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State v Mekorie [2012] PGNC 92; N4744 (16 July 2012)

N4744

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 1634 OF 2006, 104-106 OF 2007 & 569 OF 2010

THE STATE

V

KORAK MEKORIE, TASSIE MEKORIE, ALOIS GORI,
KERRY NENGOL & JOHN TUKA

Kimbe: Cannings J
2012: 4, 5, 6, 9, 10, 11, 12, 16 July

CRIMINAL LAW – trial – break and enter, arson offences – Criminal Code, Sections 398(a)(i), 436(a) – mob violence in urban setting, dwelling houses, shops and other buildings broken into, entered and crimes committed therein; setting fire to buildings – commission of 14 offences – whether any of the accused involved: whether any of the accused actually committed any of the offences or aided or assisted others who committed the offences or counselled others to commit them: Criminal Code, Section 7 – competing evidence – credibility of evidence.

Five accused were charged with six counts of breaking and entering buildings and committing crimes therein and eight counts of arson arising from mob violence in the early morning in which various trade stores and other buildings were broken into and entered and property stolen from within them and dwelling houses and other buildings were set on fire. A similar type of incident had taken place the previous afternoon. The State's case was that each of the accused was involved in the violence by either committing the acts that constituted the offences or aiding or assisting those who actually committed the offences or counselling them to do so. It was undisputed that such an incident occurred and that 14 offences as described in the indictments were committed. The question was whether any of the accused was involved. There was direct evidence from several State witnesses as to involvement of each of the accused. Each of the accused gave evidence of non-involvement.

Held:

(1) The 1st accused was convicted as there was strong, independent evidence that he was a ringleader of similar violence in an incident that took place the previous day, credible direct evidence of active involvement in the incident at the centre of the indictments and circumstantial evidence supporting his involvement. His evidence that he only came on to the scene after the violence had subsided was not credible. He did acts for the purpose of aiding others to commit the 14 offences and was deemed under Sections 7(1)(b) and (c) of the Criminal Code to have taken part in committing those offences and to be guilty of them.

(2) The 2nd accused was convicted as there was strong, independent evidence that he was involved in similar violence in an incident that took place the previous day, credible direct evidence of active involvement in the incident at the centre of the indictments and circumstantial evidence supporting his involvement. His alibi was not credible. He did acts for the purpose of aiding others to commit the 14 offences and was deemed under Sections 7(1)(b) and (c) of the Criminal Code to have taken part in committing those offences and to be guilty of them.

(3) The 3rd, 4th and 5th accused were acquitted as there was strong, independent evidence that each was assisting the police in quelling the violence in the previous day's incident, which shed doubt on the veracity of the direct evidence as to their involvement in the incident at the centre of the indictments. Further, though each was present, there was no independent evidence of their aiding or assisting those who actually committed the offences or counselling them to do so. Their evidence of non-involvement was credible and was accepted.

(4) Accordingly the 1st and 2nd accused were each found guilty of 14 offences as charged; the 3rd, 4th and 5th accused were each found not guilty of all charges.

Cases cited

The following cases are cited in the judgment:

Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State (2002) SC698
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No 2) [1983] PNGLR 318

TRIAL

This was the trial of five accused each charged with six counts of breaking and entering buildings and committing crimes therein and eight counts of arson.

Counsel

F K Popeu, for the State
D Kari, for the accused

16 July, 2012

1. CANNINGS J: Each of the five accused is charged with six counts of breaking and entering buildings and committing crimes therein and eight counts of arson arising from mob violence in the early morning of Monday 4 September 2006 at the suburb of Section 10, Kimbe. Three trade stores and other buildings were broken into and entered, and property stolen from within, and dwelling houses and other buildings were set on fire. The State's case was that each of the accused was involved in the violence by either committing the acts that constituted the offences or aiding or assisting those who actually committed the offences or counselling them to do so. It is undisputed that such an incident occurred and that 14 offences as described in the two indictments that were presented to the court were committed. The question is whether any of the accused was involved. There was direct evidence from several State witnesses as to the involvement of each of the accused. Each of the accused gave evidence of non-involvement.

UNDISPUTED FACTS

2. A number of undisputed facts have emerged from the evidence:

• The events of Monday 4 September were sparked by an incident that occurred on the morning of the previous day. A nephew (whose name is John Dau, aka John Roman) of the 5th accused, John Tuka, was assaulted by a group of five Engan youths at the Section 10 shops.
  
• That assault occurred because John Dau was drunk and had tried to steal cigarettes from a female Engan street vendor.
  
• John Tuka is from Talasea and is a brother of the first and second accused and was at the time the Ward 4 member in the Kimbe Urban Local-level Government, which includes Section 10, and the deputy mayor of Kimbe. He was a big man in the local community. He lived nearby, about 140 metres from the Section 10 shops, at the Gorgor Guesthouse.
  
• Soon after the assault on John Dau, around 8.45 am, a group of local youths ran to the nearby Life Baptist Church where John Tuka was about to attend the Sunday service. The youths alerted him to what had happened and he told them that he would come down to the shops after the service and sort out the problem.
  
• John Tuka arrived at the shops around midday and walked to an area behind the shops occupied mainly by people from Enga Province and confronted a prominent local Engan leader, David Yapati, who lived there at the time and ran a number of businesses including a liquor outlet. David Yapati was to become one of the three principal victims of the mob violence that occurred the next morning. John Tuka and David Yapati had a heated conversation and the police were called.
  
• By mid Sunday afternoon a crowd of 100 to 200 people had been attracted by the simmering tension to the Section 10 shops. The police had arrived. Two distinct groups were in conflict, which in the early stage was verbal, not physical. On the one hand, John Tuka, who was supported by two of his ward committee members, the 3rd accused Alois Gori and the 4th accused Kerry Nengol, and local Section 10 youths who had been joined by youths from nearby suburbs, Gigo and Laleki. On the other hand, members of the local Engan community, led by David Yapati.
  
• John Tuka was demanding that the Engans hand over the five youths allegedly responsible for the assault on his nephew, so that they could be put into police custody. David Yapati was saying that he did not know which Engans were responsible and that it was a small problem that could be sorted out by payment of compensation.
  
• The Engan community raised K400.00 to K500.00 cash and two cartons of beer and offered it to John Tuka as compensation so that peace could be restored. John Tuka rejected the offer and insisted that the youths responsible for the assault on his nephew (who was badly wounded but not suffering life threatening injuries and taken to hospital) should be handed over.
  
• Snr Sgt Thomas Ombul of Kimbe police was called to the scene and assumed the role of peace envoy and negotiator between the two conflicting groups. The youths supporting John Tuka were behaving in a threatening manner and Snr Sgt Ombul addressed them from the veranda of a trade store and urged them to keep the peace. He was assisted in his efforts by Alois Gori, Kerry Nengol and John Tuka.
  
• Despite Snr Sgt Ombul's best efforts, a flashpoint was reached and a group of rowdy youths who were supporting John Tuka rushed towards the Engan people and broke into and looted an Engan trade store. The Engans were outnumbered and ran into the bush at the back of the shops and towards a small mountainside that leads to the Section 10 Bush Camp settlement.
  
• One of the five Engan suspects was brought out, placed in police custody and then taken to Kimbe police lock-up. David Yapati said that the other four would be handed over later. This had the effect of easing the tension. By then it was 6.00 pm. It was getting dark. People departed the scene. There was no further violence that day.
  
• At 6.00 am the next day, Monday 4 September, a mob of about 100 youths, largely the same group involved in the previous afternoon's incident, converged on the Section 10 shops and the area at the rear that is the centre of the Engan community, intent on staging a surprise raid on the Engan community. They were armed with assorted weapons and missiles including bushknives, sticks and stones and homemade guns.
  
• The raid took place over a period of more than an hour, during which time three Engan men (David Yapati, David Imig (now deceased) and Leo Nambis) became victims of the following offences:
  
  1. break and enter of trade store of David Yapati and stealing committed in it contrary to Criminal Code, Section 398(a)(i);
  2. break and enter of poultry house store of David Yapati and stealing committed in it contrary to Criminal Code, Section 398(a)(i);
  3. break and enter of snooker house of David Yapati and stealing committed in it contrary to Criminal Code, Section 398(a)(i);
  4. break and enter of trade store of David Imig and stealing committed in it contrary to Criminal Code, Section 398(a)(i);
  5. break and enter of poultry house of David Imig and stealing committed in it contrary to Criminal Code, Section 398(a)(i);
  6. break and enter of trade store of Leo Nambis and stealing committed in it contrary to Criminal Code, Section 398(a)(i);
  7. arson constituted by wilfully and unlawfully setting fire to dwelling house of David Yapati contrary to Criminal Code, Section 436(a);
  8. arson constituted by wilfully and unlawfully setting fire to trade store of David Yapati contrary to Criminal Code, Section 436(a);
  9. arson constituted by wilfully and unlawfully setting fire to poultry house of David Yapati contrary to Criminal Code, Section 436(a);
  10. arson constituted by wilfully and unlawfully setting fire to snooker house of David Yapati contrary to Criminal Code, Section 436(a);
  11. arson constituted by wilfully and unlawfully setting fire to dwelling house of David Imig contrary to Criminal Code, Section 436(a);
  12. arson constituted by wilfully and unlawfully setting fire to poultry house of David Imig contrary to Criminal Code, Section 436(a);
  13. arson constituted by wilfully and unlawfully setting fire to trade store of David Imig contrary to Criminal Code, Section 436(a); and
  14. arson constituted by wilfully and unlawfully setting fire to trade store of Leo Nambis contrary to Criminal Code, Section 436(a).
      
• A number of police officers attended the scene including Snr Sgt Ombul and the then Provincial Police Commander, Sylvester Euga.
  
• The Engans were heavily outnumbered and retreated up the mountainside to Bush Camp, where Leo Nambis's store was located.
  

EVIDENCE FOR THE STATE

3. Four witnesses gave evidence for the State, as summarised in the following table.

EVIDENCE FOR THE DEFENCE

4. Eight witnesses gave evidence for the defence, as summarised in the following table.

SITE VISIT

5. After the close of evidence the court party first went to the Section 10 shops and walked the length of the shops (60 metres) and around to the rear area where Engan people were living at the time. We observed on the Talasea side of the shops the Engan trade store that was looted on Sunday afternoon and observed, 40 metres away, David Yapati's area (now deserted) and David Imig's area. We went back to the front of the shops and Snr Sgt Ombul pointed out where he had parked his car on Monday morning, a point 200 metres from the shops in the direction of town. We walked to Gorgor Guesthouse and Alois Gori's house, then drove to Bush Camp and observed Leo Nambis's area. We walked down along a bush track down the mountainside to the Kimbe Primary School playing field, and then back up the mountain. We went to and inside the house occupied in 2006 by Simon Seren.

THE CRITICAL QUESTION: INVOLVEMENT

6. The question of involvement by any one or more of the accused in commission of the offences on the morning of Monday 4 September 2006 will now be considered.

1ST ACCUSED, KORAK MEKORIE

7. Having weighed the competing evidence and the submissions of counsel I have concluded that the State has proven beyond reasonable doubt that Korak Mekorie was involved in the violence on 4 September 2006, for the following reasons:

(a) He was a ringleader of the Sunday afternoon incident, which led to the looting of an Engan trade store on Sunday and then to the violence on Monday morning. The independent evidence of Snr Sgt Ombul is reliable and credible. No concerted attempt was made by the defence to undermine Snr Sgt Ombul's status as an independent witness, without affiliation to either the Tuka group or the Engan group. Snr Sgt Ombul's evidence was that the accused had a prominent role in what happened on Sunday. Evidence of his role in Sunday's incident was corroborated by other State witnesses. Given the prominence of that role, and the evidence of Snr Const Mathew Neomb (in a witness statement admitted into evidence without objection) of the accused being apprehended by police on Monday night, along with a number of other suspects, with offensive weapons in their possession, this is circumstantial evidence of his involvement in Monday's incident; and it is very difficult, for that reason alone, to believe that he was not involved in Monday's incident.

(b) There was direct, credible evidence by State witnesses Nos 1 to 3 of his involvement in Monday morning's incident.

(c) The fact that Snr Sgt Ombul did not see the accused on Monday morning does not defeat the reasonable inference arising from the accused's conduct the previous afternoon that he was actively involved in Monday morning's incident.

(d) The accused's evidence that he was at his home at Laleki early on Monday morning and only went to Section 10 after hearing of the incident and by the time he got there things had quietened down is rejected. The accused was not a convincing witness and his evidence, which amounted to an alibi, was uncorroborated. Though there is not sufficient evidence on which to base a finding that he actually committed the acts constituting the elements of the 14 offences, there is sufficient evidence of his involvement in the mob violence of Monday morning to warrant conviction of all offences under Section 7(1) (principal offenders) of the Criminal Code, which states:

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

(e) I am satisfied beyond reasonable doubt that the accused did acts for the purpose of aiding other youths to commit the 14 offences and aided those youths in committing those offences and is deemed under Sections 7(1)(b) and (c) of the Criminal Code to have taken part in committing those offences and to be guilty of them.

2ND ACCUSED, TASSIE MEKORIE

8. Having weighed the competing evidence and the submissions of counsel I have concluded that the State has proven beyond reasonable doubt that Tassie Mekorie was actively involved in the violence on 4 September 2006, for the following reasons:

(a) He was assisting his brother, Korak Mekorie, who was a ringleader of the Sunday afternoon incident, which led to the looting of an Engan trade store and then to the violence on Monday morning. The independent evidence of Snr Sgt Ombul is reliable and credible and shows that the accused had a prominent role in what happened on Sunday. Evidence of his role in Sunday's incident was corroborated by other State witnesses. Given the prominence of that role this is circumstantial evidence of his involvement in Monday's incident; and it is very difficult, for that reason alone, to believe that he was not involved in Monday's incident.

(b) There was direct, credible evidence of his involvement in Monday incident.

(c) The fact that Snr Sgt Ombul did not see the accused on Monday morning does not defeat the reasonable inference arising from the accused's conduct the previous afternoon that he was actively involved in Monday morning's incident.

(d) I have considered the alibi evidence of the accused and his father, which put him at Sapuri on both Sunday and Monday, in light of the leading Supreme Court case of John Jaminan v The State (No 2) [1983] PNGLR 318. I agree with Mr Popeu's submission that it is not of high quality. The accused's father was not a convincing witness and gave the impression that he was just giving evidence that he thought was necessary to see his son escape conviction. The accused's demeanour in the witness box was not impressive. The alibi is rejected.

(e) There was strong identification evidence particularly by Snr Sgt Ombul as to the accused's presence and active role in the events of Sunday afternoon. He was identified by other State witnesses as being present and taking an active role on both Sunday afternoon and Monday morning. I have considered the principles on identification evidence in the leading Supreme Court cases of John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698. I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly. If the quality of the identification evidence is good the matter should proceed to conviction. However, if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification. I remind myself there is always the possibility that an honest witness can be mistaken and still be a convincing witness. I am satisfied that the identification evidence regarding the accused was honest and accurate. The State witnesses knew both Korak and Tassie Mekorie as they are brothers of John Tuka. Though both Sunday afternoon's and Monday morning's incidents were violent and the State witnesses were frightened and taking cover, I am satisfied that they had the opportunity to make a positive identification.

(f) I am satisfied beyond reasonable doubt that the accused did acts for the purpose of aiding other youths to commit the 14 offences and aided those youths in committing those offences and is deemed under Sections 7(1)(b) and (c) of the Criminal Code to have taken part in committing those offences and to be guilty of them.

3RD ACCUSED, ALOIS GORI, 4TH ACCUSED KERRY NENGOL & 5TH ACCUSED, JOHN TUKA

9. Having weighed the competing evidence and the submissions of counsel I have concluded that the State has not proven beyond reasonable doubt that any of these accused was actively involved in the violence on 4 September 2006, for the following reasons:

(a) There was strong, independent evidence provided by Snr Sgt Ombul that each of the accused was assisting the police in quelling the violence on Sunday afternoon, consistent with the role that would be expected to be played by the local ward councillor and his ward committee members and inconsistent with the proposition that they would overnight turn into men bent on violence. John Tuka's statement that 'something silly' might happen if the five Engan youths were not handed over is capable of different interpretations (on the one hand, perhaps it was a threat, on the other hand, it was just a realistic assessment of the mood of the mob). As defence counsel Mr Kari put it, the three of them would have had to have a 'Dr Jekyll and Mr Hyde' persona; and this sheds doubt on the veracity of the direct evidence as to their involvement in the incident at the centre of the indictments.

(b) The violence at both Sunday afternoon's and Monday morning's incidents was carried out by youths. These accused are not youths or young men.

(c) Though there was direct evidence by State witnesses Nos 1 to 3 of their involvement on Monday morning, that evidence is too difficult to believe and is rejected as not credible. In particular, the evidence of Henry Yapen of being able to see what was happening from his position inside Simon Seren's house is not credible, in light of the court's own assessment, formed during the site visit, of the poor line of sight from that position.

(d) The evidence of each of the accused as to how they came to know of what was happening on Monday morning was credible and convincing.

(e) Though each was present on Monday morning, there is no independent evidence of their aiding or assisting those who actually committed the offences or counselling them to do so. With the exception of his evidence of seeing John Tuka drop off a load of aggressive youths at the Bush Camp junction, Snr Sgt Ombul did not see any of the accused doing anything that could be regarded as aiding, assisting or counselling others to commit the violence. Snr Sgt Ombul was an impressive and reliable witness but the court viewed the distance between where he was standing and the Bush Camp junction (say, 200 metres) and when it is considered that in 2006 there were rain trees in front of the shops that are likely to have interrupted a clear line of sight and that there were a lot of people at the front of the shops, this part of his evidence has been treated with caution, and the benefit of the doubt given to the accused. The fact that Snr Sgt Ombul's opinion is that John Tuka could have done more to stop the violence is inconsequential. John Tuka gave an adequate explanation for the difficulties he was facing in bringing the situation under control.

(f) Each of the accused was an impressive witness and their evidence of non-involvement in the manner contended for by the State was credible and was accepted.

VERDICTS

10. The following verdicts are entered in relation to the five accused who have each been indicted on six counts of breaking and entering buildings and committing crimes therein under Section 398(a)(i) of the Criminal Code and eight counts of arson under Section 436(a) of the Criminal Code:

Verdicts accordingly.
____________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused