State v Moro [2011] PGNC 237; N4906 (18 February 2011)

N4906

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 939 OF 2001 & CR 940 OF 2001

THE STATE

V

MATHEW MORO

Kimbe: Kawi, J
2010: 11 October, 9 November
2011: 18 February

CRIMINAL LAW - State evidence- State tendered in Police and witness statements and relied upon them - No oral or other evidence called - There is no rule of law which requires the State to prove its case by only direct or oral evidence – State can prove its case by direct evidence, or by oral evidence or by documentary evidence or by circumstantial evidence - An armed robbery with violence -Use of dangerous and offensive weapons to hold up a vehicle - Firearms and bush knives used - A very large amount of cash stolen - Criminal Code s.386(1)(2)(a)(b)(c )

CRIMINAL LAW - Unlawfully using a motor vehicle- Criminal Code Section 383(2) - Dangerous weapons used to perpetrate the robbery - Personal violence used on the driver of vehicle - Driver of vehicle was in lawful possession of vehicle - Driver manhandled and forced out of vehicle - Vehicle used as a getaway vehicle

CRIMINAL LAW – PRACTICE AND PROCEDURE - No Case Submission – Principles governing no case submission –Defence of compulsion raised - Court cannot consider and analyze defence at this stage - Can only consider defence at the end of defence case - The only question at this stage is whether on the basis of the evidence as it stands can the accused be lawfully convicted- Defence of compulsion raised in a no case to answer submission-Defence to be considered at the close of all evidence when all evidence is weighed and assessed - Accused has a case to answer.

Facts

The accused was indicted with one count of armed robbery contrary to section 386(1)(2)(a)(b) of the Criminal Code and another count of unlawful use of a motor vehicle contrary to section 383(2) of the Criminal Code. The State did not call any oral evidence to substantiate its allegations. Instead it simply relied on documentary evidence comprising principally witnesses statements and the Police Record Of Interview. In a no case to answer submission the defence argued that the prosecution case lacked evidence on the basis of which the accused can be lawfully convicted. This was on the basis that the prosecution has failed to negative the defence of compulsion raised by the defence.

Held

(1) There is no rule of law which says that the State can only prove its case by direct or oral evidence. Indeed it is open to the State to prove its case by direct or oral evidence or by circumstantial evidence or by documentary evidence alone.

(2) Once the defence consented to prosecution evidence to be tendered into court by consent it cannot hark back and argue that the prosecution lacked evidence to prove its case. Furthermore it cannot argue against their admissibility.

(2) The defence of compulsion is a defence raised by the defence. It does not form part of the State brief that is before the Court. It is a defence which must be raised by an accused in his evidence in defence. It cannot be raised in a No Case To Answer Submission. It is an issue which the court will properly consider when it is appropriately raised and evidence led to verify it. At this stage of the trial the court will not entertain any arguments on whether or not a certain defence has been negatived by the prosecution. The court will therefore reject this argument by the defence counsel. The State –v- Gigere Udamu [1990] PNGLR 151 applied.

(3). The No Case to Answer submission is dismissed and the accused is ordered to answer the charges proffered against him.

Cases cited

Paul Kundi Rape [1976] PNGLR 96
The State v. Roka Pep (No.2) [1983] PNGLR 287
The State-v- Gigere Udamu [1990] PNGLR 151

Counsel

Mr. Francis Popeu, for the State
Mr. Trevor Potoura, for the Accused

DECISION

18 February, 2011

1. KAWI, J: The accused Mathew Moro pleaded not guilty on arraignment to one count of armed robbery contrary to section 386(1)(2)(a)(b)(c) of the Criminal Code and another count of unlawful use of a motor vehicle contrary to section 383(2) of the Criminal Code.

2. At the close of the State's case, the accused through his counsel opted to make a no case submission. The no case to answer submission is mounted on both limbs of the test in The State v Paul Kundi Rape [1976] PNGLR 96 case. Hence this Ruling on the no case submission.

3. The accused is charged with one count of armed robbery contrary to section 386 (1)(2)(a)(b)(c) and another count of unlawful use of a motor vehicle which is contrary to section 383 (2) of the Criminal Code.

4. Relevantly Section 386(1)(2)(a)(b)(c) is as follows:

386 (1)(2)(a)(b)(c).

( 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;

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

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

He is liable subject to section 19, to imprisonment for life.

Robbery is defined in section 384 as follows:

s. 384-Definition of Robbery:

A person who steals anything, and, at, immediately before or immediately after, the time of stealing it, uses or threatens to use actual violence to any person, or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen is said to be guilty of robbery.

And Stealing is also defined by section 365 as follows:

s.365- Definition of Stealing:

(2) Subject to the succeeding provisions of this Code, a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of another person anything capable of being stolen, is said to steal that thing.

(3) The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act."

THE STATE'S ALLEGATIONS- COUNT 1. ARMED ROBBERY

5. The State alleges that on or about the 24th October 2000 sometime between 1:00 pm and 2:00 pm the accused, Mathew Moro was in the company of 4-5 other men when they entered the premises of a company known locally as The Spirit of Wet New Britain. The State says that at that time the accused and his other gang members were armed with shot guns and bush knives. About this time Tobias Liton, the operations manager of the company and another employee of the company, one Nelson Nawa, got into a company vehicle, a Toyota Hilux, twin cab, white in color and bearing the registration number Rab 490 and were in the process of driving out of the gate to do the company's banking. In the vehicle the two men had carried the company's daily takings totaling K128,655.32 which they were taking to the bank for banking. As they were about to drive out of the gate, the accused and his gang confronted them and held them up using the shotgun. It is alleged that Tobias Liton was assaulted and the gun pointed at him. He was then manhandled and dragged out of the vehicle by the accused and his gang. After dragging out Tobias Liton, the accused and his gang got themselves into the vehicle and drove off towards the section 21 settlement.

6. The State alleges that the accused was the driver of the vehicle. At section 21 bush camp the accused and his gang members, abandoned the vehicle and fled into the bushes. With the cash amount still in the bag, Police gave chase and apprehended two of the co-accuseds, while the accused escaped. The cash amount in the sum of K128, 655.32 was also recovered. The accused Mathew Moro was however on the run until he was apprehended by Police.

COUNT 2- UNLAWFUL USE OF A MOTOR VEHICLE

7. In relation to count 2 the State alleges that the vehicle was taken off Tobias Liton without his consent.

PRINCIPLES OF LAW ON NO CASE TO ANSWER SUBMISSIONS

8. Therefore at this stage I must warn myself that the question is not whether the State has established its case beyond reasonable doubt, but rather on the evidence as it stands can the accused be lawfully convicted?

9. The tests or principles of law governing a no case to answer submission have been enunciated in the case of The State –v- Paul Kundi Rape [1976] PNGLR 96. In that case, two distinct but related tests were enunciated and they may arise at the close of the case for the prosecution or indeed at any stage of the trial. See also The State v Misimb Kais [1978] PNGLR 241.

10. The first test is, whether on the evidence as it stands the accused could be lawfully convicted.

11. The second test is this: where there is a case to answer, the accused may as a matter of law be called upon to answer it, but there is a discretion vested in the judge to take the case away from the jury or a tribunal of fact or not.

12. The National Court also had the occasion to amplify the no case to answer principles in the State –v- Roka Pep [1983] PNGLR 19. This case was decided some years after Paul Kundi Rape's case. The court expressed the two tests laid down in the Paul Kundi Rape case in this way:

"A submission of no case to answer at the close of the case for the prosecution is a question of law for the Judge to decide, the prosecution case will not be proved beyond reasonable doubt or the prosecution case will not improve, or the prosecution case is hopeless or intrinsically weak, then the Judge has a discretion to acquit the accused on the no case submission."

13. Perhaps a better understanding of the principles is the summary in the decision of the Supreme Court in the State –v- Roka Pep No. 2 [1983] PNGLR 287 which adopted and expanded the principles in the State –v- Paul Kundi Rape. The Supreme Court (per Kidu CJ, Kapi DCJ, Andrew and Kaputin JJ) expanded the principles in this way:

"Where in Criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the question is for the Judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence."

14. Where the tribunal decides there is no case to answer, the accused is acquitted and that is the end of the matter.

15. Where the tribunal decides there is a case to answer, it nevertheless has 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.

16. A tribunal should make a finding of no case to answer where (a) there is no evidence to establish an element of the offence charged; or (b) there is some evidence covering the elements of the offence charged but it is tenuous or incredible or discredited that it amounts to only a scintilla, and thus could not be accepted as persuasive by any reasonable person. (Per Pratt J)

17. As it is, the prosecution must show some evidence of the existence of the elements of the offence under Section 386(1)(2)(a)(b)(c) and the existence of the elements under Section 383 (2) of the Criminal Code.

ELEMENTS OF THE OFFENCE UNDER SECTION 386(1)(2)(a)(b)(c ) CRIMINAL CODE

18. Under section 386(1)(2)(a)(b)(c) the following elements must be established by evidence at the close of the State's case or allow its existence to be inferred:

1. There must be a robbery;
   
2. The robbery must be committed on a thing capable of being stolen;
   

100. At the time of the robbery the accused is armed with a dangerous or offensive weapon; or
     

4. Is in company with one or more other persons;
   
5. At the time of robbery the person wounds or uses other personal violence
   

Under section 383(2) the prosecution must prove the following requisite elements:

(a) A person must unlawfully use a motor vehicle.

(b) The vehicle was used without the consent of the owner or the person who is in lawful possession of such vehicle.

COUNT 1- section 386(1)(2)(a)(b)(c )

19. In the present case the State did not call any oral evidence to corroborate the evidence contained in the various statements. It simply relied on evidence contained in the oral statements to substantiate the allegations.

20. The statements were tendered into evidence by consent of both parties. Once they are tendered and accepted as evidence by the court they are for all intent and purposes evidence which the party tendering them can rely upon them as evidence. A party cannot hark back and argue against their admissibility. Nor can a party argue against relying upon this evidence.

21. Here the various statement relied upon by the State clearly show that a robbery occurred on the premises of a company known as the spirit of West New Britain on the 24th October 2000. The robbery involved the taking of a vehicle and a cash amount of K165,924.17. Of this cash, the amount of K128,655.32 was recovered by Police on the same day. Money and vehicle are things which the court finds are very capable of being stolen. The robbery was perpetrated using dangerous and offensive weapons, namely firearms and bush knives. The accused was subsequently spotted driving the vehicle towards the section 21 bush camp settlement. Violence was used to commit the robbery. A gun was pointed to the face of the driver Mr Tobias Liton and the windscreen and door glasses to the company vehicle was smashed and Tobias Liton was manhandled by the gang and then dragged out of the vehicle. The stealing was completed when the gang drove the vehicle towards the section bush camp with all the money in the vehicle.

22. Defence Counsel submits that the State should have called oral evidence to substantiate and corroborate what is contained in the Statements before the State can rely on those Statements as evidence in court. Be that as it may, this court finds that there is no rule of law which says that the State can only prove its case by hard credible evidence or direct evidence or oral evidence only. Indeed the court finds that it is open to the State in any criminal case to prove its case by either direct evidence, or oral evidence or even circumstantial evidence. See The State v Ipai Koivi CR 593 of 2008 Unnumbered judgement of Kawi J dated 16th April 2010.

23. Furthermore counsel submits that there is no evidence of the money being counted to substantiate that an amount of money was indeed stolen. With respect the court is quite satisfied that a huge amount of cash was recovered by police after chasing the gang to the hills behind the section 21 bush camp. The money that was recovered was kept in a small black bag. At the same time two of the gang members were shot at and wounded, one of whom later died at the Kimbe General Hospital due to infection in his leg which was amputated.

24. Defence counsel further submits that the State evidence does not in any way negative the elements of the defence of compulsion which is the defence being raised by the accused in his defence. That argument raises a fundamental issue. The defence of compulsion raises the issue of the driver being forced to drive. Raising this issue now begs the question of analyzing the evidence in detail and determining whether or not the prosecution has proven its case beyond reasonable doubt. In my view that question can only be answered when all evidence is before the court and properly weighed and analyzed. At this stage I am not obliged to assess and analyze and weigh all the evidence in detail. I am not looking into the question of whether or not the State has established its case beyond reasonable doubt, but rather the question to be answered at this stage is for the Judge as a tribunal of law, to determine whether the evidence as it stands supports the essential elements of the offence.

25. The defence of compulsion is a defence raised by the defence. It does not form part of the State brief that is before the Court. It is an issue which the court will properly consider when it is appropriately raised and evidence led to verify it. At this stage of the trial the court will not entertain any arguments on whether a certain defence has been negatived by the prosecution or not. The court will therefore reject this argument by the defence counsel.

26. In the case of The State v Gigere Udamu [1990] PNGLR 151, defence counsel made a no case to answer submission. He argued that his client was forced to drive. In rejecting this submission Her Honour Doherty AJ held that.

"the issue of compulsion or justification and excuse under section 32 of the Criminal Code (ch 262 is a defence and must be raised by the defendant as part of his defence. It cannot be argued in a no case submission where it is raised before the court as part of the record of Interview tendered by the prosecution".

COUNT 2- section 383(2)

27. The evidence as it stands show that the driver of the vehicle, one Tobias Lito was held up as himself and another company employer were in the process of driving out of the gate to' do the company's banking when they were held up at gun point. The wind screen of the vehicle was smashed by the rascals. Tobias Liton the driver was assaulted while still inside the vehicle. He struggled with the gang who overpowered and subdued his resistance by smashing the windscreen of the vehicle and the gang than gained access into the cabin where a firearm was pointed to the face of Tobias Liton who was manhandled and bundled out of the vehicle. The gang then took control of the vehicle and drove off towards the direction of section 21 bush camp settlement. The court finds that the vehicle which was used as a getaway vehicle was violently taken away from Tobias Liton. Any resistance put up by Tobias Lito was overpowered and easily subdued when a gun was pointed to the face of Tobias Liton.

28. In the circumstances, the court finds that Tobias Liton who was in lawful possession of the vehicle did not consent to the use of the vehicle or to the vehicle being taken away from him by the gang members. The court further finds that when the vehicle was taken away from Tobias Liton, he was thus unlawfully deprived of the use of the vehicle for the purpose of going to the bank that day. The fact that violence was used upon the driver who had lawful possession of the vehicle, on the day in question and taking the vehicle away from him to be used as a getaway vehicle is enough to prove that the vehicle was so taken away and used without the consent of the person who was in lawful possession of the vehicle.

CONCLUSION

29. On the strength of the evidence as it stands, this court arrives at the following conclusions:

a) The State evidence as it stands is sufficient to establish all the requisite elements of the offences charged. It is quite inappropriate to raise the defence of compulsion in a no case submission.

b) The State evidence as it stands cannot be described as being so tenuous or incredible or intrinsically weak that it amounts to only a scintilla, and thus could not be accepted as persuasive by any reasonable person or tribunal of fact. Certainly the State evidence cannot be described as being so discredited and so lacking in weight and reliability that no reasonable tribunal could safely convict upon it.

c) On this basis this court will dismiss the no case to answer submission mounted on both limbs of the rule in Paul Kundi Rape's case and order that the accused, Mathew Moro, has to answer the allegations proffered against him.

_______________________________________
Paraka Lawyers: Lawyers for the Accused
Acting Public Prosecutor: Lawyer for the State