N4037

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTIC

CR NOS 107, 732 & 736 OF 2008

THE STATE

V

EDWARD GIRAGU KOIMA,
AGNES AMBU GIRAGU &
SILVIA KITAWA GENE

Madang: Cannings J
2010: 25 March, 13, 19 April, 20 May

VERDICTS

CRIMINAL LAW – trial – stealing – Criminal Code, Section 372 – dismantling of house and removal of contents – whether the accused did the acts constituting the offence – whether the accused aided other persons in committing the offence – Criminal Code, Section 7.

A group of people ransacked and dismantled a house in a village and removed personal property from it, while the owners were absent. Three accused were charged with stealing the house and its contents. The State alleged that one of the accused did the acts constituting the offence and that the other two enabled or aided the commission of the offence and that they were all guilty of stealing. They pleaded not guilty.

Held:

(1)	Under Section 372(1) of the Criminal Code the offence of stealing has three elements:

•	taking something or converting it to the accused's or another person's use; and

•	doing so fraudulently; and

•	moving it or dealing with it by some physical act.

(2)	The State proved that the offence of stealing was committed by a group of people.

(3)	As to the first accused, there was direct evidence that he was a member of the group that committed the offence and that he did the acts constituting the offence.

(4)	As to the second and third accused there was no reliable evidence that they were members of the group that committed the offence and insufficient evidence that they enabled or aided others in committing the offence.

(5)	The first accused was found guilty and the second and third accused were acquitted.

Case cited

The following case is cited in the judgment:

The State v Boria Hanaio, Bula Hanaio & Timothy Komu (2007) N4012

TRIAL

This was the trial of three accused charged with stealing.

Counsel

N Goodenough, for the State
D Joseph, for the accused

20 May, 2010

1. CANNINGS J: On Friday 30 March 2007 there was an incident at Karisokra village in the upper Bundi area of Madang Province. A house occupied by a New Tribes Mission couple, Paul and Susan Boothby, was broken into and ransacked by a group of people. The house was dismantled and taken away, along with personal property inside it. The Boothby family was overseas at the time. The three accused, Edward Giragu Koima, Agnes Ambu Giragu and Silvia Kitawa Gene, have been charged under Sections 372(1) and (10) of the Criminal Code with stealing the house and its contents, valued at K130,992.00. Edward and Agnes are husband and wife, each aged about 50. Silvia is a younger woman and is related to Edward and Agnes.

2. The offence of stealing (that term being defined by Section 365) has three elements:

•	taking something or converting it to the accused's or another person's use; and

•	doing so fraudulently; and

•	moving it or dealing with it by some physical act.

(See The State v Boria Hanaio, Bula Hanaio & Timothy Komu (2007) N4012.)

3. It is not disputed that the incident actually occurred or that the offence of stealing was committed by a number of people. What is disputed is that the accused were involved. They have each pleaded not guilty. They say that though they were at the village at the time, they were not involved. The State's case is that they were all involved in some way. In particular:

•	that the first accused, Edward, was directly involved and was a member of the group that committed the offence and should be convicted under Section 7(1)(a) of the Criminal Code; and

•	that the second and third accused, Agnes and Silvia, aided those who committed the offence and should be convicted under Section 7(1)(c) of the Criminal Code.

ISSUES

4. The central issues are:

•	was Edward a member of the group who broke into the house, dismantled and ransacked it and removed the contents?

•	did Agnes and/or Silvia aid that group?

5. Determination of these issues requires:

•	a summary of the evidence for the State;

•	a summary of the evidence for the defence;

•	a preliminary assessment of the State's case;

•	a summary of the defence counsel's submissions;

•	an assessment of the defence counsel's submissions; and then

•	a final determination of the two highlighted issues.

EVIDENCE FOR THE STATE

6. Two witnesses gave oral evidence. The other significant evidence was the record of interview of each accused. There was also a batch of before-and-after photographs of the house and a list of items stolen and their value.

Oral evidence

7. Mathias Kurumaina is a community leader at Karisokra. He has known the Boothby family for 15 years. He was the caretaker of their house when they went overseas. He knows all the accused. He is related to all of them. He was at his house at 6.00 am on 30 March 2007 when he heard noises coming from the Boothby house. He went to investigate and saw that Edward's boys were destroying the Boothby house using axes and bushknives. He tried to stop them but they would not listen. They said that they had a reason. He stood 10 to 15 metres away with many other village people. They threatened him and other bystanders who were not allowed to intervene. He saw Edward's boys go into the house and remove things including electronic equipment such as a computer and a video-recorder and a generator. They brought everything outside and stockpiled it. No women were involved. He stayed watching for three or four hours. With his own eyes he saw Edward and his boys do these things.

8. In cross-examination he acknowledged giving a statement to the police (two versions of which were admitted into evidence) in which he said that he saw Edward involved in doing these things and that the incident happened at 8.00 am on Friday 30 March.

9. Mathias said it was true that he was at the Boothby house on the night of Thursday 29 March but he denied (as put to him by the defence counsel, Mr Joseph) that Edward's boys attempted to break into the house that night and that Edward tried to stop them. He also denied going to the Boothby house at 8 o'clock on the morning of 30 March. He went at 6 o'clock, he said. Edwards's boys went there first and Edward came a few minutes later. He denied that Edward at any time tried to stop his boys destroying the house and stealing it and other properties.
 
10. The second State witness was Mande Awari. He is also a Karisokra villager. On 30 March he saw Edward and his group 'break the house'. They were armed with bushknives, axes and a pinch-bar. Edward led the group. He did not see what happened inside the house but he saw them breaking the house and going outside and then he saw household items being removed from the house.

11. In cross-examination he said he was not there in the morning but he saw what happened in the afternoon.

Records of interview

Edward

12. He said that the owners of the house that he broke into and stole from were 'Paul and Susan'. They did not give him permission to demolish their house. Asked why he led his people to demolish the house he said 'I have ill feelings amongst our family and Paul and Susan'.

Agnes

13. She denied that she was at the Boothby house. She was at a haus krai but then it was raining heavily and the boys who took the items brought them to the doorway of her house so she put them inside the house.

Silvia

14. When the house was broken into, she was at her own house. Then she observed that a fridge and a generator were outside her house and 'I helped my father to put them into the house to return to Paul and Susan'. Paul and Susan did not give her authority to take their property. She has neither sold nor returned the fridge and generator.

EVIDENCE FOR THE DEFENCE

15. Edward gave sworn evidence and Agnes and Silvia each made an unsworn statement from the dock.

Edward's sworn evidence

16. He is a Karisokra villager, married with children, and about 50 years old. He regards himself as a peace mediator and community spokesman. On the night of 29 March he was at a haus krai for his uncle's son. There were two disturbances at about 10.00 pm. The first was caused when some neighbours were playing loud music. His uncles got upset about that and he had to sort out that problem. The second was at the Boothby house. Some of the boys in his family were trying to break down the house. They had an ongoing grievance over the land on which that house was built. However, he joined with Mathias Kurumaina in stopping the boys from breaking into the house and the boys left. He then went back to the haus krai, about 30 metres away. On the morning of the 30th he was asleep when he again heard noises coming from the Boothby house. He went to see what was happening and he discovered that his family boys were again breaking into the house. He was on his own and this time they did not listen to him. There was nothing more he could do. He does not know what they did once they went inside the house. He again went back to the haus krai.

17. In cross-examination Edward agreed that he had made admissions about his involvement that are in the record of interview but said that at the time of the interview he was not in a right frame of mind. His wife and his boys, including his son, Gene, were arrested and he felt that he should take the burden. The boys did what they did for a reason. Money had not been paid as promised for the land on which the Boothby house was built.

18. In re-examination Edward said that after the incident the police had come to the village and destroyed his house and food gardens so he decided that the only way to solve the problem was to surrender to the police and to say that he was involved.

Agnes's unsworn statement

19. She was at the haus krai on the morning of 30 March. She heard the noises at the Boothby house but was scared and did not go there. In the afternoon there was heavy rain and she saw that the boys had brought a lot of items from the Boothby house and the items were outside in the rain. She was concerned that they would be blamed for nothing so she brought the items inside and kept them there. She had no intention of stealing them.

Silvia's unsworn statement

20. She was at the haus krai, for her second-born brother, on the night of 29 March. There were two disturbances. One was caused by one of the neighbours playing loud music. The other was at Paul and Susan's house but she does not know what happened. She only heard the noise. Early in the morning of the 30th she heard more noises coming from the Boothby house. She followed her father to the house to see what was happening. She saw that the boys, armed with bushknives and axes, had already broken into the house and gone inside. She did not do anything about this incident until a week later when her father told her that they should try to retrieve some of the items that had been scattered around. So she helped her father get a fridge and generator and take them to her house for safekeeping, to give to Paul and Susan when they return from England.

PRELIMINARY ASSESSMENT OF THE STATE'S CASE

21. The State has presented two witnesses who were present at the incident, both of whom named Edward as the leader of the group. The evidence against Agnes and Silvia does not support their direct involvement and the case against them depends substantially on admissions in their records of interview and their unsworn statements from the dock.

DEFENCE COUNSEL'S SUBMISSIONS

22. Mr Joseph submitted that the evidence of the two State witnesses was unreliable and could not be used to establish a case of direct involvement against Edward. The evidence against Agnes and Silvia was particularly weak, he submitted. The court should accept Edward's sworn evidence and accept the statements from the dock by Agnes and Silvia.

ASSESSMENT OF DEFENCE COUNSEL'S SUBMISSIONS

Edward

23. Mr Joseph submitted that the evidence of Mathias Kurumaina was unreliable as there were inconsistencies between his sworn evidence and the statement he gave to the police; he appeared to be selective in his sworn evidence, at one stage naming four boys who were involved, at another stage saying 'the entire family' was involved; that he had a motive to give false evidence (that being to see Edward go to jail); that it was unclear whether he could sign his name; that he failed to give straight answers to questions in cross-examination; that he was not telling the truth about what happened on the night of 29 March; that he changed his evidence about whether he was present when the boys broke into the house.

24. Mande Awari's evidence was of little use, Mr Joseph submitted, as he failed to give a clear and consistent account of what happened and ended up saying that he was not present when the incident happened.

25. The court should act on Edward's sworn testimony which provides a reasonable explanation of the apparent admissions he made to the police and puts the incident of 30 March and also the incident of 29 March in a proper context, Mr Joseph submitted.

26. I agree with Mr Joseph that Mande Awari's evidence was of limited value. Considered alone it would not be sufficient to sustain a conviction against Edward. However, it is not inconsistent with the proposition that Edward was directly involved. As to the evidence of Mathias Kurumaina, I do not accept the submission that it contained significant inconsistencies. The matters highlighted by Mr Joseph are minor inconsistencies which can be regarded as insignificant, given the passage of three years between the time of the incident and the time that the witness was asked to recount the events. His demeanour was satisfactory and he gave the clear impression of being a witness of truth. Contrary to Mr Joseph's submission he was not shown to have a motive for giving false evidence against Edward. He is a member of Edward's family and no evidence to support the proposition that he would lie under oath against his own family was provided to the court. By contrast, Edward did not give the impression of being a truthful witness. He admitted making admissions of his involvement to the police and his explanation that he wanted to take the burden for the wrongs committed by his son and other family members came across as a recent invention. His demeanour was very poor. His evidence about there being an incident at the Boothby house on the night of 29 March was uncorroborated and not credible.

27. I conclude that the evidence of Mathias Kurumaina is reliable and that it is not contradicted by the evidence of Mande Awari. It is corroborated by the admissions in Edward's record of interview and its value is undisturbed by Edward's sworn testimony. Indeed its value is enhanced as Edward gave the distinct impression that he was lying. I conclude therefore that Edward was directly involved in the incident. He was a member of the group that broke into and dismantled the house and ransacked it and removed the items from it.

Agnes

28. I accept Mr Joseph's submission that there is insufficient evidence against Agnes. There is no evidence that she was directly involved with Edward's group. The admissions of indirect involvement in her record of interview are not clear and coherent. They are capable of an innocent explanation: the one she gave in her statement from the dock.

Silvia

29. I reach the same conclusion in relation to Silvia as for Agnes. There is insufficient evidence to support the State's case that she aided those who committed the offence.

FINAL DETERMINATION OF GUILT

30. The State has proven beyond reasonable doubt that Edward was directly involved and that he did all the acts constituting the offence of stealing. He stole the house and its contents, valued at K130,992.00. The State has failed to prove its case against Agnes and Silvia.

VERDICTS

(1)	Edward Giragu Koima is guilty of stealing, as charged, under Sections 372(1) and (10) of the Criminal Code.

(2)	Agnes Ambu Giragu is not guilty.

(3)	Silvia Kitawa Gene is not guilty.

Verdicts accordingly.
____________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the Accused