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Police v Joshua [2001] PGDC 21; DC327 (11 May 2001)

DC327

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE No 9, 13 OF 2000

Police
Complainant

V

Ulka Joshua & 4 Ors
Defendant

Mount. Hagen: M. M. Pupaka, PM
2001: 24th – 25th April & 11th May

Criminal proceedings – particular offence – unlawful damage of property – Criminal proceedings – particular offence – stealing – Identification of accused – general denial not sufficient to negate evidence of positive identification.

Counsel
Sergeant Piaku for the Prosecution
The Accused(s) in person

24th May 01

M. M. Pupaka: These five accused namely; Ulka Joshua, Sina Maru, Dilu Max, Joe Ignas, and Apa Simon were charged jointly with one count of Unlawful Destruction of 205 coffee trees valued at K2050.00 contrary to section 444 (1) of the Papua New Guinea Criminal Court Act, Chapter No. 262 (the Code); and one count of Stealing coffee cherries valued at K460.00 which is contrary to section 48C of the Summary Offences Act, Chapter No. 264 (the SOA), all of which being the property of Kigibah Coffee Plantation. Upon arraignment all the accused entered a plea of not guilty to both charges.

In the trial that followed the prosecution called two witnesses and close its case. Upon a ruling that they all had a case to answer on both counts the accused(s) elected to testify on oath and did so. One other witness was called for the defence. Considering the positive identification of that accused(s) and the nature of the evidence adduced by the prosecution the defence witness’s evidence of what transpired after the date of the offence is mostly irrelevant. The accused(s) own account of their innocence is, collectively and individually, a general denial.

The prosecution’s case is composed of the evidence by its two witnesses. The two witnesses are Makape Komea and John Jua. The former is a security guard at the Kigibah Coffee Plantation and the latter is an auxiliary police constable who was at all relevant times attached as person in charge (OIC) of the company’s security detail at the plantation.

Evidence.

The prosecution witness’ evidence is that thieves were frequently stealing coffee cherries at the plantation so they and other guards were specifically directed to be on the guard at around those times. In fact coffee had been stolen (picked) the night before. So on the 20/10/00, during the very early hours of the morning, at around 4.30am, a security detail led by prosecution witness John Jua, proceeded to inspect the coffee fields of the plantation, commencing the round at block 5.

Upon arrival at block 5 the guards immediately saw that coffee cherries had been picked and coffee trees damaged. The witnesses say the trail of theft and destruction was not hard to follow and so they followed it cautiously through the field. From block 5 the guards traced the thieves to block 9, to block 12 and from there finally to block 15. The guards came upon the thieves busy pulling down coffee trees and picking the cherries at block 15.

Coffee trees too tall to reach for ripe cherries were either pulled down or chopped off. Branches were also torn off. All together about 205-coffee trees were destroyed and some 117 kg of coffee cherries worth about K470.00 (as valued then) were stolen (picked). Of course the accused being quite content in their denial have not challenged this prosecution evidence so the evidence on these aspects stand unaffected.

The prosecution witnesses say if there had been others prior to their arrival at block 15 they would not know, but they are sure these five (5) accused were the ones they found stealing and destroying coffee trees that morning.

The witness’ say by the time they arrived at block 15 dawn was fast approaching. They could not apprehend them as thieves were armed and they put up a fight. A couple of them, Dilu Max & Joe Ignas had a bush knife each and the rest were armed with coffee sticks. It was clear daylight when the thieves stopped resisting the plantation guards and fled. They left behind them their bags containing the stolen coffee cherries.

The plantation guards, particularly these two prosecution witnesses, know these accused. They practically live together for the block where all these accused (s) live is just adjacent to the coffee plantation. The prosecution witnesses gave evidence that some of the accused are ex-workers of the coffee plantation. They further said, particularly in answer to questions put to them in cross-examination, that they have no personal or other differences with any accused. The prospect of lying by the two prosecution witnesses was raised and argued at length. As I alluded to above the accused only denied the charge. Their attack upon the prosecution witness’ story fell apart due mostly to the fact that they could not raise or suggest, needless to say prove, any motive for ill will and malice or such other possibility as a bases for false testimony by these witnesses against them.

I have thought long and hard about the circumstances within which the prosecution witnesses identified the accused. It was evidently not clear daylight hours. Their arrival upon them (at block 15) must have obviously caused quite a stir among the thieves (disturbed at being caught). They were in and among obviously fully-grown coffee trees. However taking all the circumstances into consideration; particularly the closeness of the encounter between the prosecution witnesses and the thieves; the parties being well known to each other; and the credible account of the prosecution witnesses as against the mere denial of the accused, I must accept the prosecution evidence. In the end I can only accept the prosecution witness’ account as an accurate recollection of what they saw, heard and did at the relevant times. These two witnesses testified with clarity without flattering and with no recognisable inconsistencies. I accept their evidence as a truthful account.

In the end result I find all these accused each and severally, guilty of the charge of Wilful Destruction of 205 coffee trees contrary to section 444 (1) of the Papua new Guinea Criminal Code Act Chapter No. 262. I likewise find them guilty upon the charge of Stealing coffee worth K460.00, which is contrary to section 48C (1) of the Summary Offences Act Chapter No. 264.

Verdict: All the accused are found guilty as charged on both counts.

Sergeant Piaku: Complainant
In person: Defendant