In the Matter of the Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287

• Jurisdiction: Papua New Guinea
• Date: 14 September 1983
• Citation: [1983] PNGLR 287
• Docket Number: The State v Roka Pep (No 2)
• Court: Supreme Court
• Year: 1983

Full Title: The State v Roka Pep (No 2); In the Matter of the Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287

Supreme Court: Kidu CJ, Kapi DCJ, Andrew J, Pratt J, Kaputin J

Judgment Delivered: 14 September 1983

1 Criminal law—practice and procedure—no case to answer—general principles—formula to be applied in circumstances relevant to PNG

2 CRIMINAL LAW—Practice and procedure—Submission of no case to answer—Meaning of—Principles applicable—Distinguished from discretion to withdraw case.

Held:

(By Kidu CJ Kapi DCJ Andrew J and Kaputin J) Where in criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the matter is a question of law for the judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence.

Where the tribunal decides there is no case to answer the accused is acquitted and that is the end of the matter.

Where the tribunal decides there is a case to answer, it nevertheless has a discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.

The State v Paul Kundi Rape [1976] PNGLR 96, adopted and applied.

(Per Pratt J) A tribunal should make a finding of no case to answer where (a) there is no evidence to establish an element of the offence charged; or (b) there is some evidence covering the elements of the offence charged but it is so tenuous or incredible or discredited that it amounts only to a scintilla, and thus could not be accepted as persuasive by any reasonable person.

Acting Public Prosecutor v Barry Blythe Holloway (1981) N298(M), Benney v Dowling [1959] VR 237, British Launderers' Research Association v Central Middlesex Assessment Committee and Hendon Rating Authority [1949] 1 All ER 21, Edwards (Inspector of Taxes) v Bairstow [1956] AC 14; [1955] 3 WLR 410; [1955] 3 All ER 48, Haw Tua Tau v Public Prosecutor [1981] 3 WLR 395; [1981] 3 All ER 14, Instrumatic Ltd v Supabrase Ltd [1969] 1 WLR 519; [1969] 2 All ER 131, Jewell v Parr (1853) 13 CB 909; 138 ER 1460, May v O'Sullivan (1955) 92 CLR 654; 29 ALJ 375; [1954] ALR 671, Practice Direction [1962] 1 WLR 227; [1962] 1 All ER 448, R v Aivei Ieme [1973] PNGLR 1, R v Charlotte Smith (1865) 10 Cox CC 82, R v Dodd [1971–72] PNGLR 255, R v Galbraith [1981] 1 WLR 1039; 73 Cr App R 124; [1981] 2 All ER 1060, R v Hemmings [1939] 1 All ER 417; 27 Cr App R 46, R v Mansfield [1977] 1 WLR 1102; [1978] 1 All ER 134, R v Prasad (1979) 23 SASR 161, R v Young [1964] 1 WLR 717; [1964] 2 All ER 480; 48 Cr App R 292, R v Wewak Resident Magistrate; Ex parte Dyer [1967] PNGLR 511, Rosa Angitai v The State [1983] PNGLR 185, Ryder v Wombwell (1868) LR 4 Exch. 32, Sharp v Hotel International Ltd [1969] VR 103, The State v Aige Kola [1979] PNGLR 620, The State v Delga Puri and Tapri Maip [1982] PNGLR 395, The State v Lasebose Kuriday (1981) N300, The State v Lupam Lau (1981) N309(M), The State v Paul Kundi Rape [1976] PNGLR 96, The State v Roka Pep [1983] PNGLR 19, The State v Tom Morris [1981] 1 PNGLR 493, Waghi Savings and Loans Society Ltd v Bank of South Pacific Ltd (1980) SC185, Wheelton v Hardisty 8 E & B 232; 120 ER 86, Wilson v Kuhl [1979] VR 315 and Zanetti v Hill (1962) 108 CLR 433; 36 ALJR 276 referred to

Reference.

This was the reference by the National Court of questions of law pursuant to s21 of the Supreme Court Act (Ch37). The questions asked appear at the beginning of the judgment of Kidu CJ hereunder.

___________________________

Kidu CJ:

This is a reference by the National Court pursuant to s21 of the Supreme Court Act (Ch37). The questions this Court has been asked to consider are as follows:

"(1) What are the proper principles in a no case submission?

(2) Is there a discretion in the judge to stop a case (withdraw the case from jury) even though there is some evidence of all the essential elements? If there is, what are the proper principles?

(3) Is there a further discretion in the judge to weigh the evidence beyond reasonable doubt as stated in The State v Aige Kola [1979] PNGLR 620 and The State v Lasebose Kuriday (1981) N300. If there is, what are the circumstances in which it may be exercised?"

Question 1.

I consider that the principle applicable to a submission of "No case to Answer" is so well settled in this country that it needs only to be re–stated without much comment. This principle is discussed in the The State v Paul Kundi Rape [1976] PNGLR 96 at 97–98:

"Where the question is whether there is a case to answer the principle to be applied is quite clear. In May v O'Sullivan (1955) 92 CLR 654, at 658, the Full Court of the High Court of Australia expressed it in these terms:

'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.' (Emphasis mine)

In the case of Zanetti v Hill (1962) 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 the 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 evidence; . . .

For the better understanding of this principle, and particularly for the avoidance of confusion in considering the second question to which I will shortly refer, I think it is important to keep in mind that for the purpose of determining either of them, one does not look to see whether at the close of the prosecution's case, the prosecution has proved its case beyond reasonable doubt. As Kitto J said in Zanetti v Hill (supra), the fact that a person is not to be convicted of any offence unless the tribunal of fact before which he is charged is satisfied beyond reasonable doubt that every element of the offence exists 'does not mean that the case for the prosecution must be proved beyond a reasonable doubt before there is a case for the defence to answer.'

The time at which one looks to see whether the prosecution has proved its case beyond reasonable doubt does not arise until the whole of the evidence, including such evidence as the accused may wish to adduce, is before the Court, and not before. It is therefore a question that does not arise at the close of the prosecution's case, unless that also marks the conclusion of the evidence in the case, that is, if the accused does not adduce any evidence himself." (Emphasis mine)

Counsel, in their submission, did not advance any arguments contrary to what is discussed in The State v Paul Kundi Rape [1976] PNGLR 96.

No case in our jurisdiction has said anything to the contrary. In fact, the principle has been affirmed and restated in subsequent cases. For instance:

(a) Miles J in Acting Public Prosecutor v Barry Blythe Holloway (1981) N298(M), at...