The State v Atau Gore (No 1) (2004) N2639

• Jurisdiction: Papua New Guinea
• Judge: Manuhu AJ
• Judgment Date: 13 August 2004
• Citation: (2004) N2639
• Court: National Court
• Year: 2004
• Judgement Number: N2639

Full Title: The State v Atau Gore (No 1) (2004) N2639

National Court: Manuhu AJ

Judgment Delivered: 13 August 2004

1 Criminal law—Particular offence—Armed robbery—No case to answer submission—Constitutional implications—Description of property—Threat of violence—Principal offender.

2 Criminal law—Particular offence—Armed robbery—Alternative charge—Attempted robbery.

3 State v Roka Pep [1983] PNGLR 287, State v Paul Kundi Rape [1976] PNGLR 96, Lacis v Cashmar [1969] 2 QB 400 referred to

Ruling on No Case Submission

___________________________

N2639

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

CR NO. 394 OF 2002

THE STATE

V.

ATAU GORE (No. 1)

Lae: Manuhu, AJ

2004: August 12 & 13

RULING ON NO CASE SUBMISSION

Criminal law – Particular offence – Armed robbery – No case to answer submission – Constitutional implications - Description of property – Threat of violence - Principal offender.

Criminal law – Particular offence – Armed robbery – Alternative charge – Attempted robbery.

Cases cited in the judgment.

State v. Roka Pep [1983] PNGLR 287.

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

Lacis v. Cashmar [1969] 2 QB 400.

Counsel.

Messrs. J. Pambel and J. Done, for the State.

Messrs. T. Gene and R. Yombon, for the Accused.

13 August, 2004.

MANUHU, AJ.: This is a no case to answer submission after the close of the prosecution’s case in an armed robbery trial. The basis for the application are that first, there is no evidence to support the element of stealing; and, secondly, there is no evidence of threat of violence by the accused.

The Accused is charged that on 27th October 2001 at Three Mile, Lae, he stole from Suase Vanbruggen with threat of violence monies in the amount of K150.00 in cash the property of the said Suase Vanbruggen (“victim”).

For the purpose of arraignment, and as brief as possible, the prosecution states that at around 9.30am, the victim was driving a “mini Dyna”towards Three Mile when a man, armed with a home made gun, ran onto the road and forced the victim to stop. The gunman then approached the victim and forcefully took the car keys. He then demanded money but the driver did not have any money to give away. At this time, the accused approached the vehicle and was demanding money from two passengers seated at the back of the vehicle. As this was happening, a Guard Dog Security vehicle pulled up at the back and a security guard came out. When the accused and the gunman saw this they tried to flee from the scene. The accused was chased by the guard and was thereby apprehended and handed to police.

It should be noted that the statement of facts does not refer to any monies being stolen, as particularised in the indictment. Likewise, the victim has said that, except the car key, which was taken by the gunman, no money was stolen from him. Accordingly, Counsel for the accused submits that there is no evidence to support the element of stealing. Counsel for the accused further submits that the accused was not responsible for stopping the vehicle and was not armed with any weapon. According to the evidence, he simply approached the passengers and asked for money. Hence, the second argument that he did not threaten anyone.

The relevant principles on the no case to answer submission are settled. Counsel for the accused referred me to the case of State v Paul Kundi Rape

[1976] PNGLR 96.

1 and State v Roka Pep (No 2)

[1983] PNGLR 287.

2 and pointed out, with the concurrence of the prosecution, that the question the court should ask is “not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands the accused could lawfully be convicted.” I will add that in a no case submission no real weighing of the evidence is required.

The evidence, in relation to the allegation of threat of violence, in my view, is sufficient. Most, if not all, of the threats were made by the gunman but when the accused, at that point in time, approached the two passengers seated at the back and asked for money, it is open to the court to conclude that the accused and the gunman were acting together. Besides, the accused approached the two passengers who were already placed by the gunman in a situation of fear. Thus, the accused took advantage of the threatening circumstance created by the gunman. Consequently, by the operation of ss. 7 and or 8 of the Criminal Code

Ch. No. 262.

3 the accused would be regarded as a principal offender. Accordingly, I reject the argument that the accused did not threaten the victim or the passengers.

In relation to the remaining ground, the prosecution acknowledges that there is no evidence that K150.00 was stolen from the victim but submits nonetheless that the stealing of the car key from the victim by the gunman is sufficient proof of property stolen during the robbery. This, it is argued, is sufficient evidence to connect the accused through the gunman, by virtue of ss. 7 and or 8, to the element of stealing.

If that is the case, what is the object of requiring relevant particulars of a charge in the indictment? Under s. 528 of the Criminal Code:

“(1) An indictment shall be instituted with the name of the court in which it is presented, and must …set forth the offence with which the accused is charged -

(a) in such a manner; and

(b) with such particulars as to –

(i) the alleged time and place of committing the offence; and

(ii) the person (if any) alleged to be aggrieved; and

(iii) the property (if any) in question,

as is necessary to inform the accused of the nature of the charge.” (my emphasis)

It seems to me, therefore, that the accused has the right to be informed of the nature of the charge, and this right must be accorded to him at all times. In fact, the Constitution guarantees this right under s. 37(4)(b), where “a person charged with an offence shall be informed promptly in a language he understands, and in detail, of the nature of the offence with which he is charged….” Other constitutional provisions that compliment this right include s. 37 generally and s. 59(2)(principles of natural justice). This means that where there is non-compliance with s. 528, serious consequences may follow.

At the first instance, it must have been obvious to the prosecution, in particular, that the stealing of K150.00 could not be proved. While such particular was stated in the indictment, the statement of facts for the purpose of arraignment did not make mention of it. Naturally, the prosecution, which bears the burden of proof, should have applied to amend the facts or amend the indictment before the plea was taken. It did not, and it cannot at this stage when the accused has already made a no case submission. To amend at this stage either on application or by the court on its own motion would be contrary to the general scheme of the principles of natural justice as enshrined in the Constitution and, in particular s. 528.

The same constitutional considerations are applicable in considering the main issue in this case, which is whether the alleged stealing of K150.00 could be substituted by the stealing of the car key? In my view, this is a question of degree and fairness.

With little assistance from both counsel and given the constraints of time, I know that in stealing of money cases, the prosecution need not prove the specific amount alleged in the indictment. Similarly, where a number of properties is...