N1447

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 398 OF 1995

THE STATE

v

JOHN JULIO, MARA INIMO, DEBENI OTAUARI, ISOA SUI,
MUGUMA DAGAME AND HARUA MUDUPAI (NO 2)

WAIGANI: PASSINGAN, AJ
1996: 4 APRIL

Criminal Law - admissibility of confessions - weight to be attached - final consideration of all available evidence - factors - contents of alleged documents - sufficient details as to alleged crime - Burden of proof remains on Prosecution.

JUDGMENT

TRIAL

The six accused were jointly charged with seven counts of arson pursuant to s.436 of the Criminal Code, Ch No 262. The charges were as follows:

Count 1. That the accused on the 11th day of November, 1993 at Moreguina in Papua New Guinea, wilfully and unlawfully set fire to a building, namely a rubber factory, the property of the Independent State of Papua New Guinea.

Count 2. That the accused on the 11th day of November, 1993 wilfully and unlawfully set fire to a building namely a rubber testing laboratory, the property of the Independent State of Papua New Guinea.

Count 3. That on the 11th day of November, 1993 wilfully and unlawfully set fire to a building, namely a Cuplumb Shed, the property of the Independent State of Papua New Guinea.

Count 4. That on the 11th day of November, 1993 wilfully and unlawfully set fire to a building namely a Toolshed, the property of the Independent State of Papua New Guinea.

Count 5. That on the 11th day of November, 1993 wilfully and unlawfully set fire to a structure, namely a weigh bridge, the property of the Independent State of Papua New Guinea.

Count 6. That on the 11th day of November, 1993 wilfully and unlawfully set fire to a motor vehicle, namely Mazda Utility Registration No. ZSA 232, the property of the Independent State of Papua New Guinea.

Count 7. That on the 11th day of November, 1993, the accused wilfully and unlawfully set fire to a motor cycle Registration No. ZC 161, the property of the Independent State of Papua New Guinea.

K Popeu, for the State
B Takin, for the Accused.

4 APRIL 1996

PASSINGAN, AJ: The six accused were jointly charged with seven counts of arson pursuant to s.436 of the Criminal Code. Each accused had pleaded not guilty.

FACTS

The charges arose out of an armed hold-up at Gomore village in the Central Province on the 11th day of November, 1993. A Police tow-truck with the payroll was held-up, money stolen and the driver was shot dead. News reached the deceased's village of Merani. It is the State case that about 7.00 pm on the 11th of November, 1993, the deceased's relatives and friends got on two vehicles and drove to Moreguina Rubber Project where they caused a lot of damage to properties. That they set fire to a Rubber Factory Building, a Testing Laboratory, a Cuplump Shed, Toolshed, a weighing bridge, a mazda utility and a motor cycle.

On the 13th of November, 1993, the Police Station Commander at Moreguina, the Mobile Squad Commander and member of the Mobile Squad visited Merani village where an appeal was made to the village leader to assist in identifying those who were responsible. And that on the 22nd of November, 1993 the village leaders brought a list of names which included the six accused. The six accused and others were handed over to the Police with the list. Those on the list including these accused were charged with various Summary Offences and were dealt with in the District Court. The six accused now before the Court were later charged with Arson. Each accused had pleaded not guilty to the seven counts of Arson alleged against them.

EVIDENCE

In the cause of the trial the Prosecution sought to tender the following documents as the main evidence to prove the charges:

(a)	the alleged confessional Statement of Mara Inimo;
(b)	the alleged confessional Statement of John Julio;
(c)	Record of Interview of Mara Inimo;
(d)	Record of Interview of John Julio
(e)	Record of Interview of Debeni Otauari;
(f)	Record of Interview of Muguma Dagame;
(g)	Record of Interview of Isoa Sui;
(h)	Record of Interview of Harua Mudapai.

Defence objected to the tender of those documents on grounds of involuntariness, and also calling on the Court to exercise its discretion. On the voir dire I made a ruling rejecting the Records of Interview of the accused Mara, Inimo, and John Julio. The rest of the documents were admitted into evidence.

The large part of the prosecution evidence consisting of eleven witnesses' statements describing the incident on the 11th of November, 1993 and a set of photographs were therefore tendered by consent. There was no identification of each accused and the statements did not incriminate them in any way.

Those statements described the events which took place on the 11th of November, 1993. Between 7.00 p.m. and 7.15 p.m. Merani villagers attacked and caused extensive damage to properties at the Department of Primary Industry Re-development Project at Moreguina. Three vehicles were driven up to the gate crashing it open. Offices and properties were damaged. A couple of gunshots were fired. The community was put onto fear. The station power generator was put off. Then the properties alleged in the indictment were set on fire. The set of photographs tendered by consent confirmed the extent of damage. Those properties were burnt to the ground. Although there is no evidence as to the value of damage, I am satisfied it was substantial. For the purposes of the seven counts of arson, I accept the above as facts proven beyond reasonable doubt.

In the Defence case, each accused gave sworn evidence denying responsibility and alleging that the contents of the two statements and the four Records of Interviews were false. That they lied to the Police to protect their village (Merani) from Police attacks.

THE ISSUES

I find at the outset that the State has proved beyond reasonable doubt that the various properties were destroyed in the manner alleged.

In the final analysis of the evidence as to the guilt or innocence of the accused two questions come immediately to my mind:-

(a)	is there any evidence of identification that these men were responsible for the damages alleged?; and

(b)	what weight can I attach to the alleged confessions in the two Statements and the four Records of Interviews in light of:

(i)	the claims now made by each accused that the contents of those documents were false. That on the advise from the village leaders they lied to the Police in order to protect their village against Police threats to destroy it; and

(ii) The change of attitudes of two of the village leaders who gave evidence in support of the above claims by each accused.

I remind myself of the great responsibility placed upon the State to prove every Criminal Charge beyond reasonable doubt. There must be evidence either direct or circumstantial that these men were responsible for the destruction alleged against them. On all of the evidence before me, I find no evidence of identification either direct or circumstantial.

In my view, the weight to be attached to those documents is dependent upon the following factors:

(a)	the contents of the documents whether the accused had freely made a statement detailing his involvement in the Crime or merely given short answers to question which suggest the required answers;

(b)	the circumstances under which the accused were apprehended or arrested; and 

(c)	whether there is some evidence to confirm or corroborate the truth of the contents of the documents.

The six accused were eventually charged after the village leaders had brought them to the Police Station with a list. The same village leaders had given evidence in support of the claims made by the accused that the contents of the two Statements and the four Records of Interview were false.

In my examination of the all these documents, I find that the questions were in the nature of cross-examination suggesting the required answers. I find that each accused had not made a statement freely detailing their involvements in the crime on the 11th of November, 1993. The short form of answers in each document raised some doubt in my mind whether what the accused told the Police was true or false. The end result is that I place very little weight on all these documents.

On all of the evidence before me, I find that the State has not proved beyond reasonable doubt that each of the accused is guilty of Count 1 to Count 7 of the indictment. Accordingly, I find each accused not guilty of Counts 1, 2, 3, 4, 5, 6 and 7 and acquitted each one and order the refund of their bail.

________________________

Lawyer for the State: Public Prosecutor
Lawyer for the Defence: B T Gobu & Associates Lawyers