Public Prosecutor v Kalpai [2003] VUSC 69; Criminal Case No 034 of 2003 (17 December 2003)

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

Criminal Case No. 34 of 2003

PUBLIC PROSECUTOR

-v-

JAMES JOHN KALPAI
RONALD JOHN
KALORAN JOHN

Coram: Justice Treston

Mr. Tevi for Public Prosecutor
Mr. Kabini for First Defendant and Second Defendant
Mr. Tavoa for Third Defendant

Dates of Hearing: 16 & 17 December 2003

ORAL JUDGMENT

I deliver the decision and judgment in relation to the Public Prosecutor v James John Kalpai as far as is necessary for him and in relation to the trial for the allegation against Mr. Kaloran John for aiding and abetting Mr. Kalpai.

The hearing yesterday on the 16 December 2003 involved two aspects. Mr. James John Kalpai had pleaded not guilty to count 4 of the indictment which provided that he of Utanlang Village, on Nguna Island sometime 19 June 2003 set fire to a house, a boat, a 25hp Evenrude outboard motor and three fishing nets belonging to Stephen Atungia knowing the property belonged to someone else.

When he was charged with that Mr. Kalpai pleaded guilty to setting fire to the house, but not guilty to setting fire to the boat, the outboard and three fishing nets. Effectively then the matter revolved around a disputed facts hearing to determine whether or not the accused intended to set fire to the boat, the outboard motor and the fishing nets as part of his arson which he admitted on the house.

Findings of guilt were not necessary as his counsel, Mr. Kabini, conceded, but it is useful at this stage to document the way that the Court intends to approach the question of sentencing ultimately.

During the course of his own evidence, Mr. Kalpai admitted throwing the nets on the fire which he had started on the house. He denied having any intention to burn the boat and the outboard and its seems that from the evidence, which I accept that the boat was very close by the house and one end of it about 50 centimetres from the house according to Mr. Frank's evidence and the other end about 1.5 meters away.

What happen was the windshield of the boat was burnt. Fortunately there was no damage to the vessel itself, because it was aluminium, and the cover to the outboard was also burnt as a result of the fire which had been started by the accused Mr. Kalpai. Whether or not the accused intended to burn the boat and the outboard is in my view not the crucial aspect of this case. It could be reasonably foreseen because of the proximity of the boat and the outboard to the house that they were likely to be damaged when he lit the fire, burning the house. I do not accept that the damage to those items, the boat and the outboard, were not reasonably foreseen by the accused and I find that the damage to those items was a reasonable and probable consequence of his actions in setting fire to the house because of the proximity of the vessel and the motor to it. Again, as I have said, he admitted setting fire to the nets by throwing them onto the blaze. It is my view that, although he pleaded not guilty to arson to those items, the damage to them was a natural and probable consequence of his setting light to the house, and that he is equally responsible for the damage to the windshield and to the outboard motor cover as he was for the damage to the house and its contents. That is a matter of commonsense in my view because, although an accused person would not necessarily intend to burn, for example, furniture within the house or items nearby to it, if they were damage and destroyed in the blaze, the arsonist would of course be responsible for all items that were damaged and destroyed and that is the attitude that I would take in relation to sentencing Mr. Kalpai ultimately.

As far as Mr. Kaloran John is concerned, he has been for trial on a charge of aiding Mr. Kalpai in the arson, which he admitted he undertook and the accused Mr. Kaloran John, is therefore charged as party to the arson of Mr. Kalpai.

In particular, although I have read out the nature of the arson charge in count 4 the accused is charged in count 5 that sometime around 19 June 2003, he aided Mr. James Kalpai by collecting benzene from a boat on the seashore and being a party to burning the house belonging to Stephen Atungia knowing that the property belonged to someone else. It is this charge, which he has denied.

Initially, objection was taken to the form of the charge itself, when it stated that the accused Mr. Kaloran John burnt the house but of course that must be looked at in the context of section 30 of the Penal Code Act CAP 135 and I ruled that there was no informality or irregularity in the way the charge was framed because if a person is guilty of participation in a criminal offence section 30 provides that any person may be charged and convicted as a principal offender and I held that the form of the charge did not disqualify the Prosecutor from continuing with it.

The prime charge of arson is covered in section 134 of the Penal Code and provides that no person shall willfully and unlawfully set fire to any building or other property whatsoever which to his knowledge belongs to another and section 30, which I have already referred to, is headed under the general heading of participation in criminal offences. It is headed "complicity" and it provides that any person who aids, counsels or procures the commission of a criminal offence shall be guilty as an accomplice and may be charged and convicted as a principal offender. In opening it was the contention of the Prosecution that the accused Mr. Kaloran John aided the principal offender, Mr. James John Kalpai, in a way that was alleged in the particulars to which I have already referred and the aiding revolved around those particulars of obtaining the benzene from the boat and then being in the presence of Mr. Kalpai when he set fire to the house.

I remind myself that in a trial such as this, it is the my responsibility to decide all questions of fact and to decide what evidence I will accept or reject or what weight I will give to any part of the evidence. I must of course come to my judgment solely upon the evidence, which is placed before me in this court, and I must consider the whole of the evidence When I consider the oral evidence, that is what is said by the witnesses, I must take into account not only what has been said but how it has been said because how I assess the demeanour of a witness can be a valuable aid in judging his or her reliability and credibility. I must be objective and reach my decision without being influenced by prejudice or sympathy. It is the judicial responsibility and role to be impartial and to apply common sense and knowledge of human nature.

Under section 81 of the Criminal Procedure Code [CAP 136] I am mindful that the accused is presumed to be innocent unless and until the Prosecution has proved his guilt beyond reasonable doubt. There is no onus upon him to prove his innocence and if at the end of the trial any reasonable doubt exists as to his guilt, the accused will be deemed to be innocent of the charge and will of course be acquitted. That section was read out to the accused before the Prosecution case.

I am also mindful of Section 8 (1) which provides that no person shall be convicted of any criminal offence unless the Prosecution shall prove his guilt according to the law and beyond reasonable doubt by means of evidence properly admitted; the determination of proof of guilt beyond reasonable doubt shall exclude any possibility which is merely fanciful or frivolous.

Might I say, proof beyond reasonable doubt simply means that the court must be sure or satisfied of guilt before a judgment of guilty can be entered.

At the conclusion of the Prosecution case, the accused submitted that there was no prima facie case against the accused and that there was no case to answer. I ruled that there was a case to answer and my reasons for that were not specified because it is inappropriate to specify full reasons where a submission of no case to answer is declined.

I of course will cover the question of there being no case to answer during the course of this judgment but I agree that the basis upon which I approach the task of deciding whether there was a case to answer was to consider carefully the evidence from the Prosecution, I considered that there was sufficient evidence to justify a conviction. The evidence was not so tenuous that it would be unsafe for me to take the matter any further and I was of the view that there was sufficient evidence contained in the Prosecution witnesses and their version of events that could justify the case in going any further. The question of no case to answer really is based upon a consideration of whether or not there is sufficient evidence for the court to take the matter any further and I was satisfied that there was.

Having arrived at that conclusion and having announced that and having decided that the Prosecution evidence was not so weak or unreliable that I could not safely rely upon it, I ensured that section 88 of the Penal Code was complied with indicating to the accused that he was entitled to give evidence on his own behalf in addition to calling other people as witnesses. The accused was advised that he was not obliged to give evidence and could elect to remain silent but that if he did not give evidence that would not lead to inference of guilt against him.

The accused elected to give evidence, he initially said he was going to call other witnesses but decided at the completion of his own evidence that other witnesses would not be called.

I remind myself that I am entitled to draw inferences or conclusions from facts, which have been proved to me in evidence. Conclusions are not guesses rather they are logical, reasonable and fair deductions from facts, which have been proved. In this case the Public Prosecutor has asked the Court to draw conclusions from the facts that I will shortly outline which would indicate that a reasonable inferences is that the accused had the intention to aid the principal offender in his arson.

Of course as I have already said with reference to other statutory provisions within this Republic I am not here to speculate nor am I here to guess and that relates particularly to the question of inferences.

When I consider the question of Section 30 and complicity about the accused aiding the commission of criminal offence, I remind myself that a person aids someone if he actually helps or assists that person with what he is doing. Aiding involves the taking of some positive act or step or words or actions or both and some degree of active involvement of that kind is necessary. Mere passive presence as a bystander or onlooker is not enough to hold a person guilty of aiding a principal to the offence.

While a person charged in this way with complicity he need not know precise detail of how the crime should be carried out. It is necessary for him to know at least the essential essence of what is going on and the person charged this way must also intend that what he does will assist the person in committing the crime. A person cannot be complicit in a crime if he accidentally or inadvertently helps someone to commit that crime.

As to the evidence adduced by the Prosecution, the owner of the house, the boat, the outboard motor and the nets, Mr. Stephen Atungia gave evidence and talked about what he had seen in relation to the events which had occurred. He said that he was fifty some year old person born in 1948. He resided at the village Utanlang which we were talking about and said that on the night before the incident five people in fact had come by boat and had come up to his house. He was asleep and as a result of what occurred he left the house and remained away from it. Then on the morning of 19 June 2003 he said that he saw the accused Mr. Kalpai and this accused Mr. Kaloran John at about 8 or 9am in the morning, from a distance of about 25 meters. He said that he could see Mr. James Kalpai set his house alight and he said he saw Mr. Kaloran John in the area with him at the time. He said that his boat and motor got damaged and he saw the accused Mr. Kalpai throw his nets on the blaze.

He said that he also had seen Mr. Kaloran John collect benzene from a boat on the shore and take it up to Mr. Kalpai's house. He saw him go with Mr. James John Kalpai to his house but he did not know what they did to it then.

Mr. Hapi Frank said that on the morning of the fire he saw Mr. James John Kalpai and Mr. Kaloran John. He said in evidence in chief that Mr. Kaloran John had been holding a plastic container of benzene and handed it to Mr. John Kalpai and he poured it on the house and struck a match and thereafter the house burnt. Under cross-examination Mr. Frank agreed that he hadn't talked about Mr. Kaloran John holding the benzene can and handing it to Mr. Kalpai before but he said that he had observed them in the vicinity of the burning house.

Mrs. Dorothy Frank said that she saw the accused Mr. Kaloran John following James Kalpai to the house that was burnt. She said she had seen Mr. Kaloran John go down to the boat and take a twenty litre benzene container from his boat to Mr. Kalpai's house and then had seen Mr. James Kalpai take a five litre benzene container from the house up to the house that burnt. She said that when Mr. James Kalpai carried the smaller container to the victim's house Mr. Kaloran had been following relatively close by about three meters or so away. She arrived at some conclusions in relation to what she had seen.

During the course of the hearing, because it involved Mr. James Kalpai disputing the fact that he was responsible for the burning of the windshield and the motor, he gave evidence about that and what he had seen and he said that when he went to burn the house, the boat was along side the house. He conceded, as I have already said that he threw three nets into the fire and he said, significantly, that the benzene that Mr. Kaloran John had taken from the boat on the seashore was the same benzene that he had used to start the blaze. He was not cross-examined by counsel for Mr. Kaloran John.

Mr. Kaloran John himself gave evidence and confirmed that on the night before the blaze he had gone to talk to the victim and others who had punched him when he went back home. He said that he took the benzene from the boat by the seashore because Mr. James Kalpai had said that he was scared that Stephen Atungia and Hapi Frank might spoil the benzene. He said that he took the benzene to Mr. Kalpai's house. He said that he followed Mr. James Kalpai to where he burnt the house belonging to Mr. Atungia because he was talking to him telling him to stop what he was doing and he only understood what was going to happen as they approach the house. He also significantly agreed that the benzene that he had taken from the boat by the seashore, was the same benzene that Mr. Kalpai had used to burn the house. He confirmed in cross-examination and re-examination that he didn't know what the benzene was going to be used for and didn't know that until they were going towards the house.

That is the evidence both from the Prosecution witnesses and the accused Mr. James John Kalpai and this accused Mr. Kaloran John that must be considered by this Court. As I have said it is important for the Court to consider all of the evidence and not simply the evidence of some or others, and an assessment must of course be made as to what weight the Court should place upon the evidence.

The Prosecution closed its case by referring once more to the submission it had made in opening remarks to the Court when the case commenced yesterday and I have paid due regard to what the Prosecution has said in closing. Reference was made to the facts of this case that I have already referred to at some length today and submissions were made as to why the Court should be satisfied beyond reasonable doubt that the accused had been proved to be assisting the principal offender, Mr. James John Kalpai, in committing the crime of arson. The main thing that the Prosecution relied upon was the witnesses seeing the accused taking the benzene from the boat, taking it to Mr. James Kalpai's house and then following Mr. Kalpai to the property of Mr. Atungia.

On the other hand the defence submitted to me that the Court cannot be sure of the guilt of the accused. The definitions were referred to. Aid was defined as giving one help, support and assistance and the evidence which was mainly in support of the accused was that the accused did not know or could not be inferred to know about what the intention of Mr. Kalpai was to burn the house and that he had brought the benzene up to the house from the boat to protect it from the ultimate victim and others and that he had told Mr. Kalpai not to burn Mr. Atungia's house as they were heading towards it with the benzene which he had picked up from the beach. The defence submitted that proof of intention was required and that must be based on knowledge of necessary facts which could not be inferred here. With reference to inferences, it was submitted by the defence that the inferences used by the Court must clearly show the intention of the accused. The evidence of Mr. Hapi Frank, because of his evidence in chief before this Court and his statement, could not be safely relied upon and the conclusion ought to be that the Prosecution had not established the case against the accused.

I have had the opportunity of course to see and hear the witnesses in this trial and I have got to say that I find that in general terms I accept the evidence of the Prosecution witnesses and what they saw and what they concluded. As the defence said that is not the necessarily the key to it and Court can rely on inferences and I must look at all surrounding circumstances.

I find that I do not accept the evidence of the defendant Mr. Kaloran John. He gave evidence about matters and planks of the defence which were never put either to the Prosecution witnesses nor to James John Kalpai. The inference that arises when matters are not put, is that the accused is simply making up his story as he goes along. I am not necessarily saying that it is the fault of defence counsel but essential matters that the accused relies upon, for example that he took the benzene from the boat to Mr. Kalpai's house because he had been told by Mr. Kalpai that others might interfere with the petrol, were never put to Mr. Kalpai. As I have already said the accused despite having the opportunity of cross-examining Mr. Kalpai did not take that opportunity at all and the Court is simply left to speculate in the absence of its case being put as to what Mr. Kalpai might have said to the accused Mr. Kaloran John and in addition, although the accused says that as he and Mr. James John Kalpai walked towards the house he was saying to the principal offender Mr. Kalpai don't do this and tried to dissuade him, again that was never put to Mr. Kalpai so the Court is simply left to speculate on the accused's version and I have got to say that I do not find that I accept his version.

The only reasonable inference from the facts that I have referred to is that the accused Mr. Kaloran John aided the commission of the criminal offence performed by Mr. James John Kalpai for the following reasons:-

First, he collected the benzene from the boat by the beach on the instructions of Mr. Kalpai, the defence would have it that Mr. Kalpai hadn't told him to go and collect it but that was my clear note in evidence and my clear recollection that he had told him to go and pick it up the benzene and second, both he and Mr. Kalpai agreed that the same benzene he had picked up from the boat or part of it was used in the arson of the property and third the accused was very close by and approaching the house in the company of Mr. Kalpai who was carrying the benzene that the accused had picked up from the boat when the latter set fire to the house. The only reasonable inference from that evidence is that the accused was aiding Mr. Kalpai in the arson of that property.

And I note that inferences are drawn not just from the evidence of the Prosecution witnesses as the defence would have it, but from all the surrounding circumstances, and all the surrounding circumstances satisfy me beyond reasonable doubt that the accused Mr. Kaloran John was not the angel of mercy that he would paint himself to be in trying to stop Mr. Kalpai from burning the property but was a person who was involved in the crime and assisted Mr. Kalpai in the execution of it.

In summary I find that the Prosecution has proved the guilt of the accused according to law beyond reasonable doubt by means of evidence properly admitted. He is accordingly convicted of the charge of complicity in the arson of the property, in that he aided the principal offender Mr. James John Kalpai in that arson.

Dated AT PORT VILA, this 17^th day of December 2003

BY THE COURT

P. I. TRESTON
Judge