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State v Mathew [2011] PGNC 76; N4351 (3 August 2011)

N4351

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1221 OF 2009

THE STATE

V

JASON JAY MATHEW
(No. 1)

Mount Hagen: Makail, J
2011: 18th, 19th, 20th May & 03rd August

CRIMINAL LAW - Verdict - Stealing - Money - Stealing money while in transit in motor vehicle - Criminal Code, Ch 262 - Section 372(1)&(5)(c).

EVIDENCE - Admissions in record of interview - Record of interview tendered by consent - Uncontested - Effect of - Weight to be attached to - Involuntariness of admissions irrelevant - Evidence Act, Ch 48 - Section 28.

Cases cited:

The State -v- Jason Jay Mathew: CR No 1221 of 2009 (Unnumbered & Unreported Judgment of 19th May 2011)
The State -v- Ali Kei Paiya: CR No 478 of 2004 (Unnumbered & Unreported Judgment of 09th August 2005)
The State -v- Martin Maso Naipo: CR No 92 of 2004 (Unnumbered & Unreported Judgment of 21st June 2005)
The State -v- John Baimo Kaole & 2 Ors (2009) N3842
The State -v- So'on Taroh (2004) N2675

Counsel:

Mr J Waine, for State
Mr F Kua, for Accused

VERDICT

3rd August, 2011

1. MAKAIL, J: The accused is charged with one count of stealing K80,000.00 contrary to section 372(1)&(5)(c) of the Criminal Code, Ch 262. The State alleged he stole the money from One Hill Trading Limited while it was being transported from Wabag to Mt Hagen for banking purposes on 26th June 2009.

2. The offence of stealing is provided under section 372 of the Criminal Code, Ch 262. It 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.

(2) ..........

(3) ...........

(4) ...........

(5) If –

(a) .........; or

(b) ........, and –

(i) .......; or

(ii) ........; or

(c) the thing is stolen from a vessel, vehicle or place of deposit used for the conveyance or custody of goods in transit from one place to another; or

(d) ...........; or

(e) ...........; or

(f) ..........,

the offender is liable to imprisonment for a term not exceeding seven years."

3. By consent of the defence, the State tendered the record of interview of the accused in pidgin and English versions which were marked together as exhibit "P1". Also, the defence did not object to the tender of an undated statement of the investigating officer Senior Constable Miki Philip following his brief oral evidence and cross-examination by defence counsel which was marked as exhibit "P2".

4. Senior Constable Philip said he interviewed the accused on 7th July 2009 and the accused admitted stealing the money. All the information as to how, why, when and where the money was stolen may be found in the record of interview of the accused. He concluded his evidence by saying that no threats, force, assault or bribe were made to the accused during the interview and that the accused freely and voluntarily admitted committing the offence.

5. During cross-examination by defence counsel, he was asked whether it was true the parents of the accused were detained by the police at the police station cell and the State prosecutor objected to the question on the grounds of irrelevance. This was because the question of admissibility of the record of interview was not an issue as the record of interview was tendered by consent. I overruled the objection and allowed the question to be answered because the question was relevant to test the credibility of the evidence of Senior Constable Philip: see my ruling in The State -v- Jason Jay Mathew: CR No 1221 of 2009 (Unnumbered & Unreported Judgment of 19th May 2011). Following the ruling, defence counsel asked further questions in relation to the accused parent's detention and Senior Constable Philip denied having any knowledge of it.

6. The evidence of the accused did not differ much from the evidence of the State, the State's evidence being essentially the accused's answers to questions by Senior Constable Philip during the interview as per the record of interview (exhibit 'P1"). He did not deny he once worked for One Hill Trading Limited in Porgera as its Supervisor and Escort Driver. He also did not deny that on 26th June 2009, he took leave from work to attend to some personal problems and was on his way to Mt Hagen on a PMV bus.

7. At Waliya, he saw his work colleagues washing the company's motor vehicle. He got off the PMV bus and joined them. In the company motor vehicle were the driver and three passengers, one of them was a female named Sarah from Tambul and girl friend of the driver. They drove to the border of Enga Province and Western Highlands Province.

8. At the border, they saw a road block and looting of a big container truck by looters. They stopped and the driver and the two male passengers got out of the motor vehicle and went to find out the cause of the road block and looting. He remained with Sarah in the motor vehicle. A few minutes later, one of the male passengers returned and asked him to join them at the scene of the road block. He got out and followed him to where the driver and the other male passenger were. Sarah remained in the motor vehicle.

9. From that point onwards, two different versions were presented to the Court. The State alleged the accused took the money in a box that was in the company motor vehicle and left. He got on another PMV bus and travelled to Mt Hagen. On arrival in Mt Hagen, he went to Wurup and left the money with an old woman called Kupana. After that, he returned to Newtown where he resides.

10. Sometimes later, he returned to Wurup and picked up the money and brought it to Newtown where he and a friend named Kopli Kupi hid it under the banana trees. When his boss Mr Chen called him on his mobile phone, he told Mr Chen that he took the money because he was underpaid for his services to the company over the years. This is the State's version.

11. The version of the accused is this; he did not remove the money from the company's motor vehicle and take it to Mt Hagen, although he confirmed leaving his work mates behind at the border and caught a PMV bus to Mt Hagen on that day. On arrival in Mt Hagen, he went to his house at Newtown. While there, his boss Mr Chen called his mobile phone and asked him about the money. He told Mr Chen he did not take the money from the motor vehicle. The next day, he went to Kaiwe village and while there, he received a telephone call from his sister that the mobile squad policemen were looking for him. They had also gone to his house at Newtown. He got scared and remained at Kaiwe village.

12. After that, he heard the police had detained his parents at the cell at Mt Hagen Police Station. He felt sorry for his parents and surrendered to the police at the police station. Following his surrender, the police released his parents from the cell. During his interview with Senior Constable Philip on 07th July 2009, he admitted the offence because he was worried about his parent's welfare and safety.

13. His evidence in relation to his parent's detention at the police station cell is corroborated by his father Mathew Tau. His father said, in the evening of 27th June 2009 at about 6 o'clock, he was at the church when the mobile squad policemen arrived and picked him and his wife. They took them to the police station and detained them. They remained there until the accused surrendered himself to the police and they were released at about 1 o'clock in the morning of 28th June 2009.

14. Given these two versions, the issue is whose version should be accepted and believed by the Court. Is it the State or the defence? The evidence of the State is purely based on the admissions of the accused in the record of interview (exhibit "P1"). This in turn raises the issue of whether the record of interview of the accused (exhibit "P1") is sufficient for the Court to rely upon to find the accused guilty of the offence.

15. It has been held that whilst a record of interview which is not contested is evidence, it is not of equal weight to sworn evidence. Sworn evidence which has been tested or untested in cross-examination has far more weight than an unsworn statement: see The State -v- Ali Kei Paiya: CR No 478 of 2004 (Unnumbered & Unreported Judgment of 09th August 2005) and The State -v- Martin Maso Naipo: CR No 92 of 2004 (Unnumbered & Unreported Judgment of 21st June 2005).

16. But the weight to be attached to an accused's sworn evidence will also depend on the normal factors that decide whether any witness's evidence is believed such as the witness's demeanour and credibility of the evidence in light of other evidence before the Court: see The State -v- John Baimo Kaole & 2 Ors (2009) N3842.

17. The other factors are whether the witness's evidence is consistent and whether the witness's evidence is logical and sensible: see The State -v- So'on Taroh (2004) N2675. This means, while it is true the State's case is based purely on the record of interview of the accused and less weight should be placed on it as it has not been tested in cross-examination as opposed to the acccused's sworn evidence where it has been tested in cross-examination and that he denied the offence, that is not the end of the equation. I must also consider his sworn evidence in the light of the other factors that I have briefly mentioned above and must be satisfied that his evidence is credible than the State's evidence in the record of interview of the accused.

18. Turning first to the State's evidence, as the record of interview of the accused (exhibit "P1") was tendered by consent, I find the question of whether it was obtained voluntarily has been settled. That means, the evidence of the accused in relation to his parent's being detained by the police in order to force him to surrender to the police and admit the commission of the offence which was corroborated by his father Mathew Tau is irrelevant to the assessment of the credibility of the State's evidence. In other words, as the record of interview of the accused is uncontested, section 28 of the Evidence Act, Ch 48 does not apply here. For this reason, I do not take them into account in determining the credibility of the State's evidence.

19. If that evidence was intended to discredit and raise doubt in relation to the credibility of the evidence of Senior Constable Philip, I am not satisfied that the defence has sufficiently established that doubt. I say this because I accept Senior Constable Philip's evidence that he has no knowledge of the accused parent's detention at the police station cell prior to the arrest and charge of the accused. I say he has no knowledge of the accused parent's detention because the alleged detention occurred on 27th June 2009 and he interviewed the accused on 07th July 2009, which is about 10 days after the accused parent's detention, making it too remote for him to know what had happened then.

20. As for the evidence of the defence, first is the demeanour of the accused. From my close observation of him at trial, he makes me think he is not a person who is trying to hide something from the Court. He appeared to be a good witness because he spoke softly and calmly in his evidence in chief. He also answered questions on cross-examination calmly. So, on his demeanour alone, I have no reason to doubt him. However, I find it quite strange and unusual that he did not tell his work colleagues that he was leaving them and going ahead to Mt Hagen on a PMV bus. I find there would be no reason not to tell them of his intention to go ahead of them, especially when he joined them at Waliya to go to Mt Hagen.

21. Further, especially when at that time, he got out of the company motor vehicle and joined the driver and the two male passengers at the road block and scene of looting. Common sense and logic would dictate that he would at least tell them he was going ahead of them on a PMV bus. Furthermore, he did not say in his evidence that he left in the hurry without informing them because he feared being attacked or killed because of the looting. So, why the rush!

22. I also find it quite unusual and strange that on arrival in Mt Hagen and after going to his house at Newtown, he went to Kaiwe village the next day. Why did he go to Kaiwe village? He did not give evidence in relation to his reason for going to Kaiwe village. After all, he said he had some personal problems and took time off work to go to Mt Hagen to sort them out. So why did he go to Kaiwe village? To my mind, it does not make sense.

23. Furthermore, I find it unusual and strange that following his sister's telephone call to him about the mobile squad policemen going to his house at Newtown in search of him, he remained at Kaiwe village. Why would he remain there, if he did not steal the money? He said, he remained there because he was scared of the mobile squad policemen but if he did not steal the money, why would he be scared? Would it be reasonable and sensible for him to go to policemen and explain to them that he did not steal the money?

24. Finally, when I compare the State's evidence as per the record of interview of the accused (exhibit "P1") with the evidence of the defence, I find the submissions by defence counsel that the State has failed to prove the accused stole the money because the State did not produce the money and that, there was also Sarah in the motor vehicle at that time and that left a possibility that she may have taken the money has not been sufficiently established to create doubt in the State's case that the accused did not steal the money.
25. For these reasons, I find the evidence of the State more credible than the defence's evidence. The admissions in the record of interview of the accused (exhibit "P1") sufficiently establish a chain of events following the accused's departure from his work colleagues at the border on 26th June 2009 to the time he surrendered to the police at the police station on 28th June 2009. It is a live story of what had happened as it describes exactly how, when and where the accused came into possession of the money, where he took it and why he took it.

26. It follows I reject the evidence of the accused. For the State to prove the charge of stealing against the accused under section 372(1)&(5)(c) of the Criminal Code, Ch 262, it must establish that:

1. a person;

2. steals;

3. anything capable of being stolen;

4. from a vessel, vehicle, or place of deposit.

27. Based on the admissions in the record of interview of the accused, I find on 26th June 2009, the accused picked up the box of money from the company's motor vehicle at the border and caught a PMV bus to Mt Hagen. When he arrived in Mt Hagen, he went to Wurup and left the money with the old woman Kupana. After Mr Chen called him several times about the money and asked him to return it, his friend Kopli Kupi heard and both of them took the money to Newtown and hid it under the banana trees.

28. After that, he went to Kaiwe village and stayed there. After several unsuccessful attempts in getting him to return the money, Mr Chen sent two CID policemen to pick him up. They picked him up and took him to the police station and on the way, they were joined by members of the mobile squad police. They brought him to the police station and locked him up.

29. I am, therefore, satisfied the accused was the person who stole the money from the motor vehicle of One Hill Trading Limited while in transit between Wabag and Mt Hagen for banking purposes. I find him guilty of stealing K80,000.00 and convict him under section 372(1)&(5)(c) of the Criminal Code, Ch 262.

Verdict: Guilty.

_______________________________
Acting Public Prosecutor: Lawyers for State
Paraka Lawyers: Lawyers for Accused