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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR NO. 2127 OF 2023
THE STATE
V
JANET KUND MALU
MINJ: CROWLEY J
7, 8 JULY 2025
CRIMINAL LAW – decision on No Case Submission – Terms of Indictment for offence of murder - Section 300(1)(a) of the Criminal Code.
Cases cited
The State v Paul Kundi Rape [1976] PNGLR 96
Paulus Pawa [1981] PNGLR 498
State v Roka Pep [1983] PNGLR 287
Counsel
Ms. Tanja Kalg, for the State
Mr. Fabian Timbi, for the accused
1. CROWLEY J: This is an application by the defence that the accused Ms Janet Kund Malu has no case to answer. The trial came on before me yesterday
7 July 2025 and the State closed its case mid-morning today 8 July 2025.
2. The accused was charged that in Nodugl Village, North Waghi Jiwaka Province that she, on 17 June 2022, at Kuspa Village in Papua
New Guinea, murdered Gilma Kolngo, contrary to Section 300(1)(a) of the Criminal Code.
3. The States case is that on the morning of 17 June 2022 between 8am and 9am in the morning the accused murdered of her husband Gilma Kolngo. That the accused and her husband were fighting inside their house. During that fight, the State alleges that she used a branch to hit the deceased. She struck him on the right side of his neck so hard that it killed him.
4. When the trial commenced the Prosecutor informed the Court that three of the four prosecution witnesses were not at court and the Police were unable to locate them. The Prosecutor said that the accused family had given compensation to the deceased family and as such the lay witnesses (who were from the same village) were reluctant now to give evidence. On the first day only one lay witness gave evidence and on the second day only one other could be located and brought to court.
Charges/ elements
5. The charge of MURDER. Under Section 300:
(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
Evidence adduced by the State
6. The indictment before the court no 2127 of 2023 identified that there were six witnesses for the prosecution. They were;
7. Two of those witnesses were not called because they were not required for cross examination and/or their statement were tendered by consent.
8. The State tender seven exhibits by consent. The first two exhibits were the statements of the two police officers Constable Matthew Kuahen and PWF Constable Pauline Paul who the Defence did not require for cross examination.
9. Exhibit 1 was the statement of PWF Constable Pauline Paul. Constable Paul was the corroborating officer with Constable Kuahen for the interview of the defendant on 24 August 2022. She did not depose to any further interaction with the investigation of the defendant.
10. Exhibit 2 was the statement of Constable Matthew Kuahen. According to that statement on Friday 17 June 2022 Constable Kuahen arrived at the Banz Police Station at 6:20pm to find the defendant in the holding cells. He formally arrested her and charged her with the wilful murder of her husband Gilma Kolngo. Constable Kuahen then cautioned the defendant and told her of her constitutional rights under s42(2).
11. On Saturday 18 June 2022 between 9am and 11am Constable Kuahen obtained statements from Par Kolngo, Peter Gono, Alfred Kamna and Wune Auen.
12. On 24 August 2022 in company with Constable Pauline Paul, Constable Kuahen conducted a written record of interview with the defendant. It was conducted in pidgin and later translated to English.
13. Exbibit 3 was the record of interview in pidgin and Exhibit 4 was the record of interview translated into English. It was conducted on Wednesday 24 August at the Barawaghi Criminal CIS in Simbu Province. It contained no admissions. When asked was happened on the morning of 17 June 2022 the accused answered “He tied the robe [sic] on his neck and died and they carried him into the house”. She denied fighting with the deceased or assaulting him.
14. Exhibit 5 was an Affidavit of Doctor Glen James. It attached the autopsy report. He deposed that on 20 June 2022 at the Mt Hagan Provincial Hospital he conducted a post mortem examination of the deceased. The Post Mortem Report identified that on the right side of the neck there was “a pressure mark from a solid object that is dark in colour on the skin extending from the neck midline to the posterior neck.” It continued “The bruises were on the right side of the neck and extended to the anterior chest upper most part and involving the lateral chest and flanks bilaterally”.
15. Exhibit 6 was the death certificate which identified that the Disease or condition directly leading to death was “blunt injury to the right neck sustained from a forceful impact with a solid object”.
16. Exhibit 7 was two pages of colour copies of photographs of the deceased. The first page was a full length shot of the deceased on a slab. The second page was a close up of the deceased neck where a discolouration of bruise is visible.
17. Three witnesses the State called to give oral evidence were Constable Matthew Kuahen , Peter Gono And Par Kolngo.
18. Constable Matthew Kuahen was called in an effort both to demonstrate the Prosecutor and Police difficulties in locating witnesses.
19. His evidence that on the day before trial he had informed those witnesses they needed to come to court to give evidence. When asked if he could explain why most of those witnesses didn’t attend Constable Kuahen said he was aware that there had been a peace ceremony and a live pig and money had been given to the deceased relatives. In relation to Peter Gono, Constable Kuahen said that Mr Gono lived between the accused and the deceased relatives which may account for his reluctance to give evidence.
20. When asked if he could produce Par Kolngo, Wuan Auen and Alfred Kaman the following day, Constable Kuahen said he would do his best but thought he would be unable to produce the other three witnesses. He had driven around for 3 hours on the morning of the trial looking for the witnesses and had only found Mr Gono on a bus.
Peter Gono
21. The other witness on the first day of the hearing was Peter Gono. He worked as a chaplin in a secondary school and was married with two daughters. His evidence was that he was a neighbour of the accused and the deceased though his house was some distance from theirs. When asked for his recollections of 17 June 2022 he said it was a long time ago and he couldn’t remember much. A summary of his story that came out piecemeal was that; on the morning of 17 June 2022, he saw a little boy walking along the road and heard him say that Gilma Kolngo had died. Mr Gono went to the house of his neighbours. He heard people inside crying and wailing. They brought the body of the deceased outside and Mr Gono took it to the road and put it in the car.
22. Mr Gono accepted that he had given a statement to police and was shown it. He accepted that it was his signature. He accepted that the story he told police was different to the one he had said in court. He maintained his story that he never entered the house and that the body of the deceased was brought out to him.
23. It was put to Mr Gono that what he told the police was a lie. He said he was in court as a witness of peace because they all lived close together and he didn’t want any problems.
24. In cross examine it was put to Mr Gono that he did not see who killed the deceased nor did he see a fight between the deceased and his wife. Mr Gono accepted this but he confirmed that the deceased and the accuse had marital problems. However, when it was put to him that the deceased used a rope to hang himself, Mr Gono answered “I will not lie”.
26. When the Prosecutor re-examined she asked if the witness could be declared hostile. I ruled on that in an ex tempore judgment this morning.
Par Kolngo
27. After that ruling the State called their final witness Par Kolngo. He was unemployed, married with five children. He was the deceased brother and lived in Kongwil village at the back of the Waga bridge in Jiwaka Province. His evidence was that this was “very far”, “quite far” and “quite a distance” from the deceased and accused house. When asked what happened on 17 June 2022 he said “if I was to say something, I would be lying to this court. I live some way away. I was told someone was killed and put in a car. They took the body to the hospital”.
28. Mr Kolngo said he was told his brother’s body was taken to the hospital. He went there to see for himself. At the hospital he saw his brother’s body. It was lifeless. He took his brothers clothes off. He was looking for the injury. He saw a black mark on the deceased neck. It “...must have been a big mark. From that mark, he died”. When asked to confirm if the second page of Exhibit 7 depicted the mark on the deceased neck that he saw Mr Kolngo took a long time to answer. When prompted he said “He died from this mark so it is hard for me to say anything”.
29. It was put to him that he did not see his brother attacked or killed. Mr Kolngo agreed saying “That is true they killed him and after they killed him they took him to the hospital”. It was put to him that the accused was at the hospital mourning the death of her husband. Mr Kolngo said she did not see her there. It was put to Mr Kolngo that the deceased died as a result of hanging himself. Mr Kolngo responded “That might not be true”
30. After Mr Kolngo was excused, the State closed its’ case. The witnesses Wune Auen and Alfred Kaman having not turned up to court, the Defence made a No case application.
Defence submissions on No Case
31. The defence submissions was that the evidence showed the accused had no case to answer. They submitted that the evidence of Constable Kuahen was unreliable. They further submitted that accused had made no admissions in the record of interview. Finally, the defence submitted that the affidavit of Dr Glen John attaching the certificate of death and the postmortem report reveal that the conclusions were based on an external observation of the body. No internal examination was done therefore the doctors cause of death was unreliable. They are merely assumptions.
35. The Defence concluded by saying that all states witnesses were unreliable, and their evidence was inconsistent. The witnesses did not see who attacked the deceased. This evidence was so lacking it had no weight.
Prosecution submissions on No case application
36. The Prosecutor submitted that the State’s evidence consisted of the exhibits filed plus the oral testimony of the two witnesses Peter Gono and Par Kolngo.
37. The elements of murder were that the accused killed the deceased and had an intention to kill or do GBH to the deceased or someone else.
38. The prosecutor submitted that the State’s case was circumstantial. There was no direct evidence of the accused guilty. However, on a No Case to Answer application, the court should not be asking itself whether the prosecution had satisfied the Court beyond reasonable doubt about all elements of the offence.
39. Finally, the prosecutor submitted that the law in relation to cases relying solely on circumstantial evidence was clear (Paulus Pawa). The test being that that guilt be the only rational inference to be drawn from the evidence.
Law
40. I will now turn to the law on no case applications
41. A No Case submission is based on the defence assertion that the evidence admitted by the State is lacking, in that there is
no evidence to prove one or more of the elements of the charge. As such there is no need for the court to weigh the evidence against
the accused. The State v Paul Kundi Rape [1976] PNGLR 96.
42. In a No Case submission, it is not the judge’s job to weigh the evidence and decide who is telling the truth or what weight to give to one witness’ testimony over another’s. The submission should be based on the notion that the case for the prosecution is so lacking it does not meet the basic threshold of providing evidence for each element of the offence charged. Certainly, the Court should not entertain a No Case submission until the state has produced all the evidence on which it intended to rely. The State has done that when it closes its case. State v Roka Pep [1983] PNGLR 287 per Kidu CJ.
Analysis
43. The elements of a charge of MURDER under Section 300(1)(a) are that:
44. The States has adduced evidence capable of proving that Gilma Kolngo is dead in the form of the death certificate Exhitibit 6 and the Affidavit of Dr Glen James (Exhibit 5) and the oral testimony of both Peter Kono and Par Kolngo.
45. The State has produced evidence capable of proving that Gilma Kolngo was killed from a blow to the neck with a blunt object in the form of Exhibit 5 the autopsy report and Exhibit 6 the death certificate.
46. The State has adduced evidence capable of proving the time, date and place of the death of Mr Gilma Kolngo through the oral testimony of Peter Kono and Par Kolngo who were at the house or the hospital on the 17th June 2022.
47. But the State has adduced no evidence that the accused caused the death of Mr Gilma Kolngo. Neither Peter Gono nor Par Kolngo were witnesses to the event. I accept the Prosecutor’s submission that their evidence is circumstantial but Peter Gono, the only witness who went to the house, said he did not see the accused there because he did not go inside.
48. Par Kolngo did not see the accused at all (though he conceded she may have been at the hospital). The are no circumstantial evidence from which to draw an inference that the accused cause the death of Gilma Kolngo. There is no evidence at all.
49. Further the State has produced no evidence that the accused had an intention to kill or do GBH. If there is no evidence before me that the accused caused the death, there can be no evidence that, at the time she caused the death, she held the requisite intent.
Conclusion and Orders
50. As such the State has produced no evidence on two elements necessary to prove a charge of murder under s300(1)(a) of the Criminal Code.
51. Therefore, I uphold the application of the defence. I declare that Janet Kund Malu has no case to answer and she is discharged
in relation to indictment no 2127 of 2023.
________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the accused: Public Solicitor
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