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Angie, Regina v [1969-70] PNGLR 36 (15 March 1969)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 36 - Regina v Angie-Ogun

[1969-70] PNGLR 36

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

ANGIE-OGUN

Goroka

Ollerenshaw J

14-15 March 1969

CRIMINAL LAW - Receiving stolen property - Time of acquisition of knowledge that goods stolen - Decision to exercise control over goods not in physical possession of receiver - Inadmissibility of conviction of theft on trial of receiver - Accessory after the fact to theft - Intention necessary to make receiver accessory - The Criminal Code, ss. 10[xxxvii]¹, 433[xxxviii]2, 544[xxxix]3 .

To constitute the offence of receiving under s. 433 of The Criminal Code knowledge that the goods have been stolen must be present in the mind of the accused at the time when the act of receiving occurs. However, if a person is informed that goods have been hidden or otherwise left in his room he may thereafter receive the goods without actually handling them. If he decides to keep the goods under his control and exercise that control at a later date the act of receiving would occur when the decision to retain was made.

R. v. Johnson (1911), 6 Cr. App. R. 218; R. v. Tennet, [1939] 1 All E.R. 86; Balogh v. The Queen (1955), 72 W.N. (N.S.W.) 108; R. v. Curlija, [1967] S.A.S.R. 1, referred to.

Quaere the nature of the acts necessary to constitute a fresh act of receiving or to complete an incomplete receipt of goods.

Proof of the conviction of the thief is not evidence on the trial of the receiver that the goods were stolen.

R. v. Dawson[1961] VicRp 117; , [1961] V.R. 773, distinguished.

The common law authorities apply in determining whether a person is an accessory after the fact under s. 10 of The Criminal Code.

R. v. Levy[1911] UKLawRpKQB 180; , [1912] 1 K.B. 158; R. v. Butterfield (1843), 1 Cox C.C. 39; and R. v. Barlow (1962), 79 W.N. (N.S.W.) 756, applied.

A person who carries out the instructions of a thief to dispose of stolen goods either by throwing the goods away or by hiding them with the intention of assisting the thief to escape detection may become an accessory after the fact to the theft even though he may also have had the purpose of making gain for himself and of avoiding his own detection.

R. v. Andrews & Craig (1963), 47 Cr. App. R. 32 and R. v. Tevendale[1954] VicLawRp 90; , [1955] V.L.R. 95, followed.

B stole some money and jewellery and placed them in the room of his brother A. On the following day B informed A that the goods had been placed in A’s room. In a further conversation on the next day A acquired clear knowledge that the goods were stolen and was instructed by B to throw them away. A then proceeded to his room, disposed of the jewellery by throwing it into a river and hid the money in a packet of soap powder.

Held:

On the facts, that A acquired knowledge that the goods were stolen during the first conversation so it was immaterial whether the receiving took place after the first or second conversation. However, as A’s reaction after the first conversation was that he did not want to have anything to do with the stolen goods and this attitude did not change until the second conversation, A did not receive the goods until the second conversation took place by which time he had specific knowledge that the goods were stolen.

Criminal Trial.

Angie-Ogun was charged under an indictment containing two counts: first, that on or about 19th September, 1968, he received fifteen foreign coins, one purse, two earrings, one necklace and two lady’s rings, the property of Madame Jolivet which had then lately been stolen and that he then knew that the said items had been so stolen; and second, that well knowing that one Bono-Ogun had stolen the said items on or about 19th September, 1968 he assisted Bono in order to enable him to escape punishment. The learned trial judge directed that a plea of not guilty be entered on each count. The relevant facts appear in the reasons hereafter.

Counsel:

Waight, for the Crown.

Williams, for the accused.

Cur. adv. vult.

15 March 1969

OLLERENSHAW J:  To my mind, the issues raised in this trial readily admit of simple solution. This may well be because each counsel has conducted and argued his case extremely well, the onus being upon Mr. Waight for the Crown, and Mr. Williams for the defence having, perhaps, the harder row to hoe.

The accused stands charged in an indictment containing two counts. In the first count it is alleged that on or about 19th September, 1968, he received fifteen foreign coins, one purse, two earrings, one necklace and two lady’s rings, the property of Madame Jolivet, which had then lately been stolen, and that he then knew that the said items had been so stolen. The second count alleges that the accused man, well knowing that one Bono-Ogun had stolen those same items, on about 19th September, 1968, assisted Bono in order to enable him to escape punishment.

Upon being carefully arraigned under both counts, the accused man in effect pleaded guilty to each charge. However, upon the application of his counsel, and the Crown not objecting, I granted leave for pleas of not guilty to be entered. I, therefore, in accordance with my practice entirely disregard what the accused man said in response to the arraignments. The onus in this trial throughout is upon the Crown to satisfy me beyond all reasonable doubt.

It is expressly not disputed and, in any event, I am entirely satisfied that the items mentioned in the indictment were at all relevant times and indeed still are the property of Madame Jolivet. I do not understand it to be disputed but in any event I am completely satisfied that those items were stolen from Madame Jolivet, from her house, on 17th September, 1968, by Bono-Ogun who happens to be a brother of the accused man and had been employed as a domestic servant at her house until late in August, 1968.

I should refer to the fact that evidence was led in this trial as to the conviction of Bono for stealing these items on the day I have mentioned, the Crown relying upon the decision of the Full Court of Victoria in the case of R. v. Dawson[xl]⁴, which is mentioned in Carter’s Criminal Law of Queensland, 2nd ed. (1965), p. 105, in support of the submission that the conviction of the thief was itself evidence, prima facie evidence, against the receiver. However, this was the case of an accessory after the fact, of assisting the principal offender in order to enable him to escape punishment and Lowe and Smith JJ. cited a long line of authority which shows that it has long been established that upon such a charge proof of the conviction of the principal offender is admissible against the accused person and constitutes prima facie evidence that the felony was committed by the principal. But that law does not apply in a case of receiving and does not apply to the charge in the first count in this indictment. In Halsbury’s Laws of England, 3rd ed., vol. 10, at p. 813 it is stated:

“If the thief has been convicted on his own confession or otherwise, proof of his conviction is not evidence, on the trial of the receiver, that the goods were stolen.”

However, there is other evidence in this trial—there is the evidence of Madame Jolivet herself. There is the statement of the accused man, which he made to Inspector Robinson on 25th September, 1968, and there are the circumstances in which the accused man received these goods. I may mention here that it is not disputed that he did receive them, although there is a contest as to the date upon which he received them. I am completely satisfied that he did receive them, and I will deal with the contest later. It is stated in Halsbury in the same edition and volume at p. 812:

“There must be proof that the goods were stolen or obtained in circumstances which amount to felony or misdemeanour, but the circumstances in which a person charged with receiving received the goods may of themselves establish this. It is not a rule of law that there must be other evidence of the theft.”

I would be completely satisfied upon the evidence of Madame Jolivet and upon the evidence provided by the accused’s statement that the goods were stolen from her by Bono and then in addition, and to confirm this, there are the circumstances in which the accused man received them: The surreptitious conduct of Bono in putting them in a meat tin in his room, the very nature of the articles, which would not of course be such articles as a native would have in his possession honestly acquired, either by purchase or gift.

I come now to the matter of when these goods were received by the accused man and when he had the guilty knowledge that they were stolen. The accused man had a room to himself in the police barracks at Goroka where he was, and had been for some time, employed as a cook and there is no doubt and it is not disputed that his brother Bono, having stolen the goods on Tuesday 17th September last year, then took them to the accused man’s room unbeknown to the accused man. As he said to him on the Wednesday, the day after he had stolen them, he put them in a meat tin in the accused’s room. On 25th September, 1968, the accused man made a statement to Inspector Robinson which is in evidence as Ex. “B” and is relied upon both by counsel for the Crown and by counsel for the accused man. It is in these terms, in so far as is relevant:

“Last Wednesday I saw my brother Michael at the Market.” (That is Wednesday 18th September.) “He told me he had put something in a meat tin in my room and that he wanted to go to Bena. I didn’t look in the meat tin on Wednesday but on Thursday I went to Bena with the police and when I saw Michael he asked me if I had thrown the things away. I told him I hadn’t seen them. He then said that I had better throw them away and I told him that I worked in the police barracks and didn’t want to get into trouble for something he had stolen. I was cross with him. Later that date I went to my room at the police barracks and found two earrings, a necklace, two rings and some money in it. I took the money out and hid it in a soap packet in the room because I thought it was important I threw the other things away in the river near the hospital.”

It is accepted by both sides that these goods were placed in the room of the accused unbeknown to him on the day they were stolen, that is 17th September, and that he was told of this, of the fact that they had been put there, by Bono on the Wednesday which as I have said was 18th September, the day after the theft and the placing of the goods in the accused’s room.

Counsel for the accused man has argued that when the accused was told by Bono that he had put the goods in his room, then, since they were in his room with his knowledge and, counsel says, sanction, he then received them. Counsel argued further that at that time the accused man had no guilty knowledge that the goods had been stolen, and so relying upon a long line of authority—see, e.g. Halsbury’s Laws of England, 3rd ed., vol. 10, par. 1574, at p. 813; R. v. Johnson[xli]⁵, R. v. Tennet[xlii]⁶ and Balogh v. The Queen[xliii]⁷ —he says that the accused man cannot be convicted of receiving because when he first received the goods he didn’t know they had been stolen and it matters not that he retained them after obtaining this knowledge, or, indeed, that he fraudulently appropriated them after this time. He relies upon what appears expressly from the statement to the effect that it was not until the following day that the thief, his brother, told him that he had stolen them.

Counsel for the Crown says two things in answer to that. He says that there was no receiving of these goods until the next day, the Thursday, when, after, as it appears from the statement, the accused man certainly did know that they were stolen, he went to them and took them in his hands for the purpose of disposing of them. (It is good law that: “It is immaterial whether the accused received the goods for profit, or merely to assist the thief, or for the mere purpose of concealment.” See Halsbury’s Laws of England, 3rd ed., vol. 10, par. 1570, at p. 812.) Counsel also argues that if he is wrong in this and there was an earlier receipt of the goods, then this conduct of the accused in going to the goods and handling them and having them in his possession with the intention of disposing of them and then disposing of them by hiding the coins by mixing them up with the powder in a packet of Rinso, which he kept or put under the cupboard in his room, and, in accordance with the instructions of his brother Bono, by throwing the other items into the river amounted to a fresh receipt with guilty knowledge.

In support of his first submission, counsel for the Crown says that merely having the goods in his room with knowledge that someone else had put them there did not amount to a receipt of the goods and that receipt did not take place until the accused man having, in a sense, de facto control of the goods because they were in his room, made up his mind to exercise that control and did exercise it by taking the goods in his hands and so on. He relies upon the decision of the Full Court of South Australia in. R. v. Curlija[xliv]⁸ .

In support of his other submission counsel for the Crown relies upon R. v. Johnson[xlv]⁹ and Balogh v. The Queen[xlvi]¹⁰ . It was said by Grantham J., speaking for the Court of Criminal Appeal in R. v. Johnson (6) and approved by the Full Court of New South Wales in Balogh v. The Queen (7):

“The innocent receipt of a chattel and its subsequent fraudulent appropriation do not constitute the crime of larceny, and in the same way the innocent receipt of a chattel, and a subsequent dishonest appropriation of it after knowledge that it is stolen, do not constitute the crime of receiving unless something takes place after the guilty knowledge which can be regarded either as a fresh act of receiving or as completing the original receiving if the latter was in fact incomplete at the time”[xlvii]¹¹ . (The italics are mine.)

I am strongly inclined to agree with counsel for the Crown that the accused man did not receive these goods on the Wednesday when he was informed that they had been planted in his room and that he did not receive them until he took them in his hands on the next day, the Thursday. Nevertheless, I apprehend that a person who is informed that goods have been hidden or otherwise left in his room or house may thereafter receive them in a number of ways without actually handling them. Such a person may, for example, decide to leave the goods where they have been put until police interest has waned with the intention, then, to dispose of them to his gain. Time, in some cases, would be an important factor but it is not in this trial. A person may decide to keep the goods under his control and exercise that control at a later date. In such a case there could be a receiving without a handling of the goods: See generally the cases cited at pp. 4 and 5 of the report of R. v. Curlija[xlviii]¹² . In this case of Angie, I think that his first reaction to the information from his brother Bono was that he did not wish to have anything at all to do with the stolen goods and that this attitude did not change until his meeting with Bono and the police on Thursday. This leads me to say that I do not think that the accused man received the goods until Thursday after the time at which it is admitted that he had knowledge that they were stolen.

I would also like to agree with counsel for the Crown that the acts of the accused in relation to the goods on Thursday constituted a fresh receiving or the completion of an incomplete receiving even if there were a receipt or a partial receipt, as the case may be, before the time when he handled the goods. However, the cases upon which counsel relies, namely R. v. Johnson[xlix]¹³ and Balogh v. The Queen[l]¹⁴ throw no light upon the nature of the acts required to constitute a fresh receiving or the completion of an incomplete receipt, and it must be remembered that a fraudulent appropriation after an innocent receipt is not sufficient. I do not think that the occasion warrants research beyond that of counsel for the Crown and for my part the question will remain for further consideration.

In my view the question of whether the goods were received on the Wednesday or the Thursday is merely academic because of a finding upon the facts which I feel compelled to make. This finding is that on the Wednesday when Bono told the accused man that he had planted the goods in his room he also told him or clearly indicated to him, in all the circumstances, that the goods were stolen. This would be the natural and probable time for Bono to tell the accused that the goods were stolen and it appears, in confirmation of this, that when the accused met Bono next day Bono asked the accused man if he had thrown the goods away. Why should he have done this if the instructions to throw the goods away were not given contemporaneously with the information that the goods had been planted in the accused man’s room? And why would Bono tell the accused man to throw them away without indicating the danger arising from their possession as stolen goods? I think it is likely that the accused man was telling the truth in his statement when he indicated that he had not looked at the goods on the Wednesday or on the Thursday before his meeting with Bono that day because, up to that stage, he did not wish to have anything to do with the stolen goods. I have no hesitation in finding that the accused man knew from the time he was told that the goods were in his room that they were stolen and it follows that he had this guilty knowledge whenever it was that he received the goods. There will be a verdict of Guilty upon the first count.

I come now to the second count: s. 544 of the Code makes it a crime to be an accessory after the fact to a crime and s. 10 provides:

“10.    A person who receives or assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is said to become an accessory after the fact to the offence.”

I think that the common law authorities apply under the Code. In R. v. Levy[li]¹⁵ Alverstone L.C.J., delivering the judgment of the Court, said:

“In Hawkins’ Pleas of the Crown . . . the author says . . . ‘what kind of receipt of a felon will make the receiver . . . an accessory’ ”[lii]¹⁶.

There the words ‘receipt of a felon’ are used, indicating what the meaning of ‘receipt’ was.

“ ‘. . . . It seems agreed that, generally, any assistance whatever given to one known to be a felon, in order to hinder his being apprehended or tried or suffering the punishment to which he is condemned, is a sufficient receipt for this purpose.’ “[liii]¹⁷.

In R. v. Butterfield[liv]¹⁸ Maule J. said:

“I think there is evidence of comforting and assisting, which would make the prisoner an accessory after the fact. If a man stole a horse, and another assisted him in colouring and disguising him, so that he could not be known again, that would make him an accessory. Here the prisoner assists the party who has stolen the goods to get rid of them, and thus evade the justice of the country.” (The italics are mine.)

Cross D.C.J., who cited these cases in R. v. Barlow[lv]¹⁹ added (inter alia):

“And if the thief has also stolen a lady’s watch and tells his mistress that the watch is stolen and gives it to her as a present, the mistress is still not an accessory after the fact to the theft. She has committed the independent substantial crime of receiving. If, however, the thief had handed the watch to his mistress telling her of its theft and asking her to conceal it as the police might search him, and she does so, then she becomes an accessory after the fact to his theft because she has done the act ‘for the purpose of assisting the principal to escape conviction’. (The quoted words appear in Archbold Criminal Pleading Evidence and Practice, 34th ed. (1954), p. 1558.)”[lvi]²⁰.

These are some of the authorities from the common law in relation to this offence and I have cited them here because I do not think that there is any case of assisting a felon in order to enable him to escape punishment already appearing in our Reports.

Counsel for the accused man relies upon one point and one point only and this he has strongly pressed. He invites my attention to the facts that the accused was a man who previously had not been involved in any criminal trouble and who worked for the police and lived in the police barracks. He urges that his purpose in disposing of the goods was to protect and secure himself without concern for his brother’s position. He did not wish to be found in possession of stolen goods because of his position. This argument overlooks the undisputed fact that the accused kept the coins, which he probably thought were negotiable, in his possession, hiding them in his packet of Rinso under the cupboard in his room. In doing this I consider that the accused man was prepared to run the risk of discovery in the hope of personal gain albeit that he might have to share that gain with his brother. He may, of course, have intended to keep the gain for himself. Nevertheless, in carrying out his brother’s general instructions to dispose of the goods; in hiding the coins mixed with Rinso in what he thought was a secure condition and place and, in respect of the rest of the goods, in throwing them in the river in pursuance of the particular instructions to throw the goods away, I have no doubt that the accused man had the purpose of assisting his brother to escape detection and punishment and that he did so assist him notwithstanding that his assistance was unsuccessful. In these circumstances, it matters not that the accused man may also have had the purpose of making gain for himself and the purpose of avoiding his own detection: R. v. Andrews and Craig[lvii]²¹ and R. v. Tevendale[lviii]²².

There must also be a verdict of Guilty upon the second count.

Verdict of Guilty on each count.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the accused: W. A. Lalor, Public Solicitor.

[xxxvii]Infra, at p. 43.

[xxxviii]Section 433 of The Criminal Code provides, so far as is relevant:

“Any person who receives anything which has been obtained by means of any act constituting an indictable offence . . . knowing the same to have been so obtained, is guilty of a crime. . . .”

[xxxix]Section 544 of The Criminal Code provides as follows:

“Any person who becomes an accessory after the fact to a crime is guilty of a crime....”

[xl][1961] V.R. 773.

[xli](1911) 6 Cr. App. R. 218.

[xlii][1939] 1 All E.R. 86.

[xliii](1955) 72 W.N. (N.S.W.) 108.

[xliv][1967] S.A.S.R. 1.

[xlv](1911) 6 Cr. App. R., at p. 220.

[xlvi](1955) 72 W.N. (N.S.W.) 108.

[xlvii](1955) 72 W.N. (N.S.W.), at p. 109.

[xlviii][1967] S.A.S.R. 1.

[xlix](1911) 6 Cr. App. R. 218.

[l](1955) 72 W.N. (N.S.W). 108.

[li][1912] 1 K.B. 158.

[lii][1912] 1 K.B., at p. 160.

[liii][1912] 1 K.B., at pp. 160, 161.

[liv] (1843) 1 Cox C.C. 39, at p. 40.

[lv](1962) 79 W.N. (N.S.W.) 756.

[lvi](1962) 79 W.N. (N.S.W.), at p. 757.

[lvii](1963) 47 Cr. App. R. 32.

[lviii][1954] VicLawRp 90; [1955] V.L.R. 95.