N9976

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 125 AND 127 OF 2021

THE STATE

V

HENRY MANARI & THOMAS MAIAI

Waigani: Berrigan, J
2022: 31st May, 1st June, 7th July and 14th October

CRIMINAL LAW – PRACTICE AND PROCEDURE – S 372(1)(10) of the Criminal Code – Stealing – Whether failure to correctly describe the owner of the property in the indictment fatal to the charge – Sections  364, 372 and 528(6) of the Criminal Code considered – Whether accused intended to permanently deprive the owner of the property at the time of the taking – Section 7 of the Criminal Code - Whether co-accused aided and/or counselled the other to commit the offence – Both accused guilty. 

Cases Cited:

Papua New Guinean Cases
The State v Kissip (2020) N8184
Ikalom v The State (2019) SC1888
The State v Boria Hanaoi & Ors (2007) N4012
Paulus Pawa v. The State [1981] PNGLR 498
The State v Tom Morris [1981] PNGLR 493
State v Epei (2019) N7845
Maraga v The State (2009) SC968
James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173  
Ingian v State (2022) SC2263 
Hagena v State (2017) SC1659
Emos v State (2017) SC1658
The State –v- Nataembo Wanu [1977] PNGLR 152
The State –v- Titeva Fineko [1978] PNGLR 262
The State –v- Amoko – Amoko [1981] PNGLR 373
The State –v- Francis Laumadava [1994] PNGLR 291
Private Nebare Dege v. The State (2009) SC1308
Imiyo Wamela v The State [1982] PNGLR 269

Overseas Cases
R v Pucci [2013] QCA 390
Lodge v Lawton [1978] VR 112 
Hibbert v. McKiernan, [1948] 2 K.B. 142; [1948] 1 All E.R. 860 
R v McKiernan [2003] 2 Qd R 424
Stuart v The Queen [1974] HCA 54; (1976) 134 CLR 426
R v Oberbillig [1989] 1 Qd R 342 
R v Adams [1998] QCA 64 
Attorney-General’s Reference (No 1 of 1975) [1975] 2 All ER 684

References Cited

Sections 7, 364, 365, 372(1)(10), 528 of the Criminal Code

Counsel

Ms L Ilave, for the State 
Mr M Sumbuk, for the Accused 

DECISION ON VERDICT
14th October, 2022
1.	BERRIGAN J: The accused were jointly charged with one count of stealing two thousand sheets of corrugated zinc roofing iron to the value of K61,500, the property of Papua New Guinea Concrete Aggregates, contrary to s372(1)(10) of the Criminal Code.  The State invokes s 7(1)(c) of the Criminal Code.

2.	The State alleged that on 20 July 2019, Henry Manari, a semi-trailer driver with Highway Transport Limited, in the company of another person, drove a side lifter truck to the PNG Concrete Aggregates yard at Saraga Six Mile, Port Moresby, removed a shipping container containing 2000 sheets of corrugated zinc roofing iron worth K61,500 from the yard and took it to Dogura.  The accused and their accomplices then sold the roofing iron to various people.  The container and 612 pieces of roofing iron were seized from the property of one Rex Manga. A further 70 sheets were recovered from Saraga Settlement. 

3.	There is no dispute that Henry Manari used the Highway Transport Ltd semi-trailer to remove the container containing the 2000 sheets of roofing iron from the PNG Concrete Aggregates yard and take it to a yard in Dogura, Six Mile.  Thomas Maiai admits that he asked Henry Manari to do so.  It is their case, however, that they were just helping a third person, Gilbert Seseve, to move the container and had no intention to permanently deprive the owner of it or its contents.  

State’s Case

4.	Armon Kunuke has been the Administration Manager with PNG Concrete Aggregates, a construction supply business, for 15 years.  PNG Concrete Aggregates is located at Saraga, Six Mile, Port Moresby. He is responsible for the day to day operations of the company.  He was present at the time the iron sheets were first loaded into the container and produced an invoice establishing their value.  The client had not picked up the sheets and so they had been holding the goods in the container for almost two years. The container was kept at the back of the PNG Concrete Aggregates building. He became aware on 26 July 2019 when he walked out the back of the office that the container was no longer there.  Acting on a tip off that the truck that had taken the container belonged to Highway Transport Ltd, which operated through a related company, Total Food Network, he obtained a printout of the GPS tracking report for the truck from the manager at the Total Food Network office. This led him to and he drove out to Dogura. Information was received that stolen iron sheets were being sold.  He conducted surveillance with police, who obtained a search warrant. 612 sheets were recovered from a yard belonging to a Rex Manga, located between Dogura and the road going to Taurama. 70 or more were recovered from the nearby settlement. The container was never recovered. PNG Concrete Aggregate’s yard is private, fenced and manned by security guards. There is a procedure for the loading and offloading of materials onto containers from PNG Concrete Aggregates.  The driver must pick up the docket from the office before taking the container and going out. PNG Aggregates has no documents on record for the removal of the container.  PNG Aggregates have been unable to locate several staff since the alleged offence. It appears that they have gone on the run. 

5.	Whilst a GPS tracking report was admitted into evidence as being that obtained by Mr Kunuke and upon which he acted, an officer from Total Food Network was not called to produce it as a business record.  The State indicated that it was not the report referred to by Mr Dorega, below, who did not identify it as such in any event. Accordingly, I disregard its contents. As above, however, there is no dispute that the container was taken to Dogura.

6.	Madaha Dorega was the manager of Highway Transport Ltd, a position he held since 2010. He was based in Tabubil and was responsible for overseeing all of Highway Transport Ltd’s operations, including those in Port Moresby, which operated through its sister company, Total Food Network.  The Highway Transport Limited vehicle was kept in the Total Food Network yard at 6 Mile, which is located inside the PNG Aggregates Compound. The Total Food Network yard is next to the PNG Aggregates yard and head office.  Highway Transport Limited is in the business of carting 20 foot containers.  When a client wants a container carted, they attend to the office and if a cash customer, they pay in cash.  If they hold an account, they receive an invoice at the end of the month.  He first became aware of the alleged incident when he received an email from the Total Food Network Manager. At the direction of the Managing Director he flew to Port Moresby with Track Pro satellite records which tracked the vehicle’s movements. He oversaw the drivers in Port Moresby.  He monitored drivers through Track Pro, a tracking device, placed on the vehicle. For daily operations drivers reported to a Ms or Mrs Nima within Total Food Network in terms of documentation, and she reported to him in Tabubil. It was he who had to give approval before a driver undertook a job.  He was to be informed of any plan and had to give the okay or not.  The drivers would go to Ms Nima in Total Food Network and she would go to him, but often she was busy and the drivers called him directly.  At the time Highway Transport operated only one vehicle in Port Moresby. Other than a trainee driver, there was only one driver in Port Moresby and that driver was Henry Manari.  

7.	The investigating officer, Constable Joshua Kraip, is a police officer of 33 years standing, currently attached to the Criminal Investigation Division at Boroko Police Station. Following a complaint by PNG Concrete Aggregates he received information from Sil Kaupa Petros, a worker at PNG Concrete Aggregates, which led him to a place where the container was said to have been first taken at Dogura. It was not there and he traced it to a property belonging to Rex Manga at Dogura, where more than 600 sheets of iron were recovered under search warrant. He subsequently obtained information that led him to recover about 70 sheets from Saraga Settlement.  He arrested and charged four persons with stealing, Gilbert Seseva, Sil Kaupa Petros, both unemployed from Saraga, and the two accused currently before the court. He conducted interviews with each of Manari and Maui, which were admitted into evidence.

8.	It must be said that his evidence as to when the iron sheets was recovered could have been clearer.  The effect of his evidence is that it was before he arrested the two accused.  Their records of interview were conducted on 31 August 2019.  His written statement refers to a search warrant being executed on 10 September but he does not produce the search warrant.  

9.	The statement of police officer Stuart Robert and several photographs were admitted by consent.  Officer Robert’s statement contains several dates.  His statement is clear about those dates and the different events that occurred on those dates between Tuesday, 30 July 2019 and Thursday, 1 August 2019.  He says that he accompanied Constable Kraip on 1 August 2019 to a lot belonging to one Rex Manga along Dogura road at the junction of Taurama Rd and Maggi Highway.  The area was partly fenced and contained several canteen stores.  Inside the area 612 pieces of roofing iron were recovered, of which he took photographs.  I accept his statements about date. 

10.	Henry Manari admitted in his record of interview that he took the container out of PNG Concrete Aggregate’s yard, drove it to the road leading to the Red Rock Bar at Dogura and left it in an empty yard.  He said that Tom called him and told him that one of the containers is at PNGCGA’s yard. A second call came from Gilbert and he told him that he was headed his way. So he waited for him until Gilbert got on the truck and showed him where the container was. They lifted the container and Gilbert ordered him to drive to Dogura. He left the container in one of the empty yards on the road leading to the Red Rock Bar at Dogura. He left the container and drove out when he saw Tom and two other boys walk in. They asked him where he left the container and he drove back to Six Mile Saraga. He did not rely on any documents for authority to take out the container. He just followed instructions from Gilbert.  He loaded the container and Gilbert went to the warehouse and came back again.  

11.	Thomas Maiai said in his record of interview that Gilbert called him and asked him if he knew of any truck which could take the container so he called Henry to meet up with Gilbert and take the container from PNG Concrete Aggregates.  He knew Gilbert who works with Consort as a Transport Coordinator and he knew Henry from when he comes to pick up and drop off containers at the wharf.  Gilbert told him to take the container and just drop it at Dogura, Red Rock Bar.  He went with Johnny, his wife’s elder brother, to Dogura to confirm that they had left the container there.  After confirming he saw Gilbert, Henry and another guy whom he did not recognize in the truck so he left. Henry and Gilbert promised him K1000 but they did not give him the exact money.  He was not aware of what was in the container. He was only connecting Gilbert with Henry. 

Defence Cases

12.	Henry Manari gave evidence that he received a phone call from an unknown number on a Saturday in 2019. He was expecting clients to call so he answered it and it was Thomas Maiai telling him there was a client waiting outside the 6 Mile Saraga yard.  He did not know Thomas, had never spoken to him but saw him at the wharf and knew that Thomas had called him. Thomas must have got his number from drivers that contact him.  He finished moving containers from Total Food Network and drove out towards 6 Mile where the client was.  He did not know the client but the client called him. He was waving at him.  He went straight to the client. The client told him that there was a container for him to move from 6 Mile to Dogura. He asked the client if he had the documents. He got the documents and walked down to confirm the container number.  The client told him to drive down and load the container whilst the client went to the warehouse. He thought everything was normal. Whilst waiting for the client another boy got on. He asked them where they were going and they said they were going to Dogura Red Rock. He said he would drop them quickly. He delivered the container and drove back to Total Food Network where he parked the truck. He met the client that day. He asked the client his name and he told him his name is Gilbert and showed him the documents. He was arrested Tuesday at 4 or 5 pm, a few days later.

13.	Under cross-examination Henry said that the documents represented the details of the container, the cargo inside, its weight and all details. He did not report to anyone because it was lunch and he needed to go home to his family and Gilbert was telling him to quickly move the container: “it is okay, you have the documents”.  He thought it was alright for him to move the container without authorization, as part of his normal duty as long as he had documentation. He did not need to see proof of payment. He normally receives instructions from someone at Total Food Network to do cartage runs.  They normally do their jobs shifting containers when they finish all the other jobs, and they give him betelnut.  He drives the big truck, DAC166, as a small vehicle to use it whenever he wants. When they call him he just does their jobs. As to whether he needs authorization from Highway Transport, sometimes they email the documents to Total Food Network who provide the documents to him, or the agents call him. He did not write a docket on this occasion but he saw a docket for the run. It was normal for him to inform his supervisors or the manager of Total Food Network before or after the run. He knew there was a tracking device on the truck. He did not inform his manager at Highway Transport Limited in this case because he was in a rush and the client was pushing him to move the container quickly.  He did not know the contents were stolen. He knew that what he was doing was wrong and that is why he did not inform Highway Transport Limited. 
     
14.	Thomas Maiai gave evidence that he knew Henry Manari through his job at the wharf. He used to assist him unload containers and that is where he got his number. He was at home on 23 July 2019 when he received a phone call from Gilbert Seseve, a former workmate at the wharf. Gilbert asked if he knew a tracking company to assist him transport the container. He then called Henry and told him to assist with transport. He did not know what happened from there. 

15.	Under cross-examination he said that he did not know who the container belonged to. It was a weekend so he was not clear who the client was but because of Gilbert’s request he called Henry. Normally when they receive such calls they don’t know who the clients are and they just call transport people and they know the clients. They do have to have authorization before cargo is moved inside the wharf area but Gilbert rang on the weekend to see if he knew of anyone who could assist with transport.  Gilbert was no longer working with them so if he called a transport company directly they would not assist him.  Gilbert told him a transport company would not assist him but he did not ask why. So he called Henry.  He knew Henry very well, like a brother but they were not related. He did not see the container that day and did not know what was inside it. He received a cartage fee for assisting Henry and Gilbert. Gilbert told him that if he helped with moving the container he would give them something for betelnut and smoke in the PNG way as a return for a favor. He did not know that the transaction was illegal. 

16.	It was only in response to the Court’s question in relation to his record of interview that he recalled saying that he went out to Dogura to see the container. He went to Dogura but did not see the container. He went to confirm that “transport went to see Henry”, to check Henry to see if Gilbert went and met him. 

The offence of Stealing
17.	The following principles apply: The State v Kissip (2020) N8184 at [83] to [91].

18.	To establish the offence of stealing the prosecution must prove beyond reasonable doubt the following elements:

a.	the thing the subject of the charge is a thing capable of being stolen (as defined in s. 364 of the Criminal Code), that is:
i.	an inanimate thing that:
(a)	is the property of any person; and 
(b)	moveable; 
b.	and that the accused:
i.	fraudulently;
ii.	takes the thing, or converts it to his own use or the use of any other person;  and
iii.	actually moves or otherwise deals with the thing by some physical act.

19.	“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: Ikalom v The State (2019) SC1888; The State v Boria Hanaoi & Ors (2007) N4012. 

20.	Whether or not there is an intention to permanently deprive the owner of the property taken is a question of fact and may be inferred from the circumstances in which the property was taken, and from the conduct of the accused before, at the time of, or after the taking: Ikalom (supra).  

21.	All that is required to establish an intention to permanently deprive is an intention to retain the property indefinitely: Ikalom (supra) applying The State v Boria Hanaio & Ors (2007) N4012. When an offence of stealing is complete is a question of fact. 

Things capable of being stolen

22.	It is not in dispute that PNG Concrete Aggregates operated a construction supply business operating out of a yard at Saraga Six Mile, Port Moresby.  PNG Concrete Aggregates Administration Manager, Armon Kunuke, gave evidence and produced documentation, Exhibit P5, an invoice, establishing that 2000 iron sheets were kept in a container held in the PNG Concrete Aggregates yard awaiting collection by a client.  The client had purchased, or at least made part payment for the goods but with the sum of K25,159 still outstanding had yet to pick them up and the container had been in the yard for almost two years awaiting collection.  The total value of the iron sheets was K61,500.

23.	There is no dispute and I am satisfied beyond reasonable doubt that the sheets of iron were things capable of being stolen. Furthermore, that Seaside Developments Limited trading as PNG Concrete Aggregates was the owner, that is it had possession or control of the iron sheets for the purposes of s 365(1) of the Criminal Code.  

24.	The description of the owner in the indictment was incomplete referring only to the trading name. It is unfortunate that greater care was not taken by the prosecution in the drafting of the indictment. Given, however, that the property of the charge was identifiable and that ownership of the property was not relevant nothing turns on the failure. The matter was raised by the Court at an early stage, the accuseds’ counsel took no issue with it, and neither of the accused suffered any prejudice as a result.  Their defences were not that the property belonged to another person, or did not belong to anyone and was not capable of being stolen, but that they did not take the property fraudulently. 

25.	Here I adopt the reasoning of the Supreme Court of Queensland in R v Pucci [2013] QCA 390 at [29] to [43], and the English and Victoria decisions referred to therein, which whilst not binding are clearly very persuasive.  At [29] to [31] the Court said (emphasis mine): 
“The respondent relied on Lodge v Lawton [1978] VR 112 in which the Court rejected an argument that the lack of proof of the incorporation of the complainant company and its ownership of cheques and money was a “fatal defect” given that the property the subject of the charge was identifiable and that the ownership of the property was not relevant.  In referring to the position in Great Britain, the Court said:[5]
“In Hibbert v. McKiernan, [1948] 2 K.B. 142; [1948] 1 All E.R. 860 in which the defendant was charged before justices with stealing eight golf balls which had been abandoned by their former owners and which were alleged in the information to be the property of the secretary and members of the golf club, a Divisional Court held that the defendant was rightly convicted notwithstanding that the question of the true ownership of the golf balls was not resolved. Lord Goddard, C.J. said (at K.B. p. 151): ‘… at the present day allegations concerning the ownership of stolen property are, except in a few exceptional cases, treated as immaterial.’
Humphreys, J. said (at K.B. p. 152): ‘In such a case as the present it is not necessary to allege or prove who is in law the owner of the goods, indeed it is not essential to name any person as the owner of the goods in an indictment for larceny though it is the practice to do so.’ and he referred to the English rule which is in terms practically identical with Rule 6(1) set out above.”
Their Honours noted that Rule 6(1) of Schedule 6 to the Crimes Act 1958 (Vic) provided:[6]
“6. (1) The description of property in a count in a presentment shall be in ordinary language and such as to indicate with reasonable clearness the property referred to and if the property is so described it shall not be necessary (except when required for the purpose of describing an offence depending on any special ownership of property or special value of property) to name the person to whom the property belongs or the value of the property.”
After referring to the types of cases in which identity of the ownership of the property in question may be important, the Court said:[7]
“An accused person is entitled to have reasonable particulars of what is alleged against him and nothing which we have said is to be taken as intending to discourage ‘the present useful and most desirable (and sometimes essential) practice of including’ in the presentment or information the name of the owner of the property alleged to have been stolen (cf. R. v. Gal, supra, at (W.L.R.) p. 845).  The object of particulars is to achieve fairness, not to provide an escape from a charge properly brought.”
26.	The Court held that s 421 of the Criminal Code on which our s 372 is modelled did not require the identification of the owner of the subject property.  

27.	Stealing is defined in s 372 of the Code as follows: 

DEFINITION OF STEALING.

(1) In this section–

“owner”, in relation to a thing, means–
(a) the owner or a part-owner of the thing; or
(b) any person having possession or control of, or a special property in, the thing;

“special property” includes–
(a) any charge or lien on the thing in question; and
(b) any right arising from or dependent on holding possession of the thing in question, whether by the person entitled to the right or by some other person for his benefit.

(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 …

28.	Section 364 defines things capable of being stolen (for our purposes):

THINGS CAPABLE OF BEING STOLEN.

(1) The following things are capable of being stolen–
(a) all inanimate things that–
(i) are the property of any person; and
(ii) are movable; and …

29.	Sections 364 and 372 of the Criminal Code, while requiring proof that the property the subject of a charge was owned at the time it was taken, do not require proof of who owned it:  adopting R v McKiernan [2003] 2 Qd R 424 at 426, per Davies JA.

30.	Section 528(6) of the Code provides that “It is sufficient to describe an offence in the words of this Code or the other written law defining it.”  

31.	In the circumstances it was not essential to identify the owner of the property in the indictment and any absence of proof in that regard was not fatal to the charge.

32.	Here I clarify my comments in State v Kissip (2020) N8184 at [86].  That is not to say, of course, that the prosecution should not provide the particulars of ownership where available, and take care in describing them correctly in the indictment. For obvious reasons a trading name is not a separate legal entity. 

33.	For ease of reference, a reference to PNG Concrete Aggregates is a reference to Seasides Development Ltd trading as PNG Concrete Aggregates. 

Taken and moved by some physical act

34.	There is no dispute and I am satisfied beyond reasonable doubt that the iron sheets were taken and moved by Henry Manari when he took the container containing them from the PNG Concrete Aggregates yard at 6 Mile.

Fraudulently

35.	The two main issues in this case are firstly, whether at the time that Henry Manari took the container from the PNG Concrete Aggregates yard he intended to permanently deprive the owner of it and its contents, and secondly, if so, whether Thomas Maiai aided, counseled or procured him to do so, knowing that Henry intended to permanently deprive the owner of it and its contents. 

36.	The case against each of the accused is partly circumstantial. It follows that they cannot be found guilty unless the prosecution has excluded all rational hypotheses consistent with innocence; that is the guilt of each of the accused must not only be a rational inference, but the only rational inference in all of the circumstances: Paulus Pawa v. The State [1981] PNGLR 498 (approving The State v Tom Morris [1981] PNGLR 493, adopting Barca v The Queen (1975) 50 ALJR 108 quoting Peacock v the King (1911) 13 CLR 619.  See more recently Maladina v The State (2016) SC1495. Evidence given by an accused may narrow the range of alternative hypothesis reasonably available upon the evidence: State v Epei (2019) N7845 at [54], [55], [62] and [63]. 

37.	The State witnesses impressed me as honest and credible.  For the most part their evidence was not in dispute. I make this finding having regard to the evidence in the case as a whole, together with the demeanour of the witness whilst giving evidence, and bearing in mind that I may accept or reject any part of a witness’ evidence:  Maraga v The State (2009) SC968; James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173.  

38.	Having heard and observed the accused I am unable to accept either of them as a witness of truth. 

39.	In making this assessment and the following findings, I have borne in mind that the records of interview of each accused are not admissible against the other except to the extent that they are adopted by the maker during oral testimony: Ingian v State (2022) SC2263 at [16] and [30].  

40.	Furthermore, I remind myself that caution should be exercised before relying on the oral testimony of a co-accused:  Hagena v State (2017) SC1659; Emos v State (2017) SC1658; The State –v- Nataembo Wanu [1977] PNGLR 152, The State –v- Titeva Fineko [1978] PNGLR 262, The State –v- Amoko – Amoko [1981] PNGLR 373; The State –v- Francis Laumadava [1994] PNGLR 291; Private Nebare Dege v. The State (2009) SC1308.

41.	Henry Manari’s evidence was unclear and contradictory. His statement that he did not know Thomas Maiai and yet knew it was Thomas calling him makes no sense.  I reject his evidence that he received documentation to move the container, or that he checked the documentation against the container, or that he did not think he needed authorization because he had documentation.  Documentation was never produced to his employer or to PNG Concrete Aggregates.  There was never any documentation to be had because its movement was not authorized by PNG Concrete Aggregates or by Tag Energy Ltd, who according to the PNG Concrete Aggregates invoice, had only made part payment for the roofing iron it contained.  Moreover, it contradicts the admission in his record of interview that he never received any documents or authority to take the container out.  His testimony that he did not seek authorization because it was lunch time and he needed to go home to his family was unconvincing.  As was his evidence that he did not inform his bosses, or write a docket because Gilbert was pushing him to move the container quickly.  His evidence that he was simply helping a “client” is contradicted by his admission in evidence that he knew that what he was doing was wrong. There was no client and the removal of the container was not authorized.  His oral evidence is a recent invention.  

42.	As above, Thomas is a co-accused and I exercise caution in relation to his evidence.  Nevertheless, I accept the admission made during oral evidence that he and Henry knew one another very well, like brothers. It makes much more sense than Henry’s evidence that he did not know Thomas and had never spoken to him, yet somehow knew that Thomas was calling him. 

43.	Otherwise, Thomas was a poor witness. In evidence he said that he did not know what happened after he put Gilbert in touch with Henry, and further that he did not see the container that day. Both statements were clearly contradicted by the admissions in his record of interview that he went to Dogura to check that the container had been delivered and that he confirmed that it had been delivered.  His oral evidence is also a recent invention.

44.	I remind myself, however, that I take account of the untruthfulness of each accused in relation to their credibility and the reliability of their evidence only and for no other purpose.  Each accused gave although he was not obliged to do so. By entering the witness box and giving evidence neither took upon themself any obligation to prove anything in this trial.  The question remains whether the State has proved its case beyond reasonable doubt. 

45.	The evidence establishes the following facts and circumstances.  Henry Manari was employed as a semi-trailer driver with Highway Transport Ltd in Port Moresby at the relevant time.  Thomas Maiai was a wharf clerk at Motuke United Ltd. They were close like brothers. Thomas had worked with Gilbert at the wharf for three to four years. At the time Gilbert was unemployed and lived in Saraga. Highway Transport Ltd operates in Port Moresby through its sister company, Total Food Network. The Total Food Network yard is located inside the PNG Concrete Aggregates Compound at Saraga Six Mile.  Its yard, where the Highway Transport Ltd vehicle is kept, is next to the PNG Concrete Aggregates yard and head office.  On Saturday, 20 July 2019, Henry Manari used the Highway Transport Ltd vehicle to remove the container from the back of the PNG Concrete Aggregates’ office. The container had been kept at the back of PNG Concrete Aggregates’ office for almost two years.  The container contained 2000 sheets of roofing iron valued at more than K60,000.  Henry had been a driver for Highway Transport Ltd for about three years. Other than a trainee driver, he was the only driver in Port Moresby. As such he well knew the procedures in place for the cartage of containers.  Henry did not follow the procedure in place at either Highway Transport Ltd or PNG Concrete Aggregates before removing the container.  He did not obtain authorization from anyone at Highway Transport  Ltd or Total Food Network to use the vehicle to take the container.  He did not obtain documentation from PNG Concrete Aggregates before taking the container from its yard.  No documentation for the removal was ever lodged with PNG Concrete Aggregates.  The movement of the container or its contents was not authorized by its owner PNG Concrete Aggregates. Henry failed to report the matter to his employer even after the container’s removal and prior to his arrest, which did not take place until several days later. The container was taken from PNG Concrete Aggregates on a Saturday, a day when its removal was less likely to be immediately detected by management. Henry was aware that the truck used to move the container was fitted with a tracking device. The container was not transported to a business or warehouse but to a vacant lot in Dogura. The container was moved from the vacant lot where it was first delivered by him at Dogura and never recovered. The removal of the container from PNG Concrete Aggregates was not discovered until 6 days later when PNG Concrete Aggregates’ Manager, Armon Kunuke, walked out the back of the office building to find it missing.  A number of PNG Concrete Aggregates employees failed to return to work following the incident and appear to have gone on the run.  

46.	In all the circumstances I am satisfied beyond reasonable doubt that at the time Henry Manari took the container from the PNG Concrete Aggregates yard he intended to permanently deprive the owner of the container and its contents.   Henry admitted that he knew that what he was doing was wrong.  The totality of the evidence excludes any rational possibility, however, that he thought it was wrong only because he was using Highway Transport Ltds’s vehicle without permission to do Gilbert a favour.  He knew that Gilbert was not the owner and was not acting for the owner.  He deliberately took the container with the intention of permanently depriving PNG Concrete Aggregates of it and its contents. 

47.	Whilst not necessary to my finding, my view is strengthened by the fact that 612 sheets of roofing iron were subsequently discovered under search warrant at another lot in Dogura, Six Mile belonging to Rex Manga. The lot contained a number of canteen stores.  A further 70 plus sheets were found at Saraga Setttlement, Six Mile.  I find that these were found on or about 1 August 2019.  Given the proximity in space and time, and the fact that there was no challenge to Mr Kunuke’s evidence that they were the sheets of iron kept by PNG Concrete Aggregates, I find that the sheets recovered were those previously held in the container. 

48.	In summary, it was Henry who did the acts constituting the offence for the purposes of s 7(1)(a) of the Criminal Code, that is taking and moving the property with the intention of permanently depriving the owner of it.

49.	It is now necessary to consider whether Thomas Maiai is guilty of stealing pursuant to s 7(1)(c) of the Criminal Code.  

50.	To establish liability pursuant to s 7(1)(c) of the Criminal Code the State must establish beyond reasonable doubt that: a) the offence was committed; b) the accused knew the essential facts constituting the offence, including where relevant the state of mind of the person who committed the offence; and c) the accused intentionally aided (assisted or encouraged) that person to commit the offence.

51.	I am satisfied beyond reasonable doubt that: a) the offence was committed by Henry Manari; b) that Thomas knew the essential facts constituting the offence, including that Henry intended to permanently deprive the owner of the container and its contents; and c), that he intentionally aided, that is intentionally assisted and encouraged Henry to commit the offence.  They planned the offence together and Thomas arranged for Gilbert to meet Henry and direct him to the lot at Dogura. 

52.	For similar reasons I am also satisfied beyond reasonable doubt that Thomas counselled Henry to commit the offence for the purposes of s 7(1)(d) of the Criminal Code. The term “counsel” is not defined in either the Criminal Code or the Interpretation Act. The plain and ordinary meaning might be found in the context of the section, that is “urged” or “advised” or “solicited”: as stated by Gibbs J in Stuart v The Queen [1974] HCA 54; (1976) 134 CLR 426; see also R v Oberbillig [1989] 1 Qd R 342 considering the equivalent provision in the Queensland Criminal Code. 

53.	To “procure” is somewhat different. It means “to obtain”, “to bring about”, according to the Oxford Learner’s Dictionary. In considering the equivalent of this provision in R v Adams [1998] QCA 64 the Queensland Court of Appeal said that procuring involves more than mere encouragement, and means “successful persuasion” to do something. There must be a causal link between the procuring and the commission of the offence: see Attorney-General’s Reference (No 1 of 1975) [1975] 2 All ER 684.  See Imiyo Wamela v The State [1982] PNGLR 269 for a detailed consideration of counselling and procuring. See also State v Belami & Haro (2020) N8613 at [132] to [133].

54.	In this case Thomas counselled Henry, that is urged him to commit the offence for the purpose of s 7(1)(d) in the same way that he assisted and encouraged him to use the vehicle in his possession to steal the container and its contents from PNG Concrete Aggregates.       

55.	The evidence excludes any rational possibility that Thomas introduced Gilbert to Henry for the purpose of helping Gilbert find transportation.  What happened that day demonstrates planning. The container was moved on a Saturday and taken to an agreed location, a vacant lot, to which Thomas went to confirm delivery, at exactly the time and place the container was being delivered.  The statement in his record of interview that he was not aware of the items in the container or its whereabouts but was only connecting Gilbert with Henry because he knew there was a container was a poor attempt to distance himself from what happened. It is fanciful to suggest that the driver he put Gilbert in touch with just so happened to work in the very same compound, or the very next yard, where the container had been kept for almost two years.

56.	It matters not whether the two accused knew the contents of the container.  In the same way that a person who steals a handbag or a briefcase may not know what the bag or briefcase contains, it would matter not to the criminal responsibility of the accused here whether they knew what the container contained, although it is a factor relevant to sentence.  

57.	The totality of the evidence, the relationships amongst the various players, the history and location of the goods, and the events as they occurred exclude any rational inference, however, that Henry and Thomas did not know the contents of the container.  That was why they took it. Henry and Thomas agreed with others including Gilbert to steal the roofing iron with a view to selling it.  Henry and others at the yard knew about the iron.  His close friend Thomas knew Gilbert and they arranged for it to be delivered to a vacant lot in Dogura so that it could be taken from there to be sold. I accept, however, that they may not have appreciated the exact value of the iron stolen.

58.	In conclusion, the accused, Henry Manari, and Thomas Maiai are convicted of the count of stealing contained in the indictment.  

Verdicts accordingly.

_______________________________________________________________
Public Prosecutor: Lawyer for the State	
Public Solicitor Lawyer for the Accused