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State v Nicky [2021] PGNC 467; N9321 (23 November 2021)

N9321

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 220 0F 2019

THE STATE

V

ILAM NICKY
Accused

Daru: Sambua, A J
2021: 12^th, 16^th, 17^th, 18^th, 19^th & 23^rd November

CRIMINAL LAW – murder –accused punched deceased right side of head- deceased walked away and fell and died

CRIMINAL LAW – No case to answer application – first limb – whether all elements of the charge have been established – second limb – whether evidence is tenuous and unreliable and case to be stopped – evidence of accused punching deceased on right temporal is sketchy -accused deny punching deceased in record of interview – No case to answer application upheld- accused discharged forthwith.

Cases Cited:
State v Paul Kundi Rape [1976] PNGLR 96
State v Roka Pep (No 2) [1983] PNGLR 287

Counsel
Miss H. Roalakona and Mr S. Kuku, for the State
Mr I. Paelaea, for the for the Prisoner

Ruling on a No Case to Answer Application

23^rd November, 2021

1. SAMBUA, AJ: The accused Ilam Nicky through his Lawyer, Mr Paelaea from Public Solicitor’s office made an application for a no case to answer based on what is commonly known as the second limb or leg of the principle stated in the famous case of State v Paul Kundi Rape [1976] PNGLR 96.
   
2. The accused Ilam Nicky was indicted with one (1) count of murder, contrary to Section 300 (1) (a) of the Criminal Code.
   
3. Section 300(1) states:
   

Subject to succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: -

(a) if the offender intends to do grievous bodily harm to the person killed or to some other person,
(b) ...........
(c) ..........

Penalty: Subject to Section 19, imprisonment for life

Background of the case

4. There was an argument between students from Pondare village and Wimpim village attending Wimpim Primary School over a makeshift shelter built by Wimpim village boys. The argument resulted in a fight between the two (2) groups which was brought to the attention of the Wimpim Primary School Board of Management and was settled.
   
5. However, later that afternoon, there was another fight between the two (2) groups after school, as they were going home to their respective villages.
   
6. The accused Ilam Nicky was informed of this fight by his younger brother Jordan Nicky who was involved in the fight. On the next day the accused led a group of boys from Pondare village and went to Wimpim village and had a fight with Alton Kaus. In the cause of the fight the deceased Buka Sagere was punched resulting in his death.
   
7. On arraignment, the accused pleaded not guilty, and a trial was convened. The State’s evidence consisted of oral sworn evidence, documentary, and real evidence which I will allude to later in the course of this ruling.
   

No Case to Answer

8. The principle of No Case to Answer is stated in the case of State v Paul Kundi Rape [1976] PNGLR 96. There are two principles or limbs laid out in the case of the State v Paul Kundi Rape (supra). In first principle or the limb, it is where a submission of no case to answer is made, the judge examines the evidence as a question of law to determine “whether the evidence supports the essential elements of the offence”.
   
9. In the second principle or limb, it is where the question to be asked is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands, he could lawfully be convicted. This is a question of law to be carefully distinguished from the question of fact to be asked at the close of all the evidence namely whether the prosecution has proved its case beyond reasonable doubt.
   
10. In the case of the State v Roka Pep (No 2) [1983] PNGLR 287, it was stated that:
    

“The second principle is where a judge decides there is no case to answer, it has a discretion to stop the 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 evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it”.

The Evidence

11. The State’s evidence consisted of sworn oral evidence, documentary, and real evidence
    

Oral Evidence

12. The State’s Oral evidence was elicited from the followings state witnesses:
    

a) First Constable Wilson Misa

He was called for the purpose of tendering, ROI, photographs, sketch map of scene of crime and the bush knife that was allegedly used during the fight.

He is a policeman attached to the Daru Police Station. He got involved in the investigation after he was instructed by the Station Commander after there was a report of a death recorded in the Police Occurrence Book (OB). The ROI tendered and marked as Exhibit “A” and the photographs were tendered through him and marked as Exhibit “B”, “C” and “E” to “J” the sketch of map of the scene of crime was tendered and marked as Exhibit “J” and the bush knife was tendered and marked as Exhibit “K”.

b). Arupha Bawi

He was the second witness called by the State who gave sworn oral evidence. He told the court that on the 27^th of September 2018, he and Chris Nombe were with Alton Kaus at his house at Wimpim village when the accused Ilam Nicky and his boys arrived. The accused Ilam Nicky went up to the house, went inside and fought with Alton Kaus inside the house.

The fight then moved outside to the ground and they both continued to fight. As they were fighting outside, the deceased Buka Sagere who was present at that time tried to stop the fight when Ilam Nicky punched him on his right chin.

He described the positioning of the three as Alton Kaus was in the middle facing the accused and the deceased Buka Sagere was right behind Alton Kaus and was also facing the accused Ilam Nicky. He told the court that the deceased was holding onto Alton Kaus and stopping him (Alton Kaus) from fighting.

He told the court that after the deceased had been punched on his right chin, he walked away wobbly and fell down and died.

He also told the court that he knows the accused Ilam Nicky very well and pointed him out in court in the accused’s dock.

In cross examination he maintained the same story confirming his evidence in examination in chief.

The court asked a question whether the accused was a right-handed person and he answered in the affirmative.

c). Chris Nombe

He was the third witness for the State. He also gave sworn oral evidence. His evidence was a reaffirmation of the evidence given by Arupha Bawi

d). Alton Kaus.

He was the fourth witness called by the State. He also gave sworn oral evidence in court affirming the evidence of Arupha Bawi and Chris Nombe however slightly differed from Arupha Bawi and Chris Nombe in that the deceased Buka Sagere was not actually holding him when the accused Ilam Nicky punched the deceased. But he confirmed that the deceased was right behind him and was also facing the accused Ilam Nicky.

In cross-examination when suggested to him by Defence Counsel that the accused did not punch the deceased Buka Sagere and he answered that the accused Ilam Nicky punched the deceased on his right chin. He said that the punch was intended for him but when he moved sideways the punch landed on the deceased right chin with a demonstration. He also confirmed that the accused Ilam Nicky is a right-handed man.

13. I am having difficulty understanding this piece of evidence about a right-handed person punching someone on his right side when he is directly facing him. The punch should land on his left side and not on the right side. In this case the injury on the deceased was on the right side.
    

Documentary Evidence

14. The State’s documentary evidence consisted of the Record of Interview, the photographs, the sketch map of scene of crime and the Accident Report of the Death of Buka Sagere by Mr Daruki Gorea dated 29^th September 2018.
    

Record of Interview

15. The record of interview was tendered into evidence and marked as Exhibit “A”. The accused in the record of interview admitted going to Wimpim village and fighting with Alton Kaus on the 27^th of September 2018 but denied punching the deceased Buka Sagere throughout the ROI except in Q & A 23, he said that he saw his face there and he was standing about 4 to 5 metres away.
    

Photographs

16. A total of nine (9) photographs were tendered into evidence and marked as Exhibits “B” & “C” and “E” to “I”. The relevant photograph is exhibit “C” which depicts the injury to the right temporal area close to the ear of the deceased.
    

Sketch Map of Scene of Crime

17. The sketch map of the scene of crime was tendered through the investigating officer First Constable Wilson Misa and marked as Exhibit “J”. This document is not much of help.
    

The Accident Report of Death

18. This report was initially objected to by the Defence on the basis that the author of the report has since died and he is not available for it to be tendered through him. It was however admitted as a business record under section 61 of the Evidence Act chapter 48 because of the fact that such a report relating to the death of the deceased Buka Sagere was made and was kept in the custody of the South Fly District Health Authority.
    
19. And for the purpose of the completeness of this case which relates to the killing of the deceased Buka Sagere and in the interest of justice, it would only be fair to admit such a record under section 61 of the Evidence Act and accordingly was admitted into evidence and marked as Exhibit “L”.
    

Issue

20. There are two issues here to be determined as per the principle of No Case to Answer is concern as stated in the case of State v Paul Kundi Rape (supra) and the case of State v Roka Pep (No 2) (supra).
    
21. The first one is whether the evidence adduced by the state from its witness and the documentary evidence establishes all the elements of the charge of murder under section 300(1)(a) of the Criminal Code and the second issue is whether the evidence so far adduced by the state is insufficient and/or lacking in weight that the court should exercise its discretion to stop the case here and not to call upon the accused to give evidence.
    
22. To answer the first issue, let’s look at the elements of murder. The crime of murder under section 300 (1)(a) of the Criminal Code.
    
23. In State v Samuel Roth [2018] PGNC 470; N7591, Madang: Canning, J. The facts of the case were that the accused was charged with murder under Section 300(1)(a) of the Criminal Code. The deceased was his wife. A domestic dispute took place in the family home. The accused struck the deceased, who died about 18 hours after the incident. The accused denied causing the death of the deceased, who he claimed died due to her taking an overdose of medicine. He also raised the defences of self-defence and provocation. In that case His Honour Cannings, J held that:
    

“There are two elements of murder under Section 300(1)(a): that the accused killed the deceased and that the accused intended to cause grievous bodily harm to the deceased (or some other person)”.

24. In this case, the accused throughout the record of interview which was tendered into evidence and marked as Exhibit “A” admitted going to Wimpim village and fighting with Alton Kaus on the 27^th of September 2018, however he denied punching the deceased Buka Sagere. He said that he saw his face there and he was standing about 4 to 5 metres away. (Q & A 23)
    
25. The State in its endeavour to prove its case had called three witnesses, Arupha Bawi, Chris Nombe and Alton Kaus. Their evidence is similar in all aspects except for Alton Kaus who told the court that the deceased was not actually holding onto him and stopping him from fighting with the accused Ilam Nicky when he was punched by the accused Ilam Nicky.
    
26. All three witnesses told the court that the deceased was right behind Alton Kaus and was also facing the accused Ilam Nicky when he was punched on his right chin.
    
27. In cross-examination when suggested to him by Defence Counsel that the accused did not punch the deceased Buka Sagere and he answered that the accused Ilam Nicky punched the deceased on his right chin. He said that the punch was intended for him but when he moved sideways the punch landed on the deceased right chin with a demonstration. He also confirmed that the accused Ilam Nicky is a right-handed person.
    
28. As alluded to above in respect to the evidence of Alton Kaus, Arupha Bawi and Chris Nombe, I am having difficulty understanding this piece of evidence about a right-handed person punching someone on his right side when he is directly facing him. I am finding it hard to comprehend. The punch should land on his left side and not on the right side. Hence creating doubt as to whether it was the accused Ilam Nicky who punched the deceased or could have been someone else.
    
29. The Accident Report of the Death of Buka Sagere that was tendered into evidence is not much of help. It also confirmed the injury on the right jaw. One thing for sure is that this report was compiled based on observation of the deceased condition at the time of death. There was no actual post-mortem done on the deceased Buka Sagere to determine the cause of death. Hence the cause of death remains undetermined.
    
30. The injury to the right chin which is depicted in photograph marked as Exhibit “C” shows the right-side chin where the deceased was punched by the accused Ilam Nicky. It is described by the health worker as bruises and had a massive swelling. This too I am having doubt as to the amount of force applied by the accused to punch the deceased?
    
31. And furthermore, the way it was demonstrated in court by Alton Kaus, the impact of the punch would have been minimal and would not have resulted in such a heavy impact causing bruises and heavy swelling on the deceased. In my view it could have been an injury from a heavy blow from a blunt object rather than from a human fist.
    
32. I am of the opinion that evidence adduced by the State thus far is sketchy on how a right-handed person could land such a heavy punch with his fist on the right chin of a deceased causing bruises and heavy swelling that led to his death? From my observation from the photograph tendered into evidence and marked as Exhibit “C” depicting the injury to right chin which is confirmed by the Accident Report of the Death of Buka Sagere, it appears that the injury was caused by a blunt object rather than a human fist.
    
33. Applying the principle or the limbs of no case to answer in State v Paul Kundi Rape, I find that the elements of the charge of murder especially the element of an intention to cause grievous bodily harm is lacking and has not been established by the State thus far.
    
34. Accordingly, I find on the first limb of no case to answer principle in State v Paul Kundi Rape that the accused Ilam Nicky has no case to answer and therefore acquit him of the charge of murder under section 300(1) (a) of the Criminal Code.
    

Order:

35. The Court orders that:

1. The Defendant’s No Case to Answer application is upheld.
2. Accused is acquitted and discharged from the murder charge.
3. Bail monies if any to be refunded.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender