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State v Namto [2018] PGNC 177; N7259 (10 May 2018)

N7259

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) Nos. 202 & 204 OF 2015

THE STATE

V

NELSON NAMTO & PATRICK KAIKRE

Lae: Numapo AJ
2018: 21, 22, 26, 27 March & 10 May

CRIMINAL LAW – Evidence – Burden of Proof – Right to remain silent – Failure to testify is not admission of guilt – Prosecution’s case cannot be improved by any inference from the failure of the accused to call evidence - Confessions obtained under questionable circumstances is not admissible– Principles of law on circumstantial evidence – Only rational and reasonable inference that the circumstances would enable the court to draw – accused acquitted

Held:

(i) The failure of an accused person to testify is not an admission of guilt and no inference of guilty may be drawn from such failure to testify.

(ii) When a case against an accused person rests substantially upon circumstantial evidence there should be an acquittal unless all the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.

(iii) A confession obtained without the necessary warning under section 42 (2) of the Constitution and the Judges Rules’ Caution on the right to remain silent is a breach of a fundamental right.

(iv) The practice of taking a confessional statement followed by a record of interview is improper and should be discouraged (State v Balana).

(v) Prosecution has not proven beyond a reasonable doubt each and every elements of the offence of stealing.

(vi) Case dismissed and accused persons acquitted.

Cases cited:
Papua New Guinea Cases

Nara v The State [2007] PGCS 54; SC1314
Paulus Pawa v The State [1981] 498
Re: Abia Tambule (1973) (Unreported Judgment No. 769)
The State v Balana [2007] PGNC 12
The State v Tom Morris [1981] PNGLR 493

Overseas Cases

Barca v The Queen [1975] HCA 42; (1976) 50 ALJR 108
Peacock v The King (1911) 13 CLR 169, 634
Plomb v The Queen [1963] HCA 44; (1963) 110 CLR, 234, 252
R v Sharmpal Singh [1962] AC 188, 198 (PC)

Counsel:

J. Done, for the State
S. Katurowe, for the Defence

RULING ON VERDICT

10^th May, 2018

1. NUMAPO AJ: This is a ruling on verdict. Accused Nelson Namto and his co-accused Patrick Kaikre were each arraigned with one count of stealing under section 372 (1) and (10) of the Criminal Code. The State alleged that the accused Nelson Namto colluded and collaborated with his co-accused Patrick Kaikre to steal four (4) gold bars (bullions) belonging to Hidden Valley Gold Mine. The prosecution’s evidence comprises of documentary evidence that includes; confessional statements purportedly made by the accused persons, written statements of witnesses, photographs of the stolen gold bars and oral evidence from two security officers. The State then closed its case. Both accuseds elected to remain silent and did not give evidence. No other witnesses were called in for the defence.

2. Both accused persons pleaded Not Guilty to the charge.

Brief Facts

3. The State alleged that on the 20^th August 2014, the accused Nelson Namto was working night shift at his place of work at the Hidden Valley Gold mine. During the course of the evening he concealed four gold bars (bullions) in his trousers and took them outside of the gold processing mill area and walked past the security scanner without being detected with the assistance of a night shift security guard Willie Hangu. He then passed on the gold bars to his co-accused Patrick Kaikre, a driver with Hidden Valley Transport, a company contracted to Morobe Mining Joint Venture (MMJV). The co-accused Patrick Kaikre took the gold bars and concealed them in the spare tyre compartment area of the semi-trailer truck driven by Morris Katu. The truck was checked at the security checkpoint by the Asset Protection Division (APD) who were alerted earlier regarding the planned movement of the gold bars.

4. The APD taskforce carried out the search and discovered the four gold bars hidden in the spare tyre compartment at the back of the truck and confiscated them. The co-accused Patrick Kaikre and the driver of the truck Morris Katu were taken in by the company security personnel for questioning. Morris Katu denied any knowledge of the gold bars in his truck and was allowed to go. The accused and his co-accused ‘confessed’ to stealing the gold bars during their interrogations at the company’s security office.

5. In the Record of Interview (ROI) conducted by the Police both accused denied committing the offence.

Elements of the Offence

6. The essential elements of the offence of stealing are:

(i) That the property must belong to someone other than the accused;

(ii) It must be physically removed and taken away from the possession or custody of the owner;

(iii) The taking must be without the consent of the owner of the property;

(iv) The property must be taken with the intention of permanently depriving the owner of it;

(v) The property must be taken without a claim of right made in good faith; and the property must be taken dishonestly.

7. The State bears the onus to prove beyond a reasonable doubt each and every element of the charge to secure a verdict of guilty.

Issues:

(i) Whether or not the accused persons colluded and collaborated with each other to steal the gold bars (bullions)?

(ii) Whether or not the evidence as it stands directly linked the accused persons to the crime?

Evidence

8. The only evidence before the Court are those presented by the State. Both accused persons exercised their rights to remain silent. No witnesses were called in and Defence offered no evidence.

1. Right to Remain Silent
   

9. The accused’s rights to remain silent is guaranteed under Sections 37 (4) and 37 (10) of the Constitution that basically states that a person charged with an offence shall be presumed innocent until proved guilty according to law (s37 (4) (a)) and that no person shall be compelled in a trial of an offence to be a witness against himself (s37 (10)). In addition, section 12 of the Evidence Act states that a person charged with an offence is a competent witness but not a compellable witness for himself in any legal proceedings in connexion with the offence with which he is charged. It reaffirms the common law principle on the right to remain silent. The accused is not obliged to give evidence as he doesn’t need to prove his innocence. The onus is on the prosecution to prove his guilt.

10. Generally speaking, the right to silence comprised two rights, the privilege against self-incrimination, i.e. the freedom of an accused from the compulsion to incriminate himself, and the right not to have adverse inferences drawn from his silence.

11. State submitted that in the absence of any evidence from the Defence the Court is entitled to draw an adverse inference on the accused’s failure to testify. The learned prosecutor then asked the Court to give weight to the State’s evidence which not being challenged on vital points. And to support his argument he referred to the case of Paulus Pawa v The State [1981] PNGLR 498 where Kearney DCJ (as he then was) said:

“.......In such circumstances where the court is left with an incomplete picture the court may draw inferences which properly flow from the evidence, and reach its conclusion thereon, without being deterred from doing so by the incomplete state of the evidence, or by speculation as to what the accused might have said had he testified.... Only in that sense may an accused by not testifying ‘strengthen’ the State’s case”. See R v Sharmpal Singh [1962] AC 188, 198 (PC).

12. In the same case, Andrew J started by saying that naturally an innocent man charged with a crime or with any conduct reflecting upon his reputation, he can be expected to refute the allegation as soon as he can by giving his own version of what happened rather than to remain silent. But when he chooses to remain silent the Court cannot take that as an admission of guilt. His Honour adopted the conclusions made by Professor O’Regan in his article “Adverse Inferences From Failure of an Accused Person to Testify” 1965 Crim. L. R. 711 and said that;

“Where an accused person fails to give evidence or to call witnesses to support his case, any inferences to be drawn and the weight to be attached thereto must be determined by common sense having in mind that:

(1) The failure of an accused person to testify is not an admission of guilty and no inference of guilty may be drawn from such failure to testify;

• (2) Failure to testify may, however, tell against an accused person in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters;
  
• (3) Failure to testify only becomes a relevant consideration when the State has established a prima facie case;
  
• (4) The weight to be attached to failure to testify depends on the circumstances of the case. Significant circumstances include:
  
  • (a) whether the truth is not easily ascertainable by the State but probably well known to the accused;

(b) whether the evidence implicating the accused is direct or circumstantial;

(c) whether the accused is legally represented; and

(d) whether the accused has before trial given an explanation which the State has adduced in evidence.

13. His Honour then cited a leading English authority on the right to remain silent in R. v. Sparrow (1973) 57 Cr. App. R 353 at pp. 363 - 364 where the Court held, after considering some earlier authorities, that:

“Having studied these authorities I remind myself that the absence of the accused from the witness box is not an admission of guilty nor is it something from which an inference of guilty may be inferred”.

14. Kapi J (as he then was) adopted the view taken by Frost S.P.J in Abia Tambule (1973) (Unreported Judgment No. 769) that the accused’s absence from the witness box makes the inference of guilty from evidence of the prosecution less unsafe than it might possibly appear. His Honour sums it up by saying that;

“With respect, I do not agree with authorities that suggest that an adverse inference against the accused may be drawn from his failure to give evidence. This is against the principle that the accused has a fundamental right to remain silent. Whether an accused person is guilty or not of an offence must be determined on the evidence of the prosecution alone and no inference of guilty by the failure of the accused to call evidence should improve a prosecution case which may be unsafe. In other words, if at the close of the prosecution case, the prosecution case does not measure up to a standard beyond reasonable doubt, the case cannot be improved by any inference from the failure of the accused to call evidence. All that can be said is that the Court will determine the case solely on the evidence of the prosecution.”

15. These principles are well settled in this jurisdiction and is applied in many subsequent cases both at the National Court and the Supreme Court.

16. I adopt the conclusion reached by his Honour Kapi J and apply the same to the present case and held therefore, that the Court is not entitled to draw an adverse inference against the accused for his failure to give evidence. Accordingly, the prosecution’s argument on this leg must fail.

2. Confession
   

17. It is not known if the confessional statements obtained by the company’s security officers on the 20^th August 2014 were given to the Police when the matter was referred to them as there was no reference was made to it in the record of interview. At the police station the accuseds were interrogated and both denied stealing the gold bars. The Police record of interview did not contain any confession or admission.

18. The State relied heavily on the ‘confessional statements’ purportedly made by the accused persons and submitted that this is sufficient admission of guilt and the Court should accept this on face value and return a verdict of guilty. Counsel further submitted that the confessional statements clearly showed that the accuseds conspired and collaborated with each other including Willie Hangu the night shift security guard and stole the gold bars and concealed them in the truck.

19. Defence did not object to the tendering of the confessional statements however, submitted that the Court should be very cautious in accepting confessional statements that are obtained outside of the formal Police interrogation processes. Counsel submitted that the confessional statements were uncorroborated and there is no evidence to suggest that they were made voluntarily and therefore, should be disregarded. There was no Corroborator or a third party present in the company’s security office at the time the confessions were made. Security officer Linus Niangu in his statement to the Court stated that he recorded the conversation he had with the accused Nelson Namto in an Olympus audio recorder but in cross-examination he denied using any recording device to record the conversation. Security officer Ismael Marabui who interviewed the co-accused Patrick Kaikre said that the interview was recorded on the Surveillance Camera (CCTV) in the company’s security office. However, none of these were produced in Court as evidence.

20. Defence further submitted that the manner in which the purported confessional statements were obtained was highly irregular and under very questionable circumstances and therefore, should not be relied on. The accused persons were not given a proper caution before making their statements and furthermore, their rights under s 42 (2) of the Constitution was never administered. Counsel stressed that this is a fundamental right of an accused person and has to be administered at all times irrespective of where the interrogation or the interview takes place. The two company security officers who conducted the interview admitted during cross-examination that they did not caution the accuseds nor administer their rights before obtaining their confessional statements.

21. Counsels did not cite any case authority to support their arguments on confessions.

The Law on Confession

22. The law regarding confession is that the Court must be satisfied that a confession tendered in evidence has been made voluntarily. Section 28 of the Evidence Act provides:

“A confession that is tendered in evidence in any criminal proceeding shall not be received in evidence if it has been induced by a threat or promise by a person in authority, and a confession made after any such threat or promise shall be deemed to have been induced by it unless the contrary is shown”.

23. I have considered the arguments presented by both the prosecution and the defence in relation to the confessions made by the accused persons and I make following findings:

Firstly, admissibility of confessions in criminal proceedings is guided by a set of stringent rules with the minimum requirement that the confession was made voluntarily and not extracted by any sort of threat or violence or obtained by any promise or exertion of improper influence. See R v Wendo [1963] PNGLR 242 at 245. See also Mc Dermott v King (1958) 76 CLR 501.

Secondly, a confession obtained without issuing the required warning under s 42 (2) of the Constitution and the Judges Rules’ Caution on the right to remain silent, cannot be admitted. In The State v Balana [2007] PGNC 12; the Court held that; “the practice of taking a confessional statement followed by a record of interview is improper and should be discouraged.” See also R v Wendo (supra).

Thirdly, Prosecution bore the legal burden of proving beyond a reasonable doubt that the confession was voluntary. See: R v Amo and Amuna [1963] PNGLR 22 & State v Woila [1978] PNGLR 572. Also see R v Thompson [1893] UKLawRpKQB 74; [1893] 2 Q.B 12.

I am not convinced beyond doubt that the confession was voluntary and therefore, refuse to admit the confessional statements made by the accused persons.

Finally, I find the confessions to be vague, unsubstantiated and uncorroborated and made in an informal setting i.e. the company’s security office and not in a Police station. The accuseds were not properly caution and given their rights under s 42 (2) of the Constitution before the confessional statements were obtained. I do not think it dawn on the accused persons at the time that any confession or admission made would ultimately land them in Court let alone their terminations. Given the company’s strict rules on stealing the accuseds already knew of their fate that they would be terminated from their employment regardless and it doesn’t really matter if they admit or deny stealing the gold bars because the gold bars were found in a place where it is not supposed to be and both accuseds were the prime suspects at the time.

100. Circumstantial Evidence
     

24. Prosecution did not produce any direct evidence linking the accuseds to the gold bars and admitted that their evidence is substantially circumstantial. The Prosecution submitted however, that in such circumstances where the Court is left only with circumstantial evidence the only reasonable hypothesis the Court can draw is the guilt of the accused. It then referred to the case of The State v Tom Morris [1981] PNGLR 493. I disagreed with the conclusion made.

25. The principles on circumstantial evidence is well developed in this jurisdiction and generally, it was held that where a case against an accused person is based entirely on circumstantial evidence he must be acquitted unless his guilt is the only rational and reasonable inference to be drawn from the circumstantial evidence that is presented before the Court on the required standard of proof beyond any reasonable doubt.

26. In Barca v The Queen [1975] HCA 42; (1976) 50 ALJR 108 at 117 it was held that;

“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 the guilt of the accused’.

27. Miles J (as he then was) in The State v Tom Morris (supra) applied the principle established in Re: Barca (supra) as applicable in Papua New Guinea.

28. The principle was further refined and made more precise by Cannings J in Nara v The State [2007] PGCS 54; SC1314 where his Honour held that;

“The principles relating to convicting on the basis of circumstantial evidence are precise and exacting; it is necessary not only that the accused’s guilt be a rational inference but that it is the only rational inference that the circumstances would enable the court to draw.” Also see: Peacock v The King (1911) 13 CLR 169, 634.

29. And in Plomp v The Queen [1963] HCA 44; [1963] 110 CLR 234 at p 252 it was held that;

“...an inference to be reasonable must rest upon something more than a 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 consideration of all facts in evidence...”

30. The Court is not convinced that the accuseds guilt is the only rational and reasonable inference the circumstances would enable the Court to draw and therefore, acquit the accuseds accordingly.

31. A number of important witnesses critical to the State’s case have not been called to give evidence to strengthen the prosecution’s case. For example; Willie Hangu, the night shift security guard who allegedly collaborated with the accused Nelson Namto and allowed him to pass through the security scanner at the processing room with the gold bars tucked under his trousers. Rebecca Hanch the Biometrics Officer who identified the accused Nelson Namto as the prime suspect as he was the last person who exited the first turnstile and she electronically barred him from exiting the second turnstile. Morris Katu the driver of the truck where the gold bars were taken. Simon Alumba and John Tevere the two people who discovered the gold bars hidden in the spare tyre compartment of the truck and took some photos and later remove the gold bars. Both are key witnesses and should have been called to appear in person to testify and further support their statements given to the police but both were not called.

32. Furthermore, it became clear in the evidence that there were CCTV cameras all around the mill refinery area which keeps a 24 hour surveillance of the area. Surely, the activities in and around the area would have been captured by the CCTV cameras. Why can’t the footage be brought to court as they say; “a picture doesn’t lie.” And what about the audio recording of the conversation between the accused Nelson Namto and the security officer Linus Niangu in which the purported confession was made. Didn’t it occur to the State that such recording is a vital piece evidence to prove that a conversation took place and most importantly, that the confession was made during the conversation? Finally, the cold hard proof of the gold bars itself, the subject of this case. Why didn’t the gold bars be brought to court as real evidence? What is the proof that the photos produced in Court are the photos of the actual gold bars found in the spare tyre compartment of the truck? A lot of questions are left unanswered.

33. The State’s evidence are disjointed and unreliable in many respects to say the least. There are too many missing links and gaps in the evidence so much so that no reasonable tribunal of facts would return a verdict of guilty on the evidence as it stands.

The Prosecution has not proven beyond a reasonable doubt each and every elements of the charge of stealing.

Decision

Accordingly, I return a verdict of Not Guilty and the accused persons are acquitted.

Bail to be refunded forthwith
__________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Defence