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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NOS 354-357 OF 2008
THE STATE
v.
ANTON TOWAKRA, JOHN TOWAKRA,
CARL MATHEW & THOMAS WARKU
Kimbe: Cannings J
2009: 19 February, 3, 4, 5, 6, 9, 11, 16 March
CRIMINAL LAW – trial – arson – Criminal Code, Section 436 – general denial – conflicting evidence of involvement of accused – aiding commission of offence – prosecution of unlawful purpose – Criminal Code, Sections 7 and 8.
Four men were indicted for arson. They are alleged to have set fire to a number of buildings, including a permanent dwelling house and several bush material structures, on a neighbour's block, following the death of a close relative, who had been killed by the owner of that block. Three State witnesses gave oral evidence of the train of events. The accused each gave sworn evidence to the effect that they were in the vicinity but were attending to issues arising from their relative's death, including organising the haus krai and digging his grave, and pursuing a compensation demand.
Held:
(1) The three State witnesses gave credible evidence that supported the State's case that three of the co-accused were directly involved in setting fire to a number of the buildings. There was strong evidence against three of them.
(2) The evidence of all of the co-accused was not credible. They attempted to convey the impression that they were saddened, but not angered, over their brother's death. This version of events, as well as the manner in which they gave evidence, was not credible.
(3) The result of weighing the evidence of the defence witnesses against the State's case was that the State's case was not significantly dented.
(4) The court was satisfied beyond reasonable doubt that the elements of the offence had been established against the first three co-accused, in relation to counts 1 and 3.
(5) The first three co-accused were accordingly found guilty of counts 1 and 3 and not guilty of count 2. The fourth co-accused was found not guilty of all counts.
Case cited
The following cases are cited in the judgment:
Devlyn David v The State (2006) SC881
Paulus Pawa v The State [1981] PNGLR 498
The State v Jacky Vutnamur and Kaki Kialo (2005) N2848
The State v Thomas Sange & Others (2005) N2805
Dates
The events referred to in this judgment occurred in 2007 unless otherwise indicated.
TRIAL
This was the trial of four accused charged with arson.
Counsel
D Kuvi, for the State
T Gene, for the accused
16th March, 2009
1. CANNINGS J: On the morning of Saturday 27 October 2007 a permanent dwelling house belonging to Joshua Apkosa, and a number of other buildings, were burned down at the Galai 2 oil palm settlement, near Kimbe. Joshua Apkosa is a West Sepik man who has lived on his block at Galai 2 with his family for many years. Amongst his neighbours are the four men before the court charged with arson in relation to this incident. They are also from West Sepik. In fact they are closely related to Joshua Apkosa. They are: Anton Towakra, John Towakra, Carl Mathew and Thomas Warku. They face three counts of arson under Section 436(a) of the Criminal Code, for wilfully and unlawfully setting fire to:
THE STATE'S CASE
2. It is the State's case that the four accused destroyed Joshua Apkosa's house and the other structures as they were angered over the death of their brother, Simon Towakra, who had died two weeks earlier, on 13 October, from injuries he received in an altercation with Joshua Apkosa on 24 September. Simon's body had been brought from the morgue at Kimbe to his family block at Galai on Friday 26 October. He was to be buried on the morning of the 27th. A haus krai had been established on the Towakra family's block. The State alleges that compensation for the death of Simon had become a big issue, which was not settled by the morning of the 27th. Simon's relatives, particularly his brother Anton Towakra, were angry about this. They went to the Apkosa family block, which is only 150 metres from their block, in an agitated state. There was an altercation with one of Joshua Apkosa's in-laws, John Wanaku, who was cut with a bushknife. Things got out of control and the four accused went on a rampage. The State has invoked Sections 7 and 8 of the Criminal Code to argue that the four accused aided each other and other persons to burn down the structures and that they formed a common intention to prosecute an unlawful purpose and that they are criminally liable for the three offences of arson that were committed. Three witnesses gave oral evidence in support of the State's case. A number of documentary exhibits were also relied on.
THE DEFENCE CASE
3. The four accused deny involvement in the incident. They agree that they were in the vicinity but say they were doing other things at the time. Two say that they remained at the haus krai, arranging Simon Towakra's burial. The other two say that they were chasing John Wanaku, who was responsible for badly injuring one of their relatives, Elvis Dennis, with a bushknife. They agree that Joshua Apkosa's house and the other structures were deliberately burned down but say that they are not responsible for this. The crimes were committed by other people, mourners at the haus krai, who became angry when they saw that Elvis had been badly injured. Each of the accused gave sworn evidence and there was one other person who gave oral evidence for the defence. Elvis Dennis was said to be unavailable to give evidence as he is studying overseas.
UNDISPUTED FACTS
4. It is agreed that the altercation between Joshua Apkosa and Simon Towakra took place on 24 September. Joshua cut Simon with a bushknife and Simon was admitted to hospital. He underwent treatment over a period of days, then was discharged, then his condition worsened. He was readmitted to hospital, and then he died on 13 October. Soon afterwards Joshua was detained in custody and charged with murder. There was a mediation at Kimbe police station at some time between 13 and 26 October. On 26 October Simon's body was conveyed from the morgue to the haus krai at Galai 2. The arson incident occurred at some time between 5.00 and 7.00 am on Saturday 27 October. At that time, Joshua Apkosa was still in custody. He was later granted bail. He was convicted of manslaughter in November 2008 and sentenced to 12 years imprisonment.
ISSUES
5. A number of arson offences were committed on Saturday morning 27 October at Joshua Apkosa's block at Galai 2. But was any one or more of the accused responsible? That is the principal question. To answer it, the following issues must be addressed:
1 WHAT IS THE NATURE AND QUALITY OF THE EVIDENCE OF THE STATE WITNESSES?
6. Three witnesses gave oral evidence: Kevin Ambai, Charles Kimbage and John Wanaku.
7. Kevin Ambai lives on the Apkosa block. He is a 24-year-old married man. He moved to Galai 2 in 2004. He is a cousin-brother of Anton and John Towakra and a nephew of Carl Mathew and Thomas Warku. On the night of 26 October he slept in a haus boi on the Apkosa block that belonged to Ruben Apkosa. It is about 70 metres from Joshua's house. Three other men stayed there also: Benedict Peter, Charles Kimbage and John Wanaku. John woke up first, between 5.00 and 6.00 am on 27 October. He went to Lepman Apkosa's haus kuk, which was about 40 metres away. Kevin says that he and the others later followed John and while they were walking to the haus kuk they heard Anton Towakra shouting from the road and demanding compensation of K80,000.00 for Simon's death. He wanted Lepman to come and clarify the issue of compensation. Then Anton and other men walked up to the haus kuk and assaulted John Wanaku. With Anton were: Alphonse Dennis, Carl Mathew, Elvis Dennis, John Towakra, Leo Towakra and Paul Towakra. Anton Towakra cut John Wanaku on the back of the head with a bushknife and John came running towards Kevin and ran away into the part of the Apkosa block called 'the third hectare'. He was being chased by the other men, including Anton, holding a bushknife. They were shouting 'Kill him!' They could not find him, so they returned to the part of the block where there was a cluster of houses. Kevin says that he saw Anton and Carl go into Joshua's haus kuk, cut up cooking utensils and throw them outside. They came outside and then he saw the building burning. They went to Lepman's trade store/house and broke down the door. They came out and headed to the cemetery where Joshua's father is buried, close to Joshua's house. They chopped up the cemetery and the tanget tree next to it. He saw John Towakra carrying a yellow plastic container – the sort used to hold petrol or kero – and leave it on the concrete steps of Joshua's house. Three others picked it up and took it inside. He did not see what they did with it but shortly afterwards he observed smoke coming from inside the house. Kevin says that while he was standing behind an oil palm, hiding, and watching what was going on, his uncle, Thomas Warku, approached him, holding a gun. Defence counsel, Mr Gene, suggested it was a spade he was holding. Kevin maintained that Thomas was holding a gun and that he pointed it at him. Kevin did not say anything. He thought Thomas might shoot him so he ran away. Kevin says it was a clear morning. It was not raining. There was a bit of fog. He got a clear view of what happened. There is a small hill between the haus boi he had been sleeping in and the place where the buildings were burned. He had already crossed it. When he returned, all the houses were burned to ashes. He saw Thomas near Joshua's house. The situation was uncontrollable.
8. Charles Kimbage is another of Joshua Apkosa's in-laws. He was living in Joshua's house in October 2007. He stayed in Ruben Apkosa's haus boi on the night of the 26th, with Kevin Ambai and John Wanaku and Benedict Peter. John got up first and went to Lepman's haus kuk. Charles says he and the others followed John and saw Anton Towakra on the road, shouting his compensation demand. When they were nearing the haus kuk, about 40 metres away from it, he saw Anton enter it. Some, including Elvis Dennis and Alphonse Dennis, followed Anton inside. Others surrounded it. He heard a commotion then John Wanaku came rushing out with blood on his head. He does not know what happened inside. John headed into the block. Anton was chasing him and holding a bush knife. When Charles saw this, he was standing close to Joshua's permanent house, next to Maria's house. Then he ran amongst the oil palms and hid. By that time, he and Kevin had separated. Then he saw the same group of men return to Joshua Apkosa's area and they started destroying things. Anton and Carl Mathew went to Joshua's haus kuk and destroyed cooking utensils. They were accompanied by three others. They left it, then he saw smoke coming from it. Then Anton went to Lepman's house-canteen, kicked open the door and went inside. He destroyed things and then the building was on fire. Anton went to the cemetery where the father of Joshua and Lepman is buried and damaged it. He saw John Towakra walk to Joshua's permanent house, carrying a 15-litre yellow container. He left it on the steps and walked up into the house, with three others. When he came back down, the house was on fire. He saw Thomas Warku enter the block near the haus boi, holding a gun. He pointed it at Kevin Ambai. When Charles saw that, he got scared and ran towards the road, but remained in the Apkosa block; so he ran in the opposite direction to the haus boi. When he returned the following day, six houses had been burned down. That is when he heard that Elvis Dennis had been taken to hospital. Charles said his evidence was based on a clear view he had of what was happening. The oil palms are quite tall and the ground under them is clear.
9. John Wanaku is a 42-year-old West Sepik man who came to live in Galai 1 in 1972. He has been there ever since. He is married to one of Joshua Apkosa's nieces. He stayed in Ruben Apkosa's haus boi on the night of Friday 26 October, with Kevin Ambai and Charles Kimbage. He awoke first and went to Lepman's haus kuk. He saw, by looking through holes in the walls of the bush material structure, that Anton Towakra was on the road, demanding compensation. He was about 30 metres away. 'When will you pay K80,000.00 for me to put my dead body down?', he shouted. The demand was directed to Lepman. Elvis Dennis came into the haus kuk and wanted to know what he was doing there. John replied that he was a neutral man but Elvis got a big piece of firewood and swung it and hit him on the head and arm. Others including Anton Towakra surrounded the haus kuk. Anton swung his bushknife as he was exiting the doorway and cut him near his ear and on his leg. So John got a bushknife and swung it randomly, in self-defence, he says. They gave way and he ran into the block to a neighbouring section. He feared for his life. He got on a PMV and went to Buvussi health centre. He was admitted and stayed there two weeks. He did not go back to the Apkosa block until a long time later.
Defence counsel's submissions
10. The defence counsel, Mr Gene, argued that the evidence of the State witnesses is unreliable and deficient in a number of respects.
(a) The evidence of Kevin and Charles was manufactured
11. Mr Gene submitted that the similarity in their evidence gave the impression that it had been manufactured. Their evidence as to the timing of events and visibility was the same, as was their evidence about being scared when they saw that John Wanaku had been injured. They tried to portray that they witnessed everything that happened. But under cross-examination, a number of inconsistencies were exposed, eg in their evidence-in-chief they both left out evidence about Elvis Dennis being injured.
12. I agree that the way in which Kevin and Charles gave evidence suggested that they had discussed what they were going to say before coming to court. That does not by itself lead to the conclusion that their evidence has been manufactured or is unreliable. A more important indicator of a witness's evidence is his demeanour in the witness box: whether he gives straight answers to questions or whether he beats about the bush; whether he tries too hard to give the impression that he remembers everything, in fine detail; whether he appears to be honest. I detected nothing in the demeanour of Kevin or Charles to drive the conclusion that they were dishonest witnesses. I thought that they were generally credible witnesses. They gave direct answers to questions. Contrary to Mr Gene's submission, neither of them said that he saw everything that happened. Their evidence was in that respect patchy and it is reasonable to draw an inference from that that they were each confining their evidence to what they saw. The fact that their evidence was similar can be explained by the fact that they were both at the same place at the same time: they had both slept in the haus boi; they followed John Wanaku to Lepman's kitchen house; they observed John running away; and they observed what happened after that. I reject the submission that their evidence was manufactured.
(b) The evidence of Kevin and Charles was inconsistent
13. Mr Gene pointed out that Kevin said he saw John Towakra take the yellow container to Joshua's house and place it on the steps but it was others who walked up the steps with the container and entered the house. Charles, on the other hand, saw John Towakra enter the house. Another inconsistency was in the description of how Lepman's trade store/house was broken into.
14. I regard these apparent inconsistencies as insignificant. They are explicable by Kevin and Charles separating when they saw John Wanaku rushing out of Lepman's kitchen house. They were viewing the events from different angles.
(c) Kevin and Charles did not have a clear view of what was happening
15. Mr Gene asked the court to take into account the geography and vegetation of the area, in view of the site visit that was made prior to closing submissions.
16. I have done that. The evidence of both Kevin and Charles is that it was a generally clear morning, with some fog. The oil palm trees are quite tall and there are not a lot of weeds beneath them. It is believable that someone hiding amongst the trees would still be able to see what was happening at a distance of up to 70 metres away.
(d) The State witnesses were motivated by revenge
17. Mr Gene tried to establish that Kevin and Charles had a motive to lie: they were bent on revenge for the burning down of the houses. They want to see the four accused behind bars, so they were prepared to give false evidence.
18. This argument works both ways. On the one hand, Charles, in particular, might be motivated by revenge as the house that he was living in (Joshua Apkosa's permanent house) was burned down. So he would have a motive for seeing that those responsible were punished. A guilty verdict would also support a compensation demand in respect of the houses burned down. On the other hand, if revenge is his motive, or Kevin's motive, it would be expected that they would want to see those who actually destroyed the houses punished. I am not convinced that any of the State witnesses were motivated by revenge to give false evidence.
Assessment of the evidence of State witnesses
19. I consider that their evidence was relevant, generally credible and of good quality. It put all of the accused at the crime scene, committing various acts implicating them in the burning down of the various buildings and structures.
2 WHAT IS THE NATURE AND QUALITY OF THE EVIDENCE OF THE DEFENCE WITNESSES?
20. Each of the accused plus an in-law of the late Simon Towakra, Roslyn Alphonse, gave oral evidence.
21. Anton Towakra was at the haus krai on the morning of 27 October. They had erected five canvas structures. Many people were present. They came from Galai 1, Buvussi, Kimbe and Bialla. He agreed that he went, with Elvis Dennis, to the Apkosa block at around 6.00 am. They were unarmed. He was standing on the road and saw two members of the Apkosa family, Andrew Kiambor and Alois Mandal. He called out to them as he wanted them to convey his K80,000.00 compensation demand to Lepman. They thought he had come to fight and got scared and ran away. Then he and Elvis saw smoke coming from Lepman's haus kuk. Elvis went to check if anyone was inside, as they still wanted to get their message across about compensation. Then Anton heard a commotion and saw that Elvis had been injured. He was shocked by this. He thought Elvis might be dead. Then he saw John Wanaku running into the block. He chased John all the way to the neighbouring block but could not find him. He wanted to take revenge, to fight or cut him for what he did to Elvis. John obviously feared for his life. When he returned to the area where the Apkosa houses are, he saw that they were on fire. But then he went straight back to his own block. Hs main concern at that stage was to check that Elvis was still alive.
22. In cross-examination Anton denied being angry after his brother died. He was sad, not angry. On the morning of the 27th, he was not cross with Joshua or Lepman or anyone else. He just wanted to mourn his brother's death and sort out the issue of compensation.
23. John Towakra said he was at the haus krai early on the morning of 27 October. He was measuring the coffin and had marked out the grave. Plenty of men were helping to dig the grave, including Carl Mathew and Thomas Warku. Anton had gone with their cousin-brother, Elvis, to the Apkosa block to ask for K80,000.00 compensation. John was preparing a pig when he heard, then saw, that Elvis had been injured. He does not know how. There was a big cut on his head and he lost a lot of blood. He thought he would probably die. He looked for transport to take him to hospital. Some of the mourners cried when they saw Elvis's condition. Others helped to take him to hospital. A lot of them ran towards the Apkosa block. He did not know what they were going to do. He did not go there. He denied carrying any yellow container. He denied instructing anyone to burn down Joshua's house.
23. In cross-examination John denied being angry when Simon died. He was at Bialla at that time. He denied being angry when he saw that Elvis had been injured. He is the sort of person who does not get angry. If a family member dies, he will not get angry, he said.
24. Carl Mathew has his own block at Galai 2, near the Apkosa block and the Towakra block. He has lived here all his life. Joshua and Lepman are his uncles. On the morning of the 27th he as at the haus krai, digging the grave. He was assisted by Thomas Warku and others. They were on the ground. He was inside the hole. He does not know what happened elsewhere. He did not see anything. He only heard that his cousin Elvis had been injured and that some houses had been burned down. When he heard that Elvis was injured, he felt no anger. He does not know if any of the other mourners were angry. When he climbed out of the hole, Elvis had already been taken to the hospital. He did not go to the Apkosa block.
25. Thomas Warku has lived at Galai 2 all his life. He lives on a different block to the Towakra family. He was at the haus krai on the morning of the 27th, digging the grave. He was inside the hole for a while. He came up to the ground and saw two women, Monica and Roslyn, carrying Elvis Dennis towards the haus krai. They were crying. They said John Wanaku had cut Elvis. He was angered by that and got the spade that he was using to dig the grave and went chasing after John Wanaku. He ran along the road, then along the boundary between the Apkosa block and Carl Mathew's block. There were plenty of people at the haus krai. Some went up to the Apkosa block. They were angry and shouting. Some stayed behind. He was not carrying a gun, only carrying a spade. He was angry with him for cutting Elvis. He wanted to hit John Wanaku with the spade, but could not find him. Then he retuned to the haus krai, taking the same route he had used when chasing John. He met Kevin Ambai on the way back and Kevin told him that John had run away. Thomas says he did not go to the area where the houses were burned. He was concerned about the approaching rain and the need to get the body buried. He just went back to the haus krai, his anger settled.
26. Roslyn Alphonse is the late Simon's sister-in-law. She lives at Kavui. She was at the haus krai on the morning of the 27th. She went with her in-law, Monica Vincent. They went to fetch water for cooking and for the men digging the grave. They went past the Apkosa block and saw that Elvis had been cut by John Wanaku. They cried and carried Elvis back to the haus krai. The people at the haus krai were sad when they saw Elvis's condition.
Defence counsel's submissions
27. Mr Gene asserted that all the defence witnesses gave credible evidence, which supported the proposition that the persons who burned down the houses were not the accused but the mourners at the haus krai who got angry when they saw that Elvis Dennis had been injured. To recap, the evidence of the accused was:
Assessment of the evidence of the accused
28. As to their demeanour, I do not think it was as strong as the State witnesses. The manner in which they answered questions gave the impression that they wanted to hide the truth. In particular, they seemed too keen to say that they were not angry about what had happened. They were not angry when Simon died, just sad. They were not angry (except for Anton and Thomas) when Elvis was injured. Anton was not angry about the failure of the Apkosa family to meet the compensation demand. He just wanted it sorted out. I agree with Mr Kuvi's submission that this is all too hard to believe. It would have only been natural for Anton and John to be angry – very angry – over their brother's death and angry over compensation not being sorted out before his burial. They would surely have been very angry upon seeing that Elvis had been injured by one of Joshua Apkosa's in-laws. I acknowledge that, as highlighted by Mr Gene, the evidence of the accused was generally consistent with their records of interview. I am not dismissing their evidence as a recent invention. It is, however, not believable. As for Roslyn Alphonse's evidence, it added little to the defence case.
3 WHAT IS THE RESULT OF WEIGHING THE DEFENCE EVIDENCE AGAINST THE STATE EVIDENCE?
29. The evidence of the defence witnesses is not credible and the effect of this is that the State's case remains intact. Having assessed the two bodies of evidence, I make the following findings of fact:
4 HAS THE STATE PROVEN THE ELEMENTS OF THE OFFENCES BEYOND REASONABLE DOUBT?
30. I now lay out the elements of the offence of arson under Section 436(a) of the Criminal Code and consider whether Sections 7 and 8 of the Criminal Code apply. Section 436(a) states:
A person who wilfully and unlawfully sets fire to ...a building or structure, whether completed or not ... is guilty of a crime.
31. The elements of the offence are that a person must:
32. The prosecution did not submit that all of the accused actually set fire to all the buildings and structures that were burned down. However, it was the prosecution's case that each of them, at least, aided, counselled or procured other persons to do that or formed a common intention to prosecute an unlawful purpose in the course of which three offences of arson were committed. Therefore they are each guilty of the arson offences that were committed. Mr Kuvi invokes Sections 7(1) and 8 of the Criminal Code for that purpose (see The State v Thomas Sange & Others (2005) N2805, The State v Jacky Vutnamur and Kaki Kialo (2005) N2848).
33. Section 7(1) (principal offenders) states:
When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—
(a) every person who actually does the act or makes the omission that constitutes the offence; and
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and
(c) every person who aids another person in committing the offence; and
(d) any person who counsels or procures any other person to commit the offence.
34. Section 8 (offences committed in prosecution of common purpose) states:
Where—
(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and
(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,
each of them shall be deemed to have committed the offence.
I now apply those laws to the three counts of arson.
Count 1: setting fire to (a) a permanent dwelling house and (b) a bush material kitchen house and (c) a bush material haus boi belonging to Joshua Apkosa.
(a) Permanent dwelling house
35. I am satisfied beyond reasonable doubt that at least three persons went into this building and set fire to it. They did so wilfully and unlawfully. All elements of the offence have been proven beyond reasonable doubt. John Towakra aided those who set fire to this building by providing the fuel for the fire and placing it on the steps. He is guilty by virtue of Section 7(1)(c). Anton and Carl formed a common intention with John to prosecute an unlawful purpose: burning down Joshua Apkosa's buildings. The commission of the offence by John – burning down Joshua's permanent house – was a probable consequence of that unlawful purpose. They are guilty by virtue of Section 8. Thomas was not identified in the evidence as being part of the group that raided this building. He is not criminally liable under Section 7(1). Generally, the evidence as to what Thomas did is vague. He had a gun. He pointed it at Kevin Ambai. That is all. He may have entered the scene only after Elvis was injured. He may have been intent on capturing John Wanaku. I am not satisfied that he had formed a common intention with any of the others regarding burning down any of Joshua's buildings.
(b) Bush material kitchen house
36. I am satisfied beyond reasonable doubt that Anton and Carl went into this building and set fire to it. They did so wilfully and unlawfully. All elements of the offence are proven against them beyond reasonable doubt. John formed a common intention with Anton and Carl to prosecute an unlawful purpose: burning down Joshua Apkosa's buildings. The commission of the offence by Anton and Carl – burning down Joshua's kitchen house – was a probable consequence of that unlawful purpose. He is guilty by virtue of Section 8. Thomas is not guilty for the same reason as set out under count 1(a).
(c) Bush material haus boi
37. The evidence is unclear as to how this building was burned down. This part of the charge has not been proven.
(d) Conclusion re count 1
38. Anton, John and Carl are guilty of arson regarding Joshua Apkosa's permanent dwelling house and kitchen house. They are not guilty regarding Joshua's haus boi. Thomas is not guilty of any offence under count 1.
Count 2: setting fire to (a) a semi-permanent dwelling house and (b) a bush material kitchen house belonging to Maria Apkosa.
39. The evidence is silent on how Maria Apkosa's buildings were burned. Mr Kuvi has invited the court to draw the inference that those who are proven to be guilty of committing arson in relation to other buildings must have set fire to or aided others to set fire to Maria's buildings. This argument relies too heavily on circumstantial evidence. The test for proving guilt by circumstantial evidence (the proven facts must lead to guilt as the only reasonable inference, Paulus Pawa v The State [1981] PNGLR 498; Devlyn David v The State (2006) SC881) is not satisfied. I find all four accused not guilty of count 2.
Count 3: setting fire to (a) a permanent dwelling house-canteen and (b) a bush material kitchen house belonging to Lepman Apkosa.
(a) Permanent dwelling house-canteen
40. I am satisfied beyond reasonable doubt that Anton and Carl broke into this building and set fire to it. They did so wilfully and unlawfully. All elements of the offence are proven against them beyond reasonable doubt. John Towakra took part in the raid on this building and by doing so aided those who set fire to it. He is guilty by virtue of Section 7(1)(c). Thomas is not guilty for the same reason as set out under count 1(a).
(b) Bush material kitchen house
41. The evidence is unclear as to how this building was burned down or who set fire to it. This part of the charge has not been proven.
(c) Conclusion re count 3
42. Anton, John and Carl are guilty of arson regarding Lepman Apkosa's permanent dwelling house-canteen. They are not guilty regarding Lepman's kitchen house. Thomas is not guilty of any offence under count 3.
VERDICTS
Anton Towakra
John Towakra
Carl Mathew
Thomas Warku
Verdicts accordingly.
______________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the Accused
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