David v David [1988] PGNC 26; [1988-89] PNGLR 178; N687 (20 August 1988)

N687

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

ZIMBIN DAVID

V

YAPU DAVID

Rabaul
Bredmeyer J

13 August 1988
20 August 1988

CRIMINAL LAW - Particular offences - Receiving stolen property - Elements of charge - Proof that property "stolen" - Sufficiency of - Inference from circumstances of acquisition - When available - Criminal Code (Ch No 262), s 410.

Held:

(1) In order to support a charge of receiving stolen property under s 410 of the Criminal Code (Ch No 262), the State must prove:

(a) that the property was stolen;

(b) that the accused received the property; and

(c) that the accused knew the property was stolen.

It is not necessary to allege or prove from whom the property was stolen.

(2) The circumstances in which property is received may, in themselves, be sufficient proof that the property was stolen.

R v Korniak (1982) 76 Cr App R 145, followed.

(3) In circumstances where the accused was drinking in an hotel with K who was unemployed, when K placed K100 cash in his shirt pocket and in reply to the question "Whose money was it?", said "It is your money, take it and keep your mouth shut", the inference was clearly open that the money was stolen.

Cases Cited

The following cases are cited in the judgment:

Acting Public Prosecutor v Yongga [1981] PNGLR 314.
R v Hulbert (1979) 69 Cr App R 243.
R v Ilett (1974) (Unreported, Full Court decision No 69).
R v Korniak (1982) 76 Cr App R 145.
R v McDonald (1980) 70 Cr App R 288.

Appeal against conviction and sentence

The appellant was convicted after a trial by a Grade 5 magistrate of receiving K100 of stolen money and fined K600 in default six months imprisonment. He appealed against conviction and sentence.

Counsel:

A Robinson, for the appellant.
N Miviri, for the respondent.
Cur adv vult

20 August 1988

BREDMEYER J.: The appellant was convicted by a Grade V magistrate of receiving stolen property under s 410 of the Criminal Code (Ch No 262). The elements of the offence are threefold: the defendant must receive the thing, it must have been stolen, and the defendant must have known that it was so obtained. The appellant was convicted of receiving K100 of stolen money, knowing it to have been stolen and fined K600 in default six months imprisonment.

The only issue in this case is: did the prosecution prove that the money was stolen? In some cases the prosecution can prove the theft of the goods found on the defendant by direct evidence. For example, a witness might be called to say that on a particular night he suffered a break and enter and his 20" Sharp brand TV serial No XYZ 2468 was stolen. If that is the TV set found in the possession of the defendant, then the prosecution has proved the theft.

In most cases no direct evidence of theft is available but the circumstances in which the property is received may be in themselves sufficient proof that the goods were stolen. The defendant’s admission of the circumstances in which he got the goods may allow an inference to be drawn that they were stolen. A good statement of the law is found in S Mitchell & P Richardson Archbold Pleading, Evidence & Practice in Criminal Cases (42nd ed, 1985), par 18-156:

"Admission of belief that goods were stolen as evidence that they were.

Where an accused, upon being questioned by the police about certain goods, admits that he had purchased them and that at the time he believed them to have been stolen, such an admission, in the absence of any other evidence, is not sufficient to permit an inference by the jury that the goods were stolen goods: R v Porter [1976] Crim LR 58; R v Marshall [1977] Crim LR 106; Attorney-General’s Reference (No 4 of 1979) [1981] 1 WLR 667 (CA). The general evidential principle upon which these decisions are based is that an accused person’s admissions are only evidence against him where it appears that he had personal knowledge of the facts admitted: Surujpaul v The Queen [1958] 3 All ER 300, 304; Comptroller of Customs v Western Letric [1966] AC 367. However, the circumstances in which the defendant received the property may be proved by his own admission, and on the basis of those circumstances an inference may properly be drawn that the property was stolen: Bird v Adams [1972] Crim LR 174 (DC); R v Hulbert (1979) 69 Cr App R 243, CA; R v McDonald (1980) 70 Cr App R 288. In Hulbert it was pointed out that the accused’s statements may be admissible to prove, inter alia, the place in which the property was received, the amount paid, the circumstances in which it was offered, the state of the property and the personality of the seller. What the accused was told about the origin of the goods while inadmissible for the purpose of proving the goods to be stolen will, of course, be relevant to the question of dishonesty and whether or not the accused knew or believed the goods to be stolen. Hulbert was applied in R v Korniak (1982) 76 Cr App R 145 (CA): where a defendant gives several different versions of the facts, not all of which could be true, the jury are entitled to believe any one of those differing or conflicting versions. In Korniak itself the defendant gave only one account of how he came to be in possession of goods: this account was such as to entitle the jury to draw an inference that the goods were stolen. However, it was argued that because he had lied to the police initially, it was obviously possible that his account of how he acquired possession might also be untrue and, if that was so, there was no evidence before the jury upon which they could base any inference that the goods were stolen. The Court of Appeal accepted the first limb of the argument but was dismissive about the suggested conclusion: ‘... if it too was untrue, it is safe to infer that the truth would have been even more damaging’ (per Everleigh LJ, at p 149)."

In R v Hulbert (1979) 69 Cr App R 243, the police called no evidence that the goods were stolen apart from the defendant’s admissions. She was found with a large quantity of new clothing in her home most of which had the labels removed. She picked out 14 items she said she had bought at ridiculously low prices from people in pubs whom she did not wish to name. She also said she knew or believed the goods to have been stolen. It was held on appeal that the jury could be invited to infer from the circumstances of the acquisition that the goods were stolen.

In R v McDonald (1980) 70 Cr App R 288, the defendant admitted having bought a TV set off a man in a betting shop for £90 which he thought was worth £280 and which he thought was stolen. His admission of the theft did not prove it was stolen since a man cannot admit to matters outside his own personal knowledge but it was held that the jury could infer theft from the circumstances of how he bought the TV set.

The relevant facts were very similar in R v Korniak (1982) 76 Cr App R 145. The defendant was found with a bag of jewellery in an hotel. At first he denied the bag was his but later admitted it. He said that a man had wanted £2,000 for the jewellery but he had bought it from him for £100. He told the police that they would have to "do" him for receiving stolen property. The Court of Appeal held that there was ample evidence from those circumstances to find that goods were stolen. Everleigh LJ reading the judgment of the Court of Appeal (at 150) said:

"Statements made by a defendant charged with handling stolen goods must be carefully analysed. The statement may be relevant to establish that he knew or believed that the goods were stolen or to establish that the goods were in fact stolen. Statements of fact must be distinguished from statements of belief. The latter do not prove that the goods were in fact stolen. On the other hand statements of fact which are within the defendant’s knowledge are clearly admissible to prove that the goods were stolen."

Applying those principles from the cases cited to the case before me on appeal, can an inference be drawn beyond reasonable doubt from the defendant’s admissions that the K100 was stolen? The defendant said that on 21 November 1986 he was drinking beer with John Kevuk who placed K100 in his shirt pocket. He asked Kevuk, "Whose money was it?" and he said, "It’s your money, take it and keep your mouth shut". No evidence was led as to the relationship between the appellant and Kevuk. I know that Kevuk was not employed at the time and that the appellant did not ask for money. What to make of this? The fact that the appellant asked, "Whose money was it?", and that Kevuk was not employed, indicates that the appellant did not believe it was Kevuk’s money that he was not expecting the money and that he was surprised by the gift. The answer was secretive. To say "It’s your money", did not directly answer the question, and to say "take it and keep your mouth shut" implies that it was acquired dishonestly. I believe that it was open to the magistrate to infer from these circumstances that the money was stolen, not necessarily from the State as was alleged in the information, but that it was stolen nevertheless. Where it was stolen from, although alleged in the information, is not an essential element of the offence based on the cases. In many cases the Crown gets a conviction without being able to prove from whom the goods were stolen.

I see no substantial miscarriage of justice and dismiss the appeal against conviction.

SENTENCE

On sentence I consider the sentence was manifestly excessive. It is true that receiving is regarded by the law as very serious, eg, 14 years maximum imprisonment against three years imprisonment for simple stealing and this is so for two reasons. The first, is that the receiver is very often "the fence", the one who sells the stolen property, and without him, in some types of theft there would be no thieves, eg, the receiver of stolen car parts. Secondly, as the magistrate said in this case, the receiver runs less risk of being caught. The first reason has no application to the theft of money. A man who steals money does not need a receiver to help him dispose of it, and hence a receiver of money does not encourage the theft of money.

I admire the industry of the magistrate in citing two old cases on receiving sentences but they are not really very apposite. R v Ilett (1974) (Unreported, Full Court decision No 69) was a conviction for stealing a generator worth apparently about K2,000. A sentence of one years imprisonment was upheld on appeal. That is an old case and since then I can say from my own knowledge of the criminal law — that sentences for offences of dishonesty (without violence) have gone down. The second case cited was Acting Public Prosecutor v Yongga [1981] PNGLR 314. There the accused was a clerk on the Lae wharf and pleaded guilty to receiving K28,000 worth of goods stolen from the wharf over an 18-month period. Nothing was recovered. The trial judge, Kidu CJ, gave him an effective sentence of one year which was increased on appeal to three years. The facts of that case are so vastly different that it is of little help in this case. The offence related to goods worth K28,000, not K100 money; it was a planned, sophisticated operation involving the misuse of company dockets and the sale of all the received goods for cash. It continued over 18 months, compared to this appellant’s spur-of-the-moment acceptance of K100 cash given to him by a friend or acquaintance.

David Zimbin had no priors at the time although the prosecutor said he had breached a bond by this offence. If so, the punishment for that breach is separate from the punishment for this offence. I allow the appeal against sentence and substitute a fine of K250 in default two and a half months imprisonment.

Appeal against conviction dismissed Appeal against sentence allowed

______________________________

Lawyer for the appellant: Deputy Public Solicitor.
Lawyer for the respondent: Deputy Public Prosecutor.