State v Kelly [2019] PGNC 425; N8160 (14 October 2019)

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CRIMINAL LAW – Trial - Wilful and unlawful damage of property -Criminal Code s. 444 (1)
CRIMINAL LAW – Practice & Procedure – Indictment – Pleading of particulars of property damaged or destroyed – Whether accused can also be lawfully convicted as a principle offender and he aided and abetted by operation of Section 7 Criminal Code

CRIMINAL LAW – Trial – Guilty verdict entered - Wilful and unlawful damage of property -Criminal Code s. 444 (1)

The accused was charged with one count of wilful and unlawful damage to property contrary to section 444 Criminal Code. On 25^th March 2015 the information was struck out by Lorengau Committal Court on grounds of insufficiency of evidence. The matter came before this Court by way of an indictment under section 526 (Ex Officio) of the Criminal Code.

Cases Cited

John Jaminan v The State (No 2) [1983] PNGLR 318
The State v Allan Allam (2009) N3788

1. GEITA J: On 11 April 2019 the section 526 indictment was filed into court giving jurisdiction to this court to hear the matter. Upon arraignment the accused pleaded not guilty to the charge of wilful and unlawful damage to property owned by Mathew Luis contrary to section 444 of the Code and trial ensued.

2. Four oral testimonies and 7 exhibits formed part of State evidence. The exhibits include:

1	Costing by Mathew Luis (12.4.19)	K740,423.00	Exhibit 1
2	Repair costings (12.4.19)	K158,051.00	Exhibit 2
3	Toyota L/Cruise St Wagon V8	B/white fotos a-e (Damage)	Exhibit 3
4	Isuzu D-Max	B/white fotos a-f (Damage)	Exhibit 4
5	Suzuki Vitara St Wagon	B/white fotos a-e (Damage)	Exhibit 5
6	Mazda Bongo Dynna	B/white fotos a-b (Damage)	Exhibit 6
7	Bakery foods damages	B/white fotos a-e (Damage)	Exhibit 7
8	Cash Register damaged	B/white fotos a-b	Exhibit 8
9	Damaged food in living room	B/white fotos a-e	Exhibit 9
10	Kai bar food damaged	B/white fotos	Exhibit 10
11	Tufa tank, Satellite receiver & back gate. Damaged.	B/white fotos a-c	Exhibit 11
12	Suzuki 4 stroke 175 HP O/Motor	B/white fotos a-e	Exhibit 12
13	Quotation for Land Cruiser parts	3 October 2016 K9,944.00	Ex 13
14	Quote for Mazda Bongo parts	3 October 2016 K8,712.00	Ex 14
15
16	Quote for Suzuki Vitara parts	3 October 2016 K9,328.00	Exhibit 16

3. Prior to the incident the complainant was renting a property from Pitiliu Hunei Company Ltd at K3000 per month at Ward 5 Lorengau town viz Section 20 Lot 1. He was operating a small business in mini supermarket, bakery, fast food outlet and marine products and has remained on the property for more than 7 years.

4. Three days prior to the wilful damage complained off on 6^th August 2014, the accused confronted the complainant at the store and demanded that he be paid K9000 as he was the holder of title to the property. The complainant insisted that he will only pay such monies into Court and for the accused to sort the matter out between Pitiliu Island Landowners. On 4 August the complainant chained and padlocked the store entrance and locked store workers and customers inside the store and left. The accused told the complainant to remove all his store good as his boys will come and remove the roofing to the store.

5. On 5 August 2014 the Pituliu Hunei Company Ltd Chairman Barnabas came and cut the chain and locks to the gate and they continued on trading that day.

6. On 6 August 2014 around 4pm a small tip truck driven by the accused and fully loaded with boys came to the premises and rammed the 2^nd gate and knocked it down. The boys armed with bush knives, sticks and bottles went on a rampage and destroyed and damaged all property including motor vehicles, white goods and store goods. The boys also looted the mini supermarket and kai bar.

7. During the commotion the complainant took cover in his office/room with his 2 children as the elder daughter ran out. Whilst in the room he could hear crying and bottles being thrown about. He came out after 2 hours when the commotion had subsided and saw the damage caused to his property.

8. His wife and some employees came and saw him with two children while the third child had gone outside.

9. The complainant and his employees escaped from the back gate towards Manus Sports Club and were later transported to their house at Ward 2, leaving the property and store unguarded for the night.

10. The next day he reported the matter to the Police Station. Three policemen attended to the scene, saw the damage and took photos. As days grew into weeks and months with no positive response from Police in Manus, the Complainant travelled to Port Moresby to seek legal advice.

11. On 3 October 2014 the complainant bumped into the accused, his wife and two of his boys at Vision City Port Moresby. The accused shook hands with him and told him that he destroyed his property because he could not listen to him. The accused told the complainant that he did not burn his vehicle and that he only damaged it and destroyed his property.

12. The accused told the complainant to get his people to remove their goods and property as he would travel to Manus the next day (Sunday). True to his words the accused returned to Manus and around 10am on Monday began removing the roof to the store and destroying the store again. Daniel Polon told him that Kiap was destroying the store again. He said he remained helpless as he was still in Port Moresby.

13. A week later the complainant returned to Manus. He visited the store but was told by a security guard at the time that Kiap Kelly had left instructions that the store gate was not to be opened. The gate was to be opened on condition that the complainant must remove all his goods from the premises.

14. Three months lapsed with electricity supply into the property disconnected. The complainant estimated that about K80,000.00 worth of store goods were looted or damaged as a result of the raid.

I5 In examination in chief he said the total value of properties destroyed amounted to K740,423.00. (list produced). The list was accepted into evidence despite objections on grounds that the list was not specific on particular items. Such objection was over ruled by Court.

16. In cross examination the complainant admitted that a Pondrakot was also known to him and he accompanied Kiap Kelly to the property on 3 August 2014.

17. When asked if he knew Pitiliu Hunei Company was deregistered the complainant said he was not aware if that was so but he continued to pay rent to them. He said on 6 August 2014 he was in the store premises and going about doing his business rounds into the supermarket, kai bar and bakery. From there he heard stones and missiles being thrown at the store. When he heard a noise of a car bumping the door, he rushed out to the Kai Bai Kitchen.

A. I saw small tip truck. I know its driver every day. Its off white in colour due to old age.

A. I was in the kitchen. I saw motor vehicle damage gate and it fell down and men came rushing inside.

A. Yes, I was scared and I went and hid in the bedroom with three of my children.

18. When further asked if he saw policemen Cosmos and Philip Lulu the complainant said he saw them after the destruction.

Q. I put to you that at time of the destruction happened, he (Kiap Kelly) was at his place near the beach.?

Q. He was left at the beach by Cosmos and Lulu and they drove to BP Ocean Trading?

19. In re-examination the complainant said during the destruction of his property he saw Kiap Kelly. He said the dump truck came in full of boys and destroyed his property. He denied giving Court papers to Cosmos and Lulu to be served on Kiap Kelly.

20. On 6 August 2014 the witness was trying to nail back the roofing iron which were removed earlier by the accused’s men on the store roof. He was on the roof with two other boys around 4-5pm when he heard shouting and abusive words coming from the beach being thrown at them by Kiap Kelly’s’ boys: “Kaikai kan”. They were told not to replace the roofing iron back on. He said the next moment he saw a car drive out of Kiap Kelly’s place towards BP Ocean. They came in through the 1^st gate and came into the 2^nd gate and the tipper truck bumped the gate. Kiap Kelly and his boys threw stones and bottles at us in the yard.

21. He said by the time he came down from the roof Kiap Kelly and the boys were still throwing stones and bottles at them as he evaded the missiles.

22. He said Kiap Kelly walked straight towards him and started throwing punches at him but he did not retaliate but was trying to block his punches. He said as they were struggling, he felt a knife land on the back of his head. He pushed the person with the knife and ran to the back of the store and hid in a room. He found a piece of cloth and cleaned the blood from his wounds as the commotion died down.

24. In examination in chief the witness said he saw damaged properties including a car belonging to BP Ocean, Tank, Kitchen utensils. They were the properties he could remember. He said he saw the tip truck driven by Kiap Kelly. He described the colour of the tip truck as white with a bit of maroon colour and owned by Kiap Kelly. The witness had no difficulty in identifying Kiap Kelly in the dock, saying they were from the same Pitilu Island.

25. The witness said at the back of the truck were about 2 or 3 boys. He said a group of boys came and threw stones but he cold not tell who was throwing the stones.

26. The witness maintained during cross examination that he was able to see Kiap Kelly’s’ club and area near the beach. When suggested to him that the view was obstructed by trees and buildings, he admitted there were trees and building but from the roof top he was able to see Kiap Kelly’s area clearly. When suggested to him that his story was made up the witness said he saw some boys coming from the beach end shouting and throwing bottles at them.

Q. I put to you that Kiap Kelly did not come into the premises like how you told Court?

A. Kiap Kelly drove tip truck, walked out of the yard and I saw him with my own eyes.

27. During aggressive cross examination that Kiap Kelly was not at BP Ocean the witness maintained that he was and he saw him with his own eyes.

28. When it was suggested to him that he was lying about Kiap Kelly the witness maintained that Kiap Kelly walked straight at him and fought with him.

29. The line of re-examination was objected to by defence but was overruled by Court. The witness maintained that he told police about seeing Kiap Kelly driving the tip truck into BP Ocean Trading.

30. When the witness was reminded about telling lies to Court by defence lawyer, he said he was telling the truth and his story was the same as his statement. The witness maintained that Kiap Kelly was closely related to him and knew him very well. Adding that it was Kiap Kelly who punched him that day.

On the 16April 2019 State formally close its case. Crime scene visit was requested for 17 April 2019.

31. Both Counsel presented a consent report: The report in a nutshell is as follows: Commenced 8.57am and ended 9.06am 18 May 2019.

32. At the close of State evidence Counsel for the accused moved a no case application relying on the second limb of the principal case of Paul Kundi Rape. Mr Siminji submitted that the evidence thus far was not sufficient and not safe for the Court to allow the case to trial. Mr Tusais for the State argued that the weighing of all evidence is best left to the end of the proceedings once all evidence is before the Court. He submitted that eye witness accounts of placing the accused on the crime scene was sufficient for the Court to allow the case to trial.

33. Having heard both Counsel the Court ruled against the no case submission as there was sufficient evidence on prima facie to allow this case to go to trial. Defence called 3 witnesses and was allowed to call 2 alibi witnesses, despite such notice given to State on the 11^th hour of proceedings.

34. Kiap Kelly is from Pitiliu Island and resides at ward 5 Lorengau town. He owns and holds title to property at section 20 allotment 1 in Manus.

35. He asserts that on 3 August 2014 he went alone to BP Ocean Trading, showed his title to Mathew Luis and demanded that he be paid rental payments. Mathew Luis refused to pay rent to him saying that rent was paid to Pitiliu Hunei so he returned to his area.

36. The witness said he returned again the next day, 4 August 2014 to BP Ocean Trading and told Luis that he will bring his boys to remove the old roofing iron and replace them and returned home. He continued to serve beer customers at his place.

37. He denied locking the front gate yard of the store area. He further denied being present at BP Ocean Trading area on 6 August that day. He said between 4-5pm he was at section 20 lot 1 at his place near the beach.

38. He said on that day and time a police vehicle drove into his yard to serve Court documents to which he protested bitterly that he was the title holder. In the police vehicle were Cosmos Lange, Philip Lulu and a policewoman. He received the Court documents and the police left as he continued to serve his customers at the beer store.

39. The witness said after the police left, he heard noise coming from section 20 but on the other side of BP Ocean.

40. He maintained that Mathew Lui’s evidence of going to BP Ocean Trading with other boys and bumping the gate were not true. He further denied any involvement in smashing Mathew Luis motor vehicle glasses including the damage caused to the store and other property belonging to Mathew Luis. He further denied destroying the Kai Bar area, store goods and Cash Register.

41. As regards Andrew Lipson’s evidence, he categorically denied any truth in them and said they were not true. He also denied Lipson’s version of punch-up with him.

42. The accused admitted meeting Mathew Luis in October 2014 at Vision City, Port Moresby. He questioned why the matter was taken to Port Moresby and not resolved in Manus.

43. In cross examination the accused maintained that he was the title holder to section 20 Allotment 1. Although he heard loud noises coming from the vicinity of BP Ocean Trading, he said he was busy serving plenty of customers at his store.

44. The accused admitted to several lead up meetings with the complainant on 3 and 4 August 2014 demanding rental payments. He said around 10 am on 6 August 2014 he went with two of his boys and they removed 1 or 2 damaged roofing irons and not 6 roofing irons. He denied locking the front gate and also denied Pitilu Holding workers fixing the roof and cutting the locks to the gate on 5 August 2014.

45. He further denied a Pondolei been directed to lock the store gate again in the afternoon.

46. The accused during extensive cross examination maintained that despite damage done to his property he was not cross and only casually peeped in to see the extent of the damage after the incident. He denied owning a tip truck in 2014 and denied any knowledge of who caused the damage to the property.

47. As to their meeting at Vision City in Port Moresby the accused admitted shaking hands with Mathew Luis and telling him that he was not cross with him. Adding that he did not break his car but only broke the wind screen.

48. The accused said the policewoman accompanied Sgt Lulu and Cosmos. He admitted discussing his case with Public Solicitor’s Office in 2018. He said in 2017 Tom Kale was the defence counsel who introduced him to Mr. Siminji in July 2018. Adding that he told his story to the Lawyer then.

He was shift supervisor on duty from 8 am to 4pm on 6 August 2014 and invited to serve a Restraining Order on Kiap Kelly before going off duty.

50. They drove to Kiap Kelly’s place in a police vehicle accompanied by Sgt Lulu and police women Constable Francisca Lowa between 3 and 4 pm. Kiap came and hesitantly received the order and returned to serving customers again at his beer bar.

51. The witness said as he started the police vehicle, he heard noises and so they drove to see what was happening. Along the way they saw plenty of people Infront of Handyman store, India store and BP Ocean trading.

52. He said policewoman asked to be dropped off in front of India store so that she could run to the Police Station to get help as the vehicle had no radio in it.

53. He drove into the gate and parked the vehicle in front of the Mini Supermarket and Kai Bar. Both him and Sgt Lulu tried to quell the people running about.

54. The witness said he saw Maryan Patrick was scared and trying to hide and so he escorted her to the main gate. He said Sgt Lulu told him to watch over the Kai Bar as he kept watch over the supermarket and stopped looters.

55. He said he heard noise inside the gate but was not able to tell who was fighting as he was concentrating on his watch. He said they were outnumbered and it was difficult.

56. He said the restraining order was to restrain Kelly Kiap from causing damage to the property.

57. He said he was inside Kelly Kiap’s area when he heard noise and Kelly was at the bar after receiving the restraining order.

58. In cross examination he admitted that the accused was an acquaintance and has helped police in Lorengau occasionally, as do other local businessmen. The witness denied seeing people causing damage to the Kai Bai and to BP Property, saying he was on the other side of the property.

59. When suggested to him that Moses Liu escaped unaided, the witness said Moses Liu’s daughter came to him and pleaded for assistance.

60. When suggested to the witness why he did not come forward to tell Police investigators from Port Moresby who had come to interview the accused that Kiap Kelly was not involved, the witness said he was never approached nor interviewed by police from Port Moresby. Ironically, he was the lead investigator and informant during the Committal court proceedings. He said I was expecting them to come and see me.

61. When suggested to the witness that despite living in Lorengau for 18 years he was not able to identify anyone or name anyone involved in the damage caused to BP Property, the accused said he could not see as he was near the Kai Bar area. He denied suggesting that Mathew Liu reported lots of damage to the Kai Bar the accused said that was not true as he was at the Kai Bar. I was there right up to the time situation calmed down.

62. Sgt Lulu was the OIC Prosecution in 2014. He testified of accompanying Senior Constable Cosmos Lange and Policewoman Francisca Lowan to serve a restraining order on the accused after 4pm on 6^th August 2014 at his residence. The order was served on the accused despite his protests as the holder of the disputed property.

63. The witness said as they were driving out, they heard people shouting and noise of banging of metal. As they got onto the main road there were lots of people who jammed the road. As they came close to the Indian store, they realised that the noise was coming from BP Ocean so the policewoman jumped out of the police vehicle and told them she was going to the Police Station to get assistance as their vehicle was not fitted with a radio.

64. They drove to the main gate, got people out, locked the gate and returned to the vehicle but noise was still coming from the area where it was locked as we could not access it. The noise lasted for about 5 to 10 minutes. He told Cosmos to keep watch over the Kai Bar as he kept watch over the supermarket.

65. He said as he got to the supermarket there were no people around except Kelly Kuo whom he knew very well. He who was armed with a bush knife and one other person came into the supermarket and he told him not to cause damage. But Kelly Kuo damaged cash register and left.

66. He said he could hear noise coming from the back and at Manus Sports Club. He said no one came from the main gate.

67. The witness said when he first heard the noise Kiap Kelly was at his premises.

A. We moved people out of the car park to the main gate and we locked the gate. There was banging of metal and breaking of glass and noise of people shouting coming from the area that was locked but we could not get in.

Q. There were only two of you at the time, did you think of driving to the Police Station and getting reinforcement?

A. I made the decision to send policewoman over to get assistance, while Cosmos and I drove to the area and we could see lots of people.

Q. When you went into the supermarket was any damage caused to the supermarket?

A. That’s correct. Before the mobile squad came, I heard a women’s voice and when I walked over to the Kai Bar door, I saw Cosmas standing with the complainant’s wife and her two children. They were so of begging to Cosmos, they were scared. I assume they maybe hiding in their bedroom, I don’t know.

Q. That’s strange because, those two little children were told to hide under the bed in their bedroom?

A. I think the father is telling lies, because those two children and the wife (mother), we drove them to the Police Station. Cosmos drove to the Police Station as I was sitting on the side. Cosmos made an OB statement and returned the wife and children back to the supermarket.

69. When put to the witness that as he and Cosmos was on the premises there was damage on the other side, the witness said he could not as the gate was locked. Furthermore, when put to him that the gate was knocked down by someone in a tipper truck, the witness said at the time it was locked and that he was telling the truth.

Q. The gate was locked but when we sent to see the shop, we saw that there were many ways you could go to the back, what do you say?

Q. I suggest to you that it was Kiap Kelly and his boys who went on rampage as you and Cosmos stood by and watched because he was your friend?

A. Kiap Kelly was not at the scene of the crime, we served him a restraining order.

Q. I suggest to you that you are telling lies about rescuing Mrs Luis and the 2 children because there is evidence that they ran and took shelter at the Manus Sports Club and they never even went to the police station, what do you say?

A. They were at the scene at the supermarket, Cosmos and I took them to the Police Station. Cosmos made an OB entry and drove them back to BP Ocean.

70. He gave testimony of being in company of the accused when police came and served the restraining order on Kiap Kelly at his premises on 6 August 2014. He said from the beach they could hear noise of people shouting and so they both walked to the road junction. At the junction stones were thrown at them and people tried to fight with them so they returned to Kiap Kelly’s place and remained there.

71. Police motor vehicle left when they heard noise but he did not go the place where noise was coming from.

72. When suggested to the witness that they first visited Mathew Luis on 3 August 2014 he denied saying he and Kiap Kelly visited Mathew Luis on the morning of 6 August 2014.

Q. Where you there when Kiap Kelly told Mathew Luis to pack up and remove his goods as he was going to fix the roof?

A. Between 9 am and 10 am Kiap and I went and saw Luis, showed him title and Kiap told him that they would come and replace the leaking roof.

When put to the witness that Kiap Kelly had told court earlier that around 10 am that day he came with two boys and began removing the roof when they were confronted by Pitiliu Hunei Co, Chairman, the witness answered in the negative and said No.

Q. Kiap Kelly told court that as he was serving customers at his place ne heard the noise but he was not concerned.?

Q. I suggest to you that you concocted your story with the two policeman and now lying to court?

Q. At which place did people threw stones at you and Kiap Kelly as you walked up, near Hardware Store or, India Store?

When put to him if he recognised persons who threw stones at them, he said there were lots of people and it was not possible to identify anyone, despite living in Lorengau for more than 20 years.

The witness was unable to say who came and destroyed the BP Ocean property as he was near the beach at KKs place. He never bothered to find out who caused the damage to BP Ocean Limited.

Q. I suggest to you that after Kiap Kelly removed the roof at 10 o’clock, Jack Daniels boys tried to nail back the roofing iron about 5 pm, that when Kiap Kelly and maybe you go angry, took your boys and attacked those boys who were nailing back the iron roof, What do you say?

73. Immediately after the close of defence case Mr. Tusais for the State applied for leave to call two witness to rebut the alibi evidence. Mr Siminji for defence took no issue with such application as the Notice of alibi was filed and served on the State on 18 April 2019. (3 March 2019). However, since the circuit was winding down it was not possible to call the two State witness but to have them called at the next circuit.

State Alibi rebuttal evidence. (State rebuttal evidence was received at another court circuit to Lorengau.)

74. Lydia Luis is the wife of the complainant Mathew Luis. She gave testimony of hearing a big noise in the building with workers running to and fro on 6^th August 2014. In her confusion she escaped to the nearby Handyman’s Hardware leaving her two younger children behind in their bedroom. She returned to the store assisted by her sister Wendy to look for her children. As they went into the store, they saw his husband standing in front of the kitchen door who told them that the two children were hiding under the bed in the office.

75. She rescued the two children who were scared and crying and took them to the back, lifted the wire fence, crawled outside and escaped towards Manus Sports Club. From there a friend assisted them to their house at Ward 3.

76. She maintained during examination is chief that she did not go to the Police Station. She said she knew Cosmos, a policeman from East New Britain. The witness said that the policeman did not take her and her two children to the police station, saying no policeman assisted them.

77. In cross examination the witness denied seeing either Sgt Philip Lulu nor policeman Cosmos that afternoon. When suggested to her that their eldest daughter ran to Cosmos to find comfort that day, the witness said her and the daughter ran outside.

78. When suggested to the witness that she did see Cosmos that day and that she was now telling lies to Court, the witness admitted seeing Cosmos but said she was following the story on what happened that afternoon. She said she was not concerned with him or the police at the time.

79. Defence objected to the tender of her statement into Court as part of state evidence. The Court was asked to disregard the whole of her statement, save those sections relating to the alibi evidence. The Court noted the objections however ruled that her statement be received into Court for completeness. (State Exhibit 17d).

80. Casper Umana worked as a Security Officer for 5 years with BP Ocean Trading and could still recall the events that happened between 4pm and 5pm on 6 August 2014.

81. The witness gave testimony of seeing a truck load of men who rammed through the back gate as two man came into the shop area and ordered him to open the gate but he refused. They forced the gate open and began destroying the property in the store. At that same time, he saw a police vehicle driving in with two male and a female officer but there was confusion in the store with workers running outside in confusion. The police officers stood and watched.

82. He said he saw the boss’s wife running out of the store with only one child as the Police stood watch and did nothing as the store property were damaged. After the damage the truck drove out of the gate full of boys.

83. The witness said the police vehicle left the property after some 10 to 20 minutes later after the truck left.

84. As they left, he came out and went looking for the boss’s wife and daughter in the store but could not find them. He than walked to Manus Sports Club through the back gate. At the Club he saw the boss and his family and they were later taken to their house at Ward 2.

85. In examination in chief the witness denied seeing Cosmos going into the store to protect the property at the Supermarket. Furthermore, he denied seeing Sgt Lulu protect the Bakery.

86. In cross examination the witness said he was on guard that day with two other security guards. He said the people were destroying the property when two policemen and a woman came onto the scene. Sgt Lulu and policewoman came out of the vehicle. When put to him that Cosmas had gone over to the Kai Bar the witness said he was standing at the doorway of the Kai Bar and no one came his way.

Q. The first girl, her mother and another lady were taken to the Police Station by Cosmas, what do you say? (finds corroboration with Mrs Luis’s statement)

Q. I put to you that you were scared when people came and destroyed the property?

87. In re-examination the witness said about 15-20 people were destroying the property. I decided against stopping them as they were armed with weapons. Police came but left soon after the motor vehicle drove out.

88. The defence submission is two pronged in that the accused could not have been involved in the wilful and unlawful damage of the property as he was on his property near the beach at the material time. Secondly since he was at his property, he could not have been the person said to be seen and attacked certain persons at BP Trading property viz. identification. Furthermore, police officers had visited him at his home at the material time to serve him court papers.

89. At the outset I take judicial notice of the principles on alibi evidence in the leading Supreme Court case of John Jaminan v The State (No 2) [1983] PNGLR 318. In this case the accused has put forward an alibi but the burden of proving the accused’s guilt continues to rest on the prosecution. The prosecution must disprove the alibi.

90. It is therefore incumbent on the accused to lead some evidence of an alibi which must be convincing and create reasonable doubt in the mind of this Court. The prosecution must establish beyond reasonable doubt that the accused was at the scene of the crime at the relevant time. The rejection of an alibi evidence does not necessarily mean that the court should enter a conviction. However, an alibi given in evidence and found to be false may, depending on the circumstances, amount to corroboration of the complainant’s evidence. A belated alibi, not revealed on any earlier occasion prior to trial, should be given less weight than an alibi consistently given over a long period, e.g. since the beginning of the police investigation, in a record of interview or in committal proceedings.

92. Due to the findings above, I concluded that the evidence of the accused was not honest or credible. The alibi evidence deemed poor and I determine that, in fact, they were false alibis.

93. The accused does not deny that on three consecutive days prior to the damage of property at BP Ocean Limited he demanded rental payment from the complainant. The accused denied locking the front gate leading into the store on 4^th August 2014.

94. However, prosecution asserts through Mathew Luis that on 5^th August 2014 Pitiliu Hunei Company Ltd Chairman Barnabas came and cut the chain and lock to the gate and they continued on trading. This Court can safely infer that after several failed attempts to collect rent from the complainant the accused locked him out from his property in frustration.

95. The accused denied driving a small tip truck into BP Trading premises with some boys, and rammed the 2^nd gate.

96. Therefore, this court is satisfied that the accused was indeed seen on the property that day, and drove that dump truck. The accused was indeed involved in assaulting Andrew Lipson that day. His evidence of alibi and denial are so lacking in weight and unreliable. His identity therefore is successfully made out. Having assessed the two bodies of evidence, I am of the view that the identification evidence, considered alone, is sufficient to sustain a conviction. The alibi evidence does not give rise to any doubt that the accused was one among the many boys who descended upon BP Trading property and committed the damage and destruction. On the contrary, as a false alibi has been presented to the court, this corroborates and strengthens the prosecution’s case.

97. Of all people, Kelly Kuwo was singled out, presumably due to his notoriety. He was seen at the crime scene and damaged a cash register. He may have damaged other property as well. Nonetheless, his participation to my mind is insignificant and not enough for court to draw inference that he was the one or ‘the person’ who wilfully damaged the complainant’s property and ought to be found guilty. The same cannot be said for the accused. He was frustrated, he was incensed, he was hellbent on collecting rent from the complainant, which were not forthcoming. His motive to retaliate remains high as opposed to Kelly Kuwo. The court therefore is entitled to infer that the accused had more reason to be associated with the wilful damage of property at BP Ocean Trading. Kelly Kuwo was part of the mob who ransacked the property.

98. The prosecution has proven beyond reasonable doubt that the accused was a member of the group of boys that caused damage and destruction at BP Ocean Trading property on the afternoon of 6 August 2014. The accused was an active participant in the damage and destruction.

99. The prosecution indictment stemmed from a section 562 Ex-Officio Indictment which indictment for wilful and unlawful damage under section 444 of the Criminal Code. The State also invoked section 7 of the Criminal Code against the accused. The State’s case being that the accused by his actions in leading his boys into BP Ocean Property and causing damage and destruction belonging to the complainant.

100. Mr. Siminji for the accused conceded that some person(s) unlawfully and wilfully caused damage to property to BP Ocean Trading area. He however took issue that not all property in the yard belonged to the complainant. There is no dispute that some property belonging to other persons were also kept in his yard at the time and also suffered damage. The actual value of the property may be at variance depending on whose side you are representing; however, they do not form part of the key elements and bears little utility and value. Suffice to take judicial notice that a significant loss was sustained due to the unlawful and wilful damage to property in the yard, owned by the complainant.

101. Although Mr. Siminji has gone to great lengths to demonstrate that the accused could not have been the person who actually damaged or destroyed specific properties belonging to the complainant, he fell short of explaining away the consequence of s. 7 Criminal Code. The prosecution need not show that the accused actually destroyed named properties nor particularize them. So long as they are pleaded in the indictment, that is all that matters. His Honour Makail J had this to say on point. Ironically this case was referred to the court by Mr Siminji, in support of his arguments. I quote:

“...I find no basis for counsel for the accused to attack the inadequacy of the evidence in relation to the description and type of properties destroyed or damaged during the raid in cross examination of the two witnesses. The point is, as long as the particulars of the properties destroyed or damaged have been pleaded in the indictment...” (emphasis mine). (The State v Allan Allam (2009) N3788.)

102. Section 7(1) (principal offenders) of the Criminal Code is the first provision on which the State relies to argue that the accused should be convicted.

“ When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(d) any person who counsels or procures any other person to commit the offence.(emphasis added)

103. For the moment the case authority referred to me by Mr Siminji is distinguished as regards the application of s. 7. In that case the accused was acquitted on the basis that he was not the principle offender. The State elected not to invoke s. 7 Criminal Code. However, in this case s. 7 was invoked. It follows that persons who aids, abets and or procures shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing the crime.

104. The accused was seen leading a group of boys and was present at BP Ocean Trading yard, the crime scene and contributed to some of those damage caused to properties and items belonging to the complainant.

105. With the greatest of respect to Mr Siminji, it is erroneous to suggest that s. 7 Criminal Code does not apply in this case. I have not been referred to any case authority on point nor have I been referred to any legal statement on point as to why this court should not consider the application of s. 7 when it was invoked in the indictment. Section 7 is therefore applicable in this case.

106. The offence of wilful damage and destruction, created by Criminal Code, Section 444 (1), consists of these elements:

107. All elements of the offence of wilful damage of property under s. 444 (1) Criminal Code have been proven beyond reasonable doubt. Furthermore, by operation of s. 7 Criminal Code the accused can legally be found guilty of the offence.

108. Kiap Kelly is found guilty of wilful and unlawful damage of property under Sections 444 (1) of the Criminal Code, as charged.

Verdict accordingly.
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyers for the Accused

National Court of Papua New Guinea

State v Kelly [2019] PGNC 425; N8160 (14 October 2019)