State v Kabai [1997] PGNC 72; N1610 (13 June 1997)

Unreported National Court Decisions

N1610

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 198 OF 1997
THE STATE
v
HERMAN KABAI

Wewak

Batari AJ
12-13 June 1997

CRIMINAL LAW - Practice and Procedure - No case submission - Whether or not case to answer - Question of law - Sufficiency of evidence - Question of discretion.

Cases Cited:

The State v Paul Kundi Rape [1976] PNGLR 96

The State v Delga Puri & Anor [1982] PNGLR 395

The State v Tom Morris [1981] PNGLR 893

The State v Lasebose Kuridey [1981] N300

Ruling On No Case Submission

This is a ruling on a ‘no case to answer’ following application by the accused.

Counsel:

J Wala for the State

C Malenki for the Accused

13 June 1997

BATARI AJ: At the closerosecutionution case, Defence Counsel made a no case submission. I infer that the application to stop the case at this stage was in regard to both counts pe charged on the Indictment. Shouldcept the appe applicpplication, the end result would be that the accused would be acquittedoth counts. The complcomplainant is toid to be under the age of 16 years and the indictment does not state unlawful carnal knowledge as the alternate to the rape counts. Whether the accused would have a case to answer on any alternate count is not clear at this stage and there has been no submission on the point. So I doaddress that issue ssue if it arises in this application.State’s evidence is e is made up of sworn evidence from the complainant and her mother and documentary evidence in the form ofaccused’s record of i of interview, statements of police investigators; a medical examination report on the complainant’s state of pregnancy and copy of her Baptism Certificate.

I have had the opportunity to read all the evidence as it now stands on each count of rape charged on the Indictment. I remyself that at this stis stage, I must consider the evidence only in the light of settled principles of ‘no case to answer’, as enunciated in the case of The State v. Paul Kundi Ra976] PNGLR, 96. The principinciple says it is inappropriate to consider whether the Court has a reasonable doubt at the close of prosecution’s case. Thato say, I am not requirequired to examine the evidence in minute detail and apply it on a higher standard. To do so would lead terrorerror as warned by the late Chief Justice Kidu in the case of The State v. Delga Puri and Tapri Maip [1982] PNGLR, 395 where His Honour stated at p. 401:

“It would be wrong...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 the 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 prove case beyond reasonable doubt. g made this findifinding ting the, 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 of s.37(4)(a).”

See also The State v Tom Morris [1981] PNGLR, 493 and Han Tua Tau (1981) 3 All ER 14.

Paul Kundi Rape’s case sets out two princi The first is the “no20;no case to answer” rule which involves the question of law of whether the evidence as it stands at the end of prosecution case either directly or indirectly make out every element of the offence for which the accused is charged. The test is not whethethe the evidence as it stands the accused ought to be convicted, but whether on the evidence as it stands, he could be lawfully convicted.

Beyond this is the rule extended over the period which gives the judge a discretion to stop the case even if there are evidence supporting all or some of the essential elements of the offence. Under this iple commonly rnly referred to as the second leg of Paul Kundi Rape’s case, the Court in its discretion could stop the casthe evidence is “...so dubious, or so tainted, or so obviously lacking in weight or c or credibility, or has been so discredited in cross-examination, that it is clear that no reasonable tribunal could safely convict on it”. See The State v Lae Kurideuridey (1981) N300. Theonal is that the evidenvidence as it stands are so insufficient and may not improve even ifaccused is called upon to answer.

Having alluded to these basic principles, it is nois not apparent from Defence Counsel’s submissions whether the accused relied on both legs of Paul Kundi Rape’s case. As the ssions centred larg largely on the facts, I assume counsel relied only on the discretionary issue of sufficiency of evidence. Aes Counsel articulatedes edes of credibility and weight of the evidence which in my vimy view transcended the “no case to answer” principles.

(i) carnal knowledge;> ;

(iii) &#160hout consenonsent;

;

(iv) ;0; ct by , thr intiion, fen, fear of bodily harm, fal, false anse and fraudulent representation (as to nato nature ture of acof act), it), impersonation (of husband of married woman).

Tmplainant’s evidence ence is that the accused sexually abused her from 1993. The medical nation report port on her pregnancy says she was about 14 years on 19 December, 1996. Upon my oservation of her her in court her appearance is consistent that age. This would make her 10 ore11 years old in d in 1993. She in that year the accusaccused only held her breasts ashed his figure into her vaer vagina. In she said he first had had sexual intercourse with her and continued to do so up to 1996.& On 19 October and 20 OctobOctober, 1996 she said the accused had sexual intercourse with her in her mother’s presence. This iect evidence of carn carnal knowledge. Her mother also gave dirvit evidence on that element of rape. Both witnesses spoke of tre circumstances under which the accused had carnal knowledge of the complainant nant on 19 October and 20 October, 1996. Twas ece of threats, ins, intimidation and fear of bodily harm directly given and also inferred fred from the evidence of the complainant and her mother. When I appl principles to s to this case, satisfied that all the elee elements of the offence of rape are made out.

Because of the conclusion I am about to make, I do not consider it appropriate to take one step further and con the application to stop thop the case on the issue of sufficiency of evidence. The evidence iniew as it s it stands now show the accused has a case to answer on the charge of rape on both counts. Whether the evidence supptrts the guilt of the accus the standard of prove beyond reasonable doubt does not arit arise at this stage. That assessment wi made atde at the appropriame at the end of all the evidence.

Lawyer for the Sthe State: Public Prosecutor

Lawyer for the Accused: Alois Jerewai Lawyers