State v Homoka [2021] PGNC 486; N9256 (9 November 2021)

N9256

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO 188 OF 2020

STATE

V

MARAGA HOMOKA

Waigani: Wawun-Kuvi, AJ
2021: 24^th, 27^th, 28^th September, 9^th November

CRIMINAL LAW-TRIAL-EVIDENCE-Accomplice Evidence- Whether Court can rely on uncorroborated evidence of accomplice?

CRIMINAL LAW-TRIAL- Stealing, s372(1) (10) Criminal Code-Whether there was an intention to permanently deprive?

The accused was charged for stealing under section 372(1) (10) of the Criminal Code. It is alleged that he stole a grader that belonged to Curtain Bros (PNG) Ltd. The grader was driven out of the company’s premises at Motukea recovered several days later at Kennedy Estates, 8 Mile. The State alleges that the accused conspired with others to steal the said grader. It alleged that whilst the accused did not physically move the grader, he was the mastermind; he planned and organized the theft by ordering other people to move the grader. The accused denies any involvement. The State called an accomplice.

Held:

1. I am required and so warn myself that the evidence of Maeka Naime is accomplice evidence. That the law in relation to accomplice evidence is that the Court cannot convict on the uncorroborated evidence of an accomplice. There must be other independent evidence that supports crucial aspects of the accomplice evidence: Pritchard v State [2016] PGSC 59; SC1541 (13 October 2016) at 47 and Peacock v The King [1911] HCA 66; [1911] 17 Argus LR 566.
2. There was very little evidence if nothing that independently corroborates the evidence of Maeka Naime.
3. To establish the charge of stealing, the State must prove that the accused intended to permanently deprive the owner of the Grader.
4. Even if the evidence of Maeka Naime was corroborated, he maintained persistently and repeatedly that the Grader was to be used for a job on a site. He assumed it was to level the ground.
5. There was no other evidence to the contrary and from what little evidence the State presented, it was reasonably inferred that the Grader was taken to be used for an unauthorized purpose and not for it to be stolen.
6. The State did not prove its case to the required standard and therefore a verdict of Not Guilty is returned.

Cases Cited:

Papua New Guinea Cases

Pritchard v State [2016] PGSC 59; SC1541

Overseas Cases Cited

Peacock v The King [1911] HCA 66; [1911] 17 Argus LR 566.

Reference

Section 372 (1) (10) Criminal Code (Ch 262)
Counsel

Ms. Lilly Jack, for the State
Mr. Jeffery Kolowe, for the Defence

9^th November, 2021

DECISION ON VERDICT

1. WAWUN-KUVI, AJ: Maraga Homoka (accused) is indicted that on 28 June 2019 at Motukea in National Capital District, he stole a Grader namely a caterpillar 12K, bearing serial number SZP00411A valued at K651, 775.00, the property of Curtain Bros (PNG) Limited. His actions contravening section 372(1) (10) of the Criminal Code (Ch 262). To this charge the accused pleaded not guilty.
2. The State invoked section 7(1) (d) of the Code alleging that the accused was the master mind behind the plan to steal the Grader.
   
3. The accused does not deny the factual events of that day but says that he was not part of or had any knowledge of a plan to steal the said Grader.
   
4. The prosecution tendered several exhibits and called three witnesses. The witnesses were Maeka Naime, Kelly Moses and Luke Zuke. The defendant gave evidence in his own defence.
   
5. Kelly Moses’s evidence is on sighting the Grader outside the worksite, calling the accused, and enquiring about the Grader, and conducting follow ups after sighting the Grader at Gerehu.
   
6. Luke Zuke’s evidence is in relation to the investigation, and the search and recovery of the Grader.
   
7. The State’s case rested on the evidence of Maeka Naime.
   
8. I am required and so warn myself that the evidence of Maeka Naime is accomplice evidence. That the law in relation to accomplice evidence is that the Court cannot convict on the uncorroborated evidence of an accomplice. There must be other independent evidence that supports crucial aspects of the accomplice evidence: Pritchard v State [2016] PGSC 59; SC1541 (13 October 2016) at 47 and Peacock v The King [1911] HCA 66; [1911] 17 Argus LR 566.
   
9. The evidence of Maeka Naime is not independently corroborated.
   
10. This case is based wholly on the alleged conversations between the accused and Maeka Naime. There was no one else present when the conversations were said to have occurred.
    
11. There is no independent evidence in the form of transcripts supporting telephone calls or any text messages between Maeka Naime and the accused within the time frame that the Grader was being moved. There is no evidence obtained from the owner of the property where the Grader was eventually located as to how he or she came into possession of the Grader.
    
12. The evidence of Luke Zuke and Kelly Moses only go to show that the said Grader was driven out of company premises. Kelly Moses says that an unknown person was driving the Grader. It is only Maeka Naime that says that it was the accused that told him to pick up that unknown person to drive the Grader out of the company premises.
13. Maeka Naime admitted that he was also arrested for the alleged stealing but was released because of his statement against the accused.
    
14. The accused was arrested because it was alleged that he was the person that was responsible for the Grader. However, it became evident that the Grader’s key is accessible to any driver or operator. The machine is also used by any number of the staff on site and off site at a nearby Quarry. That was the reason the securities did not find it suspicious when the Grader was being driven out. It is only when there is an external hire that there appears to be some form of paperwork being required.
    
15. There is very little weight if any that can be attached to the evidence of Maeka Naime.
    

Whether there was an intention to permanently deprive the owner?

16. Even if there was independent evidence that supported Maeka Naime’s evidence, the element of intent to permanently deprive would still not be proven.
    
17. Maeka Naime persistently and repeatedly maintained in his examination in chief that the Grader was to be used for a site job. He did not know where and assumed that it was to level the ground.
    
18. As previously stated, there was no evidence obtained from the persons on whose property the Grader was recovered as to how they came into possession of the said Grader.
    
19. Whilst it may be contended that an inference may be drawn that there was an intention to deprive the owner because the Grader was missing for several days, there is also open to the Court the inference that the Grader was for a job that was not sanctioned or authorized by the company.
    
20. Kelly Moses was driving a Curtain Bros (PNG) Ltd vehicle when he sighted the Grader at Gerehu and followed it. In his evidence, the driver of the Grader simply parked the Grader, looked the other way and was talking on the mobile phone. Kelly Moses did not talk to him but only made phone calls to the accused and other people back at the base and drove off. The driver did not run off and abandon the Grader when he was sighted and followed by Kelly Moses. The latter inference is more plausible.
    
21. The Grader was also not hidden but was found in plain sight in an open area at the Kennedy Estate at 8 Mile. None of its details or markings were removed. This further supports the inference that the Grader was only being used for an unauthorized purpose.

Conclusion

22. The State has not proven its case beyond reasonable doubt.
    
23. A Verdict of Not Guilty is returned

Orders:

24. The Orders of the Court are:
1. A Verdict of Not Guilty is Returned.
2. The Accused is Acquitted.
3. The Accused is discharged of the Indictment.
4. The Accused bail is refunded.

________________________________________________________________
Office of The Public Prosecutor: Lawyer for the State
Office of The Public Solicitor: Lawyer for the Defence