N3314

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1268 of 2007

THE STATE

-V-

NIGEL ONGAPA

Tabubil: 	Kandakasi, J.
2008: 5 & 6 March

DECISION ON VERDICT

CRIMINAL LAW- Verdict – Stealing from employer – Only issue for trial whether accused stole property allegedly stolen from employer – No dispute as to time, place and amount of money stolen – Prosecution case on issue for trial circumstantial – Accused last person to have access to safe where property was kept – Accused last person walking out of safe area with a bag - Accused initially denying and later admitted to purchasing number of electronic items after the offence – Some money deposited in accused account – Source of monies deposited and money for purchase of goods not explained – Accused choosing not to testify – Only inference in the whole of circumstances point to guilt of accused - Guilty verdict returned.

Papua New Guinea Cases Cited:
Paulus Pawa v. The State [1981] PNGLR 498. 
The State v. Tom Morris [1981] PNGLR 493.
Garitau Bonu & Rosanna Bonu v. The State (1997) SC528.
The State v Paul Yepei (No 1) (17/03/04) N2570

Counsel:
J. Kesan, for the State.
P. Kapi, for the Prisoner.

6 March, 2007

1.	KANDAKASI J:	Yesterday, you pleaded not guilty to a charge of stealing contrary to s. 372 (1) and (7) of the Criminal Code. The State called four witnesses, in a bid to establish the charge against you. You called no evidence on your behalf.

Issue for Trial

2.	Most of the facts for the purposes of the charge stood admitted. The only issue was whether you are the person who stole a sum of K35,569.44, being the property of your employer, Ela Motors here in Tabubil. 

Evidence and Findings of Fact

3.	You do not seriously question the credibility of the witnesses the State called to testify against you. After having observed carefully each of the witnesses’ demeanour in Court and the kind of evidence they gave, I note that you correctly take no issue on the credibility of the State’s witnesses and their testimony. Accordingly, I will proceed to make findings of fact based on all of the evidence that are before me.

4.	Before proceeding any further, I note that a number of important facts for the purposes of the charge against you are not in dispute. This include firstly, the fact that a sum of K35,569.44 went missing from Ela Motors, Tabubil branch between 31 June and 2 July 2007. You along with the witnesses Betty Boreng and Mea Moi were employed by Ela Motors here in Tabubil. Only the three of you had access to the cash office where a safe was, and in which all takings or money made each day by Ela Motors from all of its sections or departments were kept. 

5.	On the basis of the witnesses, Betty Boreng, Mea Moi and Pomat Hapin’s evidence, I find that, both Betty Boreng and Mea Moi left the safe keeping the money in your hands and left for home on 31 June 2007, which was a Saturday. They closed off at about 12:00 noon as it was weekend. In keeping with established practice, at the time of these witnesses leaving, they left the safe open after they had accounted for the money in the safe at the time. I also find on the basis of Pomat’s testimony that, after you closed the service station, you went into the cash office were the safe is and was there for some time. Thereafter, you called Pomat to come in for the lock up of the safe as usual. When Pomat came, he found the lock to the safe hanging so he got it and locked the safe. He did not check the safe so he was not able to confirm what was in the safe before locking it. Further, I find on the basis of Pomat’s testimony that, when you left the safe and your work place, you left with a small bag. Furthermore, I find that, on Monday, you got to work at about 6:00 am. At that time, you went into the cash office where the safe was and after sometime there, you came out saying you discovered the money missing from the save. There was no obvious signs of break and enter or forceful opening of the safe or the cash office. Additionally, there is no evidence of any one entering the premises of your employer both after you left on Saturday and before you returned for work on Monday 2 July 2007.
 
6.	Turning then to the evidence of Senior Constable Kepo Undi and the record of interview which is exhibit "B", I find that, after the loss of the K35,569.44, you purchased a number of electrical goods, costing about K5,000.00 in total, after initially denying the purchase. A search warrant was the reason to change your story from not purchasing any such items to purchasing them. You also had deposited into your account a sum of K1,800.00. You said the cash deposit came from your wife but did not provide any evidence of the source of your wife coming up with that money. There is no evidence that your wife is employed or is otherwise engaged in income generating activity. Further, you did not provide any explanation as to where you got the money from to buy the electrical goods. You only said the purchase was from your own money. The evidence shows you earned about K200 per fortnight at the relevant time.

7.	As can be seen, there is no evidence directly establishing you as the person who stole the money. The State therefore correctly submits that its case against you is circumstantial. Learned counsel for the State referred the Court to the leading case authority on a case built on circumstantial evidence, namely the case of Paulus Pawa v. The State. In that case at p. 501, per Andrew J quoting Miles J. in The State v. Tom Morris, spells out the law in these terms:

"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) 50 A.L.J.R. 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), 13 C.L.R. 619 at p. 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’:	Plomp v. The Queen (1963), 110 C.L.R. 234, at p. 252; see also Thomas v. The Queen (1960), 102 C.L.R. 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 W.L.R. 276, that there is no duty on a trial judge to direct the jury in express 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.’"

8.	These principles have been adopted and applied in many cases and is still good law in our country. An example of that is the case of Garitau Bonu & Rosanna Bonu v. The State. That was a case of murder resting on circumstantial evidence. There was no evidence linking the appellants to the murder of the deceased. There was however, evidence of the fatally stabbed and wounded body of the deceased found in the appellant's house. There was some evidence of some attempts being made by them to give medical attention to the deceased prior to seeking help from the neighbours. The appellants made no admission either to the Police during their record of interview or at the time of their arrest or to anyone else. In their record of interviews, they both declined to offer any explanation or say anything and they both declined to give evidence at the trial. There was therefore, no explanation from them as to how, when or why the deceased was found in their house and bleeding heavily with stab wounds to his body. The National Court found them guilty and the Supreme Court on appeal confirmed the verdict and conviction.

9.	The above cases, particularly the case of Gari Tau Bonu and Rossana Bonu v. The State (supra) makes it clear that, whether an accused person should be found guilt or acquitted of a charge based entirely on circumstantial evidence, is a matter of commonsense approach. In other words, the Court is entitled to draw reasonable inferences as commonsense may dictate as to the guilt or innocence of an accused person. I have adopted and applied these principles in many cases, as in the case of The State v. Paul Yepei (No 1). 

10.	Applying these principles to your case, the State says that the evidence before me supports only one inference. That inference is that, you stole the money from your employer and that is the only rationale and reasonable inference open on the facts now before the Court. On the other hand, you through your lawyer argue that, it is not safe to draw such an inference. These arguments and hence your guilt or innocence can be resolved by reference to the evidence that are before the Court, especially on the issue for trial.

11.	The State points out and I accept that the following evidence appears to point to you being the person who might have stolen the money in question:

(a)	You were the last person who had access to and placed the whole or part of the money in the safe before it was being locked;
(b)	The Security officer who locked the safe after you called him in did not check or see the inside of the safe. He just locked the safe lock which was hanging at the time;
(c)	When you walked out of the cash office and where the safe is, you walked out with a small bag;
(d)	You were the first person to discover the missing money on Monday 2 July 2007;
(e)	You made a deposit of K1,800.00 after the theft of the money, which you said came from your wife. However, you did not provide any evidence of your wife earning such a large sum of money from any source;
(f)	You also purchased a number of electrical goods valued at about K5,000.00 after the theft of the money. You initially denied purchasing any of these items but when pressed on with a search warrant, you admitted to purchasing them. Again apart from a claim that the money came from you, you did not provide any explanation or evidence as to where you got the money to purchase the goods, given your fortnightly salary of K200.

12.	I also note with interest that, there is no evidence of any forceful entry of the premises or the safe. Similarly, I note the absence of any evidence of any persons entering the premises both after you left on 31 June and before you returned for work on 2 July 2007.

13.	Since you chose not to go into evidence, there is no evidence of what you did with the money you collected from your sales just before closing up and calling the security officer to come and lock the lock to the safe. Also you gave no evidence of what kind of bag you carried out of the office and what was in it. Further, you did not provide any evidence of where exactly you or your wife got the money to purchase the various electrical goods. Furthermore, you gave no evidence of where your wife got the K1800 from to deposit into your account. 

14.	Your lawyer points to the fact that the key to the safe usually stays with your boss in the manager’s office each day after opening the safe, as well as the fact that the lock was found open in the normal way at the time of your discovery of the money going missing. He then argues that, these factors suggest that, may be your boss took the money or someone else did. Hence, it is unsafe for this Court to infer guilt based on the circumstantial evidence.

15.	I do not find your arguments through your lawyer convincing especially, when you chose not to provide an explanation when one was due, given the circumstantial evidence and the missing evidence which I outlined above, point to you as the possible thief. I appreciate that, it is your constitutional right to remain silent and that no guilt can be inferred from that. However, your silence has left many questions unanswered, for example did you take your takings for the day and put them in the safe together with the other takings for the day from the other departments? What kind of bag did you have and what was in the bag? Where did you get the money from to pay for the various electronic goods you bought after the theft? Where did your wife get the K1800 to deposit into your account? Was the lock the security guard locked was the same and usual lock for the safe?

16.	I find that your case is similar to the case of Gari Tau Bonu and Rossana Bonu v. The State the facts of which I already outlined above although not on all fours. As was the case in that case, an explanation was called for from you but you did not provide any such explanation. The facts, in the circumstances, support only one reasonable and rational inference beyond any reasonable doubt and that is that, you stole the money allegedly from Ela Motors, your employer between 31 June and 2 July 2007. 

17.	Accordingly, I find beyond any reasonable doubt that, the State has established the charge against you. Hence, I return a verdict of guilty against you and convict you on the charge presented. I order that your bail be refunded on production of your receipt and that you be remand in custody awaiting your sentence.

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