PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 820 & 821 OF 2004

STATE

V

VINCENT NDRESILE SAMPSON
SAMUEL PASIU
KIAPIN LAWRENCE PASIU
MOSES PUKAI
BRUCE KIAPIN
SAPAK PUKAI
SALEU KALAI

Lorengau: Lay J
2005: 14-18 November
21-22 November
2007: 26 March

CRIMINAL LAW- Criminal Code s 436 - arson - conflicting oral evidence - reasons for findings of fact.

Facts
The accused were charged that on the 10 January 2004 in the evening they attacked the house of Peter Su-uh at Keloti village in Manus, drove away the inhabitants and then set fire to three houses and a shop. The accused said that Bruce and Samuel were chased and fired upon by Peter Su-uh and his son and Samuel was injured in the hand by a shotgun pellet. They said that, with the exception of Kiapin Lawrence Pasiu and Moses Pokai (who said they knew nothing about the matter) the 5 of them then left by canoe to their own villages of Wamarai and Waitcheleni before the fires, leaving behind three of their friends who are now convicted and serving sentences for arson.

Held
The State witnesses were credible and their evidence is consistent with logic and common sense. The accused's evidence suffers from multiple inconsistencies. The story that Samuel and Bruce were fired upon by Peter Su-uh and his son and Samuel injured in the hand, after which they all left Keloti, could not be believed. There is no credible evidence to raise a reasonable doubt against the State case. The accused are guilty as charged.

Cases Cited
State v John Beng [1976] PNGLR 471.
John Beng v State [1977] PNGLR 115; 
Edwards v Jordan Lighting [1978] PNGLR 273; 
Fishermens Island [1979] PNGLR 202;
The State v Paul Yepii (No.1) N2570; 
State v James Togel v Richard Ogio [1994] PNGLR 396; 
State v Benny Moiri N2305; 
State v Kasaipwalova [1997] PNGLR 257; 
State v Peter Oh Piom Mo [1998] PNGLR 66; 
State v Edward Tande (No.1) N2298; 

26 March, 2007

1. LAY J: The Accused stand charged with four counts of arson contrary to s 436 of the Criminal Code, to which they have all pleaded not guilty.

Late in the afternoon of Friday 9 January 2004 the accused, with the exception of Kiapin Lawrence Pasiu and Moses Pukai who say they were not at Keloti, ("the five accused") travelled from Wamarai to Keloti village in Manus allegedly for the purpose of repairing the roof of the house of Saleu Kalai in Keloti village. Whether they all travelled in small canoes ("mon") or some in a motor boat is in issue.

2. Nelson Peter and his wife Delca Peter gave evidence that on the evening of Saturday 10 January 2004, the five accused and six others attacked the house of his father Peter Su-uh with slingshots and stones. The two families ran away to Tami River. Then Nelson Peter and his brother-in-law John turn back to Keloti to see what was happening to their property. The rest of the family went on to Pelipowai. Nelson Peter said he and John returned to Keloti and hid in the sago near Peter Su-uh's home and watched what was happening to their property. They saw three dwelling houses in Keloti village belonging to Peter Su-uh, his son Nelson Peter, Liko Michael and a trade store belonging to Nelson Peter, destroyed by fire caused by a group who attacked the houses. Nelson Peter gave evidence that all of the accused were present at the burning of the houses and shop and participated in breaking or burning the houses or encouraged others in doing so by their presence.

3. The accused say that late in the afternoon of 10 January 2004, Samuel and Bruce went to the shop in a neighbouring village, Timoenai. Samuel and Bruce say while passing Peter Su-uh's house on returning from the shop after dark, Peter Su-uh and Nelson Peter chased them with a torch and a shotgun and fired some shots injuring Samuel's hand and forcing Bruce into the water to swim to safety. The five accused then say that when Samuel arrived at Saleu's house having been shot in the hand by Peter Su-uh or Nelson Peter, the convicted three rushed off to fight, but the five accused were frightened of the gun and left in their canoes back to Womani before the fire started. They say none of them arrived or left Keloti in a motor boat. 

4. It is not disputed that the accused other than Kiapin Lawrence Pasiu and Moses Pukai were at the village with Martin, Bob and Chechial. Nor is it disputed that the latter three attacked the houses and shop and set fire to them and are now serving sentences for the same.

5. What is in dispute is that the accused were part of the group which took part in the attack and burning of the houses and shop, whether some of them arrived by boat rather than by canoe in Keloti and whether the attack was provoked by an attack on Samuel and Bruce by Peter Su-uh and Nelson Peter and a shotgun pellet injury to Samuel inflicted by Nelson Peter.

6.	SUBMISSIONS
Each counsel made detailed submissions analysing the evidence and pointing out to the Court details which they contended support of their case or contradicted the opposition's case.

 THE LAW

 As to the principles to be applied in analyzing conflicting oral evidence I am content to repeat the observations of Kandakasi J in State v Paul Yepei (N01) 2004, N2570:

"… A number of well-established principles govern the assessment of evidence and the acceptance or rejection of a witness’ testimony. One of these goes into the credibility or the reliability of witnesses and their evidence. This in turn depends on the witnesses’ evidence meeting a number of requirements, which need not exist all at the same time in any one case. 

One of these requirements is the need for consistency in a witnesses own evidence and other evidence called by a party. … Many other cases have considered and applied this test. Some of the examples are the judgments in The State v Kevin Anis & Martin Ningigan (unreported judgment 07/04/03) N2360; The State v. Onjawe Tunamai (unreported judgment delivered on 15/02/00) N1989 and Jimmy Ono v. The State (Unreported judgment delivered on 04/10/02) SC698. 

These and other authorities make it clear that, where serious inconsistencies exist, there is the possibility of false testimony and therefore unsafe to act on. 
…

"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 a person should be found guilty." 

This was a restatement of the law and its application in The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48 by the National Court and affirmed by the Supreme Court in Garitau Bonu & Rosanna Bonu v. The State (Unreported judgment delivered on 24/07/97) SC528. Early Statement of and an application of this principle are in cases like that of Paulus Pawa v. The State [1981] PNGLR 498.

An additional requirement concerns the performance or the demeanor of witnesses in the witness box. An application of this principle decided many cases in the past. Examples of these are, cases like that of The State v. Tauvaru Avaka & Anor (Unreported judgment delivered on 2/11/00) N2024 and Gibson Gunure Ohizave v. The State (Unreported judgment delivered on 26/11/98) SC595"

9.	Some helpful comments were made in the case of the Fishermens Island [ 1979] PNGLR 202 where Wilson J. (speaking with particular reference to the position in civil cases, but applicable to all cases) said:

"in any case in which there is conflicting oral evidence the judicial officer should state in his reasons for decision why he rejects the evidence [or part of the evidence] of one and why he accepts that of the other. Where there is evidence, whether oral or otherwise tending to prove one side of an issue and there is no evidence on the other side to contradict it, then the judicial officer is bound to accept it unless the evidence is in itself so incredible and unreasonable that no reasonable man could except it. If for any reason which recommends it self to the mind of the judicial officer dealing with a matter, he thinks it not fit to accept the evidence of the only witness who is the only witness before the court or Judicial Tribunal and he is founding his decision on his disbelief of that witness, he is bound to disclose it."

10.	The other issue of some importance in this case is identification. I remind myself of the law on the issue. I recite the six factors set out in Chalmers, Weisbrot, Injia and Andrew, Criminal Law and Practice of Papua New Guinea, 3rd ed. (Law Book Co Ltd 2001) at page 638.

"The reliance to be placed on personal identification will depend upon a number of factors, including inter alia;

(1)	the impression left by the eyewitness as to his reliability and accuracy;
(2)	the existence of a motive for giving false testimony as to the identity of the offender(s);
(3)	the circumstances in which the person to be identified has been observed;
(4)	the circumstances in which the eyewitness finds himself when making the observation;
(5)	the existence or otherwise of the evidence of other witnesses confirming or contradicting the evidence of the original eyewitness;
(6)	the existence or otherwise of other evidence, direct or circumstantial, of facts or circumstances independently proved. R v Uno Tam and Marau U'U (1973) No. 766" 

 I also note the useful observation (applied in John Beng v State [1977] PNGLR 115) by the Court of Criminal Appeal of Victoria in R v Preston [1961] VR 761 at 762 by Lowe J while referring to the High Court decision in Raspor v R [1958] 346 where he said at p. 762:

"Appropriate warning...must depend upon the circumstances of the case before the Court. There is no rule of law that the evidence of one witness as to identification is insufficient, nor is there any rule of law that there must be a police parade for the purpose of identification, nor is there any rule of law that in every case a warning must be given; it all depends upon the circumstances of the case before the Court." (emphasis added).

 There were some areas in the defence case in this trial where significant facts for the defence were not put to the State witness. To ensure a fair trial for all parties it is the duty of counsel to put in cross examination to the witnesses opposing his client’s case all of the material aspects of the evidence of his client’s case and any inferences to be drawn from them, where they depart from the evidence given for the other party: See The State v Benny Moiri Kairi (2002) N2305 (Davani J) where a number of authorities for this proposition are gathered. Where evidence is admitted which has not been put to the opposing party it is a matter for the trial judge as the tribunal of fact as to what weight he places upon it: Edwards v Jordan Lighting [1978] PNGLR 273, The State v Peter Oh Piom Mo [1998] PNGLR 66 (Jalina J). Little weight should be placed on evidence led in breach of the rule: State v Edward Tande (No.1) (2001) N2298 (Kandakasi J). The court is entitled to conclude that the witness has made things up: James Togel v Richard Ogio [1994] PNGLR 396 (Doherty J).

Analysis of the Evidence

The Undisputed Facts

 It is undisputed that, in the afternoon and evening of Saturday 10 January 2004, five of the seven accused were at Keloti village, the exceptions being Kiapin Lawrence Pasiu and Moses Pukai whose presence is disputed.

 It is also not disputed that there was a confrontation between Peter Su-uh, Nelson Peter, Bruce Kiapin and Samuel Pasiu.

 It is not disputed that the four buildings identified at the beginning of the judgment were burned down.

16.	The State witnesses deny that there was a gun involved in the confrontation with Bruce and Samuel and that Samuel was injured by it.

18. The Accused deny they were at Keloti when the houses and store were set on fire.

I accept the evidence of Delca Nelson. I considered that she told her story in a straight forward manner and did not try to embellish the facts with events not in her knowledge. She did not however identify anyone involved in the attack on her father in laws house which caused her to run away, or anyone involved in the arson. Her evidence has five significant features, first Ndresile made threats against her on the Wednesday, secondly she saw Bruce, Samuel and Martin arrive at Keloti in a boat on Friday afternoon and she saw Ndresile arrive then, thirdly she reports the taking away of a mon from her house that afternoon by the accused, fourthly she corroborates Nelson Peter’s evidence that there was an attack on his father’s house which drove the families away and fifthly that Nelson Peter and her brother John turned back to Keloti at Tami River after taking the families that far when fleeing from Keloti.

 The State case is principally founded on the evidence of Nelson Peter. I propose to examine Nelson’s evidence by reference to the whole body of evidence, looking at the consistencies and inconsistencies and drawing what I consider to be the logical and common sense conclusions.

 Nelson Peter was a man of few words, a little taciturn, a typical farmer type. There was nothing in his manner of delivery of his evidence which suggested he was concocting any of the evidence. He was very firm in stating that each of the accused was there at the arson. None of the accused were masked and there was plenty of light from the four burning buildings, particularly Peter Su-uh's house which was of permanent materials. I gained the impression he was a reliable person. He was not shaken in cross-examining in any significant way. As a general comment his evidence is consistent with logic and common sense. 

 I have found it necessary to consider in more detail some aspects of Nelson Peter's evidence. I note his insistence that a number of the accused arrived at Keloti on Saturday when his wife in her evidence said that she saw a number of them on Friday afternoon. It is the distinction between saying, "I can't know when they arrived, I only saw them on Saturday" and saying "I saw them first on Saturday, therefore they must have arrived on Saturday." I have considered the possibility that a man with the latter view of the world might also say "most of my enemies are here; therefore they must all be here." There are other aspects of Nelson Peter's evidence which I note.

 He does not mention that his wife told him about the mon being taken away, nor that she saw some of the accused at Saleu 's house on Friday afternoon, nor that Samuel and Martín disturbed their son when passing the house on the Saturday afternoon. However, the sudden influx of a large number of young men from "the enemy" must have created a tense atmosphere, particularly after the previous threat to Delca. There was obviously nothing Nelson could do to retrieve the mon against the combined force of 10 or 11 men, except to be humiliated. 

 There is no evidence that Delca told her husband about the incident with his son, Samuel and Martin, nor the sighting of some of the accused on Friday afternoon. She might not have done so in order not to put pressure on her husband to respond in a situation in which the accused were in a much stronger position to escalate the psychological confrontation to violence. I do not find any of those matters raise any doubt concerning the veracity of Nelson's evidence.

The Arrival of the Accused at Keloti

 Nelson’s evidence is that he believed that Ndresile, Martin, Bruce, Samuel and Chechial went to Keloti on Saturday 10 January 2004. Delca said she saw Bruce, Samuel, Martin, Saleu, Chechial and Vincent Ndresile on 9 Friday afternoon. The oral evidence of the Accused, other than Kiapin Lawrence Pasiu and Moses Pukai, ("the five accused) " is that the five accused arrived at Keloti on late Friday afternoon. I accept and find that the five accused arrived at Keloti on Friday afternoon although Nelson did not see them until Saturday.

The Confrontation with Samuel and Bruce

 Bruce and Samuel gave evidence that after buying cigarettes at Timoenai in the evening of Saturday they were returning past Peter Su-uh's and Nelson Peter’s houses when they were chased and attacked by Peter Su-uh and Nelson Peter and fired upon with a gun and Samuel injured in the hand by a pellet from the gun. Samuel showed the Court a scar on his palm where it joins the wrist. The scar is about 1cm long, 0.5cm wide and raised. 

 Nelson Peter said that there was in fact three of them, Paul Lelien was with Bruce and Samuel. They did not come from the direction of Timoenai, they came from the other side of the village between 6 and 7 p.m. His evidence that the confrontation with Bruce and Samuel did not involve a gun is corroborated by his wife’s evidence that there was no gun shot, but contradicted by the 5 accused.

 In Saleu’s statement to the Police he said that he heard a shot, and that both Bruce and Samuel had been swimming in the sea after being fired upon. In his oral testimony in chief he said he heard a shot or shots, and in cross-examination " a shot". Samuel had been shot, had been swimming in the sea and was all wet when he arrived at Saleu’s place, was Saleu’s sworn evidence. Samuel’s own sworn evidence version is that there were 5 shots, he did not go into the sea but was shot on land as he ran away from Nelson Peter. Only Bruce swam. Vincent heard only one shot. Sapak heard shots. Bruce mentions 3 shots. 

 Is there a rational explanation for these varying versions? It is hardly credible that a gun fired within the evening silence of a rural village at the water's edge would not be heard by all those in the vicinity. Saleu said the shot "rang out". And so it is very difficult to reconcile the variation in the number of shots heard or alleged to have been fired. Where there are multiple shots it would not be surprising that hearing and recollection would differ as to the precise number. But one would not expect, where there are multiple shots that anyone would say that there was only one shot.

 Another discrepancy is Vincent's evidence that on arrival back at Saleu's house after the alleged shooting, Samuel fainted and was carried to a canoe. The others say Samuel arrived back and announced he had been shot. Sapak said that Samuel ran over and showed him his hand. He took Samuel and showed him to the others. Saleu says "Sapak carried Samuel and held his hand." They do not mention Samuel fainting or falling down.

 I also note that Samuel and Bruce’s evidence does not agree on whether they ran or did not run at the first shot allegedly fired at them. Vincent includes the details of Samuel falling down which none of the others mentioned. When Saleu was challenged in cross-examination that he was making up the story he simply gave a wry smile and did not answer the question. There was no hot denial.

 Any one of those discrepancies by itself may not be significant, but all three or four or five together do become significant. 

 If Samuel had been forced to swim in the sea to escape Nelson, common sense suggests Samuel and the other witnesses would have said so. As they did not, it seems safe to draw the conclusion that it did not happen. Why then does Saleu say that it did? Did he panic at the threat of Nelson Peter with a gun and get confused as to what was happening, who was wet and who not? If so, one would expect that on calm reflection he would straighten out his recollection. 

 The only other explanations are that Saleu wasn’t there or it did not happen. As Bruce Sapak, Vincent and Samuel say Saleu was there at his house, the logical commonsense conclusion is that the discrepancy arose because the event did not happen. That is Samuel did not swim in the sea, nor did Bruce, because they were not shot at by Nelson Peter. 

 My conclusion is that the whole story is made up, that Samuel received the injury to his wrist in some other way. That because Saleu lives at Keloti and the other accused at Wamarai and Waitcheleni, Saleu did not have the same opportunity as the others to rehearse the defence story. That would account for both the variation in the number of shots mentioned by the accused and Saleu saying Samuel had been swimming in the sea and Saleu not being able to recall which hand of Samuel’s was injured. 

 That conclusion also fits, to my mind, with the State 's submissions that, because a bullet travels in a straight line it was not possible for Samuel to have received his injury to his hand in the way described. He was running, his attackers behind him. The ordinary attitude of the hand when running is for the fingers to be bunched or curled. A pellet travelling in a straight line which entered at the wrist joint and exited about 1to 2 cm later in the palm would also intersect the fingers. The only way the pellet would not intersect the fingers is if the fingers were stretched flat out and upward, which would be a very unnatural position for the fingers whilst running. It strongly suggests the injury to Samuel's wrist did not occur in the way described by him.

The First Attack on Peter Su-uh’s house

 The evidence of Nelson that there was an attack on Peter Su-uh’s house between 6 and 7pm with sling shots, bush knives and axes is corroborated by the evidence of his wife Delca. It is also corroborated by the evidence of Saleu. I note here that I have not overlooked that statements in his record of interview are not evidence against his co-accused. In his oral evidence Saleu confines his identification of those who ran to attack Peter Su-uh’s house to those already convicted of arson. Nelson's evidence is that 11 people attacked them.
 
 According to the accused’s version of events three adult men armed with sling shots and bush knives went to attack three adult men protecting their homes, one armed with a shot gun. Even acknowledging that one of the defenders was elderly and that there were women and children with them, it seems to me unlikely that only three attackers would take their chances with a firearm. 

 I have already found that there was no fire arm. With no fire arm there is no reason for the 5 accused to be frightened and leave for home as they claim when their brothers are on the attack.

 As counsel for the State submitted, against the back ground of clan loyalty and support demonstrated by the gathering of men to repair Saleu’s house, it is strange indeed that this support and loyalty allegedly disappears when some of the group decide to revenge the chasing of Bruce and Samuel.

 For those reasons I prefer the evidence of Peter Nelson that there was a large group who attacked the houses and drove out Peter Su-uh, Nelson Peter and families and that this group included the 5 accused.

The Journey to Tami River and Back

 Nelson said that the families left Keloti when the attack commenced between 6-7pm and went to Tami River. From Tami River he and John Esau turned back to Keloti and the other family members went on to Pelipowai. As counsel for the Accused submits there needs to be some analysis of the timing involved with Nelson Peter’s journey to Tami River and back and the allegation of the departure and arrival of a boat from and to Keloti. 

 The uncontradicted evidence of Nelson Peter is that the round trip from Keloti to Wamarai and back in a motor boat would be an hour. A slow walk to Timoenai is 1 ½ hours. If a slow walk is 3km/hour that would make the distance to Timoenai 4 ½ km. If running with children in hand a speed of 8km/hour could be achieved and 10km/hour without them, that would make the round trip of approximately one hour. And so it is physically quite possible that Nelson Peter left Keloti with his family at approximately the same time as a boat set out to Wamarai and that both the boat and Nelson and John arrived back at Keloti at approximately the same time as the boat. That is consistent with Nelson Peter’s evidence. 

 Counsel for the accused submitted that it was against logic and common sense for Nelson Peter and John to return back to Keloti when they knew the accused were armed with guns. But this is not the case. On my reading of the evidence, when Nelson Peter said he turned back from Tami River to Keloti he only knew the attackers had slingshots and bush knives. The guns did not appear until Moses and Lawrence allegedly arrived on the scene about the time Nelson and John arrived back at Keloti. So Nelson and John had no foreknowledge that the accused would be armed with guns. He saw Lawrence and Moses holding guns after he had returned to Keloti. But even if there were guns known to be present, in the night Nelson and John could reasonably expect to be able to conceal themselves so that the presence of guns would not be an automatic deterrent to their attempts to see what was happening.

Existence of the Motor Boat

 As to the existence of a boat with motor at Keloti on Saturday evening Delca’s evidence is that there was a boat there on Friday afternoon. Nelson’s evidence is that there was a boat on Saturday night. Saleu’s evidence in chief is that there was a boat on Friday afternoon, which (in cross-examination) returned to Wamarai that night using the motor. Although he recanted as to any knowledge of a boat in RXN. The actual exchange was as follows:

"question: you were asked if a boat was used with motor to go back to Wamarai, were you there?
Ans: no
question: you guessed?
Ans: I paddled and the boat I don't know.

Four of the other accused say there was no boat. 

Saleu’s evidence that there was a boat at Keloti on Friday afternoon was not suggested by counsel; it was a completely volunteered answer in evidence in chief and corroborative of Delca’s evidence. When the State and the accused’s evidence co-inside I consider it most likely to be the truth. I find that there was a boat at Keloti on the Friday afternoon and that the other 4 accused have lied in this aspect of their evidence. It is more than likely they have done so to remove themselves from any connection with Nelson Peter’s evidence of a boat travelling from Keloti to Wamarai, back to Keloti then to Pelipowai on Saturday evening. I accept Nelson Peter’s evidence and find that there was a boat at Keloti on Saturday evening which departed when Peter Nelson was leaving the village and returned approximately one hour later. I reject the further evidence given by Saleu in XX claiming the boat left Keloti on Friday evening and in RXN, denying the existence of the boat, as simply being an attempt to repair damage to the defence done by the truth in evidence in chief. Further confirmation of my conclusion is found in the failure of Samuel to provide any answer when questioned in XN about the boat.

Observation of the Arson

 Nelson said that he and John Esau hid in the Sago trees 10 metres behind Peter Su-uh’s house. They saw all of the accused standing around while Martin, Bob Pukai, Chechial and Ndresile set the houses alight. Moses and Lawrence were holding guns.

 The circumstances of observation were that it was night and dark and Nelson was observing in a dangerous situation from a place of concealment, but reasonably close to the events. As Defence Counsel submitted he may have been scared although concealed by the trees and the night. However the identification was of people already well known to him and once the buildings were alight there would have been plenty of illumination. But no doubt, in the nature fire, the light would have had a flickering quality and there would have been shadows, although there is no evidence to that effect. The observation was not a fleeting glimpse. There would have been ample time to observe. Overall my conclusion is that the circumstances of observation were reasonably good and identification of persons known to Nelson could be made without mistake once Peter Su-uh’s house was alight and confirmation could be made of the identity of persons observed earlier only by moonlight. The identification would be recognition as it is not disputed that all of the accused are well known to Nelson Peter.

 I must acknowledge that Nelson could have reason to lie, there is the very long standing and ongoing land dispute. There is also a possibility that the witness may feel that the three already convicted of arson is not enough punishment meted out to the clan whose members have deprived his family of their property. These possibilities have to be kept firmly in mind. I must be satisfied that the witness is not only accurate but honest as the identification in this case is critical: State v John Beng [1976] PNGLR 471(Frost CJ). My impression in the witness box of Nelson Peter was that he was a straightforward and honest witness. His evidence was not shaken in any significant way by cross-examination. With the exception of the time of arrival of the accused at Keloti, I prefer Nelson Peter's evidence to the evidence of the accused wherever there is a conflict.

 As to evidence corroborating or independently proven facts, there is the evidence of his wife that Nelson and John turned back to Keloti, so that there is some corroboration for his claim that he and John were there watching. Also it is undisputed that the Accused were at the village. There is no evidence directly corroborating the identification by Nelson of the Accused at the arson. The evidence of the Accused contradicts Nelson Peter’s evidence. The difference is that the discrepancies in the evidence of the accused show that they are lying, whereas there is no indication in the evidence of Nelson that he is doing so.

Other Aspects of the Evidence

 I do not believe the accused when they say they were not there at the arson, when I have found that they have lied about the existence of the boat and about the nature of the confrontation between Nelson Peter & his father and Bruce and Samuel.

 I turn now to an examination of the balance of the evidence of each of the accused. Saleu said he left Keloti before the houses were burned; he looked back after about 30 minutes and saw the fire from the water. That evidence conflicts with the timeline given by Nelson as it puts the fire half an hour earlier and logically part of a single assault rather than a two phased one. 

 Saleu said he arrived at Wamarai, saw Moses but did not speak to him. This I find is not logical. There has just been a dramatic event at Keloti involving people from Wamarai. Saleu arrived back at Wamarai but claims he said nothing to one of the senior men, even though there has been a division of loyalty within the clan group and some have been left behind in the (allegedly) dangerous situation of facing a fire arm. To my mind, without some explanation of why there was no exchange of words, this evidence does not stand scrutiny; it is against the logic of what one would expect to happen. 

54.	The evidence of Sapak is he arrived before Saleu and spoke to Moses. Therefore Moses knows that there have been serious events at Keloti involving people from Wamarai. Saleu arrived after Sapak and Samuel. Thus he was in a position to give a later, more up to date report of events. He could have told Moses that there was a big fire at Keloti which he observed from the water, and what others of the group were doing and the general situation when he left Keloti, but he claims that he went straight to bed without speaking with Moses. I cannot accept that evidence as truthful. I consider Saleu’s evidence of seeing Moses at Wamarai to be a device to place Moses away from the scene of the crime. Saleu says he saw Samuel in Wamarai, but he does not mention Sapak. As Sapak is alleged to have been looking after Samuel it would be common sense to expect them to be together. Samuel does not mention that he saw Saleu.

 There is little more to be said about the evidence of Samuel. Whether he was returning from Timoenai or coming from the other side of the village when confronted by Nelson Peter is not material. I find that this was the event that the accused men used as an excuse to attack. However, I do not accept that Samuel was shot by Nelson and that Samuel left immediately for Wamarai in a mon with Sapak, for the reasons stated above. Samuel does not mention seeing Moses or Saleu at Wamarai when he returned there. 

 And for the same reasons I reject Bruce’s evidence. His and Samuel’s evidence that Nelson was going to launch a canoe in order to shoot him in the water was never put to Nelson Peter. It carries no weight. I find it was another detail added by them to convince, and it did not happen.

 Bruce is the only accused who mentions speaking with Sapak and Vincent on returning to Saleu’s house after the alleged shooting, with the exception of the claim in Saleu’s police statement that both Bruce and Samuel, who had both had to swim, told those at the house. If the sequence of events was as Bruce claims, that he arriving first and advised Sapak and Vincent that Nelson had fired a shot at Bruce and Samuel, this I would expect to be part of the evidence given by Sapak and Vincent. But it is not mentioned by either of them. 

 Another difficultly with Bruce’s evidence is this; he gave evidence that Samuel drew fire away from him, saving him. It is difficult to believe that on arriving back at Saleu’s place he would leave his brother Samuel who has just saved his life, get into his canoe and paddle away, as he claims, without waiting to see that Samuel arrived safely back at the house. He does not mention doing this. I reject Bruce's evidence that he left Keloti straight after the confrontation with Nelson Peter as not consistent with the other evidence nor with logic and common sense.

 Vincent Ndresile Sampson’s evidence I also reject because it follows the line I have already rejected in respect of the alleged shooting of Samuel. Vincent's denial that Nelson Peter saw him holding a plastic container at the fire, that he and the other six were seen by Nelson at the fire and that Lawrence Kiapin does not own a 19 foot boat and 40 hp engine, were firmly made by him with eye contact with counsel for the State. However after each denial he looked down, pulled on the bottom of his shirt and fiddled with the top of his trousers. This did not occur in examination in chief or re-examination and indicated to me some discomfort by the witness with the answers he was giving, because they were not the truth.

 Moses Pukai’s statement from the dock was curious in what it did not contain. He said he knew nothing about the allegations, apart from what he learned later. That could not be entirely true if Sapak and Samuel’s evidence is correct. Sapak is said to have woken Moses up to speak to him about Samuel’s hand. Moses is alleged by Sapak to have directed him to Dr. Felix. Then Sapak says there was a second conversation in which Moses instructed him to take Samuel back to his father at Waichaleni. Common sense tells me that such an exchange could not have occurred without Sapak or Samuel telling Moses how Samuel's hand became injured. But Moses is content to say he knows nothing about the matter. He makes no statement identifying where he was at the relevant time. Very little weight can be given to such a statement. It does not provide any alternative to be taken into consideration, other than that this accused was not there.

 Lawrence Pasiu’s unsworn statement is also devoid of any relevant detail. He said "about the matter happened on the 10th January 2004 he was not with them". He does not mention Samuel being brought to him at his home by Sapak with Samuel’s injured hand bandaged. He also does not mention where he was at the relevant time. Again the unsworn statement provides no alternative facts to be taken into consideration. 

The prosecution case against Lawrence and Moses was clear and detailed. It was alleged by Nelson Peter that Moses and Lawrence arrived at Keloti in a boat and were carrying guns. That they were at Keloti and with the group of men who were burning the houses. In the face of that case it seems to me a statement simply saying I know nothing about the matter, when on the evidence of the co-accused the events did touch their lives in some detail on the night of 10 January 2004, although a rebuttal by inference, can be given very little weight.

62.	The Supreme Court has said that:

"The jury should take the prisoners statement as a possible version of the facts and consider it with the sworn evidence giving it such weight as it appears to be entitled to in comparison with the facts clearly establish by the evidence": The State v Kasaipwalova [1977] PNGLR 257.

 The court is not given the opportunity to compare an unsworn statement with the sworn evidence when the unsworn statement does not provide any possible alternate version of the facts, apart from a blanket denial, and by inference the claim that they were not at Keloti.

 On the analysis which I have made of the evidence, I find the facts are these: on 7 January 2004, which was the Wednesday, Vincent Ndresile Sampson with others, threatened Delca, that he would push a Bush knife into her stomach if she and her brother did not leave. 

 On the afternoon of Friday 9 January 2004, the 5 accused and others arrived at Keloti and stayed at Saleu's house. That same evening Martin and his son Samuel came over to Nelson Peter’s area and took away a mon. The following afternoon a group from Saleu's house including Chechial, Bruce and Martin went to buy cigarettes at Timoenai. On their way back at dusk Bruce and Martin stopped and spoke to Delca’s son, frightening him. After dark, between 6 and 7pm Bruce, Samuel and another person approached Nelson Peter’s area. Nelson Peter’s dogs warned of their approach. Bruce and Samuel were chased off by Peter Su-uh and Nelson Peter who was armed with a bush knife. 

 Bruce and Samuel ran back to Saleu's house when everyone grabbed weapons and ran armed with axes spears knives and slingshots. They attacked Peter Su-uh’s house which drove off the families living there. The accused or some of them then travelled by motorboat to Wamarai and Waitcheleni and returned to Keloti with Moses and Lawrence and guns and possibly kerosene. 

 At Keloti the accused were observed by Nelson Peter who had returned from Tami River. Nelson saw Martin, Bob Pukai, Chechial and Ndresile set alight the houses while the other accused and others watched and joined in breaking Peter Su-uh's house. The three houses and shop were set alight. Then the accused all left in the motorboat headed for Pelipowai.

 Now having rejected the core of central facts of the accused’s defence, other than Lawrence and Moses, am I satisfied beyond all reasonable doubt that all of the accused are guilty as charged? 

 The position of the evidence is this, the accused's defence was in substance an alibi, they were not there when the arson occurred. When the alibi is shown to be untrue, in respect of five of the seven accused, there is nothing left of those five accuseds evidence to contradict the State's case.

 In relation to the two accused who gave unsworn statements, I must weigh those unsworn statements, that they know nothing about the matter, against the sworn and tested evidence of the State witnesses, in particular the evidence of Nelson that Moses and Lawrence were there at the fire participating and encouraging by their presence as community leaders and by being armed with guns.

 I have considered the possibility that Moses and Lawrence gave unsworn statements because they did not wish to be subject to cross-examination, as they did not wish to have put to them that Sapak and Samuel were lying when they said they saw and spoke to Moses and Lawrence when Sapak and Samuel allegedly returned to Waichaleni after the alleged shooting and prior to the fire. However, Moses and Lawrence have in effect denied the conversations in saying in their unsworn statement that they know nothing about the matter, and inferentially denying the knowledge they must have gained about the alleged shooting of Samuel, if the conversations and meetings between Moses, Lawrence, Samuel and Sapak, contained in the evidence of Samuel and Sapak, had in fact taken place. And so I reject the notion that the decision by Lawrence and Moses to give unsworn statements was motivated by a desire not to incriminate sons or clansmen.

 Taking into account the comments I made earlier about the relevant matters not contained in the unsworn statements, and the fact that they are unsworn against the weight of sworn and tested evidence, I reject them as not raising any reasonable doubt against the version of events put forward by the State.

73.	In short I am satisfied that the State has proven its case. The evidence of the accused suffers from multiple inconsistencies and does not raise a reasonable doubt in respect of the State’s evidence. Consequently the case is proven beyond reasonable doubt and I find each of the accused guilty and convict them as charged.

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