N5990

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 611 of 2013

THE STATE

V

CAIN NAMAH
Respondent

Vanimo: Geita J
2015: 10th & 11th February

CRIMINAL LAW – No case submission – Prima facie case established - Prosecution evidence -Essential elements made out - Effect of—Accused has case to answer 

Cases cited: 
The State v. Paul Kundi Rape [1976] PNGLR 96 
The State v. Roka Pep (No. 2) [1983] PNGLR 287 

Counsel: 
Ms. Barbra Gore, for the State 
Ms. Renatta Yayabu, for the Accused 

RULING ON NO CASE SUBMISSION

11 February 2015

1. GEITA J: The accused pleaded not guilty to one count of manslaughter contrary to s. 302 of the Criminal Code Act, Chapter 262 (hereafter referred to as the “Criminal Code”) 

2. The State alleges that on 22 September 2012 around 7-8pm the accused used his 9 millimetre pistol and shot the deceased on his right thigh. The deceased had accompanied a friend to the accused house at Wara Mon Oil Palm Base Camp to enquire about his friend’s wife when the incident happened. He was rushed to Vanimo General Hospital and received emergency medical treatment. On 24th September 2012, he suffered an epileptic fit around 6pm and eventually died one hour later around 7 pm.

3. At the end of the prosecution case Ms. Yayabu told court that she would be making a no case submission on behalf of her client. When the court resumed in the afternoon she moved her client’s application orally. The thrust of her submission being insufficiency of evidence and the dangers inherent in lawfully entering a conviction against her client. She conceded that the deceased shot the accused but the cause of his death was due to his epileptic fit condition. A verbal reply was also received from the State Prosecutor Mrs. Barbra Gore who submitted that there was sufficient evidence and invited the Court to exercise its discretion and allow the case to continue. Prior to considering the submissions and evidence so far presented before me, both Counsels were invited by court to address it on the legal principle of causation but none was forthcoming. 
 
The Law on No Case Submissions

4.The law in relation to no case submissions is well settled in our jurisdiction as per the case of The State v. Paul Kundi Rape [1976] PNGLR 96. The Supreme Court case of Roka Pep v. The State (No. 2) [1983] PNGLR 287 followed the principles pronounced in this case:

"Where in criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the question is for the judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence.

Where the tribunal decides there is no case to answer the accused is acquitted and that is the end of the matter.

Where the tribunal decides there is a case to answer, it nevertheless 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 is so lacking in weight and reliability that no reasonable tribunal could safely convict on it."

5. It follows that where an accused makes a no case submission, the court should make a finding of no case to answer where (a) there is no evidence to establish an element of the offence charged; or (b) there is some evidence covering the elements of the offence charged but it is so incredible or discredited that there is a mere scintilla of evidence and hence could not be accepted as persuasive by any reasonable person. If this court makes neither of those findings, it should find there is a case to answer. 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, they both can lawfully be convicted: (Paul Kundi Rape)

6. In the present case, especially after the close of the State's case, there is no dispute that the death of the deceased is easily attributed to the use of accused's firearm. I remind myself that this is not a question of fact to be determined at this stage. That question is decided at the end of all the evidence both for the State and Defence. Basing my initial findings on the evidence thus far presented by the State, I am however satisfied that there is sufficient prima facie evidence to rule that the accused has a case to answer. There is no contest on the first leg of the test in Paul Kundi Rape case. It follows that the accused must be called to give evidence if he so wishes. His no case to answer submission is dismissed.

Orders accordingly

Public Prosecutor: Lawyer for the State 
Public Solicitor: Lawyer for the Accused