The State v Moses Jigimbe

• Jurisdiction: Papua New Guinea
• Judge: Kaumi AJ
• Judgment Date: 29 March 2018
• Citation: (2018) N7261
• Court: National Court
• Year: 2018
• Judgement Number: N7261

Full : CR 544 of 2015; The State v Moses Jigimbe (2018) N7261

National Court: Kaumi AJ

Judgment Delivered: 29 March 2018

N7261

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 544 of 2015

THE STATE

V

MOSES JIGIMBE

Lae: Kaumi AJ

2018: 26, 27, 28, 29 March

CRIMINAL LAW – Practice and Procedure-No case To Answer Submission-Criminal Code Act 1974, Part V-Offences Against the Person and Relating to Marriage and Parental Rights and Duties, and Against the Reputation of Individuals, Division 3-Homicide: Suicide: Concealment of Birth-Section 299 subsection (1)-Application that Case should be Withdrawn from the Tribunal of Fact-Two limbs of The State v Paul Kundi Rape relied upon

CRIMINAL LAW-No Case To Answer Submission-First Limb-There Is Evidence on Elements of the Charge-Second Limb-Evidence on identification Inconsistent, Incredible and Discredited in Cross-Examination and Embellishing.

CRIMINAL LAW- State bears onus of establishing the charge against an Accused person on the required Standard of Proof, Beyond Reasonable Doubt-Prosecution case Would Not Improve If Accused called upon to answer the Charge-Accused has No Case To Answer on the Second Limb of Rape.

CRIMINAL LAW-Prior Statement that omits other evidence, But Included Subsequently in the Oral Testimony of a witness, Does Not Amount to Prior Inconsistent Statement.

The accused pleaded not guilty to willfully murdering a man and a no case to answer submission was made at the close of the prosecution case.

HELD:

[1] The case law on no case to answer submissions is well settled in this country. In the seminal case of The State v. Paul Kundi Rape [1976] PNGLR 96, O’Leary. AJ stated two important principles which are often referred to as the first and second limbs.

[2] The principles of the Rape case were affirmed by the 5 men Supreme Court bench (Kidu, CJ, Kapi. DCJ, Andrew. J, Pratt. J and Kaputin. J) in State v. Roka Pep (No.2) [1983] PNGLR 287; SC 261

[3] (Per Kidu CJ Kapi DCJ Andrew and Kaputin JJ)Where in criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the matter is a question of law for the judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence. State v. Roka Pep (No.2) [1983] PNGLR 287; SC 261

[4] (Per Pratt J) A tribunal 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 only to a scintilla, and thus could not be accepted as persuasive by any reasonable person.State v. Roka Pep (No.2) [1983] PNGLR 287; SC 261

[5] (1) There is evidence of all the essential elements, but it is of a tenuous nature for example the evidence is weak or vague or inconsistent with other evidence. The question of law which arises at this point is whether there is sufficient evidence to support a conviction. A judge is required to direct his mind to the aggregate effect, or sufficient, of the whole prosecution evidence. The issue is not directed at the primary findings of fact, but to the conclusions which could reasonably be drawn from the primary facts to support a conviction. This is a question law, or at least of mixed fact and law. State v. Roka Pep (No.2) [1983] PNGLR 287; SC 261

[6] The premise on which the consideration of the second limb of Rape arises is that there is evidence of the elements of the offence, the question under this limb is whether this evidence is of a tenuous nature for reasons of being weak, vague or inconsistent with other evidence or put in another way does the state of the evidence provide a sufficient basis for which the court ought to convict the accused.

[7] I warn myself of the need to be eschew as much as possible when I consider this apparent contradiction in the prosecution evidence with regard to identification of the person responsible for stabbing the deceased. My consideration involves weighing up the evidence and this must be done sparingly.

[8] Whether or not the accused will be called upon to answer the charge is dependent on the nature of the evidence of the identification of the accused. More to the point, the court must be satisfied that the prosecution has provided prima facie evidence on the identification of the accused. The outcome will be determined by the quality and the probative value of the evidence provided by the prosecution witnesses on the issue of identification.

[9] The burden of proof in a criminal case is always on the State. It does not shift to the accused to prove his innocence. This would run contrary to the presumption of innocence of an accused person guaranteed under Section 37 (4) of the Constitution.

[10] In the assessment of witnesses and or their evidence in any case, logic and common sense usually played a major part. Garitau Bonu and Rosana Bonu v The State (1997) SC 528

[11] As would be apparent, directions of inconsistency does not arise until a witness gives a testimony that directly opposes or contradicts a statement previously given by the witness. Even in that case, that is not conclusive. As long as the Court warns itself of the kind of weight it should place on such evidence. Thus in our view, a prior statement that omits other evidence, but included subsequently in the oral testimony of a witness, does not amount to prior inconsistent statement. Balbal v State[2007] PGSC 16; SC 860 (22 February 2007) Sevua, Kandakasi, Gabi JJ

[12] His Honour is clearly accepting their prior written statements as the truth of what they stated there in as opposed to their sworn oral testimony. Those two statements were tendered in cross-examination with the purpose of contradicting their sworn testimony in court. The effect of these statements going into trial is that the sworn testimony of the witnesses concerned has now become unreliable and they remain discredited. Their credibility as witnesses have been seriously tainted and reduced and none of their stories can now carry any weight and ring of truth. This is really the ultimate goal of tendering into court prior inconsistent statements of witnesses.” Kandakason v The State [1998] PGSC 20; SC 558 (7 July 1998) Amet CJ Los, Kirriwom JJ.

Cases Cited:

Balbal v State [2007] PGSC 16; SC 860

Garitau Bonu and Rosana Bonu v The State (1997) SC 528

John Beng v. The State [1977] PNGLR

Kandakason v The State [1998] PGSC 20; SC 558

State v. Roka Pep (No.2) [1983] PNGLR 287; SC 261

State v.Tom Tomugal (2016) N6329

The State v Boana Bonat (2016) N6217

The State v Cain Namah (2015) N5990

The State v David Bal Kuro (2016) N6261

The State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (16/10/01) N 2298

The State v Gore (No.1) (2004) N2639

The State v Henry Osare Kales (2001) N2115

The State v Herman (2003) N2475

The State v Kuriday (1981) N300

The State v Kwale Dire (2001) N2178

The State v Loya Yama (2015) N6100

The State v Mahari Dippon (2014) N5705

The State v Nicky Paul (2016) N6428

The State v. Paul Kundi Rape [1976] PNGLR 96

SCR No 1 of 1980: Re s.22A (b) of the Police Offences Act (Papua)

The State v Robert Tamtu (2001) N2166

The State v Tauvaru Avaka (2000) N2024

The State v Thomas Sange (2005) N2805

The State v Tolly Amindi (2004) N2683

Legislation Cited:

Constitution of Papua New Guinea

Criminal Code 1974

Counsel:

Ms. Theresia Aihi, for the State

Mr. Isaac Tsipet, for the offender

29th March, 2018

1. KAUMI AJ: INTRODUCTION: This is a ruling on a no case submission by a man who is facing an indictment that he wilfully murdered a man contrary to Section 299 (1) of the Criminal Code Act Chapter 262.

BACKGROUND

2. The incident was alleged to have occurred on Saturday 4th October, 2014 at about 8 p.m. at Montoro Street in Lae when the accused stabbed the deceased Kenneth Ombika with a knife that led to his death.

3. The accused was indicted pursuant to Section 299 (1) of the Criminal Code as follows:

MOSES JIGIMBE of WAMAYANG VILLAGE, YANGORU, EAST SEPIK PROVINCE stands charged that he on the 4th October, 2015 at PNG Ports Compound, Lae, and Morobe Province wilfully murdered KENNETH HOMBIHA.

4. The accused pleaded not guilty and the trial started on the 26th March, 2018. The prosecution tendered by consent nine (9) exhibits and called two (2) witnesses who gave sworn testimonies. It closed its case on 27th March, 2018 and the no case to answer submission was made thereafter.

5. Mr Tsipet of counsel in making the no case to answer submission and relies on both limbs of State v Paul Kundi Rape[1976] PNGLR 96.

FACTS

6. It was alleged that on 4th October, 2015 at about 8.00 pm, the accused was at PNG Ports Compound, Montoro Street in Lae.

7. The accused was with the deceased and others drinking together. At that time the accused and the deceased had an argument over the deceased’s sister ‘Noeline’ who was a former girlfriend of the accused. This argument led to a fist fight between the accused and the deceased. They were stopped by the others who...