Public Prosecutor v Roel [2003] VUSC 28; Criminal Case No 015 of 2003 (2 June 2003)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

CRIMINAL CASE No. 15 of 2003

PUBLIC PROSECUTOR

-v-

MORSEN ROEL

AND

CRIMINAL CASE No. 17 of 2003

PUBLIC PROSECUTOR

-v-

MAKALIE PETER

Coram: Chief Justice Vincent Lunabek

Counsels: Mr. Eric Sciba for the Public Prosecutor
Ms Loa Damena-Tepai for the Defendants

JUDGMENT

This is the trial of two (2) defendants: Makalie Peter and Morsen Roel. Both of the defendants are separately charged out of a series of criminal offences occurring on 8 February 2002 at Marae Village on the Island of Emae.

Makalie Peter is charged with the offence of Arson, contrary to Section 134(1) of the Penal Code Act [CAP. 135].

It is particularized that Makalie Peter is from Emae Island. On or about 8 February 2002 at Marae Village, he intentionally set fire to and burnt Harry Daniel’s house and he knew that the property (house) belongs to another.

Morsen Roel is charged with the offence of Arson, contrary to Section 134(1) of the Penal Code Act [CAP. 135].

The particulars of such an offence are that Morsen Roel is from Emae Island. On or about 8 February 2002, at Marae Village, Emae, he intentionally set fire to and burnt Mr. Willie Makau’s house and at the time he knew that the property (house) belongs to another.

The two (2) defendants are jointly tried on 26 and 27 May 2003.

Each and both defendants pleaded not guilty to the offence as charged.

Section 134(1) provides:

“No person shall wilfully and unlawfully set fire to, or damage by means of any explosive, any building or other property whatsoever which to his knowledge belongs to another.”

The essential elements of the offence as charged under Section 134(1) of the Penal Code are:

1. That a person sets fire to a building or property.

2. The property belongs to another.

3. The person wilfully and unlawfully set fire to said building or property.

4. The person knows that the building or the said property belongs to another.
   

The law is that the prosecution must prove each and all essential elements of the offence as charged against each and both of the defendants beyond a reasonable doubt.
For the defendants to be found guilty it is the duty of the prosecution to prove each and all 4 essential elements of the offence charged under Section 134(1) of the Penal Code against each and both of them. It is not the duty of the defendants to prove their innocence. In this case, the defendants elect to give evidence on their own behalf. Their evidence must be assessed as evidence given by any other witnesses.

On Friday 8 February 2002, two (2) houses were burnt in the Marae Village on the Island of Emae. One of the two (2) houses belongs to Willie Makau. The other is Harry Daniel’s. Both Harry Daniel and Willie Makau are from Marae Village.

Sometime on 7 February 2002, the Mariki Council of Chief tried to solve a problem occurring between the people of that village. A group of people of Marae Village threatened a Chief of that village (Chief Leslie). Leslie’s house was then broken by some people of that village. This leaded to the coming of the group of people of Sagava Village, Emae to assist Chief Leslie and his group at Marae Village. The escalation of events leaded to the burning of houses at Marae Village before lunch time of 8 February 2002.

The prosecution says the defendant Peter burnt the house owned by Harry Daniel. The prosecution says witness Jimmy Kalo saw Peter Makalie set the fire to the house on 8 February 2002.

The prosecution also says hat the defendant Morsen Roel burnt the house owned by Willie Makau. The prosecution says witness Bua Toara sa Morsen Roel struck matches and set fire to the house on 8 February 2002.

The defence says that at the time of the incident, Makalie Peter was not present in the village. He was somewhere else: in the garden.

The defence also says that on 8 February 2002, the defendant Morsen Roel was walking with John Aron but not Berry Obed as suggested by the prosecution.

The defence says that on 8 February 2002, the visibility was very problematic due to heavy rain and there are plants such as flowers in the place where the prosecution witnesses were when they saw the defendants committing the offences as charged.

The defence finally says that the defendant Morsen Roel did not set fire to Willie Makau’s house.

What follows are the summary of the evidence.

Summary of prosecution evidence

Evidence of Jimmy Kalo

Jimmy Kalo gave evidence to the following effect:

On 8 February 2002, some incidents occurred at Marae Village, Emae Island. On the morning of 8 February 2002, some people grouped together at that time at Marae Village. He saw Makalie Peter together with that group of people. He recognized lots of people in the group on that day. He stood on the other side of his house and he saw Makalie Peter.

He gave evidence that on that morning before the burning of the houses, Makalie peter grouped together with that group. He recognized Peter. Peter lived with him and his wife. They looked after Peter for sometime. On 8 February 2002, he saw Peter cutting out the rope that Jimmy’s wife used to hang their clothes. He saw Peter gave the rope to his wife (Kalo’s). He saw Peter breaking the back window of Jimmy’s father’s house. Jimmy talked to Peter. He did asked him “yufala i mekem wanem ia?” He said Peter replied “No”.

He gave evidence that, then, he saw Peter took a burning mat (made of pandanus leaf) and set fire to Harry Daniel’s house. Peter set fire to the house from the outside, then went inside the house with the burning mat and come back outside again.

He described the place he stood when he saw Peter burning the house. He was not at his house. He stood from the entrance of his house. He said “mi stanap narafala side long front blong house blong mi”. He saw from the place where there is an arrow on the diagram which was put before the Court. The place where he stood was next to a road. He gave a description of his house and Harry Daniel’s house. Between his house and Daniel’s there is an empty yard. In that yard, they built a kindy for the children. There is a play ground for the children. From the place he stood, it is clear. He can see clearly the house of Harry Daniel. That was the place he saw Peter setting fire on Harry Daniel’s house on 8 February 2002 with a burning mat. Harry Daniel was not at his house. He was afraid and went into the bush. He said people who came and grouped together assaulted Harry Daniel’s brother. Harry Daniel’s house is made of local material: coconut leaf. The house was burnt completely.

He says Chief Leslie is his brother in law. Leslie told him that he and his wife must not run away from their home. They should not be afraid as the group is not going to burn down their house.

On 8 February 2002, the witness testified that in the morning it was raining. He described the rain as a shower and it then stopped. He said when the houses were burnt, the rain then stopped.

He was cross-examined. He said the house was burnt sometime in the morning. He did not have a watch. He said “sometime long lunch time olsem ia”.

His evidence is that Harry Daniel’s house is the last of the houses burnt. The houses were burnt at the different times. He said he was not afraid as Chief Leslie came to see him and his wife and told them not to be afraid or run away from their house.

His description based on the diagram are what he saw and his knowledge of the place. He planted flowers around his house. But the place he stood up and watched Peter burning Harry’s house is a different place, next to the empty place. There are flowers on the other side of Harry Daniel’s house next to a mango tree. The place he stood is clear to the house of Harry Daniel. He emphasized that the place he stood on to watch Peter setting fire on Harry Daniel’s house was clear. He has a clear view from that place in from of his house (on the diagram where X was put and the arrow pointing to Harry Daniel’s house.

He confirmed he has no dispute with Peter. Peter lived with him and his wife. Peter called the witness “big papa”, the witness’s wife “mama” and Chief Leslie is Peter’s uncle.

On 8 February 2002, he said Makalie Peter was with the group at Titongoa’s house with his uncle Leslie.

Evidence of Bua Toara

Toara is 38 years, a gardener from Marae Village. He knew Morsen Roel of Sangava Village, Emae. He said on 8 February 2002, the group of people came on the day. In the morning it was raining like a shower.

He saw lots of people. Some of them are present in the Court room. At the time the witness was in a road and marked X on the diagram. He knew the house of Willie Makau. Makau is his brother in law. He described the distance between the place where he stood at that time and the house of Willie Makau to be from the Court room to mango tree outside the court building, assessed at 30 metres.

He said he saw Morsen Roel and Berry Obed. They walked towards Willie Makau’s house. On their way to that house, he saw Morsen Roel struck matches and set fire to Makau’s house. He described the house. It is made of cupper roof and coconut leaves around. The house was burnt.

He gave evidence that he did not see the house burning completely. He said Leslie saw that he was watching and observed what was happening. The witness returned home. He said Leslie sent Ciry Kalo, Berry Obed, Jack Maho, Sete Makao, Philip Noel to see him in his house. He said was they told him that he must not go down there again. If he disobeyed, they will burn down his house too.

He was cross-examined. He confirmed his evidence in chief and he was not shaken at any event. He said the house of Willie Makao was burnt down between morning and lunch time. He insisted the distance between the place he was and Willie Makau’s house was as he described and the rain is a light rain. He said he could look through from the place he was to Makau’s house. He confirmed he saw Morsen Roel and Berry Obed when Morsen Roel struck matches and set fire to Willie Makau’s house. He is not aware of any dispute between Morsen Roel and Willie Makau. He confirmed Leslie sent some people and they warned him that he should not go down to watch.

Summary of the defence evidence

Evidence of Makalie Peter

Makalie Peter is 19 years of age. He is from Marae Village, Emae. His evidence is to the effect that on 8 February 2002, he got up in the morning, had breakfast then went to the bush to do gardening as he is a gardener. He went to the garden at 7.30AM of that day. He stayed in the gardens and returned home at 2 to 2.30PM o’clock in the afternoon. He said it was raining and he went inside a house built in the garden. He said “taem mi kam back long house, houses oli burnt finis”. He was told the houses were burnt by Joseph and Robert.

He knew Harry Daniel. He knew about his house. He denied he went to Harry Daniel’s house on 8 February 2002. He knew Jimmy Kalo. He denied he saw Jimmy Kalo. He denied he saw Jimmy Kalo’s wife on 8 February 2002. Peter said he is now living in a house owned by a Joseph Amos. That house was about 70 metres distance from the house of Harry Daniel. On diagram he agreed that the house of Kalo Jimmy was on the right place but he said the kindy was not. He said there are flowers surrounding of Harry Daniel’s house. There is a coconut tree, a mango tree. The gate is there. There are flowers in the empty yard and they are taller than himself. A ground well is at the place where kindy is shown on the diagram. The kindy was further left on the diagram. There are flowers at Jimmy Kalo’s house. He mentioned that when he cuts them they were taller than him. He confirms the yard between Harry Daniel’s house and Jimmy Kalo’s and he insisted the distance is about 50-55 metres.

He is cross examined. He said he knows Leslie. Leslie is a chief. He denied he burnt down Harry Daniel’s house at the request of the Chief. He mentioned he was in the garden on 8 February 2002 at the time of the incident.

He confirmed he knows Jimmy Kalo who is his “bigfala papa”. He denied Jimmy Kalo talked to him on 8 February 2002 before the houses were burnt. He said at Marae Village he is the only one to be called by the name of Makalie Peter. No one else. He said his “bigfala papa”, Jimmy Kalo lied when he said he talked to him on that morning of 8 February 2002. He denied that Jimmy Kalo saw him setting fire on that day to Harry Daniel’s house.

Evidence of Morsen Roel

He is 23 years of age, he is from Sangava village, Emae. On 8 February 2002 in the early morning, he was in Sangava. Chief rang bell at 5.00AM. Second bell rand at about 8.00AM o’clock. The purpose of the first bell is for the people of Sangava to repair shelter over Chief’s Nakamal. He went to the Nakamal with others. And then, the chief Timakuramata told them to go to Marae Village. Houses were destroyed including Chief Leslie’s. The Chief told them to go and the Chief will phone the police.

This witness and other 30 people walked toward Marae village. They were more then 30 people. He said the Chief told them to go and calm down others. It was raining. There was lightening and thunder storm. The walk to Marae Village is about 30 minutes.

At Marae Village they went to Amos Titongoa’s house. The usual place for Sangava people to go.

He knew Willie Makau. Willie is from Marae village. He has no problem with Makau. He does not know where Willie Makau lives nor his house.

He said when they arrived at Titongoa’s house Leslie was there. They moved to the area where other people of Marae were. The people who he said were creating problems.

When they are ready to go he said a friend of his wanted to go to the toilet. He said he waited for him.

At the time, the big group has gone. He and his friend did not join them. Then they met with people of Marae. He saw one of these, Tasso Kalo running. They run after him. But he was too fast. They could not catch him.

They came back and saw the house burnt. They went back to Titongoa’s house. They stayed for 15 minutes. They went to Nakamal stayed about 10 minutes and went back to Titongoa’s house for lunch. He returned to Sangava in the afternoon.

He was cross-examined. He said first, the people of Marae Village destroyed Chief Leslie’s house. He denied they went to Marae Village for revenge. He said they spent 15 minutes at Titongoa’s house. They waited for others to arrive before they can move to the place where people from Marae Village are. He said he and others met with Chief Leslie at Titongoa’s house. But he denied Leslie briefed them about the situation.

He confirmed that at that time, the big group went first. He and his friend went behind the group because his friend went to the toilet.

He denied he did go toward Willie Makau’s house. He denied he walked with Berry Obed. He said he walked with John Aron. He denied that he and Harry Obed walked and he set fire to Willie Makau’s house.

He denied that Toara saw him striking matches and set fire to the house. He said Toara lied. He confirmed he and his friend ran after Tasso Kalo. He said on that day there was rain and thunder. He went to Nakamal and saw Mataula who was fastened. The group caught him and fastened him with rope.

Evidence of Jack Simeon

His evidence is in essence his opinion and comments on diagram (Exhibit P1). His evidence is irrelevant and is rejected as it would not assist the Court.

Evidence of Timothy Timakuramata

The relevant part of his evidence is summarized as follows:

Timothy Timakuramata is the Chief of Sangava Village. He is also the President of Council of Chiefs of Emae Island. On 8 February 2002, in the morning at 5.00AM he rang the bell for his people to repair the shelter of his Nakamal. He then went to garden. On his return he saw 2 men waiting for him with a letter. The letter says people threated Chief Leslie and he is asking for help. He tried to reply to the letter. But he was told Leslie’s house was broken. He changed the plan. He stopped the people to repair the shelter. He asked them to go to Marae Village. He then went to telephone the police in Vila.

He sent his people to contain Marae people toward the Nakamal. He went to get help from police. He told them not to use knife or any thing else. They go empty handed like men.

The telephone is located at Wararana. He phoned the police and informed police about what happened. He was told the houses at Marae Village were burnt. He then went to Marae and took the number of houses burnt. He arrived at Marae and saw smoke of houses burnt.

He saw Morsen Roel at Marae Village at Titongoa’s house. He arrived at Marae and called his people to come and meet him at about 11 to 11.15AM o’clock. He saw defendant Morsen Roel, there with the group. He stayed at Marae Village for about 15 minutes. He asked his people to stay quiet and he return to Sangava to phone the police and report about the number of houses burnt. He did not know if Morsen Roel burnt a house on that date.

Evidence of John Aron

His evidence is to the effect that on 8 February 2002, he went to Marae Village as requested by Sangava’s Chief. He and other went there.

He said he and Morsen moved out from the main group at that time. (“Yes mi wetem Morsen now is move out from the main group blong mifala long taem ia”). They arrived there at 10.00AM o’clock. He said after they arrived at Titongoa’s house, he and Morsen Roel went to the toilet. When they come back the big group had gone. He said they saw Tasso. They ran after him. Then they come back and saw the smoke of the houses which were burnt.

He was cross-examined. He said they went to the toilet for 30 minutes. He went to the toilet first and then the defendant Morsen Roel.

Assessment of Evidence

I have listened, observed the demeanour of the witnesses during the trial.

Jimmy Kalo is a powerful witness. He has clear recollections of what he saw on 8 February 2002. I am impressed with the evidence of Jimmy Kalo. He gave evidence on the details of what he saw on 8 February 2002. He has a clear recollection of what he saw and where he was at that time. He is a trustworthy witness. I accept his evidence.

Bua Toara is also a powerful witness. He is not disturbed at any time. He is consistent through out his evidence. I accept his evidence.

I am not impressed by the evidence of Peter. I find it difficult to believe his evidence. Jimmy Kalo is Peter’s “bigfala papa”. Peter lives with Jimmy Kalo and his wife. The defendant does not deny that. The defendant says in his evidence that he cuts the flowers around Jimmy Kalo’s house. This indicates Peter lives with Jimmy Kalo for sometimes. There is no dispute between Peter and Jimmy Kalo. There is no apparent reason why Jimmy Kalo will tell lies against Makalie Peter. Peter says nothing about the fact that he cut the roap used by Jimmy Kalo’s wife to hang their clothes and gave evidence the rope back to Jimmy’s wife on the morning of 8 February 2002 before the burning of houses. Peter said nothing about the fact that he cut the back window of Jimmy’s father’s house. I do not accept Peter’s evidence in the garden that morning.

I accept the first part of the evidence of Morsen Roel that he and others, more than 30 people walked from Sangava to Mara Village. Chief Timakuramata told them to go to that village to help Chief Leslie who needed help. This part of the evidence is consistent with the evidence of some of the defence. However, I find it difficult to believe the second part of Morsen’s evidence when he said he waited for his friend who went to the toilet. This part of his evidence is inconsistent with the evidence of John Aron. Morsen said when the bigger group moved to the place where Marae people were, his friend, John Aron, wanted to go to the toilet. So he waited for him. John Aron said that he and Morsen went to the toilet for about 30 minutes. Aron said he went to the toilet first then Morsen Roel. When he went to the toilet, Morsen waited for him. Morsen does not say that he went to the toilet and his friend waited for him. He never said that he went to the toilet. His evidence is that his friend went to the toilet and he waited for him. This inconsistency indicates that the second part of the evidence of Morsen is fabricated. That part cannot be believed.

Morsen was at Marae Village on 8 February 2002. Morsen says he does not know Willie Makau’s house. I accept Toara’s evidence that he saw Morsen Roel struck matches and set fire to Willie Makau’s house. This occurred during or about the time Morsen and his friend said they went to the toilet. The evidence about going to the toilet is rejected. I do not accept the evidence of John Aron and I reject it.

The evidence of the witness of Timothy Timakuramata is only relevant to the extent of what happened before the burning of the houses at Marae Village. They do not help much in respect to the charges of Arson against the two (2) defendants. I make no other findings in respect to this witness’s evidence.

On the whole of evidence before me, I accept the evidence of the prosecution and I reject the defence evidence.

I am satisfied that each and all essential elements of the offences as charged against the defendants: Makalie Peter and Morsen Roel are proved beyond reasonable doubt.

Verdict: Makalie Peter - Guilty

Verdict: Morsen Roel - Guilty

DATED at PORT-VILA this 2^nd DAY of JUNE 2003

BY THE COURT

Vincent LUNABEK
Chief Justice