N6217

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 420 OF 2012

THE STATE

V

BOANA BONAT

Bulolo: Murray J
2015: 2nd December
2016: 14th March

CRIMINAL LAW – no case submission – accused denied charge of stealing – at the end of state case accused counsel made no case submission - nothing in the evidence as presented points to the accused as the one State alleges to have committed the offence - there is no evidence against the accused - no case to answer submission upheld – accused acquitted 

Cases Cited:

State v. Lasebose Kuri Dei (1981) N300 
State v. Paul Kundi Rape (1976) PNGLR 96
State v. Roka Pep (No. 2) [1983] PNGLR 287

Counsel:

Mr. P. Waine, for the State
Mr. J. Unido, for the Accused

NO CASE SUBMISSION

14th March, 2016

1.	MURRAY, J: On 2nd December 2015, the State presented an indictment charging the accused with 1 count of stealing frozen goods valued at K90, 375.97 belonging to Pelgens Limited in Lae Morobe Province, between June and July 2010, contrary to section 372 (1), (7) A of the Criminal Code Act. The accused denied the charge and the trial proceeded.

2. On the indictment presented State listed 9 witnesses. However, it did not call any of those witnesses and instead tendered with the consent of the defence, the court depositions and closed its case. 

3. At the close of the State's case, counsel for the accused made no case submission. I heard submissions from both counsel on the application and reserved my ruling to today. This is my ruling. 

4. Section 372 (1) & (7) A of the Criminal Code Act read as follows:

Section 372 – Stealing
 "(1) Any person who steals anything capable of being stolen is guilty of a crime.
 Penalty: subject to this section imprisonment for a term not exceeding 3 years. 
 …………………….
 ……….....................

 (2) If the offender is a clerk or servant, and the thing stolen – 

 (a) is the property of his employer: or 

 (b) ………………, 

 he is liable to imprisonment for a term not exceeding 7 years."

5. Section 365 of the Criminal Code provides for the definition of stealing.
The definition as set out in section 365 covers a wide range of situations, but for purposes of the present case I will only quote sub sections (2) & (3).

 "(3) Subject to the succeeding provisions of this Code a person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.

 (4) The act of stealing is not complete until the person taking or converting the thing or actually moves it or otherwise actually deals with it or by some physical act."

6. Taking into account these two provisions, in order for the State to prove the charge of stealing against the accused, State must prove that:
 
(1) on a certain date, (2) at a certain place, (3) the accused person, (4) physically took or dealt with, (5) a thing capable of being stolen, (6) property belonging to another (his employer), (7) with the intent to permanently deprive the owner of that thing.

7. It is the State's case that the accused whilst employed as a driver of Pelgens Limited, developed a scheme (emphasis mine) with an ex-employee of Pelgens Limited, namely John Lui and several others, whereby John Lui would place fraudulent orders for frozen goods such as cartons of lamb flaps, lamb necks, cartons of eggs, sausages and etc and upon these orders, other members of the scheme who worked at the Pelgens Eriku Supermarket would have the goods delivered to the premises of John Lui. This happened between June and July 2010. Out of this scheme goods valued at an amount of K90, 375.97, the property of Pelgens Limited were stolen by the accused and his accomplices. 

8. The evidence in support of the State's case are the various statements contained in the Court Depositions. Summary of each of those statements are set out below. 

9. The Statement by Sigimun Pelgens is that he heard from certain persons which he did not name but he considered as reliable sources who informed him that certain employees of Pelgens Limited were stealing goods from Pelgens Limited through false orders and were selling them to other people and making money for themselves. He also stated that following the information that he received from his reliable sources he called up Nathan Mai an employee of Pelgens and conducted an interview which later was converted into a statement wherein he said, Nathan Mai, essentially confirmed that the accused was one of the persons who had together with others stole from Pelgens Limited frozen goods totaling to the amount as stated. 

10. The next statement is that of Nathan Mai. He stated: the incident of stealing from Pelgens Limited occurred on 13th August 2010. He further stated that on that date the accused received a call from a John Lui telling him that he had placed his order with Jerome, another employee of Pelgens Limited and that Jerome would organize the order and he and the accused would deliver the order to John Lui at Falcon Street on Cassowary Road which took place on that date. 

Nathan Mai elaborated on how things were done when orders are received from John Lui. He gave a step by step process as to how the orders coming from John Lui would be honoured by certain employees of Pelgens Limited who he named all of them, full names, except for the accused. Those he identified in full names include: 

(1) Henry Maino, (2) John Laga, (3) Jerome Tommy, (4) Samuel Kaweng, (5) Titus Gimare, and (6) Titus Waino. As for the accused, he named him as Boana only. 

He also stated that John Lui who is also a former employee of Pelgens Limited is the person behind the false orders that is presented to those employees at Pelgens Limited he named to assist him in getting the orders to John Lui.

11. The next statement is that of Debson Titus. He worked in the liquor section of Pelgens Limited. In his statement, he said, some of the employees of Pelgens Limited stole from the warehouse using the supermarket truck. He named the following persons as those he saw stealing: - (1) Jerome Tommy, (2) Samuel Kawang, (3) Titus Wanio, (4) Boana (the driver), (5) Titus Gimari (Shella's brother), (6) John Lui and, (7) Sonny Blum (Brother in-law Henry). He also said John is the person that uses the order from Eriku Supermarket to get goods. He does not know how John does it but he says that he has seen an order presented by John Lui for a person by the name of Onam. And from that order frozen goods were delivered. He also said by taking an order from him to be processed on two occasions John had bribed him with a K100.00 to take his (John's) order to be processed but he refused and has never used the K100.00 which he still has. 

12. The next statement was by Titus Gimari. He said he recalled that sometimes back in late July 2010 while he was working with Pelgens an incident happened. At that particular time he said he was a driver-crew with the Supermarket Pelgens delivery truck and the driver at that time was John Laga. He and John took some frozen goods and delivered at a house on Falcon Street, along Cassowary Road. When they got there the goods were shifted from the truck driven byJohn Laga onto a PMV truck that was parked at the house at Falcon Street and after they left, John Laga told him that those frozen goods are stolen goods and that he must not tell anyone what they did. He was given K150.00 cash from someone by the name of Samuel Kawang who told him that, that was for the goods that he delivered the day before. 

13. The next statement was by Walter Dau. He stated that he lived with his sister on Falcon Street in a flat that belonged to PNG Ports. In 2008 he met someone by the name of Benkuit Benny. He was an old school mate. He met him again in the beginning of 2010 and this time Benkuit Benny informed him that he was in the business of selling goods to mine sites and was looking for a transit house and asked him if he could use his house as a transit house. He told Benkuit the house he was living in belonged to his in-law but said it was okay for him (Benkuit) to do his business from their house. In June of that year (2010), a truck belonging to Pelgens arrived at that house. The goods in the truck were off loaded at that house, then the truck left. Benkuit came over when the truck came, made a phone call and sometime later, another truck came and picked up the goods that were dropped off by the Pelgens truck. Before the delivery that day, he was introduced by Benkuit to someone else by the name of Wally. He was told that Wally's job would be to go to his house and would wait with Benquit for the Pelgens delivery truck and once the Pelgen delivery truck delivers the goods, Wally would load the goods onto the other truck which is named Awong, which is usually there waiting for the goods. He also stated in his statement that he noticed that the driver of the Pelgens delivery truck was the same person who did the delivery each time and he looked like a person from the Highlands. 

14. The next statement was that of Karen Walter. She is Walter Dau's wife and the niece of the wife of the person who owned the house she and her husband 

Walter Dau live at Falcon Street. She states that she recalled back in June or July 2010 when her husband Walter met up with his old school friend Benkuit Benny, who was an employee of Pelgens. It was Benkuit Benny who asked her husband for a safe transit house or place where he can have his cargos delivered and to be picked up from. She said that her husband got permission from her aunty and then the delivery took place. She also said the Pelgen truck would deliver to their yard frozen goods and from there those goods would then be loaded to another truck which she noticed had the name Awong written in front of it. She said that truck would usually wait there or sometimes, it is called to pick up the goods.

She also stated that a person by the name of Wally is usually there at their house with the pick-up truck before the Pelgens delivery truck arrive with the goods. That usually takes place twice a week and normally done after lunch between the hours of 1 and 2 pm. She also stated that in return for allowing her aunty's premises to be used as a transit venue, they would be given 4 to 5 packets of chicken as an appreciation for their assistance. She never knew that Wally was a false name until later she found out that the person who called himself Wally is really a person by the name of John Lui.

15. The next statement is that of Sapex Juda. He gave evidence in his statement that he recalled that between June and July 2010 whilst employed as a PMV driver with a PMV owner named Bob Kundu who resides at Hanta, he was approached by someone who introduced himself as SK and on two occasions he said SK approached him and asked him to pick up some of his goods from a house at Falcon Street and he was given K200.00 by the guy called SK for the hire of his PMV truck before he did the pick- up of the goods at Falcon Street. He also stated that, on those two occasions when he went to the house at Falcon Street, there was a Pelgens delivery truck with frozen goods in it, waiting to be off loaded onto his PMV truck. The goods that were loaded onto his truck were all delivered to Tenut Trading at Bumayong. That is where SK would also drop off other goods. He went on to state further that he had no part in the deal and thought that the person by the name of SK was a genuine customer so he went along and helped him without any second thought but later found out that SK was John Lui.

16. With respect to the Statement by Dorothy Titus who is the Detective First Constable, she essentially stated that she received a report from Police in Rabaul that, the person who was suspected of stealing frozen goods from Pelgens Company in Lae had been apprehended and locked at the Kokopo Police cells. 

She then travelled to Rabaul together with Detective First Constable Lukie Kavon and checked the Police cells and after she confirmed that the person in the cells was the person that was accused of stealing from Pelgens, she took the accused to the Fraud Squad office at the East New Britain Police Station Headquarters where she formally cautioned him and conducted the interview which resulted in the Record of Interview which has been tendered by consent.

17. As to the evidence by Luckie Kavon his evidence essentially is that he accompanied Detective First Constable Dorothy Titus to Rabaul and was the Corroborator who attended the interview of the accused conducted by Dorothy Titus.

Submissions

18. In the no case submissions Mr. Unido of counsel for the accused submitted that relying on the principles of whether there is any evidence to prove the elements of the offence of stealing as set out in the case of Paul Kundi Rape, there is no evidence that this Court could safely convict the accused on.

19. In saying that Mr. Unido firstly submitted that the record of interview contains no admissions by the accused, which means that State must satisfy this Court that there is some evidence that go to prove the elements of the offence. As it is, 

Mr. Unido submits that the evidence cannot prove the elements of the offence. Secondly Mr. Unido submits that the statements of the various State witnesses tendered by consent do not have any evidence that involves or points directly to accused as the person who fraudulently stole from Pelgens Limited as alleged by the State. Mr. Unido goes further and submitted that the offence of stealing involves the element of intention to deprive the owner of a property that is capable of being stolen. In this case he submits there is no evidence before this Court that the accused had the intention to deprive Pelgens store and stole the goods from Pelgens Limited. In the end Mr. Unido submitted there is therefore no case for the accused to answer and that the charge against him be dismissed and the accused be acquitted.

20. In response Mr. Waine of counsel for the State submitted the matter for consideration by this Court is whether there is some evidence to show that there is a prima facie case against the accused. To do that Mr. Waine submits that the Court look at the elements of stealing which he submits are as follows:- (1) a person,

(2) Stealing, (3) property capable of being stolen, (4) employee, (5) owner of the property being the employer of the accused. Mr. Waine goes further and submit that looking at the elements, the evidence by the State witnesses which were through statements that were tendered by consent shows that the accused was one of the person who stole from Pelgens Limited and accordingly this Court should find that there is a case to answer and call upon the accused to answer to the charge.

21. In rebuttal Mr. Unido submitted that accused is the only one charged for stealing frozen goods when the allegations or the State's case makes reference to various other persons. Further State refers to evidence that there was a scheme but which scheme involves the accused but there is no evidence before this Court that the accused presented false invoices. The false invoices or orders were presented by someone else which the evidence by the State clearly points out and none was produced by the accused. Furthermore Mr. Unido submitted that there was nothing that go to show that the accused knew that the orders were fraudulent and so the State has not made out this case.

Decision by the Court

22. The case of State v Paul Kundi Rape [1976] PNGLR 96 sets out the test or principles for the Courts in our jurisdiction to consider when hearing an application for no case to answer. That was confirmed in the Supreme Court case of State v. Roka Pep (No. 2) [1983] PNGLR 287. That remains the law to date. 

23. In Paul Kundi Rape case, the court said:

"Where there is a submission of a no case to answer at the close of the case of the prosecution, the question to be asked 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 a question of law to be carefully distinguished from the question of facts to be asked at the close of all the evidence namely whether the prosecution has proved its case beyond reasonable doubt." 

24. And in Roka Pep (No. 2) the Supreme Court per Prat J said: 

"A tribunal should make a finding of no case to answer where (a) there is no evidence to establish an element of the offence charged or (b) there is some evidence covering the elements of the offence charged but it is so tenuous or incredible or discredited that it amounts to only a scintilla and thus could not be accepted as persuasive by any reasonable person."

25. Prior to the Supreme Court case of Roka Pep (No. 2) Kearney DCJ, in the State v Lasebose Kuriday (1981) N300, applying the tests set out in Paul Kundi Rape said:

"The nature and purpose of a no case to answer submission raises a question of law. A no case submission should be upheld in two situations. First if there is no evidence or no more than an iota of evidence to support one or more of the elements of the offence. Secondly, if there is more than an iota of evidence, but the Judge really has no weighing of evidence to do by reason of the State's evidence being so tainted or so obviously lacking in weight or credibility that no reasonable tribunal of fact could safely use it as the basis of a conviction".

26. The present case falls into the second category, ie, there is some evidence supporting some elements of stealing. Those are: (1) a thing capable of being stolen, ie; frozen goods, and (2) the property belonged to someone else, ie; the frozen goods belonged to Pelgens Limited.

However, I do not agree with Mr. Waine of Counsel for the State that, because there is evidence supporting those elements, there is a prima facie case against the accused.

The State's case is that between June and July 2010, the accused whilst employed as a driver for Pelgens Limited developed a scheme with an ex-employee of Pelgens Limited; namely John Lui and several others. John Lui would place fraudulent orders for frozen goods with other employees of Pelgens, who will pack goods according to the orders by John Lui and those will be delivered to John Lui.

27. The accused denied the charge. In the Record of Interview, he said, he was employed by Pelgens as a Delivery driver. He worked for only 2 years, and then left due to marital problems. As to his knowledge of John Lui, he did not know him and never worked with him. By the time he was employed, John Lui was already terminated, and no longer an employee of Pelgens.

28. State evidence centers around a conspiracy and points to John Lui as the mastermind. There is nothing that connects the accused to John Lui.

29. The only evidence that came close to involving the accused is the statement of Nathan Mai. He gave a very lengthy statement. However, most of it talks about the process as to how an order from John Lui is attended to by others, and not the accsued. Of the little evidence he gives as to the accused's involvement, he says the incident occurred on 13th August 2010 and on that date, he was with the accused when the accused received a call from John Lui. The date this witness gave, contradicts the dates, upon which the State's case is built on. The accused denies knowing John Lui and more importantly he denies the charge.

In light of that and given the fact that all State evidence have not been tested through cross examination, I would not give any weight at all to Nathan Mai's evidence that, he was with the accused when the accused spoke to John Lui. His evidence is about what he and others do for John Lui, when they receive an order from John Lui.

30. In all the circumstances, I agree with Mr. Unido that nothing in the evidence as presented points to the accused as the one State alleges to have committed the offence. I therefore find there is no evidence against the accused that he stole the frozen goods from Pelgens Limited as alleged, within the meaning of stealing. I therefore uphold the case no to answer submission.

Verdict

31. It follows therefore that, Boana Bonat, is acquitted of the charge of stealing.

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