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State v Kins [2008] PGNC 126; N3479 (4 September 2008)

N3479

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1360 OF 2004

THE STATE

V

ADAM KINS & JOE ARI KINS

Mount Hagen: Makail, AJ

2008: 4 September
: 25 February

CRIMINAL LAW - no case application - based on court’s discretion to stop case - aggravated robbery - Criminal Code - section 386 - evidence based on two separate incidents - assault of a witness and armed robbery of victim - nexus being the two accused in the company of group of men - whether criminally liable - Criminal Code - section 7 - evidence of identification of two accused inconsistent and contradictory - further no evidence to show two accused as instigators of the crime - application upheld.

Cases cited:

The State -v- Paul Kundi Rape [1976] PNGLR 96
The State -v- Roka Pep (No 2) [1983] PNGLR 287
The State -v- Philip Kamagu Mil (1995) N1388
The State -v- Jimmy Kimpa [1997] PNGLR 178

Counsel:

Mr T. Ai with Ms P Yoka, for the State.
Messrs R. Kasito & F Kua, for the two Accused.

RULING ON NO CASE APPLICATION

4 September, 2008

1. MAKAIL AJ: The two accused, Adam Kins and Joe Ari Kins are charged with one count of aggravated robbery of one Kale Simon in the town of Mount Hagen of the Western Highlands Province on 11 August 2004, thereby contravening section 386 of the Criminal Code.

BRIEF FACTS

2. The brief facts giving raise to the charge of armed robbery against Adam and Joe are that; there has been an ongoing dispute between the families of Adam and Joe and the family of the complainants over the occupation of a land which houses the Young Men’s Christian Association (YMCA) hall located in the town of Mt Hagen. On the day in question, the State alleges that the victim, Kale John was manning the gate of the toilets at the YMCA hall. He was collecting gate takings from the public for using the toilets. The State alleges that Adam and Joe in the company of a group of men were armed with bush knives and went to the victim and held him up. They assaulted him and took from him cash of K115.00 and ran away.

3. Adam and Joe deny committing the crime. They say that they did not hold up and rob the victim off his money nor were they part of the group of men who held him up and robbed him. It may have been other people who did that to the victim.

EVIDENCE

4. On the date of trial on 25 February 2008, Adam and Joe pleaded not guilty to the charge and the State opened its case. The State called two witnesses. The first witness was Mrs Sorthy Koim and the second witness was the victim. In addition, the Record of Interview of Adam Kins in Pidgin and English dated 31 August 2004 was tendered into evidence by consent and marked as Exhibit "P1".

5. The other was the Record of Interview of Joe Ari Kins in Pidgin and English dated 31 August 2004 which was tendered into evidence by consent and marked as Exhibit "P2". Further, the Statement of Mas Tanda undated and also identified as Investigator’s Statement was tendered into evidence by consent and marked Exhibit "P3".

6. At the close of the State’s case, Adam and Joe through their counsel made a no case application. The no case application is based on the second leg of the case of The State -v- Paul Kundi Rape [1976] PNGLR 96. As usual, the State opposed the application for no case and I reserved my ruling to a later date. I have not been able to reach an early decision due to other pressing matters. I now have and this is my ruling.

PARTIES’ SUBMISSIONS

7. For Adam and Joe, their counsel submits that the State has failed to produce sufficient evidence to prove the elements of armed robbery in that the State witnesses have not identified Adam and Joe as the persons responsible for holding up and robbing the victim. They submit that the State’s witnesses’ evidence is contradictory and confusing that it is unclear if Adam and Joe were involved in the armed robbery of the victim. Accordingly, they say that based on the second leg of the Paul Kundi Rape’s case (supra) the case should not proceed beyond the State’s case.

8. In response, counsel for the State submits that where at the close of the State’s case, there is an application for no case, first the Court is required only to ascertain if there is sufficient evidence to prove the elements of the charge. The State is not required to prove the elements beyond reasonable doubt.

9. The second situation is where the Court asks whether there is sufficient evidence to convict Adam and Joe of armed robbery. Or to put it the other way, is the evidence insufficient to prove the charge so that the case should not proceed beyond the State’s case? This is the discretionary test.

10. Counsel for the State refers to the case of The State -v- Roka Pep (No 2) [1983]PNGLR 287 where it was held inter alia that where a Court decides that there is a case to answer, it nevertheless has a discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable 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.

11. The State submits that in this case, the issue of identification of Adam and Joe is not an element of the crime. The issue is one of whether there is sufficient evidence proving the elements of the crime of armed robbery. Here, it submits that the State has satisfied both tests in the Paul Kundi Rape’s case (supra) in that, first the State had presented sufficient evidence thus far to prove the necessary elements of armed robbery and secondly there is sufficient evidence to enable the Court to proceed beyond the State’s case.

THE LAW

12. The crime of aggravated robbery is provided for under section 386 of the Criminal Code and is in the following terms:

"386. The offence of robbery.

(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against Subsection (1) -

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life."

13. It is a very serious crime because subject to section 19 of the Criminal Code, it carries a maximum penalty of life imprisonment. And so, taking the elements of armed robbery in the context of this case, the State must prove the following elements:

1. Adam and Joe held up the victim against his will;

2. They took from the victim any property against his will; and

3. They were armed with a weapon(s).

14. I have read each of the Record of Interview of Adam and Joe and also the Statement of Mas Tanda. I have also noted the evidence of the two witnesses and also the submissions of counsel on the no case.

15. It has been said in the case of Paul Kundi Rape (supra) that in an application for no case, there are two considerations for the Court to consider before deciding whether or not an accused has a case to answer. They are:

1. whether the evidence as it stands, the accused could lawfully be convicted; or

2. whether the evidence is insufficient that the case should not proceed beyond the State’s case.

16. I think a clearer statement of these two principles of a no case is as stated by His Honour Sevua J where he distinguished them in the case of The State -v- Philip Kamagu Mil (1995) N1388 in this way:

"It should, by now be clear to all defence counsels in crime trials that the two principles are quite distinguishable. The first is a question of law. Where at the end of the prosecution’s case, a submission of no case to answer is made, the Judge as a tribunal of law considers the evidence in the prosecution’s case and determines whether the evidence supports the essential elements of the offence charged. That is the same as to say, whether on the evidence is it stands, they could lawfully be convicted. If the prosecution has failed to adduce evidence to support each of the essential elements of the offence then as a matter of law, the accused must be acquitted because there is no case for him to answer. As the Supreme Court said in Roka Pep No 2, "the test is whether the evidence supports the essential elements of the offence".

The second principle is this:

"Where the tribunal decides there is no case to answer, it nevertheless has a discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence so lacking in weight and reliability that no reasonable tribunal could safely convict on it."

It is this principle that has caused confusions in the minds of some defence lawyers in criminal proceedings that they refer to it as the second leg of the no case to answer submission. In my view this is a misconception and is erroneous because it is not strictly a ruling that there is ‘no case’ to answer. I consider that this second principle in reality, is an application by defence counsel to stop the case from proceeding further, that is to say, remove the case from the jury and it clearly entails an exercise of discretion by the judge. I believe Kaputin J in Roka Pep No 2 at 317 simplified this principle when he said:

"But this is merely a discretionary principle, which has appeared in practice to be the second principle. The exercise of this discretion to dismiss the charge or stop the case not withstanding that technically there is a case to answer is not strictly a ruling that there is"no case" to answer. However, it is often referred as such. The confusion has...in that some consider this discretionary principle is one of the "no case" submissions principles proper, which it is not. However, it has been built into the principle "no case" submission proper (above) and has often been referred to as such because its application is analogous in practice. Nevertheless, they are quite different and should be kept separate in their application."

17. In the National Court case of The State -v- Jimmy Kimpa [1997] PNGLR 178, at page 180 His Honour Batari AJ (as he then was) said this in relation to an application for a no case:

"At this stage, I am not required to examine the evidence in detail and apply it on the higher standard. To do so would be erroneous as warned by Kidu CJ in the case of The State -v- Delga Puri and Anor [1982]PNGLR 395 where the late Chief Justice states that it is wrong for a judge to decide after the prosecution’s case whether or not he is satisfied beyond reasonable doubt of the guilt of the accused before all the evidence is before him.

The essential question in a ‘no case’ application is whether on the evidence as it stands, the accused would be lawfully convicted. This is a question of law. I am required only to assess whether the evidence produced thus far, either directly or indirectly make out all the elements of the charge. Further to this is the question of the exercise of the discretionary power of the Court commonly referred to as the second leg of Paul Kundi Rape’s case. Under this second principle, the Court decides whether or not the case would proceed beyond the State’s case. The rationale of this rule is that the evidence supporting all or some of the elements of the offence are so vague, so insufficient or so unsatisfactory that the accused should not be called upon to answer it. In other words, beyond the State’s case the evidence may not improve to stand the test of prove beyond reasonable doubt on the question of facts." (emphasis in bold is mine).

REASONS FOR DECISION

18. And so, in this case, the question I ask is; is the evidence supporting all or some of the elements of the crime of armed robbery so vague, so insufficient or so unsatisfactory that Adam and Joe should not be called upon to answer it? In other words, is there sufficient evidence to show that Adam and Joe held up and stole the money from the victim or that they were part of the group of men who held up and stole the money from the victim?

19. In order to determine this question I consider that it is necessary to answer the questions raised in each of the elements together. They are:

1. Did Adam and Joe hold up the victim against his will?

2. Did they take from the victim any property against his will? and,

3. Were they armed with a weapon(s)?

20. I ask these questions because whilst there is evidence to prove the elements of the crime of armed robbery which I will discuss in a moment, I consider that the issue is one of identification and that brings into play the consideration under the second leg of the principles of no case discussed by His Honour O’Leary AJ (as he then was) in the Paul Kundi Rape’s case (supra). Thus, I will consider the no case application under the discretionary power of the Court.

State’s evidence

21. The first State witness is Mrs Sorthy Koim. She is the mother of one Onda Koim. Onda is the curator of the YMCA hall and part of his job is to look after the toilets of the YMCA hall.

22. On the date in question, she came to town to visit Onda at the YMCA hall. While at the YMCA hall with Onda, Onda’s wife and another person, the police came and took Onda away to the police station. She says that at that time, Adam and Joe were present when the police came and took Onda away. She also says that Adam and Joe were asked to get into the police vehicle to go to the police station but they refused. After the police left with Onda, Adam beat her up with a pad lock that is used to lock the gate of the YMCA hall. She says that Joe intervened and stopped Adam from beating her. Joe told Adam to stop as she is their mother (aunty).

23. After that, she says that Adam may have gone to Court while Joe may have gone to the public toilets and may have assaulted the victim. She says that she was afraid of being further assaulted and she left for the police station where she met Onda and told him that Adam had assaulted her.

24. She says that she knows Adam and Joe as they are members of her family. When asked to identify them in Court, she was able to point precisely to Adam and Joe from across the witness box to the dock in the Court room. When asked to clarify her evidence as to where Adam and Joe went after Joe stopped Adam from further beating her up, she gave the following answers:

"Q: What do you mean when you said other men went to the public toilet?

Ans: After Adam assaulted me, some men ran to the public toilets and assaulted a man there.

Q: Where did Adam go?

Ans: I said that Adam after assaulting me led the men to the police station, that is what I said.

Q: If they went to the police station, who went to the public toilet?

Ans: It was within a short period of time. After I was assaulted, some men may have gone to the police station whilst some went to the public toilets.

Q: Where did Joe go after he stopped Adam from assaulting you?

Ans: He may have gone with the men. I am not certain. I was standing with another men and women facing the police station". (Underlining is mine).

25. In cross examination, she was again asked where Adam and Joe had gone after Joe stopped Adam from further beating her up and she gave the following answers:

"Q: After assaulting you, they went to the police station, is that correct?

Ans: Yes, I went to the police station and he went the other way to the police station.

Q: So you did not see Adam go to the police station?

Ans: Adam with some men came to the police station. Joe may have gone to public toilets.

Q: Put to you that you did not see both of them?

Ans: Yes, that is correct. Adam went to the police station and some men may have gone there. I am not so sure". (Underlining is mine).

26. And when asked in cross examination if she saw Adam and Joe armed with weapons, she gave the following answers:

"Q: When you saw Adam and Joe, did you see them with weapons?

Ans: They did not have any weapons on them, although the men that have come with them had weapons hidden under their bodies.

Q: Did you see the kind of weapons?

Ans: They were a far distance from us. We were standing on the other side of the street.

Q: So is it correct that you did not see everything that happened?

Ans: Yes, previously there had been conflicts over the property so had the felling that that must be the same situation there.

Q: Adam and Joe were not part of the alleged allegation before the Court, what do you say?

Ans: Because of the dispute over the property, one of them assaulted me with a lock, that is why we are before the Court.

Q: Both the accused didn’t join the others to go to the toilet, is that correct?

Ans: Adam went to the police station. Joe may have gone with the men. I am not sure". (Underlining is mine).

27. I have laboured to set out in detail the evidence in chief of Mrs Koim and also her answers in cross examination because I am of the opinion that first she is unsure if Joe did go with the men to the toilets after Joe stopped Adam from further beating her. Secondly, I can say that she is definitely sure that Adam went to the police station and was not part of the group of men that went to the public toilets.

28. Thirdly, she did not see Adam and Joe armed with weapons. She said she saw the men that they had come with were armed with weapons but is unable to say what kind of weapons they had. Fourthly, I can say that she assumed that the ongoing dispute between her family and the family of Adam and Joe over the occupation of YMCA hall may have been the reason for the assault and robbing of the victim. But she did not see or witness Adam, Joe and the group of men robbing the victim.

29. So where does this leave us in terms of Mrs Koim’s evidence corroborating the evidence of the victim? In my opinion it leaves much to be desired. It leaves so many gaps in the State’s case. I will return to explain why I say so when I discuss the evidence of the victim below.

30. The second State’s witness is the victim. He states that on the date in question, he was working at the gate of the public toilet charging fees on toilet users. He charges 50t per person. On that day, he collected K115.00 by 12 noon. The denomination of K115.00 consisted of K112.00 in notes and K3.00 in coins.

31. Then one of the boys from the Andaks tribe whom he says he does not know his name came and told him to take his money and run away quickly because the Andaks boys were coming to steal his money.

32. Upon being warned of this, he collected his money and came out of the gate of the toilets only to be confronted by the Andaks boys. He says that Lawi told him to give him the money but he refused. Lawi lifted him up and threw him down on the cement pavement. Lawi then picked him up by his shirt collar and hit him on one of his eyes and he fell unconscious.

33. The boys then converged on him and checked his pocket and took all the money and ran away. After the boys left, he got up and went to report the incident to his family where they subsequently reported it to the police.

34. Now by comparing the evidence of Mrs Koim with the evidence of the victim, I am of the view that they contradict each other, thus it makes it unclear if Adam and Joe held up the victim or were part of the group of men who held up and robbed the victim.

35. For example, first if Mrs Koim is certain that Adam went to the police station but is unsure if Joe went to the public toilets, then her evidence is not consistent with the evidence of the victim who says that he saw Adam and Joe were among the group of men who held him up and robbed him off K115.00. And so, I am of the view that her evidence contradicts the evidence of the victim.

36. Secondly, the victim says that he is not familiar with Adam and Joe. I take that to mean that he does not know them in person and if that is the case, he would not have identified them if they were amongst the group of men who assaulted and robbed him. This would be true if we compare his evidence with the answer he gave immediately after saying that he is not familiar with Adam and Joe:

"Q: Is it true that the two accused were not the ones who assaulted you?

Ans: These two men came together with the other men and grabbed me and took these coins".

37. In my view his answer contradicts his own evidence where he says that he is not familiar with Adam and Joe, so how could he turn around and say that Adam and Joe came with the other men and held him up? Having said that one thing is certain and that is, he is able to say that the person who led the assault on him was Lawi. And so, in my view, this is another example where the victim not only contradicts himself but also makes it doubtful for me to say if Adam and Joe were amongst the group of men who held him up and robbed him.

38. The third example is, if Mrs Koim did not see Adam and Joe armed with weapons although she says she saw the group of men they had come with had weapons but did not say what kind of weapons they had, her evidence is also not consistent with what the victim says. The victim says that when the group of men converged on him, he saw some axes swung at him. If that is true, why did the victim only say he saw Lawi. This could only mean that Adam and Joe were not amongst the men led by Lawi?

39. The victim did not say in his evidence if Adam and Joe demanded him to hand over the money to them. Also, he did not say if Adam and Joe assaulted him by lifting and dropping him on the cement pavement.

40. In this respect, I note from his evidence in chief where he gave the following answers:

"Q: Can you recall the incident that happened on 11 August 2004?

Ans: Yes.

Q: Tell the Court what happened?

Ans: I was taking collections. At that time Andaks boys came and a boy came and told the Andaks boys are coming. That time, Andaks boys came and grabbed me and assaulted me on my face. They took these coins of K115.00.

Q: Please clarify where Andaks boys came from?

Ans: Lawi and the boys came and assaulted him.

Q: Where is Lawi from?

Ans: He is a boy from Andaks.

Q: How many people assaulted you?

Ans: 10 men.

Q: What did you do when they assaulted you?

Ans: I did not do anything. They may have taken the money.

Q: Where did they go after the assault?

Ans: They went towards down towards the Lands office.

Q: Are you aware of any other fights that may have occurred around the time they assaulted you?

Ans: No".

41. From the victim’s evidence in chief, I can clearly see that there were 10 men who attacked him. I can also see that Lawi was one of the 10 men who attacked him. These were Andaks men. This is because he says that someone warned him that the Andaks were coming for him. He also says that it was Lawi who asked him to give him the money. When he refused, Lawi lifted him up and dropped him on the cement pavement.

42. Then in cross examination, when he was asked who assaulted him and if he saw Adam and Joe, this is what he said:

"Q: Is it true that Lawi assaulted you?

Ans: Lawi led the assault, came and grabbed me.

Q: Do you know Adam Kins and Joe Kins?

Ans: I am not familiar with them.

Q: Is it true that the two accused were not the ones who assaulted you?

Ans: These two men came together with the other men and grabbed me and took these coins.

Q: Is it true that you were physically assaulted?

Ans: They assaulted me. I blocked my face and saw some axes coming too.

Q: Did you fall down or black out?

Ans: Yes, they lifted me up and dumped me on the ground and took everything and ran away.

Q: Is it true that you were black out when you were assaulted?

Ans: When they assaulted me, one of my eyes was shut and mind was black out.

Q: And a lot of people rushed to assault you, is it that correct?

Ans: Yes.

Q: When you were on the ground, people checked your pocket and took your money?

Ans: Yes.

Q: And you do not know who took the money from your pocket, is that correct?

Ans: It was hard to see who took the money from my pocket.

Q: Is it true you do not know these two accused?

Ans: Tep Tiki, Lawi and Ari, they came and grabbed me and while they were doing that, a lot of hands came in and took the money and assaulted me.

Q: Is it true that the person who assaulted you was Lawi?

Ans: Yes.

Q: And not Adam Kins or Joe Kins?

Ans: Adam Kins also came with them.

Q: I put it to you that you were black out and you do not know who took the money?

Ans: Yes". (Underlining is mine).

43. I find that the State’s case cannot improve any further with this kind of evidence especially where we are to proceed on the basis of the kind of responses from the victim. Whilst it is clear from the answers to the questions that he does not know Adam and Joe, he turns around and says that Adam and Joe were amongst the group of men that held him up and took the money from him.

44. Secondly, if Adam and Joe were called upon to give evidence, I can see that their evidence will not vary greatly from the ones they gave during the interview with the police on 30 and 31 August 2004. In each of the Record of Interview, there is nothing at all to show that they were with the group of men that held up and robbed the victim.

45. For example, they do not admit that they were with the group of men that held up and robbed the victim. They only say that they were at the YMCA hall when the police arrived and took Onda in the police car to the police station. That is why I can understand Mrs Koim was able to identify them when they were sitting in the dock of the Court room because she too was present at that time and saw them. Joe says that he followed Onda to the police station on foot. The other men including Adam also walked to the police station. I quote the relevant parts of the Record of Interview of Joe below to illustrate the point:

"Q18: Is it correct that on this given date, Wednesday 11th August 2004 you stood watch while the police went and got Onda Koim?

Ans: Yes, they only got Onda.

Q19: At that time, you were with Adam Kins and many more, is that correct?

Ans: Yes, I was standing with them and the police got Onda to the Police Station so me and him (Adam Kins) with others who are security guards there we all walked to the police station. The police told us and the security blockes (sic) to come down so we went down.

Q20: At that time, did you saw (sic) Onda Koim’s mother there?

Ans: Yes, she was not happy about his son being arrested by the Police and she followed us and we all went to the Police Station.

Q21: Is it correct that Adam Kins assault (sic) her, Mrs Sorthy Koim?

Ans: I did not saw (sic) it with my own eyes so let Adam himself come and tell you.

Q22: Joe, at that time a complaint was laid at the police station that you and them assault (sic) Mrs Sorthy Koim and also assault (sic) Onda Koim’s employee and robbed him. This boy’s name is Kale Simon. The total amount of money he had that was stolen is K115.00. Do you understand?

Ans: I don’t know about this. We came to the police station and settled the problem and went away. The Koim family stayed in the police station for an hour but they did not complained (sic) and charged us on it".

46. As for Adam, he gave a slightly different account to the police during the interview in that he was not there at the YMCA hall when police picked up Onda:

"Q18: On Wednesday the 11th of August 2004 at about 12 noon, you and some of your brothers, sons, and supporters came to the police station and got some Policemen to go and evict Onda Koim from the YMCA Hall. Is that correct?

Ans: No, I went to the hospital and came to the Police Station.

Q 19: Some of the witnesses saw you at the YMCA Hall organizing your boys there. What will you say to this?

Ans: I don’t know about this as I was admitted into the hospital for a month.

Q 20: Mrs Sorthy Koim said that you hit her and you ordered the boys to hit Kale Simon and steal the money from him. What will you say to this?

Ans: I don’t know that this had happened".

47. Even if I accept the account of Mrs Koim that Adam beat her up and conversely reject Adam’s claim in his Record of Interview that he was not at the YMCA hall when the police picked up Onda and further that he did not beat up Mrs Koim, I find that it would still not make any significant difference because as far as I am concern she is unsure if Joe went with the group of men to the public toilets where they held up and robbed the victim.

48. Further, she says that Adam went to the police station and she also went to the police station by taking a different route. Thus, how could Adam be amongst the group of men who attacked and robbed the victim? In my view it does not make sense.

49. Thirdly, notwithstanding that Adam and Joe were in the company of a group of men that eventually went and robbed the victim, I find that there is no evidence from Mrs Koim and the victim that Adam and Joe directed the men to attack and rob the victim. In the absence of such evidence, I am led to believe that the men who attacked the victim led by Lawi acted upon their own volition. Hence, Adam and Joe should not be criminally liable for their actions.

50. The State’s case is premised in a way where whilst there are two separate incidents on that day, it seeks to impress upon me to treat them as one set of events that occurred on that day. First, it alleges that Adam and Joe were amongst the group of men that gathered at the YMCA hall when Onda was taken by the police to the police station. After the police left with Onda, Adam beat up Mrs Koim. Secondly, it was the same group of men along with Adam and Joe who proceeded to the public toilets where they held up and robbed the victim. If Adam and Joe did not go there, they are nonetheless part of the group of men that had earlier on entered the YMCA hall and should be held criminally liable by virtue of section 7 of the Criminal Code.

51. But I find that these two incidents are not directly related. They are in my view two different sets of incidents that occurred on the same day and perhaps, in a very brief period of time at the same place. The "nexus" is that both incidents allegedly involved Adam and Joe.

52. The first incident is where the State alleges that Adam beat up Mrs Sorthy and Joe stopped Adam from further beating her after the police took Onda away to the police station. In the second incident, it alleges that Adam and Joe went with the group of men and held up and robbed the victim. If they did not go there, they were still part of the group.

53. The State alleges that Adam and Joe were involved in these two separate incidents because they occurred at the YMCA hall where there is this on going dispute between Onda and his family with Adam and Joe’s family over the occupation of that property.

54. Having said all these, I am not satisfied that the evidence presented by the State so far has identified Adam and Joe as the persons who held up and robbed the victim nor am I satisfied that they were amongst the group of men that held up and robbed the victim. Finally and very importantly, notwithstanding that Adam and Joe were in the company of a group of men, who later went and robbed the victim, I am also not satisfied that Adam and Joe instigated the attack on the victim. I say this because there is no evidence to suggest that they directed the men to attack and rob the victim so as to hold them criminally liable as principal offenders by virtue of section 7 of the Criminal Code.

CONCLUSION

55. In the end, I have reached the conclusion that the evidence at this stage is first conflicting and contradictory where the two State witnesses do not identify Adam and Joe as the persons who did the armed robbery or were amongst the group of men who held up the victim.

56. Secondly, there is no evidence to suggest that they were the instigators of the armed robbery. That is, they directed the men to attack and rob the victim so as to hold them criminally liable as principal offenders by virtue of section 7 of the Criminal Code.

57. This is a case where, if I may use the words of the Supreme Court in Paul Kundi Rape’s case (supra), "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". Thus, the case must stop here.

58. Accordingly, I find Adam and Joe have no case to answer to the charge of armed robbery and I uphold the application for no case. I dismiss the charge and accordingly discharge them forthwith. A certificate of discharge will be issued shortly.

59. Finally, as they are out on bail, I order that their bail money be refunded to them forthwith.

_____________________________________

Acting Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the two Accused