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Kola, The State v [1979] PNGLR 620 (8 December 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 620 - The State v Aige Kola 

[1979] PNGLR 620

N209

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

AIGE KOLA

Kundiawa

Kapi J

6-8 December 1979

CRIMINAL LAW - Practice and procedure - Submission of no case to answer - Meaning of - After determining that there is a case to answer, a trial judge may go one step further and inquire whether the charge is proven beyond reasonable doubt before calling on the accused to answer - Circumstances under which this may be adopted.

Where there is a submission of no case to answer at the close of the case for the prosecution there are two questions to be determined, viz.,

(1)      Whether there is sufficient evidence on which the accused could lawfully be convicted; and

(2)      Whether there is sufficient evidence on which the accused ought to be convicted, i.e. whether the evidence is so insufficient that the accused ought not to be called upon to answer it.

The State v. Paul Kundi Rape, [1976] P.N.G.L.R. 96, at pp. 97, 98 and 99, followed.

Where a submission of no case to answer has been determined against an accused the trial judge may, before calling on the accused to answer, go one step further and inquire whether the charge is proven beyond reasonable doubt.

R. v. Dodd, [1971-72] P. & N.G.L.R. 255; and

R. v. Kalaitzidas (1978), 20 S.A.S.R. 87, applied.

This latter procedure may be adopted, where at the end of the case for the prosecution, it is obvious to the judge that the prosecution case is such that no matter what evidence may be called by the accused, the prosecution case will not be proved beyond reasonable doubt, or the prosecution case will not improve.

Interlocutory Judgment

At the close of the case for the prosecution on a charge of unlawful killing counsel for the accused submitted that there was no case to answer, and that as the case stood the court should be satisfied that the evidence for the prosecution was insufficient to establish beyond reasonable doubt the charge against the accused and he should accordingly be discharged. The following ruling was then made.

Counsel

T. D. H. Kitchin, for the State.

P. C. Kopunye, for the accused.

Cur. adv. vult.

8 December 1979

KAPI J:  The case for the prosecution being closed, counsel for the accused has submitted that there is no case to answer. He puts his submission in two stages: first he submits that on the evidence as it stands the accused could not lawfully be convicted; secondly he submits that even if there is evidence on which the accused could be lawfully convicted, the evidence is so insufficient that the accused ought not to be called upon to answer. He also makes a separate and different submission based on the principle stated in R. v. Dodd[dccxcv]¹ which I will come to later on in the judgment.

The principles to be applied in a no case submission are set out in the case of The State v. Paul Kundi Rape [dccxcvi]². O’Leary A.J. set out the two separate questions that must be asked:

“... one, whether there is a case for the accused to answer; the other, whether, although there is a case for the accused to answer, the state of the evidence is such that the judge ought to withdraw the case from the jury, or, at least, tell the jury that they are entitled to indicate that they do not wish to hear any further evidence.”

Further on in his judgment, his Honour went on to say[dccxcvii]³:

“For the better understanding of this principle, and particularly for the avoidance of confusion in considering the second question to which I will shortly refer, I think it is important to keep in mind that for the purpose of determining either of them, one does not look to see whether at the close of the prosecution’s case, the prosecution has proved its case beyond reasonable doubt.”

In the present case, applying the principles as stated above, on the first question, I find that there is evidence on which a jury could lawfully convict of wilful murder. The State evidence mainly consisted of three eye witnesses, Kua Bulage, Kaupa Wanape and Muaule Gena. They all testified that they saw the accused taking part in the tribal fight and they saw him deliberately shoot the deceased with an arrow. On their evidence it could be easily inferred that when the accused fired the arrow he intended to kill the deceased.

As to the second question, the test is a different one and this is set out in the same judgment [The State v. Paul Kundi Rape[dccxcviii]⁴]:

“As I understand it, the question there is not whether there is any or some evidence on which a jury could lawfully convict, but whether there is sufficient evidence on which a reasonable jury ought to convict.”

Later on in his judgment he said[dccxcix]⁵:

“So far as the present question is concerned, what I think one really inquires into is whether the evidence is so insufficient that the accused ought not to be called upon to answer it.”

As has been pointed out earlier on, one does not look to see whether the prosecution has proved its case beyond reasonable doubt.

Applying these principles to the present case, I find on the evidence, particularly the evidence of Muaule Gena, who is not related to the deceased person, that there is sufficient evidence on which a reasonable jury ought to convict. Therefore I would not acquit the accused at this stage.

I now come to consider the further submission made by the counsel for the accused, namely, that even after the two questions on no case submission are determined against the accused (that there is a case to answer), if I am of the opinion at this stage, that the State’s evidence is so insufficient to establish beyond reasonable doubt the charge against the accused, I may acquit him. He relies on the case of R. v. Dodd[dccc]⁶. The counsel for the State did not contest this submission in principle.

At first reading of R. v. Dodd[dccci]⁷, it would appear to be in conflict with The State v. Paul Kundi Rape[dcccii]⁸ regarding the standard of proof on a no case submission. However, on careful reading of the two cases, I am of the opinion that they are not necessarily in conflict. The proper principles to be applied in a no case submission are stated in The State v. Paul Kundi Rape[dccciii]⁹. The principle stated in R. v. Dodd[dccciv]¹⁰ in my opinion, goes further than a no case submission. In my opinion, the case stands for the proposition that even after a determination is made on a no case submission, a trial judge may go one step further and inquire whether, at that stage, it is safe for him to convict on the evidence, or, to put it differently, whether he is satisfied beyond doubt of the guilt of the accused. R. v. Dodd[dcccv]¹¹ does not clearly set out the circumstances under which this procedure may be adopted. However, as I understand the principle stated in R. v. Dodd[dcccvi]¹², this procedure may be followed where at the end of the prosecution case, it is obvious to a judge that the prosecution case is such that no matter what evidence may be called by the accused, the prosecution case will not be proved beyond reasonable doubt, or, to put it differently, the prosecution case will not improve. In my opinion, this is when this procedure may be adopted and not otherwise.

The same procedure was adopted in a recent South Australian case R. v. Kalaitzidas [dcccvii]¹³. This was a case in which the four accused persons were charged with rape. After evidence was given by the prosecutrix, the trial judge, before the close of the Crown case, directed the jury that it would be dangerous and unsafe for them to convict the accused and directed that they be acquitted. The trial judge, in his direction to the jury, said, regarding one of the accused (emphasis is mine)[dcccviii]¹⁴:

“However, before you could find Balopitos guilty, the Crown must prove to your satisfaction beyond reasonable doubt that the crime of rape was committed upon the prosecutrix ... As I have already told you, the Crown case is that Kalaitzidas, Tsenditis and Alexiadis were the principal offenders; that each of them raped Miss K. In order to prove that crime of rape, the Crown must prove to your satisfaction beyond reasonable doubt that each accused had sexual intercourse with Miss K. without her consent ... Thus the Crown carries the burden of proving to your satisfaction beyond reasonable doubt that the accused person had sexual intercourse with the female without her consent, knowing that she was not consenting, or without any genuine belief on his part that she was consenting ... [And later in the judgment[dcccix]¹⁵,] ... it seems to me, having regard to the evidence given by her in the witness box, that it would be extremely unsafe for you to act upon her evidence; that you would have great difficulty in reaching a conclusion beyond reasonable doubt that Miss K. did not consent ...”

It is obvious from these passages the trial judge adopted the same procedure as was adopted in R. v. Dodd[dcccx]¹⁶.

The trial judge then went on to say[dcccxi]¹⁷:

“Where the evidence brought forward by the Crown has been shown to be discredited to a very marked degree; where it has been shown to be so unsafe and unsatisfactory, where it is so manifestly unreliable that no reasonable jury could safely act upon it, it seems to me that the judge should accept the responsibility of saying so, and that he should direct the jury to return a verdict of acquittal. The judge has the responsibility of stopping the case ‘there and then’, and of inviting the jury to accept his direction and to return a verdict of not guilty.”

The trial judge relied on a passage by Lord Justice Roskill in the case of R. v. Falconer-Atlee[dcccxii]¹⁸:

“If a judge thinks that the case is tenuous, then, even though there is some evidence against the accused person, the judge, if he thinks it would be unsafe or unsatisfactory to allow the case to go to the jury even with a proper direction, should take upon himself the responsibility of stopping it there and then.”

In this case the principal witness failed to prove the charge beyond reasonable doubt and the case would not have improved had the trial gone ahead. Hence the acquittal of the accused. It should be noted that this procedure was adopted at a much earlier stage of the trial than in R. v. Dodd [dcccxiii]¹⁹, before the end of the prosecution case.

It is therefore necessary at this stage to consider the evidence and inquire whether this case comes within the principles stated above. I find the following facts to my satisfaction.

On the 5th December, 1978, a fight broke out between one of the sub-clans of the Tabari tribe and the Kere tribe in the Chimbu Province. The fight continued into the second day, 6th December, 1978. The accused belongs to the Kere tribe and the deceased belonged to the Tabari clan. The deceased was killed on the 6th December, 1978.

The three eye witnesses who gave evidence all said that they were in the fight, although it is not clear whether they were taking part or not. They all gave evidence to the effect that they saw the accused man taking part in the fighting. They all said that they saw the accused man deliberately fire an arrow towards Bulagekua and hit him, from which injury he died later on the same day. They all said that they observed the events from the time the accused fired the arrow to the time the arrow hit the deceased. They stated adamantly that they watched every stage of it.

I should say at the outset that evidence of Kaupa Wanape is of no value in so far as it identifies who shot the deceased. In examination-in-chief he was asked:

“Q.     Tell the court what you saw at the time.

A.       Bulage and myself, we were together and Bulage said I got an arrow and I turned around and saw Bulage. When he said that I turned around and saw the accused, then we walked together ...”

It is obvious from this that he did not actually see who fired the arrow. He only looked after the arrow hit the deceased. I do not accept his evidence wherever he said he saw the accused shooting the deceased. I find that this witness’s evidence is not to be believed because he has every motive for blaming the accused for the death as the deceased was his true blood brother.

I also find that the evidence of Kua Bulage is suspect in that he is the son of the deceased. This is not the only reason that I find his evidence unreliable; but it also conflicts with the evidence of the eye witness, Muaule Gena. Kua Bulage stated in his evidence that the arrow struck the deceased under the right armpit whereas Muaule Gena stated that the arrow struck the deceased on the right chest. It is significant that both their evidence in relation to the arrow wound conflicts with the doctor’s evidence. The evidence of Dr. Simon Lansdown indicates that the arrow wound was under the left armpit. This inconsistency was not satisfactorily explained. Either they saw what happened or they did not. Further, Kua Bulage’s evidence is not supported by the doctor’s evidence that there were no abnormal marks or injuries found on the deceased’s neck. He and Kaupa Wanape stated that the accused hit the deceased on the back of the neck with an axe handle.

I further find that witness Kua Bulage has given inconsistent stories. At the committal proceedings he said that the arrow went right through the body, whereas at the trial he said it did not go through the body.

They all stated in their evidence that this was a big tribal fight and many arrows were being fired from both sides. It is possible that any of these arrows could have hit the deceased.

The evidence of Kiage Ibone is of no use as he said he did not see what happened. Evidence of Paul Handi is again of no value as he had the conversation with the accused’s father and not the accused.

I therefore find that the evidence of all the principal witnesses in the prosecution case is so unsatisfactory that it leaves me with grave doubts as to whether any of them actually saw the accused shoot the deceased. I also further find that State evidence would not improve whether the accused gives evidence or not. I therefore acquit the accused at this stage.

Accused acquitted.

Solicitor for the State: C. Maino-Aoae, Acting Public Prosecutor.

Solicitor for the accused: D. J. McDermott, Acting Public Solicitor.