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Police v Korul [2001] PGDC 43; DC322 (21 November 2001)

DC322

PAPUA NEW GUINE
[IN THE DISTRICT COURT OF JUSTICE]

CASE No 135 OF 2001

Police
Complainant

V

Joseph Korul
Defendant

Mount. Hagen: M. M. Pupaka, PM.
2001: 26th & 30th October

Criminal Law – Particular offence – Breaking, entering & stealing – Elements of offence. Criminal Law – Law of evidence – Doctrine of recent possession – Guilt of accused the only logical conclusion on the facts.

Counsel
Sergeant Piaku for the Prosecution
The Accused in person

21st November 01

M. M. Pupaka: The accused Joseph Korul was charged that over the period between 16th August and 22nd August 2001 he "did break and entered the Highlands Tyres warehouse and committed a crime therein namely stealing" (sic), thereby contravening section 395-(1) (a) of the Criminal Code Act Chapter No. 262, (the Code).

The State Case

Those who testified for the State; the Senior Sales Supervisor (Colin Balio) and one other employee (Peter Lupalau) of Highlands Tyres gave the following evidence:

The accused was at all material times a security guard guarding the Highlands Tyres warehouse, which is at the outskirts of Mt. Hagen City along the Okuk Highway. He is one of two guard details permanently on guard duties at the premises every night. In fact the accused and the other guard are on hire by Highlands Tyres from Bepa Security Services. However because the accused and that other guard, one Daniel, live close to the warehouse, the owner of Bepa Security Services assigned them as permanent night guards at the said warehouse. They have been engaged that way for over two years or more by these witnesses’ reckoning.

On several occasions prior to the 16th of August 2001, there had been stock and tyres going mysteriously missing from the warehouse. On those occasions the staff at the warehouse were subjected to pay cuts to off set the costs of missing stock. Due largely to these instances of missing stock, the management of Highlands Tyres instituted and put in place a system of check whereby a stock take would be done every morning. So every morning work at the warehouse commences with a stock take.

On the night of the 16th of August 2001, the accused and the other guard (Daniel) had guarded the Highlands Tyres warehouse as usual. They were seen around the premises next morning as usual, as it is their practice to wait and stay at the premises until Highlands Tyres employees have arrived for work. As usual they were gone by around 9.00AM.

Colin Balio did the daily stock take to begin work for the day on the morning of the 17th of August 2001. He soon realised that some tyres were missing. He called in the staff of six tyre fitters and two clerks to look for the missing tyres. Eventually, if the tyres were not located at all, Colin Balio would have to inform the boss, who would impose a pay deduction on all the staff.

They all started looking for the tyres inside the warehouse. During the search Colin Balio checked the main sliding door. He found the "V" crimp on it to be loose. He further detected that sufficient space was created between the floor and sliding door when the loosened "V" crimp sheet was lifted. He therefore asked for tyres of the type missing to be brought. Those he then pushed in and out through the gap. Colin Balio found that the tyres could be easily slid in and out of the gap. He also found that bigger tyres than the types/sizes missing and grown men of average sizes could slid in or out of the gap created as well.

Colin Balio and his colleagues were therefore rightly suspicious of the night guards who live together at the same place. By then the owner of Bepa Security Services, Wan Wak, was alerted. Colin Balio and the others sought permission from Wan Wak to search his guards’ premises. Permission was granted. The staff of Highlands Tyres then proceeded over the road, to the other side of their warehouse to where the guards’ house was. The guards’ house is across the road, only yards from the warehouse.

Upon a search of the inside of the guards’ house nothing was found. Then the searchers observed the accused emerging suspiciously from the shrubs near his outdoor toilet shed. Their suspicions were aroused. They extended their search to the shrubs near the guards’ toilet shed. Sure enough they found all the missing tyres stacked in the shrub near the guards’ toilet shed.

The accused was caught and brought to the warehouse. He initially admitted that he and Daniel stole the tyres but when he realised that Daniel had escaped, he changed tactics and shifted the blame entirely upon Daniel.

Despite the way the charged was worded and framed, that the offence occurred between the 16th and the 22nd of August 2001, the State has adduced evidence to prove that the theft occurred on the night of the 16th and early morning of the 17th of August 2001. The daily stock check on the morning of the 17th of August showed up the missing stock. Presumably no such missing stock was detected by the daily stock take on the morning of the 16th, so the theft can only have occurred between the evening of the 16th and the early morning of the 17th. Nevertheless I think a valid charge is disclosed on the charge sheet and that charge has been proved to the required standard by the evidence adduced.

The Defence Case

The accused denied being involved. He said he was off duty on the night of 16th August 2001. He said he went to ‘check up’ on the other guard in the early morning on the 17th at about 4.00AM and then returned to his house at 5.30AM to sleep. He never saw any thing.

The accused said he and the other guard, (he never actually mentioned the name of this ‘other guard’ by the way), alternated shifts with two other guards. He seems to be saying four guards worked shifts in two groups of two men a shift.

Further the accused did not say whose shift the night of the 16th of August 2001 was. If it was not his and his partner’s shift, was it the other two guards’ (pairs) shift? More over the accused does not disclose the names and identities of the guards in the ‘other’ shift, nor does he say how often these shifts changed.

The Law

There was a break-in at the Highlands Tyres’ warehouse at the relevant times. The very broad definition of the offence in section 394 of the Code covers what happened. That provision, for the record, reads:

394. Breaking: Breaking and entering

(1) A person who –

(a) breaks any part, external or internal, of a building, or

(b) opens by unlocking, pulling, pushing, lifting, or any other means, any door, window, shutter, cellar, flap or other thing, intended to close or cover an opening in a building, or an opening giving passage from one part of a building to another,

shall be deemed to break the building.

(2) A person is said to enter a building as soon as any part of his body or any part of any instrument used by him is within the building.

(3) A person who –

(a) obtains entrance into a building by means of –

(i) any threat or artifice used for that purpose; or

(ii) collusion with any person in the building; or

(b) enters any chimney or other aperture of the building permanently left open for any necessary purpose, but not intended to be ordinarily used as means of entrance,

shall be deemed to have broken and entered the building.

The accused denied that he had possession of the stolen goods. The stolen goods were found within the vicinity of his premises. No one else had rights of use, possession or control over the spot wherein the tyres were found. In fact the accused himself ‘led’ the searchers to the hidden goods. His suspicious conduct actually caused the searchers to direct their search to the spot.

In the circumstances the accused’s assertion that he was not in possession can not possibly stand. He was ‘in possession’ for all intends and purposes and he had such possession soon after the offence of break and entering and stealing was committed.

Conclusion

It was intimated in court that perhaps the accused ought to call his security supervisor who might shed light on the controversy over these ‘shifts’ and extra guards. It was the accused who raised the issues of ‘other shift’s’ and ‘extra guards’. He was given ample time to call the security supervisor or any other relevant witness who might know of these matters. He has failed to call anyone, either a colleague or any body else from the Security Company, to clarify those issues.

The State witnesses stressed the point that the accused and the other guard called Daniel were on permanent guard duties. They even gave evidence as to how long they themselves (State witnesses) had worked for Highlands Tyres, to indicate the length of time they knew of the accused and Daniel to be the only guards guarding the premises at night. During the respective terms of their employment they knew of no other guards, other than the accused and the man Daniel, to work guard duties at the warehouse. In the circumstances the accused really should have called his security supervisor to negate the State witnesses’ evidence. He did not adequately negate this State evidence. Consequently I must accept that this accused was on guard duties like the State witnesses said.

It was always the duty of the accused and the other guard to protect the premises they were paid to guard. If anyone had broken-in and removed the tyres, they should have an explanation for it. It is not open for the accused to shift blame on the other guard, though it must have seemed convenient to do so after the other guard escaped. It was always imperative that the accused watched out for any misconduct from his colleague. He should have reported any such misconduct of the other guard, including the commission of this offence, to either the staff of the Highlands Tyres or to his own employer. He did not make any report.

There is one other thing evident on the facts. The six tyres of varying sizes could not have been possibly taken away and hidden by only one person. Neither could the same have been taken away and hidden in just one trip. More then one trip must have been made by more than one person to remove and stash the tyres at the place they were later found. Evidently this accused and the other guard who is still at large, worked together to commit the offence.

In any event the accused’s lies and blame shifting and denials are not nearly enough, such as to negate the force and effect of the State’s case against him. If anything, his lies, blame shifting, and denials only go to strengthen the State’s case against him. Consequently I have no doubts at all as to the guilt of this accused. Therefore I find him guilty as charged.

Sergeant Piaku: Complainant
In Person: Defendant