State v Tenta [2009] PGNC 66; N3656 (12 May 2009)

N3656

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No 1212 OF 2007

THE STATE

V

MOSES TENTA

Waigani: Paliau, AJ

2009: May, 06th, 08th & 12th

CRIMINAL LAW – Sexual Penetration – Charge of – Not Guilty Plea – Criminal Code ss. 347(1) (2) and 229A (1).

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
The State v. Joey Apuga & Rajiv Kama Awei,
CR 1017 & 1019 of 2007, 27th April 2009

Counsel:

Ms. L. Wawun, for the State
Mr. S. Sam, for the Accused

DECISION ON NO CASE SUBMISSION

12 May, 2009

1. PALIAU, AJ: The accused pleaded not guilty to one count of Sexual Penetration under s. 347(1)(2) and to an alternative count of sexual penetration of a child under the age of 16 years under s.229A(1) of the Criminal Code.
   
2. The brief facts were that on the 25th May 2007, the accused took the victim to Magila Hotel in his taxi cab and had sex with her without her consent. And the victim was at that time under the age of 16 years. She was 15 years old.
   
3. In support of its case, the State called the victim and her father and tendered by consent certain documents namely:
   
   • - The Record of Interview dated 10th August 2007 in English – Exhibit "A"
     
   • - The Record of Interview dated 10th August 2007in Pidgin – Exhibit "B"
     
   • - Statement of Michael Haihe dated 11th August 2007 – Exhibit "C"
     
4. At the conclusion of the State’s evidence, the Defence made a no case submission. The State made counter submissions to the effect that there is evidence upon which the accused could lawfully be convicted.
   
5. After having considered the evidence adduced by the State, I am of the considered opinion that there is evidence upon which the accused could lawfully be convicted. The trial must therefore proceed.
   
6. As per the Supreme Court case of Rosa Angitai v. The State [1983] PNGLR 185, 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. Bredmeyer, J said this at page 187 in relation to this principle:
   

".......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."

7. I also adopted the principle when I made a similar ruling in the case of The State v. Joey Apuga & Rajiv Kama Awei, CR No. 1017 & 1019 of 2007, 27th April 2009.
   
8. Taking the above into account, I am therefore not required to give reasons for my above ruling.
   
9. I therefore reject the no case submission and the trial must proceed.
   

Ruled accordingly.

________________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused