N5939
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 262 OF 2014

THE STATE

V

JUSTINE ONAISI

Arawa: Kawi-iu, AJ.
2014: 22, 23 October.
 
CRIMINAL LAW – Assault – Trial – State's only witness being the interrogation officer – Victim of assault not called – Prosecution's failure to prove all elements of charge – Submission of no case to answer upheld 

Cases Cited: 

The State v Ali Kei Paiya, CR No 478 of 2004 (Unnumbered and Unreported judgement of 09th August 2005) 
The State –v- Dickson Miritok (2007) N3466
The State v Martin Maso Naipo: CR No 92 of 2004, 21.06. 
The State v Paul Kundi Rape [1976] PNGLR 96. 
The State v Peter Raima [1983] PNGLR 230.

Counsel:

Mr. J. Waine, for the State 
Mr. Lugabai, for the Accused 

NO CASE SUBMISSION

23rd October, 2014

1.	KAWI-IU, AJ: The accused Justine Onaisi is charged that on the 15 day of June 2013 at Arawa, he touched with his hands the sexual parts of Ronney Tavaio without her consent by removing her trousers and underwear and attempting to insert his penis into her vagina under section 349(1)(a) of the Criminal Code Act. He pleaded not guilty to the charge. 

2.	After hearing only one of the state witnesses the state closed its case. This was followed by a submission of no case to answer by counsel for the accused. 

THE LAW

3.	The law on sexual touching under the Criminal Code Act is as follows:

349. SEXUAL ASSAULT.

(1) A person who, without a person's consent –

(a) touches, with any part of his body, the sexual parts of that other person; or

(b) compels another person to touch, with any part of his body, the sexual parts of the accused person's own body, is guilty of a crime of sexual assault.

Penalty: Subject to Subsection (4), imprisonment for a term not exceeding five years.

(2) For the purposes of this section, "sexual parts" include the genital area, groin, buttocks or breasts of a person.

(3) For the purposes of this section, a person touches another person if he touches the other person with any part of his body or with any object manipulated by the person.

(4) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable to a term of imprisonment not exceeding 10 years.

4. For a charge under this section to be sustained state must prove one of the essential elements of the offence i.e. consent among others. 

SUMMARY OF FACTS

5. On the 15 June 2013 at about 2.00 pm, victim was on the other side of Bovo River in Arawa. She was invited to follow another girl across the river to where the accused and two other boys were. When they got there, the girl whom she followed left for the store to buy cigarettes with the other two boys leaving the accused and victim behind. Accused then grabbed victim and dragged her into the bush. At a location accused demanded sex and punched victim onto the ground, got on top of her and removed her trousers and pants and took his penis out and tried to spread her legs to sexually penetrate her. He could not succeed and in the course victim grabbed tight his testicles and he felt great pain and screamed and let go his grip on the victim. Victim then escaped and reported the matter to the police. 

EVIDENCE FOR THE STATE

6. The State called the only witness one Constable Anugu Cornelius who was the officer who conducted the Record of Interview (ROI) with the accused. He was then examined by defence. Court enquired whether other witnesses will be called including the victim. The state however informed the court that the victim's where-about is not known and therefore will not be calling further witnesses. The State then closed its case. 

7. Following the close of prosecution's case defence raised the issue of insufficiency of evidence and made no case to answer submission on the first leg of the principal in The State v Paul Kundi Rape [1976] PNGLR 96. It argued that the state has no evidence in respect of the elements of the charge.

8. The law on no case submissions is well settled in this jurisdiction per the principle laid down in the case of Paul Kundi Rape v The State. The principle is saddled on the premises that (1) if the State has not established any of the essential elements of the charge or (2) even if it did establish the elements but the evidence had been so discredited by cross-examination or so lacking in weight, the accused should not be called upon to answer the charge. Essentially then, the State must at this stage establish a prima facie case. The State v Dickson Miritok (2007) N3466. The question here is not whether the accused ought to be convicted on the evidence as it now stands but whether he can be lawfully convicted if the trial continues to the end.

Now the elements of the offence for our purpose are:

1.	The accused,
2.	Without consent
3.	Touched with any part of his body 
4.	Sexual parts of the victim (as defined)
5.	....

THE EVIDENCE

9. At this stage, the question for me is – has the State established a prima facie case? In other words does the evidence establish all the necessary elements of the charge?

10. The accused pleaded not guilty to the charge on the facts which was presented prior to his plea. Thus any evidence given ought to have established the essential elements of his charge.

11. The only evidence before the court is from the Arresting Officer in his ROI with the accused. In the ROI I find a mixture of admissions and denials. Thus if the ROI is being relied upon as evidence of admission such admission must be stated in unequivocal term. Such statements must be unambiguous. 

12. In such case what weight should be given to such evidence? 

13. The State relied on the purported admissions made by the accused in the ROI. Accused pleaded not guilty to the charge, thus all evidence are in dispute.

14. Thus the state is called upon to prove its case beyond the requisite standard i.e. beyond reasonable doubt. The ROI was conducted between the officer and accused. In the absence of other evidence, in particular of the victim to corroborate the evidence of the investigating officer, the contents of the ROI may be hearsay. In short the investigator is saying, accused admitted the offence, whilst accused says he did not commit the offence-prove it!

15. The conversations resulting in the production of the ROI was conducted out of court and were unsworn therefore less reliance should be given, see The State v Ali Kei Paiya, CR No 478 of 2004 (Unnumbered and Unreported judgement of 09th August 2005) by Sawong J, and in The State v Martin Maso Naipo: CR No 92 of 2004, 21.06.05, by Kirriwom J. 

16. In The State v Ali Kei Paiye: CR No 478 of 2004 (supra) Sawong J, said: 

 It is also trite that whilst a record of interview which is not contested in evidence, it is not of equal weight to the sworn evidence. A sworn evidence which has been tested or untested in cross-examination has far more weight than an unsworn statement."

And in The State v Martin Maso Naipo, CR No 92 of 2004, 21.06.05, Kirriwon J said: 

 "... the only reliable evidence given under oath and tested in cross-examination is what the accused told the court. That is what must be believed. The court need not place much weight to the accused's record of interview which is an out-of-court statement although tendered by consent of the defence." 

17. The State's only witness attempted to confirm the admission made by the accused, but these are only hearsay evidence. Witnesses were not called to corroborate those admissions of the accused in the ROI. The law on hearsay evidence is very clear in The State v Peter Raima [1983] PNGLR 230. 

18. Therefore defence submits that the State's evidence fail to establish the essential elements of the offence of the charge. The victim was not called to establish lack or otherwise the element of consent. Therefore the defence submits that accused has no case to answer and the case be dismissed and the accused acquitted. 

REPLY BY STATE

19. The State also referred to The State v Paul Kundi Rape [1976] PNGLR 96, submitted that there is sufficient evidence for the accused to answer the charge. It further submits that all the essential elements of the charge had been made out, notwithstanding the absence of any evidence in respect of the element of consent which can only be given by the victim. 

RULING BY THE COURT

20. In a no case submission at the close of the prosecution's case, the law is very well established, in The State v Paul Kundi Rape [1976] PNGLR 96, where it was held that: 

 "Where there is a submission of no case to answer at the close of the case for the prosecution, the question to be asked is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is the question of law, to be carefully distinguished from the question of facts to be asked at the close of all the evidence namely whether the prosecution has proved its case beyond reasonable doubt." 

21. At this stage, the question for me is – has the State established a prima facie case? In other words does the evidence establish all the necessary elements of the charge? 

22. Now it is trite law that in a criminal trial, the prosecution must at this point establish all the essential elements of the charge for the matter to proceed further. If it fails to establish one of these elements the trial must be stopped. 

23. In the instant case, the evidence as it stands has not established the most pertinent element of the offence that is consent. In addition to this element it is also obvious that other elements had not been proven as the principal witness/victim was not called to testify for the State. Hence, the trial cannot proceed. 

24. I, therefore rule that the accused has no case to answer. I acquit him of the charge and order that he be discharged forthwith and further that his bail be refunded.

Orders accordingly

____________________________________________________________
Public Prosecutor- Lawyer for the State 
Public Solicitor- Lawyer for the Accused