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State v Sosol [1984] PGNC 15; N492 (22 October 1984)

Unreported National Court Decisions

N492

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V.
CHARLES SOSOL

Waigani

Los AJ
11-12 September 1984
14 September 1984
24 September 1984
22 October 1984

CRIMINAL LAW - Whether money and properties found on person suspected of stealing or misappropriation should be ordered restored - Whether non-return of money regardless of clear indication that money is proceed of crime an evidence of stealing as servant.

Cases cited:

R. v. Lawrence [1890] VicLawRp 35; (1890) 16 V.L.R. 164

R. v. Brady (1907) Q.W.N. 10

Counsel:

J. Bryne for State

D. Rea for the Defendant

22 October 1984

LOS AJ: The accuas indicted with tith two counts of stealing as servant. On the one count it was alleged that on the first day of December 1982 the accused then a sergeant in the police force attached to the Squad apprehended a Vincenincent Kaupa Kawage at the Jacksons Airport for a suspected misappropriation. A search was made upon the suspect and the accused took possession of two airline tickets which the suspect bought for himself and his wife to travel to Goroka on that day. Kawage and his wife were taken to Boroko police station where a further search was made which is not relevant to this case. The accused then charged the suspect with misappropriation of some K12,000 from the Post and Telecommunication Corporation (P.T.C.). The suspect was put in the cell. He was subsequently released on bail. The accused it was alleged stole the cash and the two airline tickets.

In support of the allegations the State called Vincent Kaupa Kawage and his wife Mondo Kaupa Kawage. The State also called Bernard Orim. Vincent Kaupa Kawage confirmed the fact that he was apprehended on the day in question and K257 in cash and two tickets were taken from him by the accused. He confirmed he was charged by the accused. He appeared in court three times and on the fourth time he was released on bail. That was on the 30th of December. Then he tried to get the money and the tickets from the accused three times. But, according to him the accused said he would never get the money until the case was over. Subsequently he said, he saw a constable Boping and he and Constable Boping looked for the money and the tickets at the police station. They looked in a safe at the officer-in-charges’ office but could not find them. He said, he never got the money and the tickets back.

Mrs. Mondo Kawage said the same thing. She asked for the money and the tickets on the day her husband was charged. A month later she saw the accused and asked him again. The accused said in effect he would not give the money and the tickets until her husband came out. She never got the money and the tickets.

Inspector Orim who is in-charge of Criminal Investigation Division at Boroko police station said he interviewed the accused. The accused never answered any of his questions. However, in relation to the police practice he said whoever charges a suspect must enter into a certain column in the Charge Book the descriptions of the suspects’ belongings. Upon release of that person, his properties must be released to him. In this case, he said after the complaint, he checked the Charge Book and alongside the name Vincent Kaupa Kawage he could not find any record of cash and two airline tickets. He was further asked if there were any records at all. He said he could not remember. He could not look to re-confirm his previous check because the Charge Book was no longer there.

In case the accused might have a record of those properties, the Inspector was asked whether he had seen any of the files. He said, never.

The accused made an unsworn statement from the dock. He did not dispute that he arrested Vincent Kaupa Kawage. He did not dispute that he obtained from Kawage K257 in cash and two airline tickets. He kept the money and the tickets in his office with the investigation files because he suspected that the money was from the K12,000 and that the tickets were also bought from the money alleged to have been misappropriated from the Post and Telecommunication Corporation. He said he appeared in court on the 30th of March 1983 with the properties as part of the case against Kawage. Upon return to his office he left the money and the tickets in his file which he put in a draw. On the 31st of March he was suspended after a traffic accident along the Magi Highway. While he was on suspension his files were removed by somebody. The tickets and the money were in the files.

On the other count, the facts were not disputed insofar as how the accused came to be in possession of the money. Douglas Airways was trying to obtain money from an Allan Ebu whose five cheques made payable to that company were dishonoured. When it was learnt that Allan Ebu chartered an Aero Club plane to go to Ihu on the 21st day of December 1982, the paymaster with the Douglas Airways, Mr. Kila Kalo rang the Boroko police station for assistance. As a result the accused came to the airport and together with Kila Kalo they went to the Aero Club. Ebu did not turn up. After some wait, Kila Kalo left. The accused waited a bit longer but Ebu still did not turn up. The accused then had a conversation with the then office manageress of the Aero Club, Mrs. Ann McIver. The accused took possession of the K340 in cash that Ebu paid for the charter. Before proceeding to Boroko, he stopped at Douglas Airways and informed that he obtained K340 in cash but he would not hand in the money until he had spoken to Ebu.

Mr. Kalo’s evidence is that a week after the accused had taken the money he saw the accused and asked him for the money. He later phoned a number of times and spoke to somebody. Every time he did, he was told the accused was out. So he made an appointment and saw Inspector Ora. Upon the latter’s suggestion, he subsequently wrote a letter formally complaining about the K340 in cash. This, he did on the 23rd of May 1983.

Inspector Ora’s evidence is that he interviewed the accused who admitted getting the money and explained why he got the money. He went on to say that according to the accused the money was stolen from his briefcase which was on his desk. Inspector Ora asked the accused to make good the money as it went missing from his possession.

Mr. Willy David, the Manager of the National Capital and the Southern Region Police Association Savings and Loans Society gave evidence that the accused applied for a loan in the sum of K340. In the loan application, Clause 11, the accused gave the reason for the loan as “to settle the money which --- lately in my possession and had gone missing”. The loan was granted. The Loans Committee’s decision dated 28th of March 1983 was noted as “after the conversation with Mr. Toguata about the incident which involved Sergeant Sosol, we decided to approve his loan”.

The accused in his unsworn evidence said he kept the money and the five dishonoured cheques in order to talk to Allan Ebu. Twice he phoned the Opposition Leaders’ Office where Ebu worked. Both times he was told Ebu was out of the office. Between the first call and the second call there were two weeks. Another two weeks went by and he called again, this time he was able to talk to Ebu who said he could come down to the police station and see the accused. He did not turn up. A week later the accuse went to Alotau for a court case. When he came back he found the money missing. After talking with Inspector Ora he applied for a loan and obtained K340. On the 31st of March 1983, he telephoned and talked to Ebu and asked him to come and get his money. He said he was busy but he would drop in about mid-day or thereafter. The accused waited for sometime then went for lunch. On the same day the accused was involved in a traffic accident along the Magi Highway. He did not return to his office because he was suspended on the spot and as well as that he was upset about the way in which he was suspended. Some two days later it clicked in his mind that he left the money on his desk. He rushed to the police station and found that all his files were missing. He made several enquiries but nobody would tell him where his files were. It was on the 17th of August 1984 that he was told by senior sergeant Leo Omeken where his files were. They were placed by someone in a big box. This was the first time that he knew where the files were. He said the money was still in the file when it was removed. He said he never touched the money.

In relation to the accused’s files, Omeken gave evidence that he saw the accused’s file in the Squad 3 office and told the accused the location of the files on the 17th of August 1984.

WHAT IS THE STATE ASSERTION?

In both counts the state says that the accused stole the goods. The state relies heavily on the fact that the accused up to his resignation in August 1984 was an experienced policeman who had been in the Force for a long time. He knew that he had to keep an arrested person’s property in a safe place definitely not in an unlocked draw or an unlocked briefcase. In summary the state says the accused has told lies, the money and the tickets he got from Vincent Kaupa Kawage, and the cash from the Aero Club deposited by Allan Ebu did not go missing from his desk or draw. He stole them and made use of them.

The defence counsel argued that there was no fraudulent taking by the accused. There was no direct evidence that the accused converted the properties in question. There was no physical dealing by the accused. The state made no specific allegations on any of these. The state case was highly circumstantial. This evidence, it was submitted, showed a mishap or a neglect by the accused but it could not constitute stealing.

It is true that there is no direct evidence at all that after the accused had taken the properties from Kawage and from the Aero Club he had dealt with them in a manner inconsistent with the right of ownership. All is circumstantial and the Papua New Guinea authority on the circumstantial evidence is as correctly cited by the defence counsel, that is, Paulus Pawa v. The State (1981) P.N.G.L.R. 498. Before going into an analysis of the evidence in the light of this authority, I want to deal with a slightly different aspect of the case first.

The state counsel argued that the accused should not have kept the money at the police station because it was not shown that it was a part of the stolen money or that there was no means of forming an opinion as to whether the money found upon the suspect was the proceeds of the alleged crime. In support of this argument he relied upon R. v. Brady (1907) Q.W.N. 10 and R. v. Lawrence [1890] VicLawRp 35; (1890) 16 V.L.R. 164. In Brady’s case the prisoner was arrested for stealing as a clerk the sum of œ8000. When arrested, œ54 was found on him. Chubb J., in ordering the money to be restored to the prisoner said “... it was not shown that it was part of the stolen money, nor could reasonably be presumed to be proceeds of it”. In Lawrence’s case, upon application the money found on the prisoner was ordered return to the prisoner. Hodges J., who made the order said ... “In this case the crown authorities have made no affidavit, and have given me no means of forming an opinion as to whether the money found upon the prisoner is the proceeds of this crime”. These cases are quite useful and are indicative of what must be done to properties found on a suspect in particular where a suspect is charged with stealing or misappropriation of money. If an application had been made to me as to whether or not certain goods found on certain suspected person should be returned, I would have applied these principles. The accused is charged with stealing the goods found on Vincent Kaupa Kawage. The other charge does not involv stealing properties found on Allan Ebu. It involves cash paid to Aero Club by Allan Ebu for the charter of an aeroplane. At no time the accused disputed the ownership of the cash.

The state counsel cited these cases most likely in response to my queries at the end of both the state and the defence cases. I made the inquiries to clarify in my mind as to what specific assertion the state was making:

(a) ҈ Are youe you saying that ahe fact that the owner asked for the properties but did not get them back constitute idence of stealing, having regard to the fact that the owner might not get the properties bies back until his case has been determined; or

(b) &#are you saying that becaubecause the properties are not there - that is the absence of the properties from the police station constitute stealing.

Of course, the answer to the first question can be answered by the two cases cited by the state subject to what I have to say later. In answer to the second question, the state counsel simply said the properties had not gone missing from the police station, the accused stole them.

As I have indicated earlier the question as to whether or not properties found on a suspect should be returned to him is not before this court. The logical court would have been where he (the suspect) appeared first. Assuming the question did come before me, I would follow the cases cited to me but with a proviso. The proviso is that for a return of the goods an order could be made if there were no reasons for supposing that money might be a part of or the goods might have been bought with the proceeds of the alleged crime. The principle in Lawrence’s case is not that rigid. I do appreciate the fundamental principle that every person charged with an offence is presumed innocent until proven guilty. So, despite the fact that a person is charged with stealing or misappropriating a large sum of money, an amount of money found on him on the day of arrest cannot automatically be presumed to be proceeds of the crime alleged against him. Yet, in certain circumstances, I think it will be apparent that the money found on certain persons cannot be theirs. If a person whose fortnightly salary is merely K100 - and he has been working for merely a year but when arrested a sum of K10,000 is found on him and there is an allegation against him for stealing or misppropriation of a large sum of money, it should be apparent to anybody that the K10,000 may not be his at all. So, in my view in relation to the charge against Sosol for stealing two tickets and K257 in cash, a statement that because neither Vincent Kaupa Kawage nor Mrs. Kawage did not get the tickets and the cash back, the accused is guilty of stealing cannot stand.

In relation to the K340 in cash, it appears that the accused obtained the cash in order to induce Ebu to come and see him. This appears clear on what he said to Kila Kalo and the Manager at the Douglas Airways office Further, it appears clear on the number of calls he made to Ebu. The accused was holding Ebu’s five dishonoured cheques and the cash. Ebu avoided (if I can use that word) the ‘trap’. He was not called to give evidence. Perhaps he had been avoiding the police ever since.

Calling of the representative of Douglas Airways to give evidence is to show that, inter alia, the money is not with that company. It was not in my view, to show that because the company did not get the money, the accused stole it. That company’s right to K340 in cash has not been established by any court. Certainly there might be a matter outstanding between Allan Ebu and Douglas Airways but that is not the issue before this Court.

Having said that, the last question to answer is whether or not the circumstantial evidence is such that it points to only one conclusion. Paulus Pawa’s case (supra) adopts and applies the principles developed and applied for years in Australia, see Barca v. The Queen [1975] HCA 42; (1975) 133 C.L.R. 82 and also re-affirms a one judge decision in The State v. Tom Morries (1981) P.N.G.L.R. 493. The principle is that where the evidence in a criminal case is wholly circumstantial, the court must acquit unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than the guilt of the accused. Further to this is that in order to convict guilt of the accused must be the only rational inference that can be drawn from the circumstantial evidence. That inference must be upon something more than mere conjecture.

The accused in his unsworn evidence explained his side of the story. The state counsel was not able to cross-examine him. On the established principles, the accused’s absence from the witness box cannot be held against him nor any inference of guilt may be drawn against him. At the time of this hearing, the charge against Kawage was still outstanding. In my view, to hold that an evidence of an owner that he/she had not received his properties from the police station is a prima facie evidence that a policeman had stolen the goods may have adverse effect on the necessity to hold properties in order that they may be produced in court as exhibits or parts of the state case. When a court has established guilt or innocence of a person and an appeal, if any, has been determined then, in my view, the fact that the owner has not recovered his properties from the police may become an evidence against an accused who is a policeman and who had arrested a person for stealing or misappropriation. Before then, in my view, the fact that an owner has not received his goods should not automatically infer that the particular policeman had stolen the goods because it would be premature to hold so. In the meantime, the police force/department can rely on the possession of the goods to get a member of the Force to make goods if they are found to be missing.

The police say the goods are not in the police station any more and it could be argued on their behalf therefore that regardless of who the owner might be once the ownership is determined, there will be no goods to be collected from the police station. Because of what I said earlier, I take this case to be police against one of their own former member and of course the state is involved because of the stealing charge. I discount the evidence of Mr. and Mrs. Kawage.

What is the evidence upon which I can infer that the accused stole the cash and the tickets. The accused and the police witnesses said they could not find the goods. The fact that the goods could not be found in the police safe is not conclusive evidence supporting a stealing charge. All the police officers that were called, have been in the police force for about the same length of time as the accused. All agreed that properties taken from suspects must be put in a safe place. A Safe is an obvious place. But none of them said there had been a strict rule that all goods must be put in a Safe2. According to Sub-Inspector Gerari there is no formal rule, but agreed that a safe place would be, in a safe, a cupboard with a lock, but not a file or an unlocked briefcase. There is a difference between the treatment of properties found on a person when arrested for some other offence and the properties found on the person charged are subject of the charge. In this respect Sub-Inspector Gerari was asked whether goods found on a suspect and the goods are suspected of being stolen must be entered into the Charge Book. His answer was “no”, adding that they must however be kept in a safe place. What it boils down to is that there has never been a formal rule that properties suspected of being stolen must be entered into the Charge Book and that they must be put inside a Safe. So the evidence that the properties of Vincent Kaupa Kawage and Ebu were not found in the Safe does not mean prima facie the accused stole them. There is a strong inference that the accused was extremely reckless, grossly negligent in handling the properties in question. This extremely unsatisfactory situation is encouraged by no formal rule to be followed by the arresting officers. It seems the arresting officers have been lead by their own good sense than any formal rules.

Another inference that runs quite opposite to an inference of stealing is that a long serving police sergeant like the accused would know that the properties taken on suspected persons would be accounted for. Because of the circumstances under which the properties had been taken, it had to be apparent that somebody would be asking for them. In the case of the K340 cash apart from a court, Allan Ebu or the Douglas Airways would be asking for it. In case of the two tickets and K257 cash, apart from a court, Mr. and Mrs. Kawage or the Post and Telecommunication Corporation might be asking for them. Now, unless the accused was ill or something really was abnormal about him he as a policeman of some twelve years - especially as sergeant with the fraud squad then would know that. Under the normal circumstances he would not steal those things. The tickets are certainly traceable.

In case of the sum of K340 in cash, the fact that the accused was asked in good faith to make good the money that was missing does show a possibility of money missing from the police station. A possibility did exist. In fact Ora’s evidence that a formal Charge Book had gone missing and he had not been able to see it recently does indicate that it is not a mere conjecture to suppose that money or other properties can go missing from the police station. But in the case of the accused, having once made a mistake, I would have thought that the accused would ensure that the money he obtained on loan from the Police Association Savings and Loans Society would be kept in the safest place available. Instead, he came here and told the court that the replacement money had also gone missing. In his statement he said he cashed the cheque he obtained from the Police Association Savings and Loans Society. This is an indicative of how he had handled and dealt with the money and hence fatal to his case.

In the end, from all that I have said, I find the accused guilty of stealing as a servant a sum of K340 in cash the property of Allen Ebu. However, I find the accused not guilty of stealing as servant two airline tickets and K257 in cash the property of Vincent Kaupa Kawage.

Lawyer for the State: Mr. L. Gavara-Nanu, Public Prosecutor.

Lawyer for the Defendant: Mr. D.E. Rea