Police v Pokaem [2000] PGDC 48; DC323 (29 October 2000)

DC323

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 97 OF 2000

Police
Complainant

V

Las Pokaem
Defendant

Mt. Hagen: M. M. Pupaka
2000: 14th, 29^th August

29th October

Criminal Law – Particular offence – Stealing –Evidence indicate probable offence of Obtaining by False Pretence –Criminal Law – Burden of proof – State’s duty – Inconsistency and contradiction in evidence of State witnesses – Conviction unsafe – Criminal Law – Need to ask unfriendly witnesses to be declared hostile witness – Failure is failing to discharge onus incumbent upon the State.

Counsel
Sergeant Piaku for the Prosecution
The Accused in person

12th November 2001

M. PUPAKA, PM: The accused Las Pokaem, aged 24 of Kelua No. 2 Village, is charged that he, on the 09th of June 2000 at Mt. Hagen, stole K1000.00 belonging to one Senis Yak, which is contrary to section 372 (1) of the Criminal Code Act chapter No. 262 (the Code).

The accused entered a not guilty plea and in the trial the prosecution called 4 witnesses, (on the 14th & 29th of August 2000). The matter was adjourned to the 29th of September 2000, for the defence case. However the accused failed to turn up in Court, either on the 29th of September 2000 or any other time, and had been on the run until he was arrested over a separate offence around August this year (2001). He testified in his own defence on the 29th of October 2001. He called no other witnesses.

The State case

The State evidence is that three men, one of them the complainant, wanted to hire a vehicle to go to Mendi to bring down a pig to sell in Mt. Hagen. They initially wanted to hire a vehicle at the Lama Rent A Car rental agency. However, they met the accused, who is a reserve policeman at the Kagamuga Police Station. Apparently one of them knew the accused so they explained their need to hire a vehicle to the accused. The accused then advised them that he would arrange for the hire of a suitable vehicle from Pacific Hires Pty Ltd. Indeed he proceeded to arrange for the hire of one Toyota Landcruiser vehicle from Pacific Hires Pty Ltd. He came back and informed the complainant and friends that they would need to pay in K2000.00 for a day’s hire.

The complainant and his friends came up to Mt. Hagen to withdraw the money needed. As the complainant and his friends emerged with the money from the bank, PNGBC branch Mt. Hagen, the accused and the manager of Pacific Hires Pty Ltd, drove up. The accused advised the complainant and friends to hand over the money, which they did. The accused counted the money, which were all in two bundles of K50.00 notes, and gave it to the manager of Pacific Hire Pty Ltd. The latter accepted the money, and then handed back another bundle to the accused who pocketed it. The manager of Pacific Hire Pty Ltd drove off after that.

The accused, with the complainant and others then proceeded to the Mt. Hagen Police Station. There the accused entered the station, ostensibly to arrange for a couple of police escorts. (The prosecution contents that the accused in fact arranged for certain policemen to stop them on the way and prevent them from going on the trip). He came out later saying he was unable to find any willing policeman. They then got on their way. The accused was driving the hired vehicle.

Whilst they were proceeding on the highway, along China Town in Mt. Hagen, a police patrol ordered them to pull over to the side and stop. The police then chased some of the complainant’s friends off the vehicle, however the complainant resisted and he was taken to the Mt. Hagen Police Station. At the station the complainant was pushed and shoved around by the policemen. Evidently the policemen who stopped the vehicle were purposely out to stop and disrupt the trip to Mendi. The role played by the accused at this stage is not clear. However the prosecution contend that those policemen involved in the stopping of the vehicle and the accused were deliberately preventing the complainant and his friends from going on their trip, so that the accused could defraud them of their money. There is no clear evidence to establish this contention but evidently the actions of the accused, the Pacific Hires Pty Ltd manager, and the unexplained conduct of the unidentified policemen are rather odd.

The vehicle was returned to the rental agency by the accused after the complainant and his friends were off loaded. Meanwhile the complainant reported the ‘stealing’ of the K1000.00 by the accused and the whole episode with the policemen to another duty policeman. As a result he was caught in the afternoon and brought to the Mt. Hagen Police Station, where he was to have been charged but he escaped. He was later charged with stealing.

The manager of Pacific Hires Pty Ltd knew that the deposit for the vehicle hire belonged to the complainant and not the accused. Yet he ‘refunded’ some K340.00 to the accused later. It matters very little that the accused signed the consignment. After he became informed of the fact that the money did not belong to the accused, the manager of Pacific Hire Pty Ltd should not have ‘refunded’ the money to the accused. It is of very little consequence that a policeman later ‘witnessed’ this ‘refund’. It could very well have been one of the policeman friends of the accused anyway. What the manager of Pacific Hires Pty Ltd did was not only unfair and sneaky; he may have in fact overcharged for the use of a vehicle the hire of which he clearly knew was not completed. The complainant and his friends did not have substantial use of the vehicle and the manager knew that too well. Needless to say the accused got the K340.00 knowing the money was not his. However the complainant, and the prosecution, did not consciously prosecute him over this K340.00.The charge instantly before this Court does not relate to that K340.00, The charge specifically relates to a sum of K1000.00 handed over outside PNGBC, Mt. Hagen.

Perhaps the State ought to have preferred an alternative charge of obtaining by false pretence rather than this current charge. The State evidence discussed above tends to support that charge more than a stealing charge.

It also far to say, if only for the record, that I find the complainant’s evidence that he and his friends hired the vehicle to bring a pig down from Mendi to sell here in Mt. Hagen for money, a bit heady. How could anyone consciously spend K2000.00 just to bring down a pig to sell for money? The complainant could have bought two big pigs with that K2000.00 right here in Mt. Hagen. One wonders how much was his pig in Mendi worth? In any event, if the trip to Mendi had not been disrupted in the way it was by the accused and others, it is doubtful as to whether the complainant would have raised any issues over the cost of the hire of the vehicle.

From the moment the manger of Pacific Hire Ltd handed over half the money to the accused the complainant knew or must have had a fair idea as to what had happened. It was open for him to deduce that he had been either overcharged or the accused had fraudulently misled him. He should have raised issue with the accused over that half money being handed back to the latter. Quite evidently the complainant was prepared to part company with the K2000.00 as long as he and his friends went to Mendi using the hired vehicle.

The Defence Case

It is not necessary to restate and discuss the defence case as the sum total of it only amounts to a mere denial at best.

The Law

All the above notwithstanding, the State still has the onus to prove its case beyond any shadow of a doubt. That is a trite proposition. The extent of such a requirement of the law may not mean that all the State’s evidence must be circumspect and sacrosanct in all respects. Contradictions and inconsistencies may be reasonably explained away in appropriate instances, leaving the logical conclusion of the guilt of an accused person in no doubt. However significant contradictions and inconsistencies, such as are likely to cast doubt over a point in contention, or item of evidence, or the credibility of a witness, are matters that impact upon the State’s discharge of the duty to prove its case to the appropriate standard.

Conclusion

In this case the State’s crucial witness, Noki Kuri (the manager of Pacific Hires Pty Ltd) said he did not receive K2000.00 from the accused or anyone. He clearly said he did not give back K1000.00 to the accused. Despite his over all story being fishy as I alluded to above, he nevertheless was not declared or treated as a "hostile" witness. He gave evidence contrary to the prosecution case. The prosecution should have sought to have him declared as one such witness. For what purpose is not clear, but he seems to have acted in concert with the accused to some extent. His evidence as it stands, contradicts and is inconsistent with the other police witnesses’ evidence.

I would reiterate what I said above in relation to the law. Significant contradictions and inconsistencies, such as are likely to cast doubt over a point in contention, or item of evidence, or the credibility of a witness, are matters that impact on the State’s discharge of the duty to prove its case to the appropriate standard.

In the end it all goes down to the issue of proof of the State case. Inter alia means that a conviction would not be safely entered against the accused. It amounts to the State failing to discharge its duty to prove its case beyond any reasonable doubt.

Consequently, as a result of the foregoing, the accused will have to be acquitted and discharged on the charge. I order that that be the case forthwith.

Sergeant Piaku: Complainant
In Person: Defendant