Regina v Gurapitu [2019] SBMC 2; Criminal Case 304 of 2017 (19 February 2019)

IN THE WESTERN DISTRICT MAGISTRATE’S COURT )
OF SOLOMON DS ATDS AT GIZO )
(Criminal Jurisdiction)

Criminal Case: 304 of 2017

BETWEEN: REGINA

Applicant

AND: ROCKSON GURAPGURAPITU

Accused
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Prosecution: Mr. Ronnie. Pisei of Police Prosecutions Office
Defence: Mr. Clifton. M. Ruele of Public Solicitors Office

Before : Principal Magistrate – Leonard B Chite

Date of Hearing: February 12^th - 14^th, 2019
Date of Judgment: ary 19^th, 2019

Defendant’s 17;s Appearance: Present in Court
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JUDGMENT AFTER TRIAL

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Introduction

1. The trial for the Defendant, Rockson Gurapitu, commenced on 12^th of February 2019 until 14^th February, 2019, this was after he denied the charges of Malicious Damage contrary to section 326 (1) of the Penal Code and Arson contrary to section 319 of the Penal Code.
   
2. The charges arise out of two separate incidents; first was the one that involved the destruction of plants, trees and the burning of the kitchen hut. All the properties involved in those two incidents were owned by; May Kukale who is the complainant in this matter. I find that on 15^th September 2017, there was an incident at Niarovai Village, vella la vella, whereby five (5) betelnut trees, 20 Banana plants and 2 cut-nut trees were destroyed and a kitchen hut scorched to the ground. These properties were owned by the Complainant; May Kukale.
   
3. The Prosecution case is that the incidents took place on 15^th of September 2017, where the Defendant; Rockson Gurapitu of Niarovai village, Vella La Vella Island, at Niarovai village, being angry with the complainant regarding some personal issues went to Complainant’s garden at around 8:00am and cut down five (5) Betelnut trees, twenty (20) Banana plants and 2 cut-nut trees. The Prosecution says that later in the night around 11:00pm, the Defendant further went and burned down complainant’s kitchen hut.
   
4. The Defendant was arrested, charged and brought to Court. He denied these allegations. Hence, the Prosecution called only (1) witness; Mr. Boaz Katapa who is referred herein this judgment as “PW 1” and tendered two documents by consent. The Statement of complainant, Mrs. May Kukale, marked as “PE 1” and Record of interview of Defendant, marked as “PE 2” to prove their case against the Defendant.
   
5. The Defendant totally denies committing the two offences. In fact, he denies being around both places of incidents on the 15^th September 2017. The Defence called two (2) defence alibi witnesses to substantiate their assertion that the Defendant was at his home with his wife and children during the time and date of the offending. “DW 1” The Defendant, Mr. Rockson Gurapitu and “DW 2” the Defendant’s wife; Adalyn Ngamugula.

Issue

6. The two-paramount issues that will determine the ultimate result are; whether or not the Defendant was the one who damage the complainant’s five (5) Betelnut trees, twenty (20) Banana plants and 2 cut-nut trees.
   
7. Whether or not the Defendant was the one who burnt down the complainant’s kitchen hut.
   
8. The burden of proof in any criminal case is of course rest in the hands of the Prosecution and that is to prove their case “beyond reasonable doubt” and should there be slight doubt, the Defendant must be given the benefit of the doubt. The Defendant’s innocence is not a matter for the defence to prove. It is for the prosecution to prove its allegation beyond reasonable doubt. Therefore, it is incumbent for the prosecution to produce evidence by means of which such high degree of probability is raised an ordinary reasonable man after mature consideration comes to the conclusion that there exists no reasonable doubt that the Defendant has committed the offences as charged. The ordinary person must in other words, be morally certain of the guilt of the Defendant.
   

Evidence concerning “PW 1” observation on Defendant at the garden

9. The only prosecution witness is the Complainant’s son, Mr. Boaz Katapa “PW 1”. He gave evidence that around 8:00am on the 15^th of September 2017, he was at their family’s Garden. He said that while he was at the Garden he saw the Defendant cut down cut-nut trees, betelnut and Banana. He gave evidence and demonstrated in Court that the distance is approximately 30 – 35 meters from where he was standing to where the Defendant was. He further stated that he could clearly see the Defendant’s face and what he was doing. He said that his observation was not distracted or blocked by any object and that his observation lasted for a minute.
   
10. During cross-examination, he maintains that he saw the Defendant clearly and his view was not distracted or blocked. However, when asked about the type of clothes Defendant wore that day, he vaguely recalled and said he did not know but only saw the Defendant’s face.
    
11. The evidence by “PW 1” goes to prove the fact that the Defendant was the one responsible for damaging the complainant’s plants and trees at his mother’s (complainant) garden.
    
12. There were several gaps and vagueness in “PW 1” evidence as far as his evidence was adduced. He stated that he was standing some 30 – 35 meters away from the Defendant but vaguely recalled the clothes Defendant wore that day. It is irrefutable that a distance like that would provide a huge spectrum for “PW 1” to have observed the whole of Defendant’s body including the clothes he was wearing and that a human’s eye is not fixed to a particular part of the body, as in this case the face but can see the whole body.
    
13. “PW 1” gave evidence that his observation lasted for a minute and within the minute he could clearly observe the Defendant cut down cut-nut tree, Banana trees and Betelnut trees. The Prosecution did not adduce any evidence as to the weapon used to cut down these plants and trees but this might clarify the quickness of such conduct, that is, whether or not a chainsaw or axe was used. Normally, one cannot cut-down a cut-nut tree within a span of a minute, this is completely beyond fathom and human comprehension. So how can the Defendant do that within just a split of a minute. The prosecution ought to adduce evidence of the size of these plants and trees because this might explain the short time to complete such tasks, that is whether or not these plants are still of their early stage.
    
14. “PW 1” evidence was silent as to whether or not he talked to the Defendant. Hence, I consider the evidence adduced that he did not talk to the Defendant when he said the Defendant damaged the plants and trees at the garden. The properties were owned by his biological mother; thus, it is normal for people to be concerned when we see someone damage our parent’s properties. Prosecution did not ask him as to why he did not react to such actions but opted to remain silent. It is quite strange for a person to act like that unless for some different reasons but to indulge more on the reasons without any evidence from “PW 1” will simply tolerate guesswork and assumption which the Court must refrain itself from.
    

Evidence concerning the burning of kitchen hut

15. “PW 1” gave evidence that after he saw what the Defendant did to his Mother’s garden he went back home. Later that day around 11:00pm, he said he went up to their house at New Settlement area located on top the hill. While he was sitting outside the veranda extension he saw a light at the kitchen area. He walked down towards the kitchen to identify the person and saw the Defendant. He gave evidence that the distance between himself and the Defendant was around 10 – 15 meters. The Defendant lighted a dead coconut frond and it shined on his face causing “PW 1” to easily identify him as the Defendant.
    
16. “PW 1” gave evidence that after he saw what the Defendant did to the kitchen he simply went back to the house. He did not give any evidence to suggest that he talked or scolded the Defendant for what he did with the kitchen hut. So why did he not react or talk to the Defendant on both occasions, it is quite concerning to have an adult person like “PW 1” watched quietly to what he said the Defendant did to his biological Mother’s properties.
    
17. During cross-examination, “PW 1” conceded to the defence proposition that he did not see Defendant lighted the kitchen with fire.
    
18. During re-examination, when asked again to explain what he meant, he simply stated that he agreed did not see the Defendant lighted the kitchen hut.
    

Evidence concerning Statement of the Complainant “PE 1”

19. The statement of the Complainant; May Kukale was tendered by consent and marked as “PE 1”. It was admitted in Court and form part of the evidence of this trial to support the fact that those properties damaged and burnt were owned by the Complainant.
    
20. “PE 1” contained no evidence to suggest or substantiate the person responsible for the damage of plants, tress and burning of the kitchen hut.
    

Evidence of “DW 1” and “DW 2”

21. The evidence of Defence alibi witnesses are both straight forward. Both of them gave the same account that they were at their home with their children during the date and time of offending. There were several inconsistencies which contradicted themselves.
    
22. However, it is for this Court to place careful consideration to the Prosecution’s case and whether they have proven their case beyond reasonable doubt. Should the Prosecution discharged its burden on the required threshold, then only can this Court proceed to consider the Defence alibi witnesses accounts to justify whether it might penetrate doubt in the Prosecution’s case and or whether there’s possibility that the Defendant was not at the crime scenes during the time and date of offending.
    
23. With utmost respect, I am not satisfied that the Prosecution has discharged its duty to the required standard “Proof beyond reasonable doubt”. Due to this finding, it is needless for this Court to proceed further to deliberate more on the weight by the Defence alibi witnesses as it will not change this finding.
    

Conclusion

24. Having assessed “PW 1” demeanour in Court when giving evidence considering the apparent gaps and vagueness. I am not convinced that “PW 1” was at those two-separate places during the morning part of the day and the night of incident on the date of 15^th September 2017, but only heard stories after the incident which he later concocted a story, to go in line with the issue their family had with the Defendant to justify some form of pre-planning and guilt.
    
25. The evidence regarding the complainant’s personal issue with the Defendant or even words the Defendant might uttered before the incident does not link him to the commission of the offence but are mere suspicion and opinion. It is not a spontaneous act immediately before the incident but one which occurred after some lapse of time, hence, cannot at all cost be reliable evidence to suggest that the Defendant was the one responsible.
    
26. These evidences in themselves are vague and have created gaps which in my humble view entirely discredit and or affect the whole of Boaz Katapa “PW 1” evidences.
    
27. I have considered thoroughly the evidences the Prosecution relies on pertaining to the charge Malicious Damage and Arson, and I found that the evidences of “PW 1” is discredited with its apparent vagueness and gaps that makes it unsafe to place weight on to justify guilt of the Defendant. “PW 1” is not an independent witness but one that has apparent interest in this case. Hence, I accordingly disregard his evidence. Since it is the only evidence Prosecution relies on to prove the charges against the Defendant, I find that there’s insufficient evidence to prove both charges against the Defendant beyond reasonable doubt. Hence, I find him not guilty and accordingly acquit him of both charges against him.
    

Orders

1. Find the Defendant not guilty of the Charge of Malicious Damage.
2. Find the Defendant not guilty of the Charge of Arson.
3. Acquitted of Malicious Damage charge and Arson Charge.
4. Right of Appeal applies within 14 days of this judgment.
   

THE COURT

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MR. LEONARD. B. CHITE

Principal Magistrate