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State v Epei [2019] PGNC 225; N7845 (6 May 2019)


N7845

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC) 182 of 2018


STATE


V
CHARLES ANDREW EPEI


Waigani: Berrigan J
2018: 13, 14, 23 November and 2019: 6 May


CRIMINAL LAW– Practice and procedure – Section 7(1)(c) of the Criminal Code – aiding – presence at the scene of the crime – circumstantial evidence – departure from the scene of the crime - consciousness of guilt.


On the presentation of a joint indictment charging one count of stealing K47,700 from the safe in the Office of the Assistant Commissioner of Police, Royal Papua New Guinea Constabulary (RPNGC), at Boroko Police Station, National Capital District, and one count of wilfully and unlawfully setting fire to the building housing the Office, the accused’s wife, Agnes Jimu, pleaded guilty and gave evidence in her husband’s defence. The accused denied all knowledge of the offences.


Held:


(1) To establish “aiding” for the purposes of s 7(1)(c) of the Criminal Code (Ch. 262.) (the Criminal Code), the State must first prove that a crime has been committed by another person: R v Tovarula [1973] PNGLR 140.

(2) The State must also establish that the accused knew what offence was or might be committed, including where relevant the state of mind of the principal offender, and acted with intention to aid him: Tovarula, supra.

(3) In addition to intention to aid, there must be aiding in fact: R v Wendo [1963] PNGLR 217.

(4) Mere presence at the scene of a crime is not of itself sufficient to constitute aiding for the purposes of s. 7(1)(c) of the Criminal Code. In some cases, however, an accused may assist or encourage the commission of a crime by being present, for instance by providing moral support to the primary offender or demonstrating a willingness to assist if required. In other words, presence and wilful encouragement will suffice: Tovarula.

(5) It is not necessary, however, that the presence be a strict actual and immediate presence provided that the presence was and remained up to the commission of the offence pursuant to a common design: Tovarula.

(6) To establish liability pursuant to s. 7(1)(c) against the accused in the present case the State needed to establish with respect to each of Counts 1 and 2 that: (a) the principal offence was committed; (b) the accused knew what the principle offender, Agnes Jimu, was planning; and (c) intentionally assisted or encouraged Agnes Jimu by his presence to commit the offence.

(7) The evidence relied upon by the State to establish (b) and (c) with respect to each count was circumstantial.

(8) It is well established that in a case resting wholly or substantially upon circumstantial evidence, an accused cannot be found guilty unless the prosecution has excluded all rational hypotheses consistent with innocence; that is the guilt of the accused must not only be a rational inference, but the only rational inference in all of the circumstances: Paulus Pawa v. The State [1981] PNGLR 498 approving The State v. Tom Morris [1981] PNGLR 493, adopting Barca v. The Queen [1975] HCA 42; (1975) 50 ALJR 108 quoting Peacock v the King [1911] HCA 66; (1911) 13 CLR 619. See more recently Maladina v The State (2016) SC1495. See also The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308.

(9) For an inference to be reasonable it must rest upon something more than conjecture. The bare possibility of innocence should not prevent a finding of guilt: Paulus Pawa v. The State (supra).

(10) It is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference: Baden-Clay citing Barca (supra).

(11) Where an accused chooses to give evidence, however, that evidence may narrow the range of alternative hypothesis reasonably available upon the evidence: Baden-Clay adopted and applied.

Consciousness of Guilt


(12) It is well established in this jurisdiction that lies may in certain circumstances evidence a consciousness of guilt on the part of an accused person: Koroka v The State [1988-89] PNGLR 131. For similar reasons, other post-offence conduct by an accused may evidence a consciousness of guilt, for example fleeing the scene of a crime, hiding from police or concealing evidence: R v Melrose [1989] 1 Qd R 572 adopted and applied.

(13) In recognition that a person may leave the scene of a crime for a number of reasons other than guilt, for example panic, embarrassment or fear of accusation, before drawing an inference of guilt it is necessary to find that an accused departed a crime scene because of a consciousness of guilt in relation to the offence charged and not for any other reason: Edwards v R [1992] HCA 19; (1992) 173 CLR 653.

(14) In order to draw the inference it is not necessary to be satisfied beyond reasonable doubt of the accused’s guilt. Rather, if the inference is established it is another circumstance to be considered and weighed with all of the other evidence when determining whether or not the accused is guilty beyond reasonable doubt: R v Baden-Clay at [77].

(15) In this case the accused’s attempt to and subsequent departure from the scene of the crime demonstrated a consciousness of guilt with respect to each of the offences and was taken into account with all the other evidence when determining whether or not the accused was guilty beyond reasonable doubt.

Count 1


(16) The evidence at trial established beyond reasonable doubt that Agnes Jimu stole K47,700 from the safe in the Office of the Assistant Commissioner of Police on 5 October 2017. At the time she took the money from a public office in which it was kept she intended to permanently deprive the RPNGC of it, its owner for the purpose of s. 365 of the Criminal Code. She opened a locked room and safe by means of a key to do so.

(17) The State has excluded any rational inference that the money was stolen two days earlier or on another date.

(18) All the facts and circumstances taken together established beyond reasonable doubt that the accused’s presence at the scene of the crime that night was deliberate and made in full knowledge of the stealing Agnes Jimu intended to commit, and with the intention to encourage her in the commission of the offence by providing moral support and a readiness to assist. The State has excluded any rational inference that the accused was there unwittingly.

(19) The State has further established beyond reasonable doubt on all the evidence that the accused by his presence did in fact encourage Agnes to commit the offence of stealing.

(20) The accused is found guilty of stealing contrary to s. 372(1)(5)(e)(10) of the Criminal Code pursuant to s. 7(1)(c) of the Criminal Code.

Count 2


(21) It was not in dispute and the evidence established beyond reasonable doubt that Agnes Jimu wilfully and unlawfully set fire to the building in which the Office of the Divisional Commander was situated on 5 October 2017 (arson).

(22) All the facts and circumstances taken together established beyond reasonable doubt that the accused’s presence at the scene of the crime that night was deliberate and made in full knowledge of the arson Agnes Jimu intended to commit, and with the intention to encourage her in the commission of the offence by providing moral support and a readiness to assist. The State has excluded any rational inference that the accused was there unwittingly.

(23) The State has further established beyond reasonable doubt on all the evidence that the accused by his presence did in fact encourage Agnes to commit the offence of arson.

(24) The accused is found guilty of arson contrary to s. 436(a) of the Criminal Code, as an aider, pursuant to s. 7(1)(c) of the Criminal Code.

Cases Cited:
Papua New Guinea Cases


R v Turan (1952) N211
R v Wendo [1963] PNGLR 217
R v Tovarula [1973] PNGLR 140
Wani v The State [1979] PNGLR 593
Koroka v The State [1988-89] PNGLR 131
Mariano Wani Simon v The State [1988-89] PNGLR 131
Maladina v The State (2016) SC1495
The State v. Tom Morris [1981] PNGLR 493
Paulus Pawa v. The State [1981] PNGLR 498


Overseas Cases


Coney [1882] UKLawRpKQB 30; (1882) 8 QBD 534
R v Russell [1933] VR 59
R v Payne (1950) 34 Cr App R 43
R v Lopuszynski [1971] QWN 33
Borg v R [1972] WAR 194.
Barca v. The Queen [1975] HCA 42; (1975) 50 ALJR 108
R v Melrose [1989] 1 Qd R 572
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
R v Henriques (1991) 93 Cr App 237
Edwards v R [1992] HCA 19; (1992) 173 CLR 653
R v Buckett (1995) 132 ALR 669
De Gruchy v The Queen [2002] HCA 33; 211 CLR 85
The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308


References


Sections 7(1)(c), 372(1)(5)(e)(10), 436 (a) of the Criminal Code
Section 13(2) of the Evidence Act


Counsel


Ms H. Roalakona, for the State
Mr S. Tolo, for the Accused

DECISION ON VERDICT

6 May, 2019

  1. BERRIGAN J: On 13 November 2018 the State presented a joint indictment against Charles Andrew Epei and Agnes Jimu that they:

Count 1: “between the 1st day and the 6th day of October 2017, ... stole from a public office, cash monies the sum of ... K47,700 property of the Independent State of Papua New Guinea and in order to steal it opened a locked room and safe by means of a key”, contrary to s. 372(1)(5)(e)(10) of the Criminal Code (Ch. 262) (the Criminal Code); and

Count 2: “on the 5th day of October 2017, wilfully and unlawfully set fire to a building, namely the Office of the Assistant Commissioner of Police”, contrary to s. 436(a) of the Criminal Code.

  1. Co-accused, Agnes Jimu, wife of the accused pleaded guilty to both counts on arraignment insofar as the allegations concerned her own conduct. A provisional plea of guilty was entered subject to the reading of the depositions and in accordance with established practice, the matter was adjourned pending the outcome of her co-accused’s trial in this case: see R v Payne (1950) 34 Cr App R 43. This practice does not normally apply where a prisoner who has pleaded guilty is to be called as a witness for the State. In such instances it is recommended that the prisoner be sentenced before giving evidence to avoid any suggestion that their evidence might be influenced by the prospect of a reduced sentence. In this case, however, the parties indicated that Agnes Jimu was to be called as a witness for the defence, with the consent of her husband, the accused, pursuant to s. 13(2) of the Evidence Act.
  2. The trial commenced and Count 2 of the indictment was subsequently amended by consent as follows (underlined), such that the accused:

Count 2: “between the 5th day and 7th day of October 2017, wilfully and unlawfully set fire to a building, namely the Office of the Assistant Commissioner of Police”, contrary to s. 436(a) of the Criminal Code.


  1. It is not in dispute that Agnes Jimu was employed by the Royal Papua New Guinea Constabulary (RPNGC) as the Divisional Administrative Officer attached to Central Command at the Boroko Police Station, reporting to the Divisional Commander for the National Capital District (NCD), Central Province, who at the material time was Assistant Commissioner of Police (ACP), Sylvester Kalaut. The accused, her husband, was an IT officer with Pacific Post.
  2. It is also not in dispute that Agnes Jimu stole K46,500 from the Divisional Commander’s safe. It is disputed that those monies were stolen on 5 October 2017. Whether a further K1200 was stolen by Agnes from the safe also appears to be in dispute.
  3. It is not in dispute that between 6 and 7 pm on 5 October 2017 Agnes Jimu and the accused went to the Boroko Police Station. Nor that once there Agnes Jimu went into and wilfully and unlawfully set fire to the Divisional Commander’s Office, also known as the ACP’s Office. The accused denies any knowledge of, or participation in, either of the offences committed by Agnes Jimu.

The State Case


  1. The State called 5 witnesses and tendered the following statements and other documents by consent, which I will discuss in more detail as they become relevant below:
  2. Other exhibits admitted during the course of the trial are referred to below.
  3. ACP Sylvester Kalaut gave evidence that Thursday, 5 October 2017 was a normal working day. He was the last person to leave the office, which he locked up at about 5.30 pm. He returned home and subsequently received a panicked phone call from Agnes Jimu. She told him that the office was on fire. He was immediately suspicious because she had been instructed that day to remain in the office to be served with a termination notice, in relation to a separate matter, but had left at about 11 am. He drove to Boroko Police Station arriving at about 6.30 pm where he saw the office in flames, people gathered and fire engines attending to the blaze. He was advised that Agnes had been taken to the hospital. He instructed his Staff Officer, Chief Inspector Lemb, and his support staff to go to the hospital and, following her treatment, bring Agnes back to the station and treat her as a suspect.
  4. Later that evening between 11 pm and 12 am he spoke to Agnes in the Boroko Police Station cells. She volunteered to him that there was some money hidden in a cupboard in the family bedroom, wrapped in a black sweater. Between 12 and 12:30 am that evening he and his officers went to Agnes’ residence at Gordons. They were allowed entry by her family and retrieved K46,500, in K100s and K50s, from the location she described.
  5. Only members of the fire service were allowed entry to the burnt building on the 5th. The following day he inspected the office where he found that the safe was open and its contents burnt. He retrieved several bundles of burnt bank notes: Exhibit K. Two bundles of keys were also found on the floor next to the open safe. Petrol containers were found in the office.
  6. Senior Constable Hillary Aiio gave evidence that between 5 and 7 pm on 5 October 2017 he was in the Criminal Investigation Division Armed Robbery Office at the Boroko Police Station. The office is located on the ground floor of the same building as that of the ACP Divisional Command, which is located on the first floor. He heard a loud sound, a bang or explosion, but was busy attending to reports and didn’t go out immediately. A few seconds later he heard a female screaming for help from above at the rear of the building. He ran out to see what was happening. He saw Chief Sergeant Hualopmomi and others shouting “fire”. There was no one else around but he saw smoke billowing out of the ACP’s Office. That is when he saw Agnes and a male person wearing a baseball cap, clinging on to her left hand, walking out of the entrance leading up to the ACP’s Office.
  7. Agnes called out to Senior Constable Aiio to help her. He didn’t immediately recognise her because she was black or burnt from the fire. She looked like she was in pain and was holding on to her clothing, trying to hold it together because it was torn or burnt. That is when the male accompanying her let go of her hand, turned his back on them and walked towards the back exit to the road. Senior Constable Aiio assisted Agnes to the area outside the CID Armed Robbery Office. He told her not to put water on her burns. He looked for oil instead but did not find any. He then went to assist other police and the public to put out the fire. They could not do it but the fire brigade arrived and took over. He went back to assist Agnes. Her condition appeared to have worsened. He wanted to assist her to get a taxi, a police vehicle or anyone to take her to the hospital.
  8. He did not leave her; he was concerned for her. He took her out of the gate to the main road and hailed a taxi. He asked for a policeman to escort her to the hospital. A male person then approached him and said he would assist. He recognised him as the man he had seen earlier coming out of the building clinging onto Agnes. He did not know him, however, and so initially refused to allow him to assist. The man said that Agnes was his wife. Senior Constable Aiio asked Agnes if that was true and she nodded in agreement and he allowed the man to get into the cab with Agnes. He identified the accused before the Court as the man with Agnes that night.
  9. There was really only one aspect of Senior Constable Aiio’s evidence that was challenged. Under cross-examination he readily agreed that he did not actually see Agnes and the accused on the stairs coming out of the ACP’s Office but met them in the car park a few metres from the entrance of the building. At the time the accused was not carrying anything.
  10. Sergeant Hualupmomi gave evidence that between 5 and 6 pm on 5 October 2017 he drove to Boroko Police Station and parked his vehicle outside the police station on the road adjacent to the Commander’s building. He heard a female screaming and saw flames coming out of the building. He got out of the vehicle and walked to the main entrance where he saw the accused walking out of the gate. He was the only person coming out from the scene so he told him to go back in. The accused walked back to where Agnes was in the car park. Agnes told him that the man was her husband. He left them there and went to alert the fire service. He identified the accused before the court as the person he saw that evening with Agnes.
  11. He agreed in cross-examination that it would be natural for any husband to go give the assistance of his wife if he heard her screaming in distress. He was not sure whether the accused was holding anything that night.
  12. On 5 October 2017 Gibson Wato was on duty as a security guard at the Paradise Private Hospital. Between 6 and 6:30 pm a taxi tried to enter the hospital premises. The driver told him that he was carrying a policewoman who had suffered burns from a fire at Boroko Police Station. He allowed them entry and the taxi went to the emergency ward. A man and a woman got out of the vehicle. The woman was holding a handbag.
  13. He later saw the man, whom he identified in court as the accused, come out of the hospital three times. On the third occasion he saw the accused, who was then holding the woman’s black handbag, get into a taxi and drive away. About 40 to 45 minutes later the accused returned to the hospital. It looked as if something had been removed from the bag because it looked smaller. The accused went back into the emergency ward. Later the police arrived and took the woman away. In cross-examination he maintained that when the accused left with the bag it was bulging and heavy and when he returned it was empty. He knew that because the accused was squeezing the bag in his hand.
  14. Constable Eugene Bure conducted a routine police search of the accused that evening upon the direction of ACP Kalaut. He obtained the identity of the accused and confiscated a bottle of Johnny Walker Black Label Whiskey from the accused’s basket: Exhibit L; together with K1200 cash from his pockets, in K100 and K50 notes, which the accused said was his: Exhibit M. He could not recall if at the time of the search the accused had any other bag.
  15. Statements from police officers Karai Naime, Jeffrey Lemb and Richard Iramu, Exhibits C, D and E, respectively, confirm that police officers went to the accused’s home looking for Agnes between 7 and 8 pm that evening before going to the hospital. The person who met them at the gate said that he was unaware of what had happened to Agnes.
  16. I note that Jeffrey Lemb’s statement goes on to say that whilst at the hospital the accused told him that the fire was started by a spark from the new security lights on the roof, one of which blew up. This could have been a very significant piece of evidence for the State for a number of reasons, particularly in the context of the evidence given by the accused, discussed below. The statement was admitted by consent, however, and not tested under cross-examination by the defence, nor was the evidence put to the accused by the State. In those circumstances and having regard to the following, I have some doubt about its reliability and, in favour of the accused, have excluded it from my consideration: see R v Henriques (1991) 93 Cr App R 237. In particular, his statement that he and other officers, including ACP Kalaut, entered the building sometime between 620 pm and 7:45 pm on 5 October is at odds with the evidence of ACP Kalaut, whose evidence I prefer, that police were not allowed into the building that evening. Furthermore, his evidence that Kalaut told him that the “ashes remaining in the safe did not resemble what could be the remains of the K184,300 in cash” is also at odds with the numerous bundles of burnt cash, Exhibit K, admitted into evidence through ACP Kalaut in this trial.

Defence Case


  1. The accused gave evidence in his defence. He has been married to Agnes Jimu for more than 13 years. They have 3 children, aged 13, 8 and 5 years. He is employed by Pacific Star Limited as an IT Support Officer.
  2. On 5 October 2017 he went to 3 Mile Hospital to visit his brother in law. After the visit he and Agnes got a cab to go back to their home at Gordons. Along the way Agnes said that she needed to get a folder from the office. They diverted the cab to Boroko Police Station and parked at the back gate of the station. He stayed in the taxi and Agnes went to her office. After some minutes he heard a loud bang, followed by screams for help. He saw smoke and recognised his wife’s voice screaming and in distress. He got out of the vehicle to check on her. She was already out of the building. The fire had burnt her clothes and she was trying to tear them off. He told her he would go and get the taxi. He went out and told the taxi to wait. He then got her and took her to the taxi. Another person asked Agnes if she knew him. Agnes identified him as her husband. There were 2 men in the carpark. He never entered the building. He only met Agnes in the car park.
  3. At the hospital the security guard told them to park outside but the driver told him it was an emergency. He took Agnes to the emergency ward. She was treated about 30 to 45 minutes after arriving. He did leave the hospital three times. The first time to pay the taxi driver because he had not done so when they rushed in. The driver was not there, however. The second time Agnes told him to go and check the building. He asked her why and she screamed and shouted and told him to go and check the building. He went back to Boroko Police Station, looked at the building and returned to the hospital. On the third occasion he went out to pay the taxi fare. On each of these occasions he had personal items in his possession: cash of K1200 and a Tolai basket in which he had his IT tools and the Black Label Whiskey.
  4. The police arrived and after waiting for Agnes to be treated took them both to the police station. He did not know why they were being taken to the station. Once there they were searched and his personal items were removed. He was questioned about whether he went into the building and he told the police he did not. He was arrested. At that point he still did not realise anything was wrong. He was bashed up. It was only then that he asked Agnes what was wrong and she said “Sorry Charlie, I did everything by myself and it wasn’t your fault”. After a while she told him that she took 2 containers of petrol up to the office and burnt the building and safe inside. She did not tell him about any money or a bag. He had no knowledge of her activities. He had no knowledge of the cash confiscated from his house. He did not see Agnes with any money in the days leading up to the 5th October. If he had he definitely would have asked her how such a huge amount of money had come into the building.
  5. Under cross-examination the accused agreed that his fortnightly income was about K950. His wife’s was about the same. He and his wife were close and shared problems but he was unaware of a notice of termination. He denied that he was told by anyone to go back into the station when he went out to the taxi. He had no idea what Agnes had done and did not ask her what had happened. At the station she was in pain and he didn’t want to ask. In the taxi on the way to the hospital he tried to ask but she “shrugged him off”. She was screaming to go to the hospital and could not talk properly. At the hospital they waited for 20 to 25 minutes (cf. above) before being attended to but he still didn’t ask her. When Agnes was treated she went into a dizzy state and didn’t recognise him. When he returned from checking the police station she was asleep. He didn’t ask her what had happened when they were taken back to the police station because they were in the company of 6 or 7 police officers.
  6. The hospital bill that night was paid in cash. He agreed that he left the hospital three times that night and that he carried Agnes’ black handbag with him. He did so because she was in the hospital bed. At the station he told the police that he “sometimes does outside private work and carried this kind of cash many times”. He told them the Black Label was his property.
  7. As above, Agnes Jimu gave evidence for the defence with the consent of the accused pursuant to s.13(2) of the Evidence Act 1975. The accused picked her up on 5 October 2017 at around 5pm at Boroko. They got a cab and went to the hospital to see her elder brother. On the way home she told the accused she had to pick something up from her office. At Boroko Police Station the taxi parked outside the gate at the rear of the station. She left the accused in the taxi and went up to the office. When the fire started she screamed and ran down the steps. She saw the accused coming towards her. He met her at the entrance to the building. She was tearing at her clothes because they were burnt and clinging to her skin.
  8. Sergeant Hualupmomi saw her and came straight to her. At that point the accused went out to tell the taxi not to leave but to take them to the hospital. She went to the taps at the back of the Armed Robbery Office to put water on herself. She met Senior Constable Aiio there and called out for water. Senior Constable Aiio left her to take his vehicle outside the car park. She couldn’t find a tap so she came back out and the accused took her hand and took her outside the gate to where the taxi was waiting. She met Senior Constable Aiio for the second time and he asked her if she knew the accused and she confirmed that the accused was her husband.
  9. She did not tell the accused what had happened at the station. She was in pain and was screaming. He asked her what happened and she told him repeatedly to take her to the hospital. At the hospital they went straight to the emergency ward. The accused did not pay the taxi driver when they arrived so after treatment he told her that he had to go and pay the taxi driver. She told him to go back and check the office. He asked why but she was angry and in pain and told him to “just go”. When the accused returned he told her that the fire had “gone down” and the building was “not very much burnt down”.
  10. Police from Boroko Police Station arrived and took them to the police station. The accused “kept on asking her” why they were going to the station. When they were getting on to the vehicle he asked her: “Why are we here? You should be in the hospital.” And later: “Why are we here? Why are we back at the police station?”.
  11. The accused had no knowledge of what she was doing that evening. The accused had no knowledge about the money found in the family bedroom. She hid the money in the bedroom on Tuesday, 3rd before the incident on Thursday, 5th. It was in her father’s house so she hid it in a way he couldn’t see. She told ACP Kalaut that the accused didn’t know about any of it. In cross-examination she said that she did not know that she was to be served with a termination notice on 5 October. She left the office at 11 am but says she returned and finished at 5pm.
  12. In both evidence in chief and in cross-examination she maintained that the accused repeatedly asked her that evening what happened: from the time they were at the police station, whilst in the cab on the way to the hospital, at the hospital, and at the police station later that evening. At times she screamed at him and at times she ignored him but she did not tell him what happened. She was afraid that the accused would “get on her”.

Assessment of witnesses


  1. With the exception of Jeffrey Lemb, discussed above, I find the State witnesses to be credible and reliable. Much of their evidence is not in dispute. Where it is, I will discuss it further below.
  2. The defence witnesses on the other hand were both unimpressive. I find the accused’s evidence that he did not press Agnes about what happened on the evening of 5 October 2017 implausible. As is his evidence that he didn’t realise that something was “wrong” until he was arrested by police later that same evening. I will return to other aspects of his evidence below but in summary having heard and observed the accused in the witness box I am unable to accept him as a witness of truth. This is based on a combination of my assessment of his demeanour when giving evidence together with the content of that evidence.
  3. Nevertheless, the accused gave evidence although he was not obliged to do so. By entering the witness box and giving evidence he did not take upon himself any obligation to prove anything in this trial.
  4. Agnes Jimu’s evidence was at odds with that of the accused in key respects, in particular she testified that the accused asked her repeatedly that evening what had happened: from the time of the incident; outside the station; in the cab on the way to the hospital; when picked up by the police; and again back at the police station. She says she ignored him or screamed at him rather than answering his questions because she was afraid of him. She says that she told him that night at the station that it was all her fault and that he didn’t become fully aware of what happened that night until the lawyers were involved.
  5. Agnes’ evidence that the accused told her that the building was not “much burnt down” is also inconsistent with the accused’s evidence that he did not tell her about the fire when he returned because she was asleep.
  6. In addition to the inconsistencies between the defence witnesses there are several aspects of it, which I will deal with below, which are incompatible with common sense and logic. That is not to say that everything they said is untrue. Some of it is consistent with the prosecution case. Where there is a conflict, however, I prefer that of the State witnesses.

Section 7 of the Criminal Code


  1. The State relies on s. 7 of the Criminal Code, pursuant to which criminal responsibility is extended to a person who is a party to an offence. The section deems to be guilty of an offence those persons who actually do the punishable act or omission, who do or omit to do any act for the purpose of enabling or aiding another person to commit the offence, who aid another in committing the offence, or who counsel or procure another to do it. In some cases more than one subsection of s. 7 may be relevant. In this case the issue appears to be whether the accused might be found to have aided and abetted Agnes Jimu in committing the offences pursuant to s. 7(1)(c).
  2. For the purposes of s 7(1)(c), the State must first establish by evidence that is admissible against the accused that a crime has been committed before there can be any question of criminal guilt or of participation in it: R v Tovarula [1973] PNGLR 140. The words do not require that the principal offender must be convicted before another may be found liable as a party to an offence: see R v Lopuszynski [1971] QWN 33. It is enough that the commission of an offence by someone is established in the case against the alleged accessory: Borg v R [1972] WAR 194.
  3. The State must also establish for the purposes of s. 7(1)(c) that the accused knew what offence was or might be committed, including where relevant the state of mind of the principal offender, and acted with intention to aid him: R v Turan (1952) N211; Tovarula, supra; see also Borg, supra. It is not possible to be an aider through an act which unwittingly provides some assistance to the offender: Coney [1882] UKLawRpKQB 30; (1882) 8 QBD 534. To aid or abet means that the person charged as a principle in the second degree “is in some way linked in purpose with the person actually committing the crime and by his words or conduct does something to bring about, or render more likely, the commission of the offence”: R v Tovarula applying R v Russell [1933] VR 59. In addition to the intention to aid, there must be aiding in fact: R v Wendo [1963] PNGLR 217.
  4. It is well established that mere presence at the scene of a crime is not of itself sufficient to constitute aiding for the purposes of s. 7(1)(c) of the Criminal Code: Tovarula. In some cases, however, an accused may assist or encourage the commission of a crime by being present. For example, by providing moral support to the primary offender or demonstrating a willingness to assist if required. In other words, presence and wilful encouragement will suffice: Tovarula. See also Wani v The State [1979] PNGLR 593. It is not necessary, however, that the presence be a strict actual and immediate presence provided that the presence was and remained up to the commission of the offence pursuant to a common design, for example by keeping a lookout, or to aid the escape of the principal offender: Tovarula.
  5. In summary, to establish liability pursuant to s. 7(1)(c) against the accused in this case the State must establish beyond reasonable doubt with respect to each of Counts 1 and 2 on the indictment that: (a) the principal offence was committed; (b) the accused knew what the principle offender, Agnes Jimu, was planning; and (c) intentionally assisted or encouraged Agnes by his presence to commit the offence. The evidence relied upon by the State to establish (b) and (c) is circumstantial.
  6. As stated by his Honour Justice Gavara-Nanu in Maladina v The State (2016) SC1495:

“The principles to be applied in deciding the guilt or innocence of an accused in a case resting substantially or wholly on circumstantial evidence are well established. The principles were enunciated by the High Court of Australia in Barca v. The Queen (1975) 50 A.L.J.R 108 at 117, they were first adopted and applied in this jurisdiction by Miles J, in his landmark decision in The State v. Tom Morris[1981] PNGLR 493. That decision was subsequently adopted and applied with approval by the Supreme Court in Paulus Pawa v. The State [1981] PNGLR 498...

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstantial evidence are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock v. The King [1911] HCA 66; (1911) 13 C.L.R 619 at 634. To enable the jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw: Plomp v. The Queen (1963) C.L.R 234 at 252, see also Thomas v. The Queen [1960] HCA 2; (1960) 102 C.L.R 584 at pp. 605-606. However, 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence: Peacock v. The Queen at p. 661”.


An inference as to the guilt of an accused should be drawn only after the court had made a full and thorough evaluation of all the circumstances in evidence ... ”.(emphasis added)


  1. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence: see the comments of the High Court of Australia in De Gruchy v The Queen [2002] HCA 33; 211 CLR 85 at [48]. Similarly, the principles applicable in a circumstantial case are no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt: see Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at [2]. This will depend upon whether all of the evidence establishes that the only rational conclusion is the guilt of the accused.
  2. In The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 the High Court of Australia recently affirmed the principles outlined in Barca. As above, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: Baden-Clay at [46]. The evidence must be considered as a whole and not by a piecemeal approach to each particular circumstance: Baden-Clay at [47][1]. The essential elements of the offence must be proved beyond reasonable doubt but it is not necessary for every fact, or every piece of evidence, relied upon to be proved beyond reasonable doubt: Shepherd v R, supra at [6].
  3. The High Court also observed in Baden-Clay that:

“a criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue."


  1. Further, at [62]: “It may readily be accepted that "it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference."[2] Where an accused chooses to give evidence, however, that evidence may narrow the range of alternative hypothesis reasonably available upon the evidence: [54], [55], [62] and [63]. To my mind that approach equally applies in this jurisdiction.
  2. In this case I find the following facts to be established on reliable evidence:

Count 2


  1. For reasons that will become clear I will deal with Count 2 first.
  2. Section 436(a) of the Criminal Code requires the State to establish that a building was wilfully and unlawfully set fire to.
  3. I am satisfied beyond reasonable doubt that Agnes Jimu wilfully and unlawfully set fire to the building in which the Office of the Divisional Commander was situated on 5 October 2017. Agnes was found at the scene, admitted to starting the fire and was burnt in the course of doing so. A report from Inspector Resom Ketom of the PNG Fire Service, Exhibit J, establishes that the fire originated in two separate locations, inside the safe and on the floor of the filing area[3]. Accelerant in the form of petrol was used in the filing area, the safe box as well as Agnes’ work station. Two five litre petrol containers were found in the kitchen area. It appears from the report and related photos, Exhibit I – 14 to 20, that an empty container was found on the floor in the area of the kitchen and another one, full, was found inside a green bag, inside a cupboard in the kitchen[4]. Having regard to the origin of the fire and the use of accelerant in those areas, it is clear that the intention was to wilfully set fire to the building in which the office was housed and not just an item of property within the building. Nor was the fire lawful. The fact that the building was “set fire to” and the extent of the resultant damage is also clear from the report[5] and photographs taken the following day, in particular, Exhibit I – 21, 22, 23, 26, 29 and 30.
  4. In addition to the established facts set out above, I also find the following matters established by inference.
  5. Given its sources of origin, and the fact that the burnt remains of money was found in the safe, it is clear to me that the principle purpose of the fire was to conceal evidence that cash had been taken from the safe by Agnes.
  6. It is also clear that the crime was planned. The use of petrol accelerant establishes that the crime was not committed on the spur of the moment. The fact that the crime was planned makes it much less likely in my view that anyone who was there with Agnes that evening was there by coincidence or unwittingly. This is particularly so given the nature of the offence, which was always likely to be discovered and reported publicly at some stage. Any fire at Boroko Police Station would likely be. For similar reasons, it was also a highly risky endeavour given that it took place in the early evening at one of the city’s main police stations. Agnes said in her evidence that she was afraid of her husband finding out about the offence. It would make no sense for her to take him with her to the scene of the crime if that were true.
  7. Moreover, the accused demonstrated a consciousness of guilt when he attempted to, and did subsequently, leave the scene of the crime immediately following its commission and then remained outside for some considerable time until Agnes was brought out of the station premises by Senior Constable Aiio.
  8. It is well established that lies may in certain circumstances evidence a consciousness of guilt on the part of an accused person: Koroka v The State [1988-89] PNGLR 131. For similar reasons, other post-offence conduct by an accused may evidence a consciousness of guilt, for example fleeing the scene of a crime, hiding from police or concealing evidence. I have not been able to find an authority directly on point in this jurisdiction but some Australian authorities are instructive: see for example R v Melrose [1989] 1 Qd R 572. It is also accepted, however, that a person may leave the scene of a crime for a number of reasons other than guilt, for example panic, embarrassment or fear of false accusation: Melrose, supra. Accordingly, before drawing an inference of guilt it is necessary to find that an accused departed a crime scene because of a consciousness of guilt in relation to the offence charged and not for any other reason: Edwards v R [1992] HCA 19; (1992) 173 CLR 653. In order to draw the inference it is not necessary to be satisfied beyond reasonable doubt of the accused’s guilt. Rather, if the inference is established it is another circumstance to be considered and weighed with all of the other evidence when determining whether or not the accused is guilty beyond reasonable doubt: R v Baden-Clay at [77].[6]
  9. Could the accused’s conduct in this case be explained in another way? In considering this issue it is necessary to have regard to the accused’s own explanation. The accused says that he was first on the scene because he was responding to his wife’s cries for help. The evidence shows that when he was first found he was in fact attempting to leave the scene.
  10. The accused denies that he was told by anyone to go back into the station whilst attempting to exit through the station gate. I do not accept his evidence. Sergeant Hualupmomi’s evidence in this regard was brief but very clear. Upon parking his vehicle outside of the police station on the road adjacent to the Commander’s building he heard a female screaming and immediately walked to the main entrance where he saw the accused walking out of the gate. The accused was the only person walking out so he told him to go back in. The accused walked back to where Agnes was in the car park. Agnes told Sergeant Hualupmomi that the accused was her husband and Hualupmomi left them there. Agnes’ own evidence confirms that she saw Sergeant Hualupmomi before Senior Constable Aiio.
  11. With respect to the second leaving, both the accused and Agnes say that the accused went to tell the taxi to wait and that he subsequently came and took Agnes out to the taxi to go the hospital. But the evidence of Senior Constable Aiio clearly shows that this is not what happened. Senior Constable Aiio heard a loud bang. Whilst he did not come out of his office immediately, a few seconds later he heard a female screaming from upstairs at the rear of the building. It was then that he ran out. By the time he came out Sergeant Hualupmomi was at the scene. He also saw Agnes and the accused in the car park. Agnes called out to Senior Constable Aiio who went to assist her and the accused turned his back on them and walked towards the back exit to the road. When Sergeant Hualupmomi and Senior Constable Aiio’s evidence is taken together it is clear that this must be for the second time. Even if that were not the case, the critical evidence is that the accused did not return but remained outside for what must have been some considerable time during which Senior Constable Aiio took Agnes to the area outside the CID Armed Robbery Office, went to look for some oil, then went to fight the fire before the brigade took over. Furthermore, it is Aiio who finally takes Agnes out of the gate to the main road. It was only then that the accused re-appeared.
  12. This was not the conduct of someone concerned for his wife. When the accused left Agnes she was in a highly distressed state. He was not in a position to know how badly she was injured or indeed who was with her or what was happening to her while he was outside the gate and yet he remained there. He said he was first on the scene because he went in response to her distress. Having found her in significant distress he left and did not return. He was surrounded by police officers, yet he did not ask any of them for assistance. Nor did he ask any of them to provide a vehicle to convey Agnes to the hospital. I am satisfied that the only explanation for the accused’s departure from the scene in the circumstances is a consciousness of guilt and not any other reason.
  13. Having regard to all of the circumstances established in this case, I am satisfied beyond reasonable doubt that the only rational inference is that the accused’s presence at Boroko Police Station on 5 October 2017 was deliberate and made in full knowledge of the arson Agnes intended to commit, the purpose of which was to conceal the evidence of her stealing, and with the intention to encourage her in the commission of the arson by providing moral support and a readiness to assist. The State has excluded any rational inference that the accused was there unwittingly. I am further satisfied beyond reasonable doubt that his presence did so encourage Agnes to commit the offence. This was why Agnes had taken him with her when she went to commit what was clearly a planned offence.
  14. Accordingly, I find the accused guilty of arson, contrary to s. 436(a) of the Criminal Code, pursuant to s. 7(1)(c) of the Criminal Code.

Count 1


  1. As above, Agnes pleaded guilty before me upon the presentation of the joint indictment on 13 November. Count 1 on the indictment alleged that the offence of stealing took place between the 1st and 6th day of October 2017. The facts on arraignment, however, alleged that Agnes stole K47,700 from the safe in the ACP’s office on 5 October 2017. In her evidence on the accused’s trial Agnes denied that the K46,500 found in her home by police in the early hours of 6 October was taken on 5 October and says instead that she took it on Tuesday, 3 October.
  2. I make it clear that I will disregard Agnes’ plea and the facts to which she pleaded for the purposes of the trial against the accused. The prosecution must prove that the offence in Count 2 was committed by evidence which is admissible against the accused: see R v Buckett (1995) 132 ALR 669.
  3. As discussed above, as a general rule, the evidence in a circumstantial case must be considered as a whole and no particular fact or circumstance relied upon needs to be proved beyond reasonable doubt.
  4. In this case there is ample evidence to establish beyond reasonable doubt that Agnes took K46,500 from the safe in the Divisional Commander’s office contrary to s. 372(1)(5)(e)(10) of the Criminal Code. I am satisfied beyond reasonable doubt that at the time she took the money from a public office in which it was kept, she intended to permanently deprive the RPNGC of it, its owner for the purposes of s. 365. And that she opened a locked room and safe by means of a key to do so. It is also clear that the stealing took place between 1 and 5 October 2017.
  5. At common law in Australia, the High Court has said that in some cases there may be a fact that because of its nature is so fundamental to the process of reasoning to the guilt of the accused that it must be proved beyond reasonable doubt. Such a fact is sometimes referred to as an “intermediate fact” being an indispensable “link in a chain” of reasoning towards an inference of guilt: Shepherd v The Queen, supra.[7]
  6. As above, there is no doubt in my mind that the accused was aware of the stealing by Agnes and that he aided Agnes in the arson with a view to concealing it. There is, however, no evidence of the accused’s participation in any offence prior to 5 October 2017. Neither Agnes nor the accused were found to be in possession of K46,500 at the time of their apprehension on 5 October. Instead K46,500 was recovered from their home between midnight and 1230 am that night.
  7. Accordingly, for the accused to be liable under s. 7(1)(c) it is necessary for the State to establish that the money recovered from their home on 5 October 2017 was stolen by Agnes earlier the same evening and not on some earlier date. Whether that is for the purpose of establishing it beyond reasonable doubt as an “intermediate fact”, or for the purposes of excluding beyond reasonable doubt any hypothesis consistent with innocence, the effect to my mind is the same in this case. Of course, this a matter to be decided in light of the other circumstances relied upon, and the whole of the evidence.
  8. I have considered the evidence of Senior Constable Aiio that at the time that he saw the accused and Agnes outside the ACP’s building the accused was not holding any bags. Sergeant Hualopmomi was unable to recall whether the accused was holding anything when he saw him. In my view whether or not the accused was holding a bag at that time is not determinative having regard to the other evidence. It is clear from evidence about what happened later than night that both he and Agnes had bags with them that evening. The bags must already have been outside in the taxi.
  9. There are a number of facts which taken together establish beyond reasonable doubt that the K46,500 found in the accused’s home was stolen on the evening of 5 October 2017 and not before, including that: Agnes was informed on the morning of 5 October 2017 that she would be terminated; she left the office soon thereafter; she failed to return until after everyone had left later the same day; the safe was found open the following day; the accused was found in possession of a large amount of cash in K50 and K100 notes on the night of his apprehension; and also paid the medical bill at the hospital in cash.
  10. Of particular significance is the evidence of Gibson Wato, the security guard at the Paradise Private Hospital. He was an impressive witness. His evidence was detailed, he answered without hesitation and did not falter under cross-examination. I am satisfied that when Agnes arrived at the hospital she was holding a black handbag. There is also evidence, which is not disputed, that the accused left the hospital for between 40 and 45 minutes that evening, and that he was carrying the handbag at the time. The accused said he was carrying Agnes’ handbag because she was in the hospital bed. On its own that may seem reasonable. It is not, however, when taken together with the other circumstances established in this case.
  11. I do not accept his evidence that the reason he left the hospital was to check on the fire at the police station simply because Agnes told him to. Agnes was lying in the emergency ward undergoing treatment. She was burnt and in distress. On his own evidence upon undergoing treatment she was “dizzy” and at one point was unable to recognise him. Similarly, the police officers who attended the hospital, upon seeing her condition, did not initially disturb her. And yet rather than staying with Agnes, he left her alone for 40 to 45 minutes, he says, to look at a fire he knew nothing about, simply because she told him to. After visiting the fire, his evidence was that he did not discuss the fire with her when he got back because she was asleep. Nor did he discuss it with her later when she woke. His evidence makes no sense.
  12. It is not in dispute that Agnes took K46,500 from the safe, nor that the money was found in the wardrobe in the accused’s bedroom after midnight that evening. It comprised K100 and K50 notes.
  13. Agnes only told ACP Kalaut about the money very late in the evening and well after the accused had left the hospital with the black bag. He had ample opportunity to take the cash out of the bag and leave it at his home. Furthermore, I accept that when the accused left the hospital the bag was full and that when he returned 40 to 45 minutes later, it was empty.
  14. Agnes’ said that the house was her father’s and she had hidden the money in a place that the accused wouldn’t find it. Again, that is not borne out by the evidence. The money was found in a cupboard in the shared bedroom. There was nothing special about the hiding place. The cash was wrapped simply in a black sweater, without a bag. Anyone, including the accused, could have placed it there.
  15. I have taken account of the fact that the family was surprised by the finding but that is not determinative having regard to the other evidence. There is no suggestion that anyone else in the family was involved.
  16. Is it possible that Agnes took the money two days earlier or on another date? Yes, but in my view it is not a reasonable possibility or hypothesis. The only evidence to support it is Agnes’ which I do not accept. In my view, having regard to the totality of the evidence the State has excluded any rational inference that the money was stolen other than on 5 October 2017.
  17. In conclusion having regard to all of the facts and circumstances outlined above I am satisfied beyond reasonable doubt that the K46,500 found in the accused’s bedroom on 5 October 2017 was stolen by Agnes earlier that same evening from the safe of the ACP Divisional Command and placed there by the accused when he left the hospital for at least 40 minutes whilst Agnes was undergoing treatment.
  18. I am also satisfied beyond reasonable doubt that taking into account the money found on the accused that same night, namely K1200, Agnes stole K47,700 from the safe of the Divisional Commander on 5 October 2017.
  19. I am further satisfied beyond reasonable doubt that at the time of the offence the accused’s presence at the scene was deliberate and made in full knowledge of the stealing Agnes intended to commit, and with the intention to encourage her in the commission of the offence by providing moral support and a readiness to assist. Amongst the circumstances taken into account is my finding that the accused demonstrated a consciousness of guilt with respect to the stealing when he attempted to and did later leave the scene.
  20. The State has excluded any rational inference that the accused was there unwittingly. I am also satisfied beyond reasonable doubt that his presence did so encourage Agnes to commit the offence.
  21. Accordingly, I find the accused guilty of stealing contrary to s.372(1)(5)(e)(10) of the Criminal Code, pursuant to s. 7(1)(c) of the Criminal Code.
  22. Verdict: the accused is convicted of stealing and arson pursuant to Counts 1 and 2 of the indictment.

_______________________________________________________________
Public Prosecutor: Lawyer for the State
Jerewai Lawyers: Lawyer for the Accused


[1] Applying R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at 638 [48]. See also Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 535; [1984] HCA 7.
[2] Barca, supra.
[3] Exhibit J page 5/8, under “E1, Heat of Ignition”; and pages 6 to 8/8 “Synopsis” in particular “Internal Observations”, “Path of Fire Travel/Fire Patterns/Observations”, “Area of Origin”, “Point of Origin”, and “Conclusion”, paragraph 3 on page 8/8.
[4] Exhibit J, “Conclusion” paragraph 2 at page 8/8. See also photographs, Exhibit I- 14 to 20
[5] Exhibit J, page 7/8 “Internal Observations”.
[6] See also the discussion in Carter’s Criminal Law of Queensland, 20th Edition, 2015 at [s 620.75] Lies and post-offence conduct and [s 620.95] Flight.
[7] Some jurisdictions, for example, Victoria have legislated to remove this approach: Jury Directions Act, 2015.

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