justice which not only requires the innocent to go free but also for the guilty to not go unpunished has in fact miscarried because of the failure of the State to call or introduce the necessary witnesses or documents to establish a crucial element of the charge. But of course the State has to discharge its burden. 

III. Whether Trial Can Continue on Alternative Charge
35.	Now there is one final matter. And that is whether the case, as the State submitted, can proceed nonetheless on the basis that alternative verdicts of murder and manslaughter are available on an indictment for wilful murder under Section 539 (1) of the Code.

36.	The question is moot but does not render itself to be deserving of consideration at this stage because it can only be considered where the evidence has established the elements of the offence charged in the indictment. One cannot be looking at what possible verdicts may be open when the State has not established admissible evidence that the infant in question is in fact dead.

37.	At this stage the court is not looking at what possible alternative charge has been established thus far by the evidence. Rather the question for the court is whether the evidence for the prosecution as it stands has established a prima facie case to support the charge on the indictment.

38.	I am of the opinion that Section 539 does not avail itself until after the close of the evidence both for the State and the defence. To invoke the provision at this stage of the proceedings is prejudicial to an accused person who is entitled to meet the prosecutor's case on the charges he alleges in his indictment.

39.	 An accused person cannot to be left second guessing what the prosecutor might have up his sleeves except what his indictment alleges. Nor should the accused be over- burdened by what the court might find against him at this stage. If the court has to return an alternate verdict within its powers under Section 539 then it will only do so after it has heard all the evidence both for the State and the accused.

40.	This argument is therefore untenable.

41.	For the above reasons I find therefore that the accused has no case to answer and accordingly order that he be discharged forthwith.

Orders accordingly

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