N7694

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.  N0. 1387 & 1388 of 2015

THE STATE

V

PENIAS RICHARD
&
RICHARD TUKARE

Kokopo:   Susame, AJ
2019:    15 February

CRIMINAL LAW – Practice and Procedure – No case to answer Submission – Issue - At the close of Prosecutions Case whether on the evidence accuseds could lawfully be convicted. 

Cases Cited 

The State v Paul Kundi Rape [1976] PNGLR 96
The State v Lasebose Kuriday (1981) N300

Counsel:

Miss. Batil, for the State
Ms. Luben, assisting for the State
Ms. Jean Marie Ainui, for the Accuseds  

RULING 
15th February, 2019

1.	SUSAME, AJ: At the close of the prosecution’s case on 14 February 2019 on a wilful murder charge counsel for the accused persons indicated to the court for a no case submission to be heard.  Court adjourned for a day to allow parties to file submissions which they had when court convened today.

ISSUE

2.	Whether on the evidence so far adduced by the State, both accused persons could lawfully be convicted? Or,

Whether the evidence as it stands establishes a case against the accused persons? 

LAW

3.	The often referred case of The State v Paul Kundi Rape [1976] PNGLR 96 is perhaps the leading authority on no case submissions.  No case submission arises in two broad situations. The first limb raises a question of law. That is whether on the evidence at it stands accused person could lawfully be convicted. This is to be distinguished from question of fact whether at the close of all the evidence from the parties whether the prosecution has proven its case beyond all reasonable doubt. There is no real weighing of evidence in this situation. 

4.	The second limb submission is one in which defence asks court to stop the case from progressing any further. This involves a question of fact. This submission usually arises in very clear hopeless case, that there is no “iota of evidence with respect to each element of the offence, or evidence is so dubious, or so tainted, or so obviously lacking in weight or credibility, or has been so discredited in cross-examination, that no reasonable tribunal could safely convict on it.” [The State v Lasebose Kuriday (1981) N300].  The court has the discretion whether or not to entertain a no case submission. 

SUBMISSIONS

5.	Court has considered submissions from the parties.  Ms. Ainui’s submission was based on the first limb of Kundi Rape. That of course raises the question of law.  That is the measure court will adopt in answering the issue.  As such consideration of evidence is necessary. 

EVIDENCE

6.	State’s evidence consists of undisputed documentary evidence tendered by consent as well as oral testimonies of three witnesses.  
DECISION

7.	There is overwhelming evidence deceased had died of injuries when he was attacked by some other persons.  

8.	The accuseds are alleged to have been the persons involved in the attack of the deceased. 

9.	Both accused had generally denied any involvement. After hearing the testimonies of witnesses the main issue involves identification.  

10.	The court accepts defence argument that State’s evidence in respect of the actual act of killing of the deceased with bush knife and other objects is substantially circumstantial.
 
11.	However, there is evidence from the witnesses there was a group of boys drinking that particular evening. Amongst the group was Richard Tukare. In the course of their drinking an argument and a fight started amongst the group. During the fight the deceased was heard saying he will shoot Richard Tukare and Alex with a gun.
 
12.	There is also evidence from the State witnesses both accused persons were seen at the scene of the fight and involved in the chasing of the deceased.  Both accused were also seen at the crime scene.  Richard was armed with a stone while Penias was armed with a bush knife. 

13.	Any further arguments on issue of identification is to be addressed at the completion of the trial when all of the evidence are to be weighed and scrutinized. 

14.	Similarly, any arguments as to whether the accused were merely present or were active participants in the chasing and attacking of the deceased may be further argued at the close of all of the evidence at the end of the trial. 

15.	The end result of the discussions is that both accused persons have a case to answer and that trial must continue. 
_______________________________________________________________
Public Prosecutor	:	Lawyer for the State					
Public Solicitor	:	Lawyer for the Accused