Joris v Walters [2021] PGDC 35; DC5091 (3 May 2021)

DC 5091

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]

CCC 7of 2020
BETWEEN

Constable James Joris Junior

Informant

AND

Ian Robert Walters
Defendant

Waigani: L Wawun-Kuvi

2021: 3 May

CRIMINAL LAW-CRIMINAL PRACTICE AND PROCEDURE- COMMITTAL PROCEEDINGS- Sufficiency of Evidence

Cases Cited
Avini v The State [1997] PNGLR 212 (15 July 1997)

References
Criminal Code Act (Ch 262)
District Court Act

Counsel

Police Prosecutor Sergeant Carol Gule

Lawyer, for the Defendant Ms Nathsa David

3 May 2021

RULING ON SUFFICIENCY OF EVIDENCE

L Wawun-Kuvi, Magistrate:

1. Ian Robert Walters, Mr Walters, is a 64 old Queenslander, has who landed himself in a somewhat sticky situation. He met this fate when he decided to receive a shipping container full of rice. On any other day under any other condition, it may have been a blessing. Unfortunately for Mr Walters the police say that the rice was stolen and he knowing full well it was stolen received the rice.
2. Mr Walters does not deny that he received the container and that it was full of rice. He says that he was told by the shipping company that he had to empty the container and that all enquires with them regarding the contents fell on deaf ears. He had no choice considering the unwarranted pests that the rice were attracting, to sell and give away the rice. Not the least, he had to store the rice in the company shed.
3. I am now left to decide whether the police have established sufficient evidence that Mr Walters knew the rice was stolen when he received it?

The Elements

4. The elements of Receiving Stolen Property under section 410(1) (a) of the Code are:
   • 4.1. The goods are stolen
   • 4.2. The stealing is an indictable offence
   • 4.3. The defendant received the goods
   • 4.4. He knew at the time the goods were stolen

Prosecution Evidence:

5. Section 94 (3) (D) & IA provides the mandatory requirement that the police must serve the defendant a statement that has the certification clause attesting that the statement is true and that the author on signing knows that he or she will be liable to prosecution if anything stated is untrue or misleading.
6. The documents titled statement of facts under the letter head of Trukai Industries Limited and letter by Issac Noki under the letter head of Eastwest Transport are not admissible because they do not comply with the mandatory requirement of section 94 (3) (D) & IA. Police should have obtained statements or affidavits from these witnesses. They therefore do not form part of the prosecution brief.
7. The admissible evidence is as follows:

Lydia Kaput

8. She is the Operations Supervisor for East West Transport in Lae.
9. She has held the same position for 10 years.
10. On 11 September 2019 the Business Unit Manager one Issac Noki called her to see him.
11. He gave her the Interim Receipt Book Number (IRB) PMIR1131 and told her to assign a driver to pick the container held by Bismark.
12. When the driver collected the container, he took it back to the East West Transport yard because the truck did not have a loader. The container was in the yard for 9 days.
13. After 9 days, they made a container check and found out that a container was sitting in the yard for a long time. When they checked the number it was identified as belonging to MJ Electrical.
14. On 21 September 2019, the driver one Botani Awasam upon direction delivered the container to MJ Electrical.
15. When the driver arrived at MJ Electrical, the Admin Clerk one Belinda was confused about the container and questioned the driver. The driver then called her and she spoke to Belinda.
16. She told Belinda that her boss had given her the IRB number and that it was collected at Bismark and that the IRB was correct. Belinda said that she would need to talk with the staff at the head office in Port Moresby.
17. She then asked for Belinda’email address and advised Belinda to contact her once she received confirmation.
18. The driver offloaded the container and left.
19. She says that Belinda said to her that she was not expecting any containers. That she would confirm and call her back but that never eventuated until 1 October 2019 when she called to pick up the empty container.

Tima Joe Ankaya

20. He says that on 11 September 2019 he asked Lydia Kaput if there was any work from Bismark. She told him that there was a container for MJ Electrical to be picked up. She gave him the IRB number, PMIR1131 and sent him to collect the container. The container number was BMLU 2356264.
21. He confirmed the container and went and gave the IRB to Edna Walawia, the receptionist for Bismark. She filled in some of the sections and then passed it on to Agnes Taman. Agnes Taman authorised the release.
22. Bismark loaded the container onto his truck and he left. He then drove to East West Transport Yard where the container was off loaded and he left.
23. He said that he did not drop it off at MJ Electrical because they did not have a forklift. He dropped it off at the East West yard and the fork lift removed it and will later load onto a side loaded. The side loaded would deliver it.
24. He says that it is normal for him to drop of containers at the company yard when the client does not have a forklift.

Edna Walawia

25. On 11 September 2019 between 4 and 5 pm the East West driver came to the counter. He gave her an electronic IRB which was not the normal one.
26. She then brought out the hard copy to confirm. It was confirmed that the cargo was already offloaded and when she checked the manifest, she confirmed that the cargo was there and it was not released.
27. So she crossed the manifest to indicate that the cargo was still there and had to be released. She then crossed checked the IRB number and printed the release docket and attached it to the manifest and IRB and gave it to Agnes Taman.
28. Agnes Taman confirmed and authorised the release. The documents were given to the driver and he took the container.
29. One Angeline Warapen dealt with the East West Container and did not cross it so she taught that the container was not released and so released the container.
30. She would not have released the container had Angeline Warapen cross the manifest.

Agnes Taman

31. On 11 September 2019 around 4.45pm she was doing a report when Edna Walawia brought in docket number 274045 for signing.
32. She asked Edna to show her the IRB number and the manifest. Edna told her that the manifest and the IRB are at her table. As it was almost 5pm Edna informed her that that was the last customer.
33. She just signed because the system was down and she was busy with the report.
34. Edna then came and took the report and released the container.
35. She was not aware that the IRB number was a used number belonging to a different shipment.
36. Before she signs she needs to confirm the information on the IRB with the Manifest. Information such as description of cargo, the container number, the IRB, the sender and the receiver.
37. She was not aware that the same container was used to ship goods for MJ Electrical and was again used to ship goods by Trukai to Spirit of Rabaul.
38. She stated that she signed because all the information was already on the Delivery Docket.
39. She stated that the information on the IRB was in the system and it was printed onto the delivery docket, hence she accepted it and signed.

Botany Upap Awasam

40. On 20 September 2019 at around 10-11 am he was called in by Lydia Kaput. She gave him a delivery docket and told him to loaded a container and deliver it to MJ Electrical.
41. When he took the container to the MJ Electrical yard, a lady called Belinda came and told him that the container did not belong to MJ Electrical. He was confused so he called Lydia. Lydia directed him to leave the container there with them saying that it was theirs.
42. He then gave his phone to Belinda who had a conversation with Lydia.
43. Then the Manager arrived and Belinda informed him about the container. As it was a weekend he allowed him to offload the container and said they will resolve the matter on Monday.
44. After the Manager named Ian said that, he gave the delivery docket to Belinda and she signed it and he left. He gave Belinda a copy before he left.

Belinda Ali

45. On 20 September 2019, she was in the office when the East West driver came and asked for her. He said that he brought a container. She advised him that she was not expecting a container. The driver told her that his boss had told him to deliver the container because it belonged to them.
46. She was confused because their container was already delivered but the container number was the same. The driver then called Lydia at East West Transport. Lydia then told her that her boss told her that the container belongs to MJ Electrical and it must be delivered to them.
47. She thought maybe the owner of the company sent the container. The driver gave her the docket and she signed.
48. After three days she called Lydia to confirm with her whether the owner of the container followed up with them for the container.
49. Lydia still insisted that her boss told her that the container belongs to MJ Electrical.
50. They left the container in their yard for the owner to come and claim it but no one came.
51. The container was in their yard for two weeks and so Mr Walters ordered them to open the container. They saw that it was bails of rice.
52. They were confused so they unloaded the rice and stored it in their shed because East Transport was calling to get their container. They got the container on 3 October 2019.
53. The rice was in the shed from September until December. Mr Walters then sold the rice.
54. Everybody at MJ Electrical were confused about the contents of the container.
55. The reason for unloading the rice was because if the container was registered to them, then they would be required to pay the storage. So they had to unload it and kept it for the owner and returned the container.
56. She does not know when Mr Walters sold the rice but only that he sold it to a Chinese man.
57. It was his own idea to sell the rice since it was in storage for 3 months.
58. She received bails of rice from Mr Walters.

Belinda Ali dated 13 July 2020

59. She had asked Mr Walters to repay her debts with the company and for K700.00 cash to repay her debts elsewhere. When she returned in January 2020, he gave her a deposit slip for K1813.00 showing payments in the company account and he gave her K700.00.
60. She thought the money was his personal money.

Rudy Tauraki

61. In December 2019, Mr Walters called them all to the warehouse. He told them that he would give them rice as Christmas presents. He gave them rice and they left.

Record of Interview

62. Mr Walters was told by Belinda that a container was being delivered to their yard. He was not expecting a container. He does not know Issac Noki nor does he know anyone at Bismark personally.
63. In the interview Mr Walters referred to his statement

Statement of Ian Walters dated 4 June 2020.

64. This statement of Ian Walters is admissible pursuant to the decision in Avini v The State [1997] PNGLR 212 (15 July 1997). The decision holds that were a document has been identified in a Record of Interview it becomes part of the Record of Interview and is admissible.
65. The statements provides as follows:
66. A container was shipped by Bismark from MJ Pom to MJ Lae around August or September 2019.
67. There was some difficulty with Bismark regarding the paper work and he had to go to their office about three times to have it resolved and have the container delivered.
68. The container was received by Belina, emptied and returned.
69. In September 2019, Belinda called him and said that a container was being delivered. He asked her to ask for the paperwork and was told that the driver did not have any.
70. He told her not to allow the driver to offload the container until he got there. On the way he called the owner of the company and asked whether he was expecting a container. The owner informed him that he was not aware of a container.
71. On his arrival he was informed by Belina that the driver called the office and the container belonged to them.
72. Belinda informed him that she also spoke to the lady and she was informed that the IRB and container was theirs.
73. He instructed the driver to offload the container.
74. He contacted the Port Moresby office and no one had any idea about the container
75. He opened the container and saw that it was only rice. He told the staff to remove all the contents to find out whether there was anything else inside. When the container was emptied, they found out that it was all rice. He told his staff to load the container again and they locked it.
76. The next day he instructed Belinda to call Bismark and the transport company and tell them that they needed paper work because the container was not theirs.
77. Bismark did not provide the paperwork so he called them himself. They did not get back to him so he went to their office. At the office no one was attending to him. He kept trying but Bismark was not doing anything to resolve the issue.
78. He then left the container in their yard thinking that eventually someone would come and claim it.
79. As time passed Bismark kept calling them and telling them to empty the container and threatening them with hire charges.
80. By late September/October 2019, still unsure about the real situation, he bought pallets and told his staff to unload the container into their shed. He then informed Belinda to call Bismark to come and pick up the container.
81. It became apparent to him that the container belonged to someone who had purchased rice in bulk. He kept it in the shed thinking that eventually the situation would be sorted.
82. During the following weeks he made enquires with people in the wholesale industry enquiring if any one heard about a container of rice. At no time did he consider that the rice might belong to Trukai.
83. He was not aware of Trukai’s structure and thought that Trukai only dealt with wholesalers.
84. The rice sat in their shed and became a problem. There were vermin and it was taking up space. The alarm kept being triggered because of rats because there was no forced entry.
85. Despite his best efforts the rice was being eaten by vermin.
86. He decided that during Christmas along with the vouchers he would give the rice to his staff.
87. They needed to build a new storage room and the rice was in the way.
88. In January 2020, he decided to sell the rice.
89. He received K38, 400.00 for the rice that were not damaged. He put the money into his bank account. He used K6500.00 and K2500.00 to assist two staff members with their debts. About K19, 000.00 was used as petty cash which he has claimed as refund. K8000 was still in his bank account.
90. On 6 April 2020 police and Trukai staff went to his office. He was informed of the situation.
91. He was contacted to go to the police station. After several times the arresting officer then called him to attend on 5 June 2020.

Submissions

92. Ms David has filed a written submission and basically contends that for the charge of receiving to stand, the police must establish by evidence that the rice was first stolen. She submits that there is no such evidence. Her client was forced to receive the property over some administrative error between East West Transport and Bismarck Shipping.
93. Sergeant Gule has also filed written submissions and submits that the defendant should have made reasonable attempts to determine the ownership rather then sell the rice. She submits that the defendant should have reasonably known the rice belonged to Trukai and therefore should have contacted the company. She finally contends that the defendant has conspired with people from East West Transport and Bismark Shipping. That is far as her submissions can go.

Ruling

94. In this case there are only two elements that are in dispute:
    1. That the rice was stolen; and
    2. The defendant knew that rice was stolen

Proof of Theft

95. The fact that the rice was stolen must be proven by admissible evidence. There is nothing by way of admissible evidence that establishes that the rice was stolen. What appears from the evidence is that there was a logistics blunder by both Bismark Shipping and East West Transport.
96. The evidence by Bismark Shipping shows that the documents were signed off whist the system was down and staff had not crossed off the original order by MJ Electrical.
97. In terms of East West Transport, Lydia Kaput agrees that she forced MJ Electrical to accept the container when they clearly told her that the container was not theirs.
98. Lydia Kaput says that she was instructed by Issac Noki to have the container collected. There is no admissible evidence by Issac Noki supporting this statement.
99. The staff of Bismark Shipping are blaming each other for the mistake and the staff of East West Transport are also shifting the blame on each other.
100. The evidence as produced by police clearly establishes that MJ Electrical refused to accept the container but where forced by both Bismark and East West to accept the container.
101. In my view and so hold, the evidence does not disclose theft but rather a logistics disaster. This would establish that this is a civil case that Trukai in my view should sue both Bismarck and East West with the Defendant giving evidence of both companies incompetence.

Knowledge

102. The police must provide evidence that establishes that the defendant had a state of belief which amounts to:
     1. Knowledge or
     2. Belief equivalent to knowledge or
     3. Suspicion coupled with a failure to make inquires.
103. The defendant must possess the belief that the goods were stolen at the time when the goods came into his possession, see Curlija [1967] SASR 1, Murphy (1984) 12 A Crim R 38.
104. In the present case, the evidence does not establish that the defendant had a belief that the rice was stolen. As stated above, the rice was not delivered to the defendant personally but to the company. He and his staff Belinda Ali made it clear that there was a mistake but were being stone walled by Bismark and East West.
105. The fact that the rice was kept for three months whilst the defendant made enquires around the wholesale industry is sufficient to show that the defendant was as baffled as everyone how the Company received an order for rice.
106. The evidence as I find is insufficient to establish knowledge.

Conclusion

107. I find that there is little evidence of theft and that the defendant had knowledge of theft. In fact as shown the evidence shows that the defendant did not personally receive the container.
108. The evidence is insufficient.

Orders

109. The Orders of the Court are as follows:
     1. The evidence by the police is insufficient.
     2. The Information is dismissed.
     3. The Defendant is discharged.
     4. Bail is refunded.
     5. The Defendant’s passport is to be returned.

Lawyer for the Informant, Police Prosecution

Lawyer for the Defendant, David and David Company Lawyers