State v Allam [2009] PGNC 160; N3788 (13 November 2009)

N3788

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 30 OF 2004

THE STATE

V

ALLAN ALLAM

Minj: Makail, J
2009: 9th, 10th & 13th November

CRIMINAL LAW - No case submission - Wilful damage of property - Elements of offence discussed - Evidence of - Whether all elements of offence established - Whether State has established a prima facie case - Criminal Code - Section 444 (1).

CRIMINAL LAW - Practice & Procedure - Indictment - Pleading of particulars of property damaged or destroyed - Whether accused actual perpetrator of offence - Failure to rely on principle of principal offender - Aider and abettor - Criminal Code - Section 7.

Cases cited:

The State -v- Paul Kundi Rape [1976] PNGLR 96
The State -v- Tom Morris [1981] PNGLR 495
The State -v- Roka Pep (No.2) [1983] PNGLR 287
The State -v- Herman Kabai (1997) N1610

Counsel:

Mr. J Waine, for the State
Mr. B Aipe, for the Accused

RULING ON NO CASE SUBMISSION

13th November, 2009

1. MAKAIL, J: On 9th November 2009, the State indicted the accused on one count of wilful damage of property contrary to section 444 (1) of the Criminal Code. The accused has denied the charge. It is relevant that parts of the indictment should be set out as a no case submission has been made on-behalf of the accused to dismiss the charge on the basis inter-alia that, the accused did not destroy or damage the properties pleaded in the indictment. The relevant parts read:

"Allan Allam of Normar village, Minj, Jiwaka Province stands charged that on the 29th day of June 2003 at Kurumul, in Papua New Guinea he with others willfully and unlawfully destroyed a Lister Generator with accessories, agricultural equipments (sic), construction equipments (sic) and materials, vehicle parts and household properties, the property of PAUL MAI."

2. The allegations of fact of which the State presented and the Court arraigned the accused are as follows; On Sunday 29th June 2003, at about 1:30 pm, the accused and his clansmen and women numbering 20 to 30 and armed with bush knives, axes, sticks, stones and firearms, drove into the premises of Paul Mai at Jimbina coffee plantation, Kurumul in Minj and threatened to rape and kill the wives of Mr Paul Mai. They forcefully removed them from the house and broke into several other houses located on the premises. They destroyed household items including a Lister Generator with accessories, agricultural equipment and chemicals (fertilizers), construction equipment and materials, and smashed windscreens and glasses of motor vehicles parked on the premises.

3. The State alleged that the total value of the properties destroyed is K301,581.00 and they belonged to Mr. Paul Mai. The incident occurred as a result of a dispute over the ownership of Jimbina coffee plantation as well as Kurumul. The State further alleged that the accused led the group and they willfully and unlawfully destroyed the properties.

4. I should point out at this juncture that the State had not relied on the principle of principal offender under section 7 of the Criminal Code in this case. This means that the State indicted the accused as the actual perpetrator of the offence, a point which I will elaborate on later. As the accused had denied the charge, the State called 2 witnesses who gave oral evidence to support the State’s case. These witnesses were:

1. Mrs. Christine Mai; and

2. Mr. Simon Mai.

5. A statement of Mrs. Mai was also admitted into evidence as a prior inconsistent statement and marked as exhibit "P1". As for Mrs Mai and Mr Mai’s oral evidence, their evidence can be summarized as follows:

Mrs Christine Mai

6. Mrs Christine Mai is one of the wives of Mr Paul Mai. She lived with the other wife of Mr Paul Mai at Jimbina coffee plantation. On the day in question, she was with the other wife of Mr Paul Mai and their children in the house. They had not gone to church at Four Square Gospel Church in Minj on the morning of that day because their husband who usually drove them to church had gone to Port Moresby. About 1 o’clock in the afternoon, she heard noises coming from outside the house and looked out of the window. She saw 3 motor vehicles entered the premises from the direction of the gate of the premises. Then, she heard a gun shot and saw their big dog being shot down by one of the people who entered the premises.

7. She saw many people in the 3 motor vehicles. These people jumped off the motor vehicles. They were armed with bush knives, sticks, stones and even firearms. Some of these people painted their bodies and faces with black ashes. Most of them were youths and she recognized some of them who had not painted their faces with black ashes. Some of them broke into the house they were in and smashed cooking utensils, emptied a big bag of rice and other food stuff in the kitchen and broke furniture. Others stood outside and smashed louvers and glasses with sticks and stones. Others threw stones on the roofs of the houses. She heard them shouting as they went about ransacking the premises. She heard some of them say that this was a warning to her and they would come back next time. Before they do, she must vacate the premises.

8. She was so terrified. There was no where to hid or escape because the premises was surrounded by these people. She collected her children and ran into the bath room of the house and hid there. They hid there for sometime. The people left the house and went away. After 20 minutes or so, she heard them return in the motor vehicles. This time, some of these people came into the house and went into the bathroom and dragged her and the other wife with their children out of the house. They seated them on the lawn outside the house and surrounded them. Then they verbally abused them. They even asked questions like, "why can’t you leave the premises?" They also asked if the household items and belongings in the house belong to her and Mr Paul Mai or the company (Waghi Mek Plantations Limited). She told them that all the household items and belongings belonged to her and her husband.

9. Amongst the group who surrounded them, she saw and recognized the accused. She also saw and recognized Tumum Allam and Joseph Kauge. Joseph Kauge was very vocal. He told her and her husband’s other wife that they must vacate the premises immediately. Otherwise, they would end their lives there. Also amongst the group who surrounded them were 3 women. These women spat on them and swore at them. They were very aggressive and abusive. They pulled their ears so hard that the pain was so excruciating.

10. As they sat outside, she saw some of the people bring 2 huge mattresses, 2 tiger brand blankets, her husband’s satellite phone and a radio CD player and left them with them. Then they forced them to get on a motor vehicle and leave the premises with these items. But she told them that she did not know how to drive and told them to wait for a driver to come. They told her that if she and her party did not leave by dusk, they would organize some bad guys to come and rape them. About 6 o’clock in the afternoon, the driver arrived and she and her husband’s other wife and children collected the 2 huge mattresses, 2 tiger brand blankets, her husband’s satellite phone and the radio CD player and got into the motor vehicle and left the premises.

11. As they were leaving, she heard the people say that they should never return to the premises. She took refuge at some relatives’ house, not so far from Jimbina coffee plantation and then moved to Mt Hagen and has been living there since. She has never returned to the Jimbina coffee plantation. As they were forced out of the premises by the people without warning, they had not collected all their personal belongings, household items, her husband’s construction equipment and materials, Lister Generator, agricultural equipment, chemicals and motor vehicles. They also left behind 3 houses, one of them newly built but incomplete. All of these equipment, materials and items were destroyed or damaged by the people.

Mr Simon Mai

12. Mr Simon Mai is the elder brother of Mr Paul Mai. He also lived with Mr Paul Mai and his wives on the same premises at Jimbina coffee plantation in Minj. His house is located at the edge of the premises. It is located like at the old Minj airstrip and his brother’s house is located like at Minj District Court house.

13. On Sunday 29th June 2003 between 2 o’clock and half past 2 in the afternoon, he was in his house. While in his house, he heard noises coming from his brother’s house and looked towards the direction of his brother’s house. He saw the accused drive his white Toyota Hilux into the premises and towards his house. The back trail of the motor vehicle was filled with people. When the motor vehicle reached his house, it turned around and went back to his brother’s house. When he saw that, he followed it. When he arrived at his brother’s house, he saw the house was surrounded by many people. He saw and recognized the accused, the accused brother, named Tumum Allam and another person named, Joseph Kauge. These three persons seemed to be the ring leaders of the group as they talked and gave instructions to the others to destroy and damage anything on the premises.

14. He also saw the two wives of his brother sitting with their children on a motor vehicle, which he described as a Mazda Dyna. They had with them 2 mattresses and 2 tiger brand blankets. The people told them to leave the premises immediately. As he stood there, Joseph Kauge came from behind and struck him on his forehead with a bush knife. He sustained a deep wound and bled. Then the accused told him to get his family and vacate the premises too. The accused had not told him the reason for telling him to vacate the premises. He walked out of the gate of the premises and stood beside a fence and watched helplessly as the people ransacked the place. He saw that most of the people who converged on the premises were youths.

15. In fear of his life, he moved further away from the premises, towards the location of his house where he found a spot amongst the coffee trees and hid himself. From there, he watched the people ransacked the place. He was able to see people throw stones on the walls and roofs of the houses and cut plants and things around the houses. The situation was tense and like a tribal fight.

16. After that, he ran away to the main village and sought refuge there for sometime. When he returned to Jimbina coffee plantation, he discovered that his house was destroyed and all his personal items and belonging had gone. As for his brother, he discovered that many of the construction equipment and materials had gone missing. All the domesticated animals like chickens and pigs had also gone missing. A motor vehicle Mazda Bravo utility which his brother had bought from Coca Cola company, had also gone missing. Three houses on the premises were also destroyed. The first one was where his brother and family had lived whilst the second one was where the "manager" had lived. The third one was a newly built but incomplete one, built by his brother. After he inspected the premises, he returned to the main village and lived there since.

17. The offence of wilful damage of property is provided under section 444(1) of the Criminal Code, which reads as follows:

"444. Malicious injuries in general: punishment in special cases.

(1) A person who wilfully and unlawfully destroys or damages any property is guilty of an offence that, unless otherwise stated, is a misdemeanour.

Penalty: If no other punishment is provided by this section - imprisonment for a term not exceeding two years."

18. In order for the State to establish this offence, it bears the onus of proving the following elements:

1. A person;

2. Wilfully;

3. Unlawfully;

4. Destroys or damages; and

5. Property.

19. All five elements of the offence must be proven by the State before the Court can find an accused guilty of the offence of wilful damage of property under section 444(1) of the Criminal Code.

20. In an application for no case, the main issue is whether or not the evidence presented by the State thus far establishes a prima facie case against an accused. The leading cases on a "no case to answer" are: The State -v- Paul Kundi Rape [1976] PNGLR 96, The State -v- Tom Morris [1981] PNGLR 495, The State -v- Roka Pep (No.2) [1983] PNGLR 287 and The State -v- Herman Kabai (1997) N1610.

21. In those cases, it has been held that in a no case submission, it is inappropriate to consider whether the Court has reasonable doubt at the close of the State’s case on the evidence presented thus far. The Court is therefore, not required to examine the evidence in minute detail so as to apply a higher standard of proof, that is, beyond reasonable doubt to determine whether an accused has a case to answer. The standard of proof is low and to do otherwise would lead to applying a higher standard hence, determining the guilt or innocence of the accused at that stage of the trial. In considering this issue, I take into account the oral submissions of counsel and the evidence of the two State witnesses.

22. First, I turn to the elements of "destruction" or "damage" and "property". I shall discuss these elements together because in my view, they are inseparable. Upon review of the evidence of the two witnesses, there is no doubt in my mind that various properties on the premises of Mr Paul Mai at Jimbina coffee plantation have been damaged or destroyed. The two witnesses have given unequivocal evidence that properties such as household items, a Lister Generator with accessories, agricultural equipment and chemicals (fertilizers), construction equipment and materials (eg, sawn timbers or planks), and windscreens and glasses of motor vehicles parked on the premises and houses on the premises had been destroyed or damaged. This is despite counsel for the accused many attempts to get them to say otherwise in cross examination with the exception of the Lister Generator, which according to Mrs Mai is still intact.

23. In my view, the evidence of the two witnesses tend to establish the description and type of the properties that were destroyed or damaged during the raid at the premises of Mr Paul Mai on Sunday 29th June 2003 which is consistent with the pleadings in the indictment. Thus, I find no basis for counsel for the accused to attack the inadequacy of the evidence in relation to the description and type of properties destroyed or damaged during the raid in his cross examination of the two witnesses. The point is, as long as the particulars of the properties destroyed or damaged have been pleaded in the indictment, evidence must be adduced to prove them. In this case, as I said, there is sufficient evidence establishing the properties destroyed or damaged as pleaded in the indictment. I am therefore satisfied that these two elements of the offence have been made out by the State.

24. I turn to the third element and that is "person". Is the accused the "person" who destroyed or damaged the properties of Mr Paul Mai? In this case, I find that there is evidence identifying the accused as one of the persons who entered the premises of Mr Paul Mai and his wives that day. Mrs Mai said that he saw him on the premises. He was driving a motor vehicle, which she described as a Toyota Hilux, white in colour. Mr Simon Mai also said he saw the accused. He said that he saw him drive the white Toyota Hilux to his house located at the edge of the premises, turned around and drove back to Mr Paul Mai’s house.

25. But the question is; did the accused destroy or damage the properties of Mr Paul Mai? For example;

* Did he smash the glasses and windscreens of the motor vehicles parked on the premises of Mr Paul Mai?

* Did he smash the louvers of the houses of Mr Paul Mai?

* Did he throw stones on the roof of the houses of Mr Paul Mai?

* Did he remove or pull down the newly built or constructed house of Mr Paul Mai?

* Did he damage or remove the Mazda Bravo utility by driving it away from the premises of Mr Paul Mai?

* Did he damage the Lister Generator with its accessories?

* Did he destroy or damage the agricultural equipment and chemicals (fertilizers)?

* Did he destroy or damage the construction equipment and materials (eg, sawn timbers or planks)?

26. I ask this long line of questions because they are so crucial to one of the elements of the offence. That is, whether the accused was the "person" who destroyed or damaged the properties of Mr Paul Mai. On review of the evidence of both witnesses, I must say that both witnesses have not said that the accused destroyed or damaged these properties. There is simply no evidence from these two witnesses to establish that the accused:

* smashed the glasses and windscreens of the motor vehicles parked on the premises of Mr Paul Mai?

* smashed the louvers of the houses of Mr Paul Mai?

* threw stones on the roof of the houses of Mr Paul Mai?

* removed or pulled down the newly built or constructed house of Mr Paul Mai?

* damaged or removed the Mazda Bravo utility by driving it away from the premises of Mr Paul Mai?

* damaged the Lister Generator with its accessories?

* destroyed or damaged the agricultural equipment and chemicals?

* destroyed or damaged the construction equipment and materials (eg, sawn timbers or planks)?

27. So I do not know what the accused destroyed or damaged on the premise of Mr Paul Mai. There is absolutely no evidence establishing that the accused destroyed or damaged the properties of Mr Paul Mai on that day. It seems to me that the accused did not even lay a single hand on any of the property of Mr Paul Mai. Simply put, there is no evidence to satisfy me that the accused destroyed or damaged the properties of Mr Paul Mai. But what I do know and am able to find as is apparent from the evidence of the two witnesses are that, first, the accused was present at the premises of Mr Mai on that day. He was seen driving a white Toyota Hilux motor vehicle into the premises and standing and talking to Mrs Mai. Secondly, the accused told Mrs Mai to pack her belongings and leave the premises. Thirdly and most importantly, the accused’s clansmen and women or the people who came with him damaged or destroyed the properties of Mr Paul Mai. Not him.

28. I consider the third point critical in this case, because it is unclear from the allegations of fact presented by the State, which the Court adopted for purposes of arraignment of the accused where the State said; "The State further alleged that the accused led the group and they wilfully and unlawfully destroyed the properties." Has the State indicted the accused as the actual perpetrator of the offence although he led a group of people to destroy and damage the properties of Mr Paul Mai or has it indicted him as a principal offender by virtue of section 7 of the Criminal Code? (Underlining is mine).

29. In my view, this question is critical because the State cannot hold the accused criminally liable for the actions of his clansmen and women or the people who went with him to the premises of Mr Paul Mai that day if the State has not alleged that the accused is a principal offender by virtue of section 7 of the Criminal Code. This is because in law, the State is required to inform the Court and of course the accused that it would rely upon the principle of principal offender under section 7 of the Criminal Code. It has not done so in this case. In other words, the State has indicted the accused as the actual perpetrator of the offence rather than an aider and abettor under section 7 of the Criminal Code.

30. Hence whilst there is evidence establishing that he led his clansmen and women to the premises of Mr Paul Mai where his clansmen and women destroyed or damaged various properties on the premises, the Court cannot hold him liable for the actions of his clansmen and women that day simply because the State had not alleged that he aided and abated the commission of the offence by virtue of section 7 of the Criminal Code. This is a fatal error or omission on the part of the State of which neither counsel had drawn my attention to. It is fatal to the State’s case because as the State had not relied upon section 7 of the Criminal Code, I cannot hold the accused criminally liable for the actions of his clansmen and women on that day.

31. To my mind, it does not matter or is irrelevant for the purposes of section 444(1) of the Criminal Code if the accused is a ring leader if the State had not relied upon section 7 of the Criminal Code in its allegations of fact put to the accused during arraignment by the Court. And I pause here to observe that, the accused had not been charged with being unlawfully on premises and unlawfully disturbing householders, both being summary offences under sections 20 and 26 of the Summary Offences Act, even though the evidence presented thus far by the State points in that direction.

32. For example, Mrs Mai complained of being verbally abused and threatened by the accused. The accused told her to pack her belongings and vacate the premises with her family. In my view, this kind of evidence has no relevance at all to a charge of wilful damage of property. Having made this observation, I consider that whatever the reason may be, I conclude that the evidence of the two witnesses thus far do not point to the accused as the "person" who destroyed or damaged the properties of Mr Paul Mai as pleaded in the indictment, even though he was present at the premises of Mr Paul Mai on that day.

33. If the State proceeded against the accused as the actual perpetrator of the offence, independently and separately from his clansmen and women or people whom he led to the premises of Mr Paul Mai and destroyed or damaged the properties, as is the case here, as I have alluded to above, there is not one evidence to establish that the accused destroyed or damaged the properties of Mr Paul Mai. The evidence of the two witnesses established that he was at the premises giving instructions to his clansmen and women to do the damage or destruction. But he had not participated or damaged or destroyed any of the properties of Mr Paul Mai. So how can the Court find that he was the person who damaged or destroyed the properties of Mr Paul Mai? I find the State has not satisfactorily answered this question in the light of the evidence presented thus far.

34. For these reasons, I am not satisfied that the accused is the "person" who destroyed or damaged the properties of Mr Paul Mai. This element of the offence has not been made out by the State.

35. That being the case, as I stated earlier, the onus is on the State to prove all the elements of the offence and since it has failed to prove one of them, that being the element of "person", it would be a futile exercise to address the next two elements of the offence, that is whether the damage or destruction of the properties was "wilful" and "unlawful". I consider that this is a case where the first principle of a no case submission as discussed in Paul Kundi Rape’s case (supra) applies. That is, insufficiency or lack of evidence to prove the elements of the offence. It is a case where, on the evidence as it stands, the accused could not be lawfully convicted of the offence of wilful damage of property.

36. I am satisfied that the accused has made out his no case submission and I uphold it. I dismiss the charge and order that he be discharged forthwith. I also order that his cash bail be refunded forthwith.

Ruling and orders accordingly.

_______________________________________

Acting Public Prosecutor: Lawyers for the State
Bosip Aipe Lawyers: Lawyers for the Accused