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State v Pasika [2005] PGNC 178; N3166 (19 December 2005)

N3166

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1838 OF 2005

THE STATE

v

ANSLEM PASIKA

Vanimo: Kandakasi, J.
2005: 16th and 19th December

RULING ON NO CASE SUBMISSION

CRIMINAL LAW – PRACTICE & PROCEDURE – No case submission – Both limbs under The State v. Paul Kundi Rape [1976] PNGLR 96 – Evidence not establishing main issue for trial – No case to answer on charge presented –Whether Court can consider alternative count – Court empowered to consider whether facts disclose a prima facie case on an alternative count – Principles governing return of guilty verdict on alternative count applies – Requirements not met – Accused as no case to answer even on an alternative count.

Cases cited:

The State v. Paul Kundi Rape [1976] PNGLR 96.
The State v. Albert Monja [1987] PNGLR 447.
The State v Thomas Gitai Bawai (26/03/01) N2074.
The State v. Moki Lepi (No.1) (30/4/2002) N2264.
The State v. Peter Malihombu (29/04/03) N2365.
The State v. Damien Anis (24/05/02) N2236.
Mitige Neheye v The State; Martin Gawi v The State [1994] PNGLR 71.

Counsels:
Mr. J. Wala, for the State.
Mr. G. Korei, for the Prisoner.

19 December, 2005

1. KANDAKASI, J: You pleaded not guilty to one charge of rape contrary to s. 347 (1) of the Criminal Code as amended. The main issue for trial was whether you sexually penetrated the victim of the alleged offence. At the end of the prosecutions case, you made a no case submission through your lawyer. That submission was under both the first and second limbs of The State v. Paul Kundi Rape.[1]

2. You advanced two reasons for making that submission. First, you submitted that, the evidence produced by the prosecution failed to establish the main issue for trial. Secondly you submitted that, the totality of the evidence produced against you by the prosecution is insufficient and lacks the necessary credibility to establish neither a prima facie case nor a safe basis to convict you on the charge presented. Further, on the Court raising the issue with your lawyer, you submitted that since you have not gone into evidence as yet, the Court has no power to give any consideration to whether the evidence supports a decision that you have a case to answer on an alternative charge.

3. On Friday last week, I ruled that you have no case to answer on the charge of rape. I arrived at that decision on the prosecution correctly conceding that, it failed to make out a prima facie case against you on the main issue of penetration. I said the prosecution correctly conceded to your submission because although the alleged victim testified in terms of you penetrating her sexually without her consent, the medical evidence contradicted her claims. The medical evidence instead clearly showed that there was no penetration of the victim.

4. As neither of the counsel was able to assist the Court with the support of relevant authorities on the issue of whether the Court should consider whether you have a case to answer on an alternative account, I adjourned a decision on that issue to today. I have been able to conduct some limited research over the weekend unaided by counsel as I was and am now able to determine the issue at hand.

5. In a criminal case, there are two main levels of decision-making. The first determines the guilt or innocence of a person charged with an offence. The second determines an offenders penalty or punishment, provided the first level results in a finding of guilt against the offender. Subject only to one’s right of appeal, once a decision is made at any of these levels, that becomes final. A person already charged and either convicted or acquitted cannot be charged again over the same incident as a matter of law. Section 560(2) (b) and (c) of the Criminal Code specifically stipulates to that effect. Given that, sections such as 541, 546 and 547 of the Criminal Code also provide for the possibility of the evidence adduced in support of a charge not making out the charge but a different one or merely an attempt at committing the offence allegedly committed. As King AJ., said in The State v. Albert Monja,[2] in the context of the predecessor to s. 547 that the provision:

"... is an enabling or facilitative provision, designed to overcome problems which might emerge in the course of criminal trials, whether technical or substantive, and which are not or cannot be cured by laying alternative charges or amending the indictment. Because it is an enabling provision, it should be construed in the way, which make it most effective in that role. That consideration alone is in my opinion decisive ... Most reasonable people would, I am sure, think it absurd that if the evidence in a given case involving a charge of attempt shows that the full offence was probably committed, the accused should automatically escape conviction of attempt and public funds be wasted on a second trial."

6. That being the case, a Court when required to determine whether the evidence adduced by the prosecution establishes a case for an accused to answer or his or her guilt or innocence, the Court is duty bound to ask and answer the question, whether the evidence adduced by the State establishes the charge presented or any other known to law. In my view, the Court must discharge that duty before deciding in favour of an accused person by deciding to acquit him or her. An acquittal is usually the ultimate end following either a finding that an accused has no case to answer or a finding that the prosecution failed to establish the guilt of the accused beyond any reasonable doubt at the end of all of the evidence. It follows logically therefore that, that duty must be discharged both at the no case submission stage and at the end of all of the evidence. For what matters is the ultimate out come of the decision particularly where there is a successful no case submission or a return of a not guilty plea and an accused is about to be set out into the public free after coming into the corridors of the Court.

7. As I intimated earlier, your lawyer did not draw the Court’s attention to any authority that provides or states to the contrary. I will therefore proceed to consider whether the evidence thus far adduced by the prosecution establishes a case for you to answer any other offence known to law.

8. An alternative may be available in either of two ways. The first would be a case in which the evidence discloses an accused committing an offence known to law but is not the charge alleged in the indictment. The second would be in a case where there has only been an attempt at committing an offence and not an actual full commission of an offence. In either case, whether an alternative is available or not is dependant on what the indictment charges.

9. In your case, you have been charge with the offence of rape. I have already upheld your submission that, you have no case to answer on that charge because of a lack of any clear evidence of sexual penetration. Section 546 of the Code authorizes this Court in my view to consider the alternative of attempted rape. The provision reads:

"(1) On indictment charging a person with committing an offence, he may be convicted–

(a) of attempting to commit the offence; or

(b) of attempting to commit any other offence of which he might be convicted on the indictment."

10. In The State v. Thomas Gitai Bawai,[3] I applied this provision in the context of a charge of armed robbery. In that case, I found the evidence adduced by the prosecution did not establish the charge of actual armed robbery. However, I did find that there was sufficient evidence for a finding that, there was an attempted robbery. I therefore returned a verdict of guilty for attempted robbery.

11. The relevant question in your case then is, does the evidence adduced thus far by the prosecution, support a prima facie case against you on the possible alternative charge of attempted rape? Unlike the situation in relation to the charge of rape, there is some evidence of you attempting to have sexual intercourse with the victim. This calls into consideration the basis upon which you made your no case submission.

12. The starting point is that, you made your application under both the first and second limbs under The State v. Paul Kundi Rape.[4] On Wednesday last week, I observed in The State v. Steven Richard CR 73 of 2005 (oral judgment delivered on 14/12/05), that the relevant questions for the Court to ask and answer under both of the limbs under The State v. Paul Kundi Rape,[5] are:

"1. Whether the State has established a prima facie case by producing some evidence for all of the essential elements of the offence an accused stands charge for?; and or

2. Whether on the evidence as it stands, can the accused be lawfully convicted?"

13. The first question and therefore the first limb requires a quick look at the evidence adduced by the prosecution without more and end up with a answer to the question either in the affirmative or in the negative. If there is a clear lack of any evidence for anyone or all of the elements of the offence a no case submission would be upheld as I have done already in relation to the rape charge against you.

14. The second question requires an examination of the evidence adduced by the prosecution. If that examination reveals serious weakness or demonstrates unreliability that no reasonable tribunal of fact could safely make conviction on that evidence, a no case submission should succeed. This therefore requires a consideration of the strengths and weaknesses as well as the credibility of the prosecutions evidence.

15. Applying this to your case, I note that the only direct and eyewitness account of what may have happened is the victim. As I said during the course of both counsel’s submissions, in my short trial experience on the bench, I found this witness lacking in confidence and carefully reconsidering her answers to questions, most simple ones, put to her both in examination in chief, and in cross- examination. I can appreciate that she might have been shy with the presence of strangers in the Court. That however stands in contrast to her refusal of the Court’s offer for her to give her evidence almost in camera. I contrast her with the witness and victim in the case of The State v. Moki Lepi (No.1).[6] There the witness was much younger than the victim in this case but was very confident and freely and promptly gave answers to questions put to her from both sides some of which were very difficult ones for a person of her age or any other witness for that matter. In this case, the victim took much longer and repeated pauses before giving her answers. She gave me the clear impression that she was carefully thinking and working out her answers before giving her answers as in the case of someone having rehearsed in a play or recital.

16. Additionally, the evidence mainly given by the victim is inconsistent with a rape case. This starts with her saying she sat on the steps of a house. There were many people around as there was a function. She stated that, you came from behind her and pulled her to the nearby banana patches. This could have caused her to shout in fright and then attempt to fight you off, taking confidence in the fact that there were many people nearby but she did not. Besides, unless you were dead drunk which is not what the evidence say, you could not have easily grabbed and dragged or pulled the victim to the banana patches for fear of being found out or without anyone else noticing what you set out to do. Yet there is no evidence of anyone noticing what you did or how did the victim’s mother or sister find out that, the victim was missing and that they had to look for her.

17. The victim went on to say without explaining what caused her mother or her elder sister to call out her name, she says her mother called her name and that disturbed you from completing your rape of her after you partially entered her vagina by your penis and left the scene. The medical report does not support her claim of you penetrating her. Further, if indeed you raped or attempted to rape her she would have cried and or immediately reported what you did to her to her elder sister upon her being located but she did not. In her statement to the police, she says she told her parents on 1 May 2005, which was a day after the incident.

18. The victim’s sister’s testimony only comes to corroborate the victim saying, her sister and her parents looked for her. This witness did not however, say for how long the victim went missing for and what caused them to look for her, considering the fact that all of them were in their own village. If the rape story is true than it seems it must have taken nothing more than a very short while for the unspecified person or persons to notice the victim missing in her own village and put up a search party. Her claim of you squeezing her hand as you were getting away from the scene is not indicative of a rapist or attempted rapist running away but someone acknowledging someone else being aware and approving any relationship that might have existed between you and the victim or the witness.

19. For these reasons as well as my observation of the victim’s testimony in the witness box, I have the clear impression that, she was an untruthful and unreliable witness. Her testimony is therefore unreliable and seriously lacks credibility. Overall, I find that the State’s case is weak and very unreliable in relation to a possible charge of attempted rape. I am therefore unable to find that you have a case to answer on the alternative charge of attempted rape.

20. I did give consideration the possibility of a charge of attempted sexual penetration of a girl under 16 years or such other offences. However, on close examination of the provisions of s. 546 of the Code, there must first be a charge of actually committing the offence before bringing it down to the alternative of attempt. This is obvious from the use of the phrase "On indictment charging a person with committing an offence." I have also considered the possibility of you committing any other offence. However, given the finding that the evidence adduced against you is unreliable, I am unable to find that you have a case to answer to any other offence.

21. In view of the above finding, I am left with only one option. That option is to have your charge dismissed and have you acquitted forthwith on the charge of rape, attempted rape or any other offence based on the facts before this Court in this case. I make orders in those terms. I also order that your bail be now revoked and that your cash bail be refunded on provision of the relevant receipt.

________________________

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused

^[1] [1976] PNGLR 96.
^[2] [1987] PNGLR 447.
^[3] (26/03/01) N2074.

^[4] Opt. Cit note 1.
^[5]Ibid.
^[6] (30/4/2002) N2264.