N9684

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 221 OF 2021

STATE

V

HANGU PIPIYA

Waigani: Wawun-Kuvi, AJ
2022:  25th -27th May, 1st, 2nd & 10th June
CRIMINAL LAW-TRIAL-Application to stop the case-Criminal Code, Conspiracy to Defraud, s 407(1)(b)-Application to stop the case- State case inherently weak – Application to stop case upheld
The accused was charged with Conspiracy to Defraud under section 407(1)(b) of the Criminal Code.  The State charged that the accused conducted a fraudulent meeting at his home. During the meeting he conspired with Max Hayare, Elvis Hari and Angai Mange to change the signatories of the accounts belonging to Bebahoya Limited. The accounts were held with the Bank of South Pacific Limited, Mt Hagen branch. 
Held:
1.	In an application to stop the case, the court considers the tenuous character of the State’s evidence which may be that it is inherently weak, vague or is inconsistent with other evidence. This is the second limb in the case of State v Paul Kundi Rape [1976] PNGLR 96 which was endorsed by the Supreme Court in, The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287.
2.	There is no weighing of evidence or assessment of credibility. Any issues on the State’s case must be apparent on the face of the evidence.
3.	The Court does not consider whether the State has proven its case beyond a reasonable doubt, but rather whether the accused can be lawfully convicted: State v Paul Kundi Rape [1976] [1976] PNGLR 96.
4.	The State must show that there is some evidence that supports each element of the offence.
5.	The elements of Conspiracy to Defraud under section 407 are: (1) The prosecution must prove the existence of an agreement (2) The intent to perform an unlawful act by each of the co-conspirators. See State v Iori Verage [2005] PGNC 103; N2849.
6.	The police did not execute the search warrant on the Bank of South Pacific and did not obtain a search warrant for the Investment Promotion Authority. 
7.	There were no statements from the relevant authorized officers.
8.	Without the documentary evidence, the Court is only left with the evidence that the complainant went to the Bank and was not allowed to conduct any banking.
9.	There is very little evidence to support the element that there was an agreement between the accused, Max Hayare, Elivis Hari and Angai Mange. That the agreement was to change the signatories to the company account of Bebahoya Limited. That the agreement was unlawful, and each person entered into the agreement with the intent to perform that unlawful act.  
10.	As it is the evidence is inherently weak. The Application to stop the case is upheld.

Cases Cited
State v Iori Verage [2005] PGNC 103; N2849
State v Popo [1987] PNGLR 286
The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287 
Paul Kundi Rape [1976] PNGLR 96
Reference
Criminal Code (Ch 262)
Evidence Act 
Counsel
Ms Samantha Mosoro, for the State
Mr Jeffery Kolowe, for the Defence

RULING
10th June, 2022

1.	WAWUN-KUVI, AJ:  The State presented an indictment charging the accused for conspiracy to defraud under section 407(1)(b) of the Criminal Code. The accused denied the charge. The State called three witnesses and closed its case.

2.	The defence move an application to stop the case.

3.	In an application to stop the case, the court considers the tenuous character of the State’s evidence which may be that it is inherently weak, vague or is inconsistent with other evidence. This is the second limb in the case of State v Paul Kundi Rape [1976] PNGLR 96 which was endorsed by the Supreme Court in, The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287.

4.	There is no weighing of evidence or assessment of credibility. Any issues on the State’s case must be apparent on the face of the evidence.

5.	The Court does not consider whether the State has proven its case beyond a reasonable doubt, but rather whether the accused can be lawfully convicted: State v Paul Kundi Rape [1976] [1976] PNGLR 96.

6.	The State must show that there is some evidence that supports each element of the offence.

7.	Def have asked the Court to weigh the evidence. This is not the stage and is misconceived. The relevant submission as it relates to the application to stop the case pursuant to the second limb are as follows:
•	There is no material evidence that has been tendered regardless of the sworn evidence of the arresting officer and the complainant.
•	The arresting officer’s evidence was in relation to Bank and IPA documents which were given to him by the complainant. He did not obtain a search warrant for the documents. The State had the documents marked for identification.
•	The complainant also gave evidence about those documents. The documents were not verified.
•	There was no authorized person from the bank called by the State to tender the documents.
•	The complainant’s evidence about the meeting was hearsay and inadmissible.
8.	The State submits that in a no case to answer, the Court is not required to be satisfied beyond a reasonable doubt. That the State must demonstrate that there is some evidence that establishes each element of the offence. 

9.	The State submits that the evidence of the witnesses establishes some evidence as to each element of the offence of conspiracy. The bank documents and the Investment Promotion Authority documents are not vital to the State’s case.

The Indictment
10.	The accused persons are charged as follows:

“ between 1st day of January 2019 and 31st January 2019 at Port Moresby, National Capital District in Papua New Guinea conspired with MAX HAYARE, ELVIS HARI and HANGAI MANGE to defraud Bebahoya Limited, by fraudulently conducting a meeting to change the signatories to Bebahoya Limited’s operating accounts numbers 1003464953 and 1001511171 held with the Bank of South Pacific, Mt Hagen, Western Highlands Province… .”
The Elements

11.	Sakora, J in State v Iori Verage [2005] PGNC 103; N2849, stated that the “the offence of conspiracy is the agreement to do an unlawful act or a lawful act by unlawful means.” 

12.	The elements of conspiracy are:
•	The prosecution must prove the existence of an agreement.
•	The intent to perform an unlawful act by each of the co conspirators 
See State v Iori Verage [2005] PGNC 103; N2849
The Evidence
13.	The only admissible evidence is that the complainant went into the Bank of South Pacific branch in Mt Hagen and was informed that he could not access the company account. He argued with the bank officers. He was given some bank documents. He went to the Police Station laid a complaint with the arresting officer. The arresting officer informed him to collect more documents. He went to the Investment Promotion Authority. He was given some documents. He gave those documents to the arresting officer. 

14.	The arresting officer obtained a search warrant for the Bank, but it was not executed. He did not obtain a search warrant for the Investment Promotion Authority. 

15.	The State sought to tender the bank documents and the company documents through the complaint as business records under section 61 of the Evidence Act. The defence objected on the basis that the documents were not obtained through search warrants and further the documents should be properly tendered through the relevant authorized officer from the Bank or the Investment Promotion Authority. The documents were not admitted as the Court was not satisfied that the requirements under section 61 were met. There were no statements obtained from the relevant authorized officers nor was there any attempts made to call those officers. The documents remained as marked for identification.

16.	State witness Pila Hepali says that he was threatened with arrest over allegations that he had attended a meeting in Port Moresby. He stated that he did not attend a meeting in Port Moresby. He is illiterate and cannot identify any documents. He was not shown any documents. 
Whether the State case is inherently weak, vague or is inconsistent with other evidence?
17.	 As stated, all purported bank and Investment Promotion Authority documents were not admitted into evidence. 

18.	In State v Popo [1987], the Court exercised its common law discretion to refuse to admit evidence that was obtained without a search warrant. In that case, the police had entered a village and seized a firearm. They had opportunity to obtain the search warrant but did not do so. 

19.	In the present case, the arresting officer did not make any attempts to execute the warrant of arrest on the Bank and made no attempts to obtain a warrant for the Investment Promotion Authority. 

20.	For the State to rely on the documents from the Bank and the Investment Promotion Authority, counsel for the State needed to ensure that the documents were obtained through a search warrant and that relevant authorized officers gave statements. This was not done. Under section 61, the Court may accept the documents if there is evidence produced through oral testimony, affidavit, oath, affirmation, or certificate. There was none.

21.	Without the documentary evidence, the Court is only left with the evidence that the complainant went to the Bank and was not allowed to conduct any banking.

22.	The charge here is conspiracy to defraud. There is very little evidence to support the element that there was an agreement between the accused, Max Hayare, Elivis Hari and Angai Mange. That the agreement was to change the signatories to the company account of Bebahoya Limited. That the agreement was unlawful, and each person entered into the agreement with the intent to perform that unlawful act. 

23.	In closing, this case demonstrates the importance of the State, determining whether they need any more evidence than the actual oral testimony of the complainant and the arresting officer, to achieve the purpose for which they want the evidence to be admitted. 

24.	    As it is the evidence is inherently weak. The Application to stop the case is upheld.
Orders:
25.	The Orders of the Court are:
1.	The Application to stop the case is upheld.
2.	A Verdict of Not Guilty is returned.
3.	The accused is acquitted.
4.	The Accused is discharged on the indictment.
5.	Bail is refunded

________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Defence