R v Gomora [1953] PGSC 3 (2 May 1953)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

R. v. MARAGA GOMORA

JUDGMENT

The accused MARAGA GOMORA appears before this Court charged that during the month of either November or December, 1952 in the Territory of Papua he stole:-

One pair tinsnips

One pair insulated pliers

One 12 inch shifting spanner

One pair of round-nose pliers

One wool plane

all the property of Papuan Sawmills Limited. Originally the indictment included six other items being also tools, but as the evidence developed in the course of the hearing, the learned Crown Prosecutor very properly abandoned them for the charge.

The accused represented by Mr Kirke of counsel, has pleaded NOT GUILTY, thus putting the Crown strict proof element of the offence beyond a reasonable doubt, and of course if the Crown does not attain that high standard, the accused is entitled to the benefit of the doubt and to his acquittal.

The case for the Crown is somewhat unusual inasmuch as there is not the faintest evidence adduced directly connecting the accused with the alleged theft other than the possession of certain items; it is from this possession and his explanation of his ownership that the Crown asks the Court to infer the guilt of the accused, that is, that the accused is guilty of the offence of stealing.

The Crown, in other words, desires to invoke the doctrine of recent possession of stolen goods, and it is essential therefore to understand that doctrine and its limitations.

The law as to recent possession is that when it has been shown that property has been stolen and has been found recently after its loss to be in the possession of the prisoner, he is called upon to account for having it, and, on his failing (R v Caplin 23 N.S.W.L.R 514) to do so, the jury may very well infer that his possession was dishonest, and that he was either the thief or the receiver according to circumstances. (R v Langmead Le and Co. 427 at 441) and the explanation by the prisoner of his possession of the stolen property is required not to rebut a presumption of guilt but to prevent it arising. (R v Hagan [1992] CthArbRp 931; 9 CAR 25 at 27).

When an accused is proved to be in possession of goods recently stolen, the jury MAY (not must) in the absence of a reasonable explanation find the prisoner guilty, but if the explanation of the prisoner of his possession may, on the view of the jury, reasonably true, even though they are not acquitted, because the Crown has not discharged the onus of proving the guilt of the accused beyond a reasonable doubt. In this case the effluxion of time since the goods were stolen is stretching the doctrine to its limit so far as falling within the description "recently stolen", and the lapse of time must affect the strength of any presumption from the possession to be drawn by a jury.

The facts of the case are briefly as follows:-

Towards the end of 1958 some tools were found to be missing, though it cannot be determined with any exactitude when they disappeared from the premises of the Papuan Sawmills Limited, and the tools being, the property of the Company, the loss was reported to the Police.

On the 8th January, 1953 Mr Sub-Inspector Collins took possession of certain tools, including the ones the subject of the present charge, which were contained in two boxes on the verandah of a house at Baruni Village, which had been occupied jointly by one SAMOA and his wife and the accused says they were in his father's house.

In the course of evidence, it has been revealed that during the material time SAMOA worked at the Company's promises but the evidence in no way suggests that the accused ever was there except, of course, as may be inferred by his possession of the articles named in the indictment.

The Manager of the complaint Company, Mr Radie, was shown the tools at the Police Station and from the bulk of them he claimed the tools mentioned in the indictment as originally presented, which includes the ones now remaining therein.

Following the seizure of the tools, the accused came to the police Station of his own volition inquiring for his tools, and upon seeing the ones set aside by Mr Radie, said "Those are my tools." It is an oddly brazen act upon the part of an alleged thief and a circumstance which must be of great interest to a jury.

The accused, upon being asked by the Police, said that he got the plane, the tinsnips and the bevel from American negroes during the War and the other tools at the 7-Mile Dump.

The main evidence of identification of the tools missing from the Sawmill has been supplied by Mr Radie, the Manager, and he gave it with scrupulous fairness. He recognizes the tinsnips as the property of the company because he recalls the rivet being replaced at his discretion by a bolt, which he agrees is usual practice. He swears, too that the tinsnips are of an usual pattern.

The insulted pliers he recalls because Mr Yarnold placed his surname initial on the handle. The round-nosed pliers he recalls, as he saw them used as a punch, thus bending one side of the handle. The wooden plane he recalls, because it was broken and the handle mended but without mending the front handle.

Mr Radie is unable to identify the shifting spanner the subject of the charge, except to say that they are similar to some used at the sawmill.

Mr Radie's evidence is confirmed in relation to the plane by the witness Patrick Jaima, but as regards the pliers, on the other Crown evidence, far from belonging to the company, they were the personal property of Mr Yarnold.

In view of the above evidence and the evidence of the accused, the crown, in my view, has failed to establish the ownership of the shifting spanner and the two pliers in the Company alleged; the case therefore narrows down to a consideration of the TINSNIPS and PLANT.

Perhaps a jury, upon finding Mr Radie mistaken as to the pliers, would hesitate to accept his evidence as in any way casting doubts about his veracity – but the fact is that the employees bring their own tools also and they are mixed with the tools of the company which may well tend to a bona fide but mistaken belief that a particular tool belongs to the Company, merely because of its presence at the sawmill.

The evidence satisfies me from the accused's own claim to ownership, together with the place where the goods were found, that he was in possession of the plane and the tinsnips but I do not think that any jury would be prepared to infer from the whole evidence that he was the thief without some other evidence connecting him with the theft.

Further, the accused has sworn on oath that he got the tools in just the way that he told the Police, and in view of his evidence as a jury I am disposed to give him the benefit of the doubt.

Though the court is not entitled to speculate. I have felt an uncomfortable possibility that the brother in-law SAMOA took the plane and the tinsnips to the job (though the property of the accused) and that from their presence at the sawmill, the Manager and others concluded that they were the property of the company, and that, in fact the missing tools are not identical with the ones in the possession of the accused; but the accused has himself disposed of this opportunity by his explanation that at the time SAMOA was working at the Sawmill, he was living at Korobosea.

3/5/53