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Police v Kombra [2001] PGDC 47; DC317 (4 December 2001)

DC317

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 24 OF 2001

Police
Complainant

V

Ben Kombra
Defendant

Mt. Hagen: M. M. Pupaka, PM
2001: 25th Sept., 23rd Oct., 2nd Nov., & 4th Dec.

Criminal Law – Particular offence – Stealing by servant – Elements of offence – Whether innocent act of detention of property – Actions of accused manifested his intention to permanently deprive – Lapse of more than reasonable time ‘completed’ act of theft.

Law of Evidence – Proof of matters peculiarly within the knowledge of the accused – Balance of probabilities – Credible explanation sufficient discharge of onus – ‘Explanation’ provided not of convincing credulity – Defences of innocent possession and or full restitution not made out.

Counsel
Sergeant Piaku for the Prosecution
The Accused in person

18th December 01

M. PUPAKA, PM: The accused Ben Kombra, aged 27 of Waipip Village, Nebilyer, WHP, is charged that he, between the period 31st July and 7th November 2000 at Kundiawa and Mt. Hagen, stole State properties, namely two 12 Volts Batteries, one SR 8 Amps Regulator and 3 Solar Panels, all of them valued at some K2548.00. The offence is contrary to section 372 (1) of the Criminal Code Act chapter No. 262 (the Code).

In the trial of the accused the prosecution called 5 witnesses, all of them serving policemen. The first witness was Louis Ambane. He is attached to the Communication Section at the Kundiawa Police Station. He gave evidence on what was removed by the accused there. Michael Nali was the second witness. He was the acting OIC of Communication at Mendi Police Station at all relevant times. He gave evidence on what the accused took from Mendi Police Station. Paul Iwaga testified next. He is the OIC of the Kunjip Highway Patrol Base. He accompanied the accused on his trips to Nondugl and Kundiawa Police Stations. He gave evidence on what was removed by the accused at those two police stations. He also testified that the accused sold him a set of solar panel and regulator, obviously removed from the Kundiawa Police Station.

The other two witnesses were the OIC – Communications (Highlands Region) Major Damien Linus, who is the immediate supervisor of the accused and police radio operator First Constable Peter Anis. The prosecution has sought to prove the accused’s conduct and apparent intention to steal the equipment, on the bases of these last two witness’s evidence and some aspects of the evidence of Paul Iwaga.

The State case

The accused is a constable of police in the Royal Papua New Guinea Constabulary. He was normally based in the National Capital District but at the material times, for one reason or other, was on temporary attachment at Mt. Hagen. He is a trained police radio technician.

The State evidence is that the accused removed two solar panel (actually it was two small panels bolted together) from Nondugl Police Station (WHP), and one large solar panel with its SR 8 Amps regulator and a 12 volts battery from the Kundiawa Police Station (Simbu). He replaced the solar panels from Nondugl with a new one and the he installed regular electrical power supply at Kundiawa. It is also said the accused removed one 12 volts battery and a VHF Radio (a defective one in need of fixing) from the Mendi Police Station (SHP).

Apart from some minor inconsistencies about whether two separate solar panels or one big panel were removed from Kundiawa, the State evidence as to what was removed from Nondugl, Kundiawa and Mendi Police Stations is not in dispute. The charge did not include removal of the VHF Radio from Mendi but clearly it too was taken by the accused. As I said the State evidence as to what was removed from where is not disputed.

The accused removed the solar panels, battery and (solar) regulator from Nondugl and Kundiawa first, which he brought to Kunjip.

He then sold the large solar panel together with its 8-amp regulator to Policeman Paul Iwaga for K200.00. Paul Iwaga said he paid the accused K100.00 as first payment but has not yet given the balance to the accused. That part of this witness’s evidence is disputed by the accused.

The solar panel from Nondugl Police Station and the 12 volts battery from Kundiawa Police Station remained at the Kunjip Highway Patrol Base for some time.

On or around the 2nd of November 2000, the accused was detailed to travel to Mendi Police Station to fix the police radio there. Before going to Mendi the accused had the equipment at the Kunjip Highway Patrol Base collected and taken to the Mt. Hagen, which he then put inside the technicians’ office at the Police Station.

On the 3rd of November 2000 the accused had all the equipment, taken to Mt. Hagen from Kunjip the previous day, loaded onto a police vehicle and then proceeded to Mendi. Police witness First Constable Peter Anis, who was the driver, accompanied him. Apparently some relatives of the accused including his wife, went along for the ride as well.

The accused fixed the faulty police radio at Mendi. He collected a 12 volts battery and a VHF Radio there. The party returned to Mt. Hagen. While the group was still travelling on the way it got dark. By the time they arrived at Waipi Village (the accuser’s home village, which is along the Mendi – Mt. Hagen road) it was around 7.00PM to 8.00PM in the evening. The accused, his wife and his other relatives got off at the accused’s village. The accused also offloaded all equipment, which included all the equipment brought up from Kunjip the previous day plus the battery and the radio taken that day from Mendi. The police driver, First Constable Peter Anis, then drove back to Mt. Hagen alone.

Sometime after the Mendi trip, the OIC – Communications, Damien Linus, was informed of the equipment brought down from Mendi. He could not locate these at the Mt. Hagen Communications Office. He suspected that there might be equipment from other police stations missing too. He proceeded to phone up and check on other police stations. He was advised that the accused had removed two solar panels from Nondugl Police Station. He was also advised that one solar panel with its regulator and a 12 volts battery were removed from Kundiawa Police Station. Consequently Damien Linus decided to personally travel to the two police stations and confirm those reported removals. However before he went on the fact finding trips he called the accused in an advised him of the nature of the complaints and the purpose of his intended trips. He also castigated the accused for working outside his authority and bypassing the proper chain and channel of command. At the time the accused advised him then that the things were still at the Kunjip Highway Patrol Base, which as it now turns out, was a lie.

Damien Linus went to Nondugl and Kundiawa and confirmed what he had been told over the phone. Thereafter, on the 7th of November 2000, he called the accused into his office and directed him to return all equipment by the 10th of November 2000.

Thenceforth the accused did not report to Damien Linus. Neither did he turn up for duties after that. As a result Damien Linus laid a complaint against the accused in the police station Occurrence Book on the 29th of December 2000. The accused was not sighted until he was arrested on the 12th of February 2001 and charged with this offence.

After the accused was arrested his relatives were advised to return the equipment, wherever those were kept. Damien Linus in fact went to the accused’s village to secure the return of the equipment. The accused’s relatives handed over two solar panels which in the opinion of Damien Linus and the police, is standard PTC (Post & Telicom) equipment. These are not of the types and models used and installed at police stations for purposes of police radio communication. Damien Linus said he was personally present when two blue coloured solar panels were installed at the Kundiawa Police Station just before the Y2K operations, and he said none of the much slander and yellow coloured solar panels returned by the accused’s relatives belong to the Police Force. He said therefore none of the three solar panels and one regulator, two 12 volts batteries and one police VHF radio have been returned or recovered.

The Defence case

The accused elected to testify on oath. He said he went about fixing the faulty radios and power units and sources for them at the various police stations referred to. He conceded that he removed two solar panels from Nondugl Police station and replaced it with a bigger one. He conceded that he removed one bigger solar panel with its regulator and 12 volts battery from the Kundiawa Police Station and replaced the power source for the police radio there with an electrical unit. He further said the old equipment he removed from Nondugl and Kundiawa were left at Kunjip Highway Patrol Base because he had no vehicle to transport them up to Mt. Hagen.

On the 2nd of November 2000 he had the equipment stored away at Kunjip Highway Patrol Base picked up and brought to Mt. Hagen. It is clear the accused went with others to Kunjip on the 2nd of November 2000. However he stopped short of entering the Patrol Base himself, and allowed the others to load the equipment. He says something about wanting to buy betel nuts at the market nearby. This accused desperately wants the Court to accept that he is a careful and thorough person who would adequately take care of things under his control. It seems strange he decided ‘looking for betel nuts at the market’ more important than going to the Kunjip Patrol Base to make sure every item of equipment he had left there was intact.

Perhaps he did not wish to meet again with the Patrol Base OIC – Paul Iwaga? That possibility is just a thought. Nevertheless the accused should have at least addressed the issue one way or the other, because clearly the solar panel from Kundiawa Police Station and its regulator were not among the equipment at Kunjip. Whilst the accused made no mention of Paul Iwaga showing any interest in that solar panel, the State’s evidence through Paul Iwaga is that the accused had already sold that set of solar panel and regulator to the latter.

In his evidence the accused steered clear from mentioning the fact that the equipment brought from Kunjip were taken to Mendi on the 3rd of November 2000. Evidently he did take equipment to Mendi but he did not say why he had to take them up.

The accused further conceded that he brought down one faulty VHF radio and a 12 volts battery from the Mendi Police station.

The accused’s evidence does not differ with that of State witness First Constable Peter Anis up to the point at which the equipment were off loaded from the police vehicle at the accused’s village.

The accused’s only other witness was his first wife. She said she was at the matrimonial home at the accused’s village, when the accused brought all those equipment from Mendi around late afternoon on the 3rd of November 2000. She puts the time of arrival of the accused at 6.00PM or late afternoon. She remembers that the accused brought the equipment to the house with the help of his brothers. She also recalls the accused saying he would take the things back to the police station the next day. She was sure in her evidence that the accused brought two small slender solar panels and two solar batteries, and nothing else.

The accused’s wife further said she got angry over the accused going around with another woman and so she took the equipment and hid them in another house, and packed her own things and took off to her own village. After she fought the accused’s second wife over the latter’s intrusion into her marriage, she has never lived in the accused’s village with him and his second wife at any time, until she was brought back by the accused’s brothers, which was well after the accused was arrested.

It is blatantly obvious the accused’s wife has lied. Needless to say she is not a credible witness. What is wrong with her story?

- She did not say and can not recall when she took the equipment and hid them. She clearly recalled the accused saying he’d take the equipment to the police station "next day". But then when asked if the accused did take those things over to the station next day, she replied she was not in the house. Did she remove and lock up the equipment the next day? Perhaps she came back after she went to her own village? She has left vital questions unanswered.

- The accused went to Mendi and arrived at his village late at around 8.00PM on the 3rd of November 2000 with one of his wives. Obviously this witness was not that one. So it must have been the second wife of the accused. Given that, if this witness was still at the village of the accused as she says, why can she not recall that the accused brought his second wife home that night? Was there an argument in the home that night? During cross-examination the prosecutor give ample cause and opportunity to the witness to recall what happened. Yet the witness said she has never stayed at the accused’s village when his second wife was around, for she had already moved to her own village by then.

- The witness was not quite sure what colour the solar panels were. She initially said the colour was blue. Then she said it was sort of brownish under cross-examination. She could not possibly be mistaken. She seemed to be an informed and educated person who knew what she was talking about.

Under the circumstances I would place little or no credence upon the evidence of this defence witness – the accused’s wife. Her evidence, at the least, does not refer to or make clear vital matters in contention that she alone can clarify. On the whole her evidence is devoid of any credibility. Her lack of knowledge of vital matters can only mean that she was not at the accused’s village on or around the 3rd of November 2000, which would have been about the time when the accused was openly living with his second wife at his village. The witness firmly said she was not at the accused’s village when his second wife was living there.

Points for Discussion

1. Did the accused remove the equipment from the three police stations unlawfully or with ulterior motives?

I am unable to reach this conclusion on the evidence available. It does seem the accused did not work well with his immediate supervisor – Damien Linus. Apparently he seems to have done things at his fancy. His reasons that his boss did not allocate or make available the section vehicle for him to travel out to the stations to check on and fix police communication facilities are not good enough. In the end his OIC would take the blame if things were not fixed. The accused should have waited for orders from the OIC, Damien Linus. It matters very little that there were urgent calls for his attendance at those stations. He is in the Police Force where it is the duty of a rank and file policeman, such himself, to wait upon and take orders from his immediate supervisor.

Yet all that notwithstanding, there is no evidence to suggest that the accused purposely removed equipment to steal or misappropriate them. It is another matter as to whether the removal or replacement of the equipment was in the best interest of those police stations but that is not the issue here.

2. Did the accused sell the solar panel and regulator removed from the Kundiawa Police Station to Paul Iwaga?

I am inclined to conclude that he did. Paul Iwaga, who is the OIC of the Kunjip Highway Patrol Base, accompanied the accused on his trips to Nondugl and Kundiawa Police Stations. Paul Iwaga gave specific evidence as to where and how he and the accused first met. He testified boldly against the accused. In all counts I find his evidence credible.

I find one thing, a relatively minor point, odd though. The accused avoided meeting Paul Iwaga on the 2nd of November 2000 at Kunjip. He did not query or raise the alarm over the evidently missing solar panel and regulator from Kundiawa Police Station that he had left at Kunjip. He and the others went to Kunjip specifically to get the set of equipment he left there. If the accused realised that one set of solar panel and regulator was missing, quite strangely he kept silent about it. He seemed not to have raised the point at that time, and further has said nothing of it in court. His own silence at the time and more recently in court, over the missing equipment set, must stand disastrously damning against himself now.

I can only conclude that the accused sold the equipment set in question to Paul Iwaga. For this reason alone I would return a verdict of guilty.

3. Just why did the accused take the equipment from Nondugl and Kundiawa Police Stations that were then safely locked up at Mt. Hagen, to Mendi on the 3rd of November 2000?

The accused took the two solar panels from Nondugl Police Station and one 12 volts battery from Kundiawa Police Station to Mendi on the 3rd of November 2000. He gives absolutely no reasons for taking these things to Mendi. These things were securely locked up in the communications office at Mt. Hagen by then, at least since the previous day. There really was no cause to take them to Mendi.

It is not said if any of the equipment was needed at Mendi or that the accused might have thought similar equipment at Mendi needed replacing. As the evidence stands, the accused was specifically requested to go and repair a faulty VHF police radio at Mendi and that there was no real or probable cause for carting all these other equipment up as well. In the absence of any valid or other reason at all, the prosecution’s contention that the accused took the equipment so that he would later leave them at his village seems a more likely explanation.

4. Was there any justifiable or logical reason for the accused to off-load and keep all or any of the equipment at his village?

This is one of the threshold issues. If there were such a logical or justifiable reason, given all the circumstances, the benefit of the doubt would belong to the accused.

Even the Court felt it important to ask the accused to justify his actions in off-loading the equipment at his village. He seems to give two reasons for his actions. Firstly he said he has kept such equipment at his home before and that for over even longer periods of time and has taken good care of it. He said he saw no harm in taking the equipment to his village that day. Now that is his own assertion, unsupported by credible evidence, that he took such excellent care of State property at his home prior to the pertinent events. All I can say is that it is a risky practise, not only for the accused but also for any other employee. All sorts of accusations and allegations may be raised or worse, sackings are not merely remote possibilities for any one who engages in these sorts of activities, in any organisation. Needless to say the accused’s own situation here only too clearly highlights the point.

The only place where such equipment ought to be kept is at its normal place. It is said there is a workshop at the Mt. Hagen Police Station where equipment is normally kept. By and large I do not agree with the first reason proposed by the accused and I reject it as lacking in any merits.

Secondly the accused leaves it open for a conclusion that the police driver, First Constable Peter Anis, who was travelling back to Mt. Hagen alone at night, would have been robbed on the way. Apparently the accused thought the equipment would be lost. He said First Constable Peter Anis agreed that the equipment be off-loaded, however that was not put to First Constable Peter Anis for confirmation or rebuttal. In any case First Constable Peter Anis said the accused with his wife and relatives unloaded the equipment. He did not say if his view was sought. He further said he ‘trusted the accused’s professional judgement’ and made no comments at the time. Besides he thought the accused was going to bring back the equipment next day so he thought nothing of it until questions were asked much later.

Again all I can say, given all the circumstances of this case, particularly after having found that he sold equipment to Paul Iwaga, is that the second reason advanced by the accused for off-loading the equipment is superfluous. The equipment was on its way to its proper place – the Mt. Hagen Police Station abroad a police vehicle then being driven by a policeman. The latter is a member of the Communication Section same as the accused, and was equally responsible for the safety of that equipment. If the equipment got lost on the way, either through theft or otherwise, First Constable Peter Anis was going to be held accountable, and not the accused, and the accused ought to have known that. The accused would not have been in doubt as to where his responsibility began and where it ended. In fact, all things considered, it was more risky keeping the equipment at the his village, as he soon must have found out – if there is any truth in what he says next happened over there. The accused had no reason to feel attached to those things. In the circumstances, his pretence of propriety again stands out more as superfluous then sincere.

All that said I must reject the accused’s second reason too. In all the circumstances, it lacks merit and is not convincing enough. It was not proper for him to off-load or keep the equipment at his village and the accused knew that

5. Has all or any of the missing equipment recovered?

After the accused was arrested and charged Damien Linus and certain others, together with the accused’s councillor, went to the village to ask the accused’s relatives to return the equipment. The accused’s relatives returned the two batteries and two solar panels.

The two returned solar panels are disputed as being police equipment. The police say these two solar panels are PTC equipment and not the police equipment that the accused took to his village. The accused contents that the two solar panels are the same ones he removed from Nondugl Police Station.

In all the circumstances, I am unable to find as a matter of fact if the returned solar panels are police equipment or PTC equipment. These could be one or the other. It is Damien Linus’ contention against that of the accused. The lack of a clear finding one way or the other would not reflect adversely upon the credibility of Damien Linus. In my view he is a credible and competent witness. It is just that I consider his assertion that the solar panels are PTC equipment, is unsupported by other extrinsic evidence. He did say he was present when the solar installations at Kundiawa were put up "just before the Y2K operations". However the two solar panels immediately in issue here are the ones removed from Nondugl and not Kundiawa. The accused contents that PTC installed the solar panels at Nondugl prior to the Police Department taking direct charge of its own communications matters. The accused’s contention in relation to this aspect has not been fully negated. Consequently I should accept that the two solar panels from Nondugl Police Station have been returned.

Be that as it may, it is evident that the VHF police radio from Mendi Police Station has not been returned or recovered. Though I find this to be so on the evidence, I note that the accused has not been charged over this VHF radio. However it is now a matter of evidence that the set of solar panel and regulator from Kundiawa Police Station were sold to Paul Iwaga of Kunjip Highway Patrol Base by the accused.

6 Is the evidence of what happened at the village a credible story?

After he was directed by Damien Linus to return the equipment the accused did not report at the Mt. Hagen Police Station, either to report for duties or to advice Damien Linus as to why the equipment could not be returned. The accused was so directed on the 7th of November 2000. From there on to the 12th of February 2001, the day he was arrested, is a relatively long time. He was given a deadline to return the equipment – by the 10th of November 2000 – but for no apparent reason he failed to meet the deadline.

The accused should have turned up for work. He should have reported his difficulties in recovering the things to Damien Linus, or better still he could have reported his first wife’s behaviour to the police and have her arrested. He should have done something. The accused knew full well he could be charged or sacked from the Police Force if he failed to return valuable equipment. In the circumstances his assertion that his first wife removed and locked away the equipment and prevented him from returning them stands unconvincing. He has called his first wife as witnesses to back up this, but in face of the conclusions that have been reached relative to his wife’s evidence and given all the circumstances of this case, I reject their story line as unconvincing and superfluous. Further, the accused deliberately lied to Damien Linus that the equipment was still at Kunjip Highway Patrol Base when it obviously was not.

Consequently I conclude that the accused manifested, by his actions, a clear intent to steal the various equipment he off-loaded at his village on the 3rd of November 2000.

Conclusion

Having considered all the evidence available, I have concluded that the accused intended to steal and did steal all the equipment he unloaded off the police vehicle at his village on the 3rd of November 2000. In law, the fact that some of the things were returned after the accused was arrested over the theft does not change, affect or in any way negate this finding of fact or the conclusion as to his intentions and actions. I would therefore find the accused guilty as charged on the charge of stealing. Further even if that conclusion would not be safely reached on the facts, the charge of stealing would still stand proved in relation to the set of solar panel and regulator that the accused sold to Paul Iwaga. As I said earlier, on the bases of that (sale to Paul Iwaga) alone the accused would also be found guilty as charged, and I do so find as such.
In the end the accused is found guilty as charged.

Sergeant Piaku: Complainant
In Person: Defendant