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Genamo v State [2023] PGSC 143; SC2494 (3 November 2023)

SC2494

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 36 OF 2022

VELE GENAMO
Appellant

V
STATE
Respondent

Waigani: Kangwia J, Miviri J, Dowa J
2023: 30^th October & 03^rd November

SUPREME COURT - Criminal Law - Prisoner appeal against conviction - Bank Teller - Stealing as a servant s 372 (7) Criminal Code Act – No direct evidence - Reliance on involuntary prior admissions and oral evidence - Evidence relied on inconsistent with unavailability of CCTV footage - contradictory oral evidence and documentary evidence - reasonable doubt created - Conviction unsafe - Conviction quashed & set Aside - Appeal Upheld - Appellant discharged.

Facts
The appellant was convicted after trial for stealing as a servant US $9670 from the Bank of South Pacific Branch at Jackson Airport where he was a teller in the International Money Exchange. He was sentenced to 3 years IHL.

Held

1. In the absence of direct evidence, the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; Paulus Pawa v The State [1981] PNGLR 498 applied:
2. The evidence before the Court was tainted with contradictions and inconsistencies creating reasonable doubt on the guilt of the accused rendering the conviction unsafe and unsatisfactory.
3. The Appeal is upheld, and the conviction is set aside.
   

Cases Cited

Beng v The State [1977] PNGLR 115
Pok v State (1983) PNGLR SC254
Evertz v State [1979] PNGLR 174
Paulus Pawa v The State [1981] PNGLR 498

Legislation

Criminal code Act

Constitution of the independent State of Papua New Guinea.

Supreme Court Act

Counsel:
Appellant in person
T. Kametan, for the Respondent

DECISION

02^nd November 2023

1. BY THE COURT: This is the unanimous decision on a prisoner appeal against conviction. The appellant was convicted of stealing as a servant pursuant to section 372 (7) of the Criminal Code Act.
   

Brief facts

2. The appellant was employed by Bank of South Pacific at Jacksons International Airport as a foreign exchange teller at the material time. Between 4^th and 7^th October 2019, the appellant is alleged to have stolen USD $9,670.00 which is equivalent to PNG Kina of K31,033.37 according to the prevailing exchange rate. Internal investigations were carried out and he was eventually interviewed and charged with stealing.
   
3. The appellant denied the charge and was found guilty after trial and was sentenced to three years imprisonment.
   

Grounds of Appeal

4. The appellant raises nine (9) grounds of appeal which are set out as follows.
   
   • (a) The trial Judge erred in fact and in law, in convicting the Appellant on Stealing when there was evidence of discrepancy in the reconciliation process done by the Accused Team Leader namely Vagi Gugubo, which was not checked at the material time of the incident and not by the appellant when questioned by Vele his Team Leader namely stated that he wanted to balance the systems this occurred between the hours of 0330pm and 0530pm which was not a normal routine task. This was a deliberate concealment of evidence against the Branch Manager and to shift the blame to the Accused. This occurred on the 06^th October 2019.
     
   • (b) The Trial Judge erred in fact and in law, in convicting the appellant when there were very serious inconsistencies in the evidence of the Team Leader namely Vagi Gugubo. He was asked by Vele to reverse the transactions for proper diligent check on the 08^th of October 2019 because the system takes the weekend transactions as Monday and reports are available on the next day that is Tuesday the 8^th October 2019 but he refused and told Vele to sign and close the till he was operating, is an act of criminal negligence by the team Leader namely Vagi Gugubo
     
   • (c) The trial Judge erred in fact and law in convicting the appellant when he failed to rely on the evidence given the Accused.
     
   • (d) The trial Judge erred in fact and law in convicting the appellant when relied entirely on the evidence provided in the Record of Interview. The record of Interview is defective and does not qualify as an affidavit pursuant to Section 94 (1A) and 94 (1B) of the District Court Act 1963 Chapter 40.
     
   • (e) The trial Judge erred in the exercise of discretion in convicting the appellant when the evidence shows that it was not the person who was doing that reconciliation on the date of the alleged offence.
     
   • (f) The trial Judge erred in fact and law when he relied entirely on the statements made by the Supervisor namely Vagi Gugubo and Alex Kuna in that evidence shows that Vagi Gugubo was the last person to do the reconciliation and not the defendant.
     
   • (g) Committed an identifiable error in the exercise of her conviction decision by taking into account factors she ought to not to have considered and failing to take into account she ought to have considered.
     
   • (h) The trial Judge failed to take into account the degree of his participation in the sense he cooperated with Police Investigation.
   • (i) Alternatively, the appellants right under section 37 of the Constitution and section 5 of the Arrest Act were not accorded to the appellant, he was never investigated by regular Policemen under the relevant Force Act.

Issues

5. The main issue raised by the grounds of appeal is whether the conviction entered by the trial judge against the appellant was unsafe and/or unsatisfactory in the circumstances.

Law on appeal against Conviction

6. Section 23 of the Supreme Court Act states that the Supreme Court will only allow an appeal in any one of the following considerations.

1. The verdict is unsafe or unsatisfactory.
2. There was a wrong decision on any question of law;

100. There was a material irregularity in the course of the trial.
     

7. The principles of law on appeal against conviction is well established in the Supreme Court case of John Beng v The State (1977) PNGLR 115. It states:

“On appeal against conviction, the Supreme Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal will be allowed.”

8. On appeal against findings of fact, the Appellate Court has a statutory duty to form its own independent opinion as to the proper inferences to be drawn from evidentiary facts. However, the trial judge’s decision is to be given proper weight. The Appellate Court is not at liberty to disturb the trial judge’s findings of fact and findings as to credibility unless the trial judge has misconceived fundamentally the evidence when consideration is given to the whole of the decision. See Pok v State (1983) PNGLR SC254 and Evertz v State (1979) PNGLR 174.

Grounds (a), (b), (e) and (f)

Whether the trial judge erred in relying on evidence that was contradictory and inconsistent.

9. We deal with grounds a, b, e and f together as the issues raised in those grounds is the same. The State alleged that the appellant stole US $ 9,670.00 cash, the property of Bank of South Pacific. The appellant denied the charge and gave evidence that no money was missing, but it was only a system error and a reconciliation mistake created by his supervisor, and that he was not allowed to correct the error. After analyzing the evidence, the trial judge rejected the evidence of the appellant and accepted the evidence of the State witnesses and the documentary evidence presented by the State and concluded that the appellant stole US$ 9,670.

10. The relevant part of her decision at paragraphs 35 to 44 reads:

“35. The Bank Records as stated support the evidence of State Witnesses that cash monies were missing.

36. The teller transaction log for 4 October 2019 exhibited as “S9” establishes that the cash ending 4 October 2019 was USD 11 550.00.

37. The accused and his team did not work on Saturday 5 October 2019.
    

38. The teller transaction log for 6 October 2019 exhibited as “S11” demonstrates:

• Cash starting 6 October 2019 was USD 11 550.00.
• Each teller was given an additional USD10, 000 by Vagi Gugubo.
• Customers exchanged with the bank USD1514.00 for other currency.
• Customers had bought US currency in the sum of USD 5595.00.
• Physical cash on hand at the end of the day was USD 7,799.00.
• The physical cash at the close of 6 October 2019 is further supported by the OCN Summary Sheet exhibited as “S10”. This is not disputed by the accused.
  

39. The table below demonstrates the missing cash.
    

40. The difference from the cash in and cash out, shows that physical cash at close of business should have been USD 17, 469.00.

41. However physical cash was only USD 7, 799.00.
    
42. The difference of USD 17, 469.00 from USD7, 799.00 us USD 9670.00.
    

43. This was not a complicated process. There is cash from the previous day which has already been counted. The supervisor gives an additional sum for the day. Customers buy notes and the Bank sells notes. The customers are received, and the bank keeps a copy. At the close of business, the receipts are reconciled with the cash at the start of the day and the cash on hand.

44. The only conclusion which I accept is that physical cash monies in the sum of USD 9670.00 was missing.”

11. From this line of consideration by the trial Judge there is no direct evidence of stealing. The State therefore relied on circumstantial evidence.

12. The principles to be applied when entering a conviction based on circumstantial evidence, is set out by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498:

• the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and
  
• to enable the court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt be a rational inference but that it be the only rational inference that the circumstances would enable it to draw.
  

13 The question that arises is whether the guilt of the Appellant was the only inference that could be drawn from the evidence. We have thoroughly examined the documents relied on by the trial judge and those referred to us by the appellant and find discrepancies in the documentary evidence.

14. The relevant dates of the alleged offence were 3^rd, 4^th, and 6^th October 2019. The relevant OCN Summary Sheets, Exhibit S6 (3^rd October), Exhibits S8 (4^th October) and Exhibit S10 (6^th October) signed off by the appellant and his supervisor, Vali Gugubo, show that the cash in the till was balanced for those days. The cash in US$ on 6^th October was US$ 7799. The cash shortfall of US$ 9670 was a transaction reconciliation error processed after 6^th October 2019. Exhibit S15 shows it was processed on 8^th October 2019.

15. The appellant disputes this was an error created by the supervisor, Mr. Gugubo, in his attempt to correct the errors created by Teller Transaction Logs for the transactions of 3^rd, 4^th and 6^th October 2019. During the hearing of this appeal, the Court was led by the appellant to the system errors for the relevant days shown in Exhibits S16, S17 and S18 where we noticed many discrepancies appearing on various transactions. For example, the Teller Transaction Log for 4^th October 2019- Ex. S17, has two reports. The first report shows a transaction (transaction 10) taking place at 5.21.08 am involving foreign cash to local showing a figure of K 10,333.76. (see page 262 of appeal book).

The second report produced for the same day and the same time at 5.21.08 (again transaction10) shows a foreign cash to local involving a figure of K3,220. (See page 266 of the appeal book).

16. This kind of discrepancy is found in several other transactions. We also note some of the transactions are missing or incomplete on the transaction logs. For example, transactions 13 to 16 are missing in the transaction log for 4^th October. (See page 266 of the appeal book).

17. We note that the Court below placed too much weight on Exhibit S15 in reaching its decision. Exhibit S15 was referred to as an error report only and produced by the supervisor, Vagi Gugubo, either on the afternoon of 6^th October or the 7^{th of} October 2019. It is not a transaction report auto generated. The accused was not allowed to participate in correcting the errors even though he pleaded with them. When the supervisor Gugubo began making entries, he was confronted by the appellant as to why he was posting transactions without his input, Gugubo responded saying he was balancing the system. Instead of balancing the system, he is said to have created the errors. There is a real possibility that no cash was missing but an error was created by the system. This is further exemplified by the fact that the appellant was initially charged with the stealing of US$ 6.000.00 but was subsequently indicted for US$ 9,670.00. The subsequent change in figures is indicative of a failure to ascertain the missing amount during the initial investigation, that is, the investigating officers did not have any definite figure of the missing money when they charged the appellant.

18. We conclude from the analysis of the evidence that the guilt of the appellant was not the only inference to be drawn from the evidence. We find the conviction of the appellant was therefore unsafe. Grounds a, b, e, and f are sustained.

Grounds c and d- Whether the trial judge erred in rejecting the evidence of the appellant.

19. The trial judge held that the appellant made prior admissions to the branch Manager and to police officers in the Record of Interview and his subsequent denials were just lies. The lower Court refused to accept the explanations given by the appellant for making the admissions. The evidence given by the appellant protesting the admissions is contained at pages 163 to 179 of the appeal book. He says he made the admissions at the suggestion of the Branch Manager, Mr. Alex Kune, that he would be retained in his job and repay the money through pay deductions which later turned out to be false. He formed the opinion that the suggestion by the Branch Manager was good and as soon as he was allowed back in his job, he would use the opportunity to correct the error as there was no real money missing. The trial judge rejected the explanation as lacking common sense and logic.

20. The offence of stealing is not complete until the person taking or converting the thing moves it or otherwise deals with it by physical act. There is no eyewitness and no direct evidence. The best evidence would have come from the CCTV footage which would have captured the act of stealing. From what is before us there are 360-degree CCTV cameras installed at the kiosk or narrow compartment the appellant was working in. The CCTV footage was not downloaded and tendered into evidence.

21. The Investigating officer, Nick Onom, testified that they could not view and present the CCTV footage because it did not function that day and even two to three months back. The trial judge accepted the evidence of the arresting officer that the CCTV footage could not be downloaded due to a technical problem. In our view, the trial judge fell into error in relying on the security officers’ evidence as it was in direct conflict with the evidence of the bank officers and state witnesses, Alex Kune and Vagi Gugubo, who testified that the CCTV was functioning at the material time. Mr. Gugubo testified further that they went through the CCTV footage and found nothing.

22. It is open to argument that the failure to produce the CCTV footage into evidence was not because of a technical problem, rather, the presentation of it could not come to the aid of the prosecution case.

23. In the light of the conflicting evidence of State witnesses concerning the CCTV, the absence of the CCTV footage, the admissions of finding no wrongdoing on the part of the appellant from the CCTV footage, and the explanations provided for the prior admissions by the appellant, we find the trial judge fell in error by not accepting the evidence of the appellant.

24. We are satisfied that there is in all the circumstances a reasonable doubt created by the matters aforesaid that the verdict was unsafe and unsatisfactory. We will therefore allow the appeal on this ground as well pursuant to s 23 (1) (a) of the Supreme Court Act. The verdict of first instance shall be set aside as unsafe and unsatisfactory. The decision on sentence and release of the prisoner shall follow suit.

Orders

25. The Court orders that:

(i) The Appeal is allowed.
(ii) The conviction is quashed.
(iii) The sentence is set aside.
(iv) The Appellant shall be released from custody forthwith.

Orders Accordingly.
_________________________________________________________________
Appellant in person
Public Prosecutor: Lawyers for the Respondent