State v Kapak [2022] PGNC 246; N9733 (9 June 2022)

N9733

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 63 & 64 OF 2021

BETWEEN:
THE STATE

AND:
STEWARD KAPAK AND ALEX PASO

Maprik: Rei, AJ
2022: 14^th March, 5^th, 8^th & 9^th June

CRIMINAL LAW - Practice & Procedure – armed robbery of a motor vehicle – identification – no case submission – insufficient evidence – case dismissed – accused persons discharged.

Cases Cited:
Papua New Guinean Cases

Paul Kundi Rape -v- The State [1976] PNGLR 96
John Beng -v- The State [1980] PNGLR 331

Overseas Cases

Barca -v- The Queen [1975] HCA 42; (1976) 50 ALJR 108 at p. 117
McGreevey -v- DPP [1973], WLR 276

Legislation:

Section 386(1)(2) (a)(b)(c) of the Criminal Code

Counsel:

Mr. Andrew Kaipu, for the State
Mr. Dan Siki, for the Defence

RULING

9^th June,2022

1. REI AJ: The State previously presented an indictment against the two accused persons on 14^th March 2022 and deferred arraignment to the next Circuit of the National Court of Justice in Maprik.
   
2. An Order was then made that the case be given priority in the next Circuit.
   
3. At the commencement of this Circuit, Mr. Kaipu submitted that the matter is ready to proceed. Mr. Siki agreed.
   
4. The brief facts of the case as alleged by the State are that on the 21^st of April 2020, the two (2) accused persons held up a PMV registered P.1982J at Hayfield Airport, Maprik, with the use of homemade guns and bush knives, drove it to a nearby village along a dirt road and robbed the passengers and crew members of their valuable items.
   
5. Some of those items were then left with a woman who is claimed to be the mother of one of the accused persons, Passo Alex, including a 10kg rice bag which was removed by the Police. The name of that woman was not given in evidence nor was she called to give evidence.
   

ARRAIGNMENT

6. The trial commenced this morning in which the accused persons were arraigned on a charge of robbery laid under Section 386(1)(2)(a)(b)(c) of the Criminal Code.
   
7. Both entered plea of not guilty when the contents of the indictment and brief facts were read out to them.
   

OPENING ADDRESS

8. In his opening address, Mr. Kaipu for the State submitted that the issue in the matter is whether the accused persons were identified as perpetrating in the crime.
   
9. Mr. Siki for the defence agreed.
   

EXHIBITS

10. At the commencement of the trial and by consent Mr. Kaipu tendered the following documents as exhibits:
    
    1. Exhibit PA1 – Record of Interview (pidgin version) – Steward Kapak
    2. Exhiibit PA2 – Record of Interview (English version) – Steward Kapak
    3. Exhibit PB1 – Record of Interview (pidgin version) – Alex Paso
    4. Exhibit PB2 – Record of Interview (English version) – Alex Paso
    5. Exhibit B – Barring Bag – belonging to Tom Louis
       
11. By consent he also tendered the following items in evidence through Constable Z’imtako Kirren Neko for identification purposes only:
    
    • - ID E – Rice bag one (1)
    • - ID F – Rice bag two (2)
    • - ID G – Bag with items
      

STATE WITNESSES

12. The State called three (3) witnesses who are Tom Louis Kawi, Ward Member for Wosera/Gawi who was a passenger in the vehicle registered P.1982J trading as “Narambui”.
    
13. The other two witnesses are the investigating officer Constable Benson Lausak and Constable Z’Mitako Kirren Neko.
    
14. Tom Louis Kawi gave sworn evidence that he was a passenger in the vehicle registered P.1982J on the 21^st of April 2020 which was held up at gun point at Hayfield Airstrip, Maprik District and that his carry bag containing his NID Card, diary book and other items of value was robbed.
    
15. This witness was not asked in examination-in-chief whether he can identify either or both accused to have participated in the commission of the crime.
    
16. In cross examination, Mr. Siki asked if he could identify either or both of them to which he emphatically said he could not.
    
17. I also asked the same question to this witness. The same response was given.
    
18. Constable Benson Lausak and Constable Z’Mitako Kirren Neko did not identify the two accused persons although Constable Z’Mitako Kirren Neko said in evidence in chief that both were arrested because they are known in the local area as people carrying out armed robbery and other criminal activities in the local area.
    
19. No other passengers on board or the driver or crew or owner of the PMV registration P.1982J was called to testify as to the identification of the accused.
    
20. The nearest evidence of identification of the accused as given by Constable Z’Mitako Kirren Neko who said that he heard that the accused are the trouble makers in the local area.
    
21. At the close of the State case Mr. Siki submitted that there is no evidence against the two (2) accused persons as such the case should be stopped relying on the first limb of the principles stated in The State -v- Paul Kundi Rape [1976] PNGLR 96 “that the court has discretion to stop the case if the evidence so far presented by the state is lacking in weight and unreliable as it stands that no reasonable tribunal can safely convict. In a no-case application the Court is under no duty to weigh the evidence, however, the Court may assess the evidence as it stands, and decide as to whether it can be safely relied upon to carry a conviction.”
    
22. Mr. Kaipu submitted that there is no direct evidence before the Court but submitted an inference be drawn from the evidence thus far adduced in Court that the two accused persons were involved on the basis there is evidence of the goods stolen and that I draw an inference based on circumstantial evidence that the accused persons should be called upon to give evidence.
    
23. If I am to do that, I would be weighing the evidence to make a finding of guilt which I am not allowed to do.
    
24. The proposition that circumstantial evidence connects the accused persons to the allegation should be left to the conclusion of the matter when the defence had also given evidence and must be weighed on the balance – Barca -v- The Queen [1975] HCA 42; (1976) 50 ALJR 108 at p. 117, McGreevey -v- DPP [1973], WLR 276 adopted in this jurisdiction in John Beng -v- The State [1980] PNGLR 331.
    
25. It should not be done at the stage when the prosecution closes its case and a no case submission is made.
    
26. If I am to adopt this submission, I would be seen to be pre-maturely weighing the entire evidence but for which the defence had not yet given evidence.
    
27. I have considered the evidence adduced thus far in Court and have concluded that there is insufficient evidence of identification of the accused persons involved in this case. The principal witness for the State, a Tom Louis Kawi could not identify the two (2) accused persons both in examination in chief and cross examination.
    
28. There is therefore insufficient evidence of identification of the involvement of the accused persons and, applying the principles in The State -v- Paul Kundi Rape (supra), the case is dismissed, the accused persons discharged forthwith and bail monies to be refunded.
    
29. The Orders are that:
    
    • (i) the case is dismissed;
    • (ii) Stewart Kapak and Paso Alex are acquitted and discharged;
    • (iii) bail monies be refunded forthwith.
      

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