N5186

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 439 OF 2009

THE STATE

V

JANICE IRURAPA NAMBATE
(NO.1)

Popondetta: Toliken AJ
2013: 11th, 12th February

CRIMINAL LAW – Practice and Procedure – Trial – Murder - No case Submission – Principles well settled – Circumstantial Evidence – Inference to be drawn – Not rational inference of guilt but that a prima facie case has been established –Rational inference of guilt or innocence to be drawn only at end of trial when all evidence is in - Criminal Code Act Ch. 262, s 300(1)(a).

Cases Cited

The State v Paul Kundi Rape [1976] PNGLR 96
The State v Tom Morris [1981] PNGLR 494
John Peng v The State [1982] PNGLR 331
Roka Pep v The State (No.2) [1983] PNGLR 286 
The State v Phillip Kamagu Mil (1995) N1388
The State v Dickson Miritok (2007) N3466

Counsel

J.W. Tamate, for the State
L. Mamu, for the prisoner

RULING ON NO CASE SUBMISSION

12th February, 2013

1.	TOLIKEN AJ. The accused Janice Irurapa Nambate was indicted under Section 300 (1) (a) of the Criminal Code Act Ch. 262 (the Code), for the murder of her late husband Carson Nambate on the 06th of May 2008.

2.	After the close of the State's case yesterday the defence made a no case submission.

3.	This is my short ruling on that submission.

4.	The principle in a no case submission is well settled in this jurisdiction. And it is that an accused person shall not be called upon to answer the charge against him if –

1.	The state's case thus far does not establish any or all the necessary elements of the charge. Here the case is stopped as a matter of law; 

2.	But even if the evidence does establish the necessary elements of the charge, it is so lacking in weight or had been so discredited by cross-examination that no reasonable tribunal of fact can lawfully convict on the evidence as it stands.

5.	The question for the court here is not whether the accused ought to be convicted but whether he can be lawfully convicted on the evidence as it stands. This is a question of law: The State v Paul Kundi Rape [1976] PNGLR 96; Roka Pep v The State (No.2) [1983] PNGLR 286. Where the State fails to e

6.	The second premise is said not to be, in the strict sense, a ruling on no case to answer but a discretionary principle to withdraw the case – akin to withdrawing a case in trial before a jury. The discretion is exercised when there is a mere scintilla of evidence or the evidence is so lacking in weight or credibility that no reasonable tribunal of fact can lawfully convict on the evidence before it: Roka Pep v The State (No.2) (supra); The State v Phillip Kamagu Mil (1995) N1388; The State v Paul Kundi Rape (supra). 

7.	Now this is not to say that the State has to prove its case beyond reasonable doubt at this stage. Rather the State merely has to establish a prima facie case: The State v Dickson Miritok (2007) N3466.

8.	The accused in this matter is charged with murder contrary to Section 300 (1)(b) of the Code. So at this stage the State must have necessarily established the following elements of the charge:

1.	The accused
2.	Intended to cause grievous bodily harm to the deceased
3.	Killed the deceased

9.	What does the evidence establish?

10.	The sum total of the evidence is that on the early hours of 06th May 2008, the accused and her late husband, the deceased had returned home to their hamlet at Bapue and were at their house. The evidence shows that they were both under the influence of liquor.

11.	In the Record of Interview which was tendered by consent, the accused said that she had gone into their kitchen to look for food when the deceased pulled her towards the toilet, wanting her to drink more beer. She refused though.

12.	The evidence is silent though as to what happened at that critical point in time.

13.	However, the State's first witness Charlie Nambate (the couple's eldest son) testified that he was asleep in his house with his wife when they were suddenly awoken his mother's screams. He grabbed his torch and ran down from the house. He flashed the light to where his mother's screams were coming from and saw his father lying on top of his mother. At that moment his said, "Daddy pulled me from the back and fell down on me." Thinking that his father wanted to have sex with the accused he turned the flash light off and ran off to his aunt's house. His aunt and uncle had also heard his mother's screams and were running down from their house when he got there. They all returned to scene where the accused was still screaming and telling them to come and see the deceased who had fallen on top of her.

14.	Charlie and his aunt then carried the deceased to their haus win and laid him there. He then went off for assistance.

15.	Charlie did not see anyone around at that time. There was only the accused and the deceased and they were both fully clothed.

16.	The second witness was Bibra Prout, the deceased's sister. He corroborated some of Charlie's evidence and said that she was able to see a cut on the side of the deceased's left ear.

17.	The deceased's body was later taken to the Popondetta General Hospital that morning. A Post Mortem (Autopsy) was conducted on the body. It revealed that the cause of death was internal haemorrhage from a cut to the left carotid artery.

18.	The examination also revealed the following injuries –

1.	A deep 3cm long traverse laceration on the left jaw
2.	Two (2) deep 2cm long lacerations behind the left year
3.	A longitudinal 6cm x 1cm laceration on the left back of the head
4.	Bruise on the front of the neck
5.	Multiple lacerations on the back of shoulder and arms

19.	 Examination of the head and neck revealed other things. These are:

•	Blood clots within the muscle and tissues in the left mandibular region
•	The left internal carotid artery was cut at the superior (upper aspect) below the mandible bone
•	A complete traverse fracture of the left mandible bone
•	Left muscle trauma with blood clots in the posterior triangle of the neck.

20.	 Now Counsel for the accused submitted that the evidence thus far is wholly circumstantial. And while the State alleged that the accused stabbed the deceased with a knife there is no direct evidence to prove that.

21.	Furthermore, while the State alleged that the death was caused by a stabbing, counsel submitted that this was not supported by the Post Mortem Report which revealed that the death was caused by internal bleeding which he said is supported their contention that the deceased was involved in a fight three days previously over the weekend.

22.	Counsel further submitted that the evidence of other witnesses whose statements were tendered by consent, while deposing to some undisputed facts, does not establish the pertinent facts. He said that the statement of witness Basil Sanko is inadmissible hearsay.

23.	Finally counsel submitted that the law on circumstantial evidence is clear - that the evidence must support a single inference only, that is, the guilt of the accused. If the evidence supports other inferences then the accused ought to be acquitted.

24.	He submitted that in this case, there is another inference – that the internal bleeding which the medical report revealed as the cause of death – was caused by the fight three days earlier. 

25.	Hence the trial should e stopped at this stage.

26.	In reply the State conceded that the evidence is indeed circumstantial. However, the crucial factor here, counsel argued, was that the accused was the only one with the deceased at the time of his death. She was the only one at the scene of the crime and was found by the witnesses with deceased lying on top of her.

27.	Counsel also agreed that the statements of other witnesses do not address the crucial issue – whether the accused caused the death of the accused.

28.	Nevertheless there is evidence that both the deceased and the accused had consumed alcohol. There is evidence that the deceased was drunk and it can be said that there might have been an argument between them when the deceased pulled the deceased to the toilet.

29.	Counsel submitted that, in her Record of Interview, the accused said that whenever the deceased got drunk, he would also take marijuana and he would perform indecent acts on her like pushing bottles into her vagina. These are acts that counsel submitted, could have made the accused extremely angry. 

30.	So when the deceased pulled her to the toilet it can be reasonably inferred that the accused became afraid that she would be subjected once again to the same indignities. So she reacted by stabbing the deceased. As this was a face to face confrontation she fell down and the deceased fell on top of her – the position they were found in by their son and his aunt.

31.	Counsel submitted that no other inference can be drawn here. The accused was the only one with the deceased that time. It was after midnight. Hence, the only inference that can be drawn is that the accused wounded the deceased, intending to cause him grievous bodily harm but instead killed in the process. And given the history of abuse and indecent acts on her by the deceased she had a reason to do what she did.

32.	Therefore, submitted counsel, there is evidence upon which the accused could be called upon to answer the charge.

33.	Now as correctly submitted by counsel the only issue to be determined is whether the State has established, on a prima facie basis that the accused caused the death of the deceased.

34.	There is no denying that the State's case is purely circumstantial. But there is no rule of law or practice that prevents a court from convicting, let alone, calling upon an accused to answer a charge providing that the only inference that can be drawn from the evidence either points to the guilt of the accused or establishes a prima facie case as the case may be.

35.	In a criminal trial it is well settled that a court can convict on circumstantial evidence if it is satisfied beyond reasonable doubt that that the guilt of the accused is not only a rational inference but the only rational inference that can be drawn from the circumstances: John Peng v The State [1982] PNGLR 331; The State v Tom Morris [1981] PNGLR 494.

36.	Now at this stage of this trial the court is not determining the guilt of the accused beyond reasonable doubt but merely trying to decide whether the circumstantial evidence adduced by the State has established a prima facie case. 

37.	Hence, I need not be satisfied beyond reasonable doubt that the guilt of the accused is the only rational inference that can be drawn from the evidence adduced by the State.

38.	All that is needed is for me to be satisfied on a prima facie basis that the circumstances or the evidence supports a rational inference of the accused culpability or that she had a hand in the death or the deceased.

39.	So can such evidence be drawn from the evidence as it stands?

40.	The evidence established that the accused was alone with the deceased in their house in the early hours of the date in question. They had consume some alcohol the before that. The deceased was drunk. He pulled the accused from the back towards the toilet as she was going into their kitchen. The accused fell on her back and the deceased fell on top of her. She screamed and this attracted their son and the deceased's sister who came to the scene. They found the deceased lying on top of the accused.

41.	The evidence also established through the Record of Interview that the deceased had on previous occasions subjected the accused to indecent sexual indignities such as pushing bottles into her vagina.

42.	Hence, a prima facie rational inference can be drawn that the accused had the opportunity and the requisite intention to cause grievous bodily harm to the deceased and that she attacked him resulting in his death. The Post Mortem Report reveals injuries from which the necessary intention can be drawn.

43.	Whether another inference pointing to some other possible cause of death can be drawn or whether another hypothesis exists suggesting that the accused may be innocent is something that can be appropriately addressed at the end of the trial after all the evidence has come in.

44.	So, on the first leg of the submission - whether all the essential elements of the charge had established – I rule that they have been so established on a prima facie basis. 

45.	But could the trail be still stopped on the second leg of the Kundi Rape principle? Is the evidence so lacking in weight and credibility?

46.	I warn myself that I am weighing the evidence at this stage, however, I am satisfied that the State's prima facie case has not been discredited beyond salvation by cross examination or that it is so lacking in weight so as to prompt me to exercise my discretion and stop the case.

47.	I therefore rule that the State has established a prima facie case. The accused has a case to answer.

Orders accordingly
_________________________________________________________
The Public Prosecutor: Lawyer for the State 
The Public Solicitor: Lawyer for the Accused