The State v James Yali (2005) N2935

• Jurisdiction: Papua New Guinea
• Judge: 23 November 2005
• Citation: (2005) N2935
• Docket Number: CR NO 368 OF 2005
• Court: National Court
• Year: 2005
• Judgement Number: N2935

Full Title: CR NO 368 OF 2005; The State v James Yali (2005) N2935

National Court: 23 November 2005

Judgment Delivered: Cannings J

N2935

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 368 OF 2005

THE STATE

V

JAMES YALI

MADANG : 22, 23 NOVEMBER 2005

CANNINGS J

Criminal Law – procedure – no case submission – rule in Rape’s case – two limbs or tests – reliance on second limb: whether there is sufficient evidence on the basis of which the court ought to convict the accused.

The accused is charged with four sexual offences. At the close of the prosecution’s case the defence counsel made a no-case submission, arguing that the evidence was tainted and unreliable, and insufficient to warrant the accused being asked to answer the charges.

Held:

(1) The accused had raised legitimate concerns about statements made by the principal investigator and it appears that the manner in which certain documents surfaced during the trial was unsatisfactory. However, it did not follow that the whole of the evidence was tainted.

(2) Even though there is an argument that the evidence is weak, unreliable and inconsistent, a reasonable tribunal of fact could nevertheless base a conviction on it.

(3) There is sufficient evidence based on which the court ought to convict the accused. Furthermore, there is more than a scintilla of evidence.

(4) Accordingly, the no-case submission is refused and the trial shall proceed.

Cases cited

The following cases are cited in the ruling:

Joshua Yaip Avini and Plaridel Nony Acosta v The State [1997] PNGLR 212

The State v Atau Gore (No 1) (2004) N2639

The State v Eddie Sam (2004) N2521

The State v Henry Osare Kales (2001) N2115

The State v Kwale Dire (2001) N2178

The State v Michael Herman and Albert Paul (2003) N2475

The State v Nathan Kovoho (2005) N2810

The State v Nerius Patrick (2004) N2611

The State v Paul Kundi Rape [1976] PNGLR 96

The State v Robert Tamtu (2001) N2166

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

The State v Tauvaru Avaka (2000) N2024

The State v Thomas Sange and Others (2005) N2805

The State v Tolly Amindi (2004) N2683

The State v Tom Kakawi and Others (2002) N2229

RULING

This was a ruling on a no-case submission.

N Miviri for the State

G J Sheppard and N Eliakim for the accused

CANNINGS J: This is a ruling on a no-case submission made at the end of the prosecution’s case. The accused, James Yali, is charged with four sexual offences. On the tenth day of the trial, 22 November 2005, the prosecutor, Mr Miviri, closed the State’s case. This consisted of the oral evidence of 18 witnesses and 19 pieces of documentary evidence. The defence counsel, Mr Sheppard, then made a no-case submission, ie an application that the accused not be called on to answer the charges and that he be acquitted. He based his submission on the principles set out in the leading case, The State v Paul Kundi Rape [1976] PNGLR 96, National Court, O’Leary AJ; in particular on what is known as the ‘second limb’ of Rape.

I will start by setting out the principles in Rape’s case, which consist of two limbs or tests. Then I will summarise the submissions made first by the defence counsel, then by the prosecutor, and finally by the defence counsel in reply. Then I will comment on the submissions and apply the principles in Rape to this case.

THE PRINCIPLES IN RAPE’S CASE

In Rape’s case O’Leary AJ pointed out that when the prosecution has closed its case two distinct and separate questions can arise.

Question 1 – also called the first limb or test – 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 inferred?

Note that the question is not: is every element of the offence established beyond a reasonable doubt? That question can only be answered at the end of the trial – if it proceeds – on the whole of the evidence, ie including any evidence adduced by the accused.

If the answer to question 1 is no, the conclusion will be that on the evidence as it stands, the accused could not lawfully be convicted. This is an issue of law. The accused will have no case to answer. The accused will not be required to answer the charge. The accused will be entitled to an acquittal.

If the answer to question 1 is yes: the trial should proceed unless question 2 is answered in the negative.

Question 2 – also called the second limb or test – although there is a case to answer, is there sufficient evidence on the basis of which the court ought to convict the accused?

Again, the issue is not whether the prosecution has proved its case beyond reasonable doubt. It is directed at the situation where there is only a scintilla of evidence or where the evidence is so weak, tainted or unreliable that no reasonable tribunal of fact could base a conviction on it.

If the answer to question 2 is no, ie there is insufficient evidence, the trial judge has a discretion to either not call upon the accused (ie enter an acquittal) or order the trial to proceed. (See Rape at page 99.) If the answer to question 2 is yes, the trial must proceed.

The Supreme Court confirmed the correctness of the above principles in The State v Roka Pep (No 2) [1983] PNGLR 287, Kidu CJ, Kapi DCJ, Andrew J, Pratt J, Kaputin J; and Joshua Yaip Avini and Plaridel Nony Acosta v The State [1997] PNGLR 212, Kapi DCJ, Los J, Salika J.

Recent National Court cases in which the Rape principles have been applied include The State v Tauvaru Avaka (2000) N2024, Gavara-Nanu J; The State v Henry Osare Kales (2001) N2115, Kirriwom J; The State v Robert Tamtu (2001) N2166, Lenalia J; The State v Kwale Dire (2001) N2178, Gavara-Nanu J; The State v Tom Kakawi and Others (2002) N2229, Lenalia J; The State v Michael Herman and Albert Paul (2003) N2475, Lenalia J; The State v Eddie Sam (2004) N2521, Lenalia J; The State v Nerius Patrick (2004) N2611, Sevua J; The State v Atau Gore (No 1) (2004) N2639, Manuhu AJ; The State v Tolly Amindi (2004) N2683, Kandakasi J; The State v Thomas Sange and Others (2005) N2805, Cannings J; and The State v Nathan Kovoho (2005) N2810, Cannings J.

Strictly speaking it is only the first limb of Rape’s case that gives rise to a no-case submission. However, it has become the norm to refer to and rely on both limbs when a no-case submission is made (see Roka Pep (No 2) per Kidu CJ).

THE NO-CASE SUBMISSION

Mr Sheppard made the application on the second limb of the principles in the case of The State v Paul Kundi Rape [1976] PNGLR 96. His submission was that the state of the evidence is such that the judge ought to withdraw the case from the tribunal of fact. He presented two main reasons in support of this submission. First, the investigating officer had admitted that he was out to get the accused, James Yali, at all costs, which meant that the way in which the case had been investigated and prosecuted tainted the whole of the evidence presented on behalf of the State. Secondly, the evidence was so inconsistent, vague and dependent on circumstantial evidence, the entire case must be withdrawn.

First ground: conduct of the investigation and case

Mr Sheppard highlighted that significant concessions had been made by the final State witness, Senior Sgt Steven Yalamu, as to the way in which the investigation had been conducted. Senior Sgt Yalamu was asked in cross-examination whether he was out to get James Yali at all costs. He answered the question frankly “why, yes I am”. This indicated, Mr Sheppard submitted, that there had been a fundamental mishandling of the investigation and prosecutorial function of the State. The accused has been denied the full protection of the law under Section 37(1) of the Constitution. He has also been denied a fair hearing pursuant to Section 37(3) of the Constitution. James Yali was entitled to a proper investigation in which the rules of fairness apply. Instead there has been an improper investigation. The rules of fairness have not been adhered to.

One of those rules is that an investigating officer must put all relevant documents that he had discovered in the course of the investigation to the Committal Court. However, that has not been done. Because the investigator was out to get the accused at all costs, exculpatory documents have been withheld. This has had the effect of tainting all the evidence that has been produced to the court. The case has been predicated on the work of an investigator who was acting out of improper motives. This should make the court extremely concerned about the nature and value of the evidence that has been produced. The investigator acted contrary to his professional duty, which is to investigate everything relevant and to submit relevant documents to the defence, prior to the process of committal. Not only did the investigator withhold exculpatory documents from the defence before the committal, he continued to withhold them during the trial, until the end of the prosecution’s case. The investigator even withheld documents from the prosecutor, Mr Miviri. This is evident from the way in which the documents were produced to the court.

One of these documents was extremely...