State v Gregory [2007] PGNC 2; CR 170 of 2003 (12 March 2007)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 170 OF 2003

STATE

v

BEN GREGORY

Kokopo: Lay J
2007: 9 and 12 March

CRIMINAL LAW- Criminal Code s 386 - no case submission-" recent possession" rule.

Facts

The accused was with a group of youths who made a plan to rob two victims. When they approached the victims the accused said in his record of interview that he realised one of them was his former school friend. He remonstrated with the group leader but was threatened. Then when the group leader pulled a knife on one of the victims the accused said he ran away before the robbery proceeded. There is no eyewitness evidence of the accused being present during the robbery. Later that same evening the accused was found with a billum, part of the proceeds of the robbery.

Held

The doctrine of "recent possession" could not by inference of fact place the accused at the scene of the robbery during the robbery when (a) the accused in his record of interview said he was not there during the robbery, and (b) a reasonable explanation was given for possession of the stolen item when he was found with it. There being no evidence to rebut the accused’s own evidence in his record of interview, tendered by the State, that he left the scene at the commencement of the robbery, the State has not proven that he was present and part of the robbery. The State has not proven its case sufficiently to call upon the accused to defend.

Accused acquitted.

Cases Cited
R v Griffin [1974] PNGLR 72

Counsel
S. Luben, for the State
L. Siminji, for the accused

RULING ON "NO CASE" SUBMISSION

1. LAY J.: The accused has entered a plea of not guilty to one count of armed robbery contrary to section 386 of the Criminal Code.

2. The State case as it was put in the brief facts on arraignment is that the accused was part of a group of youths who accosted two victims at the beachfront near Rabaul Memorial Church between 5:30 and 6:30 p.m. on 27 September 2002. A small knife was put to the throat of one of the victims and they were robbed of some cash and personal effects to the value of K850.

3. The State called one of the victims who gave particulars of the robbery in terms of the brief facts but was unable to identify the accused as being one of the persons present during the robbery. He did say that later in the evening he and the other victim went to consult a senior leader in Malaguna No.2, who was not home but his son George came to assist them. They saw the accused with a bilum belonging to one of the victims and took it from him. George asked the accused where he got the bilum and the accused replied some people gave it to him.

4. The State also called a policeman who gave evidence concerning the taking of a record of interview from the accused. The record of interview subsequently went into evidence without objection from the defence. In the record of interview the accused admits being at the scene when the group he was with decided to rob the two victims. However he went on to say that when they approached the victims he recognised one of them was his school friend. He then remonstrated with Emil, apparently the group leader, who threatened the accused. He saw Emil put a knife to one of the victims. When he saw that, the accused said he ran away.

5. So in summary the State case is that by the admission in his record of interview the accused was at the scene and was subsequently found with part of the stolen property from which it is suggested an inference can be drawn that he was present during the robbery.

6. Against that inference the defence submits first that in the same record of interview the accused says he withdrew from the scene at the commencement of the robbery and that when asked he provided an explanation of how he came by the bilum. This latter issue was not explored at all by the police in the record of interview.

7. In the case of R v Griffin [1974] PNGLR 72 Prentice J. at 75, gave this explanation of the doctrine of recent possession:

"Under the doctrine of recent possession, where there has been a robbery and part of the stolen property is found soon after in the possession of a person not the owner, a presumption of fact may therefore be raised against that person to the effect that he stole the articles, where he does not give a reasonable account of how he got the property. If an explanation is given by that person and it appears to be a reasonable one, the tribunal should acquit, even if it does not positively accept the explanation. But when an accused on being questioned has given an explanation of his possession which is admittedly untrue... the presumption of guilt does arise. This is a presumption which may be rebutted and, if the subsequent explanation of the prisoner satisfies the jury, or raises a reasonable doubt, he is still entitled to an acquittal."

8. In the circumstances of this case, I do not think it can be said that the explanation given for the possession of the bilum is unreasonable. It could well be the case that after the robbery the group returned to Malaguna No. 2 and met up with the accused and gave him the bilum. Where a reasonable explanation is given for possession of the stolen property, an inference cannot be drawn that the person in possession was the person who stole the property.

9. So in the circumstances, where the only direct evidence before the court is the accused own unsworn statement that the accused had left the scene of the robbery immediately at the commencement of the robbery, and a reasonable explanation is given for possession of the stolen property, I do not consider that the State has established a case of sufficient probative value to call upon the accused to defend it. There is no evidence which places the accused at the scene during the robbery.

10. Although the evidence produced by the State might well sustain a charge of receiving stolen property, the circumstances do not meet the requirements of Criminal Code s 547 so that it is not possible to bring in a verdict of guilty on that charge as it cannot be an alternate verdict when the accused is charged with robbery. There is no case for the accused to answer.

11. I acquit and discharge the accused.

_________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused.