N3989

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 675 OF 2006

THE STATE

V

GABRIEL N. BERGER
The Accused

Mt. Hagen: David, J
2008: 21, 22 & 24 July
2010: 8 -12, 15 & 16 March &
: 15 April

CRIMINAL LAW - verdict – stealing of motor vehicle – s.372 (1)(10) Criminal Code - evidence of alibi adduced – alibi not negatived by prosecution – all elements of the offence incapable of being proven by prosecution as well – complainant not owner of stolen motor vehicle – verdict of not guilty returned.

Cases Cited:

PNG cases 

SCR No. 1 of 1980: Re s.22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28
John Jaminan v The State (No.2) [1983] PNGLR 318
David Kandakason v The State (1998) SC558
The State v Kwale Dire (2001) N2178
The State v. Ben Noel & Ors (2002) N2253

Overseas cases cited:

Browne v. Dunn (1893) 6 ER 67 (HL) 
Woolmington v. Director of Public Prosecutions [1935] A.C. 462
Driscoll v. The Queen (1977) 137 CLR 517
Killick v. The Queen (1981) 147 CLR 565

Counsel:

Mr. Joe Waine, for the prosecution
Mr. Philip Leka Kapi, for the defence

DECISION ON VERDICT

15 April, 2010

1. DAVID, J: INTRODUCTION: The Accused, Gabriel Nakadol Berger was indicted before me on a charge that on 22 September 2003 at Mt. Hagen in the Western Highlands Province, Papua New Guinea, he stole a Toyota Land Cruiser, utility bearing registration No.CAH113, (the stolen vehicle) the property of Mickey Akai which was contrary to s.372 (1) and (10) of the Criminal Code. The Accused pleaded not guilty to the charge and a trial ensued. 

EVIDENCE

Prosecution case

2. In a bid to establish the charge against the Accused, the prosecution called five witnesses namely, Mickey Akai, Kela Berom, Elesten Kiap, Wingdi Docas and Bonny Munaup. They all gave sworn evidence. Several documents were admitted into evidence and these are:-

1.	the Record of Interview dated 9 February 2006 - Exhibit "A1", original Tok Pisin version and Exhibit "A2", the English translation;

2.	Bank South Pacific Cheque No.475237 dated 23 December 2005 payable to Ela Motors, Mt. Hagen for K42,000.00 - Exhibit "B";

3.	Receipt No.TB4637 issued by Ela Motors, Mt. Hagen dated 23 December 2005 acknowledging receipt of a cheque for K42,000.00 from a Gabriel Berger – Exhibit "C";

4.	Facsimile Cover Sheet from John Gundry, First Investment Finance Limited to Makis Angan, Ela Motors, Mt. Hagen dated 11 January 2006 – Exhibit "D";

5.	Pages of Passbook in the name of Gabriel Berger in respect of account No.1000070857 – Exhibit "E";

6.	Copy of Registration Certificate No.D495975 showing that Killion Magan of PO Box 1213, Port Moresby was the registered owner of a Toyota Utility, black in colour bearing Registration No.CAH113 – Exhibit "F";

7.	Original of Class 6 Driver's Licence No.64132 for Mickey Akai expiring on 22 December 2005– Exhibit "G".

3. This is a summary of the evidence adduced in support of the prosecution case.

4. The stolen vehicle belonged to one Killion Mangan. It was used by Mickey Akai while hired out to the Internal Revenue Commission, but he had incurred a substantial amount of money maintaining it. The value of the stolen vehicle at the time was about K55,000.00. On 22 September 2003 at about 07:30 am, Mickey Akai drove it to work and parked it outside his office. Mickey Akai had the original key to the stolen vehicle and spent the whole day in office. After Mickey Akai finished work and locked up at around 04:30 pm, he went to the place where he had parked the stolen vehicle in the morning only to realise that it was not there.

5. The stolen vehicle was driven by the Accused along the Togoba road that morning at about 09:00 am when he stopped at a roadside market along that road and picked up Kela Berom. Kela Berom was with his wife, Elesten Kiap and Wangdi Docas. They all claim to know the Accused. They took the Tambul road and drove all the way to Kutubu passing Mendi along the way arriving at about 05:00 o'clock in the evening. Kela Berom found Mickey Akai's driver's licence inside the cabin of the stolen vehicle. Along the way to Kutubu, the Accused told Kela Berom about the stolen vehicle he was driving. 

6. When they arrived at Kutubu, the Accused went into the company premises and spent the night there. Kela Berom spent the night at a pastor's house.

7. The next day, Kela Berom saw the stolen vehicle being driven back and forth in the company yard and also in and out of the yard by men working there. The Accused told Kela Berom; that he return to Mt. Hagen ahead of him; that he was selling the stolen vehicle and would catch up with him in Mt. Hagen later; and that he promised to share the sale proceeds with him. The Accused gave Kela Berom K50.00 and he returned to Mt. Hagen that afternoon leaving the Accused behind.

8. The Accused returned to Mt. Hagen about two weeks later without the stolen vehicle. When Kela Berom met up again with the Accused at Kuli in Mt. Hagen and asked for his share of the sale proceeds, the Accused punched him and challenged him that if he were man enough, he should get the police and arrest him. Kela Berom later found Mickey Akai, told him about his experience with the Accused and the stolen vehicle and returned to him his driver's licence. A report was later made to the police resulting in the Accused being arrested. 

9. Part of the sale proceeds from the sale of the stolen vehicle and a loan from First Investment Finance Limited was applied towards the purchase of the bus from Ela Motors, Mt. Hagen. 

10. After the close of the prosecution case, Mr. Waine of counsel for the prosecution informed the court that the prosecution reserved the right to call further witnesses to rebut evidence of an alibi raised by the defence.

Defence case

11. The Accused called five witnesses to give evidence in support of his case namely, the Accused, Josephine Gabriel (Josephine), Rosa Paka, Thomas Pundu and William Pup. They all gave sworn evidence. Several documents were admitted into evidence as well. These documents are:-

1. Statement of Elesten Kiap dated 20 July 2005 – Exhibit "DA";

2. Statement of Wangdi Docas Wip dated 20 July 2005 – Exhibit "DB";

3. Registration Certificate in respect of a Toyota Hylux owned by Gabriel Berger bearing registration No.HAG716 - Exhibit "D1";

4. Certificate of Roadworthiness No.52274 in respect of motor vehicle bearing registration No.HAG716 - Exhibit "D2".

5. Minute from PPC, Western Highlands Province to PPC, Enga Province dated 5 April 2000 - Exhibit "D3";

6. Motor Vehicle Inspection Report - Exhibit "D4";

7. Motor Vehicles Insurance (PNG) Trust Certificate - Exhibit "D5";

8. Letter concerning release of Toyota Land Cruiser bearing registration No.HAC680 - Exhibit "D6".

9. Discharge Summary - Exhibit "D7";

10. Birth Certificate - Exhibit "D8".

12. This is a summary of the evidence adduced in support of the case for the Accused. 

13. On the afternoon of Sunday, 21 September 2003, while he was out watching a local game of rugby league at Avi Block where he and his family reside, his wife, Josephine Gabriel (Josephine James) left their home and was taken to the Mt. Hagen General Hospital because she was in labour. She was accompanied by her sister, Sera. He found this out when he returned home that evening. His wife delivered their daughter, Quinclyn that night. He slept at the house that night. Next morning, on Monday, 22 September 2003, he took a PMV accompanied by one of his sons, Trevor and came to Mt. Hagen to visit his wife at the hospital. On the way there, he went to the Mt. Hagen market and bought some fruits. He also bought a coke and a packet of scones. As he was proceeding to the hospital with his son, they met one William Pup, a former work mate, at the entrance of the hospital gate and they talked for about 5 to 10 minutes. That was just before lunch hour as hospital visiting hours is between 12:00 noon and 01:00 pm. After his short conversation with William Pup, he and his son visited Josephine at the hospital. 

14. To avoid the hassle of going home to Avi Block and returning to the city the next day, later that evening, he with his son went to Rosa Paka's house, a relative of his wife and spent the night there. The next day, he and his son slowly made their way up to the hospital again just before lunch time. Sera and Josephine with the baby were waiting outside on the lawn of the car park opposite the entrance to the hospital. They then went home to Avi Block. 

15. The Accused's evidence is corroborated by Rosa Paka, William Pup and his wife.

16. Thomas Pundu is a policeman who initially received a complaint from Mickey Akai based on information received from Kela Berom. His assessment was that he could not instigate a formal arrest based on that information alone. At the time of forming that conclusion, other prosecution witnesses namely, Elesten Kiap and Wingdi Docas had not given in their statements. For some unknown reasons, he said the file was removed from him and another officer continued with the investigation leading to the Accused's arrest and was subsequently charged. 

Rebuttal evidence for alibi

17. At the close of the defence case, Mr. Waine made application for the Court to allow the prosecution to call further witnesses to give rebuttal evidence of the alibi raised by the defence as he had indicated at the close of the prosecution case. The basis of his application was that Exhibits D7 (Discharge Summary) and D8 (Birth Certificate) were brought to his attention by the defence after the prosecution closed its case. Counsel submitted however that while the prosecution did not dispute the birth of Quinclyn to which those documents relate, his point of contention was the manner in which those documents were obtained. He submitted that they were obtained in dubious circumstances. Mr. Kapi of counsel for the defence objected. I upheld the objection applying the legal principle that once evidence of alibi is given and the prosecution is on notice, it cannot re-open its case to rebut the alibi: Killick v. The Queen (1981) 147 CLR 565.

THE OFFENCE 

18. Section 372 (1) and (10) states:-

"372. Stealing.

(1) Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: Subject to this section, imprisonment for a term not exceeding three years……...

(10) If the thing stolen is of the value of K1,000.00 or upwards, the offender is liable to imprisonment for a term not exceeding seven years."

ELEMENTS OF THE OFFENCE

19. To constitute the offence of stealing simpliciter under sub-section (1), the prosecution must prove the following elements. They are:-

1.	the Accused stole the motor vehicle;

2.	the motor vehicle belonged to another person;

3.	the Accused intended to permanently deprive the owner of the motor vehicle of the rights to it.

20. To constitute the offence of aggravated stealing under sub-section (10), all elements of stealing simpliciter must be proved and in addition to those, the prosecution must also prove a further element and that is that the motor vehicle was valued at K1,000.00 or more.

21. The prosecution has the burden of proving beyond any reasonable doubt every element of a charge to secure a guilty verdict and conviction. Hence, the failure to prove beyond any reasonable doubt any one or more of the elements constituting a charge will result in acquittal for that charge: SCR No. 1 of 1980: Re s.22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28; Woolmington v. Director of Public Prosecutions [1935] A.C. 462. The principle applies equally to negativing elements of an offence or any defence raised.

NOTICE OF ALIBI

22. A notice of alibi was filed on 15 July 2008. It gives the particulars of the alibi and the names and addresses of witnesses the defence intended calling to support the alibi. 

23. No issue was taken by the prosecution at the beginning of the trial as to the validity or otherwise of the notice of alibi in so far as compliance with procedural requirements under O.4 rr. 4, 5 and 8 of the Criminal Practice Rules 1987 is concerned. If the prosecution had taken issue, the defence might have considered making formal application for leave to adduce evidence of an alibi. It is on that basis that I think the defence case was run. I have in the exercise of my discretion allowed the defence to adduce evidence of an alibi and rejected the prosecution's request to call rebuttal evidence taking into account the conduct of the prosecution: see Killick.

24. As the Accused raised an alibi as his defence, that meant that all of the above-mentioned elements are in issue. In practical terms however, it is incumbent upon the defence to lead some evidence of alibi. However, whilst the evidentiary burden is on the accused in that respect, the onus of proof remains on the prosecution throughout: John Jaminan v. The State (No.2) [1983] PNGLR 318; Woolmington; Killick. 

PRIOR INCONSISTENT STATEMENTS BY PROSECUTION WITNESSES

25. Sections 22 and 23 of the Evidence Act, Chapter 48 provide for the examination of witnesses as to previous statements they made relative to the subject matter of the proceedings that was inconsistent with his present testimony. They apply to civil, criminal or mixed proceedings: see the definition of the phrase "legal proceedings" in s.1. Those provisions are in the following terms:

"22. Contradictory statements of witness.

A witness—

(a) on his examination in chief; or

(b) under cross-examination,

may be asked in any legal proceedings whether he has made a statement relative to the subject matter of the proceedings that was inconsistent with his present testimony (the circumstances of the alleged statement being referred to sufficiently to designate the particular occasion), and if he does not admit that he made the statement proof may be given that he did in fact make it.

23. Cross-examination as to previous statements.

(1) A witness may be cross-examined as to previous statements made by him in writing or reduced to writing relating to the subject matter of the proceedings without the writing being shown to him, but if it is intended to contradict the witness by the writing his attention shall, before the contradictory proof is given, be called to those parts of the writing that are to be used for the purpose of contradicting him.

(2) The court may at any time during the proceedings require the writing to be produced for its inspection, and may make such use of the writing for the purposes of the proceedings as it thinks fit."

26. A party cross-examining a witness on his or her previous statement under s.22 of the Evidence Act has the onus of proving that the witness did make the statement with cogent and convincing evidence if the witness denies making such statement: The State v Kwale Dire (2001) N2178 per Justice Gavara-Nanu.

27. The significance of prior inconsistent statements is that it goes to the issue of credibility and reliability of the witness: Driscoll v. The Queen (1977) 137 CLR 517. The Supreme Court in David Kandakason v. The State (1998) SC558 stated the relevant position at law here in the following terms:

"These cases tend to encourage flexibility. The High Court of Australia in Driscoll -v- The Queen …whilst adopting the first part of the proposition in Golder, Jones and Porritt … said 'it cannot be accepted that in a case where a witness has made a previous inconsistent statement, there is an inflexible rule of law or practice that the jury should be directed that the evidence should be regarded as unreliable.' In other words the existence of a prior inconsistent statement ipso facto does not make a witness's evidence unreliable. On the other hand the prosecution is entitled to call other evidence to verify the correctness or truth of a hostile witness's previous written statement to prove that his subsequent sworn testimony is untrue. In R.v. Prestano & Ors …it was held: 'that the witness having given evidence which directly opposed statements made to the police it was permissible for the Crown to test his recollection further upon that vital matter by putting to him a deposition made in an altogether different case so as to give him yet another opportunity of saying whether or not having been reminded of that, he did or did not regard what he had said previously to be right and what he had said in the witness box to be wrong'. The Court held further that the evidence was for the jury to consider subject to a proper warning from the judge as to the weight, if any, which could be attached to it." (my emphasis)

ISSUES

28. What I now have to determine is whether on 22 September 2003, the Accused was the person who stole the stolen vehicle or he was at the Mount Hagen General Hospital to visit his wife who was there to deliver their daughter, Quinclyn as he claims in his notice of alibi. 

SUBMISSIONS BY THE DEFENCE

29. Mr. Kapi submitted that this is a case that needs to be decided on who the Court believes, because of the obvious competing versions about what happened on 22 September 2003. 

30. Counsel submitted that there is a serious doubt as to the reliability and credibility of the prosecution witnesses and evidence adduced through them and therefore the Court should reject their evidence. Evidence of key witnesses for the prosecution namely, Kela Berom, Elesten Kiap and Wingdi Docas as to their familiarity with the Accused was questionable he said. Counsel further submitted Kela Berom's general conduct was like that of an accomplice who had something to hide and therefore it was unsafe to rely on his evidence relying on The State v. Ben Noel & Ors (2002) N2253 to support that proposition.

31. Counsel also submitted that the evidence of Elesten Kiap and Wingdi Docas that was intended to corroborate the evidence of Kela Berom being picked up by the Accused in the stolen vehicle at the material time should be disregarded purely on the basis that they were guilty of complicity.

32. As to the evidence of policeman, Bonny Minaup, counsel submitted that his evidence points to two different types of vehicles. His evidence was that he went to investigate a stolen Toyota Land Cruiser, ten seater and not an open back. 

33. As to the evidence adduced by the defence, counsel submitted that it was very strong and was never discredited at any stage of the trial despite intense cross-examination. He stated that the evidence adduced by the defence was credible in that they were sourced from reliable persons and therefore it was safe for the Court to accept it. He also contended that the defence witnesses maintained; their composure and demonstrated exceptional demeanour; and also consistency during various stages of examination because they were telling the truth.

34. Counsel also argued that the conduct of the defence case did not violate the rule in Browne v. Dunn (1893) 6 ER 67 (HL) therefore it was not fatal to its case. This was because the notice of alibi with appropriate details was served on the prosecution and there was no serious dispute evinced by the prosecution as to the dates the defence relied on.

35. Counsel submitted that there was no dispute as to the birth of the Accused's daughter, Quinclyn on 21 September 2003.

36. He said all defence alibi witnesses corroborated each others' story about the Accused's presence at various locations in Mt. Hagen on 22 and 23 September 2003.

37. Policeman, Thomas Pundu, an independent witness could not progress his investigations into the allegation made by Kela Berom against the Accused without additional information until the relevant file was removed from him counsel said. 

38. Counsel therefore urged the Court to accept the defence evidence and reject the prosecutions' taking into account the totality of the evidence before the Court.

SUBMISSIONS BY THE PROSECUTION

39. Counsel basically submitted that the evidence produced by the prosecution was such that; first of all, the defence of alibi had been negatived beyond reasonable doubt; and secondly, all elements of the offence of aggravated stealing had also been proven beyond reasonable doubt.

40. There were instances of the defence being guilty of breaching the rule in Browne v. Dunn that went to the credibility of the evidence adduced by the defence counsel contended. This was particularly so when taking into account the dubious circumstances in which the Discharge Summary (Exhibit "D7") and Birth Certificate (Exhibit "D8") were issued counsel stated. 

41. As to the documentary evidence the prosecution produced, counsel argued that they went to show that the Accused did in fact use part of the sale proceeds from the sale of the stolen vehicle to buy the bus with financial assistance obtained from a finance company and not from any other source. 

REASONS FOR DECISON

42. There is no dispute:-

1.	that the owner of the stolen vehicle was not the complainant, Mickey Akai, but Killion Mangan; 

2.	that the stolen vehicle was hired out to the Internal Revenue Commission;

3.	that the stolen vehicle was used by Mickey Akai;

4.	that the stolen vehicle was driven away from the parking bay outside the office of Mickey Akai between 07:30 am and 04:30 pm on 22 September 2003;

5.	that the Accused's daughter, Quinclyn was delivered by the Accused's wife, Josephine at the Mt. Hagen General Hospital on 21 September 2003.

43. It is disputed however that the Accused was the person who stole the stolen vehicle. The prosecution allege that the Accused did, but to the contrary, the defence asserts that he had travelled in from Avi Block on 22 September 2003 in the morning with one of his sons, Trevor and visited his wife at the Mt. Hagen General Hospital where his wife had been admitted the previous evening to deliver their daughter, Quinclyn.

44. Having had some time to consider the evidence before me, I am satisfied that the defence has adduced evidence to support the alibi raised. I have considered the application of the rule in Browne v. Dunn in respect of the evidence adduced by the parties particularly in the light of the submission made by the prosecution concerning the Discharge Summary and Birth Certificate. My view is that whether or not those exhibits were produced, it will not alter the fact that the Accused's wife, Josephine delivered Quinclyn at the Mt. Hagen General Hospital on 21 September 2003. 

45. Has the prosecution negatived the alibi beyond reasonable doubt? I have considered the statements of Elesten Kiap and Wingdi Docas (Exhibits "DA" and "DB"). They do not mention the Accused's name any where in their statements. Elesten Kiap also states that when her husband arrived back home on 25 September 2003, he told her that he had been going around with a man without identifying the person. This also contradicts the evidence of Kela Berom returning to Mt. Hagen the next day, 23 September 2003. Where was he between 23 and 25 September 2003 before he returned home? There is no explanation. The evidence of Kela Berom, Elesten Kiap and Wingdi Docas crucial prosecution witnesses contradict the evidence of Bonny Munaup as to the type of vehicle the stolen vehicle was. Kela Berom, Elesten Kiap and Wangdi Docas are in my view not credible or reliable witnesses. I accept the submissions of the defence as to the serious doubt cast over the credibility and reliability of prosecution witnesses in particular the above-mentioned key witnesses. 

46. In the result, I am satisfied that the prosecution has failed to negative the Accused's alibi beyond reasonable doubt.

47. I would like to mention this matter in passing which the parties have not raised. Looking at the indictment, it pleads that the stolen vehicle belonged to Mickey Akai. The evidence suggests otherwise. The stolen vehicle belonged to Killion Mangan. Therefore, all the necessary elements of the offence would not have been proven in any event. There is in fact no evidence of any complaint having been received by the police from Killion Mangan about the stolen vehicle or that he has been permanently deprived of his rights to it. 

VERDICT

48. I return a verdict of NOT GUILTY. The Accused is acquitted of the charge and discharged from bail forthwith. All bail monies be refunded to the Accused.

____________________________________________________
The Acting Public Prosecutor: Lawyer for the Prosecution 
The Public Solicitor: Lawyer for the Defence