CR No 1738 of 2001; CR No 1742 of 2001; The State v Thomas Sange, Vincent Kerry, Kito Aso And Steven Kaumu (2005) N2805

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 16 February 2005
• Citation: (2005) N2805
• Docket Number: CR No 1667 of 2001
• Year: 2005

Full Title: CR No 1667 of 2001; CR No 1738 of 2001; CR No 1742 of 2001; The State v Thomas Sange, Vincent Kerry, Kito Aso And Steven Kaumu (2005) N2805

National Court: Cannings J

Judgment Delivered: 16 February 2005

1 Criminal Law—indictable offences—Criminal Code, Division V.3, Homicide etc—s299, wilful murder—death of police officer on duty—s7, principal offenders—s8, offences committed in prosecution of common purpose—practice and procedure—joint trial of four co–accused—each alleged to have aided or procured commission of wilful murder—each pleaded not guilty—prosecution's case consisted of 29 exhibits, tendered by consent—submission of no case to answer—application that case should be withdrawn from the tribunal of fact—rule in The State v Paul Kundi Rape [1976] PNGLR 96—two limbs or tests—question 1: whether there is some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred—question 2: whether there is sufficient evidence on the basis of which the court ought to convict the accused—elements of the offence of aiding, counselling etc another person to commit wilful murder—application of tests in The State v Paul Kundi Rape [1976] PNGLR 96 to each of the co–accused—ruling in relation to each co–accused—acquittals—remarks on co–accused unnecessarily being brought before the court—paucity of evidence—need for prime suspect to be apprehended and brought to court to be dealt with according to law.

2 Criminal Law—indictable offences—Criminal Code, Division V.3, Homicide etc—s299, wilful murder—death of police officer on duty—s7, principal offenders—s8, offences committed in prosecution of common purpose—practice and procedure—joint trial of four co–accused—each alleged to have aided or procured commission of wilful murder—each pleaded not guilty—prosecution's case consisted of 29 exhibits, tendered by consent—submission of no case to answer—application that case should be withdrawn from the tribunal of fact—rule in The State v Paul Kundi Rape [1976] PNGLR 96—two limbs or tests—question 1: whether there is some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred—question 2: whether there is sufficient evidence on the basis of which the court ought to convict the accused—elements of the offence of aiding, counselling etc another person to commit wilful murder—application of tests in The State v Paul Kundi Rape [1976] PNGLR 96 to each of the co–accused—ruling in relation to each co–accused—acquittals—remarks on co–accused unnecessarily being brought before the court—paucity of evidence—need for prime suspect to be apprehended and brought to court to be dealt with according to law.

3 Joshua Yaip Avini and Plaridel Nony Acosta v The State [1997] PNGLR 212, The State v Atau Gore (No 1) (2004) N2639, The State v Eddie Sam (2004) N2521, The State v Henry Osare Kales (2001) N2115, The State v Kwale Dire [2002] PNGLR 656, The State v Michael Herman and Albert Paul (2003) N2475, The State v Nerius Patrick (2004) N2611, The State v Paul Kundi Rape [1976] PNGLR 96, The State v Robert Tamtu (2001) N2166, The State v Roka Pep (No 2) [1983] PNGLR 287, The State v Tauvaru Avaka (2000) N2024, The State v Tolly Amindi (2004) N2683, The State v Tom Kakawi [2002] PNGLR 378 referred to

Ruling On No Case Submission

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Cannings J:

INTRODUCTION

This is a ruling on a no case submission by four co–accused men. They face an indictment which charges that on 4 July 2001 they wilfully murdered an officer of the Police Force, Chief Sergeant Henry Wartovo.

BACKGROUND

On Wednesday 4 July 2001 Chief Sergeant Henry Wartovo, an officer of the Police Force based at Kimbe, was killed while on duty at Gigo 2 settlement, Kimbe, West New Britain. It was late in the night, about 11.00 pm. He was shot at close range and died almost instantly. A police investigation was commenced and later in 2001 six people, including the four co–accused, were charged with his wilful murder.

In November–December 2001 all six were committed for trial by the District Court. The two not being tried in the present case have absconded. One has escaped after being remanded in custody. The other has broken his bail. Their whereabouts are unknown.

The joint trial of the four co–accused began on 14 February 2005. They were arraigned and each pleaded not guilty. Both the prosecution and the defence made opening submissions. Then the prosecution presented its evidence. This consisted of 25 witness statements and the record of interview of each co–accused, all tendered by consent. The court visited the scene of the incident. This is the place, commonly referred to as 'the Gigo 2 roundabout', where Chief Sergeant Wartovo was killed. We heard from a witness who said he saw what happened. The court then adjourned.

On 15 February 2005 the trial resumed. Mr Popeu, for the Public Prosecutor, summarised what we observed at the scene and what the witness stated. Mr Oiveka verified the summary.

Mr Oiveka then made a no case submission based on the principles set out in The State v Paul Kundi Rape [1976] PNGLR 96. Mr Popeu responded.

APPROACH TO THE NO CASE SUBMISSION

I will start by setting out the principles in The State v Paul Kundi Rape [1976] PNGLR 96, which consist of two limbs or tests. They each require the court to consider the state of the evidence so far presented and to compare it with the elements of the offence with which the accused is charged. I will explain the opening submissions made by the prosecution. I will summarise the evidence the prosecution has presented. I will set out the elements of the offence of wilful murder that must be proven. Then I will summarise the actual no–case submission and apply the principles in Rape to this case.

THE PRINCIPLES IN The State v Paul Kundi Rape [1976] PNGLR 96

In his famous judgment in The State v Paul Kundi Rape [1976] PNGLR 96 O'Leary AJ pointed out that when the prosecution has closed its case two distinct and separate questions can arise.

Question 1—also called the first limb or test—is there some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred?

Note that the question is not: is every element of the offence established beyond a reasonable doubt? That question can only be answered at the end of the trial—if it proceeds—on the whole of the evidence, ie including any evidence adduced by the accused.

If the answer to question 1 is no: the conclusion will be that on the evidence as it stands the accused could not lawfully be convicted. This is an issue of law. The accused will have no case to answer. The accused will not be required to answer the charge. The accused will be entitled to an acquittal.

If the answer to question 1 is yes: the trial should proceed unless question 2 is answered in the negative.

Question 2—also called the second limb or test—although there is a case to answer, is there sufficient evidence on the basis of which the court ought to convict the accused?

Again, the question does not ask whether the prosecution has proved its case beyond reasonable doubt. It is directed at the situation where there is only a scintilla of evidence or where the evidence is so weak or unreliable that no reasonable tribunal of fact could base a conviction on it.

If the answer to question 2 is no, ie there is insufficient evidence: the trial judge has a discretion to either not call upon the accused (ie enter an acquittal) or order the trial to proceed.

If the answer to question 2 is yes: the trial must proceed.

The Supreme Court confirmed the correctness of the above principles in The State v Roka Pep (No 2) [1983] PNGLR 287, Kidu CJ, Kapi DCJ, Andrew J, Pratt J, Kaputin J; and Joshua Yaip Avini and Plaridel Nony Acosta v The State [1997] PNGLR 212, Kapi DCJ, Los J, Salika J.

Recent National Court cases in which the Rape principles have been applied include The State v Tauvaru Avaka (2000) N2024, Gavara–Nanu J; The State v Henry Osare Kales (2001) N2115, Kirriwom J; The State v Robert Tamtu (2001) N2166, Lenalia J; The State v Kwale Dire [2002] PNGLR 656, Gavara–Nanu J; The State v Tom Kakawi [2002] PNGLR 378, Lenalia J; The State v Michael Herman and Albert Paul (2003) N2475, Lenalia J; The State v Eddie Sam (2004) N2521, Lenalia J; The State v Nerius Patrick...