Rosa Angitai v The State [1983] PNGLR 185

• Jurisdiction: Papua New Guinea
• Judge: Bredmeyer J, Kaputin J, Gajewicz J
• Judgment Date: 06 June 1983
• Citation: [1983] PNGLR 185
• Court: Supreme Court
• Year: 1983
• Judgement Number: SC252

Full Title: Rosa Angitai v The State [1983] PNGLR 185

Supreme Court: Bredmeyer J, Kaputin J, Gajewicz J

Judgment Delivered: 6 June 1983 or 21 June 1983

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ROSA ANGITAI

V

THE STATE

Waigani

Bredmeyer Kaputin Gajewicz JJ

28 February 1983

6 June 1983

CRIMINAL LAW — Practice and procedure — No case submission — Reasons for ruling on — Reasons not normally required — When to be given — Not to be speculated on on appeal.

CRIMINAL LAW — Murder — Provocation — Sufficient to reduce charge to manslaughter — Provocation as defence — Distinction — Whether defence of provocation available where murder reduced to manslaughter — Criminal Code (Ch. No. 262), ss 266, 267, 303.Infra. 188.1

Held

(1) Where a no case submission is made, the trial judge is not, except where he accepts the submission and acquits the accused, required to give reasons for his ruling.

(2) Where a trial judge is not required to give reasons for his ruling on a no case submission a court of appeal should not speculate on what those reasons were.

(3) On a charge of murder, where there is sufficient provocation under s. 303 of the Criminal Code (Ch. No. 262), an accused person may be found guilty of manslaughter.

(4) The circumstances or criteria of provocation reducing wilful murder or murder to manslaughter under s. 303 are different from and less stringent than those applicable to the defence of provocation under s. 267.

(5) Semble: The defence of provocation under s. 267 is not available to an accused charged with murder and found guilty of manslaughter by the application of s. 303.

Cases Cited

Galbraith (1981) 73 Cr. App. R. 124.

Haw Tua Tau v. Public Prosecutor [1981] 3 All E.R. 14.

Morgan v. Babcock & Wilcox Ltd. (1929) 43 C.L.R. 163.

P.L.A.R. No. 1 of 1980 [1980] P.N.G.L.R. 326.

R. v. Dodd [1971-72] P.N.G.L.R. 255.

R. v. Falconer-Atlee (1974) 58 Cr. App. R. 348.

R. v. Uno Tam & Marau U'U (Unreported Supreme Court decision No. 766 of 1973.)

State, The v. Aige Kola [1979] P.N.G.L.R. 620.

State, The v. Paul Kundi Rape [1976] P.N.G.L.R. 96.

Wilson v. Buttery [1926] S.A.S.R. 150.

Appeal

This was an appeal against conviction for manslaughter. The appellant was charged with wilful murder. The trial judge ruled that there was no case to answer on the charge of murder. The appellant was convicted of manslaughter on a finding that she had an intention to do grievous bodily harm when she hit the victim but that she was provoked within the meaning of s. 303 of the Criminal Code (Ch. No. 262).

Counsel

A. Amet, for the appellant.

K. Roddenby, for the respondent.

Cur. adv. vult.

21 June 1983

BREDMEYER J: I have had the benefit of reading the judgment about to be delivered by Gajewicz J and entirely agree with it. I desire to add a few additional comments on the first ground of appeal.

The learned trial judge Woods AJ convicted of manslaughter. He found the accused had an intention to do grievous bodily harm when she hit the victim but that she was provoked within the meaning of s. 303 of the Criminal Code (Ch. No. 262), which reduced the crime from murder to manslaughter. The first ground of appeal argues that in convicting the accused the trial judge's finding of an intention to do grievous bodily harm is inconsistent with his ruling on the no case submission of no case to answer on murder. Intention to do grievous bodily harm is one of the essential elements of murder; it is not an element of manslaughter. This argument asks us to assume that the reason for the ruling of no case to answer on murder was that the judge considered that the State's evidence at its highest could not support a finding of intention to do grievous bodily harm.

In considering a no case submission a judge must consider all the evidence led by the State to that stage, that is all the evidence called to prove the elements of the offence and all the evidence which relates to any defence such as provocation, self-defence, intoxication, mistake of fact, etc. A judge is not normally required to give reasons on a no case submission. If the submission succeeds and the judge rules no case to answer, that could be because the judge is not satisfied that the State evidence at its highest proves one or more elements of the offence, or it could be that the State evidence does not negative a defence which was raised in that evidence. When the ruling of no case to answer on murder was given in this case, the defence counsel would not have known the basis for the ruling as no reasons were given. The basis could have been that the State evidence did not show an intent on the part of the accused to do grievous bodily harm, or it could have been that the State evidence had not negative the defence of provocation. Intent and provocation were the only matters in dispute at the trial.

Counsel for the appellant is really asking the court to speculate that the basis of the judge's no case ruling was that he considered the State had not proved an intent to do grievous bodily harm, which was thus inconsistent with his finding of such an intent in giving his reasons for decision. The trial judge was not required by the circumstances of this case to give reasons for his ruling on the no case submission and this court should not speculate what those reasons were. The trial judge's conviction of manslaughter was not inconsistent with his ruling on the no case submission that the trial must proceed on the charge of manslaughter. The trial judge's findings in support of the conviction were open to him on the evidence and were not inconsistent with his ruling on the no case submission where no reasons were given. There is no inconsistency between the two, no error of law.

As I have said, I consider that the learned trial judge was correct in not giving reasons for his ruling on the no case submission. With one exception, which I mention in a moment, reasons should not normally be given on a no case submission because, firstly, reasons require the weighing up of evidence and considering the credibility of witnesses, which is best left to the end of the trial when all the evidence, called by the State and defence, has been received. If this were not so, a judge might say on the no case submission that he could not believe a certain State witness and then at the conclusion of the trial, because of further evidence called, reverse that view and say that he believes the testimony of that witness. A judge should not appear vacillating. Secondly if a judge were to give reasons and say that he thought a certain State witness credible that might suggest that the onus of proof has shifted from the prosecution, that the accused will be convicted unless he rebuts the evidence already calld against him. It is for the latter reason that a judge when rejecting a no case submission should avoid saying "I find a case to answer". It is better if the judge says something to the following effect:

"I consider that there is evidence upon which the accused could lawfully be convicted. The trial must proceed".

(Extracted from The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96);

"I do not propose at this stage to weigh up the strength and weaknesses of the prosecution witnesses. That task should properly be left to the end of the trial, but on one possible view of the facts there is evidence before me on which I could find the accused guilty. The trial must proceed."

(Taken from Galbraith (1981) 73 Cr. App. R. 124 with some adaptation to suit our non-jury situation.), or;

"There is evidence here, which is not inherently incredible, and which if I were to accept as accurate would establish each element of the offence. The trial must therefore proceed."

(Taken from Haw Tua Tau v. Public Prosecutor [1981] 3 All E.R. 14 (P.C.) ).

A no case submission can be made in a number of different situations. Except where an accused is acquitted, I consider no reasons should be given. The different situations in summary form are as follows:

(1) Reject a no case submission — no reasons

(2) Accept a no case submission and — give reasons acquit the accused.

(3) Accept a no case submission in — no reasons relation to one charge but allow the trial to continue in relation to a second charge, or a lesser charge open on the indictment.

(4) On a joint trial, accept the submission in relation to one accused, but reject it in relation to others. — acquit that accused without giving any reasons. Later, at the end of the trial of the other accused give reasons for that acquittal.

The appeal should be dismissed.

KAPUTIN GAJEWICZ JJ: The appellant was charged, together with one Paul Sipitio with murder. Paul Sipitio pleaded not guilty and the appellant guilty. Counsel for the defence asked that a plea of not guilty for the appellant be entered on the ground that a defence of provocation may be available. This application was granted and pleas of not guilty were entered for both accused. After the close of the case for the State, counsel...