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Police v Hariki [2021] PGDC 47; DC6005 (17 May 2021)

DC 6005

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]

SUM 508 of 2021
BETWEEN

POLICE

Informant

AND

ROSS HARIKI
Defendant

Lae: L Wawun-Kuvi

2021: 17 May

CRIMINAL LAW-CRIMINAL PRACTICE AND PROCEDURE- SUMMARY PROCEEDINGS- Summary Offences Act, section 6-Unlawful Assault-No case to answer

Cases Cited
Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PGSC 16; [1983] PNGLR 287 (14 September 1983)
Pep, The State v [1983] PNGLR 19 (14 February 1983)
The State v Paul Kundi Rape [1976] PNGLR 96

References
District Court Act
Summary Offences Act

Counsel

Police Prosecutor Sergeant Zacharias Albert

Lawyer for the Defendant, Mr Emmanuel Mambei

17 May 2021

RULING ON NO CASE TO ANSWER

L Wawun-Kuvi, Magistrate:

1. At the close of the Prosecution case, counsel for the Defendant made a submission for no case, that the Court should not call up the Defendant to answer.
2. The basis for the submission as I gather from Mr Mambei submission is that the prosecution has not established identification in that, firstly, the defendant and the complainant are not familiar with each other and secondly, the complainant was so heavily intoxicated his evidence is unreliable.
3. Sergeant Albert for the Prosecution in response stated that the evidence of the Complainant is sufficient to establish identity and therefore the accused has a case to answer.

What is the law?

4. In deciding whether to dismiss an information at the close of the Prosecution case, upon a submission for a no case to answer, the test to be applied to be applied is whether there is evidence which, if accepted, would provide evidence to some each element of the charge. Even if there is such evidence, it may be so lacking in weight and reliability, that it is open to the Court to dismiss the information, see The State v Paul Kundi Rape [1976] PNGLR 96.
5. A lot of process will be made clear when counsels fully appreciate that our laws are derived from jurisdictions that have jury systems. In jury systems after the close of the prosecution case, the jury is excused, and the no case submission is made to the Judge, being the decider of law. The submissions are based on questions of law.
6. In Papua New Guinea, the law makers decided that considering our societal and cultural dynamics, jury systems would not be appropriate, as such the Judge or Magistrate has become both the trier of fact and law.
7. Considering this, my humble view is that no case submissions in our jurisdiction should be infrequent or at least very short because the relevant judicial officer has already heard the evidence, and it is his or her discretion to allow the matter to continue or not, see Pep, The State v [1983] PNGLR 19 (14 February 1983)
8. Most counsels refer to the no case as having two limbs, however in lights of the decision of Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PGSC 16; [1983] PNGLR 287 (14 September 1983), it is noted that there are three:
   1. Where there is no evidence
   2. Where there is very little evidence
   3. Where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.
9. The three are separate and should not be invoked at the same time as forming the basis of the submission nor should judicial time be wasted when the prosecution case does not fall into one of the three legs.
10. Summary proceedings by their nature are intended to be quick. It is upon police to prove their case and where there are unrepresented defendants’, the Court must adopt the process, apply one of the three limbs and stop the case, when the evidence by the prosecution falls into either one.

Does the present case fall into one of the three categories?

11. No.
12. The evidence as lead by the prosecution and answers in response to the questions put in cross examination, establish that the issue is one of involvement.
13. There is no dispute that the complainant was taken out of the Swing Bar by the defendant nor is there any dispute that the complainant was assaulted by a group of policemen.
14. The only issue is whether or not the defendant assaulted the Complainant?
15. The evidence of the Complainant establishes that the defendant assaulted him and then his colleagues joined in and aided him.
16. The Defendant has a case to answer.

Lawyer for the Informant, Police Prosecution

Lawyer for the Defendant, Solwai Lawyers