Papua New Guinea Law Reports - 1983
[1983] PNGLR 19
N407
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
ROKA PEP
Mount Hagen
Kapi DCJ
14 February 1983
CRIMINAL LAW - Practice and procedure - Submission of no case to answer - Question of law for judge - Further discretionary question of fact in exceptional circumstances.
A submission of no case to answer at the close of the case for the prosecution is a question of law for the judge to decide, the question being whether there is evidence, which if accepted by the jury would establish the elements of the offence.
Where there is a case to answer but the judge is of the view, on the facts, that no matter what evidence may be called by the accused, the prosecution case will not be proved beyond reasonable doubt or the prosecution case will not improve, or the prosecution case is hopeless or intrinsically weak, then the judge has a discretion to acquit the accused on the no case submission.
The State v. Aige Kola [1979] P.N.G.L.R. 620, and The State v. Lasebose Kuriday, (Unreported judgment of Kearney Dep CJ, N300 of 8 June 1981) followed.
R. v. Galbraith, [1981] 2 All E.R. 1060 considered.
Semble
Such a discretion may be regarded as a development of the underlying law under the Constitution Sch. 2.4.
Cases Cited
Haw Tua Tau v. P.P. [1981] 3 W.L.R. 395; 3 All E.R. 14.
Practice Note [1962] 1 All E.R. 448.
R. v. Barker (1977) 65 Cr. App. R. 287 (note).
R. v. Galbraith [1981] 1 W.L.R. 1039; 2 All E.R. 1060.
R. v. Mansfield [1977] 1 W.L.R. 1102; 65 Crim. App. R. 276.
R. v. Prasad (1979) 23 S.A.S.R. 161.
State, The v. Aige Kola [1979] P.N.G.L.R. 620.
State, The v. Lasebose Kuriday (Unreported judgment of Kearney Dep. CJ No. N300 of 8 June 1981).
State, The v. Delga Puri and Tapri Maip, [1982] P.N.G.L.R. 395.
State, The v. Paul Kundi Rape [1976] P.N.G.L.R. 96.
Wilson v. Kuhl [1979] V.R. 315.
No Case Submission
This was a submission of no case to answer on a charge of wilful murder.
Editorial note:
See appeal at p. 287.
Counsel:
G. Salika, and J MacTine, for the State.
P. Kopunye, for the accused.
14 February 1983
KAPI DCJ: The accused in this case is charged with wilful murder. It is alleged by the State that the accused had an argument with the deceased. The argument developed into a fight and it is alleged that the accused stabbed the deceased three times including a stab wound on the chest which caused the death. The fight took place at night and there was no light.
At the end of the State case counsel for the accused made a submission of no case to answer. Counsel in making his submissions adopted the line of argument set out in The State v. Aige Kola [1979] P.N.G.L.R. 620. Counsel for the State did not contest these submissions in principle. In Aige Kola’s case (supra) I followed the principles which are stated in the leading case of The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96. However in Aige Kola I went a step further in stating that a judge has discretion in this jurisdiction to assess the evidence on whether the State has proved the case beyond reasonable doubt. I stated that this discretion can only be exercised in exceptional cases. This view has not been completely accepted. See The State v. Delga Puri and Tapri Maip [1982] P.N.G.L.R. 395.
In England, this area of the law is still developing. It is only recently that the English cases have attempted to settle the principles: see R v. Galbraith [1981] 1 W.L.R. 1039. The principles in England and in other Commonwealth countries have developed on the basis of the separation of the functions of judge and jury. Strictly speaking, a submission of no case to answer is a question of law and it is a matter for the judge to decide. There is no weighing of the evidence involved. This has become known as the first leg of the no case submission. The question here is whether there is evidence, if accepted by the jury, which would establish the essential elements of the offence. See The State v. Paul Kundi Rape (supra) at 97, 98, The State v. Lasebose Kuriday Unreported judgment of Kearney Dep. CJ, No. N300 of 8 June 1981, at 3, R v. Galbraith (supra) at 1041, 1042, Haw Tua Tau v. P.P. [1981] 3 W.L.R. 395, at 402, 403, 404, at 19, 20, and Wilson v. Kuhl [1979] V.R. 315, at 318. If the answer to this inquiry is negative, the judge must stop the case as a matter of law. If the answer to the inquiry is positive the case proceeds. Strictly speaking, this is the end of a no case to answer submission.
However, the courts have developed a further discretion in the judge, despite the fact there is a case to answer, to stop the case in certain circumstances. The development of this principle or discretion appears in the judgment of Lawton L.J in R. v. Mansfield [1977] 1 W.L.R. 1102. This is the area which has caused much confusion. It is significant that this submission is clearly distinguished from the proper no case submission discussed earlier. This distinction is clearly made in The State v. Paul Kundi Rape (supra) at 97, 98 and 99, Wilson v. Kuhl (supra) at 319 and The State v. Lasebose Kuriday (supra) at 3. The English cases do not appear to make this distinction. The distinction was also not made in the practice direction given by Lord Parker CJ [1962] 1 All E.R. 448. In R. v. Barker (1977) 65 Cr. App. R. 287 (note), Lord Widgey CJ seems to suggest that a judge should not weigh the evidence and decide who is telling the truth. To do that, he suggests, is to usurp the function of the jury. However in R. v. Mansfield [1977] 1 W.L.R. 1102, Lord Lawton L.J, seems to suggest that a judge has a discretion to weigh the evidence where it is so conflicting as to be unreliable and that it would be unsafe for the jury to convict on such evidence. The Court of Appeal in R. v. Galbraith (supra) rejected the Mansfield test as it is prone to confusion and is likely to cause judges to usurp the functions of the jury as is forbidden by Barker’s case. The reasons for rejecting this line of argument are set out by Lord Lane CJ in R. v. Galbraith (supra). The court suggested the following guidelines at 1042:
“(2)    the difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.
(a)      Where the judge comes to the conclusion that the prosecution evidence taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, on a submission being made, to stop the case;
(b)      Where however the prosecution’s evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”
This is no different from asking the question — Is there sufficient evidence upon which a jury ought to convict? There is no actual weighing of the evidence. See The State v. Paul Kundi Rape at 99.
The former Deputy Chief Justice Kearney J in The State v. Lasebose Kuriday, (supra) stated that this submission can be entertained where there is no weighing up of the evidence involved. A judge in applying these guidelines or the principles is posing a question for the jury. In answering the query which he poses for the jury, he assumes the facts and considers what the jury may do. This is a hypothetical situation. This is significant because it avoids the possibility of a judge actually weighing the evidence. I have accepted these principles insofar as they were stated in the case of The State v. Paul Kundi Rape. It is clear from the cases I have discussed so far that the separation of the function of judge from jury has a significant influence in shaping the principles above. I am convinced that they are the proper principles to be applied in a jurisdiction where there is a jury trial. See also R. v. Prasad (1979) 23 S.A.S.R. 161.
The question that arises in our jurisdiction is where there is no jury trial, should these principles be applied strictly? I do not think that there is any difficulty with the application of the first leg of the submission. However, on the second leg, the courts should view the principles carefully as we do not have any jury. The former Deputy Chief Justice Kearney J in The State v. Lasebose Kuriday attempted to do this. In Papua New Guinea, even though we do not have a jury trial, questions of law are still different from questions of fact and the principles stated above are helpful so far as they highlight the issues and the principles to be applied. However, in a jury trial a judge can only go as far as posing a question to the jury and assume what the jury may do in viewing the evidence at the end of the prosecution case. In a jury trial the function of assessing and weighing the evidence is the function of twelve different minds.
In Papua New Guinea, where there is no jury trial, it is the same mind which also decides questions of act. Whether the judge is applying his mind as a judge of law or as a judge of facts, his assessment of facts would be the same because it is the same mind. Therefore in Papua New Guinea, the hypothetical question which is posed for the jury is unreal and should not be maintained strictly. It could be logically concluded from this that the second leg of the test does not arise. Then it could be argued that a judge who is also the judge of facts could weigh the evidence in the sense which is prohibited by Barker’s case. However, there is a valid objection why the approach which I have just stated should not be adopted here. The objection is that it is of fundamental importance for a fair trial that a judge should only be required to weigh up the evidence once and that is only after all the evidence is in. See The State v. Lasebose Kuriday at 2, and The State v. Delga Puri and Tapri Maip. I would adopt the statement by the former Deputy Chief Justice in The State v. Lasebose Kuriday, who said:
“It follows, I think, that in our system any weighing of the evidence by the judge or magistrate, required by a no case submission at the close of the State case, should be kept at the absolute minimum”.
In my view, this is a good reason for adopting the view that a judge in a non-jury trial should not actually weigh the evidence in the sense which is prohibited by Barker’s case and should retain the second leg as set out in R. v. Galbraith (supra). It is a discretion which accords with good sense and the proper administration of justice. See Mohr J in R. v. Prasad (1979) 23 S.A.S.R. 161 at 177. It suspends the actual weighing of the evidence until all the evidence is in. At this point, a judge should keep an open mind about the prosecution evidence.
I have suggested in The State v. Aige Kola that in a non-jury trial a judge has a further discretion to actually weigh the evidence and acquit the accused at the end of the prosecution case.
I stated in that case at 622 “... this procedure may be followed where at the end of the prosecution case, it is obvious to a judge that the prosecution case is such that no matter what evidence may be called by the accused, the prosecution case will not be proved beyond reasonable doubt or to put it differently the prosecution case will not improve. In my opinion, this is when this procedure may be adopted and not otherwise.” I believe Kearney Dep. CJ in The State v. Lasebose Kuriday at 4 stated much the same discretion:
“It involves a question of fact, the court being asked to weigh the evidence, find guilt not proved beyond reasonable doubt, and there and then acquit. I think that the general principle that the court should not weigh up the evidence until the whole of the evidence is in, points to this submission not being entertained except in what is very clearly a hopeless case, where the state case is intrinsically very weak, or has collapsed badly. It would be the sort of case where the court itself would be considering acting on its own initiative, to stop what amounts to a waste of its time and public money” (emphasis added).
Chief Justice King in the case of R. v. Prasad (supra) at 163 in distinguishing the principles from a jury trial and a non-jury trial stated the same principle:
“I think that there is a clear distinction for this purpose between a trial before a Magistrate or other Court which is the judge of both law and facts and a trial by judge and jury. I have no doubt that a tribunal which is the judge of both law and fact may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. This power is analogous to the power of the jury, as judges of the facts to bring in a verdict of not guilty at any time after the close of the prosecution’s case. It is part of the tribunal’s function as judge of the facts. It cannot, consistently with principle, exist in a judge whose function does not include adjudication upon the facts.”
This actually involves the weighing of the prosecution case by the judge. This discretion can only be exercised by a judge in circumstances referred to in The State v. Aige Kola and The State v. Lasebose Kuriday. Such a discretion would accord with good common sense. I think that it would be a waste of time for a judge who has come to the view that the State case is a hopeless one, to postpone acquittal of the accused until after the accused is asked to give evidence. The objection that a judge cannot do this is not valid in our jurisdiction as he is also the judge of facts. If this is accepted it could be regarded as a development of the underlying law under Sch. 2.4 of the Constitution.
However, having said that, I emphasize that this discretion should be used sparingly and only in clear cases. In most cases, a no case submission will be confined to the two legs as set out in The State v. Paul Kundi Rape and R. v. Galbraith.
In this case I find that there is a case to answer on the first leg. The evidence is such that the State case depended on the credibility of one State witness. I cannot stop the case on the authority of R. v. Galbraith (supra). However, having regard to the whole of the State case, the State relied only on one key witness out of three other witnesses. Her evidence was incredible. She attempted to describe the details of the fight between the accused and deceased in complete darkness. She is the sister of the deceased and was obviously not telling the truth. Her evidence simply couldn’t stand, together with the rest of the State case. The State case could not stand without her evidence. I consider that this is an appropriate case in which to exercise the discretion in The State v. Aige Kola (supra) and acquit the accused.
Accused acquitted and discharged.
Lawyer[iii]1 for the State: K. Roddenby, Acting Public Prosecutor.
Lawyer[iv]2 for the accused: A. Amet, Public Solicitor.

[iii]See Note infra ix.
[iv]See Note infra ix.