N8017

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1548 OF 2017

THE STATE

-v-

SEWIRI ANTON

Daru: Koeget, J
2018:  13th February.

CRIMINAL LAW – EVIDENCE -  when there is no evidence connecting the accused to the offence charged, a No Case to Answer Submission can be entertained by the court - when a No Case to Answer is successful, an accused is entitled to an acquittal.

CRIMINAL LAW - Indictable offence of Murder pursuant to section 300(1) of the Criminal Code Act – no evidence connecting the accused to the offence charge – No case to answer submission – accused has no case to answer – He is entitled to an acquittal 

FACT

The accused is charged with one count of Murder pursuant to section 300 (1) of the Criminal Code Act chapter 262.  

On the evening of 10th April 2017, the deceased Waruba Madua Warabe was at Auti village in the Kiwai Islands, South Fly District of the Western Province.  He was under influence of intoxicating liquor (“homebrew”).

He walked to the accused’s house and hit a 40 gallon drum containing drinking water for the accused and family.  He repeated the same to the water containers of other persons living within the vicinity of the accused’s house.

The village magistrate intervened and told the deceased to leave.  He left and returned sometime later and began destroying pots, and other cooking utensils of the accused and neighbours.  So the accused became angry and hit the deceased on the hip with a small axe.  He reacted immediately and cut the accused on the back and on the hand as well.  Some by-standers intervened and chased him.

The accused joined the others to chase the deceased and chopped him with the axe he carried.  The deceased died as a result of the axe wounds.

Held:

(1)	When there is absolutely no evidence connecting the accused to the offence charged, a No Case to Answer submission can be entertained by the court.

(2)	When a No Case to Answer submission succeeds, an accused is entitled to an acquittal.

(3)	The Accused is entitled to an acquittal

Cases Cited:

The State –v- Paul Kundi Rape [1976] PNGLR 96 
The State –v- Roka Pep (No.2) [1983] PNGLR 19

Counsel:

D. Mark, for the State.
E. Sasingan, for the Accused.

TRIAL
13th February, 2018 

1.  KOEGET J: The accused initially pleaded guilty to the charge after arraignment but defence counsel made an application under section 563 of the Criminal code to change the plea to not guilty on the basis that his client on instructions raised the defences of provocation and self defence under sections 267 and 269 of the Code.

2.     The application is granted and a trial ordered.  The names of the State witnesses named on the indictment were called outside the court house three times each and there were no responses as they are still in their village in the Kiwai Islands located in the Fly Delta of the South Fly District.  So the State closed its case.

3.     The learned defence counsel responded by making a No Case to Answer submission.  He submitted that there was absolutely no evidence connecting the accused to the offence charged.  Thus, the accused has no case to answer.

4.     The fact of the case provided in the State prosecutor raises the defences of provocation and self-defence and so the onus is on the State to negative the defences.  Since the State did not adduce evidence in the trial, the defences of provocation and self defence are not negatived.  In the circumstances the accused has no case to answer and he is entitled to an acquittal.

ORDERS

(1)	The accused has no case to answer so he is discharged from the indictment.

(2)	He is to be discharged from custody at Daru Corrective Institution Service forthwith.

Accordingly ordered.
_______________________________________________________________
Public Prosecutor:  Lawyer for State
Public Solicitor: Lawyer of Accused