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State v Gore (No 1) [2004] PGNC 122; N2639 (13 August 2004)

N2639

PAPUA NEW GUINEA

[N THE NATIONAL COURT OF JUSTICE]

CR NO. 394 OF 2002

THE STATE

V.

ATAU GORE (No. 1)

Lae: Manuhu, AJ
2004: August 12 & 13

RULING ON NO CASE SUBMISSION

CRIMINAL LAW – Particular offence – Armed robbery – No case to answer submission – Constitutional implications - Description of property – Threat of violence - Principal offender.

CRIMINAL LAW – Particular offence – Armed robbery – Alternative charge – Attempted robbery.

Cases cited:
State v. Roka Pep [1983] PNGLR 287.
State v. Paul Kundi Rape [1976] PNGLR 96.
Lacis v. Cashmar [1969] 2 QB 400.

Counsel.
Messrs. J. Pambel and J. Done, for the State.
Messrs. T. Gene and R. Yombon, for the Accused.

13 August, 2004.

MANUHU, AJ.: This is a no case to answer submission after the close of the prosecution’s case in an armed robbery trial. The basis for the application are that first, there is no evidence to support the element of stealing; and, secondly, there is no evidence of threat of violence by the accused.

The Accused is charged that on 27th October 2001 at Three Mile, Lae, he stole from Suase Vanbruggen with threat of violence monies in the amount of K150.00 in cash the property of the said Suase Vanbruggen ("victim").

For the purpose of arraignment, and as brief as possible, the prosecution states that at around 9.30am, the victim was driving a "mini Dyna" towards Three Mile when a man, armed with a home made gun, ran onto the road and forced the victim to stop. The gunman then approached the victim and forcefully took the car keys. He then demanded money but the driver did not have any money to give away. At this time, the accused approached the vehicle and was demanding money from two passengers seated at the back of the vehicle. As this was happening, a Guard Dog Security vehicle pulled up at the back and a security guard came out. When the accused and the gunman saw this they tried to flee from the scene. The accused was chased by the guard and was thereby apprehended and handed to police.

It should be noted that the statement of facts does not refer to any monies being stolen, as particularised in the indictment. Likewise, the victim has said that, except the car key, which was taken by the gunman, no money was stolen from him. Accordingly, Counsel for the accused submits that there is no evidence to support the element of stealing. Counsel for the accused further submits that the accused was not responsible for stopping the vehicle and was not armed with any weapon. According to the evidence, he simply approached the passengers and asked for money. Hence, the second argument that he did not threaten anyone.

The relevant principles on the no case to answer submission are settled. Counsel for the accused referred me to the case of State v Paul Kundi Rape[1] and State v Roka Pep (No 2)[2] and pointed out, with the concurrence of the prosecution, that the question the court should ask is "not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands the accused could lawfully be convicted." I will add that in a no case submission no real weighing of the evidence is required.

The evidence, in relation to the allegation of threat of violence, in my view, is sufficient. Most, if not all, of the threats were made by the gunman but when the accused, at that point in time, approached the two passengers seated at the back and asked for money, it is open to the court to conclude that the accused and the gunman were acting together. Besides, the accused approached the two passengers who were already placed by the gunman in a situation of fear. Thus, the accused took advantage of the threatening circumstance created by the gunman. Consequently, by the operation of ss. 7 and or 8 of the Criminal Code[3] the accused would be regarded as a principal offender. Accordingly, I reject the argument that the accused did not threaten the victim or the passengers.

In relation to the remaining ground, the prosecution acknowledges that there is no evidence that K150.00 was stolen from the victim but submits nonetheless that the stealing of the car key from the victim by the gunman is sufficient proof of property stolen during the robbery. This, it is argued, is sufficient evidence to connect the accused through the gunman, by virtue of ss. 7 and or 8, to the element of stealing.

If that is the case, what is the object of requiring relevant particulars of a charge in the indictment? Under s. 528 of the Criminal Code:

"(1) An indictment shall be instituted with the name of the court in which it is presented, and must ... set forth the offence with which the accused is charged -

(a) in such a manner; and
(b) with such particulars as to –

• (i) the alleged time and place of committing the offence; and
• (ii) the person (if any) alleged to be aggrieved; and
• (iii) the property (if any) in question,
  

as is necessary to inform the accused of the nature of the charge." (my emphasis)

It seems to me, therefore, that the accused has the right to be informed of the nature of the charge, and this right must be accorded to him at all times. In fact, the Constitution guarantees this right under s. 37(4)(b), where "a person charged with an offence shall be informed promptly in a language he understands, and in detail, of the nature of the offence with which he is charged...." Other constitutional provisions that compliment this right include s. 37 generally and s. 59(2)(principles of natural justice). This means that where there is non-compliance with s. 528, serious consequences may follow.

At the first instance, it must have been obvious to the prosecution, in particular, that the stealing of K150.00 could not be proved. While such particular was stated in the indictment, the statement of facts for the purpose of arraignment did not make mention of it. Naturally, the prosecution, which bears the burden of proof, should have applied to amend the facts or amend the indictment before the plea was taken. It did not, and it cannot at this stage when the accused has already made a no case submission. To amend at this stage either on application or by the court on its own motion would be contrary to the general scheme of the principles of natural justice as enshrined in the Constitution and, in particular s. 528.

The same constitutional considerations are applicable in considering the main issue in this case, which is whether the alleged stealing of K150.00 could be substituted by the stealing of the car key? In my view, this is a question of degree and fairness.

With little assistance from both counsel and given the constraints of time, I know that in stealing of money cases, the prosecution need not prove the specific amount alleged in the indictment. Similarly, where a number of properties is alleged in the indictment to have been stolen, proving some or one of them would be sufficient.

I have encountered difficulties in locating cases similar to this case, except a foreign jurisdiction’s case of Lacis v. Cashmar.[4] In that case, the defendant went to a shop and took goods worth 185 Pounds, which included cigarettes valued at 174 Pounds. The cashier mistakenly charged him 85 Pounds, which was 100 Pounds less, and the defendant knowingly obliged. He was convicted for stealing cigarettes valued at 100 Pounds, but cigarettes were not the only goods taken. On appeal, therefore, it was argued that the charge must be bad if it is impossible to identify the property allegedly stolen.

The conviction was quashed on other grounds but Lord Parker, CJ. said of this argument:

"... you cannot say which of the cigarettes were stolen and which were properly bought and paid for. They cannot be specified, they cannot be identified. That as it seems to me is a real difficulty and for my part I do not see any way of avoiding it. That alone shows that the circumstances that arose in this case do not enable a prosecution for larceny to take place."

This case is worse than the cited case. There is no identification at all of the property alleged in the indictment to have been stolen. It is alleged in the indictment that K150.00 was stolen from the victim. The victim was asked a number of times about the money and he maintains that no money was taken from him. In my view, this is a serious departure from the property description in the indictment. Stealing K150.00 is not the same as stealing a car key.

I also refer to what I have said about the scheme of the constitutional provisions in relation to an accused person’s right to be informed of his charge. I am of the view that it is unfair that the accused should, after the close of the prosecution’s case, be subjected to a completely new allegation. The stealing of the car key, in the circumstance of this case, cannot be a fair substitute for the alleged stealing of K150.00.

Ultimately, I find that there is no evidence supporting the element of stealing as alleged in the indictment. Naturally, I must acquit the accused forthwith. However, the failure to prove the element of stealing, by virtue of s. 542, is not entirely fatal to the prosecution’s case. That section states:

"(1) On an indictment charging a person with an offence of which the causing of some specific result is an element, the may be convicted of any offence of which an intent to cause that result, or a result of a similar but less injurious nature, is an element.

"(2) On an indictment charging a person with an offence of which an intent to cause some specific result is an element, he may be convicted of any offence that is established by the evidence and of which the unlawful causing of that result is an element."

On the basis of these provisions, the offence of attempted robbery under s. 387 of the Criminal Code is available as an alternative charge. While the element of stealing cannot be sustained in this case, there is sufficient evidence supporting the element of intention to steal. On the evidence as it stands, the accused and the gunman were still demanding money from the victim and or the passengers when they were disturbed by the arrival of the Guard Dog Security vehicle and the appearance of the guard.

Accordingly, by virtue of s. 542, I find that the accused has a case to answer on the alternative charge of attempted robbery under s. 387. The trial will proceed accordingly.

Orders accordingly.
_______________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Accused : Paraka Lawyers

^[1] [1976] PNGLR 96.
^[2] [1983] PNGLR 287.
^[3] Ch. No. 262.
^[4] [1969] 2 QB 400.