N5653

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 96 OF 2013

THE STATE

–v-

MATHIAS WATT

(No.1)

Maprik: Kirriwom, J.
2013: September 5, 6 & November 26

CRIMINAL LAW – Stealing as employee – Accused closely connected to owner of business/company through marriage – Accused lived inside company premises with wife who was sister of company owner – Accused's wife held senior management position and in charge of a branch of the company operation in Maprik District – Through this relationship accused became privy to confidential information of large sum of money locked in the safe – Accused tricked his wife by sending her on an errand when he stole the keys from her billum and accessed the money in the safe in the office – At trial Accused denied stealing the money – Evidence mostly circumstantial – Accused went on drinking spree from the moment he stole the money till police arrested him three days later – Gave conflicting stories of how he came into possession of large sum of money he was seen carrying around and spending recklessly on beer and spirits – Accused found to be a liar – Found to be in serious breach of trust - Convicted of stealing.

Facts are in the judgment.

Cases cited:
Papua New Guinea Cases

Paulus Pawa v The State [1981] PNGLR 498
Barca v The Queen (1975) 133 CLR 82; 50 ALJR 108 

Overseas Cases

Counsel:

D. Mark, for the State
F. Fingu, for the Accused

DECISION ON VERDICT

26th November, 2013

1. KIRRIWOM, J.: The accused Mathias Watt comes from Umbukul village, Kavieng, New Ireland Province. He was charged with stealing K11,300.00 in cash on 25th of October, 2012, property belonging to Waiu Ltd, a company that employed him and his wife, Rachael Samuel. He worked in the operations while his wife was the Depot Supervisor of the company's Maprik operations and took care of the office administration with another lady called Joan Tindu. At the time of the alleged offence and his arrest, he was under an indefinite suspension from work for some earlier problems with the company.

2. Waiu Ltd is a company involved in cocoa buying business in Maprik and owned by Kenny Samuel, elder brother of Rachael Samuel, the wife of the accused. The accused's wife Rachael Samuel was the Depot Supervisor for the company's operations in Maprik . Kenny Samuel had his office in Wewak and he operated out of Wewak.

3. The State case against the accused is mainly circumstantial. Following the opening of the State case, Mr Daniel Mark counsel for the State informed the Court that it was not calling the principal witness in the State case because she was the spouse of the accused. After the second prosecution witness gave his evidence, it became obvious that the evidence from the wife was necessary for the prosecution to survive; otherwise, she could even be a suspect in this alleged theft. Mr Mark was advised to refresh his knowledge on the law of evidence relating to spouses as witnesses.

4. It seemed clear to me that counsel was unaware of the development in the law on this area or had not appraised himself fully of the law prior to making that significant decision of excluding a critical witness from giving evidence for the prosecution. Given this exchange between the bench and the bar table, Mr Mark called Rachael Samuel as the next witness after Patrick Gumba, although she was listed number one witness in the back of the indictment. Consequently the line-up of the witnesses in the State case was Joan Tindu, Patrick Gumba, Rachael Samuel, Peter Paulus and Benson Boro. The evidence from these witnesses can be summarised as follows:

Joan Tindu

5. Joan Tindu works as pay-out clerk with Waiu Ltd. When producers sell their cocoa to the company, she gets the money from the boss, Rachael Samuel and pays the producers. She said her boss was the wife of the accused Mathias Watt and sister of the owner of the business Kenny Samuel who lived in Wewak.

6. Joan said only three ladies worked in the office her boss, herself and one other who had relocated to Wewak. At the time when a substantial amount of money went missing from the company safe in the office, it was only her boss and herself. The money went missing on 25 October, 2012. She said that she and the boss counted the cash before close of business the previous day on 24 October, 2012 and after balancing the books and the cash at hand they locked up the cash in the office safe and she left. She said there is only one key to the safe and the boss always kept the key. Only when she was away she would keep the key. She said the key is used to open the outer door to the safe, once that is opened, one must use a six digit combination numbers to open the safe vault. Again she said only she and her boss know the safe combination numbers, no one else does.

7. About two days before the theft on 23rd October, 2012 Joan recalled having a conversation with Mathias Watt while sitting under the kitchen during lunch hour between 12:00 and 1:00pm. Their conversation was on mobile phone and accessing facebook. During this conversation the accused who was more computer literate and able to configure his phone using certain numbers to do that advised her that he was sent a new number. She asked him to call that number as she was interested in configuring her phone as well. Instead of calling the number, the accused wrote number 711965 on a drum. She immediately recognised that number and told him that that was the office safe combination number. A correct number would have been four digits long. He then told her that he knew the number belonged to the office.

Rachael Samuel

8. Rachael was employed with Waiu Ltd for five years before this incident and had been married to the accused for three years. They have no children. She was fired from work on 26 October, 2012 after this stealing incident because the loss to the company occurred while she was in-charge of the Maprik operation. She was unemployed at the time of this trial.

9. Rachael, in her oral evidence, quite contrary to her written statement given to the police earlier, told the court of balancing the books at 4pm on the afternoon of 23 October, 2012. In her written statement she said the books were balanced on 24th October, 2012. On the morning of 24th October 2012 she went to work and checked the safe and discovered that K11,300.00 she received from Wewak that week was missing from the safe when in her written statement she said she discovered this on the morning of 25th October, 2012.

10. She went looking for her husband who was not home that time and found him at Patrick Gumba's house. There she spoke to Elias Sospi and he told her that her husband was buying the beer with a bank card. She could not speak to her husband because he was too drunk for her to talk to him about the problem at the work place. Patrick was not there so she went looking for him but in vain so she returned to Bonz. She did not tell anyone about the missing money because she wanted to first ask her husband before talking to other people. Mathias returned home in the afternoon but was still drunk so she did not talk to him about the loss of the money. They went to bed without talking about the matter.

11. That same afternoon she said her brother Ian Samuel, Council President of Maprik-Wora LLG came to their place wanting to go to Wewak. They had dinner together and after dinner Mathias gave some money to her brother and told him to go buy some beer in the nearby store. She and the husband went and bought some drinks came back and slept.

12. Next morning 25th October 2012 she was still troubled by the missing money and still trying to find out how this could have happened. She tried to raise it with her husband but he went out again and still she did not report to her boss nor the police. On the early hours of the morning of 26th October, 2012 at 2am her brother Ian Samuel, the Council President called her up and asked if she was okay, or if everything was alright with her because he saw her husband was spending large sums of money to buy beer. She told her brother that she was missing K11,300.00 from the company safe and he told her to go to the Police as soon as it was daylight.

13. She consequently reported the loss to her boss who advised her to report to the Police and ultimately she did. The accused was still out drinking with friends and was apprehended in Albert Yalken's place. Albert was another employee of Waiu Ltd.

14. Rachael Samuel got herself mixed up with the dates and her evidence of dates was not consistent with what she told the Police and other witnesses. Her police Statement was therefore tendered into evidence and marked as exhibit 3. The dates she gave in her Police Statement are consistent with the evidence of other State witnesses and tie in with the general trend of the sequence of events so I accept that the dates given earlier in time in her Police Statement are correct. She was either mistaken or confused. I will not find that she was deliberately trying to distort her story in favour of the accused.

15. It was her evidence that the money K11,300.00 all in K100 denomination were delivered from Wewak by her brother Abel Samuel on Tuesday 23rd October, 2012. On Wednesday 24th October, 2012 after balancing the day's transactions, she locked up K12, 940.00 in the safe comprising K11,300 in K100 notes that arrived from Wewak the previous day and K1,640 left over from the day's transactions all in different or other denominations. This story would be consistent with that of Joan Tindu although she could not recall how much exactly was locked away.

16. Early the next morning on 25th October, 2012 between 5:30am and 6:00am the husband sent her away to fix their pig's food some distance from their house before normal work time while he went to check on dried coffee beans inside the warehouse. At 6am she returned to the house and found her husband gone. She went to the office at 8:00am and when she opened the safe, she discovered that K11,300.00 was missing while the rest of the money was still there. She told no one about her discovery except her driver and said to him that she must find her husband.

17. She knew that if anyone should know anything about this loss, her husband was the first suspect because she left him at the house with her billum that had the office keys and the key to the safe. No other employee had the keys to the office and the safe. It was logical and full of common sense to suspect first her husband because he had axe to grind against the company for suspending him and he was unemployed at the time of this theft. She was thinking that her husband was doing this to show his frustration or disappointment and if so, she wanted to resolve this amicably. This most likely explains why she did not report to her boss and police immediately she became aware of this theft.

18. She denied Patrick Gumba asking her if there was anything more she wanted besides the ANZ bank card. I will discuss which evidence I will accept when I discuss the demeanour of witnesses.

Peter Paulus

19. Peter Paulus has been working with Waiu Ltd since 2006 as the Public Relations Officer. He said that Waiu is a cocoa buyer and exporter. It buys cocoa from local producers and after drying wet beans exports dried cocoa. The business belonged to Kenny Samuel who lived in Wewak but Maprik Depot which served customers in Maprik was managed by his sister Rachael Samuel. 

20. He said Kenny Samuel provides the cash for cocoa buying from the local producers/sellers and also for the workers' wages.

21. Peter Paulus recalled about 6am in the morning of 25 October, 2012 he was still asleep when Mathias Watt and Albert Dangal calling out to him to follow them to buy smoke. As they proceeded to Alois's house to buy smoke they saw a vehicle heading for Maprik Town so Mathias suggested they go to town. They got onto that vehicle and came to Maprik town where they jumped down at Papindo junction. At Nings' Store they bought three cartons of beer and went to Patrick Gumba's house. Patrick Gumba went to work but invited two other policemen to drink with them before leaving. They drank awhile after Patrick left but then relocated to Ambakati's house. They finished all the beer there and he became so drunk and was picked up in a vehicle and taken home where he slept till next day. The next morning Police were looking for them.

Patrick Gumba

22. Patrick Gumba is a Senior Constable of Police attached to Maprik Police. He had been in the Police Force for 19 years and resided in the old Police Barracks in Maprik town. He knew the accused Mathias Watt as husband of Rachael Samuel who attended Maprik High School with him.

23. He recalled early morning of 25 October, 2012 between 7:00am and 7:30am. He was getting ready to go to work when the accused and three other persons arrived at his place. He named those persons as Peter Paulus, Elias Sospi and one old man he was not familiar with. They arrived with three cartons of beer.

24. It was unusual or out of the ordinary to have a visit so early from someone who had never been out with him before or been to his house so Patrick Gumba was taken aback and asked if this visit meant good or bad for him. The accused told him that he came to drink with him.

25. Patrick told the accused that he had a busy day in court with witnesses brought down from Ambunti and he had to go to work. Instead Patrick informed two other policemen, First Constable Ambukati and Sergeant Goai in the barracks to join the accused and his companions to drink with him. Seeing the additional numbers to drink with the accused went and bought two more cartons of beer, two bottles of wine and 2 packets of Pall Mall cigarettes.

26. As he was about to leave the house, the accused called Patrick to the back of the house and pulled out K6000 in cash, all in K100 notes from his pants with a ANZ bank card and asked him to keep them for him until he came back for them. He took the cash and the bank card to his room, locked them up and he left the house for work.

27. He finished his case about lunch and returned to the Police Station and there he saw Rachael Samuel. She asked him if Mathew left anything with him. He told her that Mathias left some things with him and asked her as to what she wanted. She replied she wanted her ANZ card. He asked her if there was anything else she wanted but she replied she only wanted her ANZ Card. He told her to follow him to the house. At the house he asked her again if there was anything else she wanted. She replied she only wanted her card. When Rachael was cross-examined on this, she replied that Patrick only said he had the ANZ card left with him by the accused. He never said anything else to her.

28. When they went to his house, the drinking party had broken up and the group relocated to FC Ambakati's house. They were all pissed out of their heads. The accused was fast asleep. Rachael got her bank card and drove away. A dump truck arrived later and picked up the accused and they went away. About 10pm in the evening the accused came back to Patrick's house and retrieved the K6000 he left with him.

29. SC Gumba was asked to explain if he had any suspicion about the accused carrying such a large sum of money around and he replied that it did not occur to him. He thought that it was his own money and he wanted him to keep it for him, being a policeman and the safety of his money guaranteed.

30. The accused told Patrick that the money was part of the sum of K145,000 in his bank account which was from his NPF entitlements. Patrick did not know much about the accused other than being the husband of a lady he went to school with. It did not even strike him as odd that there was no bank in Maprik and here was someone casually moving around with such a large amount of money and did not alert him as law enforcement officer to have an interest in knowing more about him.

Benson Boro

31. Benson Boro works with Waiu Ltd as scale reader responsible for weighing cocoa beans. He and his wife work for the company. On Tuesday 23rd October, 2012 he bought Mathais Watt's mobile phone for K150 and advised Rachael Samuel to deduct from his wages.

32. On Wednesday he was at his Welikum village when Mathias Watt and several other persons drove up to the village to leave Kenneth. Mathias called him from the house and he came down to them. He was offered beer and he began drinking with them. While they were drinking Mathias took him to the side and counted K1000 in hard cash and gave it to him. The money was all in K100 notes. After drinking when they wanted to leave he took back K500 from him and left him with K500. He told him that this was money from his NAS FUND Savings. He was surprised when the accused gave him such a large sum of money. Next morning on 26 October, 2012 Mathias Watt was arrested by the Police.

Mathias Watt

33. Defence also went in to evidence and the accused was his only witness in the case. He gave sworn testimony. He told the court that he was employed with Porgera Mine for 15 years before seeking employment with Lihir Gold. He came to Maprik in 2010 during his break to marry his wife Rachael Samuel and thereafter did not return to Lihir because his tambu Samuel promised him a salaried job as operations supervisor. 

34. He was suspended from work due to some problems with the company and one of the conditions for his suspension was that he was not allowed to enter any of the company's offices at any time. That suspension was indefinite.

35. Following that suspension he had two weeks of prolonged argument with his wife because a woman was calling him on his mobile phone. He recalled the 23rd October 2012 he was sitting down with an uncle called Buni Sabuk for a haircut. While trimming his hair Buni Sabuk asked him for his mobile phone number. He only managed to write down five digits of his mobile number 71184 when Joan Tindu butted into their conversation unexpectedly and requested for internet configuration number for facebook connection when she saw the number he wrote down and completed it with 036 as his full telephone number. He verbally spoke to Joan Tindu that time and gave her the number she requested which was 1650 and left the place after selling his phone because he does not talk to small kids.

36. He then left for Maprik and bought four cartons of beer and drank with his friends until 9pm and returned home with full cash in his possession. At 11pm that night Rachael Samuel put her hands inside his trousers pocket and saw the bundles of money. He had about K7000 in K100 notes that night and his wife knew. He got angry with her for pushing her hand into his pockets that night but despite that they slept in the same room, same bed and woke up together at 5:30am the next morning 24th October, 2012. He instructed his wife to go cook and feed their pigs outside the company premises. They came out of the house together and sat on the veranda and she kept on arguing so to diffuse the situation he said he would go and check for dry beans in the warehouse and walked out of the house. 

37. The warehouse was open and some customers were telling stories and some were making fire in front of the entrance door. He had a torch in his hand when he went into the warehouse and flashed it inside the shed and saw a security guard named Jerome sleeping. He then withdrew from the warehouse and to avoid further argument with his wife he left the premises even before six o'clock. 

38. On the way he was joined by Albert Galgal and Peter Jinap and together they left for Maprik Town, arriving there at 6:00am. At Maprik he bought three cartons of SP beer and went to Patrick Gumba's house because he made a commitment to drink with him during the elections. But he left for work while other policemen joined them for drink. As they drank he went and bought two more cartons of beer and two bottles of red wine. He said they were all very drunk. However he said being security conscious of the amount of money he was carrying around, six bundles he handed over the money to Patrick Gumba for safe keeping. 

39. After the beer finished they all left their own separate ways and later in the night he returned and retrieved that money from Patrick. He said Patrick lied about him counting the money before he took possession of them. 

40. After retrieving the money from Patrick Gumba he continued on his drinking spree again. He said he bought some more cartons of beer and drank with his in-laws Ian Samuel, Abel Samuel and Kenneth Boro. He placed the last carton inside the vehicle and they went to leave Kenneth Boro. At his residence he called Benson Boro and gave him K1000 and told him to hold onto it. He told him he will get it back to buy his airline ticket to run away from his wife to Port Moresby. As they left to return to the house, he got back K500 from Benson Boro.

41. The next day 25th October, 2012 he continued with his drinking with the same people namely Peter Jinap, Benson Boro and Kenneth Boro and this drinking went on until 26 October 2012 when he was apprehended by police. When Jerry Kapris arrested him on 26 October, 2012 at Maprik Police Station, K903 was still in his pocket. 

42. Under sworn testimony the accused for the first time only in this court said that the large sums of money he had on him were election-related kickbacks or bribery money he received from two candidates he did dirty favours for them during the election while he was the Presiding Officer and Counting Analyst in the National Counting Tally Room. He named those candidates, one of whom a successful candidate, and said that one paid him K2000 in July 26, 2012 during polling and another paid him K8000 on 29 September, 2012. 

43. In cross examination the accused also maintained that he had enough savings with Nasfund which he checks every month. He receives about K6000 every month which goes into his account in Port Moresby maintained by his brother. He and his brother maintain a cheque account. He said he never touched that money. He said he could not produce any records of these transactions because his laptop was damaged during an argument with his wife.

44. The State case is wholly circumstantial. The law on circumstantial evidence is pretty well settled in this jurisdiction starting with the case of Paulus Pawa v The State [1981] PNGLR 498 which cites the principle of common law in the famous case of Barca v The Queen (1975) 133 CLR 82 at 104; 50 ALJR 108 at 117 which, taken from the judgment of Andrew, J, states the following in pp.501-502:

"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 ALJR 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 CLR 619 at p. 634. 

To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is not only that his guilt should be a rational inference but that it should be the only inference that the circumstances would enable them to draw": Plomp v. The Queen (1963) 110 CLR 234 at p. 252; see also Thomas v. The Queen (1960) 102 CLR 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 WLR 276, that there is no duty on a trial judge to direct the jury in expressed 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'."

45. Relying on this principle, Defence counsel submits that for the court to return a verdict of guilt, there must be no other hypothesis other than the guilt of the accused. It is submitted that in this case, there are other hypothesis consistent with innocence that the court must give the benefit of the doubt to the accused. Such hypotheses he was referring to, although not specifically mentioned by counsel, include:

(a)	It is possible that the money was from the accused's Nasfund savings;
(b)	It is also possible that the money was corrupt money paid to him by way of bribery for dirty work he did for candidates during the 2012 National Elections while he was the Presiding Officer.

46. The principle enunciated in Peacock v The Queen eloquently deal with the argument where it is worth repeating:

"...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...'

47. Just because the accused provided the above two possibilities from which he had access to large sums of money at his beckoning without more, is that good enough to accord the accused a reasonable hypothesis consistent with innocence? I do not think so. It is not good enough. To accept such propositions there must first be some requirements met:

1.	The proposed hypothesis is reasonable
2.	The proposed hypothesis is credible
3.	The proposed hypothesis is substantiated by credible evidence.
4.	The proposed hypothesis is not a figment of imagination just to divert attention away from the crime.

48. There are number of reasons that render the hypotheses provided by the accused as untenable and cannot be relied upon:

1.	They are unbelievable because reasonable men cannot believe stories that have no sound basis of their origin. 

2.	They are not credible stories because they are not substantiated by credible independent evidence. 

3.	They are only figment of imagination of the accused because not only that no evidence has been supplied to support the existence of those possibilities, their origin in this case remain suspects because they cannot be traced to any reliable source.

49. The evidence in the accused's own testimony is that in order to diffuse more argument from his wife as they came out onto the veranda of the house; he left her carrying on while he proceeded to the warehouse to check for dried cocoa beans. He had earlier already instructed his wife to go and prepare food for their pigs. The pigs were kept outside the company premises. According to the sketch plan (Exh.2) the company premises was fenced all around, in the front was the warehouse. The perimeter fence linked up with both ends of the warehouse. There was a side entrance gate on the left side of the warehouse and main entrance door to the warehouse was in the centre of the building. Behind the warehouse and inside the perimeter fence was the residence that Rachael Samuel and the accused lived in. From the house there was direct access to the warehouse through a back door. Inside the warehouse towards the main door on the left were two offices in which Rachael Samuel and Joan Tindu worked. Office 1 which is closest to the wall is where the depot supervisor and clerk worked. The safe was located in that office. Office two is the paying out office where customers got paid.

50. The accused later changed his story and said he never went inside the warehouse because he was banned from entering company premises so he simply stood on the door way and flashed the torch inside. He wants the court to believe that this happened on the 24th October, 2012 whereas the evidence from Peter Paulus aka Jindu and Patrick Gumba was that this incident of him buying three cartons of beer and going to Gumba's house was on 25th October, 2012. 

51. It is the accused's own evidence that he went to the warehouse. If he did go into the warehouse that morning, he had the opportunity to commit this crime. He says he does not touch his wife's string bag and as such did not get the keys from her bag that morning and he does not know the safe combination number. The fact that he disappeared so early in the morning and started on a drinking spree at 6:00 o'clock in the morning for no good reason than just to get drunk provides an inference that he must have done that so he took off early before the wife had the chance to discover what had happened. 

52. On one view of the evidence, this whole idea starting with sale of his mobile phone, writing the safe combination numbers for Joan Tindu's eyes only and sending his wife out at 5:30 in the morning to go and cook food for their pigs was all planned enactment on the part of the accused to carry out this theft against his wife's brother's business following his suspension. He had to sell his phone because either he needed money so badly then, or he did not want to have a phone at the time when he did not want to be reached by his wife when he went out with his friends when the time came. He purposely wrote the safe combination numbers with no solicitation from Joan Tindu or anyone for that matter in Joan Tindu's presence just to clear any doubt on the correctness of the number he may have learnt from somewhere. Joan Tindu confirmed that for him. And finally to give himself the chance to have access to the office to do what he did, he sent his wife out on a chore he knew will take time to complete thereby giving his enough time to accomplish what he had planned to do. So once his wife left for the farm to feed their pigs, he got the keys from her billum and proceeded to the office unnoticed and removed the cash without disturbing the sleeping security man and replaced the keys back in his wife's billum and went away to spend the money.

53. His entire behaviour that day is consistent with someone who knew he was guilty and did not want to be disturbed in enjoying the fruits of his crime as long as he can while the long arm of the law was nowhere near to stop him.

54. While defence carries no burden at all in criminal trials, when defence relies on defence or defences that raise questions of credibility of the explanations given by way of defence, there is a minimum requirement to provide some evidence substantiating any theories advanced that are consistent with innocence. If assertions are left unsubstantiated and found to be untrue, they render support to the prosecution theory of guilt being the only hypothesis open to the court.

Demeanour of witnesses

55. After observing each witness give his or her evidence in this trial, the following is my assessment of their demeanour:

Joan Tindu

56. She gave evidence in a clear and concise manner. She knew her role in the company. She had been trusted on occasions when Rachael Samuel was unavailable to have custody of the keys to the office and safe key. She was the only other person who knew the combination numbers to the safe besides Rachael Samuel. She handled large sums of money as the pay-out clerk. She occupied a very responsible position with the company and her mind was sharp at the time. 

57. She told the court of what she knew from her own personal knowledge and observation of what she saw in connection with the missing money. Her recollection of the dates are reliable and consistent with the general trend of the story and I accept her witness of truth. 

58. Where there is conflict in evidence between her timing of events or what she saw with that of the accused, I prefer her evidence and reject that of the accused. There is no reason for me to not accept her story as that of nothing but the truth. 

Patrick Gumba

59. He gave evidence with clarity and consistency. As to the timing of events, he corroborated Joan Tindu. Therefore as far as timing of events, I accept both their evidence as reliable and they must be taken as telling the truth. Where there is inconsistency as to timing between their evidence and that of accused or even Rachael Samuel, I accept both their evidence as the truth.

60. Patrick Gumba was a truthful witness and I was impressed with his testimony. His only short-coming was that he was not alert enough to immediately disclose to Rachael Samuel of what he was given rather than wait for her to specifically ask for a specific item. As a law enforcer he should immediately treat anyone with suspicion even his own family member if he is seen to be carrying a large sum of money around in such a manner and buying beer at such early hour of the morning even before the whole town is awake. This is indicative of someone in the wrong and it would be a matter of time when the truth reveals itself. That is the only misgivings in his evidence, otherwise, he told the truth and his story must be believed.

Rachael Samuel

61. Rachael Samuel gave a statement to the police which was consistent with the evidence given by Joan Tindu, Patrick Gumba and Peter Paulus as to the timing of events. But in her sworn testimony she changed her story of time to match that of the accused. In the end she got herself confused and mixed up on the dates. 

62. I found Rachael Samuel to be a confused and unimpressive witness. It was clear to me that she was not giving evidence voluntarily as she was trying to protect her husband on the one hand and at the same time be loyal to her brother Kenny Samuel who trusted her and put her in-charge of his business operations in Maprik. She was torn between two worlds as it were. 

63. She knew far more than what she told the court. I thought she held back a little where she could without giving herself away. She was a cunning witness. Between her evidence and that of Patrick Gumba, I accept the later's evidence and reject hers. However between her evidence and that of the accused, I accept her evidence to that of the accused.

Peter Paulus

64. This witness I take him to be the same person referred to by the accused as Peter Jinadi. He told the court of what he did on 25 October, 2012 in the company of the accused drinking early that morning from 7am at Patrick Gumba's place. This evidence is not denied, it is admitted by the accused. I accept his evidence. He is a witness of truth.

Benson Boro

65. He told the court nothing but the truth of what he knew in connection with this crime. His story is even verified by the accused in his evidence so he must be believed. 

Mathias Watt

66. Mathias Watt wanted the court to believe that everyone was lying except him. He was the only one telling the truth. And this was so even as his explanation for suddenly being in possession of a large sum of money out of the blue kept changing from one level to another level until he dropped a bombshell out of nowhere and even his counsel could only smile because he was hearing his client's latest explanation for the first time in court.

67. To the witnesses he drank with on 25th October, 2012 from early morning to the late afternoon and throughout that night, he told them that the money was from his Nasfund or NPF savings. In the trial he said he never touched any of that money which was going into his bank account in Port Moresby every month at the rate of K6000 which his brother manages. Instead he said the money he had on him was paid to him by two candidates who bribed him to mark ballot papers in their favour when he worked as Presiding Officer during the elections in 2012. This evidence sprung out of nowhere and incredible as it is, it is an unsolicited admission to committing a criminal offence of bribery.

68. This evidence cannot be relied upon even if it is true because it came into the trial in complete violation of the law of evidence and rule of practice to not take the other side by surprise. In the adversarial system of criminal trial that we have adopted from the common law, there is no trial by ambush as is often said. We have a fair and transparent system of justice. When evidence is tendered in such deviant manner, State cannot rebut it even if such rebuttal was possible because it was not put on notice either before hand or during cross-examination of State witnesses. So at best, such evidence can be taken is that it is a lie.

69. Therefore if the accused can lie here, there is no guarantee that he did not lie elsewhere in his entire evidence. He is therefore an untruthful and unreliable witness who cannot be believed.

70. The end result is that I cannot accept the evidence presented by the defence because the accused is a liar and cannot be believed in his evidence. The evidence given by the State witnesses are to be believed. 

71. The only issue left is whether I can be satisfied beyond reasonable doubt of the guilt of the accused? 

72. The charge against the accused is stealing under section 372(1) of the Criminal Code. The section reads:

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

73. The offence of stealing is defined in section 365 of the Code. It states: 

"Subject to the succeeding provisions of this Code, a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.

(3)	The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act."

74. The subject of theft in this case is a substantial sum of money in cash which is easily capable of being stolen. There is no eye witness account of anyone seeing anyone who stole the money and how it was done. But there is strong evidence of the money being counted and securely locked away in a safe in the office that only two persons have access to, Joan Tindu and the wife of the accused. However the keys to the safe and the office are always with the wife of the accused, a fact that obviously the accused would know and knows. 

75. There is no dispute that the amount of money in the safe was K11,300.00 when it went missing on the morning of 25th October, 2012. The previous afternoon it was counted by both Joan Tindu and Rachael Samuel and locked in the safe. This is undisputed. The keys to both the office and the safe were at all material times in the custody of Rachael Samuel.

76. Early morning 25th October, 2012 when Rachael Samuel went to feed their pigs at 5:30am, the accused went to the warehouse. He had the opportunity and ability to get access to the office and the safe to remove that money when his wife was out of the house.

77. There was motive for him to do this because of a number of reasons:

1.	He was upset by being laid off work indefinitely by his wife's brother, the owner of the business.

2.	He was not in good terms with his wife, constantly quarrelling, lately because of women ringing him up on his mobile phone.

78. This conclusion is logically probable because his fast disappearance that morning is consistent with someone who had done wrong and must disappear fast to hide his new gains in a safe place somewhere. No sooner had he disappeared from their home, as early as 6am he is already buying cartons of beer at Maprik and drinking with other Waiu employees and seen carrying around large sums of money in cash amounting to K6000, all in K100 notes. It is not a coincidence that the monies that went missing from the safe in Waiu Maprik office were all in K100 notes.

79. There is no evidence that carrying large sums of money around in cash was his style of registering his presence amongst friends long before this alleged crime was committed. When someone suddenly strikes it rich and spends lavishly on beer so early in the morning as if there is not going to be another day, it certainly must call for investigation. There is no evidence of the accused having any substantial investments anywhere prior to this crime until this crime is committed when he comes up with incredible tales of money growing all over him from decent employment earnings to dirty money earned dishonestly from corrupt deals. When someone is full of surprises that no reasonable men will believe him, he must be lying.

80. Therefore if the accused becomes rich all of a sudden, and is spending large sums of money lavishly on beer within a short period of time, telling those he is drinking with one story of how he came into possession of the money and in court he tells a totally different story of where he got the money and not even his lawyer ever knew about his story, there is no doubt that he is a liar.

81. From these incredible stories, the only logical conclusion or inference is that consistent with his guilt, that is, the accused stole the money in the safe. When he removed the money from the safe, he permanently converted the money to his own use thereby depriving the owner, Waiu Ltd, of it.

82. In Paulus Pawa v The State (supra) the appellant appealed to the Supreme Court after being found guilty of stealing based on circumstantial evidence alone. He was the Clerk of District Court Mt Hagen. The court house was broken into by smashing the glass window and the safe in the office was removed and taken away. It was later found discarded on the side of the road where it was unlikely to be ever discovered along the highway leading to the appellant's village. 

83. The safe was still locked. It was taken to Hagen Police Station and oxy was used to cut open the safe. Inside the safe were some court documents and everything else was intact.

84. However, according to the evidence of a clerk in the office, there was supposed to be K4, 327 in the safe because he had counted the money and placed it in the safe before the office closed and the burglary took place in the night.

85. Morning after the break-in the appellant explained to the clerk that on the night when the office was broken into and the safe was stolen and dumped, he went to the movies in Mt Hagen. He left the safe keys in the glove box of the truck parked outside when he went to see the movies. He said when he came out he found the quarter glass of driver's cabin was broken by someone and the key was stolen.

86. The appellant was also seen by a policeman driving around in a truck in Mt Hagen where brief conversation was held. Appellant denied this meeting at the trial but the trial judge rejected his story. The judge also rejected the story of someone stealing the safe key from the glove box of the truck he drove to the movies that night. The Court said that a thief would only steal the money and leave and not go to the trouble of breaking into the office and removing the safe to create a diversion. 

87. As the Clerk of Court the appellant had the only key to the safe. His alibi was rejected and he was convicted. The Supreme Court dismissed his appeal and said (per Andrew, J):

"The learned trial judge found that the evidence of Constable Avoa was crucial. He accepted his evidence and could not therefore accept the accused's statement, made to the clerk of the court, that he had been at the pictures. It followed that he could not accept the accused's story that the safe key was stolen from his vehicle. In this regard the trial judge took into account that the appellant had not called any evidence, which on his story he could have, that his vehicle had been broken into whilst he was at the pictures.

Thereafter there were findings that none of the appellant's statement could be accepted. It was found that the appellant had an excellent motive for the particular modus operandi of this break and enter, namely that the safe was taken ten miles away, opened with a key and locked again and then discarded. As the trial judge said:

"A thief who had stolen the key would be most unlikely to use this peculiar method of committing the crime. He would simply use the key, open the safe in the Court House and steal the contents."

It was noted that the safe had been dumped in the vicinity of the appellant's village and in a place where it would not easily be found.

In convicting the accused, the trial judge, finding that much of the evidence was circumstantial, relied upon the direction to the tribunal in Plomp v. The Queen (1964) 110 C.L.R. 234.3 at p. 252 per Menzies J.:

"... to bring in a verdict of guilty it is necessary not only that it should be a rational inference but the only rational inference that the circumstances would enable them to draw..."

This was part of the more general requirement that guilt be established beyond reasonable doubt."

88. In this case before the Court, applying the reasoning in the above case apart from logic and common sense, the accused had a perfect motive for this theft as I have outlined earlier. The modus operandi he adopted to carry out this theft was a planned act spanning over a couple of days starting with disposal of his mobile phone, showing Joan Tindu his knowledge of the office safe combination number, maintaining an agonistic domestic environment at home that his wife would fear him and jump at his bidding, sending his wife out on an errand in such an early morning hour while it was still dark giving himself the opportunity he needed to steal the key from his wife's billum she left in the house to enter the office and have access to the safe. Who else apart from his wife would have the guts to access the office and do that at such time in the morning without worrying about the security guard? It is him. 

89. The only two possible suspects in this theft are the accused and his wife Rachael Samuel. But Rachael has no reason to steal from her own brother's business which provided her with a source of livelihood. With all the lavish spending that followed immediately thereafter, continuous drinking spree that same day of the offence, carrying around large sum of money in a particular denomination that went missing from the Waiu Maprik office safe, telling people he drank with one story about his sudden stroke of luck to be flushed with so much money and telling the court completely a different story of where he got the money from by implicating himself and other prominent people of committing a criminal offence of corruption and bribery thereby diminishing his own credibility to zero level, all point to one direction which is that of the guilt of the accused.

90. I therefore find that there is overwhelming circumstantial evidence for the court to be satisfied beyond reasonable doubt that:

1.	The accused stole the money in the sum of K11,300.00 by removing it from the company safe belonging to the company,

2.	On the morning of 25th October, 2012 after uplifting the key from his wife's string bag when she went to feed the pigs,

3.	With that money he started on a drinking spree from 7am that day till late that night,

4.	And he continued on drinking with that money until he was apprehended on 26th October, 2012 when K903 was discovered in his possession still.

91. I find the accused guilty as charged and convict him accordingly.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence