State v Bui [2014] PGNC 241; N5934 (12 September 2014)

N5934

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. 511 OF 2013

THE STATE

V

LINDA BUI

Wabag: Kawi-iu, AJ
2014: 8, 15 April &12 September

CRIMINAL LAW: Practise and procedure – Indictment charging accused with one count of Arson – Plead not guilty – No witnesses available to testify against the accused - State Offers No Evidence- Accused discharged pursuant to S. 591 Criminal Code Act.

Cases Cited:

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

Counsel:

J Kesan, for the State
R Bellie, for the Accused

DECISION

12th September, 2014

1. KAWI-IU AJ: Accused is charged with one count of arson, where it was alleged that she did on the 2nd October 2012 between the hours of 5.00 pm and 6.00 pm at Yai Primary School wilfully and unlawfully set fire to a semi-permanent house belonging to one Mr Bui Naonao.

2. At the relevant time the complainant was away attending to a family social gathering at Laiagam District. Accused struck a match and set the house alight.

3. The house was completely burnt to ashes together with all the properties worth between seven and eight thousand kina.

4. State alleged that the accused had no lawful reason or excuse to set fire to the house.

Plea:

5. The charge was read and explained to the accused, and after informing the court that she understood the same, pleaded not guilty which counsel confirms was consistent to instruction.

State's Case:

6. Case for the State was called. State informed the court that it has a total of six (6) witnesses and will only be calling one (1). The first main and only witness called for the state is the owner of the house. After being called three times in the precinct of the court, state informed the court that its witness is not present.

7. At this juncture counsel for the State informed the court that he had become aware of a note written by the Complainant Bui Naonao addressed to the Arresting Officer expressing his wish to withdraw the case. This may have been the reason why he had not been in court to testify against the accused. There being no other witnesses to call and the State formally closes its case. The end result is that the State had no witnesses, and therefore offers no evidence.

Defence Response:

8. Plausibly out of a want of understanding of the process or procedure after the State had not offered any evidence, defence nonetheless had gone an extra mile to make submission as if the state had adduced evidence. In other word there is no need for the defence to make submission on a no case to answer, for the proposition that there is technically and legally no evidence before the court. Thus after the state had made a decision not to continue with its prosecutorial duty and opted to offer no evidence invariably results in total acquittal of the accused.

9. Defence purported submission of no case was based on the infamous case of The State v Paul Kundi Rape 1976] PNGLR 96 and The State v Roka Pep (No 2) [1983] PNGLR 287.

10. After referring to the above case authorities defence submits that the submission was based on the first limb of Paul Kundi Rape (supra) and accordingly submits that the accused is entitled to an acquittal.

11. In any case the State having offered no evidence against the accused, and considering s. 591 of the Criminal Code Act the accused shall be entitle to an acquittal and to be discharged in respect to the charge in which she had been charged for.

12. Accordingly, I find the accused not guilty and acquit her and ordered that she be discharged from custody forthwith.

_______________________________________________________________
Public Prosecutor- Lawyer for the State
Public Solicitor- Lawyer for the Accused