N10626

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1367, 1368, 1371, 1372 OF 2021

THE STATE

v

SMITH KOP, ISRAEL FANSON BILL,
FITTLER TAGO, SMAILA HOMBUAFE
Accused

Waigani: Batari, J
2023: 19th July, 22nd, 23rd August
           
CRIMINAL LAW – Practice & Procedure – no case submissions – no case to answer as a matter of law – no case to answer on exercise of discretion – principles applied – relevant considerations – evidence – no weighing up to do.

CRIMINAL LAW – Practice & Procedure – no case submission – unlawful wounding – elements of – accused person – proof of – number of policemen detained and attacked victim in the night resulting in bodily injuries – identity of accused not proven – whether presence of accused at scene willed.       

Facts

Policemen attacked the victim at night during routine police patrol. The victim suffered bodily injuries from fist punches to the head. The accused were allegedly members of the police unit patron that attacked the victim.  This is the ruling on a no case application by the accused Fittler Tago and Smaila Hombuafe.

Held

1)	In a no case to answer application, it is a question of law where a submission is made that an element or some elements of the offence have not been made out.

2)	When the court is invited to stop the case in a “no case to answer” application, it is not role of the court at this point of the trial to look at the evidence and asses it on the higher standard of proof.

3)	The accused Fittler Tago and Smaila Hombuafe have no case to answer on unlawful wounding and unlawful confinement charged on the indictment due to no evidence adduced on their identification and willed presence.

4)	The epitome of a fair trial under s. 37 (4)(a) of the Constitution stipulates the basic right of the accused: (i) to presumption of innocence of the charge; and (ii) to have the charged against him proved according to law.

5)	Where evidence has been adduced on an essential element or elements of the offence, the Court may take one step further to consider whether the trial should continue, and that the accused be called upon to answer. The court has a discretion to stop the case where the evidence;

•	is so insufficient and lacking to justify a conviction, or
•	is so tenuous and fragile to sustain a lawful conviction, or 
•	has been so discredited by cross-examination, or 
•	is so defective and unreliable, 
it will not improve even if the accused is called upon to answer it.  

Cases Cited
The State v Lasebose Kuriday (1981) N300
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Tom Morris [1981] PNGLR 493
Willy Killy Goya & Anor v The State [1987] PNGLR 51

Counsel
J. Siminji, for the State
J. Kolowe, for the Accused

RULING NO CASE SUBMISSION

24th August 2023

1.	BATARI J:	   At the end of the prosecution evidence, the accused persons, Fittler Tago and Smaila Hombuafe applied to stop the case against each of them on the charges of unlawful wounding and unlawful confinement. The “no case to answer” application is made on the question of law alone. This is the ruling.
Parties’ positions
2.	Mr Kolowe of Counsel for the accused submitted that the State having put its case at the highest, has failed to adduce evidence on the elements of identity the attacker and willed presence. This failure makes the charges fundamentally flawed and such that the accused persons have no case to answer on the charges.
3.	State Prosecutor, Mr Siminji conceded, there is no direct identification of either accused person at the scene but, the evidence of their presence at the scene and Saraga Police Station with the other policemen implicated in the incident makes each of the two accused persons principal offenders as accomplices.   
Considerations & Ruling
4.	When the Court is invited to stop the case on a no case to answer submission, the duty of the Court at this point is not to look at the evidence and assess it on the higher standard of proof.  That process is left to the end when all the evidence is in, and the guilt or innocence of the accused is assessed on the higher standard of proof beyond reasonable doubt.

5.	That is the epitome of a fair trial under s. 37 (4)(a) of the Constitution that stipulates the basic right of the accused: (i) to presumption of innocence of the charge; and (ii) to have the charged against him proved according to law.

6.	Where the no case to answer submission is made, that a particular element or some elements of the offence have not been made out in the evidence, this, in essence, raises a question of law. If it is found that no evidence has been adduced to support an element or some elements of the charge at the end of the prosecution evidence, it follows as a matter of law, that the accused cannot be lawfully convicted.  So, there is no case to answer.  See, The State v Paul Kundi Rape [1976] PNGLR 96; The State v Lasebose Kuriday (1981) N300; The State v Tom Morris [1981] PNGLR 493.

7.	Conversely, where some evidence have been adduced on an essential element or elements of the offence, the Court may take one step further to consider whether the accused should be called upon to answer.  

8.	This is a question of discretion where the court will only consider the state of the evidence as it stands at the end of the prosecution case and decide whether the trial should continue. The court has a discretion to stop the case where the evidence;

•	is so insufficient and lacking to justify a conviction, or
•	is so tenuous and fragile to sustain a lawful conviction, or 
•	has been so discredited by cross-examination, or 
•	is so defective and unreliable, 
it will not improve even if the accused is called upon to answer it.  

9.	This is the principle of a no case submission commonly referred to as the ‘second leg’ of Paul Kundi Rape. The Court is only required to have a quick assessment of the quality of evidence at the end of the prosecution case as outlined above in the exercise of judicial power to control the trial proceedings, consistent with the duty to preserve fair trial in each case.   

10.	In this case, the evidence thus far is, that on the night of the incident in question, Richard Pagen, then acting Chief Ombudsman, drove out of his residence at Fig Street, Hohola onto Cedar Street. He stopped when confronted by a stationary police vehicle opposite Lareva market. After a brief altercation between him and members of the police unit, he was pulled out of his vehicle. Two policemen assaulted him and forced him into the vehicle, detaining him amongst eight others that have earlier been apprehended. The nearest Police Station was at Hohola. The police instead drove him to Saraga Police Station where he was detained for some two hours before he was released.     

11.	The essential element of the offences charged, common to both charges are, “person.”  The identity of the accused persons who were present and their roles as aiders and abetters in the commission of the offences charged are in dispute.  These are crucial matters for proof.   

12.	The accused Fittler Tago and Smaila Hombuafe were two of the five policemen from Zone One Fox Unit on shift duty at the time of the incident in question. This is ascertained from Exhibit ‘D’, Disposition Sheet entries kept at the NCD Operations Centre at Boroko Police Station. This evidence is not contested. The presence of the accused persons at the scene are also strongly inferred from the evidence that several policemen were present at the scene.

13.	 The victim Richard Pagen was accosted and assaulted in the night. The observations of the attackers were made under lightings from the vehicles and streetlights at the scene. One of the witnesses accompanying the victim was not able to identify the attackers while the victim spoke of two witnesses attacking him. He could not recognize any of the others due to poor lightings. 

14.	Against Fittler Tago and Smaila Hombuafe, there is evidence implicating them with their presence at the scene. The evidence remains that about three policemen accosted Mr Pagen. Shortly thereafter, two policemen physically attacked him. There is evidence and it is reasonable to infer those two policemen had the common intention to attack the victim. There is, however, no proof directly or by inference, all policemen at the scene shared the same or common intention. There is also no evidence, Fittler Tago and Smaila Hombuafe were at or near the location where the victim was assaulted. Hence, their identities and involvements have not been shown at the end of the prosecution evidence.

15.	I am satisfied, there is some evidence supporting the essential element of presence. The evidence against Fittler Tago and Smaila Hombuafe are wholly circumstantial on the element of participation.  

16.	Applying the test in the second limb of Paul Kundi Rape’s case, the question is whether the evidence thus far is such that the accused should be called upon to answer. This is a question of discretion.  Defence concedes, there is evidence of the presence of the accused persons at the time of the incidence but maintains that their presence were not willed.

17.	The state of the evidence in my view is such that it implicates the two accused persons to the extent that they were members of Fox One Unit present at the scene.  Whether the evidence of the State improves or not, depends on whether the accused person elects to give evidence in the exercise of his rights under s 572 of the Criminal Code or whether he will remain silent in the exercise of his right under s 37(10) of the Constitution.

18.	At this stage, no one knows what Fittler Tago and Smaila Hombuafe will choose to do in response to the State’s case. If Fittler Tago elects to give evidence, he may likely repeat his defence of general denials as contained in the record of interview.  Smaila Hombuafe may elect to remain silent or may give evidence in his defence. If either takes the course to give evidence, the State’s case is not likely to improve.  Similarly, if either elect to remain silent or make an unsworn statement, the prosecution case may not improve.

19.	I find that the accused Fittler Tago and Smaila Hombuafe have no case to answer on the charges of unlawful wounding and unlawful confinement.  I will stop the case here in the exercise of judicial discretion and acquit the accused.  Fittler Tago and Smaila Hombuafe are formally found not guilty and acquitted of the two charges. Each is to be discharged forthwith.  

20.	Fittler Tago and Smaila Hombuafe are relieved of their bail conditions.  Their cash bail deposits shall be refunded forthwith.  

21.	The joint trial will continue against the accused, Smith Kop, Israel Fanson Bill on the charges of unlawful wounding and unlawful confinement.

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