State v Gopinimo [2001] PGDC 27; DC461 (26 July 2001)

DC461

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 653, 654 OF 2001

The State
Complainant

V

Aisora Gopinimo
Defendant

Goroka: Manue F
2001: 26th July

NO CASE TO ANSWER SUBMISSION

This is a no Case to answer Submission by the defendant. Is there sufficient evidence before the Court to warrant the accused to be called upon to answer the Charges? The defendant has been charged on two Counts.

One count is for possession of a high powered firearm namely a Mossberg pump action factory made gun whilst not being a holder of a high power firearm licence on the 22nd May 2001. This is contrary to Section 27 (1) (b) of Firearm Act. The second count is for possession of ammunition namely Winchester 12 gaze fire buckshots without being the holder of an ammunition dealer’s licence. This is contravening to Section 65 A of Firearm Act.

Prosecution called tree (3) witnesses who are all members of the Police Force. The Witnesses testified that on the 22nd May 2001, armed with a Search Warrant conducted on early morning raid on a house located at 6 mile Coffee plantation. When they knocked on the door, the defendant responded and opened the door. They searched the whole house except for one room which was locked. Attempts were made to require defendant to open the door but could not be opened. He voluntarily produced some keys in a bottle container. The keys did not work either. At this stage, a son of the defendant had informed the commanding officer that his father, (defendant) had the key to the room.

When all attempts failed to open the door by proper means, it was forcefully opened. The room was searched and the ammunitions and the high powered firearm were found and confiscated. I have deeply thought about the Prosecution Case, after the defence made the "no case to answer submissions" and made come with the following.

No Case to Answer Submission.

The ‘no case’ to answer is a procedure put in place in the criminal law system to reinforce rights to citizens under Section 37 (4) (9) of the Constitution which declares that a person charged with an offence is presumed innocent until proven guilty according to law and to also protect the accused right to silence under Section 37 (10) of the Constitution. Due to these Constitutional provisions, the State is entailed to prove its cases by producing evidences. In this case evidence has been adduced through three witnesses.

The defence has submitted that the Prosecution evidence has failed to properly identify who owns the house, that had the ‘firearm’ and the ‘ammunitions’, searched and confiscated by the Police. The defence counsel submitted that because the items were not on the person of the defendant, the Prosecution should have adduced evidence identifying the owner of the house. There lacks evidence to show how the Police had knowledge that the house belonged to the defendant. It follows that, the Prosecution has not shown that the defendant had direct control, custody or possession of the items. Therefore, he cannot be lawfully convicted.

Prosecution submitted that the conduct of the defendant in opening the door and Police consulting him indicated he had control and custody of the house, and thus in possession of the confiscated items.

It is a well establish principle that in a no Case to answer submission, the test is not whether an accused ought to be convicted but whether the evidence as it stands, he could lawfully be convicted. Even where there is insufficient evidence, as a matter of law an accused may be called upon to proceed with his defence or otherwise at the discretion of the trial (judge) magistrate. See State –Vs- Lau & 3 ors of Surinki (1981) N307, following State vs Paul Kundi Rape [1976] PNGLR 96.

In the present case, I find that there is some evidence that the defendant had control and custody of the house.

The other elements of the charge are not being disputed. What is being disputed is ownership of the house leading to control and possession of the items.

In my view, these are matters of weight and credibility of that are to be ignored at this stage. See State Vs Paul Kondi Rape. (Supreme).

I rule that, the defendant has a Case to answer.