Police v Miugle [2021] PGDC 58; DC6032 (2 March 2021)

DC6032

Papua New Guinea

In the District Court

Held at Waigani

Sitting in its Committal Jurisdiction

Comm. No. 1515 of 2019

BETWEEN:
THE POLICE
Informant

AND:
ANDY MIUGLE
Defendants

Port Moresby: T. Ganaii, SM

2021: 02^nd March

COMMITTAL PROCEEDINGS – Charge - One count of Stealing contrary to section 372 (1) of the Criminal Code Act - Legal requirements of a prima facie case - Presence of all the elements of the charge - Evidence is insufficient to commit the defendant to stand trial in the National Court – Evidence on Identification is not sufficient to commit to trial - Hearsay evidence on identification is insufficient – Identification of Defendant alone at Police Station without any identification parade line up is not proper identification
Cases cited:
Akia v Francis PGNC 335; N6555
John Beng v State [1976] PNGLR 481
Maladina v Principal District Magistrate Posain Poloh [2004] PGNC 208
R-v- McEachern [1967-68] PNGLR 48
State v Henry Among (2007) Cr 719 of 2003
State v. Kai Wabu [1994] PNGLR 94 (Injia, J)
State v Kapil Omba (2010) N4130
Yarume v Euga [1996] PGNC 24; N1476

Overseas Case Nil

References Nil

Legislation
Criminal Code Act Chapter 262
District Court Act, Chapter 40

Counsel
Police Prosecutor, Joseph Sanagam For the Informant

Mr. Poponawa, appearing as a Friend
Leave granted to appear For the Defendant

RULING ON SUFFICIENCY OF EVIDENCE

2021: 02^nd March

Introduction
Ganaii, SM This is a Ruling on whether a prima facie case is made out within the meaning of Section 95 (1) of the District Courts Act (DCA) where all the evidence of the Prosecution is received in the form of a Police Hand Up Brief (PHUB) and the Court is required to consider whether it is sufficient to put the defendants on trial.

Charge
2. The defendant Andy Miugle, 28 years old, from Gena Village, Gembogl District of Chimbu Province, stands charged that he on the 14^th day of September 2019 at the Pingan Trading Taurama Foodland,

Did steal a firearm namely, a Black Sig 9mm Pistol with serial number 0030372, with two magazines and 30 rounds of 9mm bullets worth a total of Seventy Thousand Kina (K70, 000) the property of David Kalo, a national male.

Thereby contravening section 372 (1) of the Criminal Code Act.

Facts
3. It is alleged by the Prosecution that on the on the 14^th of September 2019 between the hours of 8-8:30 am, the complainant and his family were parked outside Pingan Trading at Taurama Foodland in their blue Toyota Land Cruiser, Ten seater. The complainant’s wife had gone into the shops and he and the children were in the vehicle. The complainant’s waist bag containing his firearm Black Sig 9mm Pistol with serial number 0030372 with two magazines and30 rounds of 9mm bullets was in the waist bag in the front offside seat. The complainant was in the driver’s seat, he put his seat back and resting.

4. Police say the defendant was loitering outside around the vehicle and walked up to the offside side. The back window was open so he slipped his hand through to the offside seat and opened the pin and the door. Unknown to the complainant, he then got the waist bag containing the firearm and escaped.

5. The complainant’s wife returned from the shop and without realizing they missing bag drove home to Boroko. It was at home when the complainant realized that his waist bag was missing. He drove back to Food land and made enquiries. Based on his enquiries he was able to identify the defendant. He reported to the police. The police conducted investigations together with the complainant’s help and the defendant was apprehended, arrested and charged.

6. The defendant was charged for stealing under s 372 (1) of the CCA.

Issue
7. The issue is whether a prima facie case is made out and that is whether the evidence received from the Prosecution is sufficient to warrant the committal of the defendant to stand trial at the National Court on the charge of Stealing.

8. The sub-issue is whether there is sufficient evidence on each of all the elements of the offence of Stealing and whether the witnesses’ statements are admissible.

The Law

The law on Committal Proceedings
9. Part VI of the District Courts Act (DCA) provides the legal basis for committal proceedings specifically under Section 94 to Section 100 of the DCA.

10. The Committal Process whilst it requires the Court to make a finding on the evidence presented by the Police, this process is very administrative in that the Court need only to form an opinion that there is a bona fide prima facie case against the Defendant; as per Akia v Francis^[1] and R-v- McEachern^[2].

11. In the matter of Maladina v Principal District Magistrate Posain Poloh^[3] His Honour Injia DCJ (as he then was); expressed in his opinion that the Committal process involves two phases, the first is when the Committing Magistrate makes a finding on whether or not there is sufficient evidence and whether a prima facie case is made out under Section 95 of the DCA and the second being when a further finding is made under Section 100 of the DCA on whether to discharge or commit the Defendant only after the Court administers an examination of a Defendant under Section 96 where the defendant is asked whether he desires to give evidence.

12. Furthermore, in the case of Yarume v Euga [1996] ^[4] the National Court said in respect to committal hearings that the process of committal requires proper and reasonable assessment of the evidence with a view to see whether all the elements or ingredients of the offence is present before he can commit the accused; Section 94B, 94C, 95 and 100 to be read together.

Evidence in Written Statement
13. Section 94C requirements in the committal process must be fulfilled and is in the following terms:

94C. Regard to Evidence, Etc.

(1) When conducting a committal hearing under this Part, the Court may, subject to Subsection (2), have regard to–

(a) the evidence contained in a written statement; and
(b) documents and exhibits,

of which a copy has been served on the defendant under Section 94(1) or made available for inspection under Section 94(2).

(2) Before admitting a written statement, the Court shall be satisfied that the person who made the statement had read and understood it, or if unable to read, had had it read to him in a language that he understood.

14. The case precedent on this principle of law in relation to written statements is in the case of The State v. Kai Wabu^[5]. In this case the court held that the combined effect of ss 94 (1A) and 94C (2) of the DCA is that the committal Court must conduct an enquiry to ensure that the makers of statements had full knowledge of the contents, correctness, and truth of written statements they are responsible for signing. This requirement is mandatory and requires strict compliance. This enquiry is an independent one, which the Court must conduct in the exercise of its judicial function. The court further stated that after having conducted the enquiry, the Court has the discretion to admit or reject the written statement. The Court must then record the nature and extent of the enquiry conducted and record its findings. A failure to conduct such enquiry and record its finding may result in voiding the committal.

The law on the offending provision

365. Definition of stealing.

(1) In this section—

"owner", in relation to a thing, means—

(a) the owner or a part-owner of the thing; or

(b) ....

(2) Subject to the succeeding provisions of this Code, a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.

(3) The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.

(4) A person who takes or converts anything capable of being stolen shall be deemed to do so fraudulently if he does so with intent—

(a) to permanently deprive the owner of the thing of it; or

(b) to permanently deprive any person who has any special property in the thing of that property; or

(c) ...

(e) to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; or

...”
372. Stealing.

(1) Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: Subject to this section, imprisonment for a term not exceeding three years.

Elements of the Charge of Stealing

Elements of Stealing
15. In George Ikalom and Timothy Rorepa v The State^[6], on the elements of stealing the Supreme Court stated as follows:

15. “Stealing” is relevantly defined in s.365 of the Criminal Code for our purposes in the following terms (emphasis added):

“(2) Subject to the succeeding provisions of this Code, a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.

(3) The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.

(4) A person who takes or converts anything capable of being stolen shall be deemed to do so fraudulently if he does so with intent–

(a) to permanently deprive the owner of the thing of it; or

(b) to permanently deprive any person who has any special property in the thing of that property; or

(c) to use the thing as a pledge or security; or

(d) to part with it on a condition as to its return that the person taking or converting it may be unable to perform; or

(e) to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; or

(f) in the case of money, to use it at the will of the person who takes or converts it, even if he intends to afterwards repay the amount to the owner.

(5) ...”

16. Thus to prove the “stealing” of anything capable of being stolen (as defined in s. 364), the prosecution must establish beyond reasonable doubt that the accused:

(a) fraudulently;

(b) takes the thing, or converts it to his own use or the use of any other person; and

(c) actually moves or otherwise deals with the thing by some physical act.

17. “Fraudulently” means with intent to permanently deprive the owner of the thing, or with any of the other states of mind prescribed by s. 365(4) of the Criminal Code.

Prosecution Case
16. To prove its case, the Prosecution produced seven (07) witness statements namely:

1. David Kalo – this witness is the owner of the firearm and the complainant. He stated that he left his firearm in his waist bag at the offside seat whilst he put this seat back and rested. Unknown to him his waist bag was taken. Prior to him resting, he noticed a tall light skinned person with a scar in the middle of the ridge of his nose standing next to the vehicle and looking into the vehicle. At that point in time he fell asleep and dozed off until his wife returned. The door pins were locked and he assumed that the tall light skinned person may have silently opened the pin and the door and taken his waist bag. He stated that he went straight back to Food land and made his enquires. Two people gave him descriptions of who had opened his vehicle door and taken his bag and that he was the son of a medical doctor who lived in Murray Barracks.
   
2. Firstly, the buai (betel-nut) seller at Foodland said the thief was a light skinned person and he had opened the door and taken the waist bag. She told him that the thief was the son of a medical officer at Murray Barracks. Upon hearing this the complainant went to Murray Barracks and a soldier called Solo told him that the descriptions fitted the descriptions of the son of the medical doctor. David Kalo then stated that Solo told him that the thief as described told Solo that ‘he had hit the jack pot and they will be able to celebrate independence’. He confirmed than that this was the right suspect. He then reported the matter to the Police which led to the identification, apprehension and arrest of the defendant.
   
3. Joseph Pou – this witness is a police officer who was involved in the apprehension of the suspect at Taurama Foodland. His evidence is on apprehension. He also stated that when the suspect was at the police station, the complainant was called into the Police station also where the defendant was and told to identify the defendant. The complainant went into the station, saw the defendant and identified him to be the person that stole his firearm.
   
4. John B Isouve – this witness is also a Police Officer attached to CID Motor Squad. His evidence is as above.
   
5. Alex Bauwi – this witness is a Police Officer attached to the Metropolitan Superintendent’s office. He was asked the arresting office Detective Snr Constable Derek Francis to use his phone to take photos of the firearm. He took photographs of the firearm described as Black Sig 9mm Pistol with serial number 0030372 with loaded magazines with 9mm bullets. He also took photographs of the serial number of the firearm and the two fully loaded magazines with 9mm bullets. He then printed the photos and gave them to arresting officer.
   
6. Lawrence Welen – this witness is a police Officer attached to the CID BES squad. He was involved the police interview with the defendant as the corroborator.
   
7. Lineth Namia - this witness is a police Officer attached to the CID BES squad. She was also asked to be present to corroborate in the police interview with the defendant.
   
8. Derrick Francis - This witness is the Police Arresting Officer. He is responsible for conducting investigations, obtaining witness statements and documentary exhibits, the arrest and charge the defendant, the conduct of the Police Interview and preparation of and service of PHUB.
   

Documentary Evidence:
17. In support of its case the prosecutions relied on the following documentary evidence:

1. Firearm Licence in the name of the complainant Mr. David Kalo.
   
2. Copy of Post Courier news article dated 24^th September 2019 showing surrender of said pistol to Metropolitan Superintendent by community leaders at Morata in NCD
   

100. Copy of National Newspaper news article dated 24^th September 2019 showing surrender of said pistol to Metropolitan Superintendent by community leaders at Morata in NCD
     

4. Photographs of firearm with serial number SP0030372 showing firearm with magazines, loaded with 9mm bullets
   
5. The real exhibit which is the firearm was held by the Police and shown to court for inspection before ruing on the 22^nd January 2021. The exhibit is the Black Sig pistol, with serial number SP0030372 showing firearm with magazine but without the 9mm bullets.
   
6. The real exhibit DID NOT contain the ammunition i.e. 30 x 9 mm bullets as stated in the information.
   
7. Record of Interview –Both English and Pidgin versions, conducted on the 05^th of December 2019 contains no admissions.
   
8. Antecedent Report – This report in not relevant for now.
   

Defence Submission
18. The defence made the following submissions:

1. The statement of the complainant that he assumed that the tall light skinned person may have stolen his firearm is not direct evidence. It is circumstantial evidence. There are no other independent and credible evidence supporting his statement.
   
2. The complainant’s statement that two other witnesses (Buai seller and Solider named Solo) were able to identify the thief is hearsay evidence and is not good evidence. Their stories are hearsay and are not corroborated by other evidence.
   
3. The statements of the balance of the Police witnesses are Police officers involved in the apprehension, arrest and conduct of police interview. These statements do not implicate the defendant.
   
4. The evidence of the case investigating officer did not show his own investigations and development of his case theory on identification and involvement of the defendant. He relied on the descriptions given by the complainant and hearsay evidence to arrest and charge the defendant. This witness failed to obtain statements from the buai seller and the soldier called Solo at Murray Barracks
   
5. The ROI contains no admissions. The defendant raised an alibi and has named his alibi witnesses.
   
6. Other documentary evidence do not implicate the defendant.
   
7. There is no evidence to show how the weapon went from Taurama Foodland to Morata and eventually handed to Police.
   
8. Due to no identification, evidence is insufficient to commit to trial
   

Prosecution Submission
19. On the 29^th of October 2020, the prosecutor informed the court that they will not be making any submissions and asked the court to assess the committal file and rule.

Consideration of the Submissions and Analysis of the Evidence

20. The court has considered the submissions in the light of the evidence in the Police HUB and makes the following findings:

1. Witness statements have complied with the requirements under section 94C and the principles enunciated in Kai Wabu’s case.
   
2. The law is clear on relying on circumstantial evidence at trial that evidence must point to the guilt of the defendant as the only rational inference otherwise the court must acquit, the principle in John Beng v State ^[7] is applied. In applying the same principle here, but to the test of determining a prima facie case, I do not find that the circumstantial evidence as it stands is enough so that the judge can find that it points to guilt as the only inference. This is because there is no proper identification of the defendant in the first place.
   
3. The circumstantial evidence of identification that the Police rely on is based on hearsay evidence of the buai seller who is not named and the soldier called Solo who is also not fully named. Police did not obtain statements form these two crucial witnesses. The court cannot rely on hearsay evidence as they are not good evidence. I adopt the statement of Colin , J. in the case of The State v Kapil Omba^[8] in which His Honour stated:
   

“The rule on hearsay evidence is not in doubt and I summarized it in the context of a misappropriation case in The State -v- Andrew Epei & Francis Ipuke (No 3): CR Nos 829 of 2008 & 1007 of 2008 (Unnumbered & Unreported Judgment of 22nd March 2010) in the following terms:

“Evidence is inadmissible if for example, is hearsay, unless it falls within one of the exceptions to the rule of hearsay, eg, dying declarations.

What is hearsay evidence? I am indebted to Davani, J’s explanation on hearsay evidence in Jack Gopave -v- Francis Kugame & The State (2003) N2482 where her Honour after referring to a text by Aranson, Reaburn and Weinberg observed:

“Nonetheless, I will dwell on it because I find the statement is hearsay. The hearsay rule is a common law creation which prohibits witnesses in court repeating out of court statements made by others in order to establish the truth of those statements. This statement is hearsay because it is made by somebody other than the witness and its admission will have a prejudicial effect on the Plaintiff’s case and would have a bearing on the ultimate result. It will not be hearsay if the maker of the statement is brought before the Court and evidence led on the statement with opportunity given to Defence Counsel for cross-examination. As stated by Aranson, Reaburn and Weinberg in their text “Litigation, Evidence and Procedure,” “it is clear that the main justification put forward in support of the hearsay rule today is the fact that the maker of the court statement is not available to be cross-examined by the party opposing the reception of evidence. Cross-examination might serve to expose defects in the perception of the maker of the statement, or his veracity, or his memory, or his capacity to narrate effectively what he wishes to say.” (see par. 30.04, pg 777 1979). Although both Counsel did not submit on this aspect, this is an important part of the Plaintiff’s case that was not “progressed”. “

4. Without any statements from these witnesses (Buai seller and Solo), there is insufficient evidence in the PHUB on identification for the Public prosecutor to make a case before the Judge to draw safe inferences on identification.
   
   5. The evidence of the complainant on the physical appearance of the defendant at the crime scene is circumstantial evidence in that he did not see this person he described actually taking his waist bag. He stated that he saw this person loitering around and looking into his vehicle. That may be good circumstantial evidence but there has to be other evidence that supports this evidence. For example, the statements of witnesses who informed the complainant about who the thief was and further, the complainant could have participated in a proper identification parade where he would have made proper identification of the defendant from the parade line up.
      
   6. In this instance, evidence in the PHUB shows that the identification that the complainant made at the police station was biased mainly because there was no line up of suspects at the parade. The defendant after being apprehended, was the only person in the police station when the complainant was called by the police to identify him. This practice is not in compliance with standard Practice rules for conducting identification parades.
      
   7. In State v Henry Among^[9], Lay, J stated:

8. “The law is that a witness should never be told that a suspect is in the identification parade: See State v Thomas Some (1982) N366 (M.) Kidu CJ. One of the reasons is simply that, the witness may see someone in the identification parade with some features that they recall, but they have a real doubt which would prevent positive identification. If that person is the only one in the line-up with those characteristics, and the witness believes that the suspect is in the line-up, the witness can easily persuade himself that the "possible", identification, is a definite identification. And of course once the identification is made, usually the next time the witness sees the person identified they are in the dock and the witness is in the witness box. This only confirms to the witness that they have made the right identification”.

9. The psychology of memory and identification is very complex. Psychologists have repeatedly demonstrated how easy it is to corrupt memory and to fool recollection of events and people. An identification parade is a double-edged sword. Properly conducted, it is strong evidence of the proper identification of the accused. But any error in the conduct of the identification parade raises the possibility of corrupting the recollection of the witness and of thus devaluing what might have otherwise been a very good opportunity of observation”.

8. The identification made by the complainant in the police station in the manner it happened that is where the defendant was alone when the identification was made is not reliable and is insufficient to make out the element of identification.
   
9. There is no connection of the defendant to the firearm being surrendered to community leaders at Morata and consequently on how it was handed over to the Police.
   

Findings
21. Based on the forgoing, the court makes the finding that there is insufficient evidence against the defendant on the element of his involvement and identification to the stealing of the firearm form the complainant.

Conclusion
22. I have made an assessment of the evidence in the PHUB and considered the submissions on sufficiency. I find there to be insufficient evidence to make out a prima facie case against the defendant to put him on trial for the charge of Stealing under section 372 (1) of the CCA.

23. An order had already been issued pursuant to a motion being filed for the return of the firearm held as an exhibit by the Police to the legal owner.

Final Orders

24. Consequential and final orders are as follows:

1. There is insufficient evidence against the defendant on one count of Stealing under section 372 (1) of the CCA;
   
2. The information bearing one count of Stealing under section 138 (a) of the CCA is struck out;
   
3. The defendant is discharged from the information bearing one count of Stealing under section 372 (1) of the CCA;;
   
4. The defendant is discharged from bail conditions and
   
5. The defendant’s bail sum of Five Hundred Kina (K500.00) is to be refunded forthwith.
   

Police Prosecutor: For the Informant
Public Solicitor For the Defendant

---

^[1] PGNC 335 N6555
^[2] [1967-68] PNGLR 48
^[3] [2004] PGNC 208
^[4] PGNC 24; N1476
^[5] [1994] PNGLR 94 (Injia, J.)
^[6] SCRA No. 26 of 2018; (2019) SC1888
^[7] [1976] PNGLR 481
^[8] (2010) N4130, Judgment Delivered on the 23 August 2010
^[9] (2007) CR 719 of 2003 Judgment delivered on the 21 May 2007