The State v Amoko–Amoko [1981] PNGLR 373

• Jurisdiction: Papua New Guinea
• Judge: Pratt J
• Judgment Date: 04 June 1981
• Citation: [1981] PNGLR 373
• Court: National Court
• Year: 1981
• Judgement Number: N312(M)

Full Title: The State v Amoko–Amoko [1981] PNGLR 373

National Court: Pratt J

Judgment Delivered: 4 June 1981

1 Criminal law—accomplices—review of

2 authorities on who constitutes an accomplice and rule requiring corroboration on evidence of accomplices—special position of "receiver" where charge laid is break and enter—corroboration required as matter of practice—necessity for tribunal of fact to publish clear warning

CRIMINAL LAW—Parties to offences—Accomplices—Who is—Person who could be charged on same indictment—Receiver of stolen property is accomplice on break and enter charge.

CRIMINAL LAW—Particular offences—Breaking and entering—Receiver of stolen property is accomplice.

CRIMINAL LAW—Evidence—Corroboration—Accomplices—Who is accomplice—Danger of convicting on uncorroborated evidence of accomplice—Rule of practice to advert to warning—Need to record warning.

EVIDENCE—Corroboration—Accomplices—Who is accomplice—Danger of convicting on uncorroborated evidence of accomplice—Rule of practice to advert to warning—Need to record warning.

An accomplice is a person who could be charged on the same indictment with the principal offender.

McNee v Kay [1953] VLR 520, and

The State v Nataemo Wanu [1977] PNGLR 152 at 158 applied.

R v Ready and Manning [1942] VLR 85 not followed.

A receiver of stolen property, where the charge is one of breaking and entering, is an accomplice because he is particeps criminis in a broad sense.

Davies v DPP [1954] AC 378 and,

R v Sneesby [1951] QSR 26 at 29 followed.

Courts in Papua New Guinea should as a matter of practice take heed of the common law warning that it is dangerous to convict on the uncorroborated evidence of an accomplice.

The State v Titeva Fineko [1978] PNGLR 262, and

The State v Nataemo Wanu [1977] PNGLR 152 followed.

The State v Joseph Tapa [1978] PNGLR 134 not followed.

Failure of the court to direct itself and failure to record advertence to the warning in reasons for judgment may lead to the quashing of a conviction.

Trial.

This was the trial of an accused on a charge of breaking entering and stealing.

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Pratt J: In this matter Amoko–Amoko of Kade has been charged that between midday 29th January, 1980, and midday 30th January, 1980, he broke and entered the store of ICI (Papua New Guinea) Pty Limited and therein stole seven boxes of cartridges to the total value of K750.00, the property of the said ICI (Papua New Guinea) Pty Limited. The facts very briefly are that on the night of 29th January or the early hours of the morning of 30th (more likely the night of 29th January), the accused and several others went to the magazine used by ICI for storage of ammunition and gelignite. At least several crawled under a gap beneath the protective fence which surrounds the building and it is deposed by the witness Mavai that the accused broke open the locked door. There is no doubt that the door was locked. There is no doubt that on this particular night at least seven boxes of cartridges were taken from that building and there is also no doubt that on the previous night there had been another break and enter but the lock which had been broken on that occasion was replaced during the day of 29th January.

The witness Mavai and the others including Amoko, according to Mavai, returned to the village with at least part of their booty. Mavai left his one or two cartons of cartridges at the house of the State witness Godwin Romney. The next day it was apparently decided in the village or amongst certain members of the village, that the cartridges should be buried. Romney assisted Mavai to bury his boxes in a hole separate to that in which it is said Amoko and his compatriates buried their cartridges, but both excavations were very close together. There was some care taken in the burial in order to prevent water from damaging the ammunition, as corrugated iron was used as a base and as a top in the hole.

The police subsequently obtained information which led them to dig up part of the ground near the toilets but they make no mention of whether any corrugated iron was discovered in the locality. All they found was one spent cartridge case, blue in colour, and a piece of a cardboard carton or small cardboard box bearing the name "Blues" which, according to the Assistant Manager of ICI, was a brand of cartridge stored in the magazine. I would add here that the police obtained their information from the witness Godwin Romney who had been given a box of the cartridges by the witness Mavai on the night of or the day after the break and enter. He had proceeded off to Bereina fairly shortly after the break and enter, it appears, and did not return to Port Moresby until October of last year. During a friendly conversation with the police at the Boroko Hotel, it emerged that he knew something about the break and enter because he did have possession of certain cartridges which were the same brand as that kept in the magazine. The accused was questioned and made no admissions to the police. In fact he denied all knowledge of the break and enter and of any possession of the stolen items. He has not given evidence in this Court but has made a statement from the dock denying any complicity in the break and enter and any complicity in the burying of the items on the following day. That of course is not on oath and therefore does not carry a great deal of weight. Nevertheless, it is material which I must take into account when I assess and weigh all the evidence.

Now the defence submit that the court cannot be satisfied beyond reasonable doubt in this case of the accused's complicity in the crime, because the only real evidence put forward by the State is derived from accomplices. It is conceded by the State that the witness Mavai is an accomplice in the full sense of the word. No argument exists about that, nor could one do so. He is an unsatisfactory witness. Whether this be caused through age or through a lack of intelligence or through craft in an attempt to cover up certain aspects which would make the situation seem worse from his point of view, I am not sure.

The second witness, Godwin Romney, however presents the real difficulty. Godwin is a plumber by trade. His association with this incident appears to be fairly fleeting. It is undoubtedly the case that he did receive items stolen from the magazine. It is also undoubtedly the case that he participated in secreting some of that booty, no doubt thereby assisting those who were the main movers in the whole scheme both to escape detection, (for clearly to have a number of carton of cartridges lying around the various houses of the village would immediately raise suspicion), and also no doubt to have them available for future use. As I said a little earlier however, Romney disappeared from the scene for quite some months after that. The defence say that he is an accomplice and being an accomplice his evidence requires corroboration and that that corroboration is lacking. As a result I cannot, at least without warning myself very strongly in the traditional manner used for juries where accomplice's evidence is concerned, proceed to conviction. In fact it is my appreciation of the defence submission that it is a rule of law and not just a rule of practice that such warning must be given. There are two aspects therefore which are involved for consideration here. Firstly, who is an accomplice and second, is corroboration required now in Papua New Guinea either as a matter of law or as a matter of practice where the evidence of an accomplice is involved. I made some passing reference to this very problem in the recent Supreme Court decision of Peter Townsend v George Oika [1981] PNGLR 12, although that case concerned corroboration in a matter of sexual assault and did not raise, as this trial does, the question of corroboration on the evidence of accomplices. However I made some general comments which are equally applicable to this case.

I propose first to deal with the question of whether corroboration is necessary or desirable in Papua New Guinea where the evidence is that of an accomplice. The starting point of course is the case of Davies v DPP [1954] AC 378, and at 399 the three propositions accepted by the House of Lords are set out:

(1) "In a criminal trial where a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the judge to warn the jury that, although they may convict upon his evidence, it is dangerous to do so unless it is corroborated."

(2) "This rule, although a rule of practice, now has the voice of a rule of law."

(3) "Where the judge fails to warn the jury in accordance with this rule, the conviction will be quashed, even if in fact there be ample corroboration of the evidence of the accomplice, unless the appellate court can...