Police v Yayuho [2008] PGDC 77; DC792 (25 January 2008)

DC792

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

GCCr 1073 of 2007

BETWEEN

POLICE
Informant

AND

JOE YAYUHO
ROWA SIPUN
GOROKOWE GIMIGURE
SIMON MOGIA
KOPE SIL
KAUPA BERE
ALWIN AGOWE
Defendants

Goroka: M Ipang

2007: September 18
October 05, 10
December 14
2008: January 16, 22, 25

CRIMINAL LAW – Summary Offences Act, Chapter 264 – possession of offensive weapons – prove beyond reasonable doubt
– Mere assumptions or speculations can not sustain the charge. Defendants not in physical possession of weapons – weapons found several metres away from defendants – near market and public road – leading to health centre – prosecution failed to prove its case.

Held: Prosecution failed to prove its case beyond reasonable doubt. Case dismissed. Defendants discharged. Bail, each and several be refunded. Offensive weapons confiscated are now forfeited to the State and be destroyed after 30 days.

Cases Cited

Nil

References

1. Summary Offences Act, Chapter 264

Counsel

For the Prosecutor - Vincent Bailey
For the Defendants - In Person

25 January 2008

JUDGMENT

M Ipang, Magistrate: Defendants (each and severally) were charged that on the 13 day of September 2007 at Numbia Plantation, they had in their possession offensive weapons namely two (2) home made guns, four (4) bush knives, five (5) bows and three (3) bundles of arrows, without reasonable excuse. They were charged under Section 12 (1) of the Summary Offences Act, Chapter No. 264.

2. All the Defendants appeared from custody on the 18 of September 2007 and pleaded not guilty to the charge when the plea was taken. The case was then set for trial on the 05 of October at 1:30 pm. They were released on K150.00 Court Bail. Only Defendant Wingti Lucas pleaded guilty to the charge and he was convicted and sentenced to four (4) months imprisonment with hard labour.

3. Prosecution commenced its case on the 05 of October 2007 at 1:30 pm. Prosecution called only two (2) of its four (4) witnesses. Other two (2) witnesses were not called as Prosecutor Bailey submitted that they would give the similar evidence like the other two witnesses S/C Jim Mondo and Owens Geseve.

4. Legal Issues

The issue before this Court to determine is; whether or not defendants each and severally were in possession of the offensive weapons?

5. Prosecution’s Case

10 September, 2007: The first prosecution’s witness S/C Jim Mondo, gave the following account of evidence. He told this court that on the 10 of September 2007 which was on a Monday, he was at the Police Station when Policewoman Nancy who is based at Asaro Police Station came and told him that ‘Lucas’ people went in to the Numbia Plantation. He further said, ‘she told him that Mathew and Albert’s people will fight?

6. This witness said he knew of the previous problem with this plantation between the old management and the new management. He said there was a previous fight and four (4) people had died. He said due to the seriousness and urgency of the matter, he went and briefed his Police Station Commander S/ Sgt Gabriel Samor. He further said, the PSC instructed him to investigate the situation.

7. The witness and his other colleagues proceeded to Numbia Plantation. He said they arrived at the plantation and he met some of the defendants now before the Court. He estimated them to be numbered around 20 to 25 and they were near the road.

8. He parked the vehicle and questioned the defendants, “What are you guys doings here?” Defendants replied, “we want to work at the plantation. I asked them whether they got permission from the management? I said go back, write a letter and give it to the management.

9. In reply defendants told the witness that they were the owners of the plantation. They said they will wait and talk with Albert or Mathew. Witness said he went to look for the management but could not locate any of the management officials.

10. He said the Defendants left and he drove back to the police station.

11. Tuesday 11 September 2007

The witness told the Court that on Tuesday 11 September, defendants went back to the plantation again. He said eh received the report again and went back. He told the Court that he advised defendants to go back and wait till permission is received fro the management.

12. Wednesday 12 September 2007.

The witness said they learnt that the Defendants were still at the plantation so they arranged for more manpower to move the defendants out of the plantation. He said his Police Station Commander (PSC) went to seek man-power assistance to move the defendants out of the plantation.

13. Thursday 13 September 2007

S/C Jim Mondo said on Thursday 13 September 2007, the Asaro police with assistance from Mobile Police & Police Task Force moved in to the Numbia Plantation.

14. When they arrived at the plantation, witness testified that he saw that defendants had built shelter and slept there. He said they surrendered the area. He said there were mothers ......with all the defendants. He further said the two (2) people who held the gun ran away and members of Mobile Squad could not locate them.

15. This witness said they saw bush knives. Police got the weapons. They searched the area and found two (2) home-made shotguns, spears (arrows) and bows. Defendants did not say who own these offensive weapons.

16. Witness Owens Geseve

This witness is a Police Officer attached to Asaro Police Station. He said on the 13 September 2007 at around 11:00 am all the Police Personals went into the plantation. At the plantation he saw defendants made tents & lived there, they made fire. He said they arrested the defendants and got weapons from where defendants were located. He said they got two (2) home made guns, busk knives, five (5) bows and arrows.

17. Defense Case

On the 22 January 2008, Defendants gave evidences. All the defendants gave similar versions of evidence except for defendants Kope Sil, Kaupa Bere and Alwin Agowe. Kope Sil and Kaupa Bere are from Simbu Province and both said they were going to the Health Centre when they were rounded by Police personnels and taken to Police Station. Alwin AGowe said he was on his way to the garden when Police apprehended him. The defence persued by these three (3) defendants were not actively rebutted by Prosecution.

18. The other four (4) defendants contended that they were not in possession of the offensive weapons as alleged by the prosecution. They maintained that weapons were not in their possessions when police apprehend them. They gave same evidence that the weapons were found some several metres in the bush.

19. Application of Law

Section 12 (1) of the Summary Offences Act, Chapter 264 states:

12(1) A person who without reasonable excuse –

has in his possession, custody or control any offensive weapons is guilty of an offence.

All the prosecution must prove is that the defendants had offensive weapons in their possession, custody or control and that they had no reasonable excuse for having those offensive weapons.

20. On the 18 of September Wingti Lucas was convicted based upon his own admission on being physically in possession of the offensive weapon. Unlike, all the other co-defendants, they were not in physical possession of these offensive weapons.

21. During cross-examination by the prosecutor, he asked that because of problems in the past over the plantation, defendants were in possession of these weapons for security purposes. I have seen this line of question as trying to assume or speculate. Courts will not convict defendants on mere assumptions or speculations. He who asserts must prove and in this case, it is a proof beyond reasonable doubt. The burden of this proof lies on the prosecution.

22. No one had seen defendants prior to the weapons being found in the bush of defendants in possession of them. How could we reasonable connect defendants to these offensive weapons found in the bush? Was it because Wingti Lucas was convicted of this offence, his other co-defendants should find the same convictions? Where is the logic?

23. Is it a logical premise to draw that because defendants were in the wrong place and these weapons were found in the bushes where they were stationed, they were likely to be in possession of these weapons, is of course an illogical proposition and can not be substantiated with [hard or soft] evidence.

24. I definitely do not find it safe and secure to convict these defendants on evidences which are based on assumptions, speculations and propositions which do not have evidence to support them.

25. Finding

It is my finding that the prosecution has not proved its case beyond reasonable doubt.

26. Court Order

I, therefore dismiss the case against each defendant, aquit them from the charge. Bail of K150.00 each and severally be refunded. Offensive weapons confiscated be forfeited to the State and be destroyed after the expiry of 30 days appeal period.

For the Prosecutor - Vincent Bailey
For the Defendants - In Person