State v Jones [2013] PGNC 84; N5121 (25 February 2013)

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CRIMINAL LAW – No case submission – Both limbs under The State v. Paul Kundi Rape [1976] PNGLR 96 – Evidence not establishing main issue for trial – The spirit of second leg principle considered in light of no jury trails in the country- Case exceptional -No case to answer on charge presented.

CRIMINAL LAW – No case submission – Prosecution evidence conflicting - Essential elements not made out-– Court discretion exercised – No case submission falling under exceptional circumstances- Prosecution case will not improve- Effect off – Accused no case succeeds-Discharged forthwith from CS custody - Effect of—Accused have no case to answer - Accused Acquitted/Discharged.

The State v Adam Kins [2008] PGNC 126; N3479 (4 September 2008)
The State v Angatai [1983] PNGLR 185
The State v Albert Pwame (Unnumbered of 14 & 15 February 2013.
R v B (1969 N561)

The State v. Justin Komboli [2005] PGNC 61; N2891; (23 September 2005)
The State v Wanjil [1997] PGNC 16; N1516 (24 February 1997)
The State v Kabai [1997] PGNC73; N1611 (18 June 1997)
The State v Lotivi Mal, Moses Mal and Katherine Mal [2011] PGNC 184; N4457
The State v Lasebose Kuriday (Unreported) N300 of 8 June 1981
The State v Max Sande Pyasala (June 2010)
The State v. Paul Kundi Rape [1976] PNGLR 96
The State v. Roka Pep (No. 2) [1983] PNGLR 287
The State v Simon Ganga [1994] PNGLR 323

1. GEITA AJ: The three accused persons pleaded not guilty to one count of wilful murder contrary to s. 299 (1) Criminal Code Act, Chapter 262 (hereafter referred to as the “Criminal Code”).

2. The State alleges that on 22 November 2010 at N’dilou island Lorengau in Manus Province the three accused persons caused the death of Nathan Williams during a bride price ceremony. It is alleged that whilst Junior Jones held up the victim from behind and muffled his mouth, Glen Elliot hit him on his back with a piece of iron whilst accused Nolly Boiros Kilepak stabbed the victim on his stomach with a Rambo type knife which caused his death.

3. At the end of the prosecution case Mr. Pokawin for the accused advised court that he would be making a no case application, hence giving State notice of his intentions. On 20 February, Mr Pokawin moved his application via his written submission and asked court to terminate proceeding for want of insufficiency of evidence thus far. I also received a verbal reply from the Public Prosecutor Mr. Camillus Sambua. The State aggressively maintained ample sufficiency of evidence and invited Court to exercise its discretion and allow the case to continue.

4. The law in relation to wilful murder under s299 Criminal Code is in the following terms:

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

6. There is no dispute that the deceased Nathan Mathews died as result of a knife wound of some sort during a bride ceremony at N’dilou Island and that the killing was unlawful.

8. It is trite law that in criminal proceedings the onus of proof rests entirely on the State from the beginning to the end. And the prosecution must prove every element of the charge beyond reasonable doubt.

9. The prosecution’s evidence consisted of 16 exhibits which were tended into court by consent and three oral testimonies given during trial.

10. Column 1 of the table gives the exhibit number, column 2 describes each witness and column 3 summarises their evidence.

Exhibit	Witness	Description of evidence
1	1st co-accused	Record of interview of Junior Jones – denied involvement in the murder – remained silent.
2	2nd co-accused	Record of interview of Glen Elliot – denied involvement in the murder – remained silent.
3	3rd co-accused	Record of interview of Nolly Boiros Kilepak – denied involvement in the murder – remained silent.
4	Doctor	Carried out post-mortem and report on the deceased – observed satured wound of about (5) centimetres under the left hypochondrium which proved to enter the peritoneal cavity- no major organs involved – death caused by shock from severe haemorrhage as a direct result of the injury sustained.
5	Newman Kol Lambai officer	A high school student-Male 19 years old - Saw two brothers and their sister involved in a commotion over some hard stuff- The deceased and him together with other boys went to see what was happening-A lady Jennifer Minol was big mouthing at them and was calling Nathan William’s name when her brother Joe Minol heard her shouting –Joe Minol came straight and put a fight with Nathan Williams for no good reason- Deceased got mad over Joe Minol and threw punches and both started fighting-Joe Minol’s brother Peter Minol came and assisted his brother and they fought the deceased – He went in and pushed Joe Minol away but was held back by Junior Jones-He was removed by his brothers to his house – Did not see what happened to Nathan but left seeing Junior Minol, Peter Minol and Junior Jones with Nathan William-Early hours of the night heard Nathan Wiliam had passed away.
6	Justin Moh	Male 16 years. Around 3pm to 4pm he saw his two uncles Selan Elizah and Timothy Elizah struggling to calm their drunk sister Leah Elizah from disturbing the customary celebrations (bride-price ceremony)- He ran with Nathan William and Kol Lambai to see what was happening when Jennifer Minol began scolding them for being busy bodies- We did not go to fight-As they stood there watching Joe Minol came and punched Nathan and he retaliated with punches – When they were still fighting Joe Minol’s brother Peter Minol came, helped his brother and threw punches at the deceased-He saw Peter Minol putting his hand on Nathan’s neck and pushed him hard into the sand-When he and Kol Lambai saw what was happening they went in and tried to separate them but it was hard – At that time Joe Minol’s uncle (nephew) Ivan Jones came in, held onto Nathan’s neck again and pushed him against a tree nearby causing scratches to his two eyes and breast bone – Nathan saw blood and started punching Ivan Jones – He and Kol Lambai again attempted to stop them fighting – By than village people came and broke up the fighting – Everyone went to their houses – Will not talk about what happened afterwards as he was not there – During the night heard stories that Nathan William had been injured and fell down in front of his grandmother’s house – Does not know who did it – Heard Nathan William taken to hospital and died of his injuries.
7	Dulcie James	Female Adult –– Said it was a long time after the first argument and fight and place was getting dark – Between 6.30 to 7pm she was in her kitchen and saw some youths sitting down and telling stories at the back of the kitchen facing the field – Did not recognise the other youths but saw Nathan sitting down with the boys – From the kitchen she saw Junior Jones approaching the youths seated with Nathan and stretched out to shake his hands – Instead Nathan got up and punched Junior Jones who fell to the ground – Junior Jones did not fight Nathan back – He got up and started running for his house/area – As he was running away he called back saying that he would return with his knife – When Junior Jones ran away, he went and went for good – He did not come back to go and fight Nathan.
8	Kelly Chapau	Male adult – Some minutes after midnight on 23 November 2010 he and his wife went down to the beach – Used his mobile torch light to see their way through – On way to the beach he saw a knife covered with blood lying on the ground next to his flower garden – Did not touch knife and alerted Mr. Shem Komai, Village Court Chairman immediately who accompanied them to where the knife was lying – Shem Komai removed knife, covered it with a piece of cloth and later gave it to the Police the next day
9	Shem Komai	Village Court Chairman for N’dilou village – Woken up form sleep around 12.30 am on 23 November 2010 by Kelly Chapau and his wife to report on finding a knife next to their house – Suspected knife to be the one used in the murder of Nathan Williams - He removed the knife where it was found – He described the knife to be stainless steel with black rubber tied to the handle – Described it to be made in USA – Described the blade to be sharp with sawn rough edges – Noticed knife to be covered with fresh
10	Makis Papi	Male 34 years – Recognized the knife to be his from a mobile photo taken by Pastor Joshua Morris – Knife originally owned by his father and he’s kept it for a long time – Used it twice to go fishing and two weeks had lapsed – Found out that knife went missing as he was planning a fishing trip – Searched for missing knife with his wife for about two weeks (2) – Blamed his in laws for his missing goods – Said Nathan William was his nephew – His aunt’s son. (mother’s sisters son)
11	Pake Tukon	Police Investigator – Corroborator during Nolly Boiros Kilepak interview 0n 2 March 2011 – Refused to read and sign statement - , Corroborator in Glen Elliot interview 4 March 2011 – Refused to sign statement - Junior Jones interview 2 & 11 March 2011- Corroborator Sgt Lynette Watah.
12	Pake Tukon	Visited crime scene, N’dilou Island on 23 November 2010 with other CID members – Took possession of knife from Village Court Chairman Shem Komai around 2pm – Described knife to be a bayonet type, stainless steel, sharp blade, black rubber handle, sawn edges – Visited scene where knife was found – Labelled knife as exhibit – Shown to Makis Papi at Police Station who confirmed knife to be his.
13	Margaret Kumasi	Senior Constable Lorengau Police Station – Charged and laid information against the three accused persons by way of Information for wilful murder - s 299CCA – Charges laid on the strength of other witness statements, court exhibits as the Accused(s) elected to remain silent and very little obtained from them in their ROI.
14	Lynette Watah	Senior Police Investigator – OIC CID Lorengau Police Station – Corroborated in interview of Junior Jones on 11 March 2011 –Accused spoke to his lawyer over phone – Exhibit knife shown to accused but remained silent – Refused to read and sign statement. Interviewing Officer was Sgt Margaret Kumasi -
15	Knife	Alleged knife described as Rambo type knife – Said to be 18 inches long – sharp and pointed – stainless steel – edge sawn – tied with black rubber as handle -
16	Nohuan Daniel	Sketch plan of scene of murder and fatal final run route – place where knife fell of deceased’s body – plan of houses nearby mention in his testimony.

11. The law in relation to no case submissions is well settled in our jurisdiction as per the case of The State v. Paul Kundi Rape [1976] PNGLR 96. The Supreme Court case of Roka Pep v. The State (No. 2) [1983] PNGLR 287 followed the principles pronounced in this case.

"Where in criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the question is for the judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence.

Where the tribunal decides there is no case to answer the accused is acquitted and that is the end of the matter.

Where the tribunal decides there is a case to answer, it nevertheless has a discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it."

12. It follows that where an accused makes a no case submission, the court should make a finding of no case to answer where:

(b) there is some evidence covering the elements of the offence charged but it is so incredible or discredited that there is a mere scintilla of evidence and hence could not be accepted as persuasive by any reasonable person.

13. If this court makes neither of those findings, it should find there is a case to answer. The test is not whether on the evidence as it stands, the accused ought to be convicted, but whether on the evidence as it stands, they both can lawfully be convicted: (Paul Kundi Rape)

14. Mr Pokawin relied on both limbs of The State v Paul Kundi Rape's case. [1976] PNGLR 96. The following cases were also cited in support viz The State v Roka Pep (No 2) [1993 287; The State v John Wanjil (1997) N1516; The State v Max Sande Pyasala (June 2010) and the most recent case The State v Albert Pwame (Unnumbered of 14 & 15 February 2013. Defence counsel also referred the court to the case of The State v John Wanjil (1997) and the English case of Zanetti v Hill (1962) 108 CLR 438.The thrust of the mentioned cases is whether on the evidence as it stands the defendants ought to be convicted, but whether on the evidence as it stands the accused could be lawfully convicted. (Emphasis mine). His principal argument was that the evidence did not in any way connect any of the three co-accused to the murder. There was some evidence that one of them was near the scene of the incident. There was no evidence that any one of them formed an intention to kill Nathan William or any other person. There was no evidence that they acted in concert with the person who murdered the deceased.

13. Mr Pokawin cited to me the case of The State v Lotivi Mal, Moses Mal and Katherine Mal [2011] PGNC 184; N 4457 in which Canning J restated the three elements of wilful murder under Section 299 (1) of the Criminal Code. The three elements are trite hence I see no utility in restating them here as I have done so elsewhere in this judgment.

Defence counsel grouped the State's evidence into six categories and analysed them in this manner viz:

All three accused interviewed and their statement obtained. All opted not to read and sign the statements. All were charged for wilful murder not on the strength of their Record of Interview but on the strength of witnesses and the Medical Report. The suspect's knife being handed over to Police and accepted into evidence did not provide any evidence that linked the knife with any of the three accused.

Confirmed the death of Nathan Williams. Found a sutured wound about five (5) centimetres under the left hypochondrium which proved to enter the peritoneal cavity involving the pancreas but no involvement of the major organs. The onus remains with the State to establish what caused the injury and who was responsible for causing the death.

Suspect knife found on the early hours of 23 November 2010 by Witness Kelly Chapau and wife. Find reported to Chem Koma, Village Court Chairman who took possession of the knife. Described the knife as a stainless steel knife with black rubber tied on the handle. Made in USA. The knife was sharp with sawn rough edges. Noticed knife to be covered in red blood that was still fresh. (No evidence of it when tendered into court as exhibit). Also took possession of two pieces of iron which had blood on them. Items were left at Dulcie James's house and he returned to his house. Senior Constable Pake Tukon confirmed receiving the knife and the two pieces of iron and kept them as exhibits. The two pieces of iron and the knife were not produced as evidence in court by him instead were tendered into court as part of Nahoun's evidence. Nowhere in any statements was the knife or any one of the two pieces of iron identified as having been used to injure the deceased or link with the three accused. No evidence of human blood seen on the knife and two iron rods or even connected to be that of the deceased. No mention of any blood anywhere in the area of the flower garden where the knife was found.

Justin Moh and Newman Lok Lambai testified witnessing a family commotion within the vicinity of the "kastam"gathering. No evidence at all the links the commotion to the three accused and the injury that resulted in the death they stand charged before the court.

Between 6-7pm Dulcie James saw youths sitting down telling stories. Saw Nathan Williams amongst them. She saw Junior Jones walking to the youths seated and extended his hands out to the deceased to shake hands when deceased stood up, punched him and he fell down. She said Junior Jones got up and began running to his house/area. As he was running he called out "You stay. I am going to get my knife and come." He did not return, He went for good. The deceased and his friends dispersed. At about 7 pm or a few minutes after Dulcie James heard the voice of the deceased from a short cut track going towards the house and area of the youth that fought and argued with him resulting in his death. She heard the deceased shout "kaikai Kan" or "eat vagina". She did not hear anyone responding. Then she heard the deceased calling out madly and swearing. And she heard Jennifer Elliot calling out "Leave him alone, my son" And from her house she saw the deceased running along the road towards his house with Glen Elliot running after him. Nowhere in her evidence did she see the three defendant's involve in any way that could have resulted in the manner in which the deceased met his fate.

Witness Judas Ondo Job, between 6 and 7pm was sitting in the "kastam" canvas with his father Andrew Pokpeyil and 12 other people. As it was getting dark he heard shouting from the playing field at the back of the house where the canvas was. The shout was that of a drunk.

The youths in the canvas stood up and ran towards where the shout came from. They were Nolly Boiros Kilepak, Junior Makis, Glen Elliot, Ruben Raras Elliot and Bernard Elliot. During examination in chief he changed the name of Junior Makis to Junior Jones.

After they left Nohuan Daniel came to the canvas and got a scone or buns and was scolded by Judas Ondo Job. He went into the dark area where the boys had run and ate his scone. Judas Ondo Job remained in the canvas with Andrew Minol and other people from Pitiluh and Lou. He said in his signed statement that he saw a man running from the dark area into the light of the coleman lamp in between the houses. He held a piece of iron about a meter long in his hand and running towards the flower bed and the disused water hole. But during examination in chief he said he saw that young man holding into something white stuck on his left side of his stomach. During cross examination he said he was scared of the CID officer and did not mention in his signed police statement. He realized that it was Nathan Williams. He saw Andre Minol run after Nathan when Nathan turned around and swung piece of iron at Andrew Minol. By than he had caught up with Nathan and they both fell down. Nathan than got up and ran to his area. Andrew Minol got up and ran after him. When he saw Paul Williams he fought with Paul. There was no mention of the white something stuck on his left side of his stomach. What happen to it when Nathan William and Andrew Minol bumped into each other? During cross examination he said he went to the victim's house than went to his house. How such inconsistent evidence from Judas Ondo Job could be used to lawfully convict them of wilful murder. I say no.

Paul Williams was sitting on the beach at around 7pm and heard shouts of people saying "kedei ikimet! "kedei ikimet" meaning "kill him "kill him". He ran to the road and saw Andrew Lipson, Glen Elliot, Peter Lipson, Bernard Elliot, Boiros Nolly Kilepak and Junior Joe and they fought with him using a piece of iron and pipe shaped like a hockey stick. Paul William saw someone ran by him and he saw the accused. He said he could not tell who that person was because he was too far away. He heard later that his uncle Nathan William had been stabbed and died. Paul William did not see any of the accused stabbing the deceased Nathan William. He took his assailants to the District Court and was compensated. None of the evidence adduced by the witnesses in this category of evidence connected the injury causing the death of Nathan William to any one of the accused now before the court.

Out of all the state's witness only Nohuan Daniel claimed to see what happened. Of the many people who were present during the bride price "kastam wok" only Nohuan Daniel saw how Nathan William sustained the injury that caused the death. No one else did. When asked if he saw anything happened on 22 November 2010 he said he was not aware what happened that day as he was at the "ples balus". Upon questioning he said later that he was at the bride price ceremony where Joe Minol's house was. If "ples balus" was at Joe Minol's house than he was there during the day.

Between 6pm and 7pm after being scolded by Judas Ondo he picked up a scone and was eating it under Joe Minol's house. While standing there he saw Nathan William running from the field to the house. He saw Nathan William holding onto a piece of iron estimated to be 1 metre long and 2inches in diameter. He saw Nathan run and threw the piece of iron at junior Jones and missed him. Junior Jones than went to the back of Nathan William, held him against his chest and covered Nathan's mouth with his hand. He saw Glen Elliot hit the deceased on his back close to his shoulder with a piece of iron. He also saw Nolly Boiros Kilepak appear from under the house and pushed a knife into the deceased's stomach. The deceased struggled to free himself as Nolly Boiros tried to remove the knife but couldn't. The deceased eventually freed himself from the grip of Junior Jones and ran away with the knife still stuck to his stomach in front of the house and passed the canvas tent when Andrew who was seated under the canvas tent, stood up and ran after him. Andrew bumped into him and the knife fell. He ran on and Nohuan followed him where he fell in front of his mothers' house. Nohuan claimed to hear the deceased's mother asked what had happened when he replied "bagarap" meaning" wrong" and that Nolly Boiros Kilepak stabbed him with a knife.

A total of 14 exhibits were tendered into court by consent including three (3) oral testimonies by the State.

14. Mr Pokawin submitted that with exception of Nohuan Daniels testimony which was not corroborated by other witnesses none of the State's witnesses connected the murder of Nathan William on any one of the accused. Except for Nohuan Daniel no other witnesses identified nor saw the murder. The fishing knife was found 6 hours later at Kelly Chapaus' flower garden with what was said to be blood on it. The substance was not tested to confirm that it was indeed blood and it belonged to the deceased. Only Nohuan Daniel amongst the many people saw the knife pushed into the deceased's body when it fell near the flower garden. Neither him nor anyone else saw him pick up the knife there and then. The knife was tendered into court as evidence without any signs of the alleged blood stains etc. It was perfectly clean with no signs of blood etc.

15 No one else saw Nolly Boiros Kilepak with the knife at any time before, during and after the stabbing. Mr Pokawin speculated that could it be that Nohuan Daniels was the one who had the knife and used it on the deceased? Could he have left the knife at the flower garden after everyone had left? He said the sole evidence of Nohuan Daniels raises more questions than answers hence his evidence cannot be used to convict the accused of wilful murder of the deceased. Furthermore no one else saw the blood on the sand, there was no blood at the vicinity of the murder. He was the only one who said there was blood on the sand but was covered as people ran away from the area. Could this be a cover up Mr. Pokawin submitted.

He said Nohuan Daniels testimony of seeing Glen Elliot hit the deceased whilst Junior Jones was holding him against his chest is practically impossible in that he would have protected the deceased back or he would have been hit by Glen Elliot as described by Nohuan. He submitted further that Nohuans's testimony of seeing Nolly Boiros Kilepak attempting to remove the knife from the victim's stomach as he was struggling to be highly unbelievable. We are here referring to an 18 inch long knife which remained stuck to the deceased stomach when he freed himself and ran.

16. Mr Pokawin submitted that the post mortem finding did little to improve Nohuan's testimony about the stabbing and struggle over the knife. He said there was a 5 centimeters cut which entered the peritoneal cavity and involved the pancreas, No major organs were involved. If indeed there was a struggle the knife would have caused greater damage to the victim as it was 188 inches long and the top end serrated or jaggered. None of those observations were contained in the Doctors findings. Again more questions are raised than answers. Mr Pokawin submitted that Nohuan's testimony of seeing Andrew Lipson bump into the deceased causing the knife to fall off wanting in that neither he nor Andrew Lipson stopped to pick the knife, if indeed he saw it fall. Judas Ondo did not mention about the knife, he said he saw the deceased clasping onto his stomach with some shinning object from his stomach. Be that as it may, and from Ondo's testimony the whole length of the blade surface was imbedded into his stomach with only the handle area showing remains uncorroborated. None of those persons running after the victim including him and Andrew Lipson stopped to pick up the knife.

17. Defence counsel again referred the court to the accused's rights as enshrined under s. 37 (3) of the Constitution and submitted that his clients rights had been breached as they have waited for more than two (2) years in custody awaiting a trial. Mr Pokawin submitted that with the evidence adduced thus far none of his clients could be lawfully convicted each and severally on the killing of the deceased. Furthermore he said that none of them could also be lawfully convicted on the lesser charge of murder or manslaughter and that their no case submission made on their behalf be upheld and the case dismissed.

18. Mr Sambua submitted that, consistent with the principles in The State v Paul Kundi Rape's case, the court should not be asking itself whether it is satisfied beyond reasonable doubt that all elements of the offence have been satisfied. All that the prosecution needs to establish at this stage is that there is some evidence of the elements and it is more than a scintilla and is not shaky and unreliable. He said that on that fatal night the three accused persons aided and abetted each other which resulted in the death of the accused and referred me to the application of section 7 of the Criminal Code.

19. Mr Sambua relied on the second leg of the principle applied in the case of State v Roka Pep (No.2) [1982] PNGLR at p.287. Reliance was also had on the case of The State v Lasebose Kuriday (unreported judgment of Kearney Dep CJ N0. N300 of 8 June 1981. In a nut shell these two cases cautioned the application of the second leg in the absence of jury trials in the country. In a non-jury trial as is the situation in Papua New Guinea the use of the second leg of the principle should be kept at the absolute minimum and that any weighing of the evidence by a court should be only after all the evidence is in. Kearney DCJ (as he then was) in Kuriday's case said if however in very clearly hopeless case where the state is intrinsically very weak, or has collapsed badly it would be the sort of case where the court itself would be considering acting on its own initiative to stop what amounts to a waste of its time and public money. (Emphasis mine).

20. The court was also referred to s.37 (10) Constitution (No person shall be compelled in the trial of an offence to be a witness against himself (R v B (1969 N561). I take note of this line of argument but reject it in light of its relevance in this no case submission. Any adverse inference drawn on why state failed to call other witnesses is a discretionary matter for the State and it has decided against that. Mr Sambua submitted that determination of the guilt of the three accused person can only be done at the close of all evidence and not before and aggressively submitted that the state case was not hopeless. That the accused be called to give evidence. He submitted that witness Nohuan Daniel's was a credible witness and that he saw the three accused attack the deceased and were responsible for his death on 22 November 2010 at N'dilou Island.

21. At this point I asked Mr. Sambua if it was the States' responsibility to ensure its key witnesses be rounded up to give evidence in support he replied that it was and speculated that other state witnesses may have declined to come forward out of fear and their closeness to the parties as they all come from the same community.

22. The knife in question was successfully tendered into evidence with little objection and forms part of State's evidence. Mr Sambua made passing remarks on the rule in Brown v Dunn and cited the case of The State v Simon Ganga [1994] PNGLR 323. No further explanations were given save to say that since the State's evidence were not challenged they remain intact. According to the State the post mortem report remains intact and consistent with testimonies before the court. The testimony of Nohuan Daniel and Dulcie James connected the accused persons to the crime scene Mr. Sambua submitted.

23. On the question of motive, State submitted that the utterances' by Junior Jones that he would return with his knife after being assaulted by the deceased was sufficient to link him to that aspect of the element. Might I add here that the State fell short of continuing on with Dulcie James's testimony in the same breath when she said that when Junior Jones ran he went and went for good and did not come back to go and fight with Nathan. The State has either overlooked this vital piece of evidence coming from its independent witness or has deliberately misled court into believing Dulcie James testimony in State's favour in order to enhance its cause. I consider this omission either deliberate or otherwise to be below the belt and an attempt by State to mislead the court hence caution that this may be bordering on professional negligence, especially an officer of court and of the Public Prosecutor's calibre.

24. The court was referred to a series of cases in support of State submission and the court urged to consider them in exercising its discretion. I have had the benefit of reading two of the case handed up to me by Mr. Sambua of which I am grateful. Others were accessed on Paclii website. The cases include: (Paul Kundi Rape; State v Kabai [1997] PNGLR 160; Roka Pep [1983] PNGLR 87; State v Adam Kini & 1 Other (2008) N3479 12 Sept 2008; State v Angatai [1983] PNGLR 185; State v Roka Pep [1983] PNGLR 90.) In the final analysis Mr. Sambua submitted that this was not a hopeless case in that more than sufficient evidence was now before the court and that prima face established. The court should not stop the case but call upon the three (3) accused persons to answer the charge.

25. At the outset I remind myself that in order for other persons to be convicted there must be findings and convictions on the main perpetrator without which the operation of Section 7 Criminal Code remains futile. I make reference to this as I have been invited by the Public Prosecutor to also consider the imposition of this provision of the Criminal Code.

26. I am indebted to my brother Justice Canning's judgments in general in which he has systematically analysed evidence in those cases. I too adopt some of his processes with variations in this case. Now applying the above assessment, evidence and law to this case it has become apparent that none of the State's witness accounts of what happened on that fatal night appears convincing and credible. I draw inference as follows:

Witness No.1 Paul Williams.
His Evidence.

27. On the evening of 22 November 2010 around 7pm he was at the beach when he heard shouting in their 'tok ples" "Kedei Kedei" meaning "kill him", in N'dilou language. He ran up and saw a group of people including Andrew, Glen Elliot, Peter Lekson, Bernard Elliot, and Boiros Nolly Kilepak. He said he also saw Junior Jones.

28. When he got to them he asked what was happening and Glen Elliot attacked him with a piece of iron but missed. Witness indicates the piece of iron to be 1 meter long with a thickness of 2 inches. He said the second man to attack him was Andrew Lipson and the last men to attack him was Nolly Boiros Kilepak. He said Boiros stood in front of him and hit him on the back. As a result he sustained injuries to his body.

29. The witness than said he saw a man running past him and saw the accused and pointed to Glen Elliot seated in court. He said he did not recognise the man that ran past him.
The witness said he later heard that his uncle Nathan Williams had been stabbed with a knife and died on the spot. He reported his assailants to the police, the matter taken to the District Court and his assailants ordered to pay him compensation save for Andrew Lipson's case which was still pending. During examination in chief the witness said at around 7pm there was still light and the moon was shining in the sky and so there was enough light for him to recognise his three assailants.

31. I ask myself this question. Are there evidence of all elements of the offence of wilful murder that would support the three (3) accused convictions?

32. I answer in the negative as there is no evidence that the three accused did any of the things set out in Section 299 (1) of the Criminal Code and or Sections 7 of the Criminal Code that would make them criminally liable, save the assault occasioned on the witness of which he was compensated. That is all.

33. Witness Paul Williams testimony is of very little utility in the murder charge. He was not an eye witness and his testimony in parts stand hopelessly loose, hardly capable of corroborating any of the State testimonies save to tell the court that he was assaulted. That is all.

34. I conclude in relation to the three accused that there is no evidence that all of the elements of the offence of wilful murder are present hence they each and severally cannot be lawfully convicted as a matter of law. They are entitled to an acquittal.

35. On that day he walked down to the bride price place where his father's relatives were and arrived there around 4-5pm after his wife had returned from marketing in town. He estimated the distance of his house to the canvas tent to be between 500 to 600 meters. (Witness indicated distance from the Courthouse to Lorengau market). Joe Minol's family members and his family members from Pitiluh and Hawei were seated under the canvas tent. Around 6pm they heard shouting from some of the drunks behind the house. Later there was a screaming and boys in the tent with them namely Boiros Kilepak, Glen Elliot and Junior Makis moved outside. He said when they moved out from the canvas tent he did not see them afterwards. He sat there with his father Andrew Minol and heard noises of fighting from the back.

36. At that time Nohuan Daniel came and helped himself to some scone or buns and he scolded him and he left. He said as he went out he did not see him again.The witness said he and his father Andrew were still seated under the canvas tent when they realised Nathan running close to them and he saw him holding onto something white stuck to his stomach. His father heard shouting from outside and ran after him (deceased).

The witness said he stood there and looked when they bumped into each other and fell down. Ondo said he stood and watched and there was fighting in the village. He said that's what he saw with his own eyes and told his story to the Police and signed his statement.

37. During examination in chief he said he heard screaming around 6-7pm. There was light under the canvas and outside was not too dark. The witness said when he heard people fighting he did not go out to the fighting area and said he was standing about 10 meters away when he saw the white thing sticking from the deceased's stomach. When witness was asked to demonstrate the event he willingly did with his left hand clasping onto the knife in his stomach. His right hand dangling onto a piece of pipe as he was running. The witness said when Nohuan Daniel came and got the scone or buns the accused were outside and he did not see them.

Q. 19 At around 6pm on 22 November 2010 can you remember that date and time very clearly?

Q.24 Witness questioned in relation to names of boys mentioned in his statement one of whom was Junior Makis and not Junior Jones replied,

Q.25 So when you changed name from Junior Makis to Junior Jones you told lies to court, true?

Q.29 In your statement to police you said that you saw Nathan William running by, he held onto a piece of iron. You did not mention to Police about the deceased holding onto something on his stomach, only mentioned about pipe, Where did you come up with that story which you demonstrated to court?

A. People were running here and there and I was standing near the canvas confused.

Q.43 Did you hear that Nathan Williams was stabbed in his stomach and was at his house?

39. Further, during Re examination when asked if there were sufficient light he said he could see people but could not recognise them. When asked if Junior Jones was one of the youths who left the canvas tent the witness said he was not one of them. When asked as to how he came up with the name and pointed him out in court, he answered by saying that "there are two Juniors; Junior Makis was with us in canvas. Junior Jones I heard that he was at his house and I heard he jumped out from his house".

40. Again I ask myself this question. Are there evidence of all elements of the offence of wilful murder that would support the three (3) accused convictions?

(1) a person, who the evidence suggests were the three accused, Junior Jones, Glen Elliot and Nolly Boiros Kilepak as prime suspects;

(3) unlawfully, as the evidence suggests that although the deceased initiated the assault his murder was unlawful when stabbed in the stomach by the accused Nolly Boiros Kilepak; and

(4) intentionally, as the evidence suggests that the first person(s) took part in the murder of Nathan Williams..

41. My answers are in the following: No. I can detect none. The three accused were put at the scene of the murder by Nohuan Daniels. His testimony remains uncorroborated, tainted and riddled with inconsistencies though he claims to be an eye witness. I fail to detect any credible evidence, express or inferential that connects the three accused to the death of Nathan Williams. I make inference and observation as follows. His testimony of both men bumping and the falling knife not corroborated, his testimony of deceased clasping his stomach as though holding onto some shining object again not corroborated, his demonstration in court of seeing the deceased dragging himself with one hand (left) clasping onto his stomach and another hand (right) dangling a piece of iron not corroborated. None of the State witnesses nor the more than 20 family members and relatives around that time saw that event. The piece of vital evidence is only peculiar to the witness for reasons only known to him.

42. The Doctor's report only confirms carrying out a post mortem on the deceased. He observed a 5 centimetre sutured wound under the left hypochondrium which proved to enter the peritoneal cavity with no damage to major organs resulting in death caused by severe loss of blood internally.

43. The crucial inference drawn from the doctor's report is that of a 5 centimetre sutured wound. That is all. He made no observations and finding on the nature and extent of the wound. I say this in light of evidence before the court that the knife, which I now call the "killer knife", was about 18 inches long with about say 10 inches cutting surface making allowances for the handle area and jaggered on the ridge or saw like ridges. That was the knife said to be used which was seen stuck fast in the deceased's stomach according to state evidence. Clearly a knife with that description would cause more damage and tear to the deceased's stomach or human body for that matter. The internal major organs in my view would be ruptured and drawn out by the jaggered edges of the knife. That did not happen.

44. Clearly the relevance of this statement is minimal and insufficient to connect the accused to the murder of the deceased save confirm his death. They cannot be lawfully convicted on this type of evidence.

45. He was at a bride prize ceremony on 22 November 2010 and saw what happened that day. Whilst he was eating his scone or buns under Joe Minol's house he saw the deceased running from the field towards the house with a piece of iron rod in his hand. He attempted to hit Junior Jones but missed him when Junior Jones went behind him and grabbed him and covered his mouth. Glen Elliot hit the deceased with a short piece of pipe usually used to weigh down fish when smoking. He said Nolly Boiros Kilepak walked up slowly and stabbed him with a knife and as Nathan struggled he ran through the canvas tent. Andrew bumped him and the knife fell down. He ran on and was followed by the witness and saw him fall in front of his mother's house. At that time his mother enquired and the deceased said "bagarap" and told his mother that Boiros Kilepak had stabbed him with a knife.

46. During examination in chief he said that he was standing about 3 metres away from the deceased when he heard the deceased's final words. The witness indicated that he was standing at a distance of about 6 metres when he saw the stabbing in front of Joe Minol's mother's house and there was ample lighting coming from the coleman light.
The witness said he was able to see the knife and described the knife as, an 18 inches "Rambo type knife" coloured red and blue with handle wrapped with a piece of black rubber. When the knife (MFI 1 & later Exhibit 15) was shown to the witness he realised that his description of its colour was erroneous and he qualified his earlier statement by saying that because it was night time he could not tell the colour of the knife? He further said during examination in chief that as soon as the deceased was stabbed he ran from the kitchen in between Joe Minol and his mothers' house towards the beach, turned around and ran back the same route viz the canvas tent. He supported his testimony with a roughly drawn sketch plan of the fatal run route and was accepted into court (Mark Exhibit 16).

47. When asked during cross examination if he saw anything that happened that day he said he did not know what happened. I quote relevant parts of the cross examination:

Q. 50.Even though place was dark you could see the blue and red colours of the knife?

A. That was during the day I saw the colour of the knife when we went looking for it.

A. I did not see him pick up knife that night when it fell. Only in the morning when we went and VC Chairman picked it up.

Q.57 So you did not tell the truth when you said that the knife fell down from Nathan Williams' body when Andrew bumped him?

Q.59 So you said Boiros Kilepak walked over and pushed knife into the deceased stomach?

A. I saw him try to pull knife out but it was stuck in the deceased's stomach.

Q66. There were many people around that time; did anyone else see blood or only you?

Q.4 You told court that he ran after he was stabbed, around the kitchen, a house and ended up at his mother's house is that correct?( Exhibit 16)

A. In answer witness indicates the running distance to be between 300 to 4oo meters.

49. Again I asked myself this question. Are there evidence of all elements of the offence of wilful murder that would support the three (3) accused convictions?

(1) a person, who the evidence suggests were the three accused, Junior Jones, Glen Elliot and Nolly Boiros Kilepak as prime suspects;

(3) unlawfully, as the evidence suggests that although the deceased initiated the assault his murder was unlawful when stabbed in the stomach by the accused Nolly Boiros Kilepak; and

(4) intentionally, as the evidence suggests that the first person(s) took part in the murder of Nathan Williams..

50. My answers are in the following: No. I can detect none. The three accused were put at the scene of the murder by Nohuan Daniels. His testimony remains uncorroborated, tainted and riddled with inconsistencies though he claims to be an eye witness. I fail to detect any credible evidence, express or inferential that connects the three accused to the death of Nathan Williams. I draw inference and observation as follows.

51. Dulcie James testimony, said to be State's independent witness did little to improve Nohuan Daniels evidence when she said Junior Jones, after being hit to the ground by the deceased, ran away and went for good and never returned to go and fight Nathan Williams. None of the state witnesses connected the deceased's death to the three accused. The murder weapon, the 18inches Rambo type knife said to have been seen falling off the deceased's body upon contact with Andrew was not picked up neither by Nohuan Daniels or Andrew? I ask why? Normal human reaction in such horrific situations such as the one described by the witness would be to stop and get the knife however none of that happened. Furthermore despite the presence of family members and friends totalling approximately 20 persons who were around at the time, according to Nohuan Daniels none of them saw nor stopped to pick up the "killer knife". Andrew, the man said to have bumped into the deceased which caused the "killer knife" to fall off in my view may have shed some light and corroborated Nohuns testimony however he was not called to give evidence. I asked why? If indeed what Nohuan Daniels claims he saw and heard the deceased's final words uttered to his mother before he fell then Nathan William's mother's testimony in my view would provide the key to this whole mystery surrounding his son's death. However the State in its wisdom failed to bring this very important witness to testify. After all she of all witnesses and people within that community for that matter was the one person most affected. She had suddenly lost her son. Most likely than not she would be the first one to come forward and offer evidence. Determined to ensure that his son's killers are successfully prosecuted and goaled. That did not happen. No explanations were given to court whether she was in town or out of the province.

52. The "killer knife", State's primary exhibit was tendered into court as evidence without any trace of blood stains on it. Alter all that was the knife state witness said was covered in blood. There was no evidence before court to suggest that attempts were made to subject it to DNA sampling. Furthermore the two pieces of pipes said to have been used on the deceased by the accused were not tendered into court as exhibits. With all these questions unanswered I ask myself what has happened to the standard practise of safe keeping and the preservation of prime court exhibits? As it is there is clear inference the exhibits were contaminated hence unreliable and unsafe to secure convictions. No explanations were given to court for this discrepancy. To my mind Nohaun
Daniels testimony raises more questions than answers? Simply his testimony remains uncorroborated, tainted and unbelievable.

53. Section 7 Criminal Code provides that it is possible for those who are not the Main perpetrators to be also guilty however there must be some evidence of the wrong committed by that person (s) within the meaning of the provision. Only a single act or omission or a series of them is sufficient in Sections 7 or 8. I find here that there is no evidence that the three accused persons did any of those things. To this end I make finding that since there is no evidence that all of the elements of the offence of wilful murder are present the accused persons cannot as a matter of law be convicted.

Their no case submission is therefore upheld. The three accused persons Junior Jones, Glen Elliot and Nolly Boiros Kilepak are all each and severally entitled to an acquittal.

COMMENT ON THE REMAINING STATE EVIDENCE.

54. Now returning to the remaining statements. (Exhibit1,2,3,5,6,8,9,10.11.12,13,14,15,16) All these statements refer to inconsequential and peripheral events relating to the murder. None of the statements connected any one of the three accused to the murder of Nathan Williams. Inferring from some of their statements there was fighting between some of them and Nathan Williams. For instance Newman Kol Lambai's statement refers to a fight between Joe Minol, his brother Peter Minol and Nathan Williams. Junior Jones came to rescue the deceased from the two Minol brothers assault. This story was corroborated by Justin Mol. He saw the Minol brothers assault and push the deceased's head into the sand. He saw the brothers push the deceased's against a tree causing scratches to his eyes and breastbone. Police charging officer Sergeant Margaret Kumasi in her statement deposed that although much was not said during the Record of Interview she proceeded to lay charges on the strength of other witness statements, medical report and actual exhibits. All of which remain uncorroborated and wanting credibility.

55. The people of this Province are generally peace loving people and this tragic incident has disturbed the peace and tranquillity of the community in N'dilou Island although it's been more than two years now and memories of this tragic event is fading.
A young man in his prime suddenly robbed of his life, a mother robbed of her son and his family likewise lost a member.

56. Three young men have been unnecessarily brought before the court to face a very serious charge, which carries the death penalty. They cooperated with the police as they were suspects and interviewed. They were accorded their constitutional rights and denied involvement in the crime. To my mind the police investigations seems wanting. None of the three men were linked to the murder. A lot more investigation and evidence was required.

57. They were arrested, charged and detained against a scantiness of evidence connecting them to the crime. They were detained for more than 2 ½ years. The police are urged to make every effort practicable to investigate and arrest the prime suspect so that he can be brought before the court, afforded his constitutional rights and dealt with according to law. Failing which they will be doing a disservice to the memory of the deceased and to his family, relatives and friends who are doubtless still enduring this tragedy in their everyday lives.

58. Having canvassed all the evidence, exhibits and other statements put before me thus far at the end of prosecution case I return to the case of The State v Paul Kundi Rape and more particularly The State v Roka Pep [1983] PNGLR 19; (14 February 1983). I take judicial notice of the key principles stated in those two case, discussed earlier and will not repeat discussing them here.

59. In the present case, especially after the close of the State's case, I cannot confidently infer that all elements have been made out and on the evidence presented thus far the accused could lawfully be convicted. I remind myself that this is not a question of fact to be determined at this stage. That question is decided at the end of all the evidence both for the State and Defence.

60. Similarly I caution myself that I was sitting alone as a single trial judge without a jury and addressed my mind to the cautions stated in the application of the second leg in the absence of jury trials in the country. In that the weighing of the evidence within the spirit of the second leg of the principle should be kept at the absolute minimum and that any weighing of the evidence by a court should only be after all the evidence is in.

61. However in the exercise of my discretion I am of the view that there is good reason for this case to be weighed on the evidence presented before me by the State. I consider this case to be an exceptional one and must stop it from further progression into full trial. I am of the view that any further progression of this case will not improve the State's position. I draw inference from the three accused's stand to remain silent during the Record of Interview and lack of admissions contained therein. Reliance is had on the case of The State v Lasebose Kuriday (unreported judgment of Kearney Dep CJ N0. N300 of 8 June 1981 in which Kearney DCJ (as he then was) said and I quote:

"...if however in very clearly hopeless case where the state is intrinsically very weak, or has collapsed badly it would be the sort

of case where the court itself would be considering acting on its own initiative to stop what amounts to a waste of its time and public money. (emphasis mine).

62. The then Chief Justice Sir Mari Kapi when he was Deputy Chief Justice said in the case of The State v Aige Kola [1979] PNGLR 620983) and I quote:

"...this procedure may be followed where at the end of the prosecutions case, it is obvious to a judge that the prosecution case is such that no matter what evidence may be called by the accused, the prosecution case will not be improved beyond a reasonable doubt or to put it differently the prosecution case will not improve. In my opinion, this is where this procedure may be adopted and not otherwise." (Emphasis mine).

63. Accordingly I find that you three do not have a case to answer and the charge against you is each and severally dismissed. I order that you three be acquitted forthwith.

64. I order that you each and severally be released from Lorengau Corrective Institutional and Rehabilitation Service forthwith.

Ordered accordingly.
___________________________________
Public Prosecutor: Lawyer for the State
Kaipu Lawyers: Lawyer for the Accused

National Court of Papua New Guinea

State v Jones [2013] PGNC 84; N5121 (25 February 2013)