N5206

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CRA. NO. 54 OF 2003

ARI PUGISO INATIA
Appellant

V

DETECTIVE LAWRENCE ISRAEL
Respondent

Kainantu & Goroka: Ipang AJ
2013: 10 & 25 April

CRIMINAL APPEAL – District Court Decision – Appeal against conviction on the charge of stealing – Criminal Code Act – S. 372 (6) (b) – An accomplice Dom Paru Temai Stole the pistol gave it to the appellant – Appellant did not return the pistol to the owner – appellant charge for stealing – conviction based on evidence of an accomplice not corroborated – Trial magistrate did not apply the appropriate warning – conviction unsafe – conviction quash

Cases Cited:
Papua New Guinea Cases:

State v Amoko Amoko [1981] PNGLR 373
Abraham Saka v State [2003] PGSC 18; SC 719 (2.10.03)
State v Titeva Fineko [1978] PNGLR 262
State v Joseph Tapa [1978] PNGLR 134
State v Francis Laumadava [1994] PNGLR 291
State v Nataembo Wanu [1977] PNGLR 152
Abraham Saka v State SC 719 (2ND October, 2003)

Overseas Cases:

Davies v Director of Public Prosecutions [1954] AC 378

Counsel:

Mr. K. Pilisa, for the Appellant 
Mr. K. Umpake, for the Respondent

DECISION ON APPEAL

25 April, 2013 

1.	IPANG, AJ: This is the decision on appeal against the conviction of the appellant by the Kundiawa District Court on the 27th of October, 2003. The appellant was found guilty and convicted for the offence of stealing under S. 372 (6) (b) of the Criminal Code Act and was sentenced to 2 years imprisonment with hard labour. 

2.	The S. 372 (6) of the Criminal Code Act, Chapter 262 is worded in the following;

"372. Stealing 

(b) if the offender is a person employed in the Public Service, and the thing stolen- 

 (a) is the property of the state; or

 (b) came into the possession of the offender by virtue of his employment,

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

Background Facts

3.	The appellant was at that material time a Senior Constable within Police Force and based at Chuave Police Station in the Chimbu Province. On the 3rd day of April, 2002 the appellant was on duty at Chuave Police Station. At or around 11.00am Joe Kombuk, a Sales Manager with Ela Motors in Goroka arrived at Chimbu Police Station in a Toyota Land cruiser. He parked the vehicle in front of the Police Station and went into the Police Station. Prior to leaving his vehicle, he wrapped a waist bag in a newspaper. In the waist bag was a sig 9mm Glock Pistol Serial No. AKC 001. He placed the waist bag in between the driver's seat and the crew's seat.

4.	The appellant was in the Police station directly facing Joe Kombuk's vehicle. Kombuk approached the appellant and was talking to him. While the appellant was talking with Kombuk, one Dom Paru Temai approached Kombuk's vehicle and stole the waist bag containing the pistol and ran away with it. It was alleged that the appellant saw everything that happened. When Kombuk returned to his vehicle, he discovered that the waist bag containing the pistol was missing. He then laid a complaint with the appellant who entered the complaint in the Occurrence Book (OB).

5.	Later during the same day, the appellant proceeded to Dom Paru Temai's village in his private vehicle. He found Dom Paru Temai and recovered the pistol. However, he kept the pistol and never gave it back to Joe Kombuk.

6.	The appellant pleaded not guilty to the charge of stealing pursuant to S. 372 (6) (b) of the Criminal Code Act, Chapter 262. A trial was conducted and he was found guilty on the 27th October, 2003. On the 3rd of November, 2003 the appellant was sentenced to 2 years imprisonment. On the 5th of November, 2003 the appellant lodged an appeal in the National Court. The appellant raised 15 grounds of Appeal. The grounds of Appeal are set out in pages 3, 4 & 5 of the Appeal Book are as follow;

1.	 That the leanred trial magistrate failed to consider that the key prosecution witness Don Temai was an accomplice to the alleged offence and whose evidence was which was dangerous to act on.

2.	The learned trial magistrate erred in law when he entered conviction against the accused where prosecution failed to establish in evidence the existence and ownership of the pistol in question in the particular circumstances of this case.

3.	The learned trial magistrate erred in law entering a conviction on an information that failed to disclose that the defendant was a public servant to whom the provision of section 372 (6) (b) are applicable.

4.	The leaned trial magistrate erred in law in entering a conviction when there was absolutely no evidence before the court to prove that the accused was a public servant to whom the charge under section 372 (6) (b) of the Criminal Code are applicable.

5.	The learned trial magistrate erred in law when he failed to determine the question of whether or not the accused was a public servant before proceeding to determine the charges.

6.	The leaned trial magistrate erred in allowing a conviction on unsatisfactory and unreliable prosecution evidence that the accused did see the suspect taking the pistol from the vehicle.

7.	The learned trial magistrate erred in law when he relied on the corroboration evidence of Enny Dom and Sivin Gimai which were tainted with hearsay and assumptions and provided no real and independent evidence to confirm the evidence of Dom Temai.

8.	The leaned trial magistrate failed to give due weight and consideration to the fact that it was most improbable that the defendant police officer would witness a theft at the police station without sounding an alarm and alter benefiting directly from the goods stolen and in corroboration with a person he does not know and had not spoken to earlier.

9.	The learned trial magistrate having admitted the evidence of Paul Buka who had been declared hostile witness for the prosecution failed to give due consideration to the fact that prosecution had in their investigation and prosecution had attempted to fabricate evidence to match the cartridge the accused took from the Paul Buka to match the pistol alleged to have been stolen by the accused.

10.	The learned trial magistrate failed to give due weight and consideration to the circumstances under which the accused was investigated and incriminated by the other police officers as follows;

(i)	That in the course of investigation the key witness Don Temai was arrested charged of an offence relating to the use and or possession of an illegal drug and placed in police custody but that the charges were later withdrawn by the police in unexplained circumstances.

(ii)	No formal charges had been laid by the police against key witness Dom Temai for assault of an auxiliary police officer Garry Upa in relation to the stealing of the pistol in question.

(iii)	No charges were laid by the police against the prosecution key witness Don Temai on his own confession that he stole the pistol in question.

(iv)	In cross examination the witness attributed discrepancies between their written statements and oral evidence to police officer who prepared the written the statements. The learned trial magistrate failed to cautiously consider this fact.

(v)	Rudolf Nauo entered recovery of pistol on the OB on a case he was not working on and he based his entry on an alleged report by auxiliary police officer Garry Upa whose evidence is clear he had not seen the pistol been handed over by the accused to the Dom Temai, Garry Upa further explained what he had actually said to Rudolf Nauo. 

11.	The learned trial magistrate ought to have disregarded the evidence of the key witness Dom Temai on his credibility and for his participation in stealing the pistol at the first instance.

12.	The learned trial magistrate erred in law when he convicted the accused of the offence charged when he was an accomplice to the offence whose statements are unreliable and ought to have been treated with caution and disregarded.

13.	The learned trial magistrate erred in law when he failed to caution himself as to the dangers on circumstantial evidence before the proceeding to convict the defendant on the evidence before him.

14.	The learned trial magistrate erred when he convicted the accused on evidence which was unsatisfactory hearsay corroborations of the evidence of a key witness whose credibility renders his evidence unsatisfactory and unsafe.

15.	The learned trial magistrate failed to consider the improbability of the accused stealing from a vehicle without raising an alarm and alter knowing exactly which suspect to go to because he had seen him stealing the pistol.

7.	The Appeal comprised of 15 grounds on conviction and which will be grouped and dealt with as follow;

•	Grounds 1, 6, 7, 11, 12 and 14, all deal with issues of accomplice evidence and the dangers of convicting upon uncorroborated evidence of an accomplice. 

8.	The appellant argued that the trial magistrate failed to consider that the State's key witness Dom Temai Paru's participation and the role he played made him an accomplice to him, the appellant or the prisoner. Thus, the appellant submitted that the learned trial magistrate sitting as a tribunal of fact failed to decide the question as to whether the witness Dom Paru Temai was an accomplice.

9.	Appellant argued that Dom Paru Temai is an accomplice because he admitted stealing the pistol at first instance. Therefore, appellant further argued that the appropriate charge to apply to the prisoner in the circumstances alleged by police would be on a charge of receiving stolen property unless it can be shown that Dom Temai had in the first instance stolen the pistol in concert with and in corroboration with the appellant. Mr. K. Pilisa of counsel for the appellant argued that it was Dom Temai who stole the pistol. Counsel said this is a significant factor that has been seriously over looked or totally ignored by the District Court. If Dom Temai gave the pistol to the appellant who received it with unlawful purpose or intention, that makes the appellant an accessory after fact. See S. 10 of the Criminal Code Act, Chapter 262. Thus, counsel submitted that the District Court Magistrate failed to establish that Dom Temai was an accomplice therefore failed to caution himself against entering a conviction upon an uncorroborated evidence of an accomplice.

Who Is An Accomplice?

10.	An accomplice is, 'any person who either as a principal or as an accessory has been associated with another person in the commission of an offence. The evidence of an accomplice is admissible but the judge must warn the jury of the dangers of conviction on such evidence unless corroborated, and if this warning is omitted, a conviction may be quashed; Obsorn's concise Law Dictionary, 7th Edition
.
11.	In State v Amoko Amoko [1981] PNGLR 373 Pratt, J dealt with the question of whether corroboration is necessary in Papua New Guinea where the evidence is that of an accomplice. Pratt, J referred to the case of Davies v Director of Public Prosecutions [1954] AC 378 where 3 propositions were stated.

(1)	In a criminal trial where a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the judge to warn the jury that, although they may convict upon his evidence, it is dangerous to do so unless it is corroborated.

(2)	This rule, although a rule of practice, now has the voice of a rule of law.

(3)	Where the judge fails to warn the jury in accordance with this rule, the conviction will be quashed, even if in fact there be ample corroboration of the evidence of the accomplice, unless the appellant court can apply the proviso to Section 4 (1) of the Criminal Appeal Act, 1907.

12.	We can see in Abraham Saka v State SC 719 (2 October, 2003); State v Nataembo Wanu [1977] PNGLR 152, State v Titeva Fineko [1978] PNGLR 262, and in State v Francis Laumadava [1994] PNGLR 291 that it is settled law in this jurisdiction that it is dangerous for the courts to convict on an uncorroborated evidence of an accomplice. The trial judge should take heed of such danger and warn himself, where evidence of an accomplice is involved. In Francis Laumadava (supra) Injia, J (as he then was) at p. 299 said:

"I must warn myself as to the dangers of accepting Mr. Kilileu's evidence in these circumstances. There is likelihood that one accomplice may fabricate or concoct evidence against another accomplice, either to get even or to seek to exonerate himself by casting the entire blame on the other person. It is an established rule of practice that I must warn myself that it is dangerous to convict unless the accomplice's evidence is corroborated by other witnesses."

13.	So applying the law to the facts it becomes obvious that the appellant was convicted based on the evidence of Dom Paru Temai who was treated as a State key witness. However, Dom Paru Temai had admitted to stealing the pistol in the first instance hence he became an accomplice. As an accomplice, his evidence has to be corroborated.

14.	The evidence given by Enny Dom, the wife of Dom Paru Temai and Sivin Temai fall short to corroborate Dom Paru Temai's evidence because these two (2) witnesses did not actually see the pistol in possession of Dom Paru Temai. Furthermore and more significantly, both did not actually see the pistol being given away to the appellant by Dom Paru Temai. Thus, their evidence given before the District Court was based on what Dom Paru Temai told them. Therefore, as an accomplice, Dom Paru Temai's evidence was to substantially corroborate in anyway.

15.	From pursuing the magistrate's decision it appears very clearly that His Worship did not warn himself on the dangers of entering a conviction based up the evidence of an accomplice Dom Paru Temai. The proper approach to be taken by the learned magistrate was to properly treat Dom Temai as an accomplice. That is to take Dom Temai's evidence as an accomplice, give the appropriate weight and warning on the dangers of entering conviction on an uncorroborated evidence of an accomplice.

16.	Because of the above finding, the learned District Court Magistrate should have warned himself of the dangers of accepting Dom Paru Temai's evidence and entering a conviction upon the uncorroborated evidence of Dom Paru Temai as an accomplice. The learned magistrate did not give the appropriate warning and entered conviction on an uncorroborated evidence of an accomplice Dom Temai. The conviction is therefore unsafe. 

17.	I have up hold the Grounds 1, 6, 7, 11, 12 and 14 and ruled that the conviction is unsafe. I quash the conviction entered by the District Court entered on the 27th of October, 2003.

18.	Because of my ruling on Grounds 1, 6, 7, 11, 12 and 14 I consider not necessary for me to deliberate on Grounds 2, 3, 4, 5, 8, 9, 10, 13 & 15. Appeal upheld, conviction quashed and appellant's bail be refunded.

______________________________________________
Pilisa Lawyers: Lawyer for the Appellant
Public Prosecutor: Lawyer for the Respondent