N3618

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No 1017 & 1019 OF 2007

THE STATE

V

JOEY APUGA & RAJIV KAMA AWEI

Waigani: Paliau, AJ
2009: April, 16th, 17th, 20th, 21st & 27th

CRIMINAL LAW – Wilful Murder – Charge of – Not Guilty Plea – Criminal Code s.300(1)(a).

CRIMINAL LAW – Practice and Procedure – No case submission – Reject No Case Submission – Whether reasons should be given.

Cases cited:

Rosa Angitai v. the State [1983] PNGLR 185

Counsel:

Mr. D. Mark, for the State 
Mr. D. Mamu & Ms. Pagler, for the Accused

DECISION ON NO CASE SUBMISSION

27 April, 2009

1.	PALIAU, AJ: The facts of this case will be fully stated in my judgment on Verdict after the trial. 

2.	After the close of the State's case, the Defence made a no case submission. I have considered the Submissions by both the Defence and the State and I consider that there is evidence upon which both the accuseds could lawfully be convicted. The trial must proceed. 

3.	I am not required to give reasons for my above ruling. In the Supreme Court case of Rosa Angitai v. The State [1983] PNGLR 185, it was held that where a no case submission is made, the trial Judge is not, except where he accepts the submission and acquits the accused, required to give reasons for his ruling. At page 187 of the Judgment, Bredmeyer, J had this say;

"…….With one exception, which I mention in a moment, reasons should not normally be given on a no case submission because, firstly, reasons require the weighing up of evidence and considering the credibility of witnesses, which is best left to the end of the trial when all the evidence, called by the State and defence, has been received. If this were not so, a Judge might say on the no case submission that he could not believe a certain State witness and then at the conclusion of the trial, because of further evidence called, reverse that view and say that he believes the testimony of that witness. A judge should not appear vacillating. 

 Secondly, if a Judge were to give reasons and say that he thought a certain State witness credible that might suggest that the onus of proof has shifted from the prosecution, that the accused will be convicted unless he rebuts the evidence already called against him. It is for the latter reason that a Judge when rejecting a no case submission should avoid saying "I find a case to answer."

Ruled accordingly.
________________________________________________
 Public Prosecutor: Lawyer for the State
 Paraka Lawyers: Lawyer for the Accused