State v Luckie Junior [2019] PGNC 55; N7771 (18 March 2019)

N7771

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1127 OF 2017

THE STATE

V

ALBERT LUCKIE JUNIOR

Kimbe: Miviri J
2019: 18^th March

CRIMINAL LAW – PRACTICE AND PROCEDURE – Attempted Murder S304 CCA – Trial – No case submission – Prima Facie – Accused at scene of shooting– armed with a pistol – discharged at victim – injury emanating from shot on left shoulder – intent to kill – case to answer – Attempted murder.

Facts
Accused was armed with his licenced Glock semi-automatic pistol discharged at the victim Shedrick Kamara injurying him in the shoulders for which he woke up at the hospital.

Held
Prima facie
Accused identified at scene of shooting
Armed with a pistol
Discharged at victim
injured
Intent to murder
Case to answer for attempted murder

Cases Cited:

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

The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), [1983] PNGLR 287; [1983] PNGLR 287 (14 September 1983)

Counsel:

E Kave, for the State
J Waiwai, for the Defendant

RULING

18^th March, 2019

1. MIVIRI J: This is the Ruling on a No Case submission that has been made by the accused through counsel after closure of the State case.

Charge

2. He has been charged with attempted murder pursuant to section 304 of the Code in that on the 23^rd day of June 2017 at Aling, Kimbe he shot and wounded one Shedrick Kamara with a pistol which is before the court as Glock 9mm serial number NUP 772. The injury was on the left shoulder of the victim who woke up in the hospital bed in Kimbe General Hospital. He intended to kill the victim.

State Case

3. At the closure of the State case the following evidence are exhibits:
   • (i) Exhibit S1 the record of interview dated the 4^th July 2017 in English with the accused by police informant Superintendent Jim Namora 9 page document.
   • (ii) Exhibit S2 (a) is a photograph of a white Toyota Landcruiser registered number KAG 907.
   • (iii) Exhibit S2 (b) photograph of the Glock 9mm pistol serial number NUP 772.
   • (iv) Exhibit S2(c) photograph of the 9mmGlock pistol with magazine and a pump action saw off shotgun.
   • (v) Exhibit S2 (d) photograph of camouflage uniform with the sawn off pump action shotgun.
   • (vi) Exhibit S2 (e) is photograph of the exit wound on the left shoulder of the victim Shedrick Kamara.
   • (vii) Exhibit S2 (f) four photographs of Shedrick Kamara the victim in hospital with the wounds of the shoulder entry and exit woulds plastered.
   • (viii) Exhibit S2 (g) Photograph of the scene of the shooting where the accused is alleged to have discharged the Glock 9 mm pistol (pictured) at the victim,
   • (ix) Exhibit S3 Statement of the witness Peter Mirio who corroborated the record of interview against the accused.
   • (x) Exhibit S4 is the firearm licence of the accused with the Glock 9 mm pistol serial number NUP 722.
   • (xi) Exhibit S5 is the statement of the informant Jim Namora in respect of the conduct of the record of interview with the Accused.
4. The tale of all these evidence is that on the 23^rd June, 2017 at Aling, Accused Albert Lukie Junior was armed with a Glock 9 mm pistol serial number NUP 772 that he discharged four times at the immediate scene where the accused was. One of the shots went through the left shoulder of Shedrick Kamara injuring him there for which he was hospitalized at Kimbe General Hospital as he woke up from there after he was shot that night.
5. The victim has given evidence on oath identifying the accused and that he shot at him with the pistol injuring him. This is the State case.

No case submission

6. 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 that there is no evidence prima facie that victim was injured from a gunshot wound. There is neither medical evidence nor ballistics prima facie to confirm that the victim was indeed shot as he contended by a gun in this case the 9mm Glock pistol serial number NUP 772 licenced to the accused.

Issue

7. The issue is:

(a)Whether there is prima facie evidence that the accused is identified?

(b)That he intended to kill Shedrick Kamara

(c) And did injure him pursuant.

State reply

8. The State has submitted that there is prima facie a case to answer. Accused was identified he was with the subject 9mm Glock pistol at Aling where Shedrick Kamara was and that he has admitted discharging it but not at him.
9. I remind myself that I am not determining guilt or innocence here. I am not weighing the evidence in the sense of assessing credibility and the lack as that belongs to the end when all the evidence has closed from either side of the case. Here what I am required by law to do is to see whether prima facie there is evidence that Accused was there where Shedrick Kamara (victim) was with a firearm in this case a Glock 9 mm serial number NUP 772 and whether he did discharge that pistol and whether as a result victim suffered injuries pursuant following.

Ruling

10. Here I find prima facie that accused was in possession of a glock 9mm serial number NUP 772 licenced to him which he held on that night 23^rd June 2017 at Aling and he fired it four times one of which injured the victim in the left shoulder for which he woke up at the Kimbe General Hospital. He has made admissions in the record of interview to this fact which is before the court.
11. There is prima facie intent to kill and which intent is carried out in the injury to the victim Shedrick Kamara.
12. There is a case to answer of attempted murder against the accused Albert Lukie Junior of Baai Rabaul that he on the 23^rd of June 2017 at Aling in Papua New Guinea attempted unlawfully to kill one Shedrick Kamara. There is only the State’s evidence and at the closure the accused can be lawfully convicted without him going into evidence. He has a case to answer accordingly.

Ordered accordingly.

Public Prosecutor: Lawyer for the State

Emam Lawyers : Lawyer for the Defendant