N6625
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NOS.515& 516 OF 2015

THE STATE

V

     MICAH MANIWOKIN & EDDIE MESEKA

Kokopo: Lenalia, J.
2016:27th September &4thOctober 

CRIMINAL LAW – Armed robbery – Not Guilty Plea – Trial –Criminal Code, 
s.386 (1) (2) (a) (b) Ch. No. 262.	

CRIMINAL LAW – Issue of identification – Reliance on correctness of 
identification – Hired vehicle by the two accused was descripted in 
color as a red Toyota Hilux – Though no plate number was given, there 
is evidence to infer that the vehicle used was the one hired by the two 
defendants – Finding of case to answer.

Cases Cited:

The State v Paul Kundi Rape [1976] PNGLR 96
The State v Paul Kundi Rape (supra) see also 
The State v Roka Pep (No.2) [1983] PNGLR 287 
The State v Delga Puri and Tapri Maip [1982] PNGLR 493. 

Counsel:
Mr.  L. J. Rangan, for State
Ms. J. M. Ainui, for Accused 
4th October, 2016

1.	LENALIA J:  The two accused are charged with one count of aggravated armed robbery contrary to s.386 (1) (2) (a) & (b)  of the Criminal Code, Ch.262. After they were arraigned, they entered pleas of not guilty to each and severally. Before the witnesses were called, the following documents were tendered by consent and marked for identification purposes as follows:

	-Statement of arresting officer S/Constable Jack Patiliu dated 26.1.2015
            Ex. “1”.
	-Record of interview with 1st accused Ex. “2” & “2A” Pidgin & English   
            translation.  	. 
-Record of i/view of 2nd Accused Ex. “3” & “3A” Pidgin & English.
-Statement of corroborator Ex. “4”.
-statement of Dorcas Kaluwin Ex. “5”.
-Statement of Rubbie Disson Ex. “6”.
-Statement by accused Eddie Meseka Ex. “7”.
-Statement by   Ex. “8”. 

2. 	Three witnesses were called. Evidence by the first witness Wesley Meribais that he was working in front of the Spirit of Kokopo when three men drove into the front of the shop and their office and parked the vehicle they were in front of the office vehicle. Two men came out from that vehicle and pointed a pistol at the workers and ordered them to lie down and those in the company vehicle could not do anything. They took the money bag and dashed off. 

3. 	Witness Ngaina Kalula was working with the Spirit of Kokopo shop as a counter salesman. He also worked in the office and on the morning of the date of the robbery (10.11.2014), he wanted to do banking for the company. As he and the driver got in the company vehicle, the driver wanted to reverse but they could not because the vehicle that was used in the robbery blocked them off. 

4. 	The man with the pistol came out and pointed the pistol at them. SAS security personals tried to stop them but they were in fear as the pistol was pointed at them. The gang threatened this witness and demanded the money bag from the witness. In fear, he handed up the bag of money to the gang members. 

5.	 After they got the money bag, they got into the vehicle and sped off toward, Skowhegan way that is toward or leading to Vunapope and Takubar way.  

6. 	In cross-examination, both witnesses said, they did not identify the person who robbed the company employee. The total amount stolen that day was K45, 368.69 the property of Spirit of Kokopo. 

7. 	The last witness is Nick Aquila. He is the owner of the Kokopo Inn located at Takubar Industrial Centre. He also operates a hire vehicle service. He gave evidence that a day before the robbery, the accused Eddie Meseka hired a vehicle from his company and the vehicle was returned before lunch on 10th November 2014. He gave the description of the vehicle that was hired by the 2nd accused as a red Toyota Hilux Reg. No.409.

8. 	The court has read all documents tendered.  That was the end of the prosecution case. The statement by accused Eddie Meseka admits he and his friends hired a vehicle to pick the first accused’s father at the airport on a flight on Sunday. They got the vehicle out on Saturday at 1.30pm on 8.11.14.

Submission of “no case to answer”

9.	 At the end of the prosecution case the defence counsel made a submission of no case to answer. Basing her application on the first leg of the principles stated in the case of The State v Paul Kundi Rape [1976] PNGLR 96. Counsel submitted rightly that, the issue in this case was one of identification. She submitted that, the two witnesses did not correctly identify the accused as the suspects were not masked and there was likelihood of mistaken identification. Counsel submitted, there is no case for the two accused to answer.

10.	 In reply to the above submission, Mr. Rangan of counsel for the prosecution submitted that the issue before the court is one of identification. 

11. 	He submitted that both witnesses saw the suspects at close range and despite the fact that none of them identified the two accused, the evidence of the last prosecution witness reveals that the second accused hired the vehicle that was used in the robbery on the date of this offence. He asked the court to find that there is a case for the two accused to answer. 

12. 	At this stage of the trial, I am only required to decide if there is a case made out against the two accused. The question is whether at this stage of the trial, the two accused could lawfully be convicted. It has been stated that this is a question of law: The State v Paul Kundi Rape (supra) see also The State v Roka Pep (No.2) [1983] PNGLR 287 &The State v Delga Puri and Tapri Maip [1982] PNGLR 493. 

13. 	This issue revolves around the question of whether there is with respect to all the elements or some elements of the charge in the evidence so far adduced which if accepted would either prove the elements directly or infer their existence.

14. 	The trouble with identifying someone within large groups of people is it is hard to actually pin point someone unless his identity is known to the person identifying someone. There is the issue of identification before this court at the moment. On the same token, the State evidence shows that, the 2nd defendant hired the vehicle that is suspected to be used in the commission of the robbery. 

15. 	Both witness Wesley Meriba and Ngaina Kalula only described the vehicle to be a red Toyota Hilux without giving the number plate number. The Account Clerk of Spirit of Kokopo Dorcas Kaluwin (Ex. “5”) in the last paragraph of her statement said she saw the vehicle driving out of the company premises without a Number Plate but was red in colour. 

16.	 As the prosecution alleges that, the vehicle used that morning was the one hired by the two accused. What inferences should the court draw from that piece of evidence? Having considered the evidence by the prosecution at its current status, this Court is satisfied that, there is a case for the two accused to answer and call upon the defence to call their evidence. 

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