The State v Ben Wafia, George Wena, Simon Konga and Leslie Puka (No 1) (2003) N2579

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 30 October 2003
• Court: National Court
• Citation: [2003] PNGLR 298
• Year: 2003
• Judgement Number: N2579

Full Title: The State v Ben Wafia, George Wena, Simon Konga and Leslie Puka (No 1) (2003) N2579

National Court: Kandakasi J

Judgment Delivered: 30 October 2003

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Settlement of issues at pretrial—Effect of—Puts all parties and Court on notice of the issues for trial and dictates kind of evidence and number of witnesses—Parties and the Court should not readily depart from issues settled at trial except for convincing and good reason—Constitutional dictate for a trial within 4 months of committal vital guide—Failure of opposing counsel to object when evidence on matters not in issue is sought to be led—Effect of—Other issues put into issue—Accused purporting to claim alibi without giving appropriate notice—Effect of—Recent invention and less weightier—s37(14) Constitution.

2 CRIMINAL LAW—PRACTICE AND PROCEDURE—When identification is an issue for trial—Need to warn of dangers of purported identification—Failure to put defense case to prosecution witnesses—Effect of—No or little weight must be attached.

3 CRIMINAL LAW—Verdict—Advisedly attempting to incite mutiny—Elements of the offence—Accused all discharged members of Defense Force—No lawful authority to remain on Defense Force premises—Identity only issue for trial—Accused present at meetings and seen with mutineers—Accused purporting to claim alibi without giving appropriate notice—Effect of—Recent invention and less weightier—Defense evidence lacking in consistency and credibility—Guilty Verdict returned—s41(1)(a) Criminal Code.

4 WORDS AND PHRASES—"Advisedly"—Means one who is informed, notified, acquainted, warned or aware of his actions and the effects or consequence of it.

5 "Seduce"—Means to "invite", "allure", "tempt", "entice" or "attract", "incite"—Means to, "induce", "provoke", "instigate", "urge on", "stimulate" or "encourage"."Seduce"—Means to "invite", "allure", "tempt", "entice" or "attract", "incite"—Means to, "induce", "provoke", "instigate", "urge on", "stimulate" or "encourage".

6 "Mutiny or any traitorous or mutinous act or incite any such persons to make or endeavour to make a mutinous assembly"—Means a combination of two or more persons subject to the Code of Military Discipline engaged in an act or omission including the making of an assembly aimed or has the effect of overthrowing or resisting, or disobeying lawful authority in the Defence Force, or impede or subvert discipline in the Defence Force—Criminal Code s41(1)(b) of the Criminal Code.

7 The State v Robin Warren (No 1) (2003) N2417, (MVIT v John Etape [1994] PNGLR 596 or MVIT v Salio Tabanto [1995] PNGLR 214), MVIT v Pupune [1993] PNGLR 370, PNGBC v Jeff Tole (2002) SC694, The State v Cosmos Kutau Kitawal (No 1) (2002) N2245, The State v Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48, Garitau Bonu and Rosanna Bonu v The State (1997) SC528, Paulus Pawa v The State [1981] PNGLR 498, John Jaminan v The State (No 2) [1983] PNGLR 318, The State v Tauvaru Avaka (2000) N2024, Gibson Gunure Ohizave v The State (1998) SC595, The State v Moki Lepi (No 1) (2002) N2264, The State v James Gatana (2001) N2127 referred to

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1433, 1434, 1435 and 1436 of 2002

THE STATE

-V-

BEN WAFIA,

GEORGE WENA,

SIMON KONGA, AND

LESLIE PUKA

(No. 1)

WEWAK: KANDAKASI, J.

2003: 15th, 16th 17th and 30th October

CRIMINAL LAW – PRACTICE & PROCEDURE – Settlement of issues at pretrial – Effect of – Puts all parties and Court on notice of the issues for trial and dictates kind of evidence and number of witnesses– Parties and the Court should not readily depart from issues settled at trial except for convincing and good reason –Constitutional dictate for a trial within 4 months of committal vital guide – Failure of opposing counsel to object when evidence on matters not in issue is sought to be led – Effect of – Other issues put into issue - Accused purporting to claim alibi without giving appropriate notice – Effect of- Recent invention and less weightier - s. 37(14) Constitution.

CRIMINAL LAW – PRACTICE & PROCEDURE – When identification is an issue for trial –Need to warn of dangers of purported identification – Failure to put defense case to prosecution witnesses – Effect of - No or little weight must be attached.

CRIMINAL LAW - Verdict – Advisedly attempting to incite mutiny – Elements of the offence - Accused all discharged members of Defense Force – No lawful authority to remain on Defense Force premises –Identity only issue for trial- Accused present at meetings and seen with mutineers – Accused purporting to claim alibi without giving appropriate notice – Effect of- Recent invention and less weightier – Defense evidence lacking in consistency and credibility – Guilty Verdict returned – s. 41 (1)(a) Criminal Code.

WORDS & PHRASES – “Advisedly”– Means one who is informed, notified, acquainted, warned or aware of his actions and the effects or consequence of it.

“Seduce”– Means to “invite”, “allure”, “tempt”, “entice” or “attract.”“Incite”– Means to, “induce”, “provoke”“instigate”, “urge on”, “stimulate” or “encourage”.

“Mutiny or any traitorous or mutinous act or incite any such persons to make or endeavour to make a mutinous assembly”- Means a combination of two or more persons subject to the Code of Military Discipline engaged in an act or omission including the making of an assembly aimed or has the effect of overthrowing or resisting, or disobeying lawful authority in the Defence Force, or impede or subvert discipline in the Defence Force – Criminal Code s. 41 (1)(b) of the Criminal Code .

Cases cited:

The State v. Robin Warren & Ors (Unreported judgement delivered on 18/06/03) N 2417.

Motor Vehicles Insurance (PNG) Trust v. John Etape [1995] PNGLR 214.

Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370.

Papua New Guinea Banking Corporation v. Jeff Tole (Unreported judgement delivered on 27/09/02) SC694.

The State v Cosmos Kutau Kitawal & Anor (No 1) (Unreported judgment delivered on 15/05/02) N2266.

The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48.

Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528.

Paulus Pawa v. The State [1981] PNGLR 498.

John Jaminan v. The State (N0.2) [1983] PNGLR 318.

The State v. Tauvaru Avaka & Anor(Unreported judgement delivered on 2/11/00) N2024.

Gibson Gunure Ohizave v. The State (Unreported judgement delivered on 26/11/98) SC595.

The State v. Moki Lepi (Unreported judgement delivered 30/04/02) N2264.

The State v. James Gatana & 3 Ors (Unreported judgement delivered 19/04/01) N2127.

Counsel:

M. Ruari for the State

M. Bayam and S. Maliaki for the Accused

30th October, 2003

KANDAKASI J: All of you four men pleaded not guilty to one charge each of inciting mutiny contrary to s. 41 (1)(b) of the Criminal Code. There is no reported case on this section. I am not even aware of any other case on this section. Hence, this is the first time a charge under this provision has arisen. Given that, it is necessary to first, appreciate the elements that constitute this offence to know what is it that the State has to establish against you on the required standard.

The Offence of Inciting Mutiny

Section 41 of the Criminal Code creates and provides for the penalty for the offence of inciting mutiny in these terms:

“41. Inciting to mutiny.

(1) A person who advisedly...