Police v Timothy [2009] PGDC 99; DC953 (21 September 2009)

DC953

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION

DCR 493-496/2009

BETWEEN:

POLICE
Informant

AND:

TANDA TIMOTHY
JAMES MONE
MICHAEL HIN
FREDERICK MANIAKONO
Defendant

Madang: J. Kaumi
2009: 09th /21st, September

VERDICT

CRIMINAL LAW-Summary offence-Summary Offences Act, Part III, Protection of Persons-Section 20, Unlawfully on premises-Location of confrontation and element of criminality on part of defendants issues for trial-No real challenge on witnesses as to what they saw.

CRIMINAL LAW-PRACTISE & PROCEDURE - Joint trial of four co-defendants.

CRIMINAL LAW-PRACTISE & PROCEDURE-Onus of Proof on defendants to prove lawful excuse-Prosecution did not exclude defence of honest and reasonable mistake of fact after it was raised by two of the four defendants-Verdict of not guilty returned against these two.

CRIMINAL LAW-PRACTISE & PROCEDURE-Exercise of the accused’s right to remain silent is not an admission of guilt and no inference of guilt may be drawn therefrom but it may be to their disadvantage in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters.

Held:

(1). The key Police witness gave generally credible and consistent evidence of seeing the four defendants being part of a crowd of villagers confronting them on the premises of the St Fidelis Seminary.

(2). The only witness for the defendants was unreliable because his evidence was of no value, vague, not specific and he admitted not knowing the boundary of the school and the village.

(3). Court not satisfied beyond reasonable doubt as to the second element of the offence in respect of two of the four defendants and verdict of not guilty returned against these two.

(4). Verdict of guilty returned against two other defendants.

CASES CITED

Garitau Bonu and Rosana Bonu v The State (1997) SC528
Paulus Pawa v The State [1981] PNGLR 498
SCR No 1 of 1980: Re s.22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28
State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (16/10/01) N 2298.

OVERSEAS CASE CITED

Carter v Reaper [1920] VicLawRp 57; [1920] V.L.R. 337

Legislation

Constitution of PNG
District Court Act, Chapter 40
Summary Offences Act, Chapter 264

Abbreviations

The following abbreviations appear in the judgment
CJ Chief Justice
COURT District Court
J Justice
NC National Court
No Number
PNGLR - Papua New Guinea Law Reports
SCRA - .Supreme Court criminal Appeal
S Section
SEMINARY St Fidelis Seminary
SUBS Subsection
SOA Summary Offences Act
ST State
S C Supreme Court
V - versus

TABLES

The following tables appear in the judgment.

1. WITNESSES CALLED BY THE POLICE
2. WITNESSES CALLED BY THE DEFENDANTS

Trial
This was the trial of four defendants charged with being unlawfully on premises.

Counsel

Senior Constable David Bel, for the Police
Defendant in person.

INTRODUCTION

1. Kaumi M: This is a decision on verdict of four men who pleaded not guilty to the charge of being unlawfully on premises. The trial was held in September 2009.

BACKGROUND

(Brief Facts)

2. The incident giving rise to the charge took place at the St Fidelis Seminary on the North Coast Road, in April 2009. The allegation is that the four defendants were unlawfully on the said premises faced the following information:

"Tanda Timothy of Munyu village Mendi, James Mone of Kurelge village Mendi, Michael Hin of Midiba and Frederick Maniakono stand charged that they .......on the 27th day of April 2009 at St Fidelis Seminary, in PNG were on this premises without lawful excuse".

The information was contrary to section 20 of the Summary Offences Act.

3. The four defendants were present throughout the trial.

THE POLICE CASE

4. The Police called two witnesses to give oral evidence.

5. Table 1 lists and describes the Police witnesses in the order that they were called and indicates the days and dates of the trial on which they gave evidence.

TABLE 1 WITNESSES CALLED BY THE POLICE
NO	NAME	DESCRIPTION	DAY DATE 2009
1.	Samson Punin	Student	19th/9/09
2.	Thomas Piopo	Student	19th /9/09

6. The first witness for the prosecution was Samson Punin. In examination-in chief, he stated that he was a student at the St.Fidelis Seminary which is situated along the North Coast Road, Madang.

7.On Monday 27/04/09 between 2:00 to 4:00 pm he was part of a group of students on grass cutting duties and had finished cutting grass at 4:00 pm about 250 meters in from the Seminary’s signboard in the school area. They were walking back to the campus when they saw a pig near them and they stoned it with sticks and stones causing it to run into the paddock and thick bushes.

8. They then continued to walk back to the campus when they heard a lot of noise and saw a large group of villagers shouting at them and coming after them.

9. The witness says he looked in front of them and saw and recognized on the beach in front of them, the defts, Tandy Timothy and Michael Hin.They had paddled a canoe to the front of them, and effectively blocking off their passage to the campus.Tanda was armed with a bush knife while Michael Hin was barehanded.

10. They could not continue so they stopped where they were, put their grass cutting tools ( bush knives) behind them and listened to the villagers even they were on Seminary ground.

11. The witness says he saw and recognized the defendant James Mone who was barehanded at the time walking towards them with one group of men and saw and recognized the other defendant Frederick Manio Kono with another group of men coming behind the first group of men.

12. The witness says he saw and heard Tanda say "Sapos yupla touchim wanpla pik blo mi, mi blo Highlands long Mendi so bai yupla kisim displa bush knife", and the defendant Michael say," Yupla kaikai kan, hamaspla taim yupla wok long kilim pik blo mipla.Yupla giaman na tok yupla kam skul pater na wok long stilim ol samting blo mipla.Pater blo yupla em wanpla masta, na emi wok long bagarapim yumi.

13. Tanda further said "Sapos yupla sutim mipla long gan bai mipla sutim yupla long gan and James said he would sleep in their dormitory if he found out that they had killed his pig.

14. The witness says he later saw Frederick go and shake their hands and say that the villagers would not do anything to them.

15. The witness says that the defendants came to attack them as though they were their enemies and that the school boundary was from the beach to the roadside and to the cow paddock and that the Seminary had obtained a ‘preventive’ order against people and pigs trespassing on its land.

16. He saw the defendant Fredrick and some other people coming behind a group of people who were leading in front.

17. In cross examination, the witness said that the defendant James was a former employee of the Seminary for a long time and he knew that he had trespassed onto the Seminary‘s area.

18. The witness said Frederick had come behind the group and later shook hands with the brothers and then went out of the Seminary area.

19. There was no re examination.

20. The Court asked the victim where the confrontation had taken place to which he replied that it had taken place inside the seminary area.

21. When the Court asked both prosecution and defendants if there are any questions arising from its question James Mone put to the witness that it was not the Seminary area to which he answered that it was and further that it was a private area and nobody questioned this.

22. The second witness for the prosecution was Thomas Piopo who is a student at the St Fidelis Seminary and identified the four defendants.

23. On Monday 24/04/09 4:00pm he finished work parade with a grass cutting crew cutting grass about 250 meters in from the school’s signboard.

24. They were walking back to the campus when they saw a pig and chased it away by stoning it with sticks and stones. They continued on their way back to the campus when he heard some village women calling to their village men then came after them and were shouting at them.

25. The witness saw Tanda and Michael Hin paddle a canoe to the front of them, blocking off their passage to the school and Tanda was armed with a bush knife. He saw James Mone bare-chested and unarmed with plenty of men following him.

26. The witness says that they stopped where they were and put their grass cutting tools behind them and listened to the crowd of men. He heard James Mone say that if they killed his pig he would sleep in their dormitory and Tanda say he would kill them and that if they got a gun he would also get his gun. That Michael Hin said, "kaikai Kan, yupela sanguma, father blo yupela emi no priest emi masta’. The defendants were very aggressive and serious and came to fight.

27. In cross examination, the witness said yes Frederick had come behind the front group.

28. In re – examination, the witness stated that he didn’t know why Frederick came to the Seminary but he had come in a second group of men, and later shook hands with them.

29. That ended Thomas Piopo’s evidence and was the close of the State’s case.

THE DEFENCE CASE

Outline

30. The defence called one witness the defendant James Mone and the other three co-defendants elected to exercise their right to remain silent.

Oral Evidence

31. Table 2 lists and describes the defense witnesses in the order that they were called and indicates the days and dates of the trial on which they gave evidence.

Table 2 WITNESSES CALLED BY THE DEFENDANTS
NO	NAME	DESCRIPTION	DAY DATE (2009)
1.	James Mone	Accused	2 21/9/09

32. The first and only defense witness was the Acc. James Mone.

33. In examination in chief he stated that he was from Mendi.

34. That he worked from the 1st of January 1987 to 2002 for the St Fidelis Seminary.

35. That during his time of employ with the Seminary there was good co-operation and relationship between the villagers and them.

36. But we didn’t know where the boundary line was separating the Seminary and the village.

37. Men used to go and cut mangroves for building houses and women would go to find kina shells and we did not have any problem with the Seminary.

38. The last time an argument happened with the Seminary was because they had eaten plenty of our pigs I think around twelve pigs without letting the owners know so they could come and collect the pigs.

39. They would just kill the pigs and eat the pigs within our view.

40. On that day we went to find out if they had killed a pig or not and this was close to the village and the school was some distance away.

41. They got angry with us and told us that they hadn’t killed the pig and that it had run away.

42. We told them this is close to the village, if the pig comes into the playground or school area then you can kill it.

43. We got cross to them then we shook hands and apologized and then we came back.

44. In cross exam he said people in nearby homes saw them chasing the pig and they called us and we went.

45. I didn’t see the color of the pig and so we didn’t know whose pig it was.

46. I own a pig and I met the students from the Seminary near a little drain.

47. The Rector at the Seminary did not show the boundary of the Seminary and I don’t know where the boundary is that divides the seminary area from the village.

48. I went to the school peacefully and I am still part of the St Fidelis Seminary.

49. No re-examination of James Mone and this was the end of his evidence and the close of the defendant’s case.

SUBMISSION BY THE DEFENDANTS

50. The defendants did not make any final submission.

SUBMISSION BY THE STATE

51. The Prosecutor did not make a final submission either but left it to the Court to make a decision on what evidence had been adduced in Court.

THE LAW: ELEMENTS OF THE OFFENCE

52. T he defendants have been charged with being unlawfully on premises under Section 20 of the Summary Offences Act, which states:-

A person who, without lawful excuse, is in on or adjacent to any premises is guilty of an offence.

Penalty: A fine not exceeding K400.00 or imprisonment for a term for a term not exceeding two years.

53. It is the Prosecution’s case that the defendants were unlawfully on premises. It therefore has the onus of the proving beyond reasonable doubt that:-

(i) The defendants were

(a) In premises; OR

(b) on premises; OR

(c) adjacent to premises;

AND

(ii) They had no lawful excuse for being there.

DISCUSSION OF ELEMENTS OF THE OFFENCE

54. The defendants have been charged with begin unlawfully on premises. The prosecution therefore has the onus of proving without reasonable doubt that:

• The defendants were in premises or on premises or adjacent to premises.
  
• They had no lawful excuse for being there.
  

55. They are the elements of the offence. They are subject to four things. Firstly, the offence requires the prosecution to prove that the four defendants were in, on or adjacent to the Seminary defence. Secondly, once this has been done, then it is up to the four defendants to show that they each had a lawful excuse for being in, on or adjacent to the Seminary. By the operation of the second limb of Sect.20, the onus of proving lawful excuse is on the four defendants. They must discharge this onus on the balance of probabilities. Thirdly, if the evidence provides a basis for the defence of honest and reasonable mistake of fact, then the prosecution must exclude that defence beyond reasonable doubt. Lastly, it is clear that unless there is an element of criminality in the behavior of the four defendants, the court has no option but to find that the four defendants had a lawful excuse. In the case of Carter v Reaper [1920] [1] Hood J. said.

"...Looking at the legislation, I think the meaning to be perfectly clear. It is a criminal section, and...the burden of proof is placed upon any person found on the premises; that person must show that this presence was not for any criminal purpose. If he does that, his trespass is excused, not merely because he had any right or belief in any right, though that would sufficient, but simply by the absence of any wrong intention. His excuse is lawful because it is honest... and therefore he is not to be treated as a criminal".

56. The issues of law that arise in the present case therefore are:-

(a). Were the four defendants, in, on or adjacent to the premises? If yes, the first element of being unlawfully on premises is established. If no, they must be found not guilty of being unlawfully on premises.

(b). Have the four defendants discharged the onus of proving lawful excuse? If yes, they must be found not guilty of being unlawfully on premises. If no, then the second element of unlawfully on premises is established.

(c). Does the evidence provide a basis for the defence of honest and reasonable mistake of fact? If yes, then has the prosecution excluded that defence beyond reasonable doubt? If no, then the prosecution is not obliged to disprove anything.

(d). Has the evidence disclosed an element of criminality in the behavior of the four defendants? If yes, then the second limb is established and the four defendants must be found guilty. If no, then the four defendants must be found not guilty.

ASSESMENT OF EVIDENCE

57. The following approach will be taken:

(i). I will address the standard of proof...

(ii). The non – contentious facts will be laid out.

(iii). I will assess the credibility of the different pieces of evidence that have been adduced.

(iv). I will examine the elements of the charge and the issues

(v). I will then make a determination of the charge.

STANDARD OF PROOF

58. In any criminal trial the defendants can’t be convicted of simply on the account given that is of suspicion only a belief on the part of the tribunal fact (the Court).

59. I t is incumbent on the Court to determine after weighing of all the evidence adduced before it and considered whether there are reasonable grounds for believing that the defendants that were unlawfully on the premises and whose evidence is to be believed, whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that each element of the offence exists.

60. It is settled law that the State has the onus of establishing the charge against the defendants on the required standard of proof, beyond reasonable doubt. This is particularly pertinent to the essential elements of the offence. The law requires the prosecution in every criminal case to establish each of the elements constituting an offence beyond any reasonable doubt to secure a guilty verdict and conviction. The Supreme Court in SCR No 1 of 1980: Re s.22A (b) of the Police Offences Act (Papua) [2] Greville Smith J made this clear in the terms:

"The general rule is that in criminal case it is for the prosecutor to prove, and to prove beyond reasonable doubt, every element of the alleged offence...The rule applies equally to negative elements as well as, for instance, absence of consent in cases of rape. Accordingly the Crown must prove every fact, whether affirmative, or negative, which forms an indictment of the offence."

61. The Supreme Court judgment in Garitau Bonu and Rosana Bonu v The State [3] applied the rule that in the assessment of witnesses and or their evidence in any case, logic and common sense usually played a major part. This was also applied in the State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani [4].

62. So the first question to ask is whether the prosecution has discharged the onus of proving beyond reasonable doubt that the defendants were unlawfully on premises.

NON CONTENTIOUS FACTS

63. The St Fidelis Seminary is located along the North Coast Road outside of Madang Town.

64. The two police witnesses were students at the Seminary and part of the grass cutting crew on the Monday 27th April 2009 at around 4:30 pm that were returning to the campus and had stoned a pig.

65. There was a confrontation these students and a group of villagers.

66. Back to the immediate case, the issue is one of credibility. Has the evidence of the two Police witnesses been credible enough on the essential elements of the charge to discharge the onus placed on the Police? This issue is critical to the outcome of the case. The Police have called two witnesses the two students and on the other hand there is one witness for the defendants. The Court has to assess the demeanor in the witness box, assess the believability of their stories, examine the degree of consistency in their evidence (both its internal consistency and its consistency with the evidence of other witnesses); and examine all other evidence, which can be described as circumstantial in nature, to determine which version of events is the correct one. If at the end of this process, the Court will not know who to believe, the prosecution will not have proven its case and the defendants will be acquitted.

CREDIBILITY OF EVIDENCE

67. Oral evidence for the Police.

68. Police Witness No 1- I considered a generally credible witness for these reasons:

• his demeanor in the witness box was of someone telling the truth.
  
• his evidence was not vague, but brief and specific and he didn’t embellish his story.
  
• his story was internally consistent through out and also in general agreement with the evidence given by the second police witness about the location of the confrontation and what each defendant did to them;
  
• the credibility of his evidence and its believability stood the test of cross examination and was not damaged on the issue of the location of the confrontation and what the defendants did;
  
• his evidence was logical and made common sense.
  

69. Police Witness No 2.I considered was a generally credible witness, for these reasons:

• his demeanor in the witness box was that of a truthful witness.
  
• his evidence was not vague and not contradictory both internally and externally with that of the first Police witness and consistent.
  
• the credibility of his evidence and its believability stood the test of cross examination.
  
• his evidence was specific and in general agreement with logic and common sense.
  

ORAL EVIDENCE FOR THE DEFENCE

70. The Court explained the options of giving evidence and the consequences for each of them that were opened to them in terms of remaining silent or giving evidence on oath and call any other evidence they may have and or give evidence from the dock.

71. In spite of the above Tanda informed the Court that James Mone would testify on their behalf whilst he, Michael and Frederick would remain silent. Michael and Frederick individually affirmed to the court what Tanda had said.

72. The Defendants’ failure to give evidence once the State has established a prima facie in the exercise of their fundamental right to remain silent is not an admission of guilt and no inference of guilt may be drawn there from but it may be to their disadvantage in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters. (See head notes in Paulus Pawa v The State [5] & State v Garitau and Bonu [6].

Defendant James Mone-I considered was an unreliable witness for these reasons.

• his evidence was of little value;
  
• his evidence was vague and not specific and he admitted not knowing where the school boundary with the village was in cross examination.
  

73. Defendants, Tanda and Michael during cross examination of the first Police witness attempted to make statements despite being consistently told by the Court that there was an opportunity for them to make statements during the trial and when given this opportunity did not make use of it instead opting to exercise their right to remain silent. Their conduct is illogical and runs contrary to common sense. It was the conduct of witnesses who were conniving and cunning, rapt on playing a "wait and see "game instead of the serious business of proving their innocence. This caused the Court not to believe their bare denials of the offence.

74. Defendant Frederick – despite his silence, his role in the confrontation was assisted by James Move’s testimony of the general purpose of the villagers going to the Seminary.

SUMMARY

75. The two Police witnesses, Samson Punin and Thomas Piopo gave credible evidence, corroborated each other and there was no material inconsistencies between their evidence.

76. The defendants’ evidence was not reliable.

WERE THE DEFENDANTS UNLAWFULLY ON THE PREMISES OF THE ST FIDELIS SEMINARY?

77. The evidence against them is:

• Samson Punin and Thomas Puiopo both gave generally credible evidence that they were present and saw the four defendants enter the premises of the Seminary.
  

78. There is a reasonable body of evidence on which to conclude that the four defendants were on the premises of the Seminary.

79. I remind myself, again of the onus on the prosecution of establishing the charge against the defendants on the required standard of proof beyond reasonable doubt and that this is pertinent to the essential evidence of the offence. The law requires the prosecution in every criminal case to establish each of the elements constituting an offence beyond reasonable doubt to secure a guilty verdict and conviction. The outcome of this trial hinges on the assessment of Samson Punin and Thomas Puiopo’s evidence – which I have found credible.

DETERMINATION OF THE CHARGE

80. For the purposes of the present case, the offense of being unlawfully on premises has two elements:

i. the defendants were (a) in premises or (b) on premises or (c) adjacent to premises,

ii. they had no lawful excuse for being there.

81. I am satisfied beyond reasonable doubt as to element No 1 for the following reasons:

• the prosecution presented enough evidence to prove that these four defendants were on the premises of St Fidelis Seminary.
  
• evidence adduced by the defendants did not create sufficient doubt on the Police case to warrant a different finding.
  

82. However I am not satisfied beyond reasonable doubt as to the second element of the offence in respect of the defendants James Mone and Frederick Mania Kono.

83. I am satisfied that the defendants, James and Frederick have discharged the onus of proving lawful excuse on the pre requisite standard of proof, balance of probabilities.

84. I do not think the prosecution has provided enough evidence to prove beyond reasonable doubt that these two defendants behavior at the material time amounted to a criminal offence or conduct which was preparatory to a criminal offence.

85. The evidence adduced by James Mone provided a basis for the defence of honest and reasonable mistake of fact and I find that the prosecution did not to exclude this defence against the defendants James and Frederick.

VERDICT

86. I find the defendants, Tanda Timothy and Michael Hin guilty as charged and convict them accordingly.

87. I find the defendants, James Mone and Frederick Mania Kono not guilty and acquit them of the charge.

88. Verdict accordingly

Police Prosecution for the State
Defendants in person.

___________________________
[1] V.L.R. 337 at 341
[2] [1981] PNGLR 28 at page 34,
[3] (1997) SC528
[4] (16/10/01) N2298.
[5] [1981] PNGLR 498
[6] [1996] PNGLR 48 72.