CR (FC) No 119 of 2019, The State v Joan Kissip (2020) N8184

• Jurisdiction: Papua New Guinea
• Judge: Berrigan J
• Judgment Date: 07 February 2020
• Court: National Court
• Citation: (2020) N8184
• Year: 2020
• Judgement Number: N8184

Full Title: CR (FC) No 119 of 2019, The State v Joan Kissip (2020) N8184

National Court: Berrigan J

Judgment Delivered: 7 February 2020

N8184

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 119 of 2019

THE STATE

V

JOAN KISSIP

Waigani: Berrigan J

2019: 20th May, 20th, 21st, 22nd, 23rd August, 6th September

2020: 7th February

CRIMINAL LAW–Stealing – Elements of offence – Take and move – Intention to permanently deprive –Use of security footage - Prosecution duty to call all material witnesses.

The accused was charged with four counts of stealing cash monies from four different ATM machines on four separate occasions, whilst employed by Bank South Pacific as an ATM Support Officer. The accused denied all charges.

Held:

Stealing

(1) To establish the offence of stealing the prosecution must prove beyond reasonable doubt the following elements:

a. the thing the subject of the charge is a thing capable of being stolen (as defined in s. 364 of the Criminal Code), that is:

i. an inanimate thing that:

(a) is the property of any person; and

(b) moveable;

b. and that the accused:

i. fraudulently;

ii. takes the thing, or converts it to his own use or the use of any other person; and

iii. actually, moves or otherwise deals with the thing by some physical act.

Sections 364 and 365 of the Criminal Code; see also Ikalom v The State (2019) SC1888.

(2) The prosecution must prove that the thing stolen is the property of someone. Property which belongs to no-one cannot be stolen. Ownership must be proved either in a named person, or if the prosecution is unable to establish the identity of the owner, then in a “person unknown”: Trainer v R (1906) 4 CLR 126 at 135 considered.

(3) “Fraudulently” means with intent to permanently deprive the owner of the thing, or with any of the other states of mind prescribed by s. 365(4) of the Criminal Code: Ikalom v The State (2019) SC1888; The State v Boria Hanaoi & Ors (2007) N4012.

(4) Whether or not there is an intention to permanently deprive the owner of the property taken is a question of fact and may be inferred from the circumstances in which the property was taken, and from the conduct of the accused before, at the time of, or after the taking: Ikalom (supra).

(5) All that is required to establish an intention to permanently deprive is an intention to retain the property indefinitely: Ikalom (supra) applying The State v Boria Hanaio & Ors (2007) N4012.

(6) When an offence of stealing is complete is a question of fact.

(7) Any movement of goods with intent to steal them is sufficient to constitute asportation, or the carrying away of property. Stealing does not necessarily involve a complete removal from the physical possession of the owner: see R v Taylor [1911] 1 KB 674; Wallis v Lane [1964] VR 293 considered.

Prosecution Duty to Call all Material Witnesses

(8) The ordinary rule is that the prosecution should call all witnesses whose evidence is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, unless valid reason exists for refraining from calling a particular witness or witnesses. Generally, all witnesses who can give “material evidence” should be called by the prosecution: R v Harris [1927] 2 KB 587.

(9) As the prosecution seeks the truth, it must call evidence favourable and unfavourable to its case: see R v Soma (2003) 212 CLR 299; R v Shaw (1991) 57 A Crim R 425.

(10) The prosecution has a discretion as to whether, any particular witness should be called. The discretion is not unfettered, however, and must be exercised in the interests of justice so as to promote a fair trial: see Muhammed El Dabbah v Attorney-General for Palestine [1944] AC 156 PC; Apostilides v R (1984) 154 CLR 563 considered.

(11) The prosecution does not need to call a witness if his or her evidence is likely to be unreliable, untrustworthy or otherwise incapable of belief: Whitehorn v R (1983) 152 CLR 657; R v Newland (1997) 98 A Crim R 455. Nor should the prosecution call a witness whose evidence is likely to be unnecessarily repetitious: Whitehorn v R (supra).

(12) Where the prosecution fails to call a witness without providing a reasonable explanation, the Court may, if it considers that the prosecution has not exercised its discretion fairly, invite the prosecution to reconsider its position but is not obliged to do so: see R v Olivia [1965] 3 All ER 116; and R v Apostilides (supra). It may, in exceptional circumstances, call the witness itself: see R v Birch [1978] PNGLR 79, or make an adverse finding that the witness should have been called.

(13) As a general rule, a trial judge should not infer that the evidence of those who were not called would not have assisted the prosecution. A judge should not speculate about what the person might have said. Exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution’s failure to call the person in question was in breach of the prosecution’s duty to call all material witnesses: see Dyers v R (2002) 210 CLR 285 considering Jones v Dunkel (1959) 101 CLR 298.

(14) If the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the trial judge may properly reach conclusions about issues of fact but whether, in the circumstances, the judge should entertain a reasonable doubt about the guilt of the accused: see RPS v The Queen (2000) 199 CLR 620.

(15) There was no unfairness on the part of the State in exercising its discretion not to call the other persons who attended with the accused at the scenes of the alleged offences, or to tender available CCTV footage.

Film or Video Recordings

(16) The extent to which film or video recordings, whether it be from a CCTV camera or otherwise, might be relied upon is very much dependent on the quality and clarity of the images, and the circumstances in which it is taken and kept.

Circumstantial Evidence

(17) It is well established that in a case resting wholly or substantially upon circumstantial evidence, an accused cannot be found guilty unless the prosecution has excluded all rational hypotheses consistent with innocence; that is the guilt of the accused must not only be a rational inference, but the only rational inference in all of the circumstances: Paulus Pawa v. The State [1981] PNGLR 498 approving The State v. Tom Morris [1981] PNGLR 493, adopting Barca v. The Queen (1975) 50 ALJR 108 quoting Peacock v the King (1911) 13 CLR 619. See more recently Maladina v The State (2016) SC1495.

(18) All of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: Paulus Pawa (supra). The evidence must be considered as a whole and not by a piecemeal approach to each particular circumstance: see also The Queen v Baden-Clay (2016) 258 CLR 308. The essential elements of the offence must be proved beyond reasonable doubt but it is not necessary for every fact, or every piece of evidence, relied upon to be proved beyond reasonable doubt: See also Shepherd v R (1990) 170 CLR 573.

(19) For an inference to be reasonable it must rest upon something more than conjecture. The bare possibility of innocence should not prevent a finding of guilt: Paulus Pawa v. The State, supra.

(20) It is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. Where an accused chooses to give evidence, however, that evidence may narrow the range of alternative hypotheses reasonably available upon the evidence: see The Queen v Baden-Clay (supra).

Counts 1 to 4

(21) The accused was employed as an ATM Support Officer with the Bank of South Pacific and attended the ATMs on the dates alleged in each of Counts 1 to 4 of the indictment.

(22) The accused deliberately took cash from the subject ATM in each case. Bank records established that the amount of cash taken with respect to Counts 1, 2, 3, and 4 was K7,350, K5290, K11,500 and K12,000, respectively.

(23) The accused moved the cash by a physical act in each case. She moved it when she first separated it from the cash which she intended to return to the ATM, and continued to move it until she carried it out of the ATM feeder room at which point the offence was complete: s. 365(3) of the Criminal Code; Ikalom; The State v Boria Hanaoi; R v Taylor; Wallis v Lane (supra)applied.

(24) At the time the accused took and moved the cash she did so fraudulently, that is...