N5523
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 310 OF 2012

STATE

V

UBER SEKGEON
JOB SAEN
KEVIN TEKKLINGAN
FIDELIS LOGI
PAUL LOU
MICHAEL MANDES
MICHAEL MONOI
ALPHONSE BATH
PETER VAVIN
Defendants

Kokopo: Oli, AJ
2014: 15th January,

CRIMINAL LAW- PRACTICE & PROCEDURES- Defendants each and severally charge with wilful murder of a deceased Mathias Tevamili - Defendants accused the deceased for killing their relative Steven Makle through sorcery – Deceased was rounded up in his village at Teimtop and brought him to Sampun village – Defendants command the deceased to resurrect their relative deceased Steven Makle through his sorcery magical power –Deceased did not – Defendants very frustrated further assaulted him and he pass on the next day – Defendants pleaded not guilty to the charge – Defendants rely on the legal defence of Alibi.

CRIMINAL LAW - PRACTICE & PROCEDURES - Defendants charge with wilful murder – Plea not guilty – Prosecution seek further adjournment due to principal witnesses could not come from Pomio due to bad weather at sea – Defence objected to further adjournment as this was the final adjournment directed by Court after three vacated trial dates – Court refuse the application matter proceed to trial -State present the indictment to Court –Defendants each and severally pleaded not guilty – State offer no evidence – Case dismissed for want of prosecution and defendants each and severally discharged forthwith

Cases Cited: 
Nil

Counsel

Mr. Lukara Rangan, for the State
Mr. Paul Yange, for the defendants

DECISION

15th January, 2014

1.	OLI, AJ. The defendants each and severally stand charged before this Court on a charge of wilful murder that the State alleges that on 6th December 2011 at Sampun village, in Pomio District, the defendants each and severally did unlawfully assault and caused the death of the deceased Mathias Tevamili, a national male Papua New Guinean thereby contravening section 299 of the Criminal Code Act 1974.

2.	The defendants were charged with wilful murder under s. 299 of the Criminal Code Act 1974 and reads:

299. WILFUL 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 some other person, is guilty of wilful murder.

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

3.	Before the Court invites the Prosecutor to present the formal indictment against the defendants, the Prosecutor seeks leave to make a preliminary application to Court for further adjournment before the Court proceeds on with the matter. The Court grants the leave and Prosecutor makes a verbal formal application for adjournment and informs the Court the reasons and circumstances for such an application at this stage of the proceedings for further and last adjournment.

APPLICATION BY PROSECUTOR FOR FURTHER ADJOURNMENT

4.	State Prosecutor informs the Court to make a preliminary application to seek Courts understanding that he wishes to make an application to seek further adjournment toward the end of the month to allow State witnesses to come to Court and give evidence against the defendants. This is because their travel was affected by rough seas due to bad weather cause by westerly monsoon season at this time of the year.

5.	Defence Counsel object to any further adjournment as this was the final adjournment from the last appearance. The Defence Counsel submit that he can recall that there were two earlier adjournments one by State due to non-appearance by State witnesses and the other by Court due to non-availability of the crime track Judge and so the trial dates were vacated. However, in the last appearance on 9th December 2013 the adjournment was sought by State due to non appearance by State witnesses and now State is seeking further adjournment because State witnesses are not here due to bad weather that causes rough seas that affect the travel by motorised banana boat sea transport was not possible. 

6.	Defence Counsel refers to s. 552 (3) of Criminal Code Act 1974 that defendants are entitled to acquittal if the State Prosecutor fails to present an indictment against the defendants now. Defence Counsel kindly reminded the court that the defence witnesses are present in Court today who have travelled the rough seas through bad weather that the prosecution is referring to where his witness cannot make it to Kokopo for trial. The Defence Counsel submit that defence position on application for adjournment is very clear and defence rest its case on your honours good judgment in considering the interest of justice in view of the defendants being held in custody till now, therefore the trial must commence today as per the agreed trial date.

RULING 

7.	Court having considered the application is mindful of the fact that this was the final adjournment and the matter was set to proceed to trial on 13th January 2014 but stood over to today 15th January 2014 to allow both Counsels to obtain their Lawyers Practising Certificates. In view of defendants being in Custody since their arrest, the case history shows and confirms that three trial dates were vacated and matter adjourned in the past were sought by State and due to crimes track Judge non-availability. The State Prosecutor assured the Court during the last appearance when it sought further adjournment for reasons that the State witnesses were not able to be located in Sampun village for fear of serious repercussion of sorcery if they come to Court and give evidence against the defendants. 

8.	The Defence Counsel vigorously oppose the application for further adjournment as the matter has been adjourned on two separate occasion to vacate the trial dates because State witnesses were not available and crimes track Judge was not available on other official engagement out of the province. During the last appearance on 9th December 2013 before me, I made it very clear to both Counsels that the matter will proceed to trial in the next return date during the Court vacation period and reminded both Counsel to have their Lawyers Practicing Certificate in order to avoid any further delays on the matter and that there will be no further adjournment being sought by either side; be it State or Defence Counsel. 

9.	From the last appearance the matter was returnable on 13th January 2014 at 9.30am for trial. The matter stood over to 15th January 2014 to allow lawyers to get their Practicing Certificates in order when Court returns on 15th January 2014 to proceed on with the matter to go on trial. The State Prosecutor seeks adjournment on 9th December 2013 was due to State witnesses not willing to come for fear of serious repercussion on sorcery against them, if they come and give evidence in Court against the defendants. But this time around, State Prosecutor inform court that their reason for not able to come is because they cannot travel in the rough seas due to bad weather caused by westerly monsoon season that makes the sea travel unsafe. 

10.	However, defence counsel told the Court that his defence witnesses are in Court now and are determined to go on trial who have travelled by sea from the same village where State witnesses are and there is no good reason why State witnesses cannot travel because of rough seas when my defence witnesses can. The defence Counsel stressed the point and reminded the Court that it did made a very bold statement during the last appearance that there will be no further adjournment when matter returns for trial on the next return date and Court, in exercising its discretion, should not deviate from that commitment and that the matter should proceed to trial. 

11.	The State Prosecutors reason for seeking adjournment is because of the rough weather at sea that State witnesses cannot travel the rough seas when defence witnesses can is not a very convincing reason and argument. But foremost is the fact that the Court made the unequivocal direction to both Counsels that matter will go on trial due to its unprecedented adjournment record on vacating trial dates on 23- 26th September 2013 (reason Crimes track Judge not available) adjourned to 9th – 13th December 2913 (reason State witnesses not available)adjourned to 13th – 15th January 2014 and on this return date for trial, State seek further adjournment because State witnesses are not available because they cannot travel the rough seas.

12.	The Court having considered the application by State Prosecutor and the brief response by the Defence Counsel, the Court is mindful of State prosecutors dilemma but Courts' foremost consideration is its commitment to the parties that the matter must proceed to trial; failing the Court in exercising its discretion has no other option, in the circumstances of this case, but to refuse the application by State Prosecutor for further and last adjournment and inform State prosecutor to proceed to trial and present the indictment against the defendants to Court. 

INDICTMENT PRESENTED ON WILFUL MURDER AGAINST THE DEFENDANTS

13.	The State Prosecutor presented the indictment against the defendants on a charge of wilful murder and read the brief facts surrounding the circumstances of the charge. The brief summary of the facts is that there was a death from defendants clan member namely Steven Makle who they believe was killed by deceased in this case Mathias Tevamili through sorcery. The defendants congregated and went to the resident of the deceased at Teimtop village and brought him to Sampun village where they were mourning their dead relative Steven Makle and told the deceased Mathias Tevamili to perform a miracle to resurrect their relative Steven Makle from death. But their demand was to no avail and the defendants were very frustrated and angry and went their way to further assault the deceased Mathias Tevamili with bush knife and sticks on the eve of 6th December 2011 into the early evening and the deceased suffered serious injuries to his body and was left lying on the ground not far from the other deceased (Steven Makle's haus krai). The deceased lost a lot of blood and met his death in the early hours of the next day 7th December 2011. 

COURT ENTERS PLEA OF NOT GUILTY

14.	The defendants after hearing the charge and brief facts surrounding the charge were arraigned and the defendants each and severally in reply told the Court that they denied the wilful murder charge being presented against them. The Court then entered a provisional plea of not guilty.

CASE FOR PROSECUTION OPEN

15.	Court invites the Prosecutor to open its case and call State witnesses. State Prosecutor informs court that State witnesses are still in their village. He has been reliably informed by Case Officer that the bad weather at sea made it impossible for the witnesses to travel to Kokopo for trial today. The prosecution has sought for adjournment but the application was not granted. Therefore State will not call any witness to open its case and prosecute the indictment against the defendants each and severally. State offers no evidence.

STATE PROSECUTOR OFFER NO EVIDENCE

16.	State Prosecutor informed the Court that he has the unfortunate task to inform Court that he will not call any State witnesses because they are not present in Court today due to rough weather at sea that prevent their travel by sea to come to court today. The State prosecutor submits to offer no evidence against the defendants each and severally as charged. The Defence Counsel in response submits that if State offers no evidence and fails to proceed to trial against the defendants each and severally, the defendants are entitled to acquittal. 

DECISION 

17.	The defendants are presumed innocent until proven guilty through a Court of law as per their constitutional right under section 42 of the Constitution of Papua New Guinea. Since, the State Prosecutor has offered no evidence against the defendants each and severally, the Court has no other option but to exercise its discretional power to terminate the case in favour of the defendants according to the rule of law. The Court therefore orders that the matter be dismissed for want of prosecution and the defendants each and severally are discharged from the Charges under this indictment for a count of wilful murder.
______________________________________________________________
Public Prosecutors Office: Lawyer for the State
Kamen Lawyers: Lawyer for the Defendants