CR 559 of 2011; CR 560 of 2011; The State v Junior Jones and Glen Elliot and Nolly Boiros Kilepak (2013) N5121

• Jurisdiction: Papua New Guinea
• Judge: Geita AJ
• Judgment Date: 25 February 2013
• Court: National Court
• Citation: (2013) N5121
• Docket Number: CR. 558 OF 2011
• Year: 2013
• Judgement Number: N5121

Full Title: CR. 558 OF 2011; CR 559 of 2011; CR 560 of 2011; The State v Junior Jones and Glen Elliot and Nolly Boiros Kilepak (2013) N5121

National Court: Geita AJ

Judgment Delivered: 25 February 2013

N5121

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 558 OF 2011; CR 559 of 2011; CR 560 of 2011

THE STATE

V

JUNIOR JONES

GLEN ELLIOT

NOLLY BOIROS KILEPAK

Lorengau: Geita AJ

2013: 25 February

CRIMINAL LAW – No case submission – Both limbs under The State v. Paul Kundi Rape [1976] PNGLR 96 – Evidence not establishing main issue for trial – The spirit of second leg principle considered in light of no jury trails in the country- Case exceptional -No case to answer on charge presented.

CRIMINAL LAW – No case submission – Prosecution evidence conflicting - Essential elements not made out-– Court discretion exercised – No case submission falling under exceptional circumstances- Prosecution case will not improve- Effect off – Accused no case succeeds-Discharged forthwith from CS custody - Effect of—Accused have no case to answer - Accused Acquitted/Discharged.

Cases cited
Papua New Guinea Cases

The State v Adam Kins [2008] PGNC 126; N3479 (4 September 2008)

The State v Angatai [1983] PNGLR 185
The State v Albert Pwame (Unnumbered of 14 & 15 February 2013.

R v B (1969 N561)

The State v. Justin Komboli [2005] PGNC 61; N2891; (23 September 2005)
The State v Wanjil [1997] PGNC 16; N1516 (24 February 1997)

The State v Kabai [1997] PGNC73; N1611 (18 June 1997)

The State v Lotivi Mal, Moses Mal and Katherine Mal [2011] PGNC 184; N4457

The State v Lasebose Kuriday (Unreported) N300 of 8 June 1981

The State v Max Sande Pyasala (June 2010)

The State v. Paul Kundi Rape [1976] PNGLR 96
The State v. Roka Pep (No. 2) [1983] PNGLR 287

The State v Simon Ganga [1994] PNGLR 323

Overseas Cases

Zanetti v Hill (1962) 108 CLR 438

Counsel:

Mr. Camillus Sambua, for the State
Mr. Steven Pokawin, for the Accused

RULING ON NO CASE TO ANSWER SUBMISSION

25 February, 2013

1. GEITA AJ: The three accused persons pleaded not guilty to one count of wilful murder contrary to s. 299 (1) Criminal Code Act, Chapter 262 (hereafter referred to as the “Criminal Code”).

2. The State alleges that on 22 November 2010 at N’dilou island Lorengau in Manus Province the three accused persons caused the death of Nathan Williams during a bride price ceremony. It is alleged that whilst Junior Jones held up the victim from behind and muffled his mouth, Glen Elliot hit him on his back with a piece of iron whilst accused Nolly Boiros Kilepak stabbed the victim on his stomach with a Rambo type knife which caused his death.

3. At the end of the prosecution case Mr. Pokawin for the accused advised court that he would be making a no case application, hence giving State notice of his intentions. On 20 February, Mr Pokawin moved his application via his written submission and asked court to terminate proceeding for want of

insufficiency of evidence thus far. I also received a verbal reply from the Public Prosecutor Mr. Camillus Sambua. The State aggressively maintained ample sufficiency of evidence and invited Court to exercise its discretion and allow the case to continue.

The Law

4. The law in relation to wilful murder under s299 Criminal Code is in the following terms:

299. WILFUL MURDER.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

Elements of the Offence

5. The elements of the offence of wilful murder are:

1) That the accused killed the deceased.

2) That the killing was unlawful.

3) That the accused had the intention to kill.

Undisputed Facts:

6. There is no dispute that the deceased Nathan Mathews died as result of a knife wound of some sort during a bride ceremony at N’dilou Island and that the killing was unlawful.

Disputed Facts:

7. The facts in dispute are:

a) The thee (3) accused killed the deceased.

b) That the killing was unlawful

c) The (3) accused had the intention to kill.

Burden of Proof

8. It is trite law that in criminal proceedings the onus of proof rests entirely on the State from the beginning to the end. And the prosecution must prove every element of the charge beyond reasonable doubt.

State Evidence:

Outline

9. The prosecution’s evidence consisted of 16 exhibits which were tended into court by consent and three oral testimonies given during trial.

The exhibits

10. Column 1 of the table gives the exhibit number, column 2 describes each witness and column 3 summarises their evidence.

TABLE 1 – SUMMARY OF EXHIBITS

Exhibit	Witness	Description of evidence
1	1st co-accused	Record of interview of Junior Jones – denied involvement in the murder – remained silent.
2	2nd co-accused	Record of interview of Glen Elliot – denied involvement in the murder – remained silent.
3	3rd co-accused	Record of interview of Nolly Boiros Kilepak – denied involvement in the murder – remained silent.
4	Doctor	Carried out post-mortem and report on the deceased – observed satured wound of about (5) centimetres under the left hypochondrium which proved to enter the peritoneal cavity- no major organs involved – death caused by shock from severe haemorrhage as a direct result of the injury sustained.
5	Newman Kol Lambai officer	A high school student-Male 19 years old - Saw two brothers and their sister involved in a commotion over some hard stuff- The deceased and him together with other boys went to see what was happening-A lady Jennifer Minol was big mouthing at them and was calling Nathan William’s name when her brother Joe Minol heard her shouting –Joe Minol came straight and put a fight with Nathan Williams for no good reason- Deceased got mad over Joe Minol and threw punches and both started fighting-Joe Minol’s brother Peter Minol came and assisted his brother and they fought the deceased – He went in and pushed Joe Minol away but was held back by Junior Jones-He was removed by his brothers to his house – Did not see what happened to Nathan but left seeing Junior Minol, Peter Minol and Junior Jones with Nathan William-Early hours of the night heard Nathan Wiliam had passed away.
6	Justin Moh	Male 16 years. Around 3pm to 4pm he saw his two uncles Selan Elizah and Timothy Elizah struggling to calm their drunk sister Leah Elizah from disturbing the customary celebrations (bride-price ceremony)- He ran with Nathan William and Kol Lambai to see what was happening when Jennifer Minol began scolding them for being busy bodies- We did not go to fight-As they stood there watching Joe Minol came and punched Nathan and he retaliated with punches – When they were still fighting Joe Minol’s brother Peter Minol came, helped his brother and threw punches at the deceased-He saw Peter Minol putting his hand on Nathan’s neck and pushed him hard into the sand-When he and Kol Lambai saw what was happening they went in and tried to separate them but it was hard – At that time Joe Minol’s uncle (nephew) Ivan Jones came in, held onto Nathan’s neck again and pushed him against a tree nearby causing scratches to his two eyes and breast bone – Nathan saw blood and started punching Ivan Jones – He and Kol Lambai again attempted to stop them fighting – By than village people came and broke up the fighting – Everyone went to their houses – Will not talk about what happened afterwards as he was not there – During the night heard stories that Nathan William had been injured and fell down in front of his grandmother’s house – Does not know who did it – Heard Nathan William taken to hospital and died of his injuries.
7	Dulcie James	Female Adult –– Said it was a long time after the first argument and fight and place was getting dark – Between 6.30 to 7pm she was in her kitchen and saw some youths sitting down and telling stories at the back of the kitchen facing the field – Did not recognise the other youths but saw Nathan sitting down with the boys – From the kitchen she saw Junior Jones approaching the youths seated with Nathan and stretched out to shake his hands – Instead Nathan got up and punched Junior Jones who fell to the ground – Junior Jones did not fight Nathan back – He got up and started running for his house/area – As he was running away he called back saying that he would return with his knife – When Junior Jones ran away, he went and went for good – He did not come back to go and fight Nathan.
8	Kelly Chapau	Male adult – Some...