The State v Ben Noel, Philip Noel and Richard Erekue (2002) N2253

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 31 May 2002
• Court: National Court
• Citation: (2002) N2253
• Year: 2002
• Judgement Number: N2253

Full Title: The State v Ben Noel, Philip Noel and Richard Erekue (2002) N2253

National Court: Kandakasi J

Judgment Delivered: 31 May 2002

N2253

PAPUA NEW GUINEA

[In the National Court of Justice]

CR No. 1156 of 1999

THE STATE

V

BEN NOEL, PHILIP NOEL

AND RICHARD EREKUE

GOROKA: KANDAKASI, J

2001: 19, 20, 21 & 22 March

2001: 28 & 31 May

CRIMINAL LAW - PRACTICE & PROCEDURE - State dropping charge against a an accomplice in exchange for his evidence against accomplices - Unsafe to rely on such evidence - Defence counsel acting for co-accused becoming witness who allegedly admitted to committing offence - Improper to use information obtained in lawyer/client situation for cross-examination and discrediting of witnesses - Defence raising alibi – Notice of alibi not given in accordance with practice rules - Improper conduct to raise allegations in cross-examination by defence without any evidentiary basis - Failure to call possible witnesses – Such failure having effect of a failure to establish case beyond any reasonable doubt.

CRIMINAL LAW – Particular offence – Murder - Group attack - Elements of charge considered – Serious inconsistencies in evidence of the Prosecution - Totality of evidence failing to establish case beyond reasonable doubt - Verdict of not guilty returned and Defendants acquitted.

EVIDENCE - Credibility and weight to be given to evidence of co-accused called as prosecution witness in exchange for a nolle prosequi of charge against him - Friend and relation of deceased not independent witnesses - Inconsistencies in oral testimonies and written statements of witnesses amounts to tailoring of evidence - Such evidence unreliable - Witnesses giving evidence inconsistent with each other amounts to failure to establish case beyond reasonable doubt.

LAWYERS - Defence counsel previously acting for co-accused turning witness against co-accused - Improper for counsel to use in cross-examination information given to him as lawyer for witness - Statement of witness given to counsel in his capacity as lawyer is protected by lawyer/client privilege - Need for counsel to disqualify - Counsel failing to see to conclusion of case after no case submission and failing to adequately brief replacement counsel amounts to improper conduct - Breach of Provisional Conduct Rules counsel caution and warned against such conduct - Client not liable to pay costs unnecessarily force on him by counsels conduct..

Papua New Guinea Cases Cited:

SCR No. 1 OF 1980: Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28.

Regina v. Nantisantjaba [1963] PNGLR 148.

John Wanamba v. The State SC 551.

Regina v. Simbene Dandemb [1969 - 70] PNGLR 207.

The State v. Nataemo Wanu [1977] 152.

Paulus Pawa v. The State [1981] PNGLR 498.

Other Cases cited:

Booth (1983) 1 VR 39 at 52.

Jones v. Dunkel (1959) 101 CLR 298.

Browne v. Dunn (1894) 6 R. 67.

Counsel:

Mr K. Umpake for the State

Mr J. Bray for the Defendants

31st May 2001

KANDAKASI, J.: The Defendants stand jointly charged with one count of murder of one Nelson Onopiso (the deceased) on the 25th July 1999, here in Goroka. They denied the charge and the State called five witnesses in a bid to prove the charge. At the close of the State's case, the defence made a written "no case submission", which I rejected in my written short ruling on the 28th of May 2001.

The Defendants decided not to go into evidence. Instead they argue that the State has failed to establish the charge against them on the required standard of, proof beyond any reasonable doubt. The State argues that the evidence it has called establishes the charge against them beyond any reasonable doubt. The main issue therefore, is whether the State has established the charge against the Defendants beyond any reasonable doubt?

The Offence

The offence with which the Defendants have been charge is prescribed by s. 300(1)(a) in these 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.”

The law requires in every criminal case for the prosecution to establish each of the elements constituting an offence beyond any reasonable doubt to secure a guilty verdict and conviction. The Supreme Court, per Greville Smith J, expressed that position in these terms in SCR No. 1 OF 1980: Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28 at page 34:

The general rule is that in criminal cases it is for the prosecution to prove, and to prove beyond reasonable doubt, every element of the alleged offence (Woolmington v. Director of Public Prosecutions 12). The rule applies equally to negative elements as well as, for instance, absence of consent in cases of rape. Accordingly, the Crown must prove every fact, whether affirmative or negative, which forms an ingredient of the offence

The essential elements in the present case are (1), a person (the offender) (2), with intent to do grievous bodily harm to another person (3), causes by such conduct the death of (4), another person (the victim). These are the elements that must be proven beyond any reasonable doubt. That is to say, there must be a death of a person caused by the person(s) charged which must have been caused by an intention on the part of the person(s) charged to cause grievous bodily harm to the dead person or another person.

Speaking in relation an intention to cause grievous bodily harm (second element here), Smithers J in Regina v. Nantisantjaba [1963] PNGLR 148 said at page 150:

“It is true that in cases where murder is alleged an assault is commonly the cause of death. But all the elements of the offence of murder will be present in many cases where there is no assault. On the other hand, where death is caused by an assault, proof of the assault is merely proof of a fact from which by itself, or in conjunction with other facts, the inference may be drawn that one of the elements, such as intent, cause, or unlawfulness, is present.”

The Evidence

Of the five witnesses called by the State, three of them are supposedly eyewitnesses, while the fourth one was the police investigating and arresting officer. The fifth witness was a medical doctor who carried out an autopsy on the deceased and provided a medical certificate of death.

(a) First Witness: Ken Kara

The first and key State witness was Ken Kara. He was earlier charged for the same offence but was later dropped in exchange for his evidence against the Defendants. He was a security guard on duty employed by Dom Securities, which was contracted by the Phantom club (the Club) here in Goroka at the junction of the Okuk Highway and the road to North Goroka next to the Goroka cemetery. That was from 6:00pm on the 24th July 1999 to 6:00am the next day, 25th July 1999. The Club is owned by Ben Noel (Ben), one of the Defendants in this case.

At about 4:00am, the witness was inside the clubhouse where people were drinking and dancing. A man amongst those inside, identified as Nelson Onopiso (the deceased), smashed a beer bottle and shortly one more on the cement floor. He thought of stopping and sending the deceased out but because he was a bigger man, he was afraid. So, he went to Ben, who was with the Provincial Police Commander - Eastern Highlands Province (PPC) and reported the matter to him.

Ben walked to the deceased, pulled him by his shirt collar, took him to the door, started to punch and pulled him out with Richard Erekue (Richard) and Philip Noel (Philip) joining in. The three of them kicked and punched the deceased repeatedly. The witness picked up a small piece of broken cement, threw and landed it on the deceased back, close to his buttock. Other securities employed by Ben also joined in. Philip executed further kicks with his leg on the right side of the deceased below his ribs and close to the stomach before he was pulled to the main gate. Whilst at the main gate, Ben hit the deceased again and he fell down on his back into a cemented side drain. Before leaving the deceased, Ben executed two further kicks. Some people tried to stop them but on seeing Ben, they stopped because they were afraid of Ben.

He saw some people whom he failed to identify or specify lifting stones and hitting the deceased with them.

While all these were taking place, the witness went and closed the main gate. About 2 minutes later, the Defendants returned and sounded the small gate so he went and opened and closed it after them. He does not know what happened next.

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