Mara v Ukura [2007] PGDC 87; DC627 (27 July 2007)

DC627

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 23 of 2007
&
GFCr 41 of 2007

BETWEEN

AMBROSE MARA
Informant

AND

ALBERT UKURA
First Defendant

AND

RALPH JUDAH GURAH
Second Defendant

Goroka: M Gauli, PM
2007: July 24, 27

CRIMINAL - Particular offence – With intent to extort compensation – Joinder of offenders – No criminal intent – Abuse of process of the Court – where civil proceedings are already pending before the National Court.

Cases Cited
The State –v- Leo Nimo [1980] PNGLR 129
Kereku –v- Dodd [1969–70] PNGLR 176
The State –v- Kwalimu Goina & 3 Ors [1982] PNGLR 112
The State –v- Peter Painke [1978] PNGLR 210
Paia Lifi –v- Philip Dege, N 291(M)

References
Nil

Counsel
For the Prosecution – Senior Constable Bonke, Goroka Police Station
For the Defendant – Mr. B. Koningi of Koningi Lawyers

27 July 2007

DECISION OF THE COURT

M Gauli, PM: The defendants Albert Ukura and Ralph Judah Gurah each have pleaded not guilty to a charge for having intention to extort compensation from the National Government of Papua New Guinea, pursuant to Section 390 A of the Criminal Code Act, Chapter 262. This provision states and I quote:

“390 A Demands for compensation or other payment.

A person who, with intent to extort or gain anything, 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 great of a crime”.

2. It is alleged that defendants between the 16 of June 2006 and 14 February 2007 at Yonki in Papua New Guinea, with intent to extort compensation of K254.9 million from the National Government of PNG and in order to obtain compliance with the demand, threatened to cause injury to the employees of PNG Power Limited and at the same time damage property namely Yonki Dam. The Yonki Dam is the largest electricity power plant situation at Yonki in Kainantu District of the Eastern Highlands Province in PNG. And it supplies electricity to Madang, Morobe, Eastern Highlands, Chimbu, Western Highlands, Enga and the Southern Highlands Provinces in PNG.

3. Joinder:

The defendants were charged on separate information’s but for the same offence alleged to have been committed on the same day, time and place. The defendants are both members of the Arona Valley Landowners Benefits Task Team Incorporation (AVLOBTTI) and who hold the positions of Vice Chairman and Chairman respectively. I have decided to deal with these cases jointly. The Sections 531 and 532 of the Criminal Code Act allows for the joinder of charges. However these provisions are only applicable where a person is charged on several distinct indictable offences that are alleged to be constituted by the same act or omission. It does not refer to a number of offenders who are charged on separate information’s but for the same offence that is committed both in time and place. The cases of Kereku –v- Dodd [1969 – 1970] PNGLR 176 and The State –v- Leo Nimo [1980] PNGLR 129 do allow that where two or more offenders are charged on separate indictment alleging a single count in identical terms may be joined. But in an effort to a joint hearing, the defendants must be told of their rights to a separate trial and the defendants must clearly express their preference for a joint trial. The defendants in our present proceedings have indicated for a joint trial. And so the charges against each defendant are heard jointly on the 27 of July 2007.

4. On 24 July 2007, Mr. B. Koningi, the Counsel for the defendant Albert Ukura accepts the facts as presented by the prosecution in the police handout brief file to Court. Based on those facts, the counsel made a submission founded on two grounds, these are:

i. Whether or not there was a criminal intent by the defendants to commit the crime.

ii. Whether the information of the charge is an abuse of the court process.

5. I will return to these grounds, which become the subsequent issues, later on. But first I should mention of the defendant Ralph Judah Gurah. His case was before the Committal Court. It was then transferred by the Committal Court on the 26 July 2007 to the Grade Five Court for summary proceedings on the 27 July 2007. The defendant Ralph was represented by the Counsel Mr. B. Koningi before the Committal Court. When this matter came before me on the 27 July, the counsel was not present as his father had passed away on the 24 of July. The prosecutor informed the Court that Mr. B. Koningi was representing both defendants. And that it was the intention of the defendant Ralph J Gurah to rely on the counsel’s submissions made on behalf of defendant Albert Ukura on the 24 of July 2007. This was confirmed by defendant Ralph J. Gurah. And so I allow those submissions to be applied to the case against the defendant Ralph J. Gurah. The prosecutor then made his reply to the defence submission.

6. Undisputed Facts:

The facts that are not in dispute are these. The defendants are the executive members of the Arona Valley Landowner Benefit Task Team Incorporation. The Landowner groups made a claim of compensation to the National Government of Papua New Guiena for a sum of K254.9 million. This claim has been long outstanding for some years. On the 16 of June 2006 the landowner group wrote to the Prime Minister Sir Michael T. Somare for further discussions of their demand before the 30 of June 2006. And warned the Prime Minister that failure to hold that discussion will result in the Yonki Dam Power plant being forced to shut down. There were no discussions held. So on the 21 June the landowner group repeated the same message to the Prime Minister that time was running out for the requested discussions. Then the landowners went on the news media on the 27 June and published in the Nationals Paper that the Government has failed to discuss the landowners compensation claim and that if the government does not respond by midday on Saturday or Sunday they will shut down the main power switch at the Yonki Dam.

7. The PNG Power Limited having seeing this publication in The National Paper proceeded and filed at the Waigani National Court the Originating Summons O.S No. 451 of 2006 on the same day. The plaintiff, The PNG Power Ltd, were seeking orders to declare the actions of the Defendants, their officers, servants, agents and members unlawful in participating, inciting, aiding, abetting or taking part in any manner at all. On that same day the plaintiff the PNG Power Ltd also filed a notice of motion and took out the interim restraining orders against the defendants on the 28 June 2006.

8. On the 07 of August 2006 the landowners and the defendants, armed with firearms and bush knives, held up the employees of the PNG Power Ltd at Yonki Dam in the early hours at about 0230 hours to switch off the main power supply. The officer on duty told the landowners that to suddenly shut down the main switch will be disastrous and so it needs to be done section by section to properly shut down the supply. This was understood by the landowners and so the power supply to Madang, Morobe and the Highlands regions were eventually shut down. At the same time negotiations were progressing. And during the course of the day, the armed men have gradually withdrawn.

9. Issues:

I will now discuss the two issues mentioned above.

10. Issue 1: Whether or not there was a criminal intent by the defendants to commit the crime.

Intention is one of the element the prosecution must prove against the defendants under this particular charge. The landowners demand of K254.9 million compensation over the use of their customary land on which the Yonki Dam is established has been a long outstanding. The defendants on behalf of the landowners then wrote to the Prime Minister on the 16 and 21 of June 2006 for a round table discussion on their demand. The landowners threatened to shut down the Yonki Power Plant if the discussions do not eventuate before the 30 of June 2006. There was no discussion forth coming.

11. On the 07 August 2006 the defendants and the landowners moved in while armed and forced the closure of the power supply. On this particular incident, there is no evidence to show that the defendants and the landowners were demanding for the payment of the K254.9 million compensation to be made by the Government before the power supply will be switched on. The intention of the defendants here was for the Government to come down to discuss and negotiate the landowners compensation demand.

12. Mr. B. Koningi, the counsel for the defendants submitted that the landowners have written to the Prime Minister of their demand and they were just following up that communication which lead to the purported invasion of the Yonki Power house. This was a political activity and not a criminal activity. There was no injures inflicted on the persons or damages done to the properties. This shows that there was no criminal activity. There was no injuries inflicted on the persons or damages done to the properties. This shows that there was no criminal intent. The counsel then referred to the case of The State –v- Kwalimu Goina and 3 ors [1982] PNGLR 112. This case involved kidnapping for ransom. This is the only reported case that we could get closer to the cases on extorting which are rare in this jurisdiction. I have not been able to cite any reported cases on extorting to gain payment or compensation, nor did the counsel or the prosecutor referred to me any such cases either.

13. In the case of The State –v- Kwalimu Goina & 3 ors the accused detained the victim, the driver of the school truck, and forced him to transport them to their village. The accuseds were drunk and threatened to kill the driver if he failed to comply. In fear of his life the victim submitted to their demand. In finding them guilty the Court held that “the offence was constituted, where persons detained A with intent to procure their transportation in a motor vehicle then driven by A, by a demand containing threats of injury to A if the demand was not complied with.” In that case it is very clear that the defendants held the driver at ransom and threatened to kill him if he does not transport them to their village.

14. In the present case, the defendants and the landowners held the PNG Power Ltd employees at gun point. They told them to shut down the main power supply switch which they did. The pointing of the firearms at the employees no doubt constitute a threat on the employees of the PNG Power Ltd. However at that point in time there is no evidence that the defendants and the landowners demanded payment of the compensation. The letters of threats to shut down the power supply by the defendants to the Prime Minister in my view do not constitute an offence of intent to extort compensation. The reason being that those letters of threats were for the events to come in future, which may or may not actually eventuate. The fact that those threats were eventually executed some 14 to 21 days later is not sufficient to constitute the offence been charged with. The demand for a ransom or compensation ought to be made at the same time the threat is been executed. That will prove beyond doubt that the defendants have the intention to extort compensation.

15. I find that on the 7 of August 2006 the defendants and the landowners held up the employees of the PNG Power Ltd at the premises of the Yonki Power house at gunpoint. They demanded and the power supply was shut down. However they did not extort compensation at that material time. I find that there was no criminal intent by the defendants to extort compensation on the 07 of August.

16. Issue 2: Whether the information of the charge is an abuse of the Court process.

In support of this Issue, the counsel for the defendants referred to and relied on the Annexures 26 – 34 of the police Handout Briefs in the file. These documents are the copies of: (a) The Originating Summons O.S No. 451 of 2006 filed by the PNG Power Limited against the defendants and all the members of Arona Valley Landowner Benefit Task Team Incorporation at the Waigani National Cjourt; (b) The Notice of Motion on O.S No. 451 of 2006; (c) Affidavit in Support; (d) Interim Court Order; (e) Court Orders. There are interim orders in place by the National Court and the proceedings before the said Court in Waigani on O.S No. 451 of 2006 is still pending. These proceedings are in respect of the offences to which the defendants are currently charged before this Court. Mr. B. Koningi submitted that the present criminal proceedings before this Court is trying to take over the civil proceedings that is pending before the Waigani National Court. That being the situation, he submitted that this amount to an abuse of the Court process.

17. The present criminal charge covers the period between the 16 June 2006 to the 14 February 2007. The incidents of the 16, 21 and 27 of June 2006, no doubt are the matters covered in the civil proceedings still pending before the Waigani National Court as per the O.S No. 451 of 2006. The inclusion of those incidents in the present criminal proceedings before this Court is an abuse of the Court process. Once a person has proceeded and filed civil proceedings in a court of competent jurisdiction he could be estopped from filing criminal proceedings at a later time over the same incident against the same defendant. To do so would be an abuse of the court process.

18. For the period between the 08 of August 2006 to the 14 of February 2007, there is no evidence of the defendants having committed the offence of intending to extort compensation. The Annexure 39 of the police Handout Briefs is the press publication by The National newspaper on the 14 February 2007. In that publication the disgruntled Arona Valley Landowners of Yonki, gave the Government 14 days ultimatum to address their K254.9 million land compensation and other benefit demands. The landowners threaten to pull down the power pylons and to blow up the Yonki Power Plant if the government fails to address their demands.

19. From this publication it appears that defendant Ralph Gurah went to the press and made the demand and threats on behalf of the disgruntled landowners. Whether or not those threats will be executed, only time will tell. Since the time of this publication of the threats, no person nor any property had been held at ransom to extort compensation demanded by the defendants. Even when the members of the disgruntled landowners wanted to cause damage to the power plant and the pylons but defendant Ralph Gurah stopped them. This clearly shows that he has no intention to extort compensation.

20. The only relevant date applicable to the current charge is the incident of the 07 of August 2006. On that particular incident the employees of the PNG Power Ltd were held up at gun point and the demand to shut down the power plant at Yonki was effected. However at that time the defendants only wanted to negotiate with the Government of their outstanding land compensation claim. The event of the 07 August is a clear breach of the interim orders of the Waigani National Court of the 27 June 2006. The defendants have not been sued for the breach of that interim orders. Instead they have been charged with a criminal offence. I consider that this amount to an abuse of the Court process.

21. The term “abuse of the process of the court” is expressed by O’Leary AJ in the case of The State –v- Peter Painke [1978] PNGLR 210 in this way:

“An abuse of the process of the court is an expression used to describe any use of the process or procedures of the court for an improper purpose or in an improper purpose or in any improper way. It encompasses a wide range of situations.”

22. In regard to the criminal charges whether the laying of the charge amount to an abuse of the process of the Court, Pratt J, has this to say in the case of Paia Lifi –v- Philip Dege, N 291 (M): “If the charge is clearly inappropriate, it is the plain duty of the court to point this out to the prosecuting authorities. If the charge is bluntly an abuse of process, then equally it is the duty of the court to refuse to deal with the case. Every court has the right to prevent abuse of its own process, although a Magistrate’s court has certain limitations imposed by statute.”

23. The proceedings by the Originating Summons against the defendants is still pending before the National Court in Waigani. And that same court has issued the interim restraining orders against the defendants of the same. The National Court, in the civil proceedings on O.S No. 451 of 2006, has yet to declare the actions of the defendants as criminal acts. While this civil proceeding is still pending with the interim restraining orders been put in place, any actions taken by the defendants in relation to the matters stated in the Originating Summons and or in the interim restraining orders, such actions will amount to contempt of court. And any breach of the interim restraining order by the defendant should have been charged for contempt of Court. Under these circumstances I consider that the present criminal proceedings brought before this Court is an abuse of the process of the Court.

24. Having satisfied that the prosecution has failed to establish a criminal intent to extort compensation against the defendants and also being satisfied that this proceedings is an abuse of the process of the court, I find the defendants not guilty of the charge. And I make an order that the case be dismissed and the defendants discharged each and severally. The bail for defendant Ralph J. Gurah be refunded.

For the Prosecution - Senior Constable Bonke, of Goroka Police Station
For the Defendants - Mr. B. Koningi of Koningi Lawyers