State v Wafia [2003] PNGLR 26 (30 October 2003)

NATIONAL COURT OF JUSTICE

THE STATE

V

BEN WAFIA, GEORGE WENA, SIMON KONGA AND LESLIE PUKA (NO. 1)

WEWAK: KANDAKASI J

15, 16 17th and 30th October 2003

CRIMINAL LAW – PRACTICE & PROCEDURE – Settlement of issues at pretrial – Effect of – Puts all parties and Court on notice of the issues for trial and dictates kind of evidence and number of witnesses– Parties and the Court should not readily depart from issues settled at trial except for convincing and good reason –Constitutional dictate for a trial within 4 months of committal vital guide – Failure of opposing counsel to object when evidence on matters not in issue is sought to be led – Effect of – Other issues put into issue - Accused purporting to claim alibi without giving appropriate notice – Effect of- Recent invention and less weightier - s37(14) Constitution.

CRIMINAL LAW – PRACTICE & PROCEDURE – When identification is an issue for trial –Need to warn of dangers of purported identification – Failure to put defense case to prosecution witnesses – Effect of - No or little weight must be attached.

CRIMINAL LAW - Verdict – Advisedly attempting to incite mutiny – Elements of the offence - Accused all discharged members of Defense Force – No lawful authority to remain on Defense Force premises – Identity only issue for trial - Accused present at meetings and seen with mutineers – Accused purporting to claim alibi without giving appropriate notice – Effect of - Defense evidence lacking in consistency and credibility – Guilty verdict returned – Section 41 (1)(a) Criminal Code.

WORDS & PHRASES – "Advisedly"– Means one who is informed, notified, acquainted, warned or aware of his actions and the effects or consequence of it.
"Seduce"– Means to "invite", "allure", "tempt", "entice" or "attract.""Incite"– Means to, "induce", "provoke""instigate", "urge on", "stimulate" or "encourage".
"Mutiny or any traitorous or mutinous act or incite any such persons to make or endeavour to make a mutinous assembly"- Means a combination of two or more persons subject to the Code of Military Discipline engaged in an act or omission including the making of an assembly aimed or has the effect of overthrowing or resisting, or disobeying lawful authority in the Defence Force, or impede or subvert discipline in the Defence Force – Criminal Code s41 (1)(b) of the Criminal Code .

Facts

Four accused men pleaded not guilty to one charge each of inciting mutiny contrary to s41(1)(b) of the Criminal Code. There is no reported case on this section. I am not even aware of any other case on this section. Hence, this is the first time a charge under this provision has arisen. Given that, it is necessary to first, appreciate the elements that constitute this offence to know what is it that the State has to establish against you on the required standard.

Held

1. Your presence amounted to inciting a mutinous act that in fact, occurred over a period. Additionally, what you said and did in my view amounted to encouraging and strengthening the mutinous acts of the soldiers.

2. You did that by both your mere presence as well as the things you said and did in support of the issues giving rise to the mutiny.

3. Being former soldiers, you had reason to know the military code of conduct and the consequence of going against it. You were therefore informed or well aware and hence advisedly presented yourselves at the Barracks and encouraged the mutinous acts of the soldiers, within the meaning of s41(1)(b) of Criminal Code.

4. In view of the above findings, a verdict of guilty against each accused you on the charge of "advisedly attempting to incite mutiny".

Papua New Guinea cases cited

Garitau Bonu & Rosanna Bonu v The State (24/07/97) SC528.
Gibson Gunure Ohizave v The State (Unreported judgement delivered on 26/11/98) SC595.
John Jaminan v The State (No. 2) [1983] PNGLR 318.
Motor Vehicles Insurance (PNG) Trust v James Pupune [1993] PNGLR 370.
Motor Vehicles Insurance (PNG) Trust v John Etape [1995] PNGLR 214.
Papua New Guinea Banking Corporation v Jeff Tole (Unreported judgement delivered on 27/09/02) SC694.
Paulus Pawa v The State [1981] PNGLR 498.
The State v Cosmos Kutau Kitawal & Anor (No. 1) (Unreported judgment delivered on 15/05/02) N2266.
The State v Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48.
The State v James Gatana & 3 Ors (Unreported judgement delivered 19/04/01) N2127.
The State v Moki Lepi (Unreported judgement delivered 30/04/02) N2264.
The State v Robin Warren & Ors (Unreported judgement delivered on 18/06/03) N 2417.
The State v Tauvaru Avaka & Anor (Unreported judgement delivered on 2/11/00) N2024.

Counsel

M Ruari, for the State.
M Bayam and S Maliaki, for the accused.

30 October 2003

Kandakasi j. All of you four men pleaded not guilty to one charge each of inciting mutiny contrary to s 41(1)(b) of the Criminal Code. There is no reported case on this section. I am not even aware of any other case on this section. Hence, this is the first time a charge under this provision has arisen. Given that, it is necessary to first, appreciate the elements that constitute this offence to know what is it that the State has to establish against you on the required standard.

The Offence of Inciting Mutiny

Section 41 of the Criminal Code creates and provides for the penalty for the offence of inciting mutiny in these terms:

"41. Inciting to mutiny.

(1) A person who advisedly attempts—

(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, is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

(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."

In my view, the following are the elements that must be established by the State beyond any reasonable doubt in order to secure a conviction under this section:

(1) a person who;

(2) advisedly attempts to;

(3) seduce or incite;

(4) any person;

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

(6) commit an act of mutiny or any traitorous or mutinous act or incite any such persons to make or endeavour to make a mutinous assembly.

I do not consider that the first, fourth and fifth elements require any clarification as they should be self-explanatory. The rest of the elements require some elaboration, so I will give consideration to each of them in the order in which they appear.

(i) "Advisedly"

The word "advisedly" comes from the word "advise". There is no definition of this term in the Criminal Code or elsewhere. The ordinary English word dictionaries define it in terms of "inform,""notify,""acquaint,""warn" and "forewarn". So, if one is "advised", he or she has been informed, notified, acquainted, warned or forewarned. Proceeding on that basis, I am of the view that a person would be acting "advisedly" if he or she were informed, notified, acquainted, warned or aware of his actions and the effects or consequence of it. This has to be contrasted with someone acting suddenly or under force or compulsion where there is no opportunity to consider what he or she is about to do or say and its consequences.

(ii) "Seduce" or "Incite"

The next element to consider is "seduce" or" incite." Neither the Criminal Code nor any other legislation appears to define either of these terms. Accordingly, I turn to the ordinary English language meanings of the terms. The term "seduce" means to "invite", "allure", "tempt", "entice" or "attract". There is a similar meaning for the word "incite" but more specifically, it means to, "induce", "provoke""instigate", "urge on", "stimulate" or "encourage". Thus, a person would be seducing or inciting on other if his or her conduct is such that it amounts to an invitation, or a temptation or an allurement or an encouragement or urge on for another to do something.

(iii) "Mutiny or Traitorous or Mutinous Act" or "make a mutinous assembly"

The final element to consider is the 6th one, in particular the words, "mutiny or any traitorous or mutinous act or incite any such persons to make or endeavour to make a mutinous assembly." Section 53 of the Defence Act defines the word "mutiny" in these terms:

"'mutiny' means a combination of two or more persons subject to the Code of Military Discipline or the service law of an ally of Papua New Guinea, or between persons of whom at least two are such persons—

(a) to overthrow or resist lawful authority in the Defence Force or any force co-operating with the Defence Force, or in any part of the Defence Force or any such force; or

(b) to disobey any such authority in such circumstances as to make the disobedience subversive to discipline, or with the object of avoiding any service or duty against, or in connexion with operations against, an enemy; or

(c) to impede the performance of any duty or service in the Defence Force or any force co-operating with the Defence Force, or in any part of the Defence Force or any such force."

So the phrase "mutiny or any traitorous or mutinous act or incite any such persons to make or endeavour to make a mutinous assembly" could be interpreted in this way. A combination of two or more persons subject to the Code of Military Discipline engage in an act or omission including the making of an assembly aimed or has the effect of overthrowing or resisting, or disobeying lawful authority in the Defence Force, or impede or subvert discipline in the Defence Force.

If we reconstruct s41 (1) of the Criminal Code bearing in mind the definitions of the words identified and discussed, it would read something like this with the new wording in italics and bold:

(1) A person who been informed, notified, acquainted, warned or aware of his actions and the effects or consequence of it attempts—

(a) to invite, allure, tempt, entice or attract any person serving in the Defence Force by sea, land or air from his duty and allegiance; or

(b) to induce, provoke, instigate, urge on, stimulate or encourage any such person to commit an act of mutiny or any traitorous or mutinous act; or

(c) to induce, provoke, instigate, urge on, stimulate or encourage any such persons to make or endeavour to make an assembly of two or more persons subject to the Code of Military Discipline to engage in an act or omission aimed or has the effect of overthrowing or resisting, or disobeying lawful authority in the Defence Force, or impede or subvert discipline in the Defence Force, is guilty of a crime."

Bearing this definition and discussions in mind, I now turn to your case.

Issues for Trial

At the pretrial conducted in June of this year, all of you confirmed through your lawyers that the only issue for trial was identification. Additionally, Ben Wafia raised an alibi and gave notice of it. Effectively therefore, you all claimed that you were not at the scene of the crime at the time of its commission and or you are not the persons who committed the offence. The State thus had the obligation to prove that you were there at the scene of the crime at the relevant time committing the offence. All other aspects of the charge against you as discussed above were thus not in dispute.

At the end of the trial, however, you abandoned your claim of not being at the scene of the crime to now admitting to being there and instead you claim that you did not commit the offence. The evidence on the issue for trial, namely, identification, overwhelmingly puts you all at the scene of the offence though not throughout the entire period of the actual mutiny. Your own evidence supports this conclusion. So you had no choice but to take the position you now have.

This is contrary to the effect of the issues for trial as settled at the pretrial. As I said in The State v Robin Warren & Ors (Unreported judgement delivered on 18/06/03) N 2417, pretrial is a process in our criminal justice system (Order 2 – Criminal Practice Rules 1987) that enables the parties and the Court to settle amongst others, the issues for trial ...This is a very critical and important part of our case management process. It is a necessary process when judicial time and resources are very limited and so are the resources and the ability of the law and justice sector to promptly reach and dispose of cases within the dictates of the Constitution, particularly s.37 (14).... Accordingly, it is imperative that parties should be held to their representations at the pretrial with the Court staying guided by what was settled at the pretrial when conducting a trial.

I went on to express the view that for:

"...[A]n efficient management and better and timely disposition of cases ..., parties should be held to their representation to the Court at a pretrial or indeed at any stage of the way. This will bring about certainty in approach and getting cases disposed off within the time periods allocated rather than be faced with adjournment challenges and or blowing out circuit time and resources. There would of course be cases in which there will be a need to depart from representations by the parties. In such a case, I am of the view that a party wishing to depart from what was settled should make out a good and convincing case for it."

You did not persuade the Court to reconsider what I have said in the above case. I, therefore, note that there is no issue on the soundness and the application of the above principles to your case. Then applying those principles to your case, I need to consider whether you have made a case for a departure from the issue for trial.

You did not make any application nor did you make any submission that warrants a departure from the issues settled at trial. Consequently, you did not provide any reason for this Court to accept every element of the offence to be in issue when the issue on which this matter went to trial was identification only. That means you have not persuaded the Court that, apart from the issue of identification, all the other elements of the charge against you are in issue.

This would necessarily mean that the State has established its case on the required standard. If the Court were to come to that conclusion, there would be no need for an assessment of the evidence and address the argument that the State had the burden to prove beyond any doubt each of the elements of the charge against you. Arriving at such a conclusion would give the impression of the State succeeding in its prosecution of the four of you merely on technicality. This is particularly so when there has been a trial spreading over four days, and counsel for the State not taking any objection to evidence being led on matters not in issue. It would thus appear that counsel for the State by his conduct, allowed the trial to include issues not before the Court. The argument would then follow on from there that, counsel for the State by his conduct opened up the need for the State to establish each of the elements of the offence.

Indeed that is an accepted position in civil cases, as is represented by the Supreme Court judgements in Motor Vehicles Insurance (PNG) Trust v John Etape [1985] PNGLR 214 and Motor Vehicles Insurance (PNG) Trust v James Pupune [1993] PNGLR 370. This proceeds on the basis that the Courts are there to do justice according to the rights and interest parties may have according to the substantive law. The practice rules of the Court only facilitate and enable the parties to get a relief or remedy as might be available to them as a matter of substantive law, but cannot substitute the substantive law. After all, the rules are only a means to an end and not an end in them.

If this is the situation in civil cases, the suggestion would correctly be that it also applies in criminal cases because the liberty of a person is involved. It is also because of the presumption of innocence under our Constitution. However, a countervailing argument to that is that the presumption of innocence is with the qualification that the presumption is there until proven guilty "according to law". This includes, in my view, such things as plea bargain to the advantage of both an accused to get a conviction for a less serious offence and hence a penalty less severe and the prosecution to get at the least, a conviction recorded against an accused. Hence, if in the process of negotiation or discussion between the parties, they arrive at the issues for trial, this binds them, because that proceeds on the presumption of innocence as well.

What has happened in this case would arguably reflect on the conduct of the Court in relation to the trial. It would appear that the Court also failed to control the proceedings by allowing evidence and now arguments on matters not in issue to be entertained. However, when one considers this point in the context of the role the Court should play, this argument may lose favour. Courts are there to allow a fair play out of their respective cases by the prosecution and the defence being careful at all times not to step into the field of play for the parties.

From my limited research, I note the situation has not arisen before. Also, I note the concepts of proper case management such as those I spoke of in Robin Warren & Ors (supra) is relatively a new concept in the country in the sense that it has not been spoken in those terms in a judgement of either this or the Supreme Court. It would thus appear that this is the first time the issue has formally arisen. Given that, I consider it fair and reasonable that this Court should not allow a strict application of the consequence that should follow from settling issues before trial. At the same time, it should sound a warning that from here on, counsel and parties should remain guided and bound by the settlement of issues for trial either at a pre-trial or before the commencement of the trial, for the reasons I gave in Robin Warren & Ors (supra). At the same time, the Court should be in control of the proceedings to ensure that the parties and the Court remain guided by the issues for trial. This necessarily means the Court should intervene where one of the parties is stepping outside the issues for trial even if the opposing counsel does not take issue, to avoid the kind of risks I covered in Robin Warren & Ors.

There is a further reason for this Court to allow such a departure. This is attributable to the fact that this appears to be the first ever case for this Court to come to deal with a charge for inciting mutiny contrary to s41 of the Criminal Code. It is thus an opportune time for this Court to consider this offence and comment on its elements for assistance in future, in case the need arises.

Now given the position you have taken, the Court needs to consider the evidence and find:

1. if you were lawfully at the Moem Barracks;

2. what were you doing at the Barracks; and

3. whether what you did amounted or could have amounted to inciting mutiny within the meaning of s 41(1)(b) of the Criminal Code?

These questions require a close examination of the evidence called and now before this Court, and finding the facts the evidence supports. We will start that process with a statement of the facts that are not in dispute.

Undisputed facts

Firstly, you were all discharged soldiers for various reasons at the time of the mutiny and this offence. Logically, and it is the normal position at law that, once an employment relationship has ended, an employee has to leave the employer's premises unless there is an express permission from the employer to remain on the premises. Ben Wafia, you claim that you were there to clarify issues. George Wena, you also admit being there but only on one occasion to clear your name following a mention of your name in the National Newspaper as the spokesperson for the mutineers. Leslie Puka, you also admit to being there as you were living with your in-laws. You also admit to being uniformed and armed voluntarily and were operating the main gate to the Barracks. Finally, Simon Konga, you also admit to being at the scene of the offence. You, however, claim that you were there in the course of picking up your discharge papers when the mutiny occurred and you presented yourself at one of the meetings as the issues affected you.

Secondly, there is no dispute that there was a mutiny at the Moem Barracks from 8 to 23 March 2002, although Ben Wafia claims there was no mutiny. Ben Wafia, you are the only voice against there being a mutiny around the period in question. It is also public knowledge now that that the National Court recently convicted and sentenced 30 soldiers for the mutiny. I therefore reject Ben Wafia's claim and find the fact of mutiny is beyond argument.

Thirdly, this unlawful event saw the burning down of the two buildings, a break into and taking possession of weapons and ammunitions from the armory at the Barracks and the soldiers armed themselves with the guns and ammunition taken from the armory. The only voice against this or failing to make any mention of these facts in any respect is Ben Wafia again. These were big and obvious events. Anyone entering the Barracks during the period of the mutiny would have no difficulty identifying or speaking about this in one way or another but Ben Wafia has not done that. That is consistent with his claim that there was no mutiny. In the circumstances, I find these facts against you beyond any argument.

Fourthly, the mutiny was over the issues of downsizing of the PNG Defence Force (PNGDF), retrenchment and repatriation of discharged soldiers. Then consequential on these, there is some suggestion of a call for the then Prime Minister to resign. There is yet another suggestion that, there was a demand for the Commander of the Defence Force to step down. Concentrating only on the downsizing and retrenchment, again all the witnesses except for Ben Wafia say these were the reasons for the mutiny. Ben Wafia's claim, consistent with his claim of there being no mutiny says meetings held during the period of the mutiny at the Barracks were over retrenchment and downsizing of the army but these were not the cause of the mutiny. I will therefore disregard Ben Wafia's claims and find as I have.

Disputed Facts

The rest of the relevant facts in the context of the questions stated above are in issue. Once the facts are established, the Court will then be in a better position to determine whether they amount to the charge against you four men. These require a careful assessment of the evidence to ascertain the relevant facts.

(i) Principles Governing Assessment of Evidence

A number of well-established principles govern the assessment of evidence. One of these principles requires the Court to test the evidence before it against logic and commonsense. I restated the law in The State v Cosmos Kutau Kitawal & Anor (No 1) (2002) unreported N2245 in these terms:

"Logic and common sense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty."

Another principle is in respect of a belated claim of alibi. The Supreme Court correctly stated the law in John Jaminan v The State (No. 2) [1983] PNGLR 318 in these terms:

"...[T]he alibi was delayed or belated and that reduces the weight that should be given to it. The accused failed to give it when questioned by the police initially or later at the District Court committal. A trial judge should not infer guilt because the accused remained silent on those earlier occasions. The accused has a right of silence, but mindful of that, a trial judge is entitled to say that the lateness of the alibi reduces its weight."

In other words, if an accused delays in giving notice or raising a claim that he or she was not at the scene and therefore, not the one that committed offence, that has the risk of reducing the weight that should be given to such evidence. The rationale for this is to enable the State in fairness to check out the claim in sufficient time with a view to either, abandoning a charge against an alleged offender or to rebut the claim.

A further principle which is closely tied in with fairness is the need to put the defence case to the prosecution's witnesses so that they will be given the opportunity to comment on it and either, retract or abandon their evidence. A failure to observe this also has the risk of a rejection of the evidence not put to the prosecution's witnesses or attachment of less weight to it. I restated the law on that in these terms again in the case of The State v Cosmos Kutau Kitawal & Anor (No 1) (supra):

"Where an accused calls evidence without first in fairness putting it in cross–examination to the prosecution witnesses, such evidence should be treated as recent inventions and unreliable. This stems from well-known authorities like that of Browne v Dunn (1893) 6 R 67(HL)."

I went on to note that John Jaminan v The State (No. 2) (supra), clearly stated that in these terms:

"The importance of putting one's case to the opposing party's witnesses has repeatedly been emphasized in Papua New Guinea: ... If it is not done the weight of the evidence given by the party, in this case the accused is reduced.

...

The object behind this is in line with our system of justice. Fairness to both parties must prevail in all trials before our Courts. This principle requires an accused person to put his case to the witnesses called against him or her so that in fairness the witnesses can comment and choose to either maintain or retract their evidence. This must be done during cross-examination because under our trial procedure, the prosecution does not normally and readily have a right or opportunity to either recall witnesses or call new witnesses to rebut fresh evidence introduce by the defence."

An additional principle concerns the performance or the demeanor of witnesses in the witness box. An application of this principle decided many cases in the past. Examples of these are, cases like that of The State v Tauvaru Avaka & Anor (2000) unreported judgement delivered on 2/11/00 N2024 and Gibson Gunure Ohizave v The State (1998) unreported judgement delivered on 26/11/98 SC595.

(ii) Application of Principles to Your Case

With these principles in mind, I now turn to consider the evidence for and against each one of you. Before I do that I note that there are a number of factors that are common and concern all of you. The first is that, you have all indicated not being at the Barracks and or being at the Barracks but away from the actual scene of the offence. This is for the period of the mutiny and or the times the State alleges you committed the offence. The only exception to this is the one or two days during that period the State witnesses specifically mentioned and you admit to being at the scene. In so doing, you were raising the defence of alibi. You did not first give notice of this to the State except for Ben Wafia for the period 8 to 10 March, 2002.

Secondly, you all have not put in cross-examination to the State witnesses that you were not at the scene of the offence at the relevant times. Similarly, you all failed to put to the State witnesses your authority and your reason for being at the scene at the relevant time.

Thirdly, through the evidence of ex private Nagget, now a prisoner serving time for his part in the mutiny and Ben Wafia, you claim that Major Janguan (as he then was) was the leader of the mutiny and the soldiers were taking orders from him. You did not put this claim to any of the State's witnesses, let alone the Major himself.

The law as noted above requires you to give notice of your claims of alibi and put your countering claims to the State witnesses, but you have not. Accordingly, your claims of being elsewhere for the other days of the offence amount to a belated claim of alibi to which, no, or little weight ought to be attached. Likewise, there should be little or no weight attached to your respective countering claims such as, Major Janguan being the leader of the mutiny, or your being there for a lawful purpose.

Having made these observations, I now proceed to assess the evidence both for and against you. This will be restricted to the facts in issue, particularly as to when and how you were at the scene of the offence in the first part and in the second part, what you did. Then based on the evidence, I will make a finding as to whether you were there committing the offence, you are alleged to have committed.

Analysis of the Evidence and Finding of Relevant Facts

(i) Lt. Col. Janguans' evidence

One of the key witnesses for the State was Lt. Col. Janguan, who is presently the commanding officer of the 2RPIR based at Moem Barracks. He identified you Ben Wafia as the leader of the mutiny at the Barracks along with a Singeri Dege, George Wena and Simon Konga.

The Commander of the Defence Force, Commodore Peter Ilau, authorized Major Janguan to take over the command of the 2RPIR and the Moem Barracks on an acting basis via a telephone conversation between himself and the Commander. Given that authority, and upon identifying the soldiers behind the mutiny, he entered into a psychological operation with those behind the leaders particularly, Singeri Dege, George Wena, Ben Wafia and Simon Konga and the others.

The aim of his operation was to try to persuade the mutineers to give up peacefully. The tactics he used was to lay down the Constitution of the country before the mutineers and those encouraging it, their duties as soldiers and consequences that could follow them if they did not do that. Obviously, that did not succeed.

Most of the other officers had left the Barracks because they received threats just like him but he co-operated in terms of complying with the mutineers' orders and he was playing his psychological game with them. Other soldiers at the Barracks were prepared to curb the mutiny but they were disadvantaged because they did not have any arms. Even though he assumed command, he could not give any effective commands because he had no arms for backup.

By 9 March, 2002, he says the mutineers had forcefully gained entry and took over the commander's vehicle and used it as their own, throughout the period of the mutiny. The vehicle was on most occasions driven around during the mutiny by ex private Dege. The witness saw you Ben Wafia and George Wena as passengers on that vehicle during the period of mutiny.

He then speaks of a meeting in the afternoon where the renegade soldiers and the community at Moem Barracks gathered. At that time, Chief Somare, now Prime Minister and the Provincial Police Commander attended that meeting and received a petition.

He says the next day after that meeting, the mutineers took him to the commanding officer's office. They wanted him to speak to the hierarchy at the headquarters. He complied and spoke to Col. Nori putting to him the things the mutineers directed him to do. At this time, he says he saw Ben Wafia. This continued for the next two days, now involving the use of the witness' own vehicle. On the second of these days, Col. Nori insisted upon getting to Moem Barracks.

The mutineers held a meeting and discussed the subject of Col. Nori's coming. That meeting resolved that the Colonel could come but on their terms. Their terms were that, he could come and stay at "A" company under their guard.

The next day was the day when Ben Wafia and others had a talk back show. He did not stay to witness that because he left to secure his family at Boram General Hospital. For the subsequent days, he says the mutineers frequented his place and used the commander's vehicle. He says during this time, he spoke to George Wena, who was the leader of the mutineers, trying to stop what they were doing but without success.

During the time of the mutiny, police arrested a Paul Obed. Then Nagget summoned the witness to go to the PPC to negotiate for Paul's release together with firearms and he complied. Ben Wafia and George Wena accompanied him to the police station. That was despite him telling the mutineers that what they set out to do was illegal and that they could be in trouble with the police. The witness believes this was on a Friday. Further, he said Dege disappeared at about this time. Therefore George Wena took over the leadership from there along with Ben Wafia. Thinking this was a good opportunity, he tried to talk George Wena, Ben Wafia and the others out of a continuation of the mutiny. This also failed. The next day, he says Ben Wafia conducted a meeting with the soldiers.

Eventually he got word from headquarters that it was coming up with a plan and its execution. From that time onwards, the witness went silent and the command and order was restored on 23 March, 2002.

Under cross-examination, you suggested to the witness that you four men were only there to clarify issues, air your concerns and to observe what was going on. The witness did not agree and he challenged you to produce evidence of your authority to be there at the first place given, that you were all discharged from the Force well before the mutiny occurred. His view therefore was that you men ought not to have been there in the first place but were there, supporting the mutiny based on his observation and as per his evidence.

Also under cross-examination, he was asked about the regularity of seeing Ben Wafia, and the witness answered "I saw him on a regular basis particularly during the important meetings." Further, under cross-examination, you asked him to agree that you had to be and you were there to raise a number of major concerns and or issues that arose. The witness answered to the effect that there was a proper channel of communication, ultimately ending up with the commanding officer of the Barracks.

(ii) The Evidence of Arum

A Bonifis Arum called as the first State witness supports Lt. Col. Janguan's evidence. He says he was inside the Barracks late on the 10th after getting there in the morning when an announcement by soldiers driving around in a Landcruiser vehicle was made, saying all officers were under house arrest. Of those in the vehicle, he saw as its crew George Wena. The house arrest continued until the 23rd when Lieutenant Opah informed that the Barracks was returning to normal.

Under cross-examination, the witness said he saw George Wena going to and from Major Janguan's house. When asked to comment on the fact that you men were standing trial for inciting mutiny, the witness said, you were running the whole show because you were conducting meetings and encouraging the soldiers.

The witness then added he had stayed out in town for the night of the 9th for fear for his life and he returned in the morning of 10 March 2002, on advice that it was safe. So he returned to the Barracks through the main gate. As he entered the gate, he saw Leslie Puka and two other privates. He saw Mr. Puka armed with a SLR (Self Loading Rifle). Upon seeing him (the witness) and some other persons he was going in with, Mr. Puka reached for his pocket, took out a magazine (bullets), fitted it into the SLR and faced the witness and the others, the witness was with.

(iii) Evidence of Desmond Nalei

The other witness called for the State was private, Desmond Nalei. He says on the morning of 10 March 2002, there were shots fired again by the mutiny leaders and everyone was asked to dress up and get to the magazine or weapons and ammunitions armory, which was being broken into. He says he saw, amongst others, ex private Simon Konga using a bolt cutter to cut the lock to the armory. He and the other soldiers were taken there and issued with a weapon each and were asked to carry the weapons, some loaded on the troop carrying vehicle (TCV) and brought them to the Charlie Company building. He says he went along because those who were leading had weapons and fired shots, making him scared into comply with directions given.

He too supports Lt. Col. Janguan's evidence in terms of coming to know Ben Wafia during the mutiny. He says he saw Ben Wafia at the Barracks many times during the period of the mutiny but could not recall the exact dates. However, he recalls the first time he saw Ben Wafia was at the meeting under the raintree next to Charlie Company lines. The second time was when the witness drove Ben Wafia to Windjamer. When asked under cross-examination, he answered in affirmative, that Ben Wafia was there to incite mutiny.

(iv) Evidence of Paul Evea

Paul Eva called as the third State witness also supports Lt. Col. Janguan's evidence and therefore the State's case. He stated that about six meetings with the first on 9 March 2002 were held at the Barracks during the period of the mutiny. One of the meetings was conducted on the 11 and the other was held on 19 March, 2002. Two of these meetings were legal because the higher command authorised them. The other 4 meetings were illegal because the mutineers without any proper authorization organized them. According to his recollection, the witness said both Simon Konga and Leslie Puka being discharged members of the Force were present at these meetings, while Ben Wafia attended the meeting held on 19 March 2002. At that meeting, Ben Wafia spoke about the issues leading to the mutiny and the confiscation of two rifles by police.

The witness saw Mr. Wafia as a spokesperson or a leader. At the same time, the witness agreed to a defence suggestion that Ben Wafia was there to air his concern and to find out what had happened. This is an expression of an opinion by the witness and not the facts. I will therefore disregard this part of the evidence.

This witness further said the issues raised in the meetings did concern the whole of the community at the Barracks but he considered it not proper for already discharged members such as Leslie Puka, Simon Konga and Ben Wafia organizing or being behind the meetings. He also said, if the mutiny did not arise, the security needs of the Barracks could have been attended to by those lawfully rostered.

(v) Evidence of Vincent Akrum

Vincent Akrum, another witness also supports the State's case and in particular the evidence of Lt. Col. Janguan. He said he was scared with the soldiers being in full military gear and firing shots, which made him seek cover and stay away until 14 March, 2003. On that date, the Commander of the PNGDF sent Colonel Nori and his team and a meeting with the mutineers and the community took place at Moem Barracks.

At that meeting, he saw Ben Wafia attending. He then recalls Mr. Wafia saying, "What happened here will happen at Murray and Taurama Barracks as well." George Wena who said, "It is true", supported him. Under cross-examination, the witness said he could see them as being together. After the meeting Mr. Wafia shook hands with Col. Nori. Following that meeting the witness stayed away at his home but could see Simon Konga drive around in a TCV to attend to administrative duties at Wewak and carry soldiers, although he was not the lawfully authorised driver of the vehicle. He considered the conduct of Ben Wafia and George Wena as amounting to mutiny.

(vi) Evidence of Patrick Chagur

Similar evidence came from a Patrick Chagur, who too stayed out of the Barracks during the night of 9 March, 2002, until Monday,out of fear for his life,.

He recalled being present at a meeting where the renegade soldiers made speeches. Speaking amongst them was Mr. George Wena. The witness and Mr. Wena used to be in the same company as he was until Mr. Wena's discharge. Also, he said, Mr. Wena's speeches were harsh and were on the subject of retrenchment exercise. Further, he said other persons like him were given no opportunity to speak. Given these and the atmosphere at the Barracks generally, he left the Barracks and stayed away in town until 19 March, 2002, when he found that Mr. Wafia took over the command from Mr. Dege according to his observation at a meeting that day. The witness attended that meeting late so he was not able to say what happened earlier but assessing from the time he got there, he could see that Ben Wafia was leading the meeting.

The witness was surprised because as far as he was aware, Mr. Wafia was no longer a member of the Force following his earlier discharge. As such, the witness said, Mr. Wafia should not have been at the Barracks and speak at the meeting. In Mr. Wafia's speech, the witness recalls Mr. Wafia saying something about the IMF and World Bank funding arrangements, as well as on the subject of retrenchment and the downsizing of the Force. The witness also recalls something being said about some people being named in the newspaper and someone said in pidgin "Tokim dispela man long redim kofin bolo em" (Tell that man to get his coffin ready). That caused fear in him and so he decided not to attend the meeting anymore and stayed away until 23 March, 2002.

As far as the witness could see, Mr. Wena was there at that meeting and so was Mr. Konga. Mr. Wena wore a military trouser, a civilian "T" shirt and made speeches at the meeting too. Mr. Wena was very forceful in using his thumbs and figures to express himself. Given the time that had lapsed from the date of the offence to date of trial, he was not able to recall, exactly what Mr. Wena said but it had something to do with the retrenchment and downsizing exercise.

Further, the witness says, the renegade soldiers presented a petition to Chief Somare. He heard that the other soldiers had no input in the petition. When asked to agree under cross-examination that, Mr. Wena was there to clarify issues, the witness said, Mr. Wena could have done that outside the Barracks in a more gentle way without joining in the mutiny. In addition, under cross-examination, the witness opined that what Ben Wafia said did not amount to any encouragement or incitement to continue the mutiny. Furthermore, he agreed that Mr. Wafia clarified issues. These were his interpretation of Mr. Wafia's conduct. As I have done with the other parts of the evidence before me, I will disregard these expressions of opinions, as they are not facts.

(vii) Evidence of Albert Wurne

An additional witness called by the State was Albert Wurne. His evidence is essentially a repeat of the earlier witnesses' evidence. In particular, his evidence corroborates the evidence of Desmond Nalei on the break in and entering of the armory with Simon Konga assisting.

(viii) Evidence of Wani Aka

Mr. Wani Aka finally completed the State's evidence. He produced in evidence a letter from the PNGDF headquarters confirming the discharge of you four men for various reasons well before the mutiny. These were, Ben Wafia on medical grounds, George Wena and Simon Kong on absence without leave (AWOL) and Leslie Puka on your own request. He otherwise corroborates the other evidence, particularly, in relation to the evidence on the meeting of 14 March, 2002.

In addition, the witness said Mr. Wena demanded the PNGDF to restore all those on retrenchment or on discharge and awaiting repatriation to be restored to the payroll. He was forceful with his demand. However, he said those on the retrenchment list were on the payroll as opposed to those who have been discharged for absence without leave like Mr. Wena.

The State's Case

There was no challenge on the credibility of any of these witnesses' evidence. For example, there was no suggestion put to any of these witnesses that, because of their positions as members of the Defence Force, they were required to give evidence favorable to the State, even if that meant a framed up story. Yet Mr. Wafia's submissions take this up in his submissions as a reason for this Court to reject the State's evidence.

Section 59 of the Constitution adopts the principles of natural justice. An important part of those principles is the need to act fairly and, in principle, must be seen to be acting fairly. This is a duty imposed on every court or tribunal in our country. It follows therefore that, if this Court accepted your submission without you first putting the suggestion and challenge to each of the witnesses, it will be most unfair to the witnesses and the State, without the opportunity first given to them to respond to the suggestion. I therefore reject this submission.

George Wena, Ben Wafia and Leslie Puka, you also submit that there is no corroboration of the State's case. This submission, however, ignores the fact of the corroboration each of the State's witnesses provided for each other. Besides, I know of no law that requires corroboration in this type of cases. Indeed the Criminal Code is silent on the point. Counsel did not provide the Court with any authority in support of his submissions. As far as I am aware, there are authorities, which speak of the need for corroboration in sexual offence cases and evidence given by minors. Nevertheless, the need for corroboration where it is required is not an absolute requirement. The Court could still convict in a case where the Court finds it is safe to do so.

This leaves me with no basis to reject any or all of the witnesses and evidence called by the State and the facts the evidence presents. The evidences do disclose a prima facie case against each of you. This is why I rejected Ben Wafia's no case submission prior to the defence going into evidence. Subject to an assessment of your evidence, I find that the facts in so far as they are relevant and in addition to those already found under the undisputed facts, is that each and every one of you were at the Moem Barracks during the period of the mutiny. You did not seek any specific lawful authority nor were you given any such authority to be at the Barracks, after your respective discharges from the Defence Force. This alone was enough to encourage the mutinous acts of the soldiers. It is well- recognized in the context of our criminal justice system that involvement of more than one person to commit an offence gives more encouragement and strength to each other for the commission of the offence, which could not have been otherwise possible.

In addition to that, you being at the scene of the crime, each of you said and did several things. Ben wafia, witnesses say you were one of the leaders and spoke at, at least three meetings, on the subjects of retrenchment and downsizing. Mutinous soldiers and other retrenched or otherwise discharged members of the Defence Force attended these meetings. Your speeches were in terms of the retrenchment and downsizing being in pursuance of an IMF and World Bank policy. You also told those attending the meeting that, they were entitled to remain at the Barracks pending a full payout of their entitlements. In the meantime, I find that, you called on the Defence Force hierarchy to restore back on the payroll those on the retrenchment list and others discharged for other reasons. You also encouraged the retrieval of two weapons confiscated by police at the time of arresting a soldier, by agreeing to that suggestion and accompanying the acting commander of the Moem Barracks to the Police Station to give effect to that suggestion. This, I find on the evidence before me, was contrary to advice against it.

As for you George Wena, I find that you were also one of the leaders of the mutiny by the soldiers. You also spoke at one of the meetings and were in frequent company with some of the mutineers who frequented the then Major Janguan's residence. I also find that you accompanied the Major despite his plea against it to the police station to negotiate the release of a Paul Obed and to retrieve two weapons confiscated from him by the police.

With regard to Simon Konga the evidence shows that you were in company of the mutineers cutting with a bolt cutter the lock to the armory. That resulted in an entry of the armory and stealing from it, weapons and ammunitions that were there. You and the other mutineers and co-offenders used these weapons and ammunition to execute the mutiny by the soldiers with the support of some already discharged soldiers like yoself..

Finally, Leslie Puka the evidence against you is that you were in uniform and were armed. You operated the gate on 10 March, 2002.

Given that the mutiny was over the downsizing and retrenchment exercises and the problems that were presenting for those affected, I find that your presence amounted to inciting a mutinous act that in fact, occurred over a period. Additionally, what you said and did in my view amounted to encouraging and strengthening the mutinous acts of the soldiers. There is no evidence of any lawful authority or permission for you to enter the Barracks at the times you were there and for you to say and do what you said and did. Further, there was no need for any of you to be at the Barracks. The authorities did not require your assistance in any respect. So, the only reason you were there and did what you did was because you were personally affected and you invited yourselves and joined in the mutinous act.

In a bid to refute the case against each of you, you each went into evidence. George Wena, Simon Konga and Leslie Puka, you additionally called ex private Nagget, while Ben Wafia called Raphael Lapuika. Your evidence is this –

(i) Simon Konga

Simon Konga, you state that on 18 February 2003, you got to the Moem Barracks from Port Moresby on a PNGDF plane to pick up your discharge documents to enable the PNGDF headquarters to pay you your final entitlement. You went and saw the sergeant of the unit you were previously with prior to your discharge for going on absence without leave. You have appealed against that decision to the PNGDF hierarchy, and produced copies of two letters, which are in evidence.

Once you attended on the sergeant, he positively commented on your return and he informed you that, the PNGDF plane would return and leave in two weeks time. You received the documents you went for, which you now claim have been lost. You stayed up until 7 March, 2002, when you were informed that your name was on the list of persons to be on the plane on the 9 March, 2002. You do not disclose the source of that information. The next day 8 March you were told to prepare yourself for the flight the next day.

In the morning hours of the following day, you heard gunshots in the Barracks, when you were still at your uncle's place. A Corporal Kawage told you that the soldiers burnt down two buildings and went to the armoury. You said it could not be true. Then both you and Kawage went to a junction, where he left you as he feared being shot at and you continued to go to the scene of the burnt down buildings. No soldiers were in sight until you met up with three loadmasters, one of them, a wantok of yours who informed you that, the plane had left between 4:00 and 5:00 am and you continued to tell stories with them until the solders returned from the armoury. They returned with boxes of ammunition and guns and found the road blocked. Therefore, you and those with you went onto the side toward the company lines.

You could see the soldiers forming a gathering under Charlie Company lines. At his gathering, you could see an issuance of rifles and ammunition to soldiers. You remained there and you could hear the soldiers talking about retrenchment and the downsizing of the PNGDF. At about, 9:30am, Corporal Luga addressed the gathering saying, it was good that the soldiers were addressing these issues. Then about 2 minutes later, Major Janguan came in. The soldiers were happy that he was there and they said to themselves, "bosses are here."

You go on to say that, Major Janguan said "do not be afraid. Before we use to give the bones now will give them meat." He went on to say, "I received a call from the Commander, authorizing me to be the acting Commander as of now. Do not worry, if they take you to Court, I will go to Court with you."

Later about 2:00pm, Coporal Luga informed the gathering about Chief Somare (now Prime Minister) getting to the Barracks. This ignited some debate amongst the soldiers, as some did not want any politicians to be involved, because their issue was not political but a military issue. These people referred to an incident in Murray Barracks where Jamie Maxton Graham gave about K500,000., which shut the soldiers up and they wish that that will not to repeated. Eventually, the soldiers agreed to Chief Somare coming over to receive their grievances. Thereupon, Luga left for town to get Chief Somare. However, before he did, he told the soldiers to go to their respective companies and write down their points.

You went with the group representing the company you were previously with under the leadership of Corporal Evia, who wrote down the points. When all the points were viewed together, they all came to retrenchment and downsizing, totaling about 10.

Later Luga returned with the news that, Chief Somare would come at 5:00pm to receive their points. At about 5:00pm, everyone at the Barracks gathered and Chief Somare arrived with the PPC Leo Kabileo and others. Mrs. Luga spoke on behalf of the women and the children affected by the issues raised. Mr. Luga then welcomed Chief Somare and his team and then called on private Holonga to hand over the petition, which he did. The Chief received the petition, told the soldiers not to worry, promising to present the petition on their behalf to Parliament on Monday, and left the Barracks. On Tuesday or Wednesday, you heard that the Chief had asked the Prime Minister to resign.

You said you were there only observing because the issues raised concerned you as you were on the retrenchment list. Under cross-examination, when you were asked to comment on why the State witnesses said you were there as an active participant, you said these witness were lying but were not able to give any reason why they could be lying against you.

(iii) George Wena

George Wena, you said in your defence that you were at the time of the offence on the retrenchment list. Consequential on your discharge, you were living at a settlement here in Wewak and were therefore already living outside the Moem Barracks. However, you were going to and from the Barracks pursuing your claim for a payout of your final entitlements. Each time you entered the gate, there was a soldier operating the gate but could not name anyone of them.

You also said you got to the retrenchment list due to an administration mistake. That occurred in the year 2000. In that year, the PNGDF faced a food crisis. So you and other soldiers were given an indefinite period to stay out pending the improvement of the situation. The situation eventually improved without you knowing which could have enabled your return. So you did not return and that is how you were treated as being "absent without leave or AWOL".

You have appealed by way of letters against the decision to treat you as being on AWOL. The first was to the commanding officer of the Moem Barracks. Failing a response to that, you appealed to the hierarchy at Defence Force headquarters. Those letters are in evidence as "D2" and "D3" respectively.

Then you recalled that on 11 March 2002, you went to the Boram General Hospital for your usual treatment as a TB patient. Thereafter, you went to Kreer market at about 11:00am. When you got there, the people stared at you and one of them came and asked you "Is Moem Barracks all right?" Then you asked why do you ask? At that stage, a boy came to you and gave you a Post Courier. In the front page there was a story on the Moem Barracks mutiny and named you as the spokesperson for the Moem Barracks stand off.

This news shocked you and you anxiously waited in vain for a soldier to turn up. This caused you to go to Moem Barracks and headed toward the Delta, Charlie and Administration and support lines. You could see that the soldiers had gathered in smaller groups, with one of them being bigger with more people all talking at about the same time, under a rain train toward the Charlie Company lines. You went toward them and found that they were talking about the downsizing of the PNGDF and retrenchment issues. The elderly people talked about the problems they were facing because of the retrenchment and getting no pay and a lack of prompt repatriation and other outstanding claims.

Late in the afternoon of that day, you felt very sick given your TB condition and you slept at your place in the Administration Company line. The next morning at about 6:00am you were on the way down the stairs when you met Listol Nagget. You spoke to him about the newspaper report and not being happy and wanting to clarify it. So you asked him as to who was leading the mutineers as you wanted to speak to him. He told you that Corporal Luga and Singeri were. Thereupon, you asked him to take you to them and he did. You spoke to these two men about your concern and wanting to clarify your name. They said to you that the matter has to be raised with Major Janguan first and you all went looking for the Major.

When you got near to Major Janguan's residence, you saw some soldiers in a white landcruiser and others talking to him. They were in military uniform and armed while others were in civilian. Then on seeing your group approaching, the Major told them to leave saying he needs to speak to your group. He laughed and approached you and invited you to sit under the house. Then once under the house, he asked what was wrong. You told him about the newspaper report and your wish to clear your name. In response he said, it is a small thing. Corporal Luga knows everything and that he should have clarified the situation. You responded by telling him that they told you to go to him first. He then said to you "we will ring the media people for them to make a public apology." You said thank you to him and left with the rest of the men you went with.

Before you left, the Major spoke to Luga and Sengiri instructing them to assist you urgently. He also wrote a note and gave it to Nagget. On the way and on your request, the hand written note was read out. It read, "meet all the syndicate leaders and make normal weapon and ammunition returns and report back to me." You responded by saying to Nagget and Luga, it is your duty and you went to the bus stop and returned to town. As far as you could see, the leaders were Major Janguan and Luga.

On 14 of March, 2002, you were at the town market when soldiers in a TCV picked up mothers and others who had come to do their market and soldiers who had come to attend to administrative matters. On seeing you, they told you to return to the Barracks quickly because a head quarters team was coming to address the issues. You thought of getting on the TCV but because you were already discharged, you were ashamed of doing that. So you resorted to getting to the Barracks by bus.

When you got to the Barracks, you saw many people gathered at the soldiers club. As there were many people, you could not recognise any one in particular let alone Ben Wafia or any of the other co-accuseds. The meeting consisted of men, women, soldiers and children. You found that you got there late, and missed what transpired earlier on. You stood some distance away at the back from the center of the meeting. From there, you heard voice of high-ranking officials such as Chief Warrant Officer Abram and other people, including women representatives, speak. They were addressing the issues of retrenchment, downsizing of the PNGDF, unpaid entitlements, people not being on the payroll and problems caused by that.

After this meeting, you left the Barracks with many other people. Both at this meeting and the earlier one on the 11, you said nothing, as you were a discharged member of the Force. You claimed that the State witnesses were not telling the truth when they said you spoke at these and the other meetings, without giving any reasons as to why they could do that against you. You said you were not involved with the mutineers and said you came face to face with Major Janguan once only on the 12 March, 2002. You did not know anything about the plans for the mutiny. As far as you could see, the soldiers were speaking at the meeting on the times you were there, with their hearts and not in an aggressive manner raising their concerns.

(iv) Listol Naget

Leslie Puka, Simon Konga and George Wena called this witness in your defence. The witness is serving time at the Boram CIS for his part in the mutiny.

This witness repeats all the other witnesses' evidence particularly in relation to the mutiny, the cause for it, the meetings and people raising the issues covered in those meetings.

He departed a bit from the other evidence, when giving his evidence in chief by saying he did not see any of you four men in military uniform. He also said from his observations, the meetings were peaceful. He further said Major Janguan incited and was the leader of the mutiny and not all or anyone of you. The witness inferred this from all syndicate leaders frequenting the Major's house taking instructions and working side by side with him. Furthermore, he said, there was order in the Barracks as Major Janguan was in charge from 9 March 2002. Authority for Major Janguan came from headquarters via telephone for him to take command and take account of all weapons with the syndicate leaders. Additionally, the witness said Ben Wafia attended one of the three meetings he was able to recall. This is the meeting at which the petition was presented and Ben Wafia spoke.

According to the witness, Ben Wafia spoke about the issues addressed and clarified them. When asked as to how he did that, he said Ben spoke about 14 entitlements on the retrenchment list. He also said you men were not a threat to the Commander of the Barracks because you were no longer with the Defence Force following your discharges.

(v) Raphael Lapuika

Ben Wafia called this witness in support of his claim of an alibi for the period 8 to 10 March 2002. The witness comes from Numoiken just outside the precincts of the Wewak township, the same village as Ben Wafia. His house is about 3 kilometers away form Ben Wafia's.

This witness said Ben Wafia was in the village from 8 to 10 March, 2002. During this period, Ben Wafia was leading a village volleyball competition. The games started at about 10:00am and finished around 4:00pm, based on the times given by his radio. On Friday 8, Ben Wafia participated in a game with his own team. That was a knock out round, which Ben Wafia's team lost.

He also says during this period, he heard in the radio about the trouble at Moem Barracks and he informed Ben Wafia. On Monday 11, both he and Ben Wafia came into town for different reasons and went their separate ways. In his evidence in chief, he spoke of particular time slots during this period.

(vi) Ben Wafia

Ben Wafia, you are the last and final witness for the defence. Your evidence is this. The Defence Force discharged you on medical grounds in 2001. After your discharge, you returned to your village at Numoiken to prepare the full return of your family to the village. Whilst in the village, you organized games and other activities for the youth of your village.

You repeat Mr. Lapuika's evidence but differ in relation to the distance between your house and his. You say it is about 100 meters, while he said it is about 3 kilometers away.

You then add by saying, after getting into town, you bought yourself a newspaper. The newspaper did cover the Moem Barracks incident. You reacted by saying this cannot be right and you drove into the Moem Barracks to find out. There were soldiers doing their normal rostered duties manning the gate. So you stopped and they asked about your purpose for wanting to enter the Barracks. You told them you wanted to see George Wena as his name was in the newspaper as the spokesperson and they allowed you to pass through. In so doing, they directed you to proceed straight to the rain tree.

As you entered the Barracks through the gate, you could see that the place was normal and not in terror as reported in the newspaper. You then proceeded to the raintree and waited for a while and then inquired as to who was in charge? You found out eventually that Nugget was and you got to speak to him and asked as to what was the trouble all about. He told you that it had to do with the downsizing and retrenchment where upon you said you might turn up again later as the issues raised affected you too, and then you went home.

On the 14, you returned to the Barracks as you heard Col. Nori was coming. You know him well from your time at the Murray Barracks. You got there through the gate operated by ordinary uniformed soldiers. From the gate, you proceeded to the soldiers' club where there was a big gathering of soldiers, wives of soldiers and children and others. There, you met Col. Nori and spoke to him before he presented his speech.

After speaking to you, Col. Nori asked you to take his hired car to the Windjamer hotel, and pick up some army officers that were there. You obliged and took his vehicle and drove to the hotel. When you got there, you found out from the receptionist that the officers had already checked out. So you left and went looking for them at the Sea View hotel, without success. Consequently, you returned to the Barracks without the officers and reported the situation to Col. Nori. Thereafter, you left the Barracks, caught a bus and returned to your village.

Five days later on the 19, you returned to the Barracks again through the gate. The situation was again normal according to your observations. When inside the Barracks, soldiers informed you that there was a meeting at the soldiers' club so you went there. There was again a group of them serving retrenched soldiers and others. They were discussing the retrenchment and downsizing of the army. You joined in the discussion and said the retrenchment and downsizing were an IMF and the World Bank policy. In contrast with Nagget's evidence, you said you did not speak of 14 entitlements at this meeting. You say he mistook you. You also said you had to go there to clarify issues, but when asked as to what issues required clarification by you, you said they (soldiers) were shocked because of lack of awareness. You did not state how you learned that they were shocked and why was it necessary for you to be involved, save only to say it was necessary for you to be involved.

You also said everybody at the meeting was expressing his or her views in the meeting. At the same time there were exchanges of arguments in relation to a weapon being sold by a Paul Kera and the need for accountability of weapons. You agreed with suggestions that the weapons had to be returned and told them that someone has to go to the PPC and retrieve them if need be. So you went with Nagget as well as Major Jaguan to the police station in a bid to retrieve the weapons. You claim that you went on the requests of both Nagget and Janguan. You also claim that there was a lot of fear in town, so you felt it was good to go and assure the public that they should not fear. It is not clear whether you retrieved the weapons, but it seems you returned to the Barracks. After that you left the Barracks and went home.

There were continuous speculations and inaccurate reporting over the Moem Barracks issue. The situation was reported as a mutiny, but as far as you were concerned, there was no mutiny, the command was intact, all the meetings were authorised and that life at the Barrack was normal. Yet you said under cross-examination that the mutiny was not because of the issues of retrenchment and downsizing of the army but were very different. The continuous speculation and inaccurate reporting caused you to return to the Barracks. This time you met up with Nugget at the Charlie Company lines. He was with some soldiers. You told him that the negative speculations or inaccurate reports require correction, because the situation was normal and that needs to go out to the entire nation.

You then went with Nugget and the soldiers to the Administration Block, to the Commanding Officer's office. When you were about to get in there, you saw Janguan and Nugget said "boss Kam yia" (boss is coming) and then you had a chat with him. Then Janguan said "go insait and tokim ol" (go inside and tell them). So you went in got the phone and telephoned the National Newspaper and spoke to an employee there and asked the newspaper to correct the speculations and inaccurate reports. After that, you left the Barracks and returned home.

You remained in your village and only commuted to and from town and your village. When in town, you asked soldiers about the situation. Through this, you gathered that there was going to be a talk back show on a date you are not able to recall. So you turned up at the Barracks in the usual way to the raintree and there prepared for the talk back show. Then eventually went on that show by using a telephone. You said a number of things most of which you are not able to recall, except for having said to the Commander "it would have been better had the hierarchy come out earlier and explained the exercise." This was in response to the Commander saying the Mekere government only issued instructions to downsize the army and not a sell out.

Assessment of your evidence

There are a number of problems affecting your evidence. Firstly, you did not put the entirety of your evidence to the prosecution witnesses. So you raise matters not previously made known and put to the State's witnesses. This is so particularly in relation to the suggestion in Ben Wafi and Listol Nagget's and others' evidence that the then Major Janguan was the leader of the mutiny. Likewise, your attempts to place yourselves away from the scene of the crime apart from the dates you were prepared to admit being there were not put to the prosecution witnesses and you failed to give notices of your respective alibis. The same goes for your other parts of the evidence.

Secondly, you were all discharged soldiers. You were not officially authorised to be at the Barracks during the time of the mutiny. However, you claim that you were authorised to be there. There is no evidence in support of this when you could have easily done that. For example, Leslie Puka, you claim that you were with your in-laws at the Barracks. You could have called either of them to come to Court and confirm that but you did not. The same goes for Simon Konga's claim of staying with an uncle at the Barracks. Similarly, George Wena, you say you were living at a settlement and came into the Barracks after the mutiny had commenced. If that is so, you could have called someone to confirm that. As for Ben Wafia, your alibi evidence covers only for the period 8 to 10 March, but you do not account for the other days of the mutiny save for the dates you admit to being at the Barracks.

Thirdly, most of your evidence lacks any sense of logic and commonsense. For example, George Wena, you claim that a newspaper report named you as the spokesperson for the mutineers. You therefore set out to have that clarified. You do not give any evidence of how your name got to the newspaper as the spokesperson. You do not give any details of what communication you put to the newspaper and what was their response. Further, there is no explanation as to why or how you could not have cleared your name by contacting the newspaper direct without going to the Barracks, particularly when you do not say why was it necessary to get to the Barracks knowing that there was trouble there. Furthermore, Ben Wafia insisted on there being no mutiny when there was clearly one from 8 to 23 March, 2002. Furthermore, Ben Wafia claims the situation at the Barracks was normal, and in so doing, you obviously missed out the obvious destruction of two buildings and the break, enter and stealing of weapons and ammunition from the armory. These were big news and you had reason to know of that but you did not speak about them in your evidence in chief and even under cross-examination.

Finally, most of your evidence is consistent with the prosecution's evidence. Also, instead of supporting the defence case, there are some inconsistencies. An obvious and clear example of that is the fact that Ben Wafia denies there being a mutiny while the rest of your evidence confirms there was a mutiny. Further, Ben Wafia speaks of asking to see George Wena on the first day of his entry or attendance at the Barracks and was allowed to pass through. This means that the person(s) who was operating the gate knew who George Wena was, what he was doing and that he was inside the Barracks and also knew you.

For these reasons, I reject your evidence and your claims and I find in terms of the State's case. Consequently, I find that the State has established beyond any reasonable doubt that you were at the Barracks during the period of mutiny, encouraging and or urging on a mutinous act, which in fact occurred. You did that by both your mere presence as well as the things you said and did in support of the issues giving rise to the mutiny. Being former soldiers, you had reason to know the military code of conduct and the consequence of going against it. You were therefore informed or well aware and hence advisedly presented yourselves at the Barracks and encouraged the mutinous acts of the soldiers, within the meaning of s 41(1)(b) of Criminal Code.

In view of the above findings, I return a verdict of guilty against each of you on the charge of advisedly attempting to incite mutiny and convict each one of you. Accordingly, I order that you be remanded in custody awaiting your sentence. A warrant of committal in those terms shall issue forthwith for your remand in custody pending your sentence.

Lawyers for the State: The Public Prosecutor.
Lawyers for the accused: The Public Solicitor & Tonge Lawyers.