N9775
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 752 OF 2020

THE STATE

V

LAMBERT SIDILAUN

Vanimo: Thoke, AJ
2022: 9th,10th & 15th February

CRIMINAL LAW- Practice and Procedure- Stealing –Section 372 of CCA- Submission of no case to answer – Principles applicable-purely circumstantial evidence – lack of identification evidence- dwelling place misunderstood -lack of proper valuation of stolen possession- unreliable evidence to safely convict- no case established- accused discharged.

Brief Facts

In the morning hours of 17th November 2019, at 4am, Miriam Todiki, the Complainant’s 6-year-old, matured, living cassowary, went missing from its shed, that was located outside of Ms. Todiki’s dwelling, inside Dapu settlement, Vanimo town, West Sepik Province. It is alleged that the Accused, Lambert Sidilaun, with his Accomplices sneaked in at around 4am and stole the cassowary, killed it, dragged it to the Accused’s place, cooked it and ate it. 

Held:

1.	The Principal Offender (Accused) was not identified by the State witnesses in reference to the rule in The State –v- Paul Kundi Rape [1997] PNGLR 96.

2.	The quality of the State’s identity evidence, in this case lacked substance, when weighed against Defence’s No case to answer submission.

3.	The evidence provided is lacking in weight and reliability that no reasonable tribunal could safely convict on it.

4.	Since identification of the Accused is not established, section 7 cannot be invoked.

5.	All the elements of the offence of Stealing, pursuant to section 372(1)(5)(b)(i) has not been proved to establish a case against the Accused.

Cases Cited:
Papua New Guinean Cases:

Beng v The State [1977] PNGLR 115 
The State –vs- Paul Kundi Rape [1997] PNGLR 96

Overseas Cases

May –v- O’Sullivan (1995) 92 C.L.R 254
Legislations Cited:

Section 372(1)(5)(b)(i) of the Criminal Code Act

Counsel:

Ms. Linda Maru, for the State
Mr. Paul Moses, for the Accused

15th February, 2022

1.	THOKE AJ: An indictment was presented by the Prosecution on the 9th of February 2022, charging the Accused with one count of Stealing, pursuant to section 372(1) (5)(b)(i) of the Criminal Code Act. The charge on the indictment read as follows:

“LAMBERT SIDILAUN of MUKILI VILLAGE, VANIMO, WEST SEPIK PROVINCE, stands charged that he on the 17th of November 2019 at Dapu settlement, Vanimo, in Papua New Guinea, stole from the dwelling house of Miriam Todiki, a matured living cassowary bird valued in excess of K10.00 , the property of MIRIAM TODIKI.”

2.	The State also invoked section 7 of the Criminal Code Act as the Accused was in the company of others. The Accused pleaded not guilty; hence, the prosecution opened the case.
THE CHARGE 

3.	Section 372 of the Criminal Code states:

372. STEALING

1)	Any person who steal anything capable for being stolen is guilty of a crime.
              Penalty: subject to this section, imprisonment for a term not exceeding three years.
2)	If the thing stolen is a testamentary instrument (whether the testator is living or dead, (the offender is liable, subject to Section 19, to imprisonment for life.
3)	If the thing stolen is anything in course of transmission by post, the offender is liable, subject to section 19, to imprisonment life.
4)	If the thing stolen is an aircraft, the offender is liable to imprisonment for a term not exceeding 14 years.
5)	If-
a.	The thing stolen from the person of another person; or
b.	The thing is stolen in a dwelling –house, and –
i.	Its value exceeds K10.00; or
ii.	The offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling –house or 
c.	The thing is stolen from a vessel, vehicle or place of deposit used for the conveyance or custody of goods in transit from one place to another or
d.	The thing is stolen from a vessel that is in distress or wrecked or stranded or 
e.	The thing is stolen from a public office in which it is deposited or kept; or 
f.	The offender, in order to commit the offence, opens a locked room, box or other receptacle means of a key or other instrument.
The offender is liable to imprisonment for term not exceeding seven years.

7.PRINCIPAL OFFENDERS

1)	When an offence is committed, each of the following person shall be deemed to have taken part in committing the offence and, 
2)	To be guilty of the offence, and maybe charged with actually committing it: -

a)	Every person who actually does the act or makes the omission that constitutes the offence
b)	Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
c)	Any person who aids another person in committing the offence;
d)	Any person who counsels or procures any other person to commit the offence.

4.	The Prosecution has the onus on proving beyond reasonable doubt that the main elements of the offence are established in this case, they are:

i.	A person- identity of the Accused
ii.	Stealing- taking anything capable of being stolen- cassowary
iii.	Thing stolen in a dwelling house- the cassowary was stolen in its shed and not in a dwelling house.
iv.	Value exceeding K10.00- K5,000.00 was the value of the cassowary.

5.	For section 7 to be invoked ‘stealing or taking anything capable of being stolen has to be established by the witnesses, and the Principal Offender or Accused has to be identified by any of the state witnesses.

THE PROSECUTION’S EVIDENCE

6.	The Prosecution called four Witnesses, namely, Ms. Miriam Todiki, Ms. Tekla Masi, Mr. Rocky Kiryar and Mr. Paul Paulon, whose evidences are narrated as follows;

7.	The first State witness, Miriam Todiki, the Owner of the stolen cassowary, gave sworn evidence that:

•	On 17th November 2019, at about 4:00 am she heard the dogs barking and looked out through her window and saw moving figures. However, she said she could not recognize and identify any of them. She said her house was located inside a settlement and was frightened to go outside to find out what was happening.

•	As usual, in the morning, at 7:00 am, when heading out to feed her cassowary, she was surprised to find out, fencing was partly removed and her cassowary was not in the shed. 
•	She then decided to follow a trail she believed to be that of a cassowary being dragged. That trail led to the Accused house.
 
•	She was accompanied by her baby-sitter Teckla Masi and friend Marie Wunum with some kids on her quest to look for the cassowary. As they followed the track, they saw feathers and blood tints of the cassowary, which eventually led to the Accused’s house. The people there told her that the Accused was not in the house, so they left straight to the Police station, however it was on a weekend so they were asked to come on the next Monday.

•	Two days later, on the 20th, Miriam and her two friends, went around looking for the cassowary inside the Accused’s garden, when they were approached by a dog with a bone in its mouth, believed to be that of a cassowary.

•	Four days later on the 24th she then asked two policemen to accompany her to the Accused’s house, again. At the Accused’s house, surprisingly, she said a small boy brought a cassowary’s leg bone to her, witnessed by the 2 policemen. She confirmed this in cross- examination.

8.	When this Court asked Miriam Todiki- what was the price value of the cassowary, she said K5,000.000.

9.	The second witness is Ms. Tekla Masi, babysitter to Miriam Todiki. Her narrative shared the same sentiments as to the First State Witness, except she stated that;

•	On the 24th, when Miriam and her went to the Accused house with the police officers, a dog pulled out a bone from underneath his house. She confirmed in cross-examination that it was a dog and not a human being, as Miriam stated.

•	She recognized the bones were of a cassowary, claiming that her father is a hunter, and as such, she is familiar with cassowary bones.  

10.	There is significant inconsistency in Miriam and Tekla’s narrative on who found the bone from underneath the Accused’s home. Was it a dog or a small boy?

11.	Both witnesses confirmed their narratives during cross- examination, respectively.

12.	The third witness, Mr. Rocky Kiryar is the Police Investigating Officer who tendered the Record of Interview, and bones of the alleged stolen cassowary. In his sworn evidence he stated that, he accepted that the bones came from a cassowary and not a cow when disputed, and brought in the cassowary bones into evidence as Exhibit A1 and A2, which were accepted as part of the evidence.

13.	The fourth witness, Mr. Paul Paulon, is a Catholic Church Catechist and a resident of Dapu, Vanimo, West Sepik Province, who the Accused claimed to have received Cow meat from, and that, the bones that were found in his home, were from his ‘haus cry’ gathering’s cow distribution. In his sworn evidence, he said that:

•	He distributed cow meat on 17th December 2019 to those who only assisted him during his ‘haus cry’. 
•	His evidence was to show the Court that the cow meats were distributed without the bones and these bones brought in as Exhibit A1 and A2 were not possibly cow bones from his cow. 
•	He also said in cross- examination that the cow meats were distributed to people who contributed to the funeral or house cry, which includes the Accused and people living closer to the Accused’s home. 

14.	When this court asked, whether it was customary for the people around Vanimo to only cut meat and distribute to the people he said “Yes”.

‘NO CASE TO ANSWER’ SUBMISSION BY DEFENCE

15.	After the close of prosecution case, the Defence Counsel Mr. Paul Moses made a submission of No- case to answer.

16.	The principle applicable to a submission of No case to Answer, is emphasised in the May –v- O’Sullivan (1995) 92 CLR 254, in the full Court of the High Court of Australia, as follows:

“When, at the close of the case for the prosecution, a submission is made that there is “no case to answer”, the question to be decided 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 really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a “case to answer” has no effect whatever in the onus of proof, which rests on the prosecution from beginning to end. After prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not the question to be decided in the end by the tribunal is whether on the whole evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. This is a question of fact.”

17.	Defence Counsel quoted in his submission a more simplified version of the rules or two limbs that guide a no-case to answer application, from the widely known case The State –vs- Paul Kundi Rape [1997] PNGLR 96. It is summarized as follows:

i.	The first limb is a question of law, in which court considers whether the evidence as it stands or whether the evidence goes to prove any elements of the offence.

ii.	The second limb is discretionary, in which there are some evidence adduced before the court, however the evidence as it stands is so unreliable that no reasonable tribunal can safely convict.

18.	The Accused can only be convicted should the evidence provided by the State and its witnesses establish each element of the charge of Stealing, pursuant to section 372(1)(5)(b)(i), and not merely convicted on the evidence as it stands.

19.	Defence Counsel’s submission points out the following concerns:

•	The evidence of the four State Witnesses are unreliable and not of good quality to support the Accused’s charge. 
•	The elements of section 372(1)(5)(b)(i) as given by state witnesses in their evidence in court were purely circumstantial, thus, failed to prove the essential elements or were not proved beyond reasonable doubt. 
•	He made it clear that four (4) elements have not been made to prove that the Accused had in fact been involved in the stealing of the cassowary.

a)	A person (s) has not been identified 
b)	Stealing or taking anything capable of being stolen (cassowary)
c)	Anything stolen in a dwelling house – he revealed this cassowary was stolen from the shed and not in a dwelling house
d)	Value- K5 ,000.00 to K10, 000.00 was the value of the cassowary.

•	He relied on both limbs.
•	There is no identification of the Accused at the scene of the crime. First State witness, Ms. Miriam Todiki did not recognize and identify the Accused. The only evidence linking the accused were feathers and bones of the cassowary at the Accused’s residence. 
•	The evidence that cassowary was dragged along and trail led to the Accused’s house was not corroborated.
•	The second element of the offence, dwelling house, has not been established. 
•	The cassowary was kept inside a separate shed from the house where Miriam was sleeping. 

20.	In a No-case to Answer application, this Court has the duty to:

a)	Consider and assess the State witness ‘s evidence and decide whether or not they have   established all elements of the offence, before calling the Defence Witnesses.
b)	Weigh the evidence and establish that the evidence adduced by the Witnesses’ are unreliable and no reasonable tribunal can safely convict the Accused.

‘NO CASE TO ANSWER’ SUBMISSION BY PROSECUTION 

21.	In response to the no case to answer application, The Counsel for State Ms. Linda Maru submitted as follows:

•	First State witness, Miriam did not identify the Accused but was able to see 4 or 5 people outside her home at 4am on the 17th of November, 2019. 
•	In the morning at around 7am, as soon as it was daylight, as part of her morning duty she went to feed her cassowary. 
•	It was then she found out that her cassowary was missing from the shed.
•	The shed was located outside of her house.
•	She followed the track in which she believed the cassowary was dragged on, accompanied by her babysitter, friend and some children.
•	Along the road they saw blood stints and feathers that were believed to be that of a cassowary.
•	The tack led to the Accused, Lambert Sidilaun’s house. 
•	Bones were found in his garden.
•	Two police officers were brought to his house two days later, when a dog pulled out a bone from underneath.

22.	She further submitted that there is enough circumstantial evidence showing that he was involved in stealing the cassowary. 

23.	If the Accused was not involved in stealing the cassowary, he would have easily surrendered to Police.

24.	 Finding bones in his house and garden was sufficient evidence to show that he was involved in stealing the cassowary.

25.	However, I am not convinced that the bone was found directly from the Accused dwelling or house. Those bones were brought in by a small boy and a dog. The Complainant did not identify the Accused and other suspects who were alleged to have appeared in the night to steal the cassowary. Such evidence is questionable and of poor quality in reference to the law of identification and circumstantial evidence.

26.	 Applying the principles derived in this case of John Beng-v- The State (1977), whereby one as a Judge has to caution himself or herself when dealing with a case where conviction is dependent on identification; I refuse to accept first state witness, Miriam’s evidence, and the other 3 Witnesses, in which the evidences are purely circumstantial and no evidence of direct involvement of the Accused, stealing the cassowary.

ISSUES FOR THIS COURT’S DETERMINATION

27.	After carefully hearing and evaluating Submissions by Counsel for Prosecution and Defence, this Court is submerged in two issues:

a)	Whether the evidences of the Four State witnesses are of good quality, enough to establish and prove all elements of the offence of Stealing under section 372 (1)(5)(b)(i)?
b)	Whether the evidence provided by the State Witnesses are unreliable and no reasonable tribunal can safely convict the Accused.

ISSUE 1- WHETHER THE EVIDENCE OF THE STATE WITNESSES ARE OF GOOD QUALITY & ENOUGH TO ESTABLISH ALL ELEMENTS OF THE OFFENCE OF STEALING UNDER SECTION 372(1)(5)(b)(i)

28.	For further emphasis on the first issue, I quote section 372 (1)(5)(b)(i) of the Criminal Code:
  
(1) Any person who steal anything capable for being stolen is guilty of a crime.
              Penalty: subject to this section, imprisonment for a term not exceeding three years.
(5) If-
(b)The thing is stolen in a dwelling –house, and –
(i)Its value exceeds K10.00; 

29.	The first witness Miriam Todiki, the owner of the cassowary, did not clearly identify the Accused. According to her sworn evidence, she did not establish any evidence that the Accused was the one who entered her premises or yard on the night of 17th November 2019. 

•	She exclusively relied on blood stains, feathers and bones of the cassowary.
•	The cassowary lived in the shed, outside of her dwelling.
 
30.	As a matter of the Law, she must identify the Accused with credible evidence to establish each element of the offence of stealing.

31.	I agree with the Defence Counsel Mr. Paul Moses that essential element of section 372 (1)(5)(b)(i) of the Criminal Code were not established. 

i.	‘A person’ has not been identified. She did not see the Accused at 4:00 am. Upon arriving at the Accused’s house, she did not bother to go inside the Accused’s house to find out whether there was evidence of bones, feathers and blood clots inside his house or premises. She relied entirely on bones brought by others. 

ii.	‘The dwelling house’ does not include the shed. The shed is located outside of her dwelling place.

From the Oxford Dictionary, a dwelling house is any place where human beings use for shelter and for keeping their personal belongings.   

By definition, the shed is not the dwelling place of the Accused.

iii.	‘The value’ of the stolen cassowary has not been proved. Mrs Miriam Todiki said K5,000.00 and court records show that value was K1, 500.00. The actual price has not been proved. None of the state witness nor Miriam herself gave full description of the size and age of the cassowary. 

32.	Accordingly, I rule that essential elements under section 372 (1)5(b)(i) have not been proved to establish a case against the Accused.

33.	Stealing or taking anything capable of being stolen has not been established by the witnesses, because the Accused has not been recognized and identified by any of the state witnesses, hence section 7 cannot be invoked.

34.	The Accused has also denied during the record of interview that he was not there or got involved in stealing the cassowary.

35.	It is my opinion, that the Complainant should have sued the Accused and other accomplices in the Village Court. The people in the village or settlement are in a better position to corroborate her evidence and establish all elements of the offence. They may know those suspects but feel uneasy to come out to the National Court to expose them. 

36.	I turn to the second issue on the following paragraphs. 

ISSUE 2- WHETHER THE EVIDENCE PROVIDED BY THE STATE WITNESSES ARE UNRELIABLE AND NO REASONABLE TRIBUNAL CAN SAFELY CONVICT THE ACCUSED

37.	In light of my reasoning’s above, the evidence of the State witnesses are unreliable, thus fail to identify the Accused and his Accomplices who allegedly came to steal the cassowary. Their evidence of bones and feathers do not suffice to sustain conviction on the Accused.

38.	I totally reject the bones and feathers brought into this Court as evidence, as there is no proper evidence connecting or linking them to the cassowary that was stolen. If she was smarter to hold the Accused liable, she would have applied for a search warrant from the district court and would have searched the Accused’s entire house and premises to find evidences of bones and feathers on the same day, 17th of November 2019, the date in which she found out the cassowary was stolen. Bones and feathers collected from elsewhere by other people are not credible to hold the Accused liable. Other witnesses namely, Teckla Masi and Paul Paulon’s evidence do not connect or link to the identification of the Accused. Hence, I reject their evidence as well.

39.	The only credible evidence is the Police Investigating officers’Record of Interview. There is no issue on that. However, his opinion on the bones that they were cassowary bones is not corroborated by further evidence, and whether those bones were actually found inside the Accused’s home or premises. He also did not assist Miriam to get a proper search warrant to go inside the Accused’s house to collect more bones there. Nevertheless, he is not on expert or specialized in that area to accurately identify those bones as cassowary bones. Hence, I reject his evidence as well.

40.	All four State witnesses’ evidence are merely circumstantial and do not support to establish the identification of the Accused, whether the Accused was the one who stole the cassowary or one in the group of suspects who allegedly came to the steal the cassowary. 

41.	As such, no reasonable ground or evidence is established, let alone, circumstantial evidence relied on by the State does not have serious discrepancies, therefore unsafe to convict.

42.	Even if Defence witnesses are called, it will not improve the case to safely convict the Accused of the charge of Stealing. 

DECISION SUMMARY

43.	In light of the above reasons this case cannot proceed further.

44.	The Principal Offender (Accused) was not identified by the State witnesses in reference to both limbs in the case of The State –vs- Paul Kundi Rape [1997] PNGLR 96.

45.	The quality of the State’s identity evidence, in this case lacked substance, when weighed against Defence’s No case to answer submission.

46.	The evidence provided is lacking in weight and reliability that no reasonable tribunal could safely convict on it.

47.	Since identification of the Accused is not established, section 7 cannot be invoked.

48.	All the elements of the offence of Stealing, pursuant to section 372(1)(5)(b)(i) has not been proved to establish a case against the Accused.

49.	The Accused even denies stealing the cassowary; thus, the State’s stance will not improve even if the trial continues. 

50.	Finally, I exercise my discretion to end this case here, and refrain from advancing further. 

51.	Accordingly, the Accused be discharged and acquitted forthwith.
________________________________________________________________
Public Prosecutor:	 Lawyers for the State
Public Solicitor: Lawyers for the Defendant