DC2089
PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS 
CRIMINAL SUMMARY JURISDICTION
CB NO.3954 OF 2016

BETWEEN:

POLICE

-Informant-

AND:

SAKA BEN WIA
-Defendant-

BOROKO  - NCD:  A. Kalandi
2016:  22ndNovember 2016
DECISION ON INSUFFICIENCY OF EVIDENCE
CRIMINAL LAW – Summary Offence – Firearms Act- Part XIOffences Generally- Section 59(1) Discharge of Firearm
Insufficiency of evidence – After close of prosecution case – Defence filed submission for insufficiency of evidence is a question of law. The question whether there is evidence which if accepted would establish the elements of the offence
The question is determined with the view of the Court that on the facts as it stands, no matter what evidence may be called by the accused, the prosecution case will not be proved beyond reasonable doubt, thus it will not improve, or the prosecution case is hopeless or intrinsically weak then the Court exercises its discretion here.
Where there is a case to answer- the Court does not need to give its reasons for the ruling.

Counsels:Constable Regina Killip– Police Prosecution
	Mr.Ame Phillip– For the Defendant
Laws:
1.	Firearms Act –Sections 59(1) 
Cases cited
1.	The State v Paul Kundi Rape (1976) PNGLR 96
2.	The State v Roka Pep (1983) PNGLR 287, (1983) PGSC 16
3.	State v Herman Kabai [1997]N1610
4.	Acting Public Prosecutor v Barry Blythe Holloway (Unreported National Court judgment [1981] No.298 
5.	The State v LaseboseKuridey (1981) N300 
6.	The State v Lupam Lau & 3 Others (Unreported National Court judgment N. 309(M) dated 16 May 1981), at 2
7.	Rosa Angitai v The State [1983] PNGLR 185
8.	The State v AigeKola [1979]PNGLR 620

KALANDI. A. DCM: The accused was charged withone count fordischarging a firearm without lawful excuse contrary to Section 59(1)of the Firearms Act. The defendant was arraigned and he pleaded not guilty to the charge as a result a trial was conducted. The prosecution called five witnesses and the defendant also indicated to call five witnesses. After the close of the prosecution case, the defendant submitted to file a submission on insufficiency of evidence. The submission was filed, arguments were presented and this is the Court’s ruling on insufficiency of evidence. The submission was filed and made under the PualKundi Rape case principles for a no case submission. 
POLICE BRIEF  
The Police allege that the accused, Saka Ben Wiaon the 17thAugust 2016, without lawful excuse discharged a firearm, a pistol at Portion 3254, Volume 64, Folio 50, Section 106, Milinch of Granville, Fourmil of Moresbyalong Hubert Murray Highway, within the boundaries of a town. It was alleged that at about 2.30pm on the date above mentioned, the Defendant came to the location described in the company of three land cruiser vehicles loaded with men got his pistol and fired it.
THE ELEMENTS OF THE CHARGE
For a Court to properly exercise its discretion as to whether there is a case for the accused to answer, some evidence must stand to satisfy the Court that the elements of the offence are directly or indirectly present by the evidence adduced by the prosecution.Hence, the elements for the offence as charged are set out hereunder;
The elements of the charge for discharging a firearm without lawful excuse per Section 59(1) of the Firearms Act are;
(i)	A person without lawful excuse
(ii)	Discharged a firearm
(iii)	In or over any place 
(iv)	Within the boundaries of a town
ISSUES
For the Court to decide whether the accused has a case to answer, the following two questions need to be answered.   
1.	Whether the prosecution established a prima facie case by adducing some evidence for all of the elements of the offence the accused stands charged.
2.	Whether on the evidence as it stands, can the accused be lawfully convicted
SUBMISSION
Both the Defence and the prosecution filed written submissions and made their submissions accordingly. Both sides submissions were basically triggered around the famous case ofPaul Kundi Rape and the Roka Pep (No.2)(supra) case. These cases basically outline the fundamentals of a no case submission or a submission on insufficiency of evidence after the close of the prosecution case. I had the benefit of listening to the submissions when presented and had the benefit of reading the submissions. 
DISCUSSION ON THE PURPOSE OF THE SUBMISSION
The accused is given the benefit of this submission at the close of the prosecution case to satisfy the Court to exercise discretion in his favor that there is no evidence that establishes the essential elements of the offence as charged to allow the case to progress trial allowing the accused to adduce evidence.
In a no case submission, the Court only needs to be satisfied that the State has established a prima facie case of the accused discharging a firearm without lawful excuse. Is there evidence supporting each of the elements of the offence and even if there is evidence, is the evidence so lacking in weight and reliability that the accused could not be lawfully convicted from the evidence as it stands and the case should be stopped from proceeding any further?
The case in Paul Kundi Rape has established and put in place the fundamental basis for a no case submission which has been subsequently applied in all cases thereafter inclusive of the Roka Pep case.  There were basically two principles established by the Paul Kundi Rape case which are termed as the first and second limbs.  
The first limb is the “no case to answer” rule which involves the question of law of whether the evidence as it stands at the end of prosecution case either directly or indirectly make out every element of the offence for which the accused is charged.  The test is not whether on the evidence as it stands the accused ought to be convicted, but whether on the evidence as it stands, the accused could be lawfully convicted.
The second limb is the rule which gives the judge the discretion to stop the case even if there are evidence supporting all or some of the essential elements of the offence extended over time. The Court in its discretion could stop the case if the evidence is “so dubious, or so tainted, or so obviously lacking in weight or credibility, or has been so discredited in cross-examination, that it is clear that no reasonable tribunal could safely convict on it”.  The rational is that the evidence as it stands is so insufficient and may not improve even if the accused is called upon to answer. See The State v LaseboseKuridey(supra)
Counsel of Defendant did not assist this Court as to whether his submission was in reliance of the first limb or whether the accused relied on both limbs per the Paul Kundi Rape’s case.  As the submissions centered largely on the facts, I assume counsel relied only on the discretionary issue of sufficiency of evidence. 
The principle applicable to a submission on “no case to answer” or “insufficiency of evidence” is well settled. However, for purposes of clarity, I decided to re-state and discuss the fundamental considerations that the Court must be satisfied to when a no case to answer submission is before the Court. The Paul Kundi Rape case sets out the very principles which have been discussed and further elaborated in the Roka Pep (No.2) case setting out following considerations the Court need consideration.
These are;
1.	First,whether there is evidence to support the essential elements of the offence, is there sufficient evidence to support the elements of the offence, is the evidence so insufficient that the accused need not be called to answer the charge

2.	Secondly, if there is some evidence covering the elements of the offence but it is so tenuous or incredible or discredited that it amounts to a scintilla, and thus could not be accepted as persuasive by any reasonable person, the Court has discretion to stop the case. The second proposition suggests there is discretion by the Court to stop the case at the close of all evidence 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 an accused.Is there some evidence covering the elements of the offence, but it is so tenuous or incredible or discredited that it amounts to a scintilla, and thus could not be accepted as persuasive by any reasonable person

Further to be considered, where there is evidence if accepted would establish the elements of the offence and no matter what evidence will be called by the accused, the prosecution case will not be proved beyond reasonable doubt, or the prosecution case will not improve, the prosecution case is hopeless, or is inherently weak. See The State v AigeKola by His HonorKapi J (as he then was) (supra).
In Acting Public Prosecutor v Barry Blythe Holloway, Miles J said, “strictly speaking such a submission is a submission of law, namely that even if all the evidence favourable to the prosecution were accepted, the prosecution must necessarily fail because that evidence did not go to prove one or more of the elements of the offence charged as it is defined by law”.
This now takes me to the second issue, whether the accused could lawfully be convicted on the evidence as it stands. The essentials of proving a case beyond reasonable doubt do not come into play here at this stage. Thus, a “case to answer” does not have any effect on the onus of proof which is on the prosecution from start to finish. As a result the Court does not weight the evidence.
His Honor, Pratt J in The State v Lupam Lau & 3 Others (supra) said; “that in a no prima facie case submission, matters of weight and credibility are to be ignored”.
Where there is some evidence which if accepted would either proof the elements directly or enable its existence to be inferred. Thus, every element need not be proved here. 
This is a question of law to be carefully distinguished from the question of fact for an ultimate decision, that’s whether every element of the offence is established beyond reasonable doubt.
The onus of proof beyond reasonable doubt arises only after whole evidence (both prosecution and accused) if accused wants to call evidence is adduced. Therefore the onus of proof does not arise at the close of the prosecution case, unless it’s the conclusion of all evidence where accused does not want to adduce evidence.
In State v Herman Kabai, His Honor Batari AJ (as he then was)  said in conclusion; “because of the conclusion I am about to make, I do not consider it appropriate to take one step further and consider the application to stop the case on the issue of sufficiency of evidence.  The evidence in my view as it stands now show the accused has a case to answer on the charge of rape on both counts.  Whether the evidence supports the guilt of the accused on the standard of prove beyond reasonable doubt does not arise at this stage.  That assessment will be made at the appropriate time at the end of all the evidence”.
It’s not whether there is any or some evidenceon which a Court could lawfully convict, but it’s whether there is sufficient evidenceon which a reasonable Court ought to convict.
Formerly the question was left to the Court if there was any evidence, even a scintilla, iota (bit) in support of the case.  
But now it’s settled law (subject of course to review) is not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the Court that the fact sought to be proved is established.
The considerations I have alluded to above do not exist here in this present case. Even if they exist, the prosecution case can be improved when evidence is adduced by the accused. Thus, I am of the perception that the accused has a case to answer. I do not intend to set out the reasoning.
As per the Supreme Court case of His Honor, Bredmeyer, J Rosa Angitai v The State (supra), said this at page 187; “where a no case submission is made, the trial Judge is not, except where he accepts the submission and acquits the accused, required to give reasons for his ruling”."With one exception, which I mention in a moment, reasons should not normally be given on a no case submission because, firstly, reasons require the weighing up of evidence and considering the credibility of witnesses, which is best left to the end of the trial when all the evidence, called by the State and defence, has been received. If this were not so, a Judge might say on the no case submission that he could not believe a certain State witness and then at the conclusion of the trial, because of further evidence called, reverse that view and say that he believes the testimony of that witness. A judge should not appear vacillating. Secondly, if a Judge were to give reasons and say that he thought a certain State witness credible that might suggest that the onus of proof has shifted from the prosecution, that the accused will be convicted unless he rebuts the evidence already called against him. It is for the latter reason that a Judge when rejecting a no case submission should avoid saying "I find a case to answer."

COURT ORDER
On the foregoing, I am satisfied that the accused has a case to answer.

For the Prosecution:			Police Prosecution
Lawyer for the Defendant:		Ame Lawyers