N9283
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 670 OF 2018

THE STATE

V

LYO MATAI

Waigani: Ganaii, AJ
2021: 25th, 27th, August, 03rd September

CRIMINAL LAW –  No case submission – Two Counts - Child Stealing, Section 361 (1) (b) CCA - Demanding Compensation, Section 390A (a) (b) (iii) of the CCA – Section 7 of the CCA – No case submission –  Principles in Paul Kundi Rape applied – Defence relies on both limbs – State’s case consist of Accused’s Record of Interview, Statement of Police Corroborator tendered by consent  and Oral testimony of Arresting Officer -  Main witness, mother of child not called - No explanation on unavailability of main witness – Evidence of Arresting Officer is hearsay and not good evidence – Possible Defence not negated - Insufficient evidence at close of State case – Accused cannot be legally convicted – Acquittal on both counts

PNG cases cited:
Kupok, The State v [1996] PNGLR 271  
Paul Kundi Rape [1976] PNGLR 9
State v Jigimbe [2018] PGNC 169; N7261 
State v John Bill White (No 1) [1996] PNGLR 262
State v Kuriday [1981] PGNC 28; N300 
State v Parakua [2011] PGNC 5; N4199 
State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37)[1983] PNGLR 287
State v Raima [1993] PNGLR 230
State v Thomas Sange (2005) N2805
Yandasingi v The State [1995] PNGLR 268

Texts Cited:

Cross, R. Cross on Evidence, p. 6 (4th ed. 1974)
Judicial College of Victoria, ‘7.4.18 - Child Stealing’, Victoria Criminal Charge Book, (Melbourne, Judicial College of Victoria)(Date and Year of Publication not stated) ˂https://www.judicialcollege.vic.edu.au/eManuals/CCB/47380.htm˃
Phipson, S.L. Phipson on Evidence, para. 625 (12th ed. 1976)

Law cited:

The Criminal Code Act, Chapter 262 of 1974
The Lukautim Pikinini Act, Chapter 45 of 2015

Counsel:

Mr. Andrew Kaipu, for the State
Mr. Noel Loloma, for the Accused
 
DECSION ON A NO CASE TO ANSWER SUBMISSION

03rd September, 2021

1.      GANAII, AJ:  The accused Lyo Matai stands charged on two counts on an indictment dated 25th of August 2021 as follows:

Count 1
that he on the 03rd day of March 2016, at Three Mile, National Capital District in PNG, received Fatix James, a child, under the age of 14 years with intent to deprive Nelin James the parent of the possession of the child then knowing that the child had been forcibly taken away with this intent

thereby contravening Section 361 (1) (b) of the CCA 

Count 2
that between the 03rd day of March 2016 and the 1st day of November 2017, at Three Mile, National Capital District, in PNG, with intent to extort payment from Nelin James and in order to obtain compliance unlawfully threatens her by phone calls with the continuous detainment of her son, Fetix James, 

thereby contravening section 390A (a) (b) (iii) of the CCA.  

Statement of Facts

2.  	On the 03rd of March 2016, at around 11:00 am, the complainant Nelin James was marketing her wares and goods at the Gordons market when her baby went missing. The abductors took her baby away to and outside Lamana Hotel, they gave the child to a person called Abol Peter to sell. Abol Peter took the child to the Port Moresby General Hospital at three Mile and there he sold the child to the accused, Lyo Matai for K800. 

3.	At that time the child was taken, he (the child, Fetix James) was one year and eight months old. 

4.	State alleges that on the 07th of March 2016 the accused called the complainant on her mobile phone informing her that they had the child and she should give them some money first before the child is returned.

5.	State says that the complainant would call back requesting that the child be released to her however the captors would demand for some money first. This continued until the 01st of November 2017, when the Police tracked the phone number, obtained details of the accused and arrested him and Abol Peter. 

6.	The accused was charged for the offence of Child Stealing, by receiving the child knowing that the child had been taken away with the intention of depriving it of the care and custody of his parents and under section 361 (1) (b) and offence of Demanding Compensation and in order to get compliance did so with unlawful threats and intimidation under section 390A (a) (b) (iii) of the CCA. State invoked section 7 of the CCA on the charges.

Plea

 7.  	The accused pleaded not guilty to the charges and a trial was conducted. At the close of the State’s case, the Defence made a no-case to answer submission. 

Issue

8.	The issue at the close of the state’s case according to the two limbs in the case of Paul Kundi Rape [1976] PNGLR 9 are:

1)	Whether on the evidence as it stands, the defendant ought to be lawfully convicted? and

2)	Whether there is a mere scintilla of evidence and the evidence is so lacking in weight and reliability that no reasonable tribunal could convict?

9.	Defence submitted that in consideration of the above issues the court is tasked at determining the following sub issues:

3)	Whether there is evidence forming a prima facie case that the accused Lyo Matai received with intent and did harbour the child knowing the child to have been so taken away or enticed?

4)	Whether there is evidence forming a prima facie case that the accused Lyo Matai with intent to extort, and with threats and intimidation demanded compensation for the child?

5)	Whether there is evidence forming a prima facie case that Lyo Matai enabled or aided and abetted in the commission of these offences? 
10.	I note particularly and in light of defence submission that the state did not indict for harbouring.
 
Law
The Offence Provisions

 11.	Sections 361 (1) (b) and 390A (a) (b) and (iii) of the CCA stipulates as follows:

361. CHILD-STEALING.
(1) A person who, with intent to deprive a parent or guardian of a child under the age of 14 years, or any other person who has the lawful care or charge of such a child, of the possession of the child, or with intent to steal any article on or about the person of any such child–
(a) forcibly or fraudulently takes or entices away, or detains, the child; or

(b) receives or harbours the child, knowing it to have been so taken or enticed away or detained,
is guilty of a crime.
Penalty: Imprisonment for a term not exceeding seven years.

(2) It is a defence to a charge of an offence against Subsection (1) to prove that the accused person–

(a) claimed in good faith a right to the possession of the child; or
(b) in the case of an illegitimate child (not being a child who has been adopted) is its mother or claimed (in good faith) to be its father.
(3) The husband or wife of the accused person is a competent but not a compellable witness.

390A. DEMANDS FOR COMPENSATION OR OTHER PAYMENT.
A person who, with intent to extort or gain any thing, payment, or compensation from any person–

(a) demands the thing, payment or compensation; and
(b) in order to obtain compliance with the demand–
(i) causes or threatens to cause injury to any person or damage to any property; or

(ii) does or threatens to do any act which renders, or is likely to render any public road, bridge, navigable river or navigable channel, natural or artificial, impassable or less safe for travelling or conveying property; or

(iii) otherwise unlawfully threatens or intimidates any person,
is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

Elements for Offence of Child Stealing 

12.	The child stealing offence under s361 (1) (b) requires that the prosecution prove certain elements. In my research, I was not able to find case laws in our jurisdiction on the discussion of these elements of the offence. I therefore, draw guidance from the Victorian Criminal Charge Book. The wording of the offence provisions in both jurisdictions are similar. The Charge Book explains the three different offences under the charge of child stealing and discusses case laws on the elements. I find the discussion on the elements of the offence of receiving helpful and adopt them. The four elements are:

1.	The accused received or harboured a person;
2.	That person was a child under the age of 16;
3.	The accused intended to:

1.	deprive any parent or guardian or any other person having the lawful care or charge of such child of the possession of such child; or
2.	steal any article upon or about the person of such child

4.	The accused knew that the child had been led, taken, decoyed, enticed away or detained by force or fraud.

Elements for the Offence of Demanding Unlawful Compensation 

13.	Case of State v Parakua [2011] PGNC 5; N4199 (19 January 2011), held that under Section 390A CCA offence of making an unlawful compensation demand has four elements:

1)	demanding some thing, payment or compensation; 

2)	with intent to extort or gain that thing or payment or compensation;

3)	causing or threatening to cause injury to any person or damage to any property or doing or threatening to do any act which renders or is likely to render any public road, bridge, navigable river or navigable channel, natural or artificial, impassable or less safe for travelling or conveying property or otherwise unlawfully threatening or intimidating any person; and

4)	in order to obtain compliance with the demand.

Law on the issues in a No Case to Answer Submission

14.	The case law on a no case to answer submission is well settled in this country. In the seminal case of the State v. Paul Kundi Rape (supra) O’Leary. AJ stated two important principles which are often referred to as the first and second limbs. He said:

“That at the close of the prosecution case two quite separate and distinct questions may arise for consideration at this stage of a criminal trial; one, whether there is a case for the accused to answer; and secondly, whether although there is a case for the accused to answer, the state of the evidence is such that the Judge ought to withdraw the case from the jury, or at least, tell the jury that they are entitled to indicate that they do not wish to hear any further evidence”.
15.	The principles of the Rape case were affirmed by a five men Supreme Court bench (Kidu, CJ, Kapi. DCJ, Andrew. J, Pratt. J and Kaputin. J) in Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), the State v [1983] PNGLR 287 where it stated in its head note:
“Where in criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the matter is a question of law for the judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence.
Where the tribunal decides there is no case to answer the accused is acquitted and that is the end of the matter.
Where the tribunal decides there is a case to answer, it nevertheless has a discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.”
16.	With respect to weighing up of evidence, in a no case to answer submission, the court in the case of the State v Kuriday [1981] PGNC 28; N300 (18 June 1981), stated:
“The “no case” submission proper raises the question: has the State made out such a case against the accused as could safely sustain his conviction in the absence of an explanation or contradiction? This question is decided by the judge as a question of law. The answer depends on the state of the evidence, bearing in mind that the weighing of the evidence is to be eschewed as far as possible”.
(Underlined emphasis mine)

17.	This court is tasked to decide on the legal viability of the charges, without weighing up of the evidence. The National Court has over the years reaffirmed these principles in many cases including the cases of: the State v Kuriday (1981) N300, Kearney. DCJ; State v Pep [1983] PGNC 44; [1983] PNGLR 19; N407 (14 February 1983); Kapi, DCJ; the State v Thomas Sange (2005) N2805, Cannings. J; State v Jigimbe [2018] PGNC 169; N7261. 

The Evidence
Prosecution Evidence

 18.   	The State tendered by consent the Record of Interview, (Both Pidgin and English versions), dated 03rd November 2017, marked as State Exhibit “A”; and the statement of the Police Corroborator Stanley Billy dated 07th November 2017; marked as State Exhibit “B”.

19.	The state also called the arresting officer First Constable Robert Mark Smith. A summary of his sworn oral testimony is as follows:

1)	He has been with the Police Force for 16 years to date and has attended
Detective Trainings. This case came to his attention in the year 2016 when he was at the Minor Crimes Section of Gordons Police Station. The complainant was Nelin James who complained to the witness that she has three children and that whilst she was at Gordons market doing her marketing, and attending to one of her sick children, her other child, the baby was abducted. She laid her complaint with the Police and put up a reward for the return of the missing child. 

2)	Witness stated that during his investigations, notices with contact numbers were put up on the missing child and for its return. It was then that persons by the names of Michael Ken, Abol Peter and the accused Lyo Matai communicated through the phone seeking monies for the return of the child. 

3)	When asked how he knew the names and identities of the callers, he stated that the numbers were unknown. He had to communicate with the Digicel Ltd, the Phone Company who gave them the signal of where the call was coming from. With that help, the witness proceeded to the location and apprehended the caller using the phone. That led to the arrest of Abol Peter and the accused Lyo Matai, which then led to the arrest of Dennis and Save Kandaro who had the child. 

4)	The witness stated that with the help of Digicel Ltd the first person they 
apprehended was Cathy also known as Betty, then Michael Kandaro at Manu Auto Port. Cathy’s phone was given by her to the men to use and she provided flex cards and money for them to text the victim. 

5)	When asked to give more explanation of what the investigations revealed 
especially on the apprehension of Cathy, the witness said Cathy led them to Abol Peter and Abol Peter said he knew nothing about that. Abol Peter then led the witness to the accused Lyo Matai. Witness said Lyo Matai led him to Dennis and Dennis led him to Sawe who had the child. 

6)	When asked what questions the witness asked Cathy at the Police Station 
when she was apprehended, in order to get to the names and identity of the other persons including Abol Peter, the witness stated that he asked her about the money, he interviewed her and he apprehended Abol Peter and brought him to the Police Station.

7)	Witness then said Abol assisted him to locate Lyo Matai. Lyo Matai took 
him to Dennis Kandaro which led to his wife Sawe Kandaro who had the child. Sawe Kandaro returned the child to his mother. The child was with Sawe Kandaro at Surinki in Wabag, Enga Province. 

8)	When asked where Cathy also known as Betty was from, the witness stated that she was from the same village as the one the child was taken to. 

9)	When asked where Lyo Matai is from, the witness stated that the accused 
Lyo Matai is a cousin to the women taking care of the child, Sawe Kandaro.

10)	When asked about the conduct of the ROI on the accused, the 
witness stated that the accused admitted to buying the child for K800. He said since he was single and unmarried, he gave the child to his cousin sister to care for it. 

11)	He also stated that other relatives he came across were Michael Ken Stanley from SHP who is married to Cathy; Leo Dennis and Sawe who are all related. 

12)	 In cross examination he disagreed that on the 07th of March 2016, a 
married couple communicated with Nelin James the victim.

13)	When asked whether Michael Stanley Ken was in close 
communication with Nelin James, he said No. He stated that it was after the investigations that he realised that they were using Cathy’s phone. 

14)	When it was put to the witness that in the ROI, the accused answered at Q&A 21 that he didn’t have a phone, the witness said he agreed that this was what the accused said.

15)	When it was put to the witness that after three months of the child 
going missing, Michael Stanley Ken demanded the complainant for K10 000 so that the child can be returned, he said he disagreed. 

16)	When it was put to the witness, he agreed that Michael Kandaro 
made the phone calls and demanded for the amount of K10, 000 to be deposited into his BSP bank account 100 47 464 under the name of Maris Kek. He also stated that they all worked as a team. 

17)	When it was put to the witness that it was the same Michael Ken 
who demanded the complainant for K3, 000 and not the accused Lyo Matai   he said he agreed and said they were all relatives.   
    
Defence Submissions

20. 	 At the close of the State’s case, defence made a no case to answer submission. Defence relied on both limbs in the case of Paul Kundi Rape (supra) and argued that the State’s evidence did not support the essential elements of the offences so that the accused can be lawfully convicted and secondly, the evidence is lacking in weight and reliability that no reasonable tribunal can convict. 

21.	There is no evidence from the victim on the allegations of child stealing or abduction with intent to deprive her of her child. She was not produced as a witness. 

22.	The oral evidence of the Police Investigating officer is hearsay on the elements of the charges and cannot be relied on.

23.	The state witness was not able to clearly establish how the accused is a party to the offence, i.e., the connection from the alleged offence to the accused, and more particularly there is no evidence on why he was apprehended.

24.	The only connection the witness and state rely on is his evidence that “he arrested Michael Ken Stanley, which led to the arrest of Abol Peter, which led to the arrest of the accused Lyo Matai because they were family”.

25.	There is no evidence of the accused knowing that the child was stolen or taken away with intent to deprive his/her parents of the child.

26.	In his ROI he admitted to buying the child for K800 but that was because he thought the child’s father was selling his own child to him.

27.	Being a simple villager and being illiterate, it is reasonable to find that he believed that the child’s father was selling the child.

28.	There is no evidence on the accused having an intent to deprive the parents of the child of their possession of the child.

29.	There is no evidence on knowledge of the child being so taken away (i.e., being deprived from parents having lawful care and custody/charge over child.

30.	There is no evidence on the elements of second charge i.e., a person, with intent to extort or gain compensation, unlawfully by threatening or intimidating. 

31.	Defence submits that there is no evidence that the accused demanded compensation and therefore this element is not proven. There is evidence that Michael Ken Stanley, an alleged accomplice did this.

32.	There is no evidence that the accused aided or abetted in the commission of these offences by or when receiving and harbouring the child. There is no evidence that the accused communicated with the mother of the child in demanding any compensation by use of threat and intimidation. If the elements are not proven, there is no basis to invoke s7 of the CCA. 

Prosecutions Submissions

33.    	Mr Kaipu, of learned prosecutor for the State submitted that there is a prima facie case from the evidence of the Arresting Officer that there is a genuine complaint being laid against the accused. The accused admitted in the ROI to buying the child. 

34.	The Arresting Officer says all persons were related. Those other persons or alleged accomplices were involved in the initial taking away of the child. The accused took custody of the child upon buying the child. The other persons named were making phone calls to extort monies. 

35.	State submits that certain actions of the accused made him equally as guilty as those persons involved in the initial taking away of the child and extortion of monies and therefore, he does have a case to answer. These actions were: buying the child; keeping the child away from its mother for two years and the fact that he is related to those other persons named. By invoking s 7 of the CCA the court should find there to be sufficient prima facie evidence against the accused on the two counts and he should be called to answer. 

36.	State says there is sufficient prima facie evidence at the close of prosecution case and the accused must be called to answer to these charges.

Defence Reply

37.	In response, defence submitted that the elements of both charges have not been established. The evidence is insufficient, and that the accused’s answers in the ROI raises a possible legal defence. Defence also submitted again that Section 7 of the CCA cannot be invoked as the elements are not established. 

Application of law to Facts and Response to Submissions 

38.	The rule against hearsay is not defined in our Evidence Act. Professor Sir Rupert Cross, in his text book on the law of evidence, has offered a statement of the rule which I find helpful. He wrote: “a statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact stated”. (Cross on Evidence, p. 6 (4th ed. 1974)). 

39.	In the 12th edition of Phipson on Evidence, the standard practitioners' work, the following statement is given, which I also find useful: “Former oral or written statements by any person, whether or not he is a witness in the proceedings, may not be given in evidence if the purpose is to tender them as evidence of the truth of the matters asserted”. (para. 625 (12th ed. 1976)). 

40.	Case laws in this jurisdiction have observed that the rational behind the prohibition on hearsay evidence is based on the following principles: that statements made out of court are not made under oath and therefore cannot be given the same weight as statements made under oath, because the credibility of the maker of the statement cannot be tested in cross-examination. Its accuracy therefore cannot be evaluated and there is a possibility of fabrication, exaggeration, distortion or inaccuracy. 

41.	Hearsay evidence is not what is called the best evidence. The ‘best evidence’ rule is essentially a rule that says that evidence should be given by the person best capable of giving it. In the State v John Bill White (No 1) [1996] PNGLR 262 Doherty J, applied the principle. The following cases which I have had the benefit of reading discuss the hearsay rule in various contexts: SC Review Nos. 52 & 53 of 2011, Martin Kaiak & Paul Buka v the State, SC1505, Cannings J, Geita J, Pitpit J, 2016: 27th April; Wambun v the State [1994] PNGLR 488, Sevua J; the State v Nai [2011] PGNC 317 N4247, Makail, J; the State v Raima [1993] PNGLR 230.

42.	In cases where a main victim cannot be called to give evidence, as in the case of the State v Kupok [1996] PNGLR 271 Jalina, J made a relevant statement. He said:

“It is my opinion that except in offences of homicide where victim is the deceased and vital evidence relating to the circumstances of death come from eyewitnesses, in most other offences the victim’s evidence is the most vital evidence in a criminal trial since it is the victim who is best able to describe what he or she saw, heard and felt at the time of the offence. Evidence from other witnesses are called to support or corroborate the victim’s evidence. Where the victim’s evidence is not before the Court it should lead to an acquittal unless there are other evidence to convince the Court to the required standard of proof in criminal cases”.

 (Underlined emphasis mine).

43.	It is noted that the court in the above case made those remarks during its ruling on verdict. The present case is a ruling on a no case to answer submission but the principle is the same and is applicable in guiding this court on how it can deal with the issue of the absence of a victim or their evidence and where state is relying on other evidence that is hearsay.  

44.	Hearsay evidence is not good evidence in law unless it is supported by other independent and convincing evidence to the required standard of proof (Kupok’s case, supra) including the evidence of the accused’s free and voluntary admissions. In this case there is no other independent and convincing evidence. And where the accused made admissions to ‘buying’ the child, the circumstances in which he had done so may amount to a possible lawful defence under section 361 (2) CCA and which the state has not negated.  

45.	The Arresting Officer was not led to provide an explanation on the unavailability of the main witness and or other relevant state witnesses. If the reasons cannot be established as to why the main witness is not able to come to court, her witness statement cannot be tendered through the arresting officer (Raima, supra), to establish the required elements that prosecutions rely on to support the charges.  

46.	The only evidence thus far for the state’s case is the ROI, statement of the Police Corroborator and the oral evidence of the arresting officer. I find that the oral evidence of the Arresting Officer on the complainant’s story on the facts State relies on to establish the elements of both charges is hearsay in that regard and is not good evidence. 

47.	In his examination in chief, the Arresting Officer was not able to give evidence to show the link between the other alleged accomplices whom state say were relatives of the accused and were involved in the taking away of the child to the accused.  The accused did offer some explanation in the ROI, in his defence that he gave monies to the father of the child to take custody of the child. 

48.	The state submitted that I should infer from the accused answers in the ROI that there is some evidence to make out a prima facie case, and that may be accepted on the basis that ignorance of the law is no excuse. In my view, and according to cross examination questions by the accused’s lawyers, there may be a possible defence of Honest claim of Right for the accused under section 361 (2) CCA which the state failed to negate. 

49.	The evidence so far does not support the elements of the charges of receiving and harbouring the child with intent of depriving the parents of the child of their care and charge of it or seeking compensation through threats and intimidation on a prima facie basis and the possible defence has not been negated by the state. 

50.	Where there are other evidence to convince the court apart from the victim’s own evidence, courts may allow exceptions to the hearsay rule under certain circumstances. One such circumstance is where the maker of the statement is for good reasons unavailable at trial and their evidence may be tended into court by some other credible and relevant witnesses like a police case investigator. 

51.	In Raima’s case (supra), the test for such a course is the need for the "dispensation of justice" which enables a court to take into account the reasons for non-attendance of a witness in considering exercise of a discretion to admit evidence from the witness through affidavit. 

52.	In Yandasingi v the State [1995] PNGLR 268 (6 December 1994), in obiter dicta: the court held that occasionally, counsels do not make appropriate objections to evidence that is clearly inadmissible. Ultimately, it is the duty of a trial judge to ensure that such evidence is not admitted. The principle was further relied on in SCR 52 and 53 of 2011, Kaiak v the State (supra) the SC held that: 

“It is incumbent on a trial judge to ensure that hearsay evidence is not admitted into evidence, even where there is no objection to its admission. By doing so the Court is discharging its duty under Section 37 of the Constitution to afford th]e accused person the full protection of the law, including the right to a fair trial”.

53.	In the application of the case law above to this case, the non-availability of the star witness of the State and where no attempt has been made to explain her non-appearance, means that the best witness who is able to describe what she saw, heard and felt at the time her child was taken from her, cannot be called or her statement cannot be tendered. The state’s reliance on the arresting officer to give the complainant’s story of the alleged stealing of the child and extortion of money without any explanation of why she cannot come to court clearly breaches the hearsay rule. This court has a duty to ensure that such evidence whether it is through the arresting officer’s oral testimony or through the statement of the complainant that the state may seek to tender through the arresting officer is not admitted into evidence (SCR 52 and 53 of 2011, Kaiak v the State). The oral evidence of the arresting officer on the complainant’s story is hearsay and is rejected. The state did not establish the basis for and did not seek to tender her statement.

54.	On the evidence of the arresting officer, the State’s argument is that other persons or alleged accomplices of the accused were initially involved in the ‘taking’ of the child and the accused only came later in the picture by ‘receiving’ the child through his confessed act of ‘buying’ and therefore his actions amounted to the offence under s 361 (1) (b) CCA. State says he therefore has a case to answer. 

55.	The accused denied the requisite element of knowing that the child had been so taken, i.e., by unlawful taking away from the parents with intent to steal and that he also denied having the requisite element of intent of depriving the parents of the child who have care and charge over the child. In my respectful view, in light of no other credible evidence, and where the accused had provided an explanation in the ROI at Q&A21 on how the child had got to his care and custody, although wrong, and where ignorance of the law is no excuse, where it can be raised as a valid defence under sub-section (2) of s 361 CCA, and where it is stated that it is a defence to a charge of an offence against Subsection (1) to prove that the accused person, claimed in good faith a right to the possession of the child; he may be exonerated from the crime of ‘receiving’ with intent under s 361 (1) (b) CCA. The state had not negated that defence. 

56.	The state had invoked s 7 of the CCA. However, in my view, that may not be applicable for a charge under section 361 (1) (b) for ‘receiving’ where state alleges that the accused had himself ‘received’ the child by ‘buying’ the child. If the accused was charged under section 361 (1) (a) for ‘taking’ the child and where state says his alleged accomplices were involved in the actual taking away of the child from its mother, and he only came later into the picture by receiving the child through payment, then s 7 of the CCA can apply. 

57.	Nevertheless, and regardless of the application of section 7 of the CCA, the evidence is not sufficient to support the elements of the charge on a prima facie basis either under section 361 (1) (a) or (b) or 390A (a) (b) (iii) of the CCA. 

58.	Based on his admission in the ROI, that the accused had ‘bought’ the child, the state would have charged the accused under other appropriate criminal offence provisions where the evidence warrants for his part only in receiving the child in the manner he did.  One relevant and appropriate charge in the circumstance would be one under section 82 (2) (c) of the Lukautim Pikinini Act, an offence of Sale of children by receiving a child upon payment. Section 82 of the LPA says:

“82. Sale of children. 

(1)	A person who sells or intends to sell a child for his personal gain is guilty of an offence. 

Penalty: Imprisonment for a term not exceeding five years. 

(2)	A person who —

 (a) solicits the sale of a child; or 
(b) accepts or intends to accept proceeds of the sale; or 
(c) receives the child upon payment made, is guilty of an offence. 

Penalty: A fine not exceeding K5,000.00 or imprisonment for a term not exceeding two years, or both”

59.	Charging the accused for another appropriate charge is a matter for the state. I refer to this possible charge in this circumstance and in passing only for the purposes of demonstrating that the State can be more vigilant when electing on a charge by making an appropriate and professional assessment of the evidence and in this instance on the unavailability of the main witness and in observation of the hearsay rule. 

60.	For the present case, at the close of the state’s case, and for the forgoing discussions and reasonings, the accused cannot be lawfully convicted on the charges under sections 361 (1) (b) and 390A (a) (b) (iii) of the CCA. Calling the accused to explain his answer in the ROI cannot improve the State’s case. 

Conclusion

61.	The law is clear that or on a no case to answer submission, the state must show that the evidence is prima facie sufficient on the elements of the charges to lawfully convict. 

62.	Based on the above reasons, I do not find that the evidence is sufficient to make out a prima facie case on the elements of both charges. There is no evidence from the complainant or other relevant, convincing, and independent source or strong circumstantial evidence for example, and in the circumstance of the present case, from a mobile phone company to show who owned the subject phone numbers that were used to call the mother of the child. There is also no sufficient evidence establishing the relationship between the accused and the alleged accomplices. 

63.	The only evidence is that of the arresting officer based on a criminal complaint from the mother of the child to him, saying that the accused and the alleged accomplices were relatives and so state says he has a case to answer for their actions and for his part as shown in his admission in the ROI. In light of this court’s assessment on the possibility of a defence which the state failed to negate, and without other convincing and independent evidence, the evidence thus far is not sufficient.  

64.	At close of the prosecution case, I find that the evidence of the Arresting Officer alone without other convincing and independent evidence relied on by the state to establish the relevant elements of the charges is not sufficient. The state had not established sufficient evidence to show that the accused can legally be convicted on both counts for the offence of Child Stealing, by receiving the child knowing that the child had been take away with the intention of depriving it of the care and custody of his parents, under section 361 (1) (b) and the offence of Demanding Compensation and in order to get compliance did so with unlawful threats and intimidation, under section 390A (a) (b) (iii) of the CCA. I note that the accused was not indicted for harbouring. 

65.	On the question of whether there is a no case to answer, I answer in the affirmative and uphold the no case to answer submission. I exercise a discretion to stop this case at the close of the state’s case. The accused is acquitted of both counts accordingly.
 
Final Orders

66. 	The final orders are:

1)	The no case to answer submission is upheld and 

2)	The accused is acquitted on both counts. 

Orders accordingly.
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Public Prosecutor: 	Lawyer for the State              
Public Solicitor:	Lawyer for the Accused