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Langer v The State [1990] PGNC 28; N849 (25 April 1990)

Unreported National Court Decisions

N849

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

AP. 89 OF 1989
BETWEEN: WILLIAM HENRY LANGER
APPELLANT
AND: THE STATE
RESPONDENT

Waigani

Brown J
11 April 1990
25 April 1990

CRIMINAL LAW - Appeal against conviction for stealing - Circumstantial evidence - Inferences of fact to be drawn - Question of law - Right in National Court to reconsider “factum probandum.”

APPEAL - Verdict unsafe and unsatisfactory - Stealing - Relevant law not properly applied - Substantial miscarriage of justice District Courts Act Part XI s 236(2) (Power of National Court on appeal).

The facts of the case are sufficiently set out in the reasons for decision.

No cases were quoted in argument.

Counsel:

Appellant in person.

Mr C Manek, for Respondent

BROWN J: Mr William Henry Langer appeals against a conviction under s 372 (5)(f) of the Criminal Code Act and sentence of 6 months imprisonment with hard labour for stealing. He appeals against the decision of the Grade V Magistrate sitting as a District Court at Lae. The Notice of Appeal was instituted as long ago as 23 May 1989 by Warner Shand Lawyers for the appellant and, the appeal was brought in person by the appellant after leave had been granted for his lawyers to withdraw. In the circumstances I have been particularly careful to ensure that justice be seen to be done. On the hearing of this appeal Mr Langer whilst unrepresented was given every opportunity to speak in relation to the various grounds of appeal originally set forth in his Notice of Appeal prepared by his former lawyers.

On 11 April 1990, then Mr Manek represented the State Respondent and Mr Langer appeared in person. His argument on his appeal related to the apparent failure of the magistrate to have sufficient regard to the circumstances in which a security box could be opened. The security box was a metal “patrol box” in which money and securities were carried to a bank. Whilst there was a small padlock the evidence of a breach of security was afforded by a red security tag which would be damaged or destroyed if the box was tampered with. If the box was opened then the security tag would be damaged whether or not the padlock was forced or a key used. It is apparently impossible to open the box in the normal course (unless one cuts the metal) without the tag being damaged, and I accept that premise.

The magistrate convicted on circumstantial evidence. In effect the appellant says there has been a misdirection on the defects of such circumstantial evidence. Thus the appeal is competent. The appellant stated that the circumstantial evidence afforded him equal opportunity of an acquittal since his version of the transaction was consistent with his innocence. He further stated that when the magistrate was so satisfied there was a case to answer and the trial proceeded, that after the defendants evidence the magistrate had had insufficient regard to the defendants prior good character. Accordingly the Court had not taken such prior good character into account on its consideration of the likelihood of his involvement where the evidence was circumstantial.

Further that the offence was typical of a clerk defalcation and since the defendant had for the past 30 years been in the security business, such reputation for honesty whilst handling cash, gold and other securities should have been apparent to the magistrate where in this case some K48,000.00 was involved and there had been a short fall of only K600.00. The short fall in all the circumstances points more to a clerk defalcation than an attempt by this defendant who was a manager of a security firm to steal, as it was put to this Court. That ground, then is basically that the finding was so against the weight of evidence that it was unsafe.

The facts of the offence were that cash and securities belonging to Angea Gumanga Pty Ltd were transferred by aircraft from Menyamya to Nazab near Lae and, hence under guard by the PNG Armoured Security for which the appellant was the manager (PNG Armoured) to Lae for collection and deposit in the company’s bank account at the Westpac Bank. Angea Gumanga Pty Ltd, by its resident manager at Menyamya, Mr Lean Jones gave evidence of having despatched a steel patrol box with that money to Lae. That box was secured by a clasp and small padlock. To prevent tampering or at least to show whether the box had been tampered with a red security tag was affixed to the clasp so that, if the box was opened even where a key was used on the padlock, then the security tag would be damaged or destroyed. Mr Jones, the manager of the company gave evidence that a red security tag had been properly affixed and that was accepted by the Court. The security box was accordingly collected at Nadzab airport by this appellant. The box was then conveyed to the Westpac Branch of the Bank at Lae on Friday, 2 December 1988. Staff of the bank found on counting the moneys in such box that there was a short fall of some K600.00 in cash.

The material period than was from when the appellant collected the box at the Nadzab airport to that time when the money was counted the following day on the 2nd December. It was found by the Court that the box was delivered to the bank on Thursday afternoon, so late that the accepting teller having balanced refused to count the money in the box at that time. As I say, Mr Langer had personally delivered the box and there is in evidence an delivery docket dated the 2 December 1988 which curiously has on its foot an endorsement “banking done on Friday”.

The bank employee who actually counted the money on Friday was one Leah Sao. She gave evidence that on Thursday Bill Langer came with a trunk. “It was late so we had to lock it away in the safe”. She did not count the money on Thursday for as she said she had balanced for the day.

She was asked about the red tag and the key to the box.

Q: Did you check the red tag number on the deposit slip?

A: No.

Q: Why not check the red tag number?

A: Because there was no delivery docket that day.

Q: What happens when you check the tag on the delivery docket?

A: If they are not the same we ring them to find out why they are not the same or we will not accept the deposit

Q: What if tag and delivery docket are the same?

A: We accept deposit.

Q: You do anything to show tag the same?

A: Yes, we tick it (points to number on deposit slip).

Q: What do you do with delivery docket?

A: Put the sign and my stamp on it.

Q: Any other deliver from Angea on the 2nd?

A: No, only one.”

The witness further gave evidence on cross-examination.

Q: Did you notice if box locked and had red set security tag?

A: Cannot remember.

Q: What about tin being lock?

A: It was locked.

Q: So you would know how lock and tag close?

A: Yes.

Q: The lock and security tag are in the same place?

A: Yes.

Q: Is it not one of the first things you do to check number on the tag?

A: Always the first thing.

Q: I put to you that you ask for the box to be opened to count money, keys handed to you that afternoon by Bill Langer?

A: No, it was the next morning.

Q: When to checking stroke you check number on tag against number in deposit book?

A: Yes.

Q: Are saying you did not check number?

A: I don’t remember if there was a tag on.

Q: If could check tag and it was wrong would not have check box?

A: No.

The importance of that evidence is the tellers assurance to the Court that firstly, she would not check the contents of the box if the security tag was damaged on reception and secondly, the box in fact was received on Thursday.

John Vatabu, a Tellers Supervisor gave evidence to the effect that he telephoned the appellant, William Langer on Friday morning to have him come in and open the box with his key so that its contents may be counted. He was questioned.

Q: See any red tag on box?

A: There was no red tag on box when opened.

Q: Did you query this?

A: No, did not query. If there is a red tag then teller usually ticks the number on deposit.

Q: Seen other deliveries from Angea come in for deposit?

A: Yes.

His evidence is in conflict with the evidence of the teller, for the tellers evidence is strong that the deposit will not be counted in the absence of a red tag. In this case, John Vatabu stated there was no red tag.

The inference that can be drawn is clearly that inference suggested by the appellant in his later evidence when he said, he opened the box on Thursday afternoon proceeding the Friday morning when the money was counted. In so opening the box the red tag would have been destroyed and accordingly there was no tag visible on Friday morning. Since the money was not counted until the Friday morning, there was no tag against which the number noted on the deposit slip could be checked.

The Teller who gave evidence also confirmed that she did not tick the number against the deposit slip.

On cross-examination John Vatabu said -

Q: Recall who brought tin on Thursday?

A: Did not see.

Q: When first time come to know?

A: On Friday tried to take deposit teller wanted to count the deposit.

Q: So tin stayed over night in bank strong room?

A: Yes, on Thursday night.

The importance of this exchange was that John Vatabu stated that, he first became aware of the problem surrounding the missing K600.00 was when the teller came to count the deposit. He had previously in his evidence in-chief asserted that he had telephoned Bill Langer to open the box on Friday morning. Yet there is no evidence that the bank took steps to try to identify the reason for or source of such shortfall, rather the bank merely credited the customers account with the lesser sum varying the deposit slip unilaterally by so doing.

The appellant and the evidence of John Vatabu was at odds in these material respects-

1. The appellant states in the District Court that he would not have been available to call at the bank before 9 a.m. on Friday for he is too busy organizing his days delivery and collections.

2. The appellant denied that he went to the bank on Friday morning.

3. John Vatabu on cross-examination apparently concedes that he first became aware of the problem was when the teller had a short fall. There is implied support then for the appellants assertions in his own evidence that he in fact opened the box on Thursday afternoon and consequently destroyed the red tag, then.

John Vatabu supported his tellers knowledge of the bank rules when he said -

“bank should not accept without seal, we verify seal number against deposit.”

The appellant in his evidence asserted that the money was taken from Nadzab airport to, PNG Armoured premises where it remained on the back of a truck whilst he obtained a key from his office. The tin trunk was than taken to the bank late on Thursday afternoon where he opened the tin trunk on the understanding that the money would be counted on the following morning. He left without having had the money counted and, did not hear anything further about the transaction until some weeks later when he was approached in connection with the supposed K600.00 short fall by Mr Jones, the manager of his principal company. That approach was by way of query rather than by way of any accusation.

As Mr Langer asserted (and as the court found) “had the teller found no red tag per correct procedure, it would not have accepted the deposit at all”.

It is clear than from the evidence that Mr Langer’s defence is sustainable on that fact found by the Court. The patrol box was lodged with the bank on Thursday afternoon, there was a red tag at that time, (or Leah Sao would have drawn its absence to the attention of the appellant). The delivery docket and its notation at the foot confirmed that the patrol box was delivered on Thursday, for counting on Friday. There was no reason for Leah Sao to be concerned by the absence of a red tag on Friday when she came to count the deposit, for she had known the box had been delivered on Thursday.

The inference that could quite properly be drawn at this point in time was that she had no reason to be concerned by the absence of the delivery tag, for she knew that docket had been destroyed on Thursday afternoon when the box had been opened by Mr Langer. That the appellant says is a more likely inference than that of the police case. The police case relied entirely on the evidence of John Vatabu on that material aspect. John Vatabu asserted that he telephoned Mr Langer to come to the bank to open the box on Friday. Mr Langer expressly denied that approach and gave reasons why he would not have been available to open the box so early on Friday morning.

At that time it would have been open to the Magistrate to have accepted Mr Langer on that point. Mr John Vatabu’s evidence was unsatisfactory having regard to the answers to questions in cross-examination when he admitted, when he first became aware of the problem of the short fall. It was not Mr Vatabu who thereupon contacted the police, but the police contacted Mr Vatabu many weeks after the event when his recollection may reasonably be open to question. A reasonable hypothesis is that John Vatabu reconstructed the events of the morning in question to explain why the box had been counted without a red tag. Had he assumed that Mr Langer had been telephoned that morning, to come in, and opened it in the presence of Leah Sao? The court in those circumstances could have accepted that version of facts put by Mr Langer in his sworn testimony when he said he opened the box on Thursday afternoon. The magistrate relied on the fact that the accused had the key, (the box was not forced) but that was not in issue.

In cases where circumstantial evidence is the only evidence on which the police can rely for a conviction, the magistrate’s failure to warn herself of the dangers of conviction in the face of the accused’s expressed denials and his good character, I am satisfied gave rise to a miscarriage of justice. No proper regard has been had to this accused’s period of time (without criticism) in the security industry. He was in a position of trust as the manager of PNG Armoured in Lae. This is a case where some K48,000.00 was apparently available in the tin box. There is some K600.00 missing. It does seem to be a typical clerk defalcation. I am not suggesting for one moment that either of the two bank witnesses who gave evidence, Mr John Vatabu or Miss Leah Sao were guilty of that offence for any bank employee would have had access to the opened tin box in those premises, from the time it was delivered on Thursday until the time it was counted on Friday morning. It would have been a simple matter to open the lid and take out a bundle of notes.

The box arrived in the bank premises on Thursday afternoon and on the evidence of Leah Sao, she accepted delivery. The Court must have been satisfied, there was nothing about the appearance of the box to put the teller on notice that it had been tampered with. In other words the red tag must have been in place before Mr Langer opened the box.

I am accordingly satisfied that the finding was against the evidence, the circumstantial evidence has been misconceived by the Court and there has been a substantial miscarriage of justice. In other words applying the principles as explained by Fullagar J, in Maz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at p 514, it cannot be said with sufficient certainty that the relevant law was properly applied so that the accused thereby has lost a chance which was fairly open to him of being acquitted and this is the miscarriage of justice. The relevant approach so far as appeals of this nature are concerned, involving questions of fact and law is to treat ultimate decision “factum probandum”, drawn from inferences available from the circumstantial evidence as a question of law. I agree with the comments of Andrew J in Chief Collector of Taxes v Folkes (1981) PNGLR 58 at p 61 where he says -

“A mixed question of law and fact is a question of law and it is not proper to attempt “to secure for a finding on a mixed question of law and fact the unassailability which belongs only to a finding on questions of pure fact”: Great Western Railways v Boxter (1922) 8 T.C 231 at p 244 and Australian Temperance and General Mutual Life Assurance Society Ltd v Federal Commissioner of Taxation [1933] HCA 3; (1933) 2 A.T.D. 217.”

ORDER

The appeal is upheld, the conviction and sentence are quashed and I direct that a verdict of acquittal be entered. I further order that K600.00 paid pursuant to the District Court Order be refunded by PNG Armoured to the appellant.

Lawyer for Appellant: Appellant In Person.

Lawyer for Respondent: Public Prosecutor.