The State v Roy Noah

• Jurisdiction: Papua New Guinea
• Judge: Kaumi AJ
• Judgment Date: 02 July 2018
• Citation: (2018) N7397
• Court: National Court
• Year: 2018
• Judgement Number: N7397

Full : CR 768 of 2014; The State v Roy Noah (2018) N7397

National Court: Kaumi AJ

Judgment Delivered: 2 July 2018

N7397

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 768 of 2014

THE STATE

V

ROY NOAH

Lae: Kaumi AJ

2018: 14, 15, 16, 17 May 2 July

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Division 3-Homicide: Suicide: Concealment of Birth-Section 299 subsection (1)-Application that Case should be Withdrawn from the Tribunal of Fact-Two limbs of The State v Paul Kundi Rape relied upon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-Circumstantial Evidence Adduced by Prosecution Does Not Allow Court To Draw Only Rational Hypothesis That The Identity of the Perpetrator was The Accused-A Number Of Rational Hypotheses Could Be Drawn.

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 First Limb of Rape.

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] That at the close of the prosecution case two quite separate and distinct questions may arise for consideration at this stage of a criminal trial; one, whether there is a case for the accused to answer; and secondly, whether although there is a case for the accused to answer, the state of the evidence is such that the Judge ought to withdraw the case from the jury, or at least, tell the jury that they are entitled to indicate that they do not wish to hear any further evidence. The State v. Paul Kundi Rape [1976] PNGLR 96, O’Leary. AJ

[2] When the case against an accused person rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be in consistent with any reasonable hypothesis other than the guilt of the accused. State v Tom Morris [1981] PNGLR 493 by Miles J at p.495

Cases Cited:

Papua New Guinea Cases

Andrew v The State [2009] SC 997

Biwa Geta v The State [1988-89] PNGLR 153

Jimmy Ono v The State (2002) SC 698

John Beng v. The State [1977] PNGLR

Paulus Pawa v The State [1981] PNGLR 496

State v Morris [1981] PNGLR 493

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

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

State v Daniel [2005] PGNC 89; N2869

State v Ray Johnson (2016) N6379

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

The State v Kuriday (1981) N300

Overseas Cases

Barca v The Queen [1975] 50 ALJR 108 at 117

Legislation Cited:

Constitution of Papua New Guinea

Criminal Code Act 1974

References

Oxford English Mini Dictionary, Seventh Edition. Oxford. University Press. 2008 NewYork.

Counsel

Ms. Comfort Langtry, for the State

Mr. Isaac Tsipet, for the offender

05th August, 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 14th December, 2014 at about 8 p.m. at Butibum village in Lae when the accused stabbed the deceased Brown Kahata with a knife that led to his death.

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

ROY NOAH of BUTIBAM VILLAGE, LAE, MOROBE PROVINCE stands charged that he on the 14th day of December, 2014 at Lae in Papua New Guinea, wilfully murdered one BROWN KAHATA also known as HAROLD HAKI.

4. The accused pleaded not guilty and the trial started on the 14th May, 2018. The prosecution tendered by consent two (2) exhibits and called two (2) witnesses who gave sworn testimonies. It closed its case on 16th May, 2018 and the no case to answer submission was made thereafter.

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

Facts

6. The State alleges that on the 14th day of December 2014, the deceased, Brown Kahata also known as Harold Haki, ran after the accused brother, Samuel, who had sworn at the deceased and one Mark Alu and had run away to his residence. It is alleged that Brown Kahata followed Samuel Noah to his house where he disappeared. On seeing the deceased in his yard, the accused rushed at him and stabbed him with a knife on the left chest. The knife punctured the deceased‘s lung and caused his death.

7. The State therefore alleges that when the accused stabbed the deceased he unlawfully killed the deceased and at that time he intended to cause the deceased’s death and thereby contravened section 299(1) of the Criminal Code Act.

Issue

8. The issues before this court are:

(a) Whether or not there is some evidence of each element of the offence of wilful murder for the accused to answer;

(b) Whether although there is a case for the accused to answer, the state of the evidence is such that it is so weak or unreliable that no reasonable tribunal of fact could base a conviction on it, so the Court should exercise its discretion and stop the trial.

Identification

9. The prosecution raised the issue of identification, therefore the court must be satisfied that there is evidence provided by the prosecution identifying the accused.

Law

No Case to Answer Submission

10. 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 (supra) O’Leary. AJ stated two important principles which are often referred to as the first and second limbs:

That at the close of the prosecution case two quite separate and distinct questions may arise for consideration at this stage of a criminal trial; one, whether there is a case for the accused to answer; and secondly, whether although there is a case for the accused to answer, the state of the evidence is such that the Judge ought to withdraw the case from the jury, or at least, tell the jury that they are entitled to indicate that they do not wish to hear any further evidence.

11. 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.

(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.

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.

12. With respect to the weighing up of evidence in a no case to answer submission Kearney DCJ in State v Kuriday [1981] PGNC 28; N300 (18 June 1981) stated:

“This question is decided by the judge as a question of law. The answer depends on the state of the evidence, bearing in mind that the weighing of the evidence is to be eschewed as far as possible.”

13. The National Court has over 42 years reaffirmed these principles in many cases.

Elements of Wilful Murder

14. In State v Daniel [2005] PGNC 89; N2869 (15 July 2005) Cannings. J stated the elements of the offence of wilful murder that the prosecution had the onus of proving beyond reasonable doubt in the following terms that:

(a) The accused killed the deceased; (identification)

(b) The killing was unlawful; and

(c) The accused intended to cause the death of the deceased.

Principles of Identification

15. I remind myself of what the Supreme Court has said on identification in the case of John Beng v. The State [1977] PNGLR that when the quality of identification is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of identification, an acquittal should be entered.

16. The Court further notes what Frost CJ said in State v John Beng (supra) "that where evidence identification is relevant, the Court should be mindful of the inherent dangers. There is no rule of law that the evidence of one witness is insufficient, nor is there any rule of law that there must be a police parade for purposes of identification nor is there any rule of law that in every case, a warning ought to be given (to the jury), it all depends upon the circumstances of the case before the court."

Circumstantial Evidence

17. The...