CR 38 OF 2010; State v Famund Badi Moibamo (No.1) (2011) N4342

• Jurisdiction: Papua New Guinea
• Judge: Ipang, AJ
• Judgment Date: 15 July 2011
• Citation: (2011) N4342
• Court: National Court
• Year: 2011
• Judgement Number: N4342

Full Title: CR 38 OF 2010; State v Famund Badi Moibamo (No.1) (2011) N4342

National Court: Ipang, AJ

Judgment Delivered: 15 July 2011

N4342

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 38 OF 2010

STATE

V

FAMUND BADI MOIBAMO (No. 1)

Accused

Goroka: Ipang AJ

2011: 14th & 15th July

CRIMINAL LAW – Practice and Procedure – No Case Submission – principles well established – Paul Kundi Rape’s case & other subsequent National Court Judgments – State v Thomas Sange & Ors (2005) N2805 & State v Nathan Kovoho CR. No. 163 of 2005, N2810.

CRIMINAL LAW – identification – though a stranger State witness – close proximity at the scene of crime – held on accused talked to him and had no difficulty pointing directly and identifying accused as the person who stabbed deceased – issue of intention extensively addressed – No case submission over –ruled – Accused had a case to answer.

Cases Cited

State v- Paul Kundi Rape [1976] PNGLR 96

State v Aige Kola [1976] PNGLR 620

State v Roka Pep (No.2) [1993] PNGLR 287

Joshua Yaip Avini & P.N.Acosta [1997] PNGLR 212

State v Tanuaru Avaka (2000) N2024

State v Henry Osare Kales (2001) N2115

State v Robert Tamtu (2001) N2166

State v Atau Gore (No.1) N2004

State v Tolly Amindi (2004) N2683

State v Thomas Sange & Ors (2005) N2805

State v Nathan Kovoho CR No.163 of 2005 (N2810)

Counsel

Ms. V.Mauta, for the State

Mr. R.Kasito, for the Accused

RULING ON NO CASE SUBMISSION

15 July, 2011

1. IPANG AJ: This is the ruling on the no case Submission by Mr. R. Kasito of counsel for the accused and the reply by Ms. V.Mauta of counsel for the State. At the close of the case for the prosecution on a charge of willful murder, counsel for the accused submitted that the accused has no case to answer and as the case stood, the court should be satisfied that the evidence for the prosecution is insufficient and therefore should acquit the accused.

2. The law on the no case submission is well settled in this jurisdiction. The Court in the case of State v Paul Kundi Rape [1976] PNGLR 96 held that;

“Where there is a submission of no case to answer at the close of the case for the prosecution, the question to be asked is not whether on evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is a question of law; to be carefully distinguished from the question of fact to be asked at the close of all the evidence whether prosecution has proved its case beyond reasonable doubt.”

3. In the same year 1976 in another case of State v Aige Kola [1976] PNGLR 620, the Court held that;

“Where there is submission of no case to answer at the close of the case for the prosecution, there are two questions to be determined;

1) Whether there is sufficient evidence on which the accused could lawfully be convicted; and

2) Whether there is sufficient evidence on which the accused ought to be convicted; i.e. whether the evidence is so insufficient that the accused ought not to be called upon to answer to.”

4. In the more recent case, of CR No. 163 of 2005 (N2810), The State v Nathan Kovohos, Cannings J elaborated in detail the principles of no case submission as found in Rape’s Case (supra). In Kovohos case Cannings, J re-iterated that there are two distinct and separate questions that arise. His Honour mentioned these as the first limb or first test followed by the second limb or second test.

First Limb or First Test

5. Q1: 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 interfered?

6. If the answer to question 1 is “no” the conclusion will be that on the evidence as it stands the accused could not be lawfully 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.

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

Second Limb or Second Test

8. Although there is case to answer – is there sufficient evidence on the bases of which the court ought to convict the accused? This question arises in situations where the evidence is so weak that no reasonable tribunal of fact could base conviction.

9. If the answer to question 2 is “no” i.e., there is sufficient evidence, the trial judge has a discretion to either not call upon the accused (i.e. enter an acquittal) or order trial to proceed.

10. If the answer to question 2 is “yes” the trial must proceed.

11. The above approach was taken in State v Roka Pep (No.2) [1983] PNGLR 287, Joshua Yaip Avini & Plaridel Nony Acosta v State [1997] PNGLR 212, State v Tanuaru Avaka (2000) N2024 Gavara Nanu, J, State v Henry Osare Kales (2001) N2115 Kirriwom J, State v Robert Tamtu (2001) N2166 Lenalia ,J State v Atau Gore (No.1) N2004 Manuhu, J, State v Tolly Amindi (2004) N2683 Kandakasi, J, and State v Thomas Sange & Ors (2005) N2805 Cannings,J.

Charge

12. The accused has been indicted on one count of willful murder. The State alleged that the accused Famund Badi Moibano of Artigu Village, Unggai, Eastern Highlands Province on the 13th of September, 2009 at Goroka, willfully murdered one Dorcas Pepeto contrary to Section 299 (1) of the Criminal Code Act.

Brief Facts

13. The brief facts of the case are as follows: On the 13th of September, 2009 at around 4:00pm near YWCA Hall in Goroka, the accused was walking along the road with the deceased Dorcas Pepeto, his wife. They were arguing as they walked. The accused who had a long sharp knife in his possession pulled the knife and stabbed the deceased on her right (side) lower abdominal.

14. Deceased fell down on the ground and called out in pain. One Sailas Araupa who was walking along the road ran to her aid. Sailas asked the accused why he stabbed the deceased. The accused replied “deceased misbehaved having affairs with other man so I intend to kill her so I killed her”. After saying this accused left the scene with knife in his right hand. Sailas was with the deceased on the road side. Sailas stopped a white double cab Ute belonging to the Protect (now G4S) Security and assisted the deceased to the Goroka Base General Hospital. However, the deceased was confirmed dead on arrival. Sailas remained with the body till one of the deceased relatives came and Sailas left and reported the matter to the police. Accused was apprehended, arrested and charged.

STATE’S CASE

15. At the beginning of its case, the State through counsel Mauta tendered the following documentary evidence by consent from defence counsel. The following are the documentary evidence tendered as evidence;

(1) The record of interview “both Pidgin” and English Version. The Record of Interview conducted on the accused by Sgt. Peter Kafare and corroborated by Rex Dala on the 29th September, 2009. The Pidgin version is marked as Exhibit “A” and The English version is marked as Exhibit “B”

(2) The document tendered with consent is the statement of the investigator in English. Investigator Peter Kafare, just one (1) page and it is marked as Exhibit “C”

(3) The Corroborator Rex Dala’s statement in English a one page marked as Exhibit “D”

16. Apart from the tendered documentary evidences, the State called one (1) witness. The only state witness is Sailas Araupa. This witness gave the following sworn evidence. He said on the 13th September, 2009 in the afternoon, he was in Goroka at the YWCA. He was walking down to the market where he saw a couple, a man and a lady both walking and arguing. They were walking on the right side of the road and going towards North...