State v Panda (No 1) [2021] PGNC 397; N9150 (14 September 2021)

N9150

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 723 OF 2018

STATE

V

ANJALAS KIS PANDA
(No 1)

Waigani: Wawun-Kuvi, AJ
2021: 9^th, 13^th & 14^th September

CRIMINAL LAW-TRIAL-No case to answer-Criminal Code, Malicious Injuries to Property, s 444(1)-No case to answer

Held:

(1) The two limbs, commonly referred to in The State v Paul Kundi Rape [1976] PNGLR 96 are distinct and should not be invoked together. One is an application on a no case and the other is an application asking the Court to exercise its discretion to stop the case.
(2) In an application to stop the case, it must be clear at the close of the State’s case, that the evidence is lacking or is so discredited that no reasonable tribunal can convict.
(3) There is no assessment as to credibility and demeanor.
(4) The Application to stop the State’s case is refused.
(5) The Accused has a case to answer.

Cases Cited:
The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287
The State v Paul Kundi Rape [1976] PNGLR 96

Counsel
Ms. Lilly Jack and Ms. Soynna Binding-Suwae, for the State
Mr. Fredrick Lunge, for the Defence

RULING

14^th September, 2021

1. WAWUN-KUVI, AJ: An ex tempore judgement was given. This is the full reasoning.
   
2. At the close of the Prosecution case, Mr. Lunge for the accused made a submission for no case. He contended that the evidence presented by the State is not clear and cogent and is unreliable. It is on that basis that the accused ought not to be called.
   
3. As I gather from Mr. Lunge submission, the basis for the application is that the State evidence has failed to establish the element of unlawfulness and more so that the events transpired as alleged.
   
4. It his submission that the glaring inconsistency is the photographs tendered into evidence. The greatest contradiction is who took the photographs. The complainant says that he took the photograph a day after, yet the photographs show that they were taken on the 6 December 2014, the date of the alleged offending. He submitted that photographs can be manipulated and there were no official police photographs to confirm the alleged damage. He argues that the evidence from the investigating officer is that he took the photographs, but the dates of the photographs indicate a date prior to the investigating officer taking carriage of the matter.
   
5. As for the witnesses, Mr. Lunge submits that Belinda Bill and Raymond Joe appeared to be coached. Raymond Joe limited his evidence only to 6 December 2014. The same applied to the complainant’s evidence. He says that State’s evidence is contradictory and conflicting.
   
6. Ms. Jack submits that the question of proof beyond reasonable doubt does not arise at this stage. She submits that the only consideration is whether there is some evidence establishing each element of the offence. She contends that there is and so the accused should be called on to answer the charge.

What is the law?

7. The grounds on which a no case may be made was set out in The State v Paul Kundi Rape [1976] ^[1]which was endorsed by the Supreme Court in, The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983]^[2]. The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] held:
   
   1. “Where.......there is a submission of a no case, the matter is a question of law for the judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence.
   2. Where the tribunal decides there is a case to answer, it nevertheless has a discretion to stop the case in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.”
8. There is no assessment as to credibility and demeanor.
   
9. The two limbs, as they are commonly referred to, are distinct and should not be invoked together. One is an application on a no case and the other is an application asking the Court to exercise its discretion to stop the case.
   
10. In the present matter, Mr. Lunge is making an application asking the Court to invoke its discretion to stop the case.
    
11. Ms. Jack misconceives the application, as is evident in her response.
    

Is there a mere scintilla of evidence and is the evidence so lacking in weight and reliability that no reasonable tribunal could safely convict?

12. No.
13. In an application to stop the case, it must be clear at the close of the State’s case, that the evidence is lacking or is so discredited that no reasonable tribunal can convict.
    
14. Whilst Mr. Lunge challenges the authenticity of the photographs, they were admitted into evidence by consent and there was no serious contention by him. The evidence as presented by the State is clear, that is, the complainant took the photographs, and he took them after the day of the alleged offence. Whilst the arresting officer said in evidence that he took photographs, Mr. Lunge did not show him the photographs that were tendered into evidence and did cross examine him on whether the photographs were one and the same. He did not properly lay the foundation to now leap into the conclusion that there is a serious inconsistency.
15. As to contentions that the witnesses were coached or lying, I can find no better statement that what was said in Barker (1977) 65 Cr. App.R. 287 at 288 cited in the judgement of Kidu CJ in Roka Pep:
    

“It is not the judge’s job to weigh the evidence, decide who is telling the truth, and to stop the case merely because he thinks the witness is lying.”

16. In Roka Pep, the majority held with Kapi DCJ dissenting that is no weighing of evidence beyond reasonable doubt.
    
17. There is nothing visible on the State’s case that would justify the exercise of my discretion to stop the case at this stage.
    
18. The Application to stop the case is therefore refused.
    
19. The accused has a case to answer.

________________________________________________________________
Office of The Public Prosecutor: Lawyers for the State
Ninerah Lawyers: Lawyers for the Defence

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^[1] PNGLR 96
^[2] PNGLR 287 (14 September 1983)