The State v Kevin Henry (No 2)

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 14 March 2019
• Court: National Court
• Citation: (2019) N7766
• Docket Number: CR NO. 1836 OF 2016
• Year: 2019
• Judgement Number: N7766

Full Title: CR NO. 1836 OF 2016; The State v Kevin Henry (No 2)

National Court: Anis J

Judgment Delivered: 14 March 2019

N7766

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1836 OF 2016

THE STATE

V

KEVIN HENRY

(NO 2)

Kokopo: Anis J

2019: 13 & 14 March

CRIMINAL LAW – Application – no case to answer – circumstantial evidence – elements of the offence, murder, considered – whether evidence sufficient or if considered at their highest value would sustain the offence, murder

Cases Cited:

State v. Titila Tomur (2017) N6798

State v.Tom Tomugal (2016) N6329

State v. Junior Paul Paina (2014) N5819

Counsel:

Ms J. Batil, for the State

Ms J. Ainui, for the Accused

RULING ON NO CASE APPLICATION

14th March, 2019

1. ANIS J: The accused made an application for a no case to answer yesterday. The application was contested. I heard submissions from both counsel and reserved my ruling to this morning.

2. I will rule on it now.

APPLICATION

3. The no case to answer application was made orally by counsel for the defence. As to the source of such an application, I note that there is no express rule for that. But it is an acceptable practice which has been applied over the years by case law in adherence to the Constitution. Let me refer to the case, State v. Titila Tomur (2017) N6798. At paragraph 4, the Court stated, and I quote:

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)].

ISSUE

4. The issue is this, if this Court were to accept all the evidence of the prosecution at their highest value, whether the accused may be convicted on the offence, murder.

COURT’S ROLE

5. What is the court’s role in a no case application hearing? Let me refer to the case State v.Tom Tomugal (2016) N6329. The Court held, and I quote in part:

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)

6. I adopt the above herein. I note that in this case, the defence rely on the first limb, that is, want of evidence in regard to the elements of the offence, murder.

ELEMENTS

7. The elements of the offence, murder, under section 300(1)(a) of the Criminal Code are settled in this jurisdiction. Justice Cannings in the case, State v. Junior Paul Paina (2014) N5819 held, and I quote in part:

There are two elements of murder under Section 300(1)(a): that the accused killed the deceased and that the accused intended to cause grievous bodily harm to the deceased (or some other person).

CONSIDERATION

8. The defence submits that the prosecution has failed to establish, in evidence, material facts that would sustain the charge of murder. It submits that the prosecution evidence fell short of establishing the elements of the offence, murder. The prosecution on the other hand submits that it has provided evidence that establishes the two (2) elements of murder, namely, that the accused killed the deceased, and secondly, that he intended to cause grievous bodily harm to the deceased.

9. The prosecution called in three (3) witnesses. They were, Shirlyna Kavanamur, Catherine Penden and Bosco Lavai. Witness Shirlyna said that on the night in question, she was nearby in her house and she heard the deceased cry out from the accused’s house. She said when she ran out of her house, she heard the deceased say “my stomach, my stomach, I have a spleen, ….he kicked my stomach.” Witness Catherine said that on the night of the incident, she was at her house which was nearby to the accused’s house. She said she heard her aunt the deceased cry out from her house in agony and said, “Kevin kicked my stomach, my mother”. She maintained that position of what she had heard or was told, in cross-examination. Witness Bosco said that his house was close by to the accused’s house. He said at that time, he heard noises like fighting coming from the accused’s house. He said he heard someone calling, “my stomach, my stomach.” He said when he went outside of his house, the deceased had fallen in front of his house and that there were already people there trying to assist her. He said he left right away to look for transport to try to assist the deceased. He said when he returned, he found out that the deceased had died.

10. The parties were at common ground that the prosecution evidence were circumstantial. In my view, that may be so. But I find witness Shirlyna’s evidence to be crucial for this purpose. Firstly, I note that no objection was taken by the defence on whether her evidence was hearsay. Nevertheless, I note that the prosecution has addressed that in its submission. Ms Batil, in my view, correctly pointed out an exception to the hearsay rule, that is, a dying declaration, which is provided for under section 20 of the Evidence Act Chapter No. 48. I will not dwell further on that at this stage because that may be a matter that could be addressed in the final submissions, that is, if I rule that the trial is to continue. Evidence that had been tendered by consent, shows that the deceased died on 11 July 2016 due to a ruptured spleen.

11. In my view, I have before me primary evidence or evidence where if assessed based on its aggregated or highest value, shows that the accused killed the deceased. I also have primary evidence, again if assessed based on its aggregated or highest value, shows that the accused had intended to cause grievous bodily harm to the deceased. In regard to the former, the deceased had identified the accused, as told by witness Shirlyna, and in regard to the latter, the act of kicking someone in the stomach, as told by the deceased to witness Shirlyna, may be regarded as an intention to cause grievous bodily harm.

SUMMARY

12. In summary, I find that there is a case to answer. I refuse the defence application of no case to...