N5926

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 106, 114 & 115 OF 2014

THE STATE

-V-

NEWMAN ALE, BOBBY SEKI & TIMOTHY SEKI

Wabag: Kawi-iu, AJ.
2014: 7, 8, 14, 29 April
11, 24 July

CRIMINAL LAW – Wilful Murder – Plea of Not Guilty - Trial – No Case Submission – Submission of no case upheld – Accused no case to answer on first limb of Paul Kundi Rape - Acquitted of charge of wilful murder.

Cases Cited: 

The State v Iamge Waea (Unreported) N915
The State v Paul Kundi Rape [1976] PNGLR 96
Paulus Pawa v The State [1981] PNGLR 498
The State v Roka Pep (No 2) [1983] PNGLR 287
The State v Tom Morris [1981] PNGLR 493
The State v Tupui Kapera (Unreported) N567 

Counsel:

Mr D. Mark, for the State
Mr R. Bellie, for the Accused

NO CASE SUBMISSION

24th July, 2014

1.	KAWI-IU AJ: The three accused pleaded not guilty to a charge of wilful murder committed on one Edward Kina on the 30th March 2013 under section 299 (1) of the Criminal Code Act, Chapter 262. 

2.	State called four witnesses. After the close of the prosecution’s case counsel for the accused informed the court that he will be making submission for a no case to answer. After hearing the evidence and the submissions from the defence and the State, I ruled 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. 

THE LAW	

3.	The law on wilful murder under the Criminal Code Act is provided as follows:

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.

4.	The elements for the offence of wilful 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.

5.	For the charge of wilful 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 Alleged Facts:

6.	It was alleged that on the 30th day of March 2013 the three accused Bobby Seki aged 17 years, Timothy Seki aged 16 years and Newman Ale aged 10 years all of Sakalis village, Wabag, Enga Province were seen going fishing with the deceased Kenneth Edward Kina at the Wakumale Bridge of the Lai River.

7.	Whilst there a fight broke out amongst them and the deceased was murdered and thrown into the fast flowing Lai River where his body was later discovered floating at Birip village. The deceased was taken to the Wabag General Hospital and a post mortem conducted and the Doctor’s Report stated clearly that the deceased was murdered and thrown into the Lai River.

8.	The State alleged that the three accused killed the deceased and at the time the accused intended to kill the deceased. 

Evidence for the State

9.	The State called four witnesses from a total of eight witnesses listed on the indictment. Witnesses called were Christina Kiwa, Kipiam Arnold, Pilyo Kandapak and Dr. Gubero Urae. 

Witness (No. 1) Christina Kiwa:

10.	This witness is the mother of the deceased and sells stuff at the informal market in Wabag Town. She is married with five children, four girls and a boy who is the deceased Kenneth Edward. It was a Saturday and she was selling goods in front of Kennedy’s Wholesale. She saw the three accused and the deceased who were on their way to fish in the Lai River approached her and deceased asked her for two kina but did not give them any so they left and proceeded towards the betelnut market. The deceased did not return home on the 30 March 2013, and she was not concerned for she thought he may have gone to spend the night with other relatives. It was only on the 31st March 2013 that she became aware that her son, deceased was killed and taken to the hospital. 

Witness (No. 2) Kipiam Arnold:

11.	She remembers the date 30 March 2013 between 11.00 am and 12.00 noon. She was selling eggs and other market goods near the Wabag General Hospital Gate. There she saw the three accused and deceased on their way to fish in the Lai River. Accused Bobby Seki, Timothy Seki and deceased had fishing hooks in their possession while accused Newman Ale was seen carrying a plastic bag with some cooked flour inside. She enquired as to where they were heading to, and was told they were on their way to fish in the Lai River. She later heard that Kenneth Kila was killed while fishing.

Witness (No. 8) Dr. Guboro Urae 

12.	Dr.Guboro Urae is presently the Director Medical Services and CEO of Wabag General Hospital. He graduated with MBBS from the School of Health and Science, UPNG in 2002. He says that he had conducted many post mortem since graduating from medical school in 2002.

13.	A post mortem was conducted on the deceased on the 3rd April 2013. In his conclusion he ruled out any possibility of the deceased drowning “as there was no conclusive evidence of a live person fighting for life while encountering danger in the water.

14.	The confinement of extensive grievous injuries to the head with the rest of the body being intact requires expert evaluation into the mode of trauma.
Furthermore cranium examination revealed features of secondary brain injury very much from severe brain concussion critical enough to cause cardio-respiratory arrest and subsequent death.

The few cuts and abrasions on the left knee and leg were minor”.

15.	In his oral evidence he states that before the onset of cardio-respiratory arrest some force must have been applied to the head causing injury leading to cardio-respiratory arrest. The rugged laceration to the head suggests a blunt object was applied to the head. In his evidence he ruled out any possibility of drowning as symptoms associated with persons drowning were not present.

16.	This witness was cross examined which I will shortly record in full to better appreciate the context of the autopsy.

Q.	Any other injuries?
A.	There was a cut on the left knee.

Q.	If body thrown into the river would he received some other injuries?
A.	Yes.

Q.	You suggest in your conclusion that no conclusive evidence, what do you mean?
A.	That is in relation to finding that drowning was not the cause of death.

Q.	What if someone had suffered by diving?
A.	If diving, injuries may have shown at other place other than the head. Neck not affected so injuries sustained to the head not consistent with diving.

Q.	So no neck injury?
A. 	No neck injury.

Q.	Was there a scuffle?
A. 	Police investigation suggests a scuffle occurred prior to death of accused?

Q.	Because of a scuffle you conclude it was not drowning?
A.	My conclusion is that drowning was not the cause of death, it was from head injuries.

Q.	Is there possibility that the injuries to the head was caused by diving?
A.	I would not say that, injuries to the head area unlikely to come into contact with object in the river.

Q.	Any possibility of injury to head is suggestive of someone falling backward?
A.	The type of injury is inconsistent to someone falling backward as injury is located in the centre of the head (vertex).

Q.	If there is anything dropping from above, will it cause the type of injury to deceased head?
A.	If it is only a blunt object dropping from the top. 

Question by Court: In your post mortem report under the heading “General External Examination” you state that a deep cut on the left knee and three superficial abrasions on the left knee, what are the likely implements use to cause that type of injuries?

A.	Something sharp like knife would have caused such injuries.

17.	The State then tenders:

Autopsy Report 	-	Exhibit “A”
Dr, Guboro Urae 	-	Exhibit “B” (affidavit).
Medical Report 	-	Exhibit “C”

Witness (No. 4) Pilyo Kandapak:

18.	This witness was involved in locating the body of the deceased near the bank of Lai River at Birip when he went to fish early on the morning of 31 March 2013. He reported to the police and later body taken to the Wabag General Hospital. This witness was not called; instead his statement dated 26/6/13 was tendered by consent and marked as Exhibit “D”.

Defence Submission

19.	At the conclusion of the State’s case defence submits that the prosecution has failed to adduce sufficient or lack credible evidence to require the accused to be called to give evidence, in other word the state has not made out a prima facie case for the accused to be called to answer to the charge.

20.	The submission was made on the first leg of the principal enunciated in the case of The State v Paul Kundi Rape [1976] PNGLR 96: 

When 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 the accused could lawfully be convicted. This is a question of law, to be carefully distinguished from the question of fact to be asked at the close of all the evidence, namely, whether the prosecution has proved its case beyond reasonable doubt: Paul Kundi Rape (supra).

21.	At the conclusion of the state’s case two witnesses stated that they saw and talked to the 3 accused and deceased at Wabag town before they left for Lai River to fish at Wakumale Bridge. The third witness saw the deceased body floating on the Lai River at Birip a day later and alerted the police where the deceased was taken to the hospital for autopsy.

22.	The fourth witness was the Doctor who conducted the post mortem on the deceased. His examination and findings exclude any suggestion and possibilities of the deceased drowning, “as there was no conclusive evidence of a live person fighting for life while encountering danger in the water”, and attributed the cause of death to extensive grievous injuries to the head causing secondary brain injury very much from severe brain concussion critical enough to cause cardio-respiratory arrest and subsequent death.

23.	The only evidence for the prosecution that is of any substance is the doctor’s evidence. It was professionally presented after examining the deceased body, was able to clearly identify the cause of death and concludes that death was caused by human intervention.

24.	In his oral evidence he states that before the onset of cardio-respiratory arrest some force must have been applied to the head causing injury leading to cardio-respiratory arrest. The rugged laceration to the head suggests a blunt object was applied to the head. In cross-examination he was asked what would be the likely cause of a deep cut on the left knee and three superficial abrasions on the left knee. In response he states that something sharp like knife would have caused such injuries.

25.	In short the post mortem report revealed that the deceased was killed by some unknown person. The question at this stage is who would have killed the deceased? 

What is the evidence? 

26.	The evidence of the prosecution witnesses has been given in full, above. I will restate the most pertinent version here to gauge the veracity and cogency of the prosecution’s case.

Witness (No. 1) Christina Kiwa:

27.	This witness is the mother of the deceased. She saw the three accused and the deceased who were on their way to fish in the Lai River. The deceased did not return home on the 30 March 2013, and she was not concerned for she thought he may have gone to spend the night with other relatives. It was only on the 31st March 2013 that she became aware that her son, deceased was killed and taken to the hospital. This evidence does not have weight and as far as the charge is concerned does not prove anything. She saw the deceased going fishing and later discovered that the deceased was killed. No evidence was given to connect the accused to the killing of the deceased. 

Witness (No. 2) Kipiam Arnold:

28.	She remembers the date 30 March 2013 between 11.00 am and 12.00 noon near the Wabag General Hospital Gate. There she saw the three accused and deceased. She enquired as to where they were heading to, and was told they were on their way to fish in the Lai River. She later heard that Kenneth Kila was killed while fishing. This witness saw the accused and deceased going fishing. She does not know what happened between the time they left and the time of the reported killing. Again no evidence was led by this witness to connect the accused to the killing of the deceased.

Witness (No. 4) Pilyo Kandapak:

29.	This witness was involved in locating the body of the deceased near the bank of Lai River when he went to fish early on the morning of 31 March 2013. He reported to the police and later body taken to the Wabag General Hospital. As far as this witness is concerned he does not know what would have happened to the deceased, all he knew was his involvement in locating the deceased at the bank of Lai River and reporting to the police. His evidence does not implicate the accused.

Witness (No. 8) Dr. Guboro Urae

30.	The evidence of the doctor’s findings is as per his autopsy report supplemented by his sworn oral evidence. His evidence is an independent finding on the circumstances leading to the death of the deceased. His finding reveals that the deceased was killed by an unknown person. His evidence is confined to his findings based on his autopsy report. His evidence is an open finding for it does not implicate any person. Thus the doctor’s evidence though may be good quality does not weight much. It can bear weight only when it is supported by other credible evidence. Since the other prosecution witnesses’ evidence is so lacking in weight the doctor’s evidence taken alone suffers the same faith. 

31.	The Record of Interview is unreliable as it does not contain any statements pertaining to accused admission. Further a purported statement contained in the alleged summary of fact that a fight broke out among them and deceased was murdered and thrown into the fast flowing Lai River unreliable. This piece of evidence is not supported by any credible evidence. It may have been included in the alleged summary of facts by the police investigator who was never called as witness to verify the statement. 

32.	The Record of Interview is unreliable as it does not contain any statements pertaining to accused admission. Further a purported statement contained in the alleged summary of fact that a fight broke out among them and deceased was murdered and thrown into the fast flowing Lai River. This piece of evidence is not supported by any credible evidence. It may have been included in the alleged summary of facts by the police investigator who was never called as witness to verify the statement. 

33.	Defence in its submission hinted that the prosecution may in the absence of any direct evidence to link the accused to the crime rely on circumstantial evidence. The inference as far as the evidence could revealed is that the accused and the deceased told the two prosecution witnesses Christina Kiwa and Kipiam Arnold that they were going fishing in the Lai River. The next day they heard that the accused was killed. As the evidence did not conclusively proved that the accused killed the deceased the only reasonable conclusion was that they must have gone fishing in the Lai River and there the deceased was killed and thrown into the river where he was later found by witness Pilyo Kandapak and taken to the hospital. How safe is this proposition?

34.	The principle governing reception of circumstantial evidence has been stated in this jurisdiction in a number of authorities. The principles stated in the case of The State v Tom Morris [1981] PNGLR 493 are that, where there are a number of competing inferences, it is a question of fact for the judge to decide which and what inferences should be drawn, which should be rejected, which are reasonable, which are mere conjectures and which party they should favour. At the end of the prosecution case where there are inferences inconsistent with the guilt of the accused, there is discretion to acquit. These principles have been applied in subsequent cases as in the Supreme Court case of Paulus Pawa v The State [1981] PNGLR 498, The State v Tupui Kapera (Unreported) N567 and The State v Iamge Waea (Unreported) N915. The principles enunciated in those local authorities say that failure by a trial judge who sits, as a jury to warn himself of the dangers of convicting an accused on circumstantial evidence could be fatal and quite dangerous. 

35.	However, I must reminded myself at this juncture that I am not determine the guilt or otherwise of the accused, all that is required now is for me is to decide on the evidence thus far adduced by the prosecution if sufficient to call the accused to answer to the charge. Thus the issue at hand is whether the prosecution had succeeded in establishing a prima facie case in respect of all the elements of the charge requiring the accused to be called to answer. The State v Paul Kundi Rape and The State v Roka Pep (No. 2) (supra).

36.	In order for the prosecution to prove the charge of wilful murder they must identify the accused, that the accused killed the deceased, the killing was unlawful and that they had the intention to cause the death of the deceased. The prosecution has not adduced evidence touching each of these elements, which in the final analysis could only mean one thing that the accused had no case to answer.

37.	Thus, I find that the prosecution has not established a prima facie case against the accused of the charge of murder or any other alternative charges.

38.	I therefore uphold the submission of the defence, that the three accused have no case to answer

39.	Each of the accused is acquitted and to be discharged forthwith. If bail had been granted, the same shall be refunded forthwith. 

Ordered accordingly

____________________________________________________________ 

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