Waiyu v State [2022] PGSC 116; SC2316 (24 November 2022)

SC2316

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO. 8, 9 & 10 OF 2020

BETWEEN:
CAMILLA WAIYU, BENNY GALAWE & AMBROSE RIPME
Applicants

V

THE STATE
Respondent

Kimbe: Hartshorn J, Anis J & Numapo J
2022: 22^nd & 24^th November

SUBSTANTIVE REVIEW – review against convictions – charged and convicted with the offence of stealing – s. 372(1) and (10) – Criminal Code – leave to review granted – grounds of review – first ground - verdict unsafe and satisfactory premised on purported omission or failure to address elements of stealing – second ground – consequential – entails wrong decision on question of law – consideration – whether all the elements of stealing were considered - application of s 7 – Criminal Code – whether a perpetrator was identified - whether there was an identifiable error that should warrant this Court to uphold the review

Cases Cited:

Avia Aihi v The State (No. 1) [1981] PNGLR 81
John Beng v The State [1977] PNGLR 115
George Ikalom and 1 Or v The State (2019) SC1888
State v Waiyu and Ors (2019) N8147

Counsel:

F Kulala, for the Applicants
A Bray, for the Respondent

24^th November, 2022

1. BY THE COURT: This was a hearing of a review against convictions. The co-applicants Camilla Waiyu, Benny Galawe and Ambrose Ripme (applicants), together with Tony Waiyu (deceased), were all convicted of stealing under s 372(1) and (10) of the Criminal Code. They were each sentenced to 5 years imprisonment. Their conviction and sentence were handed down by the trial Court on the 15^th and 19^th of November 2019 respectively. The deceased was the husband of Camilla Waiyu (Camilla) at the material time. He passed on after the verdict and sentence.

2. Leave to review their convictions was granted by Cannings J on 13 October 2022.

REVIEW

3. In their Amended Application for Review (Amended Review), the applicants request that this Court should overturn their convictions on 2 grounds, namely:

“(a) The Trial Judge erred in failing or omitting to address the elements of stealing justifying beyond reasonable doubt, entailing the verdict is unsafe and unsatisfactory.

(b) The Sentencing Judge’s failure to address the elements, entails a wrong decision on a question of law, making the verdict unsafe and unsatisfactory.”

BRIEF BACKGROUND

4. The applicants were convicted of stealing based on the following facts: That between 2009 and 2013, the applicants and the deceased, colluded with each other and stole oil palm fruit or fresh fruit bunches (FFB) from a plantation known as Malilimi Oil Palm Plantation (the Plantation). The Plantation belongs to New Britain Palm Oil Ltd (NBPOL/company).

5. Prior to 2009, the deceased and Camilla illegally lived on a portion of land lease that also belongs to NBPOL. They resided there between 2001 to 2009. During that time, they planted oil palm trees and sold their FFB to the company. They were eventually evicted by the company in 2009. Upon their eviction, all their oil palm trees on NBPOL’s leased land were also felled. NBPOL later planted its own palm trees on the said land. The deceased and Camilla (couple) had no land to settle on or use to plant oil palm trees after their eviction. They then went on to live with co-applicants Benny Galawe (Benny) and Ambrose Ripme (Ambrose). Benny and Ambrose are the deceased’s nephews from the deceased elder brother. Their block of land is next to the Plantation. The State alleged that in order for the applicants and the deceased to sustain their livelihood and show their frustration against NBPOL who had evicted the couple from its land, they started harvesting and selling FFB from NBPOL’s Plantation back to the company without the company’s knowledge. The total tonnage and value of FFB, according to the amended indictment, that were alleged to have been stolen by the applicants and the deceased during the 4-year period were 556.47 tons or K124,242.20.

6. The State also invoked s 7 of the Criminal Code and alleged that the applicants and the deceased had also aided and abetted each other in the commission of the offence of stealing.

LAW TO REVIEW CONVICTION

7. This Court’s jurisdiction to review conviction is provided for under s 155(2)(b) of the Constitution. It reads in part, The Supreme Court—...(b) has an inherent power to review all judicial acts of the National Court;. This Court in Avia Aihi v The State (No. 1) [1981] PNGLR 81, many years back, held, in regard to its power to review under s 155(2)(b) of the Constitution, as follows,

Section 155 (2) (b) of the Constitution, which gives the Supreme Court an "inherent power to review all judicial acts of the National Court", however, invests the Supreme Court with an unfettered discretionary jurisdiction to hear an appeal and an application for leave to appeal from the National Court, although the applicant has lost his right to appeal or to apply for leave to appeal. The discretion should be exercised only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity, the onus being upon the applicant.

8. We must therefore consider whether a miscarriage of justice has occurred. See case: John Beng v The State [1977] PNGLR 115. The requirements arise from sections 23(1) of the Supreme Court Act Chapter No. 37 (SC Act), which states,

23. Determination of appeals in ordinary cases.

(1) Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that—

(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b) the judgement of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal.

9. Thus, to succeed in a review application against conviction, an applicant must establish that:

• the verdict was unsafe or unsatisfactory, or

• the conviction entailed a wrong decision on a question of law, or

• there was a material irregularity in the trial.

10. The 2 grounds of review are similar so we will address them together.

ISSUES

11. The main issues are:

(i), whether the trial Judge omitted or failed to address the elements of stealing,

(ii), whether the perpetrator(s) was not identified,

(iii), whether all the applicants fell under persons aiding and abetting under s. 7 of the Criminal Code thus cannot be held liable for the offence of stealing without an identified perpetrator(s), and

(iv), whether the applicants should all be acquitted and their convictions overturned.

ELEMENTS OF STEALING

12. Did the trial Judge fail or omit to address the elements of stealing?

13. The answer to that is not difficult and can be easily verified by references to the decision of the trial Judge as contained in the transcript of proceedings. In this case, the transcript on verdict may be found at [195] to [204] of the Review Book (RB). Of relevance is line 35 at [179] to line 8 at [180] of the RB, which read:

There are three issues of the offence of stealing under section 372 as stealing is defined by section 365. In the case of State v Boria Hanaio [2007] N4012 stated these elements and they are, and I quote: “Taking something or converting it to the accused’s or another’s use. Secondly, doing so fraudulently and, thirdly, moving it or dealing with it by some physical act.”

The law as prescribed by the criminal code, the offence which they are charged with is stealing under section 372(1) of the code, basically that any person who steals anything capable of being stolen is guilty of a crime. The central issue in this matter is whether or not the accused persons stole fresh fruits bunches valued at K124,242.20, the property of NBPOL\, between 2009 and 25 July 2013. This central issue can be highlighted in the following manner: (1), Did the accused persons take something or convert it to the use of another? Secondly, did they do so fraudulently? And lastly, did they move it by some physical act?

14. The elements of stealing, as identified by the trial Judge, in our view, are consistent with those that are contained under ss 365(2)(3) & (4) and 372(1) of the Criminal Code, which state:

365. Definition of stealing.

......

(2) Subject to the succeeding provisions of this Code, a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.

(3) The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.

(4) A person who takes or converts anything capable of being stolen shall be deemed to do so fraudulently if he does so with intent—

(a) to permanently deprive the owner of the thing of it; or

......

(e) to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; or

......

372. Stealing.

(1) Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: Subject to this section, imprisonment for a term not exceeding three years.

15. This Court in George Ikalom and 1 Or v The State (2019) SC1888 summarized the elements of stealing at [16] and [17] as follows:

16. Thus to prove the “stealing” of anything capable of being stolen (as defined in s. 364), the prosecution must establish beyond reasonable doubt that the accused:

(a) fraudulently;

(b) takes the thing, or converts it to his own use or the use of any other person; and

(c) actually moves or otherwise deals with the thing by some physical act.

17. “Fraudulently” means with intent to permanently deprive the owner of the thing, or with any of the other states of mind prescribed by s. 365(4) of the Criminal Code.

16. Given these, we are therefore satisfied that the trial Judge did not omit or fail to consider the elements of the offence of stealing.

FAILURE TO IDENTIFY PEPERTRATOR

17. In addition to the charge of stealing under s 372(1) and (10), the State also invoked s 7 of the Criminal Code, which reads in part:

7. Principal offenders.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

(d) any person who counsels or procures any other person to commit the offence.

(2) In Subsection (1)(d), the person may be charged with—

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment,

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.

[Underlining ours]

18. The applicants argue that the trial Judge did not establish the first element, that is, the person or the perpetrator that had committed the offence of stealing. As such, they argue that they cannot be caught by or be regarded as guilty under s 7 of the Criminal Code.

19. We note the submissions of the parties.

20. With respect, we find the applicants’ argument misconceived. First, all the applicants including the deceased, were all charged as principal offenders, well as on the basis that they had aided and abetted each other; that was why the State had invoked s 7 of the Criminal Code. In other words, the State had alleged that each of the applicants including the deceased, were the ‘perpetrators’ or ‘principal offenders’, as well as that they had aided and abetted each other in the commission of the offence which was stealing.

21. For this reason, and in consideration of our earlier ruling on the first issue, the 2 grounds of review would not hold water, so to speak, and would fail.

DETERMINATION OF THE ELEMENTS

22. Regardless of our findings above, we also note that the trial Judge had dealt with each of the elements of the offence of stealing in the transcript of proceeding on verdict, and we refer to [181] to [183] of the RB. The trial judge had also addressed them at [26] to [34] in his unreported decision, that is, State v Waiyu and Ors (20190 N8147.

23. The evidence that was adduced by the State was beyond reasonable doubt against the applicants and the deceased. The undisputed facts and evidence were as follows. The applicants had tendered by consent their records of interviews that they had given to the police after their arrests. These evidence consisted of admissions or implied admissions of their actions. For example, Camilla, at [243] of the RB, admitted to the deceased’s conduct on one occasion where he had attempted to sell 3 nets of FFB from the Plantation when he was apprehended. In the same page, Camilla also admitted that their oil palm cards were current and operating in 2013. She said that they were receiving funds from the company from purported sales of FFB when it was not disputed that they had no land and oil palm trees after 2009 from which they could have harvested using their old cards.

24. Company records tendered by the State through Elizabeth Osembo also showed fluctuations in the harvest per month from the oil palm card(s) of co-applicant Benny and Ambrose, that is, for the 2 oil palm blocks that they held. The company records, which had formed part of the circumstantial evidence, showed that the 4 persons charged were related by blood and relations; that they had acted together to commit the offence; that Camilla and the deceased had acted in consort with Benny and Ambrose, to steal FFB from NBPOL’s Plantation; that Camilla and the deceased would use their old cards to sell the stolen FFB from the Plantation to NBPOL and that they would also, together with co-applicants Benny and Ambrose, harvest the FFB from the Plantation and sell them to the company under the oil palm cards of Benny and Ambrose, that is, under the pretext that the FFB were harvested from the oil palm blocks or trees of Ambrose and Benny.

25. The evidence, as stated, was overwhelming. We therefore see no reason or error committed by the trial Judge that should warrant the exercise of our power as the Review Court against the decision of the trial Court. We find the verdict to be safe and satisfactory. We also do not find that the conviction entailed a wrong decision on a question of law. As stated, we find the argument misconceived for the reasons we gave earlier.

SUMMARY

26. In summary, we find the review against convictions of the applicants baseless as well as misconceived, and we dismiss it.

BY THE COURT:

27. We make the following orders:

1. The Applicants’ review against conviction is refused.
2. The convictions and sentences of the National Court made against Camilla Waiyu, Ambrose Ripme and Benny Galawe on 15^th and 19^th November 2019 are confirmed.

________________________________________________________________
Public Solicitor: Lawyers for the Applicants
Public Prosecutor: Lawyers for the State