Kokop v Kapale [1997] PGDC 14; DC23 (29 December 1997)

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CRIMINAL LAW - possession of a firearm without licence - search of vehicle without warrant - belief on reasonable grounds - whether Defendant had knowledge of existence of pistol in glove box - circumstantial evidence.

N1>[1] The Defendant was charged under s27(1)(a) of the Firearms Act (Chapter 310) with being in possession of a loaded pistol without a licence. The weapon was found inside a small white bag in the glove box of a vehicle being driven by the Defendant at the relevant time.

N1>[2] The Informant was the prosecution's main witness. He is a policeman attached to the Task Force Office based at Gordons. His evidence is properly supported by further oral testimony from two of his colleagues. Their sworn oral testimony is that on 11 November 1997, at about 3.55pm they saw a tinted maroon sedan along Gerehu Drive and decided to search it. In the process, the Informant found a white bag containing the pistol inside the glove compartment.

N1>[3] The witnesses further stated that the Defendant was questioned and admitted that he did not have a firearm licence but that the pistol as well as the vehicle belonged to his boss, Tembo Kune, who manages the Lahara Service Station. When asked about the pistol the Defendant denied having knowledge of it being in the vehicle. In cross-examination the Informant said this:

N1>[4] Later that day, ownership of the firearm and the vehicle was confirmed by the Informant. Likewise, it was also confirmed that the Defendant was employed at the said Service Station. This was the prosecution's case.

N1>[5] The Defendant stated in his evidence that he went to Gerehu to drop off his boss' school children and was apprehended and searched whilst he was proceeding back to Lahara Service Station. His explanation to police at the scene was: "They asked me about the car and I said - it belonged to my boss. On the pistol, I said it belonged to my boss".

N1>[6] Tembo Kune gave evidence for the defence. His evidence is that he returned to the Service Station at about 2.30pm after picking up his two children from school, and, because they had fallen asleep, he asked the Defendant to drop them off at Gerehu Stage 5. The car engine was still running when the driver got into the vehicle. The driver would have left at 2.45pm. At about 3.45pm he received a phone call from the Task Force Office, Gordons, about the arrest of the Defendant. He confirmed his ownership of both the vehicle and the pistol. He also confirmed that the Defendant was his employee. After the conversation two policemen drove to the Service Station and returned his vehicle. He was then cautioned about "...leaving arms in other people's possession. I didn't do that but I accepted the caution".

N1>[7] When queried during cross-examination on whether his employees knew about the firearm the witness said it was common knowledge that he had one but he never told his employees where he used to keep and hide it. In a place like Port Moresby this is a reasonable answer. It would be unwise to expose a dangerous weapon, particularly in his situation, where he was in a managerial position and exercising power and control over others/employees. As well as that, I have no reason to disbelieve him. This was the defence case.

N1>[8] In the course of the trial a minor legal issue was raised by the defence which I would like to deal with first. Counsel objected to the tender of the pistol and the cartridges, presumably, on the basis that police did not have the necessary search warrant, and; alternatively, if they had the power to search without a warrant, that there were no reasonable grounds for the exercise of such powers.

N1>[9] The relevant police power to search a vehicle without a warrant is provided for under s5(2) of the Search Act (Chapter 341). The section reads:

N2>"(2) Where a policeman believes on reasonable grounds that a person has in a vehicle that he is using at the time, a firearm or other offensive weapon, he may search the vehicle for the firearm or offensive weapon and, where applicable, exercise the power of seizure under Section 10(2)."

N1>[10] Here is a discretionary power to search without a warrant which must be exercised only when a policeman has reasonable grounds to believe that a firearm is in a vehicle. In this matter, the vehicle was heavily tinted and there were two persons (including the Defendant) inside the vehicle. These, as explained by the Informant, were the basis for the decision to search without a warrant. Prima facie, these factors alone may not satisfy the requirement for the belief on reasonable grounds.

N1>[11] I was of the view, however, that it is probably unwise for a magistrate to hastily jump to conclusions in a situation like this one. In every profession and trade a person may develop tricks, techniques and instincts that make him more sharper and competent in his career. Hence, sometimes we just have to rely on the instincts of a policeman in situations such as this. After all, what sense is there in challenging the legality of the search when, indeed, a loaded pistol was discovered.

N1>[12] In my view, therefore, in determining the question of belief on reasonable grounds under s5(2) the court must consider all the circumstances of each case, including the nature of the seized property. Where a firearm, licensed or otherwise, is found in a vehicle in the course of such search the policeman conducting the search must be deemed to have satisfied the statutory prerequisite of having the necessary belief on reasonable grounds before the search was conducted.

N1>[13] For the foregoing reasons, both the pistol and the cartridges were admitted into evidence.

N1>[14] The main issue, of course, is whether the Defendant knew of the existence of the loaded pistol in the glove compartment? The only direct evidence of the glove box being opened was during the search. There was no direct evidence of the Defendant opening the compartment. The prosecution's case was that the Defendant was driving the vehicle and was able to correctly identify the pistol as that belonging to his boss. In the circumstances, the Defendant must have known about the pistol in the car.

N1>[15] The law as to circumstantial evidence is clearly stated by Miles J in The State v Tom Morris [1981] PNGLR 493 and agreed to by Andrew J in the Supreme Court decision of Paulus Pawa v The State [1981] PNGLR 498 at 501. His Honour Miles J said at 495:

"I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v. The Queen [1975] HCA 42; (1975) 50 ALJR 108 at p. 117:

'When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are "such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused": Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619 at p. 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be "the only rational inference that the circumstances would enable them to draw": Plomp v. The Queen [1963] HCA 44; (1963) 110 CLR 234 at p. 252; see also Thomas v. The Queen [1960] HCA 2; (1960), 102 CLR 584, at 605-606. However, "an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence": Peacock v. The Queen at p. 661. These principles are well settled in Australia.'"

N1>[16] Bearing the relevant law in mind, the prosecution's contention that the Defendant, as the driver, must have known about the pistol inside the glove box, is a practical possibility but it is not so air tight. What about the undisputed evidence that the pistol and the vehicle belonged to someone else, and; that 'someone else' is his boss as opposed to a friend? How long was the Defendant using or driving the vehicle? What is wrong with the Defendant's explanation at the scene that he did not know about the pistol being inside the glove box? Only the Defendant was charged. The offsider was not. Why? There is no evidence that the offsider was questioned at the scene. Again, why? The offsider might have assisted us on whether the Defendant opened the glove box or whether the Defendant made any mention of the pistol to the offsider?

N1>[17] These weaknesses are identifiable without any consideration of the defence case. At the hearing it was apparent from defence counsel's cross-examination that calling the Defendant to give evidence would not change a thing. The Defendant was, however, called to present his case and I decided then to deliver a written judgment so that the prosecution's witnesses may, with due respect, learn something to sharpen up their skills.

N1>[18] The defence case, as expected, did not enhance the prosecution's case at all. This is largely due to the fact that the prosecution is not in a position to rebut any evidence adduced by the defence; and the court has no factual reason to disbelieve the defence witnesses.

N1>[19] Tembo Kune, for instance, gave evidence impressively. From the short time in the witness box I consider him to be an honest man. Indeed, the man fits well with his description as "boss". The Defendant's evidence also stands uncontradicted and is consistent with the Informant's evidence on what transpired at the scene. It is also consistent with Tembo Kune's evidence.

N1>[20] At the end of the day, upon consideration of all the evidence (even if I am wrong in criticising the prosecution's case), it also remains a practical possibility, as opposed to a mere conjecture, that the Defendant never opened the glove box and did not see the pistol in the white bag. In criminal law you are entitled to doubt when you find yourself in the midst of multiple compatible conclusions.

N1>[21] I find the Defendant not guilty of the charge and discharge him forthwith. His bail shall be refunded to him. The pistol and cartridges are to be returned to Tembo Kune at once.

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Papua New Guinea District Court

Kokop v Kapale [1997] PGDC 14; DC23 (29 December 1997)

Unreported District Court Decisions