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State v Lilou [2020] PGNC 316; N8521 (27 July 2020)

N8521

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1406 OF 2017

THE STATE

-v-

BERNARD LILOU

Waigani: Koeget, J
2020: 11^th, 12^th June & 15^th, 20^th July

CRIMINAL LAW- Indictable offence – section 386 (1), (2) (a)(b)(c) of the Criminal Code Act chapter 262 – Armed robbery section 386 (1), (2) (a)(b)(c) of the Code.

Cases Cited:

The State v Paul Kundi Rape [1976] PNGLR 96
The State v Roka Pep (No.2) [1983] PNGLR 287
Joshua Yaip Avini & Plaridel Nony Acosta –v- The State [1997] PGS 9; SC 523

Counsel:

B. Popeu, for the accused
J. Gubon, for the State

RULING ON NO CASE TO ANSWER SUBMISSION

27^th July, 2020

1. KOEGET, J: This is the ruling of the Court on No Case to Answer Submission at the close of the State’s case in the trial of the accused Bernard Lilou at Waigani in the National Capital District.

2. The State alleges that on the night of 15^th October, 2015 at Laloki in the National Capital District the accused stole from Sep Lau with actual violence properties valued more than K2,000.00.

3. The State also alleges that on the same night at the same location the accused stole from Ruth Stanley with actual violence goods valued in excess of K7,000.00.

4. The charges are brought pursuant to section 386 (1), (2) (a) (b) (c) of the Criminal Code Act chapter 262. The State involved section 7 of the Criminal Code as the accused was in company of other policemen when he allegedly committed the offences.

FACT

5. On Wednesday 15^th October, 2015 at about 8 o’clock at night the complainant Sep Lau, Ruth Stanley, husband named Stanley, and Kalu Make were returning to the National Capital District from Kerema in the Gulf Province. They were returning in a hired motor vehicle, a Toyota Land Cruiser, white in colour bearing registration number: CAV:108 when stopped by members of SSD police in a blue coloured Toyota Land Cruiser registration number: ZPD:539, a marked police vehicle. The accused was in company of other policemen in that vehicle.

6. The State further alleges that the accused armed with a AR 15 rifle and 3 other policemen armed with two high powered rifles pointed their fire arms at Sep Lau, Ruth Stanley, Stanley and Kalu Make and ordered them to come out of the hired vehicle. The complainants complied with the orders out of fear of their lives so came outside. As Sep Lau came out of the vehicle, the accused punched him in the face and forced him to lay down on the ground. The accused proceeded to search Sep Lau and took out his mobile phone worth K200.00 and a cash of K50.00 and kept them.

7. The accused proceeded to search the bilum of Ruth Stanley and took out a Huawei mobile phone, a touch screen valued at (K150.00) and cash of K1,400.00 and kept them as well. He threw the empty bilum to Ruth Stanley.

8. The hired motor vehicle was driven away by the police with forty bags of betel nuts and 16 bags of mustards and the complainants were left stranded on the side of the road until a relative arrived with a vehicle and assisted them to 9 Mile settlement. The total value of personal items, betel nut bags and mustard bags with garden food are valued at (K10,100.00).

9. The State alleges that the actions of the accused and other members of the SSD police in threatening the complainants with high powered rifles, physically assaulting them, stealing their personal properties, betel nut bags and mustard bags with garden food contravened section 386 (1), (2) (a) (b) (c) of the Criminal Code Act chapter 267. The State invoke section 7 of the Criminal Code.

Evidence for the State

10. The evidence of the State witnesses Sep Lau and Ruth Stanley is that on 15^th October, 2015 they departed Port Moresby for Kerema at 8 o’clock at night in a white coloured Toyota Land Cruiser hired by Ruth Stanley. They spent the remainder of the night in Kerema and the following morning bought betel nut bags, mustard bags and food at the market and loaded them on to the vehicle then drove to Port Moresby. The driver of the vehicle was Ruth’s husband named Stanley.

11. They travelled from Kerema to Laloki bridge there were no road blocks mounted by police along the highway and there was no boom gate at Laloki bridge. So they proceeded through Laloki bridge towards 9 Mile settlement and before the junction to Nebirri Quarry, the members of SSD (police) stopped their vehicle in the middle of the road. The place was dark as there are no street lights and the members of the SSD searched their vehicle and assaulted the driver (Stanley). The other members of the SSD assaulted the three men seated in the back seat of the hired Toyota Land Cruiser. The SSD members did not assault Ruth as she was pregnant and she stood on the side of the road away from the vehicle.

12. The members of the SSD demanded from them cash of K2,000.00 and so Ruth Stanley offered K1,000.00 and it was rejected. The members of the SSD continued to demand from them K2,000.00 and in return the Toyota Land Cruiser will be released to them with all their cargoes, failing, the vehicle will be driven away with all cargoes on board. When the sum of K2,000.00 was not forthcoming, the members of the SSD obtained from them mobile phones, cash and the Toyota Land Cruiser was driven away with the cargoes and they were left stranded on the side of the road in the dark till a vehicle arrived at the location and assisted them to the 9 Mile settlement.

13. The State witness Sep Lau maintain in his evidence that in 2015, there was no betel nut ban in the city so lots of vehicles travelled from Kerema and Bereina carrying betel nuts and mustards into the city. In this case the road was free so they travelled and at Laloki bridge he saw there was no boom gate manned by the National Capital District (“NCD”) Enforcers.

14. Similarly, Ruth Stanley stated that in 2015, there was no betel nut ban in the city and as they drove from Kerema to Laloki bridge along the Hiritano Highway, there was no road blocks or boom gate at Laloki bridge manned by the police. The road was free so they travelled along the route freely.

15. However, the third State witness Roman Anton testified that he is a serving police officer and in 2015 he was attached to the Minor Crimes Division of the Gordons Police station. On that day he drove with a friend to Laloki Mental Health hospital to visit a relative of that friend. When he drove through Laloki bridge, he saw a boom gate manned by some people. He did not know who these persons were and what organisation engaged them to man the boom gate. As he returned at about eight o’clock at night with the same friend, at Laloki bridge, the boom gate was still manned by the same people so he continued till at the location along the Hiritano Highway before Nebirri Quarry junction he saw a Toyota Land Cruiser parked in the middle of the road with a police marked vehicle parked along side of the road. He saw SSD members were assaulting the passengers on the Toyota Land Cruiser so he stopped the vehicle he drove and went outside to tell the SSD members not to assault the passengers. But the SSD members assaulted him as they believed he interfered with the discharge of their lawful duty. So he left and drove away with the friend.

16. In Cross Examination, he maintained that there was a boom gate at Laloki bridge when he went to Laloki Mental Health hospital and it was still there when he returned at night. He did not know the identities of those persons manning the boom gate at Laloki bridge. He maintained that the purpose of the boom gate at Laloki bridge was to stop smugglers such as Sep Lau and Ruth Stanley from smuggling prohibited items or goods into the city.

17. At the close of the State’s case, the defence counsel made a No Case to Answer Submission pursuant to the second limb of the principle in the case of The State v Paul Kundi Rape reported in [1976] PNGLR 96 and also the case of The State v Roka Pep (No.2) reported in [1976] PNGLR 287. The principle is:

“where the tribunal decides that there is a case to answer, nevertheless, has discretion to stop a case to the close of all the evidence in appropriate circumstances. This discretion is exercisable where there is a mere scintilla of evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on.”
ISSUE

18. Whether the evidence so far adduced in the trial by the State establish the essential elements of the offence of robbery under section 386 of the Criminal Code Act chapter 2652.

Section 386 – The Offence of Robbery.

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

Penalty – subjection to subsection (2), imprisonment for term no exceeding 14 years.”

19. Section 384 of the Code provides definition of robbery. So section 384 of the Code states:

“A person who steals anything, and, at, immediately before or immediately after, the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen, or to prevent or overcome resistance to its being stolen is guilty of robbery.”

Elements of the offence of robbery.

1. a person,
2. steals anything capable of being stolen,

100. uses actual violence to any person or property in order to obtain the goods stolen or prevent resistance to its be stolen.”
     

20. The evidence adduced so far in the trial does not establish the element of “actual use of violence to any person” to obtain the motor vehicle with its cargoes and personal items such as cash and mobile phones.

21. The evidence of State witness Roman Anton cast serious doubts on the credibility of the evidence of Sep Lau and Ruth Stanley. He maintains that when he drove with a friend to Laloki Mental Health hospital on the afternoon of 15^th October 2015, he noticed a boom gate at Laloki bridge manned by some people. As he returned in the night with his friend, the boom gate was still there at Laloki bridge manned by the same people. He knew that the boom gate was erected on the Laloki bridge to prevent smugglers like Sep Lau and Ruth Stanley from smuggling prohibited goods or items into the city.

22. So this witness labelled Sep Lau and Ruth Stanley as smugglers and in my view both witnesses lied in court on oath. In my view, no reasonable tribunal such as this would safely convict the accused on the evidence presented in the trial by the state.

VERDICT

23. Therefore, I find that the accused has no case to answer.

ORDER

(1) The accused has no case to answer and so he is discharged from the indictment forthwith.

(2) His bail money is to be refunded to him.

Accordingly Ordered.
_____________________________________________________________
Public Prosecutor: Lawyers for the State

Public Solicitor: Lawyers for the Accused