State v Chikalli [2007] PGDC 126; DC674 (21 September 2007)

DC674

PAPUA NEW GUINEA
[The District Court of Justice]

CASE NO. 197 – 198 OF 2007

THE STATE

v

CLEMENT CHIKALLI & 1 ORD.

Tabubil: P. Monouluk
2007: 08th August; 21st September

Verdict

Summary offences – Verdict – In possession of property reasonably suspected of having being unlawfully obtained – Section 16 Summary Offences Act Chp. 264 – 13.594kg of gold concentrate found inside the bus occupied by defendants – Defendants admitted possession but denied prior knowledge – Nature and manner of transportation of the concentrate gave rise to suspicion – Defendants must give an account to the satisfaction of the court as to how the suspect property may have came by their possession – Forgetfulness alone not a good explanation – Issue of control – Defendant(1) being the driver had key(s) to the back of the bus where concentrate was found – Issue of prior knowledge – Explanation by defendant (1) unsatisfactory in light of the circumstances.

Cases cited:

1. In the appeals of J.A.L. and L.L. (1974) 3 N.S.W.D.C.R. 182
2. Willis v. Burnes [1921] HCA 43; (1921) 29 CLR 511
   

First Constable PW Stellar Warmanai for the State
Defendants in person

21st September, 2007.

1. P. Monouluk: The defendants were arrested and charged with one charge of having in their possession property reasonably suspected of having been unlawfully obtained namely 13.594 kilograms of gold concentrate (exhibit marked ‘A’) the property of the Ok Tedi Mining Limited (OTML) thereby contravening Section 16 Summary Offences Act Chp. 264.

2. The State alleged that on Sunday 01st July, 2007 at about 8:30am the defendants were apprehended at a security check-point leading out of the restricted area of the Mill/Mine operations of the OTML after a half full 20kg rice bag containing 13.594kg of wet gold concentrate was found inside the back of the 15 seater commuter bus driven by defendant (1), whom I shall refer to by his second name Chikalli and accompanied by defendant (2), whom I shall refer to by his second name Nare, as his off-sider. At the time of the discovery the defendants were employees of the Flood Plain Company, a contractor company to the OTML doing work for it at its Mill and were the only persons traveling in the company bus (at the time of trial Chikalli had left for a new employer). Both of them denied prior knowledge of the bag and its contents.

3. During the trial the State called two witnesses in support of its case while the defendants gave evidence in their own defense. The State witnesses gave evidence of having inspected the bus driven by Chikalli and located the bag containing the concentrate at the back of the bus. The defendants admitted the presence of the bag and its contents in the bus; however, they denied any prior knowledge.

4. It is a requirement of the law that when a trial court makes a ruling of prima facie case against a defendant for such an offence the defendant in question is legally obliged to reply and give an account acceptable to the court as to how he may have come by the property in question. Unless he has a reasonable explanation, the court is obliged as well to make a finding of guilt against him, Willis v. Burnes [1921] HCA 43; (1921) 29 CLR 511 at 514.

5. In the present case the State witnesses gave evidence that a routine check on the bus driven by Chikalli at the Helsinki Check-Point revealed the presence of a yellow trukai rice bag containing wet gold concentrate hidden away inside the back of the bus as it was driven out of the restricted area. The defendants admitted the discovery of the bag and its contents inside their bus, however, both of them denied any knowledge of its presence until it was discovered much to their horror.

6. The State witnesses added that the very nature of the suspected property found in the bus occupied by the two defendants and the manner it was concealed and conveyed gave rise to their suspicion that it had been stolen or unlawfully obtained in the first place. By its very nature gold concentrate is only found in concealed pipes and containers in very restricted areas in the OTML Mill area. No where else can such concentrates be found in such a form as in this case where it was found some six kilometers away from its designated area and concealed in a yellow rice bag inside the back of a commuter bus. Such revelation obviously gave rise to suspicion that the concentrate was unlawfully obtained in the first place because in the normal course of things such property would not have left the Mill in that form and manner, thus the charge.

7. The question pose by the court is whether the explanation by the defendants that they have no prior knowledge of the presence of the gold concentrate inside the bus they were traveling in out of the restricted zone is reasonable in the circumstances? This is a question of fact and can only be answered by looking at the circumstances and the facts surrounding the case.

8. Before I can answer this question, it is important that I put into perspective the issue of possession or control as perceived by law. Of the two defendants who were in the bus, who had the control over the bus and therefore in possession? Again, this is a question of fact. The State must realize that just because the two defendants were the only persons in the bus at the time of the discovery, it may still be difficult to establish possession or control in both of them or either one of them. I do agree with what Desailly and O’Neil in "Criminal Jurisdiction of Magistrates in Papua New Guinea" had said that:

"It does not follow that because a person lives in a house, he is in possession of the property in the house. Whether or not a person is in possession of the property will depend very much on the circumstances".

9. They went further to cite an Australian case of In the appeals of J.A.L. and L.L. (1974) 3 N.S.W.D.C.R 182 at 189 –:

" A home may be occupied by a number of persons each exercising equal control over substantial portions of the premises, but there may be, for example, in the bedroom of one or other of these persons a thing of the presence of which the others know nothing. Alternatively, in part of the premises (for example, the living room) used by all adult persons living in the premises there may be a thing which could be of such a nature that suspicion might be readily entertained that it is stolen or otherwise unlawfully obtained. Again, where a number of persons occupy a dwelling house one or other of these persons may object to the presence of a thing, but have no sufficient control to have it removed from the premises. On the other hand there are many instances where no difficulty would arise as, for example, one person occupying alone a single unit".

10. The same is true in this case where we have two persons occupying the bus in which the concentrate was found inside; hence it is important that the issue of possession or control be first addressed. To answer this question I must look at the role each defendant played. It is not denied that the concentrate was found at the back of the bus. The only person to have access to such an area would be the person who had with him the key(s). In this case it would be Chikalli because as a team leader he had assumed the responsibility of being in charge of the bus by driving it and therefore had the key(s) to himself. In fact he said he kept the bus in his custody since Friday 29th June 2007 at his family home and was used by him to bring workers up to the Mill on the morning of Sunday 01st July 2007. He was still its driver and therefore in control when the concentrate was found inside the back of the bus.

11. On the other hand, Nare was a passenger. He was picked up after work and driven home by his team leader Chikalli. It is clear that Nare had no control over the bus. In fact the very location of the concentrate inside the back of the bus indicated that it was impractical for him to have access to. I believe Nare had no control over the bus, especially on the compartment area where the concentrate was located and he cannot have access to it without the key(s) which happened to be with Chikalli.

12. Having answered the question on control or possession I must now address the first issue of prior knowledge of the existence of the gold concentrate on board the bus. The evidence by the second State witness Samuel Pokot, OTML Security officer indicated that he has been working up in the Mill/Mine areas for the last eight (8) years. He said that the OTML has a policy direction that all those who work in the Mill/Mine areas are well aware of. This direction requires everyone (OTML employees and contractor alike) to ensure they are free from anything illegal and restricted before departing home via the Helsinki Check-Point. I presume that this practice may have come about as a reaction by OTML due to it loosing gold concentrate, tools, furniture, etc., through smuggling. Pokot added that this direction by OTML is constantly made known and reiterated to everyone that works up in the Mill/Mine areas on daily basis and that is done through daily briefings called the Tool Box Meetings.

13. For our purposes I will deal with the circumstances surrounding the conduct of each defendant beginning with Chikalli. Pokot said that he knew Chikalli as the husband of an OTML employee. He has been working the Mill/Mine area as a contractor for a long time. It would mean that Chikalli may have been there for more than two years as stated by him while working as an employee of his former employer.

14. In his evidence, Chikalli said that in the morning prior to his apprehension he had driven up to the Mill to drop off day-shift workers and pick up night- shift workers and then conducted a morning briefing/debriefing meeting with other personnel. I presume such meeting would be one of those Tool Box Meetings and most possibly a reminder of such policy direction mentioned by Pokot may have been sounded once more during that meeting. I do note from Chikalli’s evidence that at that time he was a team leader and the safety representative to OTML. He played a supervisory role and one of his duties was to delegate duties and responsibilities. This would mean that he may have been the officer tasked to call that meeting of that morning and possibly chaired it given his role.

15. When asked why he did not check his bus before departing for the Check-Point since he by now is well aware of the expectation upon him and had just returned from a debriefing or Tool Box Meeting, Chikalli responded that he was tired and forgot to check. It is also interesting to note from his evidence under cross-examination that Chikalli had said that the incident was not his first. The same thing had happened to him in the past where someone had tried to set him up. Chikalli did not elaborate on this matter.

16. As for Nare, his evidence showed that he had worked all night from Saturday evening till Sunday morning when Chikalli arrived to drop off the day-shift workers and pick up the finishing night-shift workers including him. Nare said Chikalli approached him and both of them went over to the others for a handover meeting, which I believe must be the briefing/debriefing or Tool Box Meeting mentioned by Chikalli, before both of them left for the Check-Point. Under cross-examination Nare admitted that he had been working in and around the Mill area for about four (04) years but only on certain times called the Shut Down similar to the one he had participated in immediately prior to his apprehension. He said that he is well aware of the OTML policy referred to by Pokot to conduct checks on motor vehicles before leaving the Mill/Mine areas for the Check-Point. However on that occasion he was too tired to check the bus because he had worked all night, and in any case, he said, such responsibility lies with Chikalli since he was the driver.

17. In answering the question I have posed earlier it is clear that of the two defendants, one had not adduce evidence convincing enough on the balance of probability as to how the 13.594kg of gold concentrate may have came by their possession inside the bus. It is common and general knowledge to those who, one way or the other, work up in the Mill/Mine areas to conduct checks on personal effects and motor vehicles for any restricted item such as concentrate and have it removed before departing for the Helsinki Check-Point. I believe that this policy is always repeated in countless Tool Box Meetings and has now become second nature to most employees up in the Mill/Mine areas. For any employee to say he has no knowledge of such policy or has forgotten is inexcusable and laughable, to say the least.

18. In my assessment of the evidence, both Chikalli and Nare as contractor employees with years of work experiences up in the Mill/Mine areas do admit the existence of such policy by OTML. However Nare can be excused for reasons that he had worked all night from Saturday till Sunday morning and accordingly was too tired to do any such check on the bus. In any case Nare insisted, and I do agree with him, that it was the responsibility of the driver to do such a check. The responsibility to ensure that the bus is safe cannot be passed onto Nare – a passenger.

19. On the other hand, the explanation by Chikalli that he had no prior knowledge of the existence of the gold concentrate on the bus before departing the Mill for the Check-Point cannot be accepted given the circumstances I have highlighted. It is not denied by Chikalli that he is fully aware of the requirement and the expectation by OTML for everyone to conduct checks on motor vehicles for any restricted item or defect before departing for the Helsinki Check-Point. In addition to that on the morning in question Chikalli had conducted a briefing prior to his departure. I presume the expectation by OTML to check motor vehicles may have been one of the agenda of items made mentioned of again. Immediately thereafter, Chikalli drove off without doing the necessary checks as he claimed. His excuse that he was tired and forgot to do the check is unacceptable. It is not enough to say ‘I forgot to check the bus’. The defendant must be able to clearly spell out circumstances that will indicate to the satisfaction of the court why he may have overlooked such small but vital procedure.

20. Unlike Nare, Chikalli did not work night shift. He actually had a good night’s sleep at home before he took about 40 minutes to drive his colleagues up to the Mill at 6:30 in the morning and subsequently apprehended two hours later at 8:30 am. There is no indication he may have woken up a little earlier for him to fall tired two hours later the same morning. In fact he should have felt lot better than Nare. Any reliance on tiredness to justify over-looking this necessary check procedure cannot be accepted. There was no evidence also to say that Chikalli was busy and in a rush in and around the Mill area to prompt me to understand why he may have forgotten to check the bus before departure.

21. Another point worth mentioning is the fact that Chikalli had mentioned in his evidence that some time back some persons had tried to set him up by placing gold concentrate, possibly in a motor-vehicle he had driven. He was not able to give a detail explanation as to what had really happened. However, such past bad experience should have made him wiser and more diligent in his approach to vehicle safety checks. If it was true as Chikalli would liked us to believe then it would seemed that he had not learnt from that experience; the proof of which is this case today.

22. Despite that it is not suggested that Chikalli may have been set up again. I say this because I have looked at that possibility but found such theory wanting. There is no evidence to show such possibility. There was no evidence that a call was made to the guards at the Check-Point to stop and search Chikalli’s vehicle. The first State witness Arua said it was an unannounced check on motor vehicles following the Shut Down exercise where in the past people had used that as an opportunity to smuggled out gold concentrate, and in the course of the checks they came upon Chikalli and Nare. In a set up situation the suspect property would normally be placed in a position where it would be easily located and identified. However, the manner in which we see the bag of concentrate was concealed inside the bus showed that the person responsible took time and effort in attempting to conceal well the large bag. He had no intention for the bag to be discovered. That explained why Arua was not able to notice the bag in the initial search and after its discovery Arua had to open the back of the bus from the outside to have a better access to the bag, nevertheless, he had to use even a greater effort to pull it out under the back seat of the bus.

23. Not only that, but according to Chikalli, it was at a time when the Mill was experiencing a Shut Down exercise and the place was bustling with activities and people moving back and forth. My visit to the car park area where Chikalli had left the bus for his meeting showed that, indeed, it is such that anyone who had tried to tamper with the bus to have access to its back and to place the big bag inside the back of the bus would have been easily seen by others.

24. I do note from the court’s visit to the Mill area that all vehicles at the numerous car parks were locked and had their glasses wound up because of the continuous wet weather up in the Mill/Mine areas. We know that the vehicle involved was a 15 seater commuter bus and not a usual open-back or utility vehicle. It would have been difficult for anyone to have access into such vehicles without first opening their doors. There was no evidence that the bus used by the defendants was tampered with to allow accessibility into it. I do not view Chikalli’s actions in assisting in the investigation of the concentrate as genuine. I believe that it was an attempt to take the security investigators on a wild goose chase.

25. In my assessment of the evidence I must say that I do accept the explanation given by Nare as being reasonable in the circumstances. There was no evidence he was in control or in possession of the concentrate; or in joint control or possession of the same. I do view his initial admission of possession as being admitting to the fact that the concentrate was found inside the bus he was a passenger on and nothing more. There was also no evidence to show that he may have prior knowledge of the existence of the concentrate on board the bus. The only time he became aware was after the security guards had found the bag. On that basis I hereby return on his behalf a not guilty verdict.

26. Whereas in the case of Chikalli, my assessment of the evidence indicates clearly that firstly, he was the only person to have control over the bus unlike Nare. Secondly, his explanation that he was tired and had forgotten to check the bus is unsatisfactory in light of the overwhelming circumstances I have mentioned. There is no doubt that Chikalli had prior knowledge of the existence of the bag of gold concentrate inside the back of the bus he had driven. And as he was making his way towards the Check-Point he assumed that because it was early Sunday morning security would be more relaxed. However, that was not the case as it turned out to be. I hereby return on his behalf a verdict of guilt.

Orders accordingly.