DC312

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 52OF 2002

Police
Complainant

V

Plak Ruin
Defendant

Mount. Hagen: M. M. Pupaka, PM.
2002: 1st & 2nd October

Criminal proceedings – particular offence – unlawful damage of property – Identification of accused – Principal offender –Section 7 (1) of the Criminal Code – Conflicting statements by accused and his witnesses there should not be any conflict – credibility of defence witness – Guilt of accused logical inference.

Counsel
Senior Constable Giwoso for the Prosecution
The Accused in person

11th October 2002

M. M. Pupaka: The accused Plak Ruin was charged that he unlawfully destroyed a vehicle windscreen which was the property of Steven Ami, and thereby contravened section 444 (1) of the Papua New Guinea Criminal Court Act, Chapter No. 262 (the Code). He entered a plea of not guilty and the prosecution called 3 witnesses against him. He was found to have a case to answer. He elected to testify on oath and called two witnesses of his own. 

It is not disputed that the vehicle windscreen was damaged. However it is contested that the accused had anything to do with the damage. Consequently the vital facts are disputed. The prosecution version of the facts is disputed by the defence saying the presence of the accused at the scene was quite accidental and he had nothing to do with those who caused the damage. He denied having or executing any common purpose with them.

The Prosecution case

On the 10th of July 2002, at about 10.00AM, a Mitsubishi Canter (PMV) truck pulled into the Mobil service station at the Kagamuga Airport junction along the Okuk Highway. It was driven by one Alo Walua and had passengers on it. The vehicle parked at one of the pumps at the service station to refill. Its crew went out to pay for the fuel while the driver sat inside. Just then another vehicle, a Hino truck, driven by the accused, also pulled into the service station and stopped directly in front of the Mitsubishi vehicle. The Hino truck was fully loaded with young men who were variously armed with bush knives and coffee sticks. As soon as it stopped the driver of the Hino truck, (the accused), came out of his vehicle and walked purposefully to the driver of the Mitsubishi vehicle. He was followed by some men from among the armed crowd in the Hino truck. The accused confronted the Mitsubishi driver and said words to this effect: "You have been over there blocking the road, now you have come on this road, ah?" Simultaneously, men from the Hino truck who had followed him then swamped upon the Mitsubishi truck. One of them swung his coffee stick across its windscreen, cracking the glass. Another tried to stab the driver with a knife and others proceeded to manhandle the Mitsubishi crew, who had been out of his vehicle was trying to get back on it. Some passengers from the Mitsubishi jumped off while others remained.

Then people around at the service station intervened and stopped the assault. There after the accused and his group got back on their truck and proceed up the road towards Mt. Hagen. The Mitsubishi driver and crew took the vehicle to its owner at their village. The matter was reported to the police. The next day the police informant, acting on information that the accused was sighted in town, found him near the Brian Bell Store and took him to the police station where he was arrested and charged with this offence.

The Defence case

The accused and his two witnesses gave a substantially different account of the incident at the Kagamuga Airport junction (Mobil) service station. They said they had been at the accused’s house nearby and were pulling into the said service station to refill their vehicle, which is the Hino truck driven by the accused. They say they were alone and had no other persons with them. 

The three defence witnesses’ account of what happened, markedly and quite significantly, differ vis-vis each other in some vital aspects. The accused said the fight between the occupants of the Mitsubishi and others (people from his own tribe) was already on when he happened on the scene so he decided to stop the fight, and he did so. The accused did not say when and where he was arrested by the police over the incident.
His first witness, Jack Wai, differed from the accused’s account. He said the three of them arrived prior to the Mitsubishi vehicle and were parked besides one of the fuel pumps as their vehicle was being refilled. He said they were still inside their vehicle waiting for their vehicle to be refuelled when they heard a bang noise out at the back of their vehicle. He said the accused went to check and he and Jack Kuk (the 2nd defence witness) followed. In reply to an enquiry by the accused as to what was happening, they were informed that the people in the Mitsubishi vehicle were being assaulted in retaliation over a road block that had been previously set up somewhere where the current assailants had been beaten and robbed. This witness said the accused stopped the fight after which he, with the accused and Jack Kuk, went up to Mt. Hagen where the accused was arrested and charged. He denied that the accused was arrested the next day, saying the accused was arrested on the same day. He did not say where in Mt. Hagen the accused was arrested.

The second defence witness, Jack Kuk, said as much as what the first defence witness had said, up to the point where the three of them were waiting for their vehicle to be refilled, and upon hearing the bang noise went out to investigate, whereupon seeing the fight the accused stopped it. This witness said something about being told of a fight between the occupants of the Mitsubishi and the others, prior to the service station incident. He also said he was still with the accused later on the same day of the incident, when the accused was arrested near the Mt. Hagen Police Station and charged.

Findings on the evidence

It is not disputed that the Mitsubishi vehicle’s windscreen was damaged as alleged, wilfully and unlawfully. It is also clear the accused was at the scene of the crime with his Hino truck, though he did not physically cause the damage to the other vehicle. It is clear the accused hails from the same tribe, as the persons who damaged the Mitsubishi’s windscreen and generally assaulted its driver and crew. The accused seems to have said something, (made a speech of sorts), at the scene of the crime. Whether these were angry words as the prosecution witnesses say or neutral words intended to stop the fight as he and his witnesses said, would be addressed shortly.

Excepting the accused all or most of the assailants were strangers to the prosecution witnesses. The accused is a village leader and councillor, which is why the prosecutions witnesses knew and recognised him. The accused is one of the Councillors of the tribe to which all of the assailants – allegedly numbering 30 to 40 young men – belonged. These much is not disputed.

On the next day, 11th of July 2002, the accused was arrested by the police informant Gabriel Haus of the Mt. Hagen Fraud Squad near the Brian Bell Store in Mt. Hagen, a location well away from "at the counting near the police station" being referred to by the first defence witness as the site of the arrest. The accused was arrested and charged on 11/07/02, the next day, and the definitely not on the same day of the incident. The accused and his two witnesses contradict each other on the aspect of when they arrived at the service station. The accused said they had arrived to find that there was a fight going on, so he intervened to stop the fight – meaning they came later than the Mitsubishi vehicle and its occupants’ assailants. However his two witnesses said they arrived at the service station first and were in front of the Mitsubishi when the latter’s windscreen was hit. Quite clearly there is conflict of evidence between the defence witnesses as to their recollections of the vital moments in the incident, as well as the later part as to when the accused was arrested and charged. This must mean one thing; these two defence witnesses were either not at the scene of the incident or they were not with the accused either on the day of the accident or the next day. Therefore I reject their evidence as being unworthy of any credence at all. 

The accused and his witnesses were asked to explain how the persons who damaged the Mitsubishi came to the service station. Clearly these people outnumbered the victims. They were obviously in a group and so they could only have arrived together, and in a vehicle large enough to contain them. The accused’s witnesses are the tribesmen of these people who caused the damage. They claim to have been at the scene at about the time the incident occurred. The accused and his witnesses’ claim of ignorance on how the assailants came to be at the scene is not convincing enough in the circumstances, and I think they are not truthful about which vehicle their tribesmen came in. On which vehicle the armed men come in is a fact that the accused and his witnesses could not have helped noticing. In the circumstances the prosecution evidence that the accused brought the whole group in his Hino truck and later left again with the whole group in the same truck is more credible and convincing and I think that is what happened. Further the prosecution account of the accused driving is Hino truck across the parked Mitsubishi, purposely to block of the Mitsubishi, and then the armed group led by the accused swamping upon the Mitsubishi, particularly its driver and crew, is also credible evidence. I would accept and rely on this prosecution evidence. I reject the accused’s contention that he was an innocent person who intervened only to stop the fight.

In my view the accused put in motion the whole proceedings. The way he parked his Hino truck, which was full of his tribesmen, blocking of the way of the Mitsubishi, was highly confrontational. He approached the driver of the Mitsubishi in a threatening way and posed a question which was an angry challenge. Whatever the accused said, it was not any tactful speech uttered to stop the impeding clash. He had a vehicle load of angry young men from his tribe, most of them armed with offensive weapons. Some of them were following him to the Mitsubishi vehicle with their weapons. It was overly imperative that the accused refrain from doing what he was doing or he do his utmost to contain his tribesmen from causing any damage to the Mitsubishi canter truck or injuries to its occupants. The accused was the group’s leader, in every sense. After acting in a confrontational manner he would be criminally negligent if he failed or omitted to contain his men.

Conclusion

The prosecution witnesses say the accused led a charge on the Mitsubishi truck and its driver and crew. I think that is credible evidence that I must accept and relay upon in the circumstances. The weight and credibility of the prosecution evidence is sufficient to find the charge against the accused proved beyond any shadow of doubt, and I do so find accordingly. In all the circumstances of the case, I find the accused, by his own conduct, to have been a principal offender in the context of section 7 (1) (b) & (c) of the Code in that he was a party to the damage caused to the Mitsubishi canter truck owned by Steven Ami, and the assault occasioned upon that vehicle’s driver and crew. The upshot of this is that I find the accused Plak Ruin of Rapi, Muglamp, (WHP), guilty as charged on the charge of Wilful Damage of property contrary to section 444 (1) of the Code.

Senior Constable Giwoso: Complainant
In Person: Defendant