State v Kufen [2013] PGNC 344; N5454 (19 November 2013)

N5454

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 268 OF 2011

THE STATE

V

JOHN KUFEN

CR NO. 269 (1) OF 2011

THE STATE

V

MICHAEL EVO'O IPAI

Popondetta: Toliken, AJ
2013: 14th, 19th November

CRIMINAL LAW – Particular offence – Armed robbery – Intention to steal not expressed in definition of the offence – Stealing is a essential element of robbery – Intention to steal therefore implicit in the definition of robbery – Criminal Code Act Ch. 262, ss 384 and 386 (1)(2).

CRIMINAL LAW - Practice and procedure – No case to answer – Co-accused charged with robbery – Prima facie case against one accused – Other accused has no case to answer – No crime by contingent association – State failed to establish prima facie evidence of fraudulent intention by second accused – Second accused has no case to answer.

Cases Cited

The State v Paul Kudi Rape [1976] PNGLR 96
Roka Pep v The State (No.2) [1983] PNGLR 287

Counsel

J.W.Tamate, for the State
P.Moses & T.Ilaisaa, for the accused

RULING ON NO CASE SUBMISSION

19th November, 2013

1. TOLIKEN, AJ: The accused persons are on trial for one count of armed robbery an offence against Section 386 (1)(2) of the Criminal Code Ch. 262.
   
2. They are charged that:
   

" ... on the 03rd day of November 2010 at Comfort Inn hotel, Popondetta Town in Papua New Guinea, they, ... stole from one MENSON GOUMEI with actual violence Two Thousand Three Hundred Kina (K2,300.00) in cash, a Samsung Digital video camera valued at K2,700.00 a Nokia mobile phone valued at K200.00, properties belonging to MENSON GOUMEI AND AT THE AFORESAID TIME they, ... were armed with a dangerous weapon namely, a police issue Sig Saur firearm pistol number S217414."(Sic.)

3. At the end of the prosecution case the defence made a no case submission. This is my short ruling.
   
4. The State's evidence thus far is as follows. The complainant – a businessman involved in alluvial gold mining in Kokoda - testified that on the date in question he and two of his employees came into town to replenish his fuel supplies and rations. He had on him K1800 cash for his shopping. They arrived in town sometime after 5.30p.m and went straight the BSP where withdrew K1000 from the ATM at 5.43p.m. They then proceeded to the Comfort Inn to secure accommodation for the night but he decided to play the pokies and have a few drinks before securing accommodation. So they proceeded straight to the Pokies.
   
5. Sometime later that night the accused came into the Pokies. They knew each other previously when the accused had assisted the complainant to recover monies owed to him by other people. The accused asked the complainant to sponsor or place a bet for him which he did. He then bought beer for the accused and his friend. The accused then demanded a second and then a third bet to which the complainant willingly agreed. When the accused demand a fourth bet, the complainant refused telling him that he had budgeted his funds and then left to arrange their accommodation.
   
6. At the lounge area the complainant met a staff member of the hotel (who turned out to be the Duty Manager) and was talking to him when accused followed him out. The accused then asked the complainant what he was doing there and whether he was saying bad things about him – that he was a con man. The complainant denied saying such a thing. At that the accused replied saying that complainant was liar and then punched him in the face. The complainant fell down on the floor and when he got up the accused punched him again and he again fell to the floor. By this time the complainant was bleeding so he decided to run away from the accused but the co-accused John Kufen (acquitted) blocked him off and punched him on the cheek. The complainant fell down and at that that time the complainant said that one of them must pulled a waist bag that was around his neck. As he got up the complainant heard the accused say "I will kill you!" He ran towards Steamships Hardware, jumped over the fence in the Steamships yard and jumped over to the other side of the fence. He then went across to the field and hid in a drain until daybreak. He reported to the Popondetta Police Station at 6.30a.m. The bag was said to have contained K2300 cash and other small notes, a Sumsung Digital Video Camera, a Nokia mobile phone, a torch and other small items and a shopping list.
   
7. In examination in chief the complainant said he won a lot of money that night before the accused came in. In cross examination he said that he bought beer for his boys and played pokies. He said he placed K500 in bets but won money too. He said he knew exactly how much he had in the waist bag – that is K2300.00. He did not know exactly when the accused came in but denied being so drunk by that time. When it was put to him that he was not sure which of the co-accused pulled the bag from him he said that said one of them ripped the bag from his neck. When it was suggested to him that he was getting money out of a wallet when he was playing pokies the complainant said that he was taking money out of his pocket but could not remember if he had a wallet and whether it was in his pocket or in the waist bag. He was sure though that he had his shopping money in his waist bag. The complainant also denied saying to the accused that he was a con policeman at the pokies area.
   
8. Benjamin Gerard was the Duty Manager at the Comfort Inn that night. He was at the reception when the complainant came and asked for a room. Just then he heard a big bang on the main door and someone swear saying "Kaikai kan. Ol security we? Come and open the door!" He opened the blinds and looked out and saw the accused standing outside. He then told the complainant to go and wait in the lounge area while he went out to look for a guard to open the door. He went out but could not locate a guard. When he saw the complainant sitting at the lounge and went over to him to assist him. At that moment he heard the chains to the eastern gate rattle and when he looked out he saw the accused run though the gate.
   
9. The accused entered the lounge area shouting "Kaikai kan, man ya i stap we?" When he saw them he walked quickly towards them and asked the complainant what he was there for and why he had called him a conman. He punched the complainant and the complainant fell down. As he stood up he felled him again with another punch. At that time the co-accused John Kufen came from the side and also punched the complainant. They then started to kick the complainant as he was rolling on the floor trying to protect his face. The accused Michael Evo'o then grabbed the complainant's waist bag, pulling and removing it from his shoulder. Gerard said he told the accused Michael Evo'o to stop what he was doing. The guards came in and stopped him. They told him to return the waist bag but he refused. At that time the complainant walked away into the dark and escaped.
   
10. The accused then left the lounge area and went out of the hotel. Gerard said he followed him out. Out in the car park he saw the accused Michael Evo'o assault one of the complainant's employees. He then walked out of the hotel premises with the bag but then returned sometimes later and started asking for the complainant. He took out a pistol from his back pack and pointed it at the Gerard and the guards whilst asking for the complainant. Getting no response he threatened to shoot the guards telling them that their shift had ended and why they were wasting their time there. He told them to home to their wives who were waiting for them to come home and have sex with them. Gerard said that the whole episode took about 10 – 20 minutes.
    
11. Gerard said in cross examination that the complainant arrived at the pokies around 7.00p.m. He did not know how many people were with the complainant that night. He agreed though that there were a lot of people at the pokies that night. He did not know if the complainant was buying beer for the guards but the guards reported to him that the complainant was buying beer for the accused and sponsoring bets for him. He admitted that he did not see the accused armed when he assaulted the complainant. Gerard denied that the bag fell off from the complainant as he was struggling to get away and further denied that the accused picked it up. He denied seeing the bag with the accused at the car park. He also denied that he and guards were angry at the accused and moved forward to attack him prompting him to pull out his gun from his bag. He said he was 15 – 20 meters away from the accused when he saw him pull out the gun. Gerard also said that both Michel Evo'o and John Kufen were in uniform.
    
12. In a no case submission the question for Court simply is whether the State's evidence thus far is sufficient to warrant the accused persons to be called upon to answer the charge. In other words has the State established a prima facie case? The question is not whether the accused persons ought to be convicted but whether they can be lawfully convicted on the evidence as it stands. (The State v Paul Kudi Rape [1976] PNGLR 96); Roka Pep v The State (No.2) [1983] PNGLR 287)
    
13. A prima facie case entails that the State has established in its evidence all the necessary elements of the charge, in this case, the charge of armed robbery. If the State fails to establish a single element of the charge, then its case must fail and accused must be acquitted and discharged as a matter of right. But even if there is evidence establishing all the essential elements of the charge, the Court may, in its discretion discontinue the trial if the evidence is so weak, discredited by cross-examination or so lacking in weight that no reasonable tribunal of act can lawfully convict the accused on that evidence. The above basically summarizes the principles of no case as settled in this jurisdiction by Kudi Rape and Roka Pep.
    
14. So, coming back to the case at hand has the State established all the necessary elements of the charge of robbery?
    
15. Before coming to that, it is important to see what the definition of robbery is. Section 384 of the Code defines robbery as follows:-
    

"A person who steals anything, and, at, immediately before or immediately after the time of stealing it, uses or threatens to use 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."

16. The offence itself is provided by Section 386(1) of the Code while Subsection (2) of 386 provides for what we call aggravated robbery through the use of dangerous or offensive weapons, being in company of others or wounding or using violence on any person immediately before or after the robbery.
    
17. So, at this stage, the State's evidence must have established the following:-
    
    1. The accused persons
       
    2. In company of each other
       
    3. Stole from Menson Gomai
       
    4. Properties to wit, K2,300.00 in cash, a Samsung Digital Camera, a Nokia Mobile phone (K200); and
       
    5. That at that time, they were armed with a dangerous weapon, viz a police issued Sig. Sawn pistol.
       
18. The evidence in a nutshell thus far establishes that on the date in question and particularly at the relevant time, the accused Michael Evo'o Ipai and the victim met at the pokies at the Comfort Inn Hotel. The victim bought beer for Michael Evo'o Ipai at his request and also sponsored him for three games at the pokies. When accused Michael Evo'o Ipai requested for a 4th game, the victim told him that he had a budget to follow so he left him and proceeded to the lounge area of the hotel. As he stood there talking to the Duty Manager, the accused Mel banged at the main door into the hotel wanting to get in. He was allowed in and set about assaulting the victim over what he claimed to be disparaging remarks against him. He punched the victim the first time. The victim fell down and as he came up, he punched him down again.
    
19. Fearing for his life, the victim took flight but not before Michael Evo'o grabbed the victim's bag and pulled it out. As the victim was running away, co-accused John Kufen punched him also. The victim ran off and jumped over the fence into Steamship's Hardware and then ran the field opposite where he stayed and slept until daybreak. He reported the matter to police at 6.20 am.
    
20. The victim said that in the bag was K2,300.00 cash, a Samsung Digital Camera, a Nokia Mobile Phone and some other items e.g., a torch. After grabbing the bag, the accused Mel left the hotel premises and then returned. He pulled a firearm – a pistol and threatened the Duty Manager and his guards with it. But before that on his way out, he also assaulted an employee of the victim outside the hotel parking area. So, does this evidence establish a prima facie case against both accused persons?
    

16. In applying the principles in Kundi Rape, I do find that all the necessary elements of the charge are established in respect of the accused Michael Evo'o Ipai. I find that on that night in question, he -

1. Took a bag containing money and other properties from the victim.
   
2. At that time immediately before he took the properties and after that, he used violence on the victim.
   
3. That immediately after he took the properties, he pulled a gun on security guards and the Duty Manager of Comfort Inn.
   
4. And at the time he took the properties, he was in the company of the accused John Kufen.
   
17. Therefore, in as far as this, accused is concerned I rule that he has a case to answer.
    
18. In respect of accused John Kufen, while I find that there is prima facie evidence against him, I am not satisfied on the second leg of Kundi Rape that he can be lawfully convicted on the evidence as it stands. Fair enough, there is prima facie evidence that he assaulted the victim too as he was running away from Michael Evo'o. That, however, is not sufficient in my opinion, because a crime, (any crime at all) cannot be committed by mere contingent association unless it can be shown in this case that he acted in concert with the co-accused to steal from the victim under the circumstances described above.
    
19. While it may be true to say that intention is not described expressly as an element of the crime of robbery, stealing is, and for stealing there is an element of fraudulent intention involved. That is, the intention to permanently deprive the owner of the property or the one in possession of that property. It is implicit therefore that there must be some fraudulent intention on the part of the accused in cases of robbery.
    
20. In this regard, in so far as the evidence against John Kufen is concerned, such cannot easily be ascribed to him per se. He should not therefore be called upon to answer the charge.
    
21. My ruling and orders are therefore:-
    
    1. The accused Mel has a case to answer.
       
    2. The accused John Kufen has no case to answer and he is accordingly acquitted and discharged. His bail monies are to be refunded forthwith.
       

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Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the accused