DC3058
PAPUA NEW GUINEA

IN THE DISTRICT COURT SITTING

IN ITS CRIMINAL (SUMMARY) JURISDICTION

DC 887/2017

BETWEEN

POLICE
-Informant-

AND

TOBIAS KULANG
-Defendant-

Kundiawa:	B. Tanewan

2017:		11th November

BAILACT – Breach of Bail, (1) counts of Brach of Bail under s.28, National Court Bail conditions to take reasonable proactive and constructive steps to facilitate peace and dialogue with conflicting parties
CRIMINAL LAW – Denial as Defence – lack of directevidence to provoke breach of peace– omissions to facilitate peace & dialogue.
CRIMINAL LAW PRACTICE – No Case Submission – both limps of the Principles of No case –application refused

RULING ON NO CASE SUBMISSION

1.		INTRODUCTION
	
The Defendant is charged with one (1) count of breaching bail conditions under section 28of the Bail Act. 
The Defendant Tobias Kulang a former State Minister for Culture & Tourism in the 9th Parliament was charged for police with a number of offences including destruction to properties and loss of lives in an election related riot in Kundiawa in August 2017 during the counting of ballot papers for the 2017 National Elections. He was then granted bail by the Goroka National Court on 9th August 2017 with the following bail conditions;
1.	He shall forthwith pay cash bail of K3,500.00
2.	He shall reside at Allotment 8 Section 388 4 Mile in the National Capital District at all times and not leave his place of residence without first obtaining leave of the National Court.
3.	He shall take reasonable proactive steps as a leader to facilitate dialogue, peace and reconciliation reasonably promptly between the parties involved in the conflict.
4.	He shall attend all hearings of the Committal Court in Goroka as fixed or scheduled whilst his charges are pending in the said Committal Court.
5.	He shall report to the Clerk of Court at Waigani Committal Court every first Monday of each month commencing Monday 4th September,2017 whilst his case is pending before the Committal Court in Goroka.
6.	He shall not interfere with any or potential witnesses for the Sate in relation to the allegations pending against him.
7.	He shall not commit any other offences whilst on bail. 
8.	The following persons are approved to act as guarantors for the applicant for purposes of his bail –
1.	Sir Ila Geno, GCL, OBE, QPM, MCS, senior statesman and retired public servant of Allotment 2 Section 48 Goldie Street Konedobu, National Capital District.
2.	YanggauUyassi, a retired public servant of Biteve village, Henganofi, Eastern Highlands Province. 
3.	Michael Koma, Goroka Branch Manager- Pacific Corporate Security, of Keu village, Chuave, Simbu Province.
Each of the approved guarantors shall pay an upfront cash surety fee of K1, 000.00 and sign a guarantor’s certificate.”
On 2nd October,2017, the defendant was charged with breach of bail conditions under section 28 of the Bail Act. The police alleged that he failed to comply with his bail obligations under order 3 of the National Court bail orders which states;
” He shall take reasonable proactive steps as a leader to facilitate dialogue, peace and reconciliation reasonably promptly between the parties involved in the conflict.”
The information filed by the police charging Mr. Kulang stated that reads,“ Has committed an offence namely, took part in riot under section 65 of PNG Criminal Code Act, and the penalty includes imprisonment for term exceeding twelve (12) months, has been charged an granted bail with bail obligations fail to comply with his bail obligation, towit, failed to take reasonable steps as a leader to facilitate dialogue, peace and reconciliation reasonably promptly between parties involved in conflict and continued to commit several offences of arson whilst on bail.”
The brief facts were that the Defendant after he was granted bail and being aware of the bail conditions went to his village and directly or indirectly instigated his supporters to burn house and destroyed properties. It is further alleged in the alternative that, when he was there at the village at the time the arson and destruction took place he failed as a leader to stop the offences being committed.
In support of the prosecution case, six (6) witnesses were called and upon the close of the prosecution case, the defence made a No case Submission, the subject of this ruling.

The relevant issues in this case for consideration by the court are;

(i)	Whether on the evidence as it stands the defendant could be lawfully convicted.

(ii)	Whether, there is with respect to every clement of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred.

4.	THE EVIDENCE

All the six (6) witnesses who gave sworn oral evidence and the crux of their evidence is that he defendant was seen at the village by the witnesses and upon his arrival people were crying and shouting. He then went into the hausman and after a few minutes the people from outside the hausman started shouting and running towards houses armed with weapons and started burning houses and destroying properties.

Almost all six witnesses said they were some distances away when the actual arson and destruction of properties took place accept for Peter Rano who was part of the crowd who gathered when the defendant arrived in the village. His evidence was that the offenders turned against his family so he has to retreat. Upon cross examination he was asked if he was worried because of his own demise and he said yes. He further relied in cross examination that it was impossible for anyone to try to talk to the offenders to stop what they were doing.

The prosecution on re-examination asked the witness where the defendant was and the witness replied he was inside the house.

Ina no case to answer application the principleto be applied is quite clear and it comes in two limbs.

(a)	Whether on the evidence as it stands the defendant could lawfully be convicted.

(b)	Whether there is with respect to every clement of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred.

There have been numerous Court decisions on the principle and the limbs as stated above both nationally and internationally.

In relation to the first limb the overseas case of May v. O’Sullivan [1955] HCA 38 C.L.R, 654, the court comprising the Full Court of the High Court of Australia expressed it in these terms:
“When, at the close of the case for the prosecution, a submission is made that there is ‘no case to answer’, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a ‘case to answer’ has no affect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. That is a question of fact.”
In relation to the second limb, the case of Zanetti v. Hill [1962] HCA 62 (1965) 108 CLR, 433 in which Kitto J expressed the principles in these terms;
“The question whether there is a case to answer, arising as it does at the end of the prosecution’s evidence in chief, is simply the question of law whether the defendant could lawfully be convicted on the evidence as it stands, — whether, that is to say, there is with respect to every clement of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred. That is a question to be carefully distinguished from the question of fact for ultimate decision, namely whether every element of the offence is established to the satisfaction of the tribunal of fact beyond a reasonable doubt ... The ultimate question of fact must be decided on the whole of the evidence; ...”
In applying the above principle to this particular case, it is my view that the first limb does not apply. All prosecution witnesses’ evidenced as it stands so far could not lead to a conviction of the defendant. This is to say, the defendant could not be lawfully convicted on the evidence as it stands.

However, I think the second limb applies as there is some inference that could be drawn from the evidence adduced at trial from the prosecution witnesses. That is when the defendant arrived in the village his mere presence, being straight out of the cells on bail may to some extent instigate the commission of other offences by other perpetrators.

Further, being a leader and his mere silence or omission in not making an attempt to stop the perpetrators can be seen as  ‘ not taking reasonable proactive and constructive steps as a leader to facilitate dialogue, peace and reconciliation reasonably promptly between the parties involved in the conflict.

Therefore, in my view this case and the whole circumstances call for further evidence to be adduced from the defence in rebuttal and defence of its case.

On the above reasoning, I refuse to end the trial at this stage and will call the defence to call its evidence.

Orders accordingly,

______________
B. TANEWAN
Presiding Magistrate