The State v Titila Tomur

• Jurisdiction: Papua New Guinea
• Judge: Anis AJ
• Judgment Date: 05 July 2017
• Citation: (2017) N6798
• Court: National Court
• Year: 2017
• Judgement Number: N6798

Full : CR Nos 1384, 1385 and 1386 of 2015; The State v Titila Tomur, Leny Uraliu and Junious Turkeke (2017) N6798

National Court: Anis AJ

Judgment Delivered: 5 July 2017

N6798

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS. 1384, 1385 AND 1386 OF 2015

THE STATE

-V-

TITILA TOMUR, LENY URALIU AND JUNIOUS TURKEKE

Kokopo: Anis AJ

2017: 19 June & 5 July

CRIMINAL LAW – no case submission - no express provisions in law or rules but a practice - also provided in the case law - available after the prosecution closes under section 572 of the Criminal Code Act Chapter No. 262 - the principle significantly reinforces sections 37(4)(a) and 37(10) of the Constitution in this jurisdiction

Cases Cited:

The State v. Lasebose Kuriday (1981) N300

The State v. Tom Tomugal, Norris Padiru and Bobby Nick (2016) N6329

State v. Roka Pep [1983] PNGLR 287

State v. Paul Kundi Rape [1976] PNGLR 96

Counsel:

Mr L Rangan, for the State

Ms J Ainui, for the Accused

RULING ON NO CASE

5th July, 2017

1. ANIS AJ: The three (3) accused charged with wilful murder made a 'no case to answer' application on 19 June 2017. This was immediately after the prosecution had closed its case during the trial of the matter. After hearing submissions from both sides, I reserved my decision and informed the parties that I will advise them through my associate when the decision is ready.

2. Parties have been advised and I rule on it now.

Source - 'no case to answer'

3. The application was oral. I recall asking the defence counsel to state its source. Counsel was unable to refer to the exact source. I allowed counsel to complete her submission. During the presentation, counsel made references to case law. I make particular mention to two (2) of the cases, that is, (i) The State v. Lasebose Kuriday (1981) N300 and (ii) State v. Roka Pep [1983] PNGLR 287. The two (2) cases, in my view, after having the opportunity of reading them before writing this judgment, were relevant to my query on the source of a 'no case to answer' application.

4. Let me begin by saying this. There are no express provisions in the Criminal Code Act Chapter No. 262 (Criminal Code) that provides for a 'no case to answer' application or submission. It is instead an acceptable practice, which is allowed in this jurisdiction. Justice Kaputin in the Supreme Court case of State v. Roka Pep (supra) said and I quote, “In Papua New Guinea there is no statutory law on this subject. However, it has been recognized as a principle under case-law”. The right or the opportunity to make a ' no case to answer' application becomes available at the close of the prosecution's case or evidence: See section 572 of the Criminal Code, which I have set out below in my judgment. I also note that the significance of its practice in this jurisdiction would be to reinforce the law on (i) the presumption of innocence until proven guilty under section 37(4)(a) of the Constitution, and (ii) the right to remain silent under section 37(10) of the Constitution. [See case: The State v. Lasebose Kuriday (supra)].

5. Sections 37(4)(a) and 37(10) state and I quote:

(4) A person charged with an offence—

(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and

.....

(10) No person shall be compelled in the trial of an offence to be a witness against himself.

6. Section 572 of the Criminal Code states and I quote:

(1) At the close of the evidence for the prosecution, the proper officer of the court shall ask the accused person or his counsel whether the accused intends to adduce evidence in his defence or whether he desires to make a statement to the court before he or his counsel addresses the court.

(2) Whether or not the accused intends to adduce evidence in his defence he is entitled to make a statement to the court.

(3) When the accused makes a statement to the court he shall make the statement at the close of the evidence for the prosecution and before adducing any evidence in his defence.

7. I am satisfied that the application is properly before the Court.

Brief facts

8. The three (3) accused were alleged to have wilfully murdered Ereman Pulson (the deceased) on the night of 18 April 2015. The incident occurred at Makurapau ward, Bitapaka LLG, Kokopo District, East New Britain Province. The alleged assault took place on the main village road. It is alleged that the deceased was assaulted by the three (3) accused because the deceased had refused to give them beer that he was carrying in his basket. It is alleged that the three (3) accused used their hands as well as a tree stump or branch to hit the deceased on his neck. It is alleged that the deceased fell to the ground at one point. It is alleged that the three (3) accused pulled him up where the deceased was supported by them along the road. It is alleged that the three (3) accused were heard saying that they would throw the deceased into a hole if they found one.

9. It is alleged that the deceased was then taken to a nearby house that belonged to one Erik. There, according to the prosecution, the deceased was laid on a bed. It is alleged that the next day the deceased's wife and others took the deceased to St. Mary's Vunapope Hospital where he was admitted. It is alleged that on Monday 20 April 2015, the deceased was taken to the Nonga General Hospital where he was admitted. It is alleged that the deceased died two (2) weeks later due the severe injury he had sustained to his neck from the assault by the three (3) accused.

Submissions

10. The defence submits that its 'no case to answer' application is based on the second limb. Let me begin by stating the Court's role regarding the two (2) limbs. I refer to my earlier decision in the case The State v. Tom Tomugal, Norris Padiru and Bobby Nick (2016) N6329. I held and I quote:

1. The Court's role when a no case to answer submission or an application to stop a case is made, is as follows:

(i) Identify the essential elements of the offence (first limb).

(ii) Review the prosecution's evidence taking into account what had transpired during examination in chief, cross-examination and re-examination together with the evidence tendered without objection or evidence tendered by consent, and then consider as a matter of law whether there is evidence that supports each element of the offence (first limb).

(iii) If one or more of the elements of the offence does not have evidence supporting it, the Court must uphold the no case to answer submission and acquit the accused (first limb).

(iv) If there is evidence supporting each of the elements of the offence generally, the next consideration again as a matter of law is whether the evidence is insufficient or is tenuous. Matters such as credibility, inconsistency and weighing of evidence are irrelevant. The presiding judge must ask himself or herself this hypothetical question: Could a judge of fact, considering the prosecution's evidence at its highest and as accurate, convict the accused? If the answer is 'yes', the Court should allow the trial to continue. If the answer is 'no', the Court may exercise its discretion and stop the trial (second limb).

(v) The Court's power under the second limb is discretionary. This means that even after the Court finds insufficient evidence on the elements of the offence it may nevertheless order the trial to continue (second limb).

(Cases followed: State v. Roka Pep [1983] PNGLR 287 and State v. Paul Kundi Rape [1976] PNGLR 96)

11. I adopt the above therein to the present case. The defence, as stated in its submission that it will only argue the second limb, assumes, I suppose, that there is evidence disclosed by the prosecution that supports the elements of the wilful murder. I will address the matter on that basis, that is, I will only consider the submissions of the parties based on the second limb and make my finding. This means that it may not be necessary for me to make a finding as to whether the prosecution has furnished sufficient evidence on each of the elements of the offence of wilful murder. But before I move on, let me state the elements of wilful murder that are found under section 299 of the Criminal Code:

· a person killed the deceased;

· the killing was unlawful; and

· there was an intention to cause the death of the deceased.

12. The defence submits the prosecution has not established sufficient evidence that would warrant a proof beyond reasonable doubt, in law, and as such the case should be stopped and the three (3) accused should be discharged forthwith. The key submission by the defence is that the witnesses gave different facts or variation of the facts against the material facts relied upon by the prosecution to lay the charges.

13. The State objects to the application. It submits that it has disclosed sufficient evidence and if considered at its fullest based on law, a conviction would follow. Therefore, it submits that the trial should continue and the defence should be given the...