N7482

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 219 OF 2017

THE STATE

V

PIUS KULU

Kimbe: Miviri AJ
2018: 20 & 21, 24, 25 September

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – prima facie – No case submission – No identification prima facie – no intent to kill – cannot lawfully convict– wilful Murder deceased –identification prima facie accused – no case rejected – accused called to answer – trial continue defence case.

Facts

Accused armed with a gunshot intending to kill the deceased killed him with it.

Held

Identification
Wilful death of deceased
By accused primae facie.
Case to answer of wilful Murder

Cases: 

The State v Avini [1997] PNGLR 212 
The State v John Beng [1977] PNGLR 115
The State v. Paul Kundi Rape [1976] PNGLR 96 
The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), [1983] PNGLR 287; [1983] PNGLR 287 

Counsel:

A Bray, for the State
F Kua, for the Defendant
		
RULING ON NO CASE

25th September, 2018
 
1.	MIVIRI AJ:  Pius Kulu is charged with Wilful Murder that he on the 6th day of August, 2016 at Gatuwore village, Talasea, wilfully murdered Joseph Tangole Lagar.

Charge

2.	The charge is contrary to Section 299 (1) of the Criminal Code Act prescribing a maximum penalty of death. For our purposes here Accused intended to kill Joseph Tangole Lagar and did kill him.

Evidence

3.	The state evidence comprised the tendered evidence of Post Mortem Report dated the 17th August, 2016 Exhibit S1A, Exhibit S1B Medical certificate of death dated the 18th August, 2016, Exhibit S2, Warrant to Bury, Exhibit S3A Record of Interview Pidgin Original of Pius Kulu dated the 4th November 2016, and Exhibit S3B English Translation of the Record of Interview of Pius Kulu dated the 4th November, 2016.

4.	These establish beyond all reasonable doubt Joseph Tangole Lagar died an unnatural death. He suffered gunshot wounds to his left 4th Intercostal space next to sternum fracture of the 6th Right Rib mid axillar line pellet found on the fracture side. Pericardial Sac an Pericardium; Entry wound of 0.5cm diameter, left side of pericardial sac, exit wound 0.5cm diameter on the right side. Heart entry wound 0.5cm in diameter on left atrium and exit wound on 0.5cm in diameter on right atrium.

5.	Cause of death of Joseph Tangole Lagar seen 11 days later after death by Doctor Ketalu is Gunshot wound to the chest and heart failure as a result, Cardio Respiratory Arrest.

6.	There was an intention to kill prima facie because Joseph Tangole Lagar was shot through his Heart central organ of the body. His death occurred on the 6th August 2016. A gun is a lethal weapon and has killed instantly. A gun was fired on the 6th August 2016 at Gatuwore at Joseph Tangole Lagar who sustained injuries as confirmed medically.

7.	Primae facie by this evidence there was an intention to kill Joseph Tangole Lagar and he was killed in satisfaction of that intent. These elements are settled and there can be lawful conviction of who is identified at the closure of the State case.

8.	So is this a case of a fleeting glance as set in John Beng v The State [1977] PNGLR 115 from the evidence of the three witnesses that have been called namely Ignatius Tuka, Kaula Uma Waluka, and Rocus Kaumu? The answer is obviously no. The Accused was identified by the witnesses Ignatius Tuka, Kaula Uma Waluka, and Rocus Kaumu that he fired at Joseph Tangole Lagar who fell to the ground and died as a result. Accused came out from where he was onto the road and uttered, “Mi King wanpela mo kam ken, I am King one more come”

No case submission

9.	A man is tried only once and cannot be tried twice. All evidence in a case is only weighed once not twice. It must therefore be a very clear case that the evidence is so lacking in credibility so tainted and obviously no reasonable tribunal would lawfully convict a person on it. It must be very clear and that there is really no real weighing to do. The invitation by defence at this juncture is to weigh the evidence excepts on record of picking one witness and abandoning or not believing the other and drawing conclusion on findings of fact. These are matters in law at the end and not before. Only in rare and very clear case could a court lawfully consider. The no case submission relying on the  State v. Paul Kundi Rape [1976] PNGLR 96 and also Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287; [1983] PNGLR 287 (14 September 1983).  In particular contending and invoking the both leg of Roka Pep’s case (supra) in law and as a matter of discretion in the judge to stop the case here against because primae facie there is no evidence that the accused fired the gun which killed the deceased. Lawfully at the closure of the State case without calling him into evidence he could not be lawfully convicted that he wilfully murdered Joseph Tangole Lagar on the 6th August 2016 at Gatuwore. He discharged a gun killing him. And he did so with intent to kill him. Really a question of law not of fact at this juncture of the proceedings. I will not deal with any issues of credibility and the like at this juncture of the proceedings as invited by the defence. To do so would be falling into error.

Case to Answer

10.	He is identified as principle in the wilful murder of the deceased. He fired the gun that killed the deceased. Primae facie after the fire of the gun he came out of where he was with the gun in his hands calling out, “I am king one more come”. There was no one with a gun in that immediate area where the deceased was shot with a gun and who died as a result. Primae facie without his evidence he can be lawfully convicted of the charge of wilful murder at the closure of the State case.

11.	The State has contended that the accused has a case to answer and his application in the face of evidence prima facie cannot hold and must be rejected. There is identification prima facie of accused. He is armed with a gun which has been fired at the deceased momentarily before he fell dead by it. And the accused came and called out; “Mi king wanpela mo kam ken, I am king one more come.” 

12.	That is the position in law that the required balance to call the accused to answer has been established: Avini v The State [1997] PNGLR 212 (15 July 1997). Prima facie he has a case to answer that he wilfully murdered Joseph Tangole Lagar on the 6th August 2016 at Gatuwore by shooting him with a gun.

13.	The defendant has a Case to Answer of Wilful Murder. Defence case shall proceed.

Orders Accordingly,
__________________________________________________________________Public Prosecutor:  Lawyer for the State	
Felix Kua Lawyers: Lawyer for the Defendant