N9889

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 4 OF 2022

THE STATE

V

NANCY IPAME

Waigani: Berrigan, J
2022: 5th, 7th, 20th and 22nd July; and 13th September

CRIMINAL LAW – PRACTICE AND PROCEDURE – VERDICT – S 372(1)(10) of the Criminal Code – Stealing – Not Guilty.     

Cases Cited:
Papua New Guinean Cases

John Jaminan v The State No 2 [1983] PNGLR 318

Overseas Cases

Browne v Dunn (1893) 6R67 (HL)
MWJ v R [2005] HCA 74; 2005 222 ALR 436 

References Cited

Section 372(1)(10) of the Criminal Code 

Counsel

Ms S Suwae, for the State 
Mr D Kayok, for the Accused

DECISION ON VERDICT
13th September, 2022 
1.	BERRIGAN J: The State charged the accused, Nancy Ipame, with one count of stealing K12,710 in cash belonging to Berry Maip, contrary to s372(1)(10) of the Criminal Code.  

2.	The State alleged that on 22 July 2020 the accused got up from her bed at the residence she shared with her de facto husband and four step-children at Kirakira Village in the National Capital District, went to the kitchen and cut open two penny boxes belonging to the complainant, who was a part-owner of the monies.  Two of the children, Montie and McKaine heard some noise and went to see if there was a rat in the kitchen.  There they saw the accused counting a large stash of cash beside two penny boxes and a knife sitting on top of the boxes.  The accused was surprised and told the children she was counting the monies belonging to her and their father and told them to go back to sleep. The next morning the children told their father, the complainant, what they had seen.  The penny boxes had been cut open and the accused was nowhere to be seen. She had taken the monies belonging to the complainant without his permission and left. 

3.	The accused denies the allegations absolutely.  It is her case that the relationship had broken down, and she had left the complainant and moved out of the home sometime prior to 22 July 2020.

Undisputed Facts

4.	Berry Maip is a self-employed businessman who sells fresh vegetables to supermarkets and prisons across the Highlands Region, at a monthly turnover of K100,000.  Nancy Ipame is a lawyer.  She was employed by the Department of Petroleum and Energy at the time she met the complainant. She is now employed at Font and Bleu Lawyers. At the relevant time she was a Senior Lawyer in the Crimes Division of the Public Solicitor’s Office. 

5.	It is not in dispute that at the time of the alleged offence the complainant and the accused had been in a relationship for seven or eight years, and that they were living in Kirakira Village in the National Capital District in a one bedroom house with four of the complainant’s eight children from his first marriage. The complainant and the accused slept in the bedroom which contained the only shower and toilet. The children slept in the loungeroom.

6.	It is also not in dispute that the couple kept two large penny boxes, between 30 and 50 cm in height and 20 centrimetres in diameter in their bedroom, made of aluminum or tin.   

State Case

7.	The State called the complainant and his two children, Montie and McKaine Berry, who were 12 years old at the time and are now 14 years old.  Montie gave evidence that she had been living with the couple for one and a half years at the time of the alleged offence.  McKaine said that he had been living with the accused for half a year at the time of the alleged offence.  

8.	There are serious inconsistencies in the State’s case both within and between its witnesses. 

9.	Montie Berry gave evidence that she was woken up by a noise from the kitchen, so she woke up her brother, McKaine, picked up a broom and went to the kitchen to kill a rat, where she saw the accused “cut two penny boxes and then the money started pouring out from it”.  The accused placed the penny boxes on the side, with the knife on top and told them that the money belonged to “both of us, me and daddy, and you should both go to sleep”.  The accused was counting the money.  There were only notes, “plenty of K100 and K50 notes, a few K10 and K20 notes”.  Later, however, Montie said that the accused only told them to go back to sleep, and later again she said that the accused said that she was counting “our dad’s money” and told them to go back to sleep. 

10.	In response to the Court, Montie said that the whole episode took about fifteen minutes before she went back to bed.  When asked to demonstrate how much money there was she initially put her hands out wide - wider than a metre - but looked around unsure and brought them in to less than a foot.  When asked to indicate how high the pile of cash was, she said the cash was all in bundles and spread on the floor, “poured on top of each other”.  

11.	McKaine Berry said that Montie woke him up and told him there were rats in the kitchen. They collected a broom and walked to the kitchen where they saw the accused sitting, counting the money.  He saw heaps of money, K100, K50 and K20 notes.  There were no coins or K2 or K5 notes. Some of the notes were under the accused’s folded left leg and she had a heap of money between her legs. On the side were two penny boxes with a knife with a white handle that was placed on top of them. The accused was shocked and told them that she was counting their dad’s money and to go back to sleep, so they did.  He emphatically denied ever going to the police station or ever giving a statement to police. 

12.	In response to the Court, he said that the boxes were already cut open when he saw them. The pile was thirty centimetres high above the floor but he could not say how wide the pile was because of the accused’s legs. He said both that he had seen the penny boxes before that night and that it was the first time he saw them.  He did not stay long in the kitchen, only two or three minutes before going back to bed. 

13.	Montie said the episode took fifteen minutes, McKaine only two or three.  Montie said she saw the accused cut open the boxes, and the money “pour out”. McKaine said that the boxes were already cut open when he saw them, at the side of the accused, under a knife.  Montie said the money was in bundles, spread out over the floor.  McKaine said it was between and under the accused’s legs.  Montie said that the accused and her father argued “not many times”.  McKaine said he never saw them argue. These are not minor inconsistencies. 

14.	Nor was I impressed by the demeanour of either of the witnesses. McKaine in particular seemed very uncomfortable and hesitant.  The only thing he was very confident about was that he did not give a statement to police.  Whilst Montie confidently told the basic story about finding the accused, like McKaine she struggled with important details, in particular, how much money there was and where it was.      

15.	The complainant, Berry Maip gave evidence that the night before the alleged incident, the accused cooked the food, they all ate and went to sleep.  When he woke up the next morning, Nancy was not there.  He asked the children and they told him what happened. He checked the room and the boxes were missing. He went to the kitchen and looked under the cupboard and saw the two containers and a knife. He called her but her phone was off. He searched for her, including at her parent’s house, but she went into hiding and he could not find her for three months until in about October when he and his boys were buying some food at King Kakaruk in Boroko and he caught her with “the person she was going around with”.    

16.	The cans were stored under a small table in the bedroom. The money was being saved so that he himself, Nancy and Nancy’s mother could travel to China for Nancy’s sister’s graduation. It was Nancy’s idea.  Only his money, in cash, went into the containers.  He gave it to Nancy, she updated a chart kept on the back of the bedroom door, and put the money in the box. Money was put into the boxes weekly, or twice weekly. Nancy did not contribute any money.  She told him she had a K15,000 loan that she was repaying. 

17.	Under cross-examination he denied that Nancy left him, or that the relationship broke down because of his relationships with other women, including Beverlyn, his current wife. He did not fabricate the case to destroy the accused’s reputation as a lawyer. He did not write the police statements on behalf of his children or instruct them to lie. He did not say that he would withdraw the case if she came back to him. 

18.	In response to questions from the Court, Berry said the chart was attached to the back of the bedroom wall and was given to police. He said that graduation was in August 2020. The target was K50,000. They started with one box and when it was full they got another to continue, and so at least one of the boxes was heavy. The monies were not intended as a gift for the accused. He and his wife never argued. He found out about the other man before he saw them at Boroko because a police officer told him. He was looking for the accused because she was his wife, and because she stole his money.  He reported his wife after just one week to police.  He did speak to her family during the three months but they were also looking for her. 

19.	I found his evidence difficult to accept in many respects, including his assertion that only he contributed to the monies in the box, and only in kina notes. The assertion that the monies were for a trip to China was unconvincing particularly given that the monies saved, on his evidence, even after a year, fell far short of what would have been required by August 2020, and what he said was the target of K50,000.  Despite ample opportunity, he struggled to explain how he knew how much cash was in the boxes, and neither the boxes nor the chart were produced. Every relationship has difficulties and I find his evidence that they never argued implausible. As is his evidence that he was unable to find the accused at her office, or with her family for a period of three months.

20.	In addition to the inconsistencies, the State’s case is implausible. 

21.	Why would anyone, let alone an educated, professional person, in ongoing employment as a lawyer in the Criminal Division of the Public Solicitor’s Office, get up in the middle of the night, remove two large, cumbersome and heavy penny boxes from under the bed or table, near the head of the complainant, at the risk of waking him, take them into a brightly lit kitchen, just metres from both the bedroom and the living room of the small house where the rest of the family was sleeping, saw them open with a large kitchen knife, something that would be both time consuming and noisy, pour the cash out on to the floor, take the time to count it, tell the children that she was counting the complainant’s cash, before walking out, a woman alone, into the village in the middle of the night, carrying large bundles of cash, whilst abandoning all her other worldly possessions, after eight years of marriage with the complainant, and go into hiding for three months, abandoning her parents and employment, for just K12,700?  It’s a nonsense.

22.	Even on the State’s own case, it makes no sense.  There was no need for the accused to take the boxes in the middle of the night, or to cut the penny boxes open there and then. On the State’s case, the accused did not need to count the cash.  According to the complainant she knew better than anyone how much money was there.  She was required by him to mark up a chart stuck on the back of the bedroom door, every time he put money in them.  

23.	The State’s case fails. No amount of submissions about Browne v Dunn (1893) 6R67 (HL) will save it.  There were some matters that were not put to State witnesses but that is beside the point.  

24.	Essentially the rule in Browne v Dunn requires that a party put his case to the witnesses called against him, or any matters that he intends to rely on to contradict them, in cross-examination so that in fairness the witness can comment and choose to either maintain or retract their evidence: see John Jaminan v The State No 2 [1983] PNGLR 318. 

25.	The requirements of the rule vary according to the circumstances of the case, and the principal aim is to ensure fairness. It does not necessarily follow that failure to comply with the rule results in the conclusion that the evidence is recent invention, unreliable and should be rejected:  Kitawal v The State (2007) SC927. Furthermore, the failure is a matter to be considered in assessing the weight of the evidence. It cannot make the State’s case for it. As the High Court in Australia emphasised in MWJ v R [2005] HCA 74; 2005 222 ALR 436 the rule must be applied in criminal proceedings with regard to the unavoidable burden of proof carried by the prosecution in a criminal trial. 

26.	The key aspects of the accused’s case were put to the State witnesses in this case in any event.  

Defence Case

27.	Furthermore, the accused’s evidence was simple, straightforward and in keeping with common sense.  I was impressed by her demeanour and I accept her evidence that the relationship broke down and she moved out before the date of the alleged offence. Her relationship with the adult children of the complainant’s first wife, who took their mother’s side, had become sour, which created a difficult environment for her, and then she discovered messages on the complainant’s phone from other women, which lead to regular arguments.  

28.	The accused was very open about the fact that it was her idea to get the penny boxes and that both she and the complainant both put spare coins in them but that she did not know how much money was in there.  That is usually how penny boxes work. She also readily agreed that her sister was studying at university in China and was due to graduate in 2020 but maintained that the penny boxes were never intended for saving up for a trip to China.  It also makes sense that when she left the complainant she took her clothes, and other possessions, including work items but did not take the penny boxes.  She did not think of them at the time.  For obvious reasons a couple of penny boxes full of loose change were probably the last thing on her mind.  The accused moved in with her parents and continued to work as one would expect. The complainant came to her parent’s house a number of times and begged her to come back but she refused. 

29.	The accused openly agreed that the complainant contributed to her family during the relationship but denied that he paid her fees at the Legal Training Institute.  She was sponsored by the Department of Petroleum and Energy, her employer at the time, which again makes sense. But even if he did contribute to her family from time to time or pay her fees, so what? She was not his possession and the State failed to establish that the accused was in debt.   

30.	The evidence of the accused’s step-mother, Sandra Piso, about what Montie subsequently said about the truth of the allegation, was not put to Montie and whilst there may have been an issue with interpretation at one point I intend to treat her evidence with caution for various reasons and disregard it.

31.	Adjit Taio, however, was a very impressive witness.  She is a lawyer of some ten years standing at the Public Solicitor’s Office. She described the day the complainant came with police to the accused’s office to have her arrested. She and three other colleagues went to the police station. I accept her evidence that the complainant spoke to them outside the station that day and repeatedly said that he would drop the charges if the accused returned to him. 

32.	In conclusion, the evidence of the State witnesses was inconsistent and implausible. I accept the evidence of the accused and Adjit Taio.  It appears to me that this case was brought by a man intent on punishing the accused for leaving him. 

33.	The accused is found not guilty of stealing and acquitted.  Any bail monies will be refunded. 

Verdict accordingly. 
 
_______________________________________________________________
Public Prosecutor: Lawyer for the State	
Public Solicitor: Lawyer for the Accused