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State v Yama [2015] PGNC 193; N6100 (24 September 2015)

N6100

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 232 OF 2015

BETWEEN:

THE STATE

V.

LOYA YAMA
Accused

Mendi: Nablu, AJ
2015: 18, 24 September

CRIMINAL LAW – Unlawfully receiving stolen property - Section 410(1)(a) of the Criminal Code – No case submission - Accused discharged.

Cases cited:

The State v. Paul Kundi Rape [1976] PNGLR 96
Zimbin David v. Yapu David [1988] PNGLR 178
The State v. Tom Morris [1981] PNGLR 493
Paulius Pawa v. The State [1981] PNGLR 498
The State v. Kwale Dire (2000) N2178

Counsel:

S.Luben, for the State
C.Koek, for the Accused

RULING ON NO CASE SUBMISSION

24th September, 2015

1. NABLU, AJ: The accused has entered a plea of not guilty to one count of receiving stolen property contrary to Section 410(1)(a) of the Criminal Code.

2. The State's case as put in the brief facts on arraignment is that the accused received into his possession a vehicle, Toyota Landcruiser 10 Seater, Registration No. HAJ 879. The said the vehicle was used by police based in Kagua District and was marked Highway 21. The vehicle was allegedly part of the Police operational fleet. The vehicle was sold to the accused by late Senior Constable Raymond Alo who was then the officer-in-charge of Highway 21. The accused paid K17, 500.00 as consideration for the sale. On 29th May 2013, the accused was arrested by Ialibu Police after having sighted him driving the vehicle. The vehicle was subsequently impounded at Ialibu Police Station.

3. The State did not call any evidence but sought to tender the affidavits of seven witnesses, namely;

1. Senior Constable Willy Moses – Mendi Police Station
2. Chief Inspector Sibron Papoto – Mendi Police Station
3. Mas Tuman – Mendi Police Station
4. John Kalopa – Ialibu Police Station
5. Jason Kupu – Ialibu Police Station
6. Rocky Tagobe – Ialibu Police Station
7. Francis Puri – Ialibu Police Station
   

4. The State also tendered documentary evidence of the Record of Interview, a bank deposit slip which showed K17, 500.00 cash deposit in to a bank account in the name of Raymond Alo and a copy of the motor vehicle registration in the name of Loya Yama for vehicle registration No. HAN 025.

5. The documents were tendered into evidence without objection by the Defence Counsel.

6. The offence is provided in Section 410(1)(a) which states that:

A person who received anything that has been obtained by means of any act constituting an indictable offence...knowing it to have been so obtained, is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding seven years.

(2) If the offence by means of which the thing was obtained is a crime, the offender is liable to imprisonment for a term not exceeding 14 years.

7. At the close of the State's case, the Defence made an application of no case to answer. The application is made pursuant to the first limb of the classic case of Paul Kundi Rape v. The State [1976] PNGLR 96. The applicable test is whether the accused could be lawfully convicted upon the evidence as it stood at that stage of the trial.

8. The State must prove the following elements of the offence:

1. That the property was stolen;
2. That the accused received the property; and

100. That the accused knew that the property was stolen.
     

9. The State is not required to allege or prove from whom the property was stolen. The circumstances in which the property may in themselves be sufficient proof that the property was stolen; Zimbin David v. Yapu David [1988] PNGLR 178.

10. The onus is on the State to prove the elements of the offence of receiving stolen property beyond a reasonable doubt. In the present case, the evidence of the State at this stage, only proves that the vehicle registration No. HAJ 879 was a vehicle used by Highway 21 Police Unit and that it was not listed for a Board of Survey for disposal. The evidence of Senior Constable Willy Moses, Chief Inspector Sibron Papoto, and Mas Tuman of Mendi Police Station only prove that fact that the vehicle was under the custody of the Police. Evidence provided by the other witnesses, only prove as to how the accused was apprehended and the events leading up to his arrest, charge and impounding of the vehicle.

11. The evidence of the deposit slip only confirms the accused explanation that he paid for the vehicle, which is consistent with what he said in his Record of Interview.

12. In the present case, there is an absence of direct or cogent evidence to prove that the property was stolen. However, there is circumstantial evidence that the property was owned by the State and it was in the possession of the Police. There is no direct or cogent evidence to prove that the accused had knowledge that it was stolen property at the time of receiving it. At the time he was arrested, he was in possession of the vehicle and was the driver at the time.

13. If the State is relying on circumstantial evidence; the applicable test is whether the only rational inference that the evidence can enable the Court to draw is that the accused is guilty? When drawing an inference from circumstantial evidence, the inference must be drawn from the overall evidence and not isolated pieces of evidence; The State v. Tom Morris [1981] PNGLR 493, Paulius Pawa v. The State [1981] PNGLR 498 and The State v. Kwale Dire (2000) N2178.

14. In the circumstances, where the only evidence before the Court is circumstantial, there are a number of rational inferences which can be drawn from the evidence. Firstly, the accused and late Raymond Alo conspired to steal the property. Secondly, late Raymond Alo unlawfully obtained the vehicle and sold it to the accused, who did not know it was stolen at the time he allegedly purchased it.

15. Although the evidence produced by the State might well sustain a charge of accessory after the fact to a crime pursuant to Section 519 of the Criminal Code or the summary offence of being in possession of property reasonably suspected of been stolen under the Summary Offences Act, the circumstances do not meet the requirements of Section 410(1)(a) of the Criminal Code. It is therefore, impossible to bring in a verdict of guilty on those charges as it cannot be an alternate verdict when the accused is charged with receiving stolen property.

16. Therefore, in regard to the charge of receiving stolen property, I am of the view that there is no case for the accused to answer.

17. I discharge the accused and order that his bail monies and cash surety paid by the guarantors are refunded forthwith.

Office of the Public Prosecutor: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Accused