N8522

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.  583 OF 2020
CR No.  584 OF 2020

THE STATE

-v-

GELEX DAULOK AND JACKY GELEX

Kiunga: Koeget, J
2020: 10th, 11th August

CRIMINAL LAW - Indictable offence – Manslaughter pursuant to section 302 of the Code – Accuseds pleaded not guilty – trial – committal depositions tendered into court by consent – counsel submissions on law – submission of No Case to Answer at the close of State’s case – application that the case be withdrawn from the tribunal of facts – principle in the case of the State -v- Paul Kundi Rape [1976] PNGLR 96 and the State –v- Roka Pep (No.2) [1983] PNGLR 212 – second limb of the principle of No Case to Answer on the basis of which the court ought to convict the accuseds – acquittal.

Cases Cited:   

The State –v- Paul Kundi Rape [1976] PNGLR 96
The State –v- Roka Pep (No.2) [1983] PNGLR 287

Counsel:

D. Mark, for the State
B. Popeu, for the Accuseds

11th August, 2020

1.      KOEGET, J:  INTRODUCTION:	The accused persons are father and son and are charged with one count of Manslaughter pursuant to section 302 of the Criminal Code Act chapter 262.

FACT

2.     On the 30th March 2019, the accused Gelex Daulok went hunting with a home-made shot gun and returned to the village in the afternoon.  A live cartridge was still lodged in the chamber of the home-made shot gun when he left it in his room in the family house.

3.     On 31st of March 2019, he went with his wife to the creek to pan for gold nuggets.  He spent the whole day at the creek panning for gold nuggets.

4.     The accused Jacky Gelex was left in the house at Wegam village in Ningrum in the North Fly District of the Western Province.  He was joined by the deceased Yande Wisky and others.  The place was very dark when they heard people talking under their house and all were frightened.

5.     The accused Jacky Gelex went into his parents’ room and took out the father’s home made shot gun and armed himself whilst the deceased and other boys armed themselves with catapults.  The accused’s mother arrived from the creek and all were relieved and there was no more fear.

6.     The accused Jacky Gelex sat in the chair and held the father’s home-made short gun and he pressed the trigger, the pellets were discharged and struck the deceased on the head.  The deceased died due to injury to the head.  The medical report attributed death to the internal injury to the brain tissues caused by the pellets.  The accused Gelex Daulok was charged by the State pursuant to section 7 of the Criminal Code Act chapter 262 as a principal offender.

7.    The State Prosecutor and Defence counsel elected to conduct the trial of the accuseds by tendering into Court the relevant committal deposition and making submission on law.  So the State tendered the following documents by consent:

-	Statement of Fitler Gelex dated 1st April 2019 (marked “exhibit 1” for the State).
-	Statement of Simeon Gelex dated 1st April 2019 (marked “exhibit 2” for the State).
-	Statement of Eric Wisky dated 1st April 2019 (marked “exhibit 3” for the State).
-	Statement of Jot Gelex (undated marked as “exhibit 4” for the State).
-	Statement of Gideon Romo dated 17th June 2019 (marked as “exhibit 5” for the State).

-	Statement of Daniel Marris dated 17th June 2019 (marked as “exhibit 6” for the State).
-	Medical report of Mark Gena dated 10th September 2019 (marked as “exhibit 7” for the State).
-	Photographs of black empty cartridge cell (marked as “exhibit 8” for the State).
-	Record of interview of Jacky Gelex dated 14th June 2019 (marked as “exhibit 9” for the State).
-	Record of interview Gelex Daulok dated 16th July, 2019 (marked as “exhibit 10” for the State).

The State closed its case after all exhibits were tendered into court.

8.     The defence counsel made a “No Case to Answer Submission” pursuant to the principle set out in the case of The State –v- Paul Kundi Rape reported in [1976] PNGLR 96 and also the case of The State –v- Roka Pep (No.2) reported in [1976] PNGLR 287.

9.     The principle is:

“where the tribunal decides that there is a case to answer, nevertheless, has discretion to stop a case to the close of all the evidence in appropriate circumstances.  This discretion is exercisable where there is a mere scintilla of evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.”

10.    The learned defence counsel submitted on behalf of Gelex Daulok that on the date of the incident, he had gone to the creek with his wife to pan for alluvial gold nuggets.  He spent the whole day at the creek till night fall when the wife returned to the house but he remained at the creek.  So there is no evidence of him participating in the killing of the deceased, Yande Wisky.  Furthermore, there is no evidence that he aided or abetted in the commission of the offence because he was at the creek and was unaware that the deceased was shot with his home-made shot gun in his house and so the provision of section 7 of the Criminal Code is inapplicable to him.  He was unaware that the home-made shot gun was taken out of the place where he last left it and taken out by Jacky Gelex to shoot the deceased, Yande Wisky.  He was unaware that the deceased was shot with his home-made shot gun in his house until after 8:30pm when he returned to the house.

11.     I find that the provisions of section 7 of the Code are inapplicable in this case to the accused Gelex Daulok as there is absolutely no evidence connecting him to the offence charged.  I find that the accused Gelex Daulok has No Case to Answer.  So he is acquitted of the charge of Manslaughter.

12.     The learned defence counsel further submitted on the “No Case to Answer Submission” that the accused Jacky Gelex was stupid when he took the home-made shot gun out from his parents’ room in the family house and held it as if it was a toy gun.

13.     However, he submits that the crucial question in Jacky Gelex’s case is: “Did he know that there was a live cartridge loaded in the chamber of the shot gun by his father the previous day during the hunting trip?  The police investigators asked him this question in the record of interview and he responded, he had no knowledge of the live cartridge being loaded in the chamber of the home made shot gun.  Such evidence raised the defence of Accident under section 24 (1)(a)(b) of the Criminal Code Act.  The State has the onus to negative the defence raised.

14.     In this case, the State witnesses’ evidence raised the defence of Accident, so the State has not provided evidence to negative that defence.  In my view, the killing of the deceased with the home-made shot gun was accidental and it happened independently out of his will and consequently the accused is not criminally responsible for the death of the deceased.

15.     I find that the accused Jacky Gelex has No Case to Answer as well.  He is acquitted of the charge of Manslaughter.

ORDERS

1)	The accuseds are discharged from the indictment forthwith.
2)	The accuseds are discharged from jail as well.

Accordingly Ordered.

______________________________________________________________
Public Prosecutor	:	Lawyer for the State		
Public Solicitor	:	 Lawyer for the Accuseds