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State v Karakabo [2012] PGNC 387; N4897 (20 November 2012)

N4897

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 970 OF 2011

THE STATE

V

EMMA OMBU KARAKABO

Madang: Cannings J
2012: 3, 4 October, 20 November

CRIMINAL LAW – stealing, Criminal Code, Section 372(1) – requirement to prove that the accused took or converted the thing "fraudulently" – definition of "fraudulent": Criminal Code, Section 365 – relevance of "honest claim of right: Criminal Code, Section 23(2).

The accused and the complainant had a stable customary marriage for almost 20 years but then separated and lived in different towns. During the period of separation the complainant left a motor vehicle registered in his name in the possession of the accused for a considerable period (at least a year), and then the accused sold it despite his instruction not to do so. The complainant complained to the police who charged the accused with stealing the motor vehicle. She has been indicted before the National Court on one count of stealing contrary to Section 372(1) of the Criminal Code. The accused admits to selling the vehicle but pleaded not guilty, her defence being that she had an "honest claim of right" under Section 23(2) of the Criminal Code, as she believed that she was a part-owner of the vehicle and she was in a desperate financial predicament and the complainant was not maintaining her and the children of the marriage.

Held:

(1) Under Section 372(1) of the Criminal Code the offence of stealing has three elements:

• (a) taking something or converting it to the accused's or another person's use; and
  
• (b) doing so "fraudulently"; and
  
• (c) moving it or dealing with it by some physical act.
  

(2) "Fraudulent" taking or conversion happens when the accused takes or converts the thing:

• with intent to permanently deprive the owner of it; or
  
• with any of the other states of mind prescribed by Criminal Code, Section 365(4),
  

unless the accused takes or converts the thing "in the exercise of an honest claim of right and without intention to defraud" for the purposes of Section 23(2) of the Criminal Code, in which case the accused will not have acted fraudulently.

(3) A claim of right only has to be honest, it does not have to be reasonable (Tiden v Tokavanamur-Topaparik [1967-1968] PNGLR 231).

(4) If the accused presents evidence of an honest claim of right the State bears the onus of disproving it (Magr v R [1969-70] PNGLR 165).

(5) Here, the accused converted the motor vehicle (a thing capable of being stolen, which was not as a matter of law her property) to her own use and caused it to be moved by some physical act, so two elements of the offence of stealing were proven.

(6) However the accused gave credible evidence of an honest claim of right (she honestly thought she was still married to the complainant and a part-owner of the vehicle and that she had a right to sell the vehicle to get money to support herself and the children of the marriage) which was not negatived by the State. The defence operated, the consequence being that she did not act fraudulently and was not criminally responsible for her actions. It was a complete defence and the accused was acquitted.

Cases cited

The following cases are cited in the judgment:

Dirk Leopold Schuiling v Alphonse Krau [1977] PNGLR 176
Garo Kei v MVIT [1992] PNGLR 195
John Jaminan v The State (No 2) [1983] PNGLR 318
Magr v R [1969-70] PNGLR 165
R v His Honour Judge Kimmins; Ex parte Attorney-General [1980] Qd R 524
R v Hobart Magalu [1974] PNGLR 188
Sebulon Wat v Peter Kari [1975] PNGLR 325
The State v Bruno Tanfa Chilong (2009) N3578
The State v Henry Gorea [1996] PNGLR 141
Tiden v Tokavanamur-Topaparik [1967-1968] PNGLR 231

TRIAL

This was the trial of an accused charged with stealing.

Counsel

J Morog, for the State
D Joseph, for the accused

20 November, 2012

1. CANNINGS J: Ombu Emma Karakabo, the accused, is charged with the offence of stealing under Section 372(1) of the Criminal Code. The thing she is charged with stealing is a motor vehicle. The person from whom she is alleged to have stolen it is the complainant, Banduwara Waranumbo, the man to whom she was married for 20 years. According to the State the accused committed the offence on 23 April 2008 at Madang town where she was living. The vehicle was registered in the name of the complainant who at that time was living in Wewak. The accused had possession of it with the complainant's consent but then sold it without his consent. The State alleges that she acted with fraudulent intent. The accused has pleaded not guilty. She raises the defence of honest claim of right.

UNDISPUTED FACTS

2. A number of undisputed facts have emerged from the evidence:

• The accused married the complainant in 1987. It was a customary marriage. They had six children, all girls. They lived at Wewak. The complainant was self-employed, running a transport business including operating a PMV service. The marriage was stable until 2005 when the complainant befriended another woman. The marriage became unstable, there was frequent conflict, the accused laid complaints with the police that the complainant assaulted her and she filed (then later withdrew) adultery proceedings in the District Court. In September 2005 she left Wewak suddenly with the two youngest of their children and moved to Madang and stayed with relatives at a house in Newtown. The complainant, who stayed in Wewak, agreed to pay the rent on that house and he regularly sent money to the accused to look after herself and three children of the marriage who were with her. That arrangement continued until about November 2007.
  
• In late 2006 the complainant won a transport contract to do with the Ramu Nickel mine and shipped two vehicles (registered in his name) from Wewak to Madang with a view to deploying them on that project. However the contract fell through so he shipped one of the vehicles back to Wewak and left one – the vehicle that is the subject of this case, a Toyota Landcruiser utility registration No HAG 250 – with the accused. It was garaged at the Newtown house that the accused was living in. The accused drove it around for some time but it became unroadworthy and was from about April 2007 left idle in the accused's yard.
  
• In November 2007 the complainant came to Madang, making a surprise visit on the accused at the Newtown house. It was around that time that he stopped giving money to the accused. He stopped paying the rent and withdrew all financial support (the reason he did so is contentious).
  
• In 2008 the accused got into financial difficulty as the complainant had stopped paying the rent and stopped sending her money. She rang him three times and told him that if he did not send some money she would have to sell the vehicle. The complainant told her each time not to sell the vehicle.
  
• On 23 April 2008 the accused sold the vehicle for K12,000.00 cash to Lawrence Bandi of Madang. Registration of the vehicle was transferred to Mr Bandi (or his daughter, the evidence does not make it clear, but that fact is immaterial). The transfer document is not in evidence but what appears to have happened is that the accused and Mr Bandi each signed statutory declarations (which are in evidence) stating that she and he had agreed to sell and buy the vehicle respectively for K12,000.00.
  
• The accused used the proceeds of the sale to pay off the outstanding rent on the house and to buy some things and to hire a vehicle and the next day drove to Bundi and stayed there. She has lived there ever since and has married a man, Stanley Karakabo, and now uses his name.
  
• By 2009 the marriage between the accused and the complainant was dissolved. (The timing of that event – the divorce – is contentious. The complainant says it was November 2007, the accused says it was not until 2009, after she went to Bundi to live.)
  
• The complainant did not report the alleged theft of his motor vehicle to the police until 2011.
  

ISSUES

3. The offence of stealing (that term being defined by Section 365) has, as explained in The State v Boria Hanaio (2007) N4012, three elements:

• taking something or converting it to the accused's or another person's use; and
• doing so fraudulently; and
• moving it or dealing with it by some physical act.
  

4. At the time it was sold the vehicle was registered in the name of the complainant. He was as a matter of law its owner (Garo Kei v MVIT [1992] PNGLR 195). By selling the vehicle and retaining the proceeds of sale the accused converted it to her own use and she caused it to be moved by some physical act. The State has therefore proven beyond reasonable doubt the first and third elements. The second element is the contentious one. Did the accused act fraudulently?

"Fraudulent" taking or conversion is described by Section 365(4), which states:

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. Thus a fraudulent taking or conversion happens when the accused person takes or converts the thing:

• with intent to permanently deprive the owner of it; or
• with any of the other states of mind prescribed by Criminal Code, Section 365(4).
  

6. However, the definition of "fraudulent" must be read subject to Section 23(2) of the Criminal Code, which states:

A person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.

7. Section 23(2) creates the defence of honest claim of right in respect of offences relating to property, such as stealing. The key principles to apply when determining whether this defence operates are:

• A claim of right only has to be honest, it does not have to be reasonable (Tiden v Tokavanamur-Topaparik [1967-1968] PNGLR 231, Sebulon Wat v Peter Kari [1975] PNGLR 325).
  
• If the accused presents evidence of an honest claim of right the State bears the onus of disproving it (Magr v R [1969-70] PNGLR 165).
  
• Because it is a type of excusatory defence the State must disprove (exclude) the defence beyond reasonable doubt (John Jaminan v The State (No 2) [1983] PNGLR 318).
  
• Whether an accused has an honest belief is a question of fact to be determined by the evidence in each case. It is not a matter of an accused simply saying on oath that he had an honest belief and having that assertion accepted, as such evidence might be unconvincing as it was, for example, in R v Hobart Magalu [1974] PNGLR 188 and The State v Henry Gorea [1996] PNGLR 141. Alternatively evidence of an honest claim of right might be convincing and unable to be disproven by the State, as it was, for example, in The State v Bruno Tanfa Chilong (2009) N3578.
  
• Once the defence operates it neutralises any state of mind that might otherwise be regarded as fraudulent. It is therefore a complete defence to any offence relating to property of which fraudulent intent is an element.
  

The critical issue in the present case is whether the defence operates.

DOES THE DEFENCE OF HONEST CLAIM OF RIGHT OPERATE?

8. Determination of this issue requires a:

• summary of evidence for the State;
• summary of evidence for the defence;
• formal determination of the question whether the defence operates.
  

Evidence for the State

9. The complainant was the only witness. He denied mistreating the accused while she was living with him in Wewak or threatening to kill her but conceded that during 2004 and 2005 he was having a friendship with another woman and that the accused was upset about that. She left Wewak without warning, leaving him to care for most of the children who were very upset about their mother leaving them.

10. He stated the accused could not have believed that she had the right to sell the vehicle as she knew it was registered in his name and he told her every time she asked that she was not to sell it. By the time that she sold it she was no longer his wife. He had divorced her in November 2007 when he came to Madang after he had received reports that she was living with another man. He made a surprise visit to the house in Newtown where the accused was living and caught her red-handed sleeping with Stanley Karakabo, her current husband.

11. When he heard about her selling the vehicle he came back to Madang and went to Lawrence Bandi's house only to find that the wheels had been removed from the vehicle. He tried everything he could do to get the vehicle back, to no avail. He was very upset about her selling it, because it was his property and he told her explicitly not to sell it.

Evidence for the defence

12. The accused was the only defence witness. She said that she left Wewak without warning as she was afraid of the complainant. He assaulted her so badly she was admitted to hospital. His second wife also assaulted her.

13. The complainant continued to send her money until late 2007 when he got a third wife. She (the accused) asked him for money to repair the vehicle when it broke down in 2007 but he refused, telling her that the vehicle was her responsibility and it was up to her to find the money to get it repaired. Things got desperate in early 2008 as he was not sending her any money and there were water and power bills mounting up as well as unpaid rent and then she got an eviction notice. She had three of the children living with her so she called him three times and told him she would sell the vehicle if he did not send her money as she had no other way of getting money to pay the bills.

14. She was served with an eviction notice giving her only four days to leave the house before the police would be called in. She did not think for a moment that she was stealing the vehicle as it was a family car and she was a part-owner of it. 'The complainant was the father of the car and I was the mother of the car', she said. Her husband had told her that she could use it for herself and the children (she was looking after the three youngest). It was not roadworthy and it was not worth a lot of money and besides that the complainant had six or seven vehicles in Wewak.

15. He was still her husband when she sold the vehicle. He did not divorce her until 2009. She claimed that the complainant's story about his coming to the Newtown house in 2007 and catching her with her present husband was false. It is true that the complainant came on the early flight from Wewak and made a surprise visit to the house but it is not true that he found Mr Karakabo there. She did not know Mr Karakabo then. She did not befriend him until 2010.

The critical issue: does the defence operate?

16. Having weighed the competing evidence I have been persuaded by the well researched and convincing submissions of defence counsel Mr Joseph that the defence does operate for the following reasons:

(a) The accused gave credible evidence of an honest claim of right. She honestly believed that she had a right to sell the vehicle as she still regarded herself as the wife of the complainant (evidenced by the w-ay in which she signed the statutory declaration used to transfer the registration: she described herself as "Mrs Emma Waranumbo".) She regarded the vehicle as a family vehicle and she thought she was a part-owner. The complainant had left it with her to look after and made no effort to retrieve it. He also told her it was her responsibility it was up to her to find the money to get it repaired, which was enough to cause her to believe that she held some control over the vehicle. Even though he was the registered owner of the vehicle and told her three times that she was not to sell it, he had not sent her any money to fix the vehicle or to pay her bills. She was in a desperate plight, she needed money to pay off all her bills and she was looking after three of the children of the marriage. Selling the vehicle was the only option left. She had no intention of defrauding the complainant. Her oral evidence was consistent with the version of events presented in her record of interview.

(b) The State has not proven that the accused did not have an honest belief in her right to sell the vehicle. The best way of proving the absence of such a belief would have been to prove that such a belief was not based on reasonable grounds. However, that has been a difficult task in this case as, viewed objectively, it must be said that there were reasonable grounds on which the accused based that belief. Irrespective of whether the allegations of abuse she made against the complainant in her testimony are true (and it is not necessary for the court to make a finding on that) it is clear that the accused had a reasonable expectation, at least while she was looking after three of the children of the marriage, that the complainant, a businessman, would maintain her and the children. He cut off financial support in November 2007, which put her in a precarious position. A reasonable person, told about the facts of this case, would conclude, in my view, that the accused had a moral right to sell the vehicle when she did.

CONCLUSION

17. The defence of honest claim of right applies, so the State has been unable to prove one of the elements of the offence of stealing: that the accused acted fraudulently. The accused is entitled to an acquittal.

18. The State appears to have prosecuted this case under the misapprehension that to secure a conviction it needed to prove only that the complainant owned the vehicle and that he did not authorise the accused to sell it. The availability of the defence of honest claim of right appears to have been overlooked. Though the accused was committed for trial by the District Court the Public Prosecutor was not obliged to bring this matter to trial. This is an appropriate juncture at which to emphasise the discretion to prosecute available under Section 525(1) of the Criminal Code, which states:

Where a person is committed for trial or sentence for an indictable offence, the Public Prosecutor or a State Prosecutor shall consider the evidence in the matter and may—

(a) reduce into writing in an indictment a charge of any offence that the evidence appears to him to warrant; or

(b) decline to lay a charge. [Emphasis added.]

19. As Kearney J stated in Dirk Leopold Schuiling v Alphonse Krau [1977] PNGLR 176:

One of the most important, sensitive and difficult tasks in the administration of justice is the proper exercise by prosecuting authorities of their discretion to prosecute.

20. It is easy to be wise after the event but given all the circumstances of this case and the serious allegations that were raised against the complainant and having regard to the fact that no complaint was made to the police until three years after the alleged theft of the vehicle and the ever-present possibility of people using the criminal justice system as a tool of vengeance rather than a means of correcting injustice, a more thorough pre-trial assessment of the case would surely have resulted in an exercise of discretion under Section 525(1)(b) of the Criminal Code.

21. Though the power of the National Court to award costs to a successful accused is arguably confined by Section 618A (costs of successful defendant) of the Criminal Code to private prosecutions commenced under Division VIII.11 (information by private persons for indictable offences: ex officio indictments) I think that where an unnecessary (if not malicious) prosecution is commenced by the Public Prosecutor there is a case to say that the successful accused should in an appropriate case get his or her costs of the trial paid by the State. It might be that the conventional immunity of the Crown (or the State) against costs orders in criminal proceedings, which applies in other jurisdictions (eg in Queensland, as explained in R v His Honour Judge Kimmins; Ex parte Attorney-General [1980] Qd R 524) does not apply in PNG. The accused in the present case would appear to have been unnecessarily tried, so she might consider making an application for costs against the State.

VERDICT

22. The accused, Ombu Emma Karakabo, having been indicted on one count of stealing contrary to Section 372(1) of the Criminal Code, in circumstances of aggravation, viz that under Section 372(10) the thing stolen was of the value of K1,000.00 or upwards, is not guilty of that offence and not guilty of any other offence.

Verdict accordingly.
____________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the Accused