State v Warren (No 1) [2003] PGNC 98; N2417 (18 June 2003)

N2417

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 70, 165, 167,169 & 176 of 2002

THE STATE

-V-

ROBIN WARREN,
ARON KOFA,
FRANSON KOFA,
ANREW UNDUKU POKAPIN AND
JOHN NAKON GABSIE
(NO. 1)

WEWAK: KANDAKASI, J.
2003: 11th, 12, 13th and 18th June

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 that need to be called – Parties and the Court should not readily depart from issues settled at trial except on convincing and good reason – Courts and parties need to be guided by the Constitutional dictates for a trial to take place within 4 months of committal – s. 37(14) Constitution.

CRIMINAL LAW – PRACTICE & PROCEDURE – When identification is an issue for trial –Need to warn of dangers of purported identification - Court satisfied that the accused were positively identified as persons involved – Guilty verdict returned – s. 436 (a) and (f) Criminal Code.

CRIMINAL LAW - Verdict – Arson – Group raid - Issues for trial as settled at pretrial identification only – Effect of – Other essential elements of the offence not in issue - Claim of alibi raised before trial – Effect of –Recent invention unless earlier indicated – State discharged onus to establish prima facie case – Defence evidence lacking in consistency and exaggerated resulting in failure to rebut State’s case – Guilty Verdict returned – s. 436 (a) and (f) Criminal Code.

Cases Cited:
The State v. Jackson Bairom (04/06/03).
The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266.
John Jaminan v. The State (N0.2) [1983] PNGLR 318.
The State v. Tauvaru Avaka & Anor (2/11/00) N2024
Gibson Gunure Ohizave v. The State (26/11/98) SC595.
The State v. Stuart Hamilton Merriam [1994] PNGLR 104
The State v. Moki Lepi (No.1) (30/4/2002) N2264.
The State v. Dobi Ao (2)(01/04/02) N2247.
John Beng v. The State [1977] PNGLR 115.
The State v. Raphael Kimba Aki (26/01/01) N2039.

Counsel:
Mr. P. Kaluwin for the State
Mr. G. Korei for the Accused

18th June, 2003

KANDAKASI J: All of you five men pleaded not guilty to 21 charges of arson contrary to s. 436 (a) and (f). Nineteen of these are allegedly for the burning of dwelling houses, owned by Freddie Kavi (x4), Thomas Homboku (x2), Cosmos Sawar (x1), Rueben Imus (x1), Patrick Hambaku (x1), Evelyn Yaiwara (x1), Michael Kavi (x 2), Leo Hombi (x2), Henry Hombi (x1), Francis Kavi (x1), Ronald Jayare (x1), and Dominic Uraiwa (x2). The remaining two are allegedly for the burning down of two motor vehicles respectively owned by John Jaminan and Evelyn Yaiwara. You were alleged to have committed these offences at the Koiruo camp just outside Wewak on the 24th of September 2001.

Issues for Trial

At the pre-trial last month, all of you confirmed through your lawyer that the only issue for trial was identification. But before the trial commenced, you also raised the issue of alibi by filing a notice of that on the day of the trial. So the issues then for trial were both identification and alibi. Effectively, therefore you claimed that you were not at the scene of the crime at the time of its commission as you were elsewhere. The State thus had the obligation to prove that you were there at the scene of the crime at the relevant time and committed the offences. All other aspects of the charge against you were thus not in dispute.

You argued after the trial however that, other issues such as the number of the houses allegedly burnt and your claim of alibi were also issues in the trial. This is contrary to the effect and what was settled at the pretrial. Pretrial is a process in our criminal justice system (Order 2 – Criminal Practice Rules 1987) that enables the parties and the Court to settle amongst other the issues for trial. Then depending on the issues for trial, it is also the process that helps the parties and the Court to determine the evidence and the number of the witnesses to be called. That then sets the stage for the Court to determine and fix the duration of trial. This is a very critical and important part of our case management process. It is a necessary process when judicial time and resources are very limited and so are the resources and the ability of the law and justice sector to promptly reach and dispose of cases within the dictates of the Constitution, particularly s.37 (14). It is my view that, it is a poor management of this process and the eventual flow through at the trial stage that is contributing to the huge backlog that builds up every day in our Courts. Accordingly, it is imperative that parties should be held to their representations at the pre-trial with the Court staying guided with what was settled at the pre-trial when conducting a trial. Unless this is done, the huge backlog of cases will continue to a level that eventually blows out and out of control.

The Constitution in s. 37 (14) speaks of a criminal trial, taking place within 4 months of committal. Despite that, we have cases still pending on the trial list but not yet reached with some of them passing the 2 to 3 years range. Much of the focus in my view has been on the requirement for an accused to be given a fair trial under s. 37 of the Constitution. This has been in my view, much to the exclusion of any regard to the provisions such as subsection 14 and an appreciation that this right as much as is an individual right, it is a collective one for all accused persons. Whilst I appreciate that an individual accused person must be accorded his right, the rights of other accused persons to a fair and prompt trial must also be borne in mind. What this means to my simple mind is that, the essential rights and protections the law provides for the benefit of an accused person must be accorded but that does not necessarily mean that the limited resources of the people should be exhausted only on one accused. I consider it to be an abuse of such a right for an accused to force the State, for example, by a general denial knowing fully well that he is guilty or that he has no good defence to put the charge against him to trial.

As I recently noted in The State v. Jackson Bairom (04/06/03), the presumption of innocence does not necessarily give a right to an accused person to put the State to the task of proving a charge against him when he has no good defence at all. All it does is that, it puts an obligation on the State to prove a charge against an accused person according to law. This in my view has to do with amongst others, the way in which Police carry out their investigations, preservation and presentation of the relevant evidence in a court of law according to the rules of evidence. It also includes the right for an accused to be heard in his defence before final judgement on his or her guilt or innocence. I do not consider that it was intended to give a right to an accused person to unnecessarily force the State and therefore the people to incur substantial costs to establish the charge or charges against him or her.

It is in the interest not only of an accused person but the whole country that the limited resources of the nation be not wasted in forcing the State to establish a charge against an accused person who has no defence whatsoever to a charge against him or her. The State neither has the money nor all the necessary convenience as do developed states such as Australia or elsewhere to meet the challenges this presents. The number of our judges is limited and they can only do a few cases at a time. If every accused person was to force the State to prove the charges against him or her just for the sake of it, others who have good defences would have to wait for their trial for years beyond what is presently being experienced.

The concept of presumption of innocence is a foreign concept. These were imported into our jurisdiction from outside from places like the United States of America, the champion of human rights, Australia and England. In recent times, however, as I again observed in The State v. Jackson Bairom (supra) some of these countries are requiring by deliberate provision being made in their Court rules for accused persons to specify their defence before the trial commences. Influenced by these developments but more so out of a desire to reach the many unreached cases on our pending list and to be current with committals, the present criminal practice rules are being reviewed for a better case management system. In the drafts under discussion, processes such as a pre-trial, are given great importance in the whole case management system.

Bearing these in mind, I consider it necessary for an efficient management and better and timely disposition of cases that, parties should be held to their representation to the Court at a pre-trial or indeed at any stage of the way. This will bring about certainty in approach and getting cases disposed off within the time periods allocated rather than be faced with adjournment challenges and or blowing out circuit time and resources. There would of course be cases in which there will be a need to depart from representations by the parties. In such a case, I am of the view that a party wishing to depart from what was settled should make out a good and convincing case for it.

In your case, no case was made out for a departure from the issues settled at pre trial. I am therefore not persuaded that, apart from the issue of identification, all the elements of the offence with which you have been charged are in issue. You were not able to provide any reason as to why the Court should treat every element of the offence to be in issue when the issue on which this matter was put to trial was identification. Nevertheless, I am of the view that the issue of alibi is closely connected with the issue of identification and I find that the issue is not a new issue. However, since it was not formerly raised within the time frame stipulated by the Rules of the Court, Order 4 (4) and (8), I will address that issue further when I come to deal with the claim of alibi and the evidence called in support of it.

Undisputed Facts

Before turning to a consideration of the case both for and against you, let me first note and make findings of facts in areas that are not in dispute by reason of the issues for trial as well as the undisputed evidence before the Court. There is no dispute that 29 houses and two motor vehicles were burnt down at the Koiruo camp on the 24th of September 2001. This took place early in the morning between 5:30 am and 7:00 am. That was in revenge of Odilya stabbing Wendy with a knife, which eventually led to Wendy’s death. Except for an unspecified land dispute and an argument over a motor vehicle owned by Mr. Jaminan with some unspecified people, the key State witness personally had no trouble with any of you. He therefore, had no reason to falsely accuse you of having committed the offences. Further, he knows you all well and nearly all of you agree that he could not be mistaken in his identification of you. But you dispute that you were there at the scene of the crime. You therefore claim that he was lying when he said he saw you at the scene.

Others that were involved in the burning down of the houses and motor vehicles have not yet been arrested and charged. This is because the victims want you five men as the leaders of the group to be dealt with first. Recently, a Daniel Uruanagu has been arrested and is in police custody for the same offence purportedly on him surrendering to police after having spoken to your lawyer recently before your trial. He has otherwise been on the run according to Senior Constable James Wangihombie.

There was a big crowd and police consisting of only two men, had to fire gun shots into the air to disperse them and move the crowd away from the scene first. No arrests were thus made immediately at the scene of the crimes after their commission.

Finally, there is no dispute that John Nakon Gabsie did own a yellow Nissan double cabin. He did drive the vehicle on the day of the offence between 5:30 and 7:00 am on the day of the offences.

The Evidence

The State called its key witness Freddie Kavi (alias Eric Kavi), one of the victims of the arson in a bid to establish the charges against you. It also admitted into evidence with your consent your respective records of interview, in the Pidgin and English language versions. On your part, all of you gave evidence under oath and called two additional witnesses in a bid to establish your claim of alibi and hence rebut the evidence called by the State. On the suggestion of the Court and upon the agreement of the parties, the scene of the crime was visited at the end of receiving all of the other evidence in Court.

State’s Case

The key State witness, Mr. Kavi, identified all of you as the persons who came in a group armed with weapons including guns. You came and committed the offences because a Odilya who lives at the Koruo camp stabbed with a knife and eventually caused the death of one Wendy from the Wom Junction area. He said he was able to identify you all because he knows you all very well. Further, he said he was not mistaken in his identification of you because he knows you and that the day was just breaking and he was already outside when he saw you driving into the Narakobi Vocational School (NVS) road. The lights from that school also assisted him to clearly see you drive in, in John Nakon Gabsie’s vehicle, a Nissan double cabin, yellow in colour, which was loaded with people.

After having parked the vehicle near the school, you walked over to the entrance of the Koiruo camp, firing two gunshots into the air. That made him to call upon and fetch his brothers and come over to the entrance area of the camp and face you. Then you, Andrew who he said was leading the group said "you all vagina, what kind of people are you? You already killed a man and now a woman. Hit them, burn down their houses." You made them frightened but they managed to tell you that they had no trouble with you and offered to and indeed led you to the house where Odilya, the trouble maker stayed which was further away from the road and his own house.

Upon reaching Odilya’s place, he said you started to burn down houses and destroyed other properties all the way up to the witness’s own houses, six in total, 3 dwelling houses and 3 ground houses. On the way, he said you, Andrew swore at an Evelyn Yaiwara and fired a shot from the gun you had into the air. At that moment, a Gibson who came with you burnt down two motor vehicles, one belonging to John Jaminan and the other belonging to Evelyn Yaiwara. Evelyn also lost a dwelling house. He named the others who lost their houses as, Ronald Jayare, Patrick Hambaku, Thomas Homboku, Julie, Cosmos Sawar, Dominic Uraiwa, Leo Hombi, Michael Kavi, Francis Kavi, Ruben Imus and Henry Hombi.

After having burnt down the houses and 2 motor vehicles, you, Andrew led your group of men with some of the properties you stole and your weapons and ran to John Nakon Gabsie’s vehicle. You then got on the vehicle and left except for Andrew who was trying to get on the vehicle but did not as the police arrived at the scene.

He also said he was in a state of shock after having lost his houses. As such, he was not in a position to immediately assist the police in terms of identifying the perpetrators.

He further said, he and his brothers and the others in the camp could not do anything because they were frightened and rendered helpless by your group being armed and that you had threatened them. Moreover, he said the previous day, being Saturday the 23rd you, Robin Warren and several other boys came to fight with his people over Wendy being stabbed by Odilya. But you were talked out of it and you left without doing anything.

Second Witness – Samuel Akike

This witness is the policeman who was assigned to head the investigations into this incident. He confirms there was a raid and burning down of 29 houses and 2 motor vehicles at the Koiruo camp. The offences were committed by a group of people, including you, and the victims provided a list of all that were involved to the police. He also confirmed that the victims wanted you, as those leading the rest of your group to be dealt with first. It was also due to limited police resources to arrest and deal with everyone that was involved. Accordingly, police did not arrest Daniel Uranagu yet. He was thus not aware that Daniel had surrendered to police recently and that he has been charged.

I now go on to state and comment on each of your evidence. I start that with Robin Warren and the order in which you were indicted and you gave evidence.

Robin Warren

Robin Warren, you said you were asleep in your big brother, Francis Warren’s house at Tangara. In the house were your parents and your big brother, Francis. You make no mention of another person being there. Your brother, Francis spoke of his wife and two children also being there. So your evidence differs in this respect.

You said, you and your brother shared one room. Whilst you were still sleeping, your brother woke you up to drive him in his vehicle to find out about the trouble at Koiruo camp. Your brother was not able to drive because he was sick on both of his legs.

You got out of bed and then drove your brother, Francis, your father William and an uncle Arnold Wanpis in your brother’s vehicle, a green Toyota Land Cruiser heading for Koiruo camp. This was between 4:00 and 6:00 am. About a kilometer away, you saw a lot of people returning from the trouble area heading for Tangara, so you slowed down and asked Aron Kofa, his wife and child as well as Andrew Undoku Pokapin "you go down to stop those who burn down the houses?" They answered, they could not because there were a lot of people so they were trying to go back. As will be noted in due course, Francis makes no mention of this.

You continued and stopped on the side of the road beside the NVS, on a feeder road leading to Yawosoro government compound. This was about 7:00 and 8:00 am. After watching the scene of the houses burning for about an hour, you left back for Tangara through the Yawosoro compound road at about 9:00 am.

At the scene, you saw a lot of people. You also saw a police vehicle, a Nissan double cabin and two policemen, namely James Wangihombie and Tupiri Orae, who is an in-law to you. You said you knew these men and also Freddie Kavi well. Furthermore, you said Mr. Kavi was lying when he said he saw you as one of the arsonists at the scene. You went on to say that Mr. Kavi was mistaken in his identification of you. Moreover, you said the cause of the trouble was Odilya stabbing Wendy with a knife. Odilya, you said lived at Koiruo camp while Wendy lived at the Yawosoro compound. The distance between the Yawosoro compound, Koiruo camp and Tangara are about 4 kilometers away.

Additionally, you said you know the people who live at Yawosoro and Tangara. If any one from these places where at the scene of the crimes, you could have recognized them. Hence you said you saw some of the people from the Yawosoro compound but none from Tangara, except for your elder sister-in-law. When pressed under cross-examination to call the names of the people you could tell, you said you forgot their names. You denied seeing any of your accomplishes including Andrew Undoku Pokapin. This is an important inconsistency when contrasted with Andrew’s own evidence that he was at the scene at about the relevant time. John Nakon Gabsie’s evidence supports the evidence of Andrew being there because he drove past him at the School Bolo Stuakipa (SBS).

In relation to any relation with Wendy, you said you have none. As such, you did not attend her funeral, although you knew where it was being held, at the Wom Junction and went to the area. But you do know her brother, Daniel Uranagu. When asked as to whether, you saw him at the scene of the crime, you said no but added that, if he was there you would have recognised him. This is inconsistent with Andrew’s evidence that he saw Daniel at the scene.

You have nothing against Mr. Kavi personally and he has nothing against him personally. There was however, an argument sometime ago prior to the arson. That was over a PMV owned by John Jaminan bought by some funds belonging to the electorate. But you did not go as far as saying this was sufficient to cause Freddie to come to Court and falsely testify against you.

Aron Kofa

Aron Kofa, you said you come from Para but reside at Yarapos. Under cross-examination, you said you own the land you live on. I therefore take it that you are not a settler.

You also said you are of no relation to Wendy or her people. Instead, you are related to Odilya through marriage. That is why Vincent, Odilya’s and that of your wife’s brother came and stayed with you out of fear of being attacked by Wendy’s people, following the stabbing of Wendy. The visit of the scene confirms that he had to pass through the Wom Junction, where Wendy’s funeral or mourning place was. Given this, could he have come to you? I doubt it because it could have been more dangerous to pass through enemy territory.

Further, you said, between 5:30 and 7:00 am, you were at your house at Yarapos. You then had your wash and were waiting for your then employer’s, (Garamut’s) pickup truck. Since this was a Sunday, you ought to have made it clear that you were required to work and produce evidence to support it but you did not.

Before your pickup truck arrived, two women, Josephine Basu and Lucy Pore told you that Wendy Uranagu died and she was at the hospital morgue. So you decided to go to the Wom Junction where Wendy lived and find out more about it. You, your wife, your second born son and your younger brother, Franson walked to the Wom Junction. This was between 6:30 and 7:00 am.

When you reached Wom junction, you saw village leaders, Tom Fiamba, Lalen Thomas and John Fiamba. They told you that all the boys had gone to Yawosoro. Whist you were there, you saw black ashes falling down from the air. Therefore you with your wife and child continued to find out what was happening. You did not say what became of or what Franson did.

Then when you reached Peter Polenduo’s place, you saw a police vehicle turning a curve and turning into the first Yawosoro road made a U turn and stopped on the side where the houses were burning. You stood on the opposite side of the road near the NVS and watched the burning houses. Police therefore got to the scene after you.

Further, you said you know your co-accused well. So if anyone of them was there at the scene, you could have recognised them. Hence you saw Andrew Undoku standing on the side of the road. He told you that he tried to stop the trouble but could not succeed. You did not see Robin Warren or any of the others. But when suggested to you that Robin must have lied when he told the Court that he drove his brother’s vehicle to the scene and was there, you said you saw him drive passed at Polenduos’ place heading for Wom Junction. As such, he was not there when the police arrived. This is inconsistent with Robin’s and Francis’ evidence that they were there at the scene watching the house being burnt down as well as police doing their job and leaving about 9:00 am.

Further, you said you also know Daniel Uranagu but were not able to tell if he was there at the scene. If he was there, you could have recognised him. You could not recall seeing him there. This is inconsistent with the evidence of Andrew. Similarly, you could also not recall seeing a green Toyota Land Cruiser at the scene or anywhere near it. This is inconsistent with Robin and Francis’ evidence that this vehicle was parked on the NVS road until they left about 9:00 am.

As you stood watching, you saw the policeman sitting in the crew side come out and fired a shot from his gun into the air to disperse the crowd. The crowd came out and went away from the scene. When they came out, you did not see any of them armed with anything. At that stage you, your wife and your child turned back and headed back for the Wom junction. Andrew says he returned with you but you do not make any mention of this.

From Wom junction, you left your family and got on Leo Sengi’s vehicle, a yellow Toyota Land Cruiser, with James Hagori and Kalen Thomas’ wife, who is a sister at the hospital, went to the hospital to take Wendy’s body from the morgue. You picked up Wendy’s body from the hospital between 9:00 and 10:00 am.

In your record of interview with police, it is clear that you attended the funeral. In question and answer 20, you state that you were at the funeral or mourning place when police came and got you and took you and John Nakon Gabsie to the police station and were eventually arrested in relation to the incident.

You too know Freddie Kavi well. You said you have an ongoing land dispute with his people. One of your uncles was assaulted sometime ago over the land dispute. You and his people share a common boundary. Therefore you claim that, Freddie would do anything to hurt you. But you have had no personal dispute or trouble with him.

Franson Kofa

Franson Kofa, you are the younger brother of Aron Kofa. You corroborate what Aron has said especially from sleeping in his house and getting down to the Wom Junction at about 7:30 am after having left the house at about 6:30 or a few minutes to 7:00 am. You then speak of leaving Aron with his wife and second born child there and getting to your place of work, informed your employer of Wendy’s death and returned to the village at Yarabos. As noted, Aron makes no mention of you doing that, especially when you were travelling together and that the same employer employs you.

When you passed by the Koiruo camp, you saw houses burning down and a lot of people around. But you were not able to tell the faces of any of those who were around although the driver of the PMV you traveled on slowed down. You also stated that you saw a police vehicle parked at the scene as opposed to Aron saying the police arrived after he with his wife and child had arrived or if not as they were arriving. Who went before who is not clear in yours or that of your brother’s evidence.

Consistent with Aron but contrary to Robin Warren, you did not see a Toyota Land Cruiser at the scene or near it as you drove past. You also deny any involvement and have failed to provide any reason as to why Mr. Kavi could name you as one of the persons involved unlike your brother, who links it to a land dispute between your people and that of Mr. Kavi’s.

Andrew Undoku Pokapin

Andrew Undoku Pokapin, you are also a resident of Tangara although you originally are from Harigan village. In the early hours of the 24th of September 2001, you were home. A Wanpis came and told you that Wendy died from knife stab wounds she received from Odilya. So you went to the Wom Junction to confirm her death. When you got there, you saw Councilor Tom Fiamaba and his brother as well as others who had gathered there. Then you and two others continue to Koiruo camp.

While you were on your way, you said John Nakon Gabsie drove passed in his vehicle, a Nissan double cabin, yellow in colour in the direction of the Wewak Township. Then as you got to the SBS and the AOG church, you saw smoke and fire so you went on to see what was happening. You got to the scene of the crimes and stood on the side of the NVS and watched as Wendy’s brothers burn down houses at the Koiruo camp. While you were there, the police, namely, James Wangihombie and Tupiri Orae arrived. They came and made a U turn on the NVS road and came to a stop. Then Tupiri Orae fired a shot from his gun into the air to disperse the crowd and told Wendy’s brothers to leave the scene and come out.

As the brothers of Wendy came out of the scene, you saw Daniel Uranagu coming out and going past you. But could not tell or recognise the others as they wore masks and had their shirts cover their faces. None of the co-accused who got to the scene, for example Aron or Robin confirms this. That aside, you went on to say, you saw Aron and his wife and you spoke to him. You then followed police orders to return to the Wom junction with Aron and his wife, something Aron did not testify to.

You too did not see Robin Warren or his brother’s vehicle described as green Toyota Land Cruiser parked at the scene. But you did say that as you were returning, you saw Robin drive pass in his brother’s vehicle. You also said in cross-examination that you spoke to Robin.

Subsequently, police arrested and charged you and your co-accused for these offences. Whist you were in police custody, you saw Daniel Uranagu brought into the police station. But he was not arrested and was on the run until you picked him up and went and saw the public solicitor at the Windjamer Beach Motel not long ago. He surrendered to police on the day of the incident but the police let him out and has been since out on the run.

Finally, you said you saw Aron Kofa on the side of the road close to the NVS. Aron confirmed this in his own evidence.

John Nakon Gabsie

John Nakon Gabsie, you are a soldier with the PNG Defence Force. You are originally from the Hawain area but are now resident at the Wom Junction. You stated that between 5:30 and 7:00 am on the 24th of September 2001, you were with your brother, your sister and your wife at your house. At that time, Wendy’s younger aunt called out saying, Wendy died from knife stab wounds she received from Odilya.

So you got into your vehicle a Nissan double cab after push starting it with the help of your brother, Robert Mongopia and two other villagers Tom Fiamba and his brother, John and their elder brother. This part of the evidence is not in the record of interview. You drove to the Moem Barracks to tell your superior about the death of Wendy presumably to be allowed day off. But it is not clear whether you were scheduled for duty that day or not. This is important because this trouble took place on a Sunday. If indeed you were on duty and that you in fact went and secured your release, you could have provided evidence to confirm that but you did not.

Further, you left the house around 6:00 and 7:00 am, though you are not too sure about the time estimates. You drove passed Andrew Undoku before the SBS and further up saw smoke of houses burning from further inside the Koiruo camp. Then at Peter Waliamba’s bend, passed James Wangihombie in a police van.

Moreover, you went on to say, you went to the Barracks and notified your superior that you will not be at work because of Wendy’s death. There is no confirmation of you having done that. You thought of going to the hospital for Wendy’s body but you drove to the police station to report of Wendy’s death. But the police officer manning the station at the time informed you that police had already received the message and were attending to it. Therefore, you drove back to your house. On the way, you saw the police vehicle parked at the Koiruo camp attending to the burning down of the houses at the camp.

You deny that Wendy is related to you in any way. Yet you were able to get a day off on account of her death. You explained that this was possible because of a death in the community. During the Court taking a view of the scene, you pointed to your house and also said the funeral or the mourning over Wendy’s death was held under your house.

You indicated that because of the burning down of his and others houses at the Koiruo camp. Freddie Kavi could have come into Court and named you as one of those involved.

Constable James Wangihombie

Your next witness, Constable James Wangihombie is a policeman who is attached to the Wewak Police. At the time of the incident, he was scheduled for duty between 12 midnight to 8:00 am. Around 6:15 am, he received a telephone call from Yawsoro about the burning down of houses at the Koiruo camp by some people. So he and his work partner got into a police vehicle and left for the scene.

On the way about 6:17 am, he passed John Nakon Gabsie driving passed in his vehicle. When he and his partner got to the scene about 6:20 am, they found a big crowd at the scene. Some were at the actual scene while others were on the side of the road watching. He and his partner could see that they could not control the crowd. Therefore his partner fired a gunshot into the air in order to disperse and get everybody out of the scene. At the same time, they called for backup, which arrived at about 8:00 am and they took a count of the total number of houses and property destroyed, 29 houses and 2 motor vehicles.

As there was a big crowd of people, it was difficult to identify the victims right away. But when they went further into the camp, they did find some of them. They were about 200 meters away. That would be where Odilya’s house was from the main entrance of the camp based on the viewing of the scene.

When the victims learned that police was there, some of them came forward. However, he was not able to call any names. He also said because he was concentrating on clearing the crowd, he could not tell whether there were any other vehicles at the scene or anywhere near it.

When specifically asked to tell if any of you were seen at the scene, he only identified Andrew Undoku. You stood with the crowd at the site where the houses were burnt down. He could not recall seeing Robin Warren and his brother, Francis Warren and his vehicle. He could tell two groups of people in the crowd. Those who were coming out of the scene, possibly responsible for the arson and those who were bystanders. He also said, those you came out of the scene had with them weapons such as bush knives, axes and sticks. He was not able to name any one of the persons involved, except for Daniel and another. Also, he did not say if any of those people were masked. Further, he could not recall seeing any one of you at the scene.

The witness was asked, did any of the victims approach you? His answer was simply that he was asked to find the lady who caused the trouble and take her to the police station. When asked about Freddie Kavi, he said he spoke to no one as he was busy controlling the crowd and was subsequently asked to go after Odilya.

Francis Warren

Your final witness was Francis Warren. This witness is Robin Warren’s brother. His evidence confirms or corroborates that of Robin’s evidence. But he added some aspects that were not given and or covered by Robin. Firstly, he spoke of totally depending on Robin by reason of, which they stayed in the same room, something Robin did not mention.

Secondly, he spoke of having his wife and two children in the same house but sleeping in another room. Again, Robin said nothing about this.

Thirdly, he spoke of being assisted into the vehicle by Robin first before Robin got in the vehicle and they drove to Koiruo camp. This was between 7:00 and 7:30 am. Then upon reaching Koiruo camp, Robin parked the vehicle and assisted him to his legs via his crutch. He then stood and watched. Robin did not mention any of this.

Fourthly, he could tell some of the members of the crowd were offenders while others were bystanders. He thought the police did a poor job in not arresting any one of the persons that appeared to be the offenders. But he failed to appreciate that there was a big crowd, the situation was tense and that, there were only two policemen against a large crowd. This witness does have a habit of challenging police work here in Wewak.

Finally, he said nothing about speaking to Aron Kofa and Andrew Undoku about the incident on the way to the scene of the crimes. Robin spoke of having spoken to these persons whilst on the way to the scene.

Additionally, this witness was adamant that, his brother, Robin was sleeping in the house and did not go out. This, he said was the case, even when he himself was fast asleep and could not tell what was happening around him.

Visit of the Scene

The visit of the scene provided a number of useful information. That assisted the Court and the parties to appreciate a number of things. Firstly, it helped to identify where the houses destroyed in the arson stood by reference to some of their remains, particularly their burnt out posts and the number of houses burnt.

Secondly, it enabled the Court to appreciate the relationship of the scene to the main road and the NVS. At the same time, it enable the Court to appreciate the location of each of the accused persons place of residence and the layout between each other, the time it could have taken to walk or drive down to the scene by each one of them. Through this process, the Court was also able to find that the Wom Junction, Tangara and Yarapos are all further up from the Koiruo camp. These places, are close to each other and are within walking distance between each other. Any call or the sound of say a garamut from one of the villages could be easily received by the others. This removed an impression sought to be created by all of you that you are a further apart and have nothing in common with Wendy and her people.

Finally, it showed that, Freddie Kavi could have taken a clear view of the road and the NVS and in particular the road on which John Nakon Gabsie could have parked his vehicle.

Assessment of the Evidence

I now need to assess this evidence. A number of factors or principles assist in the task of determining whether or not a witness and his or her evidence should be believed and accepted. One of these principles is that the evidence given must be tested against logic and commonsense. I restated the law in The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266 in these terms:

"Logic and commonsense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty. In The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48, applying a logical and commonsense approach, the National Court found the defendants guilty of murder even when there was no evidence directly showing that the defendants had killed the deceased. The Court proceed to convict them, when the defendants failed to provide a reasonable explanation for the appearance of the badly wounded deceased body in their house. On appeal, the Supreme Court affirmed the National Court’s approach and dismissed the appeal: see Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528 and Paulus Pawa v. The State [1981] PNGLR 498 for an earlier authority on point."

Another is what the Supreme Court said in John Jaminan v. The State (N0.2) [1983] PNGLR 318 at pp. 332-333 per Bredmeyer J. That was in the context of a belated claim of alibi where the Court said:

"...the alibi was delayed or belated and that reduces the weight that should be given to it. The accused failed to give it when questioned by the police initially or later at the District Court committal. A trial judge should not infer guilt because the accused remained silent on those earlier occasions. The accused has a right of silence, but mindful of that, a trial judge is entitled to say that the lateness of the alibi reduces its weight: see Ryan (1964) 50 Cr. App. R. 144 at 148 and Hoare [1966] 50 Cr. App. R. 166. As a matter of law, he has a right of silence on both occasions but as a matter of fact — and here we are dealing with facts — its belatedness reduces its weight. If the accused is telling the truth that he was not at the hotel with the prosecutrix, that he was with Akai Kup going to and from Kelua village, why not tell that to the police so that they can check out the story when memories are fresh. In a judge and jury jurisdiction, it is permissible for the prosecutor and the judge to comment on a belated alibi in distinctly unfavourable terms. In our jurisdiction, it is permissible for a judge to say that one of the reasons why he disbelieved an alibi is that it was belated. The trial judge in this case did not say that, but on the appeal, in considering whether the trial judge’s decision on guilt was "unsafe and unsatisfactory", it is a factor against the accused."

From this, it is clear that a belated claim of alibi reduces the weight that should be given to it. In other words, if an accused delays in giving notice and or raising a claim that he or she was not at the scene and therefore not the one that committed offence that reduces the weight that should be given to it in the assessment of the evidence.

The demeanour and or the performance of witnesses in the witness box are also relevant considerations. Numerous cases have been decided upon a consideration and application of this factor. Examples of that being done are cases like that of The State v. Tauvaru Avaka & Anor (2/11/00) N2024 and Gibson Gunure Ohizave v. The State (26/11/98) SC595.

Bearing these principles in mind, I now proceed to assess the evidence before me. In this context, it is important to note and take into account the undisputed facts, which I do. Then since the prosecution has the burden throughout to establish a charge against an accused beyond any reasonable doubt, I will start the process of assessment of the evidence with that of the State’s.

It was submitted on your behalf that the State’s witnesses’ testimony should be reject for a number of reasons. Firstly, none of the other victims were called to corroborate Mr. Kavi’s evidence. Secondly, unlike the State, you raised your alibis in your respective records of interview corroborating each other and you were truthful witnesses. Thirdly, if indeed you were at the scene and were leaving just as the police were arriving, James Wangihombie could have seen you but he did not. Fourthly, Andrew Undoku Pokapin was still at the scene when police arrived. The witness or any of the other witnesses could have easily pointed him out to the police as one of the offenders but that was not done. Fifthly, the main State witness consulted his wristwatch and specified the time when he came out and saw you drive in John Nakon Gabsie’s vehicle but he was not able to specify the other times as to when police arrived and when you left the scene. Finally, there was a raid of the witness’s village by a group of men armed with guns and other weapons. It was therefore not possible for the main State witness to follow you from start to finish of you allegedly burning down the houses and motor vehicles. He went into hiding and as such, he did not see you as the persons carrying out the crimes against his people.

I do not accept the first of your arguments. There is no requirement in law for corroboration in arson cases. I know of only sexual offence cases such as rape require corroboration. But even in those cases, where there is lack of corroboration, the Court is at no liberty to automatically reject the uncorroborated evidence. Instead, the Court is required to exercise care in acting on uncorroborated evidence: see The State v. Stuart Hamilton Merriam [1994] PNGLR 104 and The State v. Moki Lepi (No.1) (30/4/2002) N2264, following the former.

The rest of your arguments require an assessment and a reference to the evidence you called so I will deal with those arguments in the context of or after having dealt with your evidence if need be. For the moment, subject to a consideration of the issues you have raised, I will proceed to assess the State’s evidence.

The key State witness, Mr. Freddie Kavi positively identified you all both at the scene as those committing the offences and in the dock when asked to identify you. He identified all of you correctly in Court. Prior to that, he testified of Robin going to the Koiruo camp and trying to fight with them in revenge of Odilya stabbing Wendy. But they managed to persuade him (Robin) to leave without causing any damage. You did not challenge this latter part of his evidence in any way. So it stands uncontested.

Your cross-examination of this witness tried to create some doubt in relation to his ability to identify you correctly and suggested thereby that, the witness was not at the scene or if he was, he went into hiding and he did not see clearly as to who were the offenders. You also tried to demonstrate that he had a reason to come into Court and falsely accuse you of having committed the offence. Mr. Kavi however, maintained his evidence in chief and was thus not broken in any way. Instead, it was strengthened.

Further, he was asked specific questions as to running away from the scene and hiding in the mangroves, but none of the evidence called in your defence supported this line of questioning. It is good practice in our system of justice that a party can make suggestions that is supported by appropriate evidence either already called or yet to be called. This was not observed in this case.

There was noting in the key witness for the State’s evidence that sound illogical or out of commonsense. The only exception would be in relation to the suggestion by your counsel that he would have run away into hiding upon seeing that you were armed, shots being fired and you went about burning houses and destroying other properties and threatening them. Whist this suggestion is reasonable, it is also clear on the evidence before me that, no human being was attacked, only their houses got burnt down. This is consistent with the witness saying he and his people were frightened and under threat from you. So they did not do a thing in response. Further, I could not trace anything in his demeanour that is suggestive of an untruthful witness. Additionally, I note that your submission does not address in any meaningful detail, let alone in an adverse manner the witness’ demeanour. In these circumstances, I find him to be a truthful witness and accept his evidence.

I accept the second State’s witness’s evidence as being both truthful and reliable. This evidence corroborates the first witness’s in some respects. There are no inconsistencies in his own or between his and that of the first witness’s evidence. I could not find a single trace of exaggeration or his testimony being made up. There is no trace of any illogical and or nonsensical account in his testimony. I note also that you made no submission that the Court should reject his evidence. I take this to be no challenge to this Court accepting the witness as a truthful witness and his evidence credible. Accordingly, I accept his evidence.

In so doing, I note however, that there has been some challenge directed against his and the police’s decision to pursue the charges against you first. But this must be seen in its proper context. The police were faced with a situation of a whole group of armed men having attacked and set fire to 29 houses and 2 motor vehicles at the Koiruo camp. The victims identified who the offenders were and provided a list to them. At the same time, they indicated who the leaders of the offenders were. They identified you men as the leaders and wanted the law to have you dealt with first.

Whilst it is the prerogative of the police to decide whether or not to proceed in a certain manner when an offence is committed in terms of bringing the offender to justice, that must have some relevance as to what the community wants. After all, appropriately dealing with offenders is a community responsibility. I made that clear in the case of The State v. Dobi Ao (2)(01/04/02) N2247. In my view, therefore, simply because the police decided to go by the wishes of the victims to go after you first does not necessarily mean that the case against you has been made up. Instead, I must consider this in the context of the evidence before me.

I note there is suggestion on your behalf that the real offender was a Daniel Uranagu and his other brothers. The suggestion also is that Daniel Uranagu surrendered on day one but the police decided not to take any steps against him. That however ignores the fact that the list of the offenders as far has the victims are concerned includes you. But since the victims wanted the leaders of the raid to be dealt with first, the police decided to have you arrested and charged ahead of Daniel Uranagu and others. I note in this context too that, your own evidence (Andrew Undoku’s) on this point makes it clear that Daniel was on the run until Andrew picked him up and brought him to the Public Solicitor at the Windjamer Motel and following which he has been arrested by police.

Besides, I note that the evidence in Court is clear. There was a big crowd at the scene. Only two policemen were attending to it and were concentrating on controlling the crowd. Andrew Undoku’s evidence of being asked to leave the scene when he tried to approach them confirms this.

I know of no law that says the police can not proceed in the way they have. Accordingly, I find these concerns are of no consequence to the case against you men.

Having decided to accept the State’s evidence, I need to carefully examine the evidence against you especially, when identification of you at the scene committing the offence is an issue. This is because where identification is an issue in any one case, specific principles of law govern the treatment of the evidence on the issue.

The Supreme Court stated the principles in John Beng v. The State [1977] PNGLR 115, at pp. 122 –123. I set out the relevant part of that judgement in my judgement in The State v. Raphael Kimba Aki (unreported judgement delivered on 26/01/01) N2039, at p.6. In summary, the principles are these:

"1. it has been long recognised that, there are dangers inherent in eye-witness identification evidence;

2. a trial judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example:

(a) a convincing witness may be mistaken; or

(b) a number of witnesses could be mistaken;

3. provided such a warning is given, no particular form of word need be used;
4. there should be a specific direction to closely examine the circumstances in which the identification was made;
5. identification by recognition may be reliable but one need to be cautious because there can be mistakes in trying to identify close relatives and friends;
6. all these go to the quality of evidence – if the quality of evidence is good, the identification may be reliable. If however, the quality of evidence is bad, the identification will be bad;
7. the quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions; and
8. there should be an acquittal if the quality of the evidence is bad."
   

In line with these principles, I warn myself that Mr. Freddie Kavi might have been mistaken in his observation and hence his identification of you all as the offenders. So I need to carefully consider the circumstances in which he says he identified you.

The offences were committed against the witness and his people in the early morning hours between 5:30 and 7:00 am. At the time, dawn was breaking. The witness came face to face with you at the entrance of the camp. Then he followed you to the house where Odilya was and you started to burn it and came back all the way to his houses until the last of his houses were burnt. There was an exchange of words first before you and your other accomplices burnt down the 29 houses and 2 motor vehicles. This could not have taken a split second but a good few minutes. Further, the witness knows you all well. Your own evidence confirms that you all knew him well enough too although, Franson has had no personal dealing with him. It is clear therefore that, this is not a case of a fleeting glance of a stranger. Instead, it is a case of recognizing a known person from within a close range, after having exchange some words when dawn was breaking. Furthermore, no issue was taken on the witness’s eye sight. Although some questions were put to the witness suggesting obstructions from say plants and other objects, the witness maintained that he had a clear view. He demonstrated and confirmed this at the scene.

A careful consideration of all of these leads me to only one conclusion. The quality of State’s witness’s evidence is good. I have no reason to doubt the credibility and truthfulness of its witnesses. I am therefore, satisfied that the State has established a prima facie case against you. This, I note is confirmed by the lack of a no case submission being made by the defence. That being the case, I need to determine whether, the evidence you called rebuts or casts some doubt in the case against you?

The question just stated requires a close examination and consideration of the evidence you called in your defence. Considering your evidence as already outlined above, I find that your evidence discloses a number of serious inconsistencies as specified in the summation of each of your evidence. In addition to that, some parts of the evidence you called contain exaggerations or if not, illogical and out of line with any common sense accounts. The first of these is in the witness Francis and Robin saying, they shared one room to the exclusion of Francis’ wife and children. Usually, a wife and children would stay close to a husband or a wife, as the case might be when one is very sick. No doubt having a brother would be more helpful but he would not necessary share a room with his sick brother.

Secondly, Francis produced a medical report dated 21st May 2002 in a bid to support his claim of being very sick at the relevant time. But the report contains no dates and indications as to when he was first admitted or put on treatment, how long was he sick for and when the medication ended.

Thirdly, while noting that the time indications were only estimates, the time the witnesses for the defence gave were exaggerated. For example, Francis estimated about an hour to reach Koiruo camp from Tangara in terms of being at his house between 6:00 and 7:00 am and reaching the scene of the crimes between 7:00 and 8:00 am. The visit of the scene and actually walking the distance showed that it would take much shorter than the time estimates given by you.

Fourthly, Francis and yourselves tried to create an impression that your respective places of residence were far away from the scene of the offences and in particular they were away from Wendy’s residence. For example, both Aron and Franson said you come from Yarapos when in fact you live in Tangara, bordering Yarapos revealed in the visit to the scene. Hence you tried to create the impression that Wendy was of no relation to you in any way. That was despite some of you attending her funeral, and taking the day off on account of her death. In the case of John Nakon Gabsie, it meant holding Wendy’s funeral or mourning under your house. The visit of the scene established that the distance between these places are in fact closer to each other and are within walking distance of each other.

Following on from the above, the fifth illogical or nonsensical account is, if indeed Wendy was of no relation to you all and Francis, you could all have gone about your normal daily chores or duties, apart from taking a quick look at what had or was happening. But that is not what in fact happened. You all had something to do with her funeral or got a day off from work on account of Wendy’s death. Your argument in response to this is that, there was trouble and so therefore you have to take precautionary steps. But that is not what you said in evidence. It is only your lawyer’s submissions.

The sixth nonsensical or illogical account has got to do with Mr. John Nakon Gabsie. Despite his claims of not having any relationship, the rest of the evidence and his belated indication during visit of the scene show that, Wendy’s mourning or funeral services were conducted under your house. Given that, commonsense dictates that he ought to have known what was or had happened that day. He could even have taken charge of the days program but claims not. He could have fitted into the need to collect her body from the morgue and take her to the village. He did not do that, either because he wanted to do nothing in relation to that, or that he was busy participating in the raid.

Further, noting from the nearness of each of your respective places of residence in relation to Wendy’s place which was at the Wom junction, word about her death could have been easily communicated. It would have become a matter for all of the people living in your respective areas or villages. There is no dispute that there was a crowd at the scene of the crimes after a large group had burnt down 29 houses and 2 motor vehicles. Going by the number of houses at Wom Junction as revealed by the visit of the scene, no large crowd could have been easily built unless assisted by the numbers coming from Tangara and the near by.

Apart from these, I did not get the impression from your demeanour that you and your witness were truthful witnesses. Instead, I got the clear impression that you were untruth witnesses. This was evidenced by you being evasive in your answers to questions or suggestions put to you. At times, you also raised your voices quite unnecessarily to defend the version of evidence you had already given. This is particularly so for Aron Kofa. As for the rest of you, I noticed that some of you were quickly getting to restate your evidence in chief when the question put to you were not in fact asking you to do that.

Finally, although you raised your claim of alibi in your record of interview with police, you did not formerly raise it in Court until on the day when the trial commenced. The Rules of the Court (Order 2 of the Criminal Practice Rules) require alibi notices to be given 14 days before the date of trial. The Court inquired into that issue at the pre-trial conducted last month. I reiterate what I already said in relation to the purpose and effect of what is said and done at a pre-trial without quoting it.

The law dictates that a belated claim of alibi reduces the weight that should be attached to evidence called in support of an alibi. This is particularly so in relation to a case where the claim of alibi is not raised any time before trial. There appears to be no clear cut case as to what should be the effect of a delay in giving notice of an alibi in accordance with the practice rules. I am of the view that little or no weight should be given to it. This is because, unless formal notice is given or is formally indicated in Court, the State and the Court are entitled to proceed on the basis that there is no claim of alibi, even if that has been raised in say the record of interview.

In this case, you raised your claim of alibis in your respective records of interview. But you failed to give notice within the period stipulated by the practice rules. You also failed to raise it at the time of pre-trial last month. The evidence now you have given is not entirely consistent with the one you gave in your respective records of interview. So strictly speaking, you have not given notice of alibi in accordance with the practice and rules. Nevertheless, the State took no issue on the late notice of alibi. Given these factors, I will not place the lack of earlier notice of alibi in the same level as a case in which no notice of alibi has been given in any way or manner and consider the weight of evidence reduced. I will instead exclude this as a factor operating against you.

Taking all of the above factors into account, I do not find your evidence convincing, even on the balance of probabilities. I therefore, find that you have failed to make out your respective claims of alibi. Consequently, I find that, you have failed to rebut or cast a doubt in the State’s case against you. At the end of it all, I am satisfied that the State has established its case beyond any reasonable doubt. I therefore return a verdict of guilty in relation to all of the charges against you, except for the charge that was abandoned. Accordingly, I convict all of you on the 21 counts of arson as alleged.

I order a revocation of your bails and a refund of your respective bail monies upon the provision of your respective bail receipts. I further order that you be remand in custody awaiting your sentence. A warrant of committal in those terms will be issued forthwith.
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Lawyers for the State: The Public Prosecutor
Lawyers for the Accused: The Public Solicitor