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State v Kabai [1997] PGNC 72; N1610 (13 June 1997)

Unreported National Court Decisions

N1610

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 198 OF 1997
THE STATE
v
HERMAN KABAI

Wewak

Batari AJ
12-13 June 1997

CRIMINAL LAW - Practice and Procedure - No case submission - Whether or not case to answer - Question of law - Sufficiency of evidence - Question of discretion.

Cases Cited:

The State v Paul Kundi Rape [1976] PNGLR 96

The State v Delga Puri & Anor [1982] PNGLR 395

The State v Tom Morris [1981] PNGLR 893

The State v Lasebose Kuridey [1981] N300

Ruling On No Case Submission

This is a ruling on a ‘no case to answer’ following application by the accused.

Counsel:

J Wala for the State

C Malenki for the Accused

13 June 1997

BATARI AJ: At the close of prosecution case, Defence Counsel made a no case submission. I infer that the application to stop the case at this stage was in regard to both counts of rape charged on the Indictment. Should I accept the application, the end result would be that the accused would be acquitted on both counts. The complainant is said to be under the age of 16 years and the indictment does not state unlawful carnal knowledge as the alternate to the rape counts. Whether the accused would have a case to answer on any alternate count is not clear at this stage and there has been no submission on the point. So I do not address that issue if it arises in this application.

State’s evidence is made up of sworn evidence from the complainant and her mother and documentary evidence in the form of the accused’s record of interview, statements of police investigators; a medical examination report on the complainant’s state of pregnancy and copy of her Baptism Certificate.

I have had the opportunity to read all the evidence as it now stands on each count of rape charged on the Indictment. I remind myself that at this stage, I must consider the evidence only in the light of settled principles of ‘no case to answer’, as enunciated in the case of The State v. Paul Kundi Rape [1976] PNGLR, 96. The principle says it is inappropriate to consider whether the Court has a reasonable doubt at the close of prosecution’s case. That is to say, I am not required to examine the evidence in minute detail and apply it on a higher standard. To do so would lead to an error as warned by the late Chief Justice Kidu in the case of The State v. Delga Puri and Tapri Maip [1982] PNGLR, 395 where His Honour stated at p. 401:

“It would be wrong...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 the 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 the, is the onus to be reversed and the defendant required to call evidence to rebut the finding? This would of course be contrary to the Constitution of s.37(4)(a).”

See also The State v Tom Morris [1981] PNGLR, 493 and Han Tua Tau (1981) 3 All ER 14.

Paul Kundi Rape’s case sets out two principles: The first is the “no case to answer” rule which involves the question of law of whether the evidence as it stands at the end of prosecution case either directly or indirectly make out every element of the offence for which the accused is charged. The test is not whether on the evidence as it stands the accused ought to be convicted, but whether on the evidence as it stands, he could be lawfully convicted.

Beyond this is the rule extended over the period which gives the judge a discretion to stop the case even if there are evidence supporting all or some of the essential elements of the offence. Under this principle commonly referred to as the second leg of Paul Kundi Rape’s case, the Court in its discretion could stop the case if the evidence is “...so dubious, or so tainted, or so obviously lacking in weight or credibility, or has been so discredited in cross-examination, that it is clear that no reasonable tribunal could safely convict on it”. See The State v Lasebose Kuridey (1981) N300. The rational is that the evidence as it stands are so insufficient and may not improve even if the accused is called upon to answer.

Having alluded to these basic principles, it is not apparent from Defence Counsel’s submissions whether the accused relied on both legs of Paul Kundi Rape’s case. As the submissions centred largely on the facts, I assume counsel relied only on the discretionary issue of sufficiency of evidence. At times Counsel articulated issues of credibility and weight of the evidence which in my view transcended the “no case to answer” principles.

The accused is charged with rape. I must consider whether all the elements have been made out on the materials before me. The basic elements of rape under s. 347(a) & (b) are:

(i) carnal knowledge;

(ii) woman or girl not his wife;

(iii) without consent;

(iv) consent by force, threats, intimidation, fear of bodily harm, false and fraudulent representation (as to nature of act), impersonation (of husband of married woman).

The complainant’s evidence is that the accused sexually abused her from 1993. The medical examination report on her pregnancy says she was about 14 years on 19 December, 1996. Upon my own observation of her in court her appearance is consistent with that age. This would make her 10 or 11 years old in 1993. She said in that year the accused only held her breasts and pushed his figure into her vagina. In 1994, she said he first had sexual intercourse with her and continued to do so up to 1996. On 19 October and 20 October, 1996 she said the accused had sexual intercourse with her in her mother’s presence. This is direct evidence of carnal knowledge. Her mother also gave direct evidence on that element of rape. Both witnesses also spoke of the circumstances under which the accused had carnal knowledge of the complainant on 19 October and 20 October, 1996. There was evidence of threats, intimidation and fear of bodily harm directly given and also inferred from the evidence of the complainant and her mother. When I apply the principles to this case, I am satisfied that all the elements of the offence of rape are made out.

Because of the conclusion I am about to make, I do not consider it appropriate to take one step further and consider the application to stop the case on the issue of sufficiency of evidence. The evidence in my view as it stands now show the accused has a case to answer on the charge of rape on both counts. Whether the evidence supports the guilt of the accused on the standard of prove beyond reasonable doubt does not arise at this stage. That assessment will be made at the appropriate time at the end of all the evidence.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Alois Jerewai Lawyers