The State v Asi Taba (2010) N4083

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 July 2010
• Citation: (2010) N4083
• Docket Number: CR NO 1443 OF 2009
• Court: National Court
• Year: 2010
• Judgement Number: N4083

Full Title: CR NO 1443 OF 2009; The State v Asi Taba (2010) N4083

National Court: Cannings J

Judgment Delivered: 22 July 2010

N4083

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1443 OF 2009

THE STATE

V

ASI TABA

Madang: Cannings J

2010: 18, 19 May, 22 July

VERDICT

CRIMINAL LAW – trial – stealing – Criminal Code, Section 372 – 1,000 cartons tinned fish – evidence of plan to steal and implementation of plan – whether the offence of stealing was committed – whether the accused aided other persons in committing the offence – whether the failure of the State to expressly invoke Criminal Code, Section 7 protected the accused from conviction.

There was evidence that a group of people, some of whom were employees of the complainant company, made a plan to steal 1,000 cartons of tinned fish valued at K58,399.00 from the company and implemented the plan by preparing false documents and transporting the fish from the company’s premises to another place, where it was sold to a third party. The State alleged that the accused had knowledge of the plan and took part in its implementation by loading the fish on to a truck, accompanying the fish to the other location, unloading the fish and then receiving part of the proceeds of the sale. The accused denied knowledge of or involvement in the plan or acting with any fraudulent intent. It was argued that he could not be criminally liable as the State did not invoke Section 7 of the Criminal Code in its case against him.

Held:

(1) Under Section 372(1) of the Criminal Code the offence of stealing has three elements:

· taking something or converting it to the accused’s or another person’s use; and

· doing so fraudulently; and

· moving it or dealing with it by some physical act.

(2) The State proved that the offence of stealing was committed by a group of people.

(3) The State proved that the accused had knowledge of the plan and was involved in its implementation and obtained some of the proceeds of the crime.

(4) The accused could not use the State’s failure to expressly invoke Section 7 of the Criminal Code as a defence as the nature of the allegations was clear from the beginning of the trial.

(5) Nor was it a defence that others with a greater involvement in the offence have not been prosecuted.

(6) The accused did acts for the purpose of enabling and aiding others to commit the offence and was deemed by Section 7(1)(b) to have taken part in committing the offence and to be guilty of it. He was found guilty as charged.

Cases cited

The following cases are cited in the judgment:

The State v Becho Lala Uma (2009) N3765

The State v Boria Hanaio, Bula Hanaio & Timothy Komu (2007) N4012

TRIAL

This was the trial of an accused charged with stealing.

Counsel

A Kupmain for the State

J Kolkia for the accused

22 July, 2010

1. CANNINGS J: The accused, Asi Taba, is a 34-year-old man from the Amele area of Madang Province. He is charged under Sections 372(1) and (10) of the Criminal Code with stealing 1,000 cartons of tinned fish valued at K58,399.00 from RD Tuna Canners Ltd of Madang. The offence is alleged to have been committed in November 2007 when the accused was an employee of the complainant company. The State’s case is that the accused and a number of other employees made a plan to steal the fish from the company and share the proceeds. Documents were falsified and this enabled the fish to be packed into a container, which was loaded onto a truck and transported to Lae, where the fish was sold to a third party. The State alleges that the accused had knowledge of the plan and took part in its implementation by loading the fish on to the truck, accompanying the fish to Lae, unloading the fish and then receiving K2,000.00 from the proceeds of the sale.

2. Under Section 372(1) the offence of stealing (that term being defined by Section 365) has three elements:

· taking something or converting it to the accused’s or another person’s use; and

· doing so fraudulently; and

· moving it or dealing with it by some physical act.

(See The State v Boria Hanaio, Bula Hanaio & Timothy Komu (2007) N4012.)

3. If all elements are proven against an accused the maximum penalty is three years imprisonment. If it is proven that the value of the thing stolen is K1,000.00 or more this is a circumstance of aggravation, which, if it has been – as in this case – charged in the indictment, lifts the maximum penalty to seven years imprisonment.

4. The accused does not dispute that the offence of stealing was committed by a number of people or that the value of the fish was more than K1,000.00. What is disputed is that he was involved. The accused also argues that if the court finds that he was involved, he cannot be criminally liable as the State did not invoke Section 7 of the Criminal Code in its case against him. Section 7 is the provision that says that not only is the person who does the acts constituting an offence guilty, but every person who does any act for the purpose of enabling or aiding another person to commit it is also guilty of the offence.

ISSUES

5. There are two:

1 Was the accused involved in the stealing of the fish?

2 If yes, is he criminally liable?

1 WAS THE ACCUSED INVOLVED IN STEALING THE FISH?

6. Determination of this issue requires:

· a summary of evidence for the State;

· a summary of evidence for the defence;

· a preliminary assessment of the State’s case;

· a summary of defence counsel’s submissions;

· an assessment of defence counsel’s submissions; and then

· a final determination of this question of fact.

EVIDENCE FOR THE STATE

7. One witness gave oral evidence. An affidavit he swore for the purposes of the police investigation was also admitted into evidence. The only other evidence was the accused’s statement under Section 96 of the District Courts Act made to the District Court in the committal proceedings.

Affidavit and oral evidence and affidavit

8. The only State witness, Bernard Cholai, was questioned over an affidavit he swore. In the affidavit he deposes that in October 2007 he was part of a plan involving a number of other people, including the accused, Asi Taba, to steal “840 cases of one-pack style TFO4 local product” belonging to RD Tuna Canners Ltd. A container containing the stolen fish was packed on to a truck, which was driven to Lae during the night. He and the accused followed on a PMV the next morning. A buyer was lined up and the transaction took place in the Lae Depot. A number of other people in Lae and in Madang who ‘played around with the figures’ were also involved in the plan. The plan was made about three weeks before it was executed. As a result of the plan a cheque was deposited into the BSP Madang account of a member of the group who made the plan, “BM”; and then cash was withdrawn and distributed to various people.

9. In his oral evidence Bernard Cholai adopted the contents of the affidavit. He said that in October-November 2007 he was employed by RD Tuna as a shipping assistant. He knows the accused. During that period the accused was employed as a casual shipping labourer, and his job included packing and unpacking containers.

10. In cross-examination the witness agreed that part of his job was to give instructions to casual labourers such as the accused about what they had to load and unload. The accused was under his supervision at the time and acted on his instructions. He instructed the accused to load the container with the stolen fish that was bound for Lae. He agreed with defence counsel Mr Kolkia’s proposition that the accused was just doing as he was told and would not have loaded the container without his instructions. Asked if he told the accused why he was being instructed to load the container, the witness replied ‘He knows that it is being arranged for the stealing’. Asked whether the accused questioned him about why the container was bound for Lae the witness said ‘it was all organised and he knew about it’. Pressed on whether he himself was involved in the plan, the witness, after some prevarication, admitted that he was, and that it was an organised crime and that he received K2,000.00 for the part he played.

11. In re-examination the witness said he did not know how much the accused received. The motivation for the crime, he said, was ‘discrimination in the workplace by Asians’.

The accused’s Section 96 statement

12. Section 96 (accused to be asked whether he desires to give evidence) of the District Courts Act allows an accused (referred to as ‘the defendant’) to make a statement to the District Court during his committal proceedings. He is not obliged to make any statement and Section 96 requires that the District Court makes this very clear to him before recording any statement made. If a statement is made Section 97 (statement may be put in evidence at trial) allows it to be used in evidence at his trial.

13. Section 96 states:

(1) Where a Court proceeds with the examination of a defendant in accordance with this Division, the Court or the Chairman of the Court shall read the charge to the accused and explain its nature in ordinary language and shall say to him these words, or words to the same effect—

"Having heard the evidence for the prosecution do you...