The State v Edward Giragu Koima, Agnes Ambu Giragu & Silvia Kitawa Gene (2010) N4037

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 20 May 2010
• Court: National Court
• Citation: (2010) N4037
• Docket Number: CR NOS 107, 732 & 736 OF 2008
• Year: 2010
• Judgement Number: N4037

Full Title: CR NOS 107, 732 & 736 OF 2008; The State v Edward Giragu Koima, Agnes Ambu Giragu & Silvia Kitawa Gene (2010) N4037

National Court: Cannings, J

Judgment Delivered: 20 May 2010

N4037

PAPUA NEW GUINE

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 107, 732 & 736 OF 2008

THE STATE

V

EDWARD GIRAGU KOIMA,

AGNES AMBU GIRAGU &

SILVIA KITAWA GENE

Madang: Cannings J

2010: 25 March, 13, 19 April, 20 May

VERDICTS

CRIMINAL LAW – trial – stealing – Criminal Code, Section 372 – dismantling of house and removal of contents – whether the accused did the acts constituting the offence – whether the accused aided other persons in committing the offence – Criminal Code, Section 7.

A group of people ransacked and dismantled a house in a village and removed personal property from it, while the owners were absent. Three accused were charged with stealing the house and its contents. The State alleged that one of the accused did the acts constituting the offence and that the other two enabled or aided the commission of the offence and that they were all guilty of stealing. They pleaded not guilty.

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) As to the first accused, there was direct evidence that he was a member of the group that committed the offence and that he did the acts constituting the offence.

(4) As to the second and third accused there was no reliable evidence that they were members of the group that committed the offence and insufficient evidence that they enabled or aided others in committing the offence.

(5) The first accused was found guilty and the second and third accused were acquitted.

Case cited

The following case is cited in the judgment:

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

TRIAL

This was the trial of three accused charged with stealing.

Counsel

N Goodenough, for the State

D Joseph, for the accused

20 May, 2010

1. CANNINGS J: On Friday 30 March 2007 there was an incident at Karisokra village in the upper Bundi area of Madang Province. A house occupied by a New Tribes Mission couple, Paul and Susan Boothby, was broken into and ransacked by a group of people. The house was dismantled and taken away, along with personal property inside it. The Boothby family was overseas at the time. The three accused, Edward Giragu Koima, Agnes Ambu Giragu and Silvia Kitawa Gene, have been charged under Sections 372(1) and (10) of the Criminal Code with stealing the house and its contents, valued at K130,992.00. Edward and Agnes are husband and wife, each aged about 50. Silvia is a younger woman and is related to Edward and Agnes.

2. 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. It is not disputed that the incident actually occurred or that the offence of stealing was committed by a number of people. What is disputed is that the accused were involved. They have each pleaded not guilty. They say that though they were at the village at the time, they were not involved. The State’s case is that they were all involved in some way. In particular:

· that the first accused, Edward, was directly involved and was a member of the group that committed the offence and should be convicted under Section 7(1)(a) of the Criminal Code; and

· that the second and third accused, Agnes and Silvia, aided those who committed the offence and should be convicted under Section 7(1)(c) of the Criminal Code.

ISSUES

4. The central issues are:

· was Edward a member of the group who broke into the house, dismantled and ransacked it and removed the contents?

· did Agnes and/or Silvia aid that group?

5. Determination of these issues requires:

· a summary of the evidence for the State;

· a summary of the evidence for the defence;

· a preliminary assessment of the State’s case;

· a summary of the defence counsel’s submissions;

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

· a final determination of the two highlighted issues.

EVIDENCE FOR THE STATE

6. Two witnesses gave oral evidence. The other significant evidence was the record of interview of each accused. There was also a batch of before-and-after photographs of the house and a list of items stolen and their value.

Oral evidence

7. Mathias Kurumaina is a community leader at Karisokra. He has known the Boothby family for 15 years. He was the caretaker of their house when they went overseas. He knows all the accused. He is related to all of them. He was at his house at 6.00 am on 30 March 2007 when he heard noises coming from the Boothby house. He went to investigate and saw that Edward’s boys were destroying the Boothby house using axes and bushknives. He tried to stop them but they would not listen. They said that they had a reason. He stood 10 to 15 metres away with many other village people. They threatened him and other bystanders who were not allowed to intervene. He saw Edward’s boys go into the house and remove things including electronic equipment such as a computer and a video-recorder and a generator. They brought everything outside and stockpiled it. No women were involved. He stayed watching for three or four hours. With his own eyes he saw Edward and his boys do these things.

8. In cross-examination he acknowledged giving a statement to the police (two versions of which were admitted into evidence) in which he said that he saw Edward involved in doing these things and that the incident happened at 8.00 am on Friday 30 March.

9. Mathias said it was true that he was at the Boothby house on the night of Thursday 29 March but he denied (as put to him by the defence counsel, Mr Joseph) that Edward’s boys attempted to break into the house that night and that Edward tried to stop them. He also denied going to the Boothby house at 8 o’clock on the morning of 30 March. He went at 6 o’clock, he said. Edwards’s boys went there first and Edward came a few minutes later. He denied that Edward at any time tried to stop his boys destroying the house and stealing it and other properties.

10. The second State witness was Mande Awari. He is also a Karisokra villager. On 30 March he saw Edward and his group ‘break the house’. They were armed with bushknives, axes and a pinch-bar. Edward led the group. He did not see what happened inside the house but he saw them breaking the house and going outside and then he saw household items being removed from the house.

11. In cross-examination he said he was not there in the morning but he saw what happened in the afternoon.

Records of interview

Edward

12. He said that the owners of the house that he broke into and stole from were ‘Paul and Susan’. They did not give him permission to demolish their house. Asked why he led his people to demolish the house he said ‘I have ill feelings amongst our family and Paul and Susan’.

Agnes

13. She denied that she was at the Boothby house. She was at a haus krai but then it was raining heavily and the boys who took the items brought them to the doorway of her house so she put them inside the house.

Silvia

14. When the house was broken into, she was at her own house. Then she observed that a fridge and a generator were outside her house and ‘I helped my father to put them into the house to return to Paul and Susan’. Paul and Susan did not give her authority to take their property. She has neither sold nor returned the fridge and generator.

EVIDENCE FOR THE DEFENCE

15. Edward gave sworn evidence and Agnes and Silvia each made an unsworn statement from the dock.

Edward’s sworn evidence

16. He is a Karisokra villager, married with children, and about 50 years old. He regards himself as a peace mediator and community spokesman. On the night of 29 March he was at a haus krai for his uncle’s son. There were two disturbances at about 10.00 pm. The first was caused when some neighbours were playing loud music. His uncles got upset about that and he had to sort out that problem. The second was at the Boothby house. Some of the boys in his family were trying to break down the house. They had an ongoing grievance over the land on which that house was built. However, he joined with Mathias Kurumaina in stopping the boys from breaking into the house and the boys left. He then went back to the haus krai, about 30 metres away. On the morning of the 30th he was asleep when he again heard noises coming from the Boothby house. He went to see what was happening and he discovered that his family boys were again breaking into the house. He was on his own and this time they did not listen to him. There was nothing more he could do. He does not know what they did once they went inside the house. He again went back to the haus krai.

17. In cross-examination Edward agreed that...