The State v Thomas Lui (2004) N2706

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 20 September 2004
• Citation: (2004) N2706
• Court: National Court
• Year: 2004
• Judgement Number: N2706

Full Title: The State v Thomas Lui (2004) N2706

National Court: Lenalia J

Judgment Delivered: 20 September 2004

1 Criminal Law—Charges of common assaults, armed robbery, willful damage and arson—Not guilty pleas—Criminal Code (Ch262) s322, s332, s335, s386, s436 and s444(1)

2 Criminal Law—Trial—Evidence—Criminal Liability—Abetting and aiding—Presence and willful encouragement—What constitutes aiding and abetting—Criminal Code s7 (1)(a), (b) and (c).

3 Criminal Law—Trial Evidence—Prior inconsistent statements—Crucial weapon—The rule—Finding of not guilty.

4 The State v Laiam Kila and Meiri Gomosi [1977] PNGLR 470, Porewas Wani v The State [1979] PNGLR 593, The State v John Wali & Pengas Rakan [1978] PNGLR 51, Omowo Yirihim v The State [1976] PNGLR 188, R v William Taupa Tovarula [1973] PNGLR 140, R v Witrasep Binengim [1975] PNGLR 95 referred to

Facts:

The facts of this case relates to an incident on 20th day of October 2002, on which the State alleged that at Waramailo Vunapalading Settlement blocks, the accused was amongst a group of people which destroyed, burnt and carried away certain properties referred to in the fourteen (14) charges in the body of indictment. The State's allegations further state that during the course of the destruction either the accused or other persons committed acts of assaults upon four separate victims.

___________________________

N2706

PAPUA NEW GUINEA

[In the National Court of Justice]

CR. NO: 1302 OF 2003

THE STATE

-v-

THOMAS LUI

Kokopo: Lenalia, J.

2004: 3, 10, 17 June, 7, 20 Sept

Criminal Law – Charges of common assaults, armed robbery, willful damage and

arson – Not guilty pleas – Criminal Code ss.322, 332, 335, 386, 436 and 444 (1), Ch. No. 262.

Criminal Law – Trial – Evidence – Criminal Liability – Abetting and aiding –

Presence and willful encouragement – What constitutes aiding and abetting – Criminal Code s. 7 (1)(a)(b) and (c).

Criminal Law – Trial Evidence – Prior inconsistent statements – Crucial weapon –

The rule – Finding of not guilty.

Facts:

The facts of this case relates to an incident on 20th day of October 2002, on which the State alleged that at Waramailo Vunapalading Settlement blocks, the accused was amongst a group of people which destroyed, burnt and carried away certain properties referred to in the fourteen (14) charges in the body of indictment. The State’s allegations further state that during the course of the destruction either the accused or other persons committed acts of assaults upon four separate victims.

Cases cited:

The State -v- Laiam Kila and Meiri Gomosi [1977] PNGLR. 470

Porewas Wani -v- The State [1979] PNGLR. 593

The State -v- John Wali & Pengas Rakan [1978] PNGLR. 51

Omowo Yirihim -v- The State [1976] PNGLR. 188

R -v- William Taupa Tovarula [1973] PNGLR. 140

Counsels

Mr. L. Rangan, for the State

Mr. M. Peter, for the Accused

20th September 2004

LENALIA, J. The accused pleaded not guilty to fourteen (14) charges contained in one indictment consisting of four (4) counts of unlawful wounding and similar acts, one (1) count of common assault, two (2) counts of armed robberies, three (3) counts of arson and four (4) counts of malicious injuries. Such offences were committed contrary to ss. 322, 335, 386, 436 and 444 (1) of the Criminal Code.

EVIDENCE

Evidence called by the State came from six witnesses who came to Court and gave oral evidence. Fifteen pieces of documentary evidence were tendered by consent of the defence counsel and they are marked as Exibits “A” to “L”. It is not necessary for me to mention them at this stage, as I shall make reference to some of them later in this discussion.

The State’s case is that on Sunday 20th day of October 2002, between 10 and 11 am, the accused and his relatives went up to Waramailo blocks near Vunapalading and terrorized block holders and thereafter, they destroyed and damaged certain properties such as houses, economic trees, household goods and such other properties as mentioned in the indictment. In the course of the raid, properties were carried away and the accused and his relatives were alleged to have assaulted a number of victims.

The State’s evidence establishes that, prior to the commission of these offences, the State witnesses and the accused had had unresolved problems relating to two earlier incidents where two or three of the State’s witnesses were responsible for destroying the accused’s cocoa “buying point” near his block on that same location. That on the first instance, the accused buying point was burnt in the month of September 2002.

Then that after the buying point had been rebuilt the same group of people came on to the premises on the afternoon of 18th of October of that year and destroyed the accused’s buying point for yet the second time. The two State witnesses who were said to have engaged in the destruction of the accused sheds are Elias Kubak and Tila Aiape (2nd and 3rd State’s witnesses).

The first State’s witness, Leo Wauik testified that he was on the scene at Waramailo and witnessed the destruction caused to a number of houses and properties including his own. Leo’s evidence shows that, the accused was not on his block on the night of the 18th and 19th of October 2002. Leo said, he gave some money to the accused’s brother in law Ben Tokau to buy fuel so Ben could pick up the accused at Raburbur village on the North Coast Road so they could settle their unresolved problems about the burning of the accused buying point and the latest case on which the newly rebuilt buying point had been destroyed.

On the occasion on the scene that morning, Leo said he was in Magareth’s premises with a number of his family members when the trouble started. Whilst there, he heard a vehicle stopped near his block. Not knowing whose vehicle was it, he wanted to find out and walked up toward his residence.

Leo said, on his way up to his block, he met the accused who counselled him to take care lest he be injured in the commotion. But by the time he reached his house, he found out that a number of his household items were missing and the flowerpots were damaged. He then sat in his house until the police came.

The second State witness, Elias Kubak, originally from Rapolo village situated on the Balanataman Local Level Government, gave similar evidence as Leo and other State witnesses saying that being a Sunday morning, he was in his parents’ residence when he heard noises and shouts coming from either Leo Wauik or Dr. Kalimet’s blocks.

Elias said, he saw people running here and there destroying properties. He decided to take refuge under his father’s cocoa trees. He ran a distance away from their house and stood up to wait and see what would happen next. The people who carried out the destruction came to his parents’ block and started to cut down economic plants including vanilla plantings, pots, cups, plates, forks and spoons were totally destroyed.

Whilst hiding away, he witnessed his father being assaulted and toppled to the ground. He came out from his hiding place and assisted his father and took him to their house.

A common factor about both the State witnesses and the accused and his witnesses is that they all reside and own blocks at Waramailo up past Vudal and near the Vunapalading Settlement. Witness Tila Aiape come from Tari in Southern Highlands said he resides at Waramailo in Dr. Kalimet’s block. Tila said, he witnessed the accused and his mob did the destruction.

Tila’s evidence show that, the accused was in the mids of the mob that caused great destruction and one of the men in the group came to Dr. Kalimet’s fermentory with a plastic of petrol and poured it on that structure and thereafter, set fire to it. Since, the residence was connected somehow to the fermentory, the residence was also destroyed by fire. Tila...