The State v Thomas Manga (No 1)

• Jurisdiction: Papua New Guinea
• Judge: Miviri J
• Judgment Date: 12 June 2024
• Neutral Citation: N10863
• Citation: N10863, 2024-06-12
• Counsel: J. Kesan, for the State,R. Mangi for the Defendant
• Docket Number: CR 404 OF 2021
• Hearing Date: 10 June 2024,12 June 2024
• Court: National Court

N10863

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 404 OF 2021

The State

v.

Thomas Manga (No 1)

Minz: Miviri J

2024: 10^th & 12^thJune

CRIMINAL LAW — PRACTICE AND PROCEDURE — Arson 436 CCA — Trial — Tractor Registration TAA 769 — Dispute Over Payment Of Compensation — set on fire — Burnt Down K 80, 000.00 Valued — Identification — Alibi — Defence Case Alibi — Accused Identified By Relative — Not Fleeting Glance — Good Lighting — Observation Very Good — Alibi Rejected — No Notice of — False Alibi — Corroborative of Identification — Identification Made Out — Admission to Set Tractor on Fire Smoke As Evidence — Guilty — Bail Refunded — Remanded.

Facts

The Accused put burning wood with dried Kunai grass lit and placed the fire on the Tractor TAA 769 belonging to the Company burning it to the ground. He was angry that he was not paid compensation that he had demanded off the Company.

Held

Unlawful and wilful burning

Tractor property of Company.

Good Identification

Admission by Accused.

Alibi False

Corroborative

Identification made out

Accused guilty of Arson.

Remanded Bail refunded.

Cases:

1.Jaminan v The State[1983] PGSC 12; [1983] PNGLR 318(29 September 1983).

2.Kandakason v The State[1998] PGSC 20; SC558 (7 July 1998).

3.Waranaka v Dusava[2009] PGSC 11; SC980 (8 July 2009).

4.Beng v The State[1977] PGSC 3; [1977] PNGLR 115(2 May 1977).

5.Bate v State[2012] PGSC 46; SC1216 (20 December 2012).

6.Hagena v State[2017] PGSC 55; SC1659 (11 December 2017).

7.Tonde v The State[1994] PGSC 20; [1994] PNGLR 539(29 July 1994).

Counsel:

J. Kesan, for the State

R. Mangi for the Defendant

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant

VERDICT

12^th June 2024.

1.Miviri J: This is the verdict of Thomas Manga of Kimil, Banz, North Wagi, Jiwaka Province who pleaded not guilty to Arson of a Ford Tractor registered number TAA 769 valued at K 80, 000.00 the property of Komban Plantation Limited.

2. It was alleged on arraignment that, he on the 23^rd July 2002 around midday when Police and the management of Komban Plantation Limited went to retrieve the Ford Tractor, registered number TAA 769 that he had earlier on driven to his village, he set it on fire wilfully and unlawfully destroying it completely. It was valued at K 80, 000.00 the property of Komban Plantation Limited. He had driven it to his village over a dispute over compensation allegedly due to him from the subject company.

3. He was charged under section 436 for arson reading, “A person who wilfully and unlawfully set fire to—

(a) a structure whether complete or not; or

(b) a vessel whether complete or not;

(c) a stack of cultivated vegetable produce; or

(d) a stack of mineral or vegetable fuel; or

(d) a mine, or the workings, fittings, or appliances of a mine; or

(e) an aircraft or motor vehicle,

is guilty of an offence.

Penalty: subject to section 19 imprisonment for life.”

4. The State was required to lead evidence beyond all reasonable doubt that he was identified as the author of the crime. It was a wilful act to set fire to the tractor. And he did so unlawfully or in breach of the law. In its endeavour to discharge these elements the State called three witnesses orally and tendered into evidence his record of interview, Exhibits P1(a) and (b).

5. The first witness on oath was one Wii Pau, director of the subject Company. Which company was the owner of the ford tractor registered number TAA 769. He was at home Kimil on the 23^rd July 2002, when he was told that the subject tractor was stolen so he went to the Plantation Okay Corporation to find out. The Accused Thomas Manga took the tractor with another Thomas Molo. The latter drove the tractor to the village of the accused. Both live at the same village. Thomas Molo said Thomas Manga now before the Court will release the tractor, so he told me to see him. But when we went back to Thomas Manga's village, he with his family removed the bridge and made it impossible to get the tractor from his village. And he was accompanied by Policemen, James Goimba with other policemen. He did not know their names. Upon arrival the Accused Thomas Manga met them and told them that you see the smoke I have set fire to your tractor. And he did see smoke coming up but did not see the burning tractor because the road up had bridge removed so he was stationary for about 2 to 3 hours, before a temporary bridge was built and they went back out from there. Materially this is the evidence of this witness.

6. I have viewed the evidence that this witness gave, and I have no reservations that he was telling the truth as it eventuated before him. He gave evidence with confidence and was not shaken in any way in cross examination. I find that he told the truth as it unfolded before him. It did not come out that he had a hearing problem nor sight. And he was clear that the person he saw was the accused who spoke as he recounted.

7. The next witness was retired Chief Sergeant of the Royal Papua New Guinea Constabulary James Goimba who had served the Constabulary for well over 36 years counting from the 23^rd July 2002, when he was called out to attend to complaint lodged with police at Kimil on the 22^nd July 2002. The complaint was as to stealing of coffee beans. He went to investigate and to attend to that complaint when it was reported that a tractor belonging to the Company was stolen there. He unsuccessfully went with Company management but did not retrieve it. He left on the understanding that the matter would be resolved between the People and the Company. That did not happen, so he returned the next day 23^rd July 2002 accompanied by company management on a company vehicle, only to be met by the Accused at Kuman who told him that he had set fire to the tractor. And he said see the smoke I set fire to it and that is the smoke. He also saw the smoke and presumed that it was the tractor burning. He later went back and confirmed that it was indeed burnt down with the fire initially starting where the gear was and into the dashboard. The tires were flat at the back. It was clear it was set on fire.

8. Again, I have no reservation about the veracity of this witness. I am confident in the way that he gave his evidence that he was telling the truth as a serving police officer who had gone out to a complaint at that location and who heard the admissions that the accused made in setting fire to the tractor and burning showing the smoke after the act. I do not doubt the veracity of his evidence. I find him to be a witness of the truth. He does not show allegiance to one side or the other. He is merely a police officer doing his duty as a public Servant, no more no less.

9. The last witness for the State was Kip Bulu originally from Kimil village, a peace mediator of that village. On the 23^rd July 2002 he was at home Kupan at about midday. Thomas Manga the Accused took the tractor to his house at Kuman. Next day I walked up there to Kuman where the tractor was. Thomas Manga went into the house took out a burning wood from the fire. Then he got dried Kunai and set it to the wood lighting up the fire setting it to where the gear was in between and burning the tractor. The fire burnt where the gear is including the wheels at the back were. I saw the tractor was burnt down and I returned to my home. And Thomas Manga is the accused over there pointing him in the dock. I saw him burn the tractor. We are both related, he is from another father, I am from another, so we are related. Our small tribe is Kanabe. I did not do anything to stop him burning the tractor.

10. He remained intact in his evidence, his identification of the accused as the person who set fire to the tractor was not doubted in any way. He was related to him. There were no motives for him to tell against the Accused and his identification was firmed out, and it could not be doubted as to who was the person he saw on that day setting fire to the tractor in the way that he described to build the fire. Then to have it assembled on the tractor to burn it and damage it. He is a witness who I observed to have told nothing but the truth as it occurred to him on that day. He did not add or subtract his evidence. Cross examination as to motive for the other court proceedings brought no holes to his evidence. I believe his evidence and hold his evidence as the truth. Because he went into details as to how the fire was build up with the burning wood taken from the house. Which was put together with the dry kunai placed where the gear was burning the tractor.

11. The fire as originated is also described by the witness Retired Chief Sergeant of Police James Goimba, who later went to see the burnt tractor. He describes the place where the fire originated and then burnt into the dashboard and the tyres at the back. In my view this witness is not related in any way to the dispute over the earnings of the company, nor any of the witnesses both for and against. He is an independent witness and is drawn to the matter because of his duties as a chief Sergeant of Police, attending to a criminal complaint of coffee bags being stolen. And he comes upon the complaint of the stealing or illegal moving of the subject tractor. He is not the owner, nor is he a member of that village, or associate to the subject company, and its earnings or profit. He is a public servant a police Chief Sergeant, who is merely attending to a criminal complaint that is registered at the Kagamuga Police Station where he is based at. His evidence in my view will set out which side of the dispute is the truth. As to whether or not the accused is the author of the arson of the tractor, or not.

12. In the documentary evidence is the record of interview conducted on the 30^th July 2020 in English between Police and the Accused. Firstly, handwritten, Exhibit P1(a) and typed P1(b). In it Accused denied the offence at questions 32, 33, 34, 35, and...