DC950

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION

DCR 688/2009

BETWEEN

POLICE
Informant

AND

RAYMOND VICTOR
Defendant

Madang: J. Kaumi
2009: 06th, 27th, July/6th August

VERDICT

CRIMINAL LAW-Summary offence-Summary Offences Act, Part V, Protection of Property-Section 47 (2), Damaging property-Proprietary of property issue for trial.

CRIMINAL LAW-PRACTISE & PROCEDURE – General rule is that in criminal cases it is for the prosecution to prove, and to beyond reasonable doubt, every element of the alleged offence.
CRIMINAL LAW-PRACTISE & PROCEDURE-When a defendant gives an unsworn statement from the dock that statement should be considered as it is material evidence but has less weight to be attached to it.

Held:

(1) The key State witness gave generally credible evidence of seeing the defendant damage the fibro wall of the verandah of a dwelling house belonging to the Jant Company.

(2) The accused was not a convincing witness as his evidence was unsworn from the dock and it shed no light on the ownership of the house in issue and moreover, his demeanor, in the witness box was not convincing.

(3) The other defense witness gave sworn evidence that was detrimental to the cause of the defendant.

(5) The Ct was satisfied beyond reasonable doubt that the defendant damaged the fibro wall of a dwelling house belonging to the Jant Company.

(6) The defendant was convicted of the charge.

Case Cited:

SCR No.1 of 1980: Re s.22A (b) of the Police Offences Act (Papua )[1981] PNGLR 28.
State v Amoko-Amoko [1981] PNGLR 373
Garitau Bonu & Rosana Bonu v The State (1997) SC528.
State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (16/10/01) N2298.

Trial

This was the trial of a defendant charged with damaging property.

Counsel

Senior Constable David Bel, for the Police
Defendant in person.

DECISION ON VERDICT

1. Kaumi.J: Introduction: The defendant pleaded not guilty to one count of damaging property, contrary to sect. 47 (1) of the Summary Offences Act and raised the issue of ownership of the property. Hence, a trial was conducted to determine the issue of ownership of the property which was the threshold issue pertinent to the outcome of the case. The trial was held on the 27/07/09 and 6/08/09 October 2006.

BACKGROUND

2. The incident giving rise to the charge took place at the Jant Company base camp, at Mawan in the Madang Province. On 27th June 2009. The allegation is that the defendant damaged a fibro wall faced the following information:

"Raymond Victor,of Bemal village, Madang sub district, Madang Province, stands charged that he on the27th day of June 2009 at Jant Base Camp, in PNG damaged a fibro wall belonging to another person, namely Jant Company".

The information was contrary to Section 47 (1) of the Summary Offences Act.

3. The defendant was present throughout the trial.

THE POLICE’S CASE

4. The Police called two witnesses to give oral evidence.

5. Table 1 lists and describes the Police witnesses in the order that they were called and indicates the days and dates of the trial on which they gave evidence.

TABLE 1 WITNESSES CALLED BY THE STATE
NO NAME DESCRIPTION DAY DATE 2006

1 KALEP KUETA Security Guard 1 27th July

2 NAUS DABON PR Officer &Station Manager 2 06th August

6. The first witness for the prosecution was Kalep Kueta. 

7. In Examination-in chief, he stated that he was a security guard and identified the defendant.

8. He recalled that at 9:00 pm on Saturday the 27/06/09 he was at the Jant Base camp area. 

9. He saw the defendant break the fibro wall on the verandah of the house.

10. That the dwelling house was uninhabited and belonged to the Jant Company.

11. That he was 45 metres away from the defendant when he committed the offence (witness indicated distance from witness box in Court room 1 to a mango tree outside the fence of the Court premises – a distance estimated to be 45 metres).

12. The defendant came with other boys and they were all drunk.

13. He said he saw the defendant with his eyes breaking the fibro wall with his hand.

14. That the house that the defendant damaged on that day and time belonged to the Jant Company and was situated in the company area.

15. In cross examination he said that the house was allocated to the defendant to live in when he had worked for the Jant Company.

16. That the defendant got the fibro he had broken from another damaged company house and put it up as a wall on the verandah.

17. That the fibro that the defendant had damaged was not big.

18. That the offence took place at night.

19. There was no re- examination.

20. In response to questions by the Court the witness said that the Jant Company owned the house whose fibro walling the defendant had damaged.

21. That he knew this to be a fact because he worked there as a Security Guard.

22. There were no questions arising from the answers to the questions by the Court by Prosecutions or the defendant.

23. That ended Kalep Kueta’s evidence.

24. The second witness for the State was Naus Dobon

25. In Examination in chief he said he was the Public Relations officer and Station Manager for the Jant Company in Madang.

26. That he lived at the Jant Company Station at Mawan and recognized the defendant.

27. He recalled 9:00 pm on the 27/06/09 at Jant Company Base camp at Mawan.

28. That the defendant was very drunk and came into the company’s station and damaged a company house. He broke a wall in the house he used to live in when he was employed by the company over a problem he had.

29. He should have approached the company to sort out his problem.

30. When The Jant Company employs people it allocates a company house for them to live in.

31. That he (witness) had been employed by Jant Company for 9 years.

32. That the said house was located on State Land which the company had leased .

33. That the defendant was no longer employed by the Jant Company.

34. There was no cross examination of this witness by the defendant nor was there any re-examination. 

35. That ended Naus Dobon’s evidence and the state’s case was closed.

THE DEFENSE CASE

Outline

36. The defendant called one witness who sworn oral evidence. No exhibits were adduced.

Oral Evidence

37. Table 2 lists and describes the defense witnesses in the order that they were called and indicates the days and dates of the trial on which they gave evidence.

Table 3 WITNESSES CALLED BY THE DEFENDANT
NO NAME DESCRIPTION DAY DATE (2006)

1. RAYMOND VICTOR Accused 2 6th August

2. ALFRED LUKE Friend of accused 2 6th August

38. The first defense witness was the Acc. who chose to make an unsworn statement from the dock. A para phrased summary of what he said is as follows:-

39. That he was drunk and had some problems and had come to the Police at that time but they were not thereto support his father’s problem about his car being stoned and damaged.

40. So he got angry and came and broke the fibro wall on the verandah of the house which he himself had erected.

41. That ended the accused’s unsworn evidence.

42. The second defence witness was Alfred Luke. In examination- in chief he said he saw the defendant break the fibro wall and went stopped him and took him home.

43. There was no cross examination.

44. Neither was there any re-examination. 

45. That ended Alfred Luke’s evidence and the defendant’s case was closed.

SUBMISSION BY THE DEFENDANT

46. The defendant did not make any final submissions when invited by the Court to do so.

SUBMISSION BY THE STATE

47. Snr. Const Bel left the verdict to the discretion of the Court.

THE LAW: ELEMENTS OF THE OFFENCE

48. The prosecution must prove that – 

(1) the defendant damaged property belonging to another person;

(2) that the defendant did not have any reasonable excuse when he damaged the property.

DISCUSSION OF ELEMENTS OF THE OFFENCE

49. The defendant has been charged with damage to property under Section 47 (1) of the Summary Offences Act, which states:-

(1). In this section, "property " includes any personal property, house or other building, garden, crop, tree, fence, road, bridge, animal, reptile bird or fish.

(2). A person who without reasonable excuse destroys damages or injures any property belonging to another person is guilty of an offence.

Penalty Clause: A fine not exceeding K400.00 or imprisonment to a term not exceeding two years.

50. It is the Police’s case that the accused without reasonable excuse damaged a fibro wall of a house belonging to the Jant Company. It is therefore has the onus of the proving beyond reasonable doubt that:-

The defendant had no reasonable excuse when he damaged the fibro wall.

ASSESMENT OF EVIDENCE

51. The following approach will be taken:

a. I will address the standard of proof

b. The non – contentious facts will be laid out.

c. I will asses the credibility of the different pieces of evidence that have been adduced.

STANDARD OF PROOF

52. This is a criminal trial for damage to property and in reaching a verdict it is not a simple matter of deciding which witness to believe. The defendant can’t be convicted of damaging property or any other offence only on the basis of suspicion or belief on the tribunal of fact (the Court) that the accused damaged the property.

53. The court’s task is, rather to determine, having weighed all the evidence and considered whether there are reasonable grounds for believing that the defendant damaged the property whose evidence is to be believed whether it is satisfied to the required criminal standard of proof- beyond reasonable doubt that each element of the offence exists.

54. So the first question to ask therefore is whether the prosecution has discharged the onus of proving beyond reasonable doubt that the defendant damaged the property in circumstances where he did not have reasonable excuse to do so to property of another person.

55. It is settled law that the State has the onus of establishing the charge against the defendants on the required standard of proof, beyond reasonable doubt. This is particularly pertinent to the essential elements of the offence. The law requires the prosecution in every criminal case to establish each of the elements constituting an offence beyond any reasonable doubt to secure a guilty verdict and conviction. The Supreme Court in SCR No 1 of 1980: Re s.22A (b) of the Police Offences Act (Papua) (1) [1981] PNGLR 28 at page 34, Greville Smith J made this clear in the terms:

The general rule is that in criminal case it is for the prosecutor to prove, and to prove beyond reasonable doubt, every element of the alleged offence…The rule applies equally to negative elements as well as, for instance, absence of consent in cases of rape. Accordingly the Crown must prove every fact, whether affirmative, or negative, which forms an indictment of the offence. 

56. The Supreme Court judgment in Garitau Bonu and Rosana Bonu v The State (2) (1997) SC 528 applied the rule that in the assessment of witnesses and or their evidence in any case, logic and common sense usually played a major part. This as, the State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (3) (16/10/01) N 2298.

57. So the question to ask in the first instance is whether the prosecution has discharged the onus of proving beyond reasonable doubt that the defendant damaged the property without reasonable excuse.

NON CONTENTIOUS FACTS

58. The Jant Company’s base camp was situated at Mawan, Madang.

59. The defendant was drunk at the material time.

60. That he had an issue with the Mawan police.

61. That he smashed the fibro wall of the verandah of a dwelling house located on the premises of the Jant Company base camp at Mawan.

CREDIBILITY OF EVIDENCE.

62. Oral evidence for the Police

63. Police witness No. 1- I thought he was generally credible witness, for these reasons:

his demeanor in the witness box was that of a truthful witness.

his evidence was brief and specific and he didn’t attempt to embellish the story.

his evidence and its believability stood the test of cross examination.

64. Police witness No 2.I thought he was a generally credible witness, for these reasons:

his demeanor in the witness box was that of a truthful witness.

his evidence was brief and specific and-he didn’t attempt to embellish the story.

His evidence was not vague & he didn’t change his story:

The credibility of his evidence and its believability was not tested by cross examination.

65. He didn’t materially contradict himself when giving evidence.

Oral evidence for the defence

66. The Court explained the options of giving evidence and the consequences for each of them that were opened to them in terms of remaining silent or giving evidence on oath and call any other evidence they may have and or give evidence from the dock.

67. In spite of the above the defendant elected to give an unsworn statement from the dock.

68. The law is clear, when an accused person given an unsworn statement from the dock that statement should be considered but has less weight has to be attached to it. In the State v Amoko Amoko (4) (1981) PNGLR 373, Pratt J did just that and expressed it in these terms:

"He (the accused) person 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 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."

69. The defendant right thru out the trial sat in the dock with a smirk on his face and it was only after allocatus was being administered to him that the expression on his face took on a more somber look, most probably after it dawned upon him the full implications of the predicament he was in. His demeanor in the witness box did not convince me at all that he was a truthful or convincing witness.

70. The defendant, Raymond Victor. I thought he was not clearly a reliable witness for these above reasons:

71. Though he exercised his right to make an unsworn statement from the dock, this statement of his did not convincingly explain how he came to be an owner of the house situated in the Jant Company premises as he claimed.

72. Going by the principle stated in State v Amoko Amoko (5), I place little weight on the accussed’s unsworn statement from the dock. This statement was not subject to the test of cross examination. It would thus, be unfair to the state for this Court to give any more weight than that, given that the Police witness were subjected to cross examination and the defendant was not cross examined. I do not reject the defendant’s unsworn statement as it is material evidence but due to its nature what it does is to strengthen the Police case.

73. This means I must and I do give more weight to the Police’s evidence, which is as I have indicated above, as generally credible.

74. Defence witness No 2 was Alfred Luke. I thought he was a generally credible witness for these reasons;

his demeanor was not of someone who was obviously lying;

his evidence was short and brief.

that he told the Court only he saw the defendant break the fibro wall then he went and stopped him and took him home. He did not embellish the story.

his evidence was detrimental to the cause of the defendant.

Summary

75. The key Police witness, Kalep Kueta gave incredible evidence, generally corroborated by second Police witness and specifically corroborated on the issue of ownership of the house. There were no material inconsistencies between the evidence of each of the witnesses.

76. The defence witnesses were not reliable.

THE DAMAGE OF THE FIBRO WALL: WAS THE ACCUSED INVOLVED?

78. The evidence against him is:-

Kalep Kueta gave generally credible evidence that he was an eye witness and he saw the defendant break the fibro wall with his hand.

Naus Dobon gave clear and convincing evidence that he saw defendant break the fibro wall on the verandah of a house owned by the Jant Company at its Mawan Base Camp.

The defendant admitted in his unsworn statement to breaking the fibro wall and gave unconvincing statement of the ownership of the said house.

The defendant’s witness Alfred Luke affirmed on oath of seeing the defendant breaking the fibro wall before pulling him home. He did not say anything about the ownership of that house.

79. Therefore there is sufficient evidence on which to conclude that the defendant without reasonable excuse damaged the fibro wall of a house belonging to the Jant Company. 

80. I remind myself, again, of the onus on the prosecution to prove its case beyond reasonable doubt. Much depends on the assessment of Kalep Kueta’s evidence- which I find credible-and that of Naus Dobon’s evidence, which I consider significant. 

DETERMINATION OF THE CHARGE

81. I reiterate that the offence of damaging property for the purpose of the present case, two elements:

1. the defendant damaged property belonging to another person

2. that at that time the defendant did not have a reasonable excuse

82. I am satisfied beyond reasonable doubt as to elements No.1 & 2 for the following reasons;

the prosecution presented enough evidence to prove that it was the defendant who without reasonable excuse damaged a fibro wall of the verandah of a dwelling house belonging to the Jant Company.

the defendant did not provide any evidence at all proving his ownership of the said dwelling house.

VERDICT

83. I find the defendant, Raymond Victor is 

a. guilty of damaging property and convict him accordingly 

Verdict accordingly.

Police Prosecution for Police
Defendant in person

__________________________
1. [1981] PNGLR 28.
2. (1997) SC528.
3. (16/10/01) N2298
4. [1981] PNGLR 373
5. Supra note 4