Nogos v Nohu [2007] PGDC 163; DC759 (7 November 2007)

DC759

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL JURISDICTION]

CR 214 - 215 of 2007

BETWEEN

ROBERT NOGOS
Informant

AND

DINALD NOHU
First Defendant

AND

NORMAN HAKENA
Second Defendant

Buka: B Tasikul, SM

2007: November 7

Cases Cited

1. The State -v- Paul Kundi [1976] PNGLR 96
2. John Beng -v- The State [1977] PNGLR 115

References

Nil

Counsel

For the Prosecution - Senior Constable Thomas Ratavi
For the Defendants - In Persons

7 November 2007

RULING

B Tasikul, SM : Both defendants pleaded not guilty to the charge of unlawfully assaulting Lambert Kuypers. The prosecution called two (2) witnesses namely the victim himself and a Dimitris Kili. After the prosecution closed its case this court has now to make a ruling to determine whether the defendants have a case to answer or not.

2. The first witness who is the victim testified that they came out of the dancing floor to get fresh air and while walking out of the gate, he was surprised when a group of boys suddenly threw punches at him. It happened so fast that he did not recognised who actually punched him. He fell down and was assisted by Dimitris who is the second witness.

3. Mr. Dimitris testified that the victim himself was at the dancing venue and they decided to go outside to get fresh air. He was walking in front while the victim was behind him. As they approached the gate, he heard a sound behind him. To his surprise he saw the victim lying on the ground with blood on his body. Through cross examination by the defendants he testified that he did not actually see who threw punches at the victim. He only recognised the two (2) defendants who were amongst the group of five (5) to six (6) people that were standing close to the victim.

4. As a well established principal in our jurisdiction where prosecution closed its case, the test is whether the evidence so far addressed by the prosecution supports essential element of the offence. See State -vs- Paul Kundi [1976] PNGLR 96.

5. There is no doubt from the evidence presented before me that the victim was assaulted by a group of people. There is evidence of injuries sustained as per medical report tendered in court marked exhibit "B".

6. However, the issue here is whether the two (2) defendants were the once who actually assaulted the victim. It is clear from the prosecution’s evidence that things happened so fast that they did not recognize who actually threw punches at the victim even though there was sufficient lighting at that time. The group of people were numbering from five (5) to six (6) and it was difficult to identify the actual perpetrator.

7. In John Beng -v- State [1977] PNGLR 115, the Supreme Court set out the principles and factors a court must take into account on the issue of identifying before reaching a verdict. He stated: "when the quality of identifying evidence is poor - i.e. a fleeting glance or a longer obstructive made in difficult condition - the Judge should then withdraw the case from jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification."

8. I am satisfied beyond doubt that the two (2) witnesses failed to properly identify the defendants. Even though they were standing amongst that group of people, they can not be held responsible. They could have been bystanders. Even though there was element of assault, I still hold that the prosecution has failed to properly identify the assailant. There is no other supporting evidence to justify that the defendants were the once among the group of people that assaulted the victim.

9. I therefore find that the evidence is weak and can not proceed on with the trial. In doing so I apply the principle in Paul -v- Kundi’s case and have the matter dismissed. The defendants be discharged and their bail refunded.

For the Prosecution - Senior Constable Thomas Ratavi
For the Defendants - In Persons