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State v Maku [2021] PGNC 400; N9078 (19 March 2021)

N9078

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 504 OF 2018

BETWEEN
THE STATE

AND
ENOCH MAKU

Maprik: Rei, AJ
2021: 10^th, 18^th, 19^th March

PRACTICE AND PROCEDURE – Criminal Law – Murder – No Case Submission – Appropriate verdict – Trial to proceed

Cases Cited

The State -v- Paul Kundi Rape [1977] PNGLR 96

The State -v- Roke Pep [1983] PNGLR 19
The State -v- Aige Kola [1979] PNGLR 620
The State -v- Lasebase Kurinday [1981] N300

Counsel

Ms. T. Aihi, for the State
Mr. S. Parihau, for the Defendant

RULING

19^th March, 2021

1. REI AJ: BACKGROUND: The accused stands charged with one count of murder pursuant to Section 300 (1) (a) of the Criminal Code Act.

2. An indictment was presented on the day 10^thof March 2021 and the matter adjourned to 18^th March 2021 for witnesses to be called.

3. The State then tendered the following exhibits:

Exhibit “A”&“A1” Record of Interview

Exhibit “B” Medical Report

Exhibit “C1”&“C2” Photographs of the Scene

Exhibit “C3” Wood used to inflict force

4. No objections were made on the tendering of those exhibits. They were tendered by consent.

TRIAL

5. The trial of the matter commenced on 18^th March 2021 in which the State called one witness whose name is Edwin Kambus who comes from the same area as the accused.

6. The witness and the accused are from Bongiora Village, Maprik, ESP.

7. No other witnesses were called by the State and its case was then closed.

NO CASE SUBMISSION

8. At the close of the State’s case, the defence submitted that a no case submission will be made.

9. On the 19^th of March 2021, Mr. Parihau made the no case submission.

10. He submitted that there is insufficient evidence as there are inconsistences in the evidence therefore the case should be dismissed at this stage.

11. He made further submissions that the witness who gave evidence: Edwin Kambus, is not a witness whose name is listed on the indictment.

12. Ms. T. Aihi for the State submitted there is sufficient evidence such that the trial should proceed in that there is evidence of admission on the record of interview and medical reports suggesting that the deceased died from injuries sustained from the blows.

13. With respect to the submission of Mr. S. Parihau involving the witness Edwin Kambus, she submitted that Section 565 of the Criminal Code permits the State to amend the indictment to include this witness therefore the late inclusion of Edwin Kambus as witness is proper. When I asked Mr. Parihau if he objects, he said he did not.

14. I therefore granted leave for Edwin Kambus to be included as a witness and was called and did give evidence.

RULING

15. A serious allegation of murder is levelled against the accused and an eye witness from the same village gave an account of what he then saw happening.

16. Whilst I consider there may be inconsistencies in the oral evidence given by the witness Edwin Kambus, those inconsistencies are not serious to warrant a dismissal of the case at this stage in line with the principles settled in The State -v- Paul Kundi Rape [1977] PNGLR 96.

17. Ms T Aihi submitted and I do note that there is evidence in the record of interview tendered as Exhibit ”A” & “A1” of admissions by the accused of his involvement in the crime as charged.

18. I also note from the line of questions asked by the defence in cross examination that the defence of provocation or self defence is relied upon.

19. The issue is whether there is insufficient evidence that the accused ought not to be called upon to answer the charge as laid.

20. I note from the submissions of Ms T Aihi that the evidence given by Edwin Kambus supports all elements of the charge. That is to say there was intention to inflict grievous bodily harm which resulted in the death of the deceased.

21. The defence should demonstrate in submission that the prosecution has not proven its case, there is no iota of evidence suggesting the involvement of the accused in the alleged crime and it is clear that the evidence of the State is so dubious or so tainted, or so obviously lacking in weight or credibility which should result in the non conviction of the accused.

22. This principle was stated in the State -v- Roke Pep [1983] PNGLR 19 following The State -v- Aige Kola [1979] PNGLR 620 and the State -v- Lasebose Kurinday [1981] N300.

23. These cases also involve discussions on the differences of the roles of a jury and a judge. The trust of these cases is that a judge must be cautious when hearing a no case submission by ensuring that there must be a clear and ominous case in which the State’s evidence is so lacking in weight so as to return a verdict of not guilty.

24. This case does not fall within that description for the reasons contained herein.

25. I therefore find that; given the understanding that the defence raises the defence of provocation or self defence, there is evidence that the accused should be put to the witness box to explain what then happened.

26. It is not the case where the prosecution has so obviously failed to adduce relevant evidence.

27. I therefore hold that the accused Enoch Maku has a case to answer.

28. The trial shall proceed with the defence to call witness, if any.
________________________________________________________________

Public Prosecutor: Lawyer for The State

Public Solicitor: Lawyer for the Defendant