Papua New Guinea Law Reports - 1981
[1981] PNGLR 493
N228
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
TOM MORRIS
Waigani
Miles J
19-23 May 1980
27-28 May 1980
CRIMINAL LAW - Evidence - Burden of proof - Circumstantial evidence - Inferences to be drawn - Question of fact - Relationship of inferences to finding of guilt - Overall view of case.
CRIMINAL LAW - Practice and procedure - Submission of no case to answer - Whether unsafe and dangerous to convict - Discretion - When exercisable - Circumstantial evidence - Overall view of case.
When a case against an accused person rests substantially upon circumstantial evidence the question for the court is whether the guilt of the accused is the only rational inference that all the circumstances would enable it to draw.
Barca v. The Queen (1975) 133 C.L.R. 82 at p. 104; 50 A.L.J.R. 108 at p. 117 followed and applied.
Where there are a number of competing inferences it is a question of fact for the court to decide which inferences should be drawn, which rejected, which are reasonable, which are mere conjecture, and which party, if any, they favour.
Where at the end of the prosecution case there are inferences inconsistent with the guilt of the accused, there is a discretion to acquit, but only where an overall view of the case leaves the court with the conclusion that it would be unsafe and dangerous to convict.
The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96 considered.
The State v. Aige Kola [1979] P.N.G.L.R. 620 discussed.
Interlocutary Judgment.
At the close of the case for the prosecution on a charge of wilful murder counsel for the accused submitted that there was no case to answer or alternatively that the court should exercise a discretion not to proceed further because on the evidence as it stood it would be unsafe and dangerous to convict.
Counsel:
J. E. Byrne, for the State.
P. L. Formosa, for the accused.
Cur. adv. vult.
28 May 1980
MILES J:  The accused is charged with the wilful murder of Leo Alamuk in Papua New Guinea on about 19th October, 1979. The evidence shows that the deceased died as a result of a depressed fracture of the frontal part of the skull. The fracture extended through both plates of the skull. The fracture caused an epidural haematoma with resultant compression of the brain leading to death. The injury was consistent with a blow from an axe or tomahawk. There was evidence that the axe belonged to the accused and was in his possession on the day of 19th October, 1979, before the deceased received the injury and after the time when the deceased was last seen alive.
At the close of the prosecution case Mr. Formosa for the accused asked that I not call upon the accused to answer the charge on the basis that there is no evidence upon which the accused may be convicted, alternatively that I should exercise a discretion not to proceed further in the case because on the evidence as it stands it would be unsafe and dangerous to convict.
It was suggested by Mr. Formosa that there was a third alternative, namely that I should acquit the accused on the basis that even though I may not have heard all the evidence (because the accused still had the opportunity to present his case) I should have a reasonable doubt as to his guilt. This submission was said to flow from the judgment of Kapi J. in The State v. Aige Kola[dcclxxiii]1. I do not read the decision in that way. His Honour refers to grave doubts (my emphasis) which are considerably different from a reasonable doubt. His Honour also found that the evidence would not improve whether the accused gave evidence or not. I cannot make such a finding in the present case.
It would be quite inappropriate to consider whether I have a reasonable doubt at the close of the prosecution case. If the decision were that I was left in no reasonable doubt at this stage, the burden of proof would in effect shift to the accused who would then have to raise the doubt himself. That of course is in the face of clearly established principles of criminal law.
The State submits that the accused either:
(a)      struck the blow causing death or
(b)      aided and abetted whoever struck the blow or
(c)      was party to an agreement to effect an unlawful purpose in the carrying out of which the deceased was murdered.
The State submits that intention to kill can be inferred from a finding in accordance with any one of (a) (b) or (c) taken in conjunction with the medical evidence, the evidence relating to the axe and the behaviour of the accused at Gordons the afternoon and night of the killing and the day after.
The defence submits that there is no evidence on which a tribunal of fact could make any one of the findings (a) (b) and (c). The defence further submits that there is no evidence on which a jury could find that there was on the part of the accused, if he was the person who committed the act, an intent to kill, or if he were aiding and abetting another or part of a common purpose, an intent to kill on the part of the person who committed the act.
An examination of a “no case to answer” point necessarily involves an examination of the whole of the evidence in an endeavour to put the prosecution case at its highest. In order to decide the separate question of whether it would be unsafe and dangerous to convict, the court again looks at the whole of the evidence, but for the different purpose of exercising a discretion to take the matter away from the tribunal of fact. But in neither case is it appropriate to consider whether the prosecution has proved its case beyond a reasonable doubt, because that is the function of the tribunal of fact. A very useful discussion of these basic principles appears in the judgment of O’Leary A.J. in The State v. Paul Kundi Rape[dcclxxiv]2.
It is clear, and the prosecution concedes, that the case against the accused is a circumstantial one. No one saw him strike the deceased with an axe, no one saw him aiding and abetting any one else who struck the accused with an axe and there is no direct evidence of any preconcerted plan to carry out an unlawful purpose which had as one of its probable consequences the death of the deceased.
I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v. The Queen[dcclxxv]3:
“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 inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v. The King (1911), 13 C.L.R. 619 at p. 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v. The Queen (1963), 110 C.L.R. 234, at p. 252; see also Thomas v. The Queen (1960), 102 C.L.R. 584, at pp. 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.’: Peacock v. The Queen at p.661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v. Director of Public Prosecutions, [1973] 1 W.L.R. 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense.”
It is clear however that it is the tribunal of fact that has to decide whether the guilt of the accused is the only rational inference that the circumsances would enable it to draw. It should be obvious that a jury should not be told that merely because there are a number of competing inferences then they are bound to acquit. It is for them to decide which inferences they draw and which they reject and which inferences they regard as reasonable and which they regard as mere conjecture, whether those inferences are in favour of the prosecution or in favour of the accused, if either.
If at the close of the prosecution case there is an inference or are inferences upon which a jury might convict, then the decision should, subject to the discretion about to be mentioned, be left to the jury. There remains the discretion to take the case away from the jury where an overall view of the case leaves the court with the conclusion that it would be unsafe and dangerous to convict. But this does not mean that the discretion will be exercised in every case of circumstantial evidence where there is an inference or are inferences inconsistent with the guilt of the accused.
One might take an analogy in cases where a jury should be warned that it would be dangerous to convict in the absence of corroboration, say, of accomplices. Although a jury should, some say must, be so warned it does not follow that a judge will take the case away from the jury merely because the evidence consists of that of an uncorroborated accomplice. There must be something further which will cause the judge to exercise his discretion to interfere and direct the jury to acquit on the basis that it would be dangerous to convict.
Finally with regard to these general points I would observe that my function is not the same as that of a court of criminal appeal. A trial judge has a discretion which may be exercised if he feels that the state of evidence would make a conviction unsafe. The discretion does not have to be exercised in all cases. It is not likely to be exercised unless the degree of danger involved in a conviction is substantial enough to cause the trial judge to exercise the discretion. As I understand it, a trial judge may properly allow a case to go to a jury, even though a court of criminal appeal will upon a later review of the case decide that the state of evidence is so unsatisfactory as to require the conviction to be quashed. The quashing of the conviction in this way does not mean that the trial judge’s exercise of discretion was wrong.
Turning to the present case I propose to outline what I understand to be the prosecution case as it stands on the evidence. This seems to me preferable to the course of examining the evidence of the witnesses one by one and seeing how far he or she assists the prosecution case, for what matters in the end is the totality of the evidence of each and every witness taken in conjunction with the others.
[His Honour went on to outline the evidence and concluded as follows:
1.       There was no case to answer on the charge of wilful murder.
2.       There was a case to answer on an alternative charge of murder under s. 551 of the    Criminal Code Act, 1974.
3.       It would not be unsafe or dangerous to convict on the alternative charge of murder.
The accused called no evidence and did not make a statement. His Honour then considered whether the prosecution had proved the guilt of the accused beyond a reasonable doubt in relation to the alternative charge of murder. The verdict was not guilty.]
Verdict of not guilty.
Solicitor for the prosecution: C. Maino-Aoae, Public Prosecutor.
Solicitor for the accused: D. J. McDermott, Acting Public Solicitor.

[dcclxxiii][1979] P.N.G.L.R. 620.
[dcclxxiv][1976] P.N.G.L.R. 96.
[dcclxxv](1975) 133 C.L.R. 82 at p. 104; 50 A.L.J.R. 108 at p. 117.