Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Kissip [2020] PGNC 17; N8184 (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: 20^th May, 20^th, 21^st, 22^nd, 23^rd August, 6^th September
2020: 7^th 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:

1. 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:
   1. an inanimate thing that:
      • (a) is the property of any person; and
      • (b) moveable;
2. and that the accused:
   1. fraudulently;
   2. takes the thing, or converts it to his own use or the use of any other person; and
   3. 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] HCA 50; (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 [1910] UKLawRpKQB 183; [1911] 1 KB 674; Wallis v Lane [1964] VicRp 41; [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] HCA 13; (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] HCA 38; (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] HCA 42; (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] HCA 45; (2002) 210 CLR 285 considering Jones v Dunkel [1959] HCA 8; (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] HCA 3; (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] HCA 42; (1975) 50 ALJR 108 quoting Peacock v the King [1911] HCA 66; (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] HCA 35; (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] HCA 56; (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 with the intent to permanently deprive BSP, the person to whom it belonged, of it: ss. 364 (1)(a)(i); s. 365(4) and Ikalom (supra)applied.

(25) The cash taken in each case was a thing capable of being stolen, being inanimate and movable: s. 364(1)(a)(ii) of the Criminal Code applied.

(26) The accused is convicted of four counts of stealing contrary to s.372(1)(7)(a)(10) of the Criminal Code.

Cases Cited:
Papua New Guinea Cases Cited

Ikalom & Anor v The State (2019) SC1888
Maladina v The State (2016) SC1495
Paulus Pawa v The State [1981] PNGLR 498
R v Birch [1978] PNGLR 79
The State v Tom Morris [1981] PNGLR 493
The State v Boria Hanaio & Ors (2007) N4012

Overseas Cases Cited:

Apostilides v R [1984] HCA 38; (1984) 154 CLR 563
Barca v The Queen (1975) 50 ALJR
De Gruchy v The Queen (2002)211 CLR 85
Dyers v R [2002] HCA 45; (2002) 210 CLR 285
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Muhammed El Dabbah v Attorney-General for Palestine [1944] AC 156 PC
Peacock v The King [1911] HCA 66; (1911) 13 CLR 619
R v Olivia [1965] 3 All ER 116
R v Apostilides (1984) 154 CLR 562
R v Shaw (1991) 57 A Crim R 425
R v Newland (1997) 98 A Crim R 455
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
R v Soma [2003] HCA 13; (2003) 212 CLR 299
R v Taylor [1910] UKLawRpKQB 183; [1911] 1 KB 674
R v Harris [1927] 2 KB 587
Shepherd v R [1990] HCA 56; (1990) 170 CLR 573
The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
Wallis v Lane [1964] VicRp 41; [1964] VR 293
Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657

Legislation and other materials cited:

Sections 364, 365, 372 and 526 Criminal Code Act

Counsel

Ms T. Aihi, for the State
Mr J. Kolowe, for the Accused

DECISION ON VERDICT

07^thFebruary, 2020

1. BY THE COURT: The State presented an indictment pursuant to s. 526 of the Criminal Code (Ch. 262) (the Criminal Code) charging the accused with four counts of stealing contrary to s. 372(1)(7)(a)(10) of the Criminal Code in the following terms:

Count 1: “on the 19^th day of January 2017 at Gordons in Papua New Guinea being an employee of Bank South Pacific Limited stole cash monies in the sum of Seven Thousand, Three Hundred and Fifty Kina (K7, 350) from Bank South Pacific Automated Teller Machine (ATM) device number 8230072 located at Gordon Bank South Pacific Commercial Centre, the Property of Bank South Pacific”.

Count 2: “on the 19^th day of January 2017 at Gordons in Papua New Guinea being an employee of Bank South Pacific Limited stole cash monies in the sum of Five Thousand, Two Hundred and Ninety Kina (K5, 290.00) from Bank South Pacific Automated Teller Machine (ATM) device number 8230086 located at Brian Bell Home Centre Gordons, the Property of Bank South Pacific”.

Count 3: “on the 20^th day of January 2017 at Boroko in Papua New Guinea being an employee of Bank South Pacific Limited stole cash monies in the sum of Eleven Thousand, Five Hundred Kina (11,500.00) from Bank South Pacific Automated Teller Machine (ATM) device number 8230106 located at the Boroko Banking Centre, the Property of Bank South Pacific”.

Count 4: “on the 16^th day of February 2017 at Boroko in Papua New Guinea being an employee of Bank South Pacific Limited stole cash monies in the sum of Twelve Thousand, Five Hundred Kina (12,000.00) from Bank South Pacific Automated Teller Machine (ATM) device number 8230093 located at the Stop and Shop North Waigani, the Property of Bank South Pacific”.

2. The State alleges that the accused stole the cash in each case whilst performing her duties as an Automated Telling Machine (ATM) Support Officer attached to the Bank South Pacific (BSP) Transaction and Channel Support (TCS) Business Unit. The accused denies all charges.
   

STATE’S CASE

3. The State called four witnesses and tendered the statements of a further five by consent.
   
4. The following documents were admitted by consent at the beginning of the trial:
   

5. David Maip has been employed with BSP for 18 years and was the Manager of Channel Support, and in charge of the support and technical teams responsible for fixing ATMs, which at the material time included four teams:
   
   1. the ATM Cash Run Team which is solely responsible for replenishing cash;
   2. the ATM Down Site Team which is responsible for clearing minor issues at the ATM and has access to the ATM safe;
   100. the Preventative Maintenance Team One which provides maintenance support to ATMs experiencing hardware errors. It has access to the safe but is not allowed to open the reject bin. It is restricted to diagnostics and clearing errors; and
   4. the Preventative Maintenance Team Two which provides top level support and has no access to the safe.
      
6. The “reject bin” or “divert bin” is a small box at the top of the ATM dispenser where notes are diverted and held when there is a miscount. Each Down Site Team has 2 ATM officers. One of them carries a key and pairs with an officer from the security team, who carries another key, to open the safe. Two ATM officers must be present in the ATM feeder room regardless of whether the safe is opened or not. In addition, one or two security officers must also attend with a “GoPro” security camera. The reject bin is only to be touched by the Down Site Team. When it is full they empty the notes from the bin into a reject bag, seal the bag, break open one of the cash cassettes and put the bag into the cassette, lock and seal the cassette and lock the cassette inside the safe.
   
7. The reject bag is a small yellow bag. The ATM officer must only ever carry one reject bag per ATM into the ATM feeder room. An officer will know how many bags will be required before going into the feeder room and normally it will only be correct to have one. Cash taken from the reject bin must not be taken out of the feeder room. It stays in the cassette until the next cash replacement when the cash team remove the cassette and take it to the Cash Distribution Centre where the cash is counted, verified and balanced. Each team is required to provide a report of what they did during the day. The report is sent via email.
   
8. The rate at which ATMs are replenished with cash depends on where they are located. ATMs in high transaction areas are replenished about every second day; in medium transaction areas about every four or five days and in low transaction areas about every fortnight. High transaction areas include Boroko and Vision City. Medium transaction areas include Gordons Commercial Centre and SNS Rainbow. Low transaction areas include hotels and court buildings. Every ATM is monitored on the bank’s network and an order is placed by the Team Leader of Cash Support when an ATM is low.
   
9. Guidelines have been issued to officers and all officers attend team meetings at which they are advised of the bank’s policies. The guidelines are also contained on the G-drive which all officers have access to.
   
10. Under cross-examination Mr Maip agreed that there had been some problems with shortfalls in 2016 and 2017 after the ATM Technical Team conducted an update from Windows Xp to Windows 7. An engineer was brought in to rectify the problem. He also agreed that the small yellow reject bag was introduced when the bank encountered the problem with the shortfalls.
    
11. Brian Tabora has been the Tactical Security Manager attached to the Cash in Transit Unit at BSP for almost 9 ½ years and responsible for deploying security escorts for internal and external threats. He also described four teams: the Main Cash In Team; the Down Site Team; the Maintenance Team and the Support Team. The security escorts are equipped with a “Go-Pro” camera together with a “Cencon” key to open the ATM vault.
    
12. The security officer accompanies the team to the ATM and records all events inside the ATM feeder room. The main focus of the camera is on the cash, the vault and the officer. Two officers from Transaction Channel Support (TCS) and two security officers must always be present. The officers from TCS open the vault, fix the machine and arrange the cash. Of the two security guards, one holds the Go Pro camera whilst the other holds the “progressive report” and records events. Two Cencon keys are required to open the ATM vault. One is held by the security duty officer and the other by a TCS officer. At the end of the day the security officer holding the GoPro camera returns it to him. He removes the CD card from the camera and download the video on to a hard drive, which he labels and keeps in his office.
    
13. As Tactical Security Manager he is responsible for maintaining the register which records all data regarding the use of the Cencon key and Go Pro camera. The register is kept in his office together with the progressive reports and hard drives containing the Go-Pro camera footage. He produced the following Cencon Key and Camera Registry Sheets admitted as Exhibits F to I.
    
14. Exhibit F: Copy of Cencon Key and Camera Registry Sheet for 19 January 2017 which records that at 10:51 the security team, Hudson Haiya as camera man and Joshua Danagi, attended with Tapo Morea and the accused at ATM Machine No 72, located at “GCC”, the Gordons Commercial Centre.
    
15. Exhibit G: Copy of Cencon Key and Camera Registry Sheet for 19 January 2017 (this is a further copy of Exhibit F), which records that at 12:43 the security team, Hudson Haiya as camera man and Joshua Danagi, attended with Tapo Morea and the accused attended at ATM Machine No. 86 located at “Brian Bell”.
    
16. Exhibit H: Copy of Cencon Key and Camera Registry Sheet for 20 January 2017, which records that at 12:05 the security team, Benny Aiye as camera man and Joshua Danagi, attended with Tapo Morea and the accused at ATM Machine No. 106 located at “BCC”, the Boroko Banking Centre.
    
17. Exhibit I: Copy of Cencon Key and Camera Registry Sheet for 16 February 2017 which records that at 12:07 the security team, Gregory Avosa as camera man and Jerry Iraki, attended with Tapo Morea and the accused at ATM Machine No. 93 located at SNS North Waigani.
    
18. Upon request, Mr Tabora provided a copy, on hard drive, of the Go Pro camera footage taken at the dates and times referred to above. He labelled the footage provided corresponding to the description (ATM, date, team) on DVDs MFI 1 to 4 (later admitted as Exhibits J, K, L and M). He is aware that the ATM feeder rooms have CCTV but he is only responsible for maintaining the GoPro footage.
    
19. An ATM will not work once a divert bin is full. It is necessary to open the vault and remove the cash inside the divert bin. Cash is captured in the divert bin when it is not dispensed to the customer. It is the responsibility of the TCS officer to take cash out of the divert bin, place it in a yellow envelope, place that envelope in a cassette, and place the cassette in the vault.
    
20. Security officers Joshua Denagi and Hudson Haiya are still employed by BSP.
    
21. Vanua Garo is a reserve police constable who has been attached to BSP for the past 10 years. At the material time he was responsible for investigating fraud against BSP and its clients, including by staff and internal parties. He conducted the investigation into alleged cash shortages against the accused and Tapo Morea and obtained video footage for ATM Nos 8230072, 8230086, 8230106 and 8230093 for the respective dates contained in the indictment from the Tactical Security Manager, Brian Tabora. The defence takes no objection to the video recordings which were admitted as:
    
    1. Exhibit J: DVD labelled “Gordons Commercial Centre 72” (formerly MFI 1);
    2. Exhibit K: DVD labelled “Brian Bell Home Centre 230086 – B/Bell ATM 19/02/2017” (formerly MFI 2);
    100. Exhibit L: DVD labelled “BBC #106 20/01/2017” (formerly MFI 3); and
    4. Exhibit M: DVD labelled “SNS North Waigani 16/02/2017 - 93” (formerly MFI 4).
       
22. I note here that whilst the investigator gave evidence about what he saw on the camera footage, the following findings are based on my own observations of it.
    
23. Exhibit J shows the accused seated on the ground in an ATM feeder room in front of a vault marked “72”. There appear to be at least two other ATM vaults in the feeder room. The accused opens the vault, removes a cassette and stands it upright on the ground in front of the vault. She removes the divert bin from the vault and two more cassettes which she stands upright closer to the camera. She removes a large number of notes from the bin which she sorts into two bundles. She then places the two bundles together into one bundle at which point she puts her finger into the middle of the large bundle and places a rubber band around some but not all of the notes in the large bundle. At 2:50 according to the video timer she puts that large bundle of notes into one yellow bag. At 2:58 she pulls a bundle of cash out of the same yellow bag. A rubber band can be seen around all of the cash in that bundle, which is clearly smaller or thinner than the bundle she put into the bag moments earlier. She puts that exposed bundle of cash on top of the first yellow bag and stands up briefly. She sits down again. She returns the empty divert bin and two cassettes to the vault. She makes an entry in a book. At 6:09 she puts the exposed bundle of cash into a second yellow bag, seals it and places it into a cassette which she seals and places in the vault. She stands up and puts the first yellow bag together with a newspaper which on the ground beside her before picking up both. At 9:42 she exits the scene with the newspaper and first yellow bag. She returns at 10:05 with both and puts the paper and yellow bag down. She picks them up again at 10:35 and holds them under her arm whilst working on the ATM. She continues to hold the newspaper and bag including when locking the vault, which is checked at 11:49, at which time the video stops.
    
24. The footage in Exhibit K is in two parts. The first part shows Tapo Morea seated in front of an open ATM vault marked “86”. Only one ATM is visible in this footage. Tapo Morea removes the divert bin from the vault and hands it to the accused who is also seated on the floor. The accused sorts the cash into three bundles. She brings the bundles together into one very large bundle. It is so large that it is somewhat difficult to bring together. At 7:38 the accused puts that bundle into a yellow bag. She moves the bag around a bit and can be seen moving her hand inside the bag until she removes a bundle of cash at 7:52 which is visibly much thinner than the bundle she first put into the bag. She puts that cash on the ground. She stands up briefly and then sits back down on top of the first yellow bag whilst the exposed cash remains on the ground. At 9:15 she puts the exposed cash in the second yellow bag, she seals it, puts it in a cassette, and gives it to Tapo Morea who puts it in the vault. At 11:07 the accused stands up with the first yellow bag and puts it under her arm. She moves towards and can be seen standing just in front of and to the right of the camera. The second video shows the accused standing at the vault. She is no longer holding the yellow bag.
    
25. Exhibit L shows a feeder room containing four ATM vaults. Tapo Morea is working in the foreground on ATM vault “106” whilst the accused is at the ATM vault behind her. The accused then sits down and can be seen to have two yellow bags beside her on the ground. She is given the divert bin from vault “106” by Morea. The accused removes the notes from the divert bin. At 1:30 she puts a bundle of cash into the yellow bag and removes it at 1:35. The bundle she removes is visibly thinner than the one put into the bag moments earlier. It is not possible to see what the accused does for the next few moments as Tapo Morea obscures sight of the accused until 1:51 when the accused can be seen removing cash from a yellow bag and then putting it back in the same yellow bag. This bundle is also thinner than the original bundle of cash. She seals the yellow bag and puts it in the cassette at about 3:20. She seals the cassette and at about 4:05 Morea puts the cassette back into the vault. At about the same time the accused stands up, picking up a yellow bag which is on the floor behind her as she does so. She works on the second ATM. At 4:55 she picks up the yellow bag, which appears to have something inside it. She places it under her arm and at 5:11 walks towards the camera and then out of shot.
    
26. Exhibit M is in two parts. The first shows Tapo Morea remove the divert bin from an ATM vault and give it to the accused, who is seated on the ground. A total of two ATM vaults can be seen in this feeder room. The accused empties and sorts a very large number of notes from the divert bin into three bundles. At about 3:00 on the timer she picks up one of the bundles and puts it into the green bag (refer to findings in this regard further below). At 3:01 the zip to the top side pocket of the green bag can be seen at the right hand end of the green bag, closest to the camera. (See again at 3:13.) She then stands up and drops the green bag on the floor. She sits down. At 3:20 she puts the remaining cash into the main pocket of the green bag. At 3:35 the accused appears to move something on the side of the green bag, right to left. At 3:30 both side pocket zips can be seen at the far left of the green bag. At 3:55 she pulls the cash out of the middle pocket of the first green bag and puts a rubber band around it. She puts it back in the first green bag and then pulls it out again. At 4:54 she puts the cash in a yellow bag. At about 5:44 she puts the first green bag together with and underneath a second green bag on the floor. At 6:22 she seals the yellow bag and puts it on the ground. At about 7:03 she picks up the green bags and puts them in a shelf on the second ATM (#94). At 7:45 she gives the yellow bag to Morea, which is eventually put into a cassette, sealed and put into the ATM vault at about 11:40. The footage ends with the accused working on the top of the ATM (#93). The second piece of footage appears to immediately follow (showing the accused still working on the ATM). She steps out of shot briefly before returning to the screen holding a green bag, which appears bulky, whilst the vault of “93” is locked. The footage ends there.
    
27. Under cross-examination Mr Garo explained that BSP has an MOU with RPNGC under which he is a reserve constable but is employed by the bank.
    
28. In his evidence in chief Mr Garo gave some evidence about a record of interview he conducted with the accused at the bank. The record of interview was not tendered and there was no evidence about any warnings given to the accused. Whilst there was no objection, the evidence should not have been led in that manner and I will disregard it.
    
29. In cross-examination, it was put to Mr Garo that the accused was investigated in relation to other ATMs and that those investigations found nothing wrong. Mr Garo did not know.
    
30. With respect to Count 1, Mr Garo agreed that K7350 is a large amount of money but said that the thickness of the bundle of cash would depend on the denomination of notes it contained. He agreed it was not possible to tell from the footage how much cash was in the yellow bag but maintained that he relied on the banks other records for this purpose. He said that it did occur to him during the course of the investigation that CCTV footage from the feeder rooms may assist but regarded the GoPro Camera footage as sufficient.
    
31. He did not take statements from the two security guards who attended with the accused because they were also considered suspects at the time and were under investigation. He agreed they have not been arrested to date.
    
32. He agreed with respect to Count 2 that he could not tell what denominations were put into the yellow bag, or how thick the bundle was, but did not ask the security guard(s).
    
33. He denied that he was acting in the bank’s interests or on its instructions, instead of investigating professionally as a police officer would. He agreed that the GoPro footage only captured what occurred inside the ATM feeder room and not elsewhere in the bank.
    
34. In response to repeated suggestions that he should have taken statements from the security officers he maintained that the Go Pro camera footage was sufficient as it got a close view of what the officers were doing at the ATM. Even in the case of Count 3 where Tapo Morea is obstructing the view of the accused at times, he maintained that the GoPro footage was sufficient. As to the other ATMs at which there were shortages, a decision was made by his supervisor to go ahead with the current charges. Other than Tapo Morea, he has not investigated and charged others present in the feeder room at the time of the alleged offences.
    
35. On Count 4 he maintained that the accused put a bundle of money into the side pocket of the green bag and that is why the bag did not appear thick. He agreed he could not tell if that would amount to K12000 but maintained that it depended on the denominations of the notes.
    
36. Wemaloo Nagari has been with BSP for 28 years and is the Team Leader of the Cash Distribution Centre (CDC), a position she held in 2017. In this role she oversees the verification of cash brought into CDC from across the network. Cash from the ATM is collected by a support team and security guards at the time the cash in the ATM is replenished. Part of her job is to verify ATM cash returns where there is a discrepancy, either a shortage or surplus of more than 5 notes in any denomination. She also reports if there is a discrepancy in the ATM returns to the Compliance and Reconciliation Teams, and the Head of the Business Unit.
    
37. As the Team Leader it was her responsibility at the relevant time to check and confirm any ATM cash shortages by comparing the total amount of cash used to replenish the ATM with the total amount dispensed to customers, which should equate to the amount remaining in the ATM and returned to CDC, with the Transaction Initiation Audit Receipt, which is printed out from the ATM by the ATM Support Team and records those amounts as “cash beg”, “cash dsp” and “cash end”, respectively. The following shortages were identified.
    
38. ATM #8230072: The Transaction Initiation Audit (TIA) Receipt, Exhibit B-5 from the ATM dated 19 January 2019 shows that K136,850 should have been recovered from the ATM:
    

39. However, the actual amount recovered as confirmed by the CDC on 20 January 2017 and shown in Exhibit B-2, the Cash Break Up Slip, was K129,500, or a shortage of K7350:
    

40. ATM #8230086: The Transaction Initiation Audit (TIA) Receipt, Exhibit B-9 from the ATM dated 23 January 2017 shows that K55,180 should have been recovered from the ATM:
    

41. However, the actual amount recovered as confirmed by CDC and shown in Exhibit B-6, the cash break up slip dated 23 January 2017 was K49,890, or a shortage of K5290:
    

42. ATM #8230106: The Transaction Initiation Audit (TIA) Receipt, Exhibit B-13 dated 20 January 2017 from the ATM shows that K297,700 should have been recovered from the divert bin:
    

43. However, the actual amount returned as confirmed by CDC and shown in Exhibit B-10 dated 23 January 2017 was K286,200, or a shortage of K11,500:
    

44. ATM #8230093: In this case the situation is somewhat different. On the face of it the Transaction Initiation Audit (TIA) Receipt, Exhibit B-17dated 22 February 2017 states that K37,070 should have been recovered from the ATM in K20 and K50 notes:
    

45. Exhibit B-6 confirms that the actual amount recovered and confirmed by CDC matched this amount.
    

46. However, Ms Nagari said that the TIA receipt was not properly produced from the ATM by the ATM Support Team, or there may have been a system error that did not pick up the K100 notes, but in any event she cannot tell from B17 how many K100 notes are missing.
    
47. Exhibit B-15, however, is the ATM Balancing Sheet for ATM 8230093 which is prepared by the Bank’s Reconciliation Team by comparing the physical cash count with the balance contained on the bank’s system according to its general ledger. Ms Nagari is able to give evidence of how the report is prepared in accordance with the bank’s systems and processes as she also used to be the Team Leader of the Reconciliation Team.
    
48. This reports confirm that there was no shortage in the K20 and K50 notes but shows that the ATM was short of (120) K100 notes, or a total of K12,000.
    
49. The ATM Balancing Sheets, Exhibit B-3, B-7 and B-11also confirm the shortages of K7,350, K5250 and K11,500 for each of ATMs 8230072, 8230086 and 8230106, respectively, set out above. The previous general ledger balances referred to in these reports are further confirmed by Exhibits B-4, B-8, B-12 and B-16.
    
50. Under cross-examination Ms Nagari agreed that the CDC also found shortfalls on other ATMs, Nos 34, 22 and 60 in the amounts of K4930, K3590 and K7250 respectively, and that those shortages were reported to the ATM Reconciliation and Compliance Team and the Head of the Business Unit. Reporting to the Investigation Team is done by the Reconciliation and Compliance Team.
    
51. With respect to the TIA Receipt for Device 8230093 she confirmed her view that the TIA update was not done properly. She could not comment on whether it was a systems error.
    
52. In her statement dated 1 August 2017, admitted by consent, Exhibit B-1, Robu Garo, the Team Leader, ATM Reconciliation states that her team is responsible under the Transaction and Channel Support Business Unit (TCS) for managing the daily reconciliation of general ledger accounts and ensuring that all values are accounted for and cleared in line with approved TCS procedures and timelines. She personally checked and confirmed the compilation of ATM balance sheets after receiving the Transaction Initial Audit Receipts from CDC, by her staff in compliance with bank policies and procedures. The ATM Balance Sheets showed the following shortages (together with a further four ATMs between 1 December 2016 and 27 February 2107):
    
    1. K7,350 between 17/1/17 to 19/1/17 on Device 2300072;
    2. K5,290 between 10/1/17 and 23/1/17 on Device 230086;
    100. K11,500 between 17/1/17 and 20/1/17 on Device 230106; and
    4. K12,000 between 13/2/17 and 22/2/17 on Device 230093.
       
53. Joseph Sisire, ATM Reconciliation Officer, in his statement dated 1 August 2017, Exhibit A, admitted by consent, states that he was the officer who conducted the above reconciliations on instructions from his team leader, Robu Garo. He confirms the above amounts.
    
54. Vicka Johnson, Manager ATM Cash Monitoring, Operational Risk Department, in her statement, dated 28 July 2018 admitted by consent, Exhibit C, confirms that upon instructions from the Head of the Transaction and Channel Support Business Unit she commenced investigations into the shortages experienced by ATMs within the National Capital District during the period 2 December 2016 to 16 February 2017. Upon review of cash break up slips, ATM balance sheets and Transaction and Initiated Audit Receipts the following shortages were identified and referred to the Investigation Unit for further investigation:
    
    1. K7,350 on 2/12/16 on Device No 230072, Gordons Commercial Centre;
    2. K5,290 on 19/1/17 on Device 230086, Brian Bell Home Centre;
    100. K11,500 on 20/1/17 on Device 230106, Boroko Banking Centre; and
    4. K12,000 on 16/2/17 on Device 230093, SNS North Waigani.
       
55. A statement is also available from Ruth Kuman, Team Leader Electronics, Exhibit E, confirming the dates and times at which tasks were assigned to the accused and Tapo Morea in respect of each of the ATMs the subject of the counts, and the times at which safes were opened and closed.
    

DEFENCE CASE

56. The accused gave evidence in her own defence. At the time of the alleged offences she has been employed with BSP for 10 years. She was previously based in Popondetta before being posted to General Operations on promotion as an ATM Support Officer. She was unable to recall how many other ATM Support Officers are employed by the bank. She estimates that there are more than 10 but less than 15. When she first joined as an ATM Support Officer in 2012, they were more like custodians in that they were assigned ATMs to look after. They did the cash balancing, cash counts, reconciliations, and the balancing and verification now done by the CDC. They also attended to faults and cash replenishments. When there were discrepancies, they also did the investigations. At that time there were only two teams, the ATM Support Team and the Maintenance Team. The ATM Support Team’s role was to attend to minor faults and software issues. If they could not fix the issue it would be referred to the Maintenance Team. Because the ATM Support Team were the custodians, the Maintenance Team could not touch the cash.
    
57. In 2013 or 2014 there was a restructure and General Operations changed to Transaction General Support and some roles were taken away and given to other sections to perform. Following the restructure their only role was to replenish the machines and attend to “down sites”, that is fixing faults at the ATM. The CDC is responsible for preparing, counting and verifying cash. The CDC prepares the cash to refill the ATMs. The Reconciliation Team took over the balancing and investigation of discrepancies. ATM Support and ATM Maintenance Teams are now performing the same roles, touching cash and doing cash runs.
    
58. As an ATM Support Officer, she was assigned by roster to work with a partner for a week. Two ATM Support Officers are attached to two security personnel. There is a cash run team of 3 officers attached to the CIT Team to refill the ATMs.
    
59. Since joining in 2012 she has never been shown or sighted any procedures. She was told by her manager to observe from the officers already on the job. Before her suspension she was interrogated for 17 hours about procedural breaches. She asked for a copy of the procedures, but none were provided. Despite having multiple interviews, she has never sighted any procedures.
    
60. She has attended to ATM faults all over NCD. All feeder rooms have CCTV in operation. The Go-Pro camera is only switched on when the safe is open.
    
61. The ATM Support Team and Security pick up the cash and transport it to CDC for counting.
    
62. On Count 1, she denied taking any money. Placing her finger inside the bundle of cash is just how she sorts out the cash. She did not breach any procedures. It is just how she works. She took all the cash out of the first yellow bag. She was shown both the CCTV and GoPro footage during interview by the investigating officer. From the Go-Pro footage she cannot recall if she went out the door when she exits the footage (at 9:51) or whether she was attending to another device. The only people who could confirm that would be the other people who were present or the CCTV footage. It is not true that there is a set procedure requiring that only one yellow bag is taken into the ATM feeder room. No written policy was provided when the yellow bags were introduced. They were just told what the bags were for. As to what happened to the yellow bag, on a normal run, three officers usually sit in the back of a double cab, and one support officer sits up front with the driver. The yellow bag is normally put between the driver and the offside.
    
63. On Count 2, there was only ever one bundle of cash. No money was left in the first bag. At 11:25 when she stood up the other security guard was standing at the doorway to the ATM feeder room.
    
64. On Count 3, at 5:22 she did not leave the ATM feeder room. She would have waited at the doorway. The only thing that would capture it is the CCTV footage or the other guard. She did not steal K11,500, put it in the bag and take it out of the feeder room.
    
65. On Count 4, all cash was placed in the main pocket of the green bag. If she had placed the bundle in the side pocket of the green bag the CCTV footage would have captured it. The green bags were new and it was the first time to use one but the money could not fit well so she moved the money out of the green bag and into the yellow bag. The security guards were standing in the doorway. She did not steal K12,000 and put it in the green bag. With respect to Exhibit B-17, the TIA Receipt would have been printed by the ATM Support Team during the cash run. The Maintenance Team is also involved in obtaining receipts during the cash run.
    
66. Prior to the upgrade there were fewer discrepancies but following the upgrade there was a “massive” increase in discrepancies and that is when management introduced the yellow bags because ATMs were incurring losses and experiencing faults. There were many rejects which filled up the divert bins and prompted the use of yellow bags to empty the divert bins. After the upgrade most faults were full divert bins. There was no policy or documented procedure regarding the use of the yellow bags.
    
67. She did not steal the money alleged in Counts 1, 2, 3 or 4.
    
68. Under cross-examination she said that she would take more than one bag into the feeder room because the reports were not always accurate about the nature of the fault.
    
69. With respect to Count 1, she agreed that she handled the cash. The use of her finger to divide the bundle is just her way of doing the work. She agreed that she took the first yellow bag out of the feeder room but denied stealing any money.
    
70. With respect to Count 2, she agreed that she handled the cash, used her index finger and took the first yellow bag out of the feeder room but denied stealing any money.
    
71. With respect to Count 3, she agreed that she handled the cash using two yellow bags. She could not remember if she put money in a second bag when the film was obstructed by Tapo Morea and denied stealing any money.
    
72. With respect to Count 4, she agreed she handled the cash and used 2 green bags and 1 yellow bag but denied taking K12,000.
    

ASSESSMENT OF WITNESSES

73. In evaluating the witnesses, I have considered their credibility, that is, their honesty and their reliability. I have done so based upon a consideration of their evidence in the context of the case as a whole and bearing in mind that I may choose to accept or reject, in whole or in part, the evidence of any witness.
    
74. I was impressed by all of the State witnesses and accept them as honest and reliable. Their evidence goes primarily to the systems and processes in place at the bank governing the emptying of divert bins, the management, counting and recording of cash moved to and from the bank’s ATMs, and the making and keeping of video footage of work conducted by the ATM Support Team. Very little of this was in dispute. They gave their evidence clearly, without hesitation and were not shaken under cross-examination.
    
75. Most criticism by the defence was levelled at Mr Garo. It was suggested that he was either an inexperienced investigator or that he was simply following the directions of the bank when he failed to produce CCTV footage or interview the security officers for the purpose of this case. I will return to these particular matters below.
    
76. With respect to Mr Garo, I found him to be a very impressive witness. He was open and direct. He did not falter under cross-examination. Moreover, the primary purpose of his evidence was to produce the video footage which the accused did not object to and which shows the matters I have set out above. With respect to the investigation generally, it was well conducted in my view as reflected by the detailed systems and records evidence collated from responsible officers within the bank.
    
77. Having heard and observed the accused in the witness box, I am unable to accept her as a witness of truth. This is based on a combination of my assessment of her demeanour when giving evidence together with the content of that evidence. She was a hesitant witness who struggled at times to respond to simple questions about her conduct during both examination in chief and cross-examination, or repeated that only the CCTV footage could show, or the security guards could say, what happened in each case. Her evidence was at odds with what I saw on the footage of the events in question.
    
78. I approach my assessment of the accused’s evidence on the basis that the fact that she lied about some matters does not necessarily mean she must be lying about other matters. Indeed, there are a number of respects in which her evidence is uncontentious, for instance her admissions as to her attendance to the ATMs on the days in question and her handling of cash, and in general terms I accept that evidence. In light of my overall assessment of the accused, however, I am unable to accept her as a witness of truth in relation to contested matters where her evidence is not corroborated.
    
79. I make it clear, however, that I take account of her untruthfulness in relation to her credibility and the reliability of her evidence only and for no other purpose. The accused gave evidence although she was not obliged to do so. By entering the witness box and giving evidence she did not take upon herself any obligation to prove anything in this trial.
    

SUBMISSIONS

80. The defence submitted that with the exception of the investigating officer, Vanua Garo, the other witnesses called by the State cannot assist the Court. Furthermore, that Vanua Garo is not a qualified police officer but a police officer employed by the bank. He relied only on the GoPro camera footage used by the security guards. It asked why, if he was a qualified police officer he did not use the CCTV footage to assist him and why did he not ask the two security guards who were present at the time to provide statements. It submitted that the State should have called these witnesses and that the State’s case has not been established on the evidence of Vanua Garo beyond reasonable doubt.
    
81. Furthermore, that the accused was just following her normal routine and that her evidence was clear that she did not steal the money, and even if she did take the cash, which she did not, “the bag (presumably in each case) was not thick enough for the amount” alleged.
    
82. The State relied on the evidence summarised above and considered in further detail below.
    

STEALING

83. “Stealing” is defined in s. 365 of the Criminal Code in the following terms (emphasis added):
    

“DEFINITION OF STEALING.
(1) In this section–
“owner”, in relation to a thing, means–
(a) the owner or a part-owner of the thing; or

(b) any person having possession or control of, or a special property in, the thing;
“special property” includes–
(a) any charge or lien on the thing in question; and

(b) any right arising from or dependent on holding possession of the thing in question, whether by the person entitled to the right or by some other person for his benefit.

(2) Subject to the succeeding provisions of this Code, a person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any other person anything capable of being stolen is said to steal that thing.

(3) The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.

(4) A person who takes or converts anything capable of being stolen shall be deemed to do so fraudulently if he does so with intent–

(a) to permanently deprive the owner of the thing of it; or

(b) to permanently deprive any person who has any special property in the thing of that property; or

(c) to use the thing as a pledge or security; or

(d) to part with it on a condition as to its return that the person taking or converting it may be unable to perform; or

(e) to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; or

(f) in the case of money, to use it at the will of the person who takes or converts it, even if he intends to afterwards repay the amount to the owner.

(5)In the case of a conversion, it is immaterial–

(a) whether the thing converted is taken for the purpose of conversion, or is at the time of the conversion in the possession of the person who converts it; and

(b) that the person who converts the property–

(i) is the holder of a power of attorney for the disposition of it; or

(ii) is otherwise authorized to dispose of it.

(6) A taking or conversion may be fraudulent, even if it is effected without secrecy or attempt at concealment.

(7) When a thing converted has been lost by the owner and found by the person who converts it, the conversion shall not be deemed to be fraudulent if at the time of the conversion the person converting the thing–

(a) does not know who is the owner; and

(b) believes, on reasonable grounds, that the owner cannot be discovered.”

84. Things capable of being stolen are defined, for our purposes in s. 364 (1)(a) of the Criminal Code (emphasis added):
    

“364. THINGS CAPABLE OF BEING STOLEN.

(1) The following things are capable of being stolen–

(a) all inanimate things that–

(i) are the property of any person; and

(ii) are movable...”

85. Thus, to establish the offence in each case the prosecution must prove beyond reasonable doubt the following elements:
    
    1. the thing the subject of the charge is a thing capable of being stolen (as defined in s. 364), that is:
       1. an inanimate thing that:
          • (a) is the property of any person; and
          • (b) moveable;
    2. and that the accused:
       1. fraudulently;
       2. takes the thing, or converts it to his own use or the use of any other person; and
       3. Actually, moves or otherwise deals with the thing by some physical act.
          
86. 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] HCA 50; (1906) 4 CLR 126 at 135 considered. See further the discussion in Carter’s Criminal Law of Queensland, 20^th Edition, at [391.20].
    
87. “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 at [17]. See also The State v Boria Hanaoi & Ors (2007) N4012.
    
88. 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) at [23].
    
89. All that is required to establish an intention to permanently deprive is an intention to retain the property indefinitely: Ikalom(supra) at [24] applying The State v Boria Hanaio &Ors(2007) N4012.
    
90. When an offence of stealing is complete is a question of fact.
    
91. 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 [1910] UKLawRpKQB 183; [1911] 1 KB 674 in which the partial removal of a wallet from a pocket was held to be sufficient asportation. In Wallis v Lane [1964] VicRp 41; [1964] VR 293 the defendant was transporting certain goods by truck. He moved some of the goods to a different position on the truck with the intention of stealing them. This amounted to sufficient asportation. See further the discussion in Carter’s Criminal Law of Queensland, 20^th Edition, 2015 at [391.60].
    

CIRCUMSTANTIAL EVIDENCE

92. Some of the evidence relied upon in support of each of the charges is circumstantial. The principles governing such cases are well established. 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] HCA 42; (1975) 50 ALJR 108 quoting Peacock v the King [1911] HCA 66; (1911) 13 CLR 619. See more recently Maladina v The State (2016) SC1495. See also The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308):
    

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstantial evidence 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 C.L.R 619 at 634. To enable the jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw: Plomp v. The Queen (1963) C.L.R 234 at 252, see also Thomas v. The Queen [1960] HCA 2; (1960) 102 C.L.R 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.

An inference as to the guilt of an accused should be drawn only after the court had made a full and thorough evaluation of all the circumstances in evidence... ”.

93. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence: see the comments of the High Court of Australia in De Gruchy v The Queen (2002)211 CLR 85 at [48]. Similarly, the principles applicable in a circumstantial case are no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt: see Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at [2]. This will depend upon whether all of the evidence establishes that the only rational conclusion is the guilt of the accused.
    
94. In The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 the High Court of Australia again considered and affirmed the principles outlined in Barca. As above, 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); see also Baden-Clay at [46]. The evidence must be considered as a whole and not by a piecemeal approach to each particular circumstance: Baden-Clay at [47]^[1]. 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: Shepherd v R, supra at [6].
    
95. The High Court also observed in Baden-Clay that:
    

“(A) criminal trial is accusatorial but also adversarial. Subject to well defined- exceptions, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue."

96. Further, at [62]: “It may readily be accepted that "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."^[2] Where an accused chooses to give evidence, however, that evidence may narrow the range of alternative hypotheses reasonably available upon the evidence: see [54], [55], [62] and [63]. To my mind those principles are self-evident and also apply in this jurisdiction.
    

PROSECUTION DUTY TO CALL ALL MATERIAL WITNESSES

97. As above, the defence submitted that the State had failed to establish the offence(s) beyond reasonable doubt in the absence of the CCTV footage which would have been available from the ATM feeder rooms in each case and, whilst not articulated in these terms, effectively submitted that the State failed to call material witnesses, namely the two security guards who attended with the accused at the sites of each of the alleged offences.
    
98. 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.
    
99. As the prosecution seeks the truth, it must call evidence favourable and unfavourable to its case (R v Soma [2003] HCA 13; (2003) 212 CLR 299; R v Shaw (1991) 57 A Crim R 425.
    
100. 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: Muhammed El Dabbah v Attorney-General for Palestine [1944] AC 156 PC; Apostilides v R [1984] HCA 38; (1984) 154 CLR 563 also considered.
     
101. 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] HCA 42; (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).
     
102. Where the prosecution fails to call a witness without providing a reasonable explanation, the Court, if it considers that the prosecution has not exercised its discretion fairly, may 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.
     
103. In Dyers v R [2002] HCA 45; (2002) 210 CLR 285, Gaudron and Hayne JJ said in considering the application of the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298:
     

“Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, 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.”

104. In RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, Gaudron A-CJ, Gummow, Kirby and Hayne JJ said:
     

“... 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 jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused.”

105. Returning to the present case. The State has demonstrated valid reasons, through the evidence of the investigating officer, Vanua Garo, for not calling the other persons who attended at each of the alleged incidents. Nor was there any unfairness in the State decision not to produce the available CCTV footage.
     
106. It is not in dispute that Tapo Morea, the accused’s ATM Support Team partner, has been charged for her role in the alleged offences. I understand that her matter has been dealt with separately. Ms Morea was clearly not compellable in these proceedings.
     
107. I also accept that the security guards were suspected of being involved in the alleged offences by the bank in view of their roles and responsibilities. Real issues of both compellability, and reliability in terms of their own observations thus arise for the State. In view of their status, the security guards had never been asked to provide statements in this matter. There was nothing unfair in the State’s decision not to call them.
     
108. In addition, the Go Pro footage taken, Exhibits J, K, L and M, and the records of attendance made, the Cencon Key and Camera Registry Sheets, Exhibits F, G, H and I, by those officers, at the sites of the alleged offences was tendered without objection and was not challenged.
     
109. The extent to which film or video recordings, whether it be from a CCTV camera or as in this case from the Go Pro camera, 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.
     
110. In this case no issue is taken with the recordings or their accuracy. The images contained on the Go Pro footage are in colour and of high quality. The accused freely admits that she appears in the footage. She is clearly shown in each case. It has not been suggested that the footage has been tampered with in any way. The evidence led through Brian Tabora establishes that there is a system in place at the bank for the recording and keeping of camera footage, and that it has been complied with. In my view the footage was also admissible pursuant to s. 61 and/or s. 65 of the Evidence Act.
     
111. As for the CCTV footage, this is not a case where the prosecution has failed to disclose its existence. The accused stated that she was shown the footage during her interview(s). Whilst she is under no obligation to lead any evidence, if the accused had wished to rely upon the footage in support of her case she was at liberty to do so. She was at liberty to obtain copies of it either from the State upon request, or through summons, and at liberty to tender it through the investigating officer, or another witness if preferred.
     
112. Furthermore, I accept the State’s evidence that the Go Pro camera footage records events inside the ATM feeder room whilst the vault is open, and provides a closer and more focused view of the officers dealing with the cash in the ATM feeder room than the CCTV footage.
     
113. Whilst the Go Pro camera footage is powerful evidence against the accused, however, it is not the only evidence.
     
114. Again, whilst I emphasise that the accused is under no obligation to prove anything in this trial, she did give evidence and her evidence was that she did not separate or take the cash from the total amount of cash removed from the divert bin in the first place. For the reasons stated below the State’s evidence excludes that hypothesis in respect of the element of “taking” beyond reasonable doubt in each case.
     
115. For the reasons set out below I am also satisfied that the State’s evidence has excluded any rational inference other than that the accused moved the monies out of the feeder room.
     
116. Ultimately, the question remains whether the State has established its case beyond reasonable doubt in respect of every element of the offence alleged in Counts 1 to 4 of the indictment.
     

ANALYSIS

117. It is not in dispute and I find that the accused was employed by BSP as an ATM Support Officer at the time of the alleged offences.
     
118. I also find Exhibits J, K, L and M to be genuine recordings of the events inside the feeder rooms on the dates and at the times corresponding with the Cencon Key and Camera Registry Sheets, Exhibits F, G, H and I, and set out above at[22] to [25].Key findings are set out below.
     

Count 1

119. It is not in dispute and I find that on 19 January 2017 the accused attended BSP ATM Device No. 8230072 located at Gordons Bank South Pacific Commercial Centre as an ATM Support Officer.
     
120. Exhibit F confirms she was the officer who rectified the divert bin error.
     
121. Exhibit J shows and I find that the accused opened the vault of the ATM marked “72”, about which there is no dispute that is ATM 8230072. She removed the divert bin from the vault of the ATM device, opened and emptied it, and sorted the notes into two bundles before bringing them together into one large bundle. She placed her finger into the middle of the large bundle and placed a rubber band around some but not all notes in the bundle before placing the bundle into a yellow bag. She then pulled out a bundle of notes from the same yellow bag. The bundle of exposed cash is visibly thinner or smaller than the bundle placed in the yellow bag a few moments earlier, and a rubber band can be seen around all of the exposed notes. The accused put the exposed bundle of cash on top of the first yellow bag which was on the floor. A few minutes later she put the exposed cash into a second yellow bag, which she sealed, placed into a cassette and returned to the vault of ATM 8230072. She then stood up and shortly afterwards picked up the first yellow bag together with a newspaper before exiting the shot for about 20 seconds, before returning with the newspaper and yellow bag. She put them down briefly, picked them up again and held them under her arm whilst working on the ATM and whilst the vault is locked.
     
122. I refer to the elements of the offence of stealing set out at [85] above. With respect to element (b)(ii), I am satisfied beyond reasonable doubt that the accused separated and took some cash from the total amount of cash removed from the divert bin of ATM device No 8230072. It is so obvious from the footage that I have considered whether it is necessary to address the finding in terms of circumstantial evidence but out of an abundance of caution I find that as the bundle of notes she removed from the first yellow bag was confined by a rubber band and visibly smaller than that which she put into the first yellow bag moments earlier, the only rational inference is that the accused left cash inside the first yellow bag.
     
123. I am also satisfied that the State has excluded any rational inference that the cash left by the accused in the first yellow bag was left there inadvertently. The use of her finger to separate the large bundle, the use of the rubber band, the use of two yellow bags, the unnecessary steps taken to perform a simple task (i.e. putting the cash into one bag, pulling it out again, putting it in another bag) and basic common sense satisfy me of that fact.
     
124. With respect to element (b)(iii), I am further satisfied beyond reasonable doubt that the accused moved this cash by a physical act. She moved it when she first separated it from the cash which she intended to return to the vault and continued to move the cash until she took it in the first yellow bag and carried it out of the feeder room at which point the offence was complete. Whilst the footage does not show the accused leaving the ATM feeder room for the final time, there can be no dispute that she did leave the feeder room not long after the vault was closed. I am satisfied beyond reasonable doubt that the only rational inference is that at the time the accused left the feeder room with the first yellow bag for the final time she carried the cash away with her. As above, the footage shows the accused taking the cash into the first yellow bag. The accused admits that she took the first yellow bag out of the feeder room. The footage shows that she maintains close control of it in the meantime. The accused is the only person to physically deal with cash from the ATM before any monies are returned in a cassette to the ATM’s vault. The bank’s records show that money is missing. The State’s evidence has excluded any rational inference that the cash was not moved and carried out of the feeder room by the accused.
     
125. It does not matter that the accused was still on bank premises at the time (as the ATM feeder room was inside the bank in this case). Any movement with intent to steal is sufficient. Stealing does not necessarily involve a complete removal from the physical possession of the owner: see R v Taylor [1910] UKLawRpKQB 183; [1911] 1 KB 674; Wallis v Lane [1964] VicRp 41; [1964] VR 293.
     
126. With respect to element (b)(i), I am further satisfied beyond reasonable doubt that at the time the accused took and moved the cash she did so fraudulently, that is with the intent to permanently deprive the owner, BSP, of it, which she well knew should have been kept with and returned with all of the cash removed from the divert bin to the ATM vault. There can be no other rational inference in all of the circumstances.
     
127. With respect to element (a)(i)(b), it is not in dispute and I am satisfied beyond reasonable doubt that the property in this case, namely cash, was a thing capable of being stolen as defined in s. 364, being inanimate and moveable.
     
128. Furthermore, with respect to element (a)(i)(a), I am satisfied beyond reasonable doubt that the cash stolen by the accused was the property of the bank, BSP, and her employer, for the purposes of s. 372(7)(a) of the Criminal Code.
     
129. There was some suggestion, not fully articulated by the defence, that a system error may have been responsible for the shortages. There was evidence from the bank’s officers that there had been some problems with shortfalls in 2016 and 2017 following a system upgrade, which had required an expert to rectify the problem, and that the yellow bags had been introduced in response to the issue. The defence also relied on evidence which showed that there were similar shortages at four other ATMs (in the amounts of K8450, K4930, K3590 and K7250) at which the accused attended during the same period, for which the accused was not charged: see the statement of Robu Garo, Exhibit B1.
     
130. I am satisfied that the State has excluded any rational inference that the alleged shortages in this case were a result of system error. As set out above, the video footage clearly shows evidence of the accused taking cash. Furthermore, I am satisfied that the bank’s records establish the amounts taken beyond reasonable doubt. The amount is confirmed by the physical cash count compared to both the Transaction Initiated Audit Receipts and the bank’s general ledger. The evidence excludes the submission that the bag does not appear “thick” enough to be holding that amount of cash, or that its appearance is due to the presence of other things, like work tools.
     
131. In summary, I am satisfied beyond reasonable doubt that the accused on 19 January 2017 at Gordons in Papua New Guinea being an employee of Bank South Pacific Limited stole cash monies in the sum of Seven Thousand, Three Hundred and Fifty Kina (K7,350) from Bank South Pacific ATM Device No. 8230072, located at Gordons BSP Commercial Centre, the property of BSP, contrary to s. 372(1)(7)(a)(10) of the Criminal Code. The evidence led by the State to prove each of the elements of the offence is such that any reasonable hypothesis consistent with the innocence of the accused has been excluded.
     

Count 2

132. I find that on 19 January 2017 the accused attended BSP ATM Device No. 8230086 located at Brian Bell Home Centre, Gordons.
     
133. Exhibit F confirms she was the officer who rectified the divert bin error.
     
134. Exhibit K shows and I find that the accused emptied and sorted the cash taken from the divert bin of the device into three bundles before bringing the cash into one large bundle which she placed into a yellow bag. Her hand moved around inside the yellow bag for a few moments before she pulled out a bundle of cash which was visibly much thinner or smaller than the one put into the bag moments earlier. The accused put that exposed cash on the ground, stood up briefly and then sat back down on top of the first yellow bag whilst the exposed cash remained on the ground in front of her. The accused then put the exposed cash into a second yellow bag, which she sealed, put into a cassette and gave to Tapo Morea who returned it to the vault of device 8230086. The accused stood up with the first yellow bag and put it under her arm before moving towards the camera, that is towards the door. In the second piece of footage the accused is standing at the vault and is no longer holding the yellow bag.
     
135. With respect to element (b)(ii), I am satisfied beyond reasonable doubt that the accused took some cash from the total amount of cash removed from the divert bin of ATM device No 8230086. I find that as the bundle of notes she removed from the first yellow bag was smaller than that which she initially put into the first yellow bag a few moments earlier, the only rational inference is that the accused left cash inside the first yellow bag.
     
136. The State has excluded any rational inference that the cash left by the accused in the first yellow bag was left there inadvertently. The use of two yellow bags, her sitting down on top of the first yellow bag whilst dealing with the rest of the cash, and basic common sense satisfy me of that fact.
     
137. With respect to element (b)(iii), I am further satisfied beyond reasonable doubt that she moved this cash by a physical act. She moved it when she first separated it from the cash which she intended to return to the vault and continued to move it until she took it in the first yellow bag out of the feeder room at which point the offence was complete. I am satisfied beyond reasonable doubt that the only rational inference is that at the time the accused left the feeder room she carried the cash with her in the first yellow bag. As above, the footage shows the accused taking the cash into the first yellow bag. The accused admits that she took the first yellow bag out of the feeder room. I am satisfied that she maintains close control of it in the meantime. The accused is the only person to physically deal with cash from the ATM before any monies are returned in a cassette to the ATM’s vault. The bank’s records show that money is missing. The State’s evidence has excluded any rational inference that the cash was not moved and carried out of the feeder room by the accused.
     
138. With respect to element (b)(i), I am further satisfied beyond reasonable doubt that she took and moved the cash fraudulently, that is with the intent to permanently deprive the owner, BSP, of it, which she well knew should have been kept with and returned with all of the cash taken from the divert bin to the ATM vault. There can be no other rational inference.
     
139. With respect to element (a)(i)(b), it is not in dispute and I am satisfied beyond reasonable doubt that the property in this case, namely cash, is a thing capable of being stolen as defined in s. 364, being moveable.
     
140. Further, with respect to element (a)(i)(a), I am satisfied beyond reasonable doubt that the cash stolen by the accused is the property of the bank, BSP, her employer.
     
141. I am satisfied that the State has excluded any rational inference that the alleged shortages in this case were a result of system error. As set out above, the evidence shows the accused taking cash. Furthermore, I am satisfied that the bank’s records establish the amount taken beyond reasonable doubt. This is confirmed by the physical cash count compared to both the Transaction Initiated Audit Receipts and the bank’s general ledger. The evidence excludes the submission that the bag does not appear “thick” enough to be holding that amount of cash, or that its appearance is due to the presence of other things, like work tools.
     
142. In summary, I am satisfied beyond reasonable doubt that the accused on 19 January 2017 at Gordons in Papua New Guinea being an employee of Bank South Pacific Limited stole cash monies in the sum of Five Thousand, Two Hundred and Ninety Kina (K5, 290.00) from Bank South Pacific Automated Teller Machine (ATM) device number 8230086 located at Brian Bell Home Centre Gordons, the Property of Bank South Pacific, contrary to s. 372(1)(7)(a)(10) of the Criminal Code. The evidence led by the State to prove each of the elements of the offence is such that any reasonable hypothesis consistent with the innocence of the accused has been excluded.
     

Count 3

143. I find that on 20 January 2017 the accused attended BSP ATM Device No. 8230106 located at the Boroko Banking Centre as ATM Support Officer.
     
144. Exhibit H records that she and Tapo Morea rectified the divert bin error.
     
145. Exhibit L shows and I find that the divert bin was removed from the vault of device 106 and handed to the accused by Tapo Morea. The accused removed notes from the divert bin and put a bundle of cash into a yellow bag before removing it a few moments later, at which time the bundle was visibly smaller than that placed in the bag just a few moments earlier. The accused is obscured from view for a few moments before she can be seen putting a bundle of cash into a yellow bag. This bundle of cash is also thinner than the bundle of cash the accused was seen to put into the yellow bag initially. The accused sealed the yellow bag and put it into a cassette which she handed to Morea who put it into the vault of device 106. At about the same time the accused stood up, picked up another yellow bag which was on the floor behind her and took it with her to a second ATM. She worked on the second ATM before picking up the yellow bag, placing it under her arm and walking towards the camera, that is towards the door, and out of shot.
     
146. With respect to element (b)(ii), I am satisfied beyond reasonable doubt that the accused separated and took some cash from the total amount of cash removed from the divert bin of ATM device No 8230072. I find that as the bundle of notes she removed from the first yellow bag was smaller than that which she initially put into the bag, the only rational inference is that the accused left cash inside the first yellow bag.
     
147. The State has excluded any rational inference that the accused inadvertently left some cash in the first yellow bag. The insertion of cash and then its removal just moments later for no apparent reason, together with basic common sense satisfy me of that fact.
     
148. With respect to element (b)(iii), I am further satisfied beyond reasonable doubt that she moved this cash by a physical act. She moved it when she first separated it from the cash which she intended to return to the vault and continued to move it when she took it in the yellow bag out of the feeder room. I am satisfied beyond reasonable doubt that she took the cash out of the feeder room. She can be seen exiting the footage and it cannot be disputed that she did leave the ATM feeder room that day. As above, the footage shows the accused taking the cash into the first yellow bag. The accused maintained control of the yellow bag. The accused is the only person to physically deal with cash from the ATM before any monies are returned in a cassette to the ATM’s vault. The bank’s records show that money is missing. The only rational inference in all the circumstances is that the accused took the cash and then moved it out of the feeder room.
     
149. With respect to element (b)(i), I am further satisfied beyond reasonable doubt that she took and moved the cash fraudulently, that is with the intent to permanently deprive the owner, BSP, of the cash, which she well knew should have been kept with and returned with all of the cash taken from the divert bin to the ATM vault. There can be no other rational inference.
     
150. With respect to element (a)(i)(b), it is not in dispute and I am satisfied beyond reasonable doubt that the property in this case, namely cash taken from the ATM divert bin, is a thing capable of being stolen as defined in s. 364, being moveable.
     
151. Further, with respect to element (a)(i)(a), I am satisfied beyond reasonable doubt that the cash stolen by the accused is the property of the bank, BSP, and her employer.
     
152. The State has excluded any rational inference that the alleged shortages in this case were a result of system error. As set out above, the evidence shows the accused taking cash. Furthermore, I am satisfied that the bank’s records establish the amount taken beyond reasonable doubt. This is confirmed by the physical cash count compared to both the Transaction Initiated Audit Receipts and the bank’s general ledger. The evidence excludes the submission that the bag does not appear “thick” enough to be holding that amount of cash, or that its appearance is due to the presence of other things, like work tools.
     
153. I am satisfied beyond reasonable doubt that the accused on 20 January 2017 at Boroko in Papua New Guinea whilst an employee of Bank South Pacific Limited stole cash monies in the sum of Eleven Thousand, Five Hundred Kina (11,500.00) from Bank South Pacific Automated Teller Machine (ATM) device number 8230106 located at the Boroko Banking Centre, the property of Bank South Pacific, contrary to s. 372(1)(7)(a)(10) of the Criminal Code. The evidence led by the State to prove each of the elements of the offence is such that any reasonable hypothesis consistent with the innocence of the accused has been excluded.
     

Count 4

154. I find that on 16 February 2017 the accused attended BSP ATM Device No. 8230093 located at the Stop and Shop North Waigani as an ATM Support Officer.
     
155. Exhibit H records that she and Tapo Morea rectified the divert bin error.
     
156. Exhibit M shows and I find that Tapo Morea removed the divert bin from the vault of ATM device No. 8230093 and gave it to the accused, who was seated on the floor. The accused emptied and sorted a very large number of notes from the divert bin into three bundles. The accused then picked up one of the bundles and put it into the side pocket of the green bag whilst standing up quickly at the same time.
     
157. The accused then sat down again and a few moments later put the remaining, exposed cash into the main pocket of the green bag. She then pulled the exposed cash out again and put a rubber band around it. She put it back in the first green bag and then pulled it out again before putting it into a yellow bag. She then put the first green bag together with and underneath a second green bag on the floor. She sealed the yellow bag and put it on the ground. She subsequently picked up both green bags and put them on a shelf on a second ATM (#94). She then gave the yellow bag to Morea, who eventually put it into a cassette, which is sealed and put into the vault of ATM No. 8230093, which is locked. The footage ends with the accused working on the top of the ATM (#93). The second piece of footage appears to immediately follow (showing the accused still working on the ATM). She steps out of shot briefly before returning to the screen holding a green bag, which is visibly bulky, whilst the vault of “93” is locked. The footage ends there.
     
158. With respect to element (b)(ii), I am satisfied beyond reasonable doubt that the accused took a bundle of cash notes from the total amount of cash removed from the divert bin of ATM device No 8230093 and put it in the side pocket of the first green bag. Whilst it is the case that the side pocket is on the reverse side of the green bag (thus facing away from the camera), the accused can clearly be seen putting monies into the rear of the green bag, where there are side pockets, the zip of one of which is not long thereafter closed (see [25] above). The State has excluded any rational inference that the accused put that first bundle of notes in the main pocket of the green bag. It certainly did not vanish into thin air.
     
159. The State has excluded any rational inference that the accused inadvertently left behind the cash in the first green bag. The use of the two green bags, one yellow bag, the use of the side pocket and common sense satisfy me of that fact.
     
160. With respect to element (b)(iii), I am satisfied beyond reasonable doubt that she moved this cash by a physical act. She did so when she first separated it from the cash which she intended to return to the vault and continued to do so when she carried the cash out of the feeder room. I am satisfied beyond reasonable doubt that when the accused left the feeder room, she carried the cash with her in the first green bag. Whilst the accused is not seen leaving the feeder room, it cannot be disputed that she did leave the ATM feeder room that day shortly after the job finished. The accused maintained control of the bag, and is seen holding it as work on the vault is completed and the footage ends. The footage shows the accused taking the cash into the green bag and the bank’s records show that money is missing. The only rational inference in all the circumstances is that the accused took the cash and then moved it out of the feeder room. The State’s evidence has excluded any rational inference that the cash was not moved and carried out of the feeder room by the accused.
     
161. With respect to element (b)(i), I am satisfied beyond reasonable doubt that the accused took and moved the cash fraudulently, that is with the intent to permanently deprive the owner, BSP, of the cash, which she well knew should have been kept with and returned with all of the cash taken from the ATM divert bin. There can be no other rational inference.
     
162. With respect to element (a)(i)(b), it is not in dispute and I am satisfied beyond reasonable doubt that the property in this case, namely cash taken from the ATM divert bin, is a thing capable of being stolen as defined in s. 364, being moveable.
     
163. Further, with respect to element (a)(i)(a), I am satisfied beyond reasonable doubt that the cash stolen by the accused was the property of the bank, BSP, and her employer.
     
164. The State has excluded any rational inference that the alleged shortages in this case were a result of system error. As set out above, the evidence shows the accused taking cash. Furthermore, I am satisfied that the bank’s records establish the amounts taken beyond reasonable doubt. Whilst the TIA Receipt does not disclose the amount in this case, the shortage is confirmed by the physical cash count compared to the bank’s general ledger. The evidence excludes the submission that the bag does not appear “thick” enough to be holding that amount of cash, or that its appearance is due to the presence of other things, like work tools.
     
165. I am satisfied that the State has established beyond reasonable doubt that the accused on 16 February 2017 whilst being an employee of Bank South Pacific Limited stole cash monies in the sum of K12,000 from Bank South Pacific Automated Teller Machine (ATM) device number 8230093 located at North Waigani Stop and Shop, the Property of Bank South Pacific, contrary to s. 372(1)(7)(a)(10) of the Criminal Code. The evidence led by the State to prove each of the elements of the offence is such that any reasonable hypothesis consistent with the innocence of the accused has been excluded.
     
166. Verdict: Guilty of four counts of stealing.

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

^[1] Applying R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at 638 [48]. See also Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 535; [1984] HCA 7.
^[2]Barca, supra.