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Popo, The State v [1977] PNGLR 18 (7 February 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 18 - The State v Alpen Popo 

[1977] PNGLR 18

N79

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

ALPEN POPO

Waigani

Frost CJ

3-4 February 1977

7 February 1977

CRIMINAL LAW - Particular offences - Breaking and entering - Doctrine of recent possession - Accused found in possession of stolen property soon after breaking and entering - Whether verdict of breaking and entering a dwelling house open on the evidence.

Where an accused is charged with breaking and entering a dwelling house and the evidence against him is that soon after the breaking and entering he is in possession of the property, that is sufficient evidence from which it can be inferred that he is the housebreaker.

James Loughlin (1951) 35 Cr. App. R. 69 per Lord Goddard adopted and applied. R. v. Seymour [1954] 1 All E.R. 1006 and R. v. Roach[1921] ArgusLawRp 68; , [1921] V.L.R. 424 (sub nom) R. v. Bromage [1921] ArgusLawRp 68; (1921) 43 A.L.T. 53, 27 A.L.R. 267 referred to.

Where the accused gives an explanation of the property coming into his possession, and where that explanation raises a doubt whether or not he knew the property was stolen, the case has not been proved beyond reasonable doubt and the accused is entitled to be acquitted.

R. v. Garth [1949] 1 All E.R. 773 at p. 774 adopted and applied. Isaac Schama and Jacob Abramovitch [2010] EWCA Crim 370; (1916) 2 Cr. App. R. 45 referred to.

Held

Accordingly, that where the accused had been found in possession of stolen goods within a mile of the house from which, and on the night that, the goods were stolen, and when stopped by the police had proceeded to run away, and further had given conflicting statements; and a claim to the police that the property belonged to him being patently false, a verdict of guilty of breaking and entering a dwelling house should be entered.

Trial

This was the trial of an accused on a charge of breaking and entering a dwelling house, in which the principal evidence against the accused was that soon after the breaking and entering he was found in possession of the stolen property. Counsel for the accused submitted that this evidence was insufficient proof of the charge.

Counsel

B. M. Ryan and K. Bona, for the State.

B. M. Narokobi, for the accused.

Cur. adv. vult.

7 February 1977

FROST CJ: The accused is charged upon indictment that on or about 5th November, 1976 in Papua New Guinea he broke and entered the dwelling house belonging to a Mr. C. A. Maurice Bryan and therein stole a large quantity of clothing belonging to Mr. Bryan.

At about 4 p.m. on the 5th November Mr. Bryan left his house. Next morning when he returned at about 10 a.m. he found that his dog, which he had left inside the house, was outside and at the rear some security wire and fly wire had been pulled aside. Five louvres were broken and broken glass was lying both inside and outside the house. Much of his clothing was missing. It is plain that the house had been broken and entered through the aperture in the glass thus enabling the thief to steal the property, and the only question in the case is whether the State has proved beyond reasonable doubt that it was the accused who committed the offence.

The accused was apprehended at about 5.45 a.m. on the 6th November when he was stopped by the Sector Patrol in Queenscliffe Road, Korobosea making his way in the direction of the Y.W.C.A. He was carrying what appeared to be a large bundle wrapped in a sheet. He was then about one mile from Mr. Bryan’s house. When Constable Banjui, who was one of the two constables in the police vehicle, asked the accused if he could check what was in the sheet the accused suddenly dropped the bundle and ran. He was chased by the constables who, with the aid of civilians, finally caught him. The bundle was found to contain Mr. Bryan’s clothing, the subject of the charge, wrapped up in a mattress cover. Constable Banjui gave evidence that before taking him to the police station he asked the accused where he got the clothes to which the accused replied that his employer had chased him off the premises and he was taking the clothes to his house. Asked whose clothes they were, he said, “they are mine”. When asked who was the accused’s employer the accused did not reply, and when asked where his employer lived he merely pointed in a general direction. Later in his record of interview the accused gave quite a different account. He said he found the clothes lying on the road. His account of his movements was that he had been drinking with three Chimbu men at the Boroko Hotel on the previous day. At about 9 o’clock they all walked to their house. He did not know their names. He had met them merely at the hotel. They were selling beer at their house and all were drinking. In a drunken condition he left this house at about daybreak.

I have scrutinized with care Constable Banjui’s evidence as to the conversation that I have set out, as in cross-examination he resiled from his initial evidence that at the time when he first stopped the accused and questioned him before he ran away, the accused said that the clothes were his. But there is some evidence that the constable’s account is not the subject of recent invention because in the record of interview taken on the 8th November, 1976 by Constable Nongonaik it was put to the accused that at the time when the police found him he had said that he had got the clothes from his master’s house, which the accused denied. On the whole, having heard the accused, who was called to give evidence on his own behalf and who did not impress me, I accept the evidence of Constable Banjui that the conversation did take place.

In fact the accused, who comes from Wabag, was known to Mr. Bryan, for he had employed him for a short period during July, 1976. The accused was dismissed because Mr. Bryan took objection to the accused going out of his way to make a friend of the dog who was by nature averse to strangers, conduct which Mr. Bryan thought strange, and also because the accused did not turn up for work.

The State case is based upon the so-called doctrine of recent possession. The doctrine was explained by Griffith C.J. in Trainer v. The King[xiii]¹ as follows:

“It is a well known rule that recent possession of stolen property is evidence, either that the person in possession of it stole the property, or received it knowing it to have been stolen, according to the circumstances of the case. Prima facie, the presumption is that he stole it himself, but if the circumstances are such as to show it to be impossible that he stole it, it may be inferred that he received it, knowing that someone else had stolen it.”

But Mr. Narokobi submitted that proof that the accused was found in possession of recently stolen property is insufficient proof of a charge of housebreaking. He submitted that statements in outside authorities supporting such a rule were merely obiter. The common law rule is as stated by Lord Goddard in James Loughlin[xiv]², which was followed in R. v. Seymour[xv]³. This is the same view of the law as was taken by the Full Court of the Supreme Court of Victoria in R. v. Roach[xvi]⁴; R. v. Bromage[xvii]⁵ where convictions of the appellants for shop breaking were upheld when the only evidence was that each of the prisoners was found in possession of certain articles which had been stolen ten days previously from a shop in the country town of Warragul about sixty miles away, and each of them gave an untrue account of how he came to be in possession of the articles. See also R. v. Short, Grealey, and Plint[xviii]⁶. This is what was said by Lord Goddard in James Loughlin[xix]⁷:

“Now, it is too often the case, where a man is charged with house-breaking and the evidence against him is that soon after the breaking and entering he is in possession of the property, that the Court directs the jury that there is no evidence that he broke and entered and tells the jury to concentrate on the receiving. That is not the law. If it is proved that premises have been broken into, and that certain property has been stolen from those premises, and that very shortly afterwards a man is found in possession of that property, that is certainly evidence from which the jury can infer that he is the housebreaker or shop-breaker and; if he is, it is inconsistent to find him guilty of receiving, because a man cannot receive from himself. That is what is so often done. It is perfectly good evidence of the prisoner being the housebreaker that he is found in possession of property stolen from a house quite soon after the breaking.”

It will be noted that Griffith C.J. referred to the common rule as being a presumption. It can be no more than a presumption of fact (Carter’s Criminal Law of Queensland, 4th ed., p. 322). But, as stated by Professor Howard, possession of recently stolen property is really no more than one of the many items of evidence which may be adduced by the prosecution. Australian Criminal Law, Howard, 2nd ed., p. 234. As the learned author indicates, it is because it is one of the more usual circumstances relied on by the prosecution, that possession of recently stolen property has been referred to in more elaborate terms. As stated by Lord Goddard, in my opinion the significance of such evidence is entirely applicable and appropriate to the circumstances of Papua New Guinea (Constitution Sch. 2.2.(1)). In the application of the rule the onus of satisfying the tribunal of fact of the accused’s guilt always rests with the prosecution; it never changes. Isaac Schama and Jacob Abramovitch[xx]⁸. Where the accused gives an explanation of the property coming into his possession, the proper direction has been stated as follows:

“Possession of property recently stolen where no explanation is given is evidence which can go to the jury that the prisoner received the property knowing it to have been stolen, but, bearing in mind that the onus is always on the prosecution, if the prisoner gives an explanation which raises a doubt in the minds of the jury whether or not he knew the property was stolen, the ordinary rule applies, the case has not been proved to the satisfaction of the jury, and he is entitled to be acquitted. A proper direction to the jury would be: ‘If the prisoner’s account raises a doubt in your minds, then, of course, you ought not to say that the case has been proved to your satisfaction.’ “ R. v. Garth[xxi]⁹ per Lord Goddard explaining Isaac Schama and Jacob Abramovitch[xxii]¹⁰, in a case where the charge was receiving. I would also adopt this statement as applicable to Papua New Guinea.

In a strong submission the State Prosecutor relied on the fact that the accused had been found in possession within a mile of the house on the night that the goods were stolen and when stopped by the police had proceeded to run away, and further that the accused had made conflicting accounts and that his claim to the police that the property belonged to him was patently false. He further submitted that it would be a remarkable coincidence that the accused, who had been a former employee of Bryan and who was thus familiar with the house, should have been found in possession of property of his former employer stolen by another party.

I have taken into account Mr. Narokobi’s submissions that finger prints should have been taken, but it appears that no satisfactory prints were available. I do not accept the accused’s account that he was beaten by the police, a matter not put to the police in cross-examination.

On all the facts of this case, particularly having regard to the accused’s conflicting statements, I am quite unable to accept his explanation that he found the clothing lying on the road as one that may reasonably be true. It does not raise a doubt in my mind, and the State has satisfied me beyond reasonable doubt that it was the accused who committed the offence, each of the elements of which have also been proved. I therefore find the accused guilty as charged.

Verdict of guilty of breaking and entering a dwelling house.

Solicitor for the State: K. B. Egan, Acting Public Prosecutor.

Solicitor for the accused: W. J. Andrew, Acting Public Solicitor.

[xiii][1906] HCA 50; (1906) 4 C.L.R. 126 at p. 132.

[xiv](1951) 35 Cr. App. R. 69.

[xv][1954] 1 All E.R. 1006.

[xvi][1921] V.L.R. 424.

[xvii](1921) 43 A.L.T. 53; 27 A.L.R. 267.

[xviii][1928] Q.S.R. 246; 22 Q.J.P.R. 108.

[xix](1951) 35 Cr. App. R. 69.

[xx](1916) 2 Cr. App. R. 45.

[xxi] [1949] 1 All E.R. 773 at p. 774.

[xxii][2010] EWCA Crim 370; (1916) 2 Cr. App. R. 45.