The State v Dickson Miritok, Timothy John, John Okndimeng, Miritok Matfokeon, Luke Mafu, Charlie Mafu & Godfrey Sipik (2007) N3466

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 04 October 2007
• Court: National Court
• Docket Number: CR NO. 185, 187, 189, 190 & 191 of 2004
• Citation: (2007) N3466
• Year: 2007
• Judgement Number: N3466

Full Title: CR NO. 185, 187, 189, 190 & 191 of 2004; The State v Dickson Miritok, Timothy John, John Okndimeng, Miritok Matfokeon, Luke Mafu, Charlie Mafu & Godfrey Sipik (2007) N3466

National Court: Kandakasi, J

Judgment Delivered: 4 October, 2007

N3466

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 185, 187, 189, 190 & 191 of 2004

THE STATE

-V-

DICKSON MIRITOK, TIMOTHY JOHN, JOHN OKNDIMENG, MIRITOK MATFOKEON, LUKE MAFU, CHARLIE MAFU & GODFREY SIPIK

Tabubil: Kandakasi, J.

2006: 14th and 16th November

2007: th October

RULING ON NO CASE SUBMISSION

CRIMINAL LAW—PRACTICE AND PROCEDURE—No case submission—Charge defective – Offence charged in the indictment not defined by written law - Conflict in evidence called by the prosecution on essential elements of offence —Effect of—Accused has no case to answer.

CRIMINAL LAW—PRACTICE AND PROCEDURE—Charge under Section 7 of the Sorcery Act – Accused can only be charged for committing a forbidden sorcery – No statutory basis to charge accused with committing murder by sorcery – Prosecution evidence showing cause of deceased death through a known medical condition – Effect of – State failing to establish essential element of charge proffered against the accused – No case to answer submission upheld – Section 7 Sorcery Act.

Cases Cited

Papua New Guinea Cases Cited:

The State v. Lina Mutuarin Wairo (2004) N2685.

The State v. Paul Kundi Rape [1976] PNGLR 76.

The State v. Roka Pep No 2 [1983] PNGLR 287.

The State v. Ani Obande (1983) N444.

The State v. Noah Magou [1981] PNGLR 1.

Re Moresby North East Parliamentary Election (No.1): Goasa Damena v. Patterson Lowa [1977] PNGLR 424.

SCR No. 1 of 1982: Re Philip Bouraga [1982] PNGLR 178.

The State v. Saul Ogerem (2004) N2780.

The State v. James Gurave Guba (1999) N2020.

Kwayawako and Five Others v. The State [1990] PNGLR 6.

The State v. Marety Ame Gaidi (01/08/02) N2256.

Jimmy Ono v. The State (04/10/02) SC698.

Richard Liri v. The State (2007), SC883

The State v. Maraka Jackson, CR NO. 1433 of 2004, decision delivered in Kerema on 24th October 2006.

John Baipu v. The State SCR 71 of 2003 unreported and unnumbered judgment (2005).

Overseas Cases Cited:

Blackburn v. Flavelle (1881) 6 App.Cas. 628, 634.

Books & Articles Cited:

Craies on Statute Law, 7th ed., pp. 259-260.

“The Power of Amendment in the District Courts Act Under Section 32 of the District Courts Act (Chp.40)”, Melanesian Law Journal, Vol. 16, 1988, p.115.

Counsel:

D. Mark, for the State.

A. Baniyamai, for the Accused.

4 October, 2007

1. KANDAKASI J: You seven men stand charged before this Court with one charge each for doing an act of forbidden sorcery, namely causing the death of one, Patrick Pitalok, contrary to s. 7 of the Sorcery Act, Chapter No. 262.

2. At the end of the prosecution case in November last year, you through your lawyer made a no case submission. After hearing your lawyer, I directed both him and the State prosecutor to file written submissions covering each of the points they raised before me in Court. The submissions have been filed. The Court considered the submissions and the evidence before it and came to a decision much earlier but was not able to have it delivered due to no circuit runs to Tabubil until now.

Law on No Case Submission

3. Turning to the case before me, I am of the view that, before considering the submissions that have been made and filed; I consider it appropriate that I should remind myself of the principles governing a no case submission. A no case submission can be made, which the Court can hear and determine at the close of the prosecution’s case. Such an application is a procedural reinforcement of the presumption of innocence under s. 37 (4) and the right to remain silent of an accused person under s. 37 (10) of the Constitution. Given these, the general principle is that, the prosecution must make out its case by the evidence it adduces. If there are any serious flaws in the evidence it calls, it can neither expect, nor can it make it good through a cross-examination of the accused or the accused witnesses.

i See for a case on point The State v. Lina Mutuarin Wairo (2004) N2685.

i1 Hence, the right vested in an accused person to make a no case submission, if in his or her view, the prosecution has failed to establish a prima facie case for him or her to answer.

4. The decision in The State v. Paul Kundi Rape

ii [1976] PNGLR 76.

ii2 enunciated the relevant principles. Those principles were adopted and applied by the decision in The State v. Roka Pep No 2.

iii [1983] PNGLR 287.

iii3 There, the Supreme Court summarized the principles in this way:

“Where in criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the question is for the judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence.

Where the tribunal decides there is no case to answer the accused is acquitted and that is the end of the matter.

Where the tribunal decides there is a case to answer, it nevertheless has a discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.”

5. As can be apparent from this, where an accused makes a no case submission, the Court should make a finding of no case to answer where (a) there is no evidence to establish an element of the offence charged; or (b) there is some evidence covering the elements of the offence charged but it is so tenuous or incredible or discredited that it amounts to only a scintilla, and thus could not be accepted as persuasive by any reasonable person. If the Court makes neither of these findings, it should find there is a case to answer. As the Court in Paul Kundi Rape held, the test is not whether on the evidence as it stands, the defendant ought to be convicted, but whether on the evidence as it stands, can the accused be lawfully convicted?

The Charge and Submissions

6. In your case, the State charged you under s.7 of the Sorcery Act. The charge reads:

“Dickson Miritok, Timothy John, John Okdimeng, Miritok Matfokoem, Luke Mafu, Charlie Diangim and Godfrie Sipik of Wangbin, Tabubil, Western Province stand charged that they on the 25th of February 2004 at Wangbin in Papua New Guinea did an act of forbidden sorcery namely causing death of one Patrick Pitalok.”

7. You argued through your lawyer that, sorcery in itself is not an offence, unless an act of sorcery is not an “innocent sorcery” or is a “forbidden sorcery”. In so submitting, you rely on the provisions of s.7 and the definition provisions of s.1 and schedule 1.1 of the Act. You then argued that in order to succeed on a charge under s.7 the prosecution must establish by appropriate evidence; (1) an act of sorcery; (2) that the act of sorcery is a forbidden one or is not an “innocent sorcery”. You referred the Court to the decisions of the National Court in The State v. Ani Obande

iv (1983) N444.

iv4 and The State v. Noah Magou.

v [1981] PNGLR 1.

v5 In those cases, the Court had evidence of the respective acts of sorcery and the defendants admitted to committing the acts of sorcery which were forbidden. Finally, you submitted that the evidence called by the State has failed to establish an act of “forbidden sorcery” and hence the charge against you.

8. The State’s submission is that, it has established the charge against each of you. In so submitting, the State argues that, the Court should ignore the medical evidence because the eventual outcome of the act of sorcery alleged against you is irrelevant as it is not an essential element of the charge against you. Otherwise the State agrees in effect with your submissions on the law. Proceeding on the basis of its submission, the State argues for a rejection of your no case to answer submission.

Consideration of the Submissions

9. Section 7 of the Sorcery Act, under which you were charged, reads as follows:

“A person who—

(a) does any act of forbidden sorcery; or

(b) aids, abets, counsels or procures, or by act or omission is in any way knowingly concerned in or party to, the doing of any such act,

is guilty of an offence.

Penalty: On conviction on indictment—imprisonment for a term not exceeding five years.

On summary conviction—imprisonment for a term not exceeding one year.”

10. I accept your lawyer’s submission that, this provision standing alone does not help us to easily work out what are the essential elements of this offence. This is principally because the provision does...