Zimbin David v Yapu David [1988] PNGLR 178

• Jurisdiction: Papua New Guinea
• Judge: Bredmeyer J
• Judgment Date: 20 August 1988
• Citation: [1988] PNGLR 178
• Court: National Court
• Year: 1988
• Judgement Number: N687

Full Title: Zimbin David v Yapu David [1988] PNGLR 178

National Court: Bredmeyer J

Judgment Delivered: 20 August 1988

1 Criminal law—receiving—elements of offence—theft may be inferred from the circumstances of acquisition—s410 Criminal Code (Ch262)

2 Sentence—Receiving money

CRIMINAL LAW—Particular offences—Receiving stolen property—Elements of charge—Proof that property "stolen"—Sufficiency of—Inference from circumstances of acquisition—When available—Criminal Code (Ch262), s410.

Held:

(1) In order to support a charge of receiving stolen property under s410 of the Criminal Code (Ch262), the State must prove:

(a) that the property was stolen;

(b) that the accused received the property; and

(c) that the accused knew the property was stolen.

It is not necessary to allege or prove from whom the property was stolen.

(2) The circumstances in which property is received may, in themselves, be sufficient proof that the property was stolen.

R v Korniak (1982) 76 Cr App R 145, followed.

(3) In circumstances where the accused was drinking in an hotel with K who was unemployed, when K placed K100 cash in his shirt pocket and in reply to the question "Whose money was it?", said "It is your money, take it and keep your mouth shut", the inference was clearly open that the money was stolen.

Cases Cited

The following cases are cited in the judgment:

Acting Public Prosecutor v Yongga [1981] PNGLR 314.

R v Hulbert (1979) 69 Cr App R 243.

R v Barry Ilett (1974) FC69

R v Korniak (1982) 76 Cr App R 145.

R v McDonald (1980) 70 Cr App R 288.

Appeal against conviction and sentence

The appellant was convicted after a trial by a Grade 5 magistrate of receiving K100 of stolen money and fined K600 in default six months imprisonment. He appealed against conviction and sentence.

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Bredmeyer J: The appellant was convicted by a Grade V magistrate of receiving stolen property under s410 of the Criminal Code (Ch262). The elements of the offence are threefold: the defendant must receive the thing, it must have been stolen, and the defendant must have known that it was so obtained. The appellant was convicted of receiving K100 of stolen money, knowing it to have been stolen and fined K600 in default six months imprisonment.

The only issue in this case is: did the prosecution prove that the money was stolen? In some cases the prosecution can prove the theft of the goods found on the defendant by direct evidence. For example, a witness might be called to say that on a particular night he suffered a break and enter and his 20" Sharp brand TV serial No XYZ 2468 was stolen. If that is the TV set found in the possession of the defendant, then the prosecution has proved the theft.

In most cases no direct evidence of theft is available but the circumstances in which the property is received may be in themselves sufficient proof that the goods were stolen. The defendant's admission of the circumstances in which he got the goods may allow an inference to be drawn that they were stolen. A good statement of the law is found in S Mitchell & P Richardson Archbold Pleading, Evidence & Practice in Criminal Cases (42nd ed, 1985), par 18–156:

"Admission of belief that goods were stolen as evidence that they were.

Where an accused, upon being questioned by the police about certain goods, admits that he had purchased them and that at the time he believed them to have been stolen, such an admission, in the absence of any other evidence, is not sufficient to permit an inference by the jury that the goods were stolen goods: R v Porter [1976] Crim LR 58; R v Marshall [1977] Crim LR 106; Attorney–General's Reference (No 4 of 1979) [1981] 1 WLR 667 (CA). The general evidential principle upon which these decisions are based is that an accused person's admissions are only evidence against him where it appears that he had personal knowledge of the facts admitted: Surujpaul v R [1958] 3 All ER 300, 304; Comptroller of Customs v Western Letric [1966] AC 367. However, the circumstances in which the defendant received the property may be proved by his own admission, and on the basis of those circumstances an...