N4800
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1271 OF 2010

THE STATE

V

DAVID WILFRED YAHRESASE

Waigani: Gauli AJ.
2012: 14, 18, 19, 20, 21 September

CRIMINAL LAW – Trial – Stealing – Criminal Code, s. 372 – Stealing from employer – Accused raid defence of alibi – Identification of accused – By a static guard – Identification made on broad day light – Quality of identification good – Defence of alibi fails – Verdict – Guilty. 

CRIMINAL LAW – Voir dire – Whether confessional statement made voluntarily – Whether record of interview obtained freely – Accused assaulted by CID Officer before making confession – Accused interviewed at night – No evidence of injuries sustained by accused – Allegation about assault by police untrue – Confessional statement and R.O.I. admitted into evidence. 

Cases Cited:

The State v. Konto Kot (1987) N623
The State v. Paro Wampa [1987] PNGLR 120
John Beng v. The State [1977] PNGLR 115
John Janinan v The State (No.2) [1988] PNGLR 318
SCR No.1 of 1980 [1981] PNGLR 28
The State v. Paul Dimon Asilip (2011) N4197

Counsel

Mr. T. Ai & Ms H. Roalakona, for the State
Mr. A. Ninkama & Ms. R. Kwayoila, for the Accused

RULING ON VOIR DIRE AND JUDGEMENT ON VERDICT 

20 September, 2012

1.	GAULI AJ: The accused David Wilfred Yahresase is charged for stealing a vehicle from his employer, pursuant to section 372 (1)(7)(10) of the Criminal Code Act. He pleaded not guilty. He challenged the manner in which his confessional statement and the record of interview were obtained by the police investigation officers. The court first proceeded to voir dire trial to establish the admissibility of the confessional statement and the record of interview. And he raised a defence of alibi. 

1.	RULING ON VOIR DIRE. 

ISSUES:

1)	Whether the accused's confessional statement was obtained voluntarily?

2)	Whether the record of interview was obtained fairly?

ISSUE 1: Whether the accused confessional statement was obtained voluntarily?

2.	The State called 3 witnesses namely Joseph Pou, Munny Saun and Lokou Aniau. Mr. Munny Saun is the internal investigator with the PNG Power Ltd. Joseph Pou is the detective senior constable attached to the Criminal Investigation Division (CID). Lokou Aniau is the police constable attached to the Fraud and Anti – Corruption Division.

EVIDENCE FOR THE STATE

3.	Basically the evidence for the State is that on the 5th of February 2010 the accused was handed over to the CID police at the PNG Power car park for investigation. There the accused admitted that he drove out the vehicle from the car park and sold it to a person by the name of Tonny. The accused led them to Hohola and stopped near the freeway where he delivered the vehicle to Tonny. Then he led them to 2 - 4 market at Gerehu Stage 3 and pointed to a house believed to be Tonny's. Police checked the house but there was no Tonny in that house. They then took the accused to Boroko police station, arrested him and charged him and locked him in the cell. The witnesses denied assaulting the accused between the time the accused was taken from the PNG Power premises to the time he was arrested, charged and locked up.

4.	On Sunday 7th February 2010 he freely gave his confessional statement to police at the Boroko CID office after he was cautioned and informed of his s. 42 (2) Constitutional right. And on 23rd April 2010 he was interviewed where he freely and voluntarily admitted the offence. 

DEFENCE EVIDENCE

5.	The accused's evidence is that the two CID officers, Joseph Pou and Lokou Aniau assaulted him first at the PNG Power car park and at the 2-4 market at Gerehu Stage 3 after he pointed to a house to be that of one Tonny. At Landswell Resources workshop at Gorden he was blind folded and stripped naked and was hit with a rifle butt and iron rod. He was in a lot of pain so he told the police he will cooperate. On Saturday 6th February he was taken out at 10.00am to the interview room and Lokou Aniau assaulted him with a chair on the head. He was taken to his PNG Power flat at Hohola where police searched the flat before been returned to Boroko police cell. On Sunday 7th February at 11.00 pm, he made his confessional statement in fear of further assault. During the R.O.I on 23rd April, he admitted that he sold the vehicle as per his confessional statement since the corroborator left the interview room early. 

DECISION OF COURT

6.	I have heard and considered the submissions from both parties. Defence counsel referred to decided cases namely The State v Konto Kot (1987) N623 and The State v. Paro Wampa [1987] PNGLR 120. These cases relate to the admission of the Constitutional right under section 42 (2) of the Constitution where the rights were administered after at the end of the R.O.I and not at the beginning. These cases are therefore not relevant. 

7.	I have found that there are some inconsistencies in the evidence for the State. These inconsistencies includes Joseph been armed with a rifle and he assaulted the accused at the PNG Power car park on the 5th of February and taking the accused to Hohola police station as per the evidence of Aniau Lokou. I am not satisfied by the defence evidence that he was assaulted on the 5th of February while been taken around certain parts of the city. I am not convinced by the accused evidence that he was taken out of the cell on Saturday 6th and on Sunday 7th February at 11.00pm. He was handed over to the CID police by the internal investigators of the PNG Power Ltd some 5 or 6 days after the alleged offence took place. There is no reason to believe that the police would have gone out of their way to assault him in the way the accused described it as he was not arrested while on the run. The accused gave evidence of him been hit with an iron rod by Aniau Lokou while he was blind folded. He raised his left arm to defect the blow. He was blind folded with his uniform shirt. Surely he could not be able to see the blow coming. That is incredible and unbelievable. 

8.	The confessional statement was made two days after the accused was apprehended. When he gave his confessional statement, I find that there were no threats made to him nor was he assaulted. I am satisfied that he was taken out on Sunday 7th February at about 10.00am and he gave his confessional statement freely. He never told the interrogating officer during the R.O.I on the 23rd April 2010 that he made his confession under duress. I accept his Confessional Statement taken on the 7th February as evidence in court and be marked as Exhibit "B". 

ISSUE 2: Whether R.O.I was obtained fairly? 

9.	On 23rd of April 2010, the witness Joseph Pou conducted the record of interview (R.O.I.) in the presence of the corroborator Lina Waranduo at the Boroko CID Office. That was over two months later. The accused freely cooperated and he freely answered the questions put to him saying that his story will be the same as per his confessional statement. He never said during the R.O.I that he made his confessional statement of the 7th February under duress. The R.O.I was signed by interrogating officer, the corroborator and the accused. No force or threats were used during the R.O.I. and the R.O.I marked as MFI – 2 for identification only as defence objected to it been tendered as exhibit. I am satisfied that the R.O.I was conducted some two months later. There were no threats or assaults applied on the accused. It was obtained freely and voluntarily after section 42 (2) Constitutional rights were put to him. I accept the R.O.I. as evidence in court and be marked Exhibit "C". 

10.	Having accepted the Confessional statement and the R.O.I into evidence, the trial continues with the State's case. The State calls its last witness Moses Gari. 

2.	JUDGEMENT ON VERDICT. 

11.	The accused is charged of stealing under section 372 (1)(7) &(10) of the Criminal Code. If the offender steals from his or her employer and the value of the property stolen is over K1,000.00 the offender falls under Subsection (7) and (10) of section 372 of the Code. 
12.	There is no dispute that the accused was the employee of the PNG Power Ltd at the time the subject vehicle got stolen. The only issue is whether the accused is the person who stole it. 

13.	It is a trite law that in a criminal trial the onus of proof rests upon the prosecution from the beginning to the end. And the prosecution must prove every element of the charge beyond reasonable doubt. And the prosecution must disprove any defence or explanations raised by the defence: SCR No.1 of 1980 [1981] PNGLR 28. Under section 37 (4) of the Constitution a person charged with an offence remains innocent until he is proven guilty by the prosecution. 

14.	Where a defence of alibi is raised, the law is well settled in John Jaminan v. The State (No.2) [1983] PNGLR 318 that the burden of proof always remains with the prosecution. The prosecution must disprove the alibi evidence. But the accused must lead some evidence in support of the alibi that must be sufficiently convincing to create a reasonable doubt in the mind of the tribunal of fact: see The State v. Paul Dimon Asilip (2011) N4197. 

EVIDENCE FOR THE STATE

15.	The evidence for the State comes from the witnesses Joseph Pou, Munny Saun, Lokou Aniau and Mosese Gari who gave sworn evidence. The evidence for the witnesses Joseph Pou, Munny Saun and Lokou Aniau are as stated above under voir dire trial. I do not intend to restate them. This Court accepted into evidence the accused's Confessional Statement (Exhibit "B") and the R.O.I (Exhibit "C"). 

16.	The State also tendered the following documents by consent of the defence. These documents are: Statement of Crusoe Dilli (Exhibit "E"); Statement fo Ben Tolimanaran (Exhibit "F"); Statement of Vincent Tolopa (Exhibit "G"); Affidavit of Aukamu Aukopi (Exhibit "H"); and Certificate of Registration and Insurance (Exhibit "I"). 

17.	The witness MOSES GARI gave evidence that he is currently unemployed. He was previously employed by the Ute Security Services as a static guard attached to the PNG Power Ltd at Hohola. His job was to look after the guards and keep a log book of all the PNG Power vehicles coming in and going out of the car park. He worked there for one year. On Saturday 30th January 2010, he was on duty from 6.00am to 6.00pm. While on duty he saw the accused sitting under the mango tree at the car park. At around 11.00 am he saw a PNG Power vehicle, a Toyota Land Cruiser registered number ZPL 127 being driven out by the accused. He was some 20 metres from the gate when he saw the accused drive out the vehicle. The vehicle did not have tinted glass. The accused was employed by the PNG Power at the time. He identified him only by facial appearance but not by name. During cross – examination, the witness was not moved of his identification of the accused.

18.	Moses Gari"s Statement to Police tendered by defence as Prior Inconsistence (Exhibit "D"). 

19.	The statement of Crusoe Dilli (Exhibit "E") is that he is the custodian of the subject vehicle registered number ZPL 127. On Thursday 28/01/2010, his work colleague returned the vehicle key to him just before lunch and he locked the key away in his locker. On Friday 29/01/2010 he did not go to work as he attended to sort out his children in their respective schools. On Monday 01/02/2010 he noticed the vehicle was not at the car park. 

20.	Ben Tolimanaran in his statement (Exhibit "F") said on Friday 29/01/2010 he and Ruben Muru used the vehicle ZPL 127 to Moitaka Power Station about 11.00am and returned the vehicle before lunch and parked at the car park. Mr. Crusoe Dilli locked the vehicle key away.

21.	Vincent Tolopa in his statement (Exhibit "G") said he was approached by Ben Tolimanaran on Friday 29/01/2010 to use the vehicle so he gave him the spare key and he used the vehicle. The vehicle was returned before lunch by Reuben Muru and the key returned to the Fuel Officer Margaret Yawat. 

22.	Aukamu Aukopi in his Affidavit (Exhibit "H") deposed that the vehicle Toyota Land Cruiser ZPL 127, alleged to have been stolen by the accused was bought by PNG Power Ltd on 12th March 2008 at K84,199.95 registered and insured on 20-MAR-2009 expiry date 19-MAR-2010 (Exhibit "I). 

DEFENCE EVIDENCE 

23.	The defence called two witnesses – David Wilfred Yehresase (accused) and Lloyd Kivan as alibi witness. The evidence for the accused David Yehresase is in the voir dire trial. I do not intend to restate that here. 

24.	For the defence of alibi evidence, the accused and Lloyd Kivan gave evidence. Basically their evidence is that on the 30th January 2010 Mr. Lloyd Kivan held a birthday party for his son Lloyd Kivan Junior. The accused David Yahresae was at Lloyd Kivan's residence at Murray Barracks from about 7.30 am until night. The accused was assisting in doing all the preparations for the party, that includes doing shopping at Hohola and Gorden market and picking up the live pig at 14 Mile and preparing the Mumu. He never left Lloyd's premises until about 8.00pm. 

ISSUE: 

1.	Identification of the accused. 

2.	 Whether the accused drove the subject vehicle out from the PNG Power car park on the 30th January 2010. 

25.	Mr. Moses Gari is the only State witness who gave evidence that he saw the accused drive out the vehicle from the PNG Power premises car park on 30th January 2010. He said he was about 20 metres from the gate when he saw the accused driving out the vehicle. The windscreens were not tinted. He slightly bent down to get a clear view of the person driving the vehicle. He knew the accused by appearance only but not by name. Before the vehicle was driven out, he saw the accused sitting under the mango tree. 

26.	The accused and the witnsess Lloyd Kivan said that on the day and at the relevant time the subject vehicle was driven out from the PNG Power car park, the accused was at Lloyd Kivan's residence. 

27.	Defence submitted that the identification of the accused by witness Moses Gari was made at a fleeting glance and he only saw the person driving out the vehicle from the side. He did not have sufficient time to make the observation. The identification was made from a distance of 20 metres while the vehicle was been driven out therefore identification was not good. And witness Moses Gari never mentioned this in his statement to police. He is not a truthful witness.

28.	State submitted that evidence of Moses Gari is one of recognizance and not one of identification. He maintained it was the accused who drove out the vehicle. He did not record the vehicle because did not know the name of the accused. 

29.	The law in respect to identification are well settled in John Beng v. The State [1977] PNGLR 115 by the Supreme Court. A recognizance is more reliable than identifying a stranger. But mistakes can be made even when recognizing a relative or a close friend. It all depends on the quality of identification. If the quality is good the court can safely assess the evidence even when there is no other evidence to support it. But if the quality is poor then an acquittal shall be the result.

30.	It is also a trite law that when a defence of alibi is raised, the onus remains with the State. The burden never shifts to the defence: see John Jaminan v. The State (No.2) [1983] PNGLR 318. 

31.	I have considered the submissions and the evidence from both parties. The witness Moses Gari had been working at the PNG Power as the static guard for one year. He knew the accused by appearance as the accused works there. He has seen him every day. Before the subject vehicle was driven out, he saw the accused sitting under a mango tree at the PNG Power car park area. He was only about 20 metres when he saw the vehicle being driven out. It was a broad day light. The windscreens of the vehicle were clear (not tinted). He was recognizing someone he has seen very often there. He was firm and was not moved to cast any doubt in his mind that the person he saw driving out the vehicle was none other than the accused. I find that the quality of his recognizance or identification of the accused at the time was good. 

32.	The accused raised an alibi that he was at the birthday party at the material time the vehicle was driven out could not be believed. In his confessional statement and the record of interview (Exhibits "B" & "C"), which have been admitted as evidence after the voir dire trial, established that he drove the vehicle out and sold it to one Tony from the Highlands. In the R.O.I. he never told the police that he was attending a birthday on the day the vehicle went missing. If he has told lies to police in his R.O.I and in the confessional statement, then he is also telling lies to this court as well. He is a person who cannot be believed to be a truthful witness. 

33.	For the reasons I have alluded to above, I find that the defence of alibi must fail. I find that the accused was properly and adequately recognized by witness Moses Gari and that the accused was the person who drove out the subject vehicle from the PNG Power car park and it was never returned. Since the day the vehicle was removed from the car park, it has never been recovered to date. 

CONCLUSION

34.	From the evidence as it stands before this court, I find beyond any doubt that the State has proven beyond reasonable doubt that the accused stole the subject vehicle, a Toyota Land Cruiser ZPL 127 the property of his employer the PNG Power Ltd. Accordingly, I return a verdict of guilty against the accused.

__________________________________
Public Prosecutor: Lawyers for the State.
Paul Paraka Lawyers: Lawyers for the Accused.