Papua New Guinea Law Reports - 1988-89
[1988] PNGLR 206
N681
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
FRANCIS PORA AND NORING PORA
V
ALOIS SEPETIO
Rabaul
Bredmeyer J
20 May 1988
25 November 1988
CRIMINAL LAW - Appeal against “conviction, order or adjudication” - Statutory recommendation not appealable - Recommendation of dismissal from police force - Police Force Act, (Ch No 65), s 57(2) - District Courts Act (Ch No 40), s 219.
INFERIOR COURTS - District Courts - Appeal to National Court - Appeal from “conviction, order or adjudication” - Recommendation required by statute not appealable - Recommendation of dismissal from police force - Police Force Act (Ch No 65), s 57(2) - District Courts Act (Ch No 40), s 219.
POLICE - Misconduct and discipline - Statutory powers in relation to - Conviction for offence - Recommendation as to dismissal from force - Recommendation by District Court magistrate - Recommendation not appealable - Police Force Act (Ch No 65), s 57(2) - District Courts Act (Ch No 40), s 219.
Held:
A recommendation required to be made by s 57(2) of the Police Force Act (Ch No 65) as to dismissal from the police force, reduction in rank or salary, where a police officer is convicted of an offence is not a “conviction, order or adjudication” of the District Court from which an appeal lies under s 219 of the District Courts Act (Ch No 40).
Maniwokin v Toburua [1973] PNGLR 710, followed.
Cases Cited
The following case is cited in the judgment:
Maniwokin v Toburua [1973] PNGLR 710.
Appeal
These were appeals against convictions on charges of stealing by a former police officer and his wife.
G Gendua, for the appellants.
N Miviri, for the respondent.
Cur adv vult
25 November 1988
BREDMEYER J.: Francis Pora and his wife Noring Pora were charged with stealing wet cocoa beans valued at K5.60. They denied the offence but were convicted and each fined K50. The magistrate recommended that Francis, who was a policeman, be dismissed from the force. The magistrate was required by s 57(2) of the Police Force Act (Ch No 65) to make recommendation that the defendant be, or not be, dismissed from the force, reduced to a specified lower rank, or reduced in salary. Mr and Mrs Pora have appealed against their convictions and sentences.
Mr and Mrs Pora are from Ialibu in the Southern Highlands Province but were stationed at the Police Barracks at Tomaringa out of Rabaul. The barracks adjoin Vunakanau Plantation owned by Angco.
At about 3 pm on 27 August 1987 Mark Kiminoko, a security guard at Vunakanau Plantation saw Mr and Mrs Pora inside the plantation not far from the barracks. His evidence is as follows. He saw her take a ripe cocoa pod, and when she saw him, she placed it at the bottom of the tree. She had a small knife and a coconut leaf basket with her. Her husband who held a bush knife was 2 to 4 m away. Mrs Pora said to Mark, “I wanted to steal dry coconuts”. The Poras walked off. Mark went to the place where she had dropped the ripe pod and found a heap of newly cut cocoa pods hidden under the cocoa leaves, suggesting that she had been cutting cocoa pods and placing the wet beans in her basket.
Iyu Apa, a labourer at Vunakanau, gave similar evidence. He saw the husband and wife. He went to the place and saw the heap of new cocoa “skins” (which I take to mean cut cocoa pods) hidden under the leaves. Mr Pora said “i laik paim coconut” [sic] and “Im tupela still dry” [sic]. Iyu said “OK”. Note that neither Mark nor Iyu looked in the basket carried by Mrs Pora. A third witness, Luke Imen, also a plantation worker, was told of the theft by Mark. Later on at about 5 pm he saw Mr and Mrs Pora stop a white car on the road, with a full basket made of green coconut leaves. He did not look inside but said a liquid was coming out of it which looked like cocoa. As he got closer to the car Mr Pora said “A boy is coming” in tokples (presumably a Southern Highland language which Luke speaks) and hid the basket. As the car got closer he saw that cocoa was in the basket.
The fourth and final police witness was Mary Ovia who works for a cocoa buying place on the Burma Road. She said at about 5 pm a lady got out, whom she identified as Mrs Pora, with a basket of wet cocoa beans. She weighed the beans at 12 kilos and bought them for K5.60. The basket was new, made of green leaves. She identified Mr Pora as being in the car sitting in the front with the driver.
The Poras each gave an unsworn statement and did not call any witnesses. Francis Pora said they did go into the plantation. He chopped some firewood, his wife cut some greens. She took four dry coconuts from a heap the plantation labourers had made and tied them together two by two. Two security men walked up to them. She told her husband in place talk, “Two security guards have come and [I] didn’t see it and [I] already got three coconuts”. When they got closer Francis Pora said, “We already stole coconuts”. They said “Alright” and passed us. Nora had the four dry coconuts in her bilum. At the boundary fence between the barracks and the plantation she threw the four dry coconuts down and said, “later I’ll come back for them”. They saw a plantation labourer at that place and spoke with him.
At about 4.55 pm they returned to their house at the barracks. They decided to go to town. Mrs Pora got an old basket made of dry coconut leaves and filled it with old dry Singapore taros, greens and karakap. He asked her “Who owns that” and she said she wanted to carry it for Robert Kay. They went to the road, stopped a car, colour not given, drove to Rabaul and arrived at the market at about 6 pm. They searched for Robert Kay, could not find him, so went to the nearby Admin Compound where he sleeps. They found him there and gave him the basket. Robert gave her K10 for the bus fare home. They arrived home at 7 pm.
Mrs Pora gave brief similar evidence. She said she gave the basket to Robert Kay and he gave her K10 for bus fare.
The magistrate’s reasons are contained in a report to the Court prepared after the appeal was lodged. It is not very revealing as to her reasoning process but she said the prosecution evidence was strong and the defendant’s case was weak as their statements were unsworn.
How do I weigh up the evidence? The first two police witnesses Mark Kiminoko and Iyu Apa saw Mr and Mrs Pora inside the plantation, saw Mrs Pora grab one ripe pod and then drop it at the base of the tree. At that spot they found a heap of newly cut cocoa pods. The Poras’ evidence is that they were there stealing dry coconuts but not cocoa. I note that the charge is stealing cocoa and not coconuts. When I weigh up those two police witnesses against the evidence of the two defendants — even in its unsworn state — the prosecution case may well fall short of proof beyond reasonable doubt. After all the security guards did not go and look in her coconut basket which they could have done, and the heap of fresh cocoa pods could have been picked and cut by someone else before the Poras came along. But then the prosecution case strengthens. The next witness Luke Imen saw them stop and get in a white car, he saw her carry a green basket of cocoa beans. He said they attempted to hide it. Even if I have some doubts about whether he saw the wet beans inside — they were trying to hide it — he said that it was swollen and a liquid was coming out which looked like cocoa. That is a fair observation. A basket of wet cocoa beans can leak a little.
The final witness in the time sequence is that of Mary Ovia. She identified Mrs Pora as the seller. She said the beans were in a green (that is, new) coconut basket. She also identified Mr Pora in the car. The job of buying beans is usually given to a fairly intelligent person involving as it does the honest weighing and handling of money and the possibility of arguments over both. She was not shaken in cross-examination on her identification of the Poras or on any detail. Her evidence ties in with that of Luke Imen. Each said that it was a white car and that it was a green basket.
I consider that the evidence of the third and fourth witnesses greatly enhances the evidence of the first two witnesses and that it far outweighs the unsworn statement of the two defendants. Their evidence in effect is that Luke Imen was mistaken. He saw an old brown basket full of Singapore taros, greens and karakap, and that Mary Ovia was either lying or totally mistaken in saying that she saw both of them and that she bought beans from Mrs Pora. Needless to say when you get out of a car carrying a basket, place beans on the scale, get them weighed and collect your cash, the buyer has a good opportunity to observe the seller. Mary Ovia was an independent witness. On the Poras’ story the basket of taros and greens was given to Robert Kay, a friend, yet he was not called to support their story.
I consider that the magistrate was entitled to accept the prosecution evidence as strongly outweighing the defence evidence, to produce a result beyond reasonable doubt. I see no substantial miscarriage of justice in the convictions.
PENALTY
No one can say that the penalty of K50 fine for each defendant is manifestly excessive. True the stolen property was only worth K5.60, nevertheless cocoa theft is prevalent on the Gazelle Peninsula, and hard to detect, and penalties have risen over the years. I consider the fines fair.
One of the grounds of appeal is that the magistrate was wrong in recommending dismissal of Constable Pora from the police force. As I have said earlier, the magistrate was required to make some recommendation by s 57(2) of the Police Force Act. Under s 219 of the District Courts Act (Ch No 40) an appeal lies only against a “conviction, order or adjudication” of the District Court. A recommendation is not one of those things. This was so held in Maniwokin v Toburua [1973] PNGLR 710. I am unable therefore to say anything about the recommendation.
I dismiss the appeal on all grounds.
Appeal dismissed
Lawyer for the appellant: Public Solicitor.
Lawyer for the respondent: State Solicitor.