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State v Kep [2017] PGNC 289; N6978 (12 May 2017)

N6978

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 188 OF 2014

THE STATE

V

PATRICK SIMON KEP

Wabag: Auka AJ
2017: 8^th, 9^th, 13^th, 22^nd March & 12^th May

CRIMINAL LAW – Stealing – Not guilty – Trial – Criminal Code S. 372 (1) (7) (10)

CRIMINAL LAW – Trial – Issue of Involvement

CRIMINAL LAW – Evidence – Circumstantial in nature – Accused a security guard was asked to Accompany victim to bank with knowledge that victim had bag of money.

CRIMINAL LAW – Evidence – Circumstantial in nature – To the bank Accused’s walking position was at victims back – At the gate of bank Accused walked in front of victim – Co-Accused snatched bag of money from victim and ran away.

CRIMINAL LAW – Evidence – Circumstantial in nature – Accused gave chase to Co-Accused – Later same day accused seen sharing the stolen money with Co-Accused in the bush.

CRIMINAL LAW – Evidence – Circumstantial in nature – On same day accused and co-accused gave K200. 00 cash each to state witness in the bush – Later on same day K3, 830. 00 cash found in accused’s possession.

CRIMINAL LAW – Sufficient evidence of Accused involvement in Commission of Crime as Aides and abettor – Verdict of Guilty – Criminal Code Section 372 (7) and 7.

Case Cited:

Paulus Pawa v. The State [1981] PNGLR 498
The State v. Cosmos Kutan Kitawal (2002) N2205
The State v Tom Morris [1981] PNGLR 493

Counsel:

Mr. Emmanuel Thomas, for the State
Mr Jeffrey Kolowe, lawyer for the Accused

JUDGEMENT ON VERDICT

12^th May, 2017

1. AUKA AJ: The accused has been charged that he on the 18^th February, 2014 at Wabag town stole from JACKIE HE the sum of K15,500. 00 the property of WCH Investment Limited whole sale and Re-tail store.

2. The accused upon arraignment pleaded not guilty and a trial was conducted.

3. The brief facts as alleged by the state were that the accused Patrick Simon Kep at the time of the incident was rostered as a Security guard with WCH Investment Limited wholesale and retail store at Wabag Town. It was alleged that on 18^th of February, 2014, the accused accompanied the Manager of WCH Investment Limited Whole Sale and Retail Store Mr JACKY HE to do banking of takings amounting to K15,500. 00. Without the knowledge of Mr JACKY HE, accused had arranged with his co-accused Camillus Karape to come over and steal the money bag from him. When at the gate to BSP Wabag, Camillus Karape rushed from behind JACKY HE, and snatched off the money bag and ran away. The accused gave chase to Camillus Karape but only pretended to do so as he was seen later in the bush sharing the stolen money with the thief Camillus Karape.

Later the same day at Wabag Police Station about K3, 830. 00 in cash was found on the accused’s possession when he was searched by Police. State alleged that by the accused actions he committed the offence of stealing contrary to Section 372 (1) (7) (10) of the Criminal Code Act. The state also invoked S.7 of the Criminal Code in that the accused and the thief Camillus Karape aided and abetted each other in the Commission of the offence.

4. The issue in the case was one of involvement.

5. To prove its case, prosecution firstly tendered the following documents into evidence by consent of the defence counsel.

1. The Record of Interim – Pidgin Version – Exh “A”
English Version – Exh “A”

2. Photograph of money recovered from the Accused after he was search at Police Station on the same day and afternoon – Exh “B”

3. The witness statement of JACKY HE – Exh “C”

6. There was no admission in the Record of Interview to the effect that the accused planned with the thief Camillus Karape to commit the offence. It however confirms with JACKY HE’s evidence that at the gate to the Bank the accused walked infront of the victim and soon after, the money bag was stolen (Q &A 10).

The Record of Interview also provides the accused’s explanation as to how the K3, 830.00 came into accused’s possession. He said in the Record of Interview that the thief threw the money in front of the bank gate and he collected it (See Q & A 16).

7. The State also produced evidence from three (3) witnesses. The first witness was JACK HE. This witness statement was tendered into evidence by consent. (Exh “C”). His evidence was that he told the accused to accompany him to the Bank as he wanted to do some banking. He was carrying K15,500. 00 in cash in the money bag. He said when they left the store and walked to the bank, the accused walked behind him but when they arrived at the main gate leading into the bank the accused came from behind and walked in front of him. Immediately Camillus Karape the thief came from behind and snatched the money bag off him and ran off in the direction of Lanekep area. Then the witness said he and accused ran after the thief. He then turned back and returned to the store. The witness said accused returned later to the store and asked him for K200. 00 to get a Police Car to assist and the witness gave him K200.00. The witness in his statement (Exh “C”) did not mention about the thief throwing away money as he ran away from the bank’s gate. Also he did not mention about the accused picking up money that was thrown away by the thief at the bank’s main gate.

8. The second state witness was MARTIN KEI. He is the owner of Bui Light Security Services and employed the Accused as Security guard. He was in his house at Beat Street Wabag town when he received a call from JACKY HE and later from a radio dispatch call from his security supervisor advising him of the Robbery. He drove to Lanekep Market and parked there because that was the intersection in which the thief would come as he ran down to Lai River. He said he met some people and asked them if they had seen the thief and they said yes and gave him the possible direction as to where the thief may have taken. While standing there a man by the name of PEPON KARO came and told him that he had seen two people and told him that they were his two security guards, and mentioned their names as Camillus Karape and the Accused. He said he passed them as he was coming up. They were sharing money when he saw them and that each of them gave him K200.00 each. He then told Martin Kei not to waste his time and to return back. Martin Kei said he knows the accused and Camillus Karape well as they are both from Apinamanda Village and belongs to the same tribe and clan.

9. He said he came to WCH Limited store and was with JACKY HE and about 15 minutes later, the accused arrived in a police car. He talked alot about the possible route Camilus Karape may have taken. He said since he had a strong suspicion about the accused’s possible involvement, he took him to the Police Station. At the Police Station the accused was searched by Police in his presence and K3, 830. 00 in cash was found and removed from his underwear. The accused’s explanation was that the thief threw it and he got it. Martin Kei then told the accused that he should have told this to JACKY HE at the first place instead he had this money on him and was found in his pants. He was very angry and slapped the accused.

10. Mr. Kei’s evidence remained intact especially throughout cross-explanation. Although being put to him that he was making the evidence up against the accused simply because he was from the same village as Camillus Karape. He denied this and said that he strongly suspected the accused because of what Pepon Karo told him and also because of the fact that K3, 830. 00 in cash was found on his person after being searched at the Police Station in his presence. I closely observed his demeanour in the witness box and I did not find any trace of witness lying or being evasive. This witness impressed me as a truthful witness and his testimony credible.

11. The third witness State called was PEPON KARO and he gave sworn evidence. His evidence confirmed Martin Kei’s evidence of what he said to Martin Kei regarding the two (2) accused. He said he was at his house at Lupumanda Village and was walking up towards Wabag town when he came across the accused and Camillus Karape. They were making noises in the bush. When he saw them they were surprised and sweating. He said Karape was holding the bag and the accused had money under his shirt. Camillus pulled out K200. 00 from the bag and gave it to him. He also said that he saw accused pull out money from his shirt pocket and gave him K200. 00. He said after they gave him the money they told him to go away quickly and so he left them.

12. Mr Karo’s evidence remained intact throughout cross-examination. When he was asked that he was making up the evidence to support Martin Kei, he strongly denied that and said that he saw what he saw and is telling the truth. His evidence was never negatived by the defence in cross-examination. I closely observed his demeanour in the witness box and I did not find any trace of a witness either lying or being erosive. This witness impressed me as a truthful witness.

13. The Accused gave evidence and his evidence was that he is a security guard employed by BUI Light Security Services Limited. He said on that day he was the Security guard at WHC Investment Wholesale and Retail Sore. He said when he was told to escort JACKY HE to BSP Bank to do banking, he did not see if JACKY HE had carried any bag. He walked ahead JACKY HE that whole time and when the money was taken he chased after the thief. He said the thief threw some money at the people in the crowd and he collected some. He said he went after the thief but the thief caught up with some of his friends and they threatened him that if he came closer they would cut him as it was not his money. He said when he return to WHC Investment Limited store, Martin Kei assaulted him without giving him a chance to explain and brought him to the Police Station. At the Police Station, he produced the money. He said that if he had planned to steal the money he would have escaped with Camillus Karape, but he was just doing his job so he returned back to the store his place of work.

14. In cross-examination it was put to him that Pepon Karo’s evidence against him was all true and he completely denied Karo’s evidence and said that it is not true but did not give any explanation as to why Pepon Karo would come to court and lie other then speculatively say that he could be lying because he is from the same village as Martin Kei.

Further in cross-examination, he was asked whether he saw Jacky He carrying a bag of money with him when he was told to escort Jacky He to the bank to do banking. After a long pause he said No. Furthermore it was put to him that he was not walking ahead of Jacky He all that time until they reached the Bank and he said no he walked ahead all that time.

15. I find accused’s sworn evidence unreliable and as such reject it. Although he was adamant that he walked ahead the whole distance what goes against that evidence is his own story he gave to the police in his Record of Interview. His version in the Record of Interview was that when they left the store he walked behind Jacky He until at the gate of the bank he walked in front of Jacky He. I consider and find his version in his Record of Interview as correct as it is his earliest record of what transpired which would have been accurate and is consistent with Jacky He’s evidence. Also I find that his evidence on this aspect does not accord well with Logic and Common Sense test. Any security guard providing escort would be walking by the side of the person he is escorting especially if he is escorting the person alone. I also consider accused’s evidence that he was walking ahead is not reflective of a responsible security guard.

16. Furthermore I find accused’s evidence that he did not see Jacky He carrying a bag of money to the bank against any logic and common sense test. The logic and common sense approach would dictate that when a boss is talking to his worker, the worker would give his attention to his boss so he would be able to tell if he was carrying anything as that would be in plain sight.

17. In relation to accused’s story both in the Record of Interview and in his sworn evidence in Court that the money found on him during the search at the Police Station was the money he collected when the thief threw the money away in front of the bank’s main gate is illogical and unreliable and I reject it as it also goes against the logic and common sense test. Any thief who steals money would want to escape with all the money he had stolen and not easily throw it away in the public place straight after the theft. There are two (2) other reasons why I reject his evidence on this aspect. Firstly that when he return to the WHC Investment Whole Sale and Retail Store after the incident, he did not tell Jacky He that he collected the money infront of the main gate of the Bank. I find that the accuseds return to the store was merely a cover-up to mislead Jacky He to believe that he was not involved in the stealing. In my view the accused would have fooled everyone had Pepon Karo not met Martin Koi and revealed his identity. The second reason is that the accused was seen by the state witness Pepon Karo in the pitpit bush sharing the stolen money with the thief Camillus Karape whom he had pretended to chase outside of the bank earlier on that same day. For the above reasons, I find that the money found on him by the Police during the search was the money he received from his co-accused in the bush after the theft incident.

18. Having found certain aspects of accuseds evidence going against logic and common sense test as well as inconsistencies, in his story, I find him as a unreliable witness and his testimony unreliable. I closely observed his demeanour in the witness box and found some traces of witness lying and being evasive and as such I reject his evidence.

In the case of The State v. Cosmos Kutau Kitawal (2002) N2245 His Honour Kandakasi J said quote “Logic and Common Sense play a major part in accepting or rejecting evidence and the guilt or innocence of an accused person. Evidence going against any logic and common sense are unreliable. Illogical explanations coupled with inconsistencies amount to unreliable evidence which ought to be rejected”.

19. Having rejected the evidence of the accused, the Court is left with the evidence of State witnesses which I consider are mostly circumstantial in nature. In summary the relevant parts of the evidence are that the accused after being told to escort the victim to the bank to do banking walked behind the victim whom he saw was holding the bag of money. As they both approached the main gate to the bank, the accused changed his walking position and walked infront of the victim. Suddenly his co-accused whom he knows well snatched the bag with the money in it and ran away. The accused ran after the thief pretending that he was chasing him as I found. The accused caught up with the thief in the bush and they met and shared the stolen money. The state witness Pepon Karo saw and met them sharing the money. Both the accused and his co-accused (the thief) each gave K200. 00 in cash to the witness and told him to leave quickly. Later on that day the accused returned to the store, his place of work and did not tell the victim that he had some money on him and where it came from. However when he was taken to the Police Station and a search was carried out, some cash money in the amount of K3, 830. 00 was found on him. His explanation was that the money was the money he collected when the thief threw them away infront of the Bank’s main gate which I found is an illogical explanation.

20. I have carefully considered the evidence and I am satisfied in finding that the guilt of the accused is the only rational inference to draw from all the evidence.

21. The law on circumstantial evidence is clearly established in this jurisdiction. The Supreme Court in Pawa v. The State [1981] PNGLR 498 at 501, in the words of Andrew J stated the relevant principles who cited with agreement the words of Miles J in The State v. Tom Morris [1981] PNGLR 493 at p495 where he said:

“I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v. The Queen [1975] HCA 42; (1975) 50 ALJR 108 at p117:

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than guilt of the accused’; Peacock v The King [1911] HCA 66; (1911), 13 CLR 619 at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilty of the accused it is necessary not only that his guilty should be a rational inference but that it should be ‘the only rational inference that the circumstances wound enable them to draw ‘Plomp v The Queen [1963] HCA 44; (1963), 110 CLR 234, at p 252; see also Thomas v The Queen [1960] HCA 2; (1960), 102 CLR 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. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v Director of Public Prosecutions, [1973] 1 WLR 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense.

22. At the end, I am satisfied that the State has proven its case beyond reasonable doubt and as such I find the accused as Principal offender and find him guilty as aider and abettor in the commission of the offence of stealing under s.372 (1) (7) (10) of the Criminal Code Act.
___________________________________________________________
Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused