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State v Korparu [2018] PGNC 345; N7469 (19 September 2018)

N7469

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 552 OF 2016

THE STATE

V

PAUL DUGAN KORPARU

Kimbe: Miviri AJ
2018 : 19^th September

CRIMINAL LAW – PRACTICE AND PROCEDURE – Robbery – Trial – office robbery – No case submission – No identification prima facie – evidence at close of state case– robbery – no identification – no case upheld – acquitted and discharged – bail refunded forthwith.

Facts
Accused was part of a group of men who were armed with homemade guns and knives who held up employees of Air Lines PNG and stole K1150 in cash and ran away with it.

Held
Robbery.
No identification
No case submission
Upheld acquitted & discharged.

Cases Cited

The State v. Paul Kundi Rape [1976] PNGLR 96

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

The State v Avini [1997] PNGLR 212

Counsel

D, Kuvi, for the State
B, Takua, for the Defendant

RULING ON NO CASE

19^th September, 2018.

1. MIVIRI AJ: Paul Dugan Korparu is charged with Armed Robbery that he on the 19^th November, 2015 at Kimbe entered the airlines PNG office accompanied by others armed with homemade guns and knives, the office is located in Kimbe Mega Mart Store, they held up Cathy Loi, Miriam Zao, and Elizabeth Foro threatened them with the weapons and stole K1150 and escaped.
   

Charge

2. The charge is contrary to Section 386 (1) (2) (a) (b) (c) Criminal Code Act prescribing a maximum penalty of death.
   

Evidence

3. The state evidence comprised the tendered evidence of Miriam Zau Exhibit S1, Exhibit S2A the pidgin original record of interview of the accused Paul Dugan Korparu, Exhibit S2B, the English translation of that record of interview, Exhibit S3 Statement of witness Hillary Someri.
   
4. These establish beyond all reasonable doubt there was an armed robbery committed upon the Airlines PNG Office located at the Kimbe Mega Mart and K1150 was stolen.
   

Sworn Evidence

5. These comprised the evidences of Hillary Someri in addition to his tendered statement exhibit S3 and that of Gilbert Henry the security guard on duty who allegedly identified the accused at the Police Station cells.
   
6. The evidence does not assist prima facie in identifying the accused and therefore calling him to answer the allegation.
   
7. The allegation is that the accused accompanied others who were armed with homemade guns and bush knives all dangerous weapons. When he accompanied the group, gave it numbers to be able to commit the crime. He played a very important part in the robbery because his eyes and ears gave his accomplices comfort to do what they did; go in threaten and to steal the money. And to do it successfully dependent on the role that he played despite his contention that he was unarmed. He played an important role in the robbery.
   

No case submission

8. The defence has made a no case submission relying on the State v. Paul Kundi Rape [1976] PNGLR 96 and also Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287; [1983] PNGLR 287 (14 September 1983). In particular he is contending and invoking the second leg of Roka Pep (supra) that there is discretion in the judge to stop the case here because primae facie there is no evidence that the defendant was an aider and abettor in the robbery committed on this day.
   
9. He is not identified as an aider and abettor within the meaning of Section 7 and 8 of the Code. That is not the status of the evidence after closure by the State: Wani v The State [1979]PNGLR 593
   
10. The State has conceded the application. There is no identification prima facie of accused.
    
11. That is the position in law that the required balance to call the accused to answer that he aided and abetted an armed robbery has not been made. There was an armed robbery but no evidence that the accused prima facie is one of those persons: Avini v The State [1997] PNGLR 212 (15 July 1997).
    
12. I find him not guilty of the charge of armed robbery and acquit him forthwith. I order that his bail moneys be refunded forthwith.
    

Orders Accordingly

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant