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State v Tabo [1990] PGNC 60; N932 (15 October 1990)

Unreported National Court Decisions

N932

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
KASAVE TABO, TABO KIVEN & PORO KIVEN

Kainantu & Goroka

Brunton J
2-4 October 1990
12 October 1990
15 October 1990

CRIMINAL LAW - Criminal Code - s299(1) Wilful Murder - identification - John Beng -v- The State [1977] PNGLR 115 applied - “difficult circumstances” of identification - witnesses burnt and in pain when sighting took place.

Verdict:

Not guilty on both counts.

Counsel:

Mr K Bona: The Public Prosecutor

Mr K Wagaro: For the Defendants.

JUDGEMENT ON VERDICT

BRUNTON J:

THE INDICTMENT

The accused were indicted, each, on two counts of Wilful Murder, contrary to Section 299(1) of the Criminal Code alleging the death of two children (one count for each child). They pleaded not guilty and there was a trial.

THE STATE’S CASE IN OUTLINE

It was alleged that on the 12th of February, 1989 the three accused set fire to the house of one Joseph Kanakuneso (Joseph) and his wife Marin Joseph (Marin). Joseph, his wife and two children were in the house when the fire was alleged to have been lit. As a result of the fire two children, Sikanive Kanakuneso - a fourteen year old boy, and Miriam Joseph a three month old girl were burnt to death.

The State’s case was that the accused intended the deaths of the two deceased. They wanted to drive Joseph and his family out of their house because there was a land shortage in the village, and Joseph, although related, was from another village.

Even though there was no direct evidence of the accused setting fire to the house, the State submitted that this could be inferred from the motive of the accused, from the identification of the accused at the fire by Joseph and Miriam, and from statements that the accused Kasave Tabo had made prior to the fire to three state witnesses.

ADMISSIONS OF FACT.

The accused, in writing, admitted certain facts, inaccordance with s589 of the Criminal Code. They admitted that in the early hours of the 13th of Feburary 1989 there was a fire at Joseph Kanakuneso’s house. The house was burnt to ashes with Sikanive Kanakuneso and Miriam Joseph. They each made admissions that they helped rescue Joseph and Miriam, or were present when the rescue took place. They also made other admissions, relating to events prior to the fire.

THE STATE WITNESSES: JOSEPH KANAKUNESO

Joseph testified that on the 11th of February 1989 he walked from his house at Avaninofi Village, with his wife Marin, his baby Miriam, and his young brother Sikanive, along the Okuk Highway, to the place where the video show is held at Aiyafaga. As they went into the video show he saw the three accused, at about 6 pm. The video show was closed down because persons unknown threw stones at the building; Joseph and his family walked home. They stopped at a house and got a cardboard carton to use as a lighted-brand. Then they were given a lift, and dropped on the Highway at Avaninofi. As they were about to cross the Kafetina River to go through the village up to their house (which is outside of Avaninofi) they saw the three accused by the “sandy place” - they passed quite close and recognised them easily. Joseph testified that he and his family went up to their house, which was rectangular in design, native materials, raised on posts, four rooms, with a verandah. The family then cooked some rice on a primus stove, sang some hymns, put out the stove and the light (made from a peanut butter tin), and all went to sleep in the main bedroom. Although there was space under the house for an outdoor kitchen, a fire had not been lit there that day. The bedroom they all slept in had a door opening onto the main living-room and kitchen area, and a small window. This window as made from the windscreen of a bus and was covered in arc-mesh.

The witness went on to testify that he was woken up after a bad-dream to find smoke in the room and fire everywhere in the house. He picked up his baby and woke his wife and young brother. They tried to find a way of escaping. The living room was on fire and they could not get out through the door. He put the baby down, and after sometime, with difficulty, broke the plastic windscreen-window, and the arc-mesh. During this process he said he felt petrol being poured on him. His back caught fire and felt like blowing up.

It was not clear from his testimony whether he went out of the window first or whether he pushed his wife out. No point was made of this by counsel. He got out of the windown and tried to put the fire out on his back.

At that point he saw the three accused some three to four metres away. He said to them “you have done something bad”. He knew the accused very well being part of the same village. The fire from the house was burning brightly and there was a lot of light. He could see the accused clearly. The accused all ran away, and because there was no one else at the scene, and they ran away, he suspected that they had set fire to his house. After seeing the accused he jumped over a fence, walked down a bit and fainted. He was unconscious until about 3pm in the afternoon of 12th February, 1989.

Joseph testified that after he came out of hospital he confronted the three accused and demanded compensation. The accused said to him he must prove his allegations, and agreed to obtaining the services of a Tolai-lady from Lae, who was thought to be able to divine such matters. The Tolai-lady came to the village and first identified four persons who were later discounted as suspects by the villagers and police. Eventually the Tolai lady identified the accused.

Joseph was solid straight forward as a witness - with a matter of fact delivery. He was not shaken on cross-examination and appeared to be a witness of truth. He was a PMV driver and seemed to have some education.

STATE WITNESS: MARIN JOSEPH

The testimony of this witness followed closely that of her husband. Her reason for asserting that it was the accused who burnt down her house was that when she jumped out of the window she saw some people who she thought had come to help them. They were the three accused, who were just standing there watching. In her view they were about five to six metres away from her.

There were some ways in which her testimony differed from that of her husband. She not only saw the three accused outside of the video place, she saw them inside as well. She testified that while the family were eating their supper they heard a noise on the verandah, and were frightened that someone was out on the verandah. She gave no evidence about what happened to the baby. She was very clear about the use of petrol saying that a bottle was thrown, that the petrol got on Joseph “we smelt the petrol when it broke at the back of Joseph’s back” (31/99).

STATE WITNESS: LIVISON KISBEFA

The witness was a church worker. Four months before the alleged burning of Joseph’s house Livison Kisbefa had been working with the accused Kasave Tabo at a church camp.

Kasave Tabo had seen Joseph and his brother Ivan Kanakuneso walking on the road near where he was working. The accused Kasave said to Livison Kibefa “you see one day Ivan Kanakuneso and his brother Joseph will get into trouble one day”.

This witness was from a different village to the accused, and did not appear to have “an axe to grind” (no motive for lying), although the probity of his evidence was not immediately apparent. He appeared to be an honest witness.

STATE WITNESS: OROMBA AMURI

This witness testified that in November 1989, three months before the fire at Joseph’s house, the accused Kasave Tabo had come to his house and said words to the effect that he would like Oromba to help him to burn down Joseph’s house. On cross-examination he admitted that he had told the Police that Kasave had told him that the

“burning of the house would make him leave his village and go back to his place at Korounofi”.

This witness had a poor demeanour. He was unsure of himself and shifty.

STATE WITNESS: NEBI AMURI

This witness gave evidence of a separate visit by the accused Kasave Tabo, to his house in November 1988. Kasave is said to have told Nebi, that he (Kasave) wanted to burn down Joseph’s house.

It was difficult to assess this witness’s credibility. His appearance in the box was so short and he was not really tested on cross-examination. He was somewhat edgy.

STATE WITNESS: FRANK ENAT

Mr Enat the Police investigator gave formal evidence about the course of the investigation. He had attended when a doctor went to the village to dig up the bodies of the two deceased children. He “picked up” the accused for questioning on the 13th of April 1989, from Avaninofi Village.

The State tendered a record of interview in respect of each of the accused. The facts in the Record of Interview had been formally admitted by Mr Wagaro, on the pre-trial review, under s589 of the Criminal Code. In the Records of Interview all accused denied burning down Joseph’s house.

DEFENCE WITNESS: KASAVE TABO

The accused Kasave Tabo gave evidence on oath. He testified that on the 12th of February 1989 he took a lift, in the car of a person called Taffy, and went to see the video at Aiyafoga. He went with his brother Ahako. After the video show was over, he returned to Avaninofi in the same vehicle. There were plenty of people at the video show but he could not remember seeing Joseph or Marin there. He returned to his house and went to sleep. In the house were his wife and sister (R/I Q29). He was awakened by his father Tabo Kiven who raised the alarm about the fire at Joseph’s house and Kasave went to help in the rescue, which later took her to hospital. He denied he was “seen with Tabo and Poro at the place of the fire” (32/22). He denied burning Joseph’s house down.

On cross-examination, Kasave Tabo admitted that Joseph was originally living with his (Joseph’s) father, but had been invited to move to Avaninofi by his clansmen. He was allowed to build a house away from the Kafetina River on higher and sloping ground above Avaninofi. He was allowed to build a big garden. Avaninofi was a crowded village - the more so, because of erosion by the Kafetina River. Some people had had to more elsewhere. The erosion affected Kasave Tabo’s land. But Joseph’s land was safe. It was not possible move up to where Joseph was because that land was now occupied.

Kasave Tabo could give no reasons or possible motive behind the allegations made by the State witnesses Livison Kisbefga, Oromba Amuri, and Nebi Amuri. He denied that Mr Enat had picked him up at Avaninofi and taken him to do the Record of Interview at Kainantu Police Station, In April, 1989.

DEFENCE WITNESS: TABO KIVAN

Tabo Kiven gave sworn testimony that on the 12th of February 1989, in the afternoon he was with his wife and children. Many people went to the video in the evening, but he stayed at home and was sound asleep. He was woken up by the whole village (presumably noise) that a house was burning. He and his wife got up and went over to his son’s house (Kasave Tabo) and woke him up. Tabo Kiven got some kunai and lit a torch and went up to the scene of the fire. He saw his father Kasave Kabo carrying Marin to the road. He denied he was at the video place, and the sandy place, as asserted by Joseph and Marin. He denied he was seen in the vicinity of the burning house, and was seen running away from it. He assumed that the house had been deliberately burnt down, rather then being destroyed by a fire accidentally. He could not account for why his “son” Joseph should make false accusations against him. He denied that Joseph had made a compensation demand from him.

DEFENCE WITNESS: PORO KIVEN

The accused Poro Kiven gave sworn testimony that on the 12th of February 1989 he went to the video with his son, Eric (this is a different person to the accused Kasave Tabo who is also called Eric). After the video show at about 10pm they began to walk home, and were given a lift by Tavi (Taffy). Poro Kiven testified that there were a couple of people, including himself and his family in the vehicle. They were dropped on the Highway by their village and walked home. They went straight to their house. He went to sleep. He was awoken by a noise - he and his wife went up to where the house was burning. They helped carry Joseph to the vehicle, and then returned to their house. He denied being seen at the “sandy place”; he denied involvment in setting fire to Joseph’s house. He admitted being picked up by Mr Enat at the village and taken to the cell. He could not account for why Joseph would falsely accuse him of the arson. He testified that Joseph now lived in the village of Korovani.

THE NEED FOR CAUTION

Both counsel relied on the case John Beng -v- The State [1977] PNGLR115, saying that the issue in this case was one of identification. Closely related to the issue of identification was the issue of whether or not the statements by Joseph and Marin could or should be believed. Did they have a reason for telling lies? On the other side was the issue of whether or not the accused had an alibi.

Both these related issues can be resolved by a careful application of the principles in John Beng -v- The State. That case emphasises that there is a need for special caution when dealing with evidence of identification. A mistaken witness could be a convincing one, and it follows that two mistaken witnesses who are closely related - for example a husband and wife, could also be convincing. Joseph and Marin were good witnesses. They were not shaken on cross-examination. They both had a good demeanour in court. The question in this case is, where they mistaken or lying.

This is a case of the recognition of the accused by two persons who knew them well, rather than the identification by witnesses of total strangers. The accused were members of the same village, the same clan as the witnesses. But even the recognition of close relatives and friends may be mistaken, under certain conditions

What then was the quality of the identification evidence against the accused?

Joseph and Marin testified that they saw the accused on three occassions during the night in question. The first time they saw the accused was at the video-show, or more accurately at the entrance to the video-show. The evidence of this sighting was not detailed. Two out of the three accused admit to being at the video-show, although these accused did not say that they saw Joseph and Marian. There was no evidence on either side that they greeted one another, or did anything else which would indicate a mutual recognition. The fact that one side says they saw the other, without being seen themselves, does not negate the testimony of recognition put forward in the first place, nor does it mean that the other side is lying.

Secondly, Joseph and Marin testified that they saw the accused at the sandy place near the Kafetina River on the way home from the video show. Joseph had a torch-branch made from a cardboard box to light their way. They testified that the accused were but a few metres away, and saw them clearly. If they are to be believed, then they certainly knew what the accused looked like on that night.

Thirdly, Joseph and Marin testified that they saw the three accused running away when the house was burning. There was plenty of light from the burning house for them to have made this sighting. Joseph said he had time to say to the accused “what you have done is a bad thing”. Their observation was not a fleeting glance.

However, two persons escaping from a blazing house, in which both have been badly burnt, and in which they have left their children, are in “difficult conditions” for the purposes of making an identification- John Beng -v- The State [1977] PNGLR 115, 123. Even though the light was sufficient for them to see, and the distance between them and the accused was not great, both witnesses were in pain and shock; Joseph was soon to collapse into unconsciousness and not recover for some ten to twelve hours. As a tribunal of fact I am entitled to infer, and I do infer, that they were in great pain and under great stress. Certainly, once it had registered that their baby had burnt to death in the house from which they had escaped, and Joseph’s small brother had also perished, the emotional pressure, self-doubt, remorse, the need to find an explanation for the tragedy, and to attribute responsibility for all the suffering would have been very great. As they emerged from the inferno, there was a potential opportunity for them to fall into error, whether intentioned or unintentioned.

This sighting of the accused as a matter of law is evidence over which great care needs to be taken. There is no contemporary independent evidence which would support the correctness of the identification. There was no confession, no forsensic evidence, nothing independent and reliable. Apart from the testimony of Joseph and Maria, there was no evidence that the fire was deliberately started, rather than it being caused by accident.

The testimony of Livison Kisbefa, Oromba Amuri and Nebi Amuri does not have the objectivity and reliability that is needed to move the evidence of identification, beyond reasonable doubt. Livison Kisbefa’s testimony is of a statement that was fairly remote in time, and somewhat ambiguous. The testimony of Oromba Amuri and Nebi Amuri were from clansmen - in common parlance - they were “verbals” from within the traditional community, and need to be treated with circumspection.

This is a case in which the observation of the accused was made under difficult conditions, and there is no other ‘evidence of sufficient cogency or probity to support the correctness of the identification:- John Beng -v- The State 1977 PNGLR 115, 123.

True there is some evidence which supports the identification - it may well be evidence on the balance of probabilities, but this is not a civil case. It is criminal case and the charge is wilful murder. The tribunal of fact must be satisfied beyond reasonable doubt. With the exception of Livison Kisbefa, the State evidence all comes from within the same clan. There is no independent forensic evidence that the fire was an arson. The quality of the State case depends upon oral testimony from within a small group of people. It is not such as to push the burden beyond reasonable doubt, and accordingly I find the accused not guilty as charged on both counts, and acquit them. Bail is to be refunded.

Lawyer for the State: The Public Prosecutor

Lawyer for the Accused: The Public Solicitor