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Angitai v The State [1983] PGLawRp 499; [1983] PNGLR 185 (6 June 1983)

Papua New Guinea Law Reports - 1983

[1983] PNGLR 185 - Rosa Angitai v The State�

[1983] PNGLR 185

SC252

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ROSA ANGITAI

V

THE STATE

Waigani

Bredmeyer Kaputin Gajewicz JJ

28 February 1983

6 June 1983

CRIMINAL LAW - Practice and procedure - No case submission - Reasons for ruling on - Reasons not normally required - When to be given - Not to be speculated on on appeal.

CRIMINAL LAW - Murder - Provocation - Sufficient to reduce charge to manslaughter - Provocation as defence - Distinction - Whether defence of provocation available where murder reduced to manslaughter - Criminal Code (Ch. No. 262), ss 266, 267, 303.[xxvii]¹

Held

N1>(1)����� Where a no case submission is made, the trial judge is not, except where he accepts the submission and acquits the accused, required to give reasons for his ruling.

N1>(2)����� Where a trial judge is not required to give reasons for his ruling on a no case submission a court of appeal should not speculate on what those reasons were.

N1>(3)����� On a charge of murder, where there is sufficient provocation under s. 303 of the Criminal Code (Ch. No. 262), an accused person may be found guilty of manslaughter.

N1>(4)����� The circumstances or criteria of provocation reducing wilful murder or murder to manslaughter under s. 303 are different from and less stringent than those applicable to the defence of provocation under s. 267.

N1>(5)����� Semble: The defence of provocation under s. 267 is not available to an accused charged with murder and found guilty of manslaughter by the application of s. 303.

Cases Cited

Galbraith (1981) 73 Cr. App. R. 124.

Haw Tua Tau v. Public Prosecutor [1981] 3 All E.R. 14.

Morgan v. Babcock & Wilcox Ltd. (1929) 43 C.L.R. 163.

P.L.A.R. No. 1 of 1980 [1980] P.N.G.L.R. 326.

R. v. Dodd [1971-72] P.N.G.L.R. 255.

R. v. Falconer-Atlee (1974) 58 Cr. App. R. 348.

R. v. Uno Tam & Marau U�U (Unreported Supreme Court decision No. 766 of 1973.)

State, The v. Aige Kola [1979] P.N.G.L.R. 620.

State, The v. Paul Kundi Rape [1976] P.N.G.L.R. 96.

Wilson v. Buttery [1926] SAStRp 30; [1926] S.A.S.R. 150.

Appeal

This was an appeal against conviction for manslaughter. The appellant was charged with wilful murder. The trial judge ruled that there was no case to answer on the charge of murder. The appellant was convicted of manslaughter on a finding that she had an intention to do grievous bodily harm when she hit the victim but that she was provoked within the meaning of s. 303 of the Criminal Code (Ch. No. 262).

Counsel

A. Amet, for the appellant.

K. Roddenby, for the respondent.

Cur. adv. vult.

21 June 1983

BREDMEYER J: I have had the benefit of reading the judgment about to be delivered by Gajewicz J and entirely agree with it. I desire to add a few additional comments on the first ground of appeal.

The learned trial judge Woods AJ convicted of manslaughter. He found the accused had an intention to do grievous bodily harm when she hit the victim but that she was provoked within the meaning of s. 303 of the Criminal Code (Ch. No. 262), which reduced the crime from murder to manslaughter. The first ground of appeal argues that in convicting the accused the trial judge�s finding of an intention to do grievous bodily harm is inconsistent with his ruling on the no case submission of no case to answer on murder. Intention to do grievous bodily harm is one of the essential elements of murder; it is not an element of manslaughter. This argument asks us to assume that the reason for the ruling of no case to answer on murder was that the judge considered that the State�s evidence at its highest could not support a finding of intention to do grievous bodily harm.

In considering a no case submission a judge must consider all the evidence led by the State to that stage, that is all the evidence called to prove the elements of the offence and all the evidence which relates to any defence such as provocation, self-defence, intoxication, mistake of fact, etc. A judge is not normally required to give reasons on a no case submission. If the submission succeeds and the judge rules no case to answer, that could be because the judge is not satisfied that the State evidence at its highest proves one or more elements of the offence, or it could be that the State evidence does not negative a defence which was raised in that evidence. When the ruling of no case to answer on murder was given in this case, the defence counsel would not have known the basis for the ruling as no reasons were given. The basis could have been that the State evidence did not show an intent on the part of the accused to do grievous bodily harm, or it could have been that the State evidence had not negatived the defence of provocation. Intent and provocation were the only matters in dispute at the trial.

Counsel for the appellant is really asking the court to speculate that the basis of the judge�s no case ruling was that he considered the State had not proved an intent to do grievous bodily harm, which was thus inconsistent with his finding of such an intent in giving his reasons for decision. The trial judge was not required by the circumstances of this case to give reasons for his ruling on the no case submission and this court should not speculate what those reasons were. The trial judge�s conviction of manslaughter was not inconsistent with his ruling on the no case submission that the trial must proceed on the charge of manslaughter. The trial judge�s findings in support of the conviction were open to him on the evidence and were not inconsistent with his ruling on the no case submission where no reasons were given. There is no inconsistency between the two, no error of law.

As I have said, I consider that the learned trial judge was correct in not giving reasons for his ruling on the no case submission. With one exception, which I mention in a moment, reasons should not normally be given on a no case submission because, firstly, reasons require the weighing up of evidence and considering the credibility of witnesses, which is best left to the end of the trial when all the evidence, called by the State and defence, has been received. If this were not so, a judge might say on the no case submission that he could not believe a certain State witness and then at the conclusion of the trial, because of further evidence called, reverse that view and say that he believes the testimony of that witness. A judge should not appear vacillating. Secondly if a judge were to give reasons and say that he thought a certain State witness credible that might suggest that the onus of proof has shifted from the prosecution, that the accused will be convicted unless he rebuts the evidence already called against him. It is for the latter reason that a judge when rejecting a no case submission should avoid saying �I find a case to answer�. It is better if the judge says something to the following effect:

�I consider that there is evidence upon which the accused could lawfully be convicted. The trial must proceed�.

(Extracted from The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96);

�I do not propose at this stage to weigh up the strength and weaknesses of the prosecution witnesses. That task should properly be left to the end of the trial, but on one possible view of the facts there is evidence before me on which I could find the accused guilty. The trial must proceed.�

(Taken from Galbraith (1981) 73 Cr. App. R. 124 with some adaptation to suit our non-jury situation.), or;

�There is evidence here, which is not inherently incredible, and which if I were to accept as accurate would establish each element of the offence. The trial must therefore proceed.�

(Taken from Haw Tua Tau v. Public Prosecutor [1981] 3 All E.R. 14 (P.C.)).

A no case submission can be made in a number of different situations. Except where an accused is acquitted, I consider no reasons should be given. The different situations in summary form are as follows:

N2>(1)����� Reject a no case submission - no reasons

N2>(2)����� Accept a no case submission and - give reasons acquit the accused.

N2>(3)����� Accept a no case submission in - no reasons relation to one charge but allow the trial to continue in relation to a second charge, or a lesser charge open on the indictment.

N2>(4)����� On a joint trial, accept the submission in relation to one accused, but reject it in relation to others. - acquit that accused without giving any reasons. Later, at the end of the trial of the other accused give reasons for that acquittal.

The appeal should be dismissed.

KAPUTIN GAJEWICZ JJ: The appellant was charged, together with one Paul Sipitio with murder. Paul Sipitio pleaded not guilty and the appellant guilty. Counsel for the defence asked that a plea of not guilty for the appellant be entered on the ground that a defence of provocation may be available. This application was granted and pleas of not guilty were entered for both accused. After the close of the case for the State, counsel for the defence submitted that there was no case to answer. The presiding trial judge, Woods AJ, then indicated that in the circumstances, he would not make a finding of murder, but that he did feel that there was still a case for manslaughter. Defence offered no evidence and his Honour acquitted Paul Sipitio, but found the appellant guilty of manslaughter and sentenced her to the rising of the court.

The appellant appeals against the conviction on two grounds, namely:

N2>�1.����� The learned trial judge erred in law having found on completion of the State evidence a case against the appellant for manslaughter, and subsequently finding in his judgment the appellant �had an intention to cause grievous bodily harm to the deceased.�

N2>2.������ The learned trial judge erred in law in convicting the appellant of manslaughter having found at the end of the State evidence a case of manslaughter against the appellant and having found in his judgment sufficient provocation under s. 303 of the Criminal Code.�

The relevant part of his Honour�s reasons for convicting the appellant is as follows:

�The fresh argument and fight that broke out between Rosa and the deceased was provoked when the deceased continued to argue and hit Rosa with a stick and called her prostitute. Rosa hit the deceased with a stick and the cause of death given by the doctor is consistent with the blows given by the accused Rosa Angitai. Whilst I am satisfied that in the heat of the moment the accused Rosa had an intention to cause grievous bodily harm to the deceased, I am satisfied that there was sufficient provocation within the meaning of s. 303 of the Criminal Code, I find her guilty of the manslaughter of Leplo Nilio.�

The following provisions of the Criminal Code (Ch. No. 262) are relevant to understand the above passage.

N2>�300.�� Murder

(1)����� Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:

(a)����� if the offender intended to do grievous bodily harm to the person killed ...�

N2>�303.�� Killing on provocation

Where a person who unlawfully kills another under circumstances that, but for this section, would constitute wilful murder or murder, does the act that causes death in the heat of passion caused by sudden provocation within the meaning of Section 266 and before there is time for his passion to cool, he is guilty of manslaughter only.�

Bearing in mind these provisions we can see nothing illogical or contradictory in what his Honour said which could justify the two grounds of appeal. What his Honour is saying is this:

�I am satisfied that the accused Rosa Angitai hit the deceased with a stick and the medical evidence is that the cause of death of the deceased is consistent with having been caused by the blows given by the accused to the deceased. I am also satisfied that when the accused delivered the blows with the stick to the deceased she intended to do grievous bodily harm to the deceased. Therefore, by virtue of s. 300(1)(a) of the Criminal Code (Ch. No. 262) she would be guilty of murder. However, because the fight between the deceased and the accused was provoked when the deceased continued to argue and hit her with a stick and called her a prostitute, the accused hit the deceased in the heat of the moment and I am satisfied that there was sufficient provocation within the meaning of s. 303 of the Criminal Code. I find her guilty of manslaughter.�

We cannot agree that his Honour erred in law when he indicated after the close of the case for the State that in circumstances there was still a case for manslaughter and subsequently he said that he was �satisfied that in the heat of the moment the accused Rosa had an intention to cause grievous bodily harm to the deceased� because in the preceding sentence and in the next sentence his Honour quite clearly indicated that under the circumstances of the case the accused was provoked and that the provocation was sufficient to bring the accused within the ambit of s. 303.

We also cannot agree, as it is said in ground two of the grounds of appeal, that his Honour erred in law in convicting the appellant of manslaughter having found that there was sufficient provocation under s. 303 of the Criminal Code.

The second ground postulates that on a charge of murder where there is sufficient provocation under s. 303 of the Criminal Code the accused person ought to be absolved of any criminal responsibility. �A person who causes death under these circumstances is entitled to be acquitted and to walk out of court a free man. That is the contention�, as Greville Smith J said in P.L.A.R. No. 1 of 1980 [1980] P.N.G.L.R. 326 at 337.

This is not what, in our view, is envisaged by the Criminal Code. In our view this proposition is not supported by any decision which was binding on his Honour. On the contrary, the meaning of s. 303, when read together with s. 266, is that under the circumstances of this case the appellant is guilty of manslaughter. Even if s. 267 is brought into consideration, in our view, his Honour made it quite clear in his reasons for judgment that the appellant did not meet the �severe restrictions contained in� the section, if we may use the words of Andrew J taken from P.L.A.R. No. 1 of 1980 at 348.

We propose to discuss the statutory provisions. We have already quoted the relevant parts of s. 300 and the text of s. 303 of the Criminal Code. Section 303 refers to s. 266 of the Code. That section defines �provocation� when used with reference to an offence of which an assault is an element. We are not quoting the section, it is lengthy and nothing turns on the definition. When construing s. 303 and the reference to s. 266 contained in it, it is helpful to bear in mind that s. 266 defines what �provocation� is; it does not offer a defence to a person �responsible for an assault committed on a person who gives him provocation for the assault.� That defence is given by s. 267(1). Section 267(1) also lists circumstances in which the person who is provoked is not criminally responsible for the assault. There are six such circumstances listed in s. 267(1). They commence with the conjunction �if�. The conjunction �if� is used once more in s. 267(1). In our opinion the conjunction �if� when used the first time has the same meaning as the old, and sometimes ridiculed phrase, �provided always that�. The second �if� used in s. 267(1) has, in our opinion, the meaning of �and provided further that�. The phrases, old fashioned as they may be, are still being used by draftsmen of legal documents.

We are aware that D. C. Pearce said in his Statutory Interpretation in Australia (2nd ed., 1981) at 56. �The form of drafting whereby exceptions introduced by the words �Provided that� are added to a section of an Act � a practice long disparaged by good draftsmen (�That bane of all correct composition�. George Coode, On Legislative Expression (1983) � is still employed on occasion�. We use this �bane of all correct composition� here because we found it helpful to illustrate better our point. The circumstances to which we refer are connected once by the conjunction �if� and four times by the conjunction �and�. The circumstances are such, that, in our view, it cannot be said that they form a list of alternatives. The circumstances refer to one type of conduct and, therefore, the conjunctive �and� cannot be regarded as hendiadys. In our view, it is, therefore, clear that all six circumstances listed in s. 267 must co-exist to afford the defence of provocation in appropriate cases.

To illustrate the point we recast s. 267(1) as follows:

�A person (who is charged with an offence) is not criminally responsible for an assault committed on a person who gives him provocation for the assault provided always that the person charged:

(1)����� is deprived by the provocation of the power of self-control; and

(2)����� he acts on the provocation on the sudden; and

(3)����� before there is time for his passion to cool; and provided further that the force used by the person charged �

(4)����� is not disproportionate to the provocation; and

(5)����� is not intended to cause death or grievous bodily harm and

(6)����� (the force used) is not likely to cause death or grievous bodily harm.�

We based our exercise on s. 267(1) of the Criminal Code (Ch. No. 262); however, comparing that section with the old s. 272 the same six circumstances need to co-exist in order to excuse the person charged from criminal responsibility.

We pause here to mention that the words �deprive him of the power of self-control� are used in s. 266 which, as we said, defines �provocation�.

Let us now look at s. 303 of the Code. In our view, examination of that section shows that in order to reduce wilful murder to manslaughter the following three circumstances must co-exist. The accused must do the act which causes death,

N2>(i)������ in the heat of passion which must be caused by

N2>(ii)����� sudden provocation within the meaning of s. 266; and

N2>(iii)���� before there is time for his passion to cool.

Under s. 303:

N2>�(a)��� the force used by the accused may be disproportionate to the provocation;

N2>(b)����� it can be intended to cause death or grievous bodily harm; and

N2>(c)����� it may be likely to cause death or grievous bodily harm.�

The existence of any one of these three last mentioned circumstances would, under s. 267, render the defence of provocation ineffective.

It must also be noted that the words �in the heat of passion� are not found either in s. 266, which defines provocation, or in s. 267 which creates that defence. Moreover, the use of the word �sudden� is different in s. 267 and s. 303. In s. 267 it is the accused who must act on the provocation on the sudden; whereas in s. 303 it is the provocation itself which must be sudden. One can pooh pooh the �literal rule of statutory interpretation�, invoke the �inherent� powers of the superior courts; one can rely on the �special responsibility of the Supreme Court and the National Court to assist in the development of our indigenous jurisprudence�, but one cannot escape the fact that in s. 267 the word �sudden� is a noun and in s. 303 it is an adjective. �Sudden� is used in different sense in these sections. There must be a reason for this different usage. We are satisfied with pointing to the different usage and need not explain where the difference lies as this is not material to this appeal. It therefore appears to us clear that two different sets of circumstances were meant to apply and two different sets of criteria were enacted by which the accused�s acts were to be tested for the purposes of s. 303 and s. 267. The circumstances, or criteria reducing wilful murder or murder to manslaughter under s. 303 are different from and less stringent than those applicable to s. 267. Quite apart from the maxim, generalia specialibus non derogant, which in our view should apply here, obviously an accused charged with wilful murder or murder must be allowed to take advantage of the less severe criteria enacted in s. 303.

The appellant argues that the presiding trial judge having found that she acted under provocation when she killed, erred in law in convicting her. He should have completely disregarded s. 303 of the Criminal Code because, if I understand the argument correctly, the Supreme Court in P.L.A.R. No. 1 of 1980 decided, two against one, that on a charge of manslaughter under s. 302, provocation as defined in s. 266 of the Criminal Code is available as a complete defence under s. 267. The sections are numbered differently in the report, we numbered them here as they appear in Ch. No. 262 in a slightly different form.

Although, with respect, we are in complete agreement with the dissenting decision of Greville Smith J for compelling reasons which he so lucidly stated, we are prepared to follow the majority decision in P.L.A.R. No. 1 of 1980, because �as a matter of practice decisions of a Supreme Court should not be questioned before another Supreme Court composed of different judges within a short period of time.�

The majority decision in P.L.A.R. No. 1 of 1980 is, to the effect that provocation as defined in s. 266 is available as a complete defence under s. 267 to an accused person on a charge of manslaughter under s. 302 of the Criminal Code (Ch. No. 262). Andrew J said at 348, 349 this:

�Provocation under ss 271, 272 of the Criminal Code 1974 is available as a complete defence to an accused person on a charge under s. 307 of the Criminal Code of unlawful killing.

In conclusion I wish to say that by answering the question in this way that provocation does apply to manslaughter, it applies with the very severe restrictions contained in s. 272 itself, namely that the force used must not be disproportionate to the provocation and is not intended, and is not such as likely, to cause death or grievous bodily harm.�

Sections 271, 272 and 307 referred to by his Honour are now ss 266, 267 and 302 respectively.

In the present appeal, even when one assumes that the defence of provocation under s. 267 is available to a person charged with murder, who was, by application of s. 303, found guilty of manslaughter, it appears clear that the learned trial judge found, or, as he said, was satisfied that the appellant when delivering the blows to the deceased had then the intention to cause grievous bodily harm to the deceased. The absence of such intention is one of the six circumstances set out in s. 267 which must co-exist with the other five to absolve the person charged from criminal responsibility. The appellant had such intention, she, therefore, cannot bring herself within the ambit of s. 267 of the Code.

We did consider whether a defence of provocation under s. 267 is available to a person charged with wilful murder or murder who has been found guilty of manslaughter by application of s. 303. We are inclined to think that because of the specific provisions of s. 303, which refers to s. 266 but not to s. 267, and because different criteria are set out in s. 303 and s. 267, the defence of provocation under s. 267 would not be available to that person. However, this point was not argued before us. If we express our views on this point, the question relating to the defence of provocation would become even more complex and difficult to answer. There may also be some cases where an accused may be deprived of the benefit of s. 267, although we have difficulty in imagining such a situation, because the criteria laid down in s. 267 are more stringent than those specified in s. 303. For these reasons we reached a conclusion that we should not express our views on this point. We, therefore, only assume that a defence under s. 267 is available to that person.

Having made this assumption, it follows, in our view, that where an accused is charged with wilful murder or murder, the trial judge, having found that the facts require him to consider the defence of provocation under s. 303 and being satisfied that that defence reduces the charge to manslaughter, should then proceed to consider whether the evidence does afford the accused the defence of provocation under s. 267.

In our view, in the present case the learned trial judge did consider that defence and he found on the facts that one of the conditions enacted in s. 267 did not exist, because the appellant had the intention to cause grievous bodily harm to the deceased. He did not say so ipsissima verba, but reading his reasons for judgment it is obvious that he did consider s. 267. It is not incumbent upon a judge to refer in his reasons specifically to every relevant statutory provision applicable to the case before him. It is sufficient if it appears from the whole of his reasons that he took all relevant matters into consideration when arriving at his decision.

The effect of s. 303 is not, as it is implied in the first ground of appeal, that a person charged with murder cannot be found guilty of manslaughter if he had the intention to cause grievous bodily harm to the deceased. Nothing is said in s. 303 about such intention. The accused may have had such intention and, provided that all the circumstances set out in s. 303 to which we referred earlier are established by the evidence, the accused will be guilty not of murder, but of manslaughter only. Intention to cause grievous bodily harm is mentioned in s. 267 and if the accused had such intention he is criminally liable for his acts.

In our view it cannot possibly be said, as stated in the second ground of appeal, that the learned trial judge erred in law when he indicated at the end of the evidence for the State that the appellant had �a case for manslaughter� and subsequently found that there was sufficient provocation under s. 303 of the Criminal Code and convicted her of manslaughter. Provocation is the very raison d��tre for s. 303.

During the arguments before us it has been suggested that the learned trial judge�s failure to state reasons why he �would not make a finding of murder but� he felt �that there was still a case for manslaughter� might have disadvantaged the counsel for the accused. It has been suggested that had the counsel known the reasons for his Honour�s decision he might have called evidence on behalf of the accused. Although this point has not been stated as a separate ground of appeal, nevertheless, if only because of s. 23(1)(b) and (c) of the Supreme Court Act (Ch. No. 37), it may be appropriate that we briefly deal with this matter.

The effect of the ruling that there is no case to answer on one charge, but there is a case to answer on another charge, is that the trial should continue on that other charge although no formal verdict of not guilty was returned on the original charge. The other charge is not put to the accused and no allocutus is administered, unless it is specifically requested by the defence that this should be done. The accused, or rather his counsel, must then decide what course of action he will take. He may or may not call evidence. Whether he does call evidence or not, the trial judge must decide on the whole of the evidence whether he is satisfied beyond reasonable doubt that the accused is guilty.

As early as in Wilson v. Buttery [1926] SAStRp 30; [1926] S.A.S.R. 150 the Full Court of the South Australian Supreme Court pointed out that in some cases it would be legitimate to take into account the fact that the accused has not given evidence as a consideration making the inference of guilt from the evidence for the prosecution less unsafe than it might otherwise possibly appear. This principle has been confirmed by Isaacs J in Morgan v. Babcock & Wilcox Ltd (1929) 43 C.L.R. 163 (which was a criminal case) at 178 where he said:

�In Moreau v. Federal Commissioner of Taxation [1926] HCA 28; (1926) 39 C.L.R. 65, at p. 71 I quoted the observation of Lord Mansfield in Blatch v. Archer [1774] EngR 2; (1774) 1 Cowp. 63, at p. 65; [1774] EngR 2; 98 E.R. 969 that �all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.� Here the prosecution could not possibly have produced stronger evidence, but it was in the power of the defence to have repelled the inference that arises from the evidence as it stands. The principle is exemplified in General Accident, Fire and Life Assurance Corporation v. Robertson [1909] A.C. 404, at p. 413, and notably in Mammoth Oil Co. v. United States [1927] USSC 164; (1927) 275 U.S. 13, at pp. 51, 52. It was applied by the Supreme Court of South Australia in Wilson v. Buttery [1926] SAStRp 30; (1926) S.A.S.R. 150, at pp. 153, 154 in the judgment of Napier J, who cited other cases, notably that of Dolling v. Bird (1923) C.L.R. (N.Z.) 607, at p. 608. Consequently, since the affirmative evidence in the case raises, to say the least, a strong probability that it was the Company that paid, or caused to be paid, the bribe demanded by Mailing, the silence of the Company, and its failure to explain, materially weakens any attempt to suggest in its favour possible hypotheses of innocence. In order to succeed, therefore, the respondent must maintain some one or the other objections it has raised.�

This principle has been accepted and acted upon in countless criminal trials.

It must not be overlooked that in the present case the appellant pleaded guilty to the charge of murder. A plea of not guilty was entered on the application made by her counsel on the ground that a defence of provocation may be available. His submissions that there was no case to answer were accepted in respect of the murder charge, but rejected in respect of the charge of manslaughter. He decided to offer no evidence.

In our experience, a judge when announcing his decision on a no case submission sometimes summarizes briefly the evidence for the State, but more often than not he simply says words to the effect, �Having considered the evidence as it stands now I reached the conclusion that a reasonable jury, properly instructed may find the accused guilty and, therefore, I rule that the trial proceed.�

In R. v. Falconer-Atlee (1974) 58 Cr. App. R. 348 it was held that when the judge after hearing submissions that there is no case to answer, decides to hear the case, he should, as a general rule say no more than that there is evidence to go to the jury. The judgment of the Court of Appeal (Criminal Division), constituted by Roskill L.J, Nield J and Mars-Jones J, was delivered by Roskill L.J who at 356 said:

�He (the trial judge) told them (the jury) in an address extending over four pages of transcript why it was that he was leaving the case against the appellant to them. With great respect, that was unwise, to say the least, in the circumstances, because it involved expressing, however tentatively a view on the facts which it would have been very much better not to do. If he was going to leave the case to the jury, he should have left it saying no more than there was evidence to go to the jury and it was for them to say whether or not the appellant should be convicted.�

In our humble opinion what Roskill L.J said applies equally to jurisdictions where criminal trials are conducted by a judge without the assistance of a jury. In Papua New Guinea in criminal trials a judge of the National Court performs a dual function. When deciding whether there is no case to answer the judge decides a question of law and he should exclude from his consideration matters which are questions of fact. He should not, for example, consider the weight of the evidence or the credibility of the witnesses. R. v. Uno Tam & Marau U�U, unreported Supreme Court decision (1973) No. 766.

In our humble opinion, during a criminal trial these two functions should not merge with each other, but be kept separately in the mind of the trial judge.

The best example of this approach is the interlocutory judgment of O�Leary AJ in The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96, where his Honour discusses the difference between submissions of no case to answer and submissions that a case ought to be withdrawn from the jury. His Honour does not refer to the evidence at all, he states his view at 100 in one sentence:

�In my view, the present case is not one in which there is such an insufficiency of evidence that a reasonable jury ought not to convict on it, and therefore I am not prepared to acquit the accused at this stage.�

In The State v. Aige Kola [1979] P.N.G.L.R. 620, Kapi J (as he then was) refers to evidence and express the views he held on it. But there he found, at 625, that the evidence of all the principal witnesses in the prosecution case was so unsatisfactory that it left him with grave doubts as to whether any of them actually had seen the accused shoot the deceased. He also found that the State evidence would not improve whether the accused would give evidence or not. He therefore acquitted the accused. He applied the Paul Kundi Rape case as well as R. v. Dodd [1971-72] P.N.G.L.R. 255 in which case Kelly J rejected counsel�s submission that there was no case to answer, but accepted the second submission that the accused should be acquitted without requiring to hear any evidence for the defence because he reached a clear view that on the State case it was not possible for him to be satisfied beyond reasonable doubt of the guilt of the accused. I should add that I read his Honour�s full unabridged reasons for judgment, No. 586/70, from which it appears that he analyzed the evidence and made comments on it.

In the present case the learned trial judge said:

�I indicated that in the circumstances, I would not make a finding of murder but I feel that there was still a case for manslaughter.�

He followed what O�Leary AJ did in the Paul Kundi Rape case. That case has not been overruled or criticized; on the contrary, it has been followed in some reported and I am sure in many unreported cases. I cannot agree that the failure by the learned trial judge to give reasons for the no case ruling could have seriously affected the way in which defence counsel conducted his defence or that in the circumstances that amounts to a material irregularity in the course of the trial under s. 23(1)(c) of the Supreme Court Act.

The evidence given by the only eyewitness called by the State is, as far as the appellant is concerned, to the effect that the deceased hit the appellant twice with �a small stick, a branch of the tree� and called her a prostitute. The appellant then hit the deceased �hard three times� with a piece of wood, which was �new� and which she took from the garden. The piece of wood was about two inches in diameter and about three feet long. The appellant �looked very angry� when she was hitting the deceased. The examination-in-chief of that witness is recorded on two pages; the cross-examination on four and a half. The medical evidence indicates quite clearly that the deceased died from the blows delivered to him by the appellant. The doctor was not cross-examined at all on that part of his evidence. The appellant, when questioned by the police about the killing, exercised her rights and did not wish to answer any questions.

The defence counsel announced at the beginning of the trial that a defence of provocation may be available to the appellant; �may be available�, not �is available�, or �will be argued�. We fail to see how in these circumstances one can speculate what reasons might have induced the defence counsel to decide not to offer any evidence. The present case does not differ in principle from any other case where no case to answer submissions have been made.

For the reasons stated the appeal should be dismissed.

Appeal dismissed.

Lawyer for the appellant: Public Solicitor.

Lawyer for the respondent: Public Prosecutor.