State v Onne [2019] PGNC 354; N8048 (16 August 2019)

N8048

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 720 OF 2018

THE STATE

V

JIMMY DANIEL ONNE

Waigani: Koeget, J
2019: 16^th August.

CRIMINAL LAW- Indictable offence – Armed robbery pursuant to section 386(1), (2)(a)(b) of the Code – Unlawful use of a motor vehicle pursuant to section 383(1) of the Code – Sexual Penetration pursuant to section 347(1) of the Code – No Case To Answer Submission made pursuant to principles in State –v- Paul Kundi Rape and State –v- Roka Pep No (2) – No evidence connecting the accused to the offence charged. The accused is entitled to an acquittal.

FACT

On 27^th April 2017, at about six o’clock in the afternoon at South Pacific International Academy located along Boera and Papa road, on the outskirts of Port Moresby city, the accused Jimmy Daniel Onne and accomplices robbed the complainant Abigail Nikkel of personal items and stole her Honda CRV motor vehicle.

The State alleged that the accused and accomplices were armed when they broke and entered the dwelling house of the complainant at South Pacific International Academy. They charged at the complainant with their factory and home-made guns and demanded keys to her motor vehicle.

The accomplices stole mobile phones, laptops, and other personal items of the complainant and during the hold-up one of the accomplices inserted fingers into the complainant’s vagina.

Plea

The accused pleaded not guilty to the charge.

Counsel:

Ms T. Aihi and Mr R. Galama, for the State
Ms A. Peter, for the Accused

TRIAL

16^th August, 2019

1. KOEGET J: INTRODUCTION: The accused is charged with one count of Armed Robbery pursuant to section 386(1), (2)(a) (b) of the Criminal Code Act, and one count of Unlawful use of a Motor Vehicle pursuant to section 383(1) of the Code.

2. He is further charged with one count of Sexual Penetration pursuant to section 347(1) of the Code. The State invoked section 7(1)(a) of the Code as the accused was in company of others at time of commission of the offences.

3. The complainant in this case is an expatriate female and after the apprehension of the accused, she left Papua New Guinea and returned to her home country. It has been difficult to locate and bring her to the country in time for the trial of the case. So in the circumstances, the State offered no evidence.

4. The defence counsel responded with a NO CASE TO ANSWER SUBMISSION pursuant to the principles set out in the case of The State –v- Paul Kundi Rape [1976] PNGLR 96 and The State –v- Roka Pep (No.2) [1983] PNGLR 287 .

5. The question the court is to decide is whether on the evidence as it stands the accused can be lawfully convicted. The test is whether the evidence so far adduced by the State support essential elements of the offence.

6. The State offered no evidence so there was absolutely no evidence connecting the accused to the offence charged. The No Case to Answer Submission is upheld. He is entitled to an acquittal. The accused is ordered to be discharged from the indictment.

ORDER

(1) The accused is released from Bomana Corrective Institution Services forthwith.

Accordingly ordered.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused