SC1888

PAPUA NEW GUINEA
[IN THE SUPREMECOURT OF JUSTICE]

SCRA NO. 26 OF 2018

GEORGE IKALOM and TIMOTHY ROREPA

      V

THE STATE

Waigani: Batari, Thompson and Berrigan, JJ
2019: 16th October and 19th December 

CRIMINAL LAW – Robbery – Elements of offence –Stealing - Intention to permanently deprive required – Defence under s. 23(2) limited to in personam and civil claims – Defence under s. 32 of the Criminal Code not available in the case of an offence attracting the penalty of death– Limit of authority of a police constable discussed.

Cases Cited:
Papua New Guinea Cases

R v Alder (1962) PGSC 7 
John Beng v The State [1977] PNGLR 115
The State v Angela Colis Towavik [1981] PNGLR 140
Paulus Pawa v The State [1981] PNGLR 498
The State v Laura (No 1) [1988-89] PNGLR 92
Luingi Yandasingi v The State [1995] PNGLR 268  
Jimmy Ono v The State (2002) SC698
The State v Boria Hanaio & Ors (2007) N4012
Lati v The State (2015) SC1413 

Overseas Cases

MacLeod v R (2003) 214 CLR 230 
R v Waterfield [1963] 3 All ER 659 
References cited

Sections 23, 32, 384, 365, 386 of the Criminal Code (Ch. 262) (the Criminal Code)
Section 23 of the Supreme Court Act 1975
Section 140 of the Police Act 1998 

Counsel

Mr F. Kirriwom, for the Appellants
Mr D. Mark, for the State

DECISION ON APPEAL

19th December, 2019

1.	BY THE COURT: The appellants appeal against a decision of the National Court in which they were each convicted following a joint trial of one count of aggravated robbery, contrary to section 386(1)(2) of the Criminal Code (Ch. 262) (the Criminal Code).The maximum penalty for the offence is death.

2.	The appellants were each subsequently sentenced to a term of eight years of imprisonment, two years of which was suspended upon the payment of compensation.  The sentence imposed in each case is not challenged. 

3.	The indictment alleged that between 11 pm on 31 March and 1.30 am on 1 April 2015 the appellants stole from the complainants 52 bags of betelnut and six bundles of mustard with actual violence, whilst in company with each other and other persons, and armed with dangerous weapons namely a magnum pistol and rifle. 

4.	At trial the State alleged that the four complainants were travelling back from Gabadi 24 Market on a public motor vehicle (PMV) truck to Toutu Village within Kairuku District in Central Province with 52 bags of betelnut and 6 bags of mustard when they were pulled over by the appellants at a roadblock at Agevairu. At the time the appellants, police officers attached to the Traffic Section of the Central Provincial Headquarters, were in full police uniform and under the influence of alcohol.  It was further alleged that the appellant George Ikalom told the complainants to remove the betelnut from the PMV before telling them to get back on the truck and leave.  At the time he used threats of and actual violence, whilst armed with a pistol.  The State alleged that the appellants aided and abetted each other to commit the offence pursuant to s. 7 of the Criminal Code. 

5.	It was not in dispute that both appellants were present at the scene of the incident at the Agevairu roadblock.  Participation in the commission of the offence was in issue.  Furthermore, the defence case was that the appellants were complying with the betelnut ban law enforced in the National Capital District and confiscated the betelnut and mustard upon learning that the complainants intended to sell their produce in Port Moresby. The appellants denied committing robbery.

GROUNDS OF APPEAL
6.	The appellants’ notice of appeal contained four grounds, two of which were withdrawn during the course of the hearing.  The remaining two grounds are considered in detail below.  The first concerns the learned trial judge’s finding that the appellants possessed the requisite intention to permanently deprive the complainants of their property.  The second ground challenges the trial judge’s finding that the first appellant participated in the offence.

7.	It is well established that to succeed on an appeal against conviction an appellant must by virtue of s. 23 of the Supreme Court Act establish that the verdict is unsafe or unsatisfactory, the conviction entailed a wrong decision on a question of law, or there was a material irregularity in the trial.  In the event that the appellant establishes one of those matters the Supreme Court must then consider whether a miscarriage of justice has actually occurred.  If not, it may dismiss the appeal:  Lati v The State (2015) SC1413 applying John Beng v The State [1977] PNGLR 115.

GROUND 1:  INTENTION TO PERMANENTLY DEPRIVE

8.	The appellants contend that the learned trial judge erred in law in convicting them of armed robbery in circumstances where the evidence failed to establish beyond reasonable doubt that the appellants possessed the requisite intention to permanently deprive the victims of their property within the meaning of ss. 384 (definition of robbery) and 365 (definition of stealing) of the Criminal Code.

9.	The State failed to file its extract of submissions by 18 October 2019 as directed on 18 August 2019.  In the circumstances leave to file an extract on the day of the hearing was refused by the Court. 

10.	The State made oral submissions to the effect that it is not necessary to establish that the appellants intended to permanently deprive the complainants of their property and that it is sufficient to establish only that they “took the property without consent”.

The offence of robbery 

11.	The appellants were convicted of aggravated robbery contrary to s.386(1) and (2)(a)(b) and (c) of the Criminal Code.

12.	Section 386(1) of the Criminal Code creates the offence of robbery:

“(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against Subsection (1)–

(a) is armed with a dangerous or offensive weapon or instrument; or
(b) is in company with one or more other persons; or
(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable to be sentenced to death.”

13.	Robbery is defined in s. 384 of the Criminal Code in the following terms (emphasis added):

“A person who steals any thing, and, at, immediately before or immediately after, the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen is said to be guilty of robbery.”

14.	It is clear from the above that robbery is a hybrid offence.  It combines both stealing and assault. To establish the offence the State must prove beyond reasonable doubt the following elements, such that the accused:

(a)	steals
(b)	any thing; and
(c)	at, immediately before or immediately after, the time of stealing it;
i.	uses or threatens to use actual violence;
ii.	to any person or property;
(d)	in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen.

15.	“Stealing” is relevantly defined in s.365 of the Criminal Code for our purposes in the following terms (emphasis added):

“(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
(b) to permanently deprive any person who has any special property in the thing of that property; or
(c) to use the thing as a pledge or security; or
(d) to part with it on a condition as to its return that the person taking or converting it may be unable to perform; or
(e) to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; or
(f) in the case of money, to use it at the will of the person who takes or converts it, even if he intends to afterwards repay the amount to the owner.

(5) …”

16.	Thus to prove the “stealing” of anything capable of being stolen (as defined in s. 364), the prosecution must establish beyond reasonable doubt that the accused: 

(a)	fraudulently;
(b)	takes the thing, or converts it to his own use or the use of any other person;and
(c)	actually moves or otherwise deals with the thing by some physical act.

17.	“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.

18.	It follows from the above that the State’s submission is misconceived. To establish the offence of robbery the State must prove that an accused stole the property. This requires proof beyond reasonable doubt that the goods were taken or converted with a fraudulent intent on the part of the accused. See alsoThe State v Boria Hanaio & Ors (2007) N4012.

19.	For completeness we note that the State must also prove that the violence, or threat of actual violence, was used at or immediately prior to the stealing by the accused with the intention or in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen. 

The present case
20.	Returning to the present case, the appellants do not assert any failure on the part of the trial judge to correctly identify the requisite intention as an element of the offence, rather it is with his finding that it was established on the evidence that they take issue.   

21.	In particular, the appellants point to evidence that suggests both that the property was conveyed to NCDC Tarpot and that the appellants instructed the complainants that they could retrieve it after explaining to the authorities there why the property should not be forfeited.  

22.	That evidence is contained in the written statements given by each of the appellants under s. 96 of the District Courts Act during the committal proceedings and which were tendered as part of the defence case at trial without objection.  Those statements were sworn but not challenged under cross-examination.  The appellants exercised their right not to give evidence. 

23.	Whether or not 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. 
24.	All that is required is an intention to retain the property indefinitely: The State v Boria Hanaio and Others (supra).

25.	In our view the intention to permanently deprive was never in issue in this case. Even taking the appellants’ version at its highest, they told the complainants that they could try to retrieve the property from authorities in NCD.  There was no suggestion that they had any intention of returning the property to the complainants, nor even an expectation that the property would necessarily be returned to the complainants.  The real thrust of the appellants’ defence was that the taking was in the course of executing their lawful duties.

26.	Whilst not raised in the court below, neither of the defences under s. 32 or s. 23 of the Criminal Code were available in this case.

27.	Section 32(1)(a) and (b) of the Criminal Code provide a defence for an act or omission done or made “in execution of the law” or in “obedience to the order of a competent authority”.  Pursuant to the second limb of s. 32, however, the defences do “not extend to an act done or omission that would constitute an offence, punishable with death”. 

28.	In 2013 the maximum penalty for aggravated robbery contrary to s.386 (1)(2) was increased to death thus excluding the operation of s. 32 of the Criminal Code.  See The State v Laura (No 1) [1988-89] PNGLR 92; and The State v Angela Colis Towavik [1981] PNGLR 140.

29.	Section 23(2) of the Criminal Code creates a defence for an act done or omitted to be done “with respect to any property in the exercise of an honest claim of right and without intention to defraud”.

30.	In our view s. 23(2) only applies to a private or in personam claim with respect to property.  Here we agree with the comments of Mann CJ in R v Alder (1962) PGSC 7 that the section (emphasis added):

“may extend beyond proprietary rights into the field of rights in personam in relation to property or rights to commandeer, manage, control, occupy or exclude occupation of property, but not to a power to destroy property for the public protection (which was the issue in that case) as distinct from any personal interest in or in relation to it”.

31.	Similar observations have been made in other jurisdictions regarding the private nature of a claim of right.  As stated by Gleeson CJ, Gummow and Hayne JJ of the High Court of Australia in MacLeod v R (2003) 214 CLR 230 at [41]:

“… what is meant when it is said that the accused raises a claim of right. As to that, Dawson J said in Walden:

"It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner - to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law: see Cooper v Phibbs."”

32.	Nevertheless, the taking even if intended to permanently deprive could not be said to be fraudulent if the appellants reasonably believed they were acting in lawful execution of their authority as police officers. 

33.	The general approach for determining the limit of police authority to interfere with a person's liberty or property was established in R v Waterfield [1963] 3 All ER 659 at 661 (emphasis added):

“In the judgement of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed.  In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person’s liberty or property.  If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b)whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.  Thus, while it is no doubt right to say in general terms that police constables have a duty to prevent crime and a duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when the execution of these general duties involves interference with the person or property of a private person, the powers of constables are not unlimited.”  

34.	Section 140 of the Police Act 1998 provides that a member of the police force “has the same powers, duties, rights and liabilities as constables under the underlying law, except so far as they are modified by or under an Act”.  Relevant acts here include the Search Act 1977 and any subordinate enactment that confers a power of search.  

35.	Whilst not articulated with reference to s. 140, it was the appellants’ case that they were lawfully entitled to take or “confiscate” the betelnut because the complainants intended to sell it in Port Moresby in contravention of the NCD Betelnut Control Law.

36.	The State’s case at trial was that the appellants stole the property from the complainants under the pretext of enforcing the NCD Betelnut Control Law. 

37.	The primary judge made it clear that he accepted the evidence of the State witnesses, which he regarded as truthful and which was corroborated.  He had the opportunity to hear and observe four State witnesses, including one complainant and three police officers from Central Province present on the night in question.  He also had regard to a further eight statements that were tendered by consent, including statements from each of the remaining three complainants and the security guard and supervisor on duty at NCDC Tarpot that evening. He set out both the evidence and his findings of fact on that evidence in detail when delivering his verdict.  

38.	The evidence showed that there was an official roadblock at Agevairu that night manned by officers from Central Province, including one provincial Traffic Unit. Its purpose was to check for drivers licences, vehicle registrations, escapees and drugs.  It was not to confiscate betelnut.  There was no betelnut ban in Central Province.  The NCD Betelnut Control Law made it an offence to transport betelnut and mustard into NCD.  

39.	The appellants, police constables from Central Traffic Unit,admitted in their records of interview that they were aware that there was no betelnut ban in Central Province.  

40.	The appellants were not on duty at the roadblock that night but followed the PMV truck in which the complainants were travelling into the roadblock in an unmarked white 10-seater.  At the time the complainants were travelling in the direction away from NCD.  

41.	The property was taken from the complainants under threats of actual and physical violence, including the use of a firearm. One of the officers involved, Constable George, appeared to be drunk.  He was shouting and swearing.  He said there was a betelnut ban.  He hit the driver on the head with the pistol.  He swore at the passengers.  He punched three of the four complainants about the head and threatened to shoot them with a pistol.  He pointed the pistol at the head and then the knees of a fourth complainant and threatened to shoot “off his leg”.  

42.	The appellants ignored a direct order by a senior officer stationed at the roadblock, Senior Constable Helide, not to remove the betelnut.  He told them that there was no ban in Central Province, and that if they wanted to arrest the complainants they would have to take them to Port Moresby and charge them there.  They did not.  

43.	Instead the complainants were told to remove all of the bags from the PMV and place them on the side of the road.  The complainants were then told to retrieve one bag each, board the truck and leave, which they did.   At the time the complainants were carrying a total of 52bags of betelnut (or 53 bags on our calculation), some of which was fresh or green and others which was mature or dry, together with 6 bags of mustard. 

44.	There was no evidence from the complainants and nor was it put to them in accordance with the rule in Brown v Dunn that they were told by anyone that they could retrieve their produce from NCDC Tarpot or anywhere else for that matter.  No receipt was given for the produce.  No details were taken from the complainants.

45.	Another officer stationed at the roadblock, officer Patu, from the Central Province Traffic Unit, heard Constable George shouting at the complainants and telling them to unload all their betelnut as they were intending to take it into Moresby.  He did not say and nor was it put to him that the complainants were told they could retrieve their property from NCDC Tarpot. 

46.	The bags of betelnut were then loaded into the 10-seater vehicle.  Several bags were left behind on the side of the road.Upon seeing that the officer in charge of the roadblock, Justin Titus, directed his officers to retrieve the bags, place them in a vehicle and take them to NCDC Tarpot, which they did. 

47.	Only 13 bags of betelnut and two bags of mustard were dropped off at NCDC Tarpot later that night or in the early hours of the following morning. The bags of betelnut contained only dry or mature betelnut.   

48.	The trial judge reminded himself in accordance with well settled principles that the accused were under no obligation to give evidence and had regard to the material contained in their s. 96 statements.  He also observed that whilst failure to give evidence does not and cannot be used to infer guilt, it may tell against an accused person in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters:  Paulus Pawa v The State [1981] PNGLR 498.

49.	Ultimately the learned trial judge found that the offence was pre-planned, well executed and designed to suit the appellants’ own intentions “to get free betelnut and mustard”. The finding was open to the trial judge on the evidence. 

50.	Whilst the trial judge made no allowance for the four bags returned to the complainants that did not vitiate his finding on guilt.  On a charge involving stealing, it is not necessary that the prosecution should prove that all the articles named in the indictment have been stolen.  It is sufficient to prove that the accused person stole any of them. See Archbold’s Criminal Practice, 19th Edition at 220: “A variance in the number of articles or in their value is immaterial”.  The matter may be relevant to sentence.  No issue was taken with sentence in this case and in any event the gravity of the offence derived from its commission by serving police officers rather than the exact number of items stolen. 

51.	It is well established that the Supreme Court will not readily interfere with the assessment of the evidence and the findings of the trial judge: Jimmy Ono v The State (2002) SC698. We see no reason to do so in this case.There was no error of fact or law.  Ground 1 is dismissed.

GROUND TWO:  IDENTIFICATION OF GEORGE IKALOM

52.	The appellant George Ikalom submits that the trial judge erred in fact and in law when he found that he had been armed with a weapon and had robbed the victims of their property, with the use of actual violence, when there was no evidence directly identifying him as the person who committed the offence.

53.	The trial judge reminded himself of the principles to be applied where the issue of identification is raised, in accordance with John Beng v The State [1977] PNGLR 115 and Luingi Yandasingi v The State [1995] PNGLR 268.  

54.	George Ikalom did not dispute, however, that he was present at the time the complainants’ property was taken.  

55.	He did not dispute that he travelled to the roadblock that night with his co-accusedTimothy Rorepa in a white 10-seater.  He admitted this in both his record of interview, which was tendered by consent as part of the State case, and his s. 96 statement in his defence.  Nor more over did he dispute that he participated in the removal of the complainants’ betelnut. Critically, he admitted in his record of interview that it was he who told the complainants to remove their betelnut but said that he did so because he was told by officer Patu to remove the bags.  In his s. 96 statement he again admitted that he was present with officer Patu and one other officer when the complainants were told to remove the betelnut but this time denied that it was he who told them to do so, saying that it was officer Patu instead. He further denied being drunk, in possession of a firearm or using violence.  

56.	The trial judge accepted the State’s evidence to the contrary.  That finding was clearly open to him.  There was no error of fact or law.

57.	Ground 2 is dismissed.

CONCLUSION

58.	For the above reasons we conclude that in all the circumstances of the case the appellants have failed to demonstrate that the verdict is unsafe or unsatisfactory, that the conviction entailed a wrong decision on a question of law, or that there was a material irregularity in the trial.

59.	The appeals are dismissed and the convictions and sentences affirmed.
_______________________________________________________________
Public Prosecutor:   	Lawyer for the State		
Public Solicitor:   	Lawyer for the Appellants