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State v Nalau [2017] PGNC 407; N7494 (7 August 2017)

N7494

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.985, 986, 987 & 988 OF 2016

THE STATE

-V-

SILAS NALAU,
GABRIEL YANA,
BOB ANDREW and
ANKO KINONG

Lae: Pitpit, J
2017: 4^th & 7^th August

CRIMINAL LAW – Arson- Accuseds pleaded not guilty-s.436 (a) Criminal Code Act

CRIMINAL LAW – Practice and procedure – Submission of no case to answer – question of law

Held:

Where evidence of recognition of the identification of the accused as the perpetrator has been given; question of weight and credibility is to be reserved until all of the evidence is in.

Cases Cited:

The State-v-Lasebose Kuriday [1981] N300
The State-v- Paul Kundi Rape [1996] PNGLR 96
The State-v- Roka Pep [1983] PNGLR 19
The State-v- Tom Morris [1981] PNGLR 493

Counsel:

Ms P.Matana, for the State
Mr I. Tjipet, for the Accused Persons

DECISION ON VERDICT

7^th August, 2017

1. PITPIT, J: In this case the State had indicted the following persons Silas Nalau, Gabriel Yana, Bob Andrew and Anko Kinong on one count of Arson pursuant to section 436 (a) of the Criminal Code.
   
2. The State had alleged that on the 20^th of February 2016, at around 10.30pm at Wombon village, Huon Gulf District, Morobe Province, Papua New Guinea, the named accused persons did each and severally wilfully and unlawfully set fire to the dwelling houses of Marie Gabriel and Glenn Hagore.
   
3. That at the said date and time, the said Marie Gabriel, her two younger sons (Elton Hagore and Mike Hagore) and her sister one Elizabeth Hagore were sitting having their dinner at their house when a person by the name of Guma Gero had gone into their premises, and threatened them saying; that he would go get the boys to come get them and cut their necks with bush knives.
   
4. That Guma Gero had then left and sometimes later, returned with a group of men. She said they could hear the group coming as they were making loud noises when they were coming. she named them as; Silas Nalau, Anko Kinong, Aisaia Gabriel, Pastor Yana Gero, Bob Andrew, Silas Ezekiel, Gabriel Anko, Erap Saling, Aisaiah Silas and Minzeng Charits.
   
5. She said, these men were armed with dangerous weapons such as axes, bush knives, grass knives, sticks, stones and two 20 litre containers of what she believed to be petrol to burn the houses with.
   
6. She claimed that Guma Gero, Aisaia Gabriel, Pastor Yana Gero, Silas Ezekiel and Anko Kinong then poured petrol to the houses and set fire to them.
   
7. The following properties for her elder son Glenn, that were also burnt with the houses included chainsaws, four generator sets, a welding machine, a circular saw and other household properties.
   
8. The State also alleged that this offence had arisen due to a long outstanding family dispute over land.
   
9. The accused had each and severally pleaded not guilty denying their involvement in the commission of the offence.
   
10. The State in its endeavour to substantiate the charge had tendered into evidence by consent of the Defence, the record of interview of each of the accused persons.
    
11. In addition to the record of interview of each accused, the State also called two witnesses who then given sworn oral testimony. These were Marie Gabriel and her son Mike Gabriel.
    
12. Marie Gabriel – The witness was sworn and gave her evidence in pidgin. She recalled the 20^th of February 2016. She recalled it was 10.30pm that night. She said they were all at the kitchen having their dinner. Her two young sons, her big sister Elizabeth and herself when Guma Gero had come into their premises and started threatening them. He was armed with an iron bar and he was saying he would go and come back with boys to chop their necks. He then left and some minutes later, they then heard and saw him return with a group of men. The only source of light then, was a small lamp.
    
13. She said as they were coming they were shouting very loud and sounded aggressive. They were calling her son’s name and saying in pidgin, “Glenn kaikai kan blong mama blong yu na, go insait hul blong mama blong yu.”
    
14. She said they appeared to be drunk and were armed with all sorts of weapons such as axes, bush knives, grass knives, sticks, stones and also had with them two containers of 20 litres of petrol.
    
15. She named these men as Silas Nalau, Anko Kinong, Aisaia Gabriel, Pastor Yana Gero, Bob Andrew, Silas Ezekiel, Gabriel Anko, Jovi Kake Man, Aisaia Silas and Minzeng Charits.
    
16. As they came into the premises, they were screaming kukim haus, kukim haus and they began chopping down their garden crops such as banana trees, coconut trees, betelnut trees and flowers etc.
    
17. The only light that night was from a small lamp, a torch and the fire from the burning houses.
    
18. She had agreed with the defence counsel on cross-examination that when they heard the group of men screaming out abusive languages, threats and approaching, she was frightened and scared. And as they began to start chopping their garden and fruit trees, she realised they meant business so she became more scared and terrified that she decided to take her two children and together with her sister they escaped into the darkness for their safety.
    
19. When questioned by the Court as to how she was able to identify these men when there was very little or no lighting at all, she insisted, that she was able to identify them because she recognised them according to their voices because they were her relatives and she recognized their voices.
    
20. She was adamant that the accused persons were responsible and involved in the attack and burning down of their houses and other properties.
    
21. The second State witness was Mike Gabriel the 13 years old son of the first witness Marie Gabriel who was sworn at. He gave his evidence in the pidgin language.
    
22. He started by saying that he could recall the 20^th day of February 2016. It was at 10.30pm that night, he was with other brother, their mother and their aunt in the kitchen having dinner when Guma Gero came to their house and started hitting the post of their house and swearing at his elder brother Glenn and threatening his mother and aunt. He said Guma was armed with a softball bat and struck the posts and the side of the house.
    
23. He said he had been very scared, frightened, terrified and hid near the kitchen and watched Guma Gero. He said Guma Gero had threatened to go get some boys and they would come back and cut their necks.
    
24. He said not long after Guma Gero had left, he heard the voices of a group of people coming their way.
    
25. He said they were shouting, “kukim haus” and “ronim ol”. They were shouting and swearing and he said he was frightened and very scared so, he went and hid at the side of the kitchen and watched.
    
26. He said he saw the following persons and named them in the following order; Silas Nalau, Anko Kinong, Aisa Gabriel, Pastor Yana Gero, Bob Andrew, Silas Ezekiel, Gabriel Anko, Stanley, Aisaiah Silas and Minzeng Charits.
    
27. He said they all appeared to be drunk and under the influence of liquor and were armed with various dangerous weapons such as axes, bush knives, grass knives, sticks, stones and two containers of 20 litre petrol.
    
28. He claimed to have seen the four accused persons taking active part in pouring petrol to the houses and burning them to the ground. He said he was hiding in the bushes but was able to clearly see what each of these men were doing from the light of the fire.
    
29. At the end of the testimony of this witness, the State had then formally closed its case.
    
30. The defence had then made a no case submission based on the first limb of the principle in the case of the State-v-Paul Kundi Rape [1976] PNGLR 96. On the basis that the State had failed to clearly proved the identity of that the perpetrators as accused persons.
    
31. The law in so far as no case submission is now firmly established and has been held that;
    

“..where there is a submission of no case to answer at the close of the case for the prosecution, the question to be asked is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is a question of law; to be carefully distinguished from the question of fact to be asked at the close of all the evidence whether the prosecution has proved its case beyond reasonable doubt.”

32. The no case submission in a criminal trial is normally made by the defence at the closure of the case of the prosecution on two situations.
    
33. First, where there is no evidence or no more than an iota of evidence, to support or prove anyone of the elements of the offence charged. In such cases, because, there is really no weighing of the evidence, it appears to be more mandatory rather than discretionary – that one can almost say that in such a situation, it is not a discretionary but mandatory for the Magistrate or Judge to stop the case and acquit the accused. It would be one of those cases as described in the case of The State –v- Lasebose Kuriday (1981) N300 where it would be the sort of case where the court itself would consider acting on its own initiative to stop what amounts to a waste of its time and public money.
    
34. The second situation is where there is more than an iota of evidence relating to each of the elements of the offence charged, but such evidence is so dubious, or so tainted or so obviously lacking in weight or credibility or has been discredited in cross-examination that it is clear that no reasonable tribunal could safely convict on it, the Magistrate or Judge may exercise his or her discretion to stop the case and acquit the accused.
    
35. It is important when considering the second situation to always remember that there must be very minimum weighing of the evidence. The question of weight and credibility must as much as possible, be kept out of the consideration altogether: R-v-Uno Tom (1973).
    
36. The question of whether a reasonable tribunal would have a reasonable doubt at the close of the prosecution’s case would no doubt shift the burden of proof to the accused and this would be clearly contrary, to the established principles of the Criminal Law in our jurisdiction.
    
37. It is therefore important for the interests of a fair trial that a Magistrate or Judge is never required to weigh up the evidence before him or her more than once. It would be more appropriate when all the evidence is in.
    
38. Returning to the case at hand, the accused persons were each and severally charged with the offence of Arson pursuant to s.436 (a) of the Criminal Code. The section reads:
    

A person who wilfully and unlawfully sets fire to

(a) a building or structure, whether complete or not; or

......

Is guilty of a crime.

39. The element of the offence that need to be established in this case are that:
    1. a building or structure was destroyed by fire,
    2. the accused persons set the fire to the building or structure and,
    3. they, did so, wilfully and unlawfully.
       
40. The two witnesses called by the prosecution have both given evidence that they saw each of these accused at the scene of the crime at 10.30pm on the night of the 20^th February 2016 together with others setting fire to the houses of Marie Gabriel and Glenn Hagore.
    
41. I had found there are some evidence on all of the elements of the charge that the accused persons could each and severally be lawfully be convicted on the charge at point, subject of course, to question of weight and credibility when all of the evidence is in.
    
42. In view, of these principles and the state of the evidence by the two State witnesses especially with respect to the evidence identification at that point, the court had ruled that each of the accused persons had a case to answer I therefore found that the accused persons each and severally have a case to answer.
    
43. Following the ruling by the court, Defence had informed the court that the accused persons have each and severally decided to exercise their right to remain silent and furthermore, defence would also not be calling any further evidence.
    
44. At the closure of the defence case, the only evidence before the court were the evidence presented to the court by the State. These were: 1. Record of Interview of each of the Accused persons; 2. The various statements by the investigating officer and the corroborators of each respective interview.
    
45. The accused persons through their counsel have decided to exercise their rights to remain silent so they had closed their case without calling any evidence. The only evidence before the court were the evidence by the two State witnesses and the Records of Interview by each of the accused persons and the Statement of the investigating officer and the corroborator. There were also a number of photographs of the remains of burnt down houses and properties but these were objected to and not admitted into evidence.
    
46. Upon considering the whole of the evidence, I have found that there were houses that were burnt or destroyed by fire, furthermore, I have decided to accept the evidence of the two state witnesses evidence up to the point when the group of people began to chop down their garden crops, fruit trees and flowers. I have also accepted the stories of the two witnesses in so far as their evidence came to when they heard the group of people approaching their premises shouting, screaming, swearing and threatening to burn their houses and go after them.
    
47. Following from this onwards, I find that the evidence of the witnesses were beginning to get execerated to the point were they claimed that they could see exactly what each of the accused persons was doing from 50 metres away in the dark and under the mental conditions that they were in. Not to mention the chaotic activities that was going on. None of the witness was able to clearly identify one of the accused persons by his action, words he was to have said, clothes he was wearing, the weapon he carried, etc. I believe they were named because they were the leaders and they had a long outstanding land dispute with them. I also find that the state witnesses’ stories were fabricated. This was very apparent when it came to the naming of the people they claimed to have seen. Both witnesses gave the name in exactly the same order. They were also very particular about the time 10.30pm. One would have expected slight variation but both were insistent. When pushed to the limit, the second State witness revealed his true execrative propensity by claiming to have seen the time on his mobile phone.
    
48. I have warned myself of the dangers that a mistaken witness can make in identification cases and I am of the opinion that the two State witnesses are not witnesses of truth.
    
49. I find the accused persons namely, Silas Nalau, Gabriel Yana, Bob Andrew and Anko Kinong not guilty and order that they be discharged forthwith.
    
50. I further order, that their respective bail monies and guarantors’ surities be refunded forthwith.
    

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendant