State v Vincent Ndresile Sampson and Samuel Pasiu and Kiapin Lawrence Pasiu and Moses Pukai and Bruce Kiapin and Sapak Pukai and Saleu Kalai (2007)

• Jurisdiction: Papua New Guinea
• Judge: Lay J
• Judgment Date: 26 March 2007
• Citation: (2007)
• Docket Number: CR 820 & 821 of 2004
• Year: 2007
• Court: National Court

Full Title: CR 820 & 821 of 2004; State v Vincent Ndresile Sampson and Samuel Pasiu and Kiapin Lawrence Pasiu and Moses Pukai and Bruce Kiapin and Sapak Pukai and Saleu Kalai (2007)

National Court: Lay J

Judgment Delivered: 26 March 2007

CRIMINAL LAW- Criminal Code s 436 - arson - conflicting oral evidence - reasons for findings of fact.

Facts

The accused were charged that on the 10 January 2004 in the evening they attacked the house of Peter Su-uh at Keloti village in Manus, drove away the inhabitants and then set fire to three houses and a shop. The accused said that Bruce and Samuel were chased and fired upon by Peter Su-uh and his son and Samuel was injured in the hand by a shotgun pellet. They said that, with the exception of Kiapin Lawrence Pasiu and Moses Pokai (who said they knew nothing about the matter) the 5 of them then left by canoe to their own villages of Wamarai and Waitcheleni before the fires, leaving behind three of their friends who are now convicted and serving sentences for arson.

Held

The State witnesses were credible and their evidence is consistent with logic and common sense. The accused's evidence suffers from multiple inconsistencies. The story that Samuel and Bruce were fired upon by Peter Su-uh and his son and Samuel injured in the hand, after which they all left Keloti, could not be believed. There is no credible evidence to raise a reasonable doubt against the State case. The accused are guilty as charged.

Cases Cited

State v John Beng [1976] PNGLR 471; John Beng v State [1977] PNGLR 115; Edwards v Jordan Lighting [1978] PNGLR 273; Fishermens Island [1979] PNGLR 202; The State v Paul Yepii (No.1) N2570; State v James Togel v Richard Ogio [1994] PNGLR 396; State v Benny Moiri N2305; State v Kasaipwalova [1997] PNGLR 257; State v Peter Oh Piom Mo [1998] PNGLR 66; State v Edward Tande (No.1) N2298;

1. LAY J: The Accused stand charged with four counts of arson contrary to s 436 of the Criminal Code, to which they have all pleaded not guilty.

. Late in the afternoon of Friday 9 January 2004 the accused, with the exception of Kiapin Lawrence Pasiu and Moses Pukai who say they were not at Keloti, ("the five accused") travelled from Wamarai to Keloti village in Manus allegedly for the purpose of repairing the roof of the house of Saleu Kalai in Keloti village. Whether they all travelled in small canoes ("mon") or some in a motor boat is in issue.

2. Nelson Peter and his wife Delca Peter gave evidence that on the evening of Saturday 10 January 2004, the five accused and six others attacked the house of his father Peter Su-uh with slingshots and stones. The two families ran away to Tami River. Then Nelson Peter and his brother-in-law John turn back to Keloti to see what was happening to their property. The rest of the family went on to Pelipowai. Nelson Peter said he and John returned to Keloti and hid in the sago near Peter Su-uh's home and watched what was happening to their property. They saw three dwelling houses in Keloti village belonging to Peter Su-uh, his son Nelson Peter, Liko Michael and a trade store belonging to Nelson Peter, destroyed by fire caused by a group who attacked the houses. Nelson Peter gave evidence that all of the accused were present at the burning of the houses and shop and participated in breaking or burning the houses or encouraged others in doing so by their presence.

3. The accused say that late in the afternoon of 10 January 2004, Samuel and Bruce went to the shop in a neighbouring village, Timoenai. Samuel and Bruce say while passing Peter Su-uh's house on returning from the shop after dark, Peter Su-uh and Nelson Peter chased them with a torch and a shotgun and fired some shots injuring Samuel's hand and forcing Bruce into the water to swim to safety. The five accused then say that when Samuel arrived at Saleu's house having been shot in the hand by Peter Su-uh or Nelson Peter, the convicted three rushed off to fight, but the five accused were frightened of the gun and left in their canoes back to Womani before the fire started. They say none of them arrived or left Keloti in a motor boat.

4. It is not disputed that the accused other than Kiapin Lawrence Pasiu and Moses Pukai were at the village with Martin, Bob and Chechial. Nor is it disputed that the latter three attacked the houses and shop and set fire to them and are now serving sentences for the same.

5. What is in dispute is that the accused were part of the group which took part in the attack and burning of the houses and shop, whether some of them arrived by boat rather than by canoe in Keloti and whether the attack was provoked by an attack on Samuel and Bruce by Peter Su-uh and Nelson Peter and a shotgun pellet injury to Samuel inflicted by Nelson Peter.

SUBMISSIONS

6. Each counsel made detailed submissions analysing the evidence and pointing out to the Court details which they contended support of their case or contradicted the opposition's case.

THE LAW

8. As to the principles to be applied in analyzing conflicting oral evidence I am content to repeat the observations of Kandakasi J in State v Paul Yepei (N01) 2004, N2570:

1) “… A number of well-established principles govern the assessment of evidence and the acceptance or rejection of a witness’ testimony. One of these goes into the credibility or the reliability of witnesses and their evidence. This in turn depends on the witnesses’ evidence meeting a number of requirements, which need not exist all at the same time in any one case.

One of these requirements is the need for consistency in a witnesses own evidence and other evidence called by a party. … Many other cases have considered and applied this test. Some of the examples are the judgments inThe State v Kevin Anis [2003] PNGLR 344; The State v Onjawe Tunamai [2000] PNGLR 234 and Jimmy Ono v. The State (Unreported judgment delivered on 04/10/02) SC698.

These and other authorities make it clear that, where serious inconsistencies exist, there is the possibility of false testimony and therefore unsafe to act on.

…

“Logic and commonsense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not a person should be found guilty.”

This was a restatement of the law and its application in The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48 by the National Court and affirmed by the Supreme Court in Garitau Bonu & Rosanna Bonu v. The State (Unreported judgment delivered on 24/07/97) SC528. Early Statement of and an application of this principle are in cases like that of Paulus Pawa v. The State [1981] PNGLR 498.

An additional requirement concerns the performance or the demeanor of witnesses in the witness box. An application of this principle decided many cases in the past. Examples of these are, cases like that of The State v. Tauvaru Avaka & Anor (Unreported judgment delivered on 2/11/00) N2024 and Gibson Gunure Ohizave v. The State (Unreported judgment delivered on 26/11/98) SC595”

9. Some helpful comments were made in the case of the Fishermens Island [1979] PNGLR 202 where Wilson J. (speaking with particular reference to the position in civil cases, but applicable to all cases) said:

"in any case in which there is conflicting oral evidence the judicial officer should state in his reasons for decision why he rejects the evidence [or part of the evidence] of one and why he accepts that of the other. Where there is evidence, whether oral or otherwise tending to prove one side of an issue and there is no evidence on the other side to contradict it, then the judicial officer is bound to accept it unless the evidence is in itself so incredible and unreasonable that no reasonable man could except it. If for any reason which recommends it self to the mind of the judicial officer dealing with a matter, he thinks it not fit to accept the evidence of the only witness who is the only witness before the court or Judicial Tribunal and he is founding his decision on his disbelief of that witness, he is bound to disclose it."

10. The other issue of some importance in this case is identification. I remind myself of the law on the issue. I recite the six factors set out in Chalmers, Weisbrot, Injia and Andrew, Criminal Law and Practice of Papua New Guinea, 3rd ed. (Law Book Co Ltd 2001) at page 638.

"The reliance to be placed on personal identification will depend upon a number of factors, including inter alia;

(1) the impression left by the eyewitness as to his reliability and accuracy;

(2) the existence of a motive for giving false testimony as to the...