N9282
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 896 OF 2018

THE STATE

V

DAVID KOIM

Waigani: Ganaii, AJ.
2021: 07th, 09th September

CRIMINAL LAW –  No case to answer - Indictment bearing one count of Attempt Murder - Section 304 (a) of the CCA - Alternative Count of Grievous Bodily Harm – Section 319 of the CCA – Issue at no case to answer -  whether accused can be called to answer on a lesser charge to an alternative charge on the indictment - Some evidence of assault causing bleeding and need for medical attention – Evidence of scar on hand and head – No medical report - Case to answer on lesser charge of Assault Occasioning Bodily Injury – Section 340 (1) of the CCA  - Operation of Section 542 (1) of the CCA 

Cases Cited

State v Bassop [2010] PGNC 169; N3921 
State v Jigimbe [2018] PGNC 169; N7261
State v Kapen [2012] PGNC 385; N4895 
State v Kaupa [2011] PGNC 28; N4258 
State v Kuriday [1981] PGNC 28; N300 
State v Paul Kundi Rape [1976] PNGLR 96 
State v Peter [2011] PGNC 131; N4299 
State v Roka Pep [1983] PNGLR 28 
State v Sange (2005) N2805 

Legislations Cited

Sections 304 (a), 319 and 340 (1) of the CCA
Section 542 (1) of the CCA

Counsel

Mr.  Gubon, for the State
Mr Luke Siminji, for the Accused
 
DECISION ON A NO-CASE TO ANSWER SUBMSSION

09th September, 2021

1.      GANAII, AJ:  The accused David Koim stands charged on a primary and alternative count on an indictment dated 07th of September 2021 as follows:

Count 1 (Primary Count)
that he David Koim of Ralwa Village, Mul, WHP on the 05th day of January 2018, at Nine Mile, National Capital District in PNG, attempted unlawfully to kill one Kindi Kundi. 

thereby contravening Section 304 (a) of the CCA 

Alternatively
that he David Koim of Ralwa Village, Mul, WHP on the 05th day of January 2018, at Nine Mile, National Capital District in PNG, unlawfully did grievous bodily harm to one Kindi Kundi  

thereby contravening section 319 of the CCA.  

Statement of Facts

2.  	State alleges that David Koim bought a piece of block at Nine Mile, NCD, which became subject of dispute when the victim went and resided on the said property.  

3.	On the 05th of January 2018, a mediation was held to resolve the issues in relation to the land dispute.  The complainant and the accused attended this meeting.  

4.	State alleges that at the said meeting, the accused picked up his bush knife, on which he was sitting on, and swung at the complainant aiming at his neck, but complainant fell to the ground and the knife missed him. In the second attempt, the accused chopped the complaint’s left hand when the complainant raised his hand against the bush knife to prevent being cut on the head or neck area. 

5.	The State says that when the Accused swung the bush knife aiming to cut the victim’s neck and also cutting the complainant on his arm in his defence, his actions amounted to an offence under s 304 (a) of the CCA. 

6.	Alternatively, his actions also when he chopped the victim on his left arm, contravened s 319 of the CCA.

Plea

 7.  	The accused pleaded not guilty to the charge and a trial was conducted. At the close of the State’s case, the Defence made a no-case to answer submission. 

Issue

8.	The issue at the close of the state’s case according to the two limbs in the case of Paul Kundi Rape are:

1)	Whether on the evidence as it stands, the defendant ought to be lawfully convicted? and

2)	Whether there is a mere scintilla of evidence and the evidence is so lacking in weight and reliability that no reasonable tribunal could convict?

Law
The Offence Provision

 9.	Sections 304 (a) and 319 offence provisions of the CCA stipulates as follows:

Section 304 (a)

304. ATTEMPTED MURDER, ETC. 
A person who–
(a) attempts unlawfully to kill another person; or
(b) with intent unlawfully to kill another person does any act, or omits to do any act that it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life,
is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

Section 319

319. 		GRIEVOUS BODILY HARM. 

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.
Penalty: Imprisonment for a term not exceeding seven years.

Elements of Attempt Murder

10.	In the case of State v Kapen [2012] PGNC 385; N4895 (20 November 2012), the following were held to be the elements for attempt murder under Section 304(a), that the accused:

•	intended actually to kill the deceased;
•	put his intention into execution by means adapted to its fulfilment;
•	manifested his intention by some overt act; and
•	acted unlawfully.

GBH

11.	In the case of the State v Kapen [2012] (supra), the elements of the offence of unlawfully doing grievous bodily harm under Section 319 of the CCA are that the accused:

•	did grievous bodily harm to the complainant; and
•	acted unlawfully.

Law on a No-case to Answer Submission

12.	The case law on no case to answer submissions is well settled in this country. In the seminal case of the State v Paul Kundi Rape (supra), O’Leary. AJ stated two important principles which are often referred to as the first and second limbs. They are: that at the close of the prosecution case two quite separate and distinct questions may arise for consideration at this stage of a criminal trial; one, whether there is a case for the accused to answer; and secondly, whether although there is a case for the accused to answer, the state of the evidence is such that the Judge ought to withdraw the case from the jury, or at least, tell the jury that they are entitled to indicate that they do not wish to hear any further evidence.
 
13.            The principles of the Paul Kundi Rape (supra) case were affirmed by a five men Supreme Court bench (Kidu, CJ, Kapi. DCJ, Andrew. J, Pratt. J and Kaputin. J) in State v Roka Pep (No.2) [1983] PNGLR 287; SC 261. The court stated:
 
“Where in criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the matter is a question of law for the judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence.

Where the tribunal decides there is no case to answer the accused is acquitted and that is the end of the matter.

Where the tribunal decides there is a case to answer, it nevertheless has a discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it”.
 
14.            With respect to the weighing up of evidence in a no case to answer submission Kearney DCJ in State v Kuriday [1981] PGNC 28; N300 stated:
 
“This question is decided by the judge as a question of law. The answer depends on the state of the evidence, bearing in mind that the weighing of the evidence is to be eschewed as far as possible.”
 
15. 	Cannings, J in the State v Sange (2005) N2805 gave a simple yet encapsulating commentary on the principles of the Rape case which was cited in other cases and I also cite here:

“In his famous judgement in Rape’s case O’Leary AJ pointed out that when the prosecution has closed its case two distinct and separate questions can arise.
Question 1 – also called the first limb or test is – is there some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred?
Note that the question is not: is every element of the offence established beyond a reasonable doubt? That question can only be answered at the end of the trial – if it proceeds – on the whole of the evidence, i.e. including any evidence adduced by the accused.
If the answer to question 1 is no: the conclusion will be that on the evidence as it stands the accused could not lawfully be convicted. This is an issue of law. The accused will have no case to answer. The accused will have not be required to answer the charge. The accused will be entitled to an acquittal.
If the answer to question 1 is yes: the trial should proceed unless question 2 is answered in the negative.
Question 2 – also called the second limb or test – although there is a case to answer; is there sufficient evidence on the basis of which the court ought to convict the accused?
Again, the question does not ask whether the prosecution has proved its case beyond reasonable doubt. It is directed at the situation where there is only a scintilla of evidence or where the evidence is so weak or unreliable that no reasonable tribunal of fact could base a conviction on it.
If the answer to question 2 is no, i.e. there is insufficient evidence: the trial judge has discretion to either not call upon the accused (i.e. enter an acquittal) or order the trial to proceed.
If the answer to question 2 is yes: the trial must proceed”.
16.	The National Court has over the years reaffirmed these principles in many cases and some of which are: The State v Kuriday (1981) N300, Kearney. DCJ; State v Pep [1983] PGNC 44; [1983] PNGLR 19; N407 (14 February 1983); Kapi, DCJ; The State v Thomas Sange (2005) N2805, Cannings. J; State v Jigimbe [2018] PGNC 169; N7261 (29 March 2018), Kaumi AJ. 
The Evidence
Prosecution Evidence

 17.   The state called the victim, Kindi Kundi who gave sworn oral testimony. His evidence is summarised here. 

18.	He said that whilst he was away in his home province attending to a death and burial of a relative, he left his wife and children at their home at Nine Mile, in Port Moresby. The accused approached the victim’s family and gave them seven days to vacate the house. He disputed ownership of the land to the victim. The victim’s wife called him and informed him. She bought his ticket and he came back to Port Moresby. The elders of their community at Nine Mile settlement arranged for a mediation over the land. 

19.	On the 05th of January 2018, the victim’s brothers urged him to resolve the dispute as they were all related to each other. As the victim was about to speak, the accused raised his bush-knife and cut him with it. 

20.	The bush-knife was long like a grass knife. When the accused swung the knife to cut the victim, the victim raise his left hand in defence and the accused cut him on the left hand and left part of the head. 

21.	The victim demonstrated this by standing up in court, swinging his hands in motion to show how the accused swung the knife and raising his left hand to show how he defended himself. 

22.	The victim said on the first swing, the accused aimed to chop his head but he bent down and the accused missed him. On the subsequent swing, he was cut. He showed scars on his left hand between the middle and small finger, and on the elbow. He also showed a scar on the left side of his head, which had a bump. 

23.	The victim said that after he was cut, he was taken to the hospital. A private doctor who was doing his hours at the Port Moresby General Hospital at that time saw them and assisted them. The Doctor knew one of the victim’s brothers. After attending to the victim and treating his wounds, the witness said the Doctor wrote a Medical Report. 

24.	The victim did not know the name of the private clinic of the Doctor. He also was not able to read the contents of the report that he said the doctor prepared. He said the Doctor had given the report to him. The Doctor was not called to tender the medical report. 

25.The defence did not cross-examine the victim.
 
Defence Submission

26.	At the close of the State’s case, the defence made the following submission on a no case to answer application:

1.	Evidence is not clear on the reason for the mediation; evidence is not clear on what exactly was the issue that they were to settle on.

2.	It’s not clear as to whether the accused and the victim are related;

3.	Defence rely on both legs of Paul Kundi Rape; 

4.	There is no Medical Report on the extent of injuries sustained on the head or hand; 

5.	There are no corroborating evidence;

6.	There is no evidence of the weapon used;
 
7.	There is no medical report on wounds sustained; and 

8.	If court is to accept the victim’s story, and where he said the accused swung the knife a number of times, the victim would have suffered from some serious life-threatening injuries. There is no evidence. 

Prosecutions Submissions

27.    	Mr Gubon argued that the victim had given some evidence about an assault.

28. 	The victim demonstrated that the accused aimed at his neck with a bush-knife when he swung the first time and the victim avoided the knife. When he swung the second time aiming at his neck, the victim blocked the knife with his left hand, resulting in the accused cutting him on the elbow and left part of his head. The victim showed scars on his left hand, and left side of the head. The victim was taken to the hospital and he was assisted by a known person, who is a medical doctor.  

29. 	Despite there being no Medical Report, court can find that there is evidence of assault. 

30. 	On the charge of attempt murder, the evidence is established by the overt act of aiming at the neck of the victim and the manifestation of an intent to kill is therefore present. 

31.	On the charge of grievous bodily harm, state concedes that there is no evidence of grievous bodily harm.

32. 	It is open to the court to find on a lesser charge pursuant to to s 542 (1) of the CCA.  The provision reads: 

542. 		CHARGE INVOLVING SPECIFIC RESULT.
(1) On an indictment charging a person with an offence of which the causing of some specific result is an element, he may be convicted of any offence of which an intent to cause that result, or a result of a similar but less injurious nature, is an element.

(2) On an indictment charging a person with an offence of which an intent to cause some specific result is an element, he may be convicted of any offence that is established by the evidence and of which the unlawful causing of that result is an element.

Reply by Defence

33.	To find in the alternative for a lesser charge to Grievous Bodily Harm when Grievous Bodily Harm is the already an alternative to a primary charge of Attempt Murder is misconceived. The court should not find that it is proper in law to find in the alternative a lesser charge in the circumstance. There is no evidence supporting the charges on the indictment. 

Application
Count 1 – Attempt Murder, Section 304 of the CCA

34.	The state witness, victim Kindi Kundi gave sworn oral testimony that the accused lifted the bush-knife he had in his possession and swung at him aiming to cut his head or neck. If the court was to accept that version given by the State witness, that alone is not sufficient proof of an intention to kill. There must be more to show intent on the part of the accused to attempt to kill. The state must be able to show more on the element of intent based on circumstances surrounding the commission of the alleged offence.  For example, was there any planning, the extent of any injuries and whether they were serious and which parts of the body were the injuries located. Without the medical report, there is insufficient prima facie evidence to show that the accused had used such force that exhibited such an intent to kill.

35.	There is insufficient prima facie evidence on the elements of the charge of attempted murder. 

36.	The alternative charge of Grievous Bodily Harm under s 319 of the CCA must be considered next.

Alternative charge of Grievous Bodily Harm, Section 319 of the CCA

37.	The two element the state must prove on the alternate charge of Grievous Bodily Harm are: the accused did "grievous bodily harm" according to the definition in Section 1 of the CCA and the act of doing GBH was done unlawfully or was not excused by law. 
38.	For the first element, it is necessary to state the CCA definition of GBH, under s1 of the CCA. The CCA provides the definition of GBH to be any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health.
39.	In the present case, there is no medical evidence to show or support the victim’s story on the nature and extent of the injuries sustained. There is no medical report to show any injury likely to endanger life or cause permanent injury to health. State v Fasean [2014] PGNC 68; N5596 (13 May 2014) applied. Accordingly, there is insufficient evidence on the alternative charge of GBH under s 319 of the CCA. 

Finding of a Further Alternative to an Alternative Charge on the Indictment

40.	On the question of whether the Court can find a further alternate verdict on a lesser charge to already an alternative charge of GBH to attempted murder, counsels did not assist the court with proper legal basis on each of their respective arguments. In my research, I am guided by the case of State v Peter [2011] PGNC 131; N4299 (31 May) and State v Bassop [2010] PGNC 169; N3921 (4 Mar 2010). 

41.	The court in Bassop (supra, Cannings, J) said: It is open to the court on an indictment for a charge of GBH under s319 to enter an alternative verdict of guilty of a lesser offence, e.g., for unlawful wounding (Section 322), common assault (Section 335), assault occasioning bodily harm (Section 340) and serious assault (Section 341). I note that in Bassop (supra), the charge of GBH was not an alternative but a primary charge. 

42.	My understanding of my underlined emphasis, being ‘indictment for a charge of GBH’ is that where the indictment for a matter bears a charge of GBH, it was open to the court to find a lesser charge in the alternative. 

43.	In the present case, the state preferred an indictment for a primary charge of Attempt Murder under s 304 and (a) and in the alternative the state also preferred an indictment on the charge of GBH under s 319. By preferring the alternate charge of GBH, the accused is also indicted for GBH but only where the court does not find that the evidence supports a charge of attempt murder, then the court can make a finding of the alternate charge of GBH. 

44.	By operation of section 542 of the CCA and according to numerous case laws including the above case of State v Peter (supra), it is open to a Court on an indictment charging for GBH, in my respectful view, whether it is in the alternative or the primary charge, to still find in the alternative on a lesser offence, for example, of unlawful wounding (Section 322), common assault (Section 335), assault occasioning bodily harm (Section 340) and serious assault (Section 341)  of the CCA, pursuant to section 542 (1) of the CCA. 

45.	On that basis, I find that the alternative charge of a lesser offence can be found based on the victim’s evidence of the assault.   
46.	In this instant matter, on the sufficiency of the evidence at the close of the prosecution case, on the consideration of the elements of the charge, I adopt what the court stated in the State v Kaupa [2011] PGNC 28; N4258 to guide this court. Cannings, J stated:
“(1) On a primary charge of GBH, there are two elements of the offence under Section 319: doing grievous bodily harm to another person and doing it unlawfully.

(2) The first element was not proven as there was no medical evidence and the complainant's evidence as to the nature and extent of his injury was vague.
(3) The State, however, proved that the complainant suffered "bodily harm", thus an alternative conviction for assault occasioning bodily harm was available provided that it was proven that the accused assaulted the complainant and did so unlawfully”.
47.	 For this charge to stand, where there is insufficient evidence on charges of attempt murder and GBH, it must follow that the accused assaulted the complainant and that he did him bodily harm, those being two of the elements of the offence under Section 340 (1) of the CCA.
48.	In the application of the above case to the present, after the close of the state’s case, and I am mindful of not weighing up any evidence at this stage of the proceedings. 

49.	I find that there is some evidence to make out a prima facie case that the accused directly struck the complainant several times with a knife without his consent.  There is some evidence of the elements of the alternate charge that the complainant was injured, even though the nature and extent of the injury is unclear due to there being no medical report. 

50.	As per the victim’s story, he was bleeding as a result of the assault on him and was taken to the hospital. This would inevitably have interfered, to some extent, with his health and comfort. Evidence at this stage is that he now has scars on his left hand and bump on the left side of his head.  

51. 	I find that there is some evidence on an assault on the victim. 

52.	On the lesser alternative charge to a charge of GBH, by operation of section 542 (1) of the CCA, I find some evidence on the elements of an assault occasioning bodily harm. The State has established some evidence to make out a prima facie case under section 340 of the CCA that the accused did cause bodily harm. 
53.	The final element is that the accused acted unlawfully. The Defence had not put its case in cross-examination to the victim on any lawful defences.  The defence of unlawfulness of the assault at this stage is not an issue. 
54.	Based on the foregoing, and by operation of section 542 of the CCA, I will allow the accused to be called to answer to the alternative charge of assault occasioning bodily injury under s 340 (1) CCA. 
Conclusion

55.	I refuse the application on a no case to answer on the charge on the indictment.  The accused is called to present his case on a lesser charge.

Order

1.	I do not find sufficient evidence on Count 1 of the indictment that David 
Koim of Ralwa Village, Mul, WHP on the 05th day of January 2018, at Nine Mile, National Capital District in PNG, attempted unlawfully to kill one Kindi Kundi, thereby contravening Section 304 (a) of the CCA. 

2.	I do not find sufficient evidence on the alternative count, in Count 2, that 
David Koim of Ralwa Village, Mul, WHP on the 05th day of January 2018, at Nine Mile, National Capital District in PNG, unlawfully did grievous bodily harm to one Kindi Kundi, thereby contravening section 319 of the CCA.  

3.	Alternatively, by virtue of section 542 of the CCA, I do find sufficient 
prima facie evidence for an alternate count to Count 2 for GBH, on the lesser charge of Assault occasioning bodily injury under section 240 (1) of the CCA.

4.	The accused is called to answer to the lesser charge. 
________________________________________________________________
Public Prosecutor: 	Lawyer for the State              
Public Solicitor:	Lawyer for the Accused