Kumuewa v Angia [2008] PGDC 47; DC729 (21 April 2008)

DC729

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

GFCr 68 of 2007

BETWEEN

MISEK KUMUEWA
Informant

AND

YAWIRO ANGIA
Defendant

Goroka: M Gauli, PM

2008: March 28
April 21

CRIMINAL – Particular offence – Stealing – No eye witness – Circumstantial evidence – Words spoken under heavy rain from outside the house – Contradictory evidence by police witnesses.

Cases Cited:
1. Barca –v- Queen (1976) 50 ALRJ 108
2. The State –v- Tom Morries [1981] PNGLR 493
3. The State –v- John Kondi N956

References:
Nil

Counsel:
For the Prosecution – Senior Sergeant Mark Yamuje
For the Defendant – In Person

21 April 2008

DECISION OF THE COURT

M Gauli, PM: The defendant Yawiro Angra, a male aged 22 plead not guilty to a charge of stealing contravening Section 372 (1) of the Criminal Code Act of Papua New Guinea. This provision states that “A person who steals anything capable of being stolen is guilty of a crime.”

2. The Facts

On the Wednesday 05 of December 2007, ten bags of coffee valued K3, 993.60 were stolen from the Sihereni Coffee Plantation in Kwongi area of Asaro District in the Eastern Highlands Province in the early hours that morning. There was no eye witness to this incident. The criminals went into the area by cutting the perimeter wire fence and removed the dried coffee (or parchment coffee) about 10 bags. The defendant resides nearby the said plantation.

3. Evidence for the Prosecution

The prosecution called three witnesses namely Mr. David Oromarie who is the owner and the Manager of Sihereni Coffee Plantation, Sapu Bill and Andrew Sata. The Record of Interview marked EXHIBIT ‘A’ and “B” were tendered by consent.

4. The witness Mr. David Oromarie gave evidence that on 15 December 2007 at about 6:00 o’clock in the morning upon his routine check on the securities at the Sihereni Coffee Plantation he was told by the securities of the stealing of the said coffee that night. The coffee was stolen during the heavy down pour of rain. Later that morning he was approached by witness Sapu Bill Andrew that in the early hours of that morning defendant Yawiro Angia went to their house to wake up her husband Andrew Sata to go and steal the coffee from the said plantation premises. He said the parchment coffee was spread on the canvas which could have filled about 10 bags. And it was dragged out through the cut perimeter wire fence.

5. The witness Mrs. Sapu Bill Andrew gave evidence that while she and her husband were sleeping in their house at Veretue, the defendant Yawiro went to their house at about 4:30 am on 05 December 2007. He knocked on the door and said to her husband Andrew Sata, “We have cut the wire fence so you come and we go and get the coffee.” She then woke her husband Andrew who went outside but some ten minutes later he went back into the house. Witness Sapu remained inside the house. She had no knowledge of what was said between Andrew and the defendant Yawiro. At that time it was raining heavily.

6. The witness Andrew Sata gave evidence confirming him going outside of their house and he met defendant outside. When Andrew asked him why he was there that early hours, the defendant replied: “Coffee had been stolen from Sihereni plantation so we go and look for them.” But Andrew said that it was too early in the morning and if they go people will suspect them. So both went inside the house, Andrew lit the fire inside the house, defendant lit his half brus and defendant left the house. He confirmed that it was raining heavily at that time.

7. Prosecutor tendered the Record of Interview by consent. In the ROI the defendant denied stealing the coffee. None of the securities from Sihereni Plantation were called to testify of this incident. And there is no eye witness to the incident.

8. Circumstantial evidence

The evidence for the prosecution as it stands is mostly circumstantial evidence. The law in regard to circumstantial evidence is clearly stated in Barca –v- Queen [1975] HCA 42; (1976) 50 ALJR 108 at 117 which said: “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 the inconsistent with any reasonable hypothesis other than the guilty of the accused _ _ _ .” This law is adopted in our jurisdiction in the case of The State –v- Tom Morris [1981] PNGLR 493. His Honour Miles J held and I quote: “When a case against an accused person rests substantially upon circumstantial evidence the question for the Court is whether the guilty of the accused is the only reasonable inference that all the circumstances would enable it to draw.”

9. Where the prosecution case mostly consists of circumstantial evidence the court need to be careful in assessing circumstantial evidence and the court need to tie up all the loose ends therein. His Honour Justice Woods said in The State –v- John Kondi N956 (Unreported): “The case against the accused being circumstantial one must be very careful in assessing circumstantial evidence and one must be sure that all the loose ends in the circumstantial evidence are tied up.”

10. The prosecution evidence is based on the evidence of witness Sapu Bill of what she heard the defendant had said from outside while she was inside her house. The words were spoken through the walls and at the time there was a heavy down poor of rain. The words were not spoken to her face to face. It is not known what type of the house the witnesses were living in. Was it a typical highlands round house without rooms or was it a modern type house with bedrooms. There is no evidence as to how far Sapu and her husband Andrew were sleeping from the main door where the defendant stood from outside, knocked and spoke those words. Considering these circumstances I find that there are a lot of loose ends that needed to be tied up and that the prosecutor had failed to tidy up those loose ends. This court therefore could not reasonably draw that the guilty of the defendant is the only reasonable inference that all the circumstance would allow it to reach.

11. Contradictory evidence

The prosecution’s evidence mostly relied on the evidence of the witness Sapu Bill and her husband Andrew Sata. Witness Sapu Bill said that she heard, through the closed door, the defendant saying, “We have cut the wire fence so you come and we go and get the coffee.” She then woke her husband Andrew up. He went out and met defendant outside. In his evidence Andrew said that what defendant said to him was, “Coffee had been stolen from Sihereni plantation so we go and look for them.” This statement is quite ambiguous in its interpretation. The evidence is not clear whether the defendant was saying to Andrew that the coffee had been stolen so they will go and take it for themselves or was the statement intended that they were to go and retrieve the stolen coffee from those who stolen it and take it back to the owner.

12. The evidence of witnesses Sapu Bill and Andrew Sata contradicts each other. Where the evidence received is contradictory that the court could not accept it as a truth then the court should dismiss the charge. I am reluctant to accept the evidence of witness Sapu Bill of what she heard from the defendant under the circumstances that one is most likely to be misheard of the actual words said by the defendant. There was heavy rain at the time, the witness was indoors while the defendant was outside the house when the words spoken. There is a fifty – fifty chance of the alleged words being true and such a doubt should favour the defendant.

13. Having satisfied that the evidence for the prosecution is basically circumstantial and contradictory and there being no eye witnesses to strengthened their evidence I have a discretion to acquit the defendant as I considered it would be unsafe and dangerous to convict where the defendant had denied committing the offence in the record of interviews. I find the defendant not guilty and I order that the case be dismissed, the defendant discharged and his bail refunded.

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