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State v Kawa [2025] PGNC 79; N11209 (27 March 2025)

N11209

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR(FC) 101 OF 2024

THE STATE

AND

BOBBY KAWA

WAIGANI: WAWUN-KUVI J
18 OCTOBER 2024; 27 MARCH 2025

CRIMINAL PRACTICE AND PROCEDURE –trial-unlawful use of motor vehicle-claim of right- Whether the accused did not honestly believe he was entitled to the use of the motor vehicle because he bought it?

The accused, a police officer, is charged with unlawfully using a motor vehicle, a blue Toyota Rav 4, without the consent of the owner James Cameron Peni. James Cameron Peni’s vehicle was stolen on 22 April 2023. On 22 April 2023, the accused received the vehicle. He kept the vehicle at his home. About a week later, Mr Peni saw the accused driving it. The accused claimed that he bought the vehicle.

Held

1. The issue before the Court is whether the accused honestly believe he was entitled to the use of the motor vehicle because he bought it.
2. Given the accused's profession as a police officer, his training, and the specific circumstances surrounding the case—being the accused acquired the motor vehicle on the very day it was stolen from the complainant, the complainant's prompt notification to police on the same day of the theft, the narrow time frame of a week between the theft and its discovery, the evident damage to the vehicle, the absence of proper vehicle documentation, and the accused knowledge that the registration sticker did not correspond with the license plate—it becomes unequivocally clear that the accused knew of the motor vehicle's stolen status. Additionally, other matters that point to the accused knowledge of the vehicle's stolen status were the questionable background of the individual from whom he received the motor vehicle, along with the fact that he kept the motor vehicle at his home and only drove it on the day it was sighted. To some extent, he expressed knowledge when he said he knew something was wrong with the vehicle when the plates did not correspond with the registration sticker.
3. Considering the accused knowledge of the vehicle's stolen status while he possessed and drove it, it is concluded that the accused had a clear intent to deprive the owner of his motor vehicle permanently.
4. Verdict of guilty returned.
   

Cases cited
Kaya & Kaman v State [2020] SC2026
Wartoto v The State [2019] SC1834
Ikalom & Anor v The State (2019) SC1888
Francis Potape v The State (2015) SC1613
Paulus Pawa v The State [1981] PNGLR 498
The State v Tom Morris [1981] PNGLR 493
Magr v R [1969-70] PNGLR 165
State v Kaiwi (No 4) [2023] PGNC 346; N10431
State v Felix Luke Simon (2020) N8183
State v Emma Ombu Karakabo (2012) N4897
State v Bruno Tanfa Chilong (2009) N3578
The State v Henry Gorea [1996] PNGLR 141
State v Kuanande [1994] PNGLR 512
John Jaminan v The State (No 2) [1983] PNGLR 318
Sebulon Wat v Peter Kari [1975] PNGLR 325
R v Hobart Magalu [1974] PNGLR 188
Tiden v Tokavanamur-Topaparik [1967-68] PNGLR 231

Counsel
C Langtry & S Kukuk for the State
D Kayok for the accused

DECISION ON VERDICT

1. WAWUN-KUVI, J: The accused is charged with unlawfully using a motor vehicle, described as a blue Toyota RAV4 bearing registration BGE880, without the consent of James Cameron Peni, the owner. The charge is under s 383 of the Criminal Code.
2. The State alleges that the accused received the motor vehicle from the person who stole it and began to drive it. It was at one of these instances of driving when James Cameron Peni sighted him. Police subsequently arrested him and charged him.

Burden of Proof

3. I am reminded that the State bears the onus of proof and must prove its case beyond a reasonable doubt. It also bears the burden of disproving all defences properly raised by the evidence.

The Elements

4. To prove a charge of unlawful use or possession of a motor vehicle, the State must prove that:
   1. the accused used or had the vehicle in his possession;
   2. the owner or the person in lawful possession did not consent to the accused’s possession of the vehicle; and
   3. the accused had the vehicle in their possession with the intent to deprive the owner or person in lawful possession thereof of the use of the vehicle either temporarily or permanently.

Evidence

5. The State called the complainant James Cameron Peni and tendered documents S1 to S9.
   
6. The defence called only the accused.

Undisputed Facts

7. On 22 April 2023, the motor vehicle was stolen from James Cameron Peni.
   
8. About a week later, James Cameron Peni saw the accused driving his vehicle. The accused was in police uniform and was with his wife. When confronted by James Cameron Peni, the accused responded that he had bought the vehicle. All parties then proceeded to Boroko Police Station. The police investigators asked each party to produce their respective vehicle papers. James Cameron Peni went to MVIL and obtained a copy of his vehicle registration, which confirmed his ownership. The accused did not have any vehicle papers. He said the owner would provide the papers later. He maintained that he bought the vehicle.
   
9. The damage to the windscreen and front headlight, that the licence plates did not correspond to the registration sticker and that the sticker was affixed to the vehicle are also not in dispute.

Disputed Facts

10. The facts that are in dispute are that the accused bought the vehicle and that he did not know that it was stolen from its owner.

Issue

11. The accused's possession and driving of the motor vehicle are not in dispute. The complainant’s evidence is unchallenged.
    
12. The essence of the accused's defence was that he believed he had a right to use the motor vehicle because he owned it. Therefore, the question arises as to whether the State has proven that the accused did not hold such a belief. Both counsels did not focus on the real issue, which was the accused's honest belief and whether the State had excluded it.
    
13. I must be satisfied beyond a reasonable doubt that the accused did not honestly believe he was entitled to use the motor vehicle because he bought it.

Honest Claim of Right

14. An honest claim of right is an excusatory defence under s 23(2) of the Criminal Code, which removes criminal responsibility for an act involving property carried out in the exercise of a genuine belief in one’s entitlement to that property, without any intention to defraud. The defence is based on the notion that the accused genuinely believed that he had a legal right to property or money in question: see and Kaya & Kaman v State [2020] SC2026 following Wartoto v The State [2019] SC1834.
    
15. The Supreme Court in Kaya & Kaman [2020] adopting Wartoto v The State [2019] established the following principles:
    1. The evidence must be sufficient to support an honest claim of right. Once established, the legal burden or the onus is on the prosecution to negate the claim: Magr v R [1969-70] PNGLR 165 and Francis Potape v The State (2015) SC1613.
    2. Given that it is an excusatory defence, the prosecution must disprove or exclude it beyond any reasonable doubt: John Jaminan v The State (No 2) [1983] PNGLR 318.
    3. The Court must make findings of fact on the evidence and decide whether it accepts that the accused possessed an honest belief.
    4. Depending on the assessment, the conclusion could be that the evidence was either convincing or unconvincing, and the proponent could not refute it. The mere assertion by the accused of an honest belief is not sufficient. It requires further scrutiny. Such evidence may be unconvincing, as demonstrated in cases such as R v Hobart Magalu [1974] PNGLR 188 and The State v Henry Gorea [1996] PNGLR 141. However, in cases like State v Bruno Tanfa Chilong (2009) N3578 and State v Emma Ombu Karakabo (2012) N4897, the prosecution could not disprove the compelling evidence of an honest claim of right.
    5. Once the Court accepts that the accused acted under an honest claim to the property without an intent to defraud, he is entitled to an acquittal as the defence is a complete defence.
16. Additionally:
    1. The claim must be honest. While the belief does not need to be reasonable, the court must consider whether the circumstances make the belief genuine. An unreasonable claim is less likely to be believed as being genuine or honest: see Tiden v Tokavanamur-Topaparik [1967-1968] PNGLR 231, Sebulon Wat v Peter Kari [1975] PNGLR 325 and State v Felix Luke Simon (2020) N8183.
    2. The claim must be for a legal entitlement, not a moral one: see Ikalom & Anor v The State (2019) SC1888 adopting MacLeod v R [2003] HCA 24; (2003) 214 CLR 230 and State v Felix Luke Simon (2020) N8183 applying R v Pollard [1962] QWN 13, 29; R v Bernhard [1938] 2 KB 264, 270; and Harris v Harrison (1963) Crim LR 497.

Findings of Fact

17. The evidence provided by the complainant is straightforward regarding the theft of his motor vehicle and the events leading to its recovery.
    
18. The accused denies that he knew that the motor vehicle was stolen.
    
19. The accused state of mind is a matter peculiar to him. To understand his mind requires an assessment of the surrounding circumstances: State v Kuanande [1994] PNGLR 512.
    
20. The motor vehicle was stolen on 22 April 2023. Since there was no challenge, I accept that the complainant placed a report to police immediately following the theft and that there was a police broadcast.
    
21. According to the accused he received the vehicle on 22 April 2023. He claims that he was sold the motor vehicle by a mobile phone street seller.
    
22. From my observations of the accused, he was not a witness of truth. The explanations offered by him regarding his possession of the motor vehicle lack credibility. The tone of his voice and delivery of his words showed that he was rehearsing a fabricated story rather than providing a genuine account of events. The pace at which he spoke and the significant pauses when asked simple questions further indicated that his evidence was not genuine recollection. Several factors in his evidence support my assessment:
    1. During the examination-in-chief, he stated that he and his wife were out shopping when they encountered Ape Tony. He told them that he was selling a vehicle. His wife handed over the K5000, and they took possession. However, during cross-examination, the narrative changed; he asserted that they encountered him on the 22nd and received the vehicle on the 24th. When pressed by the prosecutor about what day it was, rather than saying he could not recall or saying something to the effect that he recalled it because of something that happened, he just paused and did not explain.
    2. He is a police constable. He did not clarify how he and his wife came to have K5000 cash on them. I raise this aspect of his evidence not to place the legal burden on him but to show its effects on his credibility.
    3. He maintained that he did not inspect the vehicle when they purchased it. It is illogical that the accused, a police officer, would hand over K5000 to a street seller without physical inspection and testing especially when the vehicle displayed signs of damage. It would be conceivable for an unsophisticated villager to hand over such an amount without due diligence regarding ownership, test-driving, and physical inspection. Here, however, is a police officer attached to sector patrol, whose duty no doubt involves patrolling the streets and monitoring for criminal and suspicious activities, including stolen motor vehicles. The cracked windscreen, headlights, and broken quarter glass would have immediately drawn suspicion.
    4. The registration and safety stickers are significant documents affixed to a vehicle to give it authority to be on the road. It is illogical that the accused, a police officer, would purchase a motor vehicle without first checking the registration and safety sticker.
    5. In examination-in-chief when responding to his awareness of the broadcast concerning the stolen motor vehicle, he hesitated before claiming ignorance. There was no dispute that the complainant immediately reported the theft for police to put out a broadcast. It is illogical that he would be oblivious or unaware of the broadcast through police channels because he is attached with sector patrol and by his own account, he received the vehicle on the same day it was stolen and reported stolen. And significantly, he was working the entire 7 or so days the vehicle missing.
    6. He contradicted himself when in his examination-in-chief he asserted that the vehicle was defective and had experienced engine failures multiple times over the short distance from Stop and Shop North Waigani to Morata Police Barracks. Yet, despite this alleged defect, he claims in cross-examination that upon noticing a discrepancy between the plates and registration, he drove the very same vehicle from Morata to Bomana picked up his wife and headed for Boroko.
    7. When he checked and saw that the vehicle plates did not correspond to the sticker according to him some days later, instead of calling one of his sector patrol colleagues to run a check or accompany him in finding Ape Tony, he drove the vehicle to Bomana to pick up his wife. His explanation that he went to pick up his wife and then proceeded to Boroko to check the status of the vehicle is illogical.
    8. He stated that after being questioned by investigators, he went with his unit, lured Ape Tony at Gordons, and successfully apprehended them. I find that his behaviour was more an act of self-preservation than an act of innocence, as it would have made more sense if he had contacted his police unit upon noticing that the plates did not match the registration sticker, pursued his money, and simultaneously apprehended and handed Ape Tony over to investigators.
    9. I find it too much of a coincidence that on the same day that he decided to drive the vehicle, that that was the day when the motor vehicle was sighted. I find his actions of keeping the motor vehicle in his home for those number of days were not due to a mechanical defect, since he was able to drive from his home from Morato to Bomana and back, but rather because he was concealing it.
    10. Finally, he said that he was not working that day because he stayed home to check the vehicle. He provided no explanation in cross-examination for why he was in his police uniform.
        
23. Given the accused's profession as a police officer, his training, and the specific circumstances surrounding the case—being the accused acquired the motor vehicle on the very day it was stolen from the complainant, the complainant's prompt notification to police on the same day of the theft, the narrow time frame of a week between the theft and its discovery, the evident damage to the vehicle, the absence of proper vehicle documentation, and the accused knowledge that the registration sticker did not correspond with the license plate—it becomes unequivocally clear that the accused knew of the motor vehicle's stolen status. Additionally, other matters that point to the accused knowledge of the vehicle's stolen status were the questionable background of the individual from whom he received the motor vehicle, along with the fact that he kept the motor vehicle at his home and only drove it on the day it was sighted. To some extent, he concedes to it in cross-examination when he says he knew something was wrong with the vehicle when the plates did not correspond with the registration sticker.
    
24. I find and so conclude that the accused knew that the vehicle was stolen.

Consideration

25. The State’s case against the accused is circumstantial. As I said in State v Kaiwi (No 4) [2023] PGNC 346; N10431, “Circumstantial evidence is evidence of circumstances that can be relied on to point to the existence of a fact rather than directly prove it.”
    
26. I remind myself that a verdict of guilty can only be returned where the inference of guilt is not only reasonable, but it is the only reasonable inference :see Paulus Pawa v The State [1981] PNGLR 498 at 501 and The State v Tom Morris [1981] PNGLR 493 at 495.
    
27. Since there is no dispute that the accused possessed the vehicle for the 6 or so days that it was missing and that he drove the vehicle at least on the day it was stolen and, on the day, it was sighted, the only element requiring proof is whether he had done so with an intent to permanently deprive the owner.
28. This is a matter that goes to the mind of the accused. To understand his mind, the surrounding circumstances before, during and after the events of the theft must be examined: see The State v Kuanande [1994] (supra).
    
29. I have great difficulty accepting that the accused did not possess the intent to deprive the owner given my findings on fact. He knew that the vehicle was stolen. It was illogical that he was driving the vehicle to Boroko Police Station to enquire on its status when he could have simply called his unit or any other police officer to the status or simply called his unit to pick up the alleged salesman who was known to him.
    
30. Consequently, I reject his claim that he bought the vehicle and therefore was entitled to drive it. Even, if he bought the vehicle, it was bought with the knowledge that the vehicle was stolen, reaffirming the position that he possessed the intent to deprive the owner permanently of the motor vehicle.
31. I am satisfied that the State has discharged it burden and return a verdict of guilty.
    

Orders

32. It is ordered that:
    1. The accused, having been charged with one count of unlawful use of motor vehicle contrary to section 383 of the Criminal Code is found guilty.
    2. The Court requests a pre-sentence report to be prepared and filed by the Probation Service by 2 April 2025 for the purposes of sentencing the Offender.
    3. The State shall also file and serve a Victim Impact Statement by 2 April 2025.
    4. Bail is granted pursuant to section 10 of the Bail Act on the same conditions as previously granted.

Lawyer for the State: The Public Prosecutor
Lawyer for the accused: The Public Solicitor