The State v Anslem Pasika (2005)

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 19 December 2005
• Citation: (2005)
• Docket Number: CR NO 1838 OF 2005
• Court: National Court
• Year: 2005

Full Title: CR NO 1838 OF 2005; The State v Anslem Pasika (2005)

National Court: Kandakasi, J

Judgment Delivered: 19 December 2005

RULING ON NO CASE SUBMISSION

CRIMINAL LAW—PRACTICE & PROCEDURE—No case submission—Both limbs under The State v Paul Kundi Rape [1976] PNGLR 96—Evidence not establishing main issue for trial—No case to answer on charge presented—Whether Court can consider alternative count—Court empowered to consider whether facts disclose a prima facie case on an alternative count—Principles governing return of guilty verdict on alternative count applies—Requirements not met—Accused as no case to answer even on an alternative count.

Cases cited:

The State v Paul Kundi Rape [1976] PNGLR 96; The State v Albert Monja [1987] PNGLR 447; The State v Thomas Gitai Bawai (2001) N2074; The State v Moki Lepi [2002] PNGLR 447; The State v Peter Malihombu (2003) N2365; The State v Damien Anis [2002] PNGLR 614; Mitige Neheye v The State; Martin Gawi v The State [1994] PNGLR 71;

1. KANDAKASI, J: You pleaded not guilty to one charge of rape contrary to s347 (1) of the Criminal Code as amended. The main issue for trial was whether you sexually penetrated the victim of the alleged offence. At the end of the prosecutions case, you made a no case submission through your lawyer. That submission was under both the first and second limbs of The State v Paul Kundi Rape [1976] PNGLR 96

2. You advanced two reasons for making that submission. First, you submitted that, the evidence produced by the prosecution failed to establish the main issue for trial. Secondly you submitted that, the totality of the evidence produced against you by the prosecution is insufficient and lacks the necessary credibility to establish neither a prima facie case nor a safe basis to convict you on the charge presented. Further, on the Court raising the issue with your lawyer, you submitted that since you have not gone into evidence as yet, the Court has no power to give any consideration to whether the evidence supports a decision that you have a case to answer on an alternative charge.

3. On Friday last week, I ruled that you have no case to answer on the charge of rape. I arrived at that decision on the prosecution correctly conceding that, it failed to make out a prima facie case against you on the main issue of penetration. I said the prosecution correctly conceded to your submission because although the alleged victim testified in terms of you penetrating her sexually without her consent, the medical evidence contradicted her claims. The medical evidence instead clearly showed that there was no penetration of the victim.

4. As neither of the counsel was able to assist the Court with the support of relevant authorities on the issue of whether the Court should consider whether you have a case to answer on an alternative account, I adjourned a decision on that issue to today. I have been able to conduct some limited research over the weekend unaided by counsel as I was and am now able to determine the issue at hand.

5. In a criminal case, there are two main levels of decision-making. The first determines the guilt or innocence of a person charged with an offence. The second determines an offenders penalty or punishment, provided the first level results in a finding of guilt against the offender. Subject only to one’s right of appeal, once a decision is made at any of these levels, that becomes final. A person already charged and either convicted or acquitted cannot be charged again over the same incident as a matter of law. s560(2) (b) and (c) of the Criminal Code specifically stipulates to that effect. Given that, sections such as s541, s546 and s547 of the Criminal Code also provide for the possibility of the evidence adduced in support of a charge not making out the charge but a different one or merely an attempt at committing the offence allegedly committed. As King AJ., said in The State v Albert Monja [1987] PNGLR 447, in the context of the predecessor to s547 that the provision:

“… is an enabling or facilitative provision, designed to overcome problems which might emerge in the course of criminal trials, whether technical or substantive, and which are not or cannot be cured by laying alternative charges or amending the indictment. Because it is an enabling provision, it should be construed in the way, which make it most effective in that role. That consideration alone is in my opinion decisive … Most reasonable people would, I am sure, think it absurd that if the evidence in a given case involving a charge of attempt shows that the full offence was probably committed, the accused should automatically escape conviction of attempt and public funds be wasted on a second...