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State v Benke [2016] PGNC 397; N6716 (7 July 2016)

N6716

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 740 OF 2016

THE STATE

V

ABRAHAM BENKE

Tabubil : Koeget, AJ
2016: 7^th July.

CRIMINAL LAW- Indictable offence – section 302 of Criminal Code Act – accused pleaded guilty – plea substituted to not guilty after application by Defence counsel under section 563 of the Criminal Code Act – trial – State offers no evidence – No Case to answer submission made at close of the State’s case – application that case should be withdrawn from the tribunal of facts – principle in the case of The State –v- Paul Kundi Rape and The State –v- Roka Pep (No.2) – first limb of the principal of no case to answer where accused cannot be lawfully be convicted if there is no evidence or no more than an iota of evidence in proof of anyone element of the offence charged – ruling relating to the application – acquittal.

Held:

(1) Where an accused pleads guilty to a criminal charge after arraignment, the guilty plea can be substituted by not guilty plea on application by Defence counsel under Section 563 of the Criminal Code Act.

(2) Where there is no evidence in proof of elements of the offence charged, the accused cannot be lawfully convicted and the no case to answer submission must succeed.

Cases Cited:

The State –v- Paul Kundi Rape [1976] PNGLR 96
The State –v- Roka Pep (No.2) [1983] PNGLR 287

Counsel:

D. Mark, for the State.
B. Popeu, for the Defence.

7^th July, 2016

1. KOEGET AJ: INTRODUCTION: The accused is charged with one count of unlawful killing pursuant to section 302 of the Criminal Code Act.
   

FACTS:

2. On 17^th June 2012 at approximately nine o’clock in the morning, the accused approached Peter Amanda as he suspected the latter of being involved in an attack upon him with others resulting in loosing cash in the sum of K5,200.00 which he intended to purchase an airline ticket to travel to Port Moresby and balance to pay school fees. The cash stolen was proceeds from sale of betel nut and other items at the informal markets.
   
3. A confrontation eventuated between the accused and Peter Amanda resulting both exchanging punches. It is alleged that Peter Amanda was carrying an infant child when the accused swung the bush knife at him. It is further alleged that Peter Amanda used the infant child as a shield to fend off the bush knife swung at him. The bush knife struck the infant child named Peter Ike on the head causing deep wound exposing the brain tissue. The infant Peter Ike died as a result of the injury he sustained.
   

ARRAIGNMENT:

4. The accused stated: “yes its true”. So a provisional guilty plea was recorded.
   

APPLICATION:

5. The learned Defence counsel made an application under section 563 of the Criminal Code Act to change his client’s guilty plea to not guilty.
   

LAW:

“Section 663 of the Criminal Code Act states:

“Entry of plea of not guilty.

Notwithstanding anything in this code, counsel for an accused person may, with leave of the court and after the accused person has been –

(a) informed of the offence with which he is charged;

and

(b) asked to plea to the indictment,

enter a plea of not guilty on behalf of the accused person”.

6. The Defence counsel’s application under section 563 of the Criminal Code was based on client’s instructions wherein the defence of self-defence and provocation were raised. In my view the defence counsel’s application was proper and the application was granted resulting in the guilty plea vacated and substituted by a not guilty plea.
   
7. At this stage the learned State Prosecutor offered no evidence and closed case for the State. So the Defence counsel made a no case to answer submission on the principles in the case of The State –v- Paul Kundi Rape [1976] PNGLR 96 and The State –v- Roka Pep (No.2) [1983] PNGLR 287. The principle in these cases is that the accused cannot be convicted when there is absolutely no evidence or no more than iota of evidence in proof of anyone element of the offence charged.
   

Ruling on no case to answer submission

8. I agree with Defence counsel’s submission that in this case there is absolutely no evidence upon which the accused can be lawfully convicted of the offence charged.
   
9. Therefore, the accused has no case to answer and so he is discharged from the indictment. He is also discharged from Ningerum Correctional Institution Services accordingly.
   

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