State v Fito (No.1) [2010] PGNC 185; N4172 (15 October 2010)

N4172

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1337 OF 2009

THE STATE

v

SIMON FITO (NO. 1)

Bialla: Kawi, J
2010: 16th, 17th July, & 15th October

CRIMINAL LAW- Stealing- Criminal Code-Section 372(1)- State case depends upon reception of circumstantial evidence- Principles of circumstantial evidence – logical and reasonable inferences to be drawn- accused charged with two counts of stealing- money is a thing capable of being stolen- Accused employed as a security guard to guard ATMs – Accused in a special relationship of trust between himself and ATM customers – accused assisted a customer to check balance in his bank account- customer freely trusting the accused gave his pin number to the accused.-Accused swapped cards and intentionally gave customer a wrong card. Accused hid in Bialla and pretended to go back to Kimbe- accused used card to withdraw monies from the account- Accused found guilty and convicted of both counts of stealing.

Cases cited:

Papua New Guinea Cases

The State –v- Saka Varimo [1978] PNGLR 62,
The State –v- Ogadi Minjipa [1977] PNGLR 293 followed
Paulus Pawa v The State [1981] PNGLR 498;
Tom Morris –v- the State [1981] PNGLR 493 at 495

Overseas Cases

Barca v. The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104; [1975] HCA 42; 50 ALJR 108 at 117.
Brown –v- Dunn [1893] 6 R. 67, H.L

Counsel

Mr. D. Kuvi, for the Prosecution
Ms J M Ainui, for the Defence

15 October, 2010

1. KAWI J: INTRODUCTION: Simon Fito of Waimana village, Yangoru, East Sepik Province is accused and charged with two counts of stealing. The stealing is alleged to have occurred starting at the ATM terminal here in Bialla where he is alleged to have stolen an ANZ Bank Access Card belonging to a customer, one Pious Malken and subsequently withdrawing monies from the card totaling K2,000 on at least two different occasions.

COUNT 1

2. In count 1 he stands charged that between the 17th April 2009 and 20th April 2009 at Bialla the accused is alleged to have stolen from one Pious Malken, an ANZ Bank Access Card, belonging to the said Pius Malken, contrary to section 372 (1) Criminal Code.

COUNT 2

3. In count 2 Simon Fito stands charged that he between the 17th April 2009 and 20th April 2009 at Bialla, West New Britain Province, he stole K2, 000 in cash, monies belonging to the ANZ Bank, Bialla Branch. His actions are alleged to have contravened section 372 (1) of the Criminal Code.

He was subsequently indicted on both counts.

ARRAIGNMENT

4. When these two counts of stealing were put to him upon arraignment he denied the charge and a plea of not guilty was accordingly entered and the trial commenced.

STATE ALLEGATIONS

5. The State alleges on the 17th April 2009, the accused Simon Fito was stationed as a static security guard manning the BSP ATM here in Bialla. It was about the same time that the one Pious Malken came to the ATM to check his growers fund balance. As Pious Malken stood in the long queue and was approaching the ATM, the accused who was guarding the ATM, offered to assist him, to check his balance. At that time the complainant Pious Malken gave the accused his ANZ Bank Access Card, together with his bank pin number and the accused checked the account balance of Pious Malken.

6. After checking the balance, the State alleges that the accused intentionally swapped Pious Malken's ANZ Bank Access card with another. Accused intentionally gave back the wrong card, and he kept Pious Malken's ANZ Bank Access card. Using Pious Malken's Access Card and his pin number the accused withdrew and stole K2,000 in cash between 17th April and 20th April 2009. The State alleges that the accused stole the ANZ Bank Access card belonging to Pious Malken and after he stole his Access Card he withdrew and stole K2,000 in cash belonging to the ANZ bank.

7. To sustain all its allegations the State called only one witness, Mr Pious Malken, who is also the victim and the complainant in this case.

STATE WITNESS NO.1 – PIOUS MALKEN

8. The victim of the stealing, Mr Pious Malken gave evidence that he is an oil palm block holder and lives with his family on their block here in Bialla. On a government payday, on a Thursday or Friday Pious Malken came into town to check his growers fund balance at the BSP ATM here in Bialla. Although he holds an ANZ Bank customer Access Card, due to the lack of ANZ Bank ATM facilities here in Bialla, all ANZ Bank customers use the BSP ATM facilities. Like any other bank customers, he stood in a long queue of BSP Bank customers awaiting their turn to use the Telling Machines. The accused was the lone static security guard manning the ATM that day.

9. When Pious Malken got closer to the ATM, the accused offered to help him check his balance. This Pious Malken obliged willingly by voluntarily surrendering his ATM Access Card and the pin number to the accused to check his balance. After checking the balance, the accused Simon Fito, told Pious Malken that the growers fund monies had not been deposited into his account as yet. The accused then allegedly returned his card albeit a wrong card to Pious Malken who then left. But unbeknown to him, the accused had swapped cards.

10. Without checking the Access Card, Pious Malken put the card into his wallet and went home. That following Monday he came back to the bank, this time the ANZ bank, to check his money. He went into the bank and had his card swiped, but the machine rejected the card.

11. The card was swiped a second time and again rejected by the machine. It was there and then that Pious Malken discovered that his Access card was stolen. In cross examination, Pious Malken stated that he was standing very close to the accused and saw him insert his Access Card into the machine. On the screen he could read his own balance, which showed a monetary figure of K2000.00 plus. The accused however told him a lie, when he said that the money had not been deposited into his account as yet. Furthermore Pious Malken stated that his card was always in his wallet and whenever he leaves his home, he makes sure that the home is always locked. In response to a suggestion by the defence counsel that his card was picked up by one of his children or relative at the house, he maintained that all his visitors, including his children and grandchildren, would normally sit in the win house and then return back to their homes. He continued to maintain that he always kept his card in his wallet and that he never used or gave the wallet to anyone let alone used the card for any transactions that Thursday.

12. After he discovered his Access Card missing Pious Malken began hunting around for the security guard who had inserted his card into the ATM on that Thursday last. On that Monday morning he went to the BSP ATM, but he could not find the security guard concerned. He asked for his whereabouts and was told that the guard concerned (accused) had run away to Kimbe. By then K2, 000 had already been withdrawn from his ANZ bank account. A check at the ANZ bank revealed that the monies were withdrawn using his card here in Bialla.

STATE WITNESS NO.2

13. The second State witness called was Mr George Leo, the ANZ bank branch manager. The trust of his evidence is that;

(a) The maximum amount that can be withdrawn in a day is K1000-00 only. It is not possible to withdraw more than K1000-00

(b) Any bank transaction done on a weekend will be carried over and shown as appearing on the next working day date which would usually be a Monday.

14. In this case the K2,000.00 was withdrawn over the weekend. On the bank Statement it was shown as a transaction done on a Monday which is perfectly normal.

15. At the close of the Prosecution case, the accused opted to given sworn evidence and here is a summary of his evidence.

THE DEFENCE CASE

16. The accused is a former security officer with Guard Dog Security, and his work station was always to guard the BSP ATM here in Bialla. His supervisor was also with him, as there were a lot of people using the ATM that day as after all this was a company fortnight. The accused gave evidence that his supervisor was stationed inside the ATM room while he was outside controlling the crowd. He denied ever helping the complainant. Furthermore he said that Pious Malken, may have given his ANZ bank Access Card to his supervisor instead and was mistaken that it was him. He denied receiving a card at all to check the balance. He stated that this Friday was a guard dog security pay day as well and he was paid his pay while he was on duty. He found himself being underpaid and this prompted him to argue and become angry with his boss. Early the next day which is a Saturday he ran away to Kimbe and was working there at the Papindo supermarket when he was eventually arrested by Bialla Police.

17. The State evidence as it stands here is merely circumstantial. A conviction is dependent on the court accepting circumstantial evidence and drawing reasonable and logical inferences.

18. In this regard learned counsel for the defence, Ms Ainui submits that there are two inference that is open to the court to draw. The first is that card was given by the complaint, Pious Malken, to the Security Supervisor who got the card and never returned it to Pious Malken. The second inference to be drawn here is that the card was left in the house and picked up by one of Pious Malken's relative or even family members, who used the card to withdraw the monies. Thus it was submitted that there are doubts appearing in the story given by Pious Malken and therefore the accused is entitled to the benefit of this doubt. The Court finds that these two inferences would be quite inconsistent with the guilt of the accused for one reason only. None of those who may have allegedly picked up the card, knew of the pin number.

19. The evidence from the victim Pious Malken which this court accepts is that he willingly told the security guard his Pin number who then inserted his card into the ATM to check his balance. From the evidence available and drawing logical and rational inferences, that security guard is none other than Simon Fito, the accused. This than brings into play a third inference which the court finds is the most logical and the only rational inference to be drawn here. The inference is that it is Simon Fito who stole the card, after Pious Malken told him his Access Card pin number.

20. Defence counsel did not address me on this inference for obvious reasons.

21. Mr Kuvi in response argued that evidence clearly showed that there was only one security guard working that day and that was the accused, Simon Fito. Therefore, he was the only one who could have got the card. Secondly in relation to the theory of family members or relatives picking up the card, he invited the court to believe Pious Malken's evidence that the card was always placed in the wallet and the house is always locked. When visitors came to visit him and his wife, they always sit around his "win house" and not in the main house.

22. Mr Kuvi further submitted that defence counsel failed to put this evidence to State witnesses in cross examination and therefore did not comply with the rule in Browne –v- Dunn. I must therefore disregard these inferences which learned defence counsel insisted that I draw. It is Mr Kuvi's last submission that prompted the court to comment that it is a very important aspect of criminal procedure in our criminal justice system that an accused person must put his/her case to the victim and his witness. This is procedural fairness. To do this, before the commencement of cross-examination, accused's lawyer must make a brief opening on what his or her client's case is all about and that witnesses as well as the court are not taken by surprise. This principle or practice of criminal procedure was discussed by Prentice CJ in the case of The State –v- Saka Varimo [1978] PNGLR 62.

23. This was a trial or a charge of dangerous driving, causing death. After the close of the case of the State, the accused made a statement from the dock, in which an explanation of sudden emergency was raised for the first time in the trial. The trial judge held there that;

1. It is desirable that defence counsel open in cross examination of State witness, the version of facts or explanation of the conduct upon which the defence lies.

(a) Brown –v- Dunn [1893] 6 R. 67, H.L

(b) The State –v- Ogadi Minjipa [1977] PNGLR 293 followed

2. Failure to cross-examine with a view to surprising the prosecution may be taken into account in assessing the credibility of witness.

24. This court finds in this case that defence counsel Ms Ainui not only failed to make an opening statement, advocating her theory of the case, but more importantly, she failed to put to the State witnesses in cross-examination, the nature of the defence case upon which it is proposed to rely in contradiction of the State evidence. This is more so particularly in a case, such as this, where the court is being asked to rely upon inferences to be drawn from other evidence in the proceedings.

25. I accept the submission of the State prosecutor, Mr Kuvi that the two inferences relied upon the defence; viz, the ANZ bank Access Card, was given to another security guard, other than the accused and that the bank card may have been picked up by a family member or a relative or completely different person. These propositions were never put to the State witnesses and are being raised for the first time in closing arguments.

26. Consequently, I will take this into account when I assess the credibility of witnesses. Defence Counsel failed to put the Defence case to the State witnesses during cross-examination. The essence of the defence case as was revealed in the evidence in chief is this:

1. The accused and his security guard supervisor were the two security guards roistered for duty to guard the ATM in Bialla for that day. This being a fortnight week, there were a lot of people queuing up before the ATM to withdraw their monies. This accused and his security supervisor were busy the whole day monitoring and controlling the crowd of people lining up to use the ATM facilities.
   
2. Given this many people, queuing up to use the ATM, the security supervisor was inside the room where the two machines are located. The accused on the other hand stood outside on the steps leading up to the ATM room about 4-5 meters away from the Automatic Telling Machines.
   

100. The accused never at any one time during that day came inside the ATM room to help or relieve his supervisor, let alone help any customer.
     

4. After being paid his fortnightly wages that same day, the accused discovered that he was again underpaid and he protested this to his boss. Consequently he packed up his bags and left Bialla for Kimbe the next day which was Saturday the 18th April, in haste. He was working in Bialla when Police arrested him at the Papindo shopping complex, a week later.
   
5. James Nason the Security Supervisor filed in a statement (State Exhibit 1a) which was tendered in by consent of both parties. In his Statement Mr Nason says that on Friday the 17th April 2009, he put Simon Fito to work at the BSP ATM here in Bialla. The next day which was a Saturday under the pretext of going to work, he jumped onto the Security vehicle and got dropped off at the BSP Bank site to be the static guard manning the Telling Machines. In fact the accused had used that opportunity to escape to Kimbe in haste.
   

As it is, the State evidence as it stands is mostly circumstantial and is therefore entirely dependent upon reasonable and logical inferences being drawn.

There is no rule of law which says that the State can prove its case by direct evidence only. Indeed it is open to the State to establish and prove its case by the reception of circumstantial evidence.

CREDIBILITY OF WITNESSES

27. A total of three witnesses were called to give evidence .Of these the State called only two while the accused gave evidence in his own defence. I have had the opportunity to assess the demeanor of all three witnesses. I found the two State witnesses to be honest and frank in their evidence. Their credibility was not impeached during cross examination nor was it discredited. I found them to be witnesses of truth.

28. I cannot say the same thing for the accused. He appeared to be shifty and evasive in his evidence. He appeared to be calculating and was taking a lot of time to answer simple questions. He is not a person whom one can trust. Aspects of his evidence which were not put by his counsel in compliance with the rule in Browne –v- Dunn does nothing to restore his credibility.

10. PRINCIPLES OF LAW ON RECEPTION OF CIRCUMSTANTIAL EVIDENCE

29. Principles of law on the reception of circumstantial evidence are now well settled in this jurisdiction.

30. This then leads me to briefly discuss the law on circumstantial evidence as established by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498; where the Court held that:

"When a case against an accused person rests substantially upon

circumstantial evidence there should be an acquittal unless all the

circumstances are such as to be inconsistent with any reasonable

hypothesis other than the guilt of the accused."

31. The Court adopted and applied the principles in Barca v. The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104; [1975] HCA 42; 50 ALJR 108 at 117. There are some very good principles of law that His Honour Andrew, J cited in Paulus Pawa –v- the State and I wish to adopt and cite them here too because I consider them to be very important in the present case, and since it is the law applicable here now. I refer to pp 501-502:

"I take the law as to circumstantial evidence in Papua New Guinea to

coincide with what was said in the High Court of Australia in Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108 at p. 117:

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v. The King [1911] HCA 66; (1911), 13 CLR 619 at p. 634.

To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is not only that his guilt should be a rational inference but that it should be the only inference that the circumstances would enable them to draw": Plomp v. The Queen [1963] HCA 44; (1963) 110 CLR 234 at p. 252; see also Thomas v. The Queen [1960] HCA 2; (1960) 102 CLR 584 at pp. 605-606. However, "an inference to be reasonable must rest upon something

more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence'; Peacock v. The Queen at p. 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v. Director of Public Prosecutions, [1973] 1 WLR 276, that there is no duty on a trial judge to direct the jury in expressed terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense'."

32. With respect I adopt these principles here not only because they constitute the law in this jurisdiction, but also because they are of great persuasive value. His Honour Andrew, J was also in agreement with Miles J in The State v. Tom Morris [1981] PNGLR 493 at 495. In that case, the National Court also adopted and applied Barca (supra). The Court held inter alia that:

"Where there are a number of competing inferences it is a question of fact for the court to decide which inferences should be drawn, which rejected and which are reasonable, which are mere conjecture, and which party, if any, they favour.

AN ANALYSIS OF LAW AND EVIDENCE- THE COURT'S FINDINGS

33. The evidence of both, the State witness and the defence witness must be carefully analyzed and assessed as both their stories appear to run counter to each other. At the end of the day it will boil down to who is it that I should believe. Is it the State witnesses' accounts or the defence witness accounts? After reviewing all evidence before the court, this court now makes the following findings of fact by drawing reasonable, logical and rational inferences.

a) The accused Simon Fito was roistered for duties to be the static guard guarding the BSP ATM here in Bialla on a Thursday, 16th April, Friday 17th April and Saturday 18th April 2009. He was the only static guard roistered for duties on those days guarding the ATM. There were no other guards with the accused guarding the ATMs that day. Claims by the accused that his security supervisor was at work that day helping him owing to the large number of people there is a deliberate lie concocted by the accused to give credence to a story that is not true at all.

b) Question and Answer 15 of the Record of Interview of the accused Simon Fito corroborates this inference and finding:

1. Q 15. Yupela hamas i save wok long hap? (In English- How many of you work there? Answer: One pela guard tasol. (English Only one guard, me.
   
2. Q16. Long dispela taim bos bilong yu i putim o makim yu long wok long benk, em tru(English: Is it true that you supervisor appointed you to guard the bank. Answer. Em tru (English: That is true.
   

100. Q 17: Yu wok olsem women tru? (English: What were you working as? A: mi stap guard long dispel eria. (English: I was guarding this area.
     

4. Q 18. Apart long yu providim security long benk, yu gat sampela wok long mekim tu?(English: Apart from guarding the area, are there other jobs that you are required to do? Answer: Mi wok olsem guard long dispel eria, wok bilong mi tu em olsem long toktok long ol kasomas na controlim ol. (Answer: I only guard the area, but at times I talk to the customers and control their movements.
   
5. The security supervisor was not at work with Simon Fito guarding and manning the BSP ATMs on Thursday the 16th April, Friday the 17th April and Saturday the 18th April 2009. The court finds that the story of the security supervisor guarding and manning the ATMs was concocted by and manufactured by the accused Simon Fito as a cover up to shift culpability to another person. In his statement, James Nason, the security supervisor never makes a mention of dropping off Simon Fito and then staying there to help him at work to man the ATM that whole day.
   
6. There being no other person at work with the accused the most logical and credible inference to be drawn here is that when Pious Malken came to the bank on that Thursday afternoon, he asked the only security guard on duty that day, Simon Fito to help and check his growers fund balance. The accused who was manning the ATMs agreed to assist him. At this Pious Malken voluntarily surrendered his ANZ Bank Access card together with his pin number to him. When Simon Fito inserted the card into the telling machine to check the balance, the victim Pious Malken, was standing nearby and could read his own bank balance on the screen which showed a balance of K2000.00 plus.
   
7. Simon Fito after pulling out the card, from the ATM told Pious Malken that the growers fund had not been deposited into the bank as yet. At that instant owing to the many people also queuing up to use the telling machines, Pious Malken's attention was distracted and he could not and he did not see Simon Fito quickly swap the cards, deliberately giving a wrong ANZ Bank Access card to Pious Malken and hiding Malken's card for his own selfish and criminal usage.
   
8. Simon Fito pretended to leave for Kimbe on Saturday 18th April 2009, when he was dropped off at the front of the ATM car park by his supervisor. He jumped on a PMV to make it look as if he was leaving Bialla for Kimbe but then got off in Bialla and went into hiding also in Bialla. He was hiding in Bialla, while his work mates assumed that he was already in Kimbe. He hid in Bialla to withdraw and steal monies from Pious Malken's Access Card.
   

THE LAW

34. The accused is charged with two counts of stealing under section 372(1) of the code. Section 372(1) is stated in the following terms:

Any person who steals anything capable of being stolen is guilty of crime.

Penalty: Subject to this section, imprisonment for a term not exceeding three years.

35. The prosecution must prove beyond reasonable doubt that:

a) A person;

b) steals a thing that is capable of being stolen.

36. No doubt money is thing capable of being stolen.

37. The prosecution has indeed discharged its onerous burden in proving beyond reasonable doubt the two elements. In fact the court finds that Simon Fito had a perfect ploy. While hiding away in Bialla, he used Pious Malken' s ANZ Bank Access card to conduct the withdrawals. The first withdrawal was in the amount of K1000.00 and this was done on Saturday the 18th April 2009 sometime during the day. As this was the maximum amount allowed by the bank, he could not withdraw anymore monies from this card that day.

38. The court finds that Simon Fito withdrew these monies at the ATM located at the Hargy Mill. He could not come back to the Bialla Town ATM to conduct his criminal and illegal transactions in fear of being detected easily and reported by the other guard who was stationed there to replace him .

39. The second and third card withdrawals were done on Sunday the 19th April 2009. First the amount of K700.00 was withdrawn. And then subsequently the amount of K300.00 was withdrawn. These subsequent withdrawals were also done at the Hargy Mill ATM and not at the Bialla Town ATM by Simon Fito for obvious reasons. Because these bank transactions were conducted on a weekend (Saturday and Sunday) they could only show up on the bank Statements giving the next working day's date which in this case is a Monday the 20th April 2009.

40. The court finds that Simon Fito conducted a perfect ploy to fool everyone including his supervisors and to make it look as if he was in Kimbe, but he was in fact hiding in Bialla to withdraw and steal those monies. He only travelled to Kimbe after stealing those monies some time during the week beginning on Monday the 20th April 2009.

41. Drawing logical inferences, there is only one logical and rational conclusion which is very consistent with guilt. And it is the finding of this court that the accused Simon Fito of Waimana village, Yangoru, East Sepik Province is guilty of stealing and convict him of stealing Pious Malken's ANZ Bank Access Card as alleged in count 1.The court also finds Simon Fito guilty and convicts him accordingly of stealing K2000 in cash, monies belonging to ANZ bank, Bialla branch contrary to section 372(1) as charged. You are accordingly found guilty and convicted of stealing under both counts pursuant to section 372(1) of the Criminal Code.

_______________________________________________________

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