Unreported National Court Decisions
N300
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
LASEBOSE KURIDAY
Goroka
Kearney DCJ
18 June 1981
RULING ON SUBMISSION OF NO CASE TO ANSWER
KEARNEY DCJ:  The accused is standing her trial on charges of the attempted murder of a baby and of endangering the life of the baby by exposing it.
The State has adduced its evidence and closed its case. Mr. Sevua now submits that the Defence has no case to answer.
The first submission is that the State case consists largely of a confession contained in a record of interview; that that material itself fairly raises a defence of mistake of fact under Code s. 24, a belief by the accused that the baby was already dead; that the State has not adduced any evidence which tends to negative that defence, and on the evidence the accused could not therefore lawfully be convicted.
I consider that there is material in the State case which, if accepted, would fairly then raise a s.24 defence; this is contained in the record of interview. I consider however, that there is also evidence which, if believed, could found an inference that the accused had no such belief at the time. Further, the tribunal of fact may not accept self-serving statements of the accused in the record of interview, so it cannot be said at this stage of the trial that the defence is now fairly raised.
Accordingly, I would reject the first submission.
Mr. Sevua’s alternative submission is based on what has become known as “the second leg of Paul Kundi Rape that, though there is a case to answer, the Court is invited to rule that the State evidence is insufficient to establish guilt beyond reasonable doubt, and, without hearing the accused, acquit her.
I do not propose to accept that invitation; to explain why, requires some examination of the submission of “no case to answer” in our system of trial where the judge (or magistrate) is both tribunal of law and tribunal of fact.
Five years ago O’Leary A.J. in The State v. Paul Kundi Rape[dxxxv]1 illuminated the law and practice of “no case to answer” submissions made at the close of the State case. Nevertheless, I think some shadows remain. First, a few general remarks.
In our system of criminal justice, trial is by judge or magistrate alone who applies the law and decides the facts. In some other countries these two functions are performed by separate bodies, the judge and the jury. That division of function, with the fact that the jury is selected ad hoc of laymen, has had an important effect on the development of the practices followed in the criminal trial in those countries. By and large we have the same practices in this country although we have no jury, so that rationale does not exist. The utility of such practices in our system needs perhaps to be questioned more closely.
For example, the need to prove to the judge that a confession is voluntary, before it is admitted into evidence and heard by the jury, is of questionable use where there is a single tribunal of law and fact.
Insofar as the “no case” practice serves as a measure by which the judge controls the jury, it is for similar reasons of questionable value in our system.
But the “no case” practice serves a separate and essential purpose: it is a procedural reinforcement to the presumption of innocence in Constitution s. 37(4) (a), and to the accused’s right to silence, in Constitution s.37(10). These citizen rights entail that the State must make out its case by the evidence it adduces; it cannot rely on making good any defects in its case, by cross-examination of the accused or his witnesses.
Finally, it appears to me to be of fundamental importance to a fair trial in our system as in any common law system, that the judge as tribunal of fact never be required to weigh up the evidence more than once, and then only when all of the evidence is in. See Woolmington v. D.P.P.[dxxxvi]2, It follows, I think, that in our system any weighing of the evidence by the judge or magistrate, required by a “no case” submission at the close of the State case, should be kept to the absolute minimum.
I turn to more specific matters.
Two submissions are commonly made by the accused at the close of the State case, as in this case. One is a “no case” submission proper, and raises a question of law. The other is an application to “stop the case” and involves a question of fact.
The “no case” submission proper raises the question: has the State made out such a case against the accused as could safely sustain his conviction in the absence of an explanation or contradiction? 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. Two broad situations may be distinguished.
First, an accused cannot lawfully be convicted if there is no evidence, or no more than an iota of evidence, in proof of any one element of the offence charged. No real weighing of the evidence is involved in such a case.
Second, where there is more than an iota of evidence with respect to each element of the offence: it appears that a no case submission can still be entertained though the Court has a discretion whether or not to do so, and though strictly it does not involve a ruling of no case: see Wilson v. Kuhl[dxxxvii]3.
A submission on this basis appears to be linked with the “unsafe or unsatisfactory” ground of appeal against convictions, which appears in s. 22(1) (a) of the Supreme Court Act 1975. Its historical development is traced in R. v. Mansfield[dxxxviii]4. The question which this submission poses for the judge is whether the evidence is insufficient to sustain a safe or satisfactory conviction. Since “sufficiency” is involved, it appears that the judge is required to weigh the evidence to determine the conclusions it could safely support.
Because this involves the judge in weighing the evidence, and because as far at least as direct evidence is concerned, this involves a determination of credibility of witnesses, and this is seen as a jury function, this type of no case submission does not appear to be entertained in Canada. See R. v. Paul[dxxxix]5 and United States of America v. Sheppard[dxl]6.
In principle, the Canadian view appears to me to be correct and arguably should obtain here even in the absence of a jury, because of the principle that the evidence should be weighed only once, when it is all in. At this stage of the trial, adopting what was said in Barker[dxli]7:
“It is not the judge’s job to weigh the evidence, decide who is telling the truth, and to stop the case merely because he thinks a witness is lying”.
It appears to me that a submission on this basis should be entertained only when the judge really has no weighing up to do. That is, it must be a very clear case, where the State evidence is so dubious, or so tainted, or so obviously lacking in weight or reliability, or has been so discredited in cross-examination, that it is clear that no reasonable tribunal could safely convict on it. This is not such a case.
I come now to the second submission commonly made at this stage, that the case be stopped. This is Mr. Sevua’s alternative submission. It involves a question of fact, the Court being asked/to weigh the evidence, find guilt not proved beyond reasonable doubt, and there and then acquit. I think that the general principle that the Court should not weigh up the evidence until the whole of the evidence is in, points to this submission not being entertained except in what is very clearly a hopeless case, where the State case is intrinsically very weak, or has collapsed badly. It would be the sort of case where the Court itself would be considering acting on its own initiative, to stop what amounts to a waste of its time and public money. But other than in a very clear case - and this is not one such - the general principle I have mentioned seems to point to such a submission not being entertained unless Counsel indicates when making the submission that the Defence will not go into evidence. That is not the case here. For that reason I will not entertain Mr. Sevua’s second submission at this stage, and I call on the Defence in terms of Code s. 584.
(The accused did not go into evidence, and was convicted as charged.)
Solicitor for the State: L. Gavara-Nanu Public Prosecutor
Counsel: V. Noka
Solicitor for the Defence: A. Amet
Counsel: M. Sevua

[dxxxv](1976) PNGLR 96
[dxxxvi](1935) A.C. 462, at p. 481 per Sankey L.C.
[dxxxvii](1979) V. R. 315 at pp. 318-319.
[dxxxviii](1977) 65 Cr. App. R. 276 at pp. 280-1
[dxxxix](1976) 64 D.L.R. (3d) 491
[dxl](1977) 70 D.L.R. (3d) 136
[dxli](1977) 65 Cr. App. R. 287 at p. 288