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State v Sakia [2018] PGNC 203; N7295 (15 June 2018)

N7295

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 883 & 888 OF 2016
CR No. 884 & 889 OF 2016
CR No. 885 & 890 OF 2016

THE STATE

V

ROBIN STEVEN SAKIA & NICK GEORGE SELMUS & JEFFERY GEORGE AIGILO

Kimbe: Miviri AJ
2018: 08^th 14^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Robbery – Trial – street robbery – two counts – No case submission three accused – primae facie – no identification – no case to answer–acquitted and discharged.

Facts

Three accused were part of a group of men armed with homemade guns and bush knives who held up the victims. They cut and injured the male victim. Then they stole their properties to the value of K1, 970 and ran away. They also held up another with the weapons they had and stole from him personal properties to the value of K150 and ran away with them.

Held
No case to answer
No identification
Acquitted and discharged.

Cases Cited:
Pep; Re Reservation of Points of Law under section 21 Supreme Courts Act (Ch.37), The State v [1983] PNGLR 287
State v Paul Kundi Rape [1976] PNGLR 96

Counsel:

L Jack, for the State
D Kari, for the Defendant

RULING ON NO CASE

15^th June, 2018

1. MIVIRI AJ: Robin Steven Sakia, and Nick George Selmus, and Jeffery George Aigilo are charged, that they on the 30^th November 2015 at Togulo oil Palm Plantation, Kimbe, West New Britain stole from Jennifer Tonawi with actual violence a bilum, Sony brand Tablet, mobile phones, ANZ card, vehicle keys and cash altogether valued at K 1, 970 and at this time were armed with homemade guns and knives and were in company. And at that time wounded Samuel Tonawi.
   
2. They are further charged that on that same day at the same place they stole from one Andrew Jonah with threats of actual violence a bilum, a stock knife both valued at K150. They were armed with the same weapons and were in company.
   

Charge

3. The charge is contrary to s386 (1) (2) (a) (b) (c) Criminal Code Act prescribing a maximum penalty of death. To which each of the accused have entered not guilty pleas tasking the State to prove the case against all.
   

Evidence

4. The evidence tendered by consent comprise:
   
   • (i) Exhibit S1 (a) Pidgin original record of interview of Robin Steven Sakia dated the 19^th February 2017.
   • (ii) Exhibit S1 (b) English translation of that record of interview.
   • (iii) Exhibit S2 (a) Pidgin original record of interview of Nick George Selmus dated the 24^th February 2016.
   • (iv) Exhibit S2 (b) English translation of that record of interview.
   • (v) Exhibit S3(a) Pidgin original record of interview of Jeffrey George Aigilo dated the 24^th February 2016
   • (vi) Exhibit S3 (b) English translation of that record of interview.
   • (vii) Exhibit S4 eight photographs
   • (viii) Exhibit S5 identification parade forms
   • (ix) Exhibit S6 Identification parade photos.
   • (x) Exhibit S7 list of stolen properties
   • (xi) Exhibit S8 statement of Steven Bunga dated 09/03/16.
   • (xii) Exhibit S9 statement of Johnson Takapan dated 09/03/16.
   • (xiii) Exhibit S10 Statement of Vernon Naurikia 09/03/16.
   • (xiv) Exhibit S11 Statement of Philip Kuri dated 09/03/16.
   • (xv) Exhibit S12 Statement of Eunice Wemegu dated 09/03/16.
   • (xvi) Exhibit S13 Statement of Peter Mirio dated 11/03/16.
   • (xvii) Exhibit S14 Statement Wayne Isako dated 11/03/16.
   • (xviii) Exhibit S15 Medical affidavit and report dated the 14/06/18.
     
5. These evidence established beyond all reasonable doubt that an armed robbery was committed on Samuel and Jennifer Tonawi by armed men in a group. They were armed with homemade guns bush knives and other weapons. And that they assaulted and cut Samuel Tonawi for which he now endures a permanent injury to his knee. And their properties particulars set out above were stolen in that armed robbery on that day 30^th November 2015.
   
6. Secondly it is also established beyond all reasonable doubt that Andrew Jonah was held up by a gang of men who were armed with homemade guns and knives all dangerous weapons and at this time they stole from him a bilum, a stock knife altogether valued at K150 and they escaped with these properties.
   
7. The defence has made a no case submission relying on State v Paul Kundi Rape [1976] PNGLR 96 and also Pep; Re Reservation of Points of Law under section 21 Supreme Courts Act (Ch.37), The State v [1983] PNGLR 287 contending that the Judge has a discretion to stop the case because prima facie there is no identification of the robbers in the evidence that has been led by the State in its case.
   
8. There really is no real weighing to do, it is on the face of it. Here on the face there is very strong evidence of an armed robbery committed as alleged on both counts on the indictment upon the victims set out.
   
9. Prima facie there is no evidence of the identity of the robbers which pin down the accused so that they can be lawfully convicted even without being called to answer the allegations against them. It is a question of law, could the accused Robin Steven Sakia, and Nick George Selmus, and Jeffery George Aigilo lawfully be convicted of the charge of the first and second count of armed robbery here? If the answer is in the negative then that is the end of the case against them.
   
10. State counsel has invited the court to consider against Robin Steven Sakia that he was identified in the identification parade conducted at the police Station Kimbe per Exhibits tendered in respect of the identification parade including the photographs depicting his identification by the witnesses. The problem with acceding to this submission is that this evidence has not been called at the end of the State case. There is no continuity from the scene into the court room and therefore it cannot be linked in or out. Prima facie it cannot be lawfully considered against that accused.
    
11. In respect of Nick George Selmus, and Jeffery George Aigilo the State concedes there is no case to answer against both accused. That is clearly the position in law at the close of the State case. Both cannot be called lawfully to answer the charges of armed robbery laid against both.
    
12. In the finality in law Robin Steven Sakia, and Nick George Selmus, and Jeffery George Aigilo have no case to answer that they on the 30^th day of November 2015 at Togulo oil Palm Plantation in Kimbe, West New Britain stole from Jennifer Tonawi with actual violence a bilum Sony brand Tablet, mobile phones, ANZ bank card, vehicle keys and cash to the total value of K 1,970. 00 and were armed with homemade guns and knives and wounded Samuel Tonawi.
    
13. And further that they on that day at the same place stole from Andrew Jonah with actual violence a bilum a stock knife valued at K150 the property of Andrew Jonah. And at this time were armed with homemade guns and knives all dangerous weapons.
    
14. The application of the three accused that they have no case to answer is upheld. All three accused have no case to answer in respect of both counts on the indictment.
    
15. Verdict of not Guilty of Armed robbery entered on the first Count and second count.
    
16. All three accused are acquitted and discharged. They are released from custody forthwith.
    

Orders Accordingly.

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant