N7382

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 785 OF 2015

THE STATE

V

LAWRENCE BENNY

Lae:	Numapo AJ
2018:	07th, 17th, 25th May & 20th July

CRIMINAL LAW – Particular Offence – Murder s 300 (1) (a) Criminal Code – Plea of Not Guilty – Notice of Alibi - Documentary Evidence – No Case Submission – Crucial element of identification lacking - Unsafe to convict on uncorroborated evidence – Accused acquitted.

Held:

(i)	The general principle on No Case Submission is that the court should not weigh up the evidence until the whole of the evidence is in - unless in what is clearly a hopeless case, where the prosecution is intrinsically very weak or has collapsed badly. It also applies in a case where the court considers that the prosecution’s evidence is so insufficient that it did not support the crucial elements of the charge for a reasonable tribunal to safely convict on it.   

(ii)	Documentary evidence tendered by the State does not contain any incriminating evidence against the accused nor does it linked the accused to the crime.

(iii)	The general description of the colour of the skin, the built and the height of the attacker is not in itself sufficient evidence and there are inherent dangers to convict on such uncorroborated evidence alone. 

(iv)	Where the evidence is a mere description rather than identification the court must be very cautious especially when the witness had no prior knowledge of the accused and has not seen him before.

(v)	Evidence that the accused merely resembles the offender is insufficient of itself to establish guilt beyond reasonable doubt.

(vi)	Evidence does not support a crucial element of Murder under section 300 (1) (a) of the Criminal Code being; the positive identification of the accused.

(vii)	Accused acquitted and discharged.

Cases Cited:
Papua New Guinea Cases

Bate v The State (2012) PGSC 46, SC 1216 
Ono v The State (2002) SC 698 
Piakali v The State (2004) SC 771. 
The State v Anis Noki [1993] PNGLR 426 
The State v Beng [1976] PNGLR 471; Beng v The State [1977] PNGLR 524; [1977] PNGLR 115 (2 May 1977).  
The State v Kakas & Ors [1994] PNGLR 20 
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Roka Pep (No.2); Re: Reservation on Points of Law under Section 21 of the Supreme Court Act (Ch 37) [1983] PNGLR 287.

Overseas Cases

Davies and Cody v R (1937) 57 CLR 170  

Counsel:

J. Done, for the State
S. Katurowe, for the Defence

RULING ON VERDICT 

20 July 2018,

1.	NUMAPO AJ: This is ruling on verdict. The accused LAWRENCE BENNY of Hetmape village, Finschafen, Morobe Province pleaded Not Guilty to one count of Murder under section 300 (1) (a) of the Criminal Code and the matter proceeded to trial.

A.	BRIEF FACTS

2.	The facts are that; on the 30th October 2014 between 11am -12pm the deceased Robert Thomas was returning from Eriku with his sister Matilda Ume and younger brother Ismael Ume. They walked along the Huon Road to their home at Dysox Street. The accused Lawrence Benny and five others followed them and were walking a few meters behind them. Between Taun Street and Dysox Street three of the boys rushed towards Matilda and one of them pulled her shirt from behind and tried to grab her mobile phone. The deceased intervened and fought the assailants when he got stabbed with a knife on the neck by the accused. The accused and his friends then fled the scene. The deceased sustained a deep penetrating knife wound to the left side of his neck and died from severe loss of blood.

B.	STATE’S CASE – DOCUMENTARY EVIDENCE

3.	The State’s case comprised mainly of documentary evidence comprising the record of interview and statements from the police witnesses and police investigation officers that consists of the following:

(i)	Record of Interview dated 30th January 2015 – Marked as “Exhibits A (i) for Pidgin version and A (ii) for English version.

(ii)	Post Mortem Report of Dr Mana Ario dated 02nd November 2014 – Marked as “Exhibit B (i)”.

(iii)	Affidavit of Dr Mana Ario dated 02nd November 2014 – Marked as “Exhibit B (ii)”.

(iv)	Statement of Police Sergeant Allan Loloea (Police Photographer) dated 04th November 2014 – Marked as “Exhibit C”.

(v)	2 x A4 Papers containing four (4 photographs) – Marked as “Exhibits C (i) and C (ii)”.

(vi)	Statement of Police Sergeant Max Makeso (Corroborator) dated 09th February 2015 – Marked as “Exhibit D’’.

(vii)	Statement of Sergeant Corney Winjan (Police Investigator) dated 09th February 2015 – Marked as “Exhibit E”.

(viii)	Statement of Witness, Ishmael Ume dated 31st October 2014 – Marked as “Exhibit F”.

(ix)	Statement of Witness, Matilda Ume dated 30th October 2014 – Marked as “Exhibit G”.

4.	Counsel representing the State Mr Done informed the court that the State will only be tendering documentary evidence and will not be calling any witness to give oral evidence. He then closed the State’s case.

C.	DEFENCE CASE

5.	Defence filed a Notice of Alibi pursuant to Order 4 Rules 1-4 of the Criminal Practice Rules on the 30th May 2018 and served it on the State.  Defence intends to rely on the defence of alibi apart from general denial if called upon to reply. Defence opens its case and Counsel Ms Katurowe informed the court that the accused wish to exercise his right to remain silent and did not call any evidence. Counsel then made an application to make a No Case Submission.

D.	PROSECUTION’S EVIDENCE IN SUMMARY

6.	The accused denied committing the offence in the record of interview (ROI – ‘Exhibits. A (i) & (ii)’) conducted on the 30th January 2015. He basically stated that on the day in question (30th October 2014) he was at his house at Sialum compound, Boundary Road watching CD on TV and had no idea about this crime. He was with Rose Kila, Wilma and others and watched TV until 12:00 midday. He was surprised when some people came and burned down his house accusing him of murdering another person. They also burned down another house belonging to the President of the community.  The accused owned two houses and both were burned down. The statements (‘Exhibits E & D’) of Police Investigating Officers; Sergeants Corney Winjan and Mac Makeso contains nothing substantial or significant by way of evidence to support the charge. 

7.	The post mortem report and the affidavit (‘Exhibits B (i) & (ii)) of Dr Mana Ario basically stated that the deceased died from excessive loss of blood from a stab wound to his neck.

8.	The two key State witnesses Ismael Ume and Matilda Ume who were with the deceased at the time they were attacked gave their statements to the Police.

Witness Ismael Ume in his statement (‘Exhibit F’) said the following:

“On Thursday 30th of October 2014 between 11-12pm my sister Matilda, myself and the deceased were at Eriku and then we walked up to our house at Dysox Street via Huon Road. As we were walking I realized that about six boys were following us from behind. We walked up and in the middle of Taun Street and Dysox Street one of the suspects came from behind and tried to grab Matilda’s mobile phone. The deceased saw that and wanted to fight with the suspects. One of the suspects took out a knife and stabbed the deceased on the left side of his neck. The deceased told us to run and we all ran for about 10 meters or so and the deceased collapsed. I then ran to my big brother Ronald Thomas and we came back to see the deceased”. That is all. 

Witness Matilda Ume in her statement (‘Exhibit G’) stated the following:

On Thursday 30th of October 2014 at around 11-12pm I was walking back to our house at Dysox Street with my brothers Ismael Ume and Robert Thomas (deceased) from Eriku. At our back a group of about six youths were following us. They were armed with small knives and were about 4-5 meters behind us. They followed us from Eriku all the way to Taun Street and into Dysox Street. Between Taun and Dysox Streets, three of the boys came from behind and one of them tried to grab my mobile phone when my brother Robert (deceased) intervened and tried to fight them off. But one of the suspects got a knife and stabbed the deceased on his left side of the neck. The youths then escaped towards the Sialum compound. The deceased told me and Ismael to run and he followed us but collapsed on the road. I stopped to assist him but some mothers (by-standers) told me to run to the house and they came to assist the deceased. We returned with the vehicle and rushed the deceased to the hospital. The suspects can be identified. The suspect who stabbed the deceased is light skin, medium built, not too tall and not too short but between 150cm and 160cm and looks like he is from the coastal area. The suspect I am referring to I believe the police have already apprehended him soon after he stabbed my brother. That’s all.

E.	THE STATE’S CASE

9.	The two key police witnesses Ismael Ume and Matilda Ume were not able to positively identify the accused as the person who stabbed the deceased. Both witnesses did not appear in court to identify the accused and give further evidence to strengthen their respective statements given to the Police earlier. This would have been very crucial to the State’s case given the fact that Defence has given a Notice of Alibi and identification will no doubt, become a central issue. Both witnesses stated that there were six (6) youths following them from Eriku to Taun Street and onto Dysox Street. At the junction of Taun and Dysox streets, three (3) of the boys came from behind and tried to grab Matilda’s mobile phone when the deceased intervened and fought with them. One of the three boys stabbed the deceased on the left side of his neck. The only description of the attacker given by witness Matilda Ume is that he is “light skin, medium built and about 150cm – 160 cm tall and looks like from a coastal area”. Other than that there is no other evidence on identification. The attack took place in the middle of the day, in broad daylight and apart from these two witnesses, there were other women (by-standers) who also witnessed the attack and went to assist the deceased but none of them were called to give evidence. There is no evidence to suggest that the suspects were wearing any masks or covered their faces to hide their identity. It also appears that the police have not conducted any Identification Parade to enable the two witnesses to positively identify the attacker. There is no corroborating evidence on identification.

F.	DEFENCE CASE

10.	The accused elected to remain silent and did not give any evidence. However, it indicated that it would rely on the evidence of alibi if there was a case to answer. Defence of alibi will only become necessary when the State has made out a case against the accused and the defence is called upon to reply.  

G.	LAW ON NO CASE SUBMISSION

11.	The general principle on No Case Submission is that the court should not weigh up the evidence until the whole of the evidence is in - unless in what is clearly a hopeless case, where the prosecution is intrinsically very weak or has collapsed badly. It also applies in a case where the court considers that the prosecution’s evidence is so insufficient that it did not support the crucial elements of the charge for a reasonable tribunal to safely convict on it.  

12.	The law on No Case Submission is well settled in the much celebrated case of The State v Paul Kundi Rape [1976] PNGLR 96 (herein after referred to as Paul Kundi Rape) followed by the Supreme Court case of The State v Roka Pep [1983] PNGLR 287; (No.2); Re: Reservation on Points of Law under Section 21 of the Supreme Court Act (Ch.37) ( Kidu, CJ, Kapi, DCJ, Andrew, Pratt, Kaputin, JJ presiding) (herein after referred to as Roka Pep).

13.	The Supreme Court basically explained the two limbs of the Paul Kundi Rape rationale as follows:

“Where in criminal proceedings at the close of the case for the prosecution, there is a submission of a no case. The matter is a question of law for the judge as the tribunal of law; the test is whether the evidence supports the 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 the discretion to stop a case at the close of all 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” – per Kidu, CJ, Kapi, DCJ, Andrew, Kaputin JJ.

14.	Pratt J, put it in much simpler terms as follows:

“A tribunal should make a finding of a no case to answer where (a) there is no evidence to establish the element of the offence charged or (b) there is some evidence covering the elements of the offence charged, but is so tenuous or incredible or discredited that it only amounts to a scintilla, and thus could not be accepted as persuasive by any reasonable person” – per Pratt J

15.	The two limbs of the Paul Kundi Rape (supra) are firstly, at the close of the prosecution’s case it became obvious that there is no evidence to establish the elements of the offence charged and the court decides that there is no case to answer, then the accused must be acquitted and that is the end of the matter.

16.	On the second limb, even if there was some evidence covering the elements of the offence but that the evidence is so tenuous and so lacking in weight and reliability or discredited during cross examination so much so, that no reasonable tribunal could safely convict on it then the court must stop the case from progressing any further and acquit the accused using its discretion. 

H.	PRESENT CASE

17.	In the present case the first limb of Paul Kundi Rape (supra) applies. It is glaringly obvious that the State’s evidence as it stands does not support a crucial element of a charge of Murder under section 300 (1) (a) (b) of the Criminal Code being; the positive identification of the accused. There is no evidence that positively identified the accused as the person who stabbed the deceased. Furthermore, there is no evidence that linked the accused to the killing. 
  
18.	The general description by witness Matilda Ume of the colour of the skin, the built and the height of the attacker is not in itself sufficient evidence and the Court must be cautious as there are inherent dangers to convict on such uncorroborated evidence alone. Evidence that the accused merely resembles the offender is insufficient of itself to establish guilt beyond doubt. In The State v Beng [1976] PNGLR 471, and in Beng v The State [1977] PNGLR 524; [1977] PNGLR 115 (2 May 1977) the Supreme Court held that “….where evidence of identification is relevant, the court should be mindful of all inherent dangers, the need for caution before convicting in reliance on the correctness of identification…the court should examine closely all the circumstances in which identification by each witness came to be made bearing in mind the recognition may be more be reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made. When the quality of the identification is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.”

19.	The rationale was later applied in a number of National and  Supreme Court’s decision such that of Ono v The State (2002) SC 698 where the court said that because of the dangers inherent in the eye witness identification caution should be applied at all times on the correctness of the identification. See also; The State v Anis Noki [1993] PNGLR 426; & The State v Kakas & Ors [1994] PNGLR 20 and Supreme Court decisions in Piakali v The State (2004) SC 771 and Bate v The State (2012) PBSC 46, SC 1216 (20th December 2012).

20.	Where the evidence is a mere description rather than identification the court must be very cautious especially when the witness had no prior knowledge of the accused and has not seen him before. In Davies and Cody v R (1937) 57 CLR 170 at 182, the High Court of Australia held that:

 “….if a witness whose previous knowledge of the accused man has not made him familiar with his appearance, has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial”. 
  
21.	On the evidence as it stands, I am not convinced that the State has positively identified the accused as the person who stabbed the deceased and furthermore, I cannot find any incriminating evidence linking him to the murder. The prosecution’s evidence on identification is uncorroborated and applying caution it is most unsafe to convict on it. State has not made out a case against the accused and therefore, the accused has no case to answer. Accordingly, I must acquit him.

I.	ORDERS

22.      Accused is acquitted and discharged.

Orders Accordingly.

__________________________________________________________________
Public Prosecutor: Lawyer for the state
Public Solicitor: Lawyer for the Defiance