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State v Soru [1997] PGNC 77; N1622 (27 June 1997)

Unreported National Court Decisions

N1622

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO 1559 OF 1996
THE STATE
v
AMBROS SORU

Wewak

Batari AJ
25-27 June 1997

CRIMINAL LAW - Evidence - Murder - Accused set own house on fire with baby girl deliberately trapped inside - “In prosecution of unlawful purpose” (s. 300 (1) (b) - Whether setting own house on fire excused under ss. 433, 436 of Criminal Code.

CRIMINAL LAW - Evidence - “Proof beyond reasonable” doubt - Meaning of.

CRIMINAL LAW - Evidence - Murder - Arson resulting in death - Intent to cause grievous bodily harm.

Cases Cited:

Miller v Minister of Pensions (1947) 2 ALL ER 372

Paulus Pawa v The State [1981] PNGLR 498

Trial

This was a trial of the accused on the charge of wilful murder. Having upheld the accused’s “no case to answer”application, the following judgment was delivered on the alternate verdict.

Counsel:

J Wala for the State

F Pitpit for the Accused

27 June 1997

BATARI AJ: The accused pleaded not guilty to wilfully causing the death of Emilia Yuanhia Soru, a female toddler of unstated age on 16 September, 1996 contrary to s. 229 of the Criminal Code.

The story led from State witnesses was that, prior to 16 September, 1996 the accused and his wife Joan Soru had a domestic altercation which caused Joan to leave. On the morning of the day in question, Joan Soru returned to the matrimonial home with the child Emilia to get some clothes for herself and the child. They were accompanied by three other relatives. Shortly after their arrival, the accused and his wife fought over possession of the child. The accused succeeded in wrestling the child from his wife and took the child into the main house. He locked the door from inside and re-emerged a short while later from the burning house without the child. Evidence were led to show the accused intended to cause the death of the child when he set the house alight with the child trapped inside.

State witness Kevin Pahau was the first to give evidence. He accompanied Joan Soru and the child Emilia to the accused’s village. Also with them were his wife Stella and Heribet Pokori. Shortly after arrival, Joan entered their house with the child and came out again with some clothes in a bag. She was about to go into the house the second time when the accused attempted to get the child from her. She resisted. The accused wrestled the baby free and took her into the house followed by Joan. The witness heard the baby cry from inside the room and also heard Joan calling out to the natural father of the child, that the accused would kill her. He tried to push open the door but it was locked. He spoke also of kerosene smell and traces on the wall. The witness said he alerted Alois and Heribet about his fear for the child’s safety. The accused re-emerge from the house armed with a knife and without the baby. Heribet joined him and together they tried to open the door but without success. The house by then was alight. They succeeded in breaking through the side wall but the fire had spread inside the building. They returned to their village where they related the incident to the village leader. The accused also followed them to the village and initially accused them of killing the child. However, he later made admissions. That was substantially, the evidence of this witness.

The second State witness Heribet Pokori gave evidence that he stood some 10-15 meters away from the accused’s house conversing with the natural father of the deceased child, Alois Sapmagua. The accused and Joan were inside the house. He spoke of hearing Joan calling out to Alois that Ambros might kill Emelia. Shortly after, he saw smoke coming from inside the house and Kevin running towards them. He followed Kevin to the verandah of the house and saw Ambros emerged from the house with a knife in his hands. Together with Kevin they tried to open the door but it was locked. They went around to the back and cut a hole on the wall. He spoke of seeing the left leg of the child Emelia, burnt with swellings and openings of the skin. He tried to get in but the fire had spread and was burning intensely. Upon return to his village, he related the incident to the village leader. The accused who had also followed them to the village blamed the killing on him and he argued with accused over this. When the village leader intervened, he said the accused broke down, cried and admitted being responsible for the fire which caused the death of his child. That was the brief of his evidence.

The village leader, William Niangu was called to confirm his meeting with Kevin and Heribet and the events that ensued. He also confirmed the presence of the accused.

William Kasona and Kila Kali were the only other witnesses whose evidence should be stated. These police members spoke of their visit to the scene on the date in question. Each testified that he saw a house burnt to ashes and further that he identified remnants of a child in ashes form. Kila Kali said these were located on the left-hand side of the house.

Having found a case to answer on murder after I upheld his “no-case to answer” application on the wilful murder charge, the accused elected to remain silent. I must now re-visit the evidence as it stands at the end of all the evidence and apply it on a higher standard. That standard is proof beyond reasonable doubt. As to what the standard of proof in a criminal trial entails, I adopt the statement of Denning, J as he then was, in the case of Miller v Minister of Pensions [1947] 2 All ER 372 at 373-4:

“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence, ‘of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt, but nothing short of that will suffice.” (emphasis mine).

I also bear in mind the principle applicable where the accused elects not to give evidence as set out in the case of Paulus Pawa v The State [1981] PNGLR, 498 in particular, those considerations alluded to in the judgment of Andrew, J at p. 504:

“I agree with the conclusions of Professor O’Regan in his article ‘Adverse Inferences from Failure of an Accused Person to Testify’ 1965 Crim. LR 711, that:

1. The failure of an accused person to testify is not an admission of guilt and no inference of guilt may be drawn from such failure to testify;

2. Failure to testify may, however, tell against an accused person in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters;

3. Failure to testify only becomes a relevant consideration when the Crown has established a prima facie case;

4. The weight to be attached to failure to testify depends on the circumstances of the case. Significant circumstances include:

(a) whether the truth is not easily ascertainable by the Crown but probably well known to the accused;

(b) whether the evidence implicating the accused is direct or circumstantial;

(c) whether the accused is legally represented;

(d) whether the accused has before trial given an explanation which the Crown has adduced in evidence.”

The evidence was substantially uncontested. It consisted of direct evidence and inference which can be drawn from evidence of the witnesses. State Prosecutor submitted that, by leaving the child in the house and deliberately setting the house on fire, the accused had caused the death of the deceased “in the prosecution of an unlawful purpose”. Defence on the other hand has put forward a number of propositions and invited that the accused be acquitted on the murder charge. Mr Pitpit submitted:

(1) there was insufficient evidence that the accused deliberately set fire to the house;

(2) even if he did, the burning of his own house is excused under s. 433 (1) and (2) of the Criminal Code.

He argued that, because the ‘unlawful purpose’ alleged under s. 300 (1) (b) related to the accused setting fire to his own house, his action is not unlawful under s. 433 (i) which defines “unlawful acts”.

The second leg of Defence Counsel’s submissions is in my view, misconceived and mischievious. Counsel would have had one believed that it is permissible in law to set alight one’s own home and escape responsibility for any consequential event, be it injuries or death or loss of property which might flow from that deliberate act. In my view ss. 300 (1) (b), 433, 436 when read together, do not avail the accused and is never intended to avail the accused a defence where he deliberately commits arson. The law is not intended to protect a person who sets his own house alight in circumstances where there is real threat of danger or loss to life and property. Indeed the law would fail to protect the community if it permits acts of incendarism as suggested by Defence Counsel. I reject Counsel’s contentions.

I accept the accused and his wife fought over possession of the child as spoken of by Kevin Pahau. This in my view, was a manifestation of disharmony which existed between them and that the difference had not abated at the time of the incident.

I am also satisfied that Joan, tried to retrieve the baby from the accused. I accept Kevin’s evidence that he heard the child cry inside the house and also heard Joan called out that the accused would harm the baby. I infer Joan had followed the accused into the house and saw how he had treated the child. In the least, the accused was inside the house with the child. A demonstration of the child’s cry suggested it was in pain.

There is no evidence from the accused or Joan on that aspect and I am entitled to draw inferences from the facts before me. The alarm raised by Joan must have been serious to cause Kevin to investigate. The seriousness of the alarm was supported by the facts:

(1) Kevin found the door locked.

(2) Kerosene was detected on the wall of the house. The evidence on the kerosene has these implications:

(i) it is not normal for kerosene to be found on the wall, unless it is deliberately poured there or unless kerosene is accidentally spilt against the wall.

(ii) spilled kerosene from a fallen burning lamp could almost immediately ignite. The evidence is that Kevin only smelt and saw kerosene that time.

(iii) the ashes form of the body was found on the left hand side of the house. I infer that this was not in the middle of the house. The possibility is also that the kerosene as seen by Kevin on the wall was near where the child was.

The accused has neither denied nor explained the evidence implicating his conduct. The truth as to what happened inside the house is not easily ascertainable by the crown but probably well known to the accused. In the absence of any explanation from him, I am entitled to accept the State’s evidence as being uncontradicted or unexplained on vital matters.

I conclude from the evidence, that the fire started from inside the house. There is strong inference from the evidence of Kevin and in particular that of Heribet that the fire started where the baby was. Heribet’s evidence suggested the child had suffered 3rd degree burns to her body by the time they broke through the wall. I accept they could not save the child because the fire had spread quickly. I also conclude that the accused was the last person inside the house with the child and that he had left and locked the child in after the fire had started from inside.

The inferences are open that he deliberately set the house on fire. Even if the fire may have been accidentally started as suggested by defence, this does not alter my conclusion that the accused was still inside the house when the fire started and that he came out without the child. Either way, it is open to conclusion that the accused intended to cause the deceased, grievous bodily harm by leaving the child behind in a burning house and that he is guilty of murder under s. 300 (1) (a) of the Criminal Code. I find him guilty and convict him of murder under that provision. He might well be caught under s. 300 (1) (b) but the evidence in my view supports a conviction under s. 300 (1) (a) of the Criminal Code.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: A/Public Solicitor