State v Poi [2017] PGNC 301; N7003 (15 November 2017)

N7003

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 962 & 963 of 2015 &
CR No. 1305 OF 2015 & & CR No. 456 & 457 of 2016

THE STATE

V

LEONARD BONGI POI & STANLEY MAIU KAPUL & ELIZAH VINCENT HETHET

Kimbe: Miviri AJ
2017: 15^th November

CRIMINAL LAW – PRACTICE AND PROCEDURE – Robbery – identification-section 7 and 8-no case submission-upheld-no case to answer 2 accused-acquitted discharged both accused.

Facts
The three Accused aided others armed with homemade guns and bush knives held up a PMV bus and shot the driver when he resisted their attempt to rob him and then drove off and away with it.

Held
No case to answer
Acquitted and discharged.

Cases:

Avini v The State [1997] PNGLR 212 (15 July 1997)

Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The

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

State v [1983] PNGLR 287; [1983] PNGLR 287 (14 September 1983)

The State v Amoko Amoko [1981] PNGLR 373.
Wani v The State [1979] PNGLR 593

Counsel:

D. Kuvi, for the State
D. Kari, for the Defendant

RULING ON NO CASE TO ANSWER

16^th November, 2017

1. MIVIRI AJ: Leonard Bongi Poi and Stanley Maiu Kapul and Elizah Vincent Hethet are jointly charged that they on the 24^th July 2014 at Gigo in Kimbe stole from one Willie Tavup with threats of actual violence dark blue 15 seater PMV bus registered number POOO26B. And at this time they were armed with home made guns and bush knives, all dangerous weapons.
   
2. A second count was that, they were charged with the unlawful use of that vehicle pursuant to section 383 of the Criminal Code. And the state pleaded that they aided and abetted each other in both offences contrary to section 7 of the Code.
   

Facts

3. It was alleged that the accused were drinking alcohol at Gigo and ran out so went down the road where Willie Tavup had pulled up in his 15 seater PMV bus to pick up a person who had called to be picked up there. As he waited for that person the accused in company confronted him holding him up and instructing him to hand over money and valuables. He refused and a fight ensured in the course of which he was shot by the accused in the stomach and they got his bus and made off with it. He sustained serious gunshot wounds to his abdominal area for which he was treated here at Kimbe and also in Port Moresby. He has since recovered.
   

State evidence

4. The state evidence comprised the tendered evidence of Willie Tavup Exhibit S1B, Alice Akua wife of Willie Tavup exhibit S2B, Exhibit S3A affidavit of Doctor Peter Yama, Exhibit S3B medical report Willie Tavup, Exhibit S3C referral letter Kimbe Surgical ward of Willie Tavup, Exhibit SD referral of Patient Willie Tavup by Doctor S James to Port Moresby General Hospital, Exhibit S4A the pidgin record of interview of Leonard Bongi Poi dated the 29^th July 2014, Exhibit S4B the translated English version of the record of interview of accused Leonard Bongi Poi, Exhibit S5A the pidgin original record of interview of the accused Stanley Maiu Kapul, Exhibit S5B, the English translation of that record of interview, Exhibit S6A the pidgin original record of interview of the accused Elizah Vincent Hethet, Exhibit S6B English translation of this record of interview, Exhibit S7 the statement of the police investigation officer Martin Vitolo, Exhibit S 8 the statement of Corroborating officer Sahara Tokania, Exhibit S9 Vernon Naurikia, and exhibit S10 statement of Philip Kuri.
   
5. This evidence established beyond all reasonable doubt that there was an armed robbery committed upon Willie Tavup on the 24^th July 2014 at Gigo Settlement in Kimbe by men who were armed with homemade guns and knives, all dangerous weapons as he stopped on the side of the road, there in answer to a call for pickup on his PMV bus registered number P00026B by a person on the side.
   
6. It was further established by that evidence that he was injured in the robbery when he was shot by one of the robbers as he tried to fight them off and sustained injuries to his abdominal area, left renal plank entry wound of 10cm by 10cm dirty with no exit, a 20cm cavity created by the pellets extending posterior and superficial to the back extending to the spinal bone, for which he was admitted to the Kimbe General Hospital on that day the 24^th July 2014, only two pellets were removed the rest 91 remained in his body yet to be removed. His total cost of damage awarded was 150 percent, and referred to the Port Moresby General hospital for further treatment in respect of the still lodged 91 pellets.

State Oral Witnesses

7. The first was one Freddy Wakore who was sworn whose evidence identified from the lights of the Willie Tavup’s bus the accused Stanley Kapul who was armed with a small knife that he was swinging against the victim. He knew him because they all lived at the same area, accused lived at Laleki and he lived at Gigo. He also identified another accused not before the court, one Penni.
   
8. He testified that there were others who were there, but were in the dark so he could not identify them.
9. The second state witness on oath was Lovelyn Dako wife of Freddy Wakore who accompanied him that night and she also made similar observations as to the identification of the accused Stanley Kapul who was well known to her as they lived at the same settlement. She said she recognized him from the light of the bus and also residences nearby there. She said she also recognized Penni and Toro from Kulingi both not before the court.
   
10. The state closed its case
    

No case submission

11. The defence has made a no case submission relying on the State v. Paul Kundi Rape [1976] PNGLR 96 and also Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287; [1983] PNGLR 287 (14 September 1983). In particular contending and invoking the second leg of Roka Pep’s case (supra) that there is discretion in the judge to stop the case here against the accused because prima facie there is no evidence that the defendants Leonard Bongi Poi and Elizah Vincent Hethet have been identified as principles or an aider and abettor in the robbery committed on this day.
    
12. None of the evidence tendered or sworn oral testimony identifies each of these defendants.
    
13. The State has conceded to the submission made by the defence.
    
14. I am not satisfied prima facie that the State has led evidence to call the accused Leonard Bongi Poi and Elizah Vincent Hethet to answer that they are principles and that they aided and abetted an armed robbery and the unlawful use of the motor vehicle P00026B. They are not identified and calling them will not improve the State case. Avini v The State [1997] PNGLR 212.
    
15. What is contained in the records of interview is accomplice evidence and cannot be used against another accomplice without corroboration The State v Amoko Amoko [1981] PNGLR 373. There is no corroboration prima facie of the identification of the accused Leonard Bongi Poi and Elizah Vincent Hethet in the charges that have been preferred of armed robbery and unlawful use of motor vehicle.
    
16. At the end of the closure of the State case, I am not satisfied prima facie that on the balance of probabilities the accused Leonard Bongi Poi and Elizah Vincent Hethet should be called to answer. In the exercise of my discretion, I will stop the case here against the accused Leonard Bongi Poi and Elizah Vincent Hethet of the armed robbery of Willie Tavup on the 24^th July 2014 and the unlawful use of the PMV bus P00026B.
    
17. I return a not guilty verdict of armed robbery and Unlawful use of motor vehicle against both defendants Leonard Bongi Poi and Elizah Vincent Hethet.
    
18. I further order that Leonard Bongi Poi be discharged from custody forthwith and that Elizah Vincent Hethet be refunded his bail moneys forthwith.
    
19. As to the remaining accused Stanley Maiu Kapul no application has been made on his behalf and his case will continue with his defence case to open now.
    

Orders Accordingly

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the defendant