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State v Mil [1995] PGNC 42; N1388 (16 November 1995)

Unreported National Court Decisions

N1388

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 944 OF 1995
THE STATE
V
PHILLIP KAMAGU MIL

Lae

Sevua J
16 November 1995

CRIMINAL LAE - Practice and procedure - Submission of no case to answer - Meaning of - Withdrawal of case from jury - Discretion - To be distinguished from no case to answer.

Held:

At the close of the prosecution’s case, where the Court decides there is a case to answer, it nevertheless has a discretion to stop the case from proceeding further where to evidence is a mere scintilla or lacks weight and reliability that no reasonable tribunal could safely convict on it.

The State v Laul Kundi Rape [1876] PNGLR 96 and The State v Roka Pep No 2 [1983] PNGLR 287 adopted and applied.

Interlocutory Ruling on No Case Submission

Counsel:

B Poiya for State

E Masatt for Defence

16 November 1995

SEVUA J: The ac was indicted with oith one count of armed robbery and one count of deprivation of liberty and at the close of the prosecution’s case, counsel for the accsubmitted that there was no case for answer on the premise mise of second limb of Paul Kundi Rape and indeed at the end of counsels submission, he asked the Court to stop the case.

I will restate the law as laid down in The State v Paul Kundi Rape [1976] PNGLR 96 in so far as it then relates to what is commonly referred to by defence counsels in criminal trials as the ‘second limb’ of Paul Kundi Rape:

“Where there is a case of insufficiency of evidence, an accused may as a matter of law be called upon to answer it, but there is a discretion in the Judge either to take the case away fromt he jury a tribunal of fact or not.” (merlining).

The prhe principles of law in both the no case to answer submission and the Court’s to withdraw the case from the jury as in Paul Kundi Rape has been restated .by the Supreme Court in The State v Roka Pep No.2 [1983] PNGLR 287. Nevless, some defence coun counsel continue to misapprehend the two principles which are quite distinct in nature and application. I merely intend to reiterate these application. I merely the Se Court in R in Roka Pep No 2.

It should, by now be clear to all defence counsels in crime trials that the two principles are quite distinquishable.; Thet is a question oion of law. Wht the end of the the prhe prosecution’s case, a submission of no case to answer is made, the Judge as a tribunal of law considers the evidence in the prosecution’s case and determines whether the evidence supports the essential elements of the offence charged. That is the ss to say, whe, whether on the evidence is it stands, the could lawfully be convicted. If the prtion less failed iled to advise evidence to support me of the essential element of the offehen as a matter of law, the, the accused must be acquitted became there is no case for him to answer. As the Supreme Court said in Roka Pep No 2, “the test is whether the evidence supports the essential elements of the offence”.

The second pple in this:

“Where the tribunal decides there is no case to answer, it nevertevertheless has a discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence so lacking in weight and reliability that no reasonable tribunal could safely convict on it.”

It is this principle that has caused confusions in the minds of some defence lawyers in criminal proceedings that they refer to it as the second leg of the no case to answer submission. In my view this issconceptnception and is erronious because it is not strictly a ruling that there is ‘no case’ to answer. I consider this second prid principleeality, is an application by defence counsel to stop the cahe case from proceeding further, that is to say, remove the case from the and it clearly entails an exercise of discretion by the jude judge. I believe Kaputin J in Roka Pep No 2 at 317 simplified this principle when he said:

“But this is merely a discretionary principle, which has appeared in practice to be the seprinciple. The exercise of thisretionetion to dismisssmiss the charge or stop the case not withstanding that technically there is a case to answer is not strictly a ruling that there is”no case” to answer. Howeit is often referred ared as such. The confusion has...in that some consider this discretionary principle is one of the “no case” submissions iples proper, which it is not. Howevt has been been builtbuilt into the principle “no case” submission proper (above) and has often been referred to as such because its application is analogous in practice. Neverthe they are quite dite different and should be kept separate in their application.”

Both the former Chief Justice, Sir Buri Kidu (deceased) and Kaputcited Sharp v Hotel International Ltd [1969] VicRp 12; [1969] VR 103 at 108 108 and R v Manisfested [1997] 1 WLR 1102 at 1105 (1978):

“The exercise of a discretion to discuss an information notwithstanding that technically there is a case to answer is not strictly a ruling that there is no case to answer. However it is areferred toed to as such.”

In my view, that statement of the law sufficiently explains the correct postion. To any further to it couldcould lead to further confusion and misstanding.

I need onld only reiterate that the no case to answer proper is different to the discretionary principle. I agith Kn J at 317 that that that they are quite different and should be kept separate in their application.

In the present, whatasatt has real forth is that he has made application to stop the case from proceeding furthfurther (ie withdraw case from the jury). This is obvious from his concluding remarks in his submission. He has not made no case to answer submission based on the proper principle as he originally in his address.

In applying the discretionary principle in the present case, I am mindf the danger of falling into error in respect of the weighinighing of the evidence as I infer from defence counsel’s submission. I am mindful of the princtple that the evidence should be weighed only once, when all the evidence is in, adopting what was said in Barker (1977) 65 Cr App. R 287 at 288:

“It is not the Judge’s job to weigh the evidence, decide who is telling the truth, and stop the case merely because he thinks the witness is lying.”

One aspect of defence counsel’s submission which I wish to briefly reflect upon is the oral testimony of Fred Rimbao and his written statement of 17/4/95, Exhibit “A”. All I can say is that there is no inconsistency. The purpose ndency with with witness’ prior written statement is to contradict his oral testimony so that what he had written down previously becomes a prior inctent ment. This This is not the case.here. The witnewitness has saionhe only gave a brief account of what occurred and he has now given a detailed account. I see sue of prior inconsiconsistent statement there.

I consider that the prosecution has lished a .case against the the accused. The prosecution evidence is not a mere scintulla nor is the evidence so lacking in weight and reliability that no reasonable evidence nor weak but quite persuasive in my view.

The defence application is there refand the accused is called uled upon to answer the charge.

Lawyer for State: Public Prosecutor

Counsel: B Poiya

Lawyer for Accused: Public Solicitor

Counsel: E Masatt