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State v Manga (No 1) [2024] PGNC 203; N10863 (12 June 2024)

N10863

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 404 OF 2021

THE STATE

V

THOMAS MANGA
(No 1)

Minj : Miviri J
2024: 10^th & 12^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Arson 436 CCA – Trial – Tractor Registration TAA 769 – Dispute Over Payment Of Compensation – set on fire – Burnt Down K 80, 000.00 Valued – Identification – Alibi – Defence Case Alibi – Accused Identified By Relative – Not Fleeting Glance – Good Lighting – Observation Very Good – Alibi Rejected – No Notice of – False Alibi – Corroborative of Identification – Identification Made Out – Admission to Set Tractor on Fire Smoke As Evidence – Guilty – Bail Refunded – Remanded.

Facts
The Accused put burning wood with dried Kunai grass lit and placed the fire on the Tractor TAA 769 belonging to the Company burning it to the ground. He was angry that he was not paid compensation that he had demanded off the Company.

Held
Unlawful and wilful burning
Tractor property of Company.
Good Identification
Admission by Accused.
Alibi False
Corroborative
Identification made out
Accused guilty of Arson.
Remanded Bail refunded.

Cases Cited:
Jaminan v The State [1983] PNGLR 318
Kandakason v The State [1998] PGSC 20; SC558
Waranaka v Dusava [2009] PGSC 11; SC980
Beng v The State [1977] PNGLR 115
Bate v State [2012] PGSC 46; SC1216
Hagena v State [2017] PGSC 55; SC1659
Tonde v The State [1994] PNGLR 539

Counsel:
J. Kesan, for the State
R. Mangi for the Defendant

VERDICT

12^th June 2024

1. MIVIRI J: This is the verdict of Thomas Manga of Kimil, Banz, North Waghi, Jiwaka Province who pleaded not guilty to Arson of a Ford Tractor registered number TAA 769 valued at K80, 000.00 the property of Komban Plantation Limited.
   
2. It was alleged on arraignment that, he on the 23^rd July 2002 around midday when Police and the management of Komban Plantation Limited went to retrieve the Ford Tractor, registered number TAA 769 that he had earlier on driven to his village, he set it on fire wilfully and unlawfully destroying it completely. It was valued at K 80, 000.00 the property of Komban Plantation Limited. He had driven it to his village over a dispute over compensation allegedly due to him from the subject company.
   
3. He was charged under section 436 for arson reading: “A person who wilfully and unlawfully set fire to-
   

(a) a structure whether complete or not; or
(b) a vessel whether complete or not;
(c) a stack of cultivated vegetable produce; or
(d) a stack of mineral or vegetable fuel; or
(d) a mine, or the workings, fittings, or appliances of a mine; or
(e) an aircraft or motor vehicle,

is guilty of an offence.

Penalty: subject to section 19 imprisonment for life.”

4. The State was required to lead evidence beyond all reasonable doubt that he was identified as the author of the crime. It was a wilful act to set fire to the tractor. And he did so unlawfully or in breach of the law. In its endeavour to discharge these elements the State called three witnesses orally and tendered into evidence his record of interview, Exhibits P1(a) and (b).
   
5. The first witness on oath was one Wii Pau, director of the subject Company. Which company was the owner of the ford tractor registered number TAA 769. He was at home Kimil on the 23^rd July 2002, when he was told that the subject tractor was stolen so he went to the Plantation Okay Corporation to find out. The Accused Thomas Manga took the tractor with another Thomas Molo. The latter drove the tractor to the village of the accused. Both live at the same village. Thomas Molo said Thomas Manga now before the Court will release the tractor, so he told me to see him. But when we went back to Thomas Manga’s village, he with his family removed the bridge and made it impossible to get the tractor from his village. And he was accompanied by Policemen, James Goimba with other policemen. He did not know their names. Upon arrival the Accused Thomas Manga met them and told them that you see the smoke I have set fire to your tractor. And he did see smoke coming up but did not see the burning tractor because the road up had bridge removed so he was stationary for about 2 to 3 hours, before a temporary bridge was built and they went back out from there. Materially this is the evidence of this witness.
   
6. I have viewed the evidence that this witness gave, and I have no reservations that he was telling the truth as it eventuated before him. He gave evidence with confidence and was not shaken in any way in cross examination. I find that he told the truth as it unfolded before him. It did not come out that he had a hearing problem nor sight. And he was clear that the person he saw was the accused who spoke as he recounted.
   
7. The next witness was retired Chief Sergeant of the Royal Papua New Guinea Constabulary James Goimba who had served the Constabulary for well over 36 years counting from the 23^rd July 2002, when he was called out to attend to complaint lodged with police at Kimil on the 22^nd July 2002. The complaint was as to stealing of coffee beans. He went to investigate and to attend to that complaint when it was reported that a tractor belonging to the Company was stolen there. He unsuccessfully went with Company management but did not retrieve it. He left on the understanding that the matter would be resolved between the People and the Company. That did not happen, so he returned the next day 23^rd July 2002 accompanied by company management on a company vehicle, only to be met by the Accused at Kuman who told him that he had set fire to the tractor. And he said see the smoke I set fire to it and that is the smoke. He also saw the smoke and presumed that it was the tractor burning. He later went back and confirmed that it was indeed burnt down with the fire initially starting where the gear was and into the dashboard. The tires were flat at the back. It was clear it was set on fire.
   
8. Again, I have no reservation about the veracity of this witness. I am confident in the way that he gave his evidence that he was telling the truth as a serving police officer who had gone out to a complaint at that location and who heard the admissions that the accused made in setting fire to the tractor and burning showing the smoke after the act. I do not doubt the veracity of his evidence. I find him to be a witness of the truth. He does not show allegiance to one side or the other. He is merely a police officer doing his duty as a public Servant, no more no less.
   
9. The last witness for the State was Kip Bulu originally from Kimil village, a peace mediator of that village. On the 23^rd July 2002 he was at home Kupan at about midday. Thomas Manga the Accused took the tractor to his house at Kuman. Next day I walked up there to Kuman where the tractor was. Thomas Manga went into the house took out a burning wood from the fire. Then he got dried Kunai and set it to the wood lighting up the fire setting it to where the gear was in between and burning the tractor. The fire burnt where the gear is including the wheels at the back were. I saw the tractor was burnt down and I returned to my home. And Thomas Manga is the accused over there pointing him in the dock. I saw him burn the tractor. We are both related, he is from another father, I am from another, so we are related. Our small tribe is Kanabe. I did not do anything to stop him burning the tractor.
   
10. He remained intact in his evidence, his identification of the accused as the person who set fire to the tractor was not doubted in any way. He was related to him. There were no motives for him to tell against the Accused and his identification was firmed out, and it could not be doubted as to who was the person he saw on that day setting fire to the tractor in the way that he described to build the fire. Then to have it assembled on the tractor to burn it and damage it. He is a witness who I observed to have told nothing but the truth as it occurred to him on that day. He did not add or subtract his evidence. Cross examination as to motive for the other court proceedings brought no holes to his evidence. I believe his evidence and hold his evidence as the truth. Because he went into details as to how the fire was build up with the burning wood taken from the house. Which was put together with the dry kunai placed where the gear was burning the tractor.
    
11. The fire as originated is also described by the witness Retired Chief Sergeant of Police James Goimba, who later went to see the burnt tractor. He describes the place where the fire originated and then burnt into the dashboard and the tyres at the back. In my view this witness is not related in any way to the dispute over the earnings of the company, nor any of the witnesses both for and against. He is an independent witness and is drawn to the matter because of his duties as a chief Sergeant of Police, attending to a criminal complaint of coffee bags being stolen. And he comes upon the complaint of the stealing or illegal moving of the subject tractor. He is not the owner, nor is he a member of that village, or associate to the subject company, and its earnings or profit. He is a public servant a police Chief Sergeant, who is merely attending to a criminal complaint that is registered at the Kagamuga Police Station where he is based at. His evidence in my view will set out which side of the dispute is the truth. As to whether or not the accused is the author of the arson of the tractor, or not.
    
12. In the documentary evidence is the record of interview conducted on the 30^th July 2020 in English between Police and the Accused. Firstly, handwritten, Exhibit P1(a) and typed P1(b). In it Accused denied the offence at questions 32, 33, 34, 35, and 36. He does not detail that he came late to the scene of the burning of the tractor at Kuman. And that he was accompanied by Mathew Malip, Mandi Kiss, and state witness Kip Bulu. If what he has testified in Court is the truth, it would come out in that record of interview with Police. It did not come out because it was not there on that day 23^rd July 2002. And it did not flow into the record of interview on the 30^th July 2020. It gives credit to the evidence of Kip Bulu who says he saw the accused get a burning wood from the fire in his house. Then get dried Kunai grass put the two together build a fire and set it where the gear of the tractor was and set it alight burning it. Because that is the area also observed by Chief Sergeant James Goimba as a policeman when he went to investigate the tractor. He saw that is where the burning originated, and it extended to the tyres at the back which became flat as a result. And it is also the reason why both Mathew Malip, and Mandi Kiss never insisted to see the Police immediately after the arrest of the Accused. One was a village councillor, and the other was a village Magistrate. Both did not see the need urgently to come to police and to inform that the Accused was not responsible for the Arson of the tractor. It did not happen there and then. It has come now before me without a notice of alibi filed in accordance with the Rules of practise Order 4 Division 2 Notice of alibi. Because there was no alibi that they came onto the scene of the fire of the tractor after it was burnt.
    
13. In defence Accused denied the offence. He never did burn down the vehicle in the way that the witnesses described him to have done. It was set on fire by the shareholders who were disgruntled and angry because they were not paid any dividends or financial reports were given them on the performance of the Company. And there were 5 to 600 people who were there on that day. He did not do what the State says he did. His record of interview Exhibit P1(a) and (b) did not give evidence in the way that he had given in court that he was accompanied by Kip Bulu with his witnesses called, Mathew Malip, and Mandi Kiss and together they had arrived after the tractor was burnt. It had been set on fire when he was not there. He did not set it on fire because he was coming about 7 to 8 km from out of Kuman where the tractor was. And he was accompanied by these three witnesses, so he did not set it on fire.
    
14. Both his witnesses, Mathew Malip, and Mandi Kiss as if by clock work, or rehearsed evidence said that they were all together with State witness, Kip Bulu 7 to 8km away from Kuman where the tractor was set on fire. And that they all arrived late to the area there which was crowded by 5 to 600 people not counting children. And denied that accused set fire to the tractor burning it down. All shifted that to the 5 to 600 people shareholders who were angry because they did not receive their dividends and financial report on the performance of the company whose tractor was burnt because of that reason. It is not in the record of interview of the Accused.
    
15. This contention of the Accused and defence witnesses does not in my view defeat the contention and the evidence of Kip Bulu who is related to the accused because of their fathers and that they live at Kuman together. His identification of the accused is not doubted by their evidence. The motive in the civil cases do not doubt the evidence of the identification of the accused. All are together at the same place, but the time of arrival is disputed. I prefer the evidence of Kip Bulu over the defence witnesses Mathew Malip, and Mandi Kiss, because they do not immediately front up to the police and inform that Accused was with them at the time of the allegation. He could not have set fire to the tractor and burnt it. Because they all were in company with the state witness Kip Bulu. And all arrived late at the scene where the tractor was burnt at Kuman. Both witnesses also were very calculated in their answers. Simple yes or no answers were given long winded answers.
    
16. Mathew Malip for a councillor did not simply answer, no I did not hear Thomas Manga say he set the tractor on fire, but explained that, how could someone who had stolen admit that he had stolen. And that it was 20 years ago so he could not remember what the Accused said. Instead, he confidently said that the accused did not admit as the State evidence contended. He did not hear that.
    
17. In the case of Mandi Kiss, he said that he was not aware of the arrest of the accused. But became aware later but did not alert police despite that knowledge that the Accused could not have committed the offence because he was with them.
    
18. Both are alibi witnesses but were not named since 30^th July 2020 when the Accused was arrested in that record of interview conducted. There is no notice by the defence calling them supposed Alibi witness who have been named on the notice pursuant to the criminal practise rules Order 4 Division 2 Notice of alibi

“4. An accused person shall not upon his trial on indictment, without the leave of the Court, adduce evidence of an alibi unless, before the expiration of the prescribed period, he gives to the Prosecutor written notice of particulars of the alibi and unless the notice contains the name and address of any person whom he claims can support the alibi or, if such name or address is not known to him at the time he gave the notice—

(a) he gives in the notice all information in his possession that may be of material assistance in locating that person; and

(b) the Court is satisfied that before giving that notice he had made all reasonable attempts to obtain that name and address and that thereafter he continued to make all reasonable attempts to obtain and to inform the Public Prosecutor of that name and address.

5. A notice under this Section shall be duly given if it is delivered to or left at the office of the Prosecutor responsible for the conduct of the trial or sent by certified mail addressed to him at that office.

6. Evidence tending to disprove an alibi may, subject to a direction by the Court, be given before or after evidence is given in support of the alibi.

7. A notice purporting to be given under this Section on behalf of the accused person by his lawyer shall, until the contrary is proved, be deemed to be given with the authority of the accused person.

8. In this Division—

"evidence of alibi" means evidence tending to show that by reason of the presence of the accused person at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission;

"the prescribed period" means the period of 14 days prior to the date of trial of the accused person.

19. It means this alibi is not true and cannot be held true. The accused is a teacher who teaches at a high School. He is an educated elite as he terms from that area where the company operates. He would because of that fact protest his innocence at the first given opportunity. That has not happened in the record of interview exhibit P1 (a) and (b) the typed copy of that record of interview. His conduct coupled with that of his witnesses see a very desperate attempt to create an alibi that is not there in the first place at all. And for the reasons that I have set out in the evidence of the defence, I do not believe he and his witnesses as of the truth. I hold that they have deliberately told lies to distort the evidence identifying the accused as the person who set the subject tractor on fire in the way described by Kip Bulu which in my view is corroborated by the accused own admission to both, Wii Pau, director of the subject Company, and retired Chief Sergeant of Police James Goimba on that day 23^rd July 2002. If it were the former alone there would be doubts, but in the case of the latter, there is no iota of doubt. I find that there is very sound and strong fibre of truth in the account they give. There is no ulterior motive either in the evidence, or in law to doubt the veracity of their evidence. The defendant has by his lies corroborated their account: John Jaminan v The State [1983] PNGLR 318.
20. A ring of truth spirals through their evidence, so much so that the version credible is that of the state, which I prefer over and above that of the accused, that he came late after the tractor was already burnt up. It defeats the argument that he has put up over time. His evidence together with that of his witnesses when assessed in aggregate, seriously lack logic, common sense, and consistency. Which are important tests for the credibility of witnesses and their testimony. Because there is serious unexplained inconsistency in evidence, and evidence not in keeping with logic and common sense, which are basis for rejection of such evidence: Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). I find as a fact that is the case for the accused and his witnesses called. It is not the case against witnesses of the State but is the case for the defence as I have set out above. His evidence suffers that fate I reject his evidence and accept that of the State.
    
21. Relevantly he has been identified beyond all reasonable doubt within the terms of the law settled in Beng v The State [1977] PNGLR 115 in these terms:
    

“ In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.

When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.”

22. Here there is no dispute that the subject tractor was taken driven to Kuman where the Accused lives, so too the State witness Kip Bulu. And it was set on fire by a wilful act that was displayed by the Accused when he refused to give it back to Police accompanied by company management. He did not hold it by possession granted him by law. He had no authority to it. He defied the law in keeping it. It was not his property per the evidence of Wii Pau, director of the subject Company, and retired Chief Sergeant of Police James Goimba, who went to retrieve it. And which is the evidence that Thomas Molo gave when he was sought out to retrieve it. He referred to the Accused as the authority to be consulted before it could be released back. The sighting of Kip Bulu is within the terms of the law on identification set out above in Bengs case supra. It was not a case of being in the dark of the night where visibility was zero to none. This is not the situation that was observed in Bate v State [2012] PGSC 46; SC1216 (20 December 2012) where the supreme court overturned the conviction because the evidence on identification was not beyond all reasonable doubt. I caution that recognition is well but there are cases where even then mistakes have been made. And that the reliability of the evidence could be the basis upon which the conviction is safe considering. Adverse inferences could not be made upon the case of the Accused that they did not disclose the Alibi at the first opportunity with the Police. Because the Accused are presumed innocent until proven guilty. And that burden is always on the State start to end, not on the Accused.
    
23. But without the independent corroboration: Hagena v State [2017] PGSC 55; SC1659 (11 December 2017), the Accused case does not hold water. Here that would have come from the evidence of Chief Sergeant James Goimba independently verifying what he is asserting. Quite the contrary the Chief Sergeants evidence corroborates that he is guilty of the offence. He defeated his case by the witnesses that he produced in the way I set out above.
    
24. The State bears the burden to succeed beyond all reasonable doubt not without. The defendant is not obliged to disclose his defence or his alibi there and then. Not even in the record of interview: Tonde v The State [1994] PNGLR 539. But where there is weight to be drawn in its weighing it does seriously in my view, effect the way to be given it in the determination of whether the allegation he raises succeeds or goes by the wayside. The converse is where it is consciously made in the face of evidence of guilt to avoid that, it has been held that a false alibi can amount to corroboration of the assertion made by the Prosecution: Jaminan (supra). And that is the fate of the defence case.
    
25. The aggregate is that I am satisfied beyond all reasonable doubt that, Thomas Manga of Kimil Banz, North Waghi, Jiwaka is guilty of the Arson of the Ford Tractor registered number TAA 769 the property of the Komban Plantation Limited contrary to section 436 (f) of the Criminal Code. He set it on fire wilfully and unlawfully and is therefore guilty as indicted. I return a verdict of guilty.
    
26. I order the refund of his bail moneys forthwith. And that he is remanded forthwith in custody to await the sentence of the Court.
    

Ordered Accordingly
__________________________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant