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State v Pitau [2022] PGNC 281; N9677 (7 March 2022)

N9677

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 342 OF 2021
CR NO. 343 OF 2021
CR NO. 345 OF 2021
CR NO. 346 OF 2021
CR NO. 347 OF 2021
CR NO. 351 OF 2021
CR NO. 352 OF 2021

THE STATE

V

SIPEREN PITAU, TONDIE IVAN, JUNIOR IVAN, JOEL DUKDUK, MATARA ENOS, IVAN KOLIS and WILLIAM GUBORO

Kokopo: Tusais AJ
2021: 8^th, 9^th, 10^th, 17^th, 29^th September, 18^th & 21^st October, 24^th November

2022: 7^th March

CRIMINAL LAW – Wilful and unlawful damage of property – S 444 (1) Criminal Code Act Property – Whether ownership of property damaged an element of this offense – No real dispute that damaged machines belonged to developer of oil palm project – Also no question of damaged houses belonging to two men who were in partnership with oil palm developer company.

CRIMINAL LAW – Principal offenders – Only one accused seen burning bull dozer – Other 6 accused all present at scene of crime –All accused had intention to stop oil palm development - one accused was seen armed and shouting “fight them, fight them” – Another punched leader of opposition group – One shouted also to fight – One accused seen by several witnesses dipping a cloth into petrol lighting it and throwing it onto a bulldozer that was partly burnt – Defence consented to tender of witness statement that said that the same group of men who fought ... later went on to burn machinery, houses and property.

Cases Cited

Roland Tom & Kalen Kopen v State (2019) SC1833
State v Malihombu (2003) N236
R v Tovarula [1973] PNGLR 140
Porewa Wani v The State [1979] PNGLR 593

Counsel

Ms J Batil, for the State
Ms C Pulapula, for the Accused persons

DECISION ON VERDICT

7^th March, 2022

1. TUSAIS AJ: On 8^th September 2021 the state presented an Indictment against ten accused persons including the seven named accused in this case. They were all charged with one count of wilful and unlawful damage contrary to s. 444 (1) & (9) (f) of the Criminal Code Act, Ch. 262 (the Code). All ten accused pleaded not guilty, and a trial was run. At the end of prosecution evidence, the case against three of the accused was stopped and they were acquitted due to lack of evidence identifying any of them. Defence made a no case to answer application for the remaining 7 accused but was not successful. All of them elected to give sworn evidence. This is the court’s decision on verdict.
   

Facts

2. Prosecution alleged that the accused persons with other men from the Koki area in Inland Baining LLG, Gazelle District, wanted to stop operations of the East New Britain Oil Palm Company project site situated within the Koki area. On the 6^th day of August 2018, between 10 am and 11 am the accused persons and many others armed themselves with bush knives, iron bars, sling shots, sticks, stones and other objects before aggressively entering the new Oil Palm Project site. They chased the employees of the company including machine operators, security guards and other casual workers at the project site.
   
3. The group of men burnt and destroyed properties of the company. They set on fire a Kubota tractor and its trailer, a bull dozer’s seat, a motor bike and other properties including a drum containing 200 litres of diesel, a drum containing 200 litres of glyphosate, 40 litres container of petrol, 4 spraying pumps and 5 empty jerry cans.
   
4. They also damaged two different houses and properties belonging to Michael Kasaika and Bruno Nue. The two men were leaders of the Lamus Landowners ILG group on whose land the Oil palm project was carried out. The total value of the damaged properties belonging to NB Oil Palm company and the two landowners, amounted to K112,025.64.
   
5. The State invoked Section 7 of the Criminal Code and alleged that the accused persons and others aided and abetted each other in the commission of the crime.
   
6. There is no dispute that several valuable machines including a tractor worth K80,000, its trailer, a motorcycle, parts of a bulldozer and other property belonging to New Britain Oil Palm company were damaged. There is also little dispute that houses and property belonging to Michael Kaisaka and Bruno Niu were damaged.
   
7. All the accused persons live at Lamarain ward, Vunapalading and Mandres. Their main economic activity was cocoa farming. Parts of Koki block were being cleared for planting of oil palm by New Britain Oil Palm Company (the company) at the invitation of Michael Kasaika and Bruno Niu as local Bainings clan leaders. The clearing of land included removal of cocoa trees for planting of oil palm. It greatly angered members of the Koki block and the surrounding community of Vunapalading. They were totally against the planting of oil palm and were described by State witnesses as the ‘opposition’.
   
8. On the 6^th of August 2018 a large group of men from Koki block and also from Vunapalading converged on the project site and attacked the workers including machine operators and drivers, security persons and laborers. Weapons including knives, sticks and stones were used. Michael Kasaika was confronted on two occasions. The second time was by a group led by Ivan Kolis.
   
9. What is in dispute are the following facts:
   
   1. The accused were never there when the big group of people attacked the workers and damaged property. Some of them raised alibis.
      
   2. All seven accused arrived on the scene after 1 pm after all the property had been damaged earlier that day.
      
   100. Junior Ivan denied setting fire to the bulldozer.
        

States case

10. The prosecution called six witnesses and tendered thirty-six documents by consent. The exhibits consist of Records of interview of all 7 accused, arresting officers and corroborators statements. Three documents of significance to this case were also admitted by consent. One is a statement by an eyewitness, Leo Petau, marked as ‘state exhibit 35’. The second is a list of property destroyed and the value (‘state exhibit 36’). Also admitted without challenge were a number of photographs of properties destroyed (state exhibit 31 “A-D” exhibit 32 “A-D” exhibit 33 and exhibit 34 “A-H”).
    
11. I reproduce in full the statement of Leo Petau, (“state exhibit 35”). .. “ I, Leo Petau can recall back on Monday the 06^th day of August 2018, time between 10 to 11 am in the morning I was at the Koki Oil Palm project Area. That time we were all oil palm workers were there and we heard the Catholic Church bell rang very loud, which was not long we saw 3 people walked to us, namely Michael (Ward committee), Metara and Orim Toruwar. These three (3) went and talked with Michael Kasaika.
    
12. From there they left us and Michael, ward committee and Orim they went up back to the main road and Metara walked to beach road. From there as we saw the crowd came to us with those three people again, which I was there and I saw Ivan Kolis led those men came to fight with us at the project area and I saw the other side was Siperen Pitau ran with bush knife towards us. That time I was there and I saw Ivan Kolis went straight to Michael Kasaika and pulled his hand three (3)times and asked Michael as Michael Kasaika swore him like, yupla kuap as, Michael Kasaika removed ivans hand off, and then ivan kolis asked Michael kasaika if they can fight, there Ivan continue and swore at Michael Kasaika like, ‘yu kaikai kan, yu skinim’, ivan also said, ‘we came now but we will come the second time’.
    
13. While I was there I saw this person the escapee (Tovue Leo) came with his homemade gun and pointed to shot Michael Kasaika but Michael removed that homemade with his hands and Tovue got stone and shot at the side of the Michaels ribs. That was the time I saw one of the Tolai man did knew him went ran with bush knife to cut Michael Kasaika but the crowd came up with voices, insulting words, like kaikai kan, kill those Bainings, which they mobilized and chased us with sticks, stones, bushknives which we all in fear and ran away. After that same group of people they went mobilized up to main to where the tractor, dozer and motor bike and burnt them. They also went as far as Michael Kasaika and Bruno NIUs house, removed and damaged all house hold properties.” (underlining mine)
    
14. Gabriel Bun was a security guard at the project site. He gave evidence that at 10 am on Monday 6^th August 2018, he was watching the machines work when the ‘opposition group’ went to fight them. He saw Ivan Kolis, William Guboro, Matara (surname not known), Joel Dukduk, Simeon, Junior Ivan and Tondie Ivan. He knew all of them well as they all lived in the same community. He saw Ivan Kolis go first and throw a punch at Michael Kasaika. At the same time Siperen Pitau was jumping up and down with an iron rod in his hand and was calling out “paitim ol. Paitim ol” or ‘punch them’. Ivan Kolis swore and the group of men started to attack the workers forcing them to run away. He testified that the group of men burnt a tractor, a motor bike and the seat of a bulldozer.
    
15. Witness Mr Bun told the court that William Guboro was a leader in the community and he went intentionally to disturb the project. He said Metera was from nearby Vunapalading and he was calling out “fight them, fight them”. Witness said Joel Dukduk was also leading the group of attackers. The witness correctly pointed out all seven accused including Metera Enos in court. He said all of them were in the group of men who went as ‘opposition’.
    
16. Witness Enes Paul worked as crew on a company tractor. On Monday morning, 6^th August 2018 he went with the tractor driver to Vunapalading and picked up diesel and chemicals. They took them to Michael Kasaika’s house at Koki and left them there. As they left and drove down a side road they saw a big group of men getting ready to block the road. The men called out and ran towards them swearing and throwing missiles. The witness and driver abandoned the tractor and ran away. The time was between 9 to 10 am. The witness only recognised a man named Ivan who gestured to them to turn around and drive back to Michaels house.
    
17. Leo Kuba worked as a labourer at the project site. This is what he told the court. On Monday 6^th August 2018 between 9 and 10 am he was at work when other workers called out and told them to stop the machines and bring them back because people were coming. Their leader Michael Kasaika told them to wait and he would talk to the group. The group arrived with their leaders including Ward member Andy and Ivan Kolis. They did not talk, Ivan Kolis threw a punch at Michael Kasaika and the other men chased him and fellow workers. He was chased and shot with stones on his right hand and back. His inlaw was also shot and speared with an iron rod.
    
18. Leo ran up to his house. Within a short time after he arrived the group of men followed him up to the house holding stones and knives. The operator had left the machine near his house. He saw Juniour Ivan, Lawrence Pulu, Billy Dukduk and John Naki go onto the machine. Junior Ivan poured petrol on a dirty rag then he lit it and placed it on the seat of the bulldozer setting it on fire. The group of men broke into his house and stole his property including a bicycle before heading off towards Bruno and Michaels residence.
    
19. Leo saw Junior Ivan pour petrol and set the bulldozer on fire from a distance of 15 metres. His view was not obstructed by anything, and he recognised Júnior Ivan as they all lived in the same area and he was a class mate from school days.
    
20. Michael Kasaika is a villager from Lamarain ward, Koki area. He said that on Monday 6^th of August 2018 the group of men broke into his house and stole his properties and damaged his house. A big group of men from two communities including Lamarain ward and Vunapalading were not happy with the oil palm project and went onto the project site. Between 9 and 10 am Ivan Kolis, junior Ivan,Tondie Ivan, Matera, Siperen Pitau and other men went and confronted him at the worksite. Siperen was dancing on the side and calling out, ‘fight them, fight them”. Ivan Kolis threw punch at him and told him that this was a small group but a bigger one would also come. Others in the group hit him with a stone and swung knives at him. A stone hit him on his head causing blood to come down. He ran away.
    
21. The last state witness was Chris Michael. He worked as a security guard. He was also chased by the big group of men and ran up to where the bulldozer was parked. He was there when the group went up and he saw Junior Ivan set fire to the bulldozer.
    

Defence case

22. Siperen Pitau is 45 years old and comes from East Sepik Province. He is married and resides with his family at Ramalain ward, Inland Baining LLG. His house is 30 to 40 meters away from the project site. He gave evidence that on the day that the incident happened, he was at his house. He heard that the machines were burnt so he went to see for himself. He saw that a tractor, motorbike and seat of the bulldozer had been burnt. He did not know who burnt the things as he was just walking on the road.
    
23. Other people also went and gathered. The police arrived and obtained their names. The time was 20 minutes to one in the afternoon. He admitted that he was not happy with developments taking place to plant oil palm. When asked in cross examination he said he wasn’t happy because they were cutting cocoa trees on their blocks and planting oil palm. People from 4 communities including Ramalain, Ramgulit, Vunapalading number 2 and Mandres gathered and caused destruction because they were not happy with the planting of oil palm.
    
24. Tondi Ivan is 25 years old and lives at Lamarain ward. He gave sworn evidence that on the 6^th of August 2018 when the destruction occurred, he was at his block. He heard the noise and went to the scene, but properties were already damaged. He denied being with the group that damaged property. His house is about 2 kilometres from the project site. He said he went to the scene at 1.30 pm.
    
25. Junior Ivan is 27 years old brother of Tondi Ivan and lives at Lamarain ward. He gave sworn evidence that on the day of the incident he was with his family at the block in Koki. He heard the noise and went up to see what happened. When he arrived, he saw a big crowd and he saw that the properties had already been destroyed. He did not go into any house and was just standing on the road when the police arrived. He did not run away when police came and only went away when police told the crowd to disperse. He denied being involved in the destruction and burning of the bulldozer. He said the time was 1.30 pm when he arrived at the scene.
    
26. Joel Dukduk is from Lungalunga village in North coast of Gazelle District but had settled at Mandres, Inland Baining LLG. He gave short evidence during examination in chief that he was a leader in his community but when he heard of the destruction to property, he did not go to the scene. He said he was at the beach. That was his very brief statement during examination in chief. During cross examination he admitted to gathering people before the incident happened but said he did not follow them to destroy the properties.
    
27. Accused Matara Enos is a 55-year-old man from Vunapalading number 2. He said when the incident happened, he was far away cutting sago leaves to build his house. After the incident he went with some people and saw that the police were already there. The time was between 1 and 2 pm. Police told everyone to disperse, and he went home. He said he lived 5 kilometres away from the project site. In cross examination he admitted that he was a leader in his community. He also admitted that he was not happy with the oil palm project that was taking place.
    
28. Ivan Kolis is 50 years old and is the father of Junior and Tondi Iavan as well as 3 other children. He resides at Lamarain ward, Koki. He said on the day of the incident he was with his 2 sons Tondi and Junior, cutting grass at their cocoa garden. After that they all went up to Koki block after all the property had been destroyed. Then he went down to the beach, met up with others and returned to the scene of destruction. When they arrived back, police were already there. They were instructed by police to go home. He did not call the names of those he met at the beach and returned with to the scene of destruction.
    
29. Ivan Kolis said Michael Kasaika was married to the sister of his wife. He said he did confront Michael but only after all the properties had been damaged. He admitted that he was a community leader but strongly denied that he was against the oil palm project.
    
30. William Guboro gave evidence last. He is also an older person of about 50 years, from Vunapalading village. He marked the distance from his house to the project site as 5 kilometres. That afternoon he saw thick black smoke coming from where the incident happened. He walked down to see what happened. When he arrived the police were already there. Police told them to go to their houses. He said there were many people there from 4 communities of Rangulit, Vumapalading # 2, Lamarain and Mandres.
    
31. In cross examination William Guboro admitted that he was previous ward member for Vunapalading # 2 but was now a simple cocoa farmer. He said he did not have any grievance with the oil palm project.
    

The Law

32. Section 444 (1) & (9) (f) reads:
    

“ MALICIOUS INJURIES IN GENERAL: PUNISHMENT IN SPECIAL CASES.

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

Penalty: If no other punishment is provided by this section–imprisonment for a term not exceeding two years.

(9) If the property was–

(a) a

(f) any thing in process of manufacture, an agricultural or manufacturing machine, a manufacturing implement or a machine or appliance used or intended to be used for performing any process connected with the preparation of any agricultural or pastoral produce, and it is destroyed; or

(g) any thing, machine, implement or appliance specified in Paragraph (f) and the damage is done with intent to destroy it or to make it useless; or

the offence is a crime, and the offender is liable to imprisonment for a term not exceeding seven years.”

33. The prosecution always bears the burden of proving any offence beyond a reasonable doubt. For willful damage under section 444 (1) (9) (f) there are four elements.
    1. The accused (a person)
    2. Unlawfully damaged property.
    3. Property includes farming and agricultural machinery.
    4. And the damage is done with intent to destroy it or make them useless.
       
34. The issue in this case is whether the state has proven beyond reasonable doubt that all seven accused took active part in the willful and unlawful damage or gave active moral support and are caught under section 7.
    
35. There is no dispute about the wilful damage caused to the properties mentioned. There is also little doubt that the machinery destroyed was intended to be used for performing any process connected with the preparation of any agricultural or pastoral produce. Coupled with that there is overwhelming evidence that the farm machines and property were damaged with the specific intention of destroying and rendering them useless.
    
36. Hence the only issue left is whether the state has proven beyond a reasonable doubt that the accused were properly identified as the persons who were involved in the damage.
    

Defence lawyers submissions

37. Ms Pulapula submitted that the state witnesses were unreliable and not worthy of belief. Referring to the state witnesses counsel submitted that their evidence should not be believed because their stories were made up, fabricated and not credible. Defence submitted that the two witnesses who saw Junior Ivan burn the dozer had made up the story. Apart from that all the witnesses had not seen any of the other 6 accused destroy any machine. It was submitted that there was a very big group of people there and those other people caused the damage, not the 7 accused.
    
38. Ms Pulapula argued that there was serious inconsistency in the state witness evidence. She referred to the case of State v Malihombu (2003) N236. Ms Pulapula also submitted that there was no evidence of ownership of property as no registration papers were tendered. She submitted further that as for the properties of Michael Kasaika and Bruno Niu, no quotations or such evidence was tendered to prove the value of the goods damaged.
    
39. Defence submitted that all accused gave truthful evidence and should be believed. They were not shaken during cross examination and are very credible and truthful. The court should accept that they all arrived at the scene well after all the properties were destroyed.
    

State submissions

40. Ms Batil for the state submitted that there was no dispute about the properties destroyed on 6^th August, 2018 and who owned those properties. She argued that except for Junior Ivan, there was no direct evidence as to each accused person actually destroying one or more of the properties listed on the indictment. However, they were participants by virtue of section 7(1) of the Criminal Code. They were part of the group that went and confronted the workers there. Ivan Kolis, William Guboro, Matara Enos and Joel Dukduk were leaders of the group. They went intentionally to stop the project. They approached violently and Ivan Kolis swore and threw a punch at Michael Kasaika while SIperen Pitau and Matara Enos shouted out “fight them, fight them”. Siperen was Jumping up and down with an iron rod. Then the group of men with them chased the workers armed with bush knives, iron spears, sticks and stones. There is no evidence that any of the accused persons tried to stop the other men.
    
41. The State argued that there was strong circumstantial evidence connecting the accused persons to the willful and unlawful damage of each of the properties described on the indictment. The accused went in an aggressive manner with others who attacked and chased the oil palm project workers. The Court was asked to draw inference that if these accused persons were willing to chase and injure the workers of the oil palm project because they had an issue with the project, they were also there to destroy the properties of the company responsible for the project at Koki. The accuse persons had a motive behind the destruction. They did not agree with the oil palm operations in their area and they wanted it to stop therefore they damaged the properties to make the company stop its operation.
    

Assessment of evidence

42. I find firstly that a substantial part of the states case has been established or confirmed by the defence itself through its consent to the tender of certain documentary evidence alluded to at the beginning of this judgment. The law regarding finding of facts and conclusions based on statements and other documents admitted into evidence with the consent of defence has been settled in our jurisdiction. In the case of Roland Tom & Kalen Kopen v State (2019) SC1833 the Supreme court decided that the trial Judge had not made an error of law when he relied on evidence tended by consent to convict two accused persons for conspiracy to defraud. The learned trial judge convicted them in circumstances where there was no direct evidence of an agreement between the two appellants, and where the complainant did not legally own the subject property. Furthermore, he did so in reliance of several statements admitted by consent.
    
43. In Tom’s case (supra) the Supreme Court said this; ... “Subject to well-defined exceptions, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue: The Queen v Baden-Clay (2016)258CLR308. It was permissible for the learned trial judge to rely on statements admitted into evidence by consent. There was no material irregularity in the conduct of the trial, nor any error of fact or law as a result: Fred Bukoya v The State (2007) SC887 distinguished”.
    
    
44. I find firstly that there is no dispute about the properties that were willfully damaged. According to the list admitted into evidence and marked as ‘state exhibit 36’ the following properties were damaged.
    
45. Company and Landowners’ Properties damaged and lost during riot at Lamus (06/08/18)
    

Company Properties

1. 1 unit brand new Kubota tractor (totally burned)

Cost – 80,430.00 Kina

2. 1 unit brand new trailer (totally burned)

Cost – 14,045.00 Kina

3. 1 unit brand new motorbike (totally burned)

Cost – 2830.00 Kina

4. 1 unit bulldozer (cable and seat)

Cost – 500.00 Kina

5. 200 lit of diesel (1 drum)

Cost – 548.00 Kina

6. 200 lit of Gylphosate (1 drum)

Cost – 1466.00 Kina

7. 4 unit spraying pump (Matabi)

Cost – 1028.24 Kina

8. 5 empty Jerry can (15 lit)

Cost – 40.00 Kina

9. 40 lit petrol

Cost – 138.40 Kina

Lamus landowners’ properties damaged and lost

1. Michael Kasaka’s house, kitchen and properties lost

Cost – 5000 Kina

2. Bruno Nue’s house and properties lost

Cost – 6000 Kina

46. This list of property was tendered with consent of defence. Counsel cannot now challenge that evidence by asking for registration papers of machines and quotations for property destroyed.
    
47. The photographs also tendered by consent and marked as state exhibits 31 to 34 show in graphic detail the properties that were damaged. The accused themselves confirmed during their sworn evidence that things like tractor, motorbike and dozer were damaged. I find therefore that the state has proven beyond reasonable doubt that the mentioned properties listed on the Indictment were all damaged.
    
48. The next question is who damaged those properties? I find as a fact that the properties were damaged by a large group of people. These people came from within the Lamarain ward of Koki and the surrounding areas of Vunapalading and Mandres. All seven accused live in that area.
    
49. I now refer to the statement of Leo Petau admitted into evidence by consent and marked as ‘state exhibit 35’. The witness is a 50 year old man from Kuatmikim village in Maprik, East Sepik, the same village as accused Siperen Pitau. He worked as a security guard and his uncontested evidence confirms or proves the following facts:
    
    1. The attack on the project site happened in the morning between 10 and 11 am
    2. Ivan Kolis led a group of men and he threw a punch at Michael Kasaika. Then the others started chasing the workers while throwing stones and attacking with knives.
    100. Siperen Pitau went armed with a knife.
    4. The same group of men who confronted and attacked them then went up and destroyed the machines and damaged houses belonging to Michael Kasaika and Bruno Niu and stole properties inside those houses.
       
50. It has been proven therefore that Ivan Kolis and Siperen Pitau were among the men who attacked Michael Kasaika and the oil palm workers at the worksite between 10 and 11 in the morning of 6^th August 2018. The next question is who were the others with them?
    
51. The main state witness who identified the accused persons is Gabriel Bun. He named the men who went with Ivan Kolis as Siperen Pitau himself, William Guboro, Matara Enos, Joel Dukduk, Junior Ivan and Tondy Ivan. I accept his evidence and find that the 5 accused were also there with Ivan Kolis and Siperen Pitau. All seven men were at the project site between 10 and 11 am.
    
52. Having established that I move on to what part each played during the confrontation and destruction of property. All state witnesses clearly said that the seven accused were not mere bystanders. They were all there in an aggressive manner. Witnesses said the following people were community leaders and in fact led the group. They are Ivan Kolis, Joel Dukduk, William Guboro and Metara Enos. I find that to be so.
    
53. Witnesses said Siperen Pitau was armed with a weapon and was calling out “fight them, fight them”. Accused Metara Enos was also heard shouting the same words “fight them, fight them”.
    
54. Witnesses Leo Kuba and Chris Michael both saw Junior Ivan pour petrol on a rag then light it with a match and set fire fire to the bulldozer. I accept their evidence as truthful evidence of identification. They recognised Junior Ivan as the main perpetrator who burnt the bull dozer.
    
55. I find that the remaining accused, Tondy Ivan, William Guboro and Joel Dukduk were not mere bystanders. They went with the group and gave their full support. The law on parties to offences is set out in s.7 (1)(2)(3) and (4) of the Criminal Code. For convenience, I set out the above section in full.
    
    1. When an offence is committed each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it:-
       

(a) every person who actually does the act or makes the omission that constitutes the offence, and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

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

2) In Subsection (1)(d), the person may be charged with –

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is –

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment, as if he had done the act or made the omission and may be charged with himself doing the act or making the omission".

56. To be caught under s.7 of the Code, the State must prove that the presence of an accused is willed or intended and not accidental. Sometimes, a person may be present on the scene purposely and where he had not offered any dissent to the commission of an offence, it has been said that such inaction may afford cogent evidence that an accused willfully encouraged the commission of an offence: R v Tovarula [1973] PNGLR 140.
    
57. The second aspect of the above is that to constitute an aider or abettor, some active and physical words or action with the intention to instigate a principal or principals. In Porewa Wani v The State [1979] PNGLR 593 the Supreme Court said at 597:

"It is well established that mere presence at the scene of a crime is not enough to constitute aiding. However, presence and willful encouragement are enough.”

I find on the evidence that all seven accused aided and abetted each other and gave moral support to each other in their joint effort to stop the oil palm project.

Property

58. Defence counsel argued that there was no proof of who owned the machines that were burnt and also the value of properties lost by Michael Kasaiga and Bruno Niu. Ms Batil submitted briefly that ownership of property is not an element of the offense under section 444 (1). I would agree with state counsel in that regard. Parliament intentionally left out the wording “property belonging to a person”. The section merely says “property”
    
59. Property by definition means it is something belonging to someone or that a person has a claim of right to it, whether legal or equitable. In the case of Tom v State (supra), the supreme court said... “It was not necessary in the present case to establish that the complainant owned the property the subject of the conspiracy as an essential element of the offence. Proof that the complainant had a right or interest in the property which was capable of being prejudiced either by actual loss or by being put at risk was sufficient.”
    
60. The court in Toms case said further In respect to the sixth element referred to in Potape (supra), “property belonging to that other person”, a reading of s. 407(1)(b) of the Criminal Code does not reveal that the subject property must “belong”. Notwithstanding that statement of the sixth element by the Supreme Court in that case, it is important to make clear in general terms, in our view, that conspiracy to defraud does not require proof of ownership, or even of property as such, as essential elements of the offence.”
    
61. I therefore reject the submissions made by defence counsel. Ownership of property is not an element of the offence under section 444 of the Code. It is not necessary in willful damage cases for the prosecution to prove that the property was owned by a specified person.
    
62. I find that all 7 accused were active participants in this crime. They all went to stop the project at Koki block. They are all responsible for the damage and destruction that happened. Those who did not physically cause the damage are equally liable as they gave encouragement and support to those who actually damaged the property, like Junior Ivan.
    
63. I find all the State witnesses to be credible and reliable. Their evidence was not damaged at all during cross examination. There was no suggestion made to any of them about having any sort of motive to give false evidence. In fact, the witnesses did not evade any of the questions put to them in cross examination.
    
64. I was not impressed with the seven accused sworn evidence. They all appeared to have rehearsed their story and did in fact all say the same thing in evidence. I prefer the evidence of the state witnesses.
    

65. Having assessed all the evidence, I accept as truthful the evidence of all the state witnesses. I reject the evidence all seven accused. I find all seven accused guilty and convict each of them.

________________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Accused