N10890

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 04 OF 2024

THE STATE

V

EMMY KUNDI LIMU

Walume:  Batari, J
2024:  22nd May

CRIMINAL LAW — Practice and Procedure — No case submission – Principles applied – Question of law – Stealing - Elements of – Whether elements of stealing established.

CRIMINAL LAW — Practice and Procedure — No case submission -Application to stop case on sufficiency of evidence – Question of fact - Discretion to stop case where evidence is lacking in sufficiency.

This is a ruling on a 'no case to answer' following application by the accused. 

Held: 

1.	The second principle of a ‘no case to answer,’ is strictly not a ‘no case to answer’ rule, though its application in practice is analogous to and often confused with the ‘no case to answer,’ submission. There is no weighing up of the evidence. 

2.	The accused has a case to answer on stealing charge by application of the second limb of The State v Paul Kundi Rape [1976] PNGLR 96 principles.

Cases Cited:
The State v Delga Puri & Anor [1982] PNGLR 395
The State v Lasebose Kuridey [1981] N300
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Philip Kamagu Mil (1995) N1388
The State v Roka Pep (No 2) [1983] PNGLR 287
The State v Tom Morris [1981] PNGLR 893

Counsel:
Mr Kathua Umpake, for the State
Mr David Pepson, for the Accused

RULING ON NO CASE SUBMISSION

22nd May 2024

1.	BATARI J:   An Indictment presented against Emmy Kundi Limu (accused) of Wangai Village, Ialibu District, Southern Highlands Province (SHP) charged, that she between 2nd day of March and 3rd day of March 2023 at Mt Hagen, stole from the Bank of South Pacific Limited, K8,700.00 held on the account of bank customer, Elly Joe Pila in account No 1007146473, in contravention of s 372 (1) & (10) of the Criminal Code.   

2.	At the close of the prosecution case this morning, Mr. Pepson of Counsel for the accused made a no case submission, relying on a no case to answer and on insufficiency of evidence.  If I accept the no case application, the outcome is to acquit and discharge the accused on the stealing charge.

3.	 It is the common version of the charge, that on 1st March 2024 the accused and the complainant were at Mt Hagen General Hospital. Limu had accompanied Pila to the hospital for treatment of Pila’s sick child. From the hospital, they proceeded to the ATM machine at the hospital grounds for Pila to withdraw K300.00 for their return trip. Pila was all along carrying her sick child. Limu assisted in accessing the ATM machine. The ATM rejected the access card due to pin number error. The two women then left and the complaint asked for K300.00 cash assistance from a doctor relative’s wife. They shared the cash in equal portions and proceeded to Rainbow bus stop. Pila sat in the bus with her sick child and waited for some three to four hours before the bus departed for Ialibu. The next day, Pila took her child to Kudjip Hospital at Minj, Jiwaka Province again accompanied by Limu. The child was admitted to the hospital. It passed on three days later.          

4.	State's evidence as it stands now, comprised oral evidence of the complainant and documentary evidence of BSP Kundu Card, Records of Interview (Pidgin & English versions) and photographs of the ATM location.    

5.	The principal witness’s testimony is generally as captured in the undisputed facts. Pila’s story on how her savings were stolen by Limu is, that she gave her BSP bank card to Limu with the pin-number at Mt Hagen Hospital ATM and instructed her to first check the balance. The accused successfully accessed the account and they both saw the balance at K8,700. The complainant then instructed her to withdraw K300.00. At the same time, two customers appeared at the entrance to the ATM location. Instead of continuing with the ATM, the accused stepped out and returned after the two customers had used the ATM machine and left. Pila questioned Limu about walking out with the card and Limu responded that she did that because bad people were around the ATM. Pila retorted, they would not know the pin-number. Limu then inserted the access card but this time, the ATM machine rejected the card indicating card pin error. Limu returned the defective card to Pila, and they left the ATM venue.

6.	The complainant also testified that after the day she buried her child, she made enquiries at Mendi BSP branch and was told the bank card belonged to another person from Sembiriki, Erave District, SHP. Pila reported the matter to the police resulting in the arrest of the accused.

7.	The documentary evidence in Exhibit ‘S2’ – “Account Transaction List” from Account No 1007146473 under Mrs Elly Pila, dated 9th March 2023, indicate that substantial withdrawal transactions were done in Mt Hagen on 2nd March 2023 and some minor transactions with the Card mainly phone top-ups were done at Banz, Jiwaka Province. The card was last used once at a Mt Hagen ATM on 3rd March 2023 for K5.00 withdrawal.     

8.	The English translation of the record of interview in Exhibit S3(2) contained denials by the accused. Her answer to Question 25 sums up her position in response to the allegations. She said, “The complainant did not give me her BSP Kundu Save Card, but she gave it to another woman to help us do the transaction to withdraw the money at the ATM”             

9.	I have read all the evidence as it now stands at the end of the prosecution’s case. For the resolution of the no case application, the approach is to assess the evidence thus far on a restrictive basis, guided by settled principles of 'no case to answer', set out in the oft cited case of The State v. Paul Kundi Rape [1976] PNGLR, 96.  That case sets out two distinct principles for a no case submission. 

10.	The first principle is loosely referred to as the "no case to answer" rule. This requires the court as a tribunal of law to ascertain if the accused could be lawfully convicted at the end of prosecution’s evidence.  This is a question of law.  The test is whether the evidence as it stands at the end of prosecution case either directly or indirectly makes out every essential element of the offence for which the accused is charged. Or as the Supreme Court in The State v Roka Pep (No 2) 1983 PNGLR 287 put it, “The test is whether the evidence supports the essential elements of the offence.”  

11.	If one or several of the essential elements of the offence are not made out on the evidence, the accused is entitled to be acquitted as a matter of law because there is nothing to answer for.  The question of whether on the evidence the accused ought to be convicted does not arise at this first leg of the principles in Paul Kundi Rape’s case.

12.	 The second basis for 'no case to answer' is the rule extended over the period which gives the judge discretion to stop the case even if there is some evidence or there is more than an iota of evidence supporting each essential element of the offence. This principle is commonly referred to as, the second leg of Paul Kundi Rape's case.

13.	This second principle is often the cause for confusion and misapplication by defence counsel which with respect have transcended and caused a breach of the danger of falling into error in respect of the weighing of the evidence as cautioned by Sevua J in, The State -v- Philip Kamagu Mil (1995) N1388 adopting and applying what was said in Barker (1977) 65 Cr App. R 287 at 288: 

“It is not the Judge’s job to weigh the evidence, decide who is telling the truth, and stop the case merely because he thinks the witness is lying.”

14.	The second principle is strictly not a ‘no case to answer’ rule, though its application in practice is analogous to and often confused with the ‘no case to answer,’ submission.  It is an application to stop the case upon factual assessment of the evidence at the end of the prosecution case. The Court has the discretion to stop the case but only where there is really no weighing of the evidence to do. The question of credibility and reliability does not arise except in exceptional or limited situations.  The court in its discretion could stop the case if the evidence is "...so dubious, or so tainted, or so obviously lacking in weight or credibility, or has been so discredited in cross-examination, that it is clear that no reasonable tribunal could safely convict on it" as stated in, The State v Lasebose Kuridey (1981) N300. The rationale is the state of the evidence being so insufficient and such that it will unlikely improved even if the accused is called upon to answer.

15.	Importantly, where some evidence is adduced which implicated the accused, it is inappropriate to consider in an application to stop the case whether the Court has a reasonable doubt at the close of prosecution's case. That is to say, the court is not required to examine the evidence in minute detail and apply it to the higher standard.  To do so would lead to an error: The State v. Delga Puri and Tapri Maip [1982]; The State v Tom Morris [1981] PNGLR, 493; Han Tua Tau (1981) 3 All ER 14.

16.	The accused in this case is charged with stealing. I must first, consider whether all the elements have been made out on the materials before me. The basic elements of stealing under s. 372 (1) (10) of the Code are:

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 three years.

(10) If the thing stolen is of the value of K1,000.00 or upwards, the offender is liable to imprisonment for a term not exceeding seven years.

17.	Section 365 sets out the definition of stealing. 

18.	Mr. Pepson submitted, that the prosecution having put its case at its highest, has not shown an iota of evidence either from documentary evidence or oral evidence which implicated and connected the accused to the bank card to eventually steal monies from the ATM machine. The evidence is so insufficient the prosecution has not shown a prima facie case for his client to answer.  On that basis, her application should be granted.

19.	I have appraised the prosecution evidence on both aspects of the no case submissions.  A card is a thing capable of being stolen irrespective of its value. There is some evidence, a different bank card, possibly stolen, being given to Pila. That evidence is denied by the accused. 

20.	But clearly, if Pila’s bank card was not used, the essential element of the value of the money stolen charged under s. 372 (10) of the Criminal Code will be lacking. There is however, elements of the card being used and monies withdrawn using the card. As to who did is a question of fact. I accept the State’s proposition that the evidence is circumstantial. I need not assess the truthfulness of the State’s witness at this stage. The question of reliability of witness does not arise at this time. 

21.	The complainant has given evidence implicating the accused. It is not known at this stage whether the accused will give evidence. She may or she may not give evidence. If she gives evidence, she may repeat her story to the police. Whether her story will improve or destroy the State’s case can only be decided at the end of all the evidence because on the evidence thus far, I am satisfied that she has a case to answer based on circumstantial evidence on the use of Pila’s ATM card to steal the monies held in trust by the bank for and on behalf of the complainant.    

22.	Applying the second principle in Paul Kundi Rape’s case to State’s evidence thus far; I conclude that the accused has a case to answer.   

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