The State v Tolly Amindi (2004) N2683

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 05 May 2004
• Citation: (2004) N2683
• Court: National Court
• Year: 2004
• Judgement Number: N2683

Full Title: The State v Tolly Amindi (2004) N2683

National Court: Kandakasi J

Judgment Delivered: 5 May 2004

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—No case submission—Second limb under State v Paul Kendi Rape [1976] PNGLR 96—No direct evidence on issue for trial—Inconsistency in State's case—Effect of—Accused having no case to answer.

2 The State v Paul Kundi Rape [1976] PNGLR 96, The State v Peter Malihombu (Unreported judgment delivered on 29/04/03) N2365, The State v Damien Anis (Unreported judgment delivered on 24/05/02) N2236 referred to

Ruling On No Case Submission

___________________________

N2683

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1278 of 2002

THE STATE

-V-

TOLLY AMINDI

GOROKA: KANDAKASI, J.

2004: 5th of May

RULING ON NO CASE SUBMISSION

CRIMINAL LAW – PRACTICE & PROCEDURE – No case submission – Second limb under State v Paul Kendi Rape [1976] PNGLR 96 – No direct evidence on issue for trial – Inconsistency in State’s case – Effect of – Accused having no case to answer.

Cases cited:

The State v. Paul Kundi Rape [1976] PNGLR 96.

The State v. Peter Malihombu (Unreported judgment delivered on 29/04/03) N2365.

The State v. Damien Anis (Unreported judgment delivered on 24/05/02) N2236.

Counsel:

K. Umpake for the State

T. Ohuma for the Accused

05th of May 2004

KANDAKASI J.: You stand charge with one charged of murdering your late husband Peter Amindi. You raised the defence of accident under s. 24 (1) (a) and (b).

At the end of the prosecution case, you through your lawyer made a no case submission. Initially, this application was under the first limb of The State v. Paul Kundi Rape [1976] PNGLR 96. The basis for that was that, the prosecution did not produce any evidence establishing you as the killer. However, you abandoned your application under that limb on the Court drawing to counsel’s attention that, the issue for trial was whether the accused brought about the death of the deceased accidentally or was it deliberate.

The effect of your defence was that all the other elements of the offence, such as the identity of the killer, the deceased being attacked by you and dying in the consequence of that stood admitted. Indeed that is the correct legal position. A number of cases, for example my own judgment in The State v. Damien Anis (24/05/02) N2236 in the context of identification being only issue for trial, point that out.

Consequently, you pursued your submission under the second limb. Under that limb, the question to ask is whether on the evidence as it stands you could be lawfully be convicted. The Court is asked to stop the case here because of an argument that the State’s case has fallen short of establishing a case for you to answer. This requires a consideration of the evidence called by the State, on the issue for trial.

The State admitted into evidence with your consent the medical evidence consisting of the autopsy report and the medical certificate of death. It also admitted into evidence your record of interview with the police. It then called, Gagma Moroyagl, who gave sworn oral evidence. His evidence in short, is this woman fought with a man called Peter not far from the DPI office here in Goroka on 17th April 2002? He could not tell who the woman was as it was dark. He was however, able to see the woman lifted her hand and hit the man called Peter at his chest area. He did not tell whether the woman had an object to do that but could only see the action. Later he saw the woman try to hit the man and this time he struggle with the woman and removed a kitchen knife from her. He was not able to answer a suggestion under cross-examination that this part of his evidence was false.

In the record of interview, you admitted fighting with the deceased but say that it was an accident in questions and answers 19 to 23. There is therefore a direct conflict in the State’s evidence when they are put together. In view of that, the question is what is the effect of this in the State’s case? Has the State established a prima facie case against you? Or put another way, is there a case for you to answer?

It is trite law that, the State has the burden throughout to establish a case against an accused person before an accused person can be called on to answer it. In my view this means, a clear prima facie case must be made out before the accused could be called on to answer.

In the present case, there is a clear conflict in the State’s case. The oral evidence suggests that an...