State v Lavu [2017] PGNC 260; N6953 (6 October 2017)

N6953

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1005 OF 2013

THE STATE

V

ROBERT LAVU

Kimbe: Miviri AJ
2017 : 6^th October

CRIMINAL LAW – practice and procedure – Robbery – identification-section 7 and 8-no case submission-upheld-no case to answer-acquitted and discharged.

Facts
Accused aided another and stole K 15, 878 property of Farmset. He was armed with a bush knife

Held
No case to answer
Acquitted and discharged.

Cases:

Avini v The State [1997] PNGLR 212

Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287

State v. Paul Kundi Rape [1976] P.N.G.L.R. 96

The State v Amoko Amoko [1981] PNGLR 373.

Wani v The State [1979] PNGLR 593

Counsel:
Mr. Dusava, for the State
D. Kari, for the Defendant

RULING ON NO CASE

12^th October, 2017

1. MIVIRI AJ: Robert Lavu is charged with armed robbery that he on the 11^th day of June 2013 at Morokea, stole from Fay So’on with threats of actual violence fifteen thousand Kina, eight hundred and seventy eight kina (K15, 878), the property of Farmset Limited. And at this time he was armed with a bush knife, a dangerous and offensive weapon and was accompanied by another.
   

State evidence

2. The state evidence after witnesses Fay So’on, Elly Pato, Tele Michael is that there was an armed robbery committed by one Thadeus who pulled the billum off Fay So’on and made off with the contents within which were K 15, 878 in cash and cheques (K 9064 was cash and K 6 814 was cheques). He pulled out a knife against her and she let go of the billum.
   
3. It is also the State’s evidence that the accused Robert Lavu chased after the robber calling out in pidgin, “Holim em, Holim em” interpreted, “ Hold him Hold him”.

No case submission

4. The defence has made a no case submission relying on the State v. Paul Kundi Rape [1976] P.N.G.L.R. 96 and also Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287. In particular he is contending and invoking the second leg of Roka Pep’s case (supra) that there is discretion in the judge to stop the case here because prima facie there is no evidence that the defendant was an aider and abettor in the robbery committed on this day.
   
5. He merely called out to stop this robber’ Holim em, Holim em’ it did not make him an aider and abettor within the meaning of section 7 and 8 of the Code. Mere presence is not enough, actual participation must be there prima facie. That is not the status of the evidence after closure by the State: Wani v The State [1979]PNGLR 593
   
6. The State submitted that there was prima facie evidence that this was a ploy and he ran away with the principle Thaddeus and later was drinking with him.
7. I am not satisfied that the State has led prima facie evidence to call the accused to answer that he aided and abetted an armed robbery. It is the State’s evidence that as soon as Thaddeus rang past him the accused uttered “Holim em, Holim em” interpreted, “ Hold him Hold him” and chased after him and the principle state witness Fay So’on acknowledges calling out to the defendant to stop Thaddeus and that is what the accused did - chased after him uttering those words. Avini v The State [1997] PNGLR 212. The witness Tele Michael is an accomplice, he also consumed alcohol and his evidence must be corroborated. I do not find any prima facie evidence corroborating his account: The State v Amoko Amoko [1981] PNGLR 373.
8. The record of interview does not add to the State contention that prima facie there is evidence of the participation and aiding and abetting of the suspect. The State has the onus of proving the case the accused is not required to prove his innocence. At the end of the closure of the State case, I am not satisfied that on the balance of probabilities the accused should be called to answer.
9. Accordingly, I find that the accused has no case to answer. I find him not guilty of the charge of armed robbery and acquit him forthwith. I order that if there are no other charges pending against him that he be released from custody forthwith.

Ruling accordingly.

Orders Accordingly

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the defendant