N5530

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 872 OF 2008

THE STATE

V

PAUL HUDSON
Popondetta: Toliken, AJ
2014: 11th, 12th, 13th, February

CRIMINAL LAW – Practice and Procedure – No case submission – Whether the State has established a prima facie case – Whether the defence can rely on both legs of the no case submission – Distinction between no case submission and submission to stop the case considered - Duty of Counsel to allow witness to give her evidence in-chief in a full and ample manner. 

The accused was charged with three counts of aggravated rape in contravention of Section 347 of the Criminal Code Act Ch. 262. At the end of the prosecution case counsel for the accused made a no case submission. He relied on both legs of the principle of no case as espoused in The State v Kundi Rape [1976] PNGLR 96 and The State v Roka Pep (No.2) [1983] PNGLR 287. When countering the defence submission the State also argued that the defence cannot rely on both legs of the principle. 

Held: 

(1)	While the State led evidence establishing the essential elements of the charge of rape – that the complainant 	was repeatedly sexually penetrated over some 36 hours whilst tied up, gagged and blind-folded (circumstances of aggravation) - the complainant's evidence identifying the accused as her assailant was so ambiguous, so dubious and so discredited in cross-examination that the Court in its discretion must stop the case from continuing. 

(2)	While there is some merit in the State's argument that the defence cannot rely on both legs of the no case submission I do not think that there is anything stopping the defence from making both submissions of no case to answer and to stop the case. However, if it does, the proper thing to do is to raise submissions either to stop the case or that the accused has no case to answer, as the case may be, in the alternative. 

(3)	There is a lack of appreciation that the "no case" submission may arise in two broad situations which are separate in both purpose and effect. The first situation - no case to answer - is premised on the argument that the State failed to canvass all the necessary elements of the charge in its evidence and as a matter of law the effect or result is a ruling that the accused has no case to answer and must therefore be acquitted and discharged. The second, however, is not a ruling that the accused has no case to answer. Rather it is an application to "stop the case" notwithstanding that the State has covered all the necessary elements of the charge in its evidence. It involves a question of fact though there is no real weighing of the evidence. If the court is of the view that the evidence is so insufficient or so dubious or so tainted or had been so discredited in cross-examination that it would not as a reasonable tribunal of fact in fact safely convict on the evidence then it may, at its discretion stop the case from proceeding further. The discretion is, however, exercised very sparingly if at all and only in the clearest or hopeless of cases. 

The State v Kudi Rape[1976] PNGLR 96; The State v Lasebose (1981) N300; The State v. Roka Pep No.2 [1983] PNGLR 287. 

(4)	A witness should be allowed to give her testimony in chief in a 	full and ample manner before she/he is examined by her lawyer. In that way the Court (and counsel and the accused person for that matter) will be able to easily draw out the pertinent facts, both undisputed and those in issue.

Cases Cited

The State v Paul Kundi Rape [1976] PNGLR 96
The State v Lasebose Kuriday (1981) N300 
The State v Roka Pep (No.2) [1983] PNGLR 287

Counsel

J.Waine, for the State
P. Palek, for the prisoner

INTERLOCUTORY RULING

13th February, 2014

1.	TOLIKEN, AJ: Paul Hudson stands indicted with three counts of rape contrary to Section 347 of the Criminal Code Act Ch. 262. The indictment also alleged circumstances of aggravation for each count. The three counts are as follows:

COUNT 1:

PAUL HUDSON of Bakumbari Village, Oro bay, Oro Province stands charged that on 31st December 2007, at Biru Kikiri, in Papua New Guinea he sexually penetrated one HONA Theresa without her consent by inserting his penis into her vagina

AND PAUL HUDSON confined and restrained the complainant before and after the offence.

COUNT 2:

PAUL HUDSON of Bakumbari Village, Oro bay, Oro Province stands charged that on 01st January 2008, at Biru Kikiri, in Papua New Guinea he sexually penetrated one HONA Theresa without her consent by inserting his penis into her vagina

AND PAUL HUDSON confined and restrained the complainant before 	and after the offence.

COUNT 3:

PAUL HUDSON of Bakumbari Village, Oro bay, Oro Province stands charged that on 02nd of January 2008, at Biru Kikiri, in Papua New Guinea he sexually penetrated one HONA Theresa without her consent by inserting his penis into her vagina

AND PAUL HUDSON confined and restrained the complainant before the offence.

2.	The State's case consisted of: 

1.	the oral testimony of the complainant
2.	the oral testimony of Mr. S. Mamaledi, a Health Extension Officer (HEO) attached to the Popondetta General hospital who was called to tender a medical report of his examination of the complainant (Exhibit P3)
3.	The accused's Record of Interview ( Original Pidgin version and its English translation (Exhibit P1 and P2) 

4.	The defence also successfully sought to have the complainant's statement to the Police tendered into evidence as a prior inconsistent statement. ( Exhibit D1) After the close of the State's case Mr. Palek made a no case submission. 

5.	Mr. Palek relied on both limbs of the Kundi Rape principle interestingly not arguing in the alternative. (The State v Paul Kundi Rape [1976] PNGLR 96; The State v Roka Pep (No.2) [1983] PNGLR 287). Mr. Waine for the State countered that the State had established a prima facie case – that the complainant was repeated sexually penetrated against her will by the accused over two nights and a day. Whilst there was some issue with identification both at the scene and at a police identification parade this is not the stage for the Court to weigh or even consider the credibility of the evidence which the Court may only do at the end of the trial. Mr. Waine argued further that the defence cannot rely on both legs of the Kundi Rape principle – that it cannot in the one breath argue that the State has not established all the essential elements of the charge and at the same time rely on the second leg i.e. that the evidence is so lacking in weight or so damaged by cross-examination that the case should therefore be stopped at this stage. 

6.	So apart from deciding whether the accused has a case to answer I have to rule on the point raised by the State that the defence cannot rely on both legs of the principle on no case.
 
7.	The law is settled on no case submissions. (The State v Paul Kundi Rape; The State v Roka Pep (No.2) (supra) Basically at this stage of the trial all that is required of the State is for it to establish a prima facie case. This means that its evidence must have established prima facie sufficient evidence for each element of the charge under enquiry.

8.	The evidence must, however, go a little beyond that. It must be more than a mere scintilla. It must prima facie be cogent, admissible, credible and reliable and must not have been discredited beyond salvage by cross-examination. The prosecution is also under a duty to ensure that the evidence is presented in a manner which the Court and the accused can understand and appreciate. I will return to this point later on. But then of course there is no weighing of evidence at this stage but even then the Court must be put in a situation where it can easily ascertain the prima facie facts which the State relies upon to establish its allegations.

9.	Basically the first leg of the no case principle is that the accused will not be called upon to answer the charge if the State, at the close of its case, failed to establish a prima facie case. In other words the evidence must have established sufficient evidence on each element of the charge. The question for the Court here is one of law. It is not whether the accused ought to be convicted on the evidence as it stands but whether he can be lawfully convicted. The Court is not concerned about whether the State has proved its case on the required standard –beyond reasonable doubt – nor does it do any weighing of the evidence as it would do after the close of evidence both for the State and the accused. Hence where the evidence does not establish any or all of the necessary elements of the offence or charge, the accused as a matter of law must not be called upon to answer the charge.

10.	The second premise upon which the principle stands is where the Court, in its discretion "stops the case", even if the evidence has established all the necessary elements of the charge. To quote O'Leary AJ in the State –v- Kundi Rape (supra) at p.99 -

"… the question there is not whether there is any of some evidence on which a jury could lawfully convict, but whether there is sufficient evidence on  which a reasonable jury ought to convict"…" Where there is a case of insufficiency of evidence…, an accused as a matter of law cannot be called upon to answer it, but there is a discretion in the Judge either not to call on him at all, that is to take the case away from the jury, or at least, to leave it to the jury to say whether or not they wish to hear move".

11.	This is a question of fact but the Court, in the real sense does not weigh the evidence at all which it can only do after the close of all evidence including any from the accused and his witnesses. Nonetheless a case can be stopped at the discretion of the trial court if the State's evidence is so dubious or so tainted or so lacking in weigh and credibility or has been so discredited in cross-examination that it is clear that no reasonable tribunal of fact could safely convict on it. The discretion to stop the case may, however, be exercised only in the clearest of cases. (The State v Lasebose Kuriday (1981) N300) 

12.	So in the instant case, has the State established a prima facie case? Has it established sufficient evidence – not beyond reasonable doubt though - that the accused sexually penetrated the complainant without her consent under the circumstances of aggravation as alleged?

13.	In this case the evidence must have established all the necessary elements of the charge of rape on each count, which are that –

•	the accused
•	 sexually penetrated the complainant
•	without her consent
•	 under the circumstances of aggravation

14.	There is no question that there is prima facie evidence that the complainant was repeatedly sexually penetrated for some 36 hours from the night of 31 December 2007 through to the morning of Wednesday the 2nd of January 2008. There is no question that there is prima facie evidence that she did not consent to these acts and that she was subjected to acts of aggravation. There is some evidence that the complainant identified him as the person who grabbed and dragged her into the bush on the evening of the day in question and whom she later identified in a police identification parade. Is there then prima facie evidence identifying the accused?

15.	 As the State submitted the issue at this stage (as indeed will ultimately be the case if the matter proceeds beyond this stage) is whether it was the accused who was responsible for this crime. And this boils down to the question of identification.

16.	The evidence of the complainant - which need not be corroborated as a matter of law - is that she met the accused (whom she had never seen before) at the Biru/Coffee Mill junction on the evening of 31st of December 2007 at around 6.00 p.m. She testified that the accused was coming from the opposite direction. He was about 3.5m away from her when she first saw him. He tried to stop her but she refused and as he walked past her he grabbed her shirt from behind, placed his hand over her mouth, blind-folded her, and carried her away into the nearby bushes. There he tied hands behind her back, tied a piece of cloth over her mouth and then repeatedly sexually penetrated her, an ordeal that continued until the morning of Wednesday 2nd January 2008. She testified that she was penetrated 13 times on the first night, another 13 times on the second day and 3 more times on the morning she was eventually released – a total of 29 times in all. All the time she was gagged and blind-folded. When it was put to her in cross-examination that she mentioned in her statement to the police that she was penetrated no more than 8 times during her ordeal she tried to explained this away by saying that she made her original statement in pidgin and the English translation – tendered as an inconsistent statement – was never read back to her even though she did identify her mark on the statement when it was read back to her.

17.	In both examination in chief and cross-examination she wasn't able to say how she identified the accused, having only seen him for the first time. Questions put to her by the State to elicit evidence on how or what about her assailant that she can remember as identifying the accused were met with totally different answers. Simply put her evidence at this crucial points are so ambiguous to say the least.

18.	But then there is the identification parade at the Police Station. This crucial part of the evidence did not come out directly in the complainant's evidence in chief or examination in chief for that matter but only came to light during cross-examination, even though the parade is mentioned in the Record of Interview which was tendered into evidence by consent. The complainant identified the accused once out of the three times she was taken through 3 different line-ups by a Police runner.

19.	Mr. Palek relied on both legs of the no case principle. Mr. Waine argued that one cannot do that in one breath. While there is some merit in the State's argument I do not think that there is anything stopping the defence from making both submissions – a no case to answer and to stop the case. However, if it does, I think the proper thing to do is to raise submissions to either stop the case or that the accused has no case to answer, as the case may be, in the alternative.

20.	There is I think some misconception about the no case submission and the principles involved. There is a lack of appreciation that the "no case" submission may arise in two broad situations which are separate in both purpose and effect. The first is the "no case to answer", premised on the argument that the State failed to canvass all the necessary elements of the charge in its evidence. The ultimate effect or result in this case – the question being one of law - is a ruling that the accused has no case to answer and as a matter law should be acquitted and discharged. 

21.	The second, however, is not a ruling that the accused has no case to answer. Rather it is an application to "stop the case" notwithstanding that the State has covered all the necessary elements of the charge in its evidence. It involves a question of fact but there is no real weighing of the evidence which can only be done at the close of evidence both from the State and the defence. If the court is of the view that the evidence is so insufficient or so dubious or so tainted or had been so discredited in cross-examination that it would not as a reasonable tribunal of fact in fact safely convict on the evidence then it may, at its discretion stop the case from proceeding further. This is akin to withdrawing the case from the jury. The discretion is, however, exercised very sparingly if at all and only in the clearest or hopeless of cases. (The State v Kudi Rape; The State v Lasebose; The State v. Roka Pep No.2 (supra))

22.	So in this case has the State evidence established a prima facie case i.e. has it established all the necessary elements of the charge or is the evidence so dubious, tainted or discredited? 

23.	As I have found above the evidence thus far has established that the complainant was sexually penetrated repeatedly against her will by somebody over a period of some 36 hours and there is evidence by the complainant identifying the accused as that person. So any attack on the State's case on the first premise must fail for there is evidence upon which the accused could be lawfully convicted. But can the case be stopped nonetheless because it is so hopeless and beyond salvage?

24.	At this juncture I must say that there are some aspects of the evidence by the complainant that have been so discredited by cross-examination. In particular the complainant's evidence on the number of times she was penetrated which was further exacerbated by prior inconsistent statements she made to the police. In her testimony she said she was penetrated 13 times on the first night of her ordeal, then another 13 times the next day and 3 times on the morning of the day she was released. This contradicted her statement to the police where she mentioned being penetrated no more than eight times during the whole ordeal. These inconsistencies (obvious as they are), however, do not go to the gist of the charge. For the purpose of proving criminal responsibility for the charge of rape it matters not how many times the complainant was penetrated though this will constitute circumstances of aggravation which will have some bearing on sentence. The fact of the matter is that she was sexually penetrated without her consent, matters which have been, sufficiently on a prima facie basis established.

25.	The only question then is: is the complainant's evidence identifying the accused as her assailant so dubious or so tainted or has been so discredited in cross-examination that it is clear to me that I ought not or could not safely convict if the matter proceeds beyond this stage?

26.	This question must be decided in light of the second leg of the no case principle. And I remind myself that I am not or should not weigh the evidence at this stage but having found that all elements of the charge had been established do I find the evidence so dubious that the State would not improve its case even if we move to call the accused to answer the charge? It has been said again and again by this court and the Supreme Court that the State cannot use its cross-examination of the accused and his witnesses to bolster its case.

27.	Now going back to evidence of identification, I must say that the complainant's evidence regarding the moment she was allegedly confronted by the accused was at the very least very dubious. She said she saw the person whom she said was Paul Hudson come towards her from a distance of 3.5m. Despite questions put to her in examination in-chief by Mr. Waine regarding important and a crucial facts like, the lighting at that time as it was 6.00p.m., how well and how long she was able to observe the person's face or what part of his body she was looking at or what specific features about the person's face she could remember, the complainant gave extremely equivocal answers. For instance when asked what features of the person's face she could recall she simply answered "I saw his face exactly as he is like now". And yet this was somebody whom the complainant never knew let alone saw before that time. There is not a single description of the person's physical characters such as his built, height, skin complexion, facial features, his gait or manner of walking or voice pitch and so forth.

28.	So as it stands the evidence on this crucial matter is so dubious and so discredited that it may not improve if the matter is to proceed beyond this stage. But what about the identification parade where the complainant identified the accused on one of the three line-ups? 

29.	This part of the evidence has its own problems. As I said the ID parades were never put to the witness in examination in chief nor did she allude to it in her evidence in chief. Whatever the reason for that failure was is known only by counsel for the State. So apart from what transpired during cross-examination and subsequent re-examination on this point, in the absence of crucial primary evidence from the complainant and the police officer who conducted the parade, the evidence again remains dubious in my opinion.

30.	This therefore brings me to the inevitable conclusion, an unfortunate one for the complainant that, as a tribunal of fact I would not as a matter of fact be able to safely convict the accused on the evidence as it stands because of the above. While the State led evidence establishing the essential elements of the charge of rape – that the complainant was repeatedly sexually penetrated over some 36 hours whilst tied up, gagged and blind-folded (circumstances of aggravation) - the complainant's evidence identifying the accused as her assailant was so ambiguous, so dubious and so discredited in cross-examination that the Court in its discretion must stop the case from continuing. 

31.	 The State should not be allowed to improve its case through cross- examination of the accused (if he should choose to testify) or his witnesses if the trial were to continue. Hence in exercise of my discretion, which I do with due consideration to established principles, I must therefore stop the case here. 

32.	There is, however, one final matter worthy of some comment. And this has to do with the way the evidence was presented. While it is not for the Court to control how the State or defence for that matter runs its case, I think that it is important in the interest of justice that evidence is presented fully in a clear and logical manner that is easy to follow. A witness should be allowed to narrate her evidence in chief and only after that should his or her counsel examine in-chief. Interjections in the middle should only be to clear up points that are not clear. 

33.	In this instant case, the complainant was almost immediately examined in chief after the exploratory questions and this prevented her from telling her story to the Court in a full and ample manner. I do not know what my brothers' view on this is, but I firmly believe that a witness should not be led this way so that she /he ends up giving perfunctory answers to questions put to her. She /he should be allowed to give her testimony in a full and ample manner before she /he is examined by her lawyer. In that way the Court (and counsel and the accused person for that matter) will be able to easily draw out the pertinent facts, both undisputed and those in issue.

34.	Granted some things may have been lost in translation but in my opinion it behoves counsel to ensure that witnesses present their primary evidence fully to the Court before they embark on examination in chief.

35.	I therefore order that the case against the accused on all three counts of aggravated rape be stopped, that he be acquitted and discharged forthwith. I further order that his bail be refunded and any sureties paid by guarantors (if any) be also refunded.

Orders accordingly.

_______________________________________________

The Public Prosecutor: Lawyer for the State.
The Public Solicitor: Lawyer for the accused.