N4474

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 262 0F 1999

THE STATE

V

PAUL DOTAONA

Buka: Cannings J
2006: 10, 11, 14 August

RULING ON NO CASE SUBMISSION

CRIMINAL LAW – procedure – submission of no case to answer – application that case should be withdrawn from the tribunal of fact – rule in Rape’s case – two limbs or tests – reliance on both first and second limbs: whether there is evidence of all elements of the offence; whether there is sufficient evidence on the basis of which the court ought to convict the accused – whether the evidence is so weak and unreliable that no reasonable tribunal of fact could base conviction on it – identification parade – procedure used must be fair to the suspects. 

The accused is charged with an offence of going armed in public so as to cause fear, contrary to Section 70 of the Criminal Code. The State alleged that, while wearing a balaclava, he stopped a PMV bus on a public road by brandishing an M16 rifle, and got on to the PMV causing fear to the driver by pointing the rifle at him before being overpowered by passengers and escaping. The main issue was identification. The State presented five witnesses, three of whom were eyewitnesses who later participated in an identification parade that resulted in the accused being charged, and two of whom were police officers who organised the parade. There was little circumstantial evidence to support the State’s case. The defence counsel made a no-case submission at the end of the State’s case, relying on both limbs of the rule in The State v Paul Kundi Rape [1976] PNGLR 96. 

Held:

(1)	There was some evidence identifying the accused, so the no-case submission based on the first limb of Rape’s case failed.

(2)	However, the identification evidence was weak, unreliable and inconsistent and a reasonable tribunal of fact could not base a conviction on it.

(3)	There was insufficient evidence on which the court ought to convict the accused. Furthermore, there is not more than a scintilla of evidence. 

(4)	The identification parade was conducted unfairly.

(5)	Accordingly, the no-case submission based on the second limb of Rape’s case was upheld. 

(6)	The court exercised its discretion to acquit the accused.

Cases cited:
The following cases are cited in the judgment:
Joshua Yaip Avini and Plaridel Nony Acosta v The State [1997] PNGLR 212
The State v James Yali (2005) N2935
The State v Nathan Kovoho (2005) N2810
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Roka Pep (No 2) [1983] PNGLR 287
The State v Sela Gipe (2000) N2058
The State v Thomas Sange and Others (2005) N2805
The State v Thomas Some (1982) N366(M)

Abbreviations:
The following abbreviations appear in the judgment:

A/ – Acting 
AJ – Acting Justice
Asst – Assistant
CJ – Chief Justice
CR – Criminal
DCJ – Deputy Chief Justice
ID – identification 
ie – that is or by which is meant
J – Justice
N – National Court judgments
No – number
PMV – public motor vehicle
PNGLR – Papua New Guinea Law Reports
Sgt – Sergeant 
PSC – Police Station Commander
SC – Supreme Court judgment
v – versus

RULING

This was a ruling on a no-case submission made at the end of the prosecution’s case. 

Counsel:
R Luman, for the State
W Donald, for the accused

INTRODUCTION

1. CANNINGS J: This is a ruling on a no-case submission made at the end of the prosecution’s case. The accused, Paul Dotaona, is charged with an offence of going armed in public so as to cause fear. 

THE TRIAL SO FAR 

2. The State alleged that on 19 June 1998, while wearing a balaclava, the accused stopped a PMV on a public road near Malasang, Buka Island, by brandishing an M16 rifle, and climbed aboard the PMV and pointed the rifle at the driver, causing fear to him. The accused was overpowered by two passengers and escaped. The defence does not dispute that the incident took place as alleged but argues that there is no or insufficient evidence that the accused was involved. The only issue is identification.

2. On the second day of the trial, 11 August 2006, the prosecutor, Mr Luman, closed the State’s case. This consisted of the oral evidence of five witnesses and six exhibits.

Oral evidence

3. The witnesses were:

1	John Telehis, the PMV driver;
2	Tom Wasan, a passenger who helped overpower the man with the M16 ("the criminal");
3	Mark Tavi, a passenger who grabbed the rifle from the criminal;
4	Sgt Jeffery Magum, investigating police officer;
5	A/Asst Commissioner Paul Kamuai, the police officer who conducted the identification parade.

Exhibits

4. These were:

A -	the record of interview of the accused;
B -	an army-style camouflage shirt;
C -	a black mask or balaclava;
D -	a M16 rifle;
E -	a magazine for an M16 rifle; and
F -	statement by Paul Kamuai, then Buka PSC.

No-case submission

5. The defence counsel, Mr Donald, then made a no-case submission, ie an application that the accused not be called on to answer the charge and that he be acquitted. He based his submission on the principles set out in the leading case, The State v Paul Kundi Rape [1976] PNGLR 96, National Court, O’Leary AJ. He relied on both limbs of Rape.

6. I will start by setting out the principles in Rape’s case, which consist of two limbs or tests. Then I will summarise the submissions and apply the principles in Rape to this case.

THE PRINCIPLES IN RAPE’S CASE

7. In Rape’s case O’Leary AJ pointed out that when the prosecution has closed its case two distinct and separate questions can arise.

Question 1 – also called the first limb or test – is there some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred?

8. Note that the question is not: is every element of the offence established beyond a reasonable doubt? That question can only be answered at the end of the trial – if it proceeds – on the whole of the evidence, ie including any evidence adduced by the accused.

9. If the answer to question 1 is no, the conclusion will be that on the evidence as it stands, the accused could not lawfully be convicted. This is an issue of law. The accused will have no case to answer. The accused will not be required to answer the charge. The accused will be entitled to an acquittal.

10. If the answer to question 1 is yes: the trial should proceed unless question 2 is answered in the negative.

Question 2 – also called the second limb or test – although there is a case to answer; is there sufficient evidence on the basis of which the court ought to convict the accused?

11. Again, the issue is not whether the prosecution has proved its case beyond reasonable doubt. It is directed at the situation where there is only a scintilla of evidence or where the evidence is so weak, tainted or unreliable that no reasonable tribunal of fact could base a conviction on it.

12. If the answer to question 2 is no, ie there is insufficient evidence, the trial judge has a discretion to either not call upon the accused (ie enter an acquittal) or order the trial to proceed. (See Rape at page 99.)

13. If the answer to question 2 is yes, the trial must proceed.

14. The Supreme Court confirmed the correctness of the above principles in The State v Roka Pep (No 2) [1983] PNGLR 287, Kidu CJ, Kapi DCJ, Andrew J, Pratt J, Kaputin J; and Joshua Yaip Avini and Plaridel Nony Acosta v The State [1997] PNGLR 212, Kapi DCJ, Los J, Salika J. The Rape principles form an integral part of the conduct of every criminal trial in PNG.

15. Recent cases in which I have applied the Rape principles include:

•	The State v Thomas Sange and Others (2005) N2805, a trial at Kimbe of four men charged with wilful murder of a police officer. I upheld a no-case submission in relation to each of them on the first limb of Rape, and acquitted them accordingly.

•	The State v Nathan Kovoho (2005) N2810, a trial at Buka of a man charged with misappropriation. I upheld a no-case submission based on the second limb of Rape by concluding that there was insufficient evidence on which the court ought to convict the accused and the evidence was so weak and unreliable that no reasonable tribunal of fact could base a conviction on it. I exercised my discretion to enter an acquittal.

•	The State v James Yali (2005) N2935, a trial at Madang of a man charged with four sexual offences. I refused a no-case submission based on the second limb of Rape by concluding that, even though there was an argument that the evidence was weak, unreliable and inconsistent, a reasonable tribunal of fact could nevertheless base a conviction on it. There was sufficient evidence based on which the court ought to convict the accused. Furthermore, there was more than a scintilla of evidence. The trial proceeded.

THE DEFENCE SUBMISSION

16. Mr Donald based his submission on both limbs of Rape. He did not dispute that the incident happened as alleged on Friday 19 June 1998 on the Malasang Road. The criminal, a man wearing a black mask and brandishing an M16 rifle, held up a 25-seater PMV bus driven by John Telehis that was carrying public servants. The criminal came aboard and pointed the rifle at the driver, apparently in an attempt to commandeer the bus. He was overpowered by passengers and then escaped.

17. As to the first limb of Rape, Mr Donald argued that there was no evidence at all that the accused was the criminal.

18. In the alternative, he argued that if the court finds that there was some evidence that it was the accused, the evidence is so unreliable and inconsistent that no reasonable tribunal could base a conviction on it.

THE STATE’S RESPONSE

19. Mr Luman argued that there was ample evidence to support the conclusion that the accused was the masked man. There were three eyewitness accounts of what happened as well as the evidence of the identification parade. It could not be said that there was no identification evidence.

20. As for the second limb of Rape, this is not the time to distinguish between the truth and falsity of evidence. He conceded that the identification parade may not have been conducted to the required standard but argued that that was not a reason by itself to stop the case. The incident happened a long time ago and witnesses were doing the best to remember what happened. The court should exercise its discretion to allow the case to continue.

THE FIRST LIMB OF THE NO-CASE SUBMISSION

21. The accused has been charged under Section 70 (going armed so as to cause fear) of the Criminal Code, which states:

A person who goes armed in public without lawful occasion in such a manner as to cause terror to any person is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding two years.

22. The elements of the offence are:

•	the accused;

•	went armed;

•	in public;

•	without lawful occasion;

•	in such a way as to cause terror;

•	to any person [in this case, the driver, John Telehis].

23. Mr Donald concedes that there is evidence of all elements except the first. However, I have no hesitation in refusing the first part of Mr Donald’s submission. The court has been given three eyewitness accounts of what happened and those three witnesses attended an identification parade that resulted in the accused being identified as the criminal. I agree with Mr Luman that it cannot be said that there is no evidence that the accused was the criminal. There is some evidence – it is more than an iota of evidence – and that is sufficient to dispose of the first part of the submission.

THE SECOND LIMB OF THE NO-CASE SUBMISSION

24. Here, it is necessary to summarise the identification evidence. It came from five witnesses and it concerned identification of the accused at three different times:

•	the time of the incident;

•	the time of the identification parade; and 

•	the time of the trial.

25. Each witness gave evidence as to their involvement in identification of the accused at one or more of those times. The evidence is summarised in the table below.

TABLE 1: EVIDENCE AS TO IDENTIFICATION OF THE ACCUSED

No	Witness	Time of incident	Identification parade	During trial	
1	John Telehis	When the criminal came aboard, Mark grabbed the rifle; Tom pulled off his mask; they were struggling for a short time.

When the mask was pulled off the criminal, he quickly turned around and ‘I only saw his back’. He was a light-skinned, tall person – a little fat - had short hair.	He identified the suspect and told the police he looked like the criminal who held up the bus.

In cross-examination, he said he pointed out the suspect at the ID parade when he saw his build, his height and colour of his skin. The suspect he identified had dreadlocks. 	The person he identified at the ID parade looked similar to the person in the dock, the accused. 	
2	Tom Wasan	When the criminal came aboard the bus he, Tom, was at the back. He moved to the front of the bus to help Mark Tavi. Most of the other passengers jumped out of the bus. He and Mark pulled off the criminal’s mask and shirt and Mark got the rifle.

The criminal was a light-skinned person of medium height and well built. He had short hair.

He only saw the back of the criminal.	He went to the ID parade. There were some light-skinned and some dark-skinned people in the parade; he cannot remember how many – but there was ‘plenty’.

He went around the parade two times, and then identified the suspect, who had dreadlocks, a ‘bit long’. 

The witnesses went around the parade together – ‘there were plenty of us’.	At various points of his evidence he said:

•	‘I do not know where that person is now.’
•	‘The person I marked at the ID parade is like the person sitting in the dock [the accused].’
•	‘I don’t think the person I identified is here now.’	
3	Mark Tavi	When the criminal came aboard the bus, he ordered everybody to get off the bus – many did but he, Mark, stayed and struggled with the criminal and got the rifle from him. Tom assisted, punched him and took off the mask. The criminal hid his face behind a seat then jumped out the window.

Mark got the rifle, which had one bullet in it, fired at the criminal, who was escaping, but missed.

The criminal was a light-skinned person, ‘much taller than me [Mark] and of slightly bigger build than me’. He had short hair.	A police officer said to ‘see if I could identify the person who held us up’.

There was a lot of people on the parade – some light-skinned, some black-skinned, he cannot remember how many.

He did not identify anybody.

He and John Telehis and Tom Wasan took turns in going around the parade. He stood near the parade as John and Tom went around.	Nil.	
4	Sgt Jeffrey Magum	Nil.	He is the police investigator responsible for this case but did not have carriage of the investigation in its initial stages. When he was given the case the accused was already in custody – he had been brought in by members of the security force. He cannot remember how long the accused had been in custody. The accused had not been charged with the hold-up. The items that are now court exhibits were already in police custody when he took over the investigation. 

He arranged the ID parade and asked the Buka PSC, then Inspector Kamuai, to conduct the parade.

There were 12 people in the parade and three witnesses. The witnesses were separated and asked to go around twice before making their identification on the third round.

Mark Tavi went first but was not confident in identifying the accused – said only that he resembled the criminal.

Tom Wasan was next and pointed to the accused.

John Telehis was next and confidently identified the accused.

He, Sgt Jeffrey Magum, cannot recall whether the accused had dreadlocks. 	Nil.	
5	A/Asst Commissioner
Paul Kamuai	Nil.	He held the rank of Inspector and was Buka PSC at the time of the ID parade, on 2 October 1998. He was in charge of the parade. He cannot recall if photos were taken or if an ID parade from was filled out.

The three witnesses inspected the parade (consisting of 12 people) separately. The witnesses were told that there was a suspect in the parade. 

Mark Tavi was unable to identify anyone.

Tom Wasan identified the suspect on the third round; then he was asked to do a fourth inspection and he identified the same person.

John Telehis identified the suspect on the third round. 	Nil. 	

26. I will now highlight significant aspects of the evidence.

27. As for the time of the incident, none of the three eyewitnesses got a clear view of the criminal’s face. They could only describe his skin colour, height, build and hair.

28. As for the ID parade, only two of the three eyewitnesses – John Telehis and Tom Wasan – made a positive identification. Neither of them gave evidence that suggested that at the time of the parade, they had made the identification confidently. It seems that the accused had dreadlocks at the time of the ID parade, whereas at the time of the incident, less than four months beforehand, the criminal had short hair. 

29. There was conflicting evidence as to the procedures used and there was no contemporaneous record made of what happened. It is not necessary for the police to conduct an identification parade but if they choose to conduct one it must be fair to the accused (The State v Sela Gipe (2000) N2058, Injia J). In The State v Thomas Some (1982) N366(M) Kidu CJ indicated that if the police conduct an ID parade a number of principles apply:

•	A witness should never be told that suspects are in the parade. The witness should merely be asked if he or she recognises anybody.

•	All those in the parade should bear the same characteristics as the description given of the suspect.

•	Suspects should be advised of their right to remain silent.

•	The conduct of the parade must be fair to suspects. His Honour stated:

The police have a duty to catch those who commit offences. But they also have a duty to ensure an innocent man is not convicted because of an unfair identification parade or a defective identification.

30. I conclude that the ID parade used to identify the accused was conducted unfairly. The witnesses were told that the suspect was in the parade. The 12 men in the parade did not have the same characteristics as the suspect. Half of them were dark-skinned, despite all witnesses describing the criminal as light-skinned. There is no evidence that suspects were advised of their right to remain silent. Mr Luman conceded that proper procedures were not followed.

31. The evidence as to the ID parade is therefore unreliable and does little to advance the State’s case.

32. As for identification of the accused during the trial, none of the three eyewitnesses clearly identified him. John Telehis said only that the accused looked similar to the person he identified in the ID parade. Tom Wasan’s evidence changed during the course of his testimony and he ultimately said that he did not think the person he identified was in the courtroom. Mark Tavi was not asked to identify the accused.

33. The identification evidence is not strong at all. It is weak and inconsistent. There is little circumstantial evidence to support the identification. There is no satisfactory explanation of why the accused was in custody when the parade was conducted. There is no evidence to link the accused with the items taken from the criminal: the army shirt, the mask, the M16 and the magazine.

34. I now direct my mind to the questions to be asked under the second limb of Rape’s case and answer them as follows:

1	Is there sufficient evidence on the basis of which the court ought to convict the accused? No.

2	Is there more than a scintilla of evidence? No.

3	In view of the evidence being so weak, tainted or unreliable, could a reasonable tribunal of fact base a conviction on it? No.

35. I therefore need to ask: should I stop the case going any further? This is not a question of law (unlike the line of inquiry for the first limb of Rape’s case). It is a matter of discretion.

36. I will exercise the discretion in favour of the accused. There is little evidence against him and the incident happened more than eight years ago. He is entitled to the full protection of the law under Section 37(1) of the Constitution. He is presumed innocent under Section 37(4)(a) of the Constitution. Given the state of the evidence I do not see how he can be proven guilty according to law.

ORDER

1	The no-case submission is upheld.

2	Paul Dotaona is acquitted of the charge under Section 70 of the Criminal Code of going armed in public and causing fear.

Verdict accordingly.
_______________________________________________________________________

Public Prosecutor: Lawyer for the State
Donald & CO: Lawyers for the accused