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State v Benny [2012] PGNC 189; N4765 (19 July 2012)

N4765

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 515 & 516 OF 2012

STATE

V

MOSA BENNY

Accused

Kainantu: Ipang AJ
2012: 19 July

CRIMINAL LAW– Sexual Penetration – 2 counts – Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002 – ss. 229A(1) & 229A (1) & (2) – Accused an adult male person alleged to have inserted his penis into the anus of two (2) juvenile boys aged 10 and 14 years old.

CRIMINAL LAW – PRACTICE & PROCEDURE – No case submission – First Limb or First Test in The State v Paul Kundi Rape [1976] PNGLR 96 invoked - Evidence on Medical Report Cards that victims have been sexually assaulted however no evidence that the accused was the assailant as the victims did not give evidence to identify the Accused – Insufficient evidence – No case submission upheld – Accused Acquitted.

Cases Cited

State –v- Paul Kundi Rape [1976] PNGLR 96
State –v- Roka Pep (No. 2) [1993] PNGLR 287
State –v- Nathan Kovoho CR. No. 163 of 2005 (N2810)

Counsel

Mr. A. Bray, for the State

Mr. M. Mumure, for the Accused

RULING ON NO CASE SUBMISSION

19th July, 2012

1. IPANG, AJ: This is the ruling on no case submission by Mr. M. Mumure of counsel for the accused and the response to the no case submission by Mr. A. Bray of counsel for the State. At the close of the State's case, on two (2) counts of sexual penetration by the accused, counsel for the accused submitted that the accused has no case to answer and as the case stood, the evidence is insufficient and the court should acquit the accused.

BRIEF FACTS

2. The brief facts as alleged by the State are as follows; On the 17th of January, 2012, the accused Mosa Benny had lured two (2) victims 'BK' and 'KJ' to follow him to his house at Kanopa village, Kainantu District. He told the two victims that they had stolen cucumbers in a garden and the owner of the garden would perform black magic on them. He told the victims that he had black magic to prevent black magic of the owner of the garden. They arrived at his house in the night. He removed the trousers of the victim 'KJ' and sexually penetrated the anus of 'KJ' with his penis. After accused finished with the victim 'KJ', he moved to another victim 'BK' and sexually penetrated the anus of 'BK' with his penis. At that time the victim 'KJ' was 10 years old and the victim 'BK' was 14 years old.

3. State alleged the accused breached s. 229 A (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002 for the victim 'BK' and s. 229 A (1) & (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act (supra) for the victim 'KL'.

THE LAW

4. The s. 229 A of the Criminal Code (Sexual Offences and Crimes Against Children) Act states;

"229 A. Sexual Penetration of a Child

(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to subsections (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against subsection (1) is guilty of a crime and is liable, subject to section 19, to imprisonment for life."

5. In order for the State to prove its' case, it must establish the following elements:

1. A person (Mosa Benny)
   
2. Act of sexual penetration (anal penetration)
   
3. Victim child (10 years & 14 years)
   

STATE'S CASE

6. State tendered the following documents with consent from the Defense Counsel. The following were the documents tendered:

(i) Copy of the Medical Book for 'BK' marked as Exhibit 'B1'

(ii) Affidavit & Medical Report by Dr. Kimayuwave for 'BK' marked 'B2'

(iii) Copy of Medical Book for 'KJ' marked 'C1'

(iv) Affidavit of Dr. Kimayuwave marked 'C2'

(v) Medical Report for 'KJ' by Dr. Kimayuwave marked 'C3'

7. After tendering of the above documents, State had no witnesses to call so formally closed it's case. Mr. Mumure of counsel for the accused made a no case submission on both counts. He relied on the First Limb in State v Paul Kundi Rape [1976] PNGLR 96 where the court held that:

"where there is a submission of no case to answer at the close of the case for prosecution, the question to be asked is not whether on evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully convicted. This is a question of law; to be carefully distinguished from the question of fact to be asked at the close of all evidence whether prosecution has proved its case beyond reasonable doubt."

8. In the case of State v Nathan Kovoho CR. No. 163 of 2005, N2810 Cannings, J further elaborated on the two (2) distinct and separate questions that arise in a no case submission. These are the First Limb or First Test and the Second Limb or Second Test. For the purpose of this instant case, it is the First Limb.

First Limb or First Test

9. Question1: 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? If the answer to question 1 is "no" the conclusion will be that on the evidence as it stands the accused could not be lawfully 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. Refer to Nathan Kovoho case (supra).

10. The Defense counsel submitted that the identification of the accused person has not been established. The Medical Reports do show the evidence of penetration but they do not pin point to the accused person. Both victims did not give evidence and so the accused person has not been identified of his involvement.

11. Basically, the defense counsel's submission is that one of the key elements of the offence under s. 229 A (1) & (2) on the identification of who is that person (or the accused) has not been established. In State v Roka Pep (No. 2) [1993] PNGLR 287 – Sir Buri Kidu CJ (former and now deceased) stated, "It appears to me that a submission on this basis should be entertained only when the Judge has no weighing up to do. That it must be 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." This is more apparent in this present case.

12. I therefore uphold the no case submission and acquit the accused on both counts.
____________________________

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