State v Hezakie [2012] PGNC 190; N4761 (16 July 2012)

N4761

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1086 OF 2011
CR. NO. 1087 OF 2011
CR. NO. 1089 OF 2011
CR. NO. 1090 OF 2011

STATE

V

BERNARD HEZAKIE, BECKS HEZAKIE, FELIX SENGI & OFI BEN (NO.1)

Accused

Kainantu: Ipang AJ
2012: 13 & 16 July

CRIMINAL LAW– No case submission made on first count of Attempted Armed Robbery – s. 387 Criminal Code Act – Defence Counsel argued on "thing to be stolen" – what was intended to be stolen not proven – Defence invoked First Limb in State –v- Paul Kundi Rape [1976] PNGLR 96 – Second count on Grevious Bodily Harm – s. 319 Criminal Code Act – Defence Counsel argued no evidence of Grevious Bodily harm, No medical evidence – invoked Second Limb in Paul Kundi Rape case (supra).

Cases Cited

State –v- Paul Kundi Rape [1976] PNGLR 96
State –v- Roka Pep [1983] PNGLR 287
Regina –v- Meauri [1969-70] PNGLR 254
State –v- Thomas Bawai [2001] PGNC 123; N2074 (26 March, 2001)
State –v- Atau Gore (No. 2) [2004] PGNC 124; N2644 (23 August, 2004)
Joshua Yaip Avini & Plaridel Nony Acosta –v- State [1997] PNGLR 212
State –v- Tanuaru Avaka (2000) N2024
State –v- Henry Osale Kales (2001) N2115
State –v- Robert Tamtu (2001) N2166
State –v- Atau Gore (No. 1) (2004)
State –v- Tolly Amindi (2004) N2683
State –v- Thomas Sange and Ors (2005) N2805

Text Books

Don Chalmers, David Weisbrot, Salamo Injia & Warwick Andrew, Criminal Law and Practice of Papua New Guinea, Lawbook Co. 2009

Counsel

Mr. A. Bray, for the State
Mr. M. Mumure, for the Accused

RULING ON NO CASE SUBMISSION

16 July, 2012

1. IPANG, AJ: This is the ruling on a no case submission by Mr. M. Mumure of counsel for the four (4) accused persons. At the close of the prosecution's case on one (1) count each of Attempted Armed Robbery pursuant to section 387 (1) (a) (b) 2 (a) (b) of the Criminal Code Act, Grevious Bodily Harm pursuant to section 319 of the Criminal Code Act and unlawful damage under section 444 of the Criminal Code Act, the Defence Counsel submitted that there was no case to answer on the first Count for Attempted Armed Robbery and on the second count for Grevious Bodily Harm. Counsel submitted that as the case stood for these two (2) counts, the court should be satisfied that the evidence for the prosecution on these two (2) counts is insufficient and therefore the court should acquit the four (4) accused persons on these two (2) counts of Attempted Armed Robbery and Grievous Bodily Harm.

2. The law on the no case submission is settled in this jurisdiction. The Court in State v Paul Kundi Rape [1976] PNGLR 96 held that:

"where there is a submission of no case to answer at the close of the case for prosecution, the question to be asked is not whether on evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully convicted. This is a question of law; to be carefully distinguished from the question of fact to be asked at the close of all evidence whether prosecution has proved its case beyond reasonable doubt."

3. In the case of State v Aiga Kola [1976] PNGLR 620 the Court held that:

"Where there is a submission of no case at the close of the case for prosecution there are two questions to be determined;

(1) Whether there is sufficient evidence on which the accused could lawfully be convicted; and

(2) Whether there is sufficient evidence on which the accused ought to be convicted; i.e whether the evidence is so insufficient that the accused ought not to be called upon to answer it."

4. In the case of State v Nathan Kovoho CR. No. 163 of 2005, N2810 Cannings, J further elaborated on the two (2) distinct and separate questions that arise in a no case submission. These are the First Limb or First Test and the Second Limb or Second Test.

First Limb or First Test

5. Question1: Are there some evidence of each element of the offence which, if accepted would either prove the element directly or enable its existence to be inferred? If the answer to question 1 is "no" the conclusion will be that on the evidence as it stands the accused could not be lawfully convicted. This is an issue of law. The accused will have no case to answer. The accused will not be required to answer the charge. The accused will be entitled to an acquittal. If the answer to question 1 is "yes" the trial should proceed unless question 2 is answered in the negative. Refer to Nathan Kovohos case (supra).

Second Limb or Second Test

6. Although there is case to answer - is there sufficient evidence on the basis of which the Court ought to convict the accused? This question arises in situations where the evidence is so weak that no reasonable tribunal of fact could base conviction. If the answer to question 2 is "no" i.e there is sufficient evidence, the trial judge has a discretion to either not call upon the accused (i.e enter an acquittal) or order trial to proceed. If the answer to question 2 is "yes" the trial must proceed. Also refer to Nathan Kovohos case (supra).

7. See also State v Roka Pep (No. 2) [1983] PNGLR287; Joshua Yaip Avini & Plaridel Nony Acosta v State [1997] PNGLR 212; State v Tanuaru Avak (2000) N2024 Gavara Nanu J; State v Henry Osale Kales (2000) N2115 Kirriwom, J; State v Atau Gore (No. 1) N2004 Manuhu, J; State v Tolly Amindi (2004) N2683 Kandakasi, J; and State v Thomas Sange & Ors (2005) N2805 Cannings, J.

Charge

8. The four (4) accused persons have all been indicted on one count of Attempted Armed Robbery pursuant to section 387 (1) (a) (b) 2 (a) (b) of the Criminal Code Act, Grevious Bodily Harm under section 319 of the Criminal Code Act and unlawful damage pursuant to section 444 (1) (2) of the Criminal Code Act.

Brief Facts

9. The brief facts of this case are as follows; On the 16th July, 2011 the four accused were alleged to be together with other persons near the Kainantu Mobil Service Station at around 10.30pm. State alleged they were consuming alcohol when a 25 Seater Coaster Bus bearing Registration No. PO 377H driven by one Christopher Wakati from Lae on the way to Mt. Hagen approached.

10. Just before approaching Kainantu Town, at a bridge the driver suspected a flat tyre. He was about to stop at the bridge when policemen who were there directed him to drive straight through Kainantu Mobil Service Station and fix his tyre there. So the driver drove to Mobil Service Station and stopped there. The driver sent the crew out to check and change the flat tyre. The crew went out of the bus. The State alleged that the four accused persons and others approached the bus. They were all armed. State alleged that the accused Becks Hezakie had a firearm and Bernard Hezakie had a bush knife. Accused persons Ofi Ben and Felix Sengi were armed with stones and bottles of beer.

11. As the accused persons approached the bus, they separated and surrounded the bus. State alleged Becks Hezakie and Bernard Hezakie approached the driver. Becks aimed the firearm at the driver. Driver called on the crew to get inside the bus and then he drove straight at Becks who was armed with a firearm. Other accused persons Bernard Hezakie, Felix Sengi, Ofi Ben and others then threw stones, bottles, and bush knife at the bus and also cut the side of the bus with bush knives.

12. A passenger Philemon Tony was hit by a bottle of beer thrown at the bus. He received cut to his head. The driver drove out of the scene all the way to Raipinga and changed the flat tyre. He later drove back to Kainantu Police Station and reported the matter. As the bus took off at the scene of the alleged Attempted Armed Robbery, the police fired warning shots. The accused persons and others ran away. Police chased them and apprehended Bernard Hezakie in the early hours of 17th July, 2011. Later the other accused persons were apprehended. The owner of the Coaster Bus obtained a quote of damage caused to be around K9, 335. 05.

State's Case

13. At the beginning of its case, State through Counsel Mr. A. Bray tendered the following documentary evidence with consent from Defence Counsel. The following were the documents tendered:

(a) Becks Hezakie's Record of Interview dated 26th July, 2011. Pidgin original version as Exhibit 'A1' and the English translated version as Exhibit 'A2'.

(b) Bernard Hezakie's Record of Interview dated 26th July, 2011. Pidgin original version as Exhibit 'B1' and the English translated version as Exhibit 'B2'.

(c) Felix Sengi's Record of Interview dated 28th July, 2011. Pidgin original version as Exhibit 'C1' and the English translated version as Exhibit 'C2'.

(d) Ofi Ben's Record of Interview dated 28th July, 2011. Pidgin original version as Exhibit 'D1' and the English translated version as Exhibit 'D2'.

(e) Statement of David Tasman in English dated 21st July, 2011 as Exhibit 'E1'.

(f) Quote of damage done to the vehicle valued at K9, 335. 05 as Exhibit 'E2'.

(g) Four photographs taken on damage caused to the bus;

(h) Photo P1 Exhibit 'F'

(i) Photo P2 Exhibit 'G'

(j) Photo P3 Exhibit 'H'

(k) Photo P4 Exhibit 'I'

14. State called six (6) witnesses. They are Jennifer Peter, Maria Sambu, Daniel Numdi, Christopher Wakati, John Joseph and Japhet Rupia. Jenifer Peter and Maria Sambu were the passengers on the Coaster Bus; Christopher Wakati is the driver of the Coaster Bus. Daniel Numdi, John Joseph and Japhet Rupia are the Police Officers based at Kainantu Police Station.

15. In summary, Jennifer Peter and Maria gave their accounts of how they were travelling from Lae on their way to Mt. Hagen after the AOG Women's Fellowship held in Lae. These two (2) witnesses travelled on that Coaster Bus Registration No. PO377H on the 16th of July, 2011 from Lae on their way to Mt. Hagen. They told the Court of the bus experiencing a flat tyre and the driver driving to Kainantu Mobil Service Station. At the Mobil Service Station, the crew went out to check the flat tyre when armed group of men approached the bus. These two (2) witnesses said two (2) tall men approached the driver side. One had a gun and the other had a bush knife. That was the descriptions they (witnesses) gave but weren't able to tell or identify whether these two (2) tall men were two (2) of the accused before this court.

16. They also told the court that four (4) other men went towards the crew side. Driver then called on the crew and the crew got into the bus, Jennifer Peter shouted "take off" so the driver took off. They said the other men who were armed with stones, bottles of beer and bush knives started throwing stones, beer bottles, and a bush knife on to the bus, breaking the window glasses and also they cut the side of the bus with bush knife. A bush knife broke the glass and landed inside the bus. A full bottle of beer broke the glass and hit a passenger Philemon Tony on his head causing him injury and bleeding. At the Kainantu Police Station, these two (2) witnesses Jennifer Peter and Maria Sambu were able to see blood coming from Philemon Tony's head. A bush knife which was discovered inside the bus was tendered to court and marked as Exhibit 'J'.

17. At the Kainantu Mobil Service Station, these two (2) witnesses said there were lights at the Service Station and bus lights were on and they were able to see the armed men approaching them. Witness Maria Sambu was taken to task over her statement given to the Investigator in which she did not mention gun and bush knife by the Defence Counsel. Defence Counsel submitted that her evidence regarding gun and the bush knife is therefore a new invention or recent creation.

18. Coaster Bus Driver Christopher Wakati also gave similar accounts of experiencing a flat tyre and was trying to change the flat tyre. He stopped the bus at Mobil Service Station and sent his crew to check the punctured tyre. When the crew was outside the bus, a group of men approached the bus. Two (2) tall men approached him. One had a gun and the other had a bush knife. He said the one with the gun, pointed the gun at him and told him not to move the bus. However, fearing for the lives and properties of his passengers and his daily takings, the driver drove straight to the gunman. At the same time, stones, beer bottles and a bush knife were thrown on the bus breaking the glasses. One full bottle of beer hit a passenger Philemon Tony on his head causing bleeding. A bush knife broke through the glass and landed inside the bus. Bush knives were also used to cut the side of the bus. The driver could not identify if accused persons were the ones he saw except to say there were two tall men and two short men.

19. Daniel Numdi gave evidence of the call the police received when they were at Yonki informing them of armed criminals in Kainantu. So they travelled up to Kainantu. The four (4) of them were dropped off at Mixed Compound. They were S/C Ben Babat, F/C Simon, Auxiliary Policeman Kenneth Kau and himself. At the Mixed Compound they all walked towards Tilagu Kona. At Tilagu Kona they stood there and watched convoy of buses passing through. They also saw some young men causing damage to the buses.

20. Numdi said they divided themselves into two groups. S/C Ben Babat and himself went to the Lae Bus stop whilst F/C Simon Boi and Auxiliary Policeman Kenneth Kau went towards K'Mart. At the Lae Bus Stop, Numdi said S/C Babat and himself saw a 25 Seater Coaster Bus drive slowly up and wanted to park under the street lights of the Mobil Service Station. He said the young men went and wanted to hold up the bus.

21. They were 5 to 6 meters away from the Mobil Service Station and he said they recognized who wanted to hold up the bus. Numdi said two tall persons approached the driver side. He said he can tell that they were Becks Hezakie and Bernard Hezakie. He said both Becks and Bernard were not masked or did not cover their faces and they were under street lights. Becks held a shot gun, a pump action and went straight to the driver and pointed the gun at the driver. The driver put the vehicle in to motion.

22. Numdi said S/C Babat and him fired warning shots. Becks and his group ran towards the Tiofi Gate and open fire back to S/C Babat and him. But they (S/C Babat and him) followed them. He said Bernard was trying to jump over the gate when he was caught while Becks and others escaped. Bernard was then searched and a Tramontina knife was found on him. The bush knife has a long blade and a black handle. The bush knife was tendered to Court with consent and was marked as Exhibit 'L'. Numdi said he was the one who searched Bernard and confisticated the bush knife from him. He said Bernard was drunk and resisted getting on to the Police vehicle.

23. John Joseph is the Investigating Officer. He gave evidence of how he travelled up to Mendi and Mt. Hagen and interviewed witnesses Jennifer Peter, Maria Sambu and Philemon Tony in Mendi. In Mt. Hagen he interviewed Bus Driver Christopher Wakati, Crew Barnabas Wyn and the bus owner David Tassman. In Kainantu he interviewed Daniel Numdi, S/C Ben Babat, Simon Igaso, Auxiliary Constable Kenneth Kau and Constable David Wate. After considering and having convinced himself that there are sufficient and credible evidence, he went on and arrested the accused persons. He said there were seven of them. Three escaped and four are now before the Court.

24. The witness John Joseph said he was not actually involved in the apprehension of the accused persons but arrived on the scene after they were apprehended. He strongly denied his involvement in the actual apprehension of the accused persons when pressed by the Defence Counsel Mr. Mumure.

25. The final state witness is Constable Japhet Rupia. He was the driver of the Police vehicle who drove policemen from Kainantu to Yonki and Yonki to Kainantu and dropped four policemen at Mixed Compound. He then drove up to the main Police Barracks when he heard gun shots. At the Police Barracks he picked up F/C Freddy Kondoa and he drove back. In front of Bingtangor Supermarket, police got Bernard Hezakie and were there when he arrived. Rupia said police tried putting Bernard on the Police vehicle but he was drunk and resisted. He smelt beer. Police then man-handled him and put him on the vehicle and took him to Kainantu Police Station and he was locked up.

26. Police then re-grouped and mounted a search for Becks Hezakie and others. Rupia said they combed Kainantu Town searching for Becks and his group. At the Tiofi Gate, Rupia said a Security Guard told them that Becks and 4 to 5 others escorted him (Becks) to his house. So, Rupia said they went straight to Becks' house and apprehended him and the five (5) boys.

27. Becks was asleep in the house. One of the accused Felix Sengi came out of the house when he was apprehended and four others were inside the house when they were apprehended. Rupia said after apprehending the accused persons, police told them to get on the vehicle but they were drunk and resisted. Police then man-handled them and got them on the vehicle. Police got them to Kainantu Police Station and later brought them to Yonki Police Station and locked them up.

Submission by Defence

28. Mr. M. Mumure of Counsel for the four accused persons makes a no case submission on the first court of Attempted Armed Robbery pursuant to s. 387 (1) (a) (b) 2 (a) (b) of the Criminal Code Act and second count of Grevious Bodily Harm under s. 319 of the Criminal Code Act.

29. The s. 387 of the Criminal Code Act is worded in the following terms and I quote:

"387. Attempted robbery accompanied by wounding, or in company.

(1) A person who assaults a person with intent to steal anything, and, at, immediately before or immediately after, the time of assault, uses or threatens to use actual violence to any person or property in order

• (a) To obtain the thing intended to be stolen; or
  
• (b) To prevent or overcome resistance to its being stolen,
  

Is guilty of crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2) If the offender –

• (a) Is armed with a dangerous or offensive weapon or instrument; or
  
• (b) Is in company with one or more other persons,
  

He is liable to imprisonment for a term not exceeding 14 years"

30. Mr. Mumure relied on the First Limb as stated in Paul Kundi Rape (supra) and submitted that the State has not adduced evidence to establish which is the thing intended to be stolen as required under s. 387 (1) (a) of the Criminal Code Act. He said the burden is on the State to prove what was intended to be stolen. Defence Counsel said court should not rely merely on speculations. State through Counsel Mr. A. Bray counter argued that witnesses have been threatened. First witness Jennifer Peter gave evidence of her money and mobile phone could have been stolen. The driver feared for his daily takings which he said was K2,600.00. Mr. Bray said Becks was armed with a gun and threatened the driver.

31. I draw the attention of both counsel to s. 4 of the Criminal Code Act, the section 4 states;

"4. Attempts to commit offences

(1) When a person, intending to commit an offence –

• (a) begins to put his intention into execution by means adapted to its fulfillment; and
  
• (b) manifests his intention by some overt act, but does not fulfils his intention to such an extent as to commit the offence,
  

he is said to attempt to commit the offence."

32. The notation under s. 387 on page 138 of the Criminal Law and Practice of Papua New Guinea by Don Chalmers, David Weisbrot, Salamo Injia and Warwick Andrew, Lawbook Co. 2009 stated that, 'This section does not merely require that the intention be manifest by some overt act; it requires the commencement of the execution of the intention itself.' The notation further expounded that the code does not require that the prosecution go further and show that the acts relied upon should be referable, independently of any intention confessed or inferred, unequivocally to an intention to commit the particular crime. The pre-independence case of R v Joseph Kure [1955-1966] PNGLR 161 was referred to.

33. From reading of sections 387 (1) and 4 of the Criminal Code Act, and the notations on page 138 of Criminal Law and Practice of Papua New Guinea (supra) and the evidence given so far of the young men whose identities have been revealed, and armed with gun, bush knives, beer bottles confronting the bus, threatening the driver, stoned the bus, cut the side of the bus and smashed the glass of the bus are in my view sufficient evidence.

34. With respect to the submission by the learned Defence Counsel that the State has not adduced evidence to prove what was intended to be stolen is of course not a requirement for the State to do so. Defence Counsel's submission on this aspect is misleading. It is a clear position of the law that property identification is not required in an attempted robberies charge. If what Mr. Mumure is submitting is the correct requirement of law, then it will have serious ramifications on offences of attempted robberies where no actual attempts were made on getting specific properties like in this present case.

35. In State v Atau Gore (No. 2) [2004] PGNC 124; N2644 (23 August, 2004) Manuhu AJ (as he was then) re-enforced the correct requirement of the offence of Attempted Robbery under s. 387 of the Criminal Code Act where His Honour stated that, "The minimum requirement under s. 387 is the intent "to steal anything" as opposed to intent to steal a thing." This position was previously expressed in 2000 in the case of State v Thomas Gitai Bawai (2000) N2074 that it is not necessary to specify any property, especially if the act of stealing is absent or had not materialized.

36. For these reasons, the Defence Counsel's no case submission on the first count of attempted armed robbery pursuant to s. 387 (1) (a) of the Criminal Code Act, must fail.

37. In regards to the second count of causing Grevious Bodily Harm pursuant to s. 319 of the Criminal Code Act, Mr. Mumure relies on the Second Limb in the Paul Kundi Rape case (supra). The Second Limb in Paul Kundi Rape case (supra) is that if there is some evidence but it is so tainted or so dubious that if defence is called upon to give evidence it will not improve the State's case, the court can be called upon to acquit the accused.

38. Mr. Mumure submitted for the accused persons that there is no evidence of grevious bodily harm, no medical evidence and no victim in this case. He said the words of the witnesses alone on injury sustained by the passenger Philemon Tony are insufficient. Jennifer Peter said at Kainantu Police Station, Philemon Tony showed them blood on his head. She said a full bottle of beer broke the glass and landed on his head. Maria Sambu said Philemon Tony had injury to the left side of his head. Driver said he had a big cut on the left side of his head. A full bottle of beer with its' lid on was smashed on his head. The evidence by the three (3) State witnesses demonstrated sufficient evidence on injury sustained by the passenger Philemon Tony.

39. It is the finding of this Court that there are sufficient evidence on the first count of attempted arm robbery and on the second count of unlawful grevious bodily harm and so I find the four (4) accused have a case to answer. In doing so I overrule the no case submission and order trial to proceed.
__________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused Persons