State v Dar [2015] PGNC 216; N6105 (16 October 2015)

N6105

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1229 OF 2014

BETWEEN

THE STATE

AND

JAMES DAR

Minj: Makail, J
2015: 12th, 13th, 14th & 16th October

CRIMINAL LAW – Verdict – Wilful damage to property – Damage to fuel pumps of fuel service station – Defence of general denial – Identification of accused – Leader of group – Inciting tribesmen to commit unlawful act – Common unlawful purpose – Principal offender – Criminal Code – Sections 7, 8 & 444(1).

Cases cited:

The State v. Steven Molu Minji & 3 Ors and The State v. Didi Gelwak Sakol (No. 1) (2009) N3795
The State v. John Beng [1976] PNGLR 481
John Beng v. The State [1977] PNGLR 115

Counsel:

Mr. P. Tengdui, for State
Mr. P. Moses, for Accused

VERDICT

16th October, 2015

1. MAKAIL, J: The State alleged that the accused James Dar is the ring leader of a group of men and incited them to damage fuel pumps of FM service station owned by Jimi Valley Trading ("JVT") at Banz town on Saturday 04th January 2014 which made him a principal offender under Sections 7 and 8 of the Criminal Code and for the purpose of the offence of wilful damage to property under Section 444(1) of the Criminal Code. He denied the charge.

2. It is alleged by the State that the accused led his tribesmen from the Kapankuk, Anskuk and Kumunka clans or in short KNK tribe as is commonly referred to by locals in the Banz area to FM service station on the given date and damaged the fuel pumps. The total value of damage is said to be over K140,000.00. It is further alleged that there was no lawful reason for the accused to damage the fuel pumps.

3. For this offence, the State has the onus to prove:

3.1. The accused was the person;

3.2. He damaged a property, in this case the fuel pumps;

3.3 Intention to damage the property, namely fuel pumps; and

3.4. It was unlawful.

4. The State's case is that the accused was present at the time of the commission of the offence and that he was the person who led the raiding party to JVT property and damaged the fuel pumps worth over K140,000.00.

Documentary Evidence

5. The evidence supporting the State's case that five fuel pumps were damaged is from the following documentary evidence which were tendered by consent:

5.1. Record of Interview of Accused dated 11th July 2014 in Pidgin – Exhibit "P1";

5.2. Record of Interview of Accused dated 11th July 2014 in English – Exhibit "P2";

5.3. Six Sets of Photographs of Damaged Fuel Pumps – Exhibit "P3";

5.4. Letter from Managing Director of FM Service Station Mr Michael Semgar undated and Quotation dated 16th January 2014 – Exhibit "P4"; and

5.5. Writ of Summons No 1097 of 2014: Robert Mundi v. Senior Inspector Billy Kombul & The State – Exhibit "P5".

6. A word of caution though. The reference to the record of interview (exhibits "P1" and "P2") is to the extent that when the accused was shown photographs of the damaged fuel pumps, he admitted that the photographs showed damaged fuel pumps. This further confirms the State's case that the property that was damaged was fuel pumps. As to who damaged them is the main issue here.

7. The defence case is that the accused was not the person who led the raid on JVT property. He was away in Minj and he arrived after the raid. The raid was by KNK tribesmen and later by police from Banz. The further involvement by the police is the reason Robert Mundi sued the police and the State for damages as a result of the raid. Evidence of that is the writ of summons (exhibit "P5"). However, counsel for the accused does not rely on alibi of the accused. Instead, he submitted that the defence is one of general denial.

8. In my view if the accused is not relying on alibi, the State is not required then to disprove it. It will suffice that the identification of the accused at the scene of the crime must be sufficiently proven on the required standard of proof of beyond reasonable doubt for a lawful conviction to be recorded against the accused subject to the evidence proving his role in the commission of the offence for the purpose of Sections 7 and 8 of the Criminal Code.

9. In the Court circuits to Minj back in 2008 and 2009, I heard a case involving the chopping down of coffee trees belonging to the Banz Catholic Church at Banz town by five accused who where tribesmen from the Senglap-Kanem tribe of Sipil village in Banz. This was the case of The State v. Steven Molu Minji & 3 Ors and The State v. Didi Gelwak Sakol (No. 1) (2009) N3795. The State alleged that there was a dispute between the accused and the Church over land on which the coffee trees were on. One morning around 6 o'clock, they entered the land with their tribesmen and chopped down the coffee trees. If one is visiting Banz town, this land is located next to the intersection of Jimi (Nondugl) and Banz road. They denied the charge of wilful damage to property and relied on alibi. Amongst other reasons, their alibi was rejected because it was not credible.

10. In this case as I pointed out, the accused does not rely on alibi so less weight will be given to it. As to the issue of identification, the State called three witnesses. They were Edward Tumbo, Bernard Mol and Robert Mundi.

Edward Tumbo's evidence

11. Edward Tumbo is one of the persons who the State submitted identified the accused prior to the destruction of the fuel pumps. Mr Tumbo gave evidence that he is from Sipil village next to Banz town. At the time of the offence, he was working as a supervisor for a local company operating nearby to JVT premises at Banz town. It operated a night club, rental accommodation and a store. At 6 o'clock in the morning of Saturday 04th January 2014 he and other staff members comprising of cleaners and security guards were cleaning the front entrance of the company premises after the night's social activities when he heard loud chants from a group of people advancing towards Banz town.

12. It was a big group comprising of men and youths and they were armed with bush knives, sticks, iron bars and solid objects. He was able to work at where this people were from. They were from the KNK tribe. He saw the accused leading them and with him was Bosip Ding. He and Councillor Samo who was present at that time walked up to the group and pleaded with the accused to stop what he and his tribesmen were embarking upon and return to their village. They told them that the cause of the dispute could be amicably sorted out between the parties but the accused and his people shouted them down. The accused swore at them saying, "Fuck you, we are not going to listen to you. We are going to the service station and destroy it. Robert Mundi fought one of our educated elite." He was also told this trouble had occurred last night.

13. He and Councillor Samo could not do much because they were outnumbered by the advancing party. He also saw Sebastian and Joe amongst them. He took out his mobile phone and rang Emma at the service station and alerted her of the impending danger and to prepare for it.

Bernard Mol's evidence

14. The other person who the State submitted identified the accused was Bernard Mol. He gave evidence that he is a Grade 7 student at St Anslem Primary School. He lives with some relatives at backstreet of old Banz Airport. His house is located opposite to JVT premises and the distance between the two is like from Minj Court House to Minj Police Station. At about 4 o'clock in the morning of Saturday 04th January 2014 he was sleeping in the house when he heard people shouting. He woke up and went out of the house. He observed a group of boys from KNK tribe at the premises of JVT. They had their faces painted in order to conceal their identity and he could not identify them but he was able to identify the accused and Bosip Ding because they did not paint their faces. There was sufficient light coming from the security lights of JVT premises and from that he was able to identify the accused and Bosip Ding.

15. He knows the accused because he is a police reservist and a leader from the KNK tribe. The accused and Bosip Ding led the boys to the JVT premises. He heard them say that they did not see Robert Mundi around and would return at 6 o'clock in the morning. They then left. He returned to his house. He anticipated the group would return and waited for them. As anticipated, they did at 6 o'clock and destroyed the service station. He watched them from his house. Again, the accused led the boys. After destroying the service station, they left.

Robert Mundi

16. Robert Mundi was not present when the fuel pumps were damaged. He was at Minj Police Station at the given time. So he did not see who damaged the fuel pumps, whether the accused was present at that time and what role the accused played in the commission of the offence. However, his evidence is relevant to the extent that he is the proprietor of JVT and the fuel service station in Banz. While at Minj, he received a call from a relative warning him of an attack by KNK tribesmen. It was a result of a trouble at Banz Club on Friday night. He was involved in that trouble and he went to Minj Police Station to seek police assistance. He did not ask for assistance from Banz Police Station because there were some policemen from the KNK tribe serving there and he did not believe they would assist him.

17. He left Minj Police Station in the Police Station Commander's vehicle with the Police Station Commander ("PSC") and some policemen for Banz. They arrived at Banz between 7 o'clock and 8 o'clock. By that time the service station was already destroyed. He was taken to Banz Police Station and locked up.

Identification of Accused

18. Mistakes can be made in identifying an accused. So when it comes to identification of an accused, the Court must be cautious in accepting the evidence of identification. In The State v. John Beng [1976] PNGLR 481, the Court suggested some guidelines for the Court to follow when considering identification evidence and I respectfully refer to them here:

"Matters to be taken into account are: what opportunity the person identifying had to form a judgement on the identity of the person who committed the crime – the position of the parties when the identification was made, the lighting, the opportunity to form the judgement, and generally the circumstances as to the identification."

19. For more identification evidence, I also refer to the Supreme Court decision in John Beng v. The State [1977] PNGLR 115. These matters have been adopted and further expounded in subsequent cases but I do not intend to further comment on them except to say that the quality of the identification evidence must be good and if it is good, it is reliable.

20. In this case the first sighting of the accused was at 4 o'clock in the morning of Saturday 04th January 2014. He was said to be at JVT premises with a group of boys. They were looking for Robert Mundi but Robert was not around. The person who saw him was Bernard Mol. Bernard Mol heard them saying that they would return at 6 o'clock in the morning.

21. Counsel for the accused submitted that Bernard Mol's evidence is unreliable for two reasons. First, it is inconsistent with the evidence of Edward Tumbo. Bernard Mol said that when he saw the accused, he was unarmed. When Edward Tumbo saw the accused, he was armed with a stick. Secondly, Bernard Mol's house is further away from JVT premises and it was not possible to see the accused from such a distance. The distance is like from Minj Court House to Minj Police Station.

22. The second sighting was at 6 o'clock in the morning. He was said to be leading the tribesmen towards Banz town and was seen by Edward Tumbo. Counsel of the accused submitted that Mr Tumbo's evidence should not be believed because he had withheld information in relation to working with JVT after the raid in his evidence in chief. He revealed it during cross-examination and this demonstrated that he was prepared to lie to support the State's case against the accused.

23. Secondly, in cross-examination he said that the accused was armed with a stick. This evidence contradicted the evidence of Bernard Mol who said that the accused was unarmed. I am not satisfied that this inconsistency is sufficient reason to disbelieve both witnesses. This is because Bernard Mol said he saw the accused at 4 o'clock in the morning and Mr Tumbo saw him at 6 o'clock that morning. The sightings of the accused by these witnesses were at different times and this may explain why one said he was armed and the other said he was not.

24. As to Mr Tumbo's withholding of information about his employment with JVT, it does not, in my view, destroy the overall evidence of Mr Tumbo and that I should reject his evidence in its entirety.

25. The distance between the accused and these witnesses is relevant. In respect of the distance between the accused and Bernard Mol at 4 o'clock in the morning, it is said to be the distance between the Minj Court House and Minj Police Station. This distance may be considered further away from the position the accused was seen. But I agree with the State prosecutor who submitted that such a distance is an estimate of the distance described by Bernard Mol and it should not be held against the State. The Court must weigh it up with the other evidence before arriving at the conclusion that identification evidence is of good quality.

26. The distance as between the accused and Mr Tumbo at 6 o'clock in the morning is not in serious dispute. It was close. This is confirmed by the evidence of Mr Tumbo who said that on seeing the accused and the tribesmen coming, he and Councillor Samo approached them and pleaded with them to stop but they refused.

27. The other relevant factor is the lighting. How was the lighting at the location where the accused was seen? At 4 o'clock in the morning Bernard Mol said that he was able to identify the accused because the light was coming from the security lights of JVT premises. Secondly, the accused did not conceal his face. The defence did not discredit this evidence in any sharp or form. There is also no contest as to the lighting of the location where Mr Tumbo said he saw the accused leading his tribesmen to Banz town at 6 o'clock in the morning.

28. A further factor is whether the accused was previously known to the witnesses or if he was a stranger. Both witnesses were unequivocal in their respective evidence that they knew the accused because he is a leader in the KNK tribe and also a police reservist. So they were identifying someone they knew in the locality and not a stranger. It was a case of recognition rather than identification. Another factor is how long the identification took place. Was it a fleeting glance or an observation long enough to form a judgment on the identity of the person? In this case there is no contest that it was not fleeting glace. This was a case where both witnesses had time to identify the accused in each instance.

29. Taking all these factors into account, I am satisfied that the quality of the identification evidence is good. In addition, I was impressed with the witnesses when they gave evidence. They give me no reason to doubt their evidence in relation to the identification of the accused.

30. On the other hand, as was pointed out earlier, the accused does not rely on his alibi even though he tried to explain in his evidence why he was not responsible for the damage to the fuel pumps. He gave evidence that he was not at Banz between Wednesday 01st January and Friday 03rd January 2014. He was at Minj at the Minj Secondary School Principal's house. On Saturday 04th January 2014 between 7 o'clock and 9 o'clock in the morning he received a phone call from his wife enquiring as to his whereabouts for the last couple of days and informed him of a big fight in Banz town. He did not say who was involved in the big fight but he and the Principal Paul Pange drove in the latter's vehicle to Banz. They took the Kudjip-Banz road.

31. On arrival, he observed that the service station was already destroyed. There were also Andrew Topo Tanz and some other leaders standing there and he joined them. He observed that fuel pumps were destroyed. He saw a vehicle with policemen driving into the JVT premises and Robert Mundi's people stoned it. The policemen retaliated and destroyed the premises. Later he left the scene and followed his tribesmen home. To my mind, he has contradicted himself by not relying on his alibi. So to that extent, I place no weight on his evidence.

32. Weighing up the State's evidence against the evidence of the defence, I come to the conclusion that the accused was present at the scene of the crime at the given time.

33. The final issue is whether he incited the tribesmen to damage the fuel pumps for the purpose of Sections 7 and 8 of the Criminal Code. Counsel for the accused submitted that if the Court were to find that the accused was present at the given time there is no evidence to prove that he incited the tribesmen to damage the fuel pumps. Further, in his submission refuting the evidence of Mr Tumbo that the accused led the tribesmen towards Banz town that morning, counsel submitted that mere presence of his accused is not sufficient to hold him criminally responsible for the actions of the tribesmen under Section 7 of the Criminal Code. There must be evidence to prove that the accused actively participated and said words to incite or encourage the tribesmen to damage the fuel pumps.

34. I accept this line of submission. However, where the evidence is overwhelming in relation to the accused leading a large group of people none other than his own tribesmen from the KNK tribe with chants and armed with bush knives, sticks, iron bars and solid objects to Banz town in response to a "problem" that occurred the night before, it is difficult to accept the submission that the accused played no part in the damaging of the fuel pumps. In my view such a proposition is unreasonable and ignores the reality out there that an advancing party of chanting armed tribesmen led by a leader of the tribe towards a targeted location are bound to resort to violence if their grievance is not met by the opposing party.

35. Bernard Mol said that he heard the accused and the boys who were at the JVT premises at 4 o'clock in the morning say that they did not see Robert Mundi around and would return later. Their attendance in search of Robert Mundi had something to do with the "trouble" that the accused briefly mentioned to Mr Tumbo later in the morning on his way with the tribesmen to Banz town. As Mr Tumbo's evidence revealed, the "trouble" was about Robert Mundi assaulting one of the KNK educated tribesmen. Furthermore, the accused told Mr Tumbo that they were going to the service station and destroy it. So there is evidence of the accused threatening to destroy the service station.

36. To my mind in addition to leading a group of chanting armed tribesmen, in a case where a leader further utters such words in their presence over a conflict concerning one of their tribesmen who was said to have been assaulted by a member of an opposing tribe, a reasonable conclusion open to the Court to draw is that it was an encouragement to the others to commit an unlawful act. There is no dispute that the fuel pumps were damaged.

37. Counsel for the accused further submitted that the police from Banz were also responsible for the damage. This is the reason Robert Mundi has sued the police and the State for loss arising from the damage. However, Bernard Mol said at 6 o'clock he saw the accused and the boys returned and destroyed the service station. Robert Mundi said that when he arrived at Banz between 7 o'clock and 8 o'clock, he observed that the service station was already destroyed. If the evidence of the accused in relation to the events that occurred after his arrival from Minj were taken into account, it would also show that the police conducted further raids on JVT property after the fuel pumps were damaged. For these reasons, I find the submission by the defence counsel that the police damaged the fuel pumps has no merit.

Conclusion

38. It follows the only reasonable conclusion open to the Court to draw from the evidence is that the accused incited the KNK tribesmen and they damaged the fuel pumps and there was no lawful reason for damaging them. I am satisfied that the State has proven that the accused participated in the execution and prosecution of a common unlawful purpose under Sections 7 & 8 of the Criminal Code. I find him guilty of the charge of wilful damage to property under Section 444(1) of the Criminal Code.

Verdict accordingly.

______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused