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State v Bakit [2016] PGNC 376; N6614 (29 November 2016)

N6614

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 247 OF 2015

THE STATE

V

WESLEY BAKIT

Kokopo: Lenalia, J
2016: 11^th, 16^th, 17^th& 29^th November

CRIMINAL LAW– Particular offences – Stealing simplicita – Plea –
Criminal Code Sections 372 (10) Ch. No.262.

CRIMINAL LAW – Stealing – Offender pleaded guilty to offence of stealing –
After reading the District Court depositions – Court change guilty plea into not guilty.

CRIMINAL LAW – Stealing – Trial – Evidence of recent possession – No
evidence of any intention to permanently deprive the owner – Case dismissed defendant discharged.

Cases cited

R v Albert (1954) N1
R v Griffin [1971] PNGLR 72
The State v Alpen Popo ([1977] PNGLR 18

Counsels:

Mr. L. J. Rangan, for the State
Ms. J. M. Ainui, for the Accused

29^th November, 2016

1. LENALIA J: The accused pleaded guilty to one count of stealing an amount of Eleven thousand, one hundred and eighteen kina and eighty-one toea (K11, 118.81, the property of the Independent State of Papua New Guinea. This is an offence against s.372 (10) of the Criminal Code.
   

2. After the accused pleaded guilty, the State Prosecutor tendered the District Court depositions to the Court. The Court read the facts and after reading, the Court noted from the accused’s answers to questions 20 and 21 in the record of interview where the accused answered the interviewing officer that the reasons he and his men took the building materials to his village was to open the Madaka Construction managements’ eyes or warn the company because the company had not paid them for four (4) fortnights. That he had no intention to steal the properties. The court noted from other documents that, there were other people involved. The Court changed the plea into not guilty and the matter was adjourned for trial.

Prosecution Evidence

3. When the trial commenced, counsel representing the State opened the prosecution case by addressing the court on the status of the prosecution evidence. Counsel submitted that, the State’s case will only consist of evidence tendered by consent and no oral evidence was to be called. The following documentary evidence were tendered:

Ex. “A” statement by Pidik Ronnie (21.4.2015)
Ex. “B” statement by Tiru Blaise (not dated).
Ex. “C” statement of Lolo E Upai (not dated).
Ex. “D” statement of Hubert Wangun (9.3.15).
Ex. “E” statement of Harry Dale, 25.4.15
Ex. “F” statement of Jeffery Lanza (25.4.2015).
Ex. “G” statement of Tipepe Mark,
Ex. “H” Pidgin record of interview, “H (a)” English translation of 25.4.15.
Ex. “I” statement accused (not dated),
Ex. “J” letter by D/A Rabaul District to OIC-CID dated 26.4.15.
Ex. “K” & “K1” sales quotations of 9.4.15,
Ex. “L” Boisen Redevelopment meeting minutes dated 1.4.15.

4. In the accused confessional statement (see Ex. “I”), he admitted taking the materials because, he and the other four other workers who remained with him on site after the company had laid off workers, were suffering back at their homes and the employees on site suffered much because, they had not been paid their salaries for four fortnights.

5. Reading through all the documents tendered particularly that of Pidik Ronnie, Blaise Tiru, Lolo Upai and Hubert Wangun, the prosecution case is that, the accused was employed by Madaka Construction company and the company was carrying out construction work on new buildings for the Boisen High School, Rabuana village, Kombiu Local Level Government area in the Rabaul District, East New Britain Province.

6. Various statements tendered all say that the accused was the building supervisor and team leader on site and while in the process of rebuilding the school. (See Exhibits. “A” – “D”), he stole the materials and took them to his village at Tinganalom, here in Kokoop.

7. From the statement by Ronnie Pidik (Ex. “A”), it is clear that the accused was together with other persons when they came to Pidik’s house on the night of 24^th January 2015 to hire his truck to transport the stolen properties. Ronnie reveals on his statement that after he accepted the K200.00 hire fair from the accused on that night the accused and some other men were with him.

8. They loaded the properties onto the hire truck and when they took off, the accused told Ronnie that, he took the action against the company because, he had not been paid by the company for four fortnights. He revealed too that he and his family was suffering together with the family members of those other workers on site. Ronnie indicated that, he did not recognize the other persons who were together with the accused and he can only recall one of them and he named him as Sebulon.

9. Mr. Hubert Wangun, the D/D/A and District Education Coordinator states in his statement (see Ex. “D”) that there were to separate break and enter at the construction site at Boisen High School. The first one was made on 24^th January 2015 and the second one was on 1^st March 2015.

10. The materials stolen from the Madaka Construction involved K13, 123.06 while the other stealing case involved K11, 118.81 of Rabaul Construction. The later amount is charged in the body of the indictment.

11. Constable Jeffery Lanza was the interviewing officer on this case. Sergeant Harry Dale was the corroborator. Both officers say that, the accused admitted to stealing the building materials. According to the statements tendered, both officers say the accused raised concern over non-payment of his four fortnight salaries and he took the steps to warn the company management. (See Ex. “E” & “F”).

12. After all the above documents were tendered, Mr. Rangan submitted the prosecution case closed.

Defence Case

13. The accused was given the warning to give evidence, make a statement from the dock or remain silent. He chose to remain silent. This was confirmed by the defence counsel Ms. Ainui.

Submissions on verdict

14. The defence did not have any say, so Mr. Rangan addressed the court first. Counsel’s submission is that here was the case where the court changed the guilty plea into not guilty and the issue is about the definition of stealing.

15. Ms. Ainui in reply submitted that her client did not have any intention to steal the materials but he wanted to give a warning to the company administration so that quick action could be taken to address the issue of non-payment of what was due to the accused and others who had not been paid their salaries for a number of pay-days. Counsel asked the court to dismiss the case.

Application of Law to Evidence

16. There is no issue about the accused taking the materials to his village at Tinganalom. That was recent possession which is the first element of the offence of stealing. The issue is, did the accused mean or intent to steal the building materials for his benefit. The section under which the accused is charged states:

“372. Stealing.

(1) Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: Subject to this section, imprisonment for a term not exceeding three years.

(1A) If the thing stolen is money exceeding K1 million and does not exceed K10 million an offender is liable to imprisonment for a term of 50 years without remission and without parole.

(1B) If the thing stolen is money exceeds K10 million, the penalty shall be life imprisonment.

(2) If the thing stolen is a testamentary instrument, (whether the testator is living or dead), the offender is liable, subject to Section 19, to imprisonment for life.

(3) If the thing stolen is anything in course of transmission by post, the offender is liable, subject to Section 19 to imprisonment for life.

(4) If the thing stolen is an aircraft, the offender is liable to imprisonment for a term not exceeding 14 years.
(5) If—
(a) the thing is stolen from the person of another person; or
(b) the thing is stolen in a dwelling-house, and—
(i) its value exceeds K10.00; or

(ii) the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house; or

(c) the thing is stolen from a vessel, vehicle or place of deposit used for the conveyance or custody of goods in transit from one place to another; or

(d) the thing is stolen from a vessel that is in distress or wrecked or stranded; or

(e) the thing is stolen from a public office in which it is deposited or kept; or

(f) the offender, in order to commit the offence, opens a locked room, box or other receptacle by means of a key or other instrument,

the offender is liable to imprisonment for a term not exceeding seven years.

(6) If the offender is a person employed in the Public Service, and the thing stolen—
(a) is the property of the State; or

(b) came into the possession of the offender by virtue of his employment,
he is liable to imprisonment for a term not exceeding seven years.
(7) If the offender is a clerk or servant, and the thing stolen—
(a) is the property of his employer; or

(b) came into the possession of the offender on account of his employer,
he is liable to imprisonment for a term not exceeding seven years.

(8) If the offender is a director or officer of a corporation, and the thing stolen is the property of the corporation, he is liable to imprisonment for a term not exceeding seven years.
(9) If the thing stolen is—

(a) property that has been received by the offender with a power of attorney for its disposition; or

(b) money received by the offender with a direction that it should be applied to any purpose or paid to any person specified in the direction; or

(c) the whole or part of the proceeds of a valuable security that was received by the offender with a direction that the proceeds of it should be applied to a purpose or paid to a person specified in the direction; or

(d) the whole or part of the proceeds arising from a disposition of any property that have been received by the offender by virtue of a power of attorney for such disposition, the power of attorney having been received by the offender with a direction that the proceeds be applied to a purpose or paid to a person specified in the direction,

the offender is liable to imprisonment for a term not exceeding seven years.

(10) If the thing stolen is of the value of K1, 000.00 or upwards, the offender is liable to imprisonment for a term not exceeding seven years.

(11) If the thing stolen is a fixture or chattel let to the offender to be used by him with a house or lodging, and its value exceeds K100.00, he is liable to imprisonment for a term not exceeding seven years.

(12) If the offender, before committing the offence—

(a) had been convicted on indictment of an indictable offence against any provision of this Division; or

(b) had been twice previously summarily convicted of an offence against any such provision punishable on summary conviction whether or not each of the convictions was in respect of an offence of the same character,
he is liable to imprisonment for a term not exceeding seven years.”

17. On the definition of stealing s.365 of the Criminal Code, it says that a person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with intention to permanently deprive the owner of the property is said to have stolen the thing stolen. This section states:

“365. 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.”(Emphasis added)

18. Mr. Rangan referred this court to s.544 of the Criminal Code. This section deals with issues of false pretences, cheating and misappropriation of property. That provision states:

“544. Stealing, false pretences, cheating and misappropriation of property.
On an indictment charging a person with—
(a) stealing, with or without a circumstance of aggravation; or
(b) obtaining goods by false pretences; or
(c) obtaining goods by a wilfully false promise; or

(d) obtaining goods partly by a false pretence and partly by a wilfully false promise; or
(e) cheating; or
(f) misappropriation of property; or
(g) procuring any other person to commit any such offence,

he may be convicted of any other of those offences committed with respect to the same property, if that other offence is established by the evidence.”

19. I do not think that the above section is relevant to the circumstances of this trial. On the doctrine of recent possession, in R v Griffin [1971] PNGLR 72 Justice Prentice said at page 75:

“Under the doctrine of recent possession, where there has been a robbery and part of the stolen property is found soon after in the possession of a person not the owner, a presumption of fact may therefore be raised against that person to the effect that he stole the articles, where he does not give a reasonable account of how he got the property. If an explanation is given by that person and it appears to be a reasonable one, the tribunal should acquit, even if it does not positively accept the explanation. But when an accused ‘on being questioned has given an explanation of his possession which is admittedly untrue ... the presumption of guilt does arise.’ This is the presumption which may be rebutted and, if the subsequent explanation of the prisoner satisfies the jury, or raises a reasonable doubt, he is still entitled to an acquittal.”

20. On the issue of recent possession on this trial, the accused admitted to taking the materials to his village. There is also evidence right from the accused in the record of interview to his confessional statement and the statements of the interviewing officer and his corroborator say that, the accused expressed his concern over non-payment of his overdue entitlements. He expressed this clearly to the officers who interviewed him and even in his confession he made to the police.(See Ex. “A”, “E”, “F”, “H” & “H(a)”).

21. There is evidence of recent possession. There is also evidence of removing the properties to another location: R v Albert (1954) N1. However, the court cannot isolate these issues from all the circumstances leading to the removal of the properties alleged to have been stolen: The Sate v Alpen Popo [1977] PNGLR. 18.

22. This court finds that the explanation given by the accused to the policemen interviewing him was a reasonable account of how and why he took the building materials. The reason was to warn the Madaka Construction management about its employees long overdue non-payment of their salaries because they had not been paid for four fortnights. It is for these reasons that the accused is entitled to an acquittal. He is found not guilty and acquitted. His bail money shall be refunded to him.
________________________________________________________________
The Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused