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State v Gwingin [2025] PGNC 80; N11210 (28 March 2025)

N11210

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
CR(FC) 210 OF 2024

THE STATE

AND

SAMUEL GWINGIN

WAIGANI: WAWUN-KUVI J
17 OCTOBER 2014; 28 MARCH 2025

CRIMINAL PRACTICE AND PROCEDURE –trial-abuse of office- Whether the accused conduct required criminal sanctions?

Facts

The accused is a police officer. He retrieved a stolen pistol and returned it to the licenced holder. He then requested and was given the pistol for further enquiries. The pistol was never returned to the complainant.

Held

1. The accused version recorded in his Record of Interview and in examination in chief was that he gave the pistol to a mutal friend to pass it to the complainant.
2. The State did not seek to clarify the defence with the complainant and did not cross examine the accused indicating acquiescence that the pistol was passed to a mutual friend to return to the complainant.
3. The accused may have committed a disciplinary offence under the Police Act, but the State has not proved that his conduct requires criminal sanctions.
4. Verdict of Not Guilty returned.
   

Counsel
C Langtry & B Kembu for the State
D Kayok for the accused

DECISION ON VERDICT

1. WAWUN-KUVI, J: The accused is charged that he on 25 November 2019 at 5 Mile, National Capital District being employed in the Public Service as a police officer did in the abuse of the authority of his office, take a firearm to wit a Glock 17 pistol black in colour bearing serial number GFE587 from one Robert Kimai and never returned it, prejudicial to the rights of the said Robert Kimai, contrary to section 92(1) of the Criminal Code.
   
2. The allegations are that Robert Kimai is the lawful owner of the firearm. The accused is a Detective attached with Criminal Investigation Division Armed Robbery squad. The accused confiscated the pistol from an Asian Businessman and returned it to the complainant. On 25 November 2021, the accused contacted the complainant and informed him to surrender the pistol. The accused informed him that he would give an indemnity receipt and return the pistol later. The pistol was not returned despite numerous enquiries. It is the State’s allegation that when the accused as a police officer took the pistol and never returned it, his actions contravene section 92(1) of the Criminal Code.

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 Abuse Office, the State must prove that the accused:
   1. while employed in the Public Service,
   2. abused the authority of his office
   3. did or directed to be done any arbitrary act
   4. prejudicial to the rights of another.
   5. the conduct must be of a nature meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.
5. Dishonesty is not an element of the offence: see Luma v State [2022] PGSC 58; SC2249, Potape v State (2015) SC1613, State v Luma [2021] PGNC 31; N8798 and State v O'Neill [2021] PGNC 373; N9213 on the elements of Abuse of Office.

Evidence

6. The State called the complainant Robert Kimai and tendered the Record of Interview marked as SI and the firearm licence of Robert Kimai marked as S2.
   
7. The defence called only the accused.

Undisputed Facts

8. The pistol bearing serial number GFE587 is owned by the National Parliament. The complainant is employed by the National Parliament and has a permit to carry the pistol. The accused returned the firearm. He later requested from the complainant and was given the pistol. The pistol was not returned.

Issue

9. All facts are not in dispute.
   
10. The essence of the accused's defence was that he had returned the firearm through a mutual friend. Therefore, the question arises as to whether the State has proven that the accused conduct was one that requires criminal sanctions?

Consideration

11. In the Record of the Interview and the examination in chief, the accused states that he and the complainant know each other as they are schoolmates. Both parties are familiar with Gibert Guari. In response to question 20, the accused provided the following answer:
    

“Yes, as brothers I knew Robert Kimai and Robert Kimai knew Gibert Guari and we all knew it other for that purpose I gave the firearm to Gibert Guari so that Robert Kimai could pick it up from him but unfortunately it did work out that way.”

12. The State did not present this version to the complainant for his response and chose not to cross-examine the accused. Gilbert Guari was not called to give evidence although he was listed as a witness.
    
13. In Kitawal v State [2007] PGSC 44; SC927 the Supreme Court endorsed the following principles:
    1. If counsel does not put things to a witness in cross-examination, there should be no complaint if the witness is believed (Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260;
    2. Evidence not challenged should be taken to have been accepted: Haiveta v Wingti (No 1) [1994] PNGLR 160; and
    3. if a counsel intends to submit that a witness has lied, the counsel must have put it directly to the witness that he or she has lied so as to give the witness the opportunity to explain: The State v Pennias Mokei (No 1) (2004) N2606.
       
14. Given that the State chose not to present the defence theory to the complainant for his response, failed to cross-examine the accused, did not call Gilbert Guari as a witness, and neglected to address this critical aspect in submissions, I take the approach as acquiescence that the gun was handed over to Gilbert Guari for delivery to the complainant.
    
15. The question now is, does that conduct raise it to the level requiring criminal sanctions?
    
16. No doubt the pistol should have not been given to a third party to pass on to the complainant. This may subject the accused to some serious disciplinary process under the Police Act, but it does not show conduct which requires criminal sanctions.
    
17. While Mr Kembu submits that the conduct of the accused does not amount to a disciplinary offence found under the Police Act, that is misleading.
    
18. Section 20 of the Police Act provides for several disciplinary offences of which the accused conduct may fall under:

(b) fails to carry out any specified duty imposed on the member by this Act or any other Act or Regulation; or

(c) does not promptly and diligently attend to and carry out anything which it is the member’s duty to attend to or carry out; or

(w) negligently omits to record or report a fact or incident which is required of the member through Standing or Special Orders, this or any other Acts or Regulations; or

(y) knowingly omits to record or report a fact or incident which is required of the member through Standing or Special Orders, this Act or any other Act or Regulations; or

(z) knowingly fails to disclose the existence of any relevant evidence which is within his knowledge in relation to a criminal charge; or

(ae) through an intentional act or omission places himself under an obligation to a person which is likely to affect the proper discharge of his duties as a member of the Force; or

(aq) misappropriates or improperly deals with property which comes into his possession or control by virtue of his office; or

(ar) fails to account for or fails to make prompt and true return of money or property received by the member in his official capacity; or...[Emphasis mine].

19. Given that the State is acquiescent of the accused returning the firearm through a mutual friend and that the accused conduct is a disciplnary offence, I find that the State has not discharged its burden.
    
20. Verdict of Not Guilty returned.

Orders

21. It is ordered that:
    1. The accused, having been charged with one count of abuse of office contrary to section 92(1) of the Criminal Code is found not guilty.
    2. The accused is acquitted and discharged.
    3. Bail and any paid sureties are refunded.
    4. The CR(FC) File is closed
    5. The Bail File is closed.
       

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