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State v Bale [2004] PGNC 155; N2620 (17 June 2004)

N2620

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 55 of 2001

THE STATE

v.

JOHNSON BALE

Kimbe: Sevua, J
2004: 4th & 17th June

CRIMINAL LAW – Stealing– Evidence – Circumstantial evidence – Inferences to be drawn – Failure of accused to testify – Inferences to be drawn – Over view of the case.

Held:

(1) The Court is entitled to find that the guilt of the accused is the only rational inference that the circumstances of the case would enable it to draw.

(2) The facts of the case amount to a reasonable hypothesis consistent with the guilt of the accused.

(3) The accused is guilty.

Case cited:
Paulua Pawa v The State [1981] PNGLR 498
Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82; 50 ALJR 108
The State v. Tom Morris [1981] PNGLR 493

Counsel:

F. Popeu for State
O. Oiveka for Accused

17th June 2004

SEVUA, J: On 4th June 2004, the accused, Johnson Bale of Raluana village, Kokopo, East New Britain Province, pleaded not guilty to a charge that he on the 26th June 2000 at Kimbe, stole the sum of K78, 074.03, the property of his employer, Pacific Industries Limited, contrary to s. 372 (1) & (7) of the Criminal Code, which is a crime carrying the maximum penalty of 7 years imprisonment under sub-section (7).

The circumstances in which the State says the accused stole from his employer are these. At about 9 am on the morning of 26th June 2000, the accused left the Pacific Industries Limited’ premises at the edge of Kimbe Town to go to PNGBC to do the company’s banking of the weekend’s takings totalling K78, 074.03, which comprised of K4, 951.21 in cash, and cheques worth K23, 122.82.

At the Malama Service Station also at the edge of town, the accused noticed a Water Board vehicle with some people in it following him. The accused drove into town and at Ela Motors junction, turned into the street leading to Kimbe Mart supermarket and PNGBC. However, instead of turning into the bank, he drove straight to Section 21 with the Water Board vehicle still following him. The accused drove to a Tucker Box and parked at the rear of the shop near 7th Street. The Water Board vehicle came and parked near the accused’s vehicle where the money, the subject of this indictment, was stolen from him. It is alleged by the State that the accused allowed the people in the Water Board vehicle to steal the money from him and therefore that amounted to stealing from his employer.

This is one of the trials that the prosecution, with the consent of the accused through his counsel, had consented to the tendering of various documents. The State was to call one witness, Ranilo Vertudazo to adduce oral evidence however, after discussion with the defence counsel, that witness’ statement was also tendered by consent. The Court admitted that statement and had it marked, Exhibit "Q". The State then closed its case.

Defence counsel, Mr. Oiveka informed the Court that he had advised the accused, of the options available to him, and that the accused had decided to remain silent in the exercise of his constitutional rights. Therefore he did not give evidence and did not call any witness in his defence.

The Court is therefore left with the task of perusing the various documents including the record of interview with the accused, Exhibit " N" and then determining the guilt or innocence of the accused.

Having read all the documents tendered into evidence by consent of the accused and marked Exhibits "A" to "Q" respectively, it is the opinion of the Court that the evidence of the prosecution against the accused is circumstantial, there being no direct evidence by any witness against the accused. Therefore the law on circumstantial evidence must apply in this case. Before I consider the law on circumstantial evidence, let me briefly refer to the relevant parts of the evidence which is not really in dispute, since the accused, through his counsel, had consented to the tender therefore the admissibility of the evidence.

On Monday, 26th June 2000, the accused was authorized by the Depot Manager of Pacific Industries Ltd, Ranilo Virtudazo, to go to PNGBC to bank the company’s proceeds of sales for the previous weekend. He was handed the key to a company vehicle and instructed to go to the bank and do the company’s banking. Usually the accused did the banking with another salesman or driver, however on that date there was no other employee to accompany him so he left alone for the bank. About 20 minutes later the accused rang the Depot Manager from Section 21 and informed him that the company’s money had been stolen from him (accused).

The accused had offered an explanation as to why he did not do the banking first, but diverted to the Tucker Box at Section 21 where he said he was robbed. In the record of interview (Exhibit "N1" and "N2"), the accused said he decided to visit the Tucker Box to collect some drinks which the owner of the shop had not sold, and he needed to replace those drinks. He therefore went there thinking that it was safe with the money in the vehicle. He said he thought he could do that job first then go to the bank later then he would eventually replace those drinks.

However, there are very good reasons that I do not and will not accept the accused’s explanation. Firstly, he was employed as a EDP clerk with Pacific Industries Ltd., not as a salesman. My own understanding of what a EDP clerk does is basically the entry of data into computers and I understand that EDP stands for Entry Data Processor. So an EDP clerk is a person who is responsible for the input of data into a computer system. What was the accused doing checking a customer to replace drinks when he was not a sales person? Secondly, he never told the Depot Manager that he was going to Section 21 first to attend to a customer. In any event, there is evidence that just prior to the accused arriving at the Tucker Box, another salesman of Pacific Industries Ltd had already been to the shop to collect money from the shop. So why didn’t the shop assistant give that salesman the drinks he did not sell? Why did the accused, an EDP clerk, have to go to that customer to replace drinks? Thirdly, there is evidence from the owner of the shop, Boi Degemba, Exhibit "K", that he did not telephone the accused to collect any money as the payment had already been collected earlier by a salesman of the company. On this aspect, it is the accused’s assertion that he had been contacted by the shop to replace some drinks, but then one has to be satisfied as to how an EDP clerk, not a salesman, could do what the accused had said.

Thirdly, the accused had observed the Water Board vehicle following him at the time he left the company premises. He said in his record of interview in answer to Question 33 that he had observed the Water Board vehicle inside the company’s premises prior to his departure for the bank. He said as he came out of the office, he noticed that that vehicle was driving out of the gate. He waited for a while before he eventually left to do the banking. As he drove towards town, he noticed that the Water Board vehicle was behind him and following him to town. He said as he turned at Ela Motors, he drove to Section 27 then to NBC and the Catholic Mission. As he took these roads, he lost sight of the Water Board vehicle, that is, he did not see it following him so he turned to Section 21. However, he was quite surprised that the Water Board vehicle also turned up at the rear of the Tucker Box where he was parked, and he was held up at gun point and robbed of the sum of K78, 074.03.

The question that needs to be asked and answered is, in the light of the accused’s statement to police, how did the people in the Water Board vehicle know that the accused was heading to the Tucker Box at Section 21? And the next question is, how did those thieves know that the accused had a lot of money with him that time? There is evidence that earlier that morning, an employee of the Water Board had been held up at gun point and his government vehicle stolen from him. There is also evidence that it is that stolen vehicle which was involved in this alleged robbery of the accused.

Finally, the accused was in possession of a large amount of money, almost K100, 000.00. Why did he not go to the bank to do the banking first, especially with the kind of money he had in his possession? Any reasonable person or employee in the position of the accused would have given priority to banking that kind of money before he does other chores for his employer.

In considering all the evidence before me, it is my view that the accused was involved in this crime and he is not prepared to tell the Court. Of course, it would be wrong to say that he is guilty of this crime because he did not give evidence. His silence cannot be held against him and the Court cannot infer that hjis silence amounts to guilt. The law on this is quite clear. However, it is my view that there are certain matters that the accused needs to explain and he has opted to remain silent.

It is my view that this was an inside job, made to look like an ordinary armed robbery. The thieves in the stolen Water Board vehicle just could not turn up at the Tucker Box at Section 21 and go straight to the accused and rob him without any prior knowledge of him carrying a huge amount of money intended for banking that morning. This is not a crime of coincidence. By that I mean, the thieves, whoever they were, did not stumble upon the accused with a lot of money. It is not a coincidence, in my view. I suspect that it was planned and although there is no direct evidence of a conspiracy, I consider that the circumstances in which this crime was committed leaves no other reasonable hypothesis than the guilt of the accused. From the factual circumstances of this case, I am entitled in law to draw the necessary inferences including the inference that accused conspired with the unknown criminals to steal the money.

This then leads me to the law on circumstantial evidence as established by the Supreme Court in Paulus Pawa v. The State [1981] PNGLR 498; where the Court held that:

"When a case against an accused person rests substantially upon circumstantial evidence there should be an acquittal unless all the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused."

The Court adopted and applied the principles in Barca v. The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104; [1975] HCA 42; 50 ALJR 108 at 117. There are some very good principles of law that His Honour Andrew, J cited and I wish to cite them here too because I consider them to be very important in the present case, and since it is the law applicable here now. I refer to pp 501-502:

"I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108 at p. 117:

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v. The King [1911] HCA 66; (1911), 13 CLR 619 at p. 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is not only that his guilt should be a rational inference but that it should be the only inference that the circumstances would enable them to draw": Plomp v. The Queen [1963] HCA 44; (1963) 110 CLR 234 at p. 252; see also Thomas v. The Queen [1960] HCA 2; (1960) 102 CLR 584 at pp. 605-606.

However, "an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’; Peacock v. The Queen at p. 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v. Director of Public Prosecutions, [1973] 1 WLR 276, that there is no duty on a trial judge to direct the jury in expressed terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense’."

With respect I adopt these principles here not only because they constitute the law in this jurisdiction, but also because they are of great persuasive value. His Honour Andrew, J was also in agreement with Miles J in The State v. Tom Morris [1981] PNGLR 493 at 495. In that case, the National Court also adopted and applied Barca (supra). The Court held inter alia that:

"Where there are a number of competing inferences it is a question of fact for the court to decide which inferences should be drawn, which rejected, and which are reasonable, which are mere conjecture, and which party, if any, they favour."

In taking into consideration all these relevant principles, it is my opinion that it is open to me as a tribunal of fact to find that the guilt of the accused is the only rational inference that the circumstances of the case would enable me to draw. Briefly stated, the accused drove to Section 21 and waited at the back of the Tucker Box because he had arranged with his friends in the stolen Water Board vehicle that he had the money to be banked that morning. He had the motive to do that, for how on earth could those people know he had the money and followed him to Section 21. The fact that he turned at Ela Motors junction into the street that PNGBC was located, but did not bother to bank the money demonstrated his "modus operandi".

I consider that these matters and other facts that I have alluded to constitute a reasonable hypothesis consistent with the guilt of the accused. Again, I reiterate that the accused’s failure to give evidence does not amount to an admission of guilt, nor should the Court draw an inference of guilt. See Paulus Pawa (supra). However, I consider that there are matters left unexplained that only the accused would be able to explain.

Having considered the law, it is my view that the accused is guilty of stealing and I am satisfied beyond reasonable doubt that he committed the crime. Accordingly, I find him guilty and convict him.

Verdict: Guilty

Lawyer for State : Public Prosecutor
Lawyer for Accused : Public Solicitor