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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 368 OF 2005
THE STATE
V
JAMES YALI
MADANG : 22, 23 NOVEMBER 2005
CANNINGS J
Criminal Law – procedure – no case submission – rule in Rape’s case – two limbs or tests – reliance on second limb: whether there is sufficient evidence on the basis of which the court ought to convict the accused.
The accused is charged with four sexual offences. At the close of the prosecution’s case the defence counsel made a no-case submission, arguing that the evidence was tainted and unreliable, and insufficient to warrant the accused being asked to answer the charges.
Held:
(1) The accused had raised legitimate concerns about statements made by the principal investigator and it appears that the manner in which certain documents surfaced during the trial was unsatisfactory. However, it did not follow that the whole of the evidence was tainted.
(2) Even though there is an argument that the evidence is weak, unreliable and inconsistent, a reasonable tribunal of fact could nevertheless base a conviction on it.
(3) There is sufficient evidence based on which the court ought to convict the accused. Furthermore, there is more than a scintilla of evidence.
(4) Accordingly, the no-case submission is refused and the trial shall proceed.
Cases cited
The following cases are cited in the ruling:
Joshua Yaip Avini and Plaridel Nony Acosta v The State [1997] PNGLR 212
The State v Atau Gore (No 1) (2004) N2639
The State v Eddie Sam (2004) N2521
The State v Henry Osare Kales (2001) N2115
The State v Kwale Dire (2001) N2178
The State v Michael Herman and Albert Paul (2003) N2475
The State v Nathan Kovoho (2005) N2810
The State v Nerius Patrick (2004) N2611
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Robert Tamtu (2001) N2166
The State v Roka Pep (No 2) [1983] PNGLR 287
The State v Tauvaru Avaka (2000) N2024
The State v Thomas Sange and Others (2005) N2805
The State v Tolly Amindi (2004) N2683
The State v Tom Kakawi and Others (2002) N2229
RULING
This was a ruling on a no-case submission.
N Miviri for the State
G J Sheppard and N Eliakim for the accused
CANNINGS J: This is a ruling on a no-case submission made at the end of the prosecution’s case. The accused, James Yali, is charged with four sexual offences. On the tenth day of the trial, 22 November 2005, the prosecutor, Mr Miviri, closed the State’s case. This consisted of the oral evidence of 18 witnesses and 19 pieces of documentary evidence. The defence counsel, Mr Sheppard, then made a no-case submission, ie an application that the accused not be called on to answer the charges and that he be acquitted. He based his submission on the principles set out in the leading case, The State v Paul Kundi Rape [1976] PNGLR 96, National Court, O’Leary AJ; in particular on what is known as the ‘second limb’ of Rape.
I will start by setting out the principles in Rape’s case, which consist of two limbs or tests. Then I will summarise the submissions made first by the defence counsel, then by the prosecutor, and finally by the defence counsel in reply. Then I will comment on the submissions and apply the principles in Rape to this case.
THE PRINCIPLES IN RAPE’S CASE
In Rape’s case O’Leary AJ pointed out that when the prosecution has closed its case two distinct and separate questions can arise.
Question 1 – also called the first limb or test – is there some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred?
Note that the question is not: is every element of the offence established beyond a reasonable doubt? That question can only be answered at the end of the trial – if it proceeds – on the whole of the evidence, ie including any evidence adduced by the accused.
If the answer to question 1 is no, the conclusion will be that on the evidence as it stands, the accused could not lawfully be convicted. This is an issue of law. The accused will have no case to answer. The accused will not be required to answer the charge. The accused will be entitled to an acquittal.
If the answer to question 1 is yes: the trial should proceed unless question 2 is answered in the negative.
Question 2 – also called the second limb or test – although there is a case to answer, is there sufficient evidence on the basis of which the court ought to convict the accused?
Again, the issue is not whether the prosecution has proved its case beyond reasonable doubt. It is directed at the situation where there is only a scintilla of evidence or where the evidence is so weak, tainted or unreliable that no reasonable tribunal of fact could base a conviction on it.
If the answer to question 2 is no, ie there is insufficient evidence, the trial judge has a discretion to either not call upon the accused (ie enter an acquittal) or order the trial to proceed. (See Rape at page 99.) If the answer to question 2 is yes, the trial must proceed.
The Supreme Court confirmed the correctness of the above principles in The State v Roka Pep (No 2) [1983] PNGLR 287, Kidu CJ, Kapi DCJ, Andrew J, Pratt J, Kaputin J; and Joshua Yaip Avini and Plaridel Nony Acosta v The State [1997] PNGLR 212, Kapi DCJ, Los J, Salika J.
Recent National Court cases in which the Rape principles have been applied include The State v Tauvaru Avaka (2000) N2024, Gavara-Nanu J; The State v Henry Osare Kales (2001) N2115, Kirriwom J; The State v Robert Tamtu (2001) N2166, Lenalia J; The State v Kwale Dire (2001) N2178, Gavara-Nanu J; The State v Tom Kakawi and Others (2002) N2229, Lenalia J; The State v Michael Herman and Albert Paul (2003) N2475, Lenalia J; The State v Eddie Sam (2004) N2521, Lenalia J; The State v Nerius Patrick (2004) N2611, Sevua J; The State v Atau Gore (No 1) (2004) N2639, Manuhu AJ; The State v Tolly Amindi (2004) N2683, Kandakasi J; The State v Thomas Sange and Others (2005) N2805, Cannings J; and The State v Nathan Kovoho (2005) N2810, Cannings J.
Strictly speaking it is only the first limb of Rape’s case that gives rise to a no-case submission. However, it has become the norm to refer to and rely on both limbs when a no-case submission is made (see Roka Pep (No 2) per Kidu CJ).
THE NO-CASE SUBMISSION
Mr Sheppard made the application on the second limb of the principles in the case of The State v Paul Kundi Rape [1976] PNGLR 96. His submission was that the state of the evidence is such that the judge ought to withdraw the case from the tribunal of fact. He presented two main reasons in support of this submission. First, the investigating officer had admitted that he was out to get the accused, James Yali, at all costs, which meant that the way in which the case had been investigated and prosecuted tainted the whole of the evidence presented on behalf of the State. Secondly, the evidence was so inconsistent, vague and dependent on circumstantial evidence, the entire case must be withdrawn.
First ground: conduct of the investigation and case
Mr Sheppard highlighted that significant concessions had been made by the final State witness, Senior Sgt Steven Yalamu, as to the way in which the investigation had been conducted. Senior Sgt Yalamu was asked in cross-examination whether he was out to get James Yali at all costs. He answered the question frankly “why, yes I am”. This indicated, Mr Sheppard submitted, that there had been a fundamental mishandling of the investigation and prosecutorial function of the State. The accused has been denied the full protection of the law under Section 37(1) of the Constitution. He has also been denied a fair hearing pursuant to Section 37(3) of the Constitution. James Yali was entitled to a proper investigation in which the rules of fairness apply. Instead there has been an improper investigation. The rules of fairness have not been adhered to.
One of those rules is that an investigating officer must put all relevant documents that he had discovered in the course of the investigation to the Committal Court. However, that has not been done. Because the investigator was out to get the accused at all costs, exculpatory documents have been withheld. This has had the effect of tainting all the evidence that has been produced to the court. The case has been predicated on the work of an investigator who was acting out of improper motives. This should make the court extremely concerned about the nature and value of the evidence that has been produced. The investigator acted contrary to his professional duty, which is to investigate everything relevant and to submit relevant documents to the defence, prior to the process of committal. Not only did the investigator withhold exculpatory documents from the defence before the committal, he continued to withhold them during the trial, until the end of the prosecution’s case. The investigator even withheld documents from the prosecutor, Mr Miviri. This is evident from the way in which the documents were produced to the court.
One of these documents was extremely relevant: the first handwritten statement the complainant, Olivia Daniels, gave to the police. It is evident that what happened was that her first statement was deemed not good enough to ‘get Yali’. Therefore, her original statement was crossed out and a new statement was produced. Clearly if all the material that has now been produced to the court had been produced to the committal magistrate, the accused would not have been committed. For this reason alone all of the evidence has been tainted and the accused should not be called upon to answer to any of the charges.
By upholding the no-case submission on this ground the court would be sending a message to the Constabulary that its job is not to get and convict a person at all costs. Their duty is to investigate fairly. That was not done in this case. Time and again the defence received evidence by chance and were surprised by the evidence that was forthcoming. That is not the way a trial is supposed to be conducted. It is intrinsically unfair and it means that the accused person has been denied the full protection of the law. His constitutional rights have been breached and the way in which the prosecution has been conducted means that the processes of the court have been abused. The court should not allow this to happen.
Second ground: nature of the evidence
Mr Sheppard submitted that, putting to one side the taint that pervades the evidence, the evidence as a whole is so inconsistent, vague and dependent on circumstantial evidence that the entire case should be withdrawn.
He referred firstly to count 3, which is the charge laid under Section 229E of the Criminal Code. This is the charge that alleges that the accused engaged in an act of sexual penetration of a child between the ages of 16 and 18 years with whom he had an existing relationship of trust. The crucial element here was the age of the complainant. Was she at the relevant time aged between 16 and 18 years? The only evidence produced as to age was the oral evidence of her mother. However, the defence tendered a birth certificate through the witness Elizabeth Daniels. It was signed by a Catholic sister in Vunapope. This stated that Olivia Daniels was born in 1984, making her aged 20 at the time of the alleged offence.
Elizabeth Daniels gave evidence in re-examination that she had received the birth certificate in blank and filled it in. This throws grave doubts on the veracity of the claim that Olivia Daniels was aged only 17 at the relevant time. This sort of evidence could easily have been obtained by the investigating officer with a little bit of trouble. The prosecution had ample time to obtain evidence on this crucial element of Section 229E. That they have not done something so basic suggests that the truth is as stated in the birth certificate that has been tendered in evidence. If the prosecution now wants to say that the birth certificate is a forgery, why didn’t they get another one? The inference must be drawn, Mr Sheppard submitted, that it would surely have shown that the accused was innocent.
The conclusion therefore must be that Helen Daniels lied to the court. It could hardly be expected that a mother could forget the date of birth of one of her children and get it wrong by three years. This all points to the conclusion that Helen Daniels was lying about Olivia’s date of birth, in order to avoid the issue of consent. When that conclusion is added to the other facts that have emerged in this case – eg the letter of the demand, the payment of money, the letters of withdrawal and other documents seeking withdrawal of the charges, countersigned by the complainant and other members of the family – it all points to a pattern of conspiracy. Any investigator worth his salt would have seen these signs of a conspiracy, which throw considerable doubt on the complainant’s story.
Mr Sheppard then made submissions relating to the three other charges – counts 1, 2 and 4 – which have a common theme in that they rely to some extent on lack of consent. The striking feature of the evidence in relation to all these charges is that in the final analysis the guilt or innocence of the accused depends upon the evidence of two people who were said to be present at the relevant time: the complainant and the accused. This boils down to the question of who to believe: the complainant or the accused? Mr Sheppard submitted that the complainant’s story and the way she told it was not capable of being believed.
As to count 1, the abduction charge, there was ample evidence to show that the accused did not abduct the complainant. The most he might have done was to insist or persuade her at the end of a conversation to get into his motor vehicle. Sammy Tindipu’s evidence was only enough, at its highest, to show that the accused offered some element of persuasion. There were no threats. Another witness’s evidence was that the complainant waved to him as she was going past. She didn’t cry or yell out for help. So all the evidence suggests that the complainant freely and voluntarily got into the back of the vehicle. Then she waved to one of her friends. They are not the actions of someone being abducted.
As to count 2 – the rape charge – the evidence here, concerning the crucial moment of sexual penetration, depends on two people who were said to be present. For the court to allow the case to proceed, it must be satisfied that the victim’s evidence is clear, concise and consistent. There should be no doubt about the integrity of the complainant’s statements and the veracity of her evidence. But that is where the prosecution’s case collapses as Olivia Daniel’s evidence was not clear. It was the opposite. It was vague and changing. For example, when the court viewed the site of the alleged incident, she changed her evidence by saying that the lights could not be switched off from inside.
Another dramatic example of her ability to change her story as the circumstances required, was when she changed her story about being a virgin. She did this when it became apparent that the evidence was suggesting that she had suffered no internal injuries and no rupturing or damage to her genitalia. Her evidence changed quicker than a chameleon. Her evidence was inconsistent and unclear. She changed her story so often it was difficult to keep up. She changed her stories on a number of occasions even before she got into the witness box. As a witness she had no integrity and therefore her evidence had no veracity.
If this no-case submission is refused, the court will be in a position where it will be asked to accept the word of someone who is a blackmailer, an extortionist and a liar; and someone who is a cheat, because she has received some money and so did her mother. The complainant is a dishonest person. The court will be asked to accept the evidence of someone who changes their story as circumstances require and someone who has received a great deal of money and has been willing to write letters to the Police withdrawing her complaint after receiving the money.
The court is clearly not dealing with someone who is stupid. She has a good command of English. She had no trouble smart-talking the accused at the Smugglers Inn. Her mother is an English teacher. She and her mother cannot be heard to say that they were signing something that they did not understand. They received the money, consistent with their demands and their blackmail and the bargain was complete when they withdrew the charges. Mr Sheppard submitted that the complainant is a wilful liar, a blackmail artist and an extortionist. Her evidence was continually prevaricating. She was ducking and weaving. She changed her story on a multitude of occasions. She was the sort of witness who elected not to answer questions when the going got tough. She said “pass” when she did not want to answer a tough question. It was not as if she did not understand the questions.
There was very little other evidence of a corroborative or circumstantial value. It is really a case of the complainant’s word against the accused. Nobody else was there at the relevant time. At this stage all the court has to go on is the complainant’s evidence. Mr Sheppard gave examples of the lack of worth of some of the other witnesses:
Therefore the only direct evidence of lack of consent is from the complainant Olivia Daniels. The other evidence, whether it is called indirect or circumstantial, can go either way. If it is consistent with innocence, or rather than guilt, the benefit of the doubt must go to the accused. It is clear that the driving force behind the complaint was the complainant’s brother Oscar Daniels Jnr. Olivia Daniels did not complain in the first instance. That reflects adversely on her credibility. Oscar became involved because he saw a bankable proposition. The first thing he did was to take her to the hospital. But when he got the medical report, rather than give it to the police, he took it to the bank. He saw it as a money-making venture. Then, instead of taking that information to the police, he told the police that Olivia was away in Lae. He lied. It is reasonable to be thought that if a person has a credible story of rape to relate, the first thing he should have done was to go to the police.
When Olivia eventually went to the police and gave her story for the first time, it included clear lies – that the accused banged her head on the dashboard of the car. That was crossed out, obviously because it was not considered good enough. The complainant also changed other parts of her story. Her claim that she was with the accused because he had abducted her and held her against her will is fanciful and unbelievable because she had at least nine opportunities to escape, if her story were true. Clearly however her story was not true. She was not abducted. The natural inference to draw from that is that any sexual intercourse that took place was with her consent.
The thrust of Mr Sheppard’s submission is that there is a requirement at this stage of the proceedings, in order to allow the case to go forward, that the complainant’s evidence be clear, concise and consistent. Here, the evidence was vague and changing and fundamentally dishonest in a menacing way.
THE STATE’S RESPONSE
Mr Miviri began by submitting that the law is for everyone. Whether the accused is an average person or a leader the law applies equally. This case should be allowed to proceed according to law. According to the principles in the case of Roka Pep (No 2) [1983] PNGLR 287, this is not the time to assess the credibility of witnesses or distinguish between the truth and falsity of evidence. A person can only be tried once. Guilt or innocence can only be determined once. The court is only required to be satisfied that at this stage there is prima facie evidence of the elements of the offence. The court should not be concerned about the credibility of the evidence. It only has to be satisfied that there is evidence of the elements of the offences.
As to the requirements to show sexual intercourse, there is clear evidence that sexual intercourse took place from the evidence of the doctors. As to whether it was forced sexual penetration, Dr Clement’s evidence to redness of the vagina indicates forced entry. So therefore on the face of it the defendant has a case to answer. The court should not be concerned at this stage of the proceedings whether the complainant is an extortionist. That is a matter to be weighed up at the end of the whole case. The court should not be concerned with the issue of whether there is proof of the elements of the charges beyond reasonable doubt. That is also something that can only be determined at the end of the whole case, i.e. after the accused has had the opportunity to present any evidence. At this juncture it is a question of law and not a determination of facts that the court should be most interested in. Mr Miviri submitted that the accused clearly has a case to answer on all counts. As to the claim that the prosecutor was improperly motivated that can also only be taken into account at the end of the whole case.
DEFENCE COUNSEL’S REPLY
Mr Sheppard submitted that Mr Miviri had misunderstood the nature of the application before the court. He submitted that Roka Pep’s case shows that there is a discretion in the trial judge to weigh the evidence and acquit the accused at the end of the prosecution case. He also referred to the decision of Lenalia J in The State v Tamtu (2001) N2166. The trial Judge upheld a no case submission and acquitted the accused after weighing the prosecution’s case in that rape case. His Honour highlighted in that case that the evidence relied on by the prosecution was so dubious and badly discredited in cross examination that it had to be withdrawn from the tribunal of fact. That case has a striking similarity to the present case as Lenalia J highlighted that the complainant had the opportunity to escape from a vehicle but did not get out. The trial Judge examined the conduct of the complainant and found it necessary to discharge the accused. Mr Sheppard asked this court to take the same approach and reach the same conclusion. It is appropriate therefore that the case be withdrawn.
APPLICATION OF PRINCIPLES
I will now apply the principles of Rape’s case. I will not concern myself with the question of whether there is some evidence of each of the elements of the offence. I presume that there is some evidence, as the defence is basing its submission on the second limb of Rape. The question is whether there is sufficient evidence on which the court ought to convict the accused. The application in the present case is based on two separate grounds: the tainting of the evidence and its unreliability. So I will consider each ground separately. The questions to be asked in relation to each ground are the same. To repeat:
If the answer to these questions is yes, the case should proceed. If the answer is no, the court has a discretion to exercise. All these questions converge into the same line of inquiry, which is directed towards asking the trial judge whether the discretion to stop the case going any further should be exercised in favour of the accused. It is not a question of law (unlike the line of inquiry for the first limb of Rape’s case). It is a matter of discretion. The discretion becomes exercisable when one of the three questions identified is answered ‘no’.
1 The ‘tainted evidence’ ground
I accept the import of Mr Sheppard’s submission that it is a matter of concern that the principal investigator for this case stated in cross-examination that he was out to get the accused, James Yali, at all costs. The cross-examination was vigorous and followed a series of questions put to the investigator to ascertain whether he had seen certain documents, such as the letter of demand, before. In respect of a number of documents, Snr Sgt Yalamu, replied no, this was the first time that he had seen them. Mr Sheppard asked him whether the documents concerned him. He replied no, they did not. I also am inclined towards accepting Mr Sheppard’s submission that the manner in which certain documents surfaced during the trial – catching not only the defence but the prosecution, by surprise – was unsatisfactory. I can appreciate the argument that the relevant documents should have been put before the committal court.
However, I do not consider that it follows that because of these apparent procedural errors, all of the evidence is tainted. There is another explanation for what Snr Sgt Yalamu said in the witness box and that is that he – notwithstanding he is an experienced and senior police investigator – was caught off-guard by a series of penetrating questions from defence counsel. Therefore, I do not conclude at this stage of the case that all of the evidence is so tainted that it is unsafe for the trial to continue. I hone in on the third question listed above and answer it by concluding: yes, even though there is an argument that the evidence is tainted a reasonable tribunal of fact could nevertheless base a conviction on it.
For the sake of completeness, I conclude that, even presuming that the evidence is to some extent tainted by the prosecutor’s admission and the manner in which it seems the investigation has been conducted, there is nevertheless sufficient evidence on the basis of which the court ought to convict the accused. Furthermore, there is more than a scintilla of evidence. The first ground of the application is rejected.
2 The ‘no more than a scintilla of evidence’ ground
The defence counsel has, not unreasonably, outlined a number of areas in which the evidence in support of the State’s case is arguably unreliable or has arguably been discredited. The complainant’s version of events that she has given to different authorities does appear not to have been consistent. There are arguable areas of inconsistency within her oral testimony and between her oral testimony and prior statements. In view of the evidence about the letter of demand, the receipt of a considerable cash sum and the apparent withdrawal of the complaint – and the evidence about the sequence of those events – there is clearly an argument to be made that the accused is the victim of a conspiracy at the hands of the complainant and members of her family. By the same token there is an argument to be made that the complainant and members of her family were the victims of harassment by the accused or those acting on his behalf. In other words, there are at least two sides to this story. There is also an argument to be made that, even though there was a conspiracy of some sort and even though the parties to it may appear to have committed criminal offences (eg demanding money with menaces) proof of such a conspiracy does not extinguish the criminal liability of the accused. That is, there appears to be an argument that there was both a conspiracy and the commission of crimes by the accused. Those persons who were allegedly the co-conspirators – in particular, Olivia, Helen, Oscar and Elizabeth Daniels – explained in their evidence, to some extent, how and why certain things were done and in particular how and why certain documents came to be signed. I think it is too early to say, at this stage, which side is the truthful side of the story.
As to the issue about whether I should be weighing the evidence for the purposes of dealing with this application, I think Mr Sheppard is right to submit that I need to weigh the evidence. However, I consider that Mr Miviri was also correct to a large extent in submitting that this is not the stage of a case to be overly concerned about credibility of witnesses. There is a middle path to tread through these submissions and that is along the lines that the task of the judge is to ascertain whether the evidence is so unreliable, inconsistent or lacking in detail that it would be unfair on the accused to let the case continue.
I do not think the evidence in this case is necessarily that bad, as there are arguments and explanations available to the prosecution. They need to be tested and weighed further before a decision is made on whether the elements of any of the charges have been proven beyond reasonable doubt.
The submission in support of the application devoted a lot of time to showing how many opportunities the complainant had to run away once she got onto and then into the accused’s vehicle. These were all sensible arguments. However, there is another side to that story too.
I conclude this ground by using the same form of words as for the first ground. I hone in on the third question listed above and answer it by concluding: yes, even though there is an argument that the evidence is weak, unreliable and inconsistent, a reasonable tribunal of fact could nevertheless base a conviction on it. Even presuming that the evidence is unreliable and inconsistent, there is nevertheless sufficient evidence on the basis of which the court ought to convict the accused. Furthermore, there is more than a scintilla of evidence. The second ground of the application is rejected.
3 Residual discretion
Even if I had in relation to either of the grounds put forward answered no, there is insufficient evidence, I would have exercised my discretion to order the trial to proceed. This is a complex case and the evidence is not going so clearly in favour of the accused that it would warrant stopping the case now. An accused person must be given the full protection of the law. He is presumed innocent until he is proven guilty according to law. However, also to be weighed in the balance is the collective interest of the People in the effective dispensation of justice, which entails an individual being given the opportunity to answer charges once a certain body of evidence is adduced against him.
ORDER
The no-case submission is refused. The trial shall proceed in relation to the four charges the subject of the indictment.
Ruling accordingly.
____________________________
Lawyer for the State : Public Prosecutor
Lawyers for the accused : Young & Williams
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