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State v Golo [2018] PGNC 239; N7337 (5 July 2018)

N7337

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 44 of 2018

THE STATE

V

PETER GOLO

Waigani: Miviri AJ
2018 : 4^th & 5^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Stealing s.372 (1) CCA- Trial – no case submission – prima facie – no case – No Identification prima facie – application upheld – no case accused – discharged forthwith – bail refunded.

Fact:

Accused allegedly stole a colt pistol serial number CO9448X property of his employer Millennium Security Services.

Held:

No identification prima facie.
No case
Application upheld
Discharged
Bail refunded.

Cases:

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

Counsel:

R.Galama, for the State
D. Mamu, for the Defendant

RULING

5^th July, 2018

1. MIVIRI AJ: This is the ruling on a no case submission made by the accused after the closure of the State case against him.
   

Short Facts

2. Accused is charged that he on the morning of the 14^th September 2017 stole a Colt Revolver Pistol serial number CO9448X belonging to his employer Millennium Security Services. He was supposed to have handed the gun to one John Kepon who was in charge of that gun. But John Kepon took up his post without it. Accused came and told him several minutes later whether he brought it. Accused told John Kepon that he had left the gun in the vehicle. The gun could not be located and so was presumed stolen. Accused was charged as a result.
   

Charge

3. The charge is pursuant to section 372 (1) “A person who steals anything capable of being stolen is guilty of a crime. Penalty: Subject to this section, imprisonment for a term not exceeding three year.”
   

Elements

4. The elements of the section are made out prima facie that the colt pistol is a thing that is capable of being stolen. It is not in the possession of the owner now Millennium Security Services. It is presumed stolen as it was allegedly last in the possession of the accused.
   

State Evidence

5. The State has called Meken Thomas, David Ikila, Alungai Wanga, John Kepon, Samuel Aipe, and Timothy Waigi all on oath. It has also tendered into evidence S1 (a) and (b) the pidgin and the English translation of the record of interview of the accused. Exhibit S2 is daily issue and return of firearms log. Exhibit S3 is a photograph of a colt revolver .38 serial number CO9448X. Exhibit S4 is the value of the firearm Glock 19 semi auto of K22, 000.00.
   
6. Prima Facie this evidence establish that the colt pistol serial number CO9448X was last seen exchanging hands with accused and John Kepon at hohola RH Supermarket. After that it could not be located. It was presumed stolen.
   

Issue

7. Whether or not the accused has been identified prima facie as the person who stole the colt pistol?
   

Law on No case

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. In particular contending and invoking the second leg of Roka Pep’s case (supra) that there is discretion in the judge to stop the case here against the accused prima facie there is no evidence that he is identified as the person who stole the colt serial number CO9448X pistol. The case should be stopped as calling the accused into evidence will not improve the state case any further.
   
9. Meken Thomas, David Ikila, John Kepon and Timothy Waigi even though they were there at that time did not see who stole the colt pistol. All work for the same company and therefore are not independent witnesses in the case against the accused who is one of them also employed there.
   
10. Alungai Wanga a fellow employee states that John Kepon got the subject colt Pistol and not the accused as he saw that with his eyes and that he would not lie as the creator God is watching and he would not lie. John Kepon is no longer employed by Millennium Security Services. He denied that he received the gun as stated by this witness when called on oath.
    
11. Prima facie the identity of the accused has not been established as the person who stole the Colt pistol serial number CO9448X the property of Millennium Security Services Limited.
    
12. There is basis in law prima facie for the court to call the accused to answer the charge. Accordingly the application is granted. There is no case to answer against the accused that he on the 14^th September 2017 stole a Colt pistol serial number CO9448X the property of Millennium Security Services Limited.
    
13. His application is upheld. He is discharged from the indictment forthwith. His bail moneys are ordered to be refunded forthwith.
    

Ordered Accordingly,
__________________________________________________________________Public Prosecutor: Lawyer for the State
Ninkama Lawyers: Lawyer for the Defendant