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Chapter 16: No Case to Answer

 Table Of Contents 

[16.0] Introduction 

At the close of the case for the prosecution, the defence may submit in accordance with section 197 of the Criminal Procedure Code (Ch. 7) that there is 'no case to answer' for the defendant because there is either: 

[i] no evidence; or 

[ii] insufficient evidence 

to prove an element of the charge. 

Therefore, if the submission of 'no case to answer' is successful, the defendant will not be required to answer the charge or make a defence in accordance with section 198 of that Code. 

However, in respect of unsuccessful applications, magistrates are not obliged to give reasons for rejecting it, see Harrison v Department of Social Security [1997] COD 220.

[16.1] Criminal Procedure Code 

Section 197 of the Criminal Procedure Code (Ch. 7) states: 

'If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused.' (emphasis added) 

Section 198 of the Criminal Procedure Code (Ch. 7) states: 

'(1) At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross – examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence (if any). 

(2) If the accused person states that he has witnesses to call but that they are not present in court, and the court is satisfied that the absence of such witnesses is not due to any fault or neglect of the accused person, and that there is a likelihood that they could, if present, give material evidence on behalf of the accused person, the court may adjourn the trial and issue process, or take others steps, to compel the attendance of such witnesses.' (emphasis added) 

The law relating to a 'Defendant's Right To Silence' is examined commencing on page 218.

[16.2] General Principles 

In R v Maenadi Watson, Smith Pitapio, Youngston Watson & Saro Norman (Unrep. Criminal Case No. 16 of 1997) Muria CJ stated at pages 3 – 5: 

'The starting point on the consideration of a no case to answer submission is section 197 Criminal Procedure Code […]. 

[…] 

That section is specifically worded to suit the circumstances of a criminal trial where there is no trial by jury. As such in Solomon Islands where a judge is both a judge of fact and law he is entitled to go beyond the mere consideration of evidence on the essential element of the offence as expressed in the English Practice Note [1962] 1 AllER 448 and referred to in Archbold Criminal Pleading Evidence and Practice, 38 Ed. para. 575(a). A judge in a criminal trial in Solomon Islands is entitled to consider the sufficiency of the evidence at the close of the prosecution case in order to determine whether or not the accused has a case to answer. 

The words "it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence" in section 197 clearly bore out the basis for the stand which I pointed out. Thus, it is not simply a matter of the prosecution adducing evidence to establish the essential element of the offence, but adducing evidence which is sufficient to make out a case against the accused. That is what the judge must be satisfied with under section 197 Criminal Procedure Code. 

In this jurisdiction, R –v- Lutu [1985/86] SILR 249 pointed this out. It is the authority on the application of s. 196 (now s. 197) Criminal Procedure Code and ought to be followed. His Lordship Ward CJ expressed the law in section 196 in the following words at pp. 250 – 251: 

"In this case I am the judge both of fact and law. As such my duty to decide whether a case has been made out sufficiently to require the accused to make a defence under section 196 goes further than that of a judge sitting with a jury. 

Thus if at the close of the prosecution case I, as judge of fact, do not feel that there is sufficient evidence even at that stage on which I could convict, I should stop the case. 

I feel that the words in section 196 that where "it appears to the court that a case is not made out sufficiently to require (the accused) to make a defence" suggest that, where the tribunal is judge of fact as well as law, it is entitled to consider the sufficiency of the evidence at the close of the prosecution case."' (emphasis added) 

In R v Philip Tahea & two others (Unrep. Criminal Case No. 14 of 1995) Palmer J stated at pages 1 – 5: 

'The starting point must be section 196 [now section 197] of the Criminal Procedure Code which deals directly with the question of a submission of no case to answer. 

[…] 

The key word to take note of [in that section] is the word "sufficiently". There must be a case sufficiently made out at the close of the prosecution case to require the accused to make a defence. What does this mean in practice? […] 

[…] 

[… T]he crucial requirement is that the court should be satisfied at the close of prosecution's evidence that there is a case sufficiently made out to require the accused person to make a defence. 

[…] 

In this case, there is evidence before the court or the judge, to consider, but that after cross – examination it had been so discredited to the point where it can be said that no reasonable tribunal could safely rely on it. In other words it had also become manifestly unreliable. 

I think it is this latter which has caused creates the confusion, in that it may not have been clear how it should be assessed in practice. This is where the comments of Ward CJ in R –v- Lutu [[1985/86] SILR 249] at page 251, relevant as a guideline. 

"Clearly this is not the time to evaluate such matters as discrepancies between witnesses, or which parts of the evidence are credible and accurate and which are not. These are all matters for the conclusion of the evidence as a whole and, where there is evidence that could result in a conviction by the court, then the accused must be put to his defence." 

Does this mean that the court should not evaluate the evidence? This answer is no, but as stated by the learned authors In Criminal Law and Practice of PNG at page 620, and referred to by Mr Kama, "…any weighing of the evidence by the judge or magistrate, required by a 'no case to answer' submission at the close the state case, should be kept to the absolute minimum." (Emphasis added) 

Also, at page 619 of the same text, the learned author made similar pertinent comments. 

"Second, where there is more than an iota of evidence with respect to each element of the offence, the court still has discretion whether or not to entertain the 'no case' submission. However, a submission on this basis should be entertained only when the judge really has no weighing up to do. That is, it must be a very clear case, …" 

An important point to note here as well is that, a submission of "no case to answer" is a question of law. In other words, if at the close of prosecution evidence, that was the only evidence before the court and nothing more, (and one could imagine the situation where the defence decides not to call evidence), could a reasonable tribunal enter a conviction? If not then the court should not require the accused to make a defence. This was more or less what was said by Ward CJ in Lutu's case (supra), at page 251, paragraph (3): 

"where, however, there is some evidence but it is so little or unconvincing (and I would add "has been so discredited in cross – examination") that it is sufficient even if uncontradicted by the defence to make a conviction possible, the court should not require the accused to make a defence." (words in brackets added).' (emphasis added) [words in brackets added] 

See also: The State v Roka Pep (No. 2) [1983] PNGLR 287.

[16.3] Duty Of Prosecution

Prosecutors are expected to: 

[i] remind the Magistrate that the crucial requirement is that the Court must be satisfied that there is sufficient evidence to require the defendant to make a defence; and 

[ii] argue their strongest possible case. In that regard each and every element of the offence/s charged must be addressed by outlining: 

[a] the relevant statute and / or common law; and 

[b] the relevant evidence which addresses those elements. 

Those elements which have been the subject of 'cross – examination' should be carefully addressed. 

The law relating to 'Cross – Examination' is examined commencing on page 346.