N400

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

DELGA PURI AND TAPRI MAIP

Western Highlands Province
Kidu CJ

6 December 1982

CRIMINAL LAW - Onus of proof - Beyond reasonable doubt - Time for - Submission of no case to answer - Determination not to be made on.

CRIMINAL LAW - Practice and procedure - Submission of no case to answer - Determination of proof beyond reasonable doubt not to be made on.

The proper time for a trial judge to consider whether or not the State has discharged the onus of proving its case beyond reasonable doubt is either after the State has closed its case and the defence has indicated that it will not adduce any evidence at all, or, after the State and the defence have adduced evidence; the trial judge cannot, at the close of the case for the prosecution, determine this issue on a no case submission.
Haw Tua Tau v. Public Prosecutor [1981] 3 All E.R. 14, applied.

Cases Cited:

Benney v. Dowling [1959] V.R. 237.
Haw Tua Tau v. Public Prosecutor [1981] 3 All E.R. 14.
R. v. Barker (1975) 65 Cr. App. R. 287.
R. v. Dodd [1971-72] P.N.G.L.R. 255.
R. v. Falconer-Atlee (1973) 58 Cr. App. R. 348.
R. v. Kalaitzidas, Tsenditis, Alexiadis and Balopitas (1978) 20 S.A.S.R. 87.
R. v. Mansfield [1978] 1 All E.R. 134; [1977] 1 W.L.R. 1102.
R. v. Prasad (1979) 23 S.A.S.R. 161.
State, The v. Aige Kola [1979] P.N.G.L.R. 620.
State, The v. Lupam Tau (Unreported National Court judgment N309, Pratt J.).
State, The v. Paul Kundi Rape [1976] P.N.G.L.R. 96.

Trial

This was the trial of two accused on three separate charges. At the conclusion of the case for the State, counsel for the accused submitted that there was no case to answer on any of the charges, and even if there was sufficient evidence, that the trial judge should decide whether or not there was evidence which established beyond reasonable doubt the guilt of the accused.

Counsel:

F. Damen, for the State.
P. Kopunye, for the accused.

6 December 1982

KIDU CJ: The State rested its case last Friday and defence counsel, Mr. Kopunye, submitted then that his client had no case to answer on the three charges, namely:

(1) Assault occasioning bodily harm;
(2) Stealing with violence while in company (robbery);
(3) Unlawful and wilful damage to property.

COUNT 2

It was conceded by Mr. Damien for the State that the evidence on the second count was such that a reasonable tribunal of fact, that is a judge sitting as a tribunal of fact, could not lawfully convict. I agreed with this and acquitted the two accused of this charge.
[His Honour then considered the evidence by which he came to this conclusion.]

COUNTS 1 AND 3

As to the first and third charges, I hold the view that there is a case to answer. The testimonies of Kapis Kerua, Wama Puri, Jacob Kunjip and Etapati Koi, accepted as accurate, show that the accused were present and took part in the assault of Kunjip and did damage his motor vehicle. Mr. Kopunye however submits that even if there is sufficient evidence, I should now decide whether or not the evidence established beyond reasonable doubt the guilt of the two accused. This submission is based on what Kapi J. (now the Deputy Chief Justice) said in the case of The State v. Aige Kola [1979] P.N.G.L.R. 620. In that case his Honour said, at p. 622:

"The principle stated in R. v. Dodd [1971-72] P.N.G.L.R. 255 in my opinion, goes further than a no case submission. In my opinion, the case stands for the proposition that even after a determination is made on a no case submission, a trial judge may go one step further and inquire whether, at that stage, it is safe for him to convict on the evidence, or, to put it differently, whether he is satisfied beyond doubt of the guilt of the accused. R. v. Dodd (supra) does not clearly set out the circumstances under which this procedure may be adopted. However, as I understand the principle stated in R. v. Dodd, this procedure may be followed where at the end of the prosecution case, it is obvious to a judge that the prosecution case is such that no matter what evidence may be called by the accused, the prosecution case will not be proved beyond reasonable doubt, or to put it differently, the prosecution case will not improve. In my opinion, this is when this procedure may be adopted and not otherwise."

Kapi J. (as he then was) also relied on a South Australian case of R. v. Kalaitzidas, Tsenditis, Alexiadis and Balopitas (1978) 20 S.A.S.R. 87. This was a judgment of Walters J., a single judge of the South Australian Supreme Court. In that case (a rape case), a no case submission had been made by counsel for the accused after the prosecutrix or the complainant had given evidence but before the Crown case had closed. The judge there directed the jury to return a verdict of not guilty and the jury retired at 10:56 a.m. and returned at 11:09 a.m. with a verdict of not guilty as to each of the accused and as directed by the judge. Thirteen months after that case, the Full Court of the Supreme Court of South Australia (consisting of King C.J., White and Moore JJ.) by a majority held that in a criminal case a trial judge has no discretion to direct the jury to bring in a verdict of not guilty where there is a case to answer, even though the evidence of the prosecution is conflicting or unsatisfactory.

This was the case of R. v. Prasad (1979) 23 S.A.S.R. 161. In that case King C.J. said, at pp. 162-163:

"It was contended before us that although there is a case to answer there is nevertheless a discretion in the trial Judge to stop the case and direct a verdict of not guilty if he considers that the evidence for the prosecution is so unsatisfactory that it would be unsafe to convict upon it. This submission was based upon a practice which has grown up in England since the passing in that Country in 1966 of an amendment to the Criminal Appeal Act, 1907, as a result of which the Court of Appeal is empowered to set aside a verdict of a jury on the grounds that it is unsafe and unsatisfactory. The history of the practice is set out in R. v. Mansfield [1977] 1 W.L.R. 1102, per Lawton L.J. at pp. 1105-1106.

Whatever justification might exist for the practice in England where the change as to grounds upon which the Court of Appeal may intervene is now embodied in the Criminal Appeal Act, 1968, I cannot see any basis in principle for the adoption of the practice in this State. There has been no corresponding change in this State as to the grounds upon which the Full Court may interfere with a conviction. The ground in this State, which corresponds with the altered ground in England, remains that the verdict is unreasonable or cannot be supported having regard to the evidence. It seems to me that to say that a judge can direct a jury to bring in a verdict of not guilty when there is evidence capable in law of supporting a conviction is to infringe one of the basic principles of trial by jury. It is fundamental to trial by jury that the law is for the judge and the facts for the jury. If there is no evidence which would justify a conviction then, as a matter of law, there must be an acquittal. That decision is for the judge and the jury must accept and act on his direction on that question of law. If, however, there is evidence which is capable in law of supporting a conviction, a direction to the jury to acquit would be an attempt to take from them part of their function to adjudicate upon the facts. That, as it seems to me, would be contrary to law.

It is, of course, open to the jury at any time after the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may do so then or at any later stage of the proceedings: Archbold, Criminal Pleading and Practice (39th ed., 1976), p. 332. He may undoubtedly, if he sees fit, advise them to stop the case and bring in a verdict of not guilty. But a verdict by direction is quite another matter. Where there is evidence which, if accepted, is capable in law of providing the charge, a direction to bring in a verdict of not guilty would be, in my view, a usurpation of the rights and the function of a jury. I think that there is a clear distinction for this purpose between a trial before a magistrate or other court which is the judge of both law and facts and a trial by judge and jury. I have no doubt that a tribunal which is the judge of both law and fact may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. This power is analogous to the power of the jury, as judges of the facts, to bring in a verdict of not guilty at any time after the close of the prosecution’s case. It is part of the tribunal’s function as judge of the facts. It cannot, consistently with principle, exist in a judge whose function does not include adjudication upon the facts."

In that case White J. said the same thing.

It is clear that Kalaitzidas’ case (supra) is not an authority for the proposition that after the close of the prosecution’s case, although there is some evidence, a trial judge has the power to determine whether or not the State has proved its case beyond reasonable doubt without calling on the accused.

Kelly J. in R. v. Dodd [1971-72] P.N.G.L.R. 255 thought there was such a discretion and his Honour relied on the case of Benney v. Dowling [1959] V.R. 237, a judgment of a single judge (O’Brien J.) of the Victorian Supreme Court. With respect, O’Brien J. did not advance any such proposition. What he said appears on p. 242 of his judgment and does not say what Kelly J. said in Dodd’s case. It really is a case which supports the principle in The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96. In fact in Paul Kundi Rape’s case O’Leary A.J. was of the opinion that Dodd was a case where the trial judge thought there was insufficiency of evidence. I think it states what is known as the second leg of Paul Kundi Rape, that is, what that authority supports, rather than that a judge has a power to determine whether the State has proved its case beyond reasonable doubt at the end of its case without calling upon the defence or without finding out whether the case has finished or not from both sides.

In fact, in Paul Kundi Rape, O’Leary A.J. said as follows, at p. 99:

"In support of his argument Mr. McWalters referred me to a decision of Kelly J. in R. v. Dodd. In that case, his Honour held that there was a case to answer, but nevertheless went on to acquit the accused on the ground, as he put it, that ‘on the Crown case it is not possible for me to be satisfied beyond reasonable doubt of the guilt of the accused’. I have no doubt that the learned judge was there applying the true principles in that case, but, with respect, I think that to express the matter in that way is apt to be misleading in that it does tend to obscure what I, at least, perceive those true principles to be.

I was also referred, in the course of arguments to the decision of O’Bryan J. in Benney v. Dowling, a decision to which Kelly J. himself referred in Dodd’s case. I think that that case gives direct support to what I have said above. There the learned judge drew a clear distinction between the two questions I have referred to. At p. 242 he said:

‘"That proposition" (i.e. the proposition in May v. O’Sullivan as to the basis of a no case submission) in my opinion was never intended to carry with it the proposition that a magistrate has no discretion to say at the end of the informants’ case whenever there is, technically speaking, evidence upon which the defendant could lawfully be convicted that he does not want to hear the defendant but will dismiss the information.’

And later on he said:

‘It is common practice both in Courts of petty sessions and in trials before a jury that at the end of the case for the informant or prosecution, although the evidence as it stands might justify a conviction, for the magistrate or a jury, very often at the suggestion of the trial judge, to say that he or it does not require to hear any evidence for the defence and to acquit at that stage.’

In my view the present case is not on which there is such an insufficiency of evidence that a reasonable jury ought not to convict on it, and therefore I am not prepared to acquit at this stage."

In Aige Kola the trial judge also placed reliance on R. v. Falconer-Atlee (1973) 58 Cr. App. R. 348, a decision of the Criminal Division of the English Court of Appeal (Roskill L.J., Neild and Mars-Jones JJ.). This case does not support the proposition advanced in Aige Kola and Dodd. In Falconer-Atlee (supra) the court said, at p. 357:

"This Court has repeatedly said in recent years that this practice should not be followed." (I.e. the practice of judges directing judges not to convict because of insufficiency of evidence etc.) "If a Judge thinks that the case is tenuous, then, even though there is some evidence against the accused person, the judge, if he thinks it would be unsafe or unsatisfactory to allow the case to go to the jury even with a proper direction, should take upon himself the responsibility of stopping it there and then. If the judge is not prepared to stop the case on his own responsibility, it is wrong for him to try and cast the responsibility of stopping it onto the jury."

I pause here to point out that the English position on the point expounded in Falconer-Atlee (supra) is yet to be settled. In R. v. Barker (1975) 65 Cr. App. R. it was held that the trial judge had no power to stop the trial because he thought that inconsistencies in the prosecution’s evidence made it unsafe to convict. Then two years later in R. v. Mansfield [1978] 1 All E.R. 134; [1977] 1 W.L.R. 1102 another Court of Criminal Appeal distinguished Barker (supra) and held that it was open to counsel, at the end of the case for the prosecution, to invite the trial judge to stop the case because conflicts in the evidence made a conviction unsafe.

These cases, however, did not deal with the question whether at the end of the case for the prosecution, without calling on the accused, the trial judge can or cannot determine that the prosecution has proved its case beyond reasonable doubt.

I think the answer to the Papua New Guinea situation may be contained in what the Privy Council said in the recent case of Haw Tua Tau [1981] 3 All E.R. 14 at pp. 19-20:

"It is well established that in a jury trial at the conclusion of the prosecution’s case it is the judge’s function to decide for himself whether evidence has been adduced which, if it were to be accepted by the jury as accurate, would establish each essential element in the alleged offence, for what are the essential elements in any criminal offence is a question of law. If there is no evidence (or only evidence that is so inherently incredible that no reasonable person could accept it as being true) to prove any or more of those essential elements, it is the judge’s duty to direct an acquittal, for it is only on evidence that juries are entitled to convict; but, if there is some evidence, the judge must let the case go on. It is not the function of the jurors, as sole deciders of fact, to make up their minds at that stage of the trial whether they are so convinced of the accuracy of the only evidence that is then before them that they have no reasonable doubt as to the guilt of the accused. If this were indeed their function, since any decision that they reach must be a collective one, it would be necessary for them to retire, consult together and bring in what in effect would be a conditional verdict of guilty before the accused had any opportunity of putting before them any evidence in his defence. On the question of the accuracy of the evidence of any witness jurors would be instructed that it was their duty to suspend judgment until all the evidence of fact that either party wished to put before the court had been presented. Then and then only should they direct their minds to the question whether the guilt of the accused had been proved beyond reasonable doubt.

In their Lordships’ view, the same principle applies to criminal trials where the combined roles of decider of law and decider of fact are vested in a single judge (or in two judges trying capital cases). At the conclusion of the prosecution’s case what has to be decided remains a question of law only. As decider of law, the judge must consider whether there is some evidence (not inherently incredible) which, if he were to accept it as accurate, would establish each essential element in the alleged offence. If such evidence as respects any of those essential elements is lacking, then, and then only, is he justified in finding ‘that no case against the accused has been made out which if unrebutted would warrant his conviction’, within the meaning of s. 188(1). Where he has not so found, he must call on the accused to enter on his defence, and as a decider of fact must keep an open mind as to the accuracy of any of the prosecution’s witnesses until the defence has tendered such evidence, if any, by the accused or other witnesses as it may want to call and counsel on both sides have addressed to the judge such arguments and comments on the evidence as they may wish to advance."

It would be wrong, in my view, for a judge to decide, after the prosecution’s case whether or not he is satisfied beyond reasonable doubt of the guilt of the accused half way or less through the case or may be before all evidence is before him. Otherwise we would end up with the situation that in a trial a judge decides, at the close of the case for the prosecution and on the invitation of the defence, that the prosecution has proved its case beyond reasonable doubt. Having made this finding then, is the onus to be reversed and the defendant required to call evidence to rebutt the finding? This would, of course, be contrary to the Constitution, s. 37(4)(a).

The proper time for a Judge to consider whether or not the State has discharged the onus of proving its case beyond reasonable doubt is either after the State has closed its case and the defence has indicated that it will not adduce any evidence at all or after both the State and the defence have adduced evidence.

In this case there is evidence that the two accused were with Meten Pila when Meten blocked the road with his motor vehicle and stopped the complainant’s (i.e. Jacob Kunjip’s) vehicle. There is evidence that the two accused took part in assaulting Jacob Kunjip and doing damage to his motor vehicle.

It goes without saying that the two accused have a case to answer and that I do not intend to consider whether I am satisfied beyond reasonable doubt that the accused are guilty on the evidence as it stands. I will do that a the proper time.

In saying what I have said I am not to be mistaken as saying that the second principle mentioned in Paul Kundi Rape does not obtain in our jurisdiction. I have quoted Haw Tua Tau in order to emphasize that the tribunal of fact and tribunal of law functions of a judge must not be confused by any proposition urged by the defence.

I do not have the unreported judgment of Pratt J., (The State v. Lupam Tau and three others (N309 (M)) but I understand that his Honour there said that Paul Kundi Rape correctly sets out what a no case submission entails and also the power that a trial judge has to stop a case because it would be unsafe to convict on unsatisfactory evidence. With respect, I agree with Pratt J. and O’Leary A.J.

Ruled accordingly.

____________________________

Solicitors for the State: Public Prosecutor.
Solicitors for the accused: Public Solicitor.