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State v Liru [2013] PGNC 276; N5246 (2 April 2013)

N5246

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.460 OF 2012

THE STATE

V

HERMAN LIRU

Kokopo: Lenalia, J
2013: 18th, 19th, March & 2nd April

CRIMINAL LAW – Sexual penetration without consent – Plea of not
guilty – Trial – Evidence – Charge – Elements – Criminal Code s.347(2) of the Criminal Code as Amended.

CRIMINAL LAW – Evidence on trial – Submission of no case to answer –
Principles – No case to answer submission refused – Defence call upon to call evidence.

Cases cited.

The State-v-Paul Kundi Rape [1976] PNGLR 96
The State-v-Delga Puri and Tapri Maip [1982] PNGLR 493
The State-v-Roka Pep (N0.2) [1983] PNGLR 287

Counsel

Mr. L. Rangan, for State
Mr. G. Kerker, for Accused

Ruling on 'no case submission'

2nd April, 2013

1. LENALIA, J: The accused is charged with one count of aggravated rape contrary to sections 347(2) of the Criminal Code as Amended. After arraignment, he entered a plea of not guilty.

2. At the end of the prosecution evidence, Mr. Kerker of counsel for the accused made a submission of "co case to answer". Counsel based his argument on the two principles stated in The State-v-Paul Kundi Rape [1976] PNGLR 96. The first of those two principles is, as the evidence now stands could the accused be lawfully convicted? The second question is, whether on the evidence as it stands, the accused ought to be convicted? The principles stated in the above case were adopted and applied by the Supreme Court in the case of The State-v-Roka Pep (No.2) [1983] PNGLR 287 and many subsequent cases. (See also The State-v-Delga Puri and Tapri Maip [1982] PNGLR 493).

3. At this stage of this trial, the issue for the court to determine is whether on the evidence adduced by the prosecution so far, the accused could be lawfully convicted? The cases cited above establish that this issue is a question of law. At this stage of the trial, I am only required to determine if there is sufficient evidence on which the accused could be lawfully convicted. It is established law that when a submission like this is made at the end of the prosecution case, it is the issue of law and the Court decides if there is sufficient evidence to go past this stage, the defence should be called upon to answer.

4. Case law authorities also establish that even where a court decides there is a case to answer, the court nevertheless has discretion to stop the case at the close of the prosecution evidence. This discretion is exercised where "there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it: The State v Roka Pep (N0.2) (supra).

5. In criminal law and practice in this jurisdiction, it is accepted law now that if there is some evidence covering the elements of the offence charged, but such evidence is so tenuous, discredited or incredible that it would amount to a scintilla only such that it could not be accepted as persuasive by any reasonable tribunal, the case should be stopped and an accused should not be called upon to answer.

6. On this case, the victim was not called. It was submitted by Mr. Kerker of lawyer for the accused that absence of an important witness, the victim Petra Liru herself, the Court can view the State's case with suspicion and treat their evidence with caution.

7. Only two witnesses were called. A village elder who is a Councillor of Vunakabai Ward in Watom Island, Rabaul District Joseph Valuka was called as a witness. He confirmed the story of the victim telling him that, the accused had badly assaulted her on the night of 17th January 2012. A part from the evidence about the assault, no evidence was given about the rape.

8. The victim, Petra Liru is his adopted daughter and this witness was questioned as to why the victim could not tell him about being raped. The witness said, it could be because she is his adopted daughter and in custom, she could not reveal this to him.

9. Police First Constable Ukies Kibale gave evidence that, on 31st January 2012, he invited First Constable Paul Bonnio to corroborate him conduct the record of interview with the accused. According to this witness, during the record of interview, the accused admitted to having sexual intercourse with his wife through her anus.

10. Though the defence took issue with the copy of the Clinic Book where it contains references to painful parts of the victim's body, it does not reveal anything about her sexually penetrated through her anus, the evidence by the policeman has some bearing on consideration of the prosecution evidence at this stage of the trial.

11. Mr. Rangan submitted that, there was no motive for the only policeman who gave evidence and despite evidence by First Constable Kibale that he is married to a woman from Watom Island, why would the policeman make up such serious story about the accused.

12. The issue before this Court is; is there sufficient evidence to satisfy this Court that the accused could be lawfully convicted? I answer this question in the positive. I now call upon the defence to open their case. I rule that there is a case for the accused to answer.

_______________________________________________________________

The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused