DC311

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 157OF 2000

Police
Complainant

V

Nikints Pintina
Defendant

Mt. Hagen: M. M. Pupaka
2001: 07th June

Particular offence - Break and Enter and Stealing – Elements of offence - Evidence wholly based on latent fingerprints – Likelihood of accused leaving imprints whilst lawfully on premises prior to break in probable– Conviction unsafe

Evidence – Accused lawfully present on premises prior to break in – Likelihood of accused touching objects from which latent impressions obtained – Objects from which latent impressions obtained taken from crime scene ‘mixed’ up with similar objects taken from undisclosed source – Conviction unsafe

Counsel
Sergeant Korowa for the Prosecution
The Accused in person

25th June 2001

M. PUPAKA, PM: The accused Nikints Pintina, aged 44 of Kunguma Village, is charged that he on the 08th of July 2000 at Kunguma Village, Mt. Kuta in Mt. Hagen, broke into and entered the dwelling house of Mr. Keith Willison, and therein committed an act of theft, which is contrary to section 395 (1) (a) of the Criminal Code Act chapter No. 262 (the Code). Section 395 (1) (a) provides:

(1) A person who – 

(a) breaks and enters the dwelling-house of another with intent to commit a crime in it; or
…..
is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If the offence is committed in the night, the offender is liable, subject to Section 19, to imprisonment for life.

The Evidence

The evidence is straightforward. For the prosecution the complainant, Mr. Keith Willison, said he came home in the early hours on 08/07/00 and could not locate his black bag, particularly in his bedroom where he usually keep it. The bag contained approximately K10, 000.00 which were in mixed currencies of PNG Kina, AUD$, and US$. He went to sleep and in the morning discovered that two louvre blades had been removed from his bedroom window. In answer to a question posed to him during evidence in chief, the complainant said entry into his bedroom had been through the window where two louvre blades had been removed. He was asked next if the space created was big enough for a person to enter through. The witness said the space was certainly not big enough for him personally. (The witness is a fairly stocky man). He did say a smaller person or child could but he said he was not sure. He later brought the two louvre blades to the police station. Neither his bag nor his money has been recovered.

The only other prosecution witness was the policeman who dusted the louvre blades for fingerprints at the police station. That witness said the complainant brought in five louvre blades to the police station on 11/07/00. From these he lifted nine latent impressions using adhesive lifting tape, which he later transferred onto latent cards. Then about a month later the accused was arrested and brought to the police station. On the 21/09/00 the witness took finger and palm prints of the accused and on 22/07/00 the witness made comparisons of the latent impression obtained previously from the louvre blades, with the ink finger and palm prints of the accused. The witness identified six latent impressions found on the louvre blades that matched the ink fingerprints of the accused. The other three latent impressions were not suitable for comparison.

The accused elected to testify on oath and did so. He gave evidence through a translator. He said on the day in question he had come to town and in the night he walked home with one other man. He denied committing the crime.

The accused said Mr. Willison’s wife is from his village. He has been with the Willison family for a long time, in fact since he was a young man. He has worked on and off for the family for many years, some times briefly and other times continuously for up to four years. He would be asked to stay off for a while and would be re-employed when there is work. He said he has nothing against that family and that he, an illiterate villager, has been given employment and well looked after by them. He said three people, two ladies and he, were normally employed to work in and around the house. There are other houses there too, including kunai (thatched) houses. He said his latest employment with the family had ended on or around February 2000 when he was laid off again. The family paid him K500.00 in terminal benefits.

The accused further said when he is in the employ of the family he would normally work outside the house, as the ladies would be working inside. His main job would be doing maintenance and general repairs around the house. He would fix leaking water pipes, replace louvre blades, and do maintenance to other fixtures and structures. He would also mend or rebuild any kunai (thatched) houses that fell apart or became old.
 
The accused was cross-examined as to whether he had been inside the house at any time and as to how recently he had been near the windows of the house. He could not recall how recently he had been near the windows of house but said he would not normally work inside the house.

Consideration of the Evidence

There are some crucial factors not clear on the evidence. All of those factors would have strengthened the prosecution case. The lack of clear evidence and discussion on those crucial factors, I think, are detrimental to the prosecution case. Those factors, though not necessarily in order of any sequence or importance are these:

A. It was never mentioned, nor was it remotely referred to, as to how or why the accused was arrested. Why was he a suspect in the case? There could have been any number of suspects in the village and its surrounds. Without the finger print evidence there is absolutely no case made out against the accused, or anyone else for that matter.

B. There is no evidence as to whether or not anything else was removed or damaged in the break in. There is no evidence of any flywire or crossbars or iron grid or wire mesh on the window too being broken. If there was any such things remove or parted or damaged, was it done from outside or inside the house? How secure was the window? The full extend of the break in was not sufficiently described.

C. Clearly there is contradictory evidence from the two prosecution witnesses – the complainant and the police fingerprint expert. The complainant said he took the two louvres blades (meaning the two removed from his bedroom window) to the police station, whereas the policeman said the complainant brought five louvre blades to the police station on the 11/07/00.

D. So where did the other three (extra) louvre blades came from? From the same bedroom window or from another window in the same house or where? Further were the two louvres removed from the bedroom window left near that same window or did the complainant retrieved them from somewhere other than near that window? 

E. More importantly, on which of the five louvre blades were the latent impressions lifted from? It is particularly imperative that the prosecution present clear evidence on this aspect. The accused is likely to have touched a lot of objects, including louvre blades on the windows of the house during his many years of being at the premises. 

F. There is no evidence as to whether there were other louvre blades removed from that window to gain easy entry. If only two louvre blades were removed from the window as said, how big a space was created? The complainant did say he would not have gained entry through the space created himself, as he evidently is a big man. But he was not too sure as to who else would. Obviously a smaller built man would have entered through, but it must be clearly proved as to whether someone like the accused would have. The accused is a small man but he is neither a child nor a tiny person. He would have struggled to get in through a space created by the removal of only two standard sized louvre blades.

G. How fresh were the latent impressions dusted off the louvre blades? For that matter, how long can latent impressions such as fingerprints remain or last on such surfaces as louvre blades? The police fingerprint witness did not clarify. I thought it particularly unfair for the Prosecutor, well after he closed his case, to suggest to the accused during cross-examination that the prints were fresh, and I said so. In fact I ruled that the accused would not answer the question or comment upon that suggestion.

Conclusion

More than one logical conclusion may be drawn from the evidence before this Court, and from the absence of vital evidence that the prosecution should have adduced. However it is not necessary to list any here. It would suffice to say the prosecution has failed to prove its case against the accused. The prosecution has particularly failed to negate the defence borne out by the evidence of the accused. The accused has asked this Court to believe that the latent impressions, that matched his own finger prints, found at the scene of the crime, would have been left by him prior to the break in when he was lawfully present around the house. The accused has quite sufficiently explained away the impact of the otherwise incriminating fingerprints.

I accept that the accused was lawfully at the scene of the crime prior to the break in. I also accept that he may have touched the louvre blades in question prior to the break in. It is quite probable and can not be ruled out lightly. I further find that the prosecution has failed to prove that the fingerprints were fresh. These findings are fatal to the prosecution case. I would acquit the accused on that bases alone. 

However I also find that contradictory evidence of the complainant and the police fingerprint witness relative to those louvre blades – as to how many were taken in for dusting and from where – to be fatal to the prosecution case too. I would acquit the accused for that reason alone also.

Consequently the accused, Nikints Pintina, is acquitted on the charge of break and enter and stealing. His bail money is to be refunded to him.

Sergeant Korowa: Complainant
In person: Defendant