N10793
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 236 OF 2021

THE STATE

V

MILA SILAS

Kokopo: Miviri J
2024	: 06th & 07th May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Trial – Prosecution Three Oral Testimonies of Witness – Application to Adjourn Summons Witnesses Refusing To give Evidence – Allegation of Murder 14 December 2018 – 6 years Since – Accused Remanded in Custody – No Material or Lawful Basis to Adjourn – 16th October 2020 Committal – Application Verbatim without Materials – Objection to Adjournment Defence – Sustained Application Refused.
CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Trial – No Case Submission – No Evidence Accused Identified – No Evidence Accused Assaulted Deceased – No Evidence As to How Accused Assaulted Deceased – No Medical Establishing Death of Deceased –– Material Inconsistencies in State Evidence At Close of – Accused Not Obliged to Evidence – Right To Silence – No Adverse findings Against – Accused Not Identified and Role – Death of Deceased Not Established at Close of State Case – No Case to Answer Upheld – Acquitted and Discharged Released from Custody Forthwith.
Facts
Accused was a policeman on duty on the night of 14th December 2018. He was the driver of that police vehicle that went and picked up deceased who was continuously assaulted until he was brought dead to the hospital. Accused helped in assaulting the deceased.

Held
No identification of Accused
No Death Established.
Cause of death not established.
No Case to Answer upheld.
Acquitted and discharged.
Released from Custody forthwith.

Cases Cited: 
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 
Rape, The State v [1976] PNGLR 96
Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287

Counsel:
J. Sausoruo, for the State
N Kubak, for the Defendant

RULING ON NO CASE 

07th May 2024

1.	MIVIRI J: 	This is the ruling of an application that was made after closure of the State case that the accused has no case to answer of the allegation that the State has levelled against him.

2.	He was charged with Murder pursuant to section 300 (1) (a) of the Criminal Code Act, which was in the following terms: -

(1)	Subject to the 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 intended to do grievous bodily harm to the person killed or to some other person;

(b) 	if death was caused by means of an act–

(i) 	done in the prosecution of an unlawful purpose; and
(ii) 	of such a nature as to be likely to endanger human life;
(c) 	if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–
(i) 	the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) 	the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) 	if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);
(e)	 if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).
Penalty: Subject to Section 19, imprisonment for life.

(2)	In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3)	In a case to which Subsection (1) (b) applies, it is immaterial that the offender did not intend to hurt any person.

(4)	 In a case to which Subsection (1) (c), (d) or (e) applies, it is immaterial that the offender–

(a) 	did not intend to cause death; or
(b) 	did not know that death was likely to result.

3.	And it was alleged against him that on the 13th December 2018 he was the driver of a police vehicle registered number PAH 161 around Rabaul Town. That on the 14th December 2018 in the early hours of 2.00am to 3.00am he drove that police vehicle to Raluana No 1 village along the Burma Road to attend to a complaint. There he and others also in the vehicle apprehended the deceased Michael Vue. Together with the others they beat Michael Vue up badly in front of his family. And put him the vehicle and took him to Rabaul Police Station, where he was assaulted further and then placed in the police cells. Whilst inside his condition worsen and he was rushed to the hospital a few hours later but was pronounced dead on arrival.

4.	It was alleged that the accused had assisted and helped in the assault of the deceased and therefore was caught out by the provisions of section 7 of the murder of Michael Vue pursuant to section 300 (1) (a) of the Criminal Code.

5.	Accused entered a not guilty plea to the Indictment that was presented tasking the State to prove that he was identified as one of the persons who assaulted the deceased. And that as a direct and immediate result he died from that fact. And that at that time when he assaulted the deceased, he intended to cause grievous bodily harm which the deceased suffered and died as a result of.

6.	Out of eleven (11) witnesses named on the Indictment dated the 06th May 2024 only three were called on oath. These included witness number one (1) on the Indictment, Pyas Matupit, three (3) Simon Vue and five (5) Harrison Pak. In the order they were called Harrison Pak originally from Malaguna No. 1 Rabaul was sworn and testified that he was picked on that night 13th December 2018. They had gone to Sunny Bird to identify his brother-in-law. That did not happen, and they drove back to Rabaul. Along the way they stopped at Raluana No.1 village. There he saw the Accused Milan assault the deceased who they said used to hold a gun. That he continued to assault him when he was brought back by the other policemen. Who all together assaulted him there and then loaded him into the vehicle by throwing him into the vehicle. There were four policemen in that blue 10-seater vehicle.  He knew the names of the policemen, as Paul Paul, Paul Peter, Mila and the other two he did not know their name. Before that date he did not know the name of the Accused. But he was the driver of the police vehicle that night.

7.	And he continued to assault the Deceased who was sitting at the back of the vehicle along the way to the Rabaul Police Station. The Accused did this twice in the period driving back. Along side him in the driver seat in front where two others making three in the front. He said the accused used his left hand to hit the deceased with. At the back against the back door of the vehicle was another policeman who continued to assault the deceased. And this continued at the Rabaul Police Station where the deceased was taken off the cement outside the police Station. The other policemen they came with were alongside the vehicle whilst accused continued to assault the deceased. He said he knows the accused by name, Mila because he used to see the accused in town and accused used to call them. That he saw the accused with his eyes assault the deceased. He tied him with the seat belt and then was punching him. And this was outside after they had brought him when he tried to run away, and they caught him brought him by the seat of the vehicle and were assaulting him. Primarily this was the evidence of this witness.

8.	 The next State witness was one Pyas Matupit who was asleep in his house on the night of the 14th December 2018 when he was woken up by the police. Who asked who were in the house with him. He replied his family and no other including the kitchen where the deceased was sleeping. He did not know that the deceased Michael Vue was sleeping there. I was on the steps when they came and kicked him on the ribs. He ran away as a result and Mila got my torch and pursued him down the drain and up the hill, hit him and dragged him up and threw him into the police vehicle. He pointed to the Accused as Mila who got the torch off him. And there were three policemen.

9.	In cross examination he did not know the accused by name as Mila. The light in which he saw the accused was from his house powered by solar. He said the accused came but he did not know it was him, Mila. And I came to know it was Mila. He did not know the names of the other two policemen. First time he heard the name Mila was at the police Station when they said he had driven the police vehicle up. And he had never faced and told the accused that you are Mila.

10.	He denied that the deceased was tied up with the seat belt by his hands by Mila and then, assaulted whilst been tied up. He was five meters away and did not see any of this happening to the deceased. And there was light all the way to the Police Vehicle from where he stood. There was one person who did not have police uniform with the police. And that the one not in uniform also assaulted the deceased. He did not know why the police arrived at his block because there was no complaint made to the police. And Policeman that took the torch from him was Mila the accused.

11.	The last state witness was Simon Vue the father of the deceased. He was asleep and heard a big noise. He woke up ran down and met his in-law, Pyas Matupit. There he saw the accused Mila got the torch off him and followed the other two policemen down. They got my son from the drain up brought him up and threw him into the Police Vehicle. Two policemen went to our water and washed their hands and feet and got on the vehicle. They could have assaulted him so came and washed their hands and feet. They lifted him up and threw him into the vehicle. The big noise I heard was shouting by the villagers, holim em, holim em, hold him, hold him, and it was the villagers who were calling this out. I did not see them. Nor did I see them chase my son. I only heard the shouting. I only saw two policemen hold my son and throw him into the Police vehicle. I was half asleep and not fully awake. And before this night I used to see the Accused driving the vehicle of Stanley Navex and the police vehicle, so I recognized him. I don’t know why the police came to my in-law’s house. The deceased was not tied but his hands were to the back held together when he was lifted and thrown into the vehicle. The accused was there but it was the two policemen who threw deceased into the police vehicle. 

12.	 After this evidence the State sought to adjourn so that it could prepare summons for the other witnesses who had refused to come and give evidence. The committal was made on the 16th October 2020 of an offence that allegedly took place on the 14th December 2018. Six years had lapsed and after the committal there was no summons taken out by the State to have those witnesses. It was listed for trial for two days and the State had not taken the pain to settle when it was listed by obtaining those summonses and issuing them to the subject witnesses required. On the eve of trial, it was seeking an application to adjourn so it could get summons to summon the witnesses to attend. In my view relevant and applicable was PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010) in that there was no material filed upon the basis of which adjournment was applied for. Rather this was adjournment sought so that the State will get summons to get the witnesses who refused to give evidence. That was not supported by the steps it had taken to bring the witnesses in. Here relevantly there were no evidence of attempts to have the witnesses come voluntarily to give evidence. It was simply an adjournment sought to prepare the basis to issue summons against all. It was made on the eve of trial. 

13.	This would effectively mean adjourning giving the State to prepare the summons endorsed by the Court to be served on the witnesses and to wait whilst that process was taking place. Effectively waiting to secure the witnesses for the state on the eve of trial set by all parties at pretrial conference. Effectively it did not accord with the criminal practice rules Part 1 Order 1 Division 3 where summons was required for witnesses, certain rules to apply. Here it was not the case for the Prosecution. No explanation was given as to why this was not done earlier. There was nothing apparent or identifiable to give leave to adjourn. Justice was double edged giving effect to the application would have been prejudicial to protection of the law under section 37 protection of the law in the case of the accused. The balance in all respects did not accord that adjournment be granted the State. The objection of the defence sustained, and the adjournment was refused closing the State case.

14.	The defence than made a no case submission based on Rape, The State v [1976] PNGLR 96 reinforced in Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287, that Accused could not be lawfully convicted because prima facie, on the face of it, he was not identified as the person who assaulted the Michael Vue. Even if he did there is no evidence of the injuries that were suffered by Michael Vue leading to his death. And these injuries emanated originated from the assaults that were inflicted by the accused on the deceased. It is a question of law, “When, at the close of the case for the prosecution, a submission is made that there is no case to answer, the question to be decided 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 really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a case to answer has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. That is a question of fact, Pep (supra). Which I am not allowed to ask at this stage.

15.	Here the evidence I set out above show that accused assaulted the deceased. He was in a group of policemen who assaulted the deceased that night 14th December 2018. But prima facie there is no evidence as to the injuries that the deceased suffered as a result of these assaults. Which injuries were grievous and led to his death. It will not improve even if the Accused is called to testify, because that is the field peculiar to medicine. And no evidence in this regard is on file to call him to answer. By dictate of section 37 (4) (10) the accused is not obliged to prove his innocence, the burden of proof is always on the State. They discharge it beyond all reasonable doubt. So effectively the accused has the right to silence, and it does not amount to anything in favour of the state if he chooses as he does to remain silent. We have not come to that stage. Here because of the lack set out above the Accused will not be called to answer the indictment. 

16.	In the exercise of my discretion, I will stop the case here. If there are no other charges pending warranting further incarceration in custody, I order that the accused be released forthwith. Effectively I uphold the no case submission and discharge the accused forthwith.

Ordered Accordingly
__________________________________________________________________
Public Prosecutor:  Lawyer for the State	
Public Solicitor   : Lawyer for the Defendant