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State v Kumuno [2016] PGNC 53; N6243 (17 March 2016)

N6243

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No: 342/343/513 of 2013

THE STATE

V

TEXPO KUMUNO
Accused

RAMBI KONO
Accused

ENOCK KOM
Accused

Kundiawa: Liosi, AJ
2016: 17th March

CRIMINAL LAW – Trial Practice and Procedure – No-case Submission- Wilful and Unlawful damage of property s444(1)(2) Criminal Code Act- Inconsistencies in Evidence of State Witnesses- Raises Issue of Credibility – No evidence Witness knew Accused before offence- Importance of – Onus on State to establish such –

CRIMINAL LAW – Trial – Evidence – Criminal Liability – Aiding and abetting – Presence and Wilful Encouragement – What constitutes aiding and abetting – Criminal Code s.7 1(a) (b) and (c). – No case Submission upheld.

Held:
1. Major contradictions in State Witness Evidence raises issue of Credibility and possibility of conclusion that evidence maybe fabricated.
2. There is No Evidence suggesting that the Witness knew the accused before the offence.
3. Onus on State to establish Witnesses knew accused before offence.
4. Even if State Witnesses knew the accused before the offence, There is no evidence of wilful and unlawful damage to the vehicle by the accused.
5. Mere presence on the scene where a crime is committed in itself does not constitute or is not sufficient to make a person an aider and abettor. Further, the accused's presence on the scene of the crime alone is not sufficient to give encouragement to commit crime.
6. On the Evidence the State has failed to prove the allegations.
7. No Case Submission is upheld.
8. Accused are discharged.

Cases Cited:

Agiru Aleni v. Paul Tohian PNGLR 37
Porewa Wani v. The State [1997] PNGLR 299.
State v. Paul Kundi Rape [1976] PNGLR 96
State v. Omba N4130 (23rd August 2010)
State v. Thomas Lui 2004 Vol.1 PNGLR 299.

Counsel:
Mr. Tengdui, for the State
Mr. Yawip, for the Accused

17th March, 2016

1. LIOSI AJ: Indictment. The three co-accused were charged that they on the 25th June 2013 at Emegi Village, Chuave in PNG wilfully and unlawfully damaged property a Toyota Land Cruiser Reg. No HAL 752, the property of KANDA RENT A CAR valued at K44, 457.77 pursuant to s. 444 (1) (2) of the Criminal Code Act.

Facts for Arraignment.

2. It is alleged that on Monday the 25th of June 2012 at about midnight, the three accused were at Emegi Chuave. At the time the accused were driving in a Toyota Land Cruiser utility maroon in colour with other people at the back. They were following another vehicle, a Toyota Land Cruiser Troop Carrier, white in colour belonging to Kanda Hire Cars and rented out to Jim Nomane, the sitting member of parliament for Chuave Open electorate at the time.

3. It is alleged that at the time the three accused, who were supporters of an intending candidate, Wera Mori, with their men followed the other vehicle which was driven by supporters of Jim Nomane. When the accused caught up with the other vehicle at Emegi, they stopped them and started assaulting them. The occupants of the white Land Cruiser, fearing for their lives abandoned the vehicle and escaped into the nearby bushes.

4. The accused and their men then proceeded to destroy the hired vehicle. The accused and their men used bush knives and other implements to damage the vehicle, the cost of which damage is valued or assessed at K44, 457.77.

5. State alleges that the accused actions of assaulting the occupants of the white Land Cruiser and causing extensive damage to the vehicle were unlawful.

6. It further invokes ss7 & 8 of the Code alleging that the three accused and their men assaulted the complainants and damaged the vehicle in prosecution of a common purpose.

The Plea.

7. The three co-accused have pleaded not guilty to the charge of wilfully and unlawfully damaging the vehicle.

8. The Evidence.

The State called two Witnesses.

(a) Fenech Kom

The witness gave sworn evidence in Pidgin. This witness was the driver of the vehicle that was allegedly damaged by the three accused. He states he drove back from Goroka after spending some time at Goroka at former member Jim Nomane's residence. He drove to Kepai village in Chuave in ward 1 and 2 Local Level Government area. He dropped a family at Ward one then drove off and came to the top and made a second stop. A maroon Land Cruiser open back allegedly driven by the Accused Texpo Kumuno and the two other accused were inside the vehicle with people at the back. That was about 12:30 - 1 am midnight.

The maroon Vehicle was driven up and stopped on the left hand side. It was middle of the night and it was very dark. He never recognised anybody. It parked some five meters away when they smashed the vehicle. He said he was driving. He jumped out and ran away. He was worried about his life. He did not know where the other witness was who was the offsider, Philip Ove.

There was no cross examination by Defence counsel.

(b) Philip Steven

This witness was the crew boy of the Toyota ten Seater White Land Cruiser that was allegedly damaged by the three accused. He was with the driver Fenech Kom when chased by a Maroon Land Cruiser open back EDJ 245. The driver Texpo Kumuno was shouting out to them to stop so they stopped outside Emegi Village near Kepai. Texpo Kumuno drove the vehicle and parked in front of them blocking their way. The three accused got out and approached them. Enoch Kom then said "Enough, we spent million kina on election". Enoch Kom said burn the Vehicle and we buy new one for them. They jumped out and attacked them. The car was damaged, so he and Fenech jumped out from the driver's side and ran away.

When asked, he said the three accused followed them in the Maroon open back Land Cruiser Registration Number EDJ 245. Texpo Kumuno was driving with two of the co-accused all sitting at the front with him. There were plenty people at the back. He says he knows Texpo Kumuno as they speak the same language. He identified Texpo Kumuno in court and the two other accused in the courtroom.

When asked whether he saw anyone of them smash the car or try to stop others from damaging the vehicle, he said No.

On cross examination he said the accused were not from Emegi village and the vehicle was not damaged by them. He said Texpo Kumuno stood outside his side of the door but denied being assaulted by him. But he says he escaped from the driver's side. He denies them being assaulted by the accused but maintains they damaged the vehicle.

In cross examination when questioned on the lighting he maintained there was moonlight and the car light was on high beam so he recognised them. When told of Enoch Kom's evidence that it was dark and he couldn't see anybody, he said he's the driver, he parked the vehicle with light on high beam and he saw them. There was also moonlight. Further when asked where Enoch Kom was when he said "burn the vehicle" he said he was the offsider and he was on his side. When asked how many people were there, he said there were plenty people. When asked to indicate whether there were 20, 30 people, he said there were plenty.

Upon being questioned by the Court whether he knew the three accused before the Incident, he said "Yes" because they speak the same language. When asked again by the Court how he knew the accused, he said "we speak the same language"

No Case Submission.

9. The State then closed its case. Following the Closure of the State case the Defence made a No Case Submission under the Second Limb of Paul Kundi Rape.

10. The Issues Raised by the Evidence involved

1. Identification of the accused at the scene of the crime.
2. Whether the accused wilfully and unlawfully damaged the vehicle.

Submission by Defence Counsel.

11. The three accused are charged under s.444 (1) (2) of the Criminal Code chp: 262. The State is required to prove identity of the accused and that they wilfully and unlawfully damaged the vehicle. The state evidence was both oral and by exhibits. The exhibits contained the pidgin and English versions of the Records of Interview of Texpo Kumuno, Rambi Kono and Enoch Kom. There is also the panel report and photographs of the damaged vehicle.

12. Defence has made a No Case Submission pursuant to the second Limb of the principal in the case of Paul Kundi Rape. The Defence submits that under the first limb the court can stop the trial as a matter of Law as there is no evidence at all. Under the second Limb there is evidence but the evidence is so unreliable that the court can use its discretion to stop the case from proceeding any further. The defence also highlighted major inconsistencies and contradictions in the evidence of the two state witnesses. This include;-

(i) How the vehicle was parked.

Fenech Kom says that both vehicles were parked facing the same direction. Philip Steven says the accused parked the vehicle across in front of them blocking their way.

(ii) Lighting

Fenech Kom says it was very dark and he could not see anybody. Philip Steven Says there was moonlight and their vehicle had its lights on high beam so he could see the three accused.

(iii) Fenech Kom did not hear anything being said by Enoch Kom about burning the vehicle. Philip Steven on the other hand says he heard Enoch Kom give directions for the vehicle to be burnt.

(iv) Philip Steven says he knows the three accused because they speak the same language. Fenech Kom never said anything about knowing the three accused.

13. The defence further submits that the current evidence as it stands will remain. The calling of the accused to give evidence will not improve the state case. In the circumstances the court must exercise its discretion to stop the case.

Submission by the State.

14. The State submits the application is made by the Defence on the second limb of Paul Kundi Rape. The State says there is evidence of assault in the Record of Interview, there is evidence of assault at the scene of the crime, and there is evidence of damage to the vehicle. Further there is evidence of identification of the accused at the time of the damage of the vehicle. As the case stands the State has produced evidence of the involvement of the three accused person. The State further submits that there shouldn't be any weighing of the evidence and the court should ask the accused to make a reply to the charge.

The Law on No Case Submission.

15. The Law is clearly set out in the cases of Paul Kundi Rape [1976] PNGLR 96 and Roka Pep 1983 (PNGLR 287.

"A no Case submission arises at the end of the prosecution case when all the prosecution evidence has been presented to the court and the Defence Counsel submits that the evidence is such that there is no evidence in proof of anyone or all of the elements of the offence charged and there is no real weighing of the evidence required. This case also refers to the situation where the court considers that the evidence is so insufficient that the accused ought not to be called upon to answer it. (See State v. Paul Kundi Rape supra)

16. The General principle is that the court should not weigh up the evidence until whole of the evidence is in. However if the state case is clearly hopeless or is intrinsically very weak or has collapsed badly then there is a discretion for the trial Judge to stop the case even though there is some evidence adduced by the State in support of the elements charged. This discretion may be exercised where there is some evidence but the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.

17. Thus in the first limb of the principle the court as a matter of law can stop the case where there is no evidence at all.

18. Under the second limb, there may be some evidence but given the nature and weight of the evidence the court has discretion to stop the Case.

Analysis of Evidence.

19. The State herein is required to prove identity of the accused and that they wilfully and unlawfully damaged the vehicle. The State evidence was oral as well as through court exhibits which were tendered in by consent. They included the Records of Interview of the three accused, The Panel Report and Photographs of the damaged vehicle.

20. The Records of Interview contained denials. Consequently the only evidence left is that of the two State witnesses Fenech Kom and Philip Steven.

21. The evidence of both this witnesses contradict each other so much so that the court had to decide which witness it should believe. The Court has consequently analysed the evidence of the two witnesses critically.

22. The contrasting contradictions are;

1. How the accused vehicle was parked. Fenech Kom says it was parked five meters away facing same direction. Philip Steven says, they parked across in front of them blocking them off.
2. Lighting – Fenech Kom says it was very dark and he could not see anybody. Philip says there was moonlight and vehicle lights were on high beam so he was able to see the three accused.
3. Fenech Kom never identified the three accused at the scene of the Accident. Philip Steven identified the three accused from when they were following them. He says they were all seated at the front of the Maroon Land Cruiser that one of the accused Texpo Kumono was driving.
4. Although they were together in the vehicle, Fenech Kom never heard Enoch Kom giving orders to burn the vehicle or saying we spent million Kina on the election, burn vehicle we will buy new one for them. Philip Steven says he heard him.
5. When Philip Steven was asked how he knew Texpo Kumuno; he said they speak the same language.

23. The State submitted that there was evidence of assault in the Record of Interview as well as evidence of the accused presence at the scene of the crime. There is also evidence of damage to the vehicle. As it stands the state has produced evidence of the involvement of the three accused and the Defence should make a reply.

24. One notable aspect of the case which is worth mentioning includes failure by the state to lead evidence on whether the witness Philip Steven knew the accused prior to the incident. When the court asked how he knew the accused, he said he knows them as they spoke the same language. Was this a case of recognition or identification. Recognition would infer that he knew the three (3) accused before the incident. However, there is no such evidence.

25. The reliability of an identification of a person depends on the circumstances in which the witness observed the person who he or she has identified as the accused for eg:

1. The Length of the period of observation.
2. In what light the observation was made.
3. From what distance it was made
4. Was there anything about the person observed which would have impressed itself upon the witness.
5. Was there any special reasons to remember the person being observed.
6. How long afterwards was the witness asked about the person seen.
7. How did the description then given compared with the appearance of the accused.

26. Serious inconsistencies in the evidence particularly relating to lighting, how the vehicle was parked, what was or was not heard and whether the accused were persons known to the witness prior to the accident leaves the conclusion that the evidence maybe fabricated.

27. The court finds the witness Fenech Kom more truthful and honest than Philip Steven, whose evidence at times was incredible. For eg; He says he identified Texpo Kumuno as the driver who was driving the Maroon Open Back Land Cruiser that was following them. The two other co-accused were with him in the vehicle. This was a vehicle travelling at the back of them with its Headlights on in the dark at about 12 midnight. How was he able to see them at the back? There is no evidence that the witness Philip Steven saw and identified Texpo Kumuno driving the Maroon Land Cruiser with the two (2) other accused in the vehicle prior to the trip. Whilst there maybe evidence of the accused at the scene of the Crime, the evidence in respect of wilful damage to the vehicle remains very sketchy and shaky. Although the three (3) accused were at the scene of the crime, there is no evidence that the three (3) accused wilfully and unlawfully damaged the vehicle. The court in the circumstances is of the view that the evidence of identification in respect of wilful damage to the vehicle by the three accused is so lacking in weight and reliability that the accused could not be lawfully convicted and the case must be stopped here. Allowing the case to proceed will not improve the State case any better than what it is now.

28. The State in this case further tried to invoke s. 7 and 8 of the Criminal Code alleging that the three (3) accused and their men assaulted the complainants and damaged the vehicle in prosecution of a common Purpose. Not only was there no evidence led in this respect, the State also failed to make any submission on the issue.

29. The State failed to call evidence to prove the necessary intention of the accused. Mere presence at the Commission of a crime does not in itself constitute the person an aider and abettor R v. Opu Anoma 1974 N801.

30. It is not enough that the presence of the accused has, in fact, given encouragement. It must be proved that the accused intended to give encouragement and that the accused wilfully encouraged. There must be an intention to encourage and encouragement in fact: Agiru Aieni v. Paul Tahian [1978] PNGLR 37.

31. The evidence does not positively identify any of the accused encouraging or intending to give encouragement and that they wilfully encouraged the others to damage the vehicle. Given the Status of the evidence of identification in respect of damage to the vehicle, the invoking of s.7 and 8 of the Criminal Code must also fail.

32. The No Case Submission is therefore upheld. I find the accused Not Guilty of Wilfully and unlawfully damaging the vehicle as charged. The accused are therefore acquitted and their bail monies refunded.

Ruling and Orders Accordingly,

______________________________________________

Public Prosecutor: Lawyers for the State

Public Solicitor: Lawyers for the Accused