The State v Jenny Kebana Peter (2005) N2813

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 17 March 2005
• Citation: (2005) N2813
• Docket Number: CR No 374 of 2000
• Court: National Court
• Year: 2005
• Judgement Number: N2813

Full Title: CR No 374 of 2000; The State v Jenny Kebana Peter (2005) N2813

National Court: Cannings J

Judgment Delivered: 17 March 2005

N2813

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 374 0F 2000

THE STATE

V

JENNY KEBANA PETER

BUKA : 15, 17 MARCH 2005

CANNINGS J

RULING ON NO CASE SUBMISSION

Criminal Law – indictable offences – Criminal Code, Division V.3, Homicide: Suicide: Concealment of Birth etc – Section 313, concealing the birth of children – accused pleaded not guilty – prosecution’s case consisted of six exhibits, tendered by consent – submission of no case to answer – application that case should be withdrawn from the tribunal of fact – rule in Rape’s case – two limbs or tests – question 1: whether there is some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred – question 2: whether there is sufficient evidence on the basis of which the court ought to convict the accused – elements of the offence of concealing the birth of a child – application of tests in Rape’s case – ruling – acquittal – remarks on accused unnecessarily being brought before the court – gap in evidence.

Cases cited

Dirk Leopold Schuiling v Alphonse Krau [1977] PNGLR 176

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 Gwen Maika (2004) N2605

The State v Henry Osare Kales (2001) N2115

The State v Kwale Dire (2001) N2178

The State v Lasebose Kuriday (1981) N300

The State v Meli Heti [1977] PNGLR 173

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

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 Tolly Amindi (2004) N2683

The State v Tom Kakawi and Others (2002) N2229

L Rangan for the State

L Siminji for the accused

CANNINGS J:

INTRODUCTION

This is a ruling on a no case submission by a woman who is facing an indictment that she unlawfully concealed the birth of her child.

BACKGROUND

Incident

The incident giving rise to the charge allegedly took place at Hahalis village, Buka Island, Bougainville, on the morning of 12 June 1999. It was alleged that the accused endeavoured to secretly dispose of the dead body of a child to whom she had recently given birth.

Indictment

On 15 March 2005 she was brought before the National Court and faced the following indictment:

Jenny Kebana Peter of Hahalis village, Buka Island, Bougainville, stands charged that she … on the 12th day of June 1999 at Hahalis … endeavoured by secret disposition the dead body of a child of which Jenny Kebana Peter had then lately been delivered, to conceal the birth of that child.

The indictment was presented under Section 313 of the Criminal Code.

FACTS

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea.

On 10 June 1999 the accused gave birth to a child at her village, Hahalis. The baby was still-born. Two days later, on Saturday 12 June 1999, she wrapped the dead body of the child in a piece of cloth and put it in a blue plastic bag and then went to a spot some distance from her house, and threw the plastic bag, with the dead body still inside it, into a hole. By that action she was secretly disposing of the dead body of her child, which was fully developed, so as to conceal its birth.

Arraignment

She was arraigned in Halia tok ples. She pleaded not guilty. Then the prosecution presented its evidence. This consisted of six witness statements and the record of interview of the accused, all tendered by consent. No oral evidence was called.

Mr Siminji then made a no case submission, based on The State v Lasebose Kuriday (1981) N300, which I treat as being based on the principles set out in the leading case, The State v Paul Kundi Rape [1976] PNGLR 96. Mr Rangan responded.

APPROACH TO THE NO CASE SUBMISSION

I will start by setting out the principles in Rape’s case, which consist of two limbs or tests. They each require the court to consider the state of the evidence so far presented and to compare it with the elements of the offence with which the accused is charged. I will summarise the evidence the prosecution has presented. I will set out the elements of the offence that must be proven. Then I will summarise the actual no-case submission 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 question does not ask 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 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.

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; and The State v Tolly Amindi (2004) N2683, Kandakasi 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 EVIDENCE

Outline

The prosecution’s evidence consisted of seven exhibits, the contents of which are described in the table below.

The exhibits

Column 1 of the table gives the exhibit number; column 2 describes each witness, and column 3 summarises their evidence.

TABLE 1 – SUMMARY OF EXHIBITS

Exhibit Witness Evidence

A Evette Statement by village girl – made on 21.07.99, then aged 16 – says
Sakwin that on 12.06.99 she was sitting under her house at Hahalis – saw
accused come past her house carrying a blue plastic bag – had
something inside – did not know what it was – accused crossed
road and went to the gardens – witness stood on the veranda and
watched her – accused followed the bush track to a big hole (cave)
– some minutes later the accused came back, without the plastic
bag – thought she had thrown away rubbish – the next day her
aunty told her that the accused had given birth to a child and
thrown it at the hole (cave).

B Maria Statement by village woman, married to accused’s husband’s
Tobasi brother – made on 21.07.99, then aged 25 – at 7.00 pm on Saturday
12.06.99 she had a conversation with her husband – asked him
where had he been – husband replied that he had made a funeral
feast for the accused and her husband – feast was for accused –
accused had given birth to a child and she and her husband had
buried the child.

C Hona Statement by village girl – made on 21.07.99, then aged 18 – on
Goalenn Sunday 13.06.99 she was at the beach and met Grace Sira and
Maria Tobasi – Grace told her that accused had given birth to a
child and threw it at the hole and that accused should have done
proper burial – on the way back to the village with Sakwin Evette,
she told her that Grace and Maria said that the accused had given
birth to a baby and thrown it at the hole.

D Lawrence Statement by Police Officer, Sergeant,...