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State v Bernard [2010] PGNC 231; N4538 (25 June 2010)

N4538

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1207 OF 2008

THE STATE

-V-

PAUL BERNARD

Madang: Kawi, J
2010: 10th, 15th & 25th June

CRIMINAL LAW – practice and procedure – ruling on no case to answer submission- accused charged for manslaughter - state witnesses evidence given during police interview different to that tendered in court – state evidence does not support elements of the offence – no case to answer submission upheld – accused has no case to answer – accused acquitted – s 302 Criminal Code Act

Cases Cited:

State –v- Paul Kundi Rape [1976] PNGLR 96
John Beng -v- The State [1977] PNGLR 115
The State -v- Misimb Kais [1978] PNGLR 241
The State -v- Roka Pep [1983] PNGLR 19
The State -v- Roka Pep (No.2) [1983] PNGLR 287

Counsel:

Mr A. Kupmain, for the State
Mr B .Meten, for the Accused

RULING ON NO CASE TO ANSWER SUBMISSION

25th June, 2010

1. KAWI, J: Paul Bernard is charged with one count of the manslaughter of one Peter Namang Which is contrary to section 302 of the Criminal Code. The alleged killing occurred at the Wara Kalap Block at Sisiak No. 3 settlement in the Madang Province.

2. Upon arraignment he pleaded not guilty and the trial commenced with the State calling three witnesses to give evidence. All three witnesses gave sworn evidence.

3. The first state witness was Cathy Koron. She gave evidence of taking part in a game of cards. The accused Paul Bernard was also participant in the card game as well as the deceased Peter Namong. As the card game progressed, the accused suspected the deceased of cheating and winning all the monies. As a result he walked across to where the deceased was sitting and initially kicked him and when the deceased stood up he punched him several times on both his left and right abdomen. The blows and punches forced the deceased to walk away from the scene of the card game to seek refuge in a nearby house identified as "haus boi". Upon entering haus boi the deceased began to vomit what the witness described as "yellowish stuff". As the deceased was vomiting, he collapsed and fell to the ground apparently unconscious. This prompted Cathy Kuron and her husband Kuron Tinki to come to his aid and bathe him. They cleaned him up and while he was still in a state of unconsciousness he was taken to the Modilon General Hospital where he died upon arrival. A cross examination of this witness revealed many major inconsistencies between the evidence she gave in Court and her statement to the Police Investigating officer.

PRINCIPLES OF LAW ON A NO CASE TO ANSWER SUBMISSION

4. In the Paul Kundi Rape case two distinct but related tests or principles were expounded and they may arise at the close of the State case or indeed at any stage of the trial. See also The State -v- Misimb Kais [1978] PNGLR 241.

5. The first test is this; whether on the State evidence as it stands the accused could be lawfully convicted.

6. The second test is this; whether there is a no case to answer submission, the accused may as a matter of law be called upon to answer it. Where there is a case of insufficiency of evidence, an accused person may as a matter of law be called upon to answer it, but there is a discretion vested in the Judge either to take the case away from the jury or a tribunal of fact or not.

7. Two relevant authorities on a no case to answer submission decided after Paul Kundi Rape are The State -v- Roka Pep [1983] PNGLR 19, a decision of the National Court, where the court expressed the two principles in this way:

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 the evidence may be called by the accused, the prosecution case will not be proved beyond reasonable doubt, or the prosecution case will not improve, is hopeless or intrinsically weak, then the judge has a discretion to acquit the accused on the no case submission.

8. Perhaps a better understanding of the principles is the summary in the decision of the Supreme Court in The State -v- Roka Pep No.2 [1983] PNGLR 287 which adopted and applied the principles in The State -v- Paul Kundi Rape.

9. The Supreme Court (per Kidu CJ, Kapi DCJ, Andrew J and Kaputin J) summarized the two tests as follows:

"Where in criminal proceedings at the close of the case for the prosecution, there is a submission of a no case to answer, the question is for the Judge as a tribunal of law, the test is whether the evidence supports the essential elements of the offence.

Where a tribunal decides there is no case to answer the accused is acquitted and that is the end of the matter.

Where the tribunal decides there is a case to answer, it nevertheless has a discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.

(Per Pratt J) "A tribunal should make a finding of no case to answer where (a) there is no evidence to answer an element of the offence charged or (b) there is some evidence covering the elements of the offence charged, but it is so tenuous or inedible or discredited that it amounts to only a scintilla, and thus could not be accepted as persuasive by any reasonable person."

10. In cases of manslaughter the prosecution bears the burden of proving the following elements:

1. The accused killed another person.
2. Such killing was done unlawfully

100. The killing is not justified or excused by law.
     

11. It is important to note section 291 of the Criminal Code which states:

Subject to the succeeding provisions of the code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed that other person."

12. The evidence of the three State witnesses who gave evidence for the State had no consistency. Their respective evidence contained so much inconsistency between themselves. The statements given to Police were contradicted by the oral evidence given in court. This was in addition to the many prior inconsistencies between the Police statements and the oral evidence.

13. In cross examination the three witnesses were contradicted and totally discredited such that their evidence became totally unreliable and untrustworthy and lacking in weight. Counsel for the State submitted that at its highest a death had occurred and so I must in the exercise of my discretion order the accused to answer the charges proffered against him. Even if a death has occurred, at its highest I am unable to satisfy myself of such a death as the relevant medical certificate of death or any relevant post mortem certificates has not been tendered into evidence to legally verify and substantiate an allegation of death. Legally therefore the element that the accused must kill another person unlawfully has not been established by the evidence as it stands.

14. The court is therefore unable to conclude that the evidence as it presently stands supports the essential elements of the offence charged.

15. One of the propositions stated in the case of Roka Pep is that where the tribunal decides that there is a case to answer, it nevertheless has a discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.

16. The Court finds that the evidence here is so lacking in weight that even if the accused is ordered to answer the allegations leveled against him, that will not improve the prosecution case or that the prosecution case will not be proven beyond reasonable doubt. Consequently I will exercise my discretion to stop this case from proceeding any further beyond this stage. The no case to answer submission is upheld and the Court furthers orders that the accused has no case to answer and is hereby accordingly acquitted and discharged from hearing the case.
________________________________________________________

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