Regina v Rere [2017] SBMC 43; Criminal Case 258 of 2016 (14 September 2017)

IN THE CENTRAL MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT HONIARA )

CRIMINAL JURISDICTION

Criminal Case No. 258 of 2016

REGINA
-V-
PATKEN RERE AND OSBORN SAENI

Trial: April 24-28, 2017, May 5^th, 12^th, August 7^th – 11^th, 28^th 2017
Date of closing submission: August 31 and September 4-5, 2017
Date of Judgment: September 14, 2017

Ms. O. Ratu for the prosecution
Mr. L. Waroka for Osborn Saeni
Mr. L. Chite for Patken Rere

JUDGMENT

1. The defendants, Patken Rere and Osborn Saeni were tried together for the alleged burning of four dwelling houses and a kitchen (“houses”) at Windridge settlement, a location situated in the Central Guadalcanal region. Their actions as said by the prosecution contravene section 319 of the Penal Code.
   

The charge

2. Section 319 of the Penal Code states:
   

“Any person who wilfully and unlawfully sets fire to-

(a) any building or structure whatever, whether completed or not; or
(b) any aircraft, vehicle or vessel, whether completed or not; or
(c) any stack of cultivated vegetable produce, or of mineral or vegetable fuel, or
(d) a mine, or the workings, fittings or appliances of a mine,

is guilty of a felony, and shall be liable to imprisonment for life.”

The case against Patken Rere and Osborn Saeni

3. The accused, Patken Rere, was believed to have instructed or counselled three persons of a group of people who came and carried out the burning of the houses; namely, Steward Rere, Raymond Obe Launigo and Ronnie Obe.
   
4. The accused, Osborn Saeni was said to be one of those in that group who carried out the burning of the houses, or alternatively, he aided and abetted those group of people to burn those residential properties.
   
5. The alleged burning took place on 17^th April 2016. It is the prosecution’s case that it occurred in the morning part of that day. Those properties were owned by Jonah Bea, Henry Tila, Lawrence Mane, Sharon Dai and Joseph Tolaeni, who were residents of Windridge.
   
6. The prosecution called 7 witnesses^[1] and tendered 7 exhibits^[2] by consent.
   

The case for Patken Rere and Osborn Saeni

7. The defence for Patken Rere is that, he denied instructing or counselling Steward Rere, Raymond Obe Launigo and Ronnie Obe to burn those houses as alleged by the prosecution.
   
8. He, however, asserted that in the morning of that day before the burning of the houses occurred, he came to a small village situated at the bottom of the hill of Windridge called Bubutoha. He came with his parents purposely to resolve or ask for payment of compensation for his vehicle that was damaged the previous night by unknown persons believed to be from Bubutoha or Windridge. According to him, he said the burning of the houses at Windridge occurred when he was in the course of requesting or mobilising the elders from these two settlements to talk over or settle the damage to his vehicle. When the burning of the houses occurred, he was also terrified and it seems from his evidence in Court that the burning of the houses came as a surprise to him.
   
9. He was interviewed by officers from Henderson Police Station on 19^th April 2016 - two days after the incident. He made full admissions to police about his involvement in the burning of the houses. He admitted that he was the one who instructed or advised Steward Rere, Raymond Obe Launigo and Ronnie Obe to burn the houses of the complainants. That record of interview by agreement was tendered and marked as exhibit P1.
   
10. During the trial, he made a swift retraction. He, however, denied the admissions even though his record of interview was tendered by consent. In his explanations, he said he gave false admissions to police because he was so frustrated and even infuriated with police for not attending to his phone calls when this vehicle was attacked that night and even the phone calls he made to police in the early hours of the day before the houses were burnt. Hence, all his admissions in the record of interview should not be accepted or relied on since it contained none other, but false information.
    
11. He gave sworn evidence, called two witnesses and tendered a statement of his wife in support of his case.
    
12. The accused, Osborn Saeni, also denied being part of that group of people who burned the houses at Windridge. He said that he was at his parent’s house at Mataruka when the incident at Windridge occurred. He raised the defence of alibi and called 5 witnesses to support his case. In his view, the prosecution’s witnesses must have wrongly identified him or mistaken him as one who amongst the group that came to Windridge the day the incident occurred.
    

Undisputed facts

13. From the evidence unfolded in Court, I find the following aspects of the case are not in dispute:
    
    • (a) The accused, Patken Rere’s vehicle (RAV4) was damaged at the Bubutoha road on the night of 16^th April 2016;
      
    • (b) That in the morning of the following day (17/04/2016), he came with his parents to Bubutoha settlement;
      
    • (c) That Bubutoha is a small settlement situated at the bottom of the Windridge hill;
    • (d) That immediately after his arrival, the burning of the houses took place;
      
    • (e) That on that day, there was no compensation payment given to him for the damage of his vehicle;
      
    • (f) That he was interviewed by Henderson police officers on the 19^th of April 2016 and made full admission by instructing or advising Steward Rere, Raymond Obe Launigo and Ronnie Obe to burn the houses at Windridge;
      
    • (g) That Osborn Saeni came from Mataruka village;
      
    • (h) That Mataruka is a different village to Bubutoha and Windridge, and was located quite far from these two settlements;
      
    • (i) That in the morning on 17^th April 2016, Saeni was at his parent’s house at Mataruka;
      
    • (j) That after the church service at Mataruka had started, he went to wash his car at the river at Mataruka; and
      
    • (k) That there was no eye witness to the actual burning of the houses at Windridge.
      
14. I will first begin with the assessment of the evidence and the findings of the Court against Osborn Saeni.
    

Identification evidence against Osborn Saeni

15. Four (4) prosecution witnesses have identified Saeni as one of those who came with that group of people to Windridge to burn the houses on the day the incident occurred. They were Michael Gelu, Paul Popora, John Lirma and Timothy Legaina.
    
16. Michael Gelu is a 17 year old boy who lived at Bubutoha village. He was with Lirma inside Bubutoha when the group of men started to burn the houses. When he went to the road, he saw that group were approaching them. From there, he identified Osborn Saeni as one of them. He said Osborn Saeni was “holding a stone” and moved together with that group. It was when he saw Saeni that one of them came and chased him and Lirma. He knew Lirma escaped into the bush while he escaped back to his house. He said he knew Osborn Saeni very well because his hair was thread lock and sometimes, he would pay betel-nut at the market at Bubutoha.
    
17. It was suggested to him that he made the observation when he was escaping from that group of people. He agreed. He also agreed that the crowd of people were moving around as they approached Windridge when he saw Osborn Saeni. He, however, maintained his evidence that he saw Osborn Saeni as one of them and he knew him very well since he frequented Bubutoha area before the incident occurred.
    
18. Paul Popora’s is another person who escaped into a garden cassava when that group came to Windridge. That garden cassava was located at the side of a river. He knew that group was from Malango. He identified Michael, his wife Zebora and Osborn Saeni amongst that group. The distance where he was hiding was estimated to be from Court Room 2 to the main road. He saw Osborn was holding a stone and advanced towards Jonah Bea’s house. He could recall Osborn was wearing a black shirt and a jean.
    
19. It appears in cross examination that he provided two statements to police. In his first statement taken on 18/04/2016, he did not mention Osborn Saeni and it was in his second statement that he was able to name Osborn Saeni as one of those who came in the group. He disagreed to the proposition that he and the other villagers from his area were discussing their stories about the burning of the houses at Windridge and that was why he was able to mention Osborn Saeni in his second police statement. That aspect of the evidence was not further investigated or clarified from either side about the reason(s) why he didn’t mention Osborn in his first statement, but only in his second statement he was able to mention Osborn Saeni.
    
20. John Lirma is another witness who said to have identified Osborn Saeni in the group that came to Windridge. He said about 10 - 20 minutes after 9:00 or 10:00am, a group of boys came to Windridge. He recognised Osborn Saeni as one of them from a distance of 10-15 meters. He said Osborn was wearing a black shirt with a hood and was pointing to his house and said “mifala kam naya.” Whilst he was still looking at the group, one of them with a red scarf ran towards him with a bush knife and threaten to kill him, so he escaped into the bush.
    
21. He made two statements to police. He didn’t mention Osborn Saeni in his first statement even though it was taken a day after the incident. He eventually mentioned Osborn Saeni in his second statement made several months after his first statement, and after he had interviewed and obtained a statement from Michael Gelu who was one of the purported eyewitnesses.
    
22. Timothy Legaina said he also saw Osborn Saeni when he was hiding in the bush. He estimated the distance where he saw Osborn was from Court Room 2 to the main road. He could not able to explain in detail what Osborn was doing other than to simply say that he was one of those in the group that came to Windridge that morning. It appears that he was frightened of that group and his observation was made between the trees and shrubs where he was hiding.
    
23. These are the four witnesses who said to have identified Osborn Saeni as one of those who were in the group that came to Bubutoha. They all said they knew or recognised Osborn Saeni very well. He was not a stranger to them before the incident occurred. In my view, their evidence is one of recognition and not identifying Osborn Saeni as a stranger.
    

Law on recognition evidence

24. It is well accepted that recognition evidence and familiarity of a witness to the accused may be more reliable that identification of a stranger.
    
25. In R v Taku^[3], Palmer J (now CJ) stated:
    

“..on the question of identification is that, in normal circumstances, it would be much easier to identify a person related to you than one who may have been a total stranger and was seen for the first time by the witness at that time.”^[4]

26. The strength of recognizing an offender when identified by a witness during the commission of the offence was also highlighted in R v Gitoa^[5] where (then Judge Pallaras) stated:
    

“A person who is well known to another is often far more easily recognised by that other because of the fact that they are so well known to them. This is not to say that purported recognition evidence is not to be scrutinised with the same degree of care as other identification evidence.”^[6]

27. Also, in the Court of Appeal case of Director of Public Prosecutions v John Fufue & Nelson Fafeloa v R^[7], the Court made these sentiments that mistakes can be made even in recognition evidence:
    

“If a witness or complainant knows the defendant then it is obviously easier to prove the ‘identification’ of the defendant, however, mistakes may be made. ‘[A] perfectly honest witness could believe, and become increasingly convinced that they were right in so believing, that they had identified the right person when subsequently it could be shown in other ways that they had in fact made a mistake and identified the wrong person”^[8]

28. For the present case, if I find Osborn Saeni was part of that group, then I can easily draw an inference that he is either participating in the burning of the houses or alternatively, he aided and abetted others in the commission of the offences in question. Further, the net effect of it is, his defence of alibi will be rejected as it is none other, but a false alibi.
    
29. In order to make a finding on this form of identification, the Court will scrutinise the recognition evidence presented herein with the same degree of care as other identification evidence. This due largely to the potential inherent dangers that may arise when witnesses attempted to recreate the past by retelling their observations of the accused and in some occasions, the result may tend to end up the other way given the lapse of time.
    
30. In any criminal trial where identification (whether or not it is one of recognition) is challenged, the Court will normally ask the following pertinent questions:
    
    • (a) How long did the witness have the accused under observation?
      
    • (b) At what distance?
      
    • (c) In what light?
      
    • (d) Was the observation impeded in any way, as for example by passing traffic or a press of people?
      
    • (e) Had the witness ever seen the accused before?
      
    • (f) How often?
      
    • (g) If only occasionally, had he any special reason for remembering the accused?
      
31. I now turn to address these questions by assessing the quality and reliability of the various observations made by Gelu, Popora, Lirma and Legaina.
    

How long did the witness have the accused under observation?

32. None of them gave evidence about the length of time they made the observation on Osborn Saeni. The evidence is completely silent on this and thus, the Court is precluded or not assisted on how long they have observed Osborn Saeni at the material time.
    

The Distance the observation was made?

33. Michael Gelu said he saw Osborn Saeni from a short distance estimated from Court Room 2 to Court Room 3. This is a distance of about 15 – 20 meters. Paul Popora saw Osborn Saeni from a distance estimated from Court Room 2 to the main traffic road. This is a distance of about 30-40 meters. John Lirma estimated the distance he saw Osborn Saeni to be about 10-15 meters. Timothy Legaina gave the same estimated distance as Paul Popora as the distance he saw Osborn Saeni, that is, between 30-40 meters.
    

In what light?

34. These group of people came to Windridge in the morning and during a broad-day light. These four witnesses have made their observations on Osborn Saeni not in the night, but during a broad-day light.
    

Was the observation impeded in any way, as for example by passing traffic or a press of people?

35. The effect of the evidence for Gelu is, he saw Osborn Saeni during the course of escaping from that group of people when they approached Windridge. He was not in a stationary position, but as the evidence unfolded, he was moving out in the course of escaping.
    
36. Paul Popora was inside the garden cassava when he said to have seen Osborn Saeni. Clearly, he was in a hiding position and thus, it is expected that he would under no circumstance exposed him out to be seen by that group. Therefore, that location is not ideal and his view could be easily impeded by the cassava plants and other shrubs inside that garden.
    
37. John Lirma’s observation is more or less the same with Michael Gelu. As the evidence unfolded, he was not in a stationary position, but saw Osborn Saeni when he was also escaping from that group of people.
    
38. It is also accepted and remains un-contradicted that there were a lot of people in that crowd as they moved towards Windridge and as they were moving, these witnesses claimed to have seen Osborn Saeni.
    

Whether the witnesses ever seen the accused before?

39. Michael Gelu said he knew Osborn Saeni before the incident had occurred because he normally followed the NAC road in his car and would pay betel-nut at the Market at their area. Paul Popora said he knew Osborn Saeni very well because Osborn Saeni at one stage was residing with his first cousin at GPOL 1 area in the Guadalcanal Province.
40. John Lirma was unable to say whether he personally knew Osborn Saeni before the incident occurred while Timothy Legaina said he knew Osborn Saeni before the construction of the logging road.
    

How often?

41. Despite the witnesses gave evidence that they knew Osborn before the incident occurred, none of them gave evidence about the frequency in which they personally came into contact with Osborn Saeni days or months before the incident occurred.
    

If only occasionally, had he any special reason for remembering the accused?

42. The aspect of this has been already discussed so I think I won’t repeat them again.
    

Alibi Defence for Osborn Saeni

43. The evidence offered in support of the defence of alibi for Osborn Saeni was largely from his immediate family members, a Pastor of the Mataruka SSEC and a Chief Elder of the Malango SSEC Association of Churches.
    
44. It is undisputed and remains un-contradicted from the evidence of Sharon Saeni, Miriam Edith, Barnabus Dene, Assanett Geli, Malachi Rubo and Everlyn Asu that Osborn Saeni was still at Mataruka between 10:00am – 11:00am on the day the incident occurred.
    
45. Assanett Geli’s evidence is worth noting. She said she went to the river after the Sunday church programme had already started and she estimated it to be about “11:00am or 12:00pm.” She then spent another hour at the river which means it must be going up to midday or 1:00pm, as the estimated time she returned to her house. While at the river, Osborn came and washed his car. He then joined some boys who were there as well at the riverbank, some meters away from her. She left the river when Osborn was still there with the boys.
    
46. The effect of her evidence is that Osborn was still at Mataruka area when it was already midday or perhaps 1:00pm that Sunday. If that is the case then he must be mistaken by the prosecution witnesses since the burning of the houses at Windridge occurred between 8:00am to 9:00am as asserted by Everlyn Asu or between 10 – 10:20am as estimated by John Lirma.
    

Court’s findings - Osborn Saeni

47. I start by first of all assessing the evidence of John Lirma and Timothy Legaina. I find these two witnesses completely unreliable and inherently not credible. Timothy Legaina is a witness who gave minimal explanation about his observation of Osborn Saeni. He didn’t explain what Saeni was doing and his evidence is clearly limited in explanation when asked by the prosecution and the defence. He is not responsive and appears to have interested only in saying he saw Osborn Saeni without any further clarification.
    
48. John Lirma is a police officer and from what transpired, is also a police investigator. If indeed he had seen Osborn Saeni with the group, then it is reasonably expected that he should record his identification/observation of Osborn Saeni in his first statement dated 18^th April 2016. I am at lose to understand why he failed to mention Osborn Saeni in his first statement if indeed he had recognised and observed him from a close distance of less than 15 meters in that broad-day light. This incident is dramatic and absolutely terrifying. If indeed he saw Osborn Saeni from that close distance as someone whom he had recognised very well as he claimed, then he would no doubt should remember him well and will be difficult for him to vanish from his memory a day after the incident. This expectation is high for him as a police officer.
    
49. The inference I can draw here is that, the reason why he was able to name Osborn Saeni was only made possible after he had interviewed and obtained a statement from Michael Gelu. By obtaining Gelu’s statement, he nonetheless was informed and conscious of Gelu’s story/evidence that led him to provide a second statement which eventually contained his purported identification of Osborn Saeni.
    
50. For Michael Gelu and Paul Popora, I also find the quality of their observations is unsafe and unreliable for the Court to accept based on the following reasons:
    
    • (a) First, it is unclear how long they had observed Osborn Saeni so that the Court is rest assured about the quality and reliability of their observation even though they claimed to have recognised him.
      
    • (b) Second, they made their respective observations in a tense or terrified situation. At the material time, they were frightened and were in the mood of escaping or hiding from the crowd of mob-violent offenders. Michael Gelu was escaping out from the crowd when he saw Osborn Saeni, whilst Paul Popora was hiding in a cassava garden when he purportedly said to have seen Osborn Saeni. In reality, any observation made during the course of escaping is a fleeting glance. Likewise, an observation made behind cassava plants and shrubs in the garden by a person who was terrified or scared is practically unreliable for obvious reason that such place is not an ideal location but a garden with plants. This conclusion was qualified on the basis that there was no explanation from them why they were able to properly identify him in that given circumstances and from these different locations.
      
    • (c) Third, they purportedly saw Osborn Saeni from a crowd of clustered moving people. The evidence had suggested that there were about 80-100 people moving around and Osborn Saeni was said to be amongst them. Unless the observer is in a stationary and unobstructed position, having hid or buried behind the cassava plants or the shrubs in the garden, or making an observation whilst escaping from an imminent danger will of course different and difficult compared to an observer who is in a clear and unobstructed stationary position. Given that number of people, it is incumbent on the prosecution to elicit detail of the circumstances the observations were made in order to minimise the chances of any unreliability of such observations. The evidence at its highest is still not sufficient to render the Court to comfortably rely on their observations against Osborn Saeni.
      
51. It is my view that the evidence elicited about the reliability of the identification of these two witnesses and how it was demonstrated through their oral evidence is minimal and unconvincing. The identification evidence adduced against Osborn Saeni is such that I am reluctant to accept it as reliable, flawless and one that the Court should comfortably rely on. I am still having some doubts on the totality of the evidence of Gelu and Popora about the reliability of their respective observations.
    
52. Consequent to this finding, I am not satisfied that the prosecution has proved its case to the requisite standard and therefore, I order the accused, Osborn Saeni, is to be acquitted forthwith of all the arson charges.
    
53. Having settled on this issue, it is needless for me to make any assessment on his defence of alibi as it would not make any deference to the findings reached herein.
    

Case against Patken Rere

54. The case against Patken Rere rests mainly on the hypothesis that he made unequivocal full admissions to Henderson Police when he was interrogated/questioned about his involvement in the burning of the houses at Windridge. Apart from the record of interview,^[9] four (4) witnesses namely; Sharon Dai, Betty Lina Gigisi, John Lirma and Peter Scarlet also testified regarding their observations of his behaviour moments before the burning of the houses at Windridge took place.
    
55. Sharon Dai’s evidence showed that she was at Bubutoha in the morning before the incident occurred. While she was with Betty and Lirma, Patken Rere came in a RAV4 and stopped closer them and said in an aggressive voice “me Patken nao just come, last night yufala stealim me.” He repeated those words and further said that his group had already at the Cut-Hill and that they must give him $30,000. He was moving around and acted uncontrollably. As he left and walked towards the direction of Windridge, she could hear sounds of shouting and burning took place from the Windridge settlement. After a while, Patken Rere’s mother told her that her house was already burnt.
    
56. She later returned to her house and found out that her house was already torched to the ground.
    
57. The aggressive appearance of Patken Rere when he arrived at Bubutoha that morning was also established in the evidence given by Betty Lina Gigisi. She said Patken Rere came out of the RAV4 and said “yesterday you fala stealim me, me nao kam ya, me garem pipol and this time oketa lo Cut-Hill.” He said those words right in front of them. He continued to move around in a frustrated manner. She tried to calm him but he ignored her and walked towards the direction of Windridge. Shortly after he left them, she realised the houses at Windridge were burnt. She saw people cutting down food plants at their area but could not able to identify those who burnt the houses.
    
58. John Lirma also gave similar evidence to Sharon Dai and Betty Lina Gigisi. He heard Patken said “mifala kam for duim operation naya” when he walked out of the RAV4 at Bubutoha. When Betty tried to talk to him, he responded “aunty you no dium anything.” He then picked up his mobile and said “where nao ufala.” From there, he walked over to Windridge towards a group of boys that came down the road.
    
59. Peter Scarlet is one of those who followed the group of boys that came to Windridge the day the incident occurred. When he arrived at Windridge, he already saw Patken Rere at the entrance of Windridge and was shouting “where nao oketa man shootim truck blo me.”
    
60. He could identify some of them like Kaomas, Derrick, Ricky, Jeremy, Simi, Nicky, John and others from Kaimomosa like Ronny, Steward Rere, Raymond, luckily, Jay, Chalu and Topa. He followed the Mataruka boys while moving towards the houses at Windridge. However, he didn’t see who burnt the houses.
    
61. Against this evidence, Patken Rere, in his sworn evidence said that following the attack on his vehicle on the previous night of 16^th April 2016, he and his parents came in a RAV4 to Bubutoha, purposely to settle the damage of his vehicle. At Bubutoha, he asked his aunty Betty to go and ask the elders at Bubutoha or Windridge to come and settle the damage to his vehicle. He then called Henderson Police Officers by phone but he was advised that no police vehicle available. While he was still there, he then heard shouting coming from the direction of the Windridge. He immediately thought that the shouting must be from the Windridge boys and so his father advised him to wait. After, he walked over to the Bubutoha Bridge and that was when he saw the group of boys moving towards the river and proceeded further towards the house of Betty Lina.
    
62. He said he was frightened of the group in case they might retaliate against him. He could hear sounds of hammering and banging coming from the Windridge as indicative of people destroying properties.
    
63. Later on, police arrived at the scene. He told police that if they come earlier that day, the incident would not occur.
    
64. His line of evidence was supported by the evidence of his mother, Salome Okali and his father, Charles Sedo whose evidence seemed to impress on the Court that they all remained at Bubutoha during the time the houses at Windridge were burnt and that Patken Rere only went as far as to Bubutoha Bridge and not to Windridge.
    

Court’s finding – Patken Rere

65. I have listened to the evidence of Patken Rere together with his supporting evidence. The tone of his evidence seemed to paint a picture that his visit to Bubutoha that morning is more like a civil or friendly visit to resolve the damage of his vehicle. I find this explanation given by Rere absurd, unattractive and clearly bizarre considering the contrary evidence of the prosecution. There were three persons who were very close to him at Bubutoha immediately upon his arrival that said contrary evidence to his assertion in Court. Another even saw him shouting and searching for those who shot his vehicle as he approached the entrance of Windridge. This conduct exhibited by Rere is of course contrary to the behaviour of a person who aimed at resolving the dispute in a nonviolent way, but one that resembles a person in search for fight with people at Windridge.
    
66. His evidence that he came and requested Betty Lina in a friendly way to mobilise the elders of these to settlements to come and talk over the damage to his vehicle was not put to Sharon Dai and Betty Lina during cross examination. I find it strange why this piece of important evidence has been led from the accused when it was not put to these two witnesses. If this was given by the accused own initiative, then it should be properly vetted before the accused can take his stand in Court.
    
67. Section 57 of the Evidence Act^[10] states:
    

“If a party fails to cross-examine a witness on substantial matters of the party’s case that contradict the evidence of the witness if the witness is, or might be, in a position to give admissible evidence on such matters, the court may –

(a) grant permission for the witness to be recalled and questioned about the contradictory evidence; or

(b) admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence; or

(c) exclude the contradictory evidence; or

(d) make any other order which the court considers just”.

68. Thus, the failure to put this important aspect of this evidence to these two witnesses inevitably leads me to reject or exclude this piece of evidence under section 57 (c) of the Evidence Act.
    
69. On the consideration of the entire evidence before me, I am satisfied that Patken Rere did the following when he arrived at Bubutoha immediately before the burning of the houses:
    
    • (a) That when he got out of the RAV4, he was angry and acted aggressively due to his vehicle was damaged the previous night by unknown persons believed to be from Bubutoha or Windridge;
      
    • (b) That he was making public demands at Bubutoha for payment for the damage of his RAV4;
      
    • (c) That he was overborne with anger and that he didn’t want to be controlled or even calmed down by Betty Lina Gigisi; and
      
    • (d) That he was shouting and uttering words to show he was so furious with those who damaged his vehicle the previous night.
      

Inconsistencies in his oral evidence with the record of interview

70. The next issue is whether he is a credible witness in light of the inconsistencies in his oral evidence with his record of interview.
    
71. The accused before the commencement of the trial had agreed to tender his record of interview. It was marked and exhibited P1. That record of interview was conducted on 19^th April 2016 by officers from the Henderson Police Station. It contained his full admissions to the commission of the offences.
    
72. At the beginning of the record of interview, he decided to continue with the interview after he was cautioned in pidgin whether or not to remain silent. He even wanted to continue with the interview without consulting a lawyer.
    
73. In that record of interview, he made the following admissions:
    
    • (a) That he went and joined his people from Malango when they shouted at Windridge;^[11]
      
    • (b) That he joined them on his own decision;^[12]
      
    • (c) That he was contacted by one of them called Launigo through mobile phone: [phone] before that group arrived at Windridge;^[13]
      
    • (d) Launigo said to him that they were now advancing towards the Windridge and Patken responded that he was on his way to join them;^[14]
      
    • (e) He said that upon arrival at Windridge, destruction and burning of the houses had occurred;^[15]
      
    • (f) He was the one who ordered Steward Rere, Raymond Obe Launigo and Ronnie Obe for them to cut and burn the houses;^[16]
      
    • (g) That they were his cousin brothers;^[17]
      
    • (h) That Steward Rere used a match to set fire to the houses;^[18]
      
    • (i) That he was happy or pleased with what they did because people at Windridge had damaged his vehicle;^[19] and
      
    • (j) He knew 5 houses were burnt down because he was with them when they burned the houses.^[20]
      
74. In his oral evidence, he denied the truthfulness of these admissions and said that he just made up these information to police. His main reason was due to his frustration with police for not attending to his phone calls when his vehicle was attacked that night and even the phone calls he made to police in the early hours of the day before the houses were burnt.
    
75. If that is the case then it clearly appears that the accused has exposed him to the risk of giving false information to police knowing that such an act amounts to an offence itself. If his oral evidence is for tactical reasons to cast doubt on his admissions to police, then it is important that witnesses should be reminded of what CJ Palmer had stressed in Regina v Tahea^[21] the importance of telling the truth especially when taking oath:
    

“I feel compelled at this juncture to express my deep displeasure, at the way the Oath that a witness takes to tell the truth, the whole truth in court, and that includes answering questions, has been blatantly abused and taken for granted by witnesses who come before this Honourable Court. Taking the oath is a solemn act in itself, and directly invokes the Authority of God Almighty, recognising His Omnipresence and Omniscience, as the Witness to the testimony of the witness. All witnesses therefore who take the oath must take it seriously, and seek actively at all times, to speak the truth according to the best of their ability, knowledge and understanding, instead of deliberately lying in court. I raise this concern now because it is clear to me that there are some witnesses who do not appreciate the value and significance of the oath and the assistance that it provides to the Courts in the due administration of justice. I think we should remind ourselves, not to use the oath as a mere human tool which can be abused at will but also a solemn act, in which we make ourselves accountable not only to men, but also to God Almighty”^[22]

76. Dealing with cases where they involve inconsistencies in the oral evidence with the record of interview is not a new thing to Court. In such instances, the Court will decide the case by applying what is normally referred to as ‘common sense and logical approach.’
    
77. For example, in State v Peter (No 1)^[23] and State v Mangi (No 1),^[24] the National Court of Papua New Guinea held that the accused persons were not credible witnesses due to their oral evidences were inconsistent with what they said in their record of interviews. In both cases, the Court instructed that applying common sense and logical approach is an ideal way/approach to deal with cases where there are inconsistencies in the accused oral evidence with the record of interview. Such approach will normally base on the consideration of the prosecution’s case against the accused version of case and deciding which version is logical when applying common sense to it.
    
78. For the present case, the accused had agreed to tender the record of interview that later on during the course of the trial he decided to contradict it with his own oral evidence. This is a strange decision to embark on. I do not see any logic or even any efficacy in such approach. That is the least he can do in any criminal trial. By allowing his record of interview to form part of the evidence against him and later decide to challenge it again with his own oral evidence is in effect to say that he is in fact self-inflicting himself with his own contradictions/inconsistencies.
    
79. Given the inconsistencies in his oral evidence and his record of interview, I do not find the accused, Patken Rere, to be a credible witness and reliable witness.
    
80. Instead, when I looked at his record of interview, it is my view, that it is more credible compared to his oral evidence. It has detailed his involvement to a certain extent and the answers he gave to police therein were not founded on guesswork, but a true account of a person who actively participated in the counselling or advising of the mob-violent offenders that terrorised Windridge, resulting in the burning of the houses. Therefore, I accept his admissions in the record of interview as opposed to his oral evidence. That is the ultimate finding I make herein.
    
81. Based on these reasons alluded to herein, I find the accused, Patken Rere, is guilty of all arson counts as charged.
    
82. To formalise the verdict reached herein, the Orders of the Court are as follows:
    
    • (1) Acquit Osborn Saeni for all arson charges, contrary to section 319 of the Penal Code.
      
    • (2) Convict Patken Rere for all arson charges, contrary to section 319 of the Penal Code.
      
    • (3) The charge of threatening violence, contrary to section 89 (a) of the Penal Code instituted against Patken Rere is not part of this verdict as it has already been discontinued pursuant to section 197 of the Criminal Procedure Code.
      
83. Right of appeal applies to any aggrieved party.
    
84. Order accordingly.
    

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THE COURT
Augustine Aulanga – Principal Magistrate

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^[1] Sharon Dai, Betty Lina Gigisi, Michael Gelu, Paul Popora, John Lirma, Timothy Legaina, Peter Scarlet
^[2] Record of Interview of Pateken Rere dated 19/04/2016, Memorandum of Agreed Facts dated 30/3/2017, statement of Jonah Bea, statement of Lawrence Mane, statement of Joseph Tolaeni, statement of Henry Kalinamae Tila, Fixed Term Estate Register Parcel Number 192-015-124
^[3][1996] SBHC 48
^[4] At page 1
^[5] HCSI-CRC No. 447 of 2006
^[6] At paragraph 62 of the judgment
^[7] (Unrep. Criminal Appeal Nos. 3 & 4 of 1988)
^[8] At page 10 of the judgment
^[9] Exhibit P1
^[10] 2009
^[11] Answers to questions 19 – 21 of the Record of Interview
^[12] Answer 22
^[13] Answers 23 - 24
^[14] Answers 25 - 26
^[15] Answers 27 - 28
^[16] Answers 29 - 30
^[17] Answer 31
^[18] Answers 32 - 33
^[19] Answer 35
^[20] Answers 39 - 40
^[21] [1996] SBHC 34; HC-CRC 014 of 1995
^[22] At page 2 of his Lordships judgment
^[23] [2001] PGNC 9; N2296
^[24] [2005] PGNC 10; N2992