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

State v Bune [2022] PGNC 223; N9670 (10 June 2022)

N9670

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 219 OF 2021

STATE

V

EUGENE BUNE

Waigani: Wawun-Kuvi, AJ
2022: 2^nd,3^rd,6^th,7^th and 10^th June

CRIMINAL LAW-TRIAL-Application to stop the case-Criminal Code, Unlawful Use of Motor Vehicle, s 383(2)-Application to stop the case- State case inherently weak, vague and is inconsistent with other evidence – Application to stop case upheld

The accused was charged for unlawful use of motor vehicle under section 383(2) of the Criminal Code. It was alleged that the accused did not obtain the consent of the owner of the vehicle when he drove it out of the home of the person who had lawful possession. The vehicle was unregistered and did not have a registration plate. The vehicle was described as bearing engine number 2KD-7750729.

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] [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. Whilst the State charged that Dickson Yamba was the owner of the vehicle, he explicitly stated that he was not.
6. There is very little evidence that National Capital District Commission (NCDC) owned a vehicle bearing engine number 2KD-7750729 and that it sold the vehicle to Dickson Yamba.
7. That is no evidence that the ownership of the vehicle bearing engine number 2KD-7750729 was transferred from NCDC to Dickson Yamba.
8. The evidence is inconsistent as to whether the ownership of the vehicle bearing engine number 2KD-7750729 was transferred to Joel Kuleko.
9. The State did not provide by way of evidence any vehicle transfer documents and vehicle registration documents.
10. In conclusion, there is no evidence proving conclusively the identification of the vehicle, the evidence as to ownership is inconsistent and vague and the accused was given permission to use the vehicle by the person who was purported to be in lawfully possession of the vehicle.
11. Considering the foregoing matters, the application to the stop the case is upheld.

Cases Cited
The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287
State v Paul Kundi Rape [1976] PNGLR 96

Reference

Criminal Code (Ch 262)

Counsel
Mr Johnath Suminji, for the State
Mr Jeffery Kolowe, for the Defence

RULING

10^th June, 2022

1. WAWUN-KUVI, AJ: The State presented an indictment charging the accused for unlawful use of motor vehicle contrary to section 383(2) of the Criminal Code. The accused denied the charge. The State call three witnesses and closed its case.
   
2. The defence now move this application to stop the case.
   
3. The application is moved pursuant to the second limb enunciated in the case of State v Paul Kundi Rape [1976] ^[1]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]^[2].
   
4. In the second limb, 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.
   
5. 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.
   
6. 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] PNGLR 96.
   
7. The Defence submit that:
   • There is evidence there is no identification of the alleged motor vehicle. The State pleaded in the indictment the engine number but there was no evidence by the witnesses as to the vehicle bearing the specific engine number.
   • The vehicle did not have a number plate.
   • The evidence as to ownership is inconsistent.
   • The person in lawful possession of the vehicle gave the vehicle keys to the accused.
8. The State submits that 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. It submits that the evidence demonstrates that:
   • Dickson Yamba is the legal owner of the vehicle because he won the tender for the vehicle.
   • Joel Kuleko was the person who was in lawful possession of the vehicle.
   • Joel Kuleko gave possession of the vehicle to Windi Kundi to only do panel beating work and spray painting. He did not give authorization for the vehicle to be driven around.

The Indictment

9. The accused was charged as follows:
   

“.....on 6^th April 2018 did unlawfully used a motor vehicle, Toyata single-cabin Hilux dark green in colour bearing engine number 2KD-7750729, without the consent of DICKSON YAMBA.....”

The Elements

10. The State must show that there is some evidence that supports each of the following elements:
    1. The Accused used
    2. A motor vehicle OR aircraft
    3. Without the consent of the owner OR the person in lawful possession of it
    4. The use of the vehicle was unlawful.

The Evidence

5. Dickson Yamba expressly stated that he was not the owner of the vehicle. He had put a bid for a vehicle. He won the bid but did not have sufficient funds to purchase the vehicle. He informed Joel Kuleko. Joel Kuleko purchased the vehicle under his name. Joel Kuleko took the motor vehicle descried a green Toyota Hilux home. He transferred the ownership of the vehicle on 9 March 2018.
   
6. Joel Kukelo explicitly stated that the green Toyota Hilux was his vehicle. He states that Dickon Yamba did not provide the transfer documents.
   
7. Joe Kuleko states that he gave possession of the vehicle to Windi Kundi to do panel beating and spray painting. He was later informed by Windi Kundi that the accused took the vehicle and damaged it in an accident.
   
8. Windi Kundi stated at the outset that the accused approached him and informed him that he needed to collect his properties at Gerehu. He gave the vehicle key to the accused to assist him with transporting his properties.
   
9. The accused remained silent in his Record of Interview.
   
10. Receipts that were tendered through Dickson Yamba only shows that he paid a tender fee and bought a vehicle. It does not state that the make or model of the vehicle.

Is the State’s case inherently weak, vague or inconsistent with other evidence?

11. Yes.
    
12. The State charged that Dickson Yamba was the owner of the vehicle. Dickson Yamba says explicitly that he was not. Joel Kuleko says that he was the owner of the vehicle.
    
13. Dickson Yamba states that he transferred the ownership a month before the alleged offence. Joel Kuleko states that there was no such transfer.
    
14. The State did not call any authorized officer from NCDC to confirm that the vehicle described as Toyota single-cabin Hilux dark green in colour bearing engine number 2KD-7750729 was owned by NCDC and subsequently sold.
    
15. The State did not provide by way of evidence any vehicle transfer documents and vehicle registration documents. There were no documents tendered to show that:
    • NCDC put on tender the vehicle described by the State as a Toyota single-cabin Hilux dark green in colour bearing engine number 2KD-7750729.
    • Dickson Yamba was the successful bidder for the vehicle specifically described as a Toyota single-cabin Hilux dark green in colour bearing engine number 2KD-7750729.
    • NCDC then transferred ownership to Dickson Yamba.
    • Dickson Yamba transferred ownership to Joel Kuleko.
16. The only evidence is that Joel Kuleko drove a vehicle described as a green Toyota Hilux to his residence. He later brought the vehicle to Windi Kundi for spraying painting and panel beating. The vehicle did not have a registration or number plate and was unregistered. The accused asked Windi Kundi to use the vehicle and Windi Kundi gave the vehicle keys.
    
17. In conclusion, there is no evidence proving conclusively the identification of the vehicle, the evidence as to ownership is inconsistent and vague and the accused was given permission to use the vehicle by the person who was purported to be in lawfully possession of the vehicle.
    
18. Considering the foregoing matters, the application to the stop the case is upheld.

Orders:

19. 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 dated 2 June 2022.
    5. Bail is refunded.

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

^[1] PNGLR 96
^[2] PNGLR 287 (14 September 1983)