N4083

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1443 OF 2009

THE STATE

V

ASI TABA

Madang: Cannings J
2010: 18, 19 May, 22 July

VERDICT

CRIMINAL LAW – trial – stealing – Criminal Code, Section 372 – 1,000 cartons tinned fish – evidence of plan to steal and implementation of plan – whether the offence of stealing was committed – whether the accused aided other persons in committing the offence – whether the failure of the State to expressly invoke Criminal Code, Section 7 protected the accused from conviction.

There was evidence that a group of people, some of whom were employees of the complainant company, made a plan to steal 1,000 cartons of tinned fish valued at K58,399.00 from the company and implemented the plan by preparing false documents and transporting the fish from the company's premises to another place, where it was sold to a third party. The State alleged that the accused had knowledge of the plan and took part in its implementation by loading the fish on to a truck, accompanying the fish to the other location, unloading the fish and then receiving part of the proceeds of the sale. The accused denied knowledge of or involvement in the plan or acting with any fraudulent intent. It was argued that he could not be criminally liable as the State did not invoke Section 7 of the Criminal Code in its case against him.

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) The State proved that the accused had knowledge of the plan and was involved in its implementation and obtained some of the proceeds of the crime.

(4) The accused could not use the State's failure to expressly invoke Section 7 of the Criminal Code as a defence as the nature of the allegations was clear from the beginning of the trial.

(5) Nor was it a defence that others with a greater involvement in the offence have not been prosecuted.

(6) The accused did acts for the purpose of enabling and aiding others to commit the offence and was deemed by Section 7(1)(b) to have taken part in committing the offence and to be guilty of it. He was found guilty as charged.

Cases cited

The following cases are cited in the judgment:

The State v Becho Lala Uma (2009) N3765
The State v Boria Hanaio, Bula Hanaio & Timothy Komu (2007) N4012

TRIAL

This was the trial of an accused charged with stealing.

Counsel

A Kupmain for the State
J Kolkia for the accused

22 July, 2010 

1. CANNINGS J: The accused, Asi Taba, is a 34-year-old man from the Amele area of Madang Province. He is charged under Sections 372(1) and (10) of the Criminal Code with stealing 1,000 cartons of tinned fish valued at K58,399.00 from RD Tuna Canners Ltd of Madang. The offence is alleged to have been committed in November 2007 when the accused was an employee of the complainant company. The State's case is that the accused and a number of other employees made a plan to steal the fish from the company and share the proceeds. Documents were falsified and this enabled the fish to be packed into a container, which was loaded onto a truck and transported to Lae, where the fish was sold to a third party. The State alleges that the accused had knowledge of the plan and took part in its implementation by loading the fish on to the truck, accompanying the fish to Lae, unloading the fish and then receiving K2,000.00 from the proceeds of the sale.

2. Under Section 372(1) 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. If all elements are proven against an accused the maximum penalty is three years imprisonment. If it is proven that the value of the thing stolen is K1,000.00 or more this is a circumstance of aggravation, which, if it has been – as in this case – charged in the indictment, lifts the maximum penalty to seven years imprisonment.

4. The accused does not dispute that the offence of stealing was committed by a number of people or that the value of the fish was more than K1,000.00. What is disputed is that he was involved. The accused also argues that if the court finds that he was involved, he cannot be criminally liable as the State did not invoke Section 7 of the Criminal Code in its case against him. Section 7 is the provision that says that not only is the person who does the acts constituting an offence guilty, but every person who does any act for the purpose of enabling or aiding another person to commit it is also guilty of the offence.

ISSUES

5. There are two:

1 Was the accused involved in the stealing of the fish?

2 If yes, is he criminally liable?

1  WAS THE ACCUSED INVOLVED IN STEALING THE FISH?

6. Determination of this issue requires:

•	a summary of evidence for the State;
•	a summary of evidence for the defence;
•	a preliminary assessment of the State's case;
•	a summary of defence counsel's submissions;
•	an assessment of defence counsel's submissions; and then
•	a final determination of this question of fact.

EVIDENCE FOR THE STATE

7. One witness gave oral evidence. An affidavit he swore for the purposes of the police investigation was also admitted into evidence. The only other evidence was the accused's statement under Section 96 of the District Courts Act made to the District Court in the committal proceedings.

Affidavit and oral evidence and affidavit

8. The only State witness, Bernard Cholai, was questioned over an affidavit he swore. In the affidavit he deposes that in October 2007 he was part of a plan involving a number of other people, including the accused, Asi Taba, to steal "840 cases of one-pack style TFO4 local product" belonging to RD Tuna Canners Ltd. A container containing the stolen fish was packed on to a truck, which was driven to Lae during the night. He and the accused followed on a PMV the next morning. A buyer was lined up and the transaction took place in the Lae Depot. A number of other people in Lae and in Madang who 'played around with the figures' were also involved in the plan. The plan was made about three weeks before it was executed. As a result of the plan a cheque was deposited into the BSP Madang account of a member of the group who made the plan, "BM"; and then cash was withdrawn and distributed to various people.
 
9. In his oral evidence Bernard Cholai adopted the contents of the affidavit. He said that in October-November 2007 he was employed by RD Tuna as a shipping assistant. He knows the accused. During that period the accused was employed as a casual shipping labourer, and his job included packing and unpacking containers.

10. In cross-examination the witness agreed that part of his job was to give instructions to casual labourers such as the accused about what they had to load and unload. The accused was under his supervision at the time and acted on his instructions. He instructed the accused to load the container with the stolen fish that was bound for Lae. He agreed with defence counsel Mr Kolkia's proposition that the accused was just doing as he was told and would not have loaded the container without his instructions. Asked if he told the accused why he was being instructed to load the container, the witness replied 'He knows that it is being arranged for the stealing'. Asked whether the accused questioned him about why the container was bound for Lae the witness said 'it was all organised and he knew about it'. Pressed on whether he himself was involved in the plan, the witness, after some prevarication, admitted that he was, and that it was an organised crime and that he received K2,000.00 for the part he played.

11. In re-examination the witness said he did not know how much the accused received. The motivation for the crime, he said, was 'discrimination in the workplace by Asians'.

The accused's Section 96 statement

12. Section 96 (accused to be asked whether he desires to give evidence) of the District Courts Act allows an accused (referred to as 'the defendant') to make a statement to the District Court during his committal proceedings. He is not obliged to make any statement and Section 96 requires that the District Court makes this very clear to him before recording any statement made. If a statement is made Section 97 (statement may be put in evidence at trial) allows it to be used in evidence at his trial.

13. Section 96 states:

(1) Where a Court proceeds with the examination of a defendant in accordance with this Division, the Court or the Chairman of the Court shall read the charge to the accused and explain its nature in ordinary language and shall say to him these words, or words to the same effect—

"Having heard the evidence for the prosecution do you wish to be sworn and give evidence on your own behalf, or do you desire to say anything in answer to the charge? You are not obliged to be sworn and give evidence, nor are you required to say anything, unless you desire to do so; but whatever evidence you may give on oath, or anything you may say, will be taken down in writing, and may be given in evidence on your trial. You are clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat, which may have been held out to you to induce you to make any admission or confession of your guilt; but whatever you now say may be given in evidence on your trial, notwithstanding any such promise or threat.".

(2) Anything that the defendant says in answer to a statement made in accordance with Subsection (1) shall be—

(a) taken down in writing in the English language and read to him; and

(b) signed by the Magistrates constituting the Court and by the defendant if he so desires; and

(c) kept with the depositions of the witnesses and transmitted with them to the Public Prosecutor.

(3) In an examination of a defendant in accordance with this Division neither the defendant nor his legal representative shall be permitted to subject any witness to cross-examination.

14. Section 97 states:

On the trial of a defendant for an offence for which he has been committed for trial or for any other offence arising out of the same transaction or set of circumstances as that offence, a statement made by him under Section 96 may be given in evidence without further proof, notwithstanding that the statement may be exculpatory or self-serving, if the statement purports to be signed by the Magistrates by or before whom it purports to have been taken, unless it is proved that it was not in fact signed by those Magistrates.

15. In this case the accused made a Section 96 statement to the District Court and it has been admitted into evidence. The accused stated:

At that time I worked at RD Tuna in 2001, I worked as casual and the rate that they pay me was 3 toea per carton. I worked until 2008, and still at the same rate. I was not happy that we were not getting paid well with the fortnightly wages. Up until 2007 and in November 2007 my boss, who stays in the office usually, gave us the work of loading containers for domestic and for export.

That time they came and got me and told me to load this container. So we loaded, as we usually get paid for loading, we loaded and my boss Bernard Cholai came and said that a buyer wanted to buy tin fish, so we loaded, put a seal on it and they fixed the documents up in the office and brought it down. After the work the truck carrying the container came out.

Bernard Cholai and I got into that truck and went to Lae. A buyer from Mendi brought those tin fish.

This time the buyer did not have the money to give to us. Bernard Cholai gave the account number. The money was transferred to Bernard Cholai's account. When arriving here the amount of money was large and he was not able to withdraw.

So the money transferred to Bernard Cholai's account was transferred back to Bernard Mingau's account. Bernard Mingau has a brother in BSP and it was easy to withdraw.

This time they withdrew the money. I do not know the amount of money that arrived. The buyer of that tin fish bought them for K40.00 a carton.

This time they withdrew the money and I came and met them here at Madang town and they gave me a K1,000.00 and they both had the rest. That is all.

16. That was the close of the State's case.

EVIDENCE FOR THE DEFENCE

17. The accused gave sworn evidence.

18. In examination-in-chief he said that he was no longer employed by RD Tuna. He was sacked in February 2008 for absenteeism. He was employed as a casual labourer. He loaded and unloaded containers but only when he was authorised to do so by his supervisor, Bernard Cholai. As for the load of fish over which he has been charged, he loaded the container, as usual, on instructions from Bernard Cholai. The Logistics Manager, a Filipino called Eric, checked that everything was OK, sealed the container, signed the delivery docket and told Bernard Cholai and him to get on to the truck. He did as he was told, went on the truck to Lae, unloaded the container with the assistance of the buyer's workers and casuals at the Lae depot, loaded 500 cartons into each of two vehicles that the buyer had waiting, then returned to Madang the next day on the same truck. He went back to work and three days later Bernard Cholai gave him K1,000.00 – not K2,000.00 as alleged. He thought that that money was his pay. He had no idea that the fish was stolen. He was not part of the plan to steal it. He had been sent to Lae with similar loads on three previous occasions. He was normally paid 3 toea for loading each carton of tinned fish. On this occasion he loaded 1,000 cartons. As he said in his Section 96 statement he felt that he was underpaid by the company as his pay rate had remained at 3 toea per carton for a long time but he did not do anything to show his frustration, he just accepted whatever he was paid.

19. In cross-examination the accused said that there were about 20 other casual labourers working for the company in November 2007. They were paid according to what they loaded. In a busy week they could earn K300.00 to K500.00. Normally they were paid by cheque. He agreed that, as to the load over which he was charged, Bernard Cholai and others involved in the plan would not have been able to steal the fish if he had not loaded the container. But it was the company, through Bernard Cholai, who gave him the instructions to load the container. He did not know that the K1,000.00 cash that Bernard Cholai gave him was illegal money. He had no knowledge at the time of how the money was passed through Bernard Mingau's account. He was never part of the plan to steal the fish.

20. That was the close of the defence case.

PRELIMINARY ASSESSMENT OF THE STATE'S CASE

21. The State's case relies substantially on the evidence of Bernard Cholai. However, there are inferences that may be drawn from the accused's Section 96 statement and also from his oral evidence that seem to support the State's case that the accused was a willing and knowledgeable participant in the plan to steal the fish.

DEFENCE COUNSEL'S SUBMISSIONS

22. Mr Kolkia submitted that the evidence showed conclusively that the accused was at all times acting under the instructions of his supervisor, Bernard Cholai. The accused was only doing as he was told when he loaded the truck and went to Lae to assist with the unloading. His sworn evidence that he had no knowledge of the plan to steal the fish should be believed. There was no reason for him to believe that there was any such plan. If, however, the court finds as a fact that the accused was involved in the plan he should still be found not guilty as the State did not invoke Section 7 of the Criminal Code as part of its case. It would also be unfair to convict the accused, Mr Kolkia submitted, as there were other people with greater culpability than him who had not been charged or had the case against them dropped.

ASSESSMENT OF DEFENCE COUNSEL'S SUBMISSIONS

1 Accused was acting under instructions

23. I accept this submission and find as a fact that the accused was acting under the instructions of Bernard Cholai. The accused was doing what he was told to do. However, this does not mean that the accused did not know what was going on. He can be acting under instructions with full knowledge of the plan to steal the fish. This finding does not put any dent in the State's case.

2 Accused's sworn evidence should be believed

24. The accused stated on a number of occasions when giving evidence that he had no knowledge of the plan. Against that is the sworn evidence of Bernard Cholai. Mr Kolkia submitted that Bernard Cholai was an unreliable witness who admitted to being involved in the crime but who has for some reason avoided being indicted.

25. As to Bernard Cholai's evidence I agree that the court should exercise some caution in dealing with it. There is always a possibility that a person in his position, who admits that he was involved in a crime, will want to shift the blame to someone else – perhaps an innocent person – in order to save his own neck. Here, Bernard Cholai has in his affidavit named at least five individuals, including the accused, who were involved with him in the plan to steal the fish. He has not shifted the blame only to the accused. Bernard Cholai's oral evidence was clear and concise: the accused knew what was going on, as did the others he named. I accept Bernard Cholai's evidence. It is to be preferred to the accused's evidence. The accused was not a convincing witness and I reject his evidence that he had no knowledge of the plan to steal the fish.

3 No reason for the accused to believe that anything illegal had occurred

26. I reject this submission in view of the evidence about the amount of money that the accused received and the manner in which he received it. Even if he received only K1,000.00, dividing that sum by the number of cartons that he loaded – 1,000 – means that he was paid K1.00 (K1,000.00 divided by 1,000 cartons = K1.00) for loading each carton. His normal rate of pay is 3 toea per carton, so the amount he would normally expect to receive for loading 1,000 cartons is K30.00 (1,000 cartons x K0.03 per carton = K30.00). I agree with Mr Kupmain's submission for the State that any reasonable person in the accused's position, having received such a relatively huge amount of money, would realise that something funny was going on. There is no reason to believe that the accused is not a smart person or is intellectually handicapped or incapable of knowing what was really happening. There is no evidence that he questioned Bernard Cholai when he received the money about why the amount was so large. The natural inference to draw from this evidence is that he knew what the money was for and why the amount was so large.

27. On top of that is the way in which the money was given to him. He said that he was normally paid by the company, by cheque. In this case his supervisor paid him directly in cash. You would have to be stupid not to understand why you were being paid such a large amount of money in this way. The accused is not stupid, so the inference to be drawn from the evidence is that he knew exactly what was going on.

4 The State's failure to invoke Section 7

28. Mr Kolkia was right to seize upon the fact that when the allegations were put to the accused in arraignment at the start of the trial no mention was made of Section 7 of the Criminal Code. The usual practice is that if the State is not alleging that an accused actually did the acts constituting an offence but is alleging that he nonetheless should be deemed to be guilty of the offence because he aided, abetted or assisted the person(s) who actually committed the crime, specific reference will be made to Section 7 of the Criminal Code when the prosecutor explains the allegations to the Judge. Then the Judge will relay that aspect of the State's case to the accused so that he will understand the precise allegations that are being made. That did not happen here and the question arises whether the accused can be convicted in these circumstances.

29. In a recent Kimbe case, The State v Becho Lala Uma (2009) N3765, I found that the State could not rely on Section 7 in a rape case. The allegation of aiding and abetting was not put to the accused in arraignment as it was alleged that he had actually sexually penetrated the complainant. But when the complainant gave evidence it became clear that the State's case as alleged would fail, so Section 7 was invoked, belatedly, during submissions. I ruled that this was unfair to the accused and that he could not be found guilty of rape; but then proceeded to convict him of attempted rape.

30. Each case, however, must be determined on its merits. Mr Kolkia was unable to alert me to any rule of law or principle that makes it mandatory for the State to expressly invoke Section 7 before the court can enter a conviction. I do not think there is such a rule or that there is any justification for such a rule. It is a question of fairness. If it is clear from the outset what the nature of the State's case is it will not be unfair to the accused to allow the State to invoke Section 7 belatedly, during submissions, as has happened here. I don't think the State has deliberately failed to mention Section 7 and I find that no unfairness has resulted from the departure from normal practice that has occurred. The failure to expressly invoke Section 7 is not therefore a good reason to find the accused not guilty.

5 Wrong person before the court

31. Mr Kolkia made an impassioned plea for the mercy of the court in view of the fact, he claimed, that a lot of people were involved in the criminal plan that was executed but only one is before the court.

32. I have some sympathy for the argument. I take judicial notice of the fact that two of the people named by Bernard Cholai as being involved have been committed for trial over this matter but effectively had the cases against them dropped by the filing of a nolle prosequi. Then Bernard Cholai incriminated himself in his sworn evidence. It is reasonable to be inferred too that these people had a greater depth of involvement than the accused and that the accused was not the mastermind. He was a bit player. His role was important but he was not the brains behind the operation. The place for this sort of argument, however, is in submissions on sentence. It is not relevant to the question of guilt.

FINAL DETERMINATION OF WHETHER THE ACCUSED WAS INVOLVED

33. I find that the State has proven beyond reasonable doubt that the accused had knowledge of the plan to steal the fish and was actively involved in its execution and obtained some of the proceeds of the crime.

2 IS THE ACCUSED CRIMINALLY LIABLE?

34. It is now time to examine Section 7(1) (principal offenders) of the Criminal Code, the provision on which the State relies to argue that the accused should be convicted of stealing. It states:

When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

(d) any person who counsels or procures any other person to commit the offence.

35. The State relies in particular on Section 7(1)(b), the argument being that by loading the container on the truck that went to Lae, travelling on the truck, and helping to unload it, the accused enabled and aided others who actually did the acts constituting the offence of stealing.

36. I uphold that argument. I find that the accused played an important role in carrying out the criminal scheme that resulted in the offence of stealing being committed. He must therefore be convicted as charged.

VERDICT

37. Asi Taba is guilty of stealing, as charged, under Sections 372(1) and (10) of the Criminal Code.

Verdict accordingly.

____________________________
Public prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the accused