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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NOS 699 OF 2006 &496 OF 2007
THE STATE
V
JUNIOR LEO MAILEN & NATHAN MAILEN
Kimbe: Cannings J
2007: 7, 8, 13 November
CRIMINAL LAW – trial – multiple charges, multiple accused – five charges, two accused – obtaining money by false pretence: Criminal Code, Section 404(1) – armed robbery: Section 386(1) and (2)(a), (b) and (c) – doing grievous bodily harm: Section 319 – unlawful compensation demand: Section 390A(a) and (b)(i).
Two brothers were indicted on five charges. It was the State's case that they were involved in a series of crimes committed over a period of four months against their neighbours. Count 1 on the indictment (obtaining money by false pretence) charged only the first co-accused. Counts 2 to 5 charged the co-accused jointly. Count 2 was an armed robbery charge and related to a separate incident. Counts 3, 4 and 5 related to another incident and charged them with armed robbery, grievous bodily harm and an unlawful compensation demand. They pleaded not guilty to all charges on the indictment and a trial was conducted.
Held:
(1) As to count 1 – obtaining money by false pretence – the first co-accused was found not guilty.
(2) As to count 2 – armed robbery – both co-accused were found not guilty.
(3) As to count 3 – armed robbery – both co-accused were found guilty.
(4) As to count 4 – grievous bodily harm – the first co-accused was found guilty; the second co-accused was found not guilty.
(5) As to count 5 – unlawful compensation demand – both co-accused were found not guilty.
Cases cited
No cases are cited in the judgment.
TRIAL
This was the trial of two accused charged, singularly or jointly, with five offences.
Counsel
F Popeu, for the State
B Tanewan, for the accused
13th November, 2011
1. CANNINGS J: Two brothers are before the court charged with five offences concerning three incidents at Sarakolok oil palm settlement near Kimbe over a four month period from November 2003 to March 2004. Junior Leo Mailen (the older brother) and Nathan Mailen come from Ilipaim in the Maprik district of East Sepik Province but they have lived most of their lives at Sarakolok. They are aged in their 20s. The victims of their alleged crimes (the complainants) come from Derin village in the Kabwum district of Morobe Province. They are all related and live at Block Nos 800 and 801, Sarakolok.
First incident
2. Count 1 on the indictment (obtaining money by false pretence) charges only the first co-accused, Junior Leo Mailen, over an alleged incident in November 2003. The complainant is Kero Wando. Kero's haus boi was burned down on 18 November 2003 and it is the State's case that Junior later approached Kero and told him that he would tell him who had done it if Kero gave him K80.00. Kero handed over K80.00 but Junior never revealed who did it. The charge is laid under Section 404 of the Criminal Code.
3. Counts 2 to 5 charge the two co-accused jointly.
Second incident
4. Count 2 is an armed robbery charge and relates to an alleged incident on 6 January 2004. Amos Fori is the complainant. Junior and Nathan are alleged to have joined with their in-law, David Mabo, and entered block Nos 800 and 801, drunk, angry and abusive. They were demanding compensation from the Morobeans as they were reported to the police as suspects in the burning down of Kero Wando's haus boi. One of the Morobeans cut David on his ear with a bushknife. He, Junior and Nathan withdrew but came back later with reinforcements. They raided Amos's property, chased out Amos and his family, looted the house and stole three pigs and other properties worth more than K12,000.00. The charge is laid under Section 386(1) and (2)(a), (b) and (c) of the Criminal Code.
Third incident
5. Counts 3, 4 and 5 relate to an incident on the night of 25 March 2004. Count 3 charges both co-accused with armed robbery (where the complainant is Rau Kiniong). Junior and Nathan are again alleged to have joined with David Mabo, while drunk, and entered block Nos 800 and 801. They raided Rau Kiniong's house, threatened Rau and her daughters with violence and stole K200.00 cash. The charge is laid under Section 386(1) and (2)(a), (b) and (c) of the Criminal Code.
6. Count 4 charges them with doing grievous bodily harm to Kellina Kero. It is alleged that while they were causing the trouble at Rau Kiniong's house, Kellina, who lives in a neighbouring house, saw them and tried to sneak away to alert the community authorities to what was happening. Junior and Nathan saw her leaving, intercepted her and one of them swung a bushknife at her, badly lacerating her fingers. The charge is laid under Section 319 of the Criminal Code.
7. Count 5 charges them with an unlawful compensation demand, made on the same night, against Kero Wando. It is alleged that in making their demand they damaged Kero's properties. The charge is laid under Section 390A(a) and (b)(i) of the Criminal Code.
8. The complainants are related as follows: Kero Wando and Amos Fori are brothers and Rau Kiniong is their sister. Kellina Kero is Kero Wando's wife and Amos and Rau's sister-in-law.
9. Junior and Nathan pleaded not guilty to all charges on the indictment and a trial was conducted.
EVIDENCE FOR THE STATE
10. Five exhibits were admitted into evidence and five witnesses gave oral evidence.
THE EXHIBITS
11. Exhibit A is a confessional statement by Junior Leo Mailen dated 7 April 2004. He states that he adopted one of the complainant's lain, a boy called Duki Fori, in 2003. Duki stole some betel nut from his grandfather, Amos Fori, which caused a problem. One of Fori's boys Muge, injured Duki. Duki came to Junior to report the matter so Junior went to Amos's block to sort it out. That is when Jimmy Kero tried to chop him (Junior) but he missed and Jimmy's bushknife landed on his in-law David Mabo's ear. Junior states that he carried Mabo to the aid post and then took him to Kimbe General Hospital. When he returned to their block, he noticed that Kero's properties were destroyed. He states that it is true that on the night of 25 March 2004 he and two others got drunk and went to the Morobeans' blocks to sort out their problems. Amos told them (Junior, Nathan and Mabo) that they would sort out the problem during settlers' payday. So they returned to their place and that is when they heard stones being thrown on the roof of the Morobeans' houses. This was done by other drunkards, not by them. They have since been compensated by the Morobeans. Junior received K300.00. Nathan received K400.00. Mabo received K1,000.00. He denied wounding Kellina's arm.
12. Exhibit B is Junior's record of interview dated 24 May 2004. He denies receiving K80.00 from Kero Wando. He denies storming Amos's block on 6 January 2004. He denied involvement in an incident on 5 March 2004 in which Bakrek Gelong's block, No 948, was raided. Only Nathan was involved in that incident. As to the injury to Mabo, Amos and Kero gave him K300.00, Nathan got K400.00 and Mabo received K1,000.00. That was after mediation.
13. Exhibit C is Nathan's record of interview dated 25 May 2005. He admitted involvement in the incident involving Bakrek [this is the matter on which he has pleaded guilty]. As to the incident of 6 January 2004, he denied raiding Kero and Amos's blocks, destroying property and stealing pigs. The pigs were stolen by other people from Morobe, Sebastian and Ronnie. At that time David Mabo was injured and they took him to the hospital and he was given 25 stitches for his injury. Amos paid him K400.00 compensation as Amos reported him to Buluma Police and he was belted up and put in the cell before being released. Junior also received compensation because he was assaulted too. David Mabo claimed the largest amount of compensation, K1,000.00 as his ear had been injured. As for the incident of 25 March 2004, he denied destroying Amos Fori's property. He went in to block 801 and talked to Amos concerning the mediation and his promise to pay him K400.00. He denied terrorising Rau Kiniong and her daughters and stealing K200.00 from Rau.
14. Exhibit D is Nathan's confessional statement dated 6 April 2004. He says the problems with the Morobeans started when one of Kero's boys wounded a boy, Duki, who Junior looks after. Junior approached Kero's relatives and they swung a knife at Junior but it got Mabo on his ear. That incident happened in January 2004. Nathan says he was not involved in this incident but that evening the police arrived from Buluma and assaulted him and put him in the police cell for three nights. Later there was a mediation presided over by community leader Danny Mausen and it was agreed that he (Nathan), Junior and Mabo would be compensated. Some time passed but no compensation was paid so on the night of 25 March 2004 he went into Amos Fore's block to enquire about the compensation payments. It was sorted out and on 31 March 2004 Amos paid him K400.00. Junior and Mabo went with him on the night of 25 March 2005, together with two others, Steven and James, both from Galai. He does not know who exactly wounded Kellina.
15. Exhibit E is a medical report on Kellina Kero. It states that she reported to the accident and emergency unit of Kimbe General Hospital on 27 March 2004 with multiple lacerations to her right fingers. She alleged a drunkard assaulted her on the night of 26/03/04. [These dates seem to be one day out but no issue has been taken about that.] She was treated for knife wounds and given antibiotics and painkillers and her lacerations were sutured.
STATE WITNESS NO 1: KERO WANDO
16. In examination-in-chief he said that one of his big haus bois was burnt down in November 2003. He gave K80.00 to Junior who told him he would tell him what happened to the haus boi. Junior then got drunk, came back and destroyed things in their area. The incident in which Junior and the others came into Fori Amos's block and destroyed things was on 25 October 2004 [a date that bears no relation to any other dates mentioned in the evidence]. He has three houses on his block, No 800. His elder brother, Amos Fori, was living on the next block, No 801, but he has moved out because of the continuing problems with the neighbours, especially Junior Leo Mailen and Nathan Mailen. They live on block No 844 which is just across the road. When he was first asked about the incident of 25 March 2004 Kero said that he was present. He gave a detailed account of what happened, including an explanation of how his wife, Kellina, had been cut. He could recognise Junior and Nathan and their in-law, David Mabo, that night. They are not strangers. They are well-known to him. He saw them come inside the block. They were armed with bush knives and stones. They wanted money arising from the cut on Mabo's ear. But they told them to wait for the law to take its course. Kero later changed his evidence significantly, in the course of examination-in-chief. He was in the village on 25 March 2004. His village is Derin in the Kabwum District of Morobe Province. Asked why he changed his story, he said that he is not a man who talks a lot and he was just relaying the story. He could not recall when he came back from the village.
17. In cross-examination Kero confirmed that, in fact, he was in the village in Morobe Province when the incident of 25 March 2004 happened.
STATE WITNESS NO 2: JIMMY KERO
18. He is Kero Wando's brother, aged in his 20s. He has lived all his life at Block No 800, Section 2, Sarakolok. He said that somebody set fire to Kero's haus boi on 18 November 2003. Some time after that Nathan, Junior and Mabo came on to his block and there was an altercation. Nathan started swinging a knife at him so to defend himself he used his own grass knife. That is when the grass knife got Mabo on his ear. Since then they have been demanding that the Morobeans pay for his ear. That incident happened about 2.00 pm. After David's ear was injured, a bigger group came back and chased a pig and killed it, while he, Jimmy, was hiding under an oil palm tree. They also went into the house, got clothes and other things, and cut down betel nut trees and seedlings. There was a mediation and the decision was reached that the Morobeans pay compensation. But before Junior, Nathan and Mabo got their money, they cut Kero's wife's hand. Fori was afraid and gave K700.00 to Junior and Nathan. He, Jimmy, was forced to give K1,000.00 to Mabo. He gave it to the Local-Level Government President, Danny Mausen, who passed it on to Mabo. Asked in detail about the incident when a group had come into the block and chased pigs and stolen property, Jimmy said that that incident happened about 3.00 or 4.00 pm. It was on the same day as the incident in which Mabo's ear was cut. He did not see everyone in the group that came back, only Ronnie, who lives at Section 6. He, Jimmy, was lying face down when they were chasing the pig. He could see the rest of the group. He said this incident happened on 25 December 2003 [a date that bears no relation to any other dates mentioned in the evidence]. As to the incident in which Kellina's hand was cut, that happened at block No 801, Amos's block, at about 10pm. The two brothers were drunk on the road. They were swearing. David Mabo was with them. He came into the block first and told them to go away as he was sorting out the problem. But they came in and that's when Kellina was cut. Mabo called out for him when he was in the house. He was in the same house as Kero. He and Kero both stood on the veranda and they were talking to Mabo who was on the steps. He could recognise the voices of Junior and Nathan from the road. He had heard them drunk many times before and it is easy to recognise their voices. They were frightening Rau and her children and because she was scared to give Nathan K200.00. However, he did not actually see her give it to Nathan.
19. In cross-examination he said he was a fair distance away when his sister-in-law Kellina was cut and it was dark but he could still see it was Junior who did it. As to the incident in which the pig was stolen, there were two fellows, Sebastian and Ronnie, who were arrested and had to pay for the pig. Fori withdrew the charges against them after they paid for the pig.
20. In re-examination Jimmy confirmed that the pig and other properties were stolen on the evening of the day that he cut David Mabo's ear.
STATE WITNESS NO 3: RAU KINIONG
21. At about 10.00 pm on 25 March 2004 she and her two daughters were asleep in their house on block No 801. Junior, Nathan and Mabo threw stones and beer bottles onto the house. They then started cutting the timber around the house. They pushed knives through the floorboards so she and her daughters moved to one corner. Nathan was trying to get in through the door but she stood against it and blocked him. He pushed the knife in but she tucked in her stomach to avoid it. She was very afraid so she gave him K200.00 from her bilum. He got the money and swore at her as he walked away. Asked why they had come onto the block, she said "this problem had existed for some time". She knew it was the three she named as she had a lantern and they had a flashlight. They lived over the road, they are like sons to her. She could recognise their voices. On her block there are two houses; her own pus her brother Fori Amos's house. Amos was there that night but has since gone to the village. She knew it was Nathan. She called him by name and asked him to take the money and go.
22. In cross-examination Rau said that the incident on the night of 25 March 2004 was the same time when Kellina was cut on the hand. She agreed that when the knives were pushed through the floorboards she did not see the faces of whoever was doing it. But she did have a lamp and she did see their faces later. She saw Nathan's face when she gave him the money.
STATE WITNESS NO 4: DELFIA FORI
23. She lives at block 801 and is Amos Fori's niece. She was in her house on the night of 25 March 2004 with her mother, Rau Kiniong. It was about 10.00 pm and they were asleep already. Junior and Nathan were drunk. They asked for Janet. She first said that Janet was not there but then she gave them another story: she was there but she was asleep. She was very frightened. Junior and Nathan starting pushing knives through the floor boards. She and the other occupants at the house went to one corner. Her mother was so frightened she gave Nathan K200.00. They swore at them and went away. She recognised Junior and Nathan by their voices. She knows them very well. Her mother called Nathan's name and gave him the money through the hole in the wall. They usually live in harmony with Junior and Nathan's family. But when Junior and Nathan get drunk on fortnights they swear, shout, throw things and cause trouble.
24. In cross-examination Delfia said that she did not actually see them carrying the knives and stones and there were a lot of drunkards at her block on the night of 25 March 2004. There was only one knife used to push holes through the floor. She was watching as her mother gave the money to Nathan.
STATE WITNESS NO 5: KELLINA KERO
25. She has been married to Kero Wando for seven years. On the night of 25 March 2004 she and her husband were asleep. Some men came into the block, they were drunk, they broke their house and they were shouting and carrying knives. She went outside. There was a man standing there and he swung a knife at her neck. She put up her hand to defend herself and the knife cut into the fingers of her right hand. She was trying to go out to tell Danny Mausen about what was happening. Her brother in-law flashed his torch and saw that the man with the knife was Junior. She went to hospital the next morning. She said that her husband, Kero, was present. The only person in the group she saw was Junior. He was the only one standing near the house and he cut her with the knife. She knows Junior very well. Her hand is permanently injured. She cannot collect oil palm fronds anymore.
26. In cross-examination she said that there were a lot of drunkards who came into their area that night. She knew straight away that Junior and Nathan were amongst them. When she went out of the house to try and see Danny Mausen she was not carrying a lamp or a torch. The State's case was then closed.
EVIDENCE FOR THE DEFENCE
27. Both of the co-accused made unsworn statements from the dock
JUNIOR LEO MAILEN'S STATEMENT
28. All of the trouble happened on one day. He and Nathan were not involved in the incident in which Amos Fori's pigs were killed. They were others, including Ronnie and boys from Section 6, who went in on that occasion. The police got them and the properties were returned. The police took them to Buluma. He and Nathan were at the hospital when the incident of 25 March 2004 happened. They had taken Mabo to the hospital, where they met Kellina, who had been injured. They only heard from others about what had happened. When the police stopped them they did not say anything as they knew nothing about what had happened. As to Kero's claim that he gave him K80.00, Kero was lying. He did tell Kero who burnt down his haus boi but did not ask for any money and did not receive any.
NATHAN MAILEN'S STATEMENT
29. At the time of this incident he had taken his brother in-law, David Mabo, to the hospital. He does not know what happened after he came to the hospital. Mabo was put on a drip at the hospital. He stayed with him until the next morning. He saw Kellina Kero coming into the hospital with an injured hand. The people who have caused all these problems are Ronnie and Sebastian who have already been dealt with by the court.
30. The defence case was then closed.
FINDINGS OF FACT
31. It is accepted by the defence that there was an incident on the night of Thursday 25 March 2004 at block Nos 800 and 801. Rau Kiniong's house was raided. Knives were pushed through her floorboards and she was forced to give K200.00 to somebody. On the same night Kellina Kero's hand was cut by someone with a bush knife. This incident was the culmination of an ongoing dispute between the Morobeans at blocks Nos 800 and 801 and other people, largely it appears from the Sepik area, who occupied the block across the road and other blocks in the vicinity at Sarakolok. As to the sequence of events that led to the incident on the night of 25 March 2004, I find as follows. Kero Wanda's haus boi was burned down on or around 18 November 2003. No one appears to know who did it. Neither Junior nor Nathan have been charged for burning down the haus boi; though Junior is facing one charge on the present indictment for false pretences relating to this incident. Also, it appears, around this time, a problem developed because one of Kero Wando's boys had a fight with a boy called Duki, who Junior was looking after. Junior, accompanied by Nathan and Mabo, went to see Kero about this problem and ended up having a fight with Jimmy Kero. In the course of that altercation Jimmy inflicted a bad wound on Mabo's ear, requiring 25 stiches. Junior, Nathan and Mabo left the scene. A few hours later a larger group returned and, it appears, raided Amos Fori's premises. This is the raid Jimmy spoke of in his evidence. Amos's house was invaded, property was stolen and at least one pig was stolen. It is unclear who exactly was responsible for this raid. Jimmy was only able to identify one person, Ronnie, who lives at Section 6. None of the witnesses gave clear evidence as to when this incident happened. Junior and Nathan both suggested that it was on 25 March 2004 but I think that is very unlikely. It is inconsistent with the version of events they gave to the police in their records of interview and confessional statements. In those documents it appears that, after the incident in which Mabo's ear was cut, Junior and Nathan were arrested, assaulted and put into police custody. They later made demands for compensation, a mediation was held and it was agreed that Junior, Nathan and Mabo would be compensated with K300.00, K400.00 and K1,000.00 respectively. It appears that the compensation was not paid in a timely manner and frustration over that, led to the incident of 25 March 2004. Junior and Nathan say in their unsworn statements that they had no involvement in the incident of 25 March 2004 but that is not consistent with the statements they made to the police. The better view is that they were present and they were approaching the Morobeans as they had not received any compensation. They said in their police statements that they were compensated after 25 March 2004 and this is consistent with Jimmy's evidence as he gave details of the amount of compensation paid to Junior, Nathan and Mabo.
THE ISSUES IN DETAIL
32. I will address each of the five counts in sequence and focus on the contentious elements in each count.
COUNT 1: FALSE PRETENCE – NOVEMBER 2003 – COMPLAINANT, KERO WANDO
33. The complainant was a witness with little credibility after he has changed his evidence substantially during the course of examination-in-chief. He started off giving evidence that he was present on the night of 25 March 2004 and gave details of what happened. Later he said that, in fact, he was not there at all. He was in the village. His evidence in relation to that incident and his evidence in relation to the allegations in count No 1 was worth very little. Count 1 is really a matter of his word against the word of Junior who denies asking for or receiving money from Kero. Kero's word is worth very little so I find Junior not guilty of Count No 1.
COUNT 2: ARMED ROBBERY – 6 JANUARY 2004 – COMPLAINANT, AMOS FORI
34. The evidence in support of this count is vague. The defence concedes that there was an incident in which Amos Fori's block was raided, properties and at least one pig was stolen. But there is little or no evidence to support the proposition that Junior and Nathan were involved. It is likely that this incident happened several hours after David Mabo was cut on the ear. It is possible that Junior and Nathan accompanied Mabo to the hospital and that there were others responsible for this incident. I find Junior and Nathan not found guilty of this charge.
COUNT 3: ARMED ROBBERY – 25 MARCH 2004 – COMPLAINANT, RAU KINIONG
35. This is the incident in which Rau's house was attacked and she was forced to hand over K200.00 to someone. This charge turns on the evidence of Rau Kiniong. She was a credible and reliable witness. She identified Junior, Nathan and Mabo as being responsible for raiding her house. There were three people well known to her. She said she saw their faces and she spoke to Nathan before giving him the money. As indicated earlier I reject the unsworn statements by the co-accused that they were not present on this occasion. I am satisfied that the elements of the offence of armed robbery have been proven beyond reasonable doubt in that:
36. Though Nathan was the member of the group who actually received the money, I am satisfied beyond reasonable doubt that Junior was also involved. I find Junior and Nathan guilty of this charge.
COUNT 4: GRIEVOUS BODILY HARM – 25 MARCH 2004 – COMPLAINANT: KELLINA KERO
37. Kellina Kero gave clear evidence that Junior was the person who cut her on the hand. She was able to identify him even though it was dark. Though some doubt has been thrown on the reliability of her evidence due to her statement that her husband, Kero, was with her at the time (when, in fact, he was in the village) I regard her as a generally credible witness. Jimmy Kero also gave evidence that he saw Junior cut Kellina. I am satisfied that the State has proven beyond reasonable doubt that Junior inflicted grievous bodily harm to Kellina Kero as he injured her in such a way as to cause her permanent injury to her fingers and the injury was of such a nature and inflicted in such a manner that it was likely to endanger her life. It was an unlawful assault as there was no lawful justification or excuse for infliction of the injury. I therefore find Junior guilty of this charge. I consider that there is no evidence to link Nathan with the attack on Kellina. Even though he was in the vicinity he is not criminally responsible for the injury to Kellina. Nathan is found not guilty of this charge.
COUNT 5: UNLAWFUL COMPENSATION DEMAND – 25 MARCH 2004 – COMPLAINANTS: KERO WANDO AND OTHERS
38. At the heart of this count is the allegation that during the incident on 25 March 2004 unlawful compensation demands were made against Kero Wando and others. I have already found as a fact that Kero Wando was not present. The evidence in support of this count is vague. I find Junior and Nathan not guilty of this charge.
VERDICTS
39. Count 1 – Junior Leo Mailen is not guilty of the offence of obtaining money by false pretence under Section 404 of the Criminal Code.
40. Count 2 – Junior Leo Mailen and Nathan Mailen are not guilty of the offence of armed robbery under Section 386 of the Criminal Code.
41. Count 3 – Junior Leo Mailen and Nathan Mailen are guilty of the offence of armed robbery under Section 386 of the Criminal Code.
42. Count 4 – Junior Leo Mailen is guilty of the offence of doing grievous bodily harm under Section 319 of the Criminal Code and Nathan Mailen is not guilty of that offence.
43. Count 5 – Junior Leo Mailen and Nathan Mailen are not guilty of the offence of making an unlawful compensation demand under Section 390A of the Criminal Code.
Verdicts accordingly.
_______________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the accused
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