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State v Poki [2025] PGNC 153; N11286 (14 May 2025)

N11286

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 791 OF 2017

THE STATE

V

JEROME POKI

WEWAK: CAREY J
13, 14 MAY 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder- State closes case with no witnesses - No mens rea – No Case to Answer Submissions - Not guilty - Acquitted and discharged -Released from custody forthwith.

The accused was arrested and charged with one count of wilful murder pursuant to section 299(1) of the Criminal Code Act. The State indicated to the Court that there were no witnesses willing to testify. As such, the State formally closed its case. A No case submission was made by the Defence.

Held

1. The witnesses refused to testify or come forward.
2. The evidence was insufficient to establish mens rea and therefore there is no wilful murder.
3. The no case submission is upheld.
4. The accused is acquitted and discharged.
5. The accused is to be released from custody forthwith.
   

Cases cited
Rosa Angitai v The State [1983] PNGLR 185
The State v Jimmy Kipma [1997] PNGLR 178
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Roka Pep (No 2); In the Matter of the Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287

Counsel
D. Ambuk for the State
A. Kana with A. Koraino for the defendant

VERDICT

1. CAREY J: This is the verdict of the Court with respect to Jerome Poki (the accused) contravening Section 299 (1) of the Criminal Code Act committing wilful murder. Having been indicted, the accused pleaded not guilty.

Brief Facts

2. The accused and George Poki (the deceased) are biological brothers.

3. The deceased arrived home at the residential address within Kua Settlement in Wewak, East Sepik after drinking around 1am on 10 December 2016.

4. The deceased argued with his father over cultural obligations associated with his mother’s grave and headstone and started attacking the father inflicting injuries on his father’s left hand and his legs.

5. The accused after hearing the commotion came from behind and attacked the deceased with a bush knife inflicting injury to the deceased.

6. The accused continued attacking the deceased which resulted in injuries to the deceased’s left rib cage, hands and his head.

7. The accused ran away from the scene and some time later after the deceased was taken to the hospital he passed away.

State Case

8. The State tendered evidence as follows:

Record of Interview Original Version in Pidgin (4 pages) - Exhibit A1

Record of Interview Translated version of Pidgin (4 pages) – Exhibit A2

Statement of Arresting Officer (2 pages) – Exhibit A3

Statement of Corroborating Officer (1 page) - Exhibit A4

Document of photographs (2 pages) – Exhibit A 5

9. The evidence as presented was the only documents available for consideration and I had the opportunity to read and view the material.

10. The Court was informed by the State that the Arresting Officer indicated that there were no witnesses willing to testify and as such there were no witnesses for the trial.

11. The state indicated who the accused was based on Exhibit A2 and specifically questions answered in numbers 20 to 27.

12. It was further stated who the deceased was based on Exhibit A5.

13. The State proferred that the evidence before the Court could be inferred from the Pre-Trial Review Statement from the Defence as provided in Section.267, Sections 270 and 271 of the Criminal Code Act.

14. The State further indicated that the Court would need to determine whether the action by the accused was unlawful and whether he inflicted death and based on the Exhibits A1 to A5 tendered where intention to cause death was established without eye witnesses.

15. The State then formally closed its case.

Defence Case

16. The Counsel for the accused made a no case submission in relation to the charge and indicated that no reasonable tribunal could convict the accused.
17. Counsel for the accused referred the Court to the case of The State v Roka Pep (No 2); In the Matter of the Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287 in which it was held that:
    

“(By Kidu CJ, Kapi DCJ, Andrew and Kaputin JJ) 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 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.”

18. The elements of the wilful murder as per Section 299(1) of the Criminal Code Act are: (a) the offender (b) intent to cause death (c) the act of killing and (d) death.
    
19. The evidence has presented by the State is insufficient to support all of the elements of the offence of wilful murder.
    
20. There must be a mental element in relation to this offence and this cannot be proved beyond reasonable doubt based on the Exhibits A1 to A5 tendered into evidence and in absence of eyewitnesses, I am not persuaded that this can be done.
    
21. I remind myself that in considering the submissions on no case to answer, I also take into account my constitutional duty to do justice given the circumstances of the particular case as expressed in Section 155(4) of the Constitution.
    
22. Moreover, I am to consider whether this trial ought to proceed beyond this point.
    
23. In The State v Paul Kundi Rape [1976] PNGLR 96, where there is insufficiency of evidence the accused may be called to answer and this is a matter of discretion for the Judge.
    
24. I am not persuaded that calling the accused to answer in relation to the insufficiency of the evidence would assist the court in arriving at any determination than what currently exists.
    
25. I have considered and pondered on this case having also read the case The State v Jimmy Kipma [1997] PNGLR 178, which also espouses the position that,
    

“The essential question in a 'no case' application is whether on the evidence as it stands, the accused would be lawfully convicted. This is a question of law. I am required only to assess whether the evidence produced thus far, either directly or indirectly make out all the elements of the charge.”

26. I am satisfied having reminded myself of the various issues for consideration of a trial judge in these circumstances that this trial ought not to proceed any further and to allow it to continue given the evidence before the court would be an injustice.
    
27. The tragic reality that is involved in this case while a matter that has consequences for this family can now be a part of a chapter that should be closed that can now allow healing based on the justice system of Papua New Guinea
    
28. In Rosa Angitai v The State [1983] PNGLR 185 it was held:
    

“Where a no case submission is made, the trial judge is not, except where he accepts the submission and acquits the accused, required to give reasons for his ruling.”

29. I find that the intention to cause death is not established and in absence of mens rea or mental element there is no crime committed in respect of wilful murder.
    
30. Therefore, I accept the No Case to Answer submission as posited by the Counsel for the accused and return a not guilty verdict.
    

ORDERS

31. The Court orders that:
    1. The evidence was insufficient to establish mens rea and therefore there is no wilful murder.
       
    2. The no case submission is upheld.
       
    3. The accused is acquitted and discharged.
       
    4. The accused is to be released from custody forthwith.
       

Orders Accordingly.
_______________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the defendant: Public Solicitor