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State v Michael [2014] PGNC 122; N5532 (11 March 2014)

N5532

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
CR NO. 249 OF 2013

THE STATE

V

WILSON MICHAEL

Misima: Toliken, AJ.
2014: 10th, 11th March

CRIMINAL LAW – Practice and procedure – No case submission – Application to stop case - Case stopped on second leg of no case principle – Accused acquitted and discharged.

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

Counsel

R. Christensen and H. Roalakona, for the State
P. Palek, for the accused

INTERLOCUTORY RULING

11th March, 2014

1. TOLIKEN, AJ. The accused is charged with one count of sexual penetration of a child under the age of 16 years where there was in existence a relationship of trust and authority or dependency. This is an offence under Section 229A (1) (3) of the Criminal Code Act Ch.262 (the Code).
   
2. The charge is that:
   

" WILSONMICHAEL ... on the 19th day of June 2012 at BOIOU VILLAGE, MILNE BAY PROVINCE in PAPUA NEW GUINEA engaged in an act of sexual penetration with a child under the age of 16 namely [RGT]

AND at the time of the offence there was an existing relationship of trust, dependency or authority in that MICHAEL WILSON] was the cousin brother of the child, [RGT].

3. The accused generally denied the charged and a trial was run. The State called four witnesses –
   

• the complainant (RGT)
• Naomi Timothy
• Dacy Gorden
• Heath Extension Officer (HEO) Dailo Kayo
  

4. Further to that the State tendered the following exhibits by consent. These are –
   

The defence successfully tendered complainant's statement to the police dated 13th September 2013 as a prior inconsistent statement and this was marked Exhibit No. 1 for the defence.

5. At the close of the State's case the defence applied for the case to be stopped on the second leg of the Kundi Rape no case principles. (The State v Kundi Rape [1976] PNGLR 96; The State v Roka Pep (No.2) [1983] PNGLR 287)
   
6. In doing so the defence is conceding that the State has adduced evidence covering all the essential elements of the charge of sexual penetration of a child under the age of 16 years and that there existed a relationship of trust and authority or dependency between the complainant and the accused. And indeed I do find that the States evidence established on a prima facie basis that:
   
   • On the night of the 19th of April 2012 the complainant was sexually penetrated
   • She was penetrated by a person identified as the accused
   • That at that time the complainant was 12 years old having been born on 16th October 2000
   • That the accused and the complainant are third-cousins hence there existed between them a relationship of trust and authority or dependency in the customary context. Whether this in fact the situation is not for me to ascertain conclusively at this stage.
     
7. That being the case it is not then for me to decide whether there is a prima facie case for indeed there is as I have said above. The question for me here is whether in my discretion I should stop the case at this stage. The test for the second leg of the no case principles, as laid down in Kundi Rape (supra) and followed and approved in Roka Pep (No.2) and such cases as The State v Lasebose Kuriday (1981) N300 is whether the State's evidence is so dubious, so tainted or so discredited by cross-examination that the court, as a reasonable tribunal of fact, cannot in fact safely (lawfully) convict on it if the case were to be allowed to proceed beyond this point. While the question on the 1st leg of the principle is a question of law the question for 2nd leg – application to stop the case - is one of fact.
   
8. But as correctly submitted by Ms. Roalakona for the State, the court does not weigh the evidence at this stage, something which it can only properly do at the end of all the evidence including any adduced by the accused if he so elects to give evidence or call witnesses. However, if the prima facie evidence of the State is so dubious, so tainted or sp discredited by cross-examination the court in its discretion can then decide whether the case can be stop. The exercise of this discretion is, however, done in accordance with established principles and only very sparingly, if at all, and only in the most hopeless and irreparable of cases. But even then the court may not decide to stop the case. It is an entirely discretionary matter for the court. So is this one such case?
   
9. Mr. Palek says it is. He takes particular issue with the evidence of Health Extension Officer Dailo Kayo. I believe counsel had in mind what seemed to be a contradiction between her oral evidence where in answer to a question put to her by Ms. Roalakona in examination chief she said that her conclusions from her examination of the complainant was consistent with sexual intercourse the previous night and, that part of her written report where she said that vaginal canal and walls appeared to be normal and the absence of spermatozoa in the speculum specimen that was sent to the laboratory for examination.
   
10. Now the evidence on this issue is indeed somewhat vague. When the inconsistency was put to the witness in cross-examination she answered with a simple "No" and when asked to explain she simply said that she what she recorded were her findings after she examined the complainant and the results of the laboratory examination of the speculum specimen that was sent to the lab. She did not elaborate on how she concluded that her finding were consistent sexual intercourse or penetration the previous night.
    
11. Granted, she did record in her report that she noticed abrasions or tears to both the upper and lower parts of the complainant's vulva and perineum and that the hymen was torn. These are prima facie evidence of penetration but what is glaringly absent is any mention of whether the abrasions and the torn hymen were fresh or recent. She did not say anything to that effect in her oral evidence nor did the State question her on that.
    
12. Moving away from the medical evidence, there were other contradictions in the State's evidence. First, the complainant said in chief that she was awoken when her assailant penetrated her and ejaculated into her vagina. She pushed him away as he was trying to get on top of her a second time. She got a torch and flashed it the person's face and recognised him as the accused. This was, however, inconsistent with what she said to police in her statement dated 13th September 2012. This statement was tendered without objection as a prior inconsistent statement. There she stated that the accused left her when he saw a torch light being flashed towards the house and it was at that moment that she recognized him as he quickly got up pulling her trousers up as he ran out. When it was suggested to her that she did not have a torch she said she did not because her mother had taken the torch away with her. And when it was put to her that her oral evidence that she had a torch was a lie she answered in the affirmative. She again answered "Yes" when it was put to her she had lied because she simply wanted the accused to be punished.
    
13. Then there is the evidence of Naomi Timothy. She testified that when she and her friend Rosemary Padi were alerted by Joan Joachim that someone had entered the complainant's house they ran up and surrounded the house, her friend taking the back whilst she (Naomi) went to the front of the house flashing her torch. As she entered the house she saw the accused pulling up his trousers and then ran out of the house. The witness was shown her statement to the police in cross-examination and it was put to her that in her statement she stated that the accused was walking out of the house when she flashed her torch at him and recognized him. She answered that what she told the court was what truly happened. The statement was, however, not tendered as a prior inconsistent statement though the inconsistency or contradiction is apparent.
    
14. Now all these contradictions and inconsistencies stand uncorrected. The State did not try to mend what I see as major dents to its case given the fact that the outcome of this case will turn on the issue of identification notwithstanding that the defence is one of general denial.
    
15. I remind myself that I cannot weigh the evidence at this stage but since the defence had applied to stop the case on the second leg of the Kundi Rape principles which involves a question of fact and particularly attacks the credibility of the evidence of State witnesses I must take a very cautious step into doing just that. I cannot decide whether or not to stop the case without considering the inconsistencies and contradictions in so far as they concern question of credibility. So was the State's evidence on the above matters so discredited by cross-examination?
    
16. I acknowledge that the court's discretion under the second leg is to be sparingly exercised and only so in the most hopeless of cases. But given what I have stated above, I think that this is one such case where I must exercise my discretion to stop the case. The prosecution's evidence has been so discredited in cross-examination to the extent that without such contradiction unaddressed by the State there is no prospect that its case will improve even if the accused were to be called to answer the charge. In any case the State cannot hope to bolster its case by cross-examining the accused if he so elects to testify or any witnesses whom he may wish to call.
    
17. I rule therefore that the case be stopped and order that the accused be acquitted of the charge and discharged forthwith.
    
18. Orders accordingly.
    

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