Regina v Oakari [1974] PGLawRp 339; [1974] PNGLR 182 (21 August 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 182 - Regina v Oakari

[1974] PNGLR 182

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

ERIC OAKARI

Wewak

Denton AJ

19-21 August 1974

CRIMINAL LAW AND PROCEDURE - Offences against property - Stealing money the property of employer - General deficiency - Evidence of - Proof of general deficiency of money and goods - Charge of stealing money - Whatever quantum of money, proof of general deficiency - Criminal Code s. 641[ccli]¹.

CRIMINAL LAW AND PROCEDURE - Verdict - Alternative verdict - Charge of stealing money the property of employer - Proof of general deficiency of money and goods - Theft of goods not theft of “money” under Criminal Code - Conviction of stealing goods not available - Criminal Code s. 581[cclii]².

On a charge of stealing money from an employer under ss. 391 and 398 of the Criminal Code (Queensland adopted) it was found that there was a general deficiency as large as that claimed but in goods as well as in money.

Held

N1>(1)      Theft of goods given to friends or other persons with customary obligations to repay the gift were not equivalent to thefts of “money” within the definition provisions of the Criminal Code.

N1>(2)      A conviction of stealing a different kind of property than that laid in the indictment (namely money) was not available under s. 581 of the Criminal Code.

N1>(3)      A general deficiency of goods and money of which general deficiency money is undoubtedly a part which is deficient, is whatever the quantum, proof of a general deficiency within s. 641 of the Criminal Code.

N1>(4)      Accordingly, there should be a verdict of guilty of theft of that amount ascertainable beyond reasonable doubt.

Trial

Eric Oakari was indicted under ss. 391 and 398 of the Criminal Code (Queensland adopted) with stealing money amounting to $626.00 the property of his employer. The amount represented money stolen in various different ways which the accused admitted, and gifts of goods given wantoks and friends, which the accused denied.

Counsel

P. White, for the Crown.

J. Brown, for the accused.

Cur. adv. vult.

21 August 1974

DENTON AJ: This accused was indicted under s. 391 and s. 398 of the Criminal Code for stealing money amounting to $626.00, the property of his employer, Australian Services Canteen Organisation, proved to be a statutory body brought into existence by Statutory Rule No. 40 of 1959, to run Army canteens. The accused was a civilian employed by that organization.

The evidence established beyond a reasonable doubt that during a period of about three months the accused was the sole employee engaged in running the Vanimo canteen, and that there was a shortage in his books of $626.00 and some cents. There was an admission by the accused to the police of a deficiency of a greater amount than that charged, the reduction to some $626.00 being evidently due to further checking of records.

The accused has claimed that there may not be a true deficiency but that one appears because of his incapacity as a bookkeeper. This claim by the accused is, in my opinion, unfounded and I have no doubt that the deficiency existed. The accused is not a witness of truth as to his bookkeeping capacity.

There is, however, an explanation which I accept as to some of the deficiency, that he was owed for three cartons of beer sold to the sergeants’ mess and not paid for. This accounts for about $20.00 of the deficiency. The account of the reasons for the deficiency given by the accused has varied from time to time, but it seems to me that the version given to Inspector Watson was substantially correct. This was that as to some of his deficiency it represented money stolen in various different ways by borrowing money and not repaying it, or not repaying it in full, by keeping money paid to him for goods sold and, as to the remainder, it was due to gifts of goods to his wantoks and friends. The accused denied this last item in evidence and were I able to accept this denial the case would be much simplified. I do not believe him generally and although this, as I will indicate, is an admission against his interest, I do not think that the accused was aware of that fact when he made this statement. I am not satisfied beyond reasonable doubt that the version most favourable to him on this aspect of the case, that he gave some of the goods to friends, that is, that he stole some goods as distinct from money, is not true.

I, therefore, am satisfied that there is a deficiency as large as that claimed, but I am not satisfied that there is deficiency only in money, nor am I able to find with any exactness what portion of the deficiency is money, although I am satisfied beyond a reasonable doubt that a part of it is money.

The question then is what is the legal result of these findings bearing in mind that the charge is one of stealing money, not goods and money, and that no application has been made to amend the indictment. The Crown elected to proceed as it has with in mind the in aid provisions of s. 568 (1) of the Code which refers only to charges of theft of money and bearing in mind the limitations implied in s. 568 (3), there being no practical possibility in a case of this nature of proving individual thefts. The relevant provisions of s. 568 are as follows:

N2>“568 (1)        In an indictment against a person for stealing money the accused person may be charged and proceeded against for the amount of a general deficiency notwithstanding that such general deficiency is made up of any number of specific sums of money the taking of which extended over any space of time....

N2>(3)      If on the trial of a person charged with stealing it appears that property alleged to have been stolen at one time was stolen at different times the prosecutor is not by reason thereof required to elect upon which act of stealing he will proceed unless it appears that there were more than three acts of stealing or that more than six months elapsed between the first and the last of such acts; in either of such lastmentioned cases the prosecutor is to be required to elect to proceed in respect of two or three acts of stealing which appear to have taken place within the period of six months from the first to the last of such acts.”

It was suggested in argument that authorities such as The Queen v. Balls [ccliii]³, the report of which is not available in Wewak, except in the form of the reference to it by Lynskey J. in R. v. Lawson [ccliv]⁴, might assist the Crown, as indeed this authority might, if the indictment had referred to goods and money. As it does not, in my opinion such principles are of no application here.

I was then referred to the definition of “money” appearing in the Code and it was suggested that an obligation to repay or recompense arising from a gift in this country was equivalent to money and that, therefore, theft of goods given to friends or other persons with customary obligations to repay the gift were equivalent to thefts of money. It is sufficient to say that even a debt owed by a purchaser is not within the definition in the Code; an obligation to pay for goods cannot, in my opinion, be regarded as money. The proposition suggested is much less valid even than one relating to an actual debt; in my opinion the definition provisions of the Code prevent any such proposition succeeding.

I was then referred to s. 581 of the Code, which it was said enabled me to convict of stealing money where the theft of other property was proved. This section provides:

N2>“581.   Upon an indictment charging a person with any of the offences following, that is to say:

(a)      Stealing any property;

(b)      Obtaining or inducing the delivery of any property by a false pretence and with intent to defraud;

(c)      Procuring any other person to commit any such offence;

(d)      Obtaining or inducing the delivery or payment of any property or money by means of a fraudulent trick or device;

he may be convicted of any other of such offences committed with respect to the same property, if such other offence is established by the evidence.”

In view of the expression “he may be convicted of any other of such offences committed with respect to the same property” I consider the provision quite inappropriate for application in the circumstances of this case. Obviously the words quoted are not a reference to a conviction of stealing a different kind of property than that laid in the indictment.

Finally I was referred to s. 641 of the Code, a further section in aid in the case of charges of stealing money. This provision, it was suggested, provides additional powers to those which undoubtedly exist to convict, for example, of theft of a smaller sum than that charged in the indictment.

The relevant provisions of s. 641 are as follows:

“On the trial of a person charged with any such offence” (stealing money which came into his possession by virtue of his employment) “it is not necessary to prove the stealing .... by the accused person of any specific sum of money if .... there is proof of a general deficiency and if the jury are satisfied that the accused person stole the deficient money or any part of it.”

These words, it is argued, apply literally to the present case. This is so with the exception of the words “general deficiency” and “deficient money” which present considerable obstacles to this argument. I consider that these words ought to be construed as referring to a general deficiency of money as appears from the expression “the deficient money”. The clear meaning in s. 568, a related provision, is that the reference is to a general deficiency of money. There is here, however, proved a general deficiency of goods and money and of that general deficiency money is undoubtedly a part which is deficient. As far as that part is concerned, whatever its quantum may be, the case is proved. The words, “or any part of it” are relied on by the Crown as enabling a conviction for the whole sum charged have no application since it is not part of the overall deficiency in goods and money which exists in this case which is there referred to but a part of the monetary deficiency, and as I have found a monetary deficiency is all proved, except as to its quantum. This provision would not, therefore, enable me to convict on the whole amount charged on proof that some of it was stolen not being satisfied that the whole amount stolen was money.

I am, therefore, left with the only facts I am able to find beyond reasonable doubt on this indictment, that is that the accused did steal money from his employer. In view of his original admission to Inspector Watson and taking into account his subsequent denial that he gave away any goods, a denial which I do not accept, I believe that he did give some goods away to friends and wantoks. I would find, if the case were one of probabilities, that this was a small quantity in view of the terms of the other admissions by the accused. Treating the case, however, as I must, as one of proof beyond reasonable doubt, I find myself believing beyond reasonable doubt that the quantity of goods given away amounted to less than half of the amount of the overall deficiency, that is that the accused stole at least $300.00 in money.

I find the accused guilty of theft of the sum of $300.00 from his employer.

Verdict of guilty of theft of $300 from employer.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.

Solicitor for the accused: G. R. Keenan, Acting Public Solicitor.

[cclii]Infra p. 185.

[ccliii](1871) L.R. 1; C.C.R. 328.

[ccliv][1952] 1 All E.R. 804.

[cclv]Evidence & Discovery (Papua) Act 1913-64:—

Section 66—Comparison of a disputed handwriting with any writing proved to the satisfaction of the Judge or person acting judicially to be genuine may be made by witnesses and such writings and the testimony of witnesses respecting the same may be submitted to the Court or such person and the jury or assessors if any as evidence of the genuineness or otherwise of the writing in dispute.