N6428
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 649 OF 2013
CR No.1631 OF 2015

THE STATE
V
NICKY PAUL

Alotau: Toliken, J
2016:  05th, 06th July

CRIMINAL LAW – Practice and Procedure – No case submission – Principle of – Stopping of case – Exercise of discretion to stop – Accused has no case to answer –Acquitted and discharged.
 
Cases Cited:
Kundi Rape v The State [1976] PNGLR 96

Counsel:    
H Roalakona, for the State      
P Palek, for the Accused

RULING ON NO CASE SUBMISSION
06th July, 2016
1.	TOLIKEN	 J.	The accused Nicky Paul  stands indicted for one count of armed robbery in contravention of Section 386(1)(2)(a)(2)  of the Criminal Code Ch. 262. He was charged that on the 13th day of December 2012, at Alotau, he stole from one Noel Tomorina and Archie Gehora cash and store goods valued at K6246.00, the property off Kedu Trading Ltd, with actual violence and at the said time he was armed with a gun, an offensive and dangerous weapon, and was in the company of other persons.
2.	The State alleged that on the date in question, between the hours of 6.00p.m. – 7.00 p.m. the accused had gone to Kedu Trading, Goilanai. He was armed and in the company of other accomplices. The accused entered Kedu Trading and held up Shop Assistants Noel Tomorina and Archie Gehora. The accused and his accomplices K5000 in cash, 20 packets of Pall Mall Green Cigarettes, valued at K820.00 and Digicel Flex Cards valued at K426.00. 

3.	The accused denied the charge.

4.	The State called 6 witnesses and tendered the accused’s record of interview with consent. 

5.	At the end of the State’s case, the defence made a no case submission, relying on the second leg of the Kundi Rape principles on no case. (Kundi Rape v  The State [1976] PNGLR 96)

6.	The no case principle is well settled. The first premise being that when  the prosecution evidence does not establish any, or all the essential elements of the charge, then  the accused, as a matter  of law, is entitled to be acquitted. 

7.	However, even if the necessary elements of the charge had been established, the court may, in its discretion discontinue the case, but only if the prosecution evidence is so lacking in weight, or so dubious and  tainted, or has been so discredited in cross examination that the accused cannot be lawfully convicted on the evidence as it currently stands. This involves a question of fact, but there is no real weighing of the facts at this stage because that can only be done at the end of the trial. The court’s discretion is therefore one that must be exercised very sparingly, if at all, and only in the most hopeless of cases.  

8.	In a no case submission the question for the court is not whether the accused ought to be convicted on the evidence as it stands, but whether he can be lawfully convicted.

9.	The salient points of the State’s evidence are as follows; on 13th December 2013, there was an armed robbery at Kedu Trading at Goilanai between 6.45 – 7.00pm. A man armed with a gun walked into the shop with his accomplices and held up Shop Assistants Noel Tomorina and Archie Gehora, and stole K5000.00 in cash, 20 packets of Pall Mall Green Cigarettes, valued at K820.00 and Digicel Flex Cards valued at K426.00 – a total value of K6246.00.  These properties were verified by the State’s first witness Gloria Warren, Kedu Trading’s Managing Director. Mrs Warren was at the office at the back of the shop when the robbery happened. She merely heard screaming from the shop and it appears that she did not enter the shop until after the event.

10.	Stanley Aitsi and Kenley Nanalo were employed by Kedu Trading as security guards and were on duty on the evening of the 13th December 2012, between 6.00 – 7.00p.m when the robbery happened. Outside the shop were women selling at the small market and there was a group of boys playing. There was sufficient lighting from the shop’s flood lights and lights in the shop itself. 

11.	Stanley Aitsi was stationed outside the shop, when, at about 6.45p.m., he noticed the robbers rush up towards the shop. One of them ran ahead, and from a distance of about 4 meters, he pulled down his face musk and slid out a gun from under his shirt. He pointed the gun at Kenly Nanalo and told him to co-operate. The man and his accomplices then went in and robbed the shop. Stanley and Kenly, fearing for their safety fled the scene and jumped into the premises at the back of the shop. Things happened so fast according to Stanley. Stanley said he was able to see the gunman’s face before he pulled the mask over his face, but, was not able to recognize any of his accomplices. 

12.	Two to three weeks after the robbery, on 4th of January 2013, Stanley was at the main bus stop in town when he observed the accused. The accused panicked when he saw him. Because the accused panicked, he immediately concluded that he was one of the people who had robbed Kedu Trading. He said that when the accused saw him he pretended to talk to an old man, who later confirmed when questioned, that he did not know the accused at all. Stanley immediately went to the Police Station. He returned with police and the accused was apprehended and taken to the Police Station. On the 17th of January 2013, Stanley Aitsi identified the accused at an identification parade at the Police Station. 

13.	In cross examination, Stanley wavered in his answers to questions about the distance between him and gunman when the latter pulled down his mask. He first said it was 2 meters then changed it to 4 meters when shown his prior statement to the police. When asked in re-examination to indicate the distance in court he said it was about the same distance from the main door to the accused dock – distance of about 9.8m to be exact. When asked by the court to clarify the point, he yet again changed his answer, this time indicating the distance to be from the witness box to the dock – approximately 6 meters.

14.	 Stanley agreed that he had not known or seen the gunman before the robbery, but when it was put to him that because of that, he could not have recognized him, coupled with the fact that things happened so fast, he said he was facing the gunman and was able to see his face.  He reiterated this when re-examined.

15.	 It is important to note that Stanley did not say that he recognized the accused as the gunman when he met him at the main bus stop some 2 -3 weeks after the robbery. Rather he merely suspected that he was, because the accused “panicked” when he saw them. He did not say, nor was he asked exactly how the accused panicked, except to say that the accused pretended to talk to an old man sitting beside him. 

16.	In cross examination Stanley admitted that he was able to identify the accused at the identification parade, not because of his prior recognition of the accused from the scene of the robbery on 13th December 2012, but from his encounter with him on 04th January 2013, when the accused was apprehended at the bus stop.

17.	Kenley Nanalo was standing outside the shop facing into the shop when the robbers came. He was observing the customers when the gun man pointed the gun at his back and told him co-operate which he did. When the robbers went into the shop Kenley and Stanley jumped over the fence into the premises. He was not able to see the gunman’s face. In cross examination, he admitted that he participated in an identification parade at the Police Station on 17th January 2013. He further admitted that he was not able to identify the accused. He said he observed that the gunman was of tall built, dark skinned and he remembered the way he walked.

18.	Noel Tomorina was employed as a shop assistant at Kedu Trading on the date and time in question. He was serving customers when the robbers entered the shop. The gunman, who he described as tall and of dark skin and wearing a black hooded mask and blue jeans and a long sleaved Yaka shirt, held him up and told him to co-operate. He further ordered him to lie down on the floor. Noel said it took him several minutes to get down, though, and when he did, he did not completely lie flat on the floor. He said he was about 1.5 meters away from the gunman. He said he was able to tell that the gunman was of dark skin through the holes in the mask. The gunman did not physically take anything, but his accomplices did. Noel did not take part in the identification parade. 

19.	Noel agreed in cross examination that he was with Stanley Aitsi at the main bus stop where they encountered the accused. He agreed that they observed the accused and the old man for some time.  When asked if the accused had been looking at their direction Noel said he had his head bowed. He also agreed that he and Aitsi formed the view that the accused was one of the robbers. Stanley went to the police station and returned with the police who apprehended the accused. 

20.	Noel agreed that he had never seen the accused before. When pressed how he could have recognised the accused as the same person involved  in the robbery, Noel said he could tell he was, because when he (the accused)noticed a birth mark on his face, he  reacted by behaving suspiciously. Noel suggested that the accused had noticed his birth mark during the robbery. Noel also said he observed that the gunman man was dark skinned. He was able to see his skin colour through the holes in the mask and from when the sleeves of his shirt rolled back when he lifted up the gun and because the mask was loose around the neck area. Noel described the eyes holes in the mask as big and the mask was loose at the bottom when he was re-examined. Noel was not invited to take part in the identification parade.

21.	Archie Gehora was also a shop assistant at Kedu Trading. He was on duty that evening. He said he had his back to the counter. When he heard the disturbance he turned around and was immediately held up by the gunman and was told to co-operate. He was about 1.5 meters from the gunman. He said that though the gunman was masked, he could tell his physical appearance. He said the eye holes in the mask were big so he could “picturize his image.” He said he stood still for a while to see what was happening before he thought of going under the counter to save himself. Archie confirmed that the mask wasn’t too tight and the holes were big enough so he could tell the physical appearance of the person, especially the face. He identified the gunman in court as the accused.

22.	Archie admitted in cross examination that he had never seen the accused before the robbery. When it was put to him that the accused was not the man behind the mask, Archie said “Inside the figure I can see him. He is the one.” Archie did not take part in the identification parade.

23.	Chief Sergeant Mwasolei is the officer in Charge of Prosecutions at the Alotau Police Station. He conducted the identification parade on 17th January 2013 at the request of the arresting officer. He described the protocols involved in the parade and the conduct of the parade itself. He was assisted by Senior Constable Ronah Lemek who was the runner. Senior Constable Lemek corroborated Chief Sergeant Mwasolei’s evidnce. The parade consisted of 3 separate rounds in which the participants were re-arranged and made to wear different clothes. Only Stanley Aitsi was able to identify the accused on all three occasions. 

24.	So is the evidence as it currently stands sufficient to warrant the accused to be called upon to answer his charge?

25.	All the necessary elements of the charge of armed robbery have indeed been established. So, the defence’s submission must stand or fall on the second premise of the Kundi Rape principles. In other words that the evidence is so dubious, lacking in weight and so damaged by cross examination that the court, can exercise its discretion to stop the case at this juncture. 

26.	I acknowledge that this is a discretion that is exercised very sparingly, if at all, and only in the most hopeless or insuperable of cases. Is this one such case?

27.	Whether or not the case proceeds beyond this point depends very much on the quality and the probative value of the State witnesses’ evidence on the issue of identification. I must be satisfied on a prima facie basis that the identification of the accused is sufficient to call him to answer his charge. 

28.	The evidence is pretty clear. A part from Stanley Aitsi who said he able to see the gunman’s  face before he pulled down his mask, and thus identifying him as the accused, the other witnesses did not see the gunman’s face. They described him as dark skinned and tall. Archie Gehora even said that he could “picturize” the gunman’s face through the holes in the mask. That is bordering on credulity and can best be described as imagination gone wild. Noel Tomorina conjecturized that the accused noticed a birth mark on his face when he encountered him and Stanley Aitsi at the main bus stop, and thus started acting suspiciously. And it must be stated here that it was because of that, that Noel and Stanley immediately concluded that the accused was involved in the robbery at Kedu. It was not because they recognised or identified him from the incident on the 12th of December 2012.

29.	Stanley Aitsi, at best would have had a mere fleeting glance at the gunman as he approached the shop with his accomplices before he pulled the mask down on his face. Even though there was sufficient lighting from the flood lights outside the shop Stanley’s observations and identification would be unreliable at this stage. This is fortified by the fact that the reason he got the police to arrest the accused at the bus stop was not because he recognized the accused as the gunman at the robbery, but because he said the accused panicked when he saw him and Noel. The fact that he did positively identify the accused at the identification parade is of no probative value at all. Stanley had seen the accused at the bus stop and was involved in his apprehension, and by the time the identification parade was conducted he knew what the accused looked like. He was not identifying him for the first time after the robbery. I do not see the usefulness of an identification parade at all in these circumstances.

30.	In conclusion, I must agree with the defence that this is a case in which I can use my discretion to stop the case for the reasons advanced above. It should also go without saying that the State’s case will not improve, even if the accused were to be called upon to answer his charge.

31.	I rule therefore that the accused has no case to answer on the second leg of the Kundi Rape principle.

32.	The accused is acquitted and discharged forthwith.  

_________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor   : Lawyer for the Accused