national court of justice

THE STATE

v

THOMAS LUI

kokopo: lenalia j

3, 10 & 17 June; 7 & 20 September 2004

Criminal Law – Charges of common assaults, armed robbery, willful damage and arson – Not guilty pleas – Criminal Code ss.322, 332, 335, 386, 436 and 444 (1), Ch. No. 262.

Criminal Law – Trial – Evidence – Criminal Liability – Abetting and aiding – Presence and willful encouragement – What constitutes aiding and abetting – Criminal Code s. 7 (1)(a)(b) and (c).

Criminal Law – Trial Evidence – Prior inconsistent statements – Crucial weapon – The rule – Finding of not guilty.

Facts
The facts of this case relates to an incident on 20 October 2002, on which the state alleged that at Waramalio Vunapalading Settlement blocks, the accused was amongst a group of people which destroyed, burnt and carried away certain properties referred to in the fourteen (14) charges in the body of indictment. The state's allegations further state that during the course of the destruction the accused or other persons committed acts of assaults upon four separate victims.

Held

1.	Mere presence on the scene where a crime is committed in itself does not constitute or is not sufficient to make a person an aider and abettor. Further the accused's presence on the scene of the crime alone is not sufficient to give encouragement to commit crime.

2.	On the evidence the State has failed to prove the allegations against the accused.

3.	Verdict of not guilty entered and the accused is discharged.

Papua New Guinea cases cited
Agiru Aieni v Paul T Tohian [1978] PNGLR 37.
Omowo Yirihim v The State [1976] PNGLR 188.
Porewas Wani v The State [1979] PNGLR 593.
R v Opu Anuma (1974) No. 801.
R v William Taupa Tovarula [1973] PNGLR 140.
The State v Albert Ugunnie, Martin Tauma and Mathew David Moroua [1988-89] PNGLR 101.
The State v John Wali & Pengas Rakan [1978] PNGLR 51.
The State v Laiam Kila and Meiri Gomosi [1977] PNGLR 470.
The State v Witnasep Binengim [1975] PNGLR 95.

Other cases cited
R v Coney (1882) 8 Q.B.D

Counsel
L. Rangan, for the state.
M. Peter, for the accused.

20 September 2004 

Lenalia j. The accused pleaded not guilty to fourteen (14) charges contained in one indictment consisting of four (4) counts of unlawful wounding and similar acts, one (1) count of common assault, two (2) counts of armed robberies, three (3) counts of arson and four (4) counts of malicious injuries. Such offences were committed contrary to s.322, 335, 386, 436 and 444 (1) of the Criminal Code.

Evidence

Evidence called by the State came from six witnesses who came to Court and gave oral evidence. Fifteen pieces of documentary evidence were tendered by consent of the defence counsel and they are marked as Exibits "A" to "L". It is not necessary for me to mention them at this stage, as I shall make reference to some of them later in this decison.
The State's case is that on Sunday 20 October 2002, between 10 and 11 am, the accused and his relatives went up to Waramailo blocks near Vunapalading and terrorized block holders and thereafter, they destroyed and damaged certain properties such as houses, economic trees, household goods and such other properties as mentioned in the indictment. In the course of the raid, properties were carried away and the accused and his relatives were alleged to have assaulted a number of victims.

The State's evidence establishes that prior to the commission of these offences, the State witnesses and the accused had had unresolved problems relating to two earlier incidents where two or three of the State's witnesses were responsible for destroying the accused's cocoa "buying point" near his block on that same location. That on the first instance, the accused buying point was burnt in the month of September 2002. 

Then after the buying point had been rebuilt the same group of people came on to the premises on the afternoon of 18th of October of that year and destroyed the accused's buying point for yet the second time. The two State witnesses who were said to have engaged in the destruction of the accused sheds are Elias Kubak and Tila Aiape (2nd and 3rd State's witnesses).

The first State's witness, Leo Wauik testified that he was on the scene at Waramailo and witnessed the destruction caused to a number of houses and properties including his own. Leo's evidence shows that, the accused was not on his block on the night of the 18 and 19 October 2002. Leo said, he gave some money to the accused's brother in law Ben Tokau to buy fuel so Ben could pick up the accused at Raburbur village on the North Coast Road so they could settle their unresolved problems about the burning of the accused buying point and the latest case on which the newly rebuilt buying point had been destroyed.

On the occasion on the scene that morning, Leo said he was in Magareth's premises with a number of his family members when the trouble started. Whilst there, he heard a vehicle stop near his block. Not knowing whose vehicle it was, he wanted to find out and walked up toward his residence.

Leo said, on his way up to his block, he met the accused who counselled him to take care lest he be injured in the commotion. But by the time he reached his house, he found out that a number of his household items were missing and the flowerpots were damaged. He then sat in his house until the police came.

The second State witness, Elias Kubak, originally from Rapolo village situated on the Balanataman Local Level Government, gave similar evidence as Leo and other State witnesses saying that being a Sunday morning, he was in his parents' residence when he heard noises and shouts coming from either Leo Wauik or Dr. Kalimet's blocks.

Elias said, he saw people running here and there destroying properties. He decided to take refuge under his father's cocoa trees. He ran a distance away from their house and stood up to wait and see what would happen next. The people who carried out the destruction came to his parents' block and started to cut down economic plants including vanilla plantings, pots, cups, plates, forks and spoons were totally destroyed.

Whilst hiding away, he witnessed his father being assaulted and toppled to the ground. He came out from his hiding place and assisted his father and took him to their house.

A common factor about both the State witnesses and the accused and his witnesses is that they all reside and own blocks at Waramailo up past Vudal and near the Vunapalading Settlement. Witness Tila Aiape come from Tari in Southern Highlands. He said he resides at Waramailo in Dr. Kalimet's block. Tila said he witnessed the accused and his mob doing the destruction.

Tila's evidence show that, the accused was in the mids of the mob that caused great destruction and one of the men in the group came to Dr. Kalimet's fermentory with a plastic of petrol and poured it on that structure and thereafter, set fire to it. Since, the residence was connected somehow to the fermentory, the residence was also destroyed by fire. Tila could not do anything to stop the fire because he feared he might be attacked.

The fourth witness was Maria Davids. Her evidence was somewhat confusing. When asked in chief if she know the accused, although she pointed to the accused on the dock, she referred to the accused as the accused's father who was the one who carried out the destruction and further that the accused's father owns a block at Waramailo. It seems to this Court that these witnesses might not know the accused well and I must reject some parts of her evidence touching identification of the accused.

Despite that part of her evidence, Maria named some of the men whom she identified on the date when the offences were committed. They include Sam, ToMimi, ToMateo, Martin, ToPalam, Kavanamur and Melchior. Quite interestingly, none of the people mentioned by this witness was arrested and nor even charged by the police. Maria's evidence shows that her residence was one of the structures burnt that day.

Maria further said, in her block, her cocoa and coconut trees were discriminately cut, her toilet and kitchen were destroyed and all her cooking utensils were all damaged. Maria's evidence also reveal that her Solar Dryer was also damaged and some properties were carried away.

First Constable Jacob Eki was called to confirm that he conducted a record of interview with the accused. Statements of Sergeant John Kiserae was tendered by consent and accepted as part of the State's evidence, (see Ex. "J").

Saihen Lomas was the last witness. He works for the PNG BALSA Company in this Province. He owns a block at Waramailo and on the day of these offences he was constructing a house for his mother in-law (4th witness) when the men came to cause destruction to houses and properties mentioned by other witnesses. This witness too said he saw the accused on the scene.

Defence case

The defence evidence denies presence of the accused from the outset of the enterprise. The accused's testimony reveals, however, that he arrived on the scene after the destruction had already commenced. A month before the incident of 20 October 2002. (about 23.9.02) the accused and other people were around his buying point when he locked it up after putting some wet cocoa beans in- side and walked away to his house. The evidence shows the accused's house is not far from where his buying point was. 

Thomas' evidence is that by late afternoon about 6.30 pm a white Izuzu vehicle came to his buying point and he and others saw the sons of Magareth and Maria David and Tila get out from that car, they picked up dry grass, put it under his structure and set fire to it. His evidence is that since it was getting dark, he could not do anything since, the man who set fire to his buying point, were all drunk, including their driver.

Then after the structure was burnt, it was rebuilt with the aid of block holders surrounding his block as the accused buys wet beans from them. Thomas' evidence shows somehow that after the new structure had been built, the same group of people with an elderly man came to damage his property the second time.

The defence evidence shows that despite his complaint being laid at the police station in Keravat, the policeman whom he laid the complaint with said, there was no vehicle to immediately attend to his report. He was assured that police would go to his block to investigate. Such assurances were never fulfilled resulting in the bigger problem being created resulting in these charges.

The accused's evidence also show that not only he was affected by the destruction caused to his buying point, but one other complainant in the same locality whose property was also damaged reported to the police. Asked in chief why the two State witnesses and the two others should set fire to his buying point, Thomas said, he had been involved in reporting Tila Aipe and Elias Kubak to police for the use of illicit drugs.

Ben ToKau, the accused's brother in law confirmed in his evidence that he was given K20.00 by the first State witness (Leo Wauik) on the evening of 19 October 2002, to buy fuel for his vehicle to pick up the accused in his village. Ben said the reason he was sent to pick the accused was because, Leo Wauik being a committee member wanted the block holders to settle an outstanding trouble on which some men had destroyed the accused buying point.

Ben did not go that afternoon as he feared being held up on his way to the accused village at Raburbur on the inland of North Coast. He instead went on Sunday morning, 20 October . After picking up the accused, he returned to Waramailo.

This witness noted on their arrival, that, on the scene were three vehicles. One was under the house where he parked to drop off the accused and two other vehicles facing the opposite direction. Ben's testimony shows that as soon as he parked his vehicle, a man by the name of Saihen came to him and requested him to take him (Saihen) to the Keravat Police Station and the Keravat Health Centre because he was injured in the course of the destruction.

Ben further testified that he was on the scene for only a short time, but as the accused was getting off his vehicle, this witness said he saw that people were running here and there. This in my view confirms the defence version that the accused was not on the scene when the destruction began.

Soon after the accused got off, Saihen got onto Ben's vehicle and Ben drove off to Keravat Police Station where he laid the complaint. On his vehicle that morning, was only the accused and Ben's own family members.

Neris Kapa was the last defence witness. Her evidence is interesting in the sense that not only her evidence supports the defence version of an outstanding dispute between the parties, but also supports that of the State that there was in fact an unresolved dispute between the accused and Margaret and Maria's sons and Tila Aiape. Two of those persons were called by the State as witnesses. They are Elias Kubak and Tila Aiape.

On her evidence, Neris named the people who were responsible for destroying the accused buying point on the second occasion. She named them as Elias Kubak, Tila Aiope, Michael David, who is Maria David's son, and an elderly person by the name of Seni. Neris was with her husband and their children on the night of the 18 October 2002, when by 8 pm, the family heard noises at the accused buying point.

She asked her husband to accompany her to the place where the noises were coming from to find out what was being done to the accused's buying point. With the aid of a torch providing light, they walked down to the road where the accused buying point was, she shown the torch at those men and saw that the men whom she had named were destroying the accused's newly built buying point.

Neris and her husband spoke to Elias, Tila, Michael and Seni asking them why they were destroying the structure and what had the buying point done to them rather than them taking up any grudges with the owner of the buying point. When Neris was talking to the three men, they did not reply to her. Her evidence is that the structure was totally destroyed with roofing iron being even carried away. The defence case rested here.

Submissions

For the defence, Mr. Peter submitted that the State had not proven their case "beyond reasonable doubt". That part of his submission is based on the defence version that the State had not proven the fact that the accused had encouraged and mobilized those who carried out the destruction on 20 October 2002.

Part of Mr. Peter's submission touches the previous statements made by all State witnesses. He submitted that the State witnesses gave inconsistent evidence. He cited a number of cases which the Court shall refer to later.

Mr. Rangan of counsel for the State submitted on the other hand that the accused is caught by s.7 of the Criminal Code for participating, aiding and abetting in the offences charged. That the words "kwak kwak" in the Tolai language implies and connotes encouragement. He urged the Court to infer that because the accused lead the group that morning, he must have been involved in the initial stages of the planning of the destruction.

Law

The law on parties to offences is set out in s.7 (1)(2)(3) and (4) of the Criminal Code. For convenience, I set out the above section in full hereunder.

"When an offence is committed each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it:-

(a)	every person who actually does the act or makes the omission that constitutes the offence, and

(b)	every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and 

(c)	every person who aids another person in committing the offence; and

(d)	every person who counsels or procures any other person to commit the offence.

(2)	In Subsection (1)(d), the person may be charged with –

(a)	committing the offence; or

(b)	counseling or procuring its commission.

(3)	A conviction of counseling or procuring the commission of an offence entails the same consequences in all respects as conviction of committing the offence.

(4)	Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is –

(a)	guilty of an offence of the same kind; and

(b)	liable to the same punishment, as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission".

From the above provision and the case law on the issue of participating, aiding and abetting, two distinct factors are clear. To be caught under s.7 of the Code, the State must prove that the presence of an accused is willed or intended and not accidental. Sometimes, a person may be present on the scene purposely and where he had not offered any dissent to the commission of an offence, it has been said that such inaction may afford cogent evidence that an accused willfully encouraged the commission of an offence: R v Tovarula [1973] PNGLR 140.

The second aspect of the above is that to constitute an aider or abettor, some active and physical words or action with the intention to instigate a principal or principals must be established by the State: R v Coney (1882) 8 Q.B.D 534. In Porewa Wani v The State [1979] PNGLR 593 in which case the above common law case was quoted, the Supreme Court said at 597:

"It is well established that mere presence at the scene of a crime is not enough to constitute aiding. However, presence and willful encouragement are enough.

In the well known prize-fight case of R. v Coney (1882) 8 Q.B.D 534), Hawkins J. said: "In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not".

That dictum was applied by the Courts-Maritial Appeal Court in R. v Clarkson, where the court said:

"It is not enough, then, that the presence of the accused has, in fact, given encouragement. It must be proved that the accused intended to give encouragement; that he willfully encourage."

In R. v William Taupa Tovarula (1973) PNGLR 140 Minogue C.J. said:

"However, encouragement in one form or another is a minimal requirement before an accused person may properly be convicted as a principal in the second degree of any crime—see R. v Allan per Edmund Davies I..J."

There is no doubt, the accused was physically on the scene. That fact is well established by both the State and defence evidence. The first issue however is, can the accused's presence be sufficient to constitute aiding and abetting and if so, what did the accused do on his part to qualify under s.7 of the Code and the authorities I have referred to.

The State's evidence establishes that, the reason why the accused was on the scene that day was because the first State witness (Leo Wauik) had sent for him to go to the block to settle an outstanding dispute between the accused and a number of the State witnesses. This version is supported by the defence evidence.

The second factor is the issue of credibility of the State's witnesses as well as that of the defence. To start with, I accept on behalf of the defence, the fact that, the accused got to the scene after the destruction had been commenced. The Court cannot properly identify with clarity at what stage of the destruction did the accused arrive on the scene with his brother in-law.

The State's evidence establishes that the destruction to houses and properties commenced at Leo Wauik's block, then to Dr. Kalimet's then, if I understand the evidence correctly, to Magareth, then to Maria David.

Witness Leo Wauik testified that he was in Magareth's residence when the destruction commenced. He ran from there to his block and on the way he met the accused. No distance was put to estimate the distance between Magareth's and Leo's blocks. As well Leo's evidence is not clear as to whose vehicle did he hear on the first instance. Was it the accused's brother in-law or those two other vehicles which were there earlier?

By the time the accused arrived on the scene, Saihen Loma's evidence establishes that, as soon as Ben Tokau's vehicle stopped, Saihen immediately approached Ben requesting that he be taken to Keravat Police Station. Note here, that witness Saihen Lomas was in Maria David's house, so in order for him to get to Leo's premises it might have taken him some time, as well as it can be inferred by the Court, that, any destruction done before the arrival of the accused and his brother in-law on the scene was carried out independently on the will and intention of those who carried out the raid on those premises mentioned in the evidence.

Mere presence on the scene where an offence is committed in itself does not constitute or is not sufficient to make a person an aider and abettor: R v Opu Anuma (1974) No. 801. It is not even sufficient that the presence of an accused has given encouragement. The State has the onus of proving that the accused intended to give encouragement and it must be proved that the accused actually encouraged and had had an intention to encourage. See Agiru Aieni v Paul T Tohian [1978] PNGLR. 37.

The circumstances and evidence in this case cannot come under the decision in The State v Albert Ugunnie, Martin Tauma and Mathew David Moroua [1988-89] PNGLR. 101, a charge of mutiny, where it was said that although the accuseds were not on duty, their presence at the protest meetings was deliberate and willed, and their presence at those meetings aided and encouraged those who were supposed to be on duty. Their presence was held to have constituted mutiny.

The question of aiding and abetting cannot be accepted for purposes of s. 7 (1)(c) where a person merely presence himself or herself on the scene and does nothing for purposes of aiding in the commission of an offence: The State v Witnasep Binengim [1975] PNGLR. 95.

On the issue of previous statements made by state witnesses inconsistent with what they said in evidence, the Court must say that the use of previous statements made by the witness on an earlier occasion inconsistent with his or her evidence is a crucial weapon available for purposes of impeaching the witness.

On the evidence before me in this trial, each State witness said they saw the accused and heard him said "kwak kwak" and a number of those witnesses said too that the accused said "pait ia" - in the Kuanua language it means "do it" or "make it". According to the defenition of the words "kwak kwak", allegedly said or shouted by the accused, Maria David said in her evidence that it means encouragement to someone to do something.

Obviously the words "kwak kwak" and "pait ia pait ia" are not found in the statements made by the State witnesses whose statements were tendered by consent. See Exhibits "E: "F1" and "F2" "G1" & "G2", "I" and Ex. "L". I find therefore that the terms used by the State witness such as "kwak kwak" and "pait ia pait ia" were recent concoctions by State witnesses.

The reason why the accused came there or to the scene that morning was to settle their unresolved problems as he was sent for by Committee Leo Wauik. This version is supported by both the State and Defence evidence. There is no evidence to prove that the accused was on the scene to carry out the destruction of properties revealed by all evidence.

At least if there were some evidence to suggest to this Court that the accused somehow was involved in planning or encouraging the commission of the crimes charged, the Court could infer that, but as it stands, I cannot even infer if the accused was involved in the planning. No doubt the accused was on the scene but the reason for his presence there was to settle grudges between him and those who burnt and destroyed his buying points.

Due to the above reasons, I return a verdict of not guilty on all charges. These cases are dismissed and the accused shall be discharged with orders that he be returned his bail monies.

Lawyer for the State: The Public Prosecutor.
Lawyer for the accused: The Public Solicitor.