State v Dukuno [2022] PGNC 182; N9625 (11 May 2022)

N9625

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 643 OF 2021

THE STATE

V

SALOME DUKUNO

Goroka: Miviri J
2022: 05^th 10^t & 11^th May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Unlawful & wilful damage s 444 CCA– Trial – No Identification – Balance Not Discharged – Not Guilty – Acquitted & Discharged – Bail Refunded Forthwith.

Facts
The Accused threw the first stone at the Goroka Hospital Administration Building. And her clans man followed suit throwing stones damaging office doors, glass windows, flowerpots and electronic wall clock all valued at K 14, 740. 81 property of the Goroka General Hospital.

Held
Wilful and Unlawful Damage
Value of Damage K 14, 740. 81
No identification evidence
Balance not discharged
Acquitted & Discharged
Bail Refunded forthwith.

Cases Cited:
John Beng v The State [1977] PNGLR 115.
John Jaminan v The State [1983] PNGLR 318
Kandakason v The State [1998] PGSC 20; SC558
Pawa v The State [1981] PGSC 16; [1981] PNGLR 498
Waranaka v Dusava [2009] PGSC 11; SC980

Counsel:

J. Noma, for the State
V. Agusave, for the Defendant

VERDICT

11^th May, 2022

1. MIVIRI J: This is the verdict after trial of the accused who pleaded not guilty that She wilfully and unlawfully damaged the Administration Building of the Eastern Highlands Provincial Health Authority to the value of K14, 740. 81 property of the State.
   
2. On the 7^th October 2020 at Goroka the accused led others who were her clans’ man to the Eastern Highlands Goroka Hospital Administration Building and threw the first stone that broke the glass of the said Building. Her clan’s men followed suit and also threw stones at the said building destroying its’ office doors, glass windows, flower pots and electronic wall clock of the Goroka Hospital Administration altogether valued at K 14, 740. 81 the property of the Goroka General Hospital.
   
3. The charge is pursuant to section 444 Malicious Injuries in General; Punishment in special cases. The Section reads:
   

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

Penalty: If no other penalty is provided by this section-imprisonment for a term no exceeding two years.
(2).............
(3)..................
(4)..............................

Subsection (5) reads, “If the property was a bridge viaduct, or aqueduct that was over a highway or canal or over which a highway or canal passed, and –

(a) Was destroyed; or
(b) Was damaged and –

• (i) The damage was done with intent to make the bridge, viaduct and aqueduct or the highway or canal, or any part of any of those things, dangerous or impassable; and
• (ii) The bridge, viaduct or aqueduct, or the highway or canal, as the case may be, was made dangerous and impassable by the damage,

the offence is a crime, and the offender is liable, subject to section 19, imprisonment for life.”

4. First witness for the state was one Tony Base on oath. He was a Health Extension Officer who did post Graduate degree and was the hospital’s Curative Health Deputy Director. He was the Acting Chief Executive Officer of the Hospital. He witnessed the destruction of the Goroka Hospital Administration Building. The destruction occurred at the hands of the relatives of Jerry Buka, a promising employee, a team leader, Manager, who was sent on duty travel to Port Moresby. He was accommodated at the Laguna Hotel and went to work at the Vulupindi Haus in Port Moresby. Because of Covic19 it was restricted. During working hours, he was drunk with two females and another guy. They drove up to 17 mile in Port Moresby. And upon return were involved in an accident where he and another died instantly. This happened just before Ted Diro’s house and Bluff Inn Motel. He was in a Mark2 Sedan. The passenger flew out of the vehicle.
   
5. I went and picked up the body of Jerry Buka and brought it back here to Goroka. The Hospital Administration paid for everything to ensure the body was brought up and properly given to his relatives. We never failed and paid more when demand was made by the relatives. K 200,000.00 was demanded by the relatives which was beyond the legal bounds and so was not paid. We visited the house cry and had confrontation with the relatives. I saw Mrs Salome Dukuna encouraging and pushing for compensation”.
   
6. I was the chairman to hand over the body to the relatives. And this was to be conducted at an open field where the Eastern Highlands Provincial Health Authority normally hands over bodies to relatives. There was difference in the handover of the body of Jerry Buka and Police had to be called to quell the situation. And further we brought police from 17 mile to explain the situation leading to his death. During the handover there was delay at the funeral home and we waited for the body to be delivered. While we were waiting a truck load about 100 meters from where I was. Salome was within that group visible in front. And all in the group were calling out, “He is not lamb flap that you are putting in the freezer. Kaikai Kan, you fucking.” This was uttered by all in the group. Salome was within the group and was instigating. We called and got police, the current Police Station Commander who came down. She appeared to be instigating, but I did not hear what she was saying. She is now in court. She is a work colleague.
   
7. I went to the Administration Building and saw destruction beyond imagination of the office doors, glass windows, flowerpots and electronic wall clock, photo frames on the wall all destroyed, smashed, and broken up and lying everywhere on the floor. I took photographs Exhibits P1 to P32 in all evidencing the destruction. Exhibit P33 is the cost associated in the repair and maintenance partially of the destruction in the sum of K 14, 740.81. Because the glass all had to be sourced from Lae, brought up and refitted back. Despite the loss and destruction suffered by the Eastern Highlands Provincial Health Authority, we handed over the body of Jerry Buka to the relatives. We still suffer, because we are still without the clock in and out electronic clock. I was not at the crime scene and did not see who destroyed the administration building.
   
8. The next witness for the State was one Peter Drua originally from Simbu Province 52 years and married, employed as a driver with the Eastern Highlands Provincial Health Authority within the Goroka Hospital, was sent to the Funeral Home to get the body of the deceased Jerry Buka. That was on the 07^th October 2020. It was to be taken from the funeral home to the Morgue site, where it would be handed over to the relatives. At the gate of the funeral home the family of late Jerry Buka came and argued with us. Because the body was not ready, and the Management was not there to explain the delay. And they were accompanied by Salome Dukuno who said we will go to the Management for them to explain. They were in a vehicle and said they will go to see them at the office. There were plenty in truck loads about 6 to 7 trucks in all. Salome was the one talking then. They turned the vehicle and came. We felt hopeless and came later. Whatever happened later at the hospital Administration Building I do not know because I did not see. I was still at the funeral Home. But the management organized and handed over the body. Relevantly that was his evidence.
   
9. The next witness for the state was one John Hunt who was the security supervisor for Siginika Security Services. He was on duty with a number of his men on the 07^th October 2020 at about 2.00pm and 2.30pm he was on duty with three other guards. He witnessed about 5 truck loads of the relatives of the deceased who drove straight in forcing him and his guards to open the gate to them. They went to the hospital Administration building and started destroying it. They threw stones breaking the glass doors, windows, pot plants and destroyed from the administration building into the Accounts. It took about 4 to 5 minutes and then they got on the vehicles and left. I was in front and looking on and saw the incident as it unfolded. The crowd outnumbered me and my three men so we could not do anything to stop them doing what they were doing. One of my men was injured when the crowd forcefully opened the gates upon entry. We took him to the accident and emergency for treatment.
   
10. A woman formally employed with the Hospital was the first to throw the stone. And she was followed by the crowd who were with her. She is the accused now in Court. I do not know her name but know her by face. She looked like the leader as she spoke on anything and I know her very well. She threw and all followed suit as she did. They were saying that “Is He lamb flaps to be kept in the freezer. Why can’t you compensate quickly?” This was uttered by the accused and everybody joined this and stoned the building. This was over the death of Jerry Buka which was not settled, and they did what they did. I walked to the office to watch as something might happen. They came with force and it was a crowd and she was leading the group.
    
11. I did not tell the police that she was leading the group I forgot to tell them. And it is now a year later I remember that she was leading the group and that she was the first person to throw the stone and said those words. She was the leader of the group.
    
12. The defence tendered Exhibit D1 Statement of John Hunt Security Supervisor of the Eastern Highlands Health Department P. O. Box 1545 Goroka EHP dated the 20^th October 2020. No where in the Statement is mention of the fact that Accused a former employee of the Hospital, a familiar face that I always see and know was the leader and leading the group. And that She uttered the words set out above followed by throwing the first stone which ignited the crowd of five trucks to follow suit. There is nothing in Exhibit D1 to this effect.
    
13. The last State witness Doctor Max Manape who was the Director of Public Health within the hospital. He saw the damage on the 07^th October 2020 and took the photographs Exhibit P1 to P33 of the damage and destruction of the Administration Building. And it was done by relatives of the deceased employee of the hospital Jerry Buka. He did not see who caused the damages that he photographed.
    
14. The defence case opened with the sworn evidence of the Accused, Salome Dukuno originally from Gembogl in Simbu Province, aged 45 years old, Secretary formally employed with the Eastern Highlands Provincial Health Authority in the Goroka hospital Administration offices of the Chief Executive Officer for 25 years. She had worked and seen out 5 Chief Executive officers of the hospital. And was very familiar with the system within. So was facilitating between the hospital Authorities and the relatives of the deceased Jerry Buka to get the body. A demand for K 200, 000.00 was made by the relatives in a letter to the Administration. And by 2.30pm on that day 07^th October 2020, the body was not ready to be delivered from funeral home to the Morgue site where it would be received by the relatives.
    
15. Everybody else in the Haus Krai at the hospital compound we went to the funeral home to escort the body to the hospital Morgue site. There it would be handed over to the relatives by the hospital administration. I was accompanied by my husband Moses Dukuno who was driving our own vehicle Toyota ten-seater dark blue registered NBJ 084. We were accompanied by Michael Yogi and Rachael wife of Late Jerry Buka. We were the last persons to proceed to the funeral home. There I saw a large commotion taking place, so I went to the hospital vehicle with Peter Durua inside and asked him who was in charge. There was no one so the four of us then drove to the Hospital Administration but there was no one there. I went out with Rachael wife of Jerry Buka but there was no one. So, we drove out and when we came to EBC road a red Dyna truck drove past us with tribesmen. And when we drove up to 123, we saw them take body down. So, we turned around at Ela Motors and went to the Morgue site when the hand over will take place.
    
16. There the family of Jerry Buka were swearing. And Police arrived and slowed the tension. Jerry Buka is from Masumave. His father was also employed with the hospital and we were neighbours. He was a very good friend of my son when they were small growing up. When the incident happened, we were at the funeral home. And when we arrived at the morgue, I heard about it. We just wanted to get the body and we did not do anything. Michael Yogi, Rachael, and my husband Moses Dukuno was with me all the time. I fed my children up from the administration building for the 25 years that I worked for our bread and butter there. I am an educated woman and I worked with very big people in my work. I worked with Managers. I was not a “Longlong” to pick up a stone and stone the house that fed me for 25 years that I worked there. I did not damage it.
    
17. I saw that the body was not ready when I spoke with Peter Drua at the funeral home and that was confirmed upon my visit to Administration building. There was no one there. My intention was to defer delivery of the body until the next day. And all this was happening within the hearing and sight of the family members who accompanied. They were angry. For me I had no rights to be angry. I facilitated between the relatives and the hospital Administration. That is why when I spoke to the immediate supervisor of the deceased, Michael Singit Manager Corporate Affairs, he referred me to Tony Base. These are materially the relevant portions of the evidence of the accused in defence.
    
18. Her next witness was Michael Yogi from Masumave, Ungai Bena District. He is an uncle of the deceased and spokesman for the deceased asking for compensation. He was in the vehicle picked up last to go to the funeral home by Moses Dukuno with his wife Salome Dukuno the Accused. In the vehicle a Toyota dark blue was Rachael wife of the late Jerry Buka. He confirms the evidence of Salome Dukuna in all material particulars. He says it was not within her to damage and lead as the State says. Because the death was his not hers. She did not have any right to argue with the Administration. In any case he was asking for compensation it did not look good for her to do that in view.
    
19. He confirms her evidence on coming to the Administration building to look for answers as to why the body of Jerry Buka was delayed. And there was no one they drove back and alone the way at EBC saw the red dyna truck overloaded with Youths drive down and we went up. The body was taken down, so we turned at Ela Motors and followed behind. It was a traffic jam, so we turned around. By then the damage now before the court had taken place. At the Morgue site we went there to get the body. I was called to the Stand and spoke with great pain because damage had been done. I told Tony Base I took of my cap I bowed and said I am sorry for what the Public has caused. I cried for the damage that was caused. Joseph Appa the CEO said if GOD can forgive a sinner who am I. I cried and held him, and I cried. Now they handed over the body to me and put it in the Ambulance and to the compound. Salome’s family has known Jerry Buka’s family for over 20 years.
    
20. Salome was on the phone with the bosses who said we will receive the body now. But when we went to the gate of the funeral home there was argument because the body was delayed as it was in the cooler. It needed time to be able to be taken out and given to us. So, on that understanding we went together with Salome to the administration but there was no one. And when we went up, they were returning so we turned and came back to the morgue site where we received the body. And Salome did not throw stones, nor did she speak in the manner alleged. She was with me her husband and Rachael in their vehicle.
    
21. The third witness for the defendant was Imaran James of Masumave married with a child educated to grade 12. He recalls the 07^th October 2020 he was at the hospital compound preparing to receive the body of Jerry Buka. It was not brought down so they went up to the funeral home. Where an argument developed with workers of the funeral home and the PHA workers. We drove down to the PHA administration where we stopped the vehicle stood at the first gate to enter. We went down with anger because the body of late Jerry Buka was not given to us. Some went and broke the glass of the Provincial Health Authority.
    
22. Salome Dukuno was not there and did not break the glass. Only time I saw her was at the haus sik compound in the morning. He maintained that evidence in cross-examination and was not shaken in his consistency.
    
23. There is no doubt and it is beyond all reasonable doubt that there was wilful act, “intentionally”, deliberately, recklessly, or maliciously but not accidently or negligently done of the damage to the administration building as set out in the Indictment against the Accused: Pakuri-Flabu v Hambakon Sma [1966] PNGLR 348. And that the damages escalated to K 14, 740. 81 the property of the Goroka General Hospital. It was a very serious offence. The Stones were thrown at the office administration building of the Goroka Hospital Administration building. And that these were by the relatives of the deceased Jerry Buka including people from his immediate area of Masumave, Bena District.
24. There is no iota of evidence identifying the Defendant as one of the person’s involved. Reliance on the evidence of one John Hunt will not get the State past beyond all reasonable doubt. The incident was fresh on the mind of John Hunt on the 20^th October 2020, some seven days after, yet he does not trouble to detail out the accused as leading and actively involved. This is evidence upon which his credibility as a witness of truth is nowhere near to the evidence of the defence witnesses. They have very sound and strong fibre of truth in the account they give. There is no ulterior motive either in the evidence, or in law to doubt the veracity of their evidence. The witness has by his lies corroborated their account, John Jaminan v The State [1983] PNGLR 318. In so doing he has laid no basis for the conviction of the defendant on the Indictment laid.
25. A ring of truth spirals through the evidence of the defence so much, so that the version credible is that of the defence which I prefer over and above that of the State that accused was not doing what the State says She was doing. Assessment of logic and common sense and consistency in evidence are important tests for credibility of witnesses and their testimony. Any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense are basis for rejection of such evidence. That is not the case against John Hunt for the State but is the case for the defence as I have set out above: Kandakason v The State [ 1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). His evidence suffers that fate.
26. I reject his evidence totally as untruth and lies that have come out with a lot of inconsistencies and incredible accounts. His evidence has not the weight nor the strength in comparison with the vigour of the Defence. There is no other evidence that comes near enough to lay out the identity of the Accused as a principal offender to the allegation laid.
    
27. The verdict is therefore not guilty on the Indictment and returned accordingly against the Accused Salome Dukuno, because this is not a case that falls in line with the law on identification set out in John Beng v The State [1977] PNGLR 115. There is no room proved by the evidence of the State to go past that law. There are serious doubts raised in the identification evidence of John Hunt and of Tony Base. Because circumstantially following Pawa v The State [1981] PNGLR 498 there are serious facts that do not add up to the identification of the Accused set out above.
    
28. It is trite that she is accorded that benefit acquitted and discharged of the Indictment laid. I order that her bail money is refunded forthwith.
    

Orders Accordingly

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant