State v Wani [2021] PGNC 633; N9700 (17 September 2021)

N9700

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 272, 273 & 274 OF 2020

BETWEEN:
THE STATE

AND:
OWEN WANI

AND:
ROGER AROS

AND:
JOSHUA KUMOGA

Vanimo: Rei, AJ
2021: 14^th, 15^th & 17^th September

CRIMINAL LAW – Practice and Procedure – Trial commenced – Police Officers gave evidence – Witnesses refused to come forward – no case to answer – accused persons acquitted.

Cases Cited:

The State -v- Paul Kundi Rape (No2) [1976] PNGLR 96

Legislations Cited:

S.386 (1) (2) (b) of the Criminal Code Act

Counsel:

Ms. D. Ambuk, for the State
Mr. P. Moses, for the Defence

17^th September, 2021

1. REI AJ: BACKGROUND: This matter was fixed for trial on the 15^th of September 2021.

2. At the commencement of the trial, the three accused persons: Owen Wani, Roger Aros and Joshua Kumoga were present.

3. The State presented an indictment in which it alleges that:

“ROGER AROS of WINJUAN, YANGORU DISTRICT and JOSHUA KUMOGO of KAIRURU, WEWAK LOCAL DISTRICT and OWEN WANI of TOREMBI, WOSERA-GAWI DISTRICT all of EAST SEPIK PROVINCE stands charged that they, the said ROGER AROS, JOSHUA KUMOGU and OWEN WANI on the 29^th day of August 2019, at IMBIO OIL PALM BASE, VANIMO, WEST SEPIK PROVINCE in PAPUA NEW GUINEA stole from Ocean Paradise Limited with actual violence monies valued at Three Hundred and Forty Thousand, Seven Hundred and Ninety-three Kina and Twenty Toea (K340,793.20) the property of Ocean Paradise Limited.

AND AT THAT TIME they, the said ROGER AROS, JOSHUA KUMOGU and OWEN WANI were in the company of other persons.”

4. A brief statement of facts was read to the accused persons alleging that on the 29^th of August 2019, the three (3) accused persons carried out an armed robbery at the Ocean Paradise Limited at Imbio Oil Palm Base in Vanimo, West Sepik Province and stole, among other things, the sum of K340,793.20, property belonging to Ocean Pacific Limited.

ARRAIGNMENT

5. The contents of the indictment and the facts were read out to the accused persons and were asked to enter a plea. They were all charged under Section 386(1)(2)(b) of the Criminal Code Act.

6. Each person entered a plea of not guilty whereupon the trial proceeded.

7. The plea of not guilty was consistent with instructions of each accused persons per the defence Counsel Mr. P. Moses.

WITNESSES

8. The State called two witnesses who are officers of the Royal Papua New Guinea Constabulary and gave evidence.

9. The State witnesses are Constable Jeremy Kopi and Constable Raphael Kua who gave evidence in which they stated quite clearly that they were instructed to investigate the complaint of the armed robbery of Ocean Pacific Trading which allegedly took place at Imbio Oil Palm Base Vanimo, West Sepik Province on 29^th August 2019.

10. They did not give evidence of what happened on the 29^th August 2019 at Imbio Oil Palm Base Vanimo, West Sepik Province.

11. When the last of the two Police witnesses finished giving evidence; Sgt Raphael Kua, the State through Ms. D. Ambuk made an application that summonses be issued to summon four (4) of its witnesses to give evidence on Friday 17^th September 2021 at 9:30 am.

12. Orders were granted on 15^th September 2021 having the effect that the four (4) State witnesses appear on Friday 17^th September 2021 to give evidence.

13. When the matter returned on Friday 17^th September 2021, Ms. Ambuk submitted that the State will call no further witnesses and that the four (4) witnesses who were summoned to appear to give evidence have refused to co-operate.

14. Ms. Ambuk submitted further that she was instructed that the witnesses do not want to have anything to do with the case.

15. The State then closed its case. The matter was adjourned to 1:30 pm for Mr. P. Moses to make a no case submission.

NO CASE SUBMISSION

16. Upon the resumption of the matter at 1:30 pm on 17^th September 2021, Mr. Moses made submissions that the case be dismissed as there is no evidence to support the State’s case.

17. He further submitted that the Police officers who gave evidence were not at the scene of the crime and witnessed what then happened and were in no position to give direct evidence.

18. In response to those submissions Ms. Ambuk stated that she had no submissions in rebuttal.

DECISION

19. At the commencement of this Circuit, I did point out to Counsels of the practical problems encountered in these provinces, especially in Maprik and Aitape, with regards to witnesses not willing to come forward to testify.

20. These comments became a reality in this case when certain State witnesses bluntly refused to come forward to give evidence.

21. The evidence given by the two (2) Police witnesses do not in any way connect the three (3) accused persons to the offence as charged.

22. They gave evidence on how they effected arrests and steps associated thereto.

23. No eye witnesses were called to give evidence.

24. The oft cited case of The State -v- Paul Kundi Rape (No2) [1976] PNGLR 96 was relied upon by the defence Counsel as authority in this matter.

25. That case stands for the proposition that:

“..... where a Judge decides there is no case to answer, it has discretion to stop a case at the close of all the evidence in appropriate circumstances: this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that a reasonable tribunal could safely convict.....”

26. The elements to be proved in this armed robbery case are:
    
    • (a) the accused persons were involved;
    • (b) they were in the company of each other;
    • (c) they stole property from Ocean Paradise Limited, properties valued in cash K340,793.20; and
    • (d) they were armed with dangerous weapons.
      

27. No direct evidence was given in Court as to the involvement of the three (3) accused persons in the alleged crime. None of the above elements were satisfactorily proven on evidence.

28. In essence there is no evidence to suggest that this matter should continue to be prosecuted.

29. In all fairness to the accused persons, this case should be stopped here despite of the genuine efforts of Ms. Ambuk.

30. The Court therefore orders that:

(i) the case is dismissed; and
(ii) the three (3) accused persons be forthwith discharged from Vanimo prison.

______________________________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendants