Unda v David [2008] PGDC 38; DC721 (29 January 2008)

DC721

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 55 of 2007

BETWEEN

JOHN UNDA
Informant

AND

DONALD DAVID
Defendant

Goroka: M Gauli, PM
2008: January 28, 29

CRIMINAL - Particular offence – Stealing – Circumstantial evidence.

Cases Cited:
1. John Peng –v- The State [1982] PNGLR 331
2. The State –v- Tom Morries [1981] PNGLR 493
3. The State –v- John Wangil & 3 Ors. N1516
4. Paulus Pawa –v- The State [1981] PNGLR 498
5. Barca –v- The Queen [1975] HCA 42; [1976] 50 ALJR 108

References:
Nil

Counsel:
For the Prosecution – Senior Sergeant Mark Yamuje, Goroka Police Station
For the Defendant – In Person

29 January 2008

DECISION OF THE COURT

M Gauli, PM: The defendant Donald David aged 34 of Noiro village, Chuave District Chimbu Province stands trial before this Court for stealing. It is alleged that on the 31 of October 2007 at Six Mile on the out sketch of Goroka town, the defendant stole a Fuji Digital camera valued K3, 000.00 belonging to Aku Alphones and his wife Getrude. The defendant denied stealing the said camera. He is charged under Section 372 (1) of the Criminal Code Act, Chapter 262, which states that: “A person who steals anything capable of being stolen is guilty of a crime”. He could not have been charged for stealing under Section 48 c (1) of the Summary Offences Act since the value of the property stolen is well over K500.00. He is appropriately charged under the Criminal Code Act.

2. Issue

There is only one issue and that is: “Whether or not the defendant stole the camera”.

3. Evidence

The prosecutor called four witnesses namely Aku Alphones, Getrude Mondo, Gigine Paul and John Unda the arresting officer. Defendant had no witnesses except himself who gave sworn evidence. The prosecution’s evidence is mostly circumstantial.

4. Undisputed Facts

Aku Alphones and his wife Getrude owned the Fuji Digital camera valued K3, 000.00. Defendant is married to Aku Alphones sister Gigine Paul. Defendant and his wife reside with Aku Alphones and his family at 6 Mile in Goroka in the same house. This house has only one bed room which is occupied by Aku Alphones and his wife, while defendant and his wife sleeps in the living room. On Wednesday 31 August 2007, Aku Alphones left the said camera in his bedroom in the bag and he went out to Goroka town. When he left the house, defendant Donald David was sleeping on his bed in the living room. Aku’s wife Getrude was in the kitchen while the defendant’s wife Gigine Paul was cooking banana in their neighbour’s kitchen. Some 10 to 15 minutes after Aku Alphones had left the house the defendant also left the house. Before he left the house, he went to the kitchen and asked Getrude inquiring of Aku Alphones. She told defendant that Aku had gone to town. When Aku came back from town he realised the camera was missing from his bag. In the evening when the defendant came home Aku informed all the family members of the missing camera and he urged them that if anyone had taken it to return the camera. Everyone of them denied taking the camera. On the next day (Thursday 01 November) the defendant left the house. He never returned until he was arrested by Police a week later. The defendant knew that Aku and his wife owned such a camera.

5. Disputed Facts

Defendant denied stealing the subject camera.

6. The Issue: “Whether or not the defendant stole the camera."

The witnesses Getrude and defendants wife Gigine Paul gave evidence that on that particular day when Aku Alphones and defendant Donald David left the house, nobody else came to their house that day until Aku returned. Getrude and Gigine were at that residence all day. Neither of them left the house except for Gigine who went over to the neighbour’s kitchen to cook banana, while Aku’s mother was out in the garden near their house.

7. The witnesses Aku, Getrude and Gigine all testified that about an hour later when Aku returned to the house, an elderly woman told him (Aku) that he had taken shots of others but not her. And she asked Aku to take her photo. When Aku went into the room to get the camera, he found it was not there. He inquired of his wife Getrude and his sister Gigine of the camera. They all said they have no knowledge of where the camera was. Aku then went back to town to look for the defendant. While Aku was away defendant came home. No one mentioned to him about the camera until Aku returned home about 6:00 pm. Then Aku brought the family together including the defendant and inquired of the camera. At that time the defendant said nothing.

8. The witnesses Getrude and Gigine gave evidence that when defendant left the houe that day he carried his waist bag with him. The subject camera is not that big, it can be held in the Palm of a hand and it can fit into the defendant’s waist bag which is bigger than the said camera. The witness Gigine Paul gave evidence that she found defendant’s waist bag tucked away under their pillow some three days after the camera went missing.

9. The defendant denied taking the camera. He said on that 31 October 2007 when he left the house he did not carry his waist bag with him. And on the next day when he left the house he left his waist bag in the house and he never returned to the house until a week later when he was arrested by police suspected of stealing the camera. Before he left the house on Thursday 01 November, he told his wife Gigine Paul that she might be assaulted because of the missing camera. If that happened he told his wife to return to his village with their small daughter.

10. The evidence before me is all circumstantial. No one saw defendant going into Aku’s room and removed the camera. However, there is evidence that defendant is aware of the camera. He was the only person in the house when Aku left the house. Defendant was seen leaving the house with his waist bag. The camera is quite small that it can be carried in the defendant’s waist bag. He said nothing when Aku questioned the family of the missing camera. The next day defendant left the house and he never went back. On the day the camera was missing no one has visited this family home. These circumstantial evidence very strongly points towards the defendant.

11. The circumstantial evidence is well settled in our jurisdiction in the cases of John Peng –v- The State [1982] PNGLR 331 and The State –v- Tom Morris [1981] PNGLR 493 which applied the principles laid down in the case laws in Barca –v- The Queen [1975] HCA 42; (1976) 50 ALJR 108 at 117, which states and I quote:

“When the case against an accused person rest substantially upon circumstantial evidence the jury cannot return the verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilty of the accused: Peacock –v- The King [1911] HCA 66; (1911) 13 CLR 619, 634. To enable the jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilty 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, 252. See also Thomas –v- Queen [1960] HCA 2; (1960) 102 CLR 584, 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 fact in the evidence: Peacock –v- The King, 661. These principles are well established in Australia.”

12. In the case of The State –v- Tom Morris [1981] PNGLR 493, the principle of circumstantial evidence are that: where there are number of competing inferences, it is the question of fact for the judge to decide what inference should be drawn, which should be rejected, which are reasonable, which are mere conjuncture and which party they should favour. And if at the end of the prosecution case there are inferences inconsistent with the guilt of the accused, there is a discretion to acquit: The State –v- John Wanjil & 3 Ors N1516. The law relating to circumstantial evidence is very clear that in a criminal case if the evidence is wholly circumstantial the court must acquit unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than the guilty of the accused: Paulus Pawa –v- The State [1981] PNGLR 498.

13. In the present case defendant Donald David was the only person inside the house when Aku Alphones left. No other persons have come to that house that day apart from the family members who reside in that house. After the camera was found missing, defendant left the house the next day and he never retuned until he was arrested by police and charged for stealing. These facts established by the evidence are consistent that they, without any reasonable doubt, strongly points to the guilt of the defendant. Accordingly I find defendant guilty as charged.

14. Sentence

The penalty for stealing under Section 372 (1) of the Criminal Code Act is a term of imprisonment not exceeding three years. Defendant is a villager, he is married with children. He is a first offender. He is the victim’s brother in-law and they all have being living together in the same house when he stole the camera. It is a shameful thing to steal from an in law. The prosecutor has submitted that a custodial sentence is the way to go under those circumstances. However I also consider defendant’s mitigating factors.

15. I consider that the defendant has been in remand custody for three months three weeks awaiting trial of this case. He has the family to care for and the incident arose within the family members as well. To sent him to jail might destabilize that family unit. Defendant has requested for probation. I consider Section 16 (2) of the Probation Act which states that where a person is convicted and sentenced for an offence the Court may suspend the sentence and release him on probation for a period from six months to five years. I consider to apply this provision.

16. And I convict the defendant and sentence him to 12 months imprisonment in hard labour. I deduct three months three weeks for time in custody. The balance of eight months and one week is suspended and I placed the defendant on probation for two years on the condition that he comply to the conditions stated in Section 17 of the Probation Act and that he either returns or pay for the value of the camera to the owner within twelve months.

For the Prosecution – Senior Sergeant Mark Yamuje, Goroka Police Station
For the Defendant – In Person