N2983

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1278 of 2002

THE STATE

-V-

TOLLY AMINDI

GOROKA:		KANDAKASI, J.
2004: 5th of May

RULING ON NO CASE SUBMISSION

CRIMINAL LAW – PRACTICE & PROCEDURE – No case submission – Second limb under State v Paul Kendi Rape [1976] PNGLR 96 – No direct evidence on issue for trial – Inconsistency in State’s case – Effect of – Accused having no case to answer.

Cases cited:
The State v. Paul Kundi Rape [1976] PNGLR 96.
The State v. Peter Malihombu (Unreported judgment delivered on 29/04/03) N2365.
The State v. Damien Anis (Unreported judgment delivered on 24/05/02) N2236.

Counsel:
K. Umpake for the State
T. Ohuma for the Accused

05th of May 2004

KANDAKASI J.:	 You stand charge with one charged of murdering your late husband Peter Amindi. You raised the defence of accident under s. 24 (1) (a) and (b).

At the end of the prosecution case, you through your lawyer made a no case submission. Initially, this application was under the first limb of The State v. Paul Kundi Rape [1976] PNGLR 96. The basis for that was that, the prosecution did not produce any evidence establishing you as the killer. However, you abandoned your application under that limb on the Court drawing to counsel’s attention that, the issue for trial was whether the accused brought about the death of the deceased accidentally or was it deliberate.

The effect of your defence was that all the other elements of the offence, such as the identity of the killer, the deceased being attacked by you and dying in the consequence of that stood admitted. Indeed that is the correct legal position. A number of cases, for example my own judgment in The State v. Damien Anis (24/05/02) N2236 in the context of identification being only issue for trial, point that out.

Consequently, you pursued your submission under the second limb. Under that limb, the question to ask is whether on the evidence as it stands you could be lawfully be convicted. The Court is asked to stop the case here because of an argument that the State’s case has fallen short of establishing a case for you to answer. This requires a consideration of the evidence called by the State, on the issue for trial.

The State admitted into evidence with your consent the medical evidence consisting of the autopsy report and the medical certificate of death. It also admitted into evidence your record of interview with the police. It then called, Gagma Moroyagl, who gave sworn oral evidence. His evidence in short, is this woman fought with a man called Peter not far from the DPI office here in Goroka on 17th April 2002? He could not tell who the woman was as it was dark. He was however, able to see the woman lifted her hand and hit the man called Peter at his chest area. He did not tell whether the woman had an object to do that but could only see the action. Later he saw the woman try to hit the man and this time he struggle with the woman and removed a kitchen knife from her. He was not able to answer a suggestion under cross-examination that this part of his evidence was false.

In the record of interview, you admitted fighting with the deceased but say that it was an accident in questions and answers 19 to 23. There is therefore a direct conflict in the State’s evidence when they are put together. In view of that, the question is what is the effect of this in the State’s case? Has the State established a prima facie case against you? Or put another way, is there a case for you to answer?

It is trite law that, the State has the burden throughout to establish a case against an accused person before an accused person can be called on to answer it. In my view this means, a clear prima facie case must be made out before the accused could be called on to answer.

In the present case, there is a clear conflict in the State’s case. The oral evidence suggests that an unidentified woman lifted her hand and hit or stabbed the deceased at his chest area. On the other hand, the record of interview between the police and you suggest that you lifted your hands up with a knife in your hands to protect yourself from the deceased attack on you and the knife caught the deceased. You did not know that is what happened until later. In The State v. Peter Malihombu (Unreported judgment delivered on 29/04/03) N2365, I had a similar situation. There I held that:

"To the extent that the State admitted into evidence your record of interview it made the contents of the record of interview part of its case. In the face of the obvious inconsistencies in the State’s case particularly in relation to the defence you have raised, the benefit of the doubt must go to you."

Both counsels are not aware of this decision. This shows that they are not current or up to date with the development of the law, in the particular, the case law. They are therefore not able to assist the Court. This is common throughout the country. This is unacceptable for lawyers, whose sole practice is either prosecuting or defending in criminal cases. I wish to go on record for both counsels that, I will not tolerate and accept this kind of excuse from hereon. The expects counsel to follow the development of the law both by Acts of Parliament and the case law through judgments of both this and the Supreme Courts.

Now returning to your case, counsel for the prosecution acknowledges this inconsistency in his client’s case. Yet he argues that the State has made out its case and that there is a prima facie case against you. I nevertheless, ask, how can this be without first satisfactorily explaining why or how should the Court overlook this inconsistency. This is a very serious inconsistency as it goes into the very issue for trial. I note that the prosecution did not try to the get the witness that was called to comment on this apparent inconsistency in its case, after having already admitted into evidence the record of interview as part of the State’s case.

This inconsistency raises serious doubts as to whether the State has established a prima facie case for you to be even called to answer. I cannot see how the prosecution’s case will be improved upon if the defence went into evidence. Even if you were to go into evidence, you cannot establish the prosecutions case. It is trite law that the State must first establish a case for you to answer. I made that clear in a number of cases as in The State v. Peter Malihombu (supra). There I said:

"It is settled law that the defence can not establish the prosecution’s case. That means the prosecution must first establish a prima facie case against an accused person. That includes an obligation to negative any defence that may be raised by the defence. Once the prosecution has established a prima facie case, only then can the defence be called upon to answer it: R v. Agana Guguna (1965) N364 and The State v Cosmos Kutau Kitawal and Christopher Kutau (No 1) (15/05/02) N2266. It follows therefore in my view that if the defence has gone into evidence, a Court must delay a consideration of that evidence until it is satisfied that the prosecution has discharged its obligations. I believe this is the consequence of the Constitutional guarantee of presumption of innocence until proven guilty."

In the present case, I find that the inconsistencies in the prosecutions evidence is such that, I cannot safely say there is a prima facie case against you. Therefore, I find that there is no case for you to answer. Accordingly, I uphold your no case submission and order a dismissal of the charge against you and that you be acquitted forthwith.
___________________________________________________________
Lawyers for the State:			Public Prosecutor
Lawyers for the Accused:		Public Solicitor