N9793

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1266 OF 2021

THE STATE

V

XAVIER MURUMBI
(No 1)

Madang: Miviri J
2022: 21st & 22nd July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Arson 436 CCA – Trial – Bush Material house –family conflict – set on fire – destroyed – Identification of Assailant – Sworn Evidence State – Undisputed House Burnt Down – Who Burnt It Down – Admission By Accused to Neighbour State Witness – Unworn Evidence of Accused – Alibi – No Notice – False – Accident Kerosene Stove – No Eye Witnessed – Presumed – Accused Incredible Witness – Lies Out of Conscious Sense of Guilt – Corroboration of State Case – Guilty of Arson – Bail refunded forthwith – Remanded.
Facts
Accused went to the dwelling house of his mother-in-law and set it on fire destroying it completely with all inside.

Held
Admission to Witness
Sworn evidence preferred 
Accused unsworn evidence incredible.
Guilty of Arson
Bail Refunded
Remanded to await Sentence.

Cases Cited: 
R v Phillips Boike Ulel [1973] PNGLR 254 
Kassman v The State [2004] PGSC 9; SC759 
Kandakason v The State [1998] PGSC 20; SC558 
Waranaka v Dusava [2009] PGSC 11; SC980 
John Jaminan v The State [1983] PNGLR 318

Counsel:

D. Ambuk, for the State
N. Katosingkalara, for the Defendant
						
VERDICT
22nd July, 2022
1.	MIVIRI J: This is the verdict after trial of Xavier Murumbi of Nagarum village, Yangoru-Sausia District, East Sepik Province for Arson pursuant to section 436 of the Code.

2.	On Sunday the 12th of August 2018 at about 6.00am in the morning at Sagalau blocks, Madang, the Accused went to the bush material dwelling house of Helen Mongati and set it on fire destroying it completely with all the properties that were inside to the value of K 8291.80. He had no lawful excuse nor justification for setting it on fire and destroying it. He contravened section 436 of the Criminal code.

3.	Which is in the following terms:

“A person who wilfully and unlawfully set fire-

(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 State invoke section 436 (a) in his case. He entered a not guilty plea. Mrs. Helen Mongati the owner of the dwelling house was called on oath by the State. She was the wife of a policeman and resident at the police barracks but used that house as place to refresh and relax away from the Barracks. And for future years to come after service of the husband in the Police force has ended. It was burnt down by the Accused on the 12th of August 2018. And she was informed after church service by her next-door neighbour Janet Komensi there at Sagalau Block. That the “twins” father had burnt down her house. She immediately went to the block Sagalau where the house was. And there She saw that it was burnt down only the 12 posts were standing and hot charcoal from the fire remained. Her mugs, pots, dinner plates were destroyed in the fire. The kerosine stove with the glass were also destroyed in the fire. Her tufa tank valued at K 500 was also burnt partially. The PVC table was not there including the carpentry tools in a box. They may have been taken away by the accused Xavier Murumbi her son in law married to her daughter Juliana. Her screen was not there. All properties within were bought by her and all were destroyed and burnt in that fire completely.  Her daughter with son in law were living there with their children as they had nowhere to live, so she allowed them to reside there. 

5.	It was made of Sago and timber typical Sepik style house on high posts. Only the posts were standing when she went up. Her evidence also showed that there was a dispute with the son in law the accused as to who was responsible for the building of the house. He contended that he had helped in the provision of the material to build and also had helped to build it. She denied that that was so. She contended that she had spent her own money to get the timber from Amele to build it. That it was built by her carpenter one Victa Lucky. That the Accused helped to cut the grass and dug drains around it. That he had desisted from helping to build when he fell when they were putting up the walls. She denied that there was no issue with the Kerosene Stove. She had bought it a new and it was working well without any problems. There were no sparks as was the case with PNG Power. It was a kerosene stove that she used to cook their meals on. The Accused with her daughter also used it too. Primarily her evidence confirmed that the house was burnt down. It was a dwelling house that she built and would use whenever she left the house at the police barracks to there. And all properties within were destroyed and burnt by the fire.

6.	The next state witness on oath was Janet Komensi who was told by the Accused on the 12th August 2018 at the scene of the arson that he had burnt down the house. She came down to the ground and saw the smoke and fire on Helen’s house. And Xavier told me he burnt down the house. He did not tell me why he burnt it down. There was no other person there except he alone. And he was standing there watching the house as it burnt down. He did nothing to put out the fire. She did nothing as the fire was already very big. She turned and walked back to her house leaving the accused there. She told Helen Mongati when she went to church service that her house was burnt down by the father of the twins. She was referring to the Accused Xavier Murumbi. And She identified him in court he is the same person I saw that morning.

7.	She was a very firm witness and was not shaken in her cross examination. She maintained that the Accused had admitted to her that he had burnt down the house, but he gave no reasons as to why he burnt it down. This evidence closed the State case against the Accused.

8.	Earlier the State had tendered into evidence as Exhibit P1 the record of interview of the Accused originally conducted with Police on the 05th March 2021 in Pidgin. There was an English translation of it Exhibit P1(a). In addition, were exhibit P2 statement dated the 08th of March 2021 of Chief Sergeant Richard Sibolo the Arresting Officer. Exhibit P3 was the statement of the Corroborating Officer Senior Constable Channel Sagem dated the 08th March 2021. All this evidence in particular the record of interview contained the exercise of the right to remain silent in the allegation that was put by the Police to the Accused. It was his right but the unsworn evidence that he gave in court was not in the record of interview. He had no evidence to start from except his own unsworn evidence made after hearing out the allegation and the evidence led by the State. Obviously, he built that around the evidence of the State to doubt its veracity. But the problem with his evidence was that he never got into the witness box on oath to test it out so that its weight was on the same level with that of the State. In the event of dispute and weighing his unsworn evidence would be swept aside by the weight of the sworn evidence of the State.

9.	That unsworn statement from the dock was in the following. Saturday morning, I was sleeping. Sunday morning was the incident. At 5.30am I went to the well water. I work with Heli Niugini. I boiled water on the kerosene stove. I left the hot water and went to the Well water. Twenty minutes (20) I was at the well. The stove has sparks. When returning I saw smoke. And the fire had gone big and I stood. Hard to put it off. The Stove has a problem it blew spark flames grew and torched the Sago Leaves. Flame down the Sago. It was early in the morning and I was myself. The kerosene stove blew up and that’s how the fire started. I tried to stop the fire but it was too big. Early morning so I did not see anyone else. I tried to see the boys but no one there. After I was there after the burning, I did not see Janet or anyone else. I thought of work so I went to work. That is all. 

10.	In law the unsworn evidence is evidence but is not on the same footing as sworn evidence. Its weight is not on the same as that of the sworn testimony, R v Phillips Boike Ulel [1973] PNGLR 254. Which was approved and endorsed in Kassman v The State [2004] PGSC 9; SC759 (20 August 2004). Here that is the law which is applied in the consideration of the unsworn statement of the Accused with the sworn evidence of the State witness Janet Komensi. Accused is 20 minutes at the well. He could not have seen the spark that came out from the Stove. He would not know that the stove blew up unless he was within the house where the stove was. And he does not describe the weather whether it was windy and therefore given 20 minutes for the fire to envelope and become as big as he described. He is the only person in the vicinity of the fire and does not do anything to at least attempt to put out the fire. He simply stands back and watches it. For a man who lives in that house he does nothing to save it from burning down. His excuse is that it was already big and he could not get in to save the house or anything within. Even more incredible is the fact that he washes and goes to work as if nothing has happened. He does not go to his mother in-law Helen Mongati mother of his wife and inform of the fact that her house has been burnt down by fire. 

11.	On top of all this he has created an alibi that at the time that the fire started he was at the well washing to get to work. He was at the well for 20 minutes before coming and realizing that there were smoke coming from there. And conveniently he could tell with confidence that the fire came out because the stove sparked and blew so the fire burnt the sago leaves and got onto the house. That alibi is without a notice and is from an unsworn evidence trying to create distance from the fire that burnt down his mother in laws house. That house he was living in at that time. Yet he does not flex a muscle to save it. Conveniently he is away from the house when the fire starts and burns the house. In my view given all set out above this is an alibi that is without any basis the sworn testimony of Janet Komensi is that he admitted to her that he burnt down the house. That is tested account and it has more weight than the unsworn statement from the dock by the accused creating an alibi that is not there in the first place. Nor has notice being given of that fact to the State in accordance with the criminal practise rules. It is a recent invention created in the face of evidence that identifies him as the perpetrator of the crime. He has concocted it to hide behind the admission that he has made to Janet Komensi coupled with the fact that there is no one immediately at the house except he alone when the fire is burning down the house.

12.	I find that he has deliberately lied in the face of this evidence of admission of guilt to the witness Janet Komensi. And that is the evidence which I find as a fact is the truth. Because it has come out sworn in comparable to you, with your unsworn statement from that dock. That is the evidence I accept as the truth here. Your evidence has no weight in comparison because it is logic and common sense that if a stove is as you say sparking, you do not leave it until you have completed boiling your water for your tea. And you have put out the fire on the stove. Then you go twenty minutes or more to wash at the well for preparation for work. You know it has been experienced that it will spark and cause a fire that will burn down the house if left unattended. Here it is clear also that unless you are by the fire can you see the spark and it blown. You are away at the well and have left the side of the fire, you cannot see it for the 20 minutes that you are at the well washing yourself for work. You have in the hast of the admission identifying you as the arsonist, person responsible for the burning down of the house tried to distance yourself from it and create that it was an accident from the kerosene stove within. And you had no part in its demise. But if that was the case you have not immediately resorted to trying to save it and to alert help nearby to try and quell the fire. But no, you became a spectator to it. You did nothing even though it was where you lived and it belonged to your mother-in-law, dwelling house of her, allowed you and your wife to dwell in because you did not have one. Your actions are illogical when you simply go to work without even having the courtesy to inform your mother-in-law Helen Mongati of that fact immediately there and then in the morning. Someone else apart from you told her of that fact, Janet Komensi. You did not care that it was burnt down because it was your doing. The end result is that I believe the State witnesses because you simply have serious unexplained inconsistencies in your evidence and your evidence does not anchor with logic and common sense, which are basis for my rejection of your unsworn evidence, Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); I am firm in this regard also in the light of Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009) upon the basis of which I hold forth in the evidence of the State. The late alibi unsworn also from the dock adds to the truthfulness of the testimony of Janet Komensi which I hold out in the light of the observation made in John Jaminan v The State [1983] PNGLR 318. Because when lies are told out of a conscious sense of guilt, the account of the prosecution is strengthened. That is the case in the unsworn evidence that you make setting out an alibi. I therefore find as a Fact that you did admit to her that you burnt down Helen Mongati’s dwelling house made of bush materials which was accorded you with your wife Julie with your children in which you resided in. And because of the dispute recounted in the evidence by your mother-in-law set out above you burnt it down.

13.	Accordingly, I reject your unsworn evidence as it is not the truth. I hold that you admitted to Janet Komensi that you burnt down the dwelling house made of bush material by burning it down completely except for the posts destroying it. You have blamed the kerosene stove. But it is probable given that you used that kerosene to fuel the fire to quickly lit up to engulf and burn the bush material house made of sago leaves and timber which were igneous in their natural status, plumped to ashes by your deliberate and willed Act. And no doubt you started the fire where the kerosene stove was to blame that it was not a willed act, but of the kerosene stove that had malfunctioned and caused the fire. You were not responsible. It is therefore a case of taking out a grievance with a deliberate and planned act of setting fire to the dwelling house, not of yours, but of your mother in laws. It was an unlawful act as it did not belong to you. 

14.	You had no dwelling and the good heart of Helen Mongati allowed for the sake of her daughter and grand children so that they can live safely there. She helped deliver what you as the father of that family was responsible for. You did not provide a home for them. She stood in of the kindness of her Heart for her daughter and grandchildren. You rewarded her with burning down the house she built of her own money and sweat. You had no right no authority for your actions. You had no authority in law to do what you did. You broke the law in that you deprived her of that dwelling by a willed and determined act. You committed in law the crime of arson of that dwelling house that belonged to Helen Mongati your mother-in-law. And it is because of the dispute that has been set out by your mother-in-law’s evidence set out above relating to the ownership of the house. 

15.	Accordingly, I find you guilty as charged on the indictment and that is the verdict I return, guilty of Arson pursuant to section 436 (a) of the Criminal Code Act against you Xavier Murumbi of Nagarum village, Yangoru-Saussia district, East Sepik Province committed on the 12th day of August 2021 at Sagalau, Madang, Madang Province in the burning down of that dwelling house constructed of bush material belonging to your mother in law Helen Mongati.

16.	As a result, I order that your bail money is refunded forthwith and you are remanded to await your sentence in jail.

Ordered Accordingly
__________________________________________________________________
Public Prosecutor:  Lawyer for the State	
Public Solicitor: 	 Lawyer for the Defendant