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State v Kipma [1997] PNGLR 178 (9 April 1997)

[1997] PNGLR 178

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

JIMMY KIPMA

WAIGANI: BATARI AJ
4, 8, 9 April 1997

Facts

It was alleged by the State that the accused was the leader of a group of men who attacked and killed two men at the Eight Mile Settlement. After the close of the prosecution case the accused’s counsel made a "no case to answer" submission.

Held

1. In considering an application of a no case to answer, the Court is not required to examine the evidence in detail and apply the evidence on a higher standard.
   
2. Voice identification testimony can be used to positively establish identity in a criminal or civil case.
   
3. A "no case to answer" application can succeed where the prosecution fails to establish the elements of the offence, The State v Paul Kundi Rape [1976] PNGLR 96 followed.
   
4. Where the prosecution has established all the elements of the offence, the Court can exercise its discretion to stop the case if it is of the view that the evidence is insufficient to convict the accused.
   

Papua New Guinea cases cited

The State v Daniel [1988-89] PNGLR 580.

The State v Delga Puri & Anor [1982] PNGLR 395.

The State v Paul Kundi Rape [1976] PNGLR 96.

Other case cited

R v E J Smith (1984) NSWLR 462 (1984) 12 CRIM R 439.

Counsel

D Mark, for the State.
S Holland, for the accused.

9 April 1994

BATARI AJ. Jimmy Kipma is on trial accused of aiding and abetting the deaths of Philip Wamakabi and Francis Poiuari by virtue of s 7 of the Criminal Code (Ch No. 262). His guilt was also alleged under s 8 that he murdered the deceased in the prosecution of a common purpose with others. He is indicted on two counts of wilful murder under s 299 of the Code.

The State has alleged that on 24 November 1994, the accused was amongst a group of youths who attacked a number of houses and the occupants at 9 Mile Sepik Settlement, in the National Capital District. On the night of that day, the mob broke into a canteen owned by a married couple from Morobe Province. Alerted by the noises, the two deceaseds and Andrew Ani went to investigate. The three men were set upon and beaten up by the mob. Andrew Ani escaped with injuries while his two companions died subsequently from their injuries. The mob approached another house. The accused was heard urging the youths to attack that house and kill its occupants. It was also alleged that the tall big man amongst the mob fitted the descriptive physique of the accused.

When the State concluded its evidence yesterday, counsel for the accused, Mr Holland made a ‘no case submission’ on his client’s behalf. The evidence against the accused adduced thus far, has been in the form of sworn testimony of three witnesses besides the Police Investigator and documentary evidence, which included the Record of Interview and Medical Report.

I have had the opportunity to read the evidence. I have also considered the evidence in the light of the principles of ‘no case to answer’ as enunciated in the case of The State v Paul Kundi Rape [1976] PNGLR 96. At this stage, I am not required to examine the evidence in detail and apply it on the higher standard. To do so would be erroneous as warned by Kidu, CJ in the case of The State v Delga Puri and Anor [1982] PNGLR 395 where the late Chief Justice stated that it is wrong for a judge to decide after the prosecution’s case whether or not he is satisfied beyond reasonable doubt of the guilt of the accused before all the evidence is before him.

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. Further to this is the question of the exercise of the discretionary power of the court commonly referred to as the second leg of Paul Kundi Rape’s case. Under this second principle, the Court decides whether or not the case would proceed beyond the State’s case. The rationale of this rule is that the evidence supporting all or some of the elements of the offence are so vague, so insufficient or so unsatisfactory that the accused should not be called upon to answer it. In other words, beyond the State’s case the evidence may not improve to stand the test of prove beyond reasonable doubt on the question of facts.

The accused is charged with two counts of wilful murder. I must consider whether or not all the elements have been made out. Under s 299(1) of the Criminal Code, the elements of wilful murder are: (i) offender (ii) intent to cause death (iii) the act of killing and (iv) death.

The element of death is uncontested. The fact of two deaths on the night of 24 November 1994 is thus, conclusive. The elements of "intent" and "act of causing death" may be inferred from the Medical Report, supported by the evidence of Andrew Ani who said he was in his house when he heard noises of people talking and banging on the roof of a house at about 8.00 pm. He went to investigate, but was attacked by sixteen to seventeen men about two to three meters in front of his house. At that same time and place, Philip and Francis were also attacked. He escaped to Noah’s house and returned a short time later, to find the two men lying on the ground. Eddie Wakuna said he was at Ambros’ house and heard noises of people talking and breaking into a house in the direction of Andrew Ani’s house. He went there to investigate accompanied by his uncle Ambros and Edward Ambuka. The noises ceased and a mob of about thirteen men proceeded in the direction of Ambros’ house. The mob confronted Eddie Wakuna and his companions and threatened them with a gun. They escaped to Lawrence’s house while the group proceeded to Ambros’ house and attacked him. Eddie Wakuna later went to Andrew Ani’s house. He saw Philip and Francis lying next to each other, dead. Edward Ambuka gave similar evidence about the noises and house breaking. Inferentially, the evidence of noises and housebreaking together with Andrew Ani’s evidence and the resultant injuries to the bodies of the two deceased show the intention to kill and the act of killing.

The remaining issue is the identity of the perpetrator or perpetrators.

The accused is linked to the double murder by the evidence of Eddie Wakuna and Edward Ambuka. Both stated they saw a tall big man as the only one amongst the group of men who were mostly short in stature. The accused is a tall well-built man and fits the description given by Eddie Wakuna. When that man spoke, telling the others to attack and kill Ambros, the two witnesses recognised the voice as that of the accused’s.

Admissibility of voice identification evidence is succinctly set out in the headnote, para (1) in the case of State v Daniel [1988-89] PNGLR 580:

"Evidence that the voice of a person involved in a crime is the voice of an accused is admissible to prove identification of the accused where:

(a) the voice is known by the witness and recognised by the witness; and

(b) the voice is not previously known to the witness but has such distinctive features that it leaves a clear mental impression in the mind of the witness, enabling him to draw the conclusion on hearing it later that it was the same voice".

Like visual identification, voice identification testimony has been regarded as legitimate and competent to establish identity in both criminal and civil cases. See R v E.J. Smith (1984) NSWLR 462; (1984) 12 A Crim R 439. Voice identification evidence in this case has not been challenged on its admissibility. The two State witnesses who heard the voice said they had known the accused for nine months prior to the date in question. They are familiar with his voice, as they had conversed with him on several occasions.

Their evidence on what was uttered further supported the element of intent. Andrew Ani also gave evidence of a similar description of the taller and bigger man amongst the mostly short men in the group. He did not however, hear that man utter anything. On the evidence of voice identification by witnesses Eddie Wakuna and Edward Ambuka, I am satisfied that all the elements of wilful murder are made out against the accused.

I now consider the discretionary question of whether or not the trial should proceed beyond this point. In Paul Kundi Rape’s case, it is stated that where there is a case of insufficiency of evidence, the accused as a matter of law may be called upon to answer it, but there is a discretion in the judge either or not to call him at all.

State has sought to establish two points of identification against the accused: (i) his physical stature and (ii) his voice. The three main State witnesses know the accused by name and in person. They all agreed a tall big man was amongst the mob, which attacked the settlers on the night, in question. I infer that he stood out amongst the mostly shorter persons and was their leader. The witnesses did not give any other visual physical description of that man. The accused as I have observed fitted the description of a tall well-built man. If the description was too vague against the accused, the evidence of Andrew Ani makes the visual identification much more doubtful when he said, the person he saw was much bigger than the accused. At one stage, he was only two meters from that man, but did not recognise him as the accused.

The voice identification testimony was given by Eddie Wakuna and Edward Ambuka. Andrew Ani on the other did not hear the tall big man utter anything. There is a trait of uncertainty in the evidence. Edward Ambuka appeared tentative in his testimony. He said the voice sounded like that of the accused’s. Further, Andrew Ani gave evidence that he escaped to Noah’s house some forty-five meters away from his house. He saw the accused at the home of Lucas. From his evidence, I infer the house of Noah and Lucas was in close proximity of the other.

I also infer from the evidence of Eddie Wakuna and Andrew Ani that the distance between Ambros’ house and Andrew Ani’s house was between sixty and a hundred meters. There is, however, no other evidence on the distances between the houses of Ambros, Lawrence, Lucas and Noah and their directional locations to each other and to Andrew Ani’s house. This is a crucial omission as the evidence of State witnesses suggests a tall big man was sighted at two different places within a short time of the first sighting. Further, Andrew Ani saw the accused at Lucas’s house at about the same time a big tall man was seen and heard encouraging others in the vicinity of Ambros’ house.

There are two possibilities from the evidence: (i) the accused was at the home of Lucas at all relevant times as the evidence of Andrew Ani suggested or; (ii) the tall big man was the accused heard near the home of Ambros encouraging others to kill Ambros. That, having urged the attack on Ambros, the accused retreated to the home of Lucas, ahead of Andrew Ani. This would mean that the homes of Ambros and Lucas either stood together, or were within close proximity of the other. This latter possibility is, however, unsupported by evidence.

Whether the evidence of identification against the accused would improve will depend on whether or not any new evidence is expected. The State has rested its case at the highest. The only other evidence, which might be expected, may come from the accused. In his Record of Interview, he has denied his involvement. It is not known whether or not he would exercise his right to give evidence in response to the State’s case. If he does give evidence, he would most likely repeat his answers in the Record of Interview. For those reasons, I am of the view that the State’s case will not improve even if the accused is called upon to answer the charges. I exercise my discretion in his favour and stop the case here. The accused is discharged.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: S Holland.