N11074

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (JJ) 77 OF 2024

THE STATE

v

NB
Accused

Finschhafen: Murray J
2024: 6th & 7th November

CRIMINAL LAW – practice and procedure - indictment charging accused, a juvenile for wilful murder – no State witness called – Record of Interview tendered by consent - no case to answer submission – no admissions in Record of Interview to killing the deceased – no case submission upheld – accused acquitted - Criminal Code, (Amendment) Act 2013, Section 299A (1) – Criminal Code (Amendment) Act 2022, Section 5 – Criminal Code Act 1974, Section 7 (1) (b) & (c). 

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

Counsel
Mr. J. Done, for the State
M. N. Katosingkalara, for the Accused

RULING ON NO CASE SUBMISSION

7th November 2024

1.	MURRAY, J:   The accused, NB, a juvenile, was indicted yesterday with one count of Wilful Murder of one Newilak Sangawa, at Indagen Village, Kabwum District, Morobe Province on 23 April 2024, contrary to s 299A (1) of the Criminal Code (Amendment) Act 2013 and s. 5 of the Criminal Code (Amendment) Act 2022

2.	The accused was alleged to be a principal offender pursuant to s 7 of the Criminal Code Act, who was with another juvenile who attacked and killed the deceased.  The accused denied the charge resulting in a trial which the State did not call any witnesses to testify against him but tendered a number of documents with the consent of the defence and closed its case.

3.	The documents tendered by consent included:

1.	Both Pidgin and English versions of Record of Interview dated 7 May 2024 - Pidgin version - Exhibit “P1 (a) and English version - Exhibit “P1 (b)  
2.	Medical Report by Dr. Muzu Bane dated 2nd May 2024 - Exhibit “P2”.
3.	Medical Certificate of death dated 4 May 2024- Exhibit "P3"
4.	Six photographs pasted on one A4 paper - Exhibit "P4"

4.	At the close of the State’s case yesterday, Mr. Katosingkalara of Counsel for the accused made a No Case Submission. I heard the submission and reserved my ruling to consider the evidence tendered by consent which make up the State's case. I have now done that, and this is my ruling.

5.	Section 299A (1) of the Criminal Code Act as amended, and Section 7 (1) (b) & (c) of the Criminal Code Act read as follows: 

“Section 229A (1) 
Any person who intentionally kills another person on account of accusation that the person is practicing sorcery, is guilty of wilful murder”.
and, 
“Section 7 (1) (b) & (c)
(i)  When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and maybe charged with actually committing it:-
  (a) …………..
b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) every person who aids another person in committing the offence;
(d)……..”

6.	It is the State’s case that the accused was with one other who suspected the deceased of being a sorcerer who had killed their relatives. Based on their suspicion, they approached the deceased when they saw him in the garden. The other person who was with the accused, cut the deceased on his head with a bush knife killing him instantly. The accused who was there assisted in the killing of the deceased. 

7.	The issue here is whether or not there is a case for the accused to answer.

8.	There is no dispute as to the law with regard to a no case submission application following the State closing its case.  The authority for a no case submission is the case of State v Paul Kundi Rape [1976] PNGLR 96.  The case established two principles or tests to be considered in a no case submission, which were confirmed and applied in the Supreme Court case of State v Roka Pep (No.2) [1983] PNGLR 287. The principles applicable to a No Case to Answer Submissions are well settled in this jurisdiction. The principles are generally referred to as the first and second limbs or tests in criminal proceedings, where, at the close of the prosecution's case, there is a submission of a no case to answer. The first limb or test involves a question of law and it is for the judge as a tribunal of law. And the question is whether on the evidence as it stands, it supports all the essential elements of the offence. That is to say, if the prosecution fails to advance evidence to support one or more of the essential elements of an offence then as a matter of law, the accused must be acquitted because there is no case for him to answer. The second limb or test is, where the tribunal decides there is a case to answer, but nevertheless, has a discretion to stop a case at the close of all the evidence in appropriate circumstances; that 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.

9.	In simple terms, Pratt J, in the case of State v Roka Pep (No.2) said:

“A tribunal should make a finding of no case to answer where (a) there is no evidence to establish an element of the offence charged or (b) there is some evidence covering the elements of the offence charged but it is so tenuous or incredible or discredited that it amounts to only a scintilla and thus could not be accepted as persuasive by any reasonable person.”

10.	The defence relying firstly on the first test submits that the evidence adduced by the State, which comprises of the documents tendered by consent do not satisfy the element of a person, that is the accused, aiding and abetting in killing the deceased. In the circumstances it was the defence submission that, as  State has not satisfied the first element of wilful murder, the accused does not have a case to answer and that he should be acquitted.

11.	In the alternative, it was submitted that, if this Court find there is some evidence, the evidence as it is, is not sufficient to prove the element of the accused aiding and abetting the other person to kill the deceased. Mr. Katosingkalara relies on the second test for this argument.   

12.	Mr. Done for the State, in response submitted that, there is direct evidence of the accused assisting the other person in killing the deceased. The evidence, Mr. Done submits is admissions by the accused in his record of interview, (ROI) in Q & A 21-23. Based on that, Mr. Done submits, there is a prima facie case for this Court to refuse the no case submission and call the accused to answer to the charge. 

13.	In reply, Mr. Katosingkalara submits, the ROI is insufficient. The law is clear. This Court can not lawfully convict the accused on that evidence alone. As such, this Court must uphold the no case submission and acquit the accused.  

Consideration

14.	The no case submission is based on both tests or limbs of Paul Kundi Rape. Both are separate and distinct. As such, I will consider the submission for a no case to answer under the first test or limb first. If I find there is no evidence supporting one or more of the essential elements that would be the end of the matter. However, If I find there is some evidence, I will proceed to consider the alternative submission based on the second test or limb.

No case to answer submission based on the first test or limb.

15.	Applying the first or limb to the present case, the question is, whether the Defendant could lawfully be convicted on the evidence as it stands. That is to say, whether there is, with respect to the essential elements of the offence of willful murder under Section 299A (1), some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred.

16.	For there to be a case for the accused to answer the offence or charge of willful murder under section 299A (1), there are four essential elements that the State must produce some evidence in support of. They are: 

(i)	 	A person who kills another person
(ii)	 	intentionally 
(iii)	on account of accusation 
(iv)	that, that the person is practising sorcery

17.	In addition, the State must also prove elements arising from s 7 (1) (b) & (c) of the Criminal Code Act, which the State has pleaded and relies on. The elements arising from this section are:

(i)	A person;
(ii)	Who does the act or makes the omission; 
(iii)	That constitutes the offence. (In this case the offence of wilful murder)

18.	Is there some evidence that the accused killed the deceased or assisted in killing the deceased? 

19.	Mr. Done submits there is evidence of that, and the evidence is admissions by the accused in the ROI, Q & A 21 – 23. I have read and considered Q & A 21 – 23 of the ROI and I have also read and considered Q & A 1- 22 of the ROI,  (exhibit P1(a) & P1 (b) and found that the accused admitted that the deceased was cut by a bush knife and that he was with the other person who cut the deceased. However, that admission is only admission to the assault. There is no admission to the accused killing the deceased himself or him assisting the other to kill the deceased.(emphasis mine).That is the first element. And in light of his plea of not guilty, it is incumbent on the State at this stage to show by evidence that it has a case for the accused to answer to. But it has failed to do that.

20.	In conclusion, although there is evidence through admission in the ROI of the accused being there, his admission was to the assault because the questions were directed at that alone and not to him killing the deceased, which is the first element in the charge laid against him. I am therefore not satisfied that the evidence as it stands in support of the State’s case that the accused now before me killed the deceased as alleged, is sufficient to make a prima facie case against him for wilful murder under Section 299A (1) of the CC.  

21.	I therefore find the accused has no case to answer to the charge as presented yesterday (7th November 2024) and so I now dismiss the charge and acquit him accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State 
Public Solicitor: Lawyer for the Accused