National Court of Papua New Guinea

F Pitpit for the Accused

27 June 19ne 1997

BATARI AJ: Thesed pleaded not guilty ilty to wilfully causing the death of Emilia Yuanhia Soru, a female toddler of unstated age on 16 Septemb996 contrary to s. 229 of the Criminal Code.

The story led from State witnesses was was that, prior to 16 September, 1996 the accused and his wife Joan Soru had a domestic altercation which caused Joan to leave. On orning of the day in quin question, Joan Soru returned to the matrimonial home with the child Emilia to get some clothes for herself and the child. They wccomp by three otherother relatives. Shortly after ther their arrival, the accused and his wife fought over possession of the c Thesed succeeded in wrestlrestling the child from his wife and took the child into tnto the main house. He locked the doom inand re-emerged a ed a short while later from the burning house without the child. Evi; Evidence wereto show show the accused ind to cause the death of the child when he set the house alight with the child trapped insidinside.

State witness Kevin Pahau we first to give evidence. He acnied Joan Soru anru anru and the child Emilia to the accused’s village. Also with them wes wife Stfe Stella and Heribet Pokori. Shortly after arrival, Jntn entered their house with the child and came out again wome clothes in a bag. She was about to go into the house the second time when the accused ased attempted to get the child from her.&#She resisted. The acce accused led the bthe baby free and took her into the house followed by Joan. The witness heard the baby cry from inside the room and also heard Joan calling out to the natural father of the child, that the accused would kill her.&#He tried to push open the door but it was locked. He spoke alsoerosene smellsmell andl and traces on the wall. The witness saialerted Alod Alois and Heribet about his fear for the child’s safety. The accused re-emerom the the house armeh a kand without the bthe baby. Heribet j him and togetherether they tried to open the dooe door but without success. The housthen was a. 160; They succeeded in breaking through tugh the side wall but the fire had spread inside the building. They returo their vi wherewhere they related the incident to the village leader. Thused aled also followed owed them to the village and initiaccused them of killing the child. Ho, he later made admissioissions. That was swas substantially, the evidence of this wi.

The second State wate witness Heribet Pokori gave evidence that he stood some 10-15 meters away from the accused’s house coing with the natural father of the deceased child, Alois Sais Sapmagua. The accused and Joan wesidinside the house. He spoke oring Joan callinalling out to Alois that Ambros might kill Emelia. Shortly after, he saw smoke coming from inside thee andn running towards them. He followed tvin to the vthe verandah of the house and saw Asaw Ambros emerged from the house with a kin his hands. Together with Kevin thied ried to open open the door but it was locked. They went aroo the back anck and cut a hole on the wall. He spoke of seeing eft legt leg of the child Emelia, burnt with swellings and openings of the skin. He tto get in he fire had had spread and was burning intenselynsely. Upon reto his village, he , he related the incident to the villageer. ccused who had also followollowed them to the village blamed the killing on him ahim and he argued with accused over this.& Whenvillage leader iner intervened, he said the accused broke down, cried and admitted being reng responsible for the fire which caused the death of his child. Tha the brief of his evideevidence.

The village leader, William Niangu was called to confirm his meeting with Kevin and Heribet and the events that ensued. He also confirmed the presence of the accused.

William Kasona and Kila Kali were the only other witnesses whose evidence should be stated. These policeers spoke of t of their vis the scene on the date in question. testified thed that he sawe saw a house burnt to ashes and further that he identified remnaf a child in ashes form. Kila Kali shese were lore lore located on the left-hand side of the house.

Having found a case to answer on murder after I upheld his “no-case to answer” application on the wilful murder charge, the accused elected to remain silent. I must now re- the evidencidence as it stands at the end of all the evidence and apply it on a higher standard. That standard is proof beyond reasonable doubt. As to what tandard of proo proof in a criminal trial entails, I adopt the statement of Denning, J as he then was, in the case of Miller v Minister of Pensions [1947] 2 All ER 372 at 373-4:

“Tegree is well settled.&#160 It not reach certainty, buy, but it must carry a high degree of probability. Proof beyond a reasondoubtdoubt does not mean proof beyond the shadow of a doubt. Th would fail to protect tect the community if it admitted fal possibilities to deflect the course of justice. If the evidence istrong agng againsgainst a man as to leave only a remote posity in his favour, which cach can be dismissed with the sentence, ‘of course it is possible but not in the least probable&#8217 case is proved beyond reas reasonable doubt, but nothing short of that will suffice.” (eis mine).

I also also bear in mind the principle applicable where the accused elects not to give evidence as set out in the case of Paulus Pawa v The Sta981] PNGLR, 498 in particular, those considerations alludedluded to in the judgment of Andrew, J at p. 504:

“I agree with the conclusions of Professor O’Regan in his article ‘Adverse Inferences from Failure of an Accused Person to Testify’ 1965 Crim. LR 711, that:

1. &##160;; T60 faie failure oure of an accused person to testify is not an admission of guilt and no inference of guilt may be drawn from such failure to testify;

2. & ;&#16ilureestieestify tify may, may, howevhowever, tell against an accused person in that it may strengthen the State case by leaving it uncontradicr unened oal matters;

3. ҈ Fa0; Failure lure to testifystify only only becomes a relevant consideration when the Crown has established a prima facie case;

4. ҈ The weight to be atbe attached to failure to testify ds on the circumstances of t of the case. Significancumstances incluinclude:

(a) whether thth iseasaiertle able bble by they the Crow Crown but probably well known to the accused;

(b) ҈& whetherether the ethe evidence imting ccusedireccircutial;

(c)&#1c) < &160; &#160&#1160 whether ther the accused is legally represented;

(d) &ـ whether ther the athesed hsed has before trial given an explanation which the Crown has adduced in evidence.”

The evidence wastantiuncond.&#160 It consisted of direct ncedence and inference which can be drawn frwn from evom evidence of the witnesses. State Prose submitted that that, by leaving the child in the house and deliberately setting the house on fire, the accused had caused the dof the deceased “in the prosecution of an unlawful purpose”. Defence on t on the otand hand has put forward a number of propositions and invited that the accused be acquitted on the murder charge. Mr Pitpit subd:

(1)p>(1) ҈ ; thes inas insufficient evnt evidence that the athe accused deliberately set fire to the house;

(2) ټ&#even did,buhe ng ning of his own house is e is excused under s. 433 (1) and (2) of thof the Crie Criminal Code.

He argued that, be the 6;unlawful purpose’ alleged under s. 300 (1) (b) related to the accused setd setting ting fire to his own house, his action is not unlawful under s. 433 (i) which defines “unlawful acts”.

The second leg of Defence Counsel’s submissions is in my view, misconceived and mischievious. Counseld have had one beli believed that it is permissible in law to set alight one’s own home and escape responsibility for any consequential event, be it injuries or death or loss of propertch might flow from that delt deliberate act. In my view ss. 300(b), 433, 433, 436 when read together, do not avail the accused and is never intended to avail the accused a defence where he deliberately commits arson. The l not intended to prot proteperson who sets his own houn house alight in circumstances where there is real threat of danger or loss to life and property. I the ould fail to protectotect the community if it permits mits acts of incendarism as suggested by Defence Counsel. I reject Cl&#82contentionstions.

I accept the accused and his wife fought over possession of t of the child as spoken of by Kevin Pahau.; This in my view, was a manifestation of disharmony which existed between them and that that the difference had not abated at the time of the incident.

I am also satisfied that Joan, tried to retrieve the baby from the accused. I accept Kevin&#821videncedence that he heard the child cry inside the house and also heard Joan called out that the accused would harm the baby.&#I infer Joan had followed the accused into the house and saw how he had treated the child.&ild. In the least, the accused was inside the house with the child. A demonstration of the child’s cry suggested it was in pain.

There is no evidfrom the accused or Joan on that aspect and I am entitled to draw inferences from the factsfacts before me. The alarm raised by must bave been serious to s to cause Kevin to investigate. The seriss of the alarm warm was supported by the facts:

(1); ҈ Kevin found tund the door locked.

(2) &<; Ke0oseneosene was dwas detected on the walthe h The evidenvidence e keroseerosene has these implications:

(i) &##160;; it0; it is not normal fo tene tfoundhe wall, unl, unless iess it is deliberately poured there or unless kerosene is accidentally spiy spilt against the wall.

(ii)ـ҈& spillepilled kerd kerosene from a fallen burning lamp coul could almost immediately ignite. Thdence is that Kevin only only smelt and saw kerosene that time.

(iii) shes form of the body was was found on the left hand side e house. I infer this was not in thin the middle of t of the house. The possibilitalso that that the kerosene as seen by on tll war where the childchild was. was.

The accused has neither denied nor explained the evidence impe implicating his conduct. The trutho whapened insidenside the the house is not easily ascertainable by the crown but probably well known to the accused. In the ae of xplanation fron from him, I am entitled to accept the State’s evidence as being eing uncontradicted or unexplained on vitaters.

I conclude from the evidence, that the fire started from inside the house.&#16. Ths strong inference from from the evidence of Kevin and in particular that of Heribet that the fire started where the baby was. et’s evidence sued tued the child had suffered 3rd degree burns to her body by t by the time they broke through the wall. I accept they could not sae child because the fire had spread quickly. I also clso conclude the athe accused was the last person inside the house with thld and that he had left and locked the child in after the fire had started from inside.

The inferences are open that he drately set the house on firn fire. Even if the fire may have been accidentally started as suggested by defence, this does not alter my conclusion that the accused was still inside the house when the fire started and that he came out without the child.&#16ther way, it is open to cono conclusion that the accused intended to cause the deceased, grievous bodily harm by leaving the child behind in a burning house and that he is guilty of murder under s. 300 (1) (a) of the Criminal Code. I find him guilty and ct hict him of murder under that provision. He might well be caunder sder s. 300 (1) (b) but the evidence in my view supporconviction under s. 300 (1) (a) of the Criminal Code.

Lawyer for the State: Public Plic Prosecutor

Lawyer for the Accus/Public Solicitor

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