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Rape, The State v [1976] PGNC 50; [1976] PNGLR 96 (17 March 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 96 - The State v Paul Kundi Rape�

[1976] PNGLR 96

N34

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

PAUL KUNDI RAPE

Mount Hagen

O�Leary AJ

15-17 March 1976

CRIMINAL LAW - Practice and procedure - Submission of no case to answer - Meaning of - Not to be confused with withdrawal of case from jury - Relevant principles.

When 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 the 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 of the evidence namely whether the prosecution has proved its case beyond reasonable doubt.

May v. O�Sullivan [1995] HCA 38; (1955) 92 C.L.R. 654 at p. 658 and Zanetti v. Hill [1962] HCA 62; (1965) 108 C.L.R. 433 at p. 442 applied.

This is not to be confused with the question which may arise at the close of the case for the prosecution as to whether the matter should be withdrawn from the jury or whether there is sufficient evidence on which a reasonable jury ought to convict which involves an inquiry into whether the evidence is so insufficient that the accused ought not to be called upon to answer it, which is also to be distinguished from the question of fact namely whether the prosecution has proved its case beyond reasonable doubt.

Ryder v. Wombwell (1868) L.R. N. Exch. 32 at p. 39 referred to.

Where there is no case to answer, an accused may not as a matter of law be called upon to answer it. Where there is a case of insuffiicency of evidence, an accused may as a matter of law be called upon to answer it, but there is a discretion in the judge either to take the case away from the jury a tribunal of fact, or not.

Interlocutory Judgment

At the close of the case for the prosecution on a charge of attempted murder; counsel for the accused submitted that there was no case to answer, that as the case stood, the court could not be satisfied beyond reasonable doubt as to the guilt of the accused. The following ruling was then made.

Counsel

BJ Cassells for the State

IC McWalters for the accused

Cur. adv. vult.

17 March 1976

O�LEARY AJ:� The case for the prosecution being closed, Mr. McWalters, who appears for the accused, has submitted to me that there is no case for his client to answer. His submission, in short, is that as the case now stands I could not be satisfied beyond reasonable doubt as to the guilt of the accused. In support of that submission he has invited me to consider and weigh the evidence that has been presented for the prosecution and, he says, on the whole of that evidence I could not be so satisfied: I should therefore discharge the accused.

With great respect to the argument presented by him, I think that in putting his submission in that way, Mr. McWalters has failed to appreciate the true nature of two quite separate and distinct questions that may, and often do, arise for consideration at this stage of a criminal trial: one, whether there is a case for the accused to answer; the other, whether, although there is a case for the accused to answer, the state of the evidence is such that the judge ought to withdraw the case from the jury, or, at least, tell the jury that they are entitled to indicate that they do not wish to hear any further evidence. They are questions that, in my experience, are commonly confused. Nevertheless, I believe they are separate questions and ought to be considered as such. I will, therefore, endeavour to set out what I conceive to be the principles to be applied in considering each of them.

Where the question is whether there is a case to answer the principle to be applied is quite clear. In May v. O�Sullivan[cxxv]¹, the Full Court of the High Court of Australia expressed it in these terms:

�When, at the close of the case for the prosecution, a submission is made that there is �no case to answer�, the question to be decided is not whether on the 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 really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a �case to answer� has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. That is a question of fact.�

In the case of Zanetti v. Hill[cxxvi]², Kitto J. expressed the principle in these terms:

�The question whether there is a case to answer, arising as it does at the end of the prosecution�s evidence in chief, is simply the question of law whether the defendant could lawfully be convicted on the evidence as it stands, � whether, that is to say, there is with respect to every clement of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred. That is a question to be carefully distinguished from the question of fact for ultimate decision, namely whether every element of the offence is established to the satisfaction of the tribunal of fact beyond a reasonable doubt ... The ultimate question of fact must be decided on the whole of the evidence; ...�

For the better understanding of this principle, and particularly for the avoidance of confusion in considering the second question to which I will shortly refer, I think it is important to keep in mind that for the purpose of determining either of them, one does not look to see whether at the close of the prosecution�s case, the prosecution has proved its case beyond reasonable doubt. As Kitto J. said in Zanetti v. Hill [cxxvii]³, the fact that a person is not to be convicted of any offence unless the tribunal of fact before which he is charged is satisfied beyond reasonable doubt that every element of the offence exists �does not mean that the case for the prosecution must be proved beyond a reasonable doubt before there is a case for the defence to answer�.

The time at which one looks to see whether the prosecution has proved its case beyond reasonable doubt does not arise until the whole of the evidence, including such evidence as the accused may wish to adduce, is before the court, and not before. It is therefore a question that does not arise at the close of the prosecution�s case, unless that also marks the conclusion of the evidence in the case, that is, if the accused does not adduce any evidence himself.

In the present case, applying the above principles, I think there is a case for the accused to answer, in that I think there is evidence on which a jury could lawfully convict him. That much is, I think, conceded by Mr. McWalters. If on none other, I think a jury would be entitled to convict the accused on the evidence of the complainant alone, although whether on the whole of the evidence it ought, or would, convict him on that or other evidence is, of course, another question.

All this, however, is quite a separate question from the other question that sometimes arises at the close of prosecution�s case (and indeed may arise at any stage of the trial), namely, whether the state of the evidence is such that the judge ought to withdraw the case from the jury, or at least tell the jury that it is open to them to say at any time that they do not wish to hear any further evidence. In these cases the test is a quite different one. As I understand it, the question there is not whether there is any or some evidence on which a jury could lawfully convict, but whether there is sufficient evidence on which a reasonable jury ought to convict. As was said by Willes J. in Ryder v. Wombwell[cxxviii]⁴:

�It was formerly considered necessary in all cases to leave the question to the jury if there was any evidence, even a scintilla, in support of the case; but it is now settled that the question for the judge (subject of course to review) is, ... not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.�

The same principle applies, of course, in civil cases, and for a comprehensive discussion on the question see Seminars on Evidence, Ed. Glass, p. 22 et seq., �Title, Sufficiency of Evidence�.

When it is said, in this context, that the evidence is such that no reasonable jury ought to convict on it, I do not think that is the same thing as saying that, on the evidence as it stands, a jury could not be satisfied beyond reasonable doubt as to the guilt of the accused. As I have said, for the purpose of considering either the present question or the question as to whether there is a case to answer, one does not look to see whether the prosecution has proved its case beyond reasonable doubt. So far as the present question is concerned, what I think one really inquires into is whether the evidence is so insufficient that the accused ought not to be called upon to answer it.

Where there is no case to answer, an accused may not, as a matter of law, be called upon to answer it. Where there is a case of insufficiency of evidence as explained above, an accused may as a matter of law be called upon to answer it, but there is a discretion in the judge either not to call on him at all, that is to take the case away from the jury, or, at least, to leave it to the jury to say whether or not they wish to hear more.

In support of his argument, Mr. McWalters referred me to a decision of Kelly J. in Reg. v. Dodd[cxxix]⁵. In that case, his Honour held that there was a case to answer, but nevertheless went on to acquit the accused on the ground, as he put it, that �on the Crown case it is not possible for me to be satisfied beyond reasonable doubt of the guilt of the accused�. I have no doubt that the learned judge was there applying the true principles in that case, but, with respect, I think that to express the matter in that way is apt to be misleading in that it does tend to obscure what I, at least, perceive those true principles to be.

I was also referred, in the course of argument, to the decision of O�Bryan J. in Benney v. Dowling [cxxx]⁶, a decision to which Kelly J. himself referred in Dodd�s case[cxxxi]⁷. I think that that case gives direct support to what I have said above. There the learned judge drew a clear distinction between the two questions I have referred to. At p. 242 he said:

�That proposition� (i.e. the proposition in May v. O�Sullivan as to the basis of a no case submission) �in my opinion was never intended to carry with it the proposition that a magistrate has no discretion to say at the end of the informant�s case whenever there is, technically speaking, evidence upon which the defendant could lawfully be convicted that he does not want to hear the defendant but will dismiss the information.�

And a little later on he said:

�It is common practice both in courts of petty sessions and in trials before a jury that at the end of the case for the informant or prosecution, although the evidence as it stands might justify a conviction, for the magistrate or a jury, very often at the suggestion of the trial judge, to say that he or it does or do not require to hear any evidence for the defence and to acquit at that stage.�

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.

Ruled accordingly.

Solicitor for the State: K. B. Egan, Acting Public Prosecutor.

Solicitor for the accused: N. H. Pratt, Acting Public Solicitor.

[cxxv]span>[1995] HCA 38; (1955) 92 C.L.R. 654, at p. 658.

[cxxvi][1962] HCA 62; (1965) 108 C.L.R. 433, at p. 442.

[cxxvii][1962] HCA 62; (1965) 108 C.L.R. 433, at p. 442.

[cxxviii](1868) L.R. IV Exch. 32, at p. 39.

[cxxix][1971-72] P. & N.G.L.R. 255.

[cxxx][1959] V.R. 237.

[cxxxi][1971-72] P. & N.G.L.R. 255.