Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PGLawRp 514; [1983] PNGLR 287 (14 September 1983)

Papua New Guinea Law Reports - 1983

[1983] PNGLR 287 - The State v Roka Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) 

[1983] PNGLR 287

SC261

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN THE MATTER OF THE STATE

V

ROKA PEP (NO.2)

AND IN THE MATTER OF THE RESERVATION OF POINTS OF LAW UNDER S. 21 OF THE SUPREME COURT ACT (CH. NO. 37)

Waigani

Kidu CJ Kapi DCJ Andrew Pratt Kaputin JJ

28 April 1983

14 September 1983

CRIMINAL LAW - Practice and procedure - Submission of no case to answer - Meaning of - Principles applicable - Distinguished from discretion to withdraw case.

Held

(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.

The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96, adopted and applied.

(Per Pratt J) A tribunal 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 tenuous or incredible or discredited that it amounts only to a scintilla, and thus could not be accepted as persuasive by any reasonable person.

Cases Cited

Acting Public Prosecutor v. Holloway (Unreported National Court judgment N298 (M) dated 12 June 1981).

Benney v. Dowling [1959] VicRp 41; [1959] V.R. 237.

British Launderers’ Research Association v. Central Middlesex Assessment Committee and Hendon Rating Authority [1949] 1 All E.R. 21.

Edwards (Inspector of Taxes) v. Bairstow [1955] UKHL 3; [1956] A.C. 14; [1955] 3 W.L.R. 410; [1955] 3 All E.R. 48

Haw Tua Tau v. Public Prosecutor [1981] 3 W.L.R. 395; [1981] 3 All E.R. 14.

Instrumatic Ltd v. Supabrase Ltd [1969] 1 W.L.R. 519; [1969] 2 All E.R. 131.

Jewell v. Parr [1853] EngR 563; (1853) 13 C.B. 909; 138 E.R. 1460.

May v. O’Sullivan [1995] HCA 38; (1955) 92 C.L.R. 654; 29 A.L.J 375; [1954] A.L.R. 671.

Practice Direction [1962] 1 W.L.R. 227; [1962] 1 All E.R. 448.

R. v. Aibei Aeme (Unpublished judgment N701 dated 31 August 1972).

R. v. Charlotte Smith (1865) 10 Cox C.C. 82.

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

R. v. Galbraith [1981] 1 W.L.R. 1039; 73 Cr. App. R. 124; [1981] 2 All E.R. 1060.

R. v. Hemmings [1939] 1 All E.R. 417; 27 Cr. App. R. 46.

R. v. Mansfield [1977] 1 W.L.R. 1102; [1978] 1 All E.R. 134.

R. v. Prasad (1979) 23 S.A.S.R. 161.

R. v. Young [1964] 1 W.L.R. 717; [1964] 2 All E.R. 480; 48 Cr. App. R. 292.

R. v. Wewak Resident Magistrate; Ex parte Dyer [1967] P. & N.G.L.R. 511.

Rosa Angitai v. The State [1983] P.N.G.L.R. 185.

Ryder v. Wombwell [1849] EngR 699; (1868) L.R. 4 Exch. 32.

Sharp v. Hotel International Ltd [1969] VicRp 12; [1969] V.R. 103.

State, The v. Aige Kola [1979] P.N.G.L.R. 620.

State, The v. Delga Puri and Tapri Maip [1982] P.N.G.L.R. 395.

State, The v. Lasebose Kuriday (Unreported National Court judgment N300 dated 18 June 1981).

State, The v. Lupam Lau (Unreported National Court judgment N309(M) dated 16 May 1981).

State, The v. Paul Kundi Rape [1976] P.N.G.L.R. 96.

State, The v. Roka Pep [1983] P.N.G.L.R. 19.

State, The v. Tom Morris [1981] 1 P.N.G.L.R. 493.

Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (Unreported Supreme Court judgment SC 185 dated 25 November 1980).

Wheelton v. Hardisty [1857] EngR 26; 8 E. & B. 232; 120 E.R. 86.

Wilson v. Kuhl [1979] VicRp 34; [1979] V.R. 315.

Zanetti v. Hill [1962] HCA 62; (1962) 108 C.L.R. 433; 36 A.L.JR. 276.

Reference

This was the reference by the National Court of questions of law pursuant to s. 21 of the Supreme Court Act (Ch. No. 37). The questions asked appear at the beginning of the judgment of Kidu CJ hereunder.

Counsel

L. Gavara-Nanu, for the State.

A. Amet and S. Lupalrea, for the defence.

14 September 1983

KIDU CJ: This is a reference by the National Court pursuant to s. 21 of the Supreme Court Act (Ch. No. 37). The questions this Court has been asked to consider are as follows:

N2>“(1)    What are the proper principles in a no case submission?

N2>(2)      Is there a discretion in the judge to stop a case (withdraw the case from jury) even though there is some evidence of all the essential elements? If there is, what are the proper principles?

N2>(3)      Is there a further discretion in the judge to weigh the evidence beyond reasonable doubt as stated in State v. Aige Kola [1979] P.N.G.L.R. 620 and State v. Lasebose Kuriday (Unreported judgment of the National Court dated 18 June 1981, N300). If there is, what are the circumstances in which it may be exercised?”

QUESTION 1

I consider that the principle applicable to a submission of “No case to Answer” is so well settled in this country that it needs only to be re-stated without much comment. This principle is discussed in the State v. Paul Kundi Rape [1976] P.N.G.L.R. 96 at 97-98:

“Where the question is whether there is a case to answer the principle to be applied is quite clear. In May v. O’Sullivan [1995] HCA 38; (1955) 92 C.L.R. 654, at 658, the Full Court of the High Court of Australia expressed it in these terms:

‘When, at the close of the case for the prosecution, a submission is made that there is “no case to answer”, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a “case to answer” has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. That is a question of fact.’ (Emphasis added)

In the case of Zanetti v. Hill [1962] HCA 62; (1962) 108 C.L.R. 433 at 442, Kitto J expressed the principle in these terms:

‘The question whether there is a case to answer, arising as it does at the end of the prosecution’s evidence in chief, is simply the question of law whether the defendant could lawfully be convicted on the evidence as it stands, — whether, that is to say, there is with respect to every element of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred. That is a question to be carefully distinguished from the question of fact for ultimate decision, namely whether every element of the offence is established to the satisfaction of the tribunal of fact beyond a reasonable doubt ... The ultimate question of fact must be decided on the evidence;....’

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. As Kitto J said in Zanetti v. Hill (supra), the fact that a person is not to be convicted of any offence unless the tribunal of fact before which he is charged is satisfied beyond reasonable doubt that every element of the offence exists ‘does not mean that the case for the prosecution must be proved beyond a reasonable doubt before there is a case for the defence to answer.’

The time at which one looks to see whether the prosecution has proved its case beyond reasonable doubt does not arise until the whole of the evidence, including such evidence as the accused may wish to adduce, is before the Court, and not before. It is therefore a question that does not arise at the close of the prosecution’s case, unless that also marks the conclusion of the evidence in the case, that is, if the accused does not adduce any evidence himself.” (Emphasis added)

Counsel, in their submission, did not advance any arguments contrary to what is discussed in Paul Kundi Rape.

No case in our jurisdiction has said anything to the contrary. In fact, the principle has been affirmed and restated in subsequent cases. For instance:

N2>(a)      Miles J in Acting Public Prosecutor v. Barry Blythe Holloway (Unreported National Court judgment No. N298(M) dated 12 June 1981), at 2-3:

“Strictly speaking such a submission is a submission of law, namely that even if all the evidence favourable to the prosecution were accepted, the prosecution must necessarily fail because that evidence did not go to prove one or more of the elements of the offence charged as it is defined by law.”

N2>(b)      Pratt J in The State v. Lupam Lau & 3 Others (Unreported National Court judgment N. 309(M) dated 16 May 1981), at 2:

“I agree with Wilson AJ (as he then was in his decision R. v. Uno Tam & Another (unreported pre-Independence Supreme Court judgment No. 766 of 14 September 1973), that in a no prima facie case submission, matters of weight and credibility are to be ignored. As the High Court said in May v. O’Sullivan [1995] HCA 38; (1955) 92 C.L.R. 654 at 658, the test is not whether an accused ought to be convicted, ‘but whether on the evidence as it stands he could lawfully be convicted’. When for example the prosecution has failed to establish one of the elements of the charge, then clearly an accused could not be convicted. There is no case established against him. It is deficient in law: see also Miles J in Acting Public Prosecutor v. Barry Blythe Holloway (Unreported National Court judgment No. N298(M) dated 12 June 1981).”

I need only to cite one very recent case of the Privy Council which is relevant. This is the case of Haw Tua Tau v. Public Prosecutor [1981] 3 W.L.R. 395 at 403 the Council said:

“It is well established that in a jury trial at the conclusion of the prosecution’s case it is the judge’s function to decide for himself whether evidence has been adduced which, if it were to be accepted by the jury as accurate, would establish each essential element in the alleged offence; for what are the essential elements in any criminal offence is a question of law. If there is no evidence (or only evidence that is so inherently incredible that no reasonable person could accept it as being true) to prove any one or more of those essential elements, it is the judge’s duty to direct an acquittal, for it is only on evidence that juries are entitled to convict; but, if there is some evidence, the judge must let the case go on. It is not the function of the jurors, as sole deciders of fact, to make up their minds at that stage of the trial whether they are so convinced of the accuracy of the only evidence that is then before them that they have no reasonable doubt as to the guilt of the accused. If this were indeed their function, since any decision that they reach must be a collective one, it would be necessary for them to retire, consult together and bring in what in effect would be a conditional verdict of guilty before the accused had any opportunity of putting before them any evidence in his defence. On the question of the accuracy of the evidence of any witness, jurors would be instructed that it was their duty to suspend judgment until all the evidence of fact that either party wished to put before the Court had been presented. Then and then only should they direct their minds to the question whether the guilt of the accused had been proved beyond reasonable doubt.

In their Lordships’ view the same principle applies to criminal trials where the combined roles of decider of law and decider of fact are vested in a single judge (or in two judges trying capital cases). At the conclusion of the prosecution’s case what has to be decided remains a question of law only. As decider of law, the judge must consider whether there is some evidence (not inherently incredible) which, if he were to accept it as accurate, would establish each essential element in the alleged offence. If such evidence as respects any of those essential elements is lacking, then, and the only, is he justified in finding ‘that no case against the accused has been made out which if unrebutted would warrant his conviction,’ within the meaning of section 188(I). Where he has not so found, he must call upon the accused to enter on his defence, and as a decider of fact must keep an open mind as to the accuracy of any of the prosecution’s witness until the defence has tendered such evidence, if any, by the accused or other witness as it may want to call and counsel on both sides have addressed to the judge such arguments and comments on the evidence as they may wish to advance.” (Emphasis added)

This is one authority of persuasive value and more relevant than English and Australian cases because like Papua New Guinea in Singapore (from where this case originated) indictable offences are entertained by judges without juries.

The English cases on the matter must be treated with caution because they lump together a proper no case with cases where, even though there is some evidence on each element of an offence a judge is asked to exercise his discretion and stop the case (subject matter of Question 2). The most recent of these cases is R. v. Galbraith [1981] 1 W.L.R. 1039 where at 1042 the Court said:

“How then should the judge approach a submission of ‘no case’? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred.

There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.”

It seems that in England there is no discretion if a judge finds that, although there is a case to answer, the prosecution evidence is “... of tenuous character, for example because of its inherent weakness or vagueness or because it is inconsistent with other evidence”. In Papua New Guinea we have adopted the view that in such cases a judge exercise a discretion whether to stop the case or allow it to proceed.

QUESTION 2

There is no contention that a discretion exists in this jurisdiction to stop a case after the close of the State’s case even though there is some evidence in support of each element of the offence charged. Once again the principle involved is discussed in The State v. Paul Kundi Rape (supra). O’Leary AJ at 98 and 99 of the report says:

“All this, however, is quite a separate question from the other question that sometimes arises at the close of prosecution’s case (and indeed may arise at any stage of the trial), namely, whether 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 it is open to them to say at any time that they do not wish to hear any further evidence. In these cases the test is a quite different one. 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. As was said by Willes J in Ryder v. Wombwell [1849] EngR 699; (1868) L.R. 4 Exch. 32, at 39.

‘It was formerly considered necessary in all cases to leave the question to the jury if there was any evidence, even a scintilla, in support of the case; but it is now settled that the question for the judge (subject of course to review) is, ... not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.’

The same principle applies, of course, in civil cases, and for a comprehensive discussion on the question see Seminars on Evidence, Ed. Glass, 22 et seq., ‘Title, Sufficiency of Evidence’.

When it is said, in this context, that the evidence is such that no reasonable jury ought to convict on it, I do not think that is the same thing as saying that, on the evidence as it stands, a jury could not be satisfied beyond reasonable doubt as to the guilt of the accused. As I have said, for the purpose of considering either the present question or the question as to whether there is a case to answer, one does not look to see whether the prosecution has proved its case beyond reasonable doubt. So far as the present question is concerned, what I think one really enquires into is whether the evidence is so insufficient that the accused ought not to be called upon to answer it.

Where there is no case to answer, an accused may not, as a matter of law, be called upon to answer it. Where there is a case of insufficiency of evidence as explained above, an accused may as a matter of law be called upon to answer it, but there is a discretion in the judge either not to call on him at all, that is to take the case away from the jury, or, at least, to leave it to the jury to say whether or not they wish to hear more.” (Emphasis added)

Of course we do not have juries in Papua New Guinea. Therefore the principle should be restated to reflect this reality. There is no doubt in my mind that when a submission is made to stop the case it is because the prosecution evidence is so weak that it should not be considered at all. Such a submission must involve a judge assessing the State’s evidence to determine whether, acting in his capacity as the decider of law, he should or should not allow the facts to be determined by himself in his capacity as decider of facts.

The practice is without difficulty where a judge (a separate person) is invited to consider whether “... the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it ....”. If the judge so decides he stops the case. The jury (a separate entity whose function it is to determine whether a case against an accused has been beyond reasonable doubt) does not weigh the facts at all.

In our jurisdiction the one person (and hence the one mind) is asked to ignore its fact finding function and determine, in its capacity as decider of law, the question posed. If he answers the question in favour of the submission he may, in his discretion, stop the case. His fact finding function does not come into play at all.

The principle has been re-stated and affirmed in cases subsequent to Paul Kundi Rape. I quote from several of these cases:

N2>(a)      The State v. Tom Morris [1981] P.N.G.L.R. 493 where Miles J said at 495:

“... In order to decide the separate question of whether it would be unsafe and dangerous to convict, the court again looks at the whole of the evidence, but for the different purpose of exercising a discretion to take the matter away from the tribunal of fact. But in neither case is it appropriate to consider whether the prosecution has proved its case beyond a reasonable doubt, because that is the function of the tribunal of fact. A very useful discussion of these basic principles appears in the judgment of O’Leary AJ in The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96.”

N2>(b)      Kearney, DCJ in The State v. Lasebose Kuriday (Unreported National Court judgment N300 dated 18 June 1981), at 3:

“Second, where there is more than an iota of evidence with respect to each element of the offence: it appears that a no case submission can still be entertained though the court has a discretion whether or not to do so, and though strictly it does not involve a ruling of no case: see Wilson v. Kuhl [1979] VicRp 34; [1979] V.R. 315, at 318-319.

A submission on this basis appears to be linked with the ‘unsafe or unsatisfactory’ ground of appeal against convictions, which appears in s. 22(i)(a) of the Supreme Court Act 1975. Its historical development is traced in R. v. Mansfield (1977) 65 Crim. L.R. 276 at 280-281. The question which this submission poses for the judge is whether the evidence is insufficient to sustain a safe or satisfactory conviction. Since ‘sufficiency’ is involved, it appears that the judge is required to weigh the evidence to determine the conclusions it could safely support.

Because this involves the judge in weighing the evidence, and because as far at least as direct evidence is concerned, this involves a determination of credibility of witnesses, and this is seen as a jury function, this type of no case submission does not appear to be entertained in Canada. See R. v. Paul (1976) 64 D.L.R. (3d.) 491 and United States of America v. Sheppard (1977) 70 D.L.R. (3d.) 136.

In principle, the Canadian view appears to me to be correct and arguably should obtain here even in the absence of a jury, because of the principle that the evidence should be weighed only once, when it is all in. At this stage of the trial adopting what was said in Barker (1977) 65 Cr. App. R. 287 at 288:

‘It is not the judge’s job to weigh the evidence, decide who is telling the truth, and to stop the case merely because he thinks the witness is lying.’

It appears to me that a submission on this basis should be entertained only when the judge really has no weighing up to do. That is, it must be a very clear case, where the State evidence is so dubious, or so tainted, or so obviously lacking in weight or reliability, or has been so discredited in cross-examination that it is clear that no reasonable tribunal could safely convict on it ...”

N2>(c)      Pratt J in The State v. Lupam Lau & 3 Others (Unreported National Court judgment N 309(M) dated 16 May, 1981) at 2:

“When however all the elements requiring proof have been covered by the evidence but such evidence is so unsatisfactory that the tribunal must feel considerable hesitation as to whether all or any of the essential material can be believed, application to stop the proceedings may then be made under the Benney v. Dowling [1959] VicRp 41; [1959] V.R. 237 test. In those circumstances it is difficult to see how one can avoid giving some attention to matters of weight and credibility in reaching a final decision. Such applications are made of course, before an accused is asked to elect whether or not he will call evidence. Although the reference to satisfaction beyond reasonable doubt, used by Kelly J in R. v. Dodd [1971-72] P. & N.G.L.R. 255 is unfortunate, it is clear from the earlier words used by his Honour at 256 of that report that his mind was directing itself to the Benney v. Dowling aspect and that he was not giving a ruling on the absence of a prima facie case simpliciter. It seems therefore that the conflict suggested by Mr. Griffin at 74 of his book Criminal Procedure in Papua New Guinea may not exist.

For an analysis of the two principles involved in the present application, I do not think one can do better than turn to the lucid exposition by O’Leary AJ in The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96 at 100.

I adopt and incorporate the whole of the comments made by his Honour in that case. To add anything further, I think would run the risk of clouding an issue which was previously somewhat prone to misunderstanding. I appreciate that Kapi J in The State v. Aige Kola [1979] P.N.G.L.R. 620 has formed the view that a third category exists but it seems to me that such a conclusion really stems from approaching the Benney v. Dowling principle from two different directions.

Messrs Waight and Williams in their new work Cases and Material on Evidence at 171 seem to take a similar approach. If a conviction may be set aside on the basis that it is ‘unreasonable’, that is merely another way of saying that the evidence was so unsafe or unsatisfactory that no reasonable jury properly instructed would convict (see R. v. Falconer-Atlee (1973) 58 Cr. App. R. 348 and R. v. Kalaitzidas (1978) 20 S.A.S.R. 87.

That there are really only two tests to be applied at this stage of the proceedings was the unpublished view which I took in Kundiawa early last year and I note that it accords with the opinion of Miles J in The State v. Tom Morris, [1981] P.N.G.L.R. 493. There is perhaps a danger of referring to what happens with a jury in a jurisdiction where such an institution does not yet unfortunately exist. At 99 of the report of Paul Kundi Rape (supra), the kernel of the entire issue appears in the following words:

‘Where there is no case to answer, an accused may not, as a matter of law, be called upon to answer it. Where there is a case of insufficiency of evidence as explained above, an accused may as a matter of law be called upon to answer it, but there is a discretion in the judge either not to call on him at all, that is to take the one away from the jury, or, at least, to leave it to the jury to say whether or not they wish to hear more.’

The reference however to leaving the matter for the jury to say whether or not they wish to hear more, does not really assist and the passage may perhaps best have terminated at the words ‘but there is a discretion in the judge ... not to call him at all’. I think expressed in those terms the passage perhaps has a clearer and better application to the circumstances prevailing in Papua New Guinea. I do not however say that in criticism, but merely to remind myself that as no juries exist in this country, really what one is setting out to do is to divide one’s functions as a judge of law and a judge of fact.”

The Australian case of Wilson v. Kuhl [1979] VicRp 34; [1979] V.R. 315, at 319 expresses the principle more explicitly:

“In a case where there is evidence which, if accepted, would provide evidence of each element of the charge, a magistrate may still in some cases be entitled to exercise a discretion to dismiss the information without calling on the defendant. Where technically there is evidence on which the defendant could lawfully be convicted but the magistrate concludes that there is a mere scintilla of evidence or that the evidence is so lacking in weight or reliability that no reasonable tribunal could safely convict on it, he may dismiss the information: Benney v. Dowling [1959] VicRp 41; [1959] V.R. 237 at 242; Mooney v. James [1948] VicLawRp 57; [1949] V.L.R. 22 at 32; Practice Note (1962) 1 All E.R. 448.

The position is similar upon a criminal trial before judge and jury. Where technically there is evidence on which the accused could lawfully be convicted but the judge concludes that it would be unsafe or unsatisfactory to convict on the evidence, he may withdraw the case from the jury. R. v. Mansfield [1977] 1 W.L.R. 1102.

The exercise of a discretion to dismiss an information notwithstanding that technically there is a case to answer is not strictly a ruling that there is no case to answer. However, it is often referred to as such, e.g.: Sharp v. Hotel International Ltd [1969] VicRp 12; [1969] V.R. 103 at 108; R. v. Mansfield [1977] 1 W.L.R. 1102 at 1105; (1978)”.

QUESTION 3

In this jurisdiction it has never been accepted that at the end of the case for the prosecution a judge (or magistrate) can determine whether the State has proved its case beyond a reasonable doubt, Kelly J in R. v. Dodd (supra) thought otherwise but was never followed by any other judge. In fact O’Leary AJ five years later in Paul Kundi Rape (supra) at 99 said of Dodd’s case:

“In support of his argument, Mr McWalters referred me to a decision of Kelly J in R. v. Dodd [1971-72] P. & N.G.L.R. 255. In that case, his Honour held that there was a case to answer, but nevertheless went on to acquit the accused on the ground, as he put it, that ‘on the Crown case it is not possible for me to be satisfied beyond reasonable doubt of the guilt of the accused’. I have no doubt that the learned judge was there applying the true principles in that case, but, with respect, I think that to express the matter in that way is apt to be misleading in that it does tend to obscure what I, at least, perceive those true principles to be.”

In 1979 in The State v. Aige Kola [1979] P.N.G.L.R. 620 Kapi J (as he then was) reiterated what Kelly J said in Dodd’s case. The following is from 622 of the report:

“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 [1971-72] P. & N.G.L.R. 255. The counsel for the State did not contest this submission in principle.

At first reading of R. v. Dodd (supra) it would appear to be in conflict with The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96 regarding the standard of proof of 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, in a no case submission are stated in The State v. Paul Kundi Rape (supra). The principle stated in R. v. Dodd (supra) 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 (supra), 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 (supra) 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 authoritativeness of Dodd’s case has always been in doubt; even now it has not been sanctioned by any other case except Aige Kola (supra). Subsequent to Aige Kola, the following cases disapproved of the proposition advanced in Dodd:

N2>(a)      The State v. Tom Morris [1981] P.N.G.L.R. 493, per Miles J at 494.

“It was suggested by Mr Formosa that there was a third alternative, namely that I should acquit the accused on the basis that even though I may not have heard all the evidence (because the accused still had the opportunity to present his case) I should have a reasonable doubt as to this guilt. This submission was said to flow from the judgment of Kapi J in The State v. Aige Kola [1979] P.N.G.L.R. 620. I do not read the decision in that way. His Honour refers to grave doubts (my emphasis) which are considerably different from a reasonable doubt. His Honour also found that the evidence would not improve whether the accused gave evidence or not. I cannot make such a finding in the present case.

It would be quite inappropriate to consider whether I have a reasonable doubt at the close of the prosecution case. If the decision were that I was left in no reasonable doubt at this stage, the burden of proof would in effect shift to the accused who would then have to raise the doubt himself. That of course is in the face of clearly established principles of criminal law.”

N2>(b)      The State v. Lupam Lau & 3 Others (Unreported National Court judgment N309(M) dated 16 May 1981), per Pratt J:

[His Honour then set out the quote appearing at 294-295 infra.]

N2>(c)      The State v. Delga Puri and Tapri Maip [1982] P.N.G.L.R. 395 at 396 I said:

“... Mr Kopunye however submits that even if there is sufficient evidence, I should now decide whether or not the evidence established beyond reasonable doubt the guilt of the two accused. This submission is based on what Kapi J (now the Deputy Chief Justice) said in the case of The State v. Aige Kola [1979] P.N.G.L.R. 620. In that case his Honour said at 622:

‘The principle stated in R. v. Dodd [1971-72] P. & N.G.L.R. 255 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 (supra) 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 (supra), 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’.”

and at 398:

“Kelly J in R. v. Dodd [1971-72] P. & N.G.L.R. 255 thought there was such a discretion and his Honour relied on the case of Benney v. Dowling [1959] VicRp 41; [1959] V.R. 237, a judgment of a single judge (O’Brien J) of the Victorian Supreme Court. With respect, O’Brien J did not advance any such proposition. What he said appears on p. 242 of his judgment does not say what Kelly J said in Dodd’s case. It really is a case which supports the principle in The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96. In fact in Paul Kundi Rape’s case O’Leary AJ was of the opinion that Dodd was a case where the trial judge thought there was insufficiency of evidence. I think it states what is known as the second leg of Paul Kundi Rape that is, what that authority supports rather than that a judge has a power to determine whether the State has proved its case beyond reasonable doubt at the end of its case without calling upon the defence or without finding out whether the case has finished or not from both sides.

In fact, in Paul Kundi Rape O’Leary AJ said as follows at 99:

‘In support of his argument Mr McWalters referred me to a decision of Kelly J in R. v. Dodd. In that case, his Honour held that there was a case to answer, but nevertheless went on to acquit the accused on the ground, as he put it, that “on the Crown case it is not possible for me to be satisfied beyond reasonable doubt of the guilt of the accused”. I have no doubt that the learned judge was there applying the true principles in that case, but, with respect I think that to express the matter in that way is to be misleading and that it does tend to obscure what I, at least, perceive those true principles to be.

I was also referred in the course of argument, to the decision of O’Brian J in Benney v. Dowling a decision to which Kelly J himself referred in Dodd’s case, I think that that case gives direct support to what I have said above. There the learned judge drew a clear distinction between the two questions I have referred to. At 242 of what he said:

“‘That proposition’(i.e. the proposition in May v. O’Sullivan as to the basis of a no case submission) in my opinion was never intended to carry with it the proposition that a magistrate has no discretion to say at the end of the informant’s case whenever there is, technically speaking, evidence upon which the defendant could lawfully be convicted that he does not want to hear the defendant but will dismiss the information.”

And a little later on he said:

“It is common practice both in courts of petty sessions and in trials before a jury that at the end of the case for the informant or prosecution, although the evidence as it stands might justify a conviction, for the magistrate or a jury, very often at the suggestion of the trial judge, to say that he or it does or do not require to hear any evidence for the defence and to acquit at that stage.”

In my view the present case is not one in which there is such an insufficiency of evidence that a reasonable jury ought not to convict on it, and therefore I am not prepared to acquit at this stage.’

In Aige Kola the trial judge also placed reliance on R. v. Falconer-Atlee (1973) 58 Cr. App. R. 348, a decision of the Criminal Division of the English Court of Appeal (Roskill L.J and Neil and Mars-Jones JJ). This case does not support the proposition advanced in Aige Kola and Dodd. In Falconer-Atlee (supra) the Court said, at 357:

‘This Court has repeatedly said in recent years that this practice should not be followed.’ (I.e. the practice of judges directing juries not to convict because of insufficiency of evidence etc.). ‘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. If the judge is not prepared to stop the case on his own responsibility, it is wrong for him to try and cast the responsibility of stopping it on to the jury.’

I pause here to point out that the English position on the point expounded in Falconer-Atlee (supra) is yet to be settled. In R. v. Barker (1975) 65 Cr. App. R. 287 it was held that the trial judge had no power to stop the trial because he thought that inconsistencies in the prosecution’s evidence made it unsafe to convict. Then two years later in R. v. Mansfield [1978] 1 All E.R. 134; [1977] 1 W.L.R. 1102 another Court of Criminal Appeal distinguished Barker (supra) and held that it was open to counsel, at the end of the case for the prosecution, to invite the trial judge to stop the case because conflicts in the evidence made a conviction unsafe.

These cases, however, did not deal with the question whether at the end of the case for the prosecution, without calling on the accused, the trial judge can or cannot determine that the prosecution has proved its case beyond reasonable doubt.”

I said later in the case at 401:

“It would be wrong, in my view, for a judge to decide, after the prosecution’s case whether or not he is satisfied beyond reasonable doubt of the guilt of the accused half way or less through the case or may be before all evidence is before him. Otherwise we would end up with the situation that in a trial a judge decides, at the close of the case for the prosecution and on the invitation of the defence, that the prosecution has proved its case beyond reasonable doubt. Having made this finding then, is the onus to be reversed and the defendant required to call evidence to rebut the finding? This would, of course, be contrary to the Constitution, s. 37(4)(a).

The proper time for a Judge to consider whether or not the State has discharged the onus of proving its case beyond reasonable doubt is either after the State has closed its case and the defence has indicated that it will not adduce any evidence at all or after both the State and the defence have adduced evidence.”

It has always been one of the established principles of criminal law that the question of whether or not the prosecution has established its case beyond reasonable doubt be determined when (and only when) the decider of facts has all evidence before him/her. I see no reason to consider changing this well established principle.

My answers to the three questions are as follows:

N2>(1)      The principle is discussed in The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96 and it is simply this: If, after the close of its case the State has failed to adduce evidence in support of one element of the offence charged, there is no case for the accused to answer and as a matter of law he/she must be acquitted.

N2>(2)      Yes, there is a discretion in a trial judge to stop a case although there is some evidence adduced by the State in support of each element of the offence charged. The principle is also discussed in The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96. This discretion may be exercised in a case where there is a mere scintilla of evidence that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.

N2>(3)      No.

KAPI DCJ: I have already published my views on the proper issues that are involved in a no case submission. See The State v. Aige Kola [1979] P.N.G.L.R. 620, The State v. Roka Pep [1983] P.N.G.L.R. 19. It is fundamental to the issues that questions of law are for the judge of law, and questions of fact are for the judge of fact.

I consider the following to be a neat approach to the issues:

N2>(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).

N2>(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 [1955] UKHL 3; [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.

The question of law is determined on the assumption that the primary facts, which favour the prosecution case, are true. In other words, the prosecution case is taken at its highest. On this assumption, the question is posed: would a judge of fact convict on the assumed evidence? All of this is hypothetical. A judge is not dealing with actual facts.

Let me illustrate. Assume A is charged with wilful damage to property, namely a car. Two witnesses are called, B and C. B says that at about 7.30 p.m. he was with C drinking in the bar when they saw A break the windscreen of a car. He says there was a strong security light and he could see A clearly. Witness C gives evidence to the same effect. The manager of the club, D, is called to give evidence that it was his car that was damaged. However, in cross-examination, the manager says that there had been a security light but it had not been working for about six months. That it had not been working on this night. Without the light, it is virtually impossible to see anyone in the car-park. It is also shown, through his evidence, that B and C had fought with A the previous week and that they are not on good terms, thus establishing a motive for lying.

For the purpose of deciding the question of law, a judge must ignore the inconsistency of the evidence relating to the security light and must not question the credibility of the State witnesses. He must ignore any motive for lying. In the example given, a judge needs to assume that there was a security light and that B and C could recognize A. That is taking the prosecution evidence at its highest. The question is would a judge of fact convict on the assumed facts? When this question is posed, the question of degree of sufficiency of evidence comes in. A judge of fact could not convict on the assumed facts unless he is satisfied to the required degree in a criminal case, i.e. to a degree beyond reasonable doubt. As a matter of law, that is the requirement in a criminal trial. See article by Glass J The Insufficiency of Evidence to Raise a Case to Answer (1981) 55 A.L.J 842. Lord Diplock stated the same test when interpreting the statutory provisions in Singapore in Haw Tua Tau v. P.P. [1981] 3 W.L.R. 395 at 404:

“... 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?’ ...”

On the facts assumed in the example given, a judge of fact would have no difficulty in convicting. There is no basis upon which the trial could be stopped on these facts.

However, in the example given, if B and C said there was no security light but from lights coming from the bar which were some distance away, they could just see a man which had a hair style like A and they were quite convinced on that basis it was A. Taking this evidence at its highest, a judge of fact could not convict to the required degree. Identification is not satisfactory. There is insufficient evidence. This would be the only reason for a submission made to stop the case. This does not mean that he must stop the case. A judge has a discretion to consider whether he should stop the case now or hear more evidence, if any is forthcoming from the accused.

This is not a “no case” submission. There is already a case to answer. It is a submission to stop the case. It should be exercised at the discretion of a judge. How this discretion should be exercised cannot be defined. An important consideration would be to have regard to the relative weakness of the State case. In some cases, a judge may feel he should hear more evidence, in others he should stop the trial. Each case will be treated on their own facts. Lord Lane CJ acknowledged this discretion in R. v. Galbraith [1981] 1 W.L.R. 1039 at 1042:

“There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.”

At this stage, weighing of evidence is very much involved. However, weighing of evidence is based on the assumed facts. A judge is concerned with sufficiency of evidence on the assumed facts. If a case is allowed to go on at this stage, it does not mean that the guilt of the accused is decided once and for all and that the onus of proof is reversed so that he must give evidence to prove his innocence. The question of primary facts are yet to be determined. In the example given, the credibility of witness B and C are yet to be determined as against witness D. On that score B and C may no be believed and A could not be found guilty on that basis. A judge should keep his mind open on these questions of facts. See Haw Tua Tau v. P.P. [1981] 3 W.L.R. 395 at 402-403.

The third leg, which I developed in The State v. Aige Kola [1979] P.N.G.L.R. 620, is a pure question of fact and is concerned with primary facts. This involves a process of assessing the witnesses. As I have pointed out in my published opinions, this discretion can only be exercised in very clear cases. In my opinion, this principle can be accommodated in what Lord Diplock said in Haw Tua Tau v. P.P. (supra) at 402, when discussing the presumption of primary facts which the court must act on, where he makes the distinction in the following words:

“... unless it is inherently so incredible that no reasonable person would accept it as being true,....”

To do this is to assess the extent to which a witnesses’ evidence is to be accepted as proof of primary facts. When it is rejected in the sense described by Lord Diplock, it can only be rejected by a process of assessing the credibility of the witness. In my view, this is a sensible discretion to have and should obtain here in this jurisdiction. The discretion relates to the question of whether a witnesses’ evidence on primary facts should be rejected. As this clearly involves a question of pure fact, the discretion must be exercised sparingly and only in very clear cases. This is what I attempted to say in my previous decisions. In the final result, when evidence of a witness is rejected, there is no evidence and the situation becomes as in the first leg. In my view it was in this context that Lord Diplock put the two tests together in Haw Tua Tau v. P.P. (supra) at 403:

“If there was no evidence (or only evidence that is so inherently incredible that no reasonable person could accept it as being true) to prove anyone or more of those essential elements, it is the judges duty to direct an acquittal, for it is only on evidence that juries are entitled to convict,...” (Emphasis added.)

N1>Answers (1)   Is there any evidence at all of all the essential elements? Questions of credit and weight are ignored. If there is no evidence to establish an element of the offence charged, there is no case to answer. If there is evidence of all elements, there is a case to answer. This is the end of the proper no case issue.

N1>(2)      Yes, there is a discretion. This arises when the evidence is weak or vague, or inconsistent with other state evidence. Matters of credit, veracity and accuracy of witnesses relating to primary facts are ignored. The prosecution evidence on primary facts are accepted as accurate and true. Would the assumed facts establish the case against the accused?

N1>(3)      Yes, there is further discretion to stop a case where a witnesses’ evidence is so inherently incredible on the primary facts that it cannot be accepted by a reasonable person. This discretion must be exercised sparingly.

ANDREW J: I agree with the judgment of the Chief Justice and with the reasons of Pratt J In my opinion also, the law was correctly stated in The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96.

I would answer the questions as the Chief Justice has answered them.

PRATT J: This is a reference by Kapi DCJ under s. 21 of the Supreme Court Act (Ch. No. 37) requesting consideration of the principles involved in a “no case” submission. If anyone were in doubt as to the complexity, contradiction and confusion which has surrounded the law of “no case” it is only necessary to read through the learned article by Mr Justice Glass entitled The Insufficiency of Evidence to Raise a Case to Answer delivered firstly at the 1981 Judicial Conference and reported now at (1981) 55 A.L.J 842. I feel I too have added somewhat to the uncertainty (e.g. The State v. Lupam Lau, (Unreported National Court judgment N309 (M) dated 16 May 1981) but having now had the benefit of full submissions and greater time for reflection, I prefer to try a fresh approach to the matter rather than be affected by earlier views expressed by me at nisi prius.

The most recent decision on the point which has some relevance to the law in Papua New Guinea is that of the Privy Council in Haw Tua Tau v. P.P. [1981] 3 W.L.R. at 402-403. Although such decision is not definitive of the common law of England in 1981, and probably therefore at Independence, it is of course a highly persuasive authority until the House of Lords decides otherwise. It seems to me that the reasoning and conclusion expressed in that case are basically similar to another decision handed down about the same time by the Court of Criminal Appeal in R. v. Galbraith [1981] 1 W.L.R. 1039. In short, if one combines the two decisions, I think one can fairly say that we have the most recent dissertation on the state of the law on the “no case” submission expressed within the content of United Kingdom law.

At the present juncture I wish to leave aside from consideration three decisions of single judges in this country. The first is the judgment in R. v. Dodd [1971-72] P. & N.G.L.R. 255 where submissions based on the onus of proof and satisfaction beyond reasonable doubt, were first introduced and left dormant for many years; the second, namely The State v. Aige Kola [1979] P.N.G.L.R. 620 where Kapi J (as he then was) re-introduced the concept of satisfaction beyond reasonable doubt and created, in my respectful view, a third category of “no case”; and finally the decision of Kearney DCJ in The State v. Lasebose Kuriday (Unreported National Court judgment N300 dated 18 June 1981). I note that several judges have placed differing interpretations on Lasebose (supra) and that his Honour was in that case dealing with a submission which was clearly not the normal “second leg” of the no case submission but was indeed the “new leg” suggested by Kapi J (as he then was) in Aige Kola (supra).

There can be no doubt that where proof of an essential element of an offence has failed, an application for a ruling of “no case” at the conclusion of the prosecution evidence would always be upheld. An example is where, on a charge of breaking, entering and stealing, the prosecution has failed to adduce any evidence as to a breaking. The difficulties stem from the next stage namely, where there is some evidence, what has been called a “scintilla of evidence”, but the evidence is so slight that it would be an insult to anyone’s intelligence to expect that a conviction would follow, to expect that such evidence would be accepted as material worthy of consideration in the light of its nebulous and tenuous nature.

With great respect to Mr Justice Glass, where evidence of this character exists, it should not be suggested that the test of reasonable doubt enters into the field at all. In the circumstances that I have outlined, the state of the evidence is such that it simply should not go to any jury. It is not a matter of the jury not being satisfied beyond reasonable doubt, it is rather a matter that a jury (or tribunal of fact), considering all the material which has been put forward up to the end of the prosecution case, would not have sufficient material upon which to base a conviction — that is, there is insufficient meaningful evidence. The situation is not a rarity in practice. Perhaps the most unrealistic but clear example of this would be a case where the one and only prosecution witness admits during cross-examination that the whole of his evidence-in-chief has been one pack of lies because it has been his intention to do harm to the accused, and for this reason he has brought a false charge against him. Now strictly speaking, one could say that the evidence still has to be weighed in that his evidence-in-chief is weighed against his withdrawal or retraction of that evidence in cross-examination. It would be the height of absurdity in my view for such a case to go any further. Indeed, it would make the administration of the criminal law a farce.

One of the more recent cases illustrating the problem of arriving at a proper balance between not permitting matters to go ahead and not interfering with the jury’s functions, is that of Young [1964] 1 W.L.R. 717. In that case, the learned trial judge concluded his summing up of the prosecution case, but did not proceed to a summing up of the defence case because of the lateness of the hour. Instead he adjourned the court over the weekend and advised the jury not to discuss the matter even amongst themselves until he had resumed on Monday and summed up on the defence case. At the conclusion of his summing up on the Monday, the foreman of the jury rose and without any consultation with the other members of the jury stated that they had found the accused guilty as charged. It became obvious that the jury had indeed made up their minds before they had come in to court that morning. What is particularly significant about the case however, from the point of view of our present problem, was that at the close of the prosecution case, the learned judge had invited the jury to stop the case. Parker CJ presiding over the Court of Criminal Appeal, criticised the practice which had arisen of inviting juries or judges to stop the case but observed (without formally ruling), that “judges should more often take the responsibility on themselves of saying to the jury that there is no satisfactory evidence upon which they could convict, and accordingly direct an acquittal”. See also Atkinson J in R. v. Hemmings (1939) 27 Cr. App. R. 40 at 49 referred to in Calvert’s Article “No Case to Answer”, 1958 Crim. L.R. at 237. Another point this case highlights, is that once a jury has been sworn then it must return a verdict. “Once a defendant has been given in charge to the jury, a verdict of the jury should be taken even though in the course of the proceedings the prisoner confesses his guilt.” (Archbold’s Criminal Pleading, Evidence and Practice (39th ed., 1976) at par 441). The same situation must obviously apply to those cases where there is an absence of proof in an essential element of the charge. In such circumstances the learned trial judge will direct the jury to acquit because there is insufficient evidence before them upon which to deliberate. The question of “being satisfied beyond reasonable doubt” never arises. The case is in effect taken from the jury, not because they could not be convinced beyond reasonable doubt, but because there is insufficient evidence. It is true that the jury must technically return a verdict but such a verdict “by direction” is clearly different from a verdict “by decision”. Putting this another way, at the end of all the evidence, and only at that stage, may a jury consider its verdict. Before it can convict it must be satisfied beyond reasonable doubt. The type of evidence which we are discussing however is of such a nature that it could not afford a basis for a jury to form a reasonable suspicion that the accused was involved in the matter, let alone convince them beyond reasonable doubt. It seems to me that the introduction of the “beyond reasonable doubt” test into the equation, because it employs terminology at a point in time in which such examination of the evidence is not warranted, creates unnecessary complexity and confusion. I suppose to some extent if it can be said that the greater includes the lesser, then if there is no sufficient evidence for a suspicion to be raised, there is certainly insufficient evidence to prove beyond reasonable doubt. It is rather like saying in order to have a house you must have many bricks, instead of saying one brick will not make a house.

It seems to me that the introduction of this test however adds nothing to a solution of the problem. To propose a test along the lines that the evidence is such that no reasonable jury could convict because a jury can only convict when satisfied beyond reasonable doubt, and then claim that such position is the same as saying that the present state of the evidence would not allow them to convict at all, is missing the point. For the point is not a question of proof beyond reasonable doubt. The point is that the evidence is of such a nature that it must be classified of a calibre which should receive but scant consideration, let alone convince a jury beyond reasonable doubt.

In my view the same proposition was intended by O’Leary AJ in Paul Kundi Rape’s case [1976] P.N.G.L.R. 96 at 99:

“When it is said,... that the evidence is such that no reasonable jury ought to convict on it, I do not think that is the same thing as saying that, on the evidence as it stands, a jury could not be satisfied beyond reasonable doubt as to the guilt of the accused. As I have said, for the purpose of considering either the present question or the question as to whether there is a case to answer, one does not look to see whether the prosecution has proved its case beyond reasonable doubt. 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.” (Emphasis added.)

His Honour then goes on to say that where there is no evidence then the accused should not, as a matter of law, be called upon to answer. However, where there is insufficient evidence as explained by his Honour, then the accused may, as a matter of law be called upon to answer, but there is a discretion as to whether he should be called upon or not, or the matter taken from the jury. In the context of our own legal situation, that is another way of saying whether the judge should stop the case at the end of the prosecution evidence because of its unsatisfactory nature. This is the test which most judges here have adopted during trial cases, and in principle has been followed by me in this judgment.

I believe some assistance for a proper approach may be derived from examining those authorities in which the principle of “no case” originally emerged. As pointed out in Mansfield [1977] 1 W.L.R. 1102 at 1106, the rule developed at a time before it was possible for an accused person to give sworn testimony. This factor was no doubt of considerable significance. One of the earliest reported references to the principle is found in the decision of Jewell v. Parr [1853] EngR 563; (1853) 13 C.B. 909. Like a number of other authorities dealing with the no case aspect towards the middle and latter part of the last century, the case is a civil one, but has equal application to criminal trials, as both were concerned with the relationship between judge and jury. The Court in Jewell’s case consisted of Jervis CJ and Maule, Cresswell and Talfourd JJ Maule J had this to say at 915-916:

“Perhaps it cannot with strict propriety be said, where the facts proved are not inconsistent either with the affirmative or the negative of the allegation sought to be established, that there is no evidence to go to the jury. That would exclude many cases where no doubt there would be evidence, though slight, which ought to be submitted to the jury. Applying the maxim de minimus non curat lex, when we say that there is no evidence to go to a jury, we do not mean that there is literally none, but there is none which ought reasonably to satisfy a jury that the fact sought to be proved is established.”

The judgment was specifically referred to by Willes J in Ryder v. Wombwell [1849] EngR 699; (1868-69) L.R. 4 Exch. 32 at 39. There his Honour, although initially considering a question of whether there was “any evidence upon which a jury could find in favour of the party upon whom the onus lies”, in order to determine a non-suit or verdict by direction, nevertheless observed:

“It was formerly considered necessary in all cases to leave the question to the jury if there was any evidence, even a scintilla, in support of the case; but it is now settled that the question for the judge (subject of course to review) is, as stated by Maule J in Jewell v. Parr (1853) 13 C.B. at 916, not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established. In Toomey v. London and Brighton Railway Company 3 C.B. (N.S.) at 150, Williams J enunciates the same idea thus: ‘It is not enough to say that there was some evidence ... A scintilla of evidence ... clearly would not justify the judge in leaving the case to the jury. There must be evidence on which they might reasonably and properly conclude that there was negligence,’ — the fact in that case to be established.”

Mr Justice Maule then goes on to cite from another interesting authority Wheelton v. Hardisty 8 E. & B. at 232 decided in 1858, in which the majority of the Court including Willes J agreed that the Exchequer Chamber had “properly put an end to what had been treated as the rule, that a case must go to the jury if there were what had been termed a scintilla of evidence”. It is apparent therefore that in earlier times it had been the view that where there was any evidence at all, the case must go to the jury, but this attitude was finally scotched by the Exchequer Chamber. One may well be forgiven for coming to the conclusion that “nothing is new” and that on one interpretation of the most recent United Kingdom authorities we seem to have come full-circle to a pre-1853 position.

Before leaving the last century, I would like to refer finally to a Court of Criminal Appeal judgment during the year 1865. The Court comprised Erle CJ Channell B., Blackburn, Mellor and Smith JJ delivering judgment in R. v. Smith, (1865) 10 Cox C. 82. At 96 Blackburn J says:

“If there had been such evidence, I think that it would support a conviction. But though there is some scintilla of evidence, that ought not, especially in a criminal case, to be left to the jury; and I think the evidence, upon the whole, does not amount to more than a mere scintilla.”

It seems the remainder of the court was in agreement with the statement of principle set out by Blackburn J

Although it is generally accepted that the notion of stopping the case on the ground of “unsafeness” crept into English practice after the passing of the Criminal Appeal Act in 1966, yet the former view that such stoppage should occur only where there was no evidence upon which a jury properly directed could properly convict still held considerable sway. It is this second test which in my view had been enunciated by members of the Queen’s Bench Division when Lord Parker CJ set out on behalf of the other members of the court a general practice direction in the following terms: [1962] 1 All E.R. at 448:

“A submission that there is no case to answer may properly be made and upheld: (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.”

This direction, which comprises two legs, was specifically adopted by Prentice J (as he then was) in R. v. Albei Aeme and Ors in the pre-independence Supreme Court (Unpublished judgment 701 dated 31 August 1972). It covers the same areas as mentioned in The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96. His Lordship went on to say:

“Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer.”

The passage is reminiscent of the High Court of Australia’s earlier wording in May v. O’Sullivan [1995] HCA 38; (1955) 92 C.L.R. 654 at 658:

“When, at the close of the case for the prosecution, a submission is made that there is ‘no case to answer’, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law.”

Of course the High Court’s decision was primarily concerned with emphasising the principle that there is no shifting of the onus of proof and it is to that end their Honours’ words are directed.

In seeking to explain the implications of May v. O’Sullivan, O’Brian J in Benney v. Dowling [1959] VicRp 41; (1959) V.R. 237 at 242, introduced the concept that although the evidence “might justify a conviction” nevertheless the court may well have formed the view either sitting itself as a tribunal of fact or by means of a jury intimation to the trial judge that they intended to acquit, before the point at which the defence is called upon to elect.

Having now had the advantage of recent developments and re-examining this issue more closely, I no longer feel that I can continue with a complete adoption of O’Brian J’s wording of the test. This is not so much from the point of view of the principle enunciated by his Honour, but more because the wording he uses makes it difficult to establish a precise cut-off point in order to avoid an invasion into the realm of the jury. That this has become a steadily increasing practice is well illustrated by some of the more recent cases pointed to by the court in Mansfield (1977) 65 Cr. App. R. at 281 and the article by Glass J To avoid this tempting extension of the test I have therefore modified my position. Nevertheless I do not consider that such modification carries with it a departure from the basic principle set out in Paul Kundi Rape [1976] P.N.G.L.R. 96 despite the reliance by O’Leary AJ on O’Brian J for the simple reason that the Benney v. Dowling test is open to both a narrow and wide construction. But there are later (and for that matter some earlier) authorities which use terminology which I now prefer to follow whilst at the same time re-adopting the principle outlined in Paul Kundi Rape (supra).

It is clear from the words of Lord Lane CJ in R. v. Galbraith [1981] 2 All E.R. 1060 at 1061 that the present day developments in the United Kingdom were considerably affected by the wording of part of the 1966 Criminal Appeal Act. His Lordship summarizes two schools of thought thus at 1061.

N2>“(1)    that the judge should stop the case if, in his view, it would be unsafe (alternatively unsafe or unsatisfactory) for the jury to convict:

N2>(2)      that he should do so only if there is no evidence upon which a jury properly directed could properly convict.”

His Lordship then goes on to point out that “a balance has to be struck between on the one hand a usurpation by the judge of the jury’s functions and on the other, the danger of an unjust conviction”. An excellent example of an unjust conviction may be found in R. v. Young [1964] 1 W.L.R. 717 which I referred to earlier in this judgment. It is also useful to add that the unsafe and unsatisfactory aspect, whilst gaining ascendancy in the United Kingdom and in some of the Australian States is not the general test which has been applied in Papua New Guinea, where the tendency has been to remain with the pre-1966 position in the United Kingdom and elsewhere.

At 1042 of Galbraith [1981] 2 All E.R. 1060, Lord Lane sets out the following as a proper approach for a trial judge on a no case submission:

N2>“(1)    If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.”

(This is what I have called the first leg of the Paul Kundi Rape test.)

N2>“(2)    The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.

(a)      Where the Judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.

(b)      Where, however, the Prosecution evidence is such that its strength or weakness depends on the view to be taken of the witnesses’s reliability, or other matters which are generally speaking, within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred.”

Clearly therefore, the court has rejected the unsafe or unsatisfactory test in favour of the situation where a lack of evidence is such that a jury could not properly convict. The court goes on at 1062 to make the interesting observation that “there will of course, as always in this branch of the law, be borderline cases”. I think that I may have tended to merge 2(a) and 2(b) together in what has been called the second leg of the Paul Kundi Rape test, but as will be seen I prefer to restrict the test to 2(a).

About a month after Galbraith’s case [1981] 1 W.L.R. 1039, the Privy Council handed down a decision in the matter of Haw Tua Tau v. P.P. [1981] 3 W.L.R. 395, being an appeal from the Court of Criminal Appeal in Singapore from a judgment of two judges sitting at first instance without a jury. For this reason the case has a more than ordinary interest to us. Indeed at 404 of the report, their Lordships state that the same principles are applicable, whether the criminal trial be conducted in the presence of a jury or by a judge sitting as a decider of fact and law. With this proposition I respectfully agree, for reasons which appear a little later. At the conclusion of the prosecution’s case what has to be decided is a question of law admittedly. Yet as the Council points out a little earlier what is a decision of law, nevertheless, depends on at least a minimal assessment of evidence which has been tendered in order to establish certain facts, because the court can only come to a conclusion that all the elements essential to establish the offence are present if they “were to be accepted by the jury as accurate”. The principle promulgated by the Privy Council may be found at 403 in the following terms:

“If there is no evidence (OR only evidence that is so inherently incredible that no reasonable person could accept it as being true) to prove any one or more of those essential elements,” (to establish the offence) “it is the judge’s duty to direct an acquittal, for it is only upon evidence that juries are entitled to convict; but, if there is some evidence, the judge must let the case go on.” (First emphasis added.)

There is however an intrinsic difficulty contained at the beginning of the paragraph above-cited which does not receive any great clarification in the words which follow. I refer here to the words contained in parenthesis when put alongside the requirement that when there is “some evidence” then the case must proceed. Even if one were to construe the words in parenthesis as meaning “evidence” which is so flimsy or tenuous that it cannot really be classified as “evidence” at all, there still seems to be an inherent task of weighing the evidence at least visually if not physically. Despite the example given by White J in R. v. Prasad (1979) 23 S.A.S.R. 161 at 171, I think that one example of what would be “inherently incredible evidence” occurs if a witness said one thing in examination-in-chief and not only was thoroughly discredited in cross-examination but in fact admitted that what had been said in-chief was a pack of lies. In my view such evidence-in-chief would be not only inherently incredible but would be so worthless as to constitute an insult to expect any reasonable person to accept it as true. To reach this conclusion however, there is not only an examination but an assessment of the evidence. It is this type of situation which I think is covered by the second leg of Paul Kundi Rape. This is an extreme example of the situation described by Jervis CJ in Jewell v. Parr [1853] EngR 563; (1853) 13 C.B. 909 at 915 as one where it cannot be denied that “with strict propriety . . . there is no evidence to go to the jury”. There is no doubt however that this second leg leaves itself open to possible “abuse”, in that a tribunal sitting as a judge of fact and law may well be tempted to stray into a full weighing of the evidence as opposed to a nominal weighing. It is this extension which I think was at the back of the mind of Kapi J (as he then was) in The State v. Aige Kola [1979] P.N.G.L.R. 620 when he created a third test despite what his Honour says in the judgment giving rise to the present reference. However, I rather suspect that the third test introduced in Aige Kola as being an appropriate one for persons sitting as judges without juries results from an attempt to resolve the “no-case” difficulties by approaching it from the point of testing “beyond reasonable doubt”, now championed by Glass J in his article earlier referred to. The test partly emerges from Kapi J’s acceptance of Kelly J’s adoption of the “beyond reasonable doubt” approach in R. v. Dodd [1971-72] P. & N.G.L.R. 255. I agree with Kidu CJ in The State v. Delga Puri and Tapri Maip [1982] P.N.G.L.R. 395 at 398 however, that the introduction of beyond reasonable doubt test, despite a claim to the contrary by Kelly J cannot be based on anything stated by O’Brian J in Benney v. Dowling [1959] VicRp 41; [1959] V.R. 237.

The emergence of a third test in Aige Kola (supra) has led to some confusion in my respectful belief, because it has been accepted not as a third ground but indeed the second leg in a submission of no case put before Kearney DCJ in The State v. Lasebose Kuriday (Unreported National Court judgment N300 dated 18 June 1981). The confusion I think is observable in the following extract from the judgment:

“Mr Sevua’s alternative submission is based on what has become known as the ‘second leg of Paul Kundi Rape’, that; though there is a case to answer, the court is invited to rule that the State evidence is insufficient to establish guilt beyond reasonable doubt, and, without hearing the accused, acquit her.”

Of course the submission as herein stated supplies the basis for the whole of the reasoning in Lasebose’s case. The problem however, is that counsel had completely misapprehended the second leg of Paul Kundi Rape. Such “leg” has nothing to do with establishing or not establishing guilt beyond reasonable doubt as the learned trial judge in that case made quite clear in his judgment. What counsel did either inadvertently or otherwise was to submit to Kearney DCJ not the second leg of Paul Kundi Rape but the third test introduced by Kapi J (as he then was), in Aige Kola. Nevertheless I think with respect that Kearney DCJ has summed up quite well what is in fact the second leg although I believe that his Honour may have been of the view he was dealing with the first leg and not the second. It was for this reason that I expressed some trepidation in the addendum to my Lupam Lau (Unreported National Court judgment N309(M) dated 16 May 1981 at 6) decision as it seemed to me at the time, I think incorrectly, that his Honour had in effect not only discarded the third test created by Kapi J (as he then was), but also the second leg of Paul Kundi Rape which I had taken to involve the task of making some assessment of credibility and weight. However such task is really no task at all because as Kearney DCJ expresses the test at 4 of Lasebose Kuriday:

“... it must be a very clear case, where the State evidence is so dubious, or so tainted, or so obviously lacking in weight or reliability or has been so discredited in cross-examination, it is clear that no reliable tribunal could safely convict on it.”

I repeat however that in my view this does not introduce any test “beyond reasonable doubt”. What this test does establish is that the evidence is so obviously worthless that it may be regarded almost as no evidence at all.

With great respect I too agree with both the Privy Council and the judges of this Court who have expressed a disinclination to introduce any proposition which might lead to the evidence being weighed twice — that is weighed in the sense of having to carry out some substantial task with the content of one piece of evidence, or matching it against the evidence of other witnesses. If one could perhaps use an example — if it is necessary to “lift up” the evidence in order to examine it, then I consider this is “a weighing” which goes beyond the permissible limit. Where however the evidence is in such an unsatisfactory state that it amounts to a mere phantom which on the touch would fall apart or allow the hand to pass through, in those circumstances I do not consider that a true weighing within the accepted sense of that word has taken place.

In The State v. Delga Puri and Tapri Maip Kidu CJ accepts the view that a court “should avoid creating any situation which requires any assessment of evidence beyond reasonable doubt other than at the completion of the entire evidence on the trial. There should be no double weighing”. The Privy Council has suggested in Haw Tua Tau’s case that the principle is equally applicable to those jurisdictions where there is a division between judge and jury and those where a judge sits as both decider of law and of fact.

I would adopt such proposition as suitable to the present circumstances in Papua New Guinea. First and foremost I think that any mention of assessing evidence beyond reasonable doubt carries with it an inherent danger of creating a condition of mind which may inadvertently lead to an unconscious assumption that somehow or other the onus has been reversed or at least that there is some onus passed on to the defence. This concern was clearly in the mind of Kidu CJ in The State v. Delga Puri and Tapri Maip at 401 and was also adverted to by Kearney DCJ both at 2 and 4 of his judgment in Lasebose Kuriday (Unreported National Court judgment N300 dated 18 June 1981), by Miles J in The State v. Tom Morris, at 494 and by Kapi DCJ in the judgment under reference. Whatever is decided in this Court of course applies to trial courts throughout the country from the National Court down to the most junior and inexperienced level 1 magistrate. It is essential therefore that some direction be obtained with as much clarity as possible while at the same time retaining some discretion “consonant with good sense and justice”; Minogue J (as he then was), in R. v. Wewak Resident Magistrate; Ex parte Dyer [1967-68] P. & N.G.L.R. 511 at 517; O’Brian J in Benney v. Dowling [1959] VicRp 41; [1959] V.R. 237 and in the dissenting judgment of Mohr J in R. v. Prasad (1979) 23 S.A.S.R. 161 at 177. To restrict the “no case” submission to those occasions where there was a complete lack of evidence of an essential element would in my view be consonant with neither; and is contrary to basic principle.

This Court is in a more fortunate position than many in that there is no pre or post-Independence Supreme Court authority on the subject. In addition, we may have recourse not only to the “principles and rules of common law of equity in England” (Constitution, Sch. 2.2) but also have a duty to “develop the underlying law” (Constitution, Sch. 2.4). Decisions of the Privy Council are not of course pronouncements on the “common law of England” but of the country from which the appeal arises (see for example Hood Phillips A First Book of English Law (4th ed., 1960) at 72-73). Nevertheless the ruling in Haw Tua Tau v. P.P. [1981] 3 W.L.R. 395 might be taken as a most persuasive view of the English common law particularly if it can be enjoined to R. v. Galbraith [1981] 1 W.L.R. 1039. Unfortunately the words used by their Lordships are not without interpretative difficulties and this Court must try to achieve something definitive and appropriate to the country’s circumstances.

I am aware that the attention of the Supreme Court was drawn to certain aspects of the “no-case” problem in Rosa Angitai v. The State [1983] P.N.G.L.R. 185, but the main area of argument before the court in that case centred on the defence of provocation. It was only incidentally that the “no case” submission arose. Whilst I agree with much of what Bredmeyer J says in that judgment concerning the giving of reasons on a no case submission I would not wish to set out any hard and fast rules. The overriding requirement is that a court should always give its reasons at the time of decision though it does seem desirable that reasons for a no case decision should be kept to the barest minimum unless the decision is in favour of the applicant, or all applicants if there are multiple accused. I think I may have erred in this respect in my judgment The State v. Lupam Lau (Unreported National Court judgment N309(M) dated 16 May 1981). Obviously one should scrupulously avoid saying anything which might be misconstrued or taken as a firm view on weight or credibility when the trial is to continue.

In expressing my concluded views as to the test to be applied on a “no case” submission in Papua New Guinea there are two major guiding factors. First, I do not believe the principle state in Haw Tua Tau v. P.P. [1981] 3 W.L.R. 395 has revived the law as it existed prior to 1858. Their Lordships were obviously concerned at the widening powers being created by judicial interpretation after the introduction of the “unsafe and unsatisfactory” terminology in the 1966 Criminal Appeal Act. I consider the Privy Council’s words are best interpreted in the context of the direction published by Lord Parker CJ in 1962. Second, I am still of the view that the distinction between applying a rule of law and applying a judicial discretion as set out in Paul Kundi Rape is a proper one. There are two legs to the “no case” test and I do not believe any advantage is derived from continuing the expression “no case proper” when dealing with the first leg of the no case submission or to find a case to answer as a “matter of law” but not as a “matter of discretion”. I consider the matter should be dealt with either on the first leg or the second depending on appropriate circumstances, but both legs making up the “no case” test. Accordingly, I have settled on a re-wording of the terminology used in Paul Kundi Rape (supra) for my answers to the matters raised under reference. I cannot, however, answer the questions as framed in the reference, as such wording assumes that a discretion is something over and above the “no case” test. Accordingly I would answer questions 1 and 2 in the following terms:

Answer to Questions 1 and 2:

A court in Papua New Guinea should find there is no case to answer where:

N2>(1)      there is no evidence to establish an element of the offence charged

OR

N2>(2)      there is some evidence covering the elements but it is so tenuous, or incredible or discredited that it amounts only to a scintilla, and thus could not be accepted as persuasive by any reasonable person.

Answer to Question 3:

There is no further discretion as set out in The State v. Aige Kola [1979] P.N.G.L.R. 620 and The State v. Lasebose Kuriday (Unreported National Court judgment N300, dated 18 June 1981).

KAPUTIN J: The Honourable Deputy Chief Justice has reserved a number of questions of law relating to the principles of no case submission, under s. 21 of the Supreme Court Act (Ch. No. 37) for the consideration of the Supreme Court. His Honour considered that in this jurisdiction the principles relating to no case submission are still uncertain and has therefore referred the questions for the Supreme Court to settle. The questions have already been stated by the Honourable Chief Justice.

Almost all past and recent authoritative cases on the question from other jurisdictions and all the decisions of single judges of the National Court in this jurisdiction, have already been quoted and discussed by my brother judges. However, in this jurisdiction, the practice has been to follow the principles as stated in The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96. Nevertheless, there are some aspects relating to the practice of “no case” submission that need to be clarified.

In my humble opinion, there is only one principle of the “no case” submission. This is a principle of law that the judge applies at the close of the prosecution’s case. The question that the judge asks himself is whether, on the evidence as it stands, could the accused person lawfully be convicted? If the answer is positive, the judge rules that there is a case to answer and an accused must, as a matter of law, be called upon to answer it. If the answer is negative, that is, where there is no case to answer, an accused must not, as a matter of law be called upon to answer.

This instance arises where there is no evidence at all on one or more of the elements of the charge. I use the phrase “no evidence” here to also include no other primary evidence which would enable the existence of the elements of the offence to be inferred. This is the case of the “no case” submission proper. No weighing of the evidence is involved as yet. The judge merely looks at the evidence to see if there is any evidence of the elements of the offence. If there is no evidence on one or more of the elements of the charge, then the accused shall not, as a matter of law, be called upon to answer the case, and must be acquitted there and then. There is no real problem associated with the application of this principle.

What has appeared to be the second principle of the “no case” submission, is in my view a discretionary principle only, which has evolved out of practice. And it is really a court’s discretion. The exercise of this discretion to dismiss a charge or stop the case notwithstanding, that technically, there is a case to answer is not strictly a ruling that there is no case to answer. However, it is often referred to as such, e.g. Sharp v. Hotel International Limited [1969] VicRp 12; [1969] V.R. 103 at 108; R. v. Mansfield [1977] 1 W.L.R. 1102 at 1105; [1978] 1 All E.R. 134 at 139. The effect of the exercise of the discretion is, of course, that the defendant is not called on to answer the prosecution’s case. The confusion has arisen because some consider that this discretionary principle is one of the no case submission principles proper, which it is not. In Papua New Guinea there is no statutory law on this subject. However, it has been recognized as a principle under case-law. It has been built into the principle of no case submission proper because it is analogous to its application in practice. Nevertheless, the difficulty which has till now not been resolved, is as to what test is to be applied and how does a judge make a finding of the sort of case to meet the test when exercising the discretion? Shadows still remain here and judges differ in marked degrees as to how to approach these matters. I consider that the proper test to be applied is that in the exercise of the court’s discretion, the accused could not be called on to answer the prosecution’s case, even though technically there is a case to answer, where there is some evidence but it is so insufficient and intrinsically weak or vague that no reasonable tribunal could safely convict on it.

How does a judge make a finding of this sort of case when exercising the discretion? The confusion has arisen because some judges thought that one cannot avoid actually assessing and weighing up the evidence here, which is a jury function, before deciding whether to withdraw the case. Of course, in reality it appears that one is actually assessing and weighing up the evidence. However the degree of assessment involved is not the same as the tribunal of fact would perform. The type of case that would fall under this area should really be evident and obvious on its face. It would be the sort of case where the court itself would be considering acting on its own initiative to stop what amounts to be very clearly a hopeless case or a case which has collapsed badly and would therefore be a waste of time and public expense to continue it to the end. It would require no actual weighing and real assessment of the evidence as yet. The judge perceives such cases merely by immediate apprehension by the mind without much reasoning. The degree of assessment of the evidence involved, is rather at a level of an immediate grasp of the nature of the case as it unfolds while being presented. The judge does it as a decider of law to determine whether there is sufficient evidence in law to go before the jury. This is a ruling to be decided upon the question of law. The court has not yet gone into an actual or real assessment of the credibilities of witnesses, reflection, evaluation and weighing up of the evidence, where the full cognition of the mind is at play. This is a function of the tribunal of fact and has not yet come into question when a “no case” submission is entertained. The best guide to follow is that once the judge begins stressing his mind to assess and weigh up the evidence to see whether there is sufficiency of evidence to go before the jury, he is already entering the realm of a jury function. This should indicate that the case is not one to be stopped and he must let the case proceed.

When the judge rules that on the evidence as it stands the accused could lawfully be convicted, he is basing it merely on the evidence as it stands in law. It is not put that on the evidence as it stands the accused ought to be convicted because such would be implying a determination of a question of fact, which the judge has not gone into yet. If the judge rules that there is a case to answer, and the defence simply gives no evidence and closes its case, it does not seem incongruous that the court would either find him guilty or acquit him on the evidence which it has earlier ruled “could only be convicted of it”. What happens is that as all the evidence has now been called and the whole case has closed, the judge then deals with the questions of fact which involve a more stringent and high standard of proof, which is, proof beyond reasonable doubt. If the judge finds the accused guilty on the same evidence, it simply means that it also meets the tribunal of fact test of proof beyond reasonable doubt. It has to be approached as such to avoid any impression in the mind of the accused that a ruling on the “no case” submission does not imply that he is already guilty and that it is now up to him to prove his innocence. To avoid all these, it is of fundamental importance to a fair trial that the judge sitting also as a tribunal of fact should only deal with the question of fact once, which should be at the close of the trial, and not more than once.

The circumstances under which a ruling under the discretionary principle of the “no case” submission would be made are varied. They could not really be categorized as each case depends on its own circumstances which would be different in each case. There is also the danger that if one attempts to do so that one would be entering the province of the tribunal of fact. And this is where I presume the third principle of the “no case” submission has cropped up. Experience has shown that this discretionary principle merely encompasses the many varied instances that could be tested under it. With the greatest respect, the third leg expressed in The State v. Aige Kola [1979] P.N.G.L.R. 620, has, in my opinion, come about as a result of misinterpretation of the way the principles were stated in R. v. Dodd [1971-72] P.N.G.L.R. 255. The seed of confusion and misunderstanding was planted in that case. To express the principles in that way is apt to be misleading in that it does tend to obscure what the true principles be. The third principle has also come about, I think, from over refined analysis of the principles involved. In all there is no such third leg in the principles of a “no case” submission and there should not be one created. To do so would be to usurp the functions of jury and should not be done at the close of the State case, and it is wrong. It will only create more confusion especially for counsel as to which of the three legs they would place their “no case” submissions on. In any case it would be an open invitation to counsel always to seek the exercise of the third principle, when really the case should have been allowed to continue. One serious implication of it would be that cases could be prematurely stopped. But any case that may be considered under the third principle could very well be considered under the second principle which is a discretionary one envisaged to be exercised in such cases. Further, a lot of confusion has also arisen over the concept of a “no case” submission because different judges have explained it in different ways using inappropriate terms and phrases like “proof beyond reasonable doubt” when viewing the evidence at the close of the prosecution case, when such question has not yet arisen, and so forth.

In my view the exercise of the discretionary power is such that even if the evidence is so insufficient and intrinsically weak, if the judge feels that it will still allow the case to go on he can do so. There is nothing to stop him from doing so. It is not mandatory that where the evidence is so insufficient the court must stop the case there and then. And it is not a matter for appeal either. This must be because where there is a case of insufficiency of evidence, an accused may still as a matter of law be called upon to answer it, but that there is a discretion in the judge either to withdraw the case from the jury or not. It would become a matter of appeal only (on the converse ruling) where the judge wrongly considers that the evidence is insufficient and stops the case but in fact there is sufficient evidence there to continue the case, that is, to require the defence to answer. And it would be the State which would have the right of appeal here and there is good sense for this. It will be a check against abuses of this discretionary power. The magistrate courts should be wary when exercising this discretionary power because of the inherent dangers involved with it as for instance, to go straight into performing the function of tribunal of fact when such question has not yet come into play. There are numerous instances of this already, which have come to light on appeals to the National Court.

The main rationale behind the “no case” submission principle proper, and the discretionary principle, as I see it, is that it is the responsibility of the judge as a decider of law to see that there is a case established by the State before the accused can be required as a matter of law to answer. But whether he gives evidence or remains silent that is a different matter. The point is that the ruling is made as a matter of law. Such stems from the fundamental principle of the presumption of innocence. And it has to be approached as such so that no man should be subjected to stand trial on a false charge. In a jury system where members of the jury are just laymen with no legal training the discretionary power has been utilized to a greater extent to control the jury by withdrawing a case from it because of the danger that it would be unsafe for any jury to convict on the evidence as it stands. We do not have this problem in our jurisdiction because we do not follow the jury system. In our system of criminal justice, the judge performs a dual function as a tribunal of fact as well as of law. So we do not have the complexity involved as in the jury system. And I think any reference to jury in the “no case” submission should now be dropped because it will only be creating further confusion. Our system is simpler in that in the “no case” submission it is the same judge who decides whether the case should be withdrawn or to continue until all the evidence has been called. And a judge has no real difficulty as he performs his dual roles.

In summing up, I have come to conclude that there is only one principle in the “no case” submission, which is the proper principle involved. The other principle which is entertained at the “no case” submission stage is a discretionary principle only. The two principles have however been amalgamated into the branch of the law involved in the area of “no case” submission. Nevertheless, they are quite distinct and should be kept separate in their application for the obvious reasons already stated. In our jurisdiction we should approach the “no case” practice as such to avoid confusion and lessen the dangers of encroaching into the function of tribunal of fact which would tend to undermine the adversary system, which is the basis of our criminal justice system.

My answers to the three questions are as follows:

Question 1:

There is only one principle of the “no case” submission. The test is that where there is no evidence (also includes no other primary evidence which would enable the existence of the elements of the offence to be inferred) at all to one or more of the elements of the charge, upon which the accused could lawfully be convicted, the accused shall not, as a matter of law, be called upon to answer the case, and must be acquitted there and then. But if there is a case to answer the accused must, as a matter of law, be called upon to answer it.

Question 2:

Yes, there is a discretion in the judge to stop a case (withdraw it from the jury) even though there is some evidence of the case, which, as a matter of law the accused could still be called upon to answer. But this is merely a discretionary principle, which has appeared in practice to be the second principle. The exercise of this discretion to dismiss the charge or stop the case notwithstanding that technically there is a case to answer is not strictly a ruling that there is “no case” to answer. However, it is often referred to as such. The effect of the exercise of the discretion is, of course, that the accused is not called on to answer the prosecution’s case. The confusion has arisen in that some consider this discretionary principle is one of the “no case” submission principles proper, which it is not. However, it has been built into the principle of “no case” submission proper (above) and has often been referred to as such because its application is analogous in practice. Nevertheless, they are quite different and should be kept separate in their application.

The test to be applied is that in the exercise of the court’s discretion, the accused could not be called upon to answer the prosecution’s case, even though technically there is a case to answer, where there is some evidence but it is so insufficient and intrinsically weak or vague that no reasonable tribunal could safely convict on it.

Question 3: No.

Questions answered accordingly

Lawyer for the State: L. Gavara-Nanu, Public Prosecutor.

Lawyer for the defence: A. Amet, Public Solicitor.