N9362

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1310 OF 2020

THE STATE

V

GARRY PAYA
(No 1)

Waigani: Ganaii, Aj.
2021: 10th, 15th, 17th, 24th November, 01st December

CRIMINAL LAW - Verdict - Unlawful Use of Motor Vehicle -   Section 383 (2) of the Criminal Code - Offender’s appointment as District Treasurer was revoked - Offender transported vehicle away from the District and Used it without the consent of the Owners – Assessment on credibility – State witnesses were impressive – State’s case proven beyond reasonable doubt - Guilty Verdict
 
Cases Cited:
Papua New Guinea Cases
 
Balbal v The State [2007] SC860
SCR No 1 of 1980 Re: Section 229A (b) of Police Act (Papua) [1981] PNGLR 28
State v Jacob Dogura Roy (2007) N3137
Waranaka v Dusava [1998] PGSC 25

Overseas Cases

Browne v Dunn (1893) 6 R. 67 (HL)

Legislations Cited

Criminal Code, Sections 383 (2)
District Development Authority Act of 2014, Sections 10 and 11 

Counsel

Ms S. Suwae, for the State
Mr M. Sumbuk, for the Accused

DECISION ON VERDICT
 
01st December, 2021

1.      GANAII, AJ:  	The accused Garry Paya stands charged on an indictment dated 10th November 2021, with one count of Unlawful Use of Motor Vehicle (UUMV) contrary to section 383 (2) of the Criminal Code. 

Statement of Facts

2.  	State says when the accused was appointed as the District Treasurer for the Wapenamanda District Development Authority (WDDA), a government issued vehicle, described as a Toyota Landcruiser, bearing the registration number PAH 302 was given to him for official use in his capacity as the District Treasurer. On the 18th of December 2019, the accused’s appointment as the District Treasurer for the WDDA was formally revoked.  

3.	State alleged that between the 19th of December 2019 and the 19th of May 2020, the accused unlawfully used the said motor vehicle, the property of the WDDA without their consent as the lawful owner. Mr. Paya’s actions of transporting the said motor vehicle from Wapenamanda to Port Moresby and then driving it for his personal benefit in Port Moresby, without the lawful authority of the WDDA, amounted to him unlawfully using and possessing the vehicle, thus depriving the WDDA temporarily of their right to use and possession of the vehicle. 

4.	The member for Wapenamanda Open Electorate, and the chairman of the WDDA, Honourable Rimbink Pato, became aware of the missing vehicle and laid an official Police complaint with the Police in Port Moresby. The Police located the vehicle in Port Moresby. The accused was the driver of the vehicle when the vehicle was sighted and confiscated by the Police.  The vehicle was impounded at the Boroko Police Station. The police then arrested and charged the accused. The vehicle was later transported back to Wapenamanda District and given to the WDDA.  

5.	State says that when the accused moved the vehicle from Wapenamanda to Port Moresby and used the vehicle for his own benefit without the consent of the WDDA and depriving the WDDA temporarily of their use and possession of the vehicle, his actions contravened s 383 (2) of the Criminal Code.  

Charge, Plea, Issue

 6.  	The offender was charged with the Unlawful Use of the Motor Vehicle under section 383 (2) of the Criminal Code. He pleaded not guilty to the charge and a trial was conducted. The issue is whether the State has proven its case beyond a reasonable doubt that the accused had unlawfully used the motor vehicle without the consent of the owner. 

Law
The Offence Provision

7.	Sections 383 (2) of the Criminal Code stipulates as follows:

“383. UNLAWFULLY USING MOTOR VEHICLES, ETC.

(1) In this section, “unlawfully uses” includes the unlawful possession by any person of any motor vehicle or aircraft–
(a) without the consent of the owner or of the person in lawful possession of it; and
(b) with intent to deprive the owner or person in lawful possession of it of the use and possession of it temporarily or permanently.
(2) A person who unlawfully uses a motor vehicle or aircraft without the consent of the owner or of the person in lawful possession of the vehicle or aircraft is guilty of a crime.
Penalty: Imprisonment for a term not exceeding five years.
(3) This section applies without prejudice to any provision relating to the unlawful use of motor vehicles or aircraft of any other law, but an offender is not liable to be convicted under both this section and such a provision in respect of any one and the same unlawful use”.

Elements for Unlawful Use of Motor Vehicle

8.	The elements of the offence of UUMV are:

1.	A person;
2.	Unlawfully uses or unlawfully possesses a motor vehicle; 
3.	Without the consent of the owner or the person in lawful possession of the motor vehicle; and
4.	With intent to deprive the owner or the person in lawful possession of the use and possession of it temporarily or permanently  
 
The Prosecution Evidence
Documents tendered by Consent

9.   The state tendered the following documents by consent; the MVIL Certificate of CTP Insurance Policy and Registration marked as State Exhibit “A” confirming the lawful ownership of the motor vehicle to be the WDDA; and 7 x Photographs, marked as State Exhibits “B1 – B7” depicting the motor vehicle. 

Oral Testimony

10. 	State called sworn oral evidence from Sergeant of Police, Daniel Yapati and Member for Wapenamanda Honourable Rimbink Pato. A summary of their evidence is stated. 

Daniel Yapati

11.	He is a Sergeant of Police and has been with the Police Force for 27 years. He is attached to the Boroko Police Station. He received a complaint from Mr. Rimbink Pato for unlawful use of the WDDA vehicle. He became aware of the description of the vehicle to be a white Toyota L/Cruiser bearing the Registration Number PAH 302. He sighted the vehicle on the 19th of March 2020. The accused Mr Garry Paya was driving the vehicle when he confiscated and impounded the vehicle. 

12.	The witness said he questioned the accused on the ownership of the vehicle. The accused said it belonged to the WDDA. The witness informed the complainant, Mr. Pato who informed the Police to investigate, arrest and charge the accused. The witness then handed the case to the CID who processed the charge and arrest. He also said he was threatened by the accused and his relatives as he was doing his job. 

Honourable Member Rimbink Pato

13.	Witness is the current sitting member for Wapenamanda Open Electorate. He is a lawyer by profession and currently he is serving his second term as member of Parliament for his electorate. In his capacity as the chairman of the Board of the WDDA, he is the complainant in this matter.

14. 	He said the vehicle belonging to the WDDA was allocated to the Acting District Treasurer Mr Paya who is now the accused. After the revocation of Mr Paya’s appointment as the District Treasurer, the vehicle was removed and taken away from Wapenamanda without the permission of the WDDA. He said the vehicle was supposed to be based in the Wapenamanda District, and specifically with the office of the WDDA for work purposes. 

15. 	The witness said there was a previous stealing incident where the WDDA vehicle was removed from office without lawful authority, taken away from the District and never returned. This was the main reason why he had to make a complaint so that the vehicle can be returned. 

16. 	The witness knew the accused as the former District Finance Manager or District Treasurer for WDDA. He was no longer an employee of WDDA when his acting appointment was terminated on the 18th December 2019. 

Defence Case

17.	The accused, Mr Paya gave sworn oral testimony. He said he was the District Treasurer of the WDDA. His appointment to office as the District Treasurer was endorsed by the Secretary for Finance and Open Member for Wapenamanda Mr. Pato. He however, did not sign any contract as his appointment was on an acting basis. He reported directly to the Secretary for the National Department of Finance. 

18.	Mr Paya said the vehicle was given to him in his capacity as the District Treasurer and he was fully licensed to drive a government vehicle anywhere in the country. There were no conditions attached to the use of the vehicle. He said he had no obligation to seek permission on how he used the vehicle.  He agreed that the vehicle rightfully belonged to the WDDA. Mr Paya did not answer the question whether he sought the permission of the WDDA.  

19.	The accused said although there was a revocation of his appointment which he was aware of, he kept the vehicle because there was no formal hand over take over as yet. He acknowledged a revocation document that Mr. Pato referred to but said again that his termination was to take effect upon hand overtake over. 

20.	Mr. Paya said his reason for keeping and bringing the vehicle to Port Moresby was for safe keeping. He spoke of other WDDA vehicles being stolen or damaged. He did not want this vehicle to be stolen or damaged. He said he did not leave or keep the vehicle in the neighbouring towns for safe keeping as he was not familiar with those towns. He said he would keep the vehicle until there was a formal handover take over and someone was appointed. He would hand the vehicle over.  

Defence Submission

21.	Defence submitted that the State’s evidence is lacking and is unreliable for the following reasons: the circumstantial evidence is weak and there are many inconsistencies in the state witness’s evidence. 

22. 	Defence submitted that the State witness Daniel Yapati’s evidence is not credible as even though he arrested and charged the accused, he was not able to confirm if the accused was still the Wapenamanda District Treasurer or that his acting appointment was not revoked. For Mr Pato’s evidence, Defence’s only submission was that the witness did not speak on the appointment of the accused. 

He only said the accused’s acting appointment was revoked but he could not confirm that with any instruments of revocation. In cross-examination, the witness could not verify or confirm the accused’s revocation. 

23. 	For the accused, defence submitted that he did explain how he was appointed. He stated his reasons why the vehicle was brought to Port Moresby. In cross-examination, he denied the allegations. His demeanour was good and his evidence is true. He said he was still the District Treasurer when he was arrested before the handover take-over of office. He said the formal handover take-over was done on the 5th June 2020 to a person called Christina Peter and not Nick Turi as the State witness said.  

24. 	Defence submitted that there are a lot of inconsistencies in the State case. On inconsistencies, the Court must assess the credibility to find the truth. Principle in case of State v Jacob Dogura Roy (2007) N3137, is applied.

25. 	State has the duty to prove all the elements of the offence beyond a reasonable doubt, SCR No 1 of 1980 Re: Section 229A (b) of Police Act (Papua) PNGLR 28, applied. State has not proven all the elements of the offence beyond reasonable doubt.

State Submissions

26.	State witnesses’ evidence is credible and reliable. Court has the duty to assess the witnesses and pass judgment on their credibility, principle in Balbal v The State [2007] SC860, applied and as in the case of Waranaka v Dusava [2998] PGSC25. State has the onus to prove all the elements of the offence beyond a reasonable doubt. 

27.	State submits that the Defence case is that the accused’s acting appointment was not formally revoked when the handover take-over was not yet done. The court can decide on this disputed fact by deciding on who to believe. Mr Pato’s evidence is that a formal revocation was made. The court can be assisted in considering whether the State witness, especially Mr Pato, has a motive to lie in court. State submits that no bad motive has been made out. The only motive for bringing this matter to court is to enable the safe return of the vehicle.  

28.	State submits that the evidence of state witnesses be accepted for the reasons stated here. For Sergeant Daniel Yapati, he is a long serving police officer with 27 years of service and experience. He is fully aware of the nature of swearing on oath to tell the truth. He appeared calm and gave clear answers. He acted on a formal complaint to him in his capacity as a police officer and his evidence is consistent in examination in chief, cross examination and in re-examination. He was not discredited in cross examination. 

29. 	For Mr Rimbink Pato, he is a Parliamentary Leader and a lawyer by profession. Like the first witness, he also, fully understands the nature of giving sworn evidence. His evidence is consistent with and corroborates that of Sergeant Daniel Yapati’s evidence. He maintained a consistent and clear story on the revocation of the appointment of the accused. He spoke of forwarding a letter to that effect to the new appointee. He maintained his story in examination in chief, cross-examination and in re-examination. He was not discredited in cross examination. 

30. 	State submitted that the accused raised the defence of general denial and said that whilst he was still the treasurer, the allocation of the government vehicle to him had no conditions attached on its use.  Whilst that was his story, State submitted that the accused did not put this to the state witnesses to give them an opportunity to respond. It was not put to Mr Pato that the vehicle was transported to Port Moresby for safety reasons.

31. 	State submitted that the accused was evasive during cross-examination on 
questions surrounding the safety of the vehicle and in the light of the breach of the rule in Brown v Dunn (supra), the court should reject this story as being an excuse. 

32. 	Further, on the accused’s story on safety for the vehicle, it must be rejected for the reason that when the Police confiscated the vehicle, and when the vehicle was in the safe custody of the Police, the accused did not want to allow the Police to keep the vehicle there. He and his relatives threatened Mr Yapati when he impounded the vehicle. The accused should not be believed as his actions contradict his original intent of bringing the vehicle to Port Moresby for safe keeping. Court should find that he brought the vehicle for his own use. State submits that this demonstrates a guilty conscience.
 
33. 	On a question of fact whether the accused was allocated vehicle without conditions attached, the Court is to decide on that on the evidence by Mr Pato.  

34. 	On the elements of the offence, State submitted that on identification, there is no dispute that the accused transported the vehicle to Port Moresby. The State had proven that beyond a reasonable doubt. On the element of consent, the accused did not obtain the consent of the WDDA as stated by the Chair, Mr. Pato. The defence story put fort by the accused on the purported safety of the vehicle does not affect the elements of the charge. 

Application

35. 	The court accepts the State’s submission in the manner they argue on the court’s duty to make findings on the credibility of the witnesses (Balbal v The State, supra). Mr Yapati and Mr Pato were credible witnesses and they impressed me. The defence submission on assessing credibility was shallow and not helpful at all.  Defence did not satisfy me why they say the State witnesses were not credible. I reject the defence submission that the state witnesses were not credible and that this court should not believe them.

36. 	I find it implausible to believe the accused’s story that he moved the vehicle for its safety, for the simple reason that he did not inform the WDDA Board or Mr. Pato. He avoided direct questions when they were put to him on whether he had obtained consent. His story was also not put to Mr Pato in cross-examination. The breach in the rule in Browne v Dunn indicates that this story was belated and was made up in an attempt to explain his wrongful actions. The accused’s avoidance of confronting the very issue of consent and giving Mr Pato an opportunity to respond simply shows his deliberate failure to obtain lawful consent.  For this, I reject the accused’s story that the vehicle was taken away for safety purposes as the accused did not impress me as a person who was genuinely concerned about the safety of the vehicle. I find that the vehicle was moved for personal use and benefit.    

37. 	On the elements of the offence, State must prove that the accused unlawfully used or possessed the motor vehicle without the consent of the WDDA or the person in lawful authority of it. 

38. 	I am satisfied that the State has established credible evidence beyond reasonable doubt that the WDDA is the lawful owner and that Mr Pato is the chair of the WDDA. State has also proven beyond a reasonable doubt that the accused’s appointment as the District Treasurer was revoked on the 18th of December 2019. Although the instruments for the revocation and appointment of the incumbent was not accepted into evidence on grounds of fairness to the defence case, I accept the oral evidence of Mr. Pato on this. State had also established beyond a reasonable doubt that the accused had not obtained the consent of the WDDA to possess and use the vehicle after his appointment as District Treasurer was revoked. 

39. 	State has proven the unlawfulness of the use and possession of the vehicle by showing, firstly, that consent was not obtained, secondly, the vehicle was moved away from its original location without the consent of the WDDA and thirdly, it was put to personal use, when the accused was found driving the vehicle in Port Moresby. 

40. 	Although there is no evidence on the specific terms of usage of the vehicle, when allocated to the accused in his capacity as the District Treasurer, evidence showed that it was nevertheless State property, belonging to the WDDA. Evidence from Mr. Pato on any terms on the usage of the vehicle is that the vehicle was meant for the District and was meant to be used only in the District for work.  By this somewhat unwritten rule, State is the lawful owner, and any movement of the vehicle away from the District or for another purpose, was to be sanctioned by the WDDA as the lawful authority or owner. It was not as the accused say, that it was left at his discretion on how he was to use the government issued vehicle.

41. 	I take judicial notice of Sections 10 and 11 of the District Development Authority Act 2014, on the Powers and Functions and of the DDA Board. The provision says:

 “The Board has the power to ensure proper, efficient and economical performance of the authority’s operations for the benefit of the District”. 

42. 	The vehicle was bought to serve the interest of the District according to Mr Pato. Where the vehicle was taken out of the District without prior approval from the Board of the WDDA, the accused had abused that power and authority of the Board where he himself was a Board member, by implication of his position in the District. Further, where he had denied the other members of the Board their opportunity to properly exercise their powers to decide on the movement of the vehicle, he had deprived the WDDA, its Board members, and the people of Wapenamanda their right to the use and lawful possession of the vehicle. 

43. 	In demonstrating that the accused had avoided getting consent from the lawful owner of the vehicle, the State had proven its case beyond reasonable doubt that the accused unlawfully used the vehicle. 
  
44. 	On the element of permanent or temporary deprivation of the use and possession of the vehicle, I find that the State had proven this element beyond a reasonable doubt by showing that when the vehicle was transported to Port Moresby, its was not in the District and was not used for its intended purpose.  Mr Pato did not have a reason to lie. He was genuinely concerned about WDDA vehicles being stolen and taken away from the District. The movement of this vehicle away from Wapenamanda to Port Moresby, and it’s return to the District after the accused was arrested and charged, established a temporary deprivation of WDDA, the lawful owners, of the lawful use and possession of its vehicle. 

Conclusion

45.	In conclusion, I find that the State had proven all the elements of the offence and consequently State had proven its case on proof beyond reasonable doubt on the evidence presented.  

Order

46.	I make the following order:

The accused Mr Garry Paya is found guilty as charged and is convicted on one count of Unlawful Use of Motor Vehicle contrary to section 383 (2) of the Criminal Code.

Verdict accordingly. 

________________________________________________________________
Public Prosecutor: 	Lawyer for the State              
Public Solicitor:	Lawyer for the Accused