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State v Waiu [2019] PGNC 438; N8147 (15 November 2019)

N8147

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 65, 66, 67 & 68 of 2014

THE STATE

V

TONY WAIU, CAMILLA WAIU, AMBROS RIPME & BENNY GALAWE

Kimbe: Kaumi. J
2019: 5^th, 20^th, 23^rd & 26^th September, 5^th, 6^th, & 15^th November

CRIMINAL LAW – Particular Offence – Stealing – Not Guilty plea – Trial-Criminal Code Act 1974, Part IV-Offences Relating to Property and Contracts, Division 1-Stealing and Similar Offences-Subdivision B-Stealing-Section 372 (1) (10) and Section 7 invoked

The accused persons pleaded not guilty to stealing Fresh Fruit Bunches (FFB) (crops) and a trial conducted.

Cases Cited:

State v Amoko Amokob [1981] PNGLR 373
State v Morris [1981] PNGLR 493
The State v. Raphael Kimba Aki (2001) N2039
The State v Boria Hanaio (2007) N4012
Arua Loa & 2 Ors v Pepi Kimas & 3 Ors OS No. 903 of 2011 (JR) N5849

Legislation Cited:

Criminal Code 1974

Counsel

Mr. Camillus Sambua, for the State
Mr. Ben Takua, for the offenders

TRIAL

15^th November, 2019

1. KAUMI J: The accused persons stand charged that they on 1 January 2009 and 25 July 2013 at Malilimi Oil Palm Plantation, Kimbe, West New Britain Province, Papua New Guinea stole Fresh Fruit Bunches (FFB) (crops) totaling 556.47 valued in monetary terms at about K124, 242. 47 the property of New Britain Palm Oil Limited contrary to section 372 (1) and in conjunction with subsection (10) of this section of the Criminal Code as the value of the thing stolen exceeded the value of K1000.00. The State invoked section 7 of the Criminal Code to say that the four accused persons aided and abetted each other in committing the crime of stealing.
   

FACTS

2. The State alleges that two of the four accused persons, Tony Waiu and Camilla Waiu are husband and wife who had been illegally squatting on a portion of land, leased to New Britain Palm Oil since 2001 or there about until they were evicted in 2009. They had planted oil palm on this portion of land and were dependent on it to sustain their livelihood until their eviction in 2009.
   
3. When they were evicted by New Britain Palm Oil, their old oil palm trees were felled and NBPL planted its own seedlings.
   
4. After their eviction they had no land to settle on and plant their oil palm seedlings to sustain their livelihood and so were accommodated by their co-accused Benny Galowe and Ambrose Rimpe who were brothers, on their block.
   
5. It is further alleged that in order to sustain their livelihood and in frustration against the NBPOL decision to evict them from the block they had occupied before the eviction, they started stealing fresh Fruit Bunches (FFB) or crops from the Malilimi Oil Palm Plantation owned by New Britain Palm Oil Limited and were selling them back to the NBPOL totaling some 556.47 tonnage valued in monetary terms at about One Hundred and Twenty-Four Thousand Kina and Two Hundred and Forty Two Kina, Twenty Toea (K124, 242.20) the property of New Britain Palm Oil Limited.
   
6. The stealing started in January 2009 until they were caught by the company NBPOL on the 25^th of July 2013.
   
7. The State therefore alleges that when they stole fresh Fruit Bunches (FFB) or crops from Malilimi Oil Palm Plantation owned by New Britain Palm Oil Limited and were selling back to the NBPOL, they committed a crime of stealing thereby contravening section 372 (1) & (10) of the Criminal Code Act. State also invokes section 7 of the Code that they aided and abetted each other.
   
8. Before I go to the facts of the matter I wish to comment briefly on the case which has something of a chequered history.
   
9. After the completion of the evidence of the last State witness Mr. Sambua of counsel for the State upon realizing that the evidence it had adduced to court was in variance to the tonnage pleaded in the indictment sought to amend the indictment to reflect this variance pursuant to section 535 (a) and (b) of the Criminal Code Act. This was contested by Mr. Takua for the accused persons prompting me to direct both counsels to file submissions and affidavits addressing the applicable law and their contentions on point and this was complied with and after due consideration of the respective submissions by counsels I granted the application to amend the indictment and directed that the accused persons be re-arraigned on the new indictment.
   
10. The accused persons were re-arraigned on the amended indictment and all pleaded not guilty and I adopted the evidence against them up to the point of the amendment but before the State could close its case Mr. Takua informed court that he intended to make an application for leave to cross-examine certain State witnesses so I invited counsels to file submissions and this was complied with and the next day Mr. Takua then moved an application for leave to cross-examine four State witnesses listed as No. 3, 4, 13 and 14 on the indictment. He noted that the statements of witnesses’ No. 3 and 4 had been tendered by consent whilst witnesses’ No. 13 and 14 had not been called. Mr. Sambua in response submitted that when the trial started Mr. Takua had consented to these two statements being tendered into evidence and now wanted to retract and cross-examine them and that this was not a fair and proper conduct of the trial. With respect to witnesses’ No. 13 and 14 on the indictment he submitted that their statements were not tendered by consent into evidence for the State and therefore not there before the court for its consideration. I duly considered the arguments for and against the application and allowed the application on the basis of fairness to the accused persons in light of the amended indictment but for cross-examination only of witnesses’ No. 3 and 4. I did not grant leave for the cross-examination of witnesses No. 13 and 14 on the basis that their statements were not tendered by consent into evidence for the State and therefore not before the court for its assessment and was of no consequence to either the cause of the accused persons or the State. It was the prerogative of the State to call or not to call any of its witnesses listed on the indictment in furtherance of the State’s cause.
    

UNDISPUTED FACTS

11. The main facts agreed to by the parties and which I accept as being established beyond doubt are that:
    • (a) The accused persons are all from Wisikum, Wosera, East Sepik Province.
    • (b) Tony Waiu and Camilla Waiu are husband and wife.
    • (c) In 2009 Tony and Camilla were evicted by New Britain Palm Oil Limited (NBPOL) from a block they were living on and on which they had planted oil palm and from which they had been subsisting.
    • (d) Also in 2009 after evicting Tony and Camilla from this block NBPOL bulldozed down all the oil palm crops they had planted on this block.
    • (e) After being evicted by NBPOL in 2009 Tony and Camilla Waiu sought refuge and moved onto Ambrose Ripme and Benny Galawe’s block at the Galai 2 LSS and lived with them and by 25 July 2013 were still living there.
    • (f) Ambrose Ripme and Benny Galawe are biological brothers and are the sons of Samson Waiu who is the elder brother of Tony Waiu. Ambrose, Benny and another brother Joshua are the owners of a three hectare block No. 005 1615 at Galai 2 LSS and in 2004 were already occupying it.
    • (g) Galai 2 LSS shares a common boundary with Malilimi Plantation which is owned by the New Britain Palm Oil Limited.
    • (h) Ambrose, Benny and Joshua’s block No. 0051615 is the closest to Malilimi Plantation of all the blocks situated in the Galai 2 LSS.
      
12. This is a case in which both parties agree about the general facts but disagree on contentious ones.
    
13. The accused persons pleaded not guilty and the trial commenced on the 5^th September, 2019. The prosecution tendered by consent thirty four (34) exhibits and called four (4) witnesses who gave a sworn testimony and closed its case. A no-case to answer was made and I ruled that the accused persons had a case to answer. The accused persons elected to give unsworn testimonies from the dock and the defence formally closed its case.
    

ISSUES

14. There are three elements of the offence of stealing under section 372 (stealing being defined by section 365):
    
    • ➢ Taking something or converting it to the accused’s or another’s use;

➢ Doing so fraudulently;

• ➢ Moving it or dealing with it by some physical act. The State v Boria Hanaio (2007) N4012
  

LAW

372. STEALING.

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

15. The central issue in this matter is whether or not the accused persons stole Fresh Fruit Bunches valued at K124, 242.20 property of NBPOL between 2009 and 25 July 2013? This issue can be highlighted in the following manner:
    
    • ➢ Did the accused persons take something convert it to their use or use of another?
    • ➢ Did they do so fraudulently?
    • ➢ Did they move it or deal with it by some physical act?
      

STATE EVIDENCE

16. The State’s evidence was in the form of oral and documentary evidence. The documentary evidence, included the Record of Interviews of all four accused persons.
    
17. The State’s oral evidence was from witnesses Albert Wali, Peter Henry, Elizabeth Osembo and Ruben Simon. The evidence of State witnesses Albert Wali and Henry Peter in general relates to the stealing of Fresh Fruits Bunches from Malilimi Oil Palm Plantation by Galai Block Holders, whilst the evidence of Mrs. Elizabeth Osembo relates to volume of oil palm crops stolen by the four accused and its monetary value.
    
18. The oral evidence of witness Ruben Simon is that he drove his two bosses to Ambrose’s block where it was reported that Fresh Fruits were stolen from the company NBPOL and later found out that the person who had stolen those fresh fruit bunches was the accused Tony Waiu.
    
19. The oral evidence of State witnesses Albert Wali, Henry Peter and Rueben Simon are corroborated by the evidence of State witnesses Richard Anio and Philip Dende whose statements were tendered in by consent and marked as Exhibits F and G respectively.
    
20. The evidence of State witness Elizabeth Osembo is that there was an increase in volumes of harvest of FFBs on Ambrose and Benny Galowe’s block from 2009 to July 2013.This was based on the Production Graphs showing the monthly and yearly productions. See Exhibits E3 and E6 for Benny Galowe and Exhibit E7 and E8 for Ambrose Ripme who was using the mama card under the name of Bibianna Ripme.
    
21. When suggested in cross-examination that other block holders give FFBs to them (Ambrose and Benny), to sell on their behalf for various reasons like they have loans or credits with the company and to avoid company from deducting from their sales, or some block owners had borrowed from them and instead of paying in cash, they were paying by the oil palm bunches, and she said that it was illegal to do that and the company has dealt with block holders who have been doing those kind of dealings or activities.
    
22. With respect to Tony and Camilla Waiu, she told Court that by 2009 they were evicted from the company land in 2009 and had no block but the company, NBPOL records showed that they were still harvesting FFBs and selling to the company using their old block number 6139 and the Primary or the Papa card until the accused Tony Waiu was caught with three nets of Fresh Fruit Bunches by the company employees on the morning of 25^th of July 2013. See Exhibit E22 and E23.
    
23. Exhibit E22 is the production report in tonnages and Exhibit E23 is the Growers Income history (in monetary value) for Tony Waiu.
    
24. From the company records, she calculated that a total of some 556.47 tonnage of FFBs valued in monetary terms at about One Hundred and twenty-Four Thousand Four Hundred and Forty - two Kina, twenty toea (K124, 242.20t were harvested and sold to NBPOL illegally by the Waius and Ambrose Ripme and Benny Galowe between 2009 and the 25^th of July 2013.( See Exhibit L – Summary in Total for both blocks 005- 2139 Tony Waiyu& Camilla Waiyu& 005-1615 Benny Galowe& Ambrose Ripme)
    

DEFENCE EVIDENCE

25. All the accused persons elected to give short unsworn statements as follows:
    

TONY WAIYU- Unsworn Statement

My elder brother (Samson) used my Primary card together with my bank card. He used it. That’s all.

CAMILLA WAIYU - Unsworn Statement

Those production reports the company talked about, we had no block. Company bulldozes our block with the entire palm. We had no block and company employed all of us, if not we will argue with the company. Same time, when they bulldoze the palm big brother Samson Waiu and Andrew Gonda used the card. That’s their production.

AMBROSE RIPME – Unsworn Statement

I have a block. I have a trade store. I have a Poultry Project. Other two (2) (16`4 & 1613) use my card to weigh their palm.

BENNY GALOWE – Unsworn Statement

I have a block. I have a trade store. I have a Poultry Project. Other two (2) two blocks – 1614 & 1613.

DID THE ACCUSED PERSONS TAKE SOMETHING OR CONVERT IT TO THEIR USE OR USE OF ANOTHER?

26. Both Tony Waiu and Camilla Waiu in their answers in their respective records of interview told police that they harvested FFBs from Malilimi Plantation and though these ROIs were unsigned defence counsel consented to their being tendered into evidence for the State. As a matter of fact all the accused persons’ records of interview were unsigned and tendered by consent into evidence for the State and now defence counsel asks the Court to give less weight to them for being unsigned. I am unable to accede to this for two reasons that firstly, I find that all accused persons spoke clearly and unambiguously in their answers in their record of interviews and secondly the defence counsel consented to them being tendered so in other words if he had issues with their non-signing he should not have adopted the approach he chose, simply put, “You cannot have your cake and eat it too”.
    
27. I find Elizabeth Osembo’s explanation of the production report in tonnage contained in Exhibit E22 and Growers Income history in Exhibit E23 of Tony Waiu to be very strong and cogent evidence. I accept what defence counsel intimated to Court that NBPOL cannot always be on the ground to catch thieves who steal FFBs from their plantation but I accept that it has its own processes of check and balance through Production Reports and Growers Income History which enables it to detect anomalies in production by small growers and in the instant case enabled it to detect serious anomalies in production by all the accused persons in terms of huge increases in their respective productions far in excess of what would be normally expected from blocks of their size from 2009 to July 2013. I accept her as a witness of truth as her demeanor spoke of nothing but it and her performance under rigorous cross-examination was commendable.
    
28. Elizabeth Osembo was able to explain to court with clarity and confidence on oath how there was an increased in volumes of harvest of FFBs on Ambrose and Benny Galowe’s block from 2009 to July 2013.This was based on the Production Graphs showing the monthly and yearly productions. See Exhibits E3and E6 for Benny Galowe and Exhibit E7 and E8 for Ambrose Ripme who was using the mama card under the name of Bibianna Ripme.
    
29. The accused persons gave unsworn statements from the dock so what does the law say about unsworn statements given by an accused person from the dock.
    
30. In State v Amoko Amoko[1981] PNGLR 373, the court held that when an accused person has given an unsworn statement from the dock, that statement should be considered but less weight has to be attached to it. Pratt, J (as he then was) expressed this in the following words:
    

"He (the accused) has not given evidence in this Court but has made a statement from the dock denying any complicity in the Break and Enter and any complicity in the burying of the items on the following day. That of course is not on Oath and therefore does not carry a great of weight. Nevertheless, it is material, which I must take in to account when I asses and weigh all the evidence."

31. I have considered their unsworn statements and my assessment of them is that I give them little weight and for the following reasons:
    
    • ➢ Tony Waiu said, “My elder brother Samson used my Primary card together with my bank card. He used it. That’s all”, this short statement I find is as ambiguous as it is short. He didn’t explain why he gave the two cards to Samson nor did he elaborate on what Samson used it for nor is there any evidence properly adduced to this Court on this point. Further this was not put to the State witnesses during cross-examination in furtherance to the rule in Brown v Dunn and unfair to the State.
      
    • ➢ Camilla Waiu said, “Those production reports the company talked about, we had no block. Company bulldozed our block with the entire palm. We had no block and company employed all of us, if not we will argue with the company. Same time when they bulldozed the palm big brother Samson Waiu and Andrew Gonda used the card. That’s their production”, again this statement is ambiguous as she did not explain how Samson and Andrew used the card let alone say what kind of card she says they were using and for what purpose. This was the first time this information was brought out into the open and was not put in such terms to the State witnesses in cross-examination and unfair to the State. Nor did she tell the police about it at the first opportunity she had during the conduct of the record of interview.
      
    • ➢ Ambrose Ripme said, “I have a block, a trade store, a poultry project and other two blocks (1614 and 1613) and use my card to weigh their palm”, this statement was not put to the test in cross-examination and besides this the only evidence properly adduced to court of his ownership of a block came from Elizabeth Osembo that Ambrose and his brother Benny Galawe owned block no. 005 1615. This information was not given to police at the first opportunity during the conduct of the record of interview.
      
    • ➢ Benny Galawe said, “I have a block, a trade store, a poultry project and two other blocks (1614 and 1613)”, this statement was not put to the test in cross-examination and besides this the only evidence of his ownership of a block came from Elizabeth Osembo that he and his brother Ambrose only owned block no. 005 1615. This information was not given to police at the first opportunity during the conduct of the record of interview.
      
32. I find that all the accused persons took FFBs belonging to NBPOL from Malilimi Plantation for their own use.

DID THEY DO SO FRAUDULENTLY?

33. For the same reasons I gave in addressing the first issue I find that they took FFBs belonging to NBPOL from Malilimi Plantation fraudulently.
    

DID THEY MOVE IT OR DEAL WITH IT BY SOME PHYSICAL ACT?

34. I find that all the accused persons harvested and caused the FFBs to be moved from the nearby Malilimi Plantation to Ambrose and Benny’s block and be placed in nets for pick-up by NBPOL trucks for sale from 2009 to 25 July 2013 and received payment for it.
    

REMARKS

35. Whilst I appreciate the amount of work the defence counsel has put into his submission on behalf of the accused persons there are a few salient points I wish to make with respect to his contentions.
    
36. Defence counsel at paragraphs 25 and 26 submits that a Andrew Kond and Samson Waiu used Tony Waiu and Camilla Waiu’s cards at all material times after their block was taken over by NBPOL in 2009 and hence there were production figures running under Tony and Camilla’s former harvest card records of their former block. I find that other than what Tony said in his short unsworn statement from the dock there is no evidence at all of this contention before the court, suffice to say I have already stated how I have treated this piece of evidence.
    
37. With respect to defence counsel’s submission that Andrew Kond and Samson Waiu are State witnesses number 13 and 14 on the indictment whose statements the State did not tender and refused to call despite his application to call them as witnesses along with witnesses 3 and 4 towards the end of the State’s case. On 26 September 2019 I ruled on his formal application and decided that since the State did not tender these two particular witnesses’ statements they were not before the court as evidence hence no need to call them. It is also the prerogative of the State to call or not to call which of its witnesses in furtherance of the State’s cause and therefore I am unable to understand what the learned counsel is submitting about and I find his submission on point flawed.
    
38. As for defence counsel’s submission regarding Ambrose and Benny owning blocks number 1614 and 1613 and further that they had a trade store and chicken poultry project which other small growers would obtain goods on credit and settle with FFB harvests from their blocks which could be sold through the brothers’ harvest cards I find totally without supporting and substantiating evidence except for their bare comments given in their short unsworn statements from the dock. I have already dealt with their comments with respect to blocks 1614 and 1613 and need not repeat myself.
    
39. With respect to defence counsel’s contention from paragraphs 31 to 33 I have already addressed earlier in my judgment and do not accept his contention. The best evidence rule is applicable in circumstances like the instant case and I apply it in accepting the production record.
    
40. For purposes of clarity and to leave no ambiguity I cite what the law says about the best evidence principle and for that purpose I reproduce what Kandakasi .J (as he then was) stated in Arua Loa & 2 Ors v Pepi Kimas & 3 Ors OS No. 903 of 2011 (JR) N5849 (29 December 2014):
    
    21. “I had opportunity to consider the principle in my decision in The State v. Raphael Kimba Aki (2001) N2039. There I observed that:
        

"The best way to prove a case against an accused person which accords well with the right to a 'fair hearing' within the meaning of s. 37(3) of Constitution is to call witnesses to give evidence under oath and be subjected to cross-examination... Admitting into evidence written statements or affidavits by consent may leave unanswered or not clarified questions or points in the evidence. ... This eliminates the risk of the statement or affidavit not necessarily containing what its deponent or author is really saying and may be one that may not stand up under cross-examination. It also accords well with the fundament principle that 'the best evidence must be given of which the nature of the court case permits'...”

41. The production record evidence is circumstantial in nature and in applying the rule in State v Morris [1981] PNGLR 493 I am able to draw the only reasonable inference from the data collated in this production record that the accused persons were all stealing from the Malilimi plantation owned by NBPOL. Further the defence counsel’s contention with respect to the production record flies in his face when in the first place he consented to it being tendered into evidence for the State, again “You can’t have your cake and eat it too”.
    
42. Suffice to say it is trite that counsels have a duty to diligently represent their clients but on the same token their first and foremost duty is to the Court as its officers.

DETERMINATION OF THE CHARGE

43. I find that the State has proven all elements of the charge of Stealing beyond reasonable doubt against all four accused persons.
    

VERDICT

44. I return a verdict of guilty of stealing contrary to section 372 (1) against the accused persons, Tony Waiu, Camilla Waiu, Ambrose Ripme and Benny Galawe.
    

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused