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State v Ugwalubu [2009] PGNC 70; N3657 (22 May 2009)

N3657

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1159 OF 2007

THE STATE

V

MOWANA UGWALUBU

Waigani: Paliau, AJ

2009: May, 19th & 22nd

CRIMINAL LAW – Practice & Procedure – No case submission – When such submission is made – Whether weighing of evidence required – Evidence adduced by State lacks weight and unreliable– Submission accepted – Accused has no case to answer.

Cases cited:

The State v. Paul Kundi Rape [1976] PNGLR 96
The State v. Roka Pep, [1983] PNGLR 287
The State v. Lasebose Kuriday (1981) N300 (18/06/81)
Rosa Angitai v. The State [1983] PNGLR 185

Counsels:

Mr. D. Kuvi, for the State
Mr. J. Napu, for the Accused

RULING ON SUBMISSION OF NO CASE TO ANSWER

22 May, 2009

1. PALIAU, AJ: The accused is indicted for the offence of Sexual Penetration contrary to s.347 (1) of the Criminal Code.
   

The Facts

2. The State alleged in the indictment that the accused on the 6th September 2006, at Waigani, National Capital District, sexually penetrated the victim without her consent by inserting his penis into her vagina. It was further alleged that the accused at that time had a relationship of trust, authority or dependency with the victim.
   
3. The accused pleaded not guilty to committing the offence.
   

The Evidence

4. The State called the victim as its only witness and tendered by consent the accused Record of Interview (ROI) in English, dated 27th March 2007 and the Statement by Sophie Bigilale, the victim, dated 21st March 2007.
   
5. The Defence applied to have the case not to proceed any further after the State formally closed its case. It made a no case submission.
   

The Issue

6. The issue that I am required to determine is whether the accused has a case to answer or not case to answer.
   

The Relevant Law

7. Section 347(1) of the Criminal Code defines rape as:
   

"347. Definition of rape.

(1) A person who sexually penetrates a person without her consent is guilty of a crime of rape.

8. The elements of the offence are -
   
   1. a person;
      
   2. sexually penetrates;
      
   100. another person;
        
   4. without consent.
      
9. In his no case submission, Counsel for the accused appeared to have presented his argument along the second test principle in the case of The State v. Paul Kundi Rape [1976] PNGLR 96. This is the most quoted and followed case law that deals with the subject of ‘no case to answer submission.’ In that case two distinct questions or principles arose and they were firstly, whether on the evidence as it stands the accused could lawfully be convicted. And secondly, whether the evidence is so insufficient that the accused ought not to be called upon to answer it.
   
10. In the first, it requires the Judge to look at the evidence to determine whether the evidence supports the essential elements of the offence. This is a question of law: The State v. Roka Rep (No.2) [1983] PNGLR 287. The second principle is that a Judge has discretion to stop the case where there is a mere scintilla of evidence and is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. This is also called the second limb of the State v. Paul Kundi Rape (supra).
    
11. In the case of The State v. Lasebose Kuriday (1981) N300 the second principle in Paul Kundi Rape (supra) was also considered by His Honour Kearney DCJ in the following terms:
    

"It appears to me that 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, where the State evidence is so dubious, or so tainted, or so obviously lacking in weight or reliability, or has been so discredited in cross-examination, that it is clear that no reasonable tribunal could safely convict on it......"

12. In the present case, I now have to decide whether the accused has a case to answer or no case to answer. In doing so I still have to do some weighing of evidence for I have to justify my ultimate decision. But any weighing of evidence must be kept to the absolute minimum. In the case of The State v. Lasebose Kuriday (supra) Kearney DCJ 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 to the absolute minimum."

13. In the Supreme Court case of Rosa Angitai v. The State [1983] PNGLR 185 Breadmeyer J, when considering the issue of whether reasons should be given on a no case submission said:
    

"A no case submission can be made in a number of different situations. Except where an accused is acquitted, I consider no reasons should be given. The different situations in summary form are as follows:

14. And so, it follows that if I accept the submission of a no case to answer and in turn acquit the accused, I have to give reasons. And this requires at least some weighing of the evidence adduced by the State, as long as the weighing is kept to the absolute minimum.
    
15. In this case, I find that the accused has a case to answer on the first leg of the State v. Paul Kundi Rape (supra). That is to say that the evidence supports the essential elements of the offence. There is some evidence. However, in weighing the evidence by the State, I find that although there is some evidence supporting the essential elements of the offence, it is very clear that the State evidence is so obviously lacking in weight or reliability, or has been discredited in cross-examination that I as a tribunal of fact could safely convict on it.
    
16. The victim, who was the only State witness said that at the time of the offence, there was no one around accept herself and the accused. So she did not tell or report the matter to anyone. When cross-examined as to whether she reported the matter immediately thereafter, she said she found it difficult as she did not know who to report the matter to. This I find it difficult to believe. Accusing someone of sexually penetrating you is a very serious offence, and carries the maximum penalty of 15 years imprisonment. Definitely if she was concerned about this incident and disgusted, to put it in her own words, a right thinking person in her shoes would have reported the matter to the Police.
    
17. Secondly, she gave evidence in cross-examination that she was employed previously at Hideaway Hotel and had to leave that employment because somebody asked her for sexual favours. In the present situation she accepted that sexual favour because she needed to be employed so she can assist her mother to support the other members of the family. The desperate situation of securing employment was also ever present in her previous employment, yet she did not consider this fact when employed at Hideaway Hotel.
    
18. Thirdly, she reported the matter after some 5 to 6 months, as she put it, the accused kept on harassing her for sexual favours. I consider this explanation unacceptable. She could have reported the continued sexual harassment to the accused’s superiors, as by that time, she now must have some idea as to who to report such matters to.
    
19. Finally, her papers for employment with the PNG Teachers Association were already signed before she accepted the offer to have sex with the accused. The accused was not responsible for the recruitment of staff to the PNG Teachers Association. It is the National General Secretary who has this authority. The victim could have easily walked away.
    
20. I therefore accept the no case to answer submission. I accordingly acquit and discharge the accused. His bail monies shall be refunded forthwith, upon presentation of receipt.
    

__________________________________________
Public Prosecutor: Lawyer for the State
Napu & Co Lawyers: Lawyer for the Accused