State v Minji; State v Sakol (No 1) [2009] PGNC 194; N3795 (16 November 2009)

N3795

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 290 OF 2008

THE STATE

V

STEVEN MOLU MINJI, SIMON KOSO KERENGA, JOHN MINJI, & JAMES KAUBOI

AND

CR NO 864 OF 2008

THE STATE

V

DIDI GELWAK SAKOL

(No 1)

Minj: Makail, J
2008: 18th & 19th November & 2009: 14th, 15th, 16th &
20th April, 04th, 05th, 11th & 16th November

CRIMINAL LAW - Verdict - Wilful damage of property - Damage to private property - Chopping of coffee trees - Elements of - Alibi evidence - No notice of alibi - Evidence of alibi unreliable - Recent invention - Identification evidence - Recognition - Allegations of threats and undue influence by police - Challenge to propriety of records of interview - No voir dire - Circumstantial evidence - Guilt only rational inference to be drawn - Guilty verdict returned - Criminal Code - Section 444 (1) - Criminal Practice Rules - Order 4, rules 4 & 8.

Cases cited in this judgment:

Papua New Guinean cases cited:

The State -v- Allan Allam: CR No 30 of 2004 (Unnumbered & Unreported Judgment of 13th November 2009)
The State -v- Michael Wapidik & Wesley Michael (No 1): CR No 489 of 2007 (Unnumbered & Unreported Judgment of 15th July 2009)
Cosmos Kutau Kitawal & Christopher Kutau -v- The State (2007) SC927
The State -v- Raphael Kewangu (2002) N2189
John Jaminan -v- The State (No 2) [1983] PNGLR 318
The State -v- Ali Kei Paiya: CR No 478 of 2004 (Unnumbered & Unreported Judgment of 09th August 2005)
Paulus Pawa -v-The State [1981] PNGLR 498
John Beng -v- The State [1977] PNGLR 115
The State -v- Tom Morris [1981] PNGLR 493

Overseas cases cited:

Browne -v- Dunn (1893) 6 R 67 HL

Counsel:

Mr J Waine, for the State
Mr N Nagle, for the Accused

VERDICT

16th November, 2009

1. MAKAIL, J: On 18th November 2008, the State jointly indicted the five of you of one count of wilful damage of property, an offence under section 444(1) of the Criminal Code of Papua New Guinea. This offence carries a maximum penalty of 2 years imprisonment.

ALLEGATIONS OF FACT

2. The State alleged that between 4 o’clock and 6 o’clock in the morning of Wednesday 31st October 2007, the five of you and your accomplices armed yourselves with bush knives and axes and entered the coffee plantation of the Banz Catholic Church at Banz station. You chopped a total of 2,230 coffee trees. The total value of the destroyed coffee trees was K45,658.80 and the State said that the coffee trees belong to the Catholic Church of Banz. The State also alleged that the coffee trees were on the land belonging to the Banz Catholic Church under a State lease (Mission Lease), described as Portion 91 ("land").

STATE’S EVIDENCE

3. Each of you denied the charge and the allegations the State made against you. This put the State to task to prove the charge against each of you. The State called four witnesses who testified against you. They were Peter Sakipo, Ben Simp, Petrus Malts and Dominic Mur. In addition to these witnesses, the State tendered into evidence with your consent, through your lawyer, the following documents which formed part of the State’s evidence against you:

1. Record of Interview of Simon Koso Kerenga in Pidgin and English versions (Exhibit "P1");

2. Record of Interview of James Kauboi in Pidgin and English versions (Exhibit "P2");

3. Record of Interview of John Minji in Pidgin and English versions (Exhibit "P3");

4. Record of Interview of Steven Molu Minji in Pidgin and English versions (Exhibit "P4");

5. Record of Interview of Didi Gelwak Sakol in Pidgin and English versions (Exhibit "P5"); and

6. State Lease (Mission Lease) for Portion 91 (Exhibit "P6").

4. The State witnesses’ evidence against you is that, between 4 o’clock and 6 o’clock in the morning of Wednesday 31st October 2007, the five of you and your accomplices armed yourselves with bush knives and axes and entered the coffee plantation of the Banz Catholic Church at Banz station. You chopped a total of 2,230 coffee trees. The total value of the destroyed coffee trees was K45,658.80. The coffee trees belong to the Banz Catholic Church.

Peter Sakipo

5. Mr Sakipo who is from Sipil village in Banz and Senglap-Kanem tribe and the Chairman of the Banz Catholic Church Pastoral Advisory Board at that time said, around 6 o’clock in the morning of that day, he was walking on the road towards the Banz Catholic Church to attend a morning mass. On the way, he saw all of you coming out of the coffee plantation. He was standing about 50 meters from you. This was the place the Court visiting party first stopped at the crime scene to view. He saw that some of you were holding bush knives and others were holding axes. He also saw that the coffee trees were chopped. He said although it was around 6 o’clock in the morning, he couldn’t have mistaken each of you because the sun was up by then and the place was clear enough to see each of you amongst a group of about 40-50 people.

6. He also said that he knew all of you because you were members of the Senglap-Kanem tribe of Banz of which he is also a member and have lived together for many years. That is why he recognized each of you. He further stated that you were the very persons who demanded the Banz Catholic Church to return the land on which the coffee plantation is on to you and have been putting so much pressure in the Bishop of the Catholic Church and the Banz Catholic Church Pastoral Advisory Board to make a decision to return the land to you. The dispute has been going on for a very long time.

7. He named the five of you plus Alois Nolya and Konts Minji as the ring leaders of the group that demanded the return of the land even though the land was and is still registered as a State lease (Mission lease) which Banz Catholic Church is the owner. But the man spear heading the group is you John Minji. He said you are a retired Senior Magistrate. You came out of the coffee plantation and walked towards Mombol river in the direction of your villages. After the destruction of the coffee trees, on Thursday 01st November 2007, he arranged with a local Department of Primary Industry officer to carry out a valuation of the destroyed coffee trees. A valuation was done and the costs of the 2,230 destroyed coffee trees was K45,658.80.

8. He further said that this was not the first time such incident has happened. The first incident was where you chopped 500 coffee trees to clear the way for survey work to be carried out. The total value of the coffee trees destroyed was K15,000.00 and he made a complaint to the police at Banz Police Station but nothing was done about it.

Philip Simp

9. As for Philip Simp, he is from Malbanga village in Banz and a member of the Amdapang tribe. He is also a member of the Banz Catholic Church Pastoral Advisory Board. He also said that he saw you all at the Banz Catholic Church coffee plantation on the early morning of Wednesday 31st October 2007. He was on his way to the half past six morning mass at Banz Catholic Church when he saw you. It was around 6 o’clock when he saw you. You were either holding bush knives or axes at that time. He did not talk to you all because he was afraid you might attack him because you were all armed with either bush knives or axes and you were many. He also said that the Board did not agree to return the land on which the coffee plantation is to you.

Petrus Malts

10. Petrus Malts said that he is from Grisa village in Banz and a long time Catechist of Banz Catholic Church parish. He is also the caretaker of the Banz Catholic Church coffee plantation and lives in a house close to the church ground. He is a member of the Senglap-Kanem tribe because you all shared a common ancestor. He also said that he saw you at the Banz Catholic Church coffee plantation on the early morning of Wednesday 31st October 2007. At that time, he was getting ready for the half past six morning mass at Banz Catholic Church when church members came and told him that his "brothers" had chopped all the coffee trees at the nearby coffee plantation.

11. When he heard that, he ran quickly to the coffee plantation and when he arrived, he saw that most of the coffee trees were already chopped down. He also saw you and other accomplices chopping some of the coffee trees that were still standing. He called you James Kauboi, Steven Molu Minji, Clement Kamal, John Minji, Didi Gelwak Sakol, Konz Minji and other men whom he did not know their names as the persons he saw. You were either holding bush knives or axes at that time. He did not talk to you because he was afraid you might attack him as you were armed with bush knives and axes and you were many. He returned to his house feeling very depressed over the destroyed coffee trees.

12. Recalling the incident, he said that as a Catechist of 25 years, he was and is not aware of the Bishop of Mt Hagen approving the return of the land to you. He was and is also not aware of the land, being a State land was transferred to you.

Dominic Mur

13. Dominic Mur is from Sipil village and also a member of your Senglap-Kanem tribe, having originated from a common ancestor as you. He lives further away from the Banz Catholic Church. He is also a youth leader of Banz Catholic Church. He said that, he also saw you all coming out of the coffee plantation on the early morning of that day. He was at his house near the church ground of Banz Catholic Church getting ready for the half past six morning Mass when he heard church members shouting and crying. He heard them say that your "brothers and fathers" had chopped down coffee trees at the Banz Catholic Church coffee plantation. When he heard that, he ran to the coffee plantation with his other "brother" and saw that most of the coffee trees had been chopped down, leaving only a few standing.

14. He stood about 20 meters away from the direction of Banz Catholic Church parish station and saw you come out of the coffee plantation, armed with bush knives and axes. He said that he could not have mistaken each of you because he has seen you before and knows you well enough to confidently say that it was you he saw that morning. As a faithful church member of Banz Catholic Church parish, he is aware of negotiations between the parties but was not involved. He is also aware of a past similar incident where you chopped down coffee trees to clear the land for surveying purposes. He did not know the costs of the destroyed coffee trees but said that the chairman would know.

15. Before I turn to your evidence, I pause here to make some observations about the cross examination of these witnesses by your lawyer which will became relevant when it comes to which sides’ evidence I shall accept to ultimately decide whether you are guilty or not of this offence.

16. First, your lawyer did not put to the State witnesses in cross examination, if each of you were asleep in your houses at the time the coffee trees were being chopped. Your lawyer also did not suggest to the State witnesses in cross examination, in particular to Mr Sakipo if he did see you John Minji follow him to the coffee plantation on that morning. Further, you through your lawyer did not put to the State witness, Mr Sakipo if he did see you James Kauboi follow him up to the coffee plantation that morning from river Mombol after he received news of the coffee trees being chopped down.

17. Secondly, in relation to your claim that there was another group interested in the same land led by Mr Sakipo and Ben Kombagle and this group opposed the return of the land to you, I note in cross examination, your lawyer did not put that claim to the State witnesses, especially Mr Sakipo to at least give him an opportunity to say something on that claim of yours. However, I note your lawyer did suggest to him in cross examination that because there is a dispute over the land, he claimed that he saw you and he denied it. Your lawyer also did not put to Mr Sakipo in cross examination your claim that he and Ben Kombagle conspired and fabricated the complaint against you in relation to the chopping down of the coffee trees.

18. Thirdly, you through your lawyer did not suggest in cross examination that you had a good working and community relationship with the parish priest, nuns, christians and members of the Banz Catholic Church parish. Finally, you through your lawyer did not suggest if the Banz Catholic Church Pastoral Advisory Board had approved the return of the land to you which was subsequently endorsed by the Bishop of Mt Hagen Archdiocese.

19. But I note, when you through your lawyer suggested to each of these witnesses in cross examination if each of them did not see you chop the coffee trees because they had arrived late at the coffee plantation, each of them agreed. When these witnesses were asked by your lawyer in cross examination if they may have mistaken someone else for you, each of them maintained that they saw all of you at that time. But they were unable to say who was holding bush knives and who was holding axes when asked by your lawyer in cross examination to describe the type of weapon each of you held. Nonetheless, they were able to say generally that some of you had bush knives while others had axes.

VISIT TO CRIME SCENE

20. After the State completed its evidence, it closed its case. Your lawyer made an application for the Court to visit the crime scene which was not opposed by the State and the Court acceded to it. On 15th April 2009, the Court, the State prosecutor and your lawyer including yourselves visited the crime scene where the Court had the opportunity to see for itself the location of the coffee plantation, its size, the re growth of the coffee trees that were chopped down and the location of eye witnesses who claimed to have seen you at that time.

21. After the visit to the crime scene, on the same day, the Court resumed hearing. It was at that time that your lawyer made a no case application. It was opposed by the State and the Court reserved its ruling until 20th April 2009. On that date, the Court found that you had a case to answer because there was prima facie evidence establishing the elements of the offence, suggesting that you were involved in the chopping down of the coffee trees on that day. That is, the State witnesses claimed that they saw you at the coffee plantation on the early morning of that day.

22. Because the Court circuit to Minj ended on 22nd April 2009, the case was adjourned to the next sittings of the National Court in Mt Hagen for continuation of trial. It was not possible to fix a date(s) for trial in Mt Hagen until the Court resumed sittings at Minj on 3rd November 2009 where the Court fixed your case for trial for two and half days commencing on 4th November until 6th November 2009. Trial resumed on those dates and you presented your case to the Court.

DEFENCE’S EVIDENCE

23. For your case, John Minji, James Kauboi and Simon Koso Kerenga gave evidence but as for you, Steven Molu Minji and Didi Gelwak Sakol you did not. I shall discuss Steven Molu Minji and Didi Gelwak Sakol’s case separately after I discuss the evidence of those of you who did give evidence first.

John Minji

24. When you John Minji, gave evidence, you said that you are from Sipil village in Banz of this province. You were asleep in your house on the early morning of Wednesday 31st October 2007 when the chopping of the coffee trees took place. You did not know until people raised the alarm. They called for Mr Sakipo to go and see the damage. You decided to go and find out for yourself so you went to Banz Catholic Church station. On the way, you met Mr Sakipo and followed him. When you arrived at the coffee plantation, you saw that someone had chopped down all the coffee trees. You said you did not know who did it.

25. You said that, after 2 days, about 40-50 armed policemen came in 4-5 motor vehicles to your village and apprehended you and your co accused. They threatened you and your co accused and forced you all into the motor vehicles and took you to Banz Police Station. There, again, they threatened and forced you to admit the offence. In fear of your life, you admitted it. Your co accused did the same.

26. Although you said that you did not commit the offence, you do not deny having an interest in the land on which the coffee plantation is located. You said that you were originally the traditional landowners. It was given to the State by your forefathers. Recently, the Banz Catholic Church Pastoral Advisory Board made a decision to return Portion 91 to you and your co accused and the Bishop of Mt Hagen, as the head of the church in the Western Highlands Province also endorsed that decision.

27. You were very happy and you went ahead and organized with the Provincial Lands Office in Mt Hagen to have a surveyor survey the land and identify the boundaries for the purpose of rezoning it before new State lease titles could be issued to you. A private surveyor by the name of Paul Par was engaged by the Provincial Land’s Office in Mt Hagen to undertake the surveying for you. On 15th December 2006, he came to Banz and you and your co accused assisted him with his work by chopping down some of the coffee trees and cleared the bushes to make way for him to survey the boundaries with his compass and theodolite.

28. You assisted him with some money for his transportation and food during the time he undertook the survey work. You were very happy because you knew that at the end of the day, you would be issued title to the land and become owners. You had a very good relationship with the parish priest, nuns, church members and the public and would never do such a thing to destroy or ruin that trust and confidence they had in you.

29. To prove your claim of the Bishop’s granting his approval, you produced a letter from him to the Department of Lands in Mt Hagen dated 19th October 2006 which was admitted into evidence without objection from the State prosecutor and marked Exhibit "D1". The Bishop’s letter came about as a result of the Banz Catholic Church Pastoral Advisory Board’s letter to the Bishop dated 26th April 2004. This letter was tendered and admitted into evidence without objection by the State prosecutor and marked Exhibit "D2". You said that the letter confirmed the decision of the Banz Catholic Church Pastoral Advisory Board to return the land to you.

30. However, while in the process of completing the survey and rezoning of the land, the problem of someone chopping all the coffee trees arose and that has frustrated the good work you had done thus far. You were sad to see that the coffee trees were destroyed.

James Kauboi

31. James Kauboi, you said that you are from Sipil village in Banz of this province. You also said that you were asleep in your house with your family on the early morning of Wednesday 31st October 2007. Between 8 o’clock and 9 o’clock, you heard people from the direction of Banz Catholic Church calling for Mr Sakipo. You decided to find out the reason for people calling Mr Sakipo and you ran down towards river Mombol and there you saw Mr Sakipo walking up the road towards the Banz Catholic Church station. You caught up with him and followed him to the coffee plantation to see what had happened.

32. On the way, you looked back and saw John Minji following both of you from behind. You arrived at the coffee plantation and saw that someone had chopped down coffee trees. You said that you do not know who chopped them. Two days later, about 40-50 policemen armed with firearms came to your village in 4-5 motor vehicles. They threatened you and your co accused and told all of you to get into the motor vehicles and took all of you to Banz Police Station. On the way, they continued to threaten all of you.

33. At the police station at Banz, they continued to threaten and force you to admit the offence. What you had stated in the record of interview is basically what the policemen told you to say. They told you that if you said those things as recorded in the record of interview, the Court will take note of them and will be lenient on you. In relation to your record of interview, when you said that you joined your co accused to chop down the coffee trees, you were not referring to the incident that occurred on 31st October 2007 but rather the first incident on 15th December 2006. That was the time you and your co accused assisted the private surveyor to survey the land by chopping some of the coffee trees and cleared bushes to make way for the compass and theodolite to demarcate the boundaries.

Simon Koso Kerenga

34. Simon Koso Kerenga, you are from Baura village in Banz. You also said that you were asleep in your house with your family on the early morning of Wednesday 31st October 2007. You did not know anything about the chopping of the coffee trees until you went to Banz town and on the way saw the damage. Two days later, about 40-50 policemen came in 4-5 vehicles and arrested you.

35. They threatened you and forced you to admit that you and the co accused chopped down the coffee trees. They then put you and the co accused in the motor vehicles and took you all to Banz Police Station where they again threatened and forced you to admit the offence. In fear of your life, you admitted chopping the coffee trees down. You did that because you were afraid that they would assault or do something bad to you.

36. You also said that this is the first time for you to be arrested and charge for committing an offence and stand before the Court. In relation to your record of interview, you said that it is quite a while now and you could not recall what you had stated in it, especially in relation to the chopping down of the coffee trees on 31st October 2007. You further said that policemen did not ask you about the chopping of coffee trees on 15th December 2006 and when you gave answers, you thought that it was in relation to the first chopping of coffee trees on 15th December 2006.

Steven Molu Minji & Didi Gelwak Sakol

37. As for you Steven Molu Minji and Didi Gelwak Sakol, you both did not testify. It is not clear if you instructed your lawyer to remain silent, or to give un-sworn evidence from the witness box or to call other witnesses to testify for you. Your lawyer neither has made submissions nor informed the Court the reason for the two of you not to give evidence. Whatever the reasons, I need not enquire further because the fact remains, you did not give evidence. As a result, you did not deny or refute the evidence of the State witnesses but I shall take it that by you not giving evidence, you had exercised your constitutional right to remain silent. Therefore, I respect your constitutional right and I shall not hold your silence against you: see section 37(10) of the Constitution.

38. That means that, the Court still has to determine from the evidence of the State witnesses presented so far if the State has proven the charge against both of you, including your co accused?

THE APPLICABLE LAW

39. In order for the State to prove that you committed this offence, it must prove the following elements:

1. That you were the persons;

2. That the chopping of the coffee trees was wilful;

3. That it was unlawful;

4. That damage or destruction was done; and

5. That property was involved.

40. All these five elements of the offence must be satisfied before the Court can find you guilty of the offence. If one of the elements is not proven, the Court must return a verdict of not guilty for you and acquit you. I discussed this very point in my recent ruling in the case of The State -v- Allan Allam: CR No 30 of 2004 (Unnumbered & Unreported Judgment of 13th November 2009) where I upheld a no case submission by the accused, charged with wilful damage of property of one Mr Paul Mai. There, I found that the State did not establish that the accused was the "person" who destroyed or damaged the property of Mr Mai at Jimbina coffee plantation on 29th June 2003, even though he was present at the premises of Mr Mai on that day.

ANALYSIS OF EVIDENCE & LAW

41. With that in mind, from the evidence and submissions, it is common ground between the State and you that the coffee trees were chopped down on the early morning of Wednesday 31st October 2007 at Banz Catholic Church coffee plantation. It is also common ground between the State and you that the coffee trees belonged to the Banz Catholic Church. Further, it is not disputed that the coffee trees are on the land described as Portion 91 which the Banz Catholic Church through the Holy Ghost (New Guinea) Property Trust is the registered proprietor under a State Lease (Missions Lease). Thus, the last two elements of the offence have been satisfied. This leaves the first three elements of the offence in issue. They are whether you who chopped down the coffee trees, whether you did so wilfully and unlawfully.

42. I must say at this juncture that, I find your case was conducted in the most unfair and unorganized way to both the State and the Court. The trial was full of surprises and ambushes because at one stage of the trial, (during the prosecution’s case), the Court had the impression that you were raising the issue of identification only. That is, the State witnesses may have mistaken someone else for you, hence you would be giving evidence to refute the State witnesses’ evidence on identification.

43. But when you gave evidence, you changed your stories. You raised alibi, threats and undue influence by the members of the police force and allegations of impropriety of the records of interview. This has not only confused me but also has created great doubts in my mind in relation to your defence of the charge which has led me not to believe your evidence. I will explain my reasons in detail below.

Recent inventions

44. I find each of your evidence not entirely true. Some aspects of your evidence which I will discuss in a moment are to my mind, recent inventions. This means that, you just made up your stories you told the Court to cover up your wrongdoing. For example, first, you did not tell the police investigating officers who interviewed you at Banz Police Station that you were threatened by the policemen who had attended at your villages and brought you to Banz Police Station. You also did not even challenge the contents of the records of interview as being incorrect or obtained under duress by the police investigating officers who interviewed you.

45. If what you have said in your oral evidence is true, you should have instructed your lawyer to object to the admission of the records of interview and challenged the truthfulness of these records through a voir dire hearing. This is the correct and lawful manner by which you can challenge the propriety or otherwise of your records of interview because this will give the policemen, who you said apprehended you in your villages including those who have interviewed you to attend Court and respond to the allegations you make against them.

46. Only then can the Court be satisfied and disallow them if the Court finds that they were obtained by duress. You, through your lawyer did not do so. This means, you cannot challenge the propriety or otherwise of the records of interview now. What is been recorded in them remains your statements you made to the police. I find that all these matters you now raise like threats and force used by the policemen who apprehended you in your villages and those that interviewed you at Banz Police Station in relation to the offence were never raised before or during the trial until you gave evidence. That was when the Court became aware of these matters. It was a surprise.

47. That is why I have formed a view that the evidence you gave of these matters are recent inventions, made at a last minute as a bid to save yourselves. For these reasons, I find your claim of threats and undue influence against the policemen recent inventions and I reject them. It follows that I must find that the policemen who apprehended you did not threaten you and force you to admit the offence. Neither do I find that you were threatened and forced to admit the offence during your interviews with the police investigating officers.

48. Secondly, the other reason for me to hold the view that some aspects of your evidence are recent inventions is that, you through your lawyer did not give notice of alibi to the State pursuant to Order 4, rule 4 of the Criminal Practice Rules, 1987. This rule states:

"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."

49. This rule is explicit. It means that evidence of alibi shall not be led by the defence if notice is not given to the State within a prescribed period. The prescribed period is 14 days prior to trial: see Order 4, rule 8 of the Criminal Practice Rules.

50. In your case, you did not tell the police investigating officers who interviewed you at Banz Police Station that you were asleep in your houses in your villages when the coffee trees were chopped down, hence could not have been at the coffee plantation at that time. This is very important because you, John Minji, James Kauboi and Simon Koso Kerenga gave evidence that you were asleep in your houses on the early hours of the morning of Wednesday 31st October 2007 when the coffee trees were chopped down.

51. You in fact raised alibi and if the State had objected to you raising it during your evidence, the Court may have upheld the objection and stopped you from leading evidence on alibi. But since no objection was taken by the State in relation to your claim of alibi, you were allowed to give evidence of your alibi: see The State -v- Michael Wapidik & Wesley Michael (No 1):CR No 489 of 2007 (Unnumbered & Unreported Judgment of 15th July 2009) and Cosmos Kutau Kitawal & Christopher Kutau -v- The State (2007) SC 927.

52. The Court also did not stop you from giving evidence on your alibi. As noted above, the three of you said that you were asleep in your houses with your families at that time. If your claim of alibi is genuine, why didn’t your lawyer give notice of your alibi to the State within the prescribed period of 14 days, as required by Order 4, rule 8 of the Criminal Practice Rules prior to the date of trial? I reject your submission through your lawyer that because you gave "last minute" instructions to him to defend the charge, he had no time to give the prescribed notice to the State. As I stated at the outset, this case commenced on 18th November 2008 and you had more than enough time prior to that date to properly instruct your lawyer to defend the case including giving instructions on your claim of alibi.

53. If you had done so, he would have given notice to the State of your alibi and the State would have been put on notice and ready to call witnesses at trial to counter your claim. You did not, and so, the State had not expected you to lead evidence of alibi until you surprised everyone including the Court when each of you gave evidence of alibi. Your failure to give notice of alibi to the State has not only prejudiced the State’s case but also reduces the strength of your claim of alibi, even though I note John Minji, you said at paragraph 1 of page 6 of your record of interview (Exhibit "P3"), that at that time the coffee trees were chopped, you are not with the group.

54. Be that as it may, it has been held by the Courts in the past that when a belated alibi is raised, like in your case, it may either operate in your favour or also against you. In your favour, it could mean that you were somewhere else at that time the coffee trees were chopped down, thus it could not have been you who chopped them. Against that, is that, your belated alibi is only a made up story to cover up your wrongdoing; that is that, you chopped down the coffee trees at that time.

55. When I ponder upon these two competing propositions, I am inclined to accept the latter. I find that your alibi is a belated attempt to show to the Court that you were not the persons seen at the coffee plantation and who chopped down the coffee trees at that time. That means, I do not believe your evidence in relation to your alibi because as I said, the evidence you gave of you being asleep in your houses at that time the coffee trees were being chopped are recent inventions in an attempt to establish that you were not at the coffee plantation at that time and chopped down the coffee trees.

56. There is a third reason for me to hold the view that your evidence of alibi is a recent invention and that is, a breach of the fundamental rule in Browne -v- Dunn (1893) 6 R 67 HL has occurred in your case. You, through your lawyer did not put your case or side of the story to the State witnesses during cross examination so that they could have been given an opportunity to give their side of the story. The rule in that case says that, in fairness you must put your case to the State witnesses to give them the opportunity to explain their side of the story. Your case need not be put in every detail but at least in some detail to get some response from the other side.

57. This is a cardinal rule. All legal practitioners, especially advocates should know it. It is a rule of fairness applied in all trials, be it criminal or civil. Many cases in this jurisdiction have applied this rule. Many have also discussed this rule. One such case which I think explains this rule in plain terms is The State -v- Raphael Kewangu (2002) N2189, a case of armed robbery, where Kandakasi J, after referring to the case of John Jaminan -v- The State (No 2) [1983] PNGLR 318, a case where identification was in issue, explained this rule in this way:

"The law in respect of alibi evidence is clear. Where an accused fails to put in cross-examination and or gives belated notice of an alibi and calls evidence on that, such evidence should be seen as recent inventions and as unreliable. This stems from well-known authorities like that of Browne v Dunn (1893) 6 R 67(HL). The position was clearly spelt out in the case of John Jaminan v. The State (N0.2) [1983] PNGLR 318 at pp. 332-333 by Bredmeyer J in these terms:

‘Firstly, the alibi was never put to the key State witnesses particularly the prosecutrix and Maria who gave evidence of being together with the accused in the hotel lounge and in room 2 in the early part of the evening, nor to the prosecutrix that she did not have sex with the accused, that she was mistaken as to the identity of the man who had sex with her, or that she invented the encounter. The importance of putting one’s case to the opposing party’s witnesses has repeatedly been emphasized in Papua New Guinea: see The State v. Saka Varimo [1978] P.N.G.L.R. 62 (Prentice J) and The State v. Manasseh Voeto [1978] P.N.G.L.R. 119 (Wilson J). If it is not done the weight of the evidence given by the party, in this case the accused is reduced. I am not blaming Mr Narokobi specifically for this failure. It is possible that his instructions changed during the course of the trial from consent to alibi. I say that because Mr Narokobi cross-examined the prosecutrix at length on consent not on the question of identity. Later in the trial the defence of alibi was still not revealed by the cross-examination of the prosecution witnesses.

Secondly, the alibi was delayed or belated and that reduces the weight that should be given to it. The accused failed to give it when questioned by the police initially or later at the District Court committal. A trial judge should not infer guilt because the accused remained silent on those earlier occasions. The accused has a right of silence, but mindful of that, a trial judge is entitled to say that the lateness of the alibi reduces its weight: see Ryan (1964) 50 Cr. App. R. 144 at 148 and Hoare [1966] 50 Cr. App. R. 166. As a matter of law he has a right of silence on both occasions but as a matter of fact - and here we are dealing with facts - its belatedness reduces its weight. If the accused is telling the truth that he was not at the hotel with the prosecutrix, that he was with Akai Kup going to and from Kelua village, why not tell that to the police so that they can check out the story when memories are fresh. In a judge and jury jurisdiction it is permissible for the prosecutor and the judge to comment on a belated alibi in distinctly unfavourable terms. In our jurisdiction it is permissible for a judge to say that one of the reasons why he disbelieved an alibi is that it was belated. The trial judge in this case did not say that, but on the appeal, in considering whether the trial judge’s decision on guilt was "unsafe and unsatisfactory", it is a factor against the accused.’

In that case, Mr. Jaminan raised the defence of alibi to a multiple charge of rape. It seems he raised the issue of consent and that led to his trial. But during the trial, he introduced evidence of being else where from the scene of the alleged offences. He failed to give notice of that to the prosecution and also failed to put that fact to the State’s witnesses in cross-examination. Ultimately, therefore his claim of alibi was rejected both as unreliable and as recent inventions.

This is what happens to an accused person who fails to put the prosecution on notice of its defence and evidence that may contradict or rebut any evidence the prosecution may call. Both counsel in the present case correctly agree in my view that, the same should apply against the State who fails to give the defence notice of critical evidence against an accused person. If the State fails to give such notice and call surprised witnesses and introduce totally new evidence, it amounts to nothing short of an unfair trial. This is because, the accused has not been sufficiently notify of the case against him before hand so that he could consider his position and decided to either deny or admit the charge against him before he is tried. Such a practice, if allowed would in my view, amount to a breach of the s. 37(3) and (4) of the Constitution." (Emphasis added).

58. What all these means in your case is that, since you through your lawyer did not put your claim of alibi to the State witnesses to give them the opportunity to explain to the Court their side of the story, it would be unfair to the State for the Court to accept your evidence in respect to your claim of alibi. This in turn means that, your evidence in relation to your alibi looses its credibility because it was not tested in cross examination to the extent where it becomes unreliable. In such a case, the Court must reject your evidence of alibi.

59. Further, another reason for me to hold the view that your claim of alibi is a recent invention is that, you also said in cross examination by the State prosecutor that Mr Mur was not at the coffee plantation at that time when he saw you. You said, he was in Madang attending a Catholic Church run HIV/Aids awareness campaign. At no time did you through your lawyer put to the State witnesses and the Court, notice of your claim that Mr Mur was in Madang attending an awareness campaign at that time. Again, what this means is that, not only is your claim in breach of the rule in Browne -v- Dunn’s case (supra), but also borders on evidence of recent invention. To my mind, this aspect of your evidence casts doubt on the credibility of your evidence in relation to your claim of alibi. It makes your alibi evidence unreliable.

60. Furthermore, another example of a breach of the rule in Browne -v- Dunn’s case (supra) is where, in cross examination, you through your lawyer did not put to the State witnesses your claim that the Banz Catholic Church Pastoral Advisory Board had approved the return of the land to you. Neither did you through your lawyer put to them that you began work on the land by chopping some of the trees and cleared bushes on 15th December 2006 for purposes of surveying it based on the approval given by the Banz Catholic Church Pastoral Advisory Board. The State and the Court were caught by surprise when you led evidence on these matters and finally argued in your final submissions that the chopping of the coffee trees was lawful and justified.

61. Further still, you through your lawyer did not put to the State witnesses that another land group led by Mr Sakipo and Mr Kombagle had an interest in the same land and had opposed its return to you. This has given the State witnesses, especially Mr Sakipo no opportunity at all to either admit or deny the claim. It would seem to me that you tried to demonstrate that because of the dispute over the land with the other group led by Mr Sakipo and Mr Kombagle, they fabricated this case against you to stop you from succeeding but your claim has once again come as a surprise to the State and the Court.

62. In summing up your evidence, your failure to put your case, especially those important matters giving rise to your defence or denial of committing the offence like alibi, threats and undue influence by police, impropriety of your records of interview, approval by Banz Catholic Church Pastoral Advisory Board to return the land to you and your claim of another land group led by Mr Sakipo and Mr Kombagle having an interest in the same land make your evidence tainted with doubts and suspicion. In such a case, the Court will not give credence to them and rely on them. I must follow what the law says and give no credence to your evidence.

63. For these reasons, I reject your evidence in relation to your alibi, threats and undue influence by police, impropriety of records of interview, approval by Banz Catholic Church Pastoral Advisory Board to return the land to you and your claim of another land group led by Mr Sakipo and Mr Kombagle having an interest in the same land.

Inconsistencies & Contradictions

64. There is a second reason for me to reject your evidence in relation to your claim of alibi, threats and undue influence by police and impropriety of records of interview and that is I find that there are inconsistencies and contradictions in your evidence. For example, for you John Minji, you said in your oral evidence that you were asleep in your house in the early hours of the morning of Wednesday 31st October 2009 when the coffee trees were being chopped down. Thus, you had no idea who chopped them down. But in your record of interview (Exhibit "P3"), you were asked by the police investigating officers about the chopping of the coffee trees on 31st October 2007 and you said:

"Q13: On Wednesday 31st October, 2007, there was a cut down of coffee trees at Banz Parish Catholic Church Coffee Block. I belief (sic) that you have got some useful stories to tell me about this incident, is that clear?

Ans: Yes.

Q14: Can you tell me about this incident?

Ans: Yes, I wish to begin my stories (sic) that Catholic Church at Banz is sitting on portion (sic) 91 and 92 of Banz Town Planning. This land is customary land which was owned by my father Minji Konts and now I am his son John Minji owns this land. This land is about 56 hectares from Banz town all the way down sides’ old airstrip down to Waghi Valley coffee (Angco coffee). My father and his brothers went to Migendi Catholic Mission and brought Father Jerry Bus. As soon as Father Jerry Bus came to Banz my father gave this land to him. As soon as he gave this land to him, he moved to the other side of Mobol River. This was done in the year 1946 when the first priest was station at Banz."

65. You went on to explain to the police investigating officers that you wanted the land back because your family’s population had grown and land has became scarce. You had approached the officials of Banz Catholic Church including the Bishop of Mt Hagen Archdiocese. They made a decision to return the land to you. You went ahead to have the land surveyed. This is what you said as part of your answer to Q14:

"Now we have some money so we wanted to clear up the surveyed land to put up some developments. That is why we cut down all the coffee trees within the area of our boundary. From there, people are complaining about the cutting down of the coffee tree (sic). These complainants they have got self interest with this land that is why they came and report to PPC. At that time, I was not in the group at the time of cutting down all the coffee trees. I am an innocent person arrested and locked up in the cell." (Emphasis added).

66. By comparing your oral evidence with your answers in your record of interview (Exhibit "P3"), it is so obvious that you have contradicted yourself in relation to the chopping of coffee trees on 31st October 2007. That is, in your oral evidence, you said that you were asleep in the early hours of the morning on that day and knew nothing about the chopping down of the coffee trees, but in your answer to Q14 of your record of interview (Exhibit "P3"), you stated that you and the others chopped down all the coffee trees within your boundary and you were referring to 31st October 2007 as the day you did so.

67. In a case where evidence of a witness is contradictory, the Court must be cautious on relying upon it because it reduces the credibility of the evidence of the witness. The Court must treat the evidence of the witness as unreliable. I follow that rule of evidence and must find that given the contradictory evidence in relation to the chopping down of coffee trees on 31st October 2007, I must reject your evidence in relation to your alibi.

68. Furthermore, you said about 40-50 armed policemen in 4-5 motor vehicles went to your village. They threatened and forced you and your co accused into the motor vehicles and took you to Banz Police Station. On the way, they threatened you and your co accused. At the police station, they continued to threaten and force you to admit the offence. In fear of your life, you admitted the offence and the details of what you told the police investigating officers were recorded in the record of interview (Exhibit "P3").

69. It surprises me that even though you make these serious allegations against the policemen, in your record of interview (Exhibit "P3"), you did not state that you were threatened and forced by the policemen to admit the offence. Let’s see what I mean; if you look at your record of interview (Exhibit "P3"), these were some of the answers you gave to the police investigating officers:

"Q16: During the record of interview, did I assault you, threatened you or promised you anything to obtain your answers?

Ans: No.

Q17: ...............

Ans: ................

Q18: Do you wish to read all the pages of our record of interview?

Ans: Never mine (sic) leave it as it is.

Q19: We came (sic) to the end of our record of interview and do you wish to sign all the pages?

Ans: Yes."

70. From the above answers, it is clear to me that you voluntarily participated in the interview. Again, your oral evidence about the police threats and undue influence contradicted what you have stated in your record of interview (Exhibit "P3"). Since you did not object to the admission of the record of interview, it forms part of the State’s evidence against you. The two conflicting versions on the allegations of threats and undue influence by police make your evidence loose its credibility and become unreliable. For this reason too, I reject your evidence in relation to your alibi and impropriety of your record of interview.

71. As for you James Kauboi, you said in your oral evidence that the interview with the police at Banz Police Station was in relation to the first incident of chopping down of coffee trees on 15th December 2006. You said that on 15th December 2006 was the time you and your co accused assisted the private surveyor to survey the land by chopping some of the coffee trees and cleared bushes to make way for the compass and theodolite to demarcate the boundaries. But this evidence runs counter to what you have stated in the record of interview (Exhibit "P2"). I refer to your answers in your record of interview below:

"Q11: Can you recall back to one Wednesday on 31st October, 2007 at Banz Catholic Coffee Project plot or garden there has been some damages (sic) done. I believe that you have got some useful stories to tell me about this, is that clear?

Ans: Yes.

Q12: Can you tell me what had happen?

Ans: Yes, that was in 2004 the Parish Board had made a decision already. In 2006, Bishop has asked us to come to Rabiamul. I stayed back at home and my other brothers came to Rabiamul.

At Rabiamul, Bishop told them or my brothers that they have wasted their time in coming up to Rabiamul. The Parish Board at Banz had approved your request of the portion of land and now I am writing a letter to Lands Department to survey and lease out the portion of that land been approved back to you and now you may go back. The next day, my brothers went to Bishop and he directed them to Provincial Lands Office. From the Lands office a direction was given to clear up where the boundary would be chained so we were given a direction to clear the area so we chop down the coffee trees. The surveyor went and surveyed the area and marked out the portion of the land that has been approved by the Catholic Parish Board.

Q13: You did not think of anything but because you had approved documents in your hands that is why you just went straight and chop down all the coffee trees, it that correct?

Ans: We had Lands Department’s documents so we went ahead and cleared the area where the boundary should go.

Q14: Did you intentionally cut down the coffee trees or someone forced you to cut the coffee trees down?

Ans; I know this was my father’s customary land so I joined my brothers to cut down the coffee trees for the land is mine." (Emphasis added).

72. It is clear from the above questions and answers that first, you were and are well aware of the nature and reasons for the interview you had with the policemen investigating the chopping of the coffee trees. It was in relation to the incident of 31st October 2007. There cannot be any confusion here. I find that you were simply avoiding the incident of 31st October 2007 in an attempt to exonerate yourself. In so doing, you have contradicted yourself and your evidence has lost its credibility. This makes me find your evidence in relation to your alibi unreliable.

73. Secondly, you said you were apprehended by the policemen two days later which would have been 2nd November 2007. If you said that your interview with the policemen was in relation to the first incident of 15th December 2006, why did it take so long for the policemen to apprehend you after the chopping of the coffee trees? As far as I am concerned, you have not given an answer to this question in your oral evidence, thus it can only lead me to one conclusion and that is, you were been interviewed in relation to the incident of 31st October 2007. Thus, I find that you have contradicted yourself and this makes your evidence in relation to your alibi unreliable.

74. Thirdly, you said about 40-50 armed policemen came to your village in 4-5 motor vehicles. They threatened and forced you and your co accused into the motor vehicles and took you to Banz Police Station. On the way, they threatened you and your co accused. At the police station, they again threatened and forced you to admit the offence. In fear of your life, you admitted the offence and the details of what you told the police investigating officers were recorded in the record of interview (Exhibit "P2").

75. Again, it is no surprise to me to be surprised that even though you make these serious allegations against the policemen, in your record of interview (Exhibit "P2"), you did not state that you were threatened and forced by the policemen to admit the offence. Again, let’s see what I mean; if you look at your record of interview (Exhibit "P2"), these were some of the answers you gave to the police investigating officers:

"Q17: During the record of interview, did I hit you, assault you, threatened you or use any force to obtain your answers?

Ans: No.

Q18: We are about to complete our record of interview and do you wish to read all the pages of the record of interview to yourself?

Ans: All right let me read.

Q19: I gave you all the pages of the record of interview to you to read and did you see that I have missed out some of my questions or answers not being recorded?

Ans: No, all recorded.

Q20: Do you wish to sign our papers?

Ans: Yes, I wish to sign my signature."

76. Again, it is clear that your oral evidence about the police threats and undue influence contradicted what you have stated in the record of interview (Exhibit "P2"). Since you have not objected to the admission of the record of interview, it was admitted into evidence as part of the State’s evidence against you. The two different versions make your evidence loose its credibility and make it unreliable. For this reason too, I reject your evidence in relation to your claim of impropriety of your record of interview (Exhibit "P2").

77. As for you Simon Koso Kerenga, first, you said that you do not know anything about the chopping of the coffee trees on Wednesday 31st October 2007. But this contradicts what you said in your record of interview (Exhibit "P1"), where you answered questions directed to you by the police investigating officers about the incident of Wednesday 31st October 2007 as follows:

"Q10: On Wednesday 0n 31st October, 2007 there was an offence committed at Banz Catholic Mission Project Coffee all chopped down. I believe that you have got some useful stories of these coffees, do you understand?

Ans: Yes.

Q11: Can you tell me what had happen at that time?

Ans: Yes, that previously this land is my customary land; my fore fathers have settled ob this land and later they gave the land to Catholic Mission. The land measures a hectare of about 56 stretching from the front Catholic Mission and township of Banz all the way to Waghi Valley Coffee Factory."

78. From your answers, it is clear that you contradicted yourself. As I said above, where there is contradiction in a witness’s evidence, the Court must treat the evidence with caution. It makes the evidence of the witness loose its credibility and becomes unreliable. Secondly, you said that the police threatened and forced you to admit the offence. In fear of your life, you admitted the offence and what you said was recorded in the record of interview (Exhibit "P1"). But again, I note you accepted what you told the police investigating officers in your record of interview (Exhibit "P1"), when you gave the following answers to the questions of the police investigating officers:

"Q14: During the record of interview, did I assault you, threaten you, forced you to obtain your answers?

Ans: No, we heard good conversation.

Q15: We are about to complete the record of interview, do you wish to read all the recording of all pages?

Ans: Yes.

Q16: I gave you all the pages and you read them and do you see that I missed out any questions of mine or any answers of yours out not recorded?

Ans: No all was recorded correctly.

Q17: We are completing our record of interview and do you wish to sign all the pages?

Ans: Yes."

79. As I said earlier in relation to the admissibility of your record of interview (Exhibit "P1"), since you through your lawyer did not challenge its propriety and have consented to its admission as evidence of the State’s case, it forms part of the State’s evidence against you. It is therefore, clear from the above answers to the questions of the police investigating officers that your oral evidence contradicts what you have stated in your record of interview (Exhibit "P1"). Again, this means that where there is contradiction in a witness’s evidence, like in your case, the Court must treat the evidence with caution. It makes the evidence of the witness loose its credibility and becomes unreliable. For this reason, I find your evidence in relation to your claim of impropriety of your record of interview unreliable and reject it.

Admissions

80. As I have rejected John Minji, James Kauboi and Simon Koso Kerenga’s evidence in relation to your claim of alibi, threats and undue influence by police and impropriety of your records of interview, it follows that your records of interview forms part of the State’s evidence against you. But the law in relation to a record of interview is that, a record of interview is an out of Court statement, therefore less weight should be place on it. In The State -v- Ali Kei Paiya: CR No 478 of 2004 (Unnumbered & Unreported Judgment of 09th August 2005) Sawong J, said:

"It is also trite that whilst a record of interview which is not contested in evidence, it is not of equal weight to the sworn evidence. A sworn evidence which has been tested or untested in cross examination has far more weight than an unsworn statement. In the circumstance of this case, I give little weight to the record of interview. I am left thus with the sworn evidence of the accused."

81. However, in my view, that only occurs in a case where the State does not call any sworn evidence from witnesses, like eye witnesses to the offence to verify the statements in the record of interview. In a case where an accused gives sworn evidence denying the statements in the record of interview, the weight attached to the record of interview is reduced, unless there is other sworn evidence from the State witnesses contradicting the evidence of the accused or proving otherwise.

82. Proceeding on this premise, I consider that there is a further reason for me to reject your claim of alibi, threats and force by police and impropriety of your records of interview and the reason is this, there are admissions made in your records of interview (Exhibits "P1", "P2", & "P3") to the chopping down of coffee trees on the morning of Wednesday 31st October 2007.

83. You John Minji have made admissions in your record of interview (Exhibit "P3") when you said "yes" to Q13 to give your story in relation to the incident of Wednesday 31st October 2007 and your admission of chopping the coffee trees is contained in your answer to Q14 where you said:

"Now we have some money so we wanted to clear up the surveyed land to put up some developments. That is why we cut down all the coffee trees within the area of our boundary. From there, people are complaining about the cutting down of the coffee tree (sic)."

84. As for you James Kauboi, you also made admissions in your record of interview (Exhibit "P2") when you said "yes" to Q11 to give your story in relation to the incident of Wednesday 31st October 2007 and admitted chopping down the coffee trees as you were a traditional owner of the land to Q14. As for you Simon Koso Kerenga, you too made admissions in your record of interview (Exhibit "P1"), when you said "yes" to Q10 to give your story in relation to the incident of Wednesday 31st October 2007 where coffee trees were chopped. You also said in your explanation to Q11 that:

"We found one and brought him to Paul Kerua, Paul then instructed him to carry out the survey. First we went and broke the boundary. The surveyor’s name is Paul Par and he surveyed and the portion belongs to mission we missed out. The portion that we were given we cut all the coffee trees down to clear up the land for development."

85. In summing up, whilst I accept that your records of interview are out of Court statement which is not of equal weight to your sworn evidence, I have already rejected your evidence of alibi, threats and undue influence by police and impropriety of your records of interview, thus there is no evidence left to refute or deny the admissions in your records of interview. Your records of interview form part of the State’s evidence against you and I shall rely on your answers in them. That means, you have admitted chopping down the coffee trees on Wednesday 31st October 2007.

Steven Molu Minji & Didi Gelwak Sakol

86. As for you Steven Molu Minji and Didi Gelwak Sakol, your case is slightly different and I shall deal with both of you first. As I alluded to earlier, neither of you gave evidence nor called witnesses to testify for you. In such a case, the law is that, a failure by an accused to testify is not an admission of guilt and no inference maybe drawn from it. In Paulus Pawa -v-The State [1981] PNGLR 498, the Supreme Court (per Andrew J) set out the principles upon which the Court shall take into account in a case where the accused remains silent. His Honour said:

"I agree with the conclusions of Professor O’Regan in his article "Adverse Inferences from Failure of an Accused Person to Testify" 1965 Crim. L.R. 711, that: Where an accused person fails to give evidence or to call witnesses that:

(1) The failure of an accused is not an admission of guilt and no inference of guilt may be drawn therefrom;

(2) Failure to testify may, however, tell against an accused person in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters;

(3) Failure to testify only becomes a relevant consideration when the State has established a prima facie case;

(4) The weight to be attached to failure to testify depends on the circumstances of the case. Significant circumstances include:

(a) whether the truth is not easily ascertainable by the State but probably well known to the accused;

(b) whether the evidence implicating the accused is direct or circumstantial;

(c) whether the accused is legally represented;

(d) whether the accused has before trial given an explanation which the State has adduced in evidence."

87. First, I start with you, Steven Molu Minji. In your record of interview (Exhibit "P4"), you gave the following answers to questions asked by the police investigating officers:

"Q11: On one Wednesday on 31st October 2007, there was an offence of unlawfully and wilfully of Catholic Coffee garden at Banz. I belief (sic) that you have got some useful stories to tell me about this trouble do to you understand?

Ans: Yes.

Q12: Can you tell me how this had happened?

Ans: Yes.

Q13: Do you wish to start you story now?"

88. In your answer to Q13, you stated amongst other things that your two fore fathers brought Father Buss from Migendi and gave him the land to establish the Catholic Church mission station. You went on to state that you and your brothers demanded the land to be returned to you so that you and your brothers could develop it. The Banz Catholic Church Pastoral Advisory Board made a decision to return it to you and your brothers. When you followed up your demand with the Bishop in Mt Hagen, he told you that he will advise the Department of Lands in Mt Hagen to survey the boundary of the land.

89. You went ahead to engage a private surveyor upon approval from the Department of Lands in Mt Hagen to carry out the survey works. You and your brothers chopped down the coffee trees on the land and that caused the members of the Banz Catholic Church Pastoral Advisory Board to complain. You all ended up at the Banz Police Station where the Police Station Commander tried to mediate the dispute. You stated that because the Bishop who is the head of the Catholic Church in the Western Highlands Province had also given his approval for the land to be returned to you and your brothers, you went ahead and chopped the coffee trees. You stated that, "That on Wednesday we cut all the coffee trees." (Emphasis added).

90. In my view, you have made clear admission to Q13 of your record of interview (Exhibit "P4"), of chopping the coffee trees on Wednesday 31st October 2007. Your admission is consistent with the State witnesses’ evidence that they saw you at the coffee plantation on the early morning of Wednesday 31st October 2007. They said they recognized you because you are also a member of the Senglap-Kanem tribe of Banz.

91. In my view therefore, this establishes a prima facie case against you. It was therefore, in your interest that you should have given evidence in your defence of the charge. In my view, your failure to give evidence first, strengthens the State’s case against you in that, you had not refuted or denied the State witnesses’ evidence that they saw you at the coffee plantation on the morning of Wednesday 31st October 2007 armed with either a bush knife or an axe. Secondly, it leaves the State witnesses’ evidence that at the time they saw you, the coffee trees that were being chopped was unexplained by you. For these reasons, I am satisfied that you were at the coffee plantation on the early morning of Wednesday 31st October 2007.

92. I now turn to you Didi Gelwak Sakol. In your record of interview (Exhibit "P5"), you gave the following answers to the questions by the police investigating officers in relation to the chopping of coffee trees on Wednesday 31st October 2007:

"Q10: Can you recall back to one Wednesday the 31st of October 2007, at Banz Catholic Mission Coffee Project Plot or garden, there has been severe damages (sic) done to the coffee trees (sic). I believe that you have got some useful information to tell me about this, is that clear?

Ans: Yes.

Q11: Can you tell me what had happened?

Ans: Yes, I will.

Q12: Are you going to tell me now?

Ans: Yes, that time of the cutting down of coffee trees was in the night time at about 5 am early in the morning. At that time, I followed my wife to Chimbu. I was not around at Banz. If I happened to stay back at Banz. I would have got involved in this trouble because we are all from the same clan. After two (2) weeks when I came back to Banz from Chimbu I found out that my clansmen cut down the coffee trees for the Catholic Mission. I am saying once again that I was not in the team involved in the coffee cutting. That is all I have to tell you."

93. As noted above, you through your lawyer did not give the prescribed notice of alibi to the State in accordance with Order 4, rule 4 of the Criminal Practice Rules (supra). Further, you did not give evidence to verify your claim of alibi, like your co accused John Minji, James Kauboi and Simon Koso Kerenga. Be that as it may, the State witnesses said that they saw you at the coffee plantation on the early morning of Wednesday 31st October 2007 armed with either a bush knife or a axe. They said that they recognized you because you are also a member of the Senglap-Kanem tribe of Banz.

94. Since you did not give evidence to refute or deny the evidence of the State witnesses like for example, evidence of alibi to follow through your claim of alibi in your record of interview (Exhibit "P5"), I am satisfied that the State has established a prima facie case against you. It was therefore, in your interest that you should have given evidence in your defence of the charge.

95. In my view, your failure to give evidence first, strengthens the State’s case against you in that, you have not refuted or denied the State witnesses’ evidence that they saw you at the coffee plantation on the morning of Wednesday 31st October 2007 armed with a bush knife or an axe. Secondly, it leaves the State witnesses’ evidence that at the time they saw you, the coffee trees were being chopped unexplained by you.

96. For these reasons, I am satisfied that both of you were at the coffee plantation on the early morning of Wednesday 31st October 2007. The finding I make is consistent with the other findings I will make shortly. I shall now turn to them.

Identification evidence

97. I shall now consider the evidence of the State witnesses in relation to the issue of identification of each of you including Steven Molu Minji and Didi Gelwak Sakol. As I alluded to earlier, how you have conducted your case at the beginning of the trial gave me the impression that identification is the only matter in issue. You claim that you were not the persons who chopped down the coffee trees on the morning of Wednesday 31st October 2007 because the State witnesses did not properly identify you.

98. Where identification is in issue, the State must prove that it was you who chopped the coffee trees. The law on identification is well settled in this jurisdiction. It has been said that a trial judge should warn himself on the reliability of identification evidence of a witness. Identification of a person depends upon the circumstances in which the witness observed the person who he or she has identified as the accused and any one of those circumstances may possibly lead to error. Some of those are:

* How long was the period of observation;

* In what light was it made;

* From what distance was it made;

* Was there anything about the person observed which would have impressed itself upon the witness;

* Was there any special reason for remembering the person observed;

* How long afterwards was the witness asked about the person seen;

* How did the description then given compared with the appearance of the accused.

99. The most often cited case of John Beng -v- The State [1977] PNGLR 115 laid down these principles. It also held that the Court must examine all the circumstances in which the identification was made by the witnesses because in cases where a person may recognize a person as the accused, which is more reliable than just identification, mistakes can also be made. Thus, this places the Court in a "red alert" situation where identification is in issue. I take heed of that warning accordingly.

100. With these principles in mind, in the present case, the State witnesses, namely Mr Sakipo, Mr Simp, Mr Malts and Mr Mur said that they saw you at the coffee plantation on the morning of Wednesday 31st October 2007. They identified you as the persons who came out of the coffee plantation on that day. First, I have no reason to doubt the evidence of the State witnesses. As far as their demeanour is concern, I have observed carefully each of their demeanour and I must say they were impressive witnesses. This is exhibited by their clarity, consistency and confidence during their evidence in chief.

101. For example, Mr Sakipo gave evidence with clarity. In cross examination by your lawyer, he was forthright with his answers. As I alluded to earlier, he maintained that he saw each of you at the coffee plantation on the morning of Wednesday 31st October 2007 and I do not think, his credibility was destroyed during cross examination by your lawyer. To my mind, he is a credible witness. I think what he told the Court was what had happened prior to that day, on that day and thereafter. I do not believe that he would have conspired and fabricated such a case against you as you would have liked me to believe.

102. I share the same views and reasons for believing the evidence of Mr Simp, Mr Malts and Mr Mur as I find them credible witnesses and I need not repeat the reasons here, except with a short observation in relation to Mr Malt’s evidence which you through your lawyer suggested was inconsistent with the others and this is in relation to his timing of seeing you at the coffee plantation that morning. You through your lawyer suggested that he contradicted himself when he said in cross examination that he saw you at the coffee plantation a few minutes past 6 o’clock, say 4 minutes later. This evidence is in direct conflict with the evidence of Mr Sakipo and Mr Simp who said that they saw you coming out of the coffee plantation at 6 o’clock and headed for Mombol river in the direction of your villages. Thus, how can it be that Mr Malts, who arrived a few minutes later say that he saw you at the coffee plantation?

103. The answer to this question is two fold? First, it is possible that he saw you around that time because there is no evidence that he had a watch and saw the time nor did your lawyer suggest to him in cross examination that because he had a watch, he knew the time was past 6 o’clock. Thus, he could have missed seeing you. In my view, the different times given by each of these witnesses were simply estimations because at that time, none of them had a watch. That being the case, I am not persuaded that the timing is fatal to the question of identification because from the evidence of these witnesses, they saw you coming out of the coffee plantation around 6 o’clock in the morning. It could have been a few minutes prior to or after 6 o’clock.

104. Secondly, even if I find that he did not see you at the coffee plantation by the time he arrived there, I am of the view that the inconsistency is not fatal to the entire case of the State because it does not destroy the evidence of the other State witnesses which I shall turn to now.

105. Proceeding on the basis that the evidence of the State witnesses is credible, I accept their evidence that the sun was up by 6 o’clock that morning. Thus, lighting of the surroundings was not a problem at that time. I find that the light from the sun made the place visible or clear enough to see around. As a result, they were able to see each of you and your accomplices clearly.

106. Secondly, they were able to identify you and your accomplices because they knew each of you. You all live around the same area at Banz and have seen each other before, thus they could not have mistaken in identifying you. Further to that, you and some of the State witnesses like Mr Sakipo, Mr Malts and Mr Mur have a common ancestor and come from the tribe of Senglap-Kanem of Banz. Thus, they knew who you were at that time they spotted you. You were no strangers to them. That means that apart from identifying you, they also recognized you. Thus, I am satisfied that the State witnesses could not have mistaken somebody else for you.

107. Thirdly, the observations made by the State witnesses were not a fleeting glance. They were made for a long period of time as you were coming out of the coffee plantation. They said, when you came out, most of the coffee trees were already chopped down and only a few still standing. You were heading for Mombol river in the direction of your villages. A further extension to that reasoning is that, they were standing not so far away from you when they saw you coming out of the coffee plantation. Mr Sakipo said he was standing about 50 meters away from you when he made those observations. That is the place, the Court party first stopped to view the location.

108. From my recollection of the location, the road leading to the Banz Catholic Church station is a dirt road which runs along side the coffee plantation. The view is clear on the road and the vegetation around that stretch of the road is made up of coffee trees and tall trees. If someone is coming out from the coffee plantation to the road, I find visibility is clear if it is in the day time. As I have found that the sun was up that morning, this means visibility from a distance of 50 meters is clear. Mr Mur said he was standing about 20 meters away from you, from the direction of Banz Catholic Church parish grounds when he saw you. In my view, the State witnesses had a clear line of sight and that is one of the reasons for them seeing you at the coffee plantation that morning.

109. Extending the argument of clear line of sight is that, since most of the coffee trees had already been chopped down, it is not impossible to say that there would have been no obstacles like coffee trees in between you and the observers to have obstructed or hindered their observations of you that morning.

110. Fourthly, it took only two days before you were apprehended by police. That was on 2nd November 2007. This means that, the State witnesses’ recollection of who they saw at the coffee plantation on 31st October 2007 was still fresh. They could not have mistaken someone else for you. Again, in my view, this is another reason for them seeing you at the coffee plantation that morning.

111. For these reasons, I am satisfied that the State witnesses saw you including Steven Molu Minji and Didi Gelawak Sakol at the coffee plantation on the early morning of Wednesday 31st October 2007.

Circumstantial evidence

112. Having found that the State witnesses saw you at the coffee plantation on the morning of Wednesday 31st October 2007, it does not necessarily follow that you were the persons who chopped the coffee trees. I accept that none of the State witnesses actually saw you chop the coffee trees as is apparent from the State witnesses’ evidence and admissions by the State witnesses in cross examination by your lawyer. Therefore, the question is, did you chop the coffee trees?

113. Very briefly, the law on circumstantial evidence is that, where a case against an accused person rests substantially upon circumstantial evidence, the question for the court is whether the guilt of the accused is the only rational inference that all the circumstances would enable it to draw: see The State -v- Tom Morris [1981] PNGLR 493. In Paulus Pawa’s case (supra), per Andrew J, followed the decision of Miles J, in the case of Tom Morris (supra) where his Honour said:

"I am in agreement with Miles J. in The State v. Tom Morris4 when he said:

"I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v. The Queen ((1975) [1975] HCA 42; 50 A.L.J.R. 108 at p. 117):

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v. The King [1911] HCA 66; (1911), 13 C.L.R. 619 at p. 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v. The Queen [1963] HCA 44; (1963), 110 C.L.R. 234, at p. 252; see also Thomas v. The Queen [1960] HCA 2; (1960), 102 C.L.R. 584, at pp. 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.’: Peacock v. The Queen at p. 661."

114. With this principle in mind, the question is; is your guilt the only rational inference to be drawn in the circumstances of the case?

115. It is noted, I have rejected your evidence of alibi, threats and undue influence by police and impropriety of your records of interview and have found that each of you were amongst a group of people at the coffee plantation on the early morning of Wednesday 31st October 2007. After evaluating and rejecting your evidence in the manner I have done above, I am left with the evidence of the State witnesses identifying you at the scene of the crime.

116. It is also noted that even though the State witnesses did not see you actually chop down the coffee trees nonetheless, they said it was you because they saw you at the coffee plantation and most importantly said that by the time they arrived there, all the coffee trees were already been chopped down. The time they saw you was around 6 o’clock in the morning. It is further noted that you were the very persons who had chopped down some of the coffee trees and cleared bushes at the very same place a year earlier, on 15th December 2006 for survey work to be carried out. Furthermore, it is noted that you were the very persons demanding and putting pressure on the Banz Catholic Church Pastoral Advisory Board to return the land upon which the coffee trees are on to you.

117. Finally, it is noted that except for you Didi Gelwak Sakol, you others admitted in your records of interview that your chopped the coffee trees on that day. Isn’t it a coincidence that you just happened to be there at a time the coffee trees were chopped down when you were seen by these State witnesses? In my view, all these matters point to you as the persons who chopped down the coffee trees on that day. It can’t be anything else and I cannot think of anything else to persuade me to conclude otherwise than you being the perpetrators.

118. In other words, all these circumstances support the State’s case that you were the ones who chopped down the coffee trees in the early hours of the morning of that day, say between 4 o’clock and 6 o’clock even though none of the State witnesses actually saw you chop them down. The time would have been perfect given the large area of land and coffee trees you had to cover at that time. Therefore, I am satisfied that you were the persons who chopped the coffee trees on that day. The first element of the offence has been made out by the State.

119. In respect to the second and third elements of the offence, that is whether the chopping down of the coffee trees was wilful and unlawful, I find that you had no lawful reason to chop them down. I so find because despite your claim that the Banz Catholic Church Pastoral Advisory Board had made a decision to return the land to you, which was subsequently endorsed by the Bishop of Mt Hagen Archdiocese, first, I do not find any evidence of a State lease issued for Portion 91 to you. Secondly, the letter from the Banz Catholic Church Pastoral Advisory Board to the Bishop dated 26th April 2004 (Exhibit "D1") does not expressly state that the land be given to you. It states that the land be released to "customary land owners/locals". In my view, it could mean any customary landowner.

120. Thirdly, the letter from the Bishop to the Department of Lands in Mt Hagen dated 19th October 2006 (Exhibit "D2") does not state that the land be given or released to you. It also states that "the section to be released to the State". In my view, it seems that land is being surrendered to the State for reissue of title but does not say if the new title should be issued to you. On the other hand, the only evidence of a State lease issued for Portion 91 is to the "Mission of Holy Ghost (New Guinea) Property Trust": see exhibit "P6". You do not dispute that based on this State lease, the Banz Catholic Church has established the coffee plantation.

121. In the absence of any evidence to the contrary, I find that the Mission of Holy Ghost (New Guinea) Property Trust is the registered proprietor of the State lease, being Portion 91 upon which the Banz Catholic Church has established the coffee plantation. It has an indefeasible title pursuant to section 33 of the Land Registration Act. No-one has any right of ownership or user rights over the land. That means, you have no right whatsoever, not even your claim of traditional ownership to enter the land and chop down the coffee trees. You must understand that, the land is not a traditional land; it is a State land and the Mission of Holy Ghost (New Guinea) Property Trust is the registered proprietor under a State lease (Missions lease) of which the Banz Catholic Church and the coffee plantation are located.

122. Until such time the Mission of Holy Ghost (New Guinea) Property Trust surrenders its title to the State through the Department of Lands & Physical Planning and a new title is issued to you, you have no right of ownership and venture onto the land and chop down the coffee trees. It must follow, I reject your claim that the Bishop of Mt Hagen Archdiocese had approved its return to you, that is why you entered it and chopped down the coffee trees. I find you are not the registered proprietor of the State lease upon which the coffee trees were located. In the circumstances, I find that your actions in chopping down the coffee trees unlawful. I am satisfied that the State have proven that your actions in chopping down the coffee trees unlawful. This element has been satisfied.

123. Finally, as to the element of whether you wilfully damaged the property, I have no difficulty in finding that you wilfully damaged the coffee trees. You did so because you were frustrated. You were frustrated because you said, the Bishop of the Archdiocese of Mt Hagen had approved the return of the land to you in October 2006. This was after some of you went to Mt Hagen to see the Bishop and he gave his assurance to you personally that he would ensure that the land is returned to you. Although you denied being frustrated in cross examination by the State prosecutor, I note in your own evidence, you said it took longer than expected to have the title transferred to you. In my view, I am entitled to infer from these facts that you were frustrated and that is the underlying cause for you to chop down the coffee trees.

124. My second reason for finding that you wilfully damaged the coffee trees is that, you chopped down 2,230 coffee trees. I say this despite your denial of the number of coffee trees chopped down that morning during cross examination by the State prosecutor. I accept the evidence of the State witnesses, in particular Mr Sakipo and Mr Mur that the total number of coffee trees you chopped down is 2,230. In my view, that is a lot.

125. My view is fortified by my own observation during the visit to the crime scene where the land upon which the coffee trees are located is big. It runs from the edge of Banz town to the edge of Banz Catholic Church parish station where the second portion begins. To my mind this is a big land, hence it is no wonder it had more than 2,000 coffee trees on it. In the end, I find you chopped down a total 2,230 coffee trees, at a total cost of K45,658.80.

126. Thirdly, since you have denied wilfully chopping down the coffee trees, let me ask you these questions; why did you chop the coffee trees in the early hours of the morning? As I have found above, you chopped them between 4 o’clock and 6 o’clock in the morning. Is this reasonable? In my view, no right thinking person would have chopped coffee trees in the early hours of the morning unless there are some exceptional reasons for doing so. In this respect, it is noted, in your evidence you have not given any explanation. In my view, it defies logic and common sense for you to chop down the coffee trees at this odd hours of the morning, especially when you claimed that the Banz Catholic Church Pastoral Advisory Board and the Bishop of Mt Hagen Archdiocese had given their approval for the return of the land to you.

127. Finally, it surprises me that even though you had an interest in the land, that is to reclaim it from the Banz Catholic Church parish, you did not make one single complaint to the police after you discovered that someone had chopped down the coffee trees on Wednesday 31st October 2007. Further to that, it also surprises me that you did not find out who would have chopped the coffee trees. You said that the reason for you not to enquire into these matters was that, you were not the owners of the coffee trees when you were asked by the State prosecutor in cross examination. I reject this explanation because it does not make sense at all. Surely, if you were interested in the land, you would have enquired and taken some serious actions against the perpetrators.

128. In my view, the above circumstances are a clear expression of your frustration and anger of being unsuccessful in reclaiming the land from the Banz Catholic Church parish. For all these reasons, I conclude that you acted with malice and ill will when you chopped the coffee trees on the morning of Wednesday 31st October 2007. I am satisfied that this last element of the offence has been made out.

CONCLUSION

129. Steven Molu Minji, Simon Koso Kerenga, John Minji, James Kauboi and Didi Gelwak Sakol, I am satisfied beyond reasonable doubt that you wilfully and unlawfully chopped down coffee trees, the property of the Banz Catholic Church on early hours of the morning of Wednesday 31st October 2007. I therefore, convict each of you of the offence of wilful damage of property under section 444(1) of the Criminal Code.

Guilty verdict returned accordingly.

_______________________________________________________

Acting Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Accused