State v Neto [2022] PGNC 430; N9773 (24 June 2022)

N9773

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 864 & 865 OF 2019

THE STATE

V

KRIFU NETO & JAYMURRAY TRANGUI

Wewak: Miviri J
2022: 21^st & 24^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Arson 436 CCA – Trial – permanent house – Allegation Over Sorcery – set on fire – Burnt Down K 184, 506.00 Valued – Identification – Alibi – Defence Case Alibi Witness Called First – Two Accused Hearing Out Evidence – Two Accused Giving Evidence Following – Procedural Error – Weight Of Alibi Evidence Dubious Tainted – Witness Not Named On Notice of Alibi Called – Balance Not Discharged – False Alibi – Corroborative of Identification – Identification Made Out – Guilty x 2 – Bail Refunded x 2 Remanded x2.

Facts
The two Accused suspected victim of killing by sorcery
a relative. They went to his house chased him away
poured petrol lit it burning it to the ground.

Held
Unlawful and wilful burning
Down of house
Alibi
False
Corroborative
Identification made out
Accused both guilty of Arson.
Remanded x2
Bail refundedx2

Cases Cited:
Beng v The State [1977] PNGLR 115
Bate v State [2012] PGSC 46; SC1216
State v Wer [1988-89] PNGLR 444
Mai and Avi v The State [1988-89] PNGLR 56
Hagena v State [2017] PGSC 55; SC1659
Amoko v The State [1981] PNGLR 373
Tonde v The State [1994] PNGLR 539
Jaminan v The State [1983] PNGLR 318

Counsel:

F.K. Popeu, for the State
A Kana, for the Defendant

VERDICT

24^th June, 2022

1. MIVIRI J: This is the verdict of Krifu Neto of Sokel, Bena, Eastern Highlands Province and Jaymurray Trangui of Wamayan, Kubalia. Yangoru Sausia, East Sepik Province who pleaded not guilty to Arson of a dwelling house.
   
2. The facts on arraignment were that, on the 07^th of May 2018 between 5.00pm to 6.00pm at Perigo, Wewak the two Accused went to the house of Simon Ulai. They went there accusing him of practicing sorcery and causing the death of a relative recently. They were armed and tried to assault Simon Ulai who avoided and escaped. And he watched them from where he hid near the house. He saw Krifu Neto get a container of petrol assisted by Jaymurray Trangui, poured it around the house, got a dry coconut frond, lit it setting the house on fire, burning it down destroying it. The house with all that was within was valued at K184, 506. 00 the property of Simon Ulai and others. It was unlawful and wilful act on the part of the accused.
   
3. Both Accused entered not guilty pleas in respect of the charge laid pursuant to 436 of Arson which read, “A person who wilfully and unlawfully set fire to-
   

(a) a structure whether complete or not; or
(b) a vessel whether complete or not;
(c) a stack of cultivated vegetable produce; or
(d) a stack of mineral or vegetable fuel; or
(d) a mine, or the workings, fittings, or appliances of a mine; or
(e) an aircraft or motor vehicle,

is guilty of an offence.

Penalty: subject to section 19 imprisonment for life.”

4. The first witness on oath was one Simon Ulai aged 62 years old, originally from Warakembe village in Yangoru had acquired land at Perigo since his mother gave birth to him there. He was living there up to the 07^th of May 2018 between 5.00pm and 6.00pm he recalls that he was in the house with his wife and six-month-old baby. There were three visitors, bubus or grandparents of the baby had come to visit. And he heard noise of boys calling out on the road moving to his house. They were calling out that it is the Ulai family they are the ones who performed sorcery and killed our uncle. It is Simon Ulai only, he is a Kan. kill him. They ran up to his house and I left the house and went down to meet them. I said boys what is it, is there something. They were all armed with one meter long bush knives. When I asked, Krifu Neto threw the first bush knife at me and said, you Kan, I avoided when I stepped back. He threw another one and swore kan. Patu came at the back with other boys and he swung his bush knife at the back. I thought they will surround me now and kill me. Krifu Neto swung at me but I was trying to avoid and fell down. When this commotion was happening my wife and child and three visitors ran away. Our Baby was 6 months old sleeping on the swing, mother pulled her out and they escaped with bubu.
   
5. When I fell down, I thought that the only hope was to run into the house. Patu also followed and they chased me up to the veranda. I went into the house and closed the door. Krifu was swinging the bush knife at the door of the house trying to get into the house. When Krifu was doing that, Patu was breaking the louvres and flywire and trying to get into the house. I called out for help of anyone on the road to come and help me. The five boys who were outside got stones and were throwing them at the fibro wall to break it down and were saying, kill him, kill him. Brian Hamabi said, let him, let’s go and get petrol and come back and burn him with the house. When they left to get the petrol, I jumped down and escaped. I was thinking of my wife and child and the three visitors thinking where have they gone? My wife and child were hiding near the cemetery where there were small bushes. My wife said come here so I went to them. We hid and watched and saw if they will get the petrol and come back. Not long they came back, Krifu carried a white four litre container of fuel. He poured the petrol and broke open the flywire around the house. Other boys cut our cooking utensils set out on the bed outside.
   
6. Krifu got a coconut frond into the petrol threw it at the back of the house and set it on fire. Patu got another one threw it in front of the house. I told my wife we have seen it let us run away. The Fire lit up and they said if he is in the house, he will come out. He is not in the house. Search him in the bushes he must be there and kill him. My wife and baby, I told them they will not hurt you so my wife and baby followed the road. I continued along the bush. They went out to Peter Ulai’s house and assaulted him unconscious. They went to his wife’s house cut up the utensils and burned down the house. I hid in the bush I was afraid of my life.
   
7. My house is in the community and is on posts which are short. I came down the steps they were there so I met them. I reported all their names but they ran away from Police. And police arrested this two. These boys live with these two Krifu and Patu now before court. Patu is on my left side Trangui is his other name. Krifu is on my right side. They all live in the community like me we all live together. I’ve known them for some years now. And when I came down, they were very angry and they were going to kill me. I was brave to talk to them. It was still daylight not yet dark. There was nothing blocking my view from where I was hiding on the side of the house. The kitchen and poultry they also set both on fire. They were looking for me to kill me. Witness also identified the list of properties burnt when the house was set on fire. And the value was K184, 506.00 which was tendered and became Exhibit P5.
   
8. Simon Ulai was a witness of the truth and remained unshaken in cross examination and maintained the strength and the veracity of his evidence. He did not deviate and reiterated consistent account that he had earlier given. He stated that what he told the Court was the truth. And that Krifu and Patu fought him. He maintained that consistency and credibility in his statement that was tendered as Exhibit D1 for the defence. It was no different from his evidence on oath, it re affirmed his evidence, sighting that he saw both Accused. He knew them having lived there. And they were not new to him. He gave his evidence in a forthright manner. He was a strong witness with very good credibility. He was a very convincing witness. And maintained all alone that he saw both Accused firmly in view of the suggestion that he had lied. You are lying I saw them both at my house. He maintained with vigour his composure to his evidence. Cross examination did not tatter his evidence. It was all intact in that between 5.00pm and 6.00pm Krifu Neto and Patu got the boys and attacked him.
   
9. The next witness was the wife then, Lillian Bowie who was from Sepik half west coast Dagua who recalls that day 07^th day of May 2018 living at Perigo with Simon Ulai her husband then. That about 5.00pm to 6.00pm she was with their 6 months old baby with Simon Ulai in their house. She too confirms hearing the calling out on the road by the boys. Who were swearing and ran up to their house. They came to Jacob’s place next door and over the drain to our house. When I saw that I got the baby from the hammock and we went to the ground. We went along side of the house to the cemetery. There they came up straight to Simon Ulai. They were holding bush knives and were swearing at Simon Ulai. Three times Simon Ulai avoided the bush knife swung and him and went into the house and closed the door and was inside the house. He called out for help, but no one came to help. They left the house and went down to bring fuel to burn him down with the house. And when they went to get fuel, he left and ran down. He went and stood with us at the cemetery. From there we watched if they will come back or not with the fuel. And they came back with the container of fuel and poured around the house. Then they lit a frond of a coconut and set fire to the house. After they set fire to the dwelling house, they did the same to the kitchen and we left seeing the Poultry house on fire.
   
10. I recognize the boys who came as Krifu Neto, Patu and Brian, four others were from the village came down with them. We lived together, they live on the other side and we are on the other side. Our house is number three house after two houses they came up to us. Jacob’s downhill, we are up the hill so they came up to us. The boys lived there, since I got married to Simon Ulai, I know them because they live there. And when they were calling, I was on the veranda of the house. We were wondering was there a problem or they were calling out and coming. And when they came, Krifu came first followed by Patu and at the rear was Brian and the others followed at the back. Because the veranda was facing the road. And from the house wind side I could see the dwelling house and what was happening there from where we stood. Because the cemetery is close to the house. It was about 2 to 3 meters like from the witness box to the back wall of the court. That is the distance of the house to the cemetery where we were. We stood together Simon Ulai myself and our baby. The veranda of the house can be touched when you are on the ground, that is the height of the house.
    
11. I was married to Simon Ulai for four years so I lived there and know him as Patu. He is sitting over there and points out the accused in the dock. And Krifu is sitting over there and also points out the accused in the dock. He was the one who held the container of fuel and brought it up. Together with Patu they poured it around the house. Patu poured the front of the house and the veranda and the side of the house. Then they got a coconut frond that we used for cooking put fire to it and put it to the petrol and the house from it fired up. The house started burning and as it was burning down, they came to the house wind and the chicken house, we left the area. The sun was up it was still daylight about 5.00pm to 6.00pm so we saw this. They were aiming for Simon Ulai not me or the child so we were at the side of the house. When they said they will get petrol to burn it that’s when he came down to us and was with us at the side of the house wind and bush there so they could not see us. In the house there was me the baby and Simon Ulai, three of us only. And the three of us were on the veranda when they came calling out and swearing Simon Ulai you know about the death of our uncle. And what I have told the court is the truth. Because I was with child and saw what I am telling the court. And it is what happened on that day about 5.00pm to 6.00pm two of the Accused Krifu and Patu were there. They were seven of them altogether. I identified Krifu, Patu, and Brian. The other four are from the village. I know them they went to Boram and came back from there between 5.00pm and 6.00pm. I saw them the baby was trying to cry, I stopped him from crying, then when he did again, I breast fed it and stopped him from crying. And I am not lying this is what I saw because I was on the side of the house not the back of the house. And the bushes shrubs on the side of the cemetery blocked their view we hid there and saw them. Krifu and Patu put fire to the house then the house wind and the poultry house when we left the place. And this is what happened which I saw that I am telling the court. I was with my child and Simon Ulai.
    
12. No one told me to tell the Court, Police told me yesterday so I came. I am now married to another person. Simon Ulai rang my husband and got permission so now I am giving my evidence. I know as I was there for quite a while, I know the three Krifu, Patu, and Brian. And Patu is a bus driver, yes, he drives it and this incident occurred. The PMV bus runs between Perigo and Wewak yes. Their uncle died in the hospital they brought him and did this to us. Krifu Neto was boss crew when he died, they brought him and did this to us.
    
13. Again, I find no basis apparent or identifiable illuminated by cross examination in the veracity of this evidence by this witness. She is credible consistent and gives a very truthful common-sense account of what happened. She was not singing a fantasy, it was broad daylight between 5.00pm to 6.00pm she had lived there married to Simon Ulai for four years bearing his child then six months old, and was familiar with the neighbourhood who lived where? Who was from where by name and face? She made no hesitation nor was she looking for words, or did she starter to find what she meant. She was straight without any hesitation nor reluctance described what she saw. She was reasonable coherent and consistent truthful reliable witness. She was not making up a fictional story, there was no motive in her evidence except the truth, nothing but the truth as it unfolded before her God given eyes. It was not easy to pack up after four years with a very young child, six months old and she was giving that account word for word as to the view as she almost touching the skin of the assailants who were intent on extinguishing the life of her husband Simon Ulai which he avoided three times. I am impressed simply with her plainless credibility and the veracity of her evidence. I do not see the holes that the defence say are in her evidence, either the defence have been in the same court room or somewhere else, I do not see what they contend. This is one of the most impressive witnesses I have seen so far in this circuit who has boldly without fear or favour told what she saw as it unfolded before her. This was broad daylight and it was not an attempt to identify masked hood who was in a fleeting glance or difficult lighting situation. This was frontal and there was ample broad daylight 5.00pm to 6.00pm at very close quarters unhindered nor prevented by any obstruction in front. It is the most reliable evidence and would be erroneous not to believe her. I find as a fact she told nothing but the truth. I have no reason to doubt her account of the crime.
    
14. In addition to the oral evidence the State tendered the following exhibits, P1 was original pidgin version of the record of interview with the defendant Krifu Neto conducted on the 17^th December 2018 he exercised his right to silence and there was nothing that assisted either in his case or that of the State. Particularly for him the Alibi that he was at the hospital at 5.00pm to 6.00pm and bringing his uncle John Trangui who had died at the hospital. So, he could not have committed the offence in burning down the house of Simon Ulai. And that he was with the persons named in the Notice of Alibi at that time. None of whom were called except Andrew Hohombi. The English translation of that record of interview was exhibit P1(a).
    
15. The next evidence tendered by consent was statement dated the 17^th December 2018 of the arresting Officer Tom Ben in the record of interview of the Accused Krifu Neto. That was exhibit P2. And he also had a similar statement Exhibit P4 by him also dated the same date in respect of the Accused Patu alias Jaymurray Trangui record of interview that he conducted. Exhibit P3 was the original record of interview of the Accused Jaymurray Trangui conducted in Pidgin on the 12^th December 2018 by the Policeman Tom Ben. And exhibit P3(a) was the English translation of that record of interview. It did not contain the alibi for which notice was given. He also like his co accused elected to remain silent. He did not advance his case from that point that he was with named persons excluding the witness who was called at 5.00pm to 6.00pm bringing up the body of their uncle John Trangui from Boram General Hospital to the house because he had died after a long illness. That when they came up the place was already on fire and burning down.
    
16. Exhibit P5 is all the list of what was burnt down in the house made out by Simon Ulai with his family to the total value of K 184, 506.00. The value of the house alone is K 160, 000.00.
    
17. This was the State’s evidence and State case closed.
    
18. In defence without calling both Accused first to give evidence the defence called a supposed Alibi witness who was not named on the notice of alibi filed, one Faustina Trangui. This fact did not prompt counsel to seek leave to call her. She was called in breach of the criminal practise rules Order 4 Division 2 Notice of alibi

“4. An accused person shall not upon his trial on indictment, without the leave of the Court, adduce evidence of an alibi unless, before the expiration of the prescribed period, he gives to the Prosecutor written notice of particulars of the alibi and unless the notice contains the name and address of any person whom he claims can support the alibi or, if such name or address is not known to him at the time he gave the notice—

(a) he gives in the notice all information in his possession that may be of material assistance in locating that person; and

(b) the Court is satisfied that before giving that notice he had made all reasonable attempts to obtain that name and address and that thereafter he continued to make all reasonable attempts to obtain and to inform the Public Prosecutor of that name and address.

5. A notice under this Section shall be duly given if it is delivered to or left at the office of the Prosecutor responsible for the conduct of the trial or sent by certified mail addressed to him at that office.

6. Evidence tending to disprove an alibi may, subject to a direction by the Court, be given before or after evidence is given in support of the alibi.

7. A notice purporting to be given under this Section on behalf of the accused person by his lawyer shall, until the contrary is proved, be deemed to be given with the authority of the accused person.

8. In this Division—

"evidence of alibi" means evidence tending to show that by reason of the presence of the accused person at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission;

"the prescribed period" means the period of 14 days prior to the date of trial of the accused person.

19. She was not named in the notice of Alibi that was filed. Which is materially in the following terms, “Take notice that the Accused Krifu Neto and Jay Murray Trangui intends to adduce evidence of Alibi in his defence before the National Court at Wewak commencing 21^st June 2022.
    

Particulars of the Alibi

1. On Monday 07^th May 2018, between 05 and 06pm, both Accused were at Boram General Hospital, with their deceased uncle.
2. The Accused Krifu Neto & Jay Murray Trangui took at body of their uncle Late John Trangui to Boram General Hospital.
3. After the Doctors had confirmed the death of their uncle, the drove back to their house at Perigo.
4. After returned from Boram General Hospital with the body of late John Trangui, they noticed many people crowded around Simon Ulai’s house which was burnt.
   

Names Addresses
I Jay Murray Trangui Perigo Wewak Urban
2 Kifu Neto Perigo Wewak Urban
3 Andrew Hohombi Perigo Wewak Urban
4 Nathasa Wek Perigo Wewak Urban

20. The notice of alibi document number 6 on the court file, now evidence in court because it has been filed dated the 07^th June 2022. It is filed that same day obviously from instruction of the Accused to counsel. And by that authority counsel prepared that notice in accordance and filed. It is the lips of both Accused placed in their defence. Effectively by that notice they admitted that the dwelling house of Simon Ulai was burnt down wilfully and unlawfully. But they did not commit the offence and could not have committed the offence as they were with the persons, they named in the Notice of Alibi at the Boram General Hospital after rushing him there without success. And had brought him up to the house and saw the smoke of the burning house. It was not humanely possible for them to burn down the house, and be with their uncle John Trangui, now deceased.
    
21. So, the effect of that notice is that there was a wilful and unlawful burning down of the dwelling house of Simon Ulai by unknown persons. Arson pursuant to the Criminal Code was committed. But it was by persons who were unknown and could not have been them by the fact of they being at the hospital and bringing their now deceased uncle. Here in so contending it is now established that Simon Ulai had not given permission, or authority to anyone to burn down his house that day 07^th May 2018. That effectively means, what is now left for the prosecution is to prove the identity of the persons who burnt down that house with its properties to the total value of K 184, 506.00. And in this regard given the State will and must proved beyond all reasonable doubt that no other except the accused now before the Court were directly responsible and did burn down the dwelling house of the victim, Simon Ulai on that day 7^th of May 2018 at about 5.00pm to 6.00pm. There must not be any serious or lingering doubts identifiable or apparent as to the identity of the Accused before the indictment succeeds against them.
    
22. Relevantly therefore the law is as set out in Beng v The State [1977] PNGLR 115 in these terms:
    

“ 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.”

23. Here there is no dispute that the offence took place between 5.00pm and 6.00pm so there is no question it was broad daylight and the lighting was good. There is no challenge to the lighting conditions. It is accepted and uncontested by both defence and prosecution it was very broad bright day on the 07^th May 2018. The sun was up unobstructed of its light and brightness, either by weather, or landscape immediately there and in the surrounding areas leading up to the house. And at the dwelling house which was successfully burnt down. The relationship of both defence witnesses, Accused both and the State primarily witnesses were not fragile, torn, tormented, or disfigured by emotions because of fume of violence, or lingering grudges so that the testimony was to get back at the throat because of that motive. Here was identification made at very close quarters faces touching, body touching unscaled, visible plain God given without any mask or covering seen in very broad day light going about doing what the witnesses describe with minute precision of relatives living just next door to each other.
    
24. It was not a case of being in the dark of the night where visibility was zero to none. This is not the situation that was observed in Bate v State [2012] PGSC 46; SC1216 (20 December 2012) where the supreme court overturned the conviction because the evidence on identification was not beyond all reasonable doubt. It did not caution itself in taking account of that evidence upon which it returned the guilty verdict. Recognition was well but there were cases where even then mistakes were made. And that the reliability of the evidence could be the basis upon which the conviction was safe considering. Adverse inferences could not be made upon the case of the Accused that they did not disclose the Alibi at the first opportunity with the Police. Here the Accused are presumed innocent until proven guilty. And that burden is always on the State start to end, not on the Accused. It cannot be assumed that the alibi is recently concocted because the burden is on the State to prove even without the Accused opening his mouth. And the decision here stems from the Constitutional rights of the Accused under section 37 (3) and (4) (f) which are heeded in that all opportunity is given him to run his defence. Here it is my view that that is in accordance with the Rules of Court. They promulgate fairness to both sides of the dispute, hence that is the effect of Order 4 Division 2.
    
25. The accused have the prerogative untouched by anyone to run his case. The authority of counsel defending comes from the Accused. They know the witnesses in support of their assertion and the witnesses in the notice arise from that fact. The effect of an alibi is that the two Accused cannot be both at the scene of the crime and at their uncle’s bedside in his hour. Because that is humanely impossible. It is either he is at one location or not the other. In the case here it is either the Accused are at the hospital and therefore not at the scene of the arson the burning down of the dwelling house of Simon Ulai. And not guilty of the Arson.
    
26. So, the preparation of a notice of Alibi is entirely of the Accused domain he names the witnesses he was with and produces that to the State. If the name of the witness Faustina Trangui is not on the list of witnesses in the Alibi, he must make an application for leave of the court to include her name on it. It is not good to state from the bar table reasons that are not before the court: State v Wer [1988-89] PNGLR 444. That application was not made and she gave evidence in breach of the procedure. The Accused gave their evidence in defence after she was called. They sat out her evidence in court word for word and could not be mistaken in what they heard from where they sat in the Dock. She was facing them they were facing her as her evidence unfolded. The effect of her giving evidence before the accused was that her evidence in its entirety would be rejected because the prejudicial effects outweigh. It was not living the Spirit of the Constitution for fair trial both for and against. This evidence did not come untainted and clouded. It did not have the legs to stand in the light of the system of advocacy hinged in our system of Justice. It was clearly gravely prejudicial and did not hold water in favour of the Accused. Because what she deposed to in the presence and hearing of the Accused was that which they simply followed to the letter. They simply played back her evidence but with their voice. The rejection of her evidence means the defence case is determined primarily by the evidence of both Accused and the last witness Andrew Hohombi. That is the extent of reasonableness within the Constitution they can be allowed lawfully to run. Because allowing the evidence of Faustina is running a case that the Constitution has not seen. The witnesses in a very serious allegation sit in court openly within hearing and sight of the other side unopposed to supress them without due process of law. Evidence must come in by process of law. Here is a very serious breach of law which cannot be remedied effectively in law without the rejection in total of that law: Mai and Avi, The State v [1988-89] PNGLR 56. I determine therefore and order that the evidence of the witness Faustina Trangui will be struck of the proceedings in its entirety. It will not comprise part of the evidence in this proceedings both for and against. The evidence in defence will comprise the evidence of the two Accused and Andrew Hohombi in defence.
    
27. But even then, the damage has been done, their evidence is tainted with what she has given, the timing is so precise that it beats common sense. For instance, Krifu Neto comes home from school at 4.00pm. And around 4.30pm they rush John Trangui to the hospital. At the hospital the Doctors and nurses try to do everything to save him but he passes on. And the time that he dies is at 20 minutes to 5.00pm. And in the evidence of Jaymurray Trangui he also states that it was around 4.00pm that we rushed him to the hospital. And that he died at 20 minutes to 5.00pm. And in the middle of grief when the uncle that he had rushed to save was already died he was worried about checking the time. It did not make sense. As if this is not enough the evidence of Andrew Hohombi is the same. He states that Faustina rang at 4.00pm for the bus to transport John Trangui to the hospital as he was in a bad way. And they rushed him to the hospital. And at 20 minutes to 5.00pm he died. And at 5.30pm we took the body back to Perigo. As we passed along the way into the house there were a lot of people on the road and there was thick smoke coming from the house of Simon Ulai. We took the body in to our house and were grieving for him. He was specifically asked what he was doing on the 07^th May 2019 at 20 minutes to 5.00pm, he said he was in his house. And in 2020 on the 07^th May at 20 minutes to 5.00pm what was he doing he said he was at his house. He repeated the same for the year 2021. Which is a human feat that is impossible to accurately state as he does. This is clear proof of a conspiracy to keep within time set in all frontiers because it would eliminate the presence of the Accused at the scene of the allegation of arson on the house of Simon Ulai. When a loved one as here John Trangui who was on the verge of death, there would be no time to look at the time, or to worry about keeping track of time. What was primary and important was getting him as quickly as allowed to medical help to save his life. In similar vein if he had passed on despite, there would be a great overwhelming of emotion at his passing. Nothing else in the world would matter where a loved one has passed. Time is not important even food means nothing, there is no hunger for food. That is the reality when a loved one passes. Here there is an orchestrated union to make sure everybody is calling the same time hour and minute inclusive. The question posed is are these witness to the wire for the defence case, or is this haste to create what is not there in the first place? Haste because a witness fundamental was not included in the notice of alibi. Nor was there leave sought to call this witness. Even worse this witness was called in defiance of procedure paramount. And worse of all witnesses following have simply echoed her evidence in the times presented in court, 4.00pm, 4.30pm, 20 minutes to 5.00pm. Each witness has not come independently from where they are positioned to give their account. It is as if all want the time to be a common denominator in all. Differently mouthed, all saying the same thing difference by their voice but not the substance. The evidence is fumed with cohesion conspiracy lies and deceit unspeakable untruths mingled to the brim that there is no spiral nor ring of truth running the length and breath of the defence case.
    
28. It is analogous to Mai and Avi, (supra) because the evidence sought to be adduced has been illegally obtained. It has not been obtained nor has it been pursued to be opened into the record of the proceedings within the prescribed procedure of advocacy. It has been sought to be brought into court without leave of the Court. It is not on the record of the proceedings as evidence that will be called notice to the other side in accordance with the Criminal Practise rules Division 4 alibi set out above. Not only that it has been produced in defiance of the procedure of Advocacy that the criminal justice system is based upon. The evidence is not a simple matter of weighing the credibility of a witness with all other evidence led, as in a case where the witness intended to be called notice given is in court without the notice of counsel, until they are called from the back of the Court to the Stand. Such is not the case here.
    
29. So, analysing the evidence of the Accused as to alibi it is both Accused trying to make out a case without the independent corroboration that they were at 5.00pm and 6.00pm at Boram General Hospital picking up their uncle John Trangui: Hagena v State [2017] PGSC 55; SC1659 (11 December 2017). The Doctors and nurse’s medical personal consulted them in the treatment leading up to the death of John Trangui, but that medical report is not before the court to verify the extent of what they are saying. The report is by professionals interested in saving a life not a criminal allegation against both Accused. It would have set out the verified truth of the account that the Accused are struggling even without the legs to come here on and over the balance required. For all it is worth, Accused cannot corroborate each other unless verified by other independent evidence. This would have been the medical report on the death of John Trangui. The time importantly, and the cause of death would have been set out there. It is not before the Court. When accomplices’ self-help as here desperately, they add fuel to the fire rather than water to the fire. Both are accomplices in a serious criminal allegation of arson. Both stand as parties to a criminal offence and the allegation is that they aided and abetted each other in the commission of that offence: Amoko, The State v [1981] PNGLR 373. It stems that they have a serious grilling pending burning notion to ensure they are free of the allegations levelled. And would be at odds to bring out anything that will dismantle the assertions of the State.
    
30. Both defendants accused are represented by counsel who has a duty to follow the rules and procedure so that both defendants are defended within the boundaries of the law practise and the rules of Court. Here the conduct of counsel is tantamount to contempt where procedure is not adhered. And so doing seriously falls into negligence as a professional. It is not an excuse to say he has been practising criminal law for three years now in the office of the Public Solicitor. All the more to be a professional than otherwise. In my view he ought to be versed with the criminal practice. Leading evidence deliberately in breach and in defiance of procedure and the practise rules is unprofessional conduct. The Court is led astray in a serious criminal allegation. It is basic that he who alleges must prove. Here an alibi is raised and to sustain must follow due process to see light for the accused. That deliberate breach has wasted court time on the evidence. He was placed on track in an earlier criminal case this sitting and it appears has not amended for the better. It is a very serious matter when counsel behaves in this manner. It is unprofessional conduct that is placed on record now. Because repetition will mean serious consequences are drawn out against counsel. For now, it stays on record without any cause for alarm immediate or consequences open to the Court by law.
    
31. In so making this determination I take account of the fact in law that the burden is always on He who alleges not the other way around. The State bears the burden to succeed beyond all reasonable doubt not without. The defendant is not obliged to disclose his defence or his alibi there and then. Not even in the record of interview: Tonde v The State [1994] PNGLR 539. But where there is weight to be drawn in its weighing it does seriously in my view, effect the way to be given it in the determination of whether the allegation he raises succeeds or goes by the wayside. The converse is where it is consciously made in the face of evidence of guilt to avoid that, it has been held that a false alibi can amount to corroboration of the assertion made by the Prosecution: Jaminan v The State [1983] PNGLR 318 (29 September 1983).
    
32. Krifu Neto and “Patu” alias Jaymurray Trangui have each given evidence that defies common sense and logic. Both have not denied that Simon Ulai knows them as they live in the same area. Both have admitted that they have a very good relationship with Simon Ulai. There is no burning grudge or issue motivating his allegation a criminal allegation with a backdrop of life years imprisonment against them. They live well together and there are no grudges or disputes between them. They have a good relationship with Simon Ulai and wife then Lillian Bowie. In fact, they are related to each other. He agreed in principle there was no reason for Simon Ulai to lie against they both in court on this serious allegation against them. This is the same observation that are applicable to the evidence of Andrew Hohombi that there is no reason for Simon Ulai and his wife then, to make these allegations against them all.
    
33. I reject their evidence on the alibi for all the reasons set out above. The alibi is false and has been concocted out of a conscious sense of guilt in the way that I have described above. The end result is that in accordance with Jaminan (supra) the State case has been corroborated by their false alibi. Accordingly, there is no other evidence before me other than that of the State which I find has discharged the burden of proof beyond all reasonable doubt of the guilt of the defendant. They have been positively identified beyond all reasonable doubt as the perpetrators of the arson committed upon Simon Ulai when his dwelling house valued at K184, 506.00 was burnt down by the two accused accompanied by Brian and the four others on this day. This is not an identification made in difficult lighting situation, or a fleeting glance of a masked hood, or a stranger. This is a relative who has been seen face to face skin touching in plenty of time in very good broad day light 5.00pm to 6.00pm. There is no motive to deny the veracity and the credibility of the evidence. It leaves no reason apparent or identifiable in law other than to return the verdict sought by the State which is guilty of arson against the two Accused Krifu Neto and Jaymurray Trangui committed on the 07^th May 2018 upon Simon Ulai when they unlawfully and wilfully set fire to his dwelling house burning it down to the ground with all the properties contained to the value of K 184, 506.00.
    
34. I order the refund of their bail moneys forthwith. And that both are henceforth remanded in custody to await the sentence of the Court.
    

Ordered Accordingly
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Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendants