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State v Parakua [2011] PGNC 5; N4199 (19 January 2011)

N4199


PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE


CR NOS 185 & 186 OF 2009


THE STATE


V


AKILO PARAKUA & ALBERT PARAKUA


Kimbe: Cannings J
2010: 23, 25 June,
2011: 19 January


VERDICT


CRIMINAL LAW – trial – unlawful compensation demand – Criminal Code, Section 390A – elements of the offence – whether the accused caused damage to property in order to obtain compliance with the demand for compensation.


Two accused were charged with making an unlawful compensation demand of K5,000.00 contrary to Section 390A of the Criminal Code arising out of an incident in which one of their pigs was killed by the complainant. The complainant admitted killing the pig but said he did so for good reason as it was in his garden. The complainant gave evidence that when demanding compensation for the pig the accused damaged his crops and house, assaulted his brother and threatened to kill him. The accused denied the allegations and said that it was themselves who were injured and whose property was damaged by the complainant and his relatives and friends.


Held:


(1) Under Section 390A of the Criminal Code the offence of making an unlawful compensation demand has four elements:

(2) In this case, the specific elements alleged in the indictment were that the accused:

(3) The version of events given by the complainant and other State witnesses was more credible than that given by the accused, and was corroborated by evidence of a senior police officer.

(4) Key elements of the defence case were not put to the State witnesses in cross-examination, contrary to the rule in Browne v Dunn (1893) 6 R 67 (HL), and this made the version of events presented by the accused unacceptable.

(5) All elements of the offence were proven and both accused were found guilty as charged.

Cases cited


The following cases are cited in the judgment:


Papua New Guinea cases


Kutau v The State (2007) SC927
The State v James Yali (2005) N2988


Overseas Cases


Browne v Dunn (1893) 6 R 67 (HL)


TRIAL


This was the trial of two accused charged with making an unlawful compensation demand contrary to Section 390A of the Criminal Code.


Counsel


F Popeu, for the State
R Awalua & K Berem, for the accused


19 January, 2011


1. CANNINGS J: Akilo Parakua and Albert Parakua, who come from the Tari area of Southern Highlands Province, are charged with making an unlawful compensation demand contrary to Section 390A of the Criminal Code. The charge arises out of incidents on Monday and Tuesday 6 and 7 October 2008 at the Morokea village oil palm settlement near Kimbe, where the two accused live.


2. The State alleges that on the Monday morning one of Akilo's pigs strayed into a garden belonging to the complainant, Samuel Yana, who comes from Morobe Province. Samuel asked Akilo if it was his pig, Akilo said no, so Samuel killed the pig. Akilo then realised that, in fact, it was his pig and demanded compensation of K5,000.00. Samuel refused to pay so Akilo joined with Albert and made threats against Samuel and his brother, David Yana, and actually carried out the threats by assaulting David and damaging Samuel and David's properties. Samuel gave Akilo and Albert K5,000.00 cash the next day to prevent further trouble. Samuel and David gave sworn evidence in support of that version of events and there were two other State witnesses, a local resident who witnessed the incident leading to the pig being killed and a senior police officer who went to Morokea to monitor the situation on both days.


3. Both accused, who are brothers, gave sworn evidence and gave an entirely different version of events. They said that, in fact, two of their pigs were killed and that they were victims of violence by Samuel and David and their supporters and that they did not injure them or damage their property and that the payment of compensation was the result of mediation conducted by local community leaders. One of those community leaders gave evidence in support of that version of events.


THE OFFENCE


4. Section 390A (demands for compensation or other payment) states:


A person who, with intent to extort or gain any thing, payment, or compensation from any person—


(a) demands the thing, payment or compensation; and


(b) in order to obtain compliance with the demand—


(i) causes or threatens to cause injury to any person or damage to any property; or


(ii) does or threatens to do any act which renders, or is likely to render any public road, bridge, navigable river or navigable channel, natural or artificial, impassable or less safe for travelling or conveying property; or


(iii) otherwise unlawfully threatens or intimidates any person,


is guilty of a crime.


Penalty: Imprisonment for a term not exceeding seven years.


5. The offence under Section 390A thus has four elements:


6. As there are a number of alternative propositions in three of the four elements the drafting of the indictment for a Section 390A charge is very important, as it dictates what has to be proven by the State. In this case the specific allegations arising from the indictment are that the accused:


ISSUES


7. All of those allegations are disputed by the defence, so a determination of them will be made as follows:


EVIDENCE FOR THE STATE


8. Four witnesses gave oral evidence. The other significant evidence was the record of interview of each accused.


Oral evidence


9. The complainant, Samuel Yana, said that he had killed Akilo's pig as it was in his garden. Before killing the pig he asked Akilo to remove it but Akilo said it wasn't his pig, so he speared it. When the pig squealed Akilo went into the garden to have a look at it and then he realised that it was his pig, so he gave it to one of the neighbours, Melles, who cooked it. Then Akilo got Albert and other Tari people and they chased Melles and Samuel's younger brother, David, assaulted David and then destroyed Samuel's food garden (banana, aibika and pitpit). Akilo and Albert demanded that Samuel pay them K5,000.00 compensation, saying 'pay us the money or you will die'. By that time it was getting close to 5.00 pm, so it was too late to give them any money that day. He decided to go into the bank the next day to get the money to cool them down.


10. He went into Kimbe the next morning and the accused and their wantoks were standing around the ATM waiting for him to withdraw cash. Eventually he managed to get K5,000.00 cash from his bank account and took it back to Morokea at 3.00 pm. He consulted one of the local community leaders, Anton Lavu, who advised him to just hand over the money and sort it out in court later. He gave them the K5,000.00 as he was scared of further trouble.


11. In cross-examination Samuel admitted to one previous incident, in 2006, in which he had killed another of the accused's pigs. The Village Court ordered him to pay K1,000.00 compensation and he complied with the order. He denied that he or any of his relatives had assaulted the accused or damaged their property. He denied killing more than one of the accuseds' pigs in 2008. He reiterated that he had given in to the demands of the accused as they had rung their Tari wantoks on their mobile phones and plenty of Taris had come to the block from town to support them. The police did not mediate the dispute, they just witnessed the handing over of the money. He did not freely agree to hand over the K5,000.00.


12. Samuel also admitted that after he gave the accused the K5,000.00 they gave K2,000.00 back to him, which was compensation for the injuries received by David. This was not part of any agreement, he said, as there was no agreement. The accused paid the K2,000.00 of their own volition.


13. The second State witness was Philip Sio. He also has a block at Morokea VOP. He witnessed the killing of Akilo's pig and his evidence of the circumstances in which it was killed matched Samuel's evidence.


14. The third State witness, David Yana, who lives with his brother, Samuel, at Morokea, said he was not present when the pig was killed but came on the scene soon afterwards when it was being cooked by Melles. He heard that Melles was selling cooked pork so he bought some spare ribs and proceeded to his house, unaware of any controversy over the pig's death or even that Samuel had killed it. The next thing he knew he was set upon by the two accused who cut, kicked and punched him, rendering him unconscious. He was found by his wife and relatives who took him to the hospital where he stayed until 4.00 pm that day. He was present when the Taris mobilised and came to the block and demanded compensation for the dead pig. 'If you don't pay, there will be trouble', they said.


15. The next day Samuel went to town and got K5,000.00 from the bank and came back to the block and gave it to the accused. He and Samuel were afraid of the consequences of not paying them as there were a lot more Taris than there were Morobeans.


16. In cross-examination David denied that there was any community mediation of the problem. The police also did not supervise any mediation. There was no mediation at all, he said. It was the accuseds' idea to give them back K2,000.00. David denied any destruction of the accuseds' property by himself or Samuel or any of their wantoks or supporters. The police did not advise them not to pay the K5,000.00. The police were just observing what was happening.


17. The final State witness was Inspector Maurice Itoro, Co-ordinator of Public Safety, based at Kimbe Police Station. He has been a member of the Royal PNG Constabulary for 24 years. He received the report of an incident at Morokea on the afternoon of 6 October and went there at 3.00 pm, with two other police officers. He learned that David Yana had been badly injured. The situation was very tense. There were about ten Tari people present, armed with bushknives, bearing an aggressive manner, surrounding the Morobeans and demanding K5,000.00 compensation for the killing of one of their pigs by the Morobe people but they calmed down when the police arrived. He counselled the Tari people against taking the law into their own hands, and left.


18. He returned the next day, the 7th, and observed the payment of K5,000.00 by the Morobe people to the Tari people, led by the two accused. Samuel told him he was not happy about paying the Taris money. He was doing so out of fear. He (Insp Itoro) advised Samuel to notify the CID if he wanted to lay a complaint. He instructed the police officers who accompanied him to the scene not to get involved in the exchange of money.


19. In cross-examination Insp Itoro said that he had no knowledge of how the decision was made to pay the K5,000.00. The police were not involved in any negotiations. He told the Taris that it was illegal to demand compensation with threats but he did not advise the Morobeans not to pay. He did not regard that as the police role in this situation. The role of the police was to prevent further trouble. The police left it to the parties to proceed with their own negotiations. He does not know whose idea it was for the Taris to give back K2,000.00 to the Morobeans. Samuel told him that is what happened but he does not know how or why it happened. As to damage to the accuseds' property, the pig that was speared by Samuel is the only record of damage. Nothing else was reported. The purpose of his attendance at the scene on the 7th was not to "witness" the payment of compensation. He only went to assess the situation and to see that peace was maintained by the parties. He did not know before he went there on the 7th that there would be payment of compensation. The K5,000.00 had already been handed over by the time the police arrived. The Morobeans were obviously disappointed by what had happened. That is why he advised Samuel to take the matter to the CID.


Records of interview


20. Akilo Parakua said that the pig that was killed on 6 October was the fifth that Samuel had killed, so he and his brother, Albert, beat up Samuel's brother, David. This resulted in a fight between the Taris and the Morobeans. Samuel and his people destroyed his food garden and torched his house, so he and Albert retaliated by destroying their garden. The community leaders then got involved and the problem was solved by Samuel being ordered to pay him and Albert K5,000.00 and he and Albert being ordered to pay Samuel and David K2,000.00. He thought that the dispute had all been resolved and was surprised when he and Albert were arrested and charged.


21. Albert Parakua said that he was in town when the pig was killed. The first he knew of any problem was when he returned to the block on the afternoon of the 6th and saw David Yana eating pork, so he beat him up. David and his supporters then chased and attacked him and burned down his house. His wantoks heard about what the Morobeans had done to him and Akilo so they demanded compensation. They argued about the compensation on the 6th but then on the 7th Samuel agreed to pay up. He and Akilo received K5,000.00 and they gave the Morobeans K2,000.00.


EVIDENCE FOR THE DEFENCE


22. Each of the accused gave sworn evidence and there was one other defence witness.


Akilo's sworn evidence


23. He said that after the pig was killed on the 6th, there was a big fight between David Yana and Albert. David won the fight and he and his lain then chased him (Akilo) into the bush and while he was hiding there, David's lain and supporters (Sepiks and others) set fire to his house and it was destroyed. He emerged from the bush only after the police arrived. The police, led by Insp Itoro, told him he would have to pay K2,000.00 compensation to David and Samuel, and that they would have to pay him and Albert K5,000.00. Local community leaders had arrived on the scene and they assisted in calculating the amount of compensation that each side had to pay the other. It was all sorted out on the 6th, then on the 7th, the money was exchanged. He gave their K2,000.00 to Insp Itoro who passed it on to Samuel and David. Samuel cried and they all hugged one another and reconciled.


24. In cross-examination Akilo said that the K5,000.00 was compensation not only for the pig, but also for the destruction of his house and physical injuries he and Albert received at the hands of the Morobeans and their supporters. Samuel speared his pig for no good reason. The pig was not in Samuel's area, it was in a place where many pigs go. Even Samuel's pigs go there, Akilo said.


Albert's sworn evidence


25. He said that he was in town when news reached him that Samuel Yana had killed one of his pigs so he went back to the block, saw that his pig pen was open, then saw David Yana walking around eating cooked pork. He (Albert) was angry so he hit David and they started fighting. He ran away and cut down some of David's crops, then ran into the bush until the police arrived. Then he realised that his crops had been destroyed by David and his supporters and his house had been burned down. Both sides talked about what happened and they agreed on the amount of compensation each side would pay the other. The next day they met again and the money was exchanged. The two sides shook hands and hugged and reconciled. A number of community leaders were present, together with the police, to witness the reconciliation.


26. In cross-examination Albert said that his fight with David was just between the two of them to start with but then a lot of people supported David, so he had to run away. He denied assaulting David badly at any time. David did not sustain any serious injury. In his view, Insp Itoro must have forgotten about what actually happened.


Francis Moni's evidence


27. He is from Talasea but has married a woman from Morokea and has been living there since 2003 and is now a community elder. There was a problem in the community on 6 October due to Samuel Yana killing one of Albert Parakua's pigs. The two groups, the Taris and the Morobeans, fought and he (Francis) intervened as he wanted to restore peace in the community. He organised a discussion between the two groups and it was agreed that Samuel's group would pay K5,000.00 to the Parakua group and the Parakua group would pay K2,000.00 compensation to Samuel's group. The exchange of compensation was arranged for the next day and the police came and witnessed it.


28. In cross-examination Francis said that the Morobeans were originally reluctant to pay K5,000.00 but the community leaders convinced them that that was a fair payment as the Taris had sustained more damage than them.


PRELIMINARY ASSESSMENT OF THE STATE'S CASE


29. The State has presented two eyewitnesses, Samuel and David, whose evidence, if accepted, would be sufficient to establish each of the four elements of the offence. The evidence of Philip Sio is of limited value as it is only about the killing of the pig. The evidence of Insp Itoro, if accepted, corroborates the evidence of Samuel and David as it suggests that they paid compensation under sufferance, not voluntarily or as the result of a mediated settlement. None of the State witnesses was obviously lying when they gave evidence, so on the face of the evidence the State has put together a reasonably sound case.


DEFENCE COUNSEL'S SUBMISSIONS


30. Mr Awalua submitted that the evidence of the two accused should be accepted as they were much more credible witnesses. They admitted that they did injure David Yana and did damage some of Samuel and David's property. They gave a more balanced account of what happened, compared to the emotional, exaggerated and one-sided story told by Samuel and David. Samuel made no mention of having received K2,000.00 from the accused until it was put to him in cross-examination, so this drew his honesty into question.


31. Mr Awalua highlighted the lack of medical evidence to support the claim that David Yana was badly injured by the accused and their group.


32. Insp Itoro was a biased witness, Mr Awalua submitted, as his mind was obviously made up in the beginning that the Taris were at fault. If he gave truthful evidence he would have had to admit that he had made an incorrect assessment of the situation in the beginning, and he was obviously not prepared to make that admission.


33. The court should accept the evidence of the only independent witness, Felix Moni, a Talasea man who had no reason to lie.


34. There were also inconsistencies in the State's case, including confusing evidence about how the pig was killed and who owned it.


ASSESSMENT OF DEFENCE COUNSEL'S SUBMISSIONS


35. Making a decision on whether an accused person is guilty in a case where diametrically different versions of events are presented is not a simple matter of deciding who to believe. The court might believe the version presented by the State witnesses but still find the accused not guilty if it is not convinced beyond reasonable doubt that the State's version of events is the correct one (The State v James Yali (2005) N2988). However, deciding who to believe is a good place to start the decision-making process and, in this case, I must say that I tend to believe the State witnesses much more than the accused.


36. Comparing the demeanour of Samuel and David with that of Akilo and Albert, Samuel and David came across as much more impressive. Their version of events was more believable. I am not persuaded to discount Samuel's credibility as a witness because he failed to mention in examination-in-chief the K2,000.00 he and David received from the accused. He was not asked about that and I think that that is a sufficient explanation for his failure to give evidence about it.


37. Much of the defence case – that the accuseds were the real victims and that they were assaulted and their property was damaged – was not put to Samuel and David when they were cross-examined. This was a breach of the rule in Browne v Dunn (1893) 6 R 67 (HL), a rule of procedural fairness that applies in all criminal trials, and it gives rise to the inference that the story told by Akilo and Albert was a concoction (Kutau v The State (2007) SC927). In saying that, I am mindful that that version of events was given by both Akilo and Albert in their records of interview. So it is not something that is being dismissed out of hand as a late invention. But, given that their interviews were conducted in November 2008 – 18 months before trial – there was plenty of time for them to compile evidence to support that version of events, so that it could be put squarely to the State witnesses in cross-examination. That was not done, however, so the natural inference to be drawn is that the accuseds' version of events was not a truthful one.


38. A similar breach of the rule in Browne v Dunn occurred in relation to the evidence of Insp Itoro. Mr Awalua submitted that he was a biased witness who was on the side of the Morobeans and against the Taris. That allegation was never put to him in cross-examination. It was also not put to him that he took an active role in the exchange of money on 7 October and that he was present to witness the proceedings and the alleged reconciliation that took place. So the key parts of Insp Itoro's evidence – that the role of the police was only to preserve the peace and not get involved in any negotiations about compensation – were not challenged in cross-examination. It would be unfair to label Insp Itoro as biased or unreliable. He is a senior and independent police officer and his evidence was very convincing. I see no reason not to accept his evidence as truthful and reliable. This is significant as his evidence clearly gave the impression that the accused and their friends and supporters were the aggressors and that they were demanding compensation with threats to people and damage of property if their demands were not met.


39. As for Francis Moni, it is difficult to know what to make of his role in the whole affair. On the face of it, he might be expected to be an independent witness. As Mr Awalua submitted, he is a Talasea man with no obvious connection with or bias towards either people from Tari or those from Morobe. But like every witness, the value that the court puts on his evidence has a lot to do with his demeanour in the witness box. Mr Popeu commented that the only valuable part of his evidence was that he "had a loud mouth". By that, he meant that the witness spoke loudly in the witness box. Mr Moni did indeed speak very loudly and aggressively. He almost shouted when he answered questions. This tended to contradict his claim that the dispute between the warring parties was mediated in a quiet, peaceful and orderly way. Ultimately the court was left with the impression that even though community leaders might have attempted to resolve the dispute by mediation, their attempts were unsuccessful as one side of the dispute – the accuseds' side – was much more aggressive than the other side. I conclude that Mr Moni was telling only half-truths and that he was an unreliable witness.


40. Mr Awalua made a valid point about the lack of medical evidence to support the claim that David Yana was badly injured. However, I do not think that this was a critical defect in the State's case. Insp Itoro said that David was badly injured, and David, himself, gave direct evidence of being attacked. This is sufficient and this evidence is to be preferred to Akilo's claim that David was not seriously hurt.


41. The evidence was confusing as to who actually owned the pig – Akilo or Albert? But that was inconsequential. The pig was obviously owned by one or both of them, it does not matter who in particular. The question of ownership, and what the pig was doing and where it was at the time it was killed, were issues that were for all intents and purposes non-contentious until Akilo said in cross-examination that the pig was killed for no good reason and that it was not in Samuel's garden. This was the first time that the pig's purported innocence was raised and it was another instance of a breach of the rule in Browne v Dunn. It was not put to Samuel in cross-examination that the pig was not in his garden.


42. None of the defence counsel's submissions convince me that the version of events given by the State witnesses should not be accepted.


FINAL DETERMINATION OF THE OFFENCE


43. I now return to the four elements of the offence which, according to the wording of the indictment, have to be proven beyond reasonable doubt.


44. First, it is clear that the two accused demanded compensation of K5,000.00 from Samuel Yana. The compensation was for the pig killed on 6 October and perhaps for other pigs allegedly killed by Samuel in the past.


45. Secondly, the compensation was demanded "with intent to extort payment". The word "extort" is not defined by the Criminal Code, so the ordinary, natural meaning of the word must be used: to obtain by force, threats or other unfair means (Concise Oxford English Dictionary, Oxford University Press, 11th edition © 2004). I am satisfied that the two accused made their compensation demand with an intent to extort payment from the complainant.


46. Thirdly, the accused caused injury to a person (David Yana) and damaged property (in particular, Samuel Yana's food garden).


47. Fourthly, the injury to David and the damage to the garden were done in order to obtain (ie force) compliance with the demand for compensation.


48. All four elements have been proven beyond reasonable doubt, so each of the accused must be convicted.


VERDICT


49. Akilo Parakua and Albert Parakua are each found guilty of one count of making an unlawful compensation demand contrary to Section 390A of the Criminal Code, as charged.


Verdict accordingly.
____________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the Accused

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