N7144
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 110 OF 2010

THE STATE 

V

HOSEA JOHN

Wewak: Gora AJ
     2018:  20 February 

CRIMINAL LAW- Indictable offence- Section 300 of the Criminal Code, charge of Murder- Accused pleads not guilty- Case for trial- Prosecution decides not to offer evidence at trial.

 CRIMINAL LAW- Whether verdict of not guilty to be entered or charge to be merely dismissed - accused entitled to be acquitted and discharged- Onus on Prosecution to offer evidence and prove case beyond reasonable doubt. 

CRIMINAL LAW- Constitutional Presumption of Innocence until proved guilty according to law- Where evidence not offered by Prosecution trial cannot proceed and guilt of accused unable to be determined- Consequently charge dismissed and accused entitled to be acquitted and discharged.

Cases Cited:

Nil

Counsels:

 Mr. P Tusais, for the State
Mr.  J Javapro, for the Defense

DECISION
20th February, 2018
1.   GORA AJ:  INTRODUCTION: Accused pleaded not guilty to one count of Murder of one Patrick Pafuhia on the 24th October 2009 at Haniak village of Kubalia District, East Sepik Province. The charge was brought pursuant to Section 300 of the Criminal Code Chapter 262 (as amended).
FACTS
2.   It is alleged that on the 24th of October 2009, the accused who was councilor of Haniak village, Kubalia District, East Sepik Province was drinking with a group of his village men. They were on the main Sepik Highway which runs through their village. Deceased Patrick Pafuhia was driving a PMV route 3/7. When he drove past the group, one of them threw a can of beer hitting the windscreen. Deceased drove on and stopped 70 meters away. This group of men ran towards the truck. Accused was heard swearing and calling out “kill him’’. This group of men then attacked the deceased with sticks and other objects hitting him on his head and body. Deceased was later taken to Kubalia Health Centre but died on the way. State invoked Section 7 of the Criminal Code (as amended) and alleged that accused incited and encouraged the others to attack the deceased.
ARRAIGNMENT
3.   At the Call-Over on the 6th of February 2018 both Prosecution and Defense Counsels informed Court that matter was ready for two days trial so dates were fixed for 20th and 21st of February 2018 respectively. On the 20th February 2018 on arraignment the accused pleaded not guilty to the charge.
EVIDENCE FOR THE STATE
4.    After the accused had pleaded not guilty to the charge, counsel representing the State informed Court that state witnesses were not available and therefore it had no evidence to offer.
ISSUE
5.   Question is whether a verdict of not guilty be entered in favor of the accused or merely dismiss the charge and accused acquitted and discharged.

SUBMISSIONS
6.   Counsel for the State had no submission to make in respect of the issue except to say that the matter is at the discretion of the Court. Counsel for the accused on the hand submitted that since state is unable to offer any evidence at this trial to sustain the charge against the accused, the charge should be dismissed and accused acquitted and discharged.
ANALYSIS
7. Constitutional notion of “Presumption of Innocence until proved guilty according to law” is a fundamental right of every citizen. The Constitution under Section   37(4)(a) specifically state that a person charged with an offence is presumed innocent until proved guilty according to law. 
8.   Trial process in our criminal justice system is the process by which an accused charged with an offence is tried and either found guilty or not guilty according to law. This is to say that due process by which the guilt of an accused is determined is by way of a trial where evidences of both the Prosecution and the Defense are adduced, tested and or verified through examination process. 
9.   Where Prosecution is unable to produce its witnesses to give evidence against the accused at the start of a trial and where accused is given no opportunity to defend himself and produce all necessary evidence to prove his innocence, then there is no basis upon which guilt of an accused can be considered and determined according to law. The onus is on the Prosecution to prove beyond reasonable doubt the charge made out against the accused.
10.   The right to protection of the law is accorded to all persons and therefore the accused in this case was denied the right to have his evidence adduced in defense hence denial of his right to the protection of the law.
11.  He pleaded not guilty to the charge, hence trial process should follow suit. However State opted to offer no evidence by reason of non availability of witnesses, therefore the trial process could not proceed and had to come to an end naturally as prosecution was unable to open its case. Under such circumstances a verdict of guilty or not guilty cannot be made out against the accused and consequently the accused remains innocent and the charge to be merely dismissed.
12.   Accordingly I order that the charge against the accused be dismissed and he be acquitted and discharged.
_______________________________________________________________
Public Prosecutor	:  Lawyer for the State
Public Solicitor   :  Lawyer for the Accused