Wafia v State [2006] PGSC 19; SC851 (1 December 2006)

	Home \| Databases \| WorldLII \| Search \| Feedback Supreme Court of Papua New Guinea

CRIMINAL LAW - Appeal against conviction - Supreme Court Act s.23 - Verdict to be unsafe or unsatisfactory - Criminal Code - Section 41 - inciting mutiny.

CRIMINAL LAW- appeal against sentence - wide discretion in trial judge - sentence within applicable range.

The appellants were each convicted after a trial of inciting to mutiny in connection with a mutiny which took place at Moem Defence Force Barracks, Wewak between 8th and 23 March 2002. The trial judge found that Simon Konga a civilian discharged from the army, had assisted in breaking open the armoury, driven a Defence Force heavy troop carrier without authority, attended the meetings of the mutinous soldiers and made threatening comments. The trial judge found that George Wena associated himself with the leaders of the mutiny by being with them all the time, riding on the Commanding Officer’s vehicle, which had been commandeered by the mutineers, on visits to the senior officers residence, made an aggressive speech at a meeting of the mutinous soldiers and accompanied mutinous soldiers who required the senior officer to accompany them to the Provincial Police Commander for the purpose of securing the release of an arrested soldier, and could be classified as a leader.

1. There was nothing unsafe or unsatisfactory about the conviction of either appellant. The submissions of Simon Konga was not correct, that the evidence relied upon to find he assisted in breaking the armoury was uncorroborated and misinterpreted by the trial judge. Although corroboration was not required there was corroboration and the effect of the evidence was correctly and fairly set out in the judgment of the trial judge; that little weight was given to the alibi witnesses was fully explained in the judgment of the trial judge and those detailed reasons were not challenged on appeal;

2. There was sufficient evidence for the trial judge’s finding that George Wena was a leader;

3. The sentence for both appellants was within the appropriate range for the offence of which they had been convicted;

4. An inciter to mutiny where mutiny actually occurs, should receive a higher sentence than the mutineers;

5. A sentence of 20 years for Simon Konga would have been justified, considering that the breaking of the armoury placed weapons at the disposal of the mutineers, thus emboldening them to oust from the barracks and house arrest officers. The Court would not interfere with the sentence imposed by the trial judge, although it has the power to do so.

Cases Cited
John Beng v State [1977] PNGLR 115
William Norris v The State [1979] PNGLR 605
SCR No 2 of 1982; John Baipu v State SC796
Re Kunangel [1991] PNGLR 1

1. BY THE COURT: The judgment of this Court in the appeal relates to the appellants Simon Konga and George Wena only. Ben Wafia was unavailable for this appeal as he is being treated at the Psychiatric Ward at Angau General Hospital, Lae. The same situation prevailed in June 2006 when the Supreme Court last sat in Mt Hagen. Therefore in fairness to the other appellants we proceeded to hear their appeals.

2. Both appellants were found guilty after a trial on a charge of inciting to mutiny contrary to s.41 of the Criminal Code, before Kandakasi J and sentenced to 15 years imprisonment on 5 March 2004.

3. Simon Konga lodged an appeal against his conviction and an application for leave to appeal against the severity of his sentence on 8 March 2004.

4. George Wena lodged an application for leave to appeal against the severity of his sentence on 10 March 2004.

a. At all material times the appellants were civilians, having been discharged from the Defence Force;

b. Between 8th and 23 March 2002, a mutinous situation arose at the 2PIR Moem Barracks over the entitlements of Defence Force personnel who had been retrenched following a down sizing exercise in the number of troops in the Defence Force;

c. During the mutiny two Defence Force buildings were burned down and the armoury was broken into and firearms and ammunition illegally removed;

d. Soldiers armed themselves with the firearms and ammunition and commandeered Defence Force vehicles, including the Commanding Officer’s vehicle, forcing the Commanding Officer to leave the barracks;

e. Restrictions were placed on the movement of Defence Force personnel who were not party to or supporters of the mutiny, while commissioned officers were placed under house arrest resulting in a breakdown in the control and command of the troops;

f. There were a number of meetings at which demands were made over issues related to the retrenchment and downsizing of the Defence Force;

g. Calls were made for the then Prime Minister and the Defence Force Commander to step down;

h. The mutinous activity continued for 2 weeks until 23 March 2003, when troops loyal to the government took over the barracks and neutralized the mutineers.

6. At trial the case for the appellants was that their activities could not be classified as inciting mutiny, and identification. Simon Konga said he was at the barracks to pick up his discharge papers, when the mutiny occurred and he attended one of the meetings because the issues affected him. George Wena said he was at the barracks on one occasion on 11th March 2002 to clear his name after he was named in the National Newspaper as the spokesman for the mutineers. He was at home, in the village during 8th to 10 March 2002 when the mutiny began.

7. The trial judge did not believe the appellants. He believed the evidence of the State witnesses which detailed a great deal in more involvement by both defendants, which caused the trial judge to categorise both of them as leaders of, and their behaviour as inciting, the mutiny.

j. "The trial judge erred in convicting me of a crime in which I have not committed at all;

i. Judge erred in sentencing me as a leader, where I was never implicated or mentioned as a leader by State witnesses;

10. Both appellants gave written submissions and short oral submissions. Simon Konga submitted that he had been wrongly convicted of inciting to mutiny on uncorroborated evidence of State witnesses. The trial judge did not consider what actions he took to incite. The evidence of the appellant using a bolt cutter to cut the lock off the armoury door was uncorroborated and "twisted" by the judge in his findings and did not take into account the whole evidence surrounding the case. He did not place weight on the alibi witnesses. The appellant should have been acquitted.

11. George Wena submitted that he was sentenced as a leader when he was never mentioned as being a leader by State witnesses. The only evidence of that came from Major Willie Janguan’s evidence which was uncorroborated. The evidence that he was involved on Sunday 10 March 2002 was false, as was the evidence that he frequented the commander’s house. Boniface Aruma’s evidence should not have been believed. Akrum, Waine, Paul Evea’ and Desmond Nalei’s evidence did not say the appellant was a leader. Albert Wurne’s evidence should not be believed when it says the appellant was presenting the petition to Sir Michael Somare. It was not corroborated by the evidence of Willie Janguan about the same event. He was convicted for merely being present.

12. On sentence George Wena submitted that the trial judge did not give sufficient weight to his remorse, and his TB status. In terms of degrees of participation the appellant was wrongly classified. He has a wife and 5 small children.

(1) Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that-

(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b) the judgement of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(2) Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred.

(3) If the Supreme Court allows an appeal against conviction, it shall, subject to this Act, quash the conviction and direct a verdict of not guilty be entered.

(4) On an appeal against sentence, if the Supreme Court is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal.

On an appeal against conviction "the Supreme Court must be satisfied that there is in all the circumstances, a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal can be allowed." : See John Beng v The State [1977] PNGLR 115 (from the head note).

14. A sentencing judge has a wide discretion. On an appeal against sentence the appellant must show that the sentencing judge has erred in the exercise of his discretion. Although there may be no identifiable error, if the sentence is out of all reasonable proportion to the crime there is an unidentifiable error: William Norris v The State [1979] PNGLR 605.

15. The offence of inciting to mutiny in s.41 of the Criminal Code is as follows:

(a) to seduce any person serving in the Defence Force by sea, land or air from his duty and allegiance; or

(b) to incite any such person to commit an act of mutiny or any traitorous or mutinous act; or

(c) to incite any such persons to make or endeavour to make a mutinous assembly,

(2) A person who has been tried, and convicted or acquitted, on a charge of an offence against Subsection (1) shall not be afterwards prosecuted for any other offence against this Division in respect of the same facts.

16. Counsel for the State agreed with the submission of George Wena that "inciting" means "urge on to action, stir up." And "mutiny" means "open rebellion against authority, especially by members of armed forces against their offices." as defined in the Oxford Dictionary. The trial judge also referred to the definition of "mutiny" contained in s.53 of the Defence Force Act. We prefer not to consider that provision because, although it is the only provision in any enactment in Papua New Guinea, which defines the word "mutiny" the definition is not by Act made referable to the Criminal Code. Guided by the provisions of s.37(2) of the Constitution that a person can only be convicted of an offence defined by a written law, our view is that the meaning of the offence in s.41 of the Criminal Code must be found from the words of the Code. Where there is no definition provided by the Code the first principle of statutory construction is that the plain meaning of the words is applied unless a preposterous or unjust result would eventuate: See SCR No 2 of 1982; Re Kunangel [1991] PNGLR 1.

17. We do however note that for most practical purposes there is little difference between the plain English meaning of the word "mutiny" as defined in the Oxford Dictionary and as defined in s53 of the Defence Act.

18. What ever action is alleged to constitute inciting mutiny must be done "advisedly". The trial judge said:

"The word is derived from the word "advised". The ordinary English word dictionaries defined it in terms of ‘inform, notify, acquaint, warn and forewarn...Proceeding on that basis I am of the view that the person would be acting advisedly if he or she has been informed, notified, acquainted, warned or aware of his actions and effects or consequences of it."

19. We agree with that analysis. In our view a person acts advisedly when their actions are deliberate and when they are aware of the circumstances preceding or surrounding their actions.

20. It is useful to examine the evidence which was before the trial judge regarding the participation of the appellants in the events at the Barracks between 8th and 23 March 2003 in relation to the principal allegations which were made against each of them.

Allegation	Witness	Witness
Assisted in breaking into the armoury on 9th March 2002 by helping with bolt cutters to cut the lock.	Desmond Nalie p.54 "...Konga, they were the ones who used the bolt cutter to cut the lock"	Albert Wurne p.117 l.20 "He tried (Linge) to cut the lock but could not so he sought assistance from others and Simon Konga...helped him."
Was with renegade soldiers on the morning of 9th March 2002	Paul Avea p.62 "And I could recognize Simon Konga..."	Corroborated by Nalie and Wurne evidence above.
Was with the renegade soldiers during the duration of the mutiny	Paul Avea p66 l.40, p67 l.40
At all of the meetings	Paul Avea p.68 l.29, p.69 l.11-70	See below evidence of Patrick Chagur. Simon Konga at meeting on 11th March 2002.
Drove the TCV with renegade soldiers.	Vincent Akrum p.82 "I know that Simon Konga drove a vehicle transporting soldiers in a TCV, a troop carrying vehicle...When the mutiny was on Konga was driving the vehicle doing some administrative work in town." P84 l.35 "Simon Konga drove the TCV over and stopped at the soldiers club." P.85 l.22 "During that time I saw him driving the vehicle where he was not supposed to drive or had no right to drive the car."	Lt. Col. Janguan p.146 l.11 Ben would also be on that vehicle from my - and for Leslie and Simon. I occasionally saw them. One was when Simon was driving the TCV.
Said "Tokim dispela man na redim kofin bilong em" re person publishing names of those involved, at the meeting on 11th March 2002	Patrick Chagur p97 l.10 "I was next to him. He was sitting on the bench and I was standing there, and it was him."	Partly corroborates evidence of Paul Avea that Simon was at all of the meetings.

Allegation	Witness	Witness
The Appellant was always driving around in the CO’s landrover with the renegade soldiers who commandeered it.	Boniface Aruma p.41 l.29 "I saw George Wena, he was in the landcruiser. A couple of times I was with the CO, with Col. Janguan at his place and George Wena came down with private Thomas Paraka, they drove in...Everytime I saw George Wena he was not with a weapon but he was in the landcruiser...p.45 l.25...I saw he was in the offside, somebody was driving...p.46 l.15...I saw George Wena on several occasions. Like I said, they visited the CO. Colonel Janguan three or four times in a day or maybe sometimes two times in a day. All those times like George Wena is always in the land cruiser and they drive down to his house..."	Lt Col. Jaguan -...P.146 l.2... "George Wena was all the time with them but he was composed. He was a civilian. He would be on the vehicle. He would be with the team but composed... p.147 l.26...Ben and George Wena were part of that command vehicle daily."
Made a speech/comment at meeting on 11th March 2002	Patrick Chagur - p.95 l.27 "There were speeches made by other soldiers who are now serving there terms...and I can only identify Mr. Wena who was there...so of all the speeches the soldiers made, I can only identify Mr. Wena...Their appearance and the way or presentation of their speeches was not in a way that they were to bring peace or something. It was so harsh, it was so hard...p.97 l.38 ...He (Wena) was making speeches...p.101 l.28...he was very vocal. He was using palm gestures. He was folding fists and really talking hard, on the 11th...George Wena and the other accomplices they were on dismissal and they were on discharge...and not on the retrenchment or repatriation programme... p.106.l.32...if he was there to verify that" (that he was not the leader identified in the Post Courier) "then the palm gestures and the way he presented himself was a bit rough.	GEORGE Wena said that on 11th March 2002 meeting he said nothing - pp. 209 l.15, 215 l.33
Helped with the petition and a leader’s speech to Sir Michael Somare on 9th March 2002.	Albert Wurne p.118 l.12 "At that time I saw George Wena...he helped Holonga to give a speech about - the issue was about the petition they were presenting to the prime minister...p119...those I have mentioned were those being discharged" p.122 l.35 Q. Did George Wena only express the concerns in relation to the petition and nothing else? Ans: Yes.	Patrick Chagur p.104 l.18... "George was there when the petition was read and drafted...". George Wena’s evidence was that he was in the settlement where he resided 8-10th March 2002, organizing volley ball games, corroborated by Raphael Lapuika. He went to Wewak then the Barracks on 11th.
Gave aggressive speech during presence of Col. Norie on 14th March 2002 in support of demands for re-instatement to the payroll.	Wayne Aka p.129 l.5 "I saw ex corporal Wena, now Mr. Wena at that time on 14th March 2002 when the chief of operations came to collect grievances from the soldiers...l.15...he demanded that those being discharged, retrenched and or displaced at that time must be paid or put back on the payroll...p.130 l.40... there were no instances of those who were retrenched and were not on the payroll, except for those who were absent from duty, like of Mr Wena was not on the payroll...at that time George Wena was aggressive in his speech. It looked like he was giving directions to Colonel Norie and his group...	George Wena said he came late to the meeting and stood at the back, did not see but only heard the speakers - p.216 l.15~30. He said nothing. Vincent Akrum p.82 l.10 "...I saw Ben Wafia making a speech...He said whatever happens here will happen at Murray Barracks and Taurama Barracks. I heard George Wena say ‘it is true’."
Accompanied renegade soldiers in commandeered CO’s vehicle to PPC to procure release of Paul Obed Kera.	Lt. Col. Janguan p.142 l.20 "Paul Obed Kera was arrested, it may have been a Thursday or a Friday, I think it was a Friday, I was summonsed by Nagel and told to get into my vehicle to go up to the police station to get the PPC to release Paul Obed Kera. George Wena was with us...l.30...I told them we are now infringing into the law’s rights that we are now obstructing the police duties and we will be arrested for that...p143 l.1...I asked George Wena what he was doing there and we were talking that this was our chance to now lay down the arms because the person who was leading the show (Dege) had gone..." Q. The leaders? Ans: "This was Dege, Singeri, would have Naget. ...P.146 l.2...George Wena was all the time with them but he was composed. He was a civilian. He would be on the vehicle. He would be with the team but composed. He would say very little... ..." P.156 l. 30 Q: If George Wena had been in the barracks, it would have been for that reason that he was there to clarify himself? Ans: "For 14 days and under whose authority, who would clear him? I do not run newspapers and I was not the authority and clearing his name for 14 days. That is insanity."
George Wena was illegally on the barracks	Lt. Col. Janguan - p.155 l.30... "They were illegally there as civilians according to the signals."	George Wena said although discharged he was on the repatriation list EXH D1 and needed to go to the barracks from time to time to check the position. Had appealed his discharge for AWOL.

21. The trial judge had the benefit of seeing the witnesses and weighing their credibility. He has given detailed reasons in his judgment as to why he has not believed the Appellants and their witnesses. Neither has he attacked that reasoning apart from Simon Konga’s submissions on uncorroborated evidence which we address below.

22. In summarising the evidence in his judgment at p.344 line 30 of the Appeal Book his Honour said:

"He (Lt. Col Junguan) says during this time he spoke to George Wena who was the leader of the mutineers, trying to stop what they were doing without success...Further he said Dege disappeared at about this time so George Wena took over the leadership from there along with Ben Wafia."

23. We are satisfied that this observation is an error on the part of the trial judge. There is no evidence that Lt. Col. Junguan ever claimed that George Wena was a leader or took over the leadership. His evidence was that Wena was with the leaders, but composed and for the most part silent. So it is an error to ascribe to Lt. Col. Junguan the assertion that George Wena was a leader or took over leadership. However, we do not consider the error to be fatal to the validity of the ultimate conclusion or would cause grave injustice to George Wena.

24. In our view there was ample evidence for his Honour to have arrived at the conclusion that George Wena was a leader, because of the evidence of his constant association with those who were playing leadership roles, by riding on the Commanding Officer’s vehicle and speaking at meetings.

25. The possession and control of the Commanding Officer’s vehicle by other ranks was a powerful symbol of the mutiny and the power and control of the mutineers. Control of the vehicle was a statement to the world that the Commanding Officer was not in control of the barracks, those on the vehicle and associated with them were in control. Anyone with a military background prepared to associate themselves with those driving that vehicle could not fail but to advisedly do so knowing that the vehicle was not in lawful possession but in the unlawful possession of the mutineers. That close association must show support for the mutineers and thus incite further mutiny.

26. Therefore although there is an error in misstatement of the evidence, we do not consider that it has caused any miscarriage of justice to the appellant George Wena.

27. The other evidence with which the appellant George Wena takes issue is the evidence of Albert Wurne that he was present on Saturday 9 March 2002 when Sir Michael Somare visited, and helped with preparation of the petition and the giving of a speech. This evidence is briefly corroborated by Patrick Chagur. This is in conflict with the evidence of the appellant that he was at the settlement where he resides between 8th and 10 March 2002 organising volleyball games and only went to Wewak, heard of the mutiny and then went to the barracks on 11 March 2002. His evidence of being in the settlement was corroborated by Raphael Lapuika.

28. Psychologists would say that it is not beyond the bounds of possibility that the witnesses might confuse the appellant with someone else, if he was frequently seen in the company of the same group as that other person. However, even if that evidence is excluded, there is still sufficient evidence against the appellant to exclude the possibility that there has been a miscarriage of justice. We do not say that the evidence should be excluded because the trial judge explained in detail why the late alibi evidence should not be given weight and we have no disagreement with that reasoning. In any event, his Honour at p350 L.40 notes George Wena as speaking at only one meeting (of 14 March 2002) and there is nothing in the judgment to suggest the trial judge accepted the evidence that he was at the meeting on 9 March 2002.

29. Although it appears from the Notice of Appeal of George Wena that he appeals against sentence only, one of his grounds might be interpreted as an appeal against conviction. We therefore express the view that we see nothing unsafe or unsatisfactory about his conviction. The table above demonstrates that there was ample evidence in the State case to prove the charge. The trial judge detailed his reasons for not believing the evidence brought by the appellant. The appellant has not demonstrated any error on the part of the trial judge in analysing that evidence.

30. Simon Konga’s conviction is also, in our opinion, safe and satisfactory. The evidence of his participation on 9 March 2002 of assisting in the breaking of the armoury was far from being uncorroborated and misinterpreted by the trial judge, as alleged in the submission. That evidence was corroborated, even though such corroboration is not required, as the trial judge said. The effect of the evidence was correctly and fairly set out in the judgment of the trial judge. As to the Appellant’s second submission, the reasons given by the trial judge for not placing weight on the appellant’s alibi witnesses are clearly detailed in the judgment and there has been no submission that those reasons were wrong or not supported by what occurred in the trial.

31. We have read the reason of the trial judge for the sentences imposed. His Honour said in part:

"All of you not only committed the offence of mutiny but also did commit in my view a number of other offences. Sorry, offence of inciting mutiny but also committed in my view a number of other offences. These include being unlawfully on premises, willful damage to property, acting in a threatening manner, carrying offensive weapons, unlawful deprivation of personal liberties for a number of the victims and organizing an illegal assembly."

32. This Court has held that it is an error for a trial judge to take into account on sentencing, as aggravating factors, facts which themselves constitute separate offences with which the defendant has not been convicted, and which do not form part of the offence with which he has been convicted and which he has not asked to be taken into consideration in accordance with the procedure set out in s.603 of the Criminal Code: See John Baipu v State SC796. We re-affirm that principle.

33. However in the circumstances of this case we consider that it was proper to make the above remarks and take that behaviour of the appellants and those with whom they associated themselves into consideration because the behaviour formed part of the facts of the offence of which the appellants have been convicted.

34. The appellant Wena submits that his medical condition as a TB patient was not given sufficient weight on sentence. There was no dispute that he as a TB patient, should have ongoing treatment and be separated from others. There was no evidence before the Court that these conditions could not be met in the CIS facility or had not been met in the two years he was on remand. The Correctional Services Act s.89 specifies the duties of the Commanding Officer of a Correctional Facility where a prisoner is suffering from an infectious disease and a detainee is entitled to "reasonable medical care and treatment consistent with community standards: See s141 Correctional Services Act. The relevant facts concerning the appellant’s health were noted in the trial judge’s judgment on sentence at p.406 of the Appeal Book and again at p.409 where he discusses the health issues for another two paragraphs. There was no evidence before his Honour to the effect that the appellant could not be treated in the way required by his condition, in a CIS facility. We do not consider that ill health on its own is a reason for adjusting a sentence in favour of the prisoner. There must also be evidence that imprisonment is likely to cause permanent disability or will be dangerous to the life of the prisoner or his fellow prisoners, and that the provisions of s.89 and s.141 of the Correctional Services Act cannot or are unlikely to be observed or will not be sufficient to protect the prisoner or his fellow inmates. There was no such evidence. We reject this submission.

35. Finally Mr Wena submits that he was allocated a degree of participation which was not justified by his actual action and that the trial judge did not consider this aspect of his sentencing. As we commented when considering the safety of the verdict, our view is that on the facts as found, and noting that no one actually called George Wena a leader, his conduct was consistent with that of a person who formed part of the executive or management of the mutinous organization. We reject the submission that he ought not to be treated as a leader.

36. On the length of the sentences actually imposed of 15 years hard labour for each appellant, we do not consider that the sentences are disproportionate to the crimes with which the appellants have been convicted. The trial judge took all of the relevant issues into account in coming to his decision.

37. We agree with the observations of the trial judge that an inciter ought to receive higher punishment than the mutineer, where that incitement has been successful in commencing or encouraging the continuation of a mutiny.

38. Our view is that the action of Simon Konga, in assisting in breaking into the armoury, was pivotal in empowering the mutiny and inciting those involved to press on. Possession of arms emboldened the mutineers to chase out officers and continue the mutiny for 14 days. On a charge of incitement to mutiny this activity warranted a higher sentence than those who later led and incited continuation of the mutiny in other forms. We consider a sentence of 20 years would not have been inappropriate for an initial inciter. However, there has been no cross appeal by the Public Prosecutor so that, despite our undoubted power to increase sentences, we will not disturb the sentence of the trial judge, which we consider to be within the proper range for the offence.

The Appeal of Simon Konga and the Appeal of George Wena are therefore dismissed. We confirm the convictions and sentences.

Supreme Court of Papua New Guinea

Wafia v State [2006] PGSC 19; SC851 (1 December 2006)