State v Sai [2009] PGNC 270; N4203 (24 September 2009)

N4203

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1667 of 2007

THE STATE

V

JOHN PEIU SAI

Mt. Hagen: Sagu AJ
2009:.....May, 24 September

CRIMINAL LAW - arson – identification: defence of alibi- court to warn itself of
dangers of conviction -recognition by members of community, community leaders identification

Cases Cited.

John Beng –v- The State [1977] PNGLR 115
Biwa Geta v The State [1988-89] PNGLR 153
The State v. Buka Pepekon (19 May 1995, unnumbered)
State v Anis Noki 1993 PNGLR
The State v. Tony Pandau Hahuahori (19/02/02) N2185
Jimmy Ono v The State (2002) SC698,
Masolyau Piakali –v-State (2004) SC771
Luingi Yandasingi v the State [1995] PNGLR 268; SC 474

Counsel

Mr. P. Waine, for the State
Mr. Kapi, for the Accused

VERDICT
24 September, 2009

1. SAGU AJ. : The Accused was committed on the 13th of December 2006 to the National Court to stand trial for the following four charges under the Criminal Code Act: (1) stealing under section 372(1), (2) Arson Section 436(a) (3) stealing section 43(a) and (4) Break and Entering Section 395(1)(c).

2. However, the State indicted the Accused with only two Counts jointly. Firstly, that he set fire to a dwelling house contrary to section 436(a), and secondly that he broke and entered a building that is adjacent to a dwelling house contrary to section 398(a)(ii) both provisions of the Criminal Code Act. The Accused pleaded not guilty to both charges. I had reserved decision on verdict which I now hand down.

BRIEF FACTS ON INDICTMENT

3. The State alleged that between the month of March and April 2004, there was a tribal fight between the accused tribe and another neighboring tribe in the Baiyer River District in the Western Highlands Province. During the tribal fight on the 29th day of March 2004 between 8am and 12pm, the Accused led a group of men from his clan who had armed themselves with guns, bush knives, and axe to Mr. Kunjip Sai's house in Kingaringa village and set fire to it. The Accused and his men met Lewa Kunjil the wife of the victim Kunjil Sai in her kunai grass thatched house cook and told her to leave the house. They threatened to kill her if she refused. Lewa left the house with her two children. The Accused and his men ransacked the house and stole all personal items and set fire to the cook house which was completely burnt down. The State further alleged that the accused broke and entered the semi permanent house and stole everything that was in it to a total value of K11, 000.00. The owner of the house, Mr. Kunjip Sai, is the younger brother of the Accused.

4. The accused raised the Defence of Alibi through a Notice of Alibi in which the accused asserted that at the time of the alleged offences he was at Kamap or Sip village which was his wife's village. So the issue that came to trial before me was one of identification.

Principal of Identification

5. The law on identification was settled by the Supreme Court in the often cited case of John Beng –v- The State [1977] PNGLR 115 where Counsel for the State quite rightly drew my attention to. This case laid down the rule that:

"In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.

When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered."

6. I therefore note as well as warn myself of the inherent dangers and the need for caution when considering identification evidence and I will remind myself of the dangers as I proceed.

THE EVIDENCE

STATE EVIDENCE

7. The State tendered the accused Record of Interview by consent. It does not contain anything detrimental to the accused. The state called three witnesses who gave oral evidence in sworn testimonies (1) Mrs. Lewa Kunjil, the wife of the victim, (2) Cr. Mark Piapaldi, the Ward Councilor of Kingaringa village and (3) Mr. Ruri Makia an elderly man from Kingaringa village who were all present at the crime scene in the village during the time of the alleged offences.

UNCONTESTED FACTS

8. The uncontested facts before me are that Lewa Kunjil is the wife of the victim, Kunjil Sai who is the younger brother of the accused, John Peiu Sai. She had been married to Kunjil for more than 10 years. The victim had two houses in the village, one a cook house made of bush material with kunai thatch roof and the other a semi permanent house. The accused, victim and all witnesses lived in the same village. The State witness, Mark Piapaldi is from the same clan as the accused and the victim and is their Ward Councilor. The third State witness, Ruri Makia is an elderly leader of their clan. The accused house, the witness Ruri Makia's house and the victim's house are 35 to 50 meters apart in the village. Between March and April 2004 the accused tribe was involved in a big tribal fight against their neighboring tribe. Old Man Sai's two brothers and their sons were in alliance with the enemy tribe since they live in the enemy village; while the other two brother's sons of which included the accused and the victim were on the accused and victim's side and fighting against each other. The accused brother, Pawa had died from that tribal fight. The victim Kunjil Sai is a Village Court Magistrate who did not want to take part in the fight, so he killed a pig, hosted a party and made his intentions known and had left the village during the relevant time. On the morning of the 29th day of March 2004 Kunjil's cook house was completely burnt down while his semi permanent house was broken into and properties therein were removed. It was a very fine and clear day.

State Witness

9. First State Witness Lewa Kunjil, stated in her evidence that around 8am in the morning on the 29th day of March 2004 she was in her kunai house or house cook in her village at Kangaringa with her two children. The accused John Peiu Sai armed with an axe, led a group of men who were members of their clan came to her house. He asked her where her husband Kunjil Sai was. She told the accused that Kunjil had gone to Mt. Hagen Town as he did not want to fight. This made the accused angry and he shouted "who did he want to fight for him that he left, did he want his dead father to fight for him?" The accused threatened her and her two children to leave their house. She left crying with her children. Whilst she was some 300 meters away she looked back and saw smoke come out of her house. When she return to her house she saw her cook house was completely burnt down and her semi permanent house had been broken into and properties therein had been thrown outside and taken. She says that the fighting zone was some 6-7 kilometers away from their village. The enemy tribe had not yet come to their village to cause such destruction and so the houses and gardens were still intact. She says the accused and his second wife Mapa, were in the village and they did not leave the village. She gave an account of seeing Mapa in the church the Sunday prior to Monday 29th March 2004 the day of the incident and described the clothes she wore during the church service. She says she knows the accused very well as he is her brother- in- law, his second wife Mapa was present at the scene of the crime on the day.

10. On cross examination she denied that she had falsely brought this charge against the accused and she said she had no motive to lie and that there was no dispute between her husband Kunjil and his elder brother the accused in this case.

Q How do you know John the accused is the one that burnt your house

1. John the accused is the one that chased me out so I knew he burned down the house.

Q. Why did the accused get angry with your husband Kunjil?

A. He did not want to fight, because he was a village court magistrate and secondly his other

brothers were in the enemy tribe. So he slaughtered a pig, made his intentions known and he left for Mt. Hagen. This made the accused angry as he wanted Kunjil to stay and fight with him to avenge brother Pawa's death during the fight.

Witness says she saw accused kicked open the door to the semi permanent house and the first man to enter the house and led the group inside and took everything inside.

11. 2nd State Witness Cr. Mark Piapaldi . On the relevant day Councilor Mark Piapaldi was in the village and says the accused is very well known to him. They are clan brothers. The accused is a leader of the group and he went with others and he witnessed the actions of what he did in public. I quote his evidence in part here:-

I am a leader in the village. I was called upon so I went close to the scene and I saw what happened. When I went there, John Peiu and those involved in that incident were at the scene standing beside Kunjil Sai 's house. Kunjil has two houses, kitchen cook house and a semi permanent house. The cook house was burnt by John Peiu Sai the accused who was angry, and called out and said:-

"Bigpela fight kamap na em ino laik istap na fight. Em go we. Em laik go em go olgeta – na me kukim house"" He was referring to Kunjil Sai."

12. The witness saw the accused was angry, broke and kicked open the door of the semi permanent house and went inside and threw out the properties inside. Councilor Mark intervened to prevent the accused with two others but the accused responded by saying:-

" These are my brother's properties, my brother left so I have to destroy them and get them"

13. Councilor Mark informed the others not to participate and leave it to those who are already with the accused. After about one and half hour at the scene this witness left.

14. Councilor Mark saw the accused present when the house got burnt down and again after a week, the accused completely dismantled the semi permanent house. The accused was with them all the time fighting as they had decided that no one should leave. The fighting zone was 6-7 kilometers away and the houses in the village were still in tack as the enemy had not yet entered their village to destroy houses and food crops.

15. On cross examination he denied that he had falsely brought this charge against the accused based on some ulterior motive including the accused having a difference over a council election in which the accused challenged the witness in 2002. The accused was angry with his brother Kunjil for deciding not to participate in the fight and running away to Mt. Hagen. This witness said in cross examination that the accused was a leader and during the fight he was in the village leading the man in the fight.

3rd State Witness Ruri Makia

16. Mr. Ruri Makai is an elder of the accused village. His evidence is that his house is located 30-35 meters away from Kunjil Sai's house. On the day he was in his village. Kunjil Sai who is a village court magistrate had already left as he did not want to participate in the village because two of his cousin brothers were in alliance with the enemy clan. This made the accused upset that Kunjil should leave and so he burnt down Kunjil's house and destroyed his property. The witness says he was there before Cr. Mark and saw that the accused took a matches, pulled kunai off the roof and set fire to the kunai house. Then he broke and entered the semi permanent house of Kunjil and removed properties, mattress, saucepans blankets, cloths etc and other house hold items. He told accused not to destroy the house but the accused said:-

My brother is frightened of the fight and left the village and his father is not here fighting for him, that he should leave the village, if he is gone let him go for good.

17. And he burned down the house. In cross examination the witness says the accused told him he was going to Kunjil's house. This witness must have followed as he then says the accused told Lewa Kunjil to come out of the cook house and he saw accused pull out the kunai from the thatch roof and selected a match and set fire to the cook house. When put in cross examination that Lewa Kunjil had told him what to say he replied " I am telling the court what I saw". He says the accused had a shirt and trousers and bows and arrows and spears on that day.

Inconsistencies within State evidence

18. Inconsistencies in the description of the clothes the accused was wearing, and the manner in which the fire was lit to burn down the house. Are the inconsistencies competing and are they significant? There was no church service when Lewa said there was church a service. I will come to that later.

DEFENCE EVIDENCE

19. The defence called the accused and his second wife Mapa who gave sworn oral evidence to support the defence of alibi.

First Defence Witness Accused Peui Sai.

20. The accused gave sworn evidence that on the day of the incident he was in his second wife Mapa's village in Sip which takes a day to walk from his village. He left his village on the 10th of March 2004 with his wife and step daughter and stayed in Sip village for two (2) years and only came to Kangaringa after the fight was completed and peace restored in 2006. During his time in Sip village he had build houses, raised pigs, made garden and etc. He says Lewa Kunjil was never in their village in Kangarianga during the incident as she had accompanied her husband to Mt. Hagen. She could not have possibility seen him. He was in difference with the victim over their brother Pawa's widow Mapa as to who should marry her. He succeded in marrying her so his brother Kunjil Sai was not happy which meant that he also got deceased Pawa's coffee garden. He said state witness Lewa Kunjil is supporting her husband to bring this false accusation. As to the second state witness Cr. Mark Piapaldi, the accused said that he had grudges against him for that he challenged him in the 2002 council elections.

Second defence witness Mapa Sai

21. This witness supported her husband's story almost in all aspects and added that she was with him in Sip village during the relevant time. Lewa Kunjil would not have seen her the day before in church. However, she said she was married for 20 years. It seems an awful long time when her husband had just been killed in that tribal fight. Also she says in cross-examination when she explains why Kunjil did not want to fight because of the two brothers on the enemy side, the question was asked:

Q. How do you know?

A. The Magistrate told us, John and myself that the two uncle/cousins are on the other side so we will not fight so he killed a pig and after having a party went to Hagen.

Q. So you left after Kunjil Sai?

A. Kunjil left first then us about 2 or 3 days later.

RELEVANT LAW

22. In assessing the identification evidence provided by State witnesses, Lewa Kinjil, Mark Piapaldi and Ruri Makia, I will apply the principles set out by the Supreme Court in John Beng (supra) and Biwa Geta v The State [1988-89] PNGLR 153 as I have quoted above. I have considered the inherent dangers of relying on the correctness of the identification to support a conviction and caution myself, as the tribunal of fact, accordingly. I am conscious of the possibility that an honest witness might be mistaken as to who they saw.

23. I need to address my mind to considering what opportunities did the witnesses have, such as lighting conditions, the position from which they observed and whether they had any acquaintance with the accused prior to this offence are some considerations as laid down by Kearney J in the above case when he says:

"What opportunities the person identifying had to form a judgment of the identity of the person who committed the crime...position of the parties, their lighting, the opportunities to form a judgment and generally the circumstances in which the identifying witness formed his judgment as to identification."

24. This was further held in the Supreme Court case of Luingi Yandasingi v the State [1995] PNGLR 268; SC 474 where Amet CJ, Kapi DCJ and Los .J on 6 December 1994 said that the quality of identification is established by the following:

"a. whether the witness knew the accused before the event in question;

b. the lighting conditions at the time;

c. the distance between the witness and the accused at the time of the event in question;

d. was there any object which may have obstructed the view of the accused."

25. The Supreme in more recent times in Jimmy Ono v The State (2002) SC698, Hinchliffe J, Sevua J, Kandakasi J and Masolyau Piakali –v-State (2004) SC771, Sevua, Lenalia & Kandakasi JJ endorsed and approved a summation of the relevant principles as follows which I adopt:

"In summary the principles are these:

1. It has been long recognized 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."

Analogy of Evidence to Law

26. I adopt the warning stated in those cases and I do warn myself again that there are dangers inherent in eye witness identification that the identification by recognition may be reliable but I need to be cautious because as there can be mistakes in trying to identify close relatives and friends such as these three State eye witnesses in Kangaringa village, namely Lewa Kunjil, Councilor Mark Piapaldi and Ruri Makia.

27. The day of the incident 29th March 2004 was a clear fine day. This was during a tribal fighting period between the accused clan and a neighboring clan.

28. The State witnesses and the accused all come from the same clan and village of Kingaringa and are no strangers to each other. Lewa Kunjil is the accused's sister in law. Mark Pipaldi is a clan brother and also their Ward Councilor. Ruri Makia is an elder in their village. These three witnesses were at the scene of the crime on the day. Lewa Kunjil and Cr. Mark had conversations with the accused as indicated in their evidence above. On the day, the accused came to Lewa in the cook house and asked for Kunjil Sai and that he heard Kunjil had left the village for Mt. Hagen. This made the accused upset as he felt that Kunjil should have stayed back and participated in the fight to avenge their brother Pawa's death as is expected according to his custom. He shouted to Lewa " who did he want to fight for him that he left, did he want his dead father to fight for him". . But since he left he should leave permanently and not return so he burnt down the houses. Councilor Mark Piapaldi came after the cook house was burnt and saw the accused kicking and breaking into Kunjil's semi permanent house. The Councilor shouted to the accused, "you have already burnt down one house so stop destroying the other house". The accused replied saying there is a big fight here and why did Kunjil not stay back to participate. Since he is gone so he should leave altogether so he burnt down the house. The Councilor intervened to prevent the accused from further destroying the other house but the accused responded by saying that these were his brothers properties, so he had to destroy them.

29. The accused told elder Ruri Makia that he was going to see Kunjil as he went past his house so Ruri followed and saw the accused shouting to Lewa to leave her house and how he set light to the cook house striking matches to the kunai on the thatched roof.

30. The defence raised possible motives for them to be lying in court. Lewa Kunjil was prosecuting him on behalf of her husband with whom the accused has had a difference over the wife of their late brother Pawa. The witness denied that. It is a man's fight over a woman they want to marry to be the second, third or whatever number wife on their list. I find it difficult to even conceive in my mind that the first wife would fight on behalf of her husband. I am of the view that the converse is true that she would be jealously driven to ensure that the widow did not come to share her husband. There is no reason why Lewa would be telling lies in testifying against the accused. He is her brother in law. The defence contented that Cr, Mark Piapaldi was motivated to lie due to grievance over a council election in which he challenged the witness in 2002. This was put to the witness and witness denied and said, he told the court what he saw as the accused ward councilor. The council election was in 2002. There was more important business on hand then, which was to defend their territory from the enemy tribe and all grievance were to be left behind. Actually such matters are dealt with in the man's meeting to encourage bonding and unity prior to engaging into tribal war fare. It should not arise now.

Ruri Makia 3rd State Witness

31. The Accused said he had a land dispute with this witness, Ruri Makia and therefore he too is lying. But this was not put to him in cross examination by the defence, therefore, I am not convinced that this witness had a motive to lie. This witness told the story as he saw.

32. Defence. The defence called the accused and his 2nd wife Mapa to support the defence of alibi that the accused was not there. He also left when he learnt that Kunjil his brother did not want to fight and had left for Mt. Hagen. The accused said he never came back to his village for two (2) years until after the fight. He said his in- laws had given him a piece of land in which he built his house and made gardens and raised pigs. He raised possible motives for the state witness lying which I have already addressed above and the difficulty I had in accepting it. The wife supported this story. They were unimpressive witnesses. Their evidence were vague and inconsistent. The answers were not clear, evasive, no eye contact and it appeared they were under a lot of strain to answer the questions. . Their demeanor was poor and they gave the appearance of someone who was lying. There was no other witness from Sip village to come forward to testify in the alibi. Further it is not normal for a leader of the accused's caliber to be away in his wife's village while his clan was fighting and under threat and particularly when his brother was killed. It is only normal for a man in that situation in this part of the country to seek revenge and be in the battle field. I am not convinced that the accused was in Sip village at the relevant time.

33. The wife of course is not a totally independent witness. However, Witness Mapa broke at the end of the cross examination when she said Kunjil told her and her husband who is the accused that he did not want to fight because brothers were involved and left for Mt. Hagen. They left two (2) or (3) days after Kunjil had left for Mt Hagen. Further Mapa said she was married to the accused for 20 years, this is difficult to understand as her husband Pawa had been killed during that tribal fight. I find it difficult to believe Mapa in her alibi evidence and reject it.

34. All the State witnesses and the accused are related by blood and clan and they reside in the same village. They all recognized the accused and saw him committing the offence in broad day light in their village. They spoke to the accused on the day and there is no motive or reason that would cause them to lie about one of their own clans man.

Community Leaders Identification

35. I placed much weight on the fact that the community leaders have come forward and testified against one of their own clan man, the accused. The issue of community leaders identifying, rounding up and handing over to Police, members of their own clans or tribe has received approval and acceptance by the National Court. The State v. Buka Pepekon (19 May 1995, unnumbered) Injia J as he then was Woods J in State v Anik Noki [1993] PNGLR and more recently Kandakasi J., in The State v. Tony Pandau Hahuahori (19/02/02) N2185 reviewed the cases on point and in approving the first two case had this to say:

"The law is that, if the leaders in the village or community round up offenders and hand them over to the police, the Court should place weight on that fact."

36. This practice and contribution of the village leaders to law enforcement should not be treated as mere conjecture. This should particularly be so when supported by appropriate evidence or there is nothing showing an error on the part of the village leaders in bringing offenders to justice.

37. In the Supreme Court case of Jimmy Ono v The State (2002) SC698, Hinchliffe J, Sevua J, Kandakasi J, in particular: His Honour Kandakasi J had regard to the judgment of Woods J., in State v Anis Noki [1993] PNGLR 426, at 427. And said these words as I adopt them in this case and I quote:-

"There, the Court noted that the Constitution clearly recognised the overriding importance of the traditional village and community leaders as the main viable asset in the country and the need for partnership with the community leadership and the legal system for a better PNG. Hence, when the community works to participate in the legal process, the courts must accept this participation and not disregard it. There must of course be proper basis for accepting such inputs of the community leadership. Relevant in that consideration is the fact that given the communal nature of PNG society, there can be very few secrets. When something happens, everyone soon knows. There are no strangers in the night.

'It follows therefore that, where village leaders come forward with their own knowledge and have "made" people surrender, there must be some weight in that. For clearly, no village or community leader would be prepared to blame their own line for nothing. This does not mean however that, the Court must readily infer guilt. Instead, they should allow relevant and admissible evidence to guide them into finding an accused guilty or not guilty.' "

38. Here Cr. Mark Piapalki and Village elder Ruri Makia have not brought the accused to the police station but they have come forward to testify in court to say that the accused is responsible.

39. The counsel for defence submitted that there are inconsistencies in the state evidence and that those inconsistencies should be considered in favour of the accused. Such inconsistency consists of the different descriptions of the clothes worn by the accused on the day, the weapons in his hands, and the description of how the fire was actually lit.

40. The rejection of the alibi evidence means that the quality of the identification evidence is safe enough to convict. Those inconsistencies become insignificant when the quality of identification evidence is good and the alibi evidence is rejected. However, it would have some significant value had the defence been restricted to one of denial thus placing identification in issue alone rather than in conjunction with a defence of alibi.

CONCLUSION

41. After having considered all the evidence as discussed above I find the evidence of identification by the State to be of good quality and am therefore satisfied that the state witness recognized the accused whom they knew was at the scene of the crime committing the offences he is charged with on the day of the incident than a mere identification of a stranger.

42. I am satisfied beyond reasonable doubt that the accused burnt down Kunjil Sai's cook house and broke and entered the victim's semi permanent house. I return a verdict of guilty on both counts.

_______________________________________________
Acting Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence