CR 38 OF 2010; State v Famund Badi Moibamo (No.1) (2011) N4342

• Jurisdiction: Papua New Guinea
• Citation: (2011) N4342
• Date: 15 July 2011
• Court: National Court
• Year: 2011

Full Title: CR 38 OF 2010; State v Famund Badi Moibamo (No.1) (2011) N4342

National Court: Ipang, AJ

Judgment Delivered: 15 July 2011

CRIMINAL LAW—Practice and Procedure—No Case Submission—principles well established—Paul Kundi Rape’s case & other subsequent National Court Judgments—State v Thomas Sange & Ors (2005) N2805 & State v Nathan Kovoho CR. No. 163 of 2005, N2810.

CRIMINAL LAW—identification—though a stranger State witness—close proximity at the scene of crime—held on accused talked to him and had no difficulty pointing directly and identifying accused as the person who stabbed deceased—issue of intention extensively addressed—No case submission over—ruled—Accused had a case to answer.

Cases Cited

The State v Paul Kundi Rape [1976] PNGLR 96

The State v Aige Kola [1979] PNGLR 620

State v Roka Pep (No.2) [1993] PNGLR 287 The State v Roka Pep (No 2) [1983] PNGLR 287

Joshua Yaip Avini & P.N.Acosta [1997] PNGLR 212

The State v Tauvaru Avaka (2000) N2024; The State v Henry Osare Kales (2001) N2115; The State v Robert Tamtu (2001) N2166

State v Atau Gore (No.1) N2004

The State v Tolly Amindi (2004) N2683; The State v Thomas Sange (2005) N2805; The State v Nathan Kovoho (2005) N2810

RULING ON NO CASE SUBMISSION

15 July, 2011

1. IPANG AJ: This is the ruling on the no case Submission by Mr. R. Kasito of counsel for the accused and the reply by Ms. V.Mauta of counsel for the State. At the close of the case for the prosecution on a charge of willful murder, counsel for the accused submitted that the accused has no case to answer and as the case stood, the court should be satisfied that the evidence for the prosecution is insufficient and therefore should acquit the accused.

2. The law on the no case submission is well settled in this jurisdiction. The Court in the case of State v Paul Kundi Rape [1976] PNGLR 96 held that;

“Where there is a submission of no case to answer at the close of the case for the prosecution, the question to be asked is not whether on 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 a question of law; to be carefully distinguished from the question of fact to be asked at the close of all the evidence whether prosecution has proved its case beyond reasonable doubt.”

3. In the same year 1976 in another case of State v Aige Kola [1976] PNGLR 620, the Court held that;

“Where there is submission of no case to answer at the close of the case for the prosecution, there are two questions to be determined;

1) Whether there is sufficient evidence on which the accused could lawfully be convicted; and

2) Whether there is sufficient evidence on which the accused ought to be convicted; i.e. whether the evidence is so insufficient that the accused ought not to be called upon to answer to.”

4. In the more recent case, of CR No. 163 of 2005 (N2810), The State v Nathan Kovohos, Cannings J elaborated in detail the principles of no case submission as found in Rape’s Case (supra). In Kovohos case Cannings, J re-iterated that there are two distinct and separate questions that arise. His Honour mentioned these as the first limb or first test followed by the second limb or second test.

First Limb or First Test

5. Q1: Is there some evidence of each element of the offence which, if accepted would either prove the element directly or enable its existence to be interfered?

6. If the answer to question 1 is “no” the conclusion will be that on the evidence as it stands the accused could not be lawfully convicted. This is an issue of law. The accused will have no case to answer...