Independent State of Papua New Guinea v Mition [2023] PGNC 67; N10187 (23 February 2023)

N10187

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1267 AND CR 1268 OF 2021

BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:
RAY MITION

AND:
LORAINE MARK

Waigani: Tamade AJ
2023: 20^th & 23^rd February

CRIMINAL LAW – trial – two police officers charged with the offence of robbery – Criminal Code – Sections 386 (1)(2)(a)(b) and 7 (1)(a)(c)(d) –police raid – allegations that the accused persons as police officers stole store properties and cash money – no evidence to establish the elements of robbery – no case to answer – accused persons acquitted

Cases Cited:

State v Delga Puri and Tapri Maip [1982] PNGLR 395
State v Wanjil [1997] PGNC 16; N1516
State v Paul Kundi Rape [1976] PNGLR 96
The State v Tom Morris [1981] PNGLR 493
The State v Lasebose Kuriday [1981] PGNC 28; N300

Legislation:

Criminal Code Act

Counsel:

Mr Jonathan Siminji and Ms Linda Maru, for the State
Mr Jimmy Rupavele, for both Accused

23^rd February, 2023

1. TAMADE, AJ: The trial of this matter commenced on 15 February 2023. Both accused were charged pursuant to section 386(1)(2)(a)(b) and (c) of the Criminal Code and section 7(1)(a)(c) and (d) of the Criminal Code. Both accused denied the charge and the Prosecution proceeded to call its witnesses. At the close of the Prosecution case, Mr Rupavele proceeded to make a No Case to Answer Submission based on both limbs in the State v Paul Kundi Rape^[1] that the Accused have a no case to answer as the evidence does not support the elements of the offence and or for the Court to stop the case on the second limb that the evidence is lacking in weight and reliability that no reasonable tribunal could safely make a conviction.
   
2. The allegations against both accused is that on 20^th May 2019, both accused as policeman and woman in the company of other police officers attended at the Kopiago Block, Six Mile, Saraga in the National Capital District and committed robbery by stealing from one Albert Keleko, store properties valued at K5, 505.77, cash in the sum of K11, 854.00, and personal properties to the value of K1 499.60. It is also alleged that at the time of stealing the properties, both accused used actual violence on Albert Keleko to obtain the stolen goods.
   
   1. The offence of robbery pursuant to section 386 (1)(2)(a)(b) and (c) of the Criminal Code is as follows:
      

386. THE OFFENCE OF ROBBERY.

[123](1) A person who commits robbery is guilty of a crime.

Penalty: [124]Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2)[125] [126]If a person charged with an offence against Subsection (1)–

(a) is armed with a dangerous or offensive weapon or instrument; or
(b) is in company with one or more other persons; or
(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life.

2. Section 7(1)(a)(c) and (d) of the Criminal Code is in the following terms as underlined:
   

7. PRINCIPAL OFFENDERS.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:–

(a) every person who actually does the act or makes the omission that constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) every person who aids another person in committing the offence;
(d) any person who counsels or procures any other person to commit the offence.

3. The definition of robbery under section 384 of the Criminal Code is as follows:
   

384. DEFINITION OF ROBBERY.

A person who steals anything, and, at, immediately before or immediately after, the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen is said to be guilty of robbery.

4. The definition of stealing is under section 365 of the Criminal Code as follows:
   

365. DEFINITION OF STEALING.

(1) In this section–

“owner”, in relation to a thing, means–

(a) the owner or a part-owner of the thing; or
(b) any person having possession or control of, or a special property in, the thing;

“special property” includes–

(a) any charge or lien on the thing in question; and

(b) any right arising from or dependent on holding possession of the thing in question, whether by the person entitled to the right or by some other person for his benefit.

(2) Subject to the succeeding provisions of this Code, a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.

(3) The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.

(4) A person who takes or converts anything capable of being stolen shall be deemed to do so fraudulently if he does so with intent–

(a) to permanently deprive the owner of the thing of it; or
(b) to permanently deprive any person who has any special property in the thing of that property; or

(c) to use the thing as a pledge or security; or

(d) to part with it on a condition as to its return that the person taking or converting it may be unable to perform; or

(e) to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; or
(f) in the case of money, to use it at the will of the person who takes or converts it, even if he intends to afterwards repay the amount to the owner.

5. The No Case to Answer is premised on the accused right on the presumption of innocence under section 37(4) (a) of the Constitution and the right to silence under section 37(10) of the Constitution. The State therefore has a duty to lead the evidence on the offence which are the elements of the offence and in the same attempt, put forth sufficient evidence that should convince the Court that it is sufficient to sustain the charge.
   
6. The question as to whether, the State has proved its case beyond reasonable doubt is a question properly asked at the end of the entirety of the case after both the State and the Defence have produced their evidence. ^[2]The Court held in the case of The State v Tom Morris^[3] that:
   

“It would be quite inappropriate to consider whether I (Judge) have a reasonable doubt at the close of the prosecution case. If the decision were that I was left in no reasonable doubt at this stage, the burden of proof would in effect shift to the accused who would then have to raise the doubt himself. That of course is in the face of clearly established principles of criminal law.”

7. In the case of The State v Lasebose Kuriday^[4], the Court said this, in regard to the need for the Court to weigh up evidence; Finally, it appears to me to be of fundamental importance to a fair trial in our system as in any common law system, that the judge as tribunal of fact never be required to weigh up the evidence more than once, and then only when all of the evidence is in. See Woolmington v. D.P.P.[dxxxvi]², It follows, I think, that in our system any weighing of the evidence by the judge or magistrate, required by a “no case” submission at the close of the State case, should be kept to the absolute minimum.
   
8. Perhaps making a cursory inquiry into the evidence led by the State is the task of the Court on the two limbs in the Paul Kundi Rape case that:
   
   1. As to the first limb which raises a question of law, it is premised on the foundation that the accused cannot be lawfully convicted if there is no scintilla of evidence to support one or some of the elements of the offence. It is proposed that the Court has no weighing up to do in this instance.
      
   2. As to the second limb which raises a question of fact where the court has the discretion to stop the case from proceeding any further, the Court has the duty to do some weighing up that on the evidence provided, no Court could reasonably arrive at a conviction and therefore put an end to the criminal process.
      
9. The outcome of both limbs of the Paul Kundi Rape case effectively is the same wherein the Accused shall not be called upon to answer the case and is acquitted, but the distinction is important, one limb is there is no case to answer and the second limb is that of the Court exercising its discretion to stop the case based on the lack thereof of evidence to safely convict.
   

10. Mr Rupavela has relied on the case of State v Wanjil[5] that:

“...that were there are number of competing inferences, it is a question of fact for the judge to decide which and what inferences should be drawn, which should be rejected, which are reasonable, which are mere conjunctures and which party they should favour and at the end of the prosecution case where there are inferences inconsistent with the guilt of the accused, there is a discretion to acquit. “

11. Having heard both the State and the Defence and the submissions on the law, I now come to a decision on the No Case to Answer Application by the Defence. The State’s case is entirely dependent on the premise that the two accused as police officers were on a call out to Saraga at Six Mile in NCD and whilst attending to a complaint by Albert Kelelo that drunkards were vandalising his store, the Police committed an unlawful act of robbery by stealing from Albert Kelelo’s store cash money, store goods and personal items. Both accused are police officers. An element of robbery under section 386 of the Criminal Code is that the accused was armed with a dangerous or offensive weapon. I raised this point with Mr Siminji of the State that Police are authorised by law to carry weapons in public. At what point does a police officer’s carriage of an authorised police weapon become unlawful at the scene? Mr Siminji responded that when Ray Mition gave the orders for the Police to loot Albert Kelelo’s store, that was when the possession of the firearms by the police became unlawful. The entirety of the State’s case is on this, that Ray Mition gave the orders to loot the store and the co- accused policewoman, Lorraine Mark acted in accordance with that instruction and looted the store.
    
12. I have posed this question to the State, the allegations are not of an ordinary person on the street holding up a store with an offensive weapon on a lazy Sunday afternoon demanding goods and cash, these are police officers. The State has to satisfy the Court that the evidence is of policemen and women acting outside of their duties amounted to the elements of the offence. The evidence presented by the State is of police attending to a complaint, a member of the public throwing a projectile or an object that damaged the windscreen of the police car, Ray Mition as the driver of the police car calling for back up on the police radio and subsequently a police raid, the confiscation of goods from Albert Kelelo’s store in my opinion, was in the course of police duty.
    
13. All the witnesses by the State all confirm the same fact regarding Ray Mition as the driver of the police vehicle which attended the scene, he called for back-up as the police vehicle windscreen was shattered. He informed the people at Albert Kelelo’s store that because of their call for help, the police attended at the scene to assist them and as a result the police windscreen was damaged. He was angry about the damage to the police vehicle and demanded that they compensate the police for the vehicle damage in the sum of K5, 000.00; There is no evidence by any of the witnesses that say that he gave an order for the looting of Albert Kelelo’s store. This was proved in cross examination.
    
14. The weapons present at the scene were authorised police firearms. Police are authorised by law to carry or have in their possession firearms. The evidence shows that police fired warning shots from these firearms to chase away the drunkards. There was nothing unlawful about using those firearms in this way. There is no evidence to say the firearms were used to threaten or harm any civilian.
    
15. There is also no evidence that say that Loraine Mark acted on the instructions of Ray Mition to take goods out of the store. If there is no evidence that Ray Mition gave an order for the looting, police action in regard to taking store goods is far removed from Ray Mition. The evidence regarding Lorraine Mark is confusing to say the least from the witnesses accounts as they say she was present at the scene with other police officers, but whether, she came in the first vehicle, went inside the store or stood outside or what she took is very unclear and there is unreliable evidence from these witnesses.
    
16. The definition of stealing is to covert to one’s use as per section 365 of the Criminal Code Act. There is no clear evidence from the State’s witnesses to confirm this element of robbery. If this was a police operation, weren’t the goods taken away to the police Station as exhibits? There was other policemen in the raid, when did conversion of the goods happen?
    
17. Dala Albert said in cross examination that a policeman asked her to take all her valuables in the house before they lock up the house. This is consistent with what she stated in her written statement. That tells me that it is a police raid, police were prudent to ask her to take any of her valuables before they lock up the house.
    
18. The entirety of the case against Ray Mition and Lorraine Mark cannot be sustained on a foundation of law as the evidence is nowhere near establishing the elements of robbery under the offence presented in the indictment against both accused. The no case to answer is therefore upheld.
    
19. The Court therefore makes the following orders:
    
    1. The Application on No Case to Answer by the Defence is upheld on the first limb of the State v Paul Kundi Rape case.
       
    2. Ray Mition and Loraine Mark do not have a case to answer and are therefore acquitted of the charge of robbery pursuant to section 386(1)(2)(a)(b) and (c) of the Criminal Code and section 7(1)(a)(c) and (d) of the Criminal Code.
       
    3. Any bail bonds shall be refunded forthwith.

________________________________________________________________
Office of the Public Solicitor: Lawyers for both Accused
Office of the Public Prosecutor: Lawyers for the State

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^[1] [1976] PNGLR 96
^[2] See State v Delga Puri and Tapri Maip [1982} PNGLR 395, State v Paul Kundi Rape (Supra N1)

[3] [1980] PGNC 87; [1981] PNGLR 493 (28 May 1980)
[4] [1981] PGNC 28; N300 (18 June 1981)
[5] [1997] PGNC 16; N1516 (24 February 1997)