N11732
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR 811 OF 2025

THE STATE

AND 
WINNIE NAMANE

GOROKA: WAWUN-KUVI J       
18 & 22 OCTOBER 2025; 5 MARCH 2026              

CRIMINAL PRACTICE AND PROCEDURE –TRIAL-WILFUL DAMAGE, s 444(1) Criminal Code- Aiders and Abetters, s 7(1)(c) of the Criminal Code- Prosecution of Unlawful Purpose, s8 of the Criminal Code- Whether the accused aided and abetted the wilful damage- Whether the accused procured or counselled others to commit the offence- Whether there was a common intention to prosecute an unlawful purpose and the damage to the catchment was a probable consequence?

Cases cited
State v Belami & Haro [2020] N8613

Counsel
S Joseph for the State
V Move for the accused
					
VERDICT

1.	WAWUN-KUVI J: The accused has been charged with one count of Wilful Damage under s 444(1) of the Criminal Code. The charge reads:
“Winnie Gordon Namane of Aratiufa village, Goroka, Eastern Highlands Province stands charged that he at Aratiufa Village, Goroka in Papua New Guinea on 19th December 2024, wilfully and unlawfully destroyed the Goroka Town water supply intake catchment cement wall, the property of Goroka Urban Local Level Government.”

2.	It was alleged that the accused is the chairman of the Anupa-Golohazuha Incorporated Land Group (ILG) from Aratiufa Village, Goroka. That on 19 December 2024 between 8.00 am and 10.00 am he and members of his ILG mobilised and went to the Goroka town catchment cement and diverted the water flow into the intake which caused low water flow into Goroka town.

3.	The State bears the burden of proving its case beyond a reasonable doubt and disproving any defences properly raised on the evidence also beyond a reasonable doubt.

4.	The State invoked s 7(1)(c) and(d) of the Criminal Code in that not only did he aid the others, but he also counselled or procured others to cause the damage.

5.	Section 7(1)(c) and (d) of the Code reads:

7. Principal Officers.
(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)......
	(b).....
	(c) every person who aids another person in committing the offence; and
	(d) any person who counsels or procures any other person to commit the offence

6.	For the purposes of s7(1)(d), subsections 2, 3 and 4 are relevant. They read:

“(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 a 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.”

7.	The terms of s 7 are qualified by s 8 of the Code which reads:

“8. OFFENCES COMMITTED IN PROSECUTION OF COMMON PURPOSE.
Where–
(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and
(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,
each of them shall be deemed to have committed the offence.”

8.	Additionally, s 9 provides that:

“9. MODE OF EXECUTION IMMATERIAL.
(1) Where–
(a) a person counsels another to commit an offence; and
(b) an offence is actually committed under that counsel by the person to whom it is given,
it is immaterial whether–
(c) the offence actually committed is the same as that counselled or a different one; or
(d) the offence is committed in the way counselled, or in a different way,
if the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.
(2) The person who gave the counsel shall be deemed to have counselled the other person to commit the offence actually committed by him.”

9.	Under s 7(c) the accused is liable for the acts of his accomplices only if he was fully aware of the plan and was involved.

10.	This Court in State v Belami & Haro [2020] N8613 explained section 7(1)(c) in this way:

“124. For the purposes of s 7(1)(c) the State must first establish by evidence that is admissible against the accused that a crime has been committed by another person:  R v Tovarula [1973] PNGLR 140. The words do not require that the principal offender must be convicted before another may be found liable as a party to an offence: see R v Lopuszynski [1971] QWN 33. It is enough that the commission of an offence by someone is established in the case against the alleged accessory: Borg v R [1972] WAR 194.
125.      The State must also establish for the purposes of s. 7(1)(c) that the accused knew the essential facts constituting or making up the offence that is being committed or about to be committed, including where relevant the state of mind of the principal offender, and acted with intention to aid him: R v Turan (1952) N211; Tovarula (supra).
126.      It is not possible to be an aider through an act which unwittingly provides some assistance to the offender: Coney (1882) 8 QBD 534. To aid means that the person charged as a principle in the second degree “is in some way linked in purpose with the person actually committing the crime and by his words or conduct does something to bring about, or render more likely, the commission of the offence”: R v Tovarula applying R v Russell [1933] VR 59. 
127.      In addition to the intention to aid, there must be aiding in fact: R v Wendo [1963] PNGLR 217.”

11.	 To prove that the accused aided and abetted others under s 7(c) the State must prove beyond a reasonable doubt that (1) An offence was committed (2) the accused knew that the principal offenders intended to damage the water catchment and (3) that the accused intentionally encouraged or assisted the principal offender to commit the offence.

12.	The State’s allegation is that the accused also procured or encouraged his clans’ men to cause the damage to the catchment under s 7(1)(d).

13.	Again, I adopted the statement of law in State v Belami & Haro [2020](supra) on s 7(1)(d):

“132.      The term “counsel” is not defined in either the Criminal Code  or the Interpretation Act. The plain and ordinary meaning might be found in the context of the section, that is “urged” or “advised” or “solicited”:  as stated by Gibbs J in Stuart v The Queen (1976) 134 CLR 426; see also R v Oberbillig [1989] 1 Qd R 342 considering the equivalent provision in the Queensland Criminal Code.  On a charge of being a counsellor, it is not enough to show that the defendant knew that some illegal venture was intended. However, it is not necessary that knowledge of intention to commit a particular crime, which was in fact committed, should be shown. The prosecution must show that the defendant knew that an offence of the kind that was committed was intended and with that knowledge did something to help the offender commit it: Imiyo Wamela v The State [1982] PNGLR 269; Mark Nainas v The State (1998) SC598; Karani and Aimondi v The State (1997) SC540. 

133.      Similarly, to “procure” is “to obtain”, “to bring about”, according to the Oxford Learner’s Dictionary. In considering the equivalent of this provision in R v Adams [1998] QCA 64 the Queensland Court of Appeal said that procuring involves more than mere encouragement, and means “successful persuasion” to do something.   There must be a causal link between the procuring and the commission of the offence:  see Attorney-General’s Reference (No 1 of 1975) [1975] 2 All ER 684.”

14.	Section 9 extends criminal liability to unwilled acts by the accused.

15.	It is also necessary to brief discuss section 8 given the nature of the State’s case.

16.	 Section 8 extends to the prosecution of a plan which he is party to and the consequences thereof. That is the second offence is the probable consequence of the first. The test is objective. It is irrelevant whether the accused knew that it was a probable consequence. It is based on whether a reasonable person given the circumstances would expect the second offence to be a consequence. Say, if the plan was to commit armed robbery and during the robbery a person was killed, the accused would be guilty of the death of the person because a probable consequence of going armed to a robbery is that someone would be seriously injured or killed. Depending on the extent of each person’s involvement and intention, they can either be guilty of wilful murder, murder or manslaughter.

Application of the law to the facts

17.	The State’s case is circumstantial.

18.	The law on circumstantial evidence is settled. The State has the onus of proving that not only is the accused guilt a rationale inference but that it is the only rational inference: See Paulus Pawa v The State [1981] PNGLR 498 at 501 and State v Tom Morris [1981] PNGLR 493 at 495.

19.	 There is no evidence that the accused was physically at the scene or that he had led his ILG members to the scene. The issue to be decided is whether the cumulative effect of several items of circumstantial evidence is reasonably capable of supporting the required inference?

20.	The required inference being that the accused procured or counselled others to damage the water catchment or that he counselled or procured others to shut down the water into Goroka town and that consequently the water catchment was damaged?

21.	There is no dispute that the cement water catchment was damaged. There is no dispute that some of the accused clansmen damaged the catchment. 

22.	There is no evidence from the State that the accused was present at the scene. 

23.	The question to be determined is whether he directed his clansmen to damage the catchment or knew of their intention to damage the catchment and procured or encourage them to damage it?

24.	There is no dispute that the accused sent messages for a roundtable discussion on compensation. There is further no dispute that the discussion did not eventuate.

25.	The accused letters to the Goroka Urban Local Level Government indicate him seeking an audience to find an amicable solution to the water issue.

26.	The only text message indicating a threat to shutting down the water was on Friday 15 November. The damage to the catchment was on 19 December 2024. It was not a threat to damage the catchment but to only shut down water. The accused states that the ILG does not shut down water without prior notice considering that homes, hospitals and business houses in Goroka require water. 

27.	The next message was to the member of Goroka with photographs showing that men had damaged the catchment. The message said, “my clansmen have damaged the catchment”. He says the photographs were sent to him and he forwarded it to the member for Goroka. There is no evidence from the State proving that the accused took the photographs. 

28.	While these messages are suspicious, suspicion is not enough to sustain a conviction. As said, there is no evidence that the accused was present at the scene. He says that he was in Goroka, and his witness who was present at the scene observing men damaging the catchment, says that he was not at the scene. There is no evidence that he procured the men to damage the catchment or to even shut down the water that day. All his prior correspondences demonstrate him attempting peaceful and lawful resolutions. 

29.	Another reasonable inference which the State has not excluded is that the members of his clan and community being frustrated took it upon themselves to damage the catchment. The uncontradicted evidence is that the accused lives in Goroka town. 

30.	Considering the foregoing, I find that the State has not discharged its burden.

31.	A verdict of Not Guilty returned.

Orders

32.	The Orders of the Court are as follows:

1.	The accused having been charged with one count of Wilful Damage under s 444(1) of the Criminal Code is found not guilty.
2.	He is acquitted and discharged pursuant to s 591 of the Criminal Code.
3.	His bail and any paid sureties are refunded.
4.	The CR file is closed.

Lawyer for the State: Acting Public Prosecutor
Lawyer for the accused: Public Solicitor