N9738
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (JJ) NO. 1064 OF 2021

BETWEEN:
THE STATE

AND:
JIL
(a Juvenile)

Maprik:   Rei, AJ
2022:  5th, 8th, 9th, 10th, 14th & 15th June

CRIMINAL LAW:  Wilful murder – juvenile involved – defective indictment – insufficient evidence – dying declaration – identification – no case to answer – acquittal.

Cases Cited:

Papua New Guinean Cases

Roka Pep -v- The State [1983] PNGLR 19
The State -v- Paul Kundi Rape [1976] PNGLR 96

Overseas Cases:
R -v- Woodcock (1978) 168 ER 352 at 353

Legislation:

Section 299, 300(1)(a) and Section 529(d) of the Criminal Code
Section 20 of the Evidence Act

Counsel:

Mr. Anderw Kaipu, for the State
Mr. Dan Siki, for the Defence

15th June, 2022

1.	REI AJ:  The State presented an indictment on the 8th of June 2022 alleging that:

JUSTIN IAN LINJIN of Kumbinimbus Village, Maprik District, East Sepik Province stands charged that he at Kumbinimbus Village, Maprik District, East Sepik Province in Papua New Guinea on the 29th day of March 2020, murdered STEWARD LIKUN contrary to s.300 (1) (a) of the Criminal Code.

2.	In support of the allegations, the State alleged that on the 24th of March 2020, the accused who is a juvenile was in the house belong to the Ward Member for Maprik District together with other youths repairing and maintaining it.

3.	After completing the repair and maintenance work, the group started drinking alcohol at 5 pm on 28th March 2020 until the early hours of the next day 29th March 2020.

4.	It was at that time that the juvenile had an argument with a Nesmond Yali Bill who bumped the juvenile whose torch which provided the only lighting in the area fell off and its batteries became loose.

5.	The place became dark and visibility was impaired.

6.	The State further alleged that when the deceased went out of the verandah to stop further arguments, the juvenile hit him with a timber on the right rib cage. No details of the length and width of the timber was disclosed.

7.	The deceased Steward Likun was carried to the house and laid onto the verandah.
	
8.	The State further alleged that while the deceased laid on the verandah, a Raymond Kwaikra Suembo attended to him during which time he uttered words to him to the effect “the accused had hit him with a piece of timber on the right side of his rib (bone) cage.”

9.	The State says that the same words were uttered to other boys but did not disclose in the brief statement of facts who those other boys were and their names.

ARRAIGNMENT

10.	The juvenile was arraigned during which he denied the charge.

11.	The plea of not guilty was consistent with instructions given to Mr. Sika.

OPENING STATEMENT

12.	Counsel for the State Mr. Kaipu submitted that the only issue is that of identification; whether the juvenile accused was the one who inflicted wounds to the right rib cage of the deceased with a timber resulting in his death.

PRELIMINARY MATTERS

13.	I have carefully read the indictment and the brief facts as presented and have concluded that there is a significant lack of clarity and precision in the pleadings contained in the indictment in that:

(i)	it does not disclose the precise description of the timber used (size, length and type) by the accused to hit the deceased;
(ii)	it does not plead exactly to whom the deceased uttered the words: “the accused had hit who with a piece of timber on the right rib cage;” 
(iii)	the declarant did not mention the name of the accused when he uttered those words, as he only said the accused but hit him on his right rib cage; and
(iv)	although the accused is a juvenile his age was not pleaded in the indictment.

14.	These are important facts which should have been set out in the indictment as they constitute the essential elements of the offence – Section 529(d) of the Criminal Code and should be pleaded in the indictment so that the accused be put on notice as to his defence.

15.	The defence Counsel did not raise these issues at the preliminary stage of this case until I raised them in Court at the close of the State case on 10th June 2022.

16.	However, as evidence has been called, I will have to rule on this matter at this stage of the case.

STATE WITNESS

17.	The State called two (2) witness Yanji Ganua and Nesmond Yali Bill.

18.	Yanji Ganua stated that he was not with the boys until 11 pm on 28th March 2020.  He did notice an argument between the juvenile accused and Nesmond Yati Bill between 4:00 am and 5:00 am the next day.  But he stated clearly in examination-in-chief and cross examination that he did not see the juvenile accused hit the deceased with a timber.  He said he did not see him hit the deceased.

19.	This witness only stated that the deceased uttered words to the effect that he was hit by the ‘accused’ with a timber on the right cage.

20.	He said these words were uttered at the village on a verandah and then they took the deceased to the Boram General Hospital in Wewak which is a distance of 21/2 to 3 hours by road. The juvenile accused did travel with the boys to the Boram General Hospital where the deceased died.

21.	The juvenile accused did not stay behind or escape.

22.	The second witness Nesmond Yati Bill did not also identify the juvenile accused as the one who hit the deceased.

23.	Indeed, he stated irrevocably in cross examination that he did not see the juvenile accused being in possession of a timber in the morning of 29th March 2020 between 4 am and 5 pm.

24.	He admitted in evidence he had an argument with the juvenile accused and when he returned to the verandah, he noticed the deceased lying down.

MEDICAL

25.	The medical report prepared by the Health Extension Office of Boram General Hospital was tendered in evidence and despite objections raised by the defence Counsel, I exercised discretion and did allow it to be tendered.  It is Ex “CP”.

IDENTIFICATION OF THE DECEASED STEWARD LIKUN

26.	There is a serious lack of evidence as to the identity of the deceased by a close relative to say that he did see him alive on 28th March 2020 but was dead on the 29th March 2020. That the relative was the last person who saw him alive and well.

DYING DECLARATIONS

27.	Dying declarations are made by deceased persons immediately before death occurs.

28.	Section 20 of the Evidence Act provides:

“A statement made orally by a person before his death relating to the circumstances resulting to his death is admissible in any legal proceedings if –
(a)	at the time when the person makes the statement he believed, or may be reasonably supposed by the Court to have believed, that his death was imminent, whether or not;
(i)	he entertained at that time any hope of recovery; or
(ii)	he thought that legal proceedings might eventuate; and
(iii)	at the time when the person made the statement he would have been a competent witness in the proceedings; and
(iv)	the person making the statement could, have given direct oral evidence in the proceedings of the matter in statement.”

29.	As Eyre CB said in R -v- Woodcock (1789) 168 ER 352 at 353:

“The principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.”

30.	While Mr. Kaipu stated in his opening remarks that the issue in this case is that of identification, the evidence suggest that the State wholly depended on the “dying declaration” of the deceased to safely secure a conviction. In his submissions he correctly stated it is an exception to the rule of hearsay.

31.	I say this because no eyewitness gave evidence that he saw the juvenile accused swing a timber of a particular description, size and length striking or hitting the deceased on his right rib cage resulting in death.

32.	The words uttered in the dying moments of the deceased do not clearly name the juvenile accused as he then allegedly told Raymond Kwaikra Suembo that the ‘ACCUSED’ hit him with a timber at the right rib cage.
(emphasis added)

33.	The statement does not say that the deceased said that he was hit by Justin Ian Linjin or words to that effect.

34.	Secondly, the use of the word ‘accused’ by the deceased at that stage was premature and senseless because the juvenile had not yet been arrested and charged that he should be referred to as ‘the accused’ either by the deceased or his witnesses at that stage.

35.	At that stage, the juvenile accused was only a ‘suspect’. Even so, if the deceased had been hit by the juvenile and the deceased saw him, he should have clearly said: “I was hit by Justin Ian Linjin or Justin or Linjin with the use of a timber…” because the deceased and juvenile were together at the house of the Ward Member since the 28th of March 2020 until the 29th of March 2020.

36.	The use of the word ‘accused’ as in the alleged dying declaration is a misconceived and seriously misleading.

37.	I have reasonable doubt in my mind as to the veracity or truthfulness or credibility of the evidence of both Yanji Ganua and Nesmond Yali Bill in as far as the dying declaration is concerned whose evidence are conflicting and contradictory evidence.

38.	Even if Raymond Kwaikra Suembo gave evidence in Court as to the dying declaration, I still could have held the views expressed herein in that the statement is ambiguous and lacks clarity. Raymond Kwaikra Suembo is the witness to whom the dying declaration was made by the declarant deceased. But he was not called to testify.

39.	Finally, I am of the view that the indictment lacks particularity as insufficient facts were pleaded to pin down the juvenile to the charge of wilful murder.

40.	I am therefore of the view that this case should be stopped at this stage in line with the decision in the case of Roka Pep -v- The State [1983] PNGLR 19 and The State -v- Paul Kundi Rape [1976] PNGLR 96.

41.	The Orders of the Court are that:

(i)	the case is dismissed
(ii)	the accused is discharged
_____________________________________________________________________
Public Prosecutor: Lawyer for the State	
Public Solicitor: Lawyer for the Defendants