SC1640
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA No.61 of 2011
	
BETWEEN:  
LAURIE KEMUEL & KOPOL KEPAO
Appellants 

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: David J, Sawong & Frank JJ
2015:16th December  
2016: 9th September 

CRIMINAL LAW – practice and procedure - appeal against conviction – indictment charging appellants for wilful murder – no case to answer submission – trial judge found there was evidence of all elements of wilful murder present except intention – appellants called upon to answer charge for murder – convicted  for murder and sentenced – material irregularity in the course of trial demonstrated – appeal upheld by majority judgment – Supreme Court Act, Sections 22, 23 – Criminal Code, Section 539(1). 

Cases Cited:
Papua New Guinea Cases

Bernard Touramasong & Others v The State [1978] PNGLR 337
Denden Tom & Anor v The State (2008) SC967
In the Matter of The State v Roka Pep (No.2) and In the Matter of the Reservation of Points of Law Under s.21 of the Supreme Court Act (Ch. No.37)
Mark Bob v The State (2005) SC 808
Masuve v Bryant [1974] PNGLR 61
Ombusu v The State [1997] PNGLR 699
R. v S.M [1973] PNGLR 304
The State v John Nugints [1994] PNGLR 493
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Ronald Madio (2012) N5190	

Overseas Cases

Gammage v The Queen (1969) 122 C.L.R. 444
May v O’Sullivan (1955) 92 CLR 654
Stanton v R (2003) 198 A.L.R.41
R v Russell [1973] Qd. R. 295
R. v Carson (1991) 92 Cr. App. R. 236
R v Coutts [2006] 1 W.L.R. 2154
R. v Livesey [2007] 1 Cr. App. R. 35
R v Richards [2016] SASCFC 79
R v Carter and Canavan [1964] 2 Q.B. 1
Zanetti v Hill [1965] 108 CLR 433

Counsel:

J Mesa, for the Appellants
A Kupmain, for the Respondent 

JUDGMENT
9th September, 2016

1.     DAVID & SAWONG JJ: INTRODUCTION:  This is a decision on an appeal jointly filed and prosecuted by the appellants against conviction for the murder of one Buka Ishmael (the deceased) between 8:00 o’clock in the evening on 8 March 2008 and 4:00 o’clock in the early hours of the morning on 9 March 2008 at Gerehu in the National Capital District.  

THE TRIAL

2.	The Appellants and one Raywill Parapen appeared before the National Court at Waigani on Thursday, 12 August 2010 and were jointly indicted with one count of the wilful murder of the deceased pursuant to Section 299(1) of the Criminal Code.  They all pleaded not guilty so a trial was conducted.

3.	The prosecution alleged that on 8 March 2008 sometime in the afternoon about 3:00 pm to 4:00 pm, the appellants and the deceased were at the residence of one Ishmael Pamben at Gerehu in the National Capital District drinking beer together.  During the course of their drinking, there was an altercation between the appellants and the deceased resulting in a fight.  The appellants left the premises on numerous occasions and returned, but when left the premises the last time, they returned in the early hours of the morning on 9 March 2008 and attacked the deceased and his relatives with all manner of weapons such as bush knives, iron bars and axes accompanied by many men.  The deceased suffered serious injuries to his body.  He was taken to the Port Moresby General Hospital for treatment, but died from the injuries he sustained. 

4.	The prosecution called only one witness namely, Joy Ishmael.  She gave sworn oral evidence and was subjected to cross-examination.

5.	Documentary evidence was tendered by consent and these were:

1.	Record of Interview of Laurie Kemuel Paugari which was in English dated 24 June 2008 (Exhibit “A”);
2.	Record of Interview of Raywill Parapen in Tok Pisin dated 24 June 2008 (Exhibit “B1”)
3.	Record of Interview of Raywill Parapen, English translation (Exhibit “B2”);
4.	Record of Interview of Kopol Kepao in Tok Pisin dated 27 June 2008 (Exhibit C1);
5.	Record of Interview of Kopol Kepao, English translation (Exhibit “C2”);
6.	Statement of Ishmael Pamben dated 10 March 2008 (Exhibit “D”); 
7.	Statement of Epen Arlo dated 15 March 2008 (Exhibit “E”);
8.	Autopsy Report by Dr Phillip Golpak dated 1 April 2008 (Exhibit “F”);
9.	Affidavit of Dr Phillip Golpak  (Exhibit “G”);
10.	Statement of First Constable Steven Eka dated 24 June 2008 (Exhibit “H”); and
11.	Statement of First Constable Rodney Pokolai dated 24 June 2008 (Exhibit “I”).

6.	At the conclusion of the prosecution evidence, a no case to answer submission was made by the defence relying on both limbs of the principles enunciated in The State v Paul Kundi Rape [1976] PNGLR 96 which were adopted and applied by the Supreme Court in In the Matter of The State v Roka Pep (No.2) and In the Matter of the Reservation of Points of Law Under s.21 of the Supreme Court Act (Ch. No.37) [1983] PNGLR 287.  The trial judge upheld the no case to answer submission on the charge for wilful murder, finding that there was no evidence on the element of an intention to kill the deceased, but found that the Appellants and their accomplice Raywill Parapen had a case to answer on a charge for murder under Section 300 of the Code.  The trial judge therefore called upon them to answer the reduced charge of murder.

7.	The Appellants and Raywill Parapen decided to give evidence under oath and the defence called another witness one Monica Balakau to support their case.  The defence witnesses were all subjected to cross-examination.

8.	On Friday, 10 September 2010, the trial judge found the appellants guilty of murder.

9.	On 7 October 2011, the trial judge sentenced them. Laurie Kemuel was sentenced to 14 years imprisonment in hard labour less pre-sentence custody period.  Kopol Kepao was sentenced to 12 years imprisonment with hard labour less pre-sentence custody period.  Raywill Parapen was sentenced to 12 years imprisonment with hard labour less pre-sentence custody period. 

THE APPEAL

10.	By Notice of Appeal filed on 10 November 2011, the appellants jointly filed their appeal against conviction and sentence.  Sections 29 of the Supreme Court Act stipulates the time for appealing in relation to criminal proceedings.  The limitation of time provided is 40 days from the date of conviction.  The Supreme Court in Mark Bob v The State (2005) SC 808 decided that the date of conviction includes the date on which sentence is imposed.  Consequently, the appeal was filed within time.

11.	At the hearing, the appeal against sentence was withdrawn.

Grounds of appeal

12.	There are nine grounds of appeal mentioned in the Notice of Appeal and they are set out at paragraphs 5 to 8 of the Notice of Appeal.  These are:

“5.1	His Honour erred in fact and in law in finding the Appellants had a case to answer for murder after he upheld the No Case to Answer Submission for the Appellants in respect of the original charge of wilful murder, when that No Case to Answer Submission was made under the first limb of The State v Paul Kundi Rape [1976] PNGLR 96 and In the Matter of State v Roka Pep (No.2) and In the Matter of the Reservation of Points of Law Under Section 21 of the Supreme Court Act (Ch.No.37) [1983] PNGLR 287.

5.2	His Honour erred in fact and in law when reducing the charge from wilful murder to murder after the Appellants’ No Case to Answer Submission was successful under the first limb of The State v Paul Kundi Rape [1976] PNGLR 96 and In the Matter of State v Roka Pep (No.2) and In the Matter of the Reservation of Points of Law Under Section 21 of the Supreme Court Act (Ch.No.37) [1983] PNGLR 287 that is, the principles in those cases are settled and that the Appellants must be acquitted by operation of law when the Court upheld their No Case to Answer Submission.

5.3	His Honour erred in fact and in law in reducing the initial charge of wilful murder to murder during the course of the trial before the conviction was entered when that procedure is applicable at the conviction stage pursuant to Section 539 of the Criminal Code Chapter 262.

5.4	His Honour erred in fact and in law in failing to give adequate consideration to the overwhelming evidence of the Appellants’ witnesses before the Court that:-
(a)	the witness Monica Balakau’s evidence that her house was next to the house of the State witness Joy Ishmael and since her house was much higher she had a good view into Joy Ishmael’s premises;
(b)	the witness testimony of Monica Balakau when she said at the time the offence was committed she was on her verandah and she saw two (2) fights and at the first fight the Appellant Laurie Kemuel was involved, but not in the second fight when the Deceased was killed;
(c)	at the second fight the witness Monica Balakau said there were no cars parked in front of Ishmael Pamben’s store when she walked out of her gate and towards Joy Ishmael’s store;
(d)	that Monica Balakau was first alerted of the Deceased being attacked;
 (e)	that Monica Balakau arranged for the Deceased to be brought to Port Moresby General Hospital on a dyna truck without the assistance of the State witness, Joy Ishmael;
(f)	that Monica Balakau hosted the “haus krai” or “mourning house” at her residence because she was closely related to the Deceased than Joy Ishmael and her husband;
(g)	from the time of the Deceased’s assault to his death there was no mention of the identity of the Deceased’s assailant(s) or the Appellants by Joy Ishmael to Monica Balakau or other relatives of the Deceased;
(h)	during the “house krai” or “mourning” period there was no mention of the Appellant’s as being the Deceased’s assailants;
(i)	the Appellant’s were arrested five (5) days later after they surrendered to the Police because of fear of possible retaliation out of mere suspicion.

5.5	His Honour erred in fact and in law in accepting the uncorroborated evidence of Joy Ishmael that the Appellant Kopol Kepao did attack the Deceased with an iron handle axe and Appellant Laurie Kemuel hit the deceased once with a bush knife.  

5.6	His Honour erred in fact and in law when he did not consider and give sufficient weight to the evidence of the Appellants’ witnesses Monica Balakau:-
(a)	when the witness at the time was living next to the crime scene and saw how the fight started and ended;
(b)	when the witness was the closest relative to the Deceased and was more concerned about the welfare of the Deceased;
(c)	when the witness said she was with the State witness after the Deceased was attacked and brought to the hospital there was no mention of the identity of the Deceased’s assailants;
(d)	when the witness said since Buka is from her tribe her relatives demanded compensation from five (5) tribes including the tribe of the State witness Joy Ishmael’s husband who got the largest demand.
6.	His Honour erred in fact and in law when he convicted the Appellant by operation of Sections 7 and 8 of the Criminal Code, Chapter 262 when those provisions were not pleaded on the indictment.

7.	His Honour erred in fact and in law in not considering the inconsistencies by Joy Ishmael in her uncorroborated oral evidence and on her written Statement when she said:-
7.1	in her written Statement that the Appellant Laurie Kemuel during the destruction to her house was pointing a pistol at them and ordered them not to move before going into their house and destroying it;
7.2	in her written Statement that the Appellant Laurie Kemuel was sitting at the back armed with a pistol when they returned to her house around the time the Deceased was killed;
7.3	in her written Statement when she said that Raywill was the driver of the vehicle;
7.4	in her written Statement when she said the Appellant Kopol Kepao was the first to attack the Deceased;
7.5	in her written Statement when she said the Appellant Laurie Kemuel chopped the Deceased with a bush knife on the right hand;
7.6	in her written Statement when she said Raywill chopped the Deceased with a bush knife across his face;
7.7	in her written Statement when she said that Saina chopped Deceased with bush knife at the back of his head. 

8.	The fresh evidence of witness Jacob Pakap be admitted as he will state in evidence that at the time of killing he was present and saw the Deceased being assaulted by other known persons to him but not the Appellant.” 

13.	Ground 9 strictly speaking is not a ground of appeal against conviction as it is to a certain extent a pleading for an impending application to adduce fresh evidence.  

14.	By way of summary, essentially there are six grounds of appeal and they are:
1.	His Honour erred in fact and in law when he did not acquit the Appellants on a successful No Case to Answer Submission in respect of the charge of wilful murder when he found that there was no evidence of the element of intention in consonant with the well-established legal principles applying to No Case to Answer Submission  enunciated in The State v Paul Kundi Rape and in The State v Roka Pep (No.2), but instead called on the Appellants to answer the reduced charge of murder: Grounds 5.1 to 5.3.
2.	His Honour erred in fact and in law in failing to give adequate consideration or sufficient weight to the overwhelming evidence of the Appellants’ witness namely, Monica Balakau who was the closest relative of the Deceased who lived next to the house of the State witness Joy Ishmael as to her eye witness account about the killing of the deceased including not seeing the Appellant Laurie Kemuel at the crime scene when the deceased was killed and events after the killing including arranging for the deceased to be brought to Port Moresby General Hospital, the conduct of the “haus krai” after the death of the deceased and during which there was no mention of the identities of the Deceased’s assailants; demand for compensation; and the arrest of the Appellants: Grounds 5.4 and 5.6.  
3.	His Honour erred in fact and in law in accepting the uncorroborated evidence of only State witness called namely, Joy Ishmael that the Appellant Kopol Kepao attacked the Deceased with an iron handle axe and that the Appellant Laurie Kemuel hit the deceased once with a bush knife: Ground 5.5.  
4		His Honour erred in fact and in law when he convicted the Appellant by operation of Sections 7 and 8 of the Code when those provisions were not pleaded in the indictment: Ground 6.
5.	His Honour erred in fact and in law in not considering the inconsistencies in the uncorroborated oral evidence of Joy Ishmael and in her written Statement with regard to the assertions in her written Statement that; the Appellant Laurie Kemuel pointed a pistol at them and ordered them not to move before going into their house and destroying it; the Appellant Laurie Kemuel was sitting at the back armed with a pistol when they returned to her house and killed the Deceased; Raywill was the driver of the vehicle; the Appellant Kopol Kepao was the first to attack the Deceased; the Appellant Laurie Kemuel chopped the Deceased with a bush knife on the right hand; Raywill chopped the Deceased with a bush knife across his face; and Saina chopped Deceased with bush knife at the back of his head: Ground 7. 
6.	The fresh evidence of witness Jacob Pakap be admitted which will show that at the time of the killing, he was present and saw persons known to him, other than the Appellants, assault the Deceased: Ground 8.

15.	The relief sought are set out at paragraph 9 of the Notice of Appeal and these are:

“9.1	That the conviction by the National Court be quashed and the Appellant be acquitted; and
9.2	In the alternative, that the matter be remitted back to the National Court for proper re-trial before a judge other than His Honour Deputy Chief Justice Salika;
9.3	Such other and further orders as the Court deems fit.”

ISSUES

16.	The summarised grounds of appeal can be separated into three parts.   The first part deals with summarised ground 1 which deals with the question of procedural regularity or otherwise that the trial judge took in dealing with the No Case to Answer Submission.  The second part deals with summarised grounds 2 to 5 and is with regard to conviction for murder after the Appellants’ successful No Case to Answer Submission on the original and only charge pleaded in the indictment for wilful murder, but the trial judge found a case to answer for the offence of murder after the element of intention was held not to have been established by evidence. The third part deals with summarised ground 6 and is with regard to an application to adduce fresh evidence.  This ground was not raised at the hearing and may be considered as abandoned.

17.	The main issues therefore are:

1.	Whether there was a material irregularity in the course of the trial?
2.	If the answer to the first issue is in the negative, whether in all the circumstances of the present case, the appellant has demonstrated that there is indeed a reasonable doubt as to the safeness and satisfactoriness of the verdict?

18.	All other issues tangential to the main issues and that emerge from the summarised grounds of appeal will be considered and determined during the course of the judgment. 

19.	We will address the issues in the order that they have been set out.  In that regard, should the outcome of the first issue favour the Appellants, there will be no need to visit or address the remaining issue. 

SUBMISSIONS OF THE APPELLANTS ON SUMMARISED GROUND 1 AND FIRST ISSUE

20.	It was submitted by Mr Mesa for the Appellants that the trial judge ought to have stopped the trial and acquitted the Appellants on the successful No Case to Answer Submission on the original and only charge of wilful murder pleaded in the indictment when the essential element of the offence of wilful murder of an intention to kill was not established by evidence by the strict application of the well-settled principles enunciated in The State v Paul Kundi Rape and adopted and applied The State v Roka Pep (No.2).   In addition, counsel submitted that the trial judge incorrectly found that the Appellants had a case to answer for the reduced and alternative charge of murder at that stage of the trial as the Code did not provide for a procedure similar to Section 539 of the Code which only applied at the conclusion of a trial after the close of both the prosecution and defence cases.  That is when the evidence adduced is weighed in determining the appropriate verdict for any of the alternative offences permitted by that provision including murder other than as charged it was submitted.   In doing so, the trial judge fell into error and a substantial miscarriage of justice occurred when he adopted the procedure in Section 539 of the Code in deciding that the Appellants had a case to answer for the offence of murder following the successful No case to Answer Submission for wilful murder it was further submitted. 

SUBMISSIONS OF THE RESPONDENT

21.	Mr Kupmaim for the Respondent submitted that the first summarised ground of appeal lacks merit and substance because the trial judge ruled as he did following the prosecution’s concession that there was insufficient evidence to establish the element of an intention to kill.   	

THE LAW ON APPEALS AGAINST CONVICTION

22.	Section 22 of the Supreme Court Act provides for appeals by a person convicted and sentenced by the National Court.  Section 22(a) and (b) of the Supreme Court Act provides that a person convicted by the National Court may appeal to the Court against his conviction on any ground that involves a question of law alone or on a question of mixed fact and law. Section 22(c) of the Supreme Court Act provides that a person may with leave of the Court appeal against his conviction on any ground of appeal that involves a question of fact alone or that appears to the Court to be a sufficient ground of appeal.

23.	Once the appeal against conviction is properly founded under Section 22 of the Supreme Court Act and prosecuted, the Supreme Court can determine the appeal exercising powers vested in it under Section 23 of the Supreme Court Act.  Section 23 states:

“(1)	Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that—
(a)	the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or
(b)	the judgement of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c)	there was a material irregularity in the course of the trial,
and in any other case shall dismiss the appeal.
(2)	Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred.
(3)	If the Supreme Court allows an appeal against conviction, it shall, subject to this Act, quash the conviction and direct a verdict of not guilty be entered.
(4)	On an appeal against sentence, if the Supreme Court is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal.”

24.	Section 23(1), (2) and (3) of the Supreme Court Act provides for the manner in which an appeal against conviction must be determined

25.	Section 23(1) of the Supreme Court Act specifically prescribes the circumstances when an appeal against conviction may be allowed.

26.	Section 23(1)(a) of the Supreme Court Act provides that an appeal against conviction will be allowed where the Court considers that in all the circumstances, the verdict is unsafe or unsatisfactory.  In other words, the court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal can be allowed:  John Beng v The State [1977] PNGLR 115, Bernard Touramasong & Others v The State [1978] PNGLR 337.  In John Beng v The State, the Supreme Court observed:

“the Supreme Court must be satisfied that there is in all the circumstances, a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal can be allowed.”

27.	In Denden Tom & Anor v The State (2008) SC967, the Supreme Court made this clarification:

“……. unless this Court is satisfied that, there is reasonable doubt as to the safeness and satisfactoriness of the verdict, the decision of the National Court cannot be easily upset.  The issue of whether or not the conviction is safe and satisfactory can be determined by reference to the evidence that was before the Court, the treatment given to them by the trial judge and what use he made of them in terms of choosing what evidence to accept and what to reject with the reasons for doing so, his findings of fact with his reasons of his findings and the eventual decision on the appellants’ verdict.”

28.	Section 23(1)(b) of the Supreme Court Act vests power in the Court to allow an appeal where the Court is satisfied that the conviction should be set aside on the ground of a wrong decision on any question of law made by the National Court.

29.	Section 23(1)(c) of the Supreme Court Act provides that an appeal against conviction will be allowed where the Court considers that there was a material irregularity in the course of the trial.

30.  The Supreme Court may dismiss an appeal under Section 23(2) if it considers that no miscarriage of justice has actually occurred.

31.	Section 23(4) provides for the manner in which an appeal against sentence must be determined.

DISCUSSION OF GROUNDS OF APPEAL AND ISSUES
First summarised ground of appeal and First Issue

32.	The Appellants were jointly charged with one count of wilful murder.   The essential elements of the charge that the prosecution was tasked by law to prove beyond a reasonable doubt in order to successfully sustain a conviction for wilful murder were: 

	1.	the Appellants killed the Deceased;
	2.	the killing was unlawful;
3.	the Appellants intended to cause the death of the Deceased. 

33.	It is common ground or uncontested fact that the No Case to Answer Submission was premised on the two limbs of the principles in The State v Paul Kundi Rape.

34.	It is a further common ground that during the course of submission by the prosecuting counsel Mr Giruakonda whilst in response to the Appellants’ No Case to Answer Submission conceded that there was insufficient evidence to establish the element of an intention to kill the deceased.  This is confirmed at page 51, lines 40 to 42, page 52, lines 1 to 18 and 41 to 42 and page 53, lines 1 to 30 of the transcript:  pages 69, 70 and 71 Appeal Book.

35.	It is also a further common ground that the trial judge after considering the principles on No Case to Answer Submissions applied Section 539(1) of the Criminal Code when he held that the Appellants had a case to answer for murder having been satisfied that was evidence on all elements of the reduced charge. The trial judge’s ruling commences at page 52 lines 41 to 42 and ends at page 53 lines 1 to 30 of the transcript found in pages 70 and 71 of the Appeal Book.  The relevant parts of the short ruling are reproduced below.

“First of all, at this juncture, the State prosecutor has conceded to the no case submission to an extent. In that he says that there is indeed no evidence on the element of intention. And the element of intention in a wilful murder case is an all important element and that there must be evidence of that intention.

An intention could be either thr   ough by way of direct evidence; that is from evidence of witnesses who saw what happened or it could be inferred. Evidence of intention can also be inferred. But in this case, I am not going to infer that there was any intention and so on the concession made by the State that there was no intention to kill Buka Ishmael, then that would reduce the charge to either one of murder or manslaughter based on the provisions of the Criminal Code Act which says that there are alternative verdicts of – where the court is not satisfied of wilful murder, it may instead return a verdict of murder or manslaughter. But in this case, before that is to happen, there is a no case submission.
And also I will, at this juncture, find that there is indeed evidence on all elements of the charge and that the accused – and then if goes on to say murder, then murder, it can either be wilful murder, murder or manslaughter but I find that there is evidence on all the elements of the charge and I will reduce the charge of wilful murder to that of murder. And therefore the ruling of the court is that all the three accused have a case to answer on the charge of murder rather than on wilful murder. All right, so they do have a case to answer on murder charge rather than wilful murder.

All right, Kopol Kepao, Laurie Kemuel Puagari and Raywill Parapen, all of you stand up. Your lawyer made a no case submission on the charge of wilful murder and I have accepted that submission but only to a point and that is that there is no evidence of intention. On a wilful murder charge, a party must call evidence on intention. In this case there is no evidence of intention and therefore, I find that you have a case to answer on a charge of murder, all right, on a charge of murder rather than on manslaughter….”

36.	The principles applicable to No Case to Answer Submissions are well settled in this jurisdiction.  The leading case authority on the subject is The State v Paul Kundi Rape and the principles enunciated in that case were adopted and applied in The State v Roka Pep (No.2). This practice reinforces the presumption of innocence on a person charged with an offence guaranteed by Section 37(4) of the Constitution and an accused’s right to remain silent guaranteed by Section 37(10) of the Constitution. They are generally referred to as the first and second limbs of the principles enunciated by O’Leary J in The State v Paul Kundi Rape  at 97 and 98.    The two limbs are quite separate and distinct, but there is a discretion in the trial judge when applying the two limbs in appropriate cases.  The burden of proof in a criminal case always rests with the prosecution, i.e., it must prove each element of a particular offence beyond reasonable doubt. In other words the overall burden of proof remains with the prosecution from the commencement of a trial to the end.  However in a No Case to Answer Submission, after the close of the prosecution case, one does not look to see whether the prosecution has proven its case beyond reasonable doubt as no weighing of evidence is involved at that stage of a criminal trial:  The State v Roka Pep (No.2).      

37.	The first limb is that, when there is a submission of no case to answer at the close of the case for the prosecution, the matter is a question of law for the judge as a tribunal of law; and the test is whether the evidence adduced by the prosecution supports the essential elements of the offence charged in the indictment.   

38.	O’Leary J in The State v Paul Kundi Rape cited two Australian cases namely, May v O’Sullivan (1955) 92 CLR 654 and Zanetti v Hill [1965] 108 CLR 433 which addressed the principle.

39.	In May v O’Sullivan at 658, the Full Court of Australia observed:

"When, at the close of the case for the prosecution, a submission is made that there is 'no case to answer', the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law.  Unless there is some special statutory provision on the subject, a ruling that there is a ‘case to answer’ has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end.  After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence.  Whether he does or not, the question to be decided in the end by the tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty.  That is a question of fact.”
   
40.	In Zanetti v Hill [1965] 108 CLR 433 at 442 Kitto J expressed the principle in these terms:

	“The question whether there is a case to answer, arising as it does at the end of prosecution’s evidence in chief, is simply the question of law whether the defendant could lawfully be convicted on the evidence as it stands, - whether, that is to say, there is with respect to every element of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred.  That is a question to be carefully distinguished from the question of fact for ultimate decision, namely, whether every element of the offence is established to the satisfaction of the tribunal of fact beyond a reasonable doubt….The ultimate question of fact must be decided on the whole of the evidence;...” 

41.	The second limb 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 the prosecution case in appropriate circumstances. This discretion is exercisable in a very clear case where; there is a mere scintilla of evidence; and the evidence is so lacking in weight or reliability that no reasonable tribunal could safely convict on it.
	
42.	In The State v Paul Kundi Rape at 98 and 99, O’Leary J discussed the principle in detail in these terms:

“All this, however, is question a separate question from the other question that sometimes arises at the close of prosecution’s case (and indeed may arise at any stage of the trial), namely, whether the state of the evidence is such that the judge ought to withdraw the case from the jury, or at least tell the jury that it is open to them to say at any time that they do not wish to hear any further evidence. In these cases the test is a quite different one. As I understand it, the question there is not whether there is any or some evidence on which a jury could lawfully convict, but whether there is sufficient evidence on which a reasonable jury ought to convict. As was said by Willes J in Ryder v. Wombwell (4):

“It was formerly considered necessary in all cases to leave the question to the jury if there was any evidence, even a scintilla, in support of the case; but it is now settled that the question for the judge (subject of course to review) is, ... not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.”
The same principle applies, of course, in civil cases, and for a comprehensive discussion on the question see Seminars on Evidence, Ed, Glass, p.22 et seq., “Title, Sufficiency of Evidence”.

When it is said, in this context, that the evidence is such that no reasonable jury ought to convict on it, I do not think that is the same thing as saying that, on the evidence as it stands, a jury could not be satisfied beyond reasonable doubt as to the guilt of the accused. As I have said, for the purpose of considering either the present question or the question as to whether there is a case to answer, one does not look to see whether the prosecution has proved its case beyond reasonable doubt. So far as the present question is concerned, what I think one really inquires into is whether the evidence is so insufficient that the accused ought not to be called upon to answer it.

Where there is no case to answer and accused may not, as a matter of law, be called upon to answer it. Whether there is a case of insufficiency of evidence as explained above, an accused may as a matter of law 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 more”. 

43.	As we have alluded to above, since the trial judge under both limbs is not required to weigh the evidence at that stage of a criminal trial, the second limb is rarely invoked except in a very clear and hopeless case.  	

44.	In the instant case, the trial judge in accepting the concession by the prosecution that the essential element of an intention to kill was not established by the prosecution evidence, instead of acquitting the Appellants and their accomplice Raywill Parapen there and then on the charge of wilful murder, called upon them to answer a charge of murder and the trial continued on that basis.  Clearly, in the exercise of his discretion, with respect, the trial judge applied the first limb of The State v Paul Kundi Rape incorrectly.  There was no statutory basis as well, as Section 539(1) of the Code applies to alternative verdicts that a trial judge may return after a trial of a person charged with the offence of wilful murder.    

45.	Whilst the trial judge did not specifically mention Section 539(1) of the Code, it is unquestionably clear from lines 6 to 12 page 53 of the transcript and page 71 of the Appeal Book that His Honour was referring to that provision which allows for alternative verdicts of murder or manslaughter to be returned after a trial proper in cases where a person is charged with wilful murder in the exercise of the court’s discretion. 

46.	Section 539(1) states:

“On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that which he is charged”

47.	A useful discussion of the application of the provision in the context of a No Case to Answer Submission was made by Toliken AJ (as he then was) in The State v Ronald Madio [2012] N5190.  In that case the accused was charged with a count of wilful murder.  He was accused of throwing down his four month old infant onto the hard surface of the bitumen along the Kokoda Highway during an argument with his wife and whilst under the influence of liquor.  The infant died almost immediately from the injuries sustained.  The prosecution called only one witness to prove the charge and closed its case.  A No Case to Answer Submission was then made.  An issue arose as to whether trial could continue on an alternative charge by virtue of Section 539(1) of the Code.  His Honour held:

“37.	At this stage the court is not looking at what possible alternative charge has been established thus far by the evidence. Rather the question for the court is whether the evidence for the prosecution as it stands has established a prima facie case to support the charge on the indictment.

38.	I am of the opinion that Section 539 does not avail itself until after the close of the evidence both for the State and the defence. To invoke the provision at this stage of the proceedings is prejudicial to an accused person who is entitled to meet the prosecutor’s case on the charges he alleges in his indictment.

39.	 An accused person cannot be left second guessing what the prosecutor might have up his sleeves except what his indictment alleges. Nor should the accused be over- burdened by what the court might find against him at this stage. If the court has to return an alternate verdict within its powers under Section 539 then it will only do so after it has heard all the evidence both for the State and the accused.”

48.	We endorse His Honour’s observations as reflecting the correct position in law.

49.	We agree that there was a material irregularity in the course of the trial and the appeal must be allowed under Section 23(1)(c) of the Supreme Court Act.

50.	Having arrived at the above conclusion, there is now no need to discuss the remaining issue. 

51.	FRANK J:  The factual background, the submissions of each party in this appeal, the grounds of appeal, and the grounds upon which the verdict of the learned trial judge may be disturbed have already been covered so I will not repeat them. In this judgment, all references, unless expressed otherwise, are to the Criminal Code.

52.	Grounds 5.1 and 5.3 of the notice of appeal concern the stage of a trial, with reference to sections 572 and 573, at which point section 539 (1) applies.  Ground 5.2 of the notice of appeal concerns the effect of a successful no case to answer submission in respect of a charge of wilful murder under section 299 on account of the absence of evidence of the element of ‘intention’ under the first limb of The State v Paul Kundi Rape [1976] PNGLR 96.These grounds raise the issue as to what the effect of a successful no case to answer submission is to a charge preferred in an indictment in respect of which a trial court may return a verdict on another offence less serious to that preferred in the indictment.

53.	With respect to grounds 5.1 and 5.3, the appellants contend that section 539(1) applies when a trial court deliberates to reach a verdict at the end of a trial in which an accused has adduced evidence.  The respondent, on the other hand, says the learned trial judge did not err as the successful no case to answer submission of the appellants was consistent with its concession of the absence of evidence in respect of the element of ‘intention’ in its response to the appellants’ no case to answer submission. The respondent did not cite any authority to support the position it took or to challenge the appellants’ contention.

54.	In order to decide the issues raised by these grounds, it is necessary to consider section 539(1) with reference to the various stages of the trial process after an accused has, on arraignment, pleaded not guilty, the position an accused may take at the close of the prosecution’s case and how section 539 has been applied.

55.	The appellants submit that the word ‘convicted’ in section 539 (1) refers only to a verdict reached at the conclusion of a trial in which an accused has adduced evidence, because the word, ‘conviction’, as this word is defined in the Osborne’s Concise Law Dictionary, 11th Edition, Sweet & Maxwell, means “… the finding of a person guilty of an offence after a trial …”, and a ‘trial’ is one in which an accused has adduced evidence. Except for their reliance on The State v Ronald Madio (2012) N5190, the appellants did not develop this submission to demonstrate why the meaning of a ‘trial’ should be so restricted.

56.	The sequence in which a criminal trial proceeds after an accused pleads not guilty is outlined in sections 572 and 573. The trial scenario to which, the appellants say, section 539(1) applies is but one of a number of the different scenarios that a trial court may be presented with. The entire evidence given at a trial upon which a trial court may deliberate to reach a verdict may represent the evidence given, either:
(a)	Solely by the prosecution’s witnesses, where an accused decides not to make a statement pursuant to section 572 (“572 statement”) or adduce evidence [section 573(2)]; or
(b)	by the prosecution’s witnesses and an accused’s 572 statement; or
(c)	by witnesses for both the prosecution and the accused [section 573(3)].

57.	The stage of the trial that is reached in the first of these three trial scenarios is, from the point of view of the evidence received up to that point, the same one at which a no case to answer submission is usually made. However, in the former the trial is, subject only to closing submissions and the trial court’s verdict, complete whilst in the latter, the accused is yet to open his or her case.

58.	The effect of the appellants’ submission is that section 539 (1) does not apply to the first trial scenario where an accused closes his or her case without adducing any evidence.

59.	The appellants cite Ronald Madio (supra) in support of its contention. In that case, his Honour said: 

35.	Now there is one final matter. And that is whether the case, as the State submitted, can proceed nonetheless on the basis that alternative verdicts of murder and manslaughter are available on an indictment for wilful murder under Section 539 (1) of the Code.
36.	The question is moot but does not render itself to be deserving of consideration at this stage because it can only be considered where the evidence has established the elements of the offence charged in the indictment. One cannot be looking at what possible verdicts may be open when the State has not established admissible evidence that the infant in question is in fact dead.
37.	At this stage the court is not looking at what possible alternative charge has been established thus far by the evidence. Rather the question for the court is whether the evidence for the prosecution as it stands has established a prima facie case to support the charge on the indictment.
38.	I am of the opinion that Section 539 does not avail itself until after the close of the evidence both for the State and the defence. To invoke the provision at this stage of the proceedings is prejudicial to an accused person who is entitled to meet the prosecutor’s case on the charges he alleges in his indictment.
39.	 An accused person cannot to be left second guessing what the prosecutor might have up his sleeves except what his indictment alleges. Nor should the accused be over- burdened by what the court might find against him at this stage. If the court has to return an alternate verdict within its powers under Section 539 then it will only do so after it has heard all the evidence both for the State and the accused.

60.	I do not consider that in referring, at paragraph 38, to ‘evidence’ in the phrase, “after the close of the evidence both for the State and the defence”, his Honour was saying that section 539 (1) does not apply to a trial in which an accused closes his or her case without making a 572 statement or adducing evidence. That is why he said that to invoke section 539 after only the prosecution has closed its case ‘is prejudicial to an accused…’.If, however, it stands for the proposition advanced by the appellants, that is, that section 539 does not apply to trials in which the accused does not adduce evidence, then, with respect, I am unable to agree with such a construction for the reasons which follow.

61.	In R v Russell [1973] Qd. R. 295, the Court of Criminal Appeal of Queensland, in an appeal against conviction on a charge of murder considered, amongst others, the issue whether the trial judge had misdirected the jury in respect of their “constitutional” right to return a verdict of manslaughter.  At his trial, the trial judge directed the jury that they would fail in their duty or be false to their oaths, if they found all the essential elements of murder to have been established and nevertheless brought in a verdict of manslaughter on merely merciful or compassionate grounds.  The appellants argued that (a) the jury has a right, independent of section 576 of the Queensland Criminal Code to return a verdict of manslaughter even though they should be satisfied beyond a reasonable doubt that all the elements of murder have been established, and (b) the jury should have been directed in these terms.  In dismissing this ground, the court said that the right of a jury to return a verdict of manslaughter was a matter completely governed by section 576 of the Queensland Criminal Code, which provided that:

“upon an indictment charging a person with the crime of murder, he may be convicted of the crime of manslaughter, if that crime is established by the evidence, but not, except as herein expressly provided, of any of other offence then that with which he is charged.”

62.	In finding that the direction of the trial judge was proper, it noted and applied Gammage v The Queen (1969) 122 C.L.R. 444, a case which concerned section 23(2) of the Crimes Act of New South Wales, which the court noted was in fact similar to the section 576 of the Queensland Criminal Code, where the direction given by the trial judge and approved by the High Court in Gammage was as follows:

“you must not, as it where, say to yourselves ‘We are satisfied it is murder but we have the right to bring in manslaughter and although we think it is murder we are going to be merciful to this man and find him guilty of the lesser offence’…”
“Barwick C.J. said (at p.452):
“when is becomes necessary thus to direct a jury, the jury should be told if they are not satisfied to the requisite degree that the crime of murder was committed by the accused but are satisfied that the accused killed the deceased unlawfully, that is to say either without the requisite intent or under provocation (where there is evidence of it), they may return a verdict of manslaughter; but if they are satisfied to requisite degree of all the elements of the crime of murder which are relevant to the facts of the case as they find them, their duty is to convict of murder and that there is in that situation no room for a verdict of manslaughter.”

63.	As to whether a jury could return a verdict of manslaughter without first returning a verdict of not guilty of murder, in Stanton v R (2003) 198 A.L.R.41, Gleeson, C.J, McHugh and Hayne, at paragraphs 22-24 said:

22	    Furthermore, the prosecution was entitled to have the trial judge seek a verdict on the charge in the indictment, and if the jury were unable to agree, either on a verdict of guilty of wilful murder or a verdict of not guilty of wilful murder, then the proper course was to discharge the jury.  This was acknowledged in argument in this Court by counsel for the appellant, but it appears to have been the subject of some misapprehension in the Full Court.  As Anderson J told the jury immediately before they retired, the first question they would be asked when they returned was whether they found the appellant guilty or not guilty of wilful murder.  It would not have been a permissible response to that question for the jury to announce that they were unable to agree on that, but were all agreed that, if the appellant was not guilty of wilful murder, he was at least guilty of manslaughter.  If they were unable to agree on whether the appellant was guilty or not guilty of wilful murder, then they would be unable to agree on their verdict in relation to the charge in the indictment.  They would then be discharged.
23	The corollary of that proposition is that, as Anderson J told the jury, they would only be asked whether they found the appellant guilty or not guilty of murder if they had already found him not guilty of wilful murder; and they would only be asked whether they found the appellant guilty or not guilty of manslaughter if they had already found him not guilty of wilful murder and not guilty of murder.  In Gammage v The Queen [(1969) 122 CLR 444 at 453] Kitto J said:
"The common law, authorizing as it did a verdict of guilty of manslaughter on an indictment for murder, always made it a condition of the validity of that verdict that the jury should first have returned a verdict of not guilty of murder."
24	In R v McCready [[1967] VR 325 at 329], the Full Court of the Supreme Court of Victoria, speaking of a case where the indictment charged rape and where there was, by statute, a possible alternative verdict of assault with intent to commit rape, said:
"The terms of [the statute], in our view, make a verdict of assault with intent to commit rape dependent upon the jury being not satisfied that the accused is guilty of the crime of rape.  The question of his guilt of the alternative charge does not arise unless and until the jury is not satisfied of his guilt of rape, and whilst the jury is in a state of disagreement upon the latter, the accused's guilt of the alternative crime remains irrelevant."

64.	With respect to a question concerning the interpretation of sub-section 539(4), the pre-independence Full Court of the Supreme Court in R. v S.M [1973] P.N.G.L.R., 304 at page 311, agreed with the following passage:

“The relevant provision is an unusual one not to be found, as I understand it, in the legislation of the Australian States or of England. It was probably enacted in Papua New Guinea having regard to the difficulties of proving that death followed injuries proved to be inflicted upon a deceased person, difficulties which would obviously be encountered in criminal investigations from time to time in remote areas, particularly when carried out sometime after the death was reported, when the body may have been buried and perhaps no medical officer was available.”

65.	In R v Coutts [2006] 1 W.L.R. 2154, the House of Lords held that the public interest in the administration of justice will be best served by a judge in any trial on indictment leaving to the jury any obvious alternative to the offence charged, which there is evidence to support, the only qualification being that the right of an accused to a fair trial must not be infringed, and that there would ordinarily be no such infringement where an accused who, resisting conviction of a more serious offence, succeeded in throwing doubt on an ingredient of that offence and was, as a result, convicted of a lesser offence lacking that ingredient.

66.	To achieve this balance, the Constitution and the Criminal Code recognize and protect the rights of an individual, to the presumption of innocence in section 37 (4) (a) of the Constitution, to remain silent in section 37 (1) of the Constitution and section 572, from being tried again for any other offence of which he could have been convicted at his or her trial for the offence for which he or she has been convicted or acquitted in section 37 (8) of the Constitution and sections 16 and 17, whilst at the same time also providing in sections 531 (1) that an indictment must charge one offence only unless and subject to provisions such as section 539 (1), more than one count may be pleaded in an indictment where the requirements of section 531 (2) are met. And, for the purpose of and to complement section 539 (1), section 548 provides that a person convicted under any of the provisions of Division 3 [of which section 539 is one] is liable to the same punishment as if he had been convicted on an indictment charging him with the offence of which he is actually convicted.

67.	The effect of these provisions, when applied as far as they can without prejudice to an accused, should be that (a) when a person is suspected to have committed an offence, all the relevant facts and circumstances giving rise to that suspicion and all available offences which such facts may support are fully investigated; (b) a charge for the appropriate offence which the evidence is able to support to sustain a conviction is preferred and presented before the court that has jurisdiction over it; (c) the public interest of ensuring that an offender is properly tried and dealt with according to law is achieved; and (d) the right of the person charged not to be exposed to further prosecution for an offence based on the same facts and circumstances is protected.

68.	Some of these provisions and considerations have also been the subject of the judgments of this and the National Court, such as the pre-independence Supreme Court in Masuve v Bryant [1974] PNGLR 61, the National Court in the State v John Nugints [1994] PNGLR 493 and the decision of this court in Ombusu v The State [1997] PNGLR 699.

69.	There is nothing in the text of section 539(1) itself or the application of similar provisions as reflected in the foreign cases cited in this judgment or the reasons behind the inclusion of sub-section 539(4) noted in R v SM (supra), that supports the appellants’ contention that section 539(1) applies only to a trial where an accused has adduced evidence.

70.	Furthermore, if section 539(1) applies only to trials where an accused has adduced evidence, the result will be that the benefit of subsections 539(1) and (4) is not available to an accused who does not adduce evidence at his or her trial. There is nothing in section 539(1) which discriminates its application based on whether or not an accused adduces evidence at his or her trial. This is not an objective of section 539(1).

71.	I note also that the availability of a verdict on an alternative offence to that charged in the indictment, as is provided for in section 539(1), is not peculiar and restricted to any one of the three trial scenarios, to which I referred earlier. Under section 560(2)(a), on arraignment and with the consent of the State Prosecutor, an accused may plead guilty to an offence, other than that with which he or she has been charged, and of which the accused might be convicted on the indictment.

72.	By ground 5.2, the appellants contend that the learned trial judge ought to have acquitted the appellants after upholding their no case to answer submission on the authorities of Paul Kundi Rape (supra) and The State v Roka Pep (No.2) [1983] PNGLR 287. These cases were concerned with the principles which apply in a no case to answer submission. In neither of these cases was the issue, as to the effect of a successful no case to answer submission in respect of an offence preferred in an indictment to which a trial court may return a verdict on an alternative offence that the Criminal Code expressly authorizes, considered. These cases therefore are of no assistance to the appellants and the issue at hand. 

73.	In R v Carter and Canavan [1964] 2 Q.B. 1, it was held that a verdict is not complete until a jury has dealt with all possible alternative verdicts open to them on the indictment, so that if a judge discharges an accused before the jury has completed its verdict, the discharge is a nullity.

74.	In R. v Carson (1991) 92 Cr. App. R. 236, Carson was charged with violent disorder contrary to s.2 of the Public Order Act 1986. This was the only count he faced. A successful submission of no case to answer was made to that sole charge. But the judge did not direct the jury to bring in a verdict of not guilty there and then, because by virtue of s. 7(3) of the Public Order Act 1986 it was permissible for the jury to convict him of the alternative summary offence of using threatening, abusive or insulting behaviour contrary to s.4 of the same Act. The jury found Carson not guilty of violent disorder in accordance with the judge's direction, but guilty of using threatening, abusive or insulting behaviour, the summary alternative. 

75.	In the course of his judgment in R v Carson (supra), Watkins L.J. dealt with the submission that the trial judge had no power to leave the summary alternative to the jury having allowed a submission on the indictable offence in these terms:

[It was] submitted that it was not open to the jury to consider this alternative which is a summary offence despite the provisions of section 7(3). [The] submission was founded upon the assertion that it was not the jury which made the finding of not guilty in this case but the judge himself, in that the jury would not have acted as it did unless he had, using proper powers, directed them to find the appellant not guilty. It is only if ... a jury of its own volition, having considered the evidence and listened to the summing-up of the judge, has come to the conclusion that it must find a defendant not guilty that the possibility of convicting a defendant under the 1986 Act, of an alternative, can possibly arise ... 
We are now invited to say that section 7(3) must be construed so as to mean that only a verdict of a jury, returned of its own volition, can spark off the power under that subsection to permit that jury to consider whether or not there has been by the defendant the commission of an offence under section 4(1).

76.	Watkins L.J. continues: -

Once a defendant is put in the charge of a jury upon an indictment in a trial, that person remains in the charge of that jury until the jury has wholly discharged its function. It does not do that until either there have been verdicts returned upon all the offences which the jury may properly consider or there has been good reason for the judge to direct that the jury be discharged because there has been during the course of the trial some supervening event which has caused him to abort the trial and possibly to direct that another trial take place. A trial can only end in the ordinary way by a verdict of the jury. From the moment when a defendant is put in charge of the jury and until it ends in one of the ways I have referred to that person remains in the charge of the jury. Whilst he so remains he is liable to be tried not only upon the count or counts in the indictment but also upon any true alternative. It may be that a judge in his discretion may not leave an available alternative to a jury but that is a matter for him. If he, in his discretion, decides that it is right for the jury to consider an alternative, he is clearly entitled, the relevant law permitting in any particular case, to leave that alternative for the jury's consideration.

77.	In R. v Livesey [2007] 1 Cr. App. R. 35, the Court of Appeal considered whether the trial judge who had informed the jury that there was no case to answer on the offence charged in the indictment had erred when, following his ruling upholding a no case to answer submission on the offence charged in the indictment, the trial judge did not take a verdict at that stage having also ruled that there was a case to answer on an alternative charge. One of the arguments advanced by the appellant was that the trial judge should have entered a not guilty verdict. In dismissing this submission, the court said: -

13. So was the judge entitled to do as he did? In the absence of authority we would have taken the view that he was. Why should the jury not be entitled to do as Parliament intended? But there is not an absence of authority. There is one case which in our judgment is directly on point.

78.	The court then referred to R v Carson (supra) as the case on point, referring to the passages quoted at paragraphs 74 and 75. The court said that R v Carson (supra) was, in its judgment, an entirely analogous situation to the one faced by the trial judge in the case before it.

79.	In R v Richards [2016] SASCFC 79, a case before the Court of Criminal Appeal of the Supreme Court of South Australia, the appellant appealed against his conviction. At his trial, at the close of the prosecution case, the appellant made a no case to answer submission. The trial judge ruled that there was no case to answer on all three charged aggravated forms of the offences, however that there was a case to answer on the basic forms of the offences. The trial judge rejected the appellant’s submission that upon finding that the appellant had no case to answer in relation to each of the aggravated offences, the trial judge was bound to immediately acquit the appellant of those charges.  The trial proceeded on the basis that the only offences in issue were the basic forms of the three offences. The trial judge found the appellant not guilty of the charged aggravated offences in relation to the first two counts, but guilty of the basic offences for those counts. The trial judge found the appellant not guilty of both the aggravated and basic forms of the offence in count 3. The appellant appealed against his convictions on the grounds that the trial judge erred in failing to enter a judgment of acquittal at the end of the prosecution case when there was no evidence of the aggravating circumstance and in allowing the trial to proceed for the purpose of determining the appellant’s guilt of the basic offence.

80.	Kourakis CJ, (with whom the other members of the court agreed), at para. 29, said –
The general principle with respect to common law alternatives was stated in R v McLaren[(1996) 189 LSJS 466, 468 (Cox J)]to be that an accused may be found guilty of an alternative, lesser, offence, if it is an offence of the same character as the offence charged and if the definition of the offence charged necessarily includes the definition of the postulated alternative offence.  The proviso to the principle is calculated to ensure procedural fairness and is not a limitation on the power.  The rule itself is a rule of trial procedure, the effect of which is that an accused is put on trial not only on the count expressly pleaded in the Information or Indictment but also for such alternative lesser offences comprised within it.  It is in the nature of a pleading rule which has the effect that an Information charging a count of a greater offence is to be taken to plead in the alternative those lesser offences which fall within the major offence.  

81.	Then, at para. 42 to 44, he said: -

42	Be that as it may it is now settled that, leaving aside cases in which there is an alternative offence which is not expressly charged, a judge should direct a jury to return a verdict of not guilty at the conclusion of the prosecution case if there is no case in law.
43	However, there is every reason not to bring a trial to a premature end when there is a legal case to answer on a common law alternative because of the long standing rule of common law criminal procedure that the accused is taken to be charged with both the pleaded count and its alternatives.  No good purpose would be served by requiring prosecutors to plead every statutory and common law alternative to meet the contingency that even though there may be no case in law on the charged count, there may be a case to answer on an alternative.  That process would be unnecessarily cumbersome in the many cases in which pleas are entered to the major offence.  In those cases in which there is a plea of not guilty to the major offence it may be that for one reason or another the common law alternatives never need to be considered.  There are no good legal policy reasons to require Informations to be loaded up with alternatives.  
44	The limited authority identified by the researches of counsel supports the conclusion reached from first principles.  There is authority for the procedure when a statutory alternative is available albeit not charged on the Information.  

82.	The Chief Justice then referred to the passage in R v Carson (supra)quoted above and also to R v Livesey (supra), and continued: -

45	I would hold that the common law procedure for a criminal trial does not require a judge to direct the jury to return a verdict of not guilty, or to enter directly a judgment of acquittal in a trial by judge alone, when the prosecution has failed to make out a case to answer on the major offence but has led evidence on which a verdict of guilty can properly be returned on its common law alternative.

83.	In my respectful opinion, these cases reflect the correct combined effect of section 539 (1) and section 548 and the application of section 539, which is that where, by an indictment, an accused is charged with wilful murder under section 299 (“primary charge”), the accused is also charged in the alternative for each and every one of the offences for which the Criminal Code expressly empowers the trial court to return a verdict if the prosecution fails to adduce evidence on each and every element of the offence in the primary charge or fails to prove that charge beyond reasonable doubt, the result of which is that the trial court cannot stop the trial or discharge the accused if it upholds a no case to answer submission on the primary charge; it must complete the trial by allowing the accused the opportunity to adduce evidence and/or make a 572 statement and close its case before it determines whether or not the accused is guilty of any of the alternative offences open to it on the indictment.

84.	This is what had occurred at the trial of the appellants. Following his ruling upholding the appellants’ no case to answer submission, the learned trial judge did not err when he did not enter a verdict of not guilty and when he did not discharge the appellants; the learned trial judge correctly proceeded with and concluded the trial, after the appellants had adduced evidence and closed their case, by returning a verdict of guilty of murder, one of the alternative offences open on the charge in the indictment.

85.	For these reasons, I reject the appellants’ submissions on grounds 5.1, 5.2 and 5.3 of the notice of appeal. I would dismiss these grounds of appeal.

86.	With respect to grounds 5.4 to 5.6 (inclusive) and grounds 6 to 8 (inclusive), the appellants either did not pursue or had abandoned them. This is reflected in the written and oral submissions made on behalf of the appellants. In the circumstance, I strike out each and every one of these grounds of appeal.

87.	In the result, I dismiss the appeal.

ORDER

88.	The formal orders of the Court by majority judgment are:

1.	The appeal by the Appellants is allowed;
2.	The convictions of the Appellants for murder are quashed;
3.	The Appellants be acquitted;
4.	Consequently, the sentences of the Appellants pertaining to the conviction for the charge of murder are set aside.

________________________________________________________________
Public Solicitor:           Lawyers for the Appellants				
Public Prosecutor:    Lawyer for the Respondent