N3137

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 471 OF 2006

BETWEEN:

THE STATE

AND:

JACOB DUGURA ROY
Accused

Madang: Davani .J
2007: 26, 28 & 29 March

CRIMINAL LAW – Decision on verdict – Extreme caution to be exercised – Where there is any doubt, benefit of the doubt must be given to the accused.

CRIMINAL LAW – Where witnesses evidence is contradictory, must convince the court that evidence at trial should be accepted and previous statements disregarded.

Cases cited

Papua New Guinea Cases

John Beng v the State [1977] PNGLR 155 

Overseas Cases 

Woolmington v DPP [1935] AC 462

Counsel
J. Wala, for the State
F. Turi, for the Accused

VERDICT 

29 March, 2007

1. DAVANI .J: On 21 March, 2007, the State presented an indictment charging Jacob Dugura Roy (‘the accused’) with two (2) counts of arson, charge laid pursuant to s. 436 (a) of the Criminal Code Act (‘CCA’). This provision reads;

"436.	Arson

A person who wilfully and unlawfully sets fire to –

(a)	a building or structure, whether completed or not;" 

Penalty: Subject to Section 19, imprisonment for life."

2. The accused pleaded not guilty to these charges, necessitating a trial.

State’s allegations

3. The two (2) counts of arson as pleaded on the indictment are as follows;

i. count 1 - The accused wilfully and unlawfully set fire to the dwelling house of one Richard Bozi on the 9 July, 2004 at Bertrum village, Bogia, Madang Province.

ii. count 2 - The accused wilfully and unlawfully set fire to the dwelling house of one Joachim Bozi on the 9 July, 2004 at Betrum village, Bogia, Madang Province.

4. These charges all arise from the following facts which are not in dispute;

i.	On 8 July, 2004, there was a fight involving and between the accused’s clan and a State witness’s clan, who is also the person who reported the matter to the Police;

ii. The fight arose over a long standing land dispute between the two clans;

iii. A relative of the accused was speared and injured as a result of this dispute;

iv.On 9 July, 2004, Richard and James Bozi’s houses were burnt to the ground.

5. The State alleges that it was the accused who burnt these 2 houses. The State also invokes s. 7 of the CCA in saying that the accused aided and abetted others in the burning down of these houses.

State’s evidence

6. The State called the following persons to support its allegations. These were;

i.	Gina Sabre
ii.	Joachim Bozi
iii.	Richard Bozi

7. Gina Sabre is the State’s main witness. Her evidence focuses on her seeing 4 men enter the village and who then set fire to the houses in question. Those men were;

• Jacob Roy, the accused
• Bhem Rambum, also known as Vincent Mbem Rambum
or Vincent Mbem
• Gurkun Roy, also known as Mathew Gurkun or Mathew Roy
• Jeffrey

8. Joachim Bozi’s evidence relates to properties lost in the fire.

9. Richard Bozi’s evidence is that because of the fight on 8 July, 2004, his family and him ran away and hid in the bush. He said his house was burnt around 9am to 12pm on 9 July, 2004.

Defences case

10. Evidence for the defence was given by the accused and Jeffrey Naiman.

11. The accused said he was with his sister at 6.30am in another village when they heard the news that houses at Bertram village were burning. They both saw smoke rising from that village. He then went to the man’s house to rest. About 12 to 12.30pm, the whole community from his village went to Bertram village and there saw that all the houses had burnt to the ground. I should point out that his lawyer and him decided to abandon that defence of Alibi because these witnesses were unavailable.

12. Jeffery Naiman lived at Giri village with the family of Sogovan, the man who was speared after which the fighting and burning of houses started. After learning of the injury to Sogovan, he went to Garati village, and the next morning went to Bertrum village with Vincent Mbem Rambum and Mathew Gurkun. He told the court that when they arrived at Betrum village, Mathew set fire to the rest house. Vincent Mbem stood next to James Bozi’s house which was already burning and which was set alight by Vincent. He said the accused was not with them. He also said that James Bozi’s house was set alight by flames from Joachim Bozi’s house.

Issues for trial

13. 1. Whether or not the accused set fire to Richard Bozi’s house on 9 July, 2004; and 

2. Whether or not the accused set fire to Joachim Bozi’s house on 9 July, 2004.

Analysis of evidence and the law

14. The evidence of all the witnesses must be carefully weighed to determine who is to be believed. The most crucial evidence is that given by Geena, witness for the State and Jeffery, Defence witness. Whom should the court believe?

15. Defence counsel submits that because Geena has not maintained her story throughout, that she should not be believed. The Lawyer for the State submits that Jeffery should not be believed because he has a reason to protect Jacob. He submits that because Jacob and his (the witness’s) guardian Sogovan are from the same village, that witness Jeffery had conspired together with the accused and the 3 others named by Geena, to burn the houses the subject of these proceedings.

16. In relation to Geena’s reliability as a witness, she did not give her story to the police until 20 October, 2005. The incident happened on 9 July, 2004. About a year, 5 months and 1 day later, she gave her evidence in court.

17. In her statement to the Police on 20 October, 2005, she told them that about 6.30am on 9 July, 2004, she was at Bertrum village when she saw four (4) men armed with fishing guns, bush knives and rubber guns come to the village. She was told by Mathew Roy to remove her belongings from the house after which she left with her parents. In her statement she said she saw Gurkun Roy set fire to the rest house (Hausboi) and Vincent Mbem Rambum set fire to Joachim Bozi’s house. She stated that she then saw four of them set fire to James Bozi’s house then later she saw Jeffery (Defence witness) break into Joachim Bozi’s house and steal some properties.

18. In cross-examination, she told the court she could not recall what she told the police but she was adamant they were the same four persons she saw that morning. She was asked if it was the accused she saw setting fire to Joachim Bozi’s house and she said it was. This evidence contradicts what she said in her statement to the police. In that statement, she said it was Vincent Mbem Rambum who set fire to Joachim Bozi’s house.

19. I should point out that she corrected herself by saying "sorry I forgot". Later she agreed it was Vincent Mbem Rambum who set fire to Joachim’s house, not the accused. She also said a few other things in cross-examination by Defence Counsel that I should point out. These are;

Q&A 94	"I further put to you that my client was named because of the incident that happened on Friday 8th July, 2004 during the fight between your village and their village?
	
	Yes
	
Q&A 95	I put to you that when you heard Mathew Roys voice, you automatically thought that Jacob was with him?
	
	Yes
	
Q&A 96.	Because Jacob is Mathews brother?
	
	Yes
	
Q&A 97.	You heard his name that he was involved in a fight on 8.7.04?
	
	No
	
Q&A 98	But, I asked you earlier that his name arose because of the fight and you said yes.
	
	Yes
	
Q&A 99.	I put to you that you were so frightened you ran away before you saw my client and you mistakenly called his name.
	
	Yes."

20. In re-examination by counsel for the State, the witness Geena said this;

"Q&A 29.	Can you recall what you told the police as to what Jacob did on 9.7.04?
	
	No
	
Q&A 30	But you say he was one of those involved on 9.7.04 in the burning down of the house?
	
	Yes."

21. In relation to the witness’s answer to question and answer 30, there was a long pause and some hesitancy before the witness answered the question.

22. Further on, in re-examination by the lawyer for the State, the witness Geena said these;

"Q&A 34	You were asked you did not see who men were and you said yes.
	
	Yes."
	
Q&A 35	When did you make that observation
	
	I in room, I saw them…come out and saw them again."

23. Her evidence must be weighed against Jeffery Naiman’s evidence. Jeffery was referred to his written statement which he gave to the police on 20 October, 2005.

24. Jeffery Naiman, Defence witness, used to reside with Sogovan’s family. Jeffery is from Siassi but was raised by Sogovan. Sogovan was the one who was speared by villagers from Bertrum.

25. Jeffery was referred to his statement that he gave to the police on 23 October 2005. What was stated in there was the same as the evidence he gave in court, unlike Geena’s evidence which was contradictory and confusing. He stated in the statement that he stayed at Garati village on the evening of 8 July 2004, after he heard of Sogovan’s injury. About 6am on 9 July 2004, he went with Mathew Gurkun Roy and Vincent Mbem to Bertrum village and there he saw Mathew Gurkun Roy set fire to the men house (Haus boi). He also saw that James Bozi’s house was on fire and no one else was at the scene of the fire except Vincent Mbem who was standing near the burning house. Whilst he was standing there, he saw the flames from James Bozi’s house, catch onto Joachim Bozi’s house.

26. He walked back to Garati village with two others, namely Alphonse Sut and Charles Thoge. Around 12 midday, he returned to Bertrum village with Bob Kate, Mathew Gurkun, Vincent Mbem, Charles Thoge, Jacob Dugura and Max Alphonse Sut. He said the remaining two houses were burnt by the other men he went with.

27. Through questioning by both counsel, Jeffery maintained that Jacob Roy was not with him at 6am that morning.

28. The similarities in his story with Geena’s is at 6am on 8 July 2004, he was with Mathew Roy and Vincent Bhem. That it was Mathew who called out to Geena whilst Vincent Bhem and him stood there. She came down from the house with her father and they left. He also said that at 6am in the morning, Richard Bozi’s house was still standing. Geena also states in her evidence that when she left, Richard’s house was still standing. This is confirmed by Joachim Bozi who said at 10am on 9 July 2004, Richard Bozi’s house was still standing. 

29. Other important observations on Geena’s evidence that arose in cross-examination is that she agreed that Jacob’s name arose because he was involved in the fire on 8 July, 2004. She agreed that when she heard Mathew Roy’s voice, she assumed that the accused would also be there because he was Mathew Roy’s brother.

30. Geena admitted that she was very frightened when she heard Mathew call her name to remove her things. The inconsistencies in her evidence are that;

i.	In examination in chief she said, when she left her house, she ran to Regene village and told the people that 4 men had burnt houses;

ii.	In cross-examination she said when she left the house she ran far away and hid in the bush because she was frightened;

iii.	That she had forgotten that she told the police, that it was Vincent who set fire to Joachim’s house.

31. Geena’s evidence is such that it cannot be believed. She agrees that she had the names confused and she contradicted herself in many respects. I prefer her evidence given to the Police then her evidence given now because she was able to recall things better then. The witness must convince the court that her evidence at the trial should be accepted and her previous statements to be disregarded. But she has not done that. (See R v Sapule-Masuve (1973) N 732 Frost SPJ at 6; The State v Keko Aparo (1981) N333).

32. The test to be applied is the objective test, tested against the evidence as a whole. And this I have done.

33. Furthermore, Defence succeeded in "punching holes" in the State’s case by cross-examination. I say this because the State has the onus of proving the accused’s guilt beyond reasonable doubt. In this case, Defence counsel dwelt heavily on inconsistencies in the State witness previous statements. Both counsel are duty bound to dwell heavily on factors such as presence or absence of light, description of the building the State witness was in when she claimed she saw the arsonists, witnesses ability to recognize faces, credibility and existence or otherwise of a motive to give untruthful evidence to the court. Such factors are discussed in John Beng v The State [1977] PNGLR 115. That case stands for the principle (inter alia) that where evidence of identification is relevant, the court should be mindful of all the inherent dangers. It should examine closely all the circumstances in which identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger. Even where the witness is purporting to recognize someone he knows, mistakes can be made.

34. Which of the two versions is the true story is also dependent very much on the credibility of the witness. Authorities warn that extreme caution must be exercised when the judge is dealing with the issue of the lying and truthful witness. There is no rule of law that says that a party that calls for more witnesses and who gives consistent and almost identical stories must be believed and a party who calls only one witness must not be believed.

35. There is no rule of law that says that where two or more persons tell the same story, that story is the truth as opposed to a single witness. And in a criminal case where there is only one witness in his own trial, that makes his chances of being believed non-existent. However, the authorities say that ten people giving the same story who appear to be quite convincing could all be lying. On the converse, an accused may be the only witness in the defence case and may not be as smart or convincing as the prosecution witness, yet he could be telling the truth.

36. The truth is not so easy to find and the court has to always do the best it can in all the circumstances of a given case to try and strike a balance between what is logical and more probable of human comprehension than what is illogical or plain fallacy. That is why there is an added safety valve in the criminal law, which requires that the court must be satisfied beyond reasonable doubt of a guilt of the accused before it can convict. And where there is any doubt the court must give the benefit of the doubt to the accused (see Woolmington v DPP [1935] AC 462).

37. After review of all the evidence and based on the above discussion, I am unable to find that the State has proven its case beyond reasonable doubt because of all the doubts I have pointed out.

38. I will acquit the accused and all charges against him are dismissed.

________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused