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State v Morris [2017] PGNC 344; N7018 (22 November 2017)

N7018

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1473 to 1477 OF 2015

THE STATE

V

IVAN FIVE FIVE LANGSA MORRIS

Kimbe: Miviri AJ
2017: 21^st November

CRIMINAL LAW – PRACTICE AND PROCEDURE – Robbery – Unlawful use of motor vehicle-unlawful detention- robbery – identification - section 7 and 8- recognition - good lighting - no case submission - prima facie - not beyond doubt - presence in bus-case to answer.

Facts
The Accused was part of a group who held up and tied up the victim with another and then drove in that bus and committed a second robbery. Left them at a secluded area and ran away with the proceeds of the second robbery.

Held
Primae facie Identification of accused.
Primae facie robbery, unlawful use of motor vehicle, unlawful detention and robbery.
Case to answer

Cases:

Avini v The State [1997] PNGLR 212 (15 July 1997)

State v. Paul Kundi Rape [1976] PNGLR 96

Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287

Counsel:

D. Kuvi, for the State
D. Kolowei, for the Defendant

RULING ON NO CASE

22^nd November, 2017

1. MIVIRI AJ: This is the ruling on an application that the accused has made that he has no case to answer his identification has not been made out prima facie of the charges he faces.
   

Facts

2. The accused was part of a group of men who held up and tied up John Essau Junior and his brother Tony took over their PMV bus registered number P01775 on the 14^th February 2013 drove to Palm Oil Bakery held up one Hear Chan and stole from him K 7000 in cash and ran away in the bus. They were armed with homemade guns and in company and aided and abetted each other.
   
3. The defence has made a no case submission relying on the State v. Paul Kundi Rape [1976] P.N.G.L.R. 96 and also Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287. In particular contending and invoking both legs of Roka Pep’s (supra) that there is no evidence identifying to call the accused to answer the case, alternatively there is discretion in the judge to stop the case prima facie that the evidence is insufficient so lacking in credibility that no reasonable tribunal would lawful convict on it.

4. This is a question of law not fact, the underlying principle that a man can only be tried once for his crimes and not twice. And therefore the evidence led is only weighed once not twice. I am not weighing the evidence but considering the application made prima facie on the face as it were as to identification.
   

State evidence

5. The state evidence of the record of interview of the accused Exhibits S1A and S1B, the statements of the arresting officer one Luke Monnie Exhibit S3, the corroborating officer Wayne Isako Exhibit S2, the Statement of Philip Sege Exhibit S5 and the identification proforma attached Exhibit S4,and the Ela Motors vehicle valuation form Exhibit S6 and the oral evidence on oath of John Essau Junior at the close of the state case was that a robbery was committed upon John Essau Junior and his brother Tony when they were on the pretext of taking a person to the hospital lured to a location in their bus where they were both held up by armed men with guns.
   
6. Then they were told to go to the rear of the bus and the robbers then drove the bus to section 27 Kimbe where other men also got on the subject bus and tied up both victims and told them to sit on the floor of the bus at the back.
   
7. Then they were driven around Kimbe and then to the Palm Oil Bakery where they went inside and held the persons in it and made off in the bus with K7000 in cash the property of Bakery. They drove to a secluded area where they left the bus and ran away with the money.
   

Issue

8. Primae facie is there identification of the accused as being one of the persons in the robbery, unlawful use, unlawful detention and robbery?
   
9. Primae facie I find that there is a case to answer against the accused Ivan Langsa Five Five Morris as he is one of the persons aiding and abetting the robbery of the bus P01775 on the 14^th February 2013 its unlawful use and unlawful detention of John Essau Junior and Tony when he assisted in tying them and then of driving to Palm Oil Bakery holding up one Hear Chan and stealing from him K7000 in cash and then running away in the bus. They were armed with homemade guns and in company and aided and abetted each other.
   
10. Primae facie he is identified and has a case to answer in respect of all four counts on the indictment presented against him of Robbery under section 386, unlawful use of motor vehicle under section 383, unlawful detention under section 355, and robbery under section 386 of the Criminal Code.
    
11. Consequently I reject the application and rule that the accused has a case to answer.
    

Ruled Accordingly,

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant