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State v Waninara [2024] PGNC 139; N10795 (8 May 2024)

N10795

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 454 OF 2023

THE STATE

V

JOHN WANINARA

Kokopo: Miviri J
2024 : 08^th May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Aggravated Armed Robbery S386 (1)(2)(a)(b)(c) CCA – Trial – Prosecution Two Oral Testimonies of Witness – No Case Submission – No Evidence Accused Identified – Evidence of Armed Robbery – Accused Not Obliged to Evidence – Right To Silence – No Adverse findings Against – Accused Not Identified and Role – No Case to Answer Upheld – Acquitted and Discharged Released from Custody Forthwith.

Facts

Accused was one of a group of men who were armed with bush knives who held up the victims and stole their assorted properties to the value of K 2, 266.00.

Held
No identification of Accused
Robbery Established.
No Case to Answer upheld.
Acquitted and discharged.
Released from Custody forthwith.

Cases Cited:
Rape, The State v [1976] PNGLR 96
Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287

Counsel:
J. Sausoruo, for the State
N Kubak, for the Defendant

RULING ON NO CASE

08^th May 2024

1. MIVIRI J: This is the ruling of an application that was made after closure of the State case that the accused has no case to answer of the allegation that the State has levelled against him.
   
2. He was charged with Aggravated Armed Robbery pursuant to section 386 of the Criminal Code Act, which was in the following terms: -

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

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

(2) 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.

3. And it was alleged against him that on the 04^th January 2023 between 6.00pm and 7.00pm at Bitapabeke Kokopo East New Britain Province the Accused John Waninara and more than four (4) other male persons armed with bush knives entered the yard of Diana Gordon, Cathy Jude and Valnau Topin stole from them assorted mobile telephones, tobacco products and traditional Papua New Guinea Bilums to the total value of K 2, 266.00. Then they ran away.
   
4. It was alleged that the accused had assisted and helped in aggravated armed robbery and therefore was guilty of the crime pursuant to section 386 (1)(2)(a)(b)(c) of the Criminal Code Act.
   
5. Accused entered a not guilty plea to the Indictment that was presented tasking the State to prove that he was identified as one of the persons who robbed from the victims.
   
6. There were two witnesses called for the state, firstly Diana Gordon whose evidence on identification was that she saw the person who was masked with the Guria Shirt as Johnny. That person has not been identified in Court. It has not been linked in Court to the Defendant. That he is the same Johnny She saw on the night of the 04^th January 2023. And that he is the same Johnny who is related to her husband who she feeds at her house whenever he comes around.
   
7. The second witness Cathy Jude does not establish the identity of the defendant at all but another not the subject of this proceedings. She has established evidence of an armed robbery which does not identify the defendant as being one of the robbers.
   
8. The defence has made a no case submission based on Rape, The State v [1976] PNGLR 96 reinforced in Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287, that Accused could not be lawfully convicted because prima facie, on the face of it, he was not identified as the person who robbed the victims. It is a question of law, “When, at the close of the case for the prosecution, a submission is made that there is no case to answer, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands, he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a case to answer has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. That is a question of fact, Pep (supra). Which I am not allowed to ask at this stage.
   
9. Here the evidence does not identify the defendant as one of the robbers in the crime alleged. It will not improve even if the Accused is called to testify, because by dictate of section 37 (4) (10) the accused is not obliged to prove his innocence, the burden of proof is always on the State. They discharge it beyond all reasonable doubt. So effectively the accused has the right to silence, and it does not amount to anything in favour of the state if he chooses as he does to remain silent. We have not come to that stage. Here because of the lack set out above the Accused will not be called to answer the indictment.
   
10. In the exercise of my discretion, I will stop the case here. If there are no other charges pending warranting further incarceration in custody, I order that the accused be released forthwith. Effectively I uphold the no case submission and discharge the accused forthwith.
    

Ordered Accordingly

__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant