N6329
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
	
CR. NOs 690, 691 and 692 of 2015

THE STATE

V

TOM TOMUGAL, NORRIS PADIRU AND BOBBY NICK
	Respondents

Kokopo:   Anis AJ
	2016: 19 May & 14 June 

CRIMINAL LAW – 3 co-accused charged with wilful murder under section 299 of the Criminal Code Act Chapter No. 262 - no case submission made after close of prosecution's evidence - court's role discussed - evidence disclosed on the elements of wilful murder - evidence disclosed on identification of the 3 accused - 3 accused have case to answer - discretion to stop a case considered - evidence not insufficient - evidence not of a tenuous nature to stop the trial

Facts

The prosecution charged the three accused each with wilful murder.  At the close of the prosecution's case, the defence made a no case submission.  The defence alleged the prosecution's witnesses gave unreliable and inconsistent evidence.  The defence also alleged witnesses' demeanours suggested they were not telling the truth.  The prosecution objected to the no case submission.

Held:

1.	The Court's role when a no case to answer submission or an application to stop a case is made, is as follows:

(i)	Identify the essential elements of the offence (first limb).

(ii)	Review the prosecution's evidence taking into account what had transpired during examination in chief, cross-examination and re-examination together with the evidence tendered without objection or evidence tendered by consent, and then consider as a matter of law whether there is evidence that supports each element of the offence (first limb).

(iii)	If one or more of the elements of the offence does not have evidence supporting it, the Court must uphold the no case to answer submission and acquit the accused (first limb).

(iv)	If there is evidence supporting each of the elements of the offence generally, the next consideration again as a matter of law is whether the evidence is insufficient or is tenuous.  Matters such as credibility, inconsistency and weighing of evidence are irrelevant.  The presiding judge must ask himself or herself this hypothetical question:  Could a judge of fact, considering the prosecution's evidence at its highest and as accurate, convict the accused?  If the answer is 'yes', the Court should allow the trial to continue.  If the answer is 'no', the Court may exercise its discretion and stop the trial (second limb).

(v)	The Court's power under the second limb is discretionary.  This means that even after the Court finds insufficient evidence on the elements of the offence it may nevertheless order the trial to continue (second limb).

(Cases followed:  State v. Roka Pep [1983] PNGLR 287 and State v. Paul Kundi Rape [1976] PNGLR 96)

2.	There was evidence supporting each of the elements of the offence of wilful murder, and there was evidence supporting identification of all the three (3) accused.

3.	The prosecution's evidence was not insufficient and not tenuous because the Court was satisfied that had a judge of fact considered the prosecution's evidence at its highest and as accurate, a conviction would have followed.

4.	The no case to answer application was refused.

PNG Cases Cited:

State v. Jenny Kebana Peter (2005) N2813
State v. Paul Kundi Rape [1976] PNGLR 96	
State v. Roka Pep [1983] PNGLR 287
The State v. Seth Ujan Talil (2010) N4082

Overseas Cases Cited:

Browne v. Dunn (1893) 6 R 67 (HL).	
Haw Tua Tau v. P.P. [1981] 3 W.L.R. 395

Counsel:

Ms Aihi, for the State
Mr Gesling, for the three Co-Accused

		
	RULING - NO CASE SUBMISSION

14th June, 2016

1.	ANIS AJ:  The three (3) accused namely Tom Tomugal, Norris Padiru and Bobby Nick (3 accused) are charged with wilful murder under section 299 of the Criminal Code Act Chapter No. 262 (Criminal Code).  At the close of the prosecution's case on 19 May 2016, the defence made a no case to answer submission.  Both counsel presented their submissions on 19 May 2016.  I reserved my ruling to a date to be advised.

2.	This is my ruling.

BACKGROUND

3.	The incident occurred between 29 and 30 December 2014 at Long Plantation in Kokopo, East New Britain Province.  The 3 accused were alleged to have of wilfully murdered one James Talman (deceased) of Ralubang village, in the morning of 30 December 2014.  

4.	The 3 accused pleaded not guilty.  The trial commenced on 17 May 2016.  The prosecution called six (6) witnesses who gave sworn evidence.  The prosecution also tendered ten (10) exhibits without objection.  The prosecution formally closed its case on 19 May 2016, which led to this oral application for a no case to answer submission by the defence.

ISSUES

5.	I set out the issues herein:

(i)	Whether the evidence supports the essential elements of the offence of wilful murder, including evidence of identification of the three accused.

(ii)	If the Court finds that there is a case to answer, it nevertheless has the discretion to stop the trial in appropriate circumstances.  To determine that, the question to ask is this:  Should this Court exercise its discretion and stop the case on the basis that the evidence supporting the elements of the offence of wilful murder is insufficient or is of a tenuous nature?

LAW

6.	The case law on no case to answer submissions is settled in this jurisdiction.  The cases of State v. Paul Kundi Rape [1976] PNGLR 96 and State v. Roka Pep (No. 2) [1983] PNGLR 287 are two leading cases on point.

7.	Let me discuss the latter.  The Supreme Court in State v. Roka Pep (supra) held these:

(By Kidu CJ Kapi DCJ Andrew and Kaputin JJ) Where in criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the matter is a question of law 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.

8.	I must say I find the discussions on point therein by the late Chief Justice Sir Murray Kapi who was then the Deputy Chief Justice, invaluable.  I think his Honour has set out a 'neat approach' as he himself puts it, in addressing the two limbs for a no case to answer submission.

9.	Let me restate what his Honour held regarding the two limbs:

(1)	Is there any evidence of all the essential elements of the offence?  This is a question of law.  At this point there is no assessment of the credibility of any of the witnesses, either individually or with other witnesses.  There is also no consideration given to the sufficiency of the whole prosecution evidence.  If there is some evidence of all elements, there is a case to answer.  If there is no evidence at all of any one of the essential elements of the offence, there is no case to answer and the accused must be discharged as a matter of law.  The latter situation may arise in one of three ways:

(i)	the State may fail to lead any evidence at all on any of the elements; or the identity of the accused, or,
(ii)	State's witness, or witnesses, may give evidence to support the elements, but during the prosecution case, either in examination-in-chief or cross-examination, it is revealed that the witnesses are giving hearsay or otherwise inadmissible evidence in support of the essential elements. In law, that evidence is not to be treated as evidence in the trial. In effect there is no evidence of that particular element of the offence — no assessment or weighing is involved, or
(iii)	there may be evidence of all elements of the offence, but then the witness confesses during the cross-examination, that he is a liar and the evidence which he gave in support of an essential element of the offence was not true. This virtually amounts to withdrawal of the evidence resulting in no evidence on that particular element. This type of witness is very rare. No assessment or weighing is involved. That is the end of the proper no case issue. See the State v. Roka Pep (supra).

(2)	There is evidence of all the essential elements, but it is of a tenuous nature for example the evidence is weak or vague or inconsistent with other evidence.  The question of law which arises at this point is whether there is sufficient evidence to support a conviction.  A judge is required to direct his mind to the aggregate effect, or sufficiency, of the whole prosecution evidence.  The issue is not directed at the primary findings of fact, but to the conclusions which could reasonably be drawn from the primary facts to support a conviction. This is a question of law, or at least of mixed fact and law. See Edwards (Inspector of Taxes) v. Bairstow [1956] A.C. 14, British Launderers' Research Association v. Central Middlesex Assessment Committee and Hendon Rating Authority [1949] 1 All E.R. 21 and Instrumatic Ltd v. Supabrase Ltd [1969] 1 W.L.R. 519.  These cases are all referred to in Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (Unreported Supreme Court judgment SC185 dated 25 November 1980).  At this point, a judge is not required to have any regard to inconsistencies, or credibility of witnesses supporting the prosecution case.  All these and matters of credit are ignored.
(Underlining is mine)

10.	These considerations are relevant and I will apply them herein on what I have to say concerning the present no case to answer submission by the defence.

COURT'S ROLE

11.	I have looked at the case law on point, some of which I have highlighted above in my judgment.  I note that a defence may request the Court to consider both limbs of the argument or just one.  However, practically, Courts have applied both limbs when considering no case submissions.  Justice Cannings in the case of State v. Jenny Kebana Peter (2005) N2813 stated these and I quote:  Strictly speaking it is only the first limb of Rape’s case that gives rise to a no case submission.  However, it has become the norm to refer to and rely on both limbs when a no case submission is made (see Roka Pep (No 2) per Kidu CJ).  So to begin with my considerations herein, let me first of all try to encompass my understanding, based on the case law, of the Court's role when faced with a no case to answer submission.

12.	The Court's role should be as follows:

(i)	Identify the essential elements of the offence (first limb).

(ii)	Review the prosecution's evidence taking into account what had transpired during examination in chief, cross-examination and re-examination together with the evidence tendered without objection or evidence tendered by consent, and then consider as a matter of law whether there is evidence that supports each element of the offence (first limb).

(iii)	If one or more of the elements of the offence does not have evidence supporting it, the Court must uphold the no case to answer submission and acquit the accused (first limb).

(iv)	If there is evidence supporting each of the elements of the offence generally, the next consideration again as a matter of law is whether the evidence is insufficient or is tenuous.  Matters such as credibility, inconsistency and weighing of evidence are irrelevant.  The presiding judge must ask himself or herself this hypothetical question:  Could a judge of fact, considering the prosecution's evidence at its highest and as accurate, convict the accused?  If the answer is 'yes', the Court should allow the trial to continue.  If the answer is 'no', the Court may exercise its discretion and stop the trial (second limb).

(v)	The Court's power under the second limb is discretionary.  This means that even after the Court finds insufficient evidence on the elements of the offence it may nevertheless order the trial to continue (second limb).
(Italic is mine)

ELEMENTS OF WILFUL MURDER

13.	Section 299 of the Criminal Code reads:

(1)	Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

14.	The elements of wilful murder are set out in the case law in this jurisdiction.  I need not refer to all of them but only one for this purpose.  In the case of The State v. Seth Ujan Talil (2010) N4082 for example, Justice Cannings sets out the elements of wilful murder and I re-set them out herein:

•	a person killed the deceased;
•	the killing was unlawful; and
•	there was an intention to cause the death of the deceased.

IDENTIFICATION

15.	I note that identification is an issue alleged by the defence at the trial.  As such, the Court must also be satisfied the prosecution has adduced evidence identifying the 3 accused.  Secondly and in the exercise of its discretion, the Court must also be satisfied the prosecution has provided sufficient evidence overall on identification and all the elements of wilful murder against the 3 accused.

THE EVIDENCE

16.	Did the prosecution provide evidence on all the elements of wilful murder including evidence in relation to identification, against the 3 accused?

17.	I have considered the evidence including the 10 exhibits tendered in Court.

18.	I rule now that I am satisfied the prosecution has adduced evidence in relation to the three (3) elements of wilful murder and also in relation to identification, in the matter.  This is of course a question of law.  I look at the prosecutions' evidence and in particular evidence of three (3) of its witnesses namely Silas Yapo, Eddie Turpa and Bomai Kuno (the 3 witnesses).  The 3 witnesses all gave sworn evidence that they saw the three accused killed James Talman (deceased) at the time, location and date alleged in the primary or the brief facts supporting the charges against the 3 accused.  Each of the 3 witnesses described where they stood, the lightings at the time and also they each described how each one of the 3 accused participated in killing the deceased.

19.	I find that there is a case to answer.

SHOULD THE COURT STOP THE CASE?

20.	Having found that there is a case to answer, the next question I ask myself is this:  Should this Court nevertheless exercise its discretion and stop the trial?  I note that to do so, I must be satisfied that the prosecution's evidence, despite passing the first limb, is insufficient or tenuous and that the presumed facts cannot support a conviction.  I note that his Honour the late Sir Mari Kapi stated this at page 300 in the case State v. Roka Pep (supra) and I quote:  At this point, a judge is not required to have any regard to inconsistencies, or credibility of witnesses supporting the prosecution case.  All these and matters of credit are ignored.  

21.	At page 301, His Honour also referred to what Lord Diplock has stated in the case of Haw Tua Tau v. P.P. [1981] 3 W.L.R. 395.  I find Lord Diplock's remarks on point helpful so let me set them out herein:

"... the hypothetical question of law which the judge has to ask himself at that stage of the proceeding: 'If I were to accept the prosecution's evidence as accurate would it establish the case against the accused beyond a reasonable doubt?' ..."

22.	I note that my assessment of the evidence on point herein is hypothetical.  It has nothing to do with actual consideration of the evidence of the prosecution such as weighing, or considering inconsistencies or credibility for example based on cross-examination.  I am simply required to assess the sufficiency of evidence from a point of view of a judge of fact.  I must be mindful of the required degree of proof in a criminal case.  I must take the prosecution's evidence at its highest.  This means I must assume hypothetically that all the evidence adduced by the prosecution is accurate.  With these all in my mind, I must ask myself this:  If I were to sit as a judge of fact, would these assumed facts, based solely on the evidence adduced by the prosecution, be sufficient for me to convict the 3 accused?

23.	I refer to the defence submission.  I find the grounds relied upon relevant for consideration under the second limb herein.  In summary, the defence submitted these:

(i)	The evidence in totality was unreliable.
(ii)	The eyewitnesses gave contradictory evidence.
(iii)	The 3 witnesses' demeanours showed that they were not telling the truth particularly witness Eddie Turpa.
(iv)	The place was dark because in the 3 witnesses' prior statements they said the killing occurred between 3am to 4am in the morning on 30 December 2014; the surrounding environment had thick vegetation so with these, it would not have been possible for the 3 witnesses to identify the 3 accused.  Also, there were about a hundred or so people involved in the chase and attack of the deceased so identification would have been impossible, difficult or impaired.
(v)	The weapons used as alleged by the 3 witnesses did not match with the sworn evidence of the doctor and the doctor's tendered post mortem report.  The doctor's opinion showed that the wounds were all bush knife wounds.

24.	I think I can easily dismiss grounds (i), (ii) (iii) and (v).  This is because submissions on unreliability, contradiction, inconsistency and witnesses demeanours are not relevant considerations for me to take into account under the second limb.  I am only required to consider the prosecution's evidence based on law.  I note that I have already explained this at paragraphs 20 to 22 of in my judgment above.

25.	Ground (iv) in my opinion is also baseless for the same reasons like the other four (4) grounds.  Nevertheless, I wish to discuss that in detail to clarify my reasoning generally for rejecting all the grounds raised by the defence.  The 3 witnesses all gave sworn evidence that they witnessed the killing sometime between 5am and 6am because they said it was dawn and the place was already clear with sunlight.  The evidence was tested in cross-examination.  During the cross-examinations, the defence referred to three (3) prior written statements of the 3 witnesses.  In these three (3) written statements, the 3 witnesses have stated that the incident occurred between 3am to 4am that morning.  But in their responses in cross-examinations, the 3 witnesses stated separately that the incident occurred at dawn or when the sun was already up, and they all maintained that their sworn evidence regarding timing was correct.  The other witness who also gave evidence on timing was Bernard Lamur.  His sworn evidence and prior written statement on timing both stated that the final attack, which had led to the death of the deceased, occurred at dawn after 5am that morning. 

26.	I note that in a complete trial, I would be required to assess and take note of the submissions on point by the defence.  This is however not the time for me to go into the evidence and look at its credibility or inconsistencies.  I have already explained that at paragraph 20 of my judgment herein.  So as it is, I am satisfied the evidence supports the prosecution's assumed facts that the incident occurred between 5am and 6am.   In the primary facts supporting the charges against the 3 accused, the prosecution put down the time of the attack leading to the killing of the deceased to be between 4am to 6am on 30 December 2014.  The sworn evidence of the 3 witnesses plus the evidence of Bernard Lamur, supports the primary facts which is all I am required to be satisfied of at this time.  I note that I must take the prosecution's evidence at its highest.  The defence argument on timing obviously implies challenges to the credibility of evidence of the 3 witnesses which as I have already stated is not relevant at this time.  I think this is a matter where the Court should properly consider the evidence in a full trial.  In that way, I would be in a better position to consider the credibility of each of the witnesses' evidence; consider any inconsistencies in the evidence; consider witnesses demeanours, consider corroboration and weigh the evidence based on fact and law.

27.	Now I note that the defence also argued in ground (iv) that the 3 witnesses could not have identified the 3 accused because they were chased at that time and they were fleeing for their lives.  The defence submitted that about a hundred or so people were involved in the attack.  I note that these claims were put by the defence to the 3 witnesses during their cross-examinations.  I understand the defence perhaps will call its witnesses who will testify on point which was why the alleged facts were put to the 3 witnesses to comply with the rule stipulated in the case of Browne v. Dunn (1893) 6 R 67 (HL).  I note that the 3 witnesses firstly all denied that they were in positions where they each could not have identified the 3 accused.  The 3 witnesses maintained their stories that they each identified the 3 accused.  Secondly, the 3 witnesses said that there were other people there at that time but the 3 accused had led them in front which was why they were able to recognise and also see what the 3 accused had done.  Because the 3 witnesses have denied these allegations which were put to them by the defence, their original evidence of what they have seen remain intact for now, and for this purpose, I am only required to accept and treat their evidence at its highest and as accurate based on the primary or brief facts.  I am therefore satisfied that the prosecution has provided sufficient evidence regarding identification of the 3 accused at the crime scene.

SUMMARY

28.	In relation to the first issue, I find that the 3 accused have a case to answer.

29.	In relation to the second issue, I refuse to exercise my discretion to stop the trial at this stage.  I note the five (5) arguments raised by the defence on point.  I note that although some of them may be valid, this is not the time to raise them.

ORDERS OF THE COURT

The Court makes the following orders:

1.	The defence no case to answer application is refused.

2.	The matter shall be relisted at 9:30am on 20 June 2016 for mention to allocate date for continuation of trial.

_____________________________________________________________

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