N4552

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 925 OF 2010

THE STATE

V

JOSEPH FRON

Lae: Batari, J
2011: 8 & 9 December

CRIMINAL LAW - Evidence – Sufficiency of – Alibi Defence – Proof of – Onus on state to discharge alibi defence beyond reasonable doubt - Onus of proof not discharged

CRIMINAL LAW – Practice and Procedure – self-incrimination – evidence of – need to apply caution where information given could expose witness to criminal conviction
 
Cases Cited:
Papua New Guinea Cases

John Jaminan v. The State (No. 2) [1983] PNGLR 318
The State v John Bosco (2004) N2777
The State v Noutim Mausen (2005) N2870
SCR No 2 of 1990; Re s333 Income Tax Act 1959 (Amended) [1991] PNGLR 211
Erebebe & Togote v The State (2 December 2011)(Unnumbered SC Judgment)

Overseas Cases Cited

R v. Gray [1965] Qd R 373; 
R v Turner [1966] QWN 44.

Counsel:

Ms. N. Lipai with Ms. L. Kleinig, for the State
Mr. W. Neil, for the Accused

VERDICT

9th December, 2011

1.	BATARI, J:	 The accused, Joseph Fron stands charged that between 1st July, and 25th July 2004 at Lae, he conspired with others to willfully and unlawfully set fire to a building namely, Live Lave Distributing Depot. The charge is preferred under s. 515 of the Criminal Code.

2.	A second count charged on the same indictment is that, on the evening of 25th July, 2004 Joseph committed the offence of arson contrary to s. 436(a) of the Code. This charge stems from the conspiracy allegation and the destruction by fire of Live Lave Distributing Depot premises located at Chayters Avenue, at Eriku, Lae.

3.	The prosecution says the accused is guilty of both counts as a principal offender under s. 7 of the Code.

4.	These charges are denied by the accused on a defence of alibi that, at all material times, he was at Madang and not in Lae.

5.	So, the issues for determination, turns on the alibi evidence and the strength of the prosecution's case. The accused cannot be at two places at the same time. Only one of the two versions can be accepted as reliable and highly probable as both cannot be true. The issues can be stated thus:

i.	Whether there is evidence of alibi led by the accused that is sufficiently convincing to create a reasonable doubt.

ii.	Whether prosecution has adduced evidence the strength of which is such as to disproof the alibi defence beyond reasonable doubt.

iii.	If so, has the prosecution adduced sufficient evidence to discharge the onus of proving the offences of conspiracy and arson against the accused, beyond reasonable doubt?

6.	I bear in mind in cases where the defence of alibi is raised that, the onus is never on the accused to prove his or her alibi or innocence. The accused need only raise the alibi on the balance of probability before the onus shifts to the prosecution to disprove it beyond reasonable doubt. 

7.	If the alibi is rejected, the prosecution is not thereby relieved of its burden of proof. The Court must still be satisfied of the guilt of the accused on the requisite standard of proof. In John Jaminan v. The State (No. 2) [1983] PNGLR 318 the Supreme Court sets out settled principles to be followed in dealing with alibi defence. The key features of those principles were recently affirmed in Alois Erebebe & Taros Togote v The State (2 December 2011) SC 1135 (Cannings J Kariko J Kassman J) as follows:

•	If an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence. However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the judge.
 
•	How strong or convincing the alibi evidence must be, depends on the strength of the evidence of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused.
 
•	An alibi is properly regarded as a defence but before it can be said to fairly arise there must be some evidence in support of it, and not mere speculation.

•	If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt. 

8.	See also, instructive guides in dealing with alibi defences usefully set out by Lay, J in The State v John Bosco (2004) N2777 and Cannings, J in The State v Noutim Mausen (2005) N2870

9.	The State's case in this trial is based on the oral testimony of Judas Kone. He is the only principal witness the State called to give evidence. Documentary evidence in the form of; Record of Interview (Pidgin and English) Police conducted with the accused on 30th December, 2009; statements from the two investigators who conducted the record of interview; and an internal report on the fire from the Acting Provincial Commander of the PNG Fire Service in Lae to the Fire Service Chief Fire Officer at the Headquarters in Port Moresby; are also in evidence to support the prosecution case.

10.	I pause here to deal with an important procedural issue of witness self-incrimination that arose during the trial. Judas Kone gave self-incriminating testimony as an accomplice. Despite caution, he continued unheeded to thoroughly implicate himself. The risk of self-incrimination for him is real and appreciable. In practice, the judge or counsel usually warns a witness who is about to enter the danger zone if the incriminating tendency is apparent: R v. Gray [1965] Qd R 373; R v Turner [1966] QWN 44. Here the witness stands to be charged with the same offences of conspiracy and arson on his admissions. 

11.	Privilege against self-incrimination is akin to the right to silence. For that reason and for his own protection against self–incrimination under s 37 of the Constitution, he was cautioned by the Court. On this point, it is instructive to heed and follow what the Supreme Court in, SCR No 2 of 1990; Re s333 Income Tax Act 1959 (Amended) [1991] PNGLR 211 (Kidu CJ, Kapi DCJ, Amet J, Hinchliffe J, Salika J), stated:

"Another fundamental right in the criminal process, either prior to being charged, after being charged or at the time of trial is the right to silence and right against self-incrimination, which are embodied in s 37 (10), and reinforced by s 37 (4) (a). A procedure which compels or obliges an accused person to file a "defence" prior to the trial in court or to give "further and better particulars of the defence" or to give "discovery" or to "answer interrogatories" is in contravention of the right to silence and right against self-incrimination. Such procedural requirements relate to civil suits and are foreign to a criminal prosecution."

12.	There is no indication if Judas Kone has State protection. If he has, serious questions must be asked as to whether he will assist the State to charge and prosecute those other persons he has named in his sworn evidence including a white lady he named as 'Meka Wati' who gave him and his accomplices reward money of K15, 000.00 each or a total of K75,000. He also implicated Papindo Company management when he spoke of reward money being paid to him and others at the company head office and the use of the company vehicle to commit the offence of arson. 

13.	The evidence suggests collusion, corruption and criminal acts of high proportions involving corporations and individuals. Such allegation, if true, poses a very serious issue of security and threat to the rule of law and the administration of justice. Those implicated are liable to be investigated and prosecuted. It is equally important in the interest of justice that, companies and individuals implicated have the opportunity to clear themselves. 

Hence, I recommend that, relevant enforcement authorities take appropriate steps to investigate and prosecute those implicated. 

14.	Returning to the evidence of Judas, he testified that, on a Thursday in July 2004, a meeting was arranged for a Mote, Kelly, Suo and him to attend on the evening of the following day being, Friday at Lae Football Association Club (LFA Club). The accused attended the meeting and introduced himself then as Ricky. That was also the first time that he met the accused who later told him his names, Joseph Fron. The accused told Judas and the others at the LFA Club meeting a plan to burn down Live Lave Distribution Depot for substantial reward. That meeting he said was held some two (2) weeks before 25th July, 2004. On the next day after the meeting, the four of them together with the accused went to Papindo Head Office, Lae and were each handed K15, 000.00 in cash by a 'Meka Wati'.

15.	On 25th July, 2004 he and the others drove to the premises housing Live Lave Distribution Depot in two (2) vehicles, armed with kerosene container, empty card-boards and matches. He described one of the vehicles as a white double cab owned by Papindo Company and driven by the accused.

16.	At the scene, they placed the card-board against the external wall of the building and poured kerosene. The card-board were then lit resulting in destruction of the building by fire.

17.	The documentary evidence is of little assistance to the prosecution case. The Record of Interview contained general denials while the investigating officers' statements are repetitious rhetoric on the conduct of the interview with the accused. On the other hand, a report from the PNG Fire Service is the only documentary evidence of some worth. It is an investigatory report prepared in 2004 shortly after the incident for internal use. The report refers to an interview with the Live Lave Distribution Depot Manager, Namarino Lavusave who stated that the fire may have started in the middle of the building where the kitchen was located. 

18.	That evidence is in direct contradiction to the version by the principal witness, Judas Kone. It is significant that at the hearing yesterday, Namarino Lavusave gave contemporary evidence for the defence, repeating in close detail, what he had told the fire investigators in 2004.

19.	In response to the State's case, Joseph Fron gave oral testimony and called evidence from six (6) witnesses to support his alibi and general defence that, at all material times, he was a resident employee of South Pacific Brewery (SP Brewery) based in Madang. He also relies on documentary evidence comprising, a "Letter of Offer" (of employment) dated 24th September 2002, "Transfer Letter" dated 11th April 2005, "Appointment Letter" dated 11th July 2006, Accommodation Invoice/Receipt for his official trip to his Head Office in Port Moresby from 11th to 13th January, 2010 following his arrest.

20.	His story is that, in September or October, 2002 he commenced work in his current employment with SP Brewery in Madang. This is confirmed by his letter of offer of contract of employment on an SP Brewery Letterhead dated 24th September, 2002 and marked as Exhibit D1. In 2005, he was transferred out of Madang to Lae as Sales Merchandiser effective from 11th April 2005 and affirmed by the letter of transfer in Exhibits D2. Whilst in Lae, he was promoted to the position of Sales Representative in 2006. This is affirmed by Exhibit D3 letter of appointment.

21.	Whilst in Madang between 2002 and 2005 the accused says he did not hold a driver's license and did not know how to drive. This is affirmed by his immediate supervisor then, Lowa Boe who also gave evidence confirming the recruitment and commencement of employment of the accused at Madang SP Brewery branch or sub-depot. Lowa confirmed the accused was in Madang in 2004 and gave good character evidence of his work habits and commitment. He knew him then as the person who would not stay away from work without leave or take long week-ends off. He was not aware if the accused had taken long week-end off in July, 2004.

22.	The accused further asserts in his evidence that, he did not go to Lae anytime in July of 2004 except for the company Christmas party which he attended at the end of the year. On 25th July he attended church in Madang in the morning as that was a Sunday. In the evening, he attended his group Church Fellowship meeting. 

23.	The anecdote of his infatuation with the Christian faith is supported by his sister, Julie Fron who was then residing with him at Madang. Julie said her brother was in Madang on 25th July, 2004 and attended church that Sunday. She remembers that because it was a special Sunday being the last Sunday of the month and that she did not attend church that time.

24.	Further support of Joseph's alibi comes from James Yando who spoke passionately of knowing Joseph as a committed church goer. They serve in the same Fellowship Group in Madang in 2004. He also recalls attending a fellowship meeting together with Joseph on the evening of 25th July, 2004.

25.	In the upshot, Joseph has, in the conduct of his defence, set up an incontrovertible alibi defence, giving a clear impression of an onus being on him to prove his alibi or his innocence. That is never the law. If that were to be so, it will offend against the right to presumption of innocence until proven guilty according to law under s. 37 (4) of the Constitution.

26.	I am satisfied that the accused has fairly raised his alibi defence on the balance of probability. Whether it stands the test of, "strong and convincing alibi" depends on the strength of the prosecution witnesses.

27.	The only evidence against Joseph's alibi is the testimony of Judas Kone that the two of them were together on a Friday and a Saturday some two (2) weeks prior to the incident of 25th July, 2004 and again on the date of the incident when he (accused) drove the Papindo Company vehicle to execute the planned arson.

28.	Notably, the State has not called direct evidence to rebut the alibi defence. Prosecuting Counsel, Ms Lipai has merely critiqued witnesses' recollections of specific dates some 7 years ago and submitted that the evidence is unreliable in the absence of points of reference. 

29.	There is some merit in that submission. It is however, not fatal. Any such anomaly is lost in the whole of the alibi evidence and the requirement that it is not for the defence to prove his alibi. I am satisfied that the accused has fairly raised his alibi defence. The onus is on the prosecution to adduce very strong evidence against it. There are glaring missed opportunities for the prosecution to do that and I refer to some of them:

•	In adducing character evidence, the accused has put his character and reputation on the line. This was not contested so, it is open to inference that he is a good, reliable Christian person who was unlikely to engage in criminal activities as alleged.

•	The assertion of being unable to drive and not licensed to drive in 2004 could have easily been cross-checked with the Traffic Registry records and refuted if he in fact was a licensed driver. 

•	Police could have also checked and give evidence on his church and fellowship membership with the local Catholic Church he claims he was associated with in Madang in 2004. 

•	Police could have also checked for any account transactions and show tangible evidence on Joseph's receipt of reward payment at Papindo head office to show he was in Lae and to confirm his involvement in the commission of the offences alleged.

29.	I also find it incredible that Joseph Fron would, without evidence of any pre-existing relationship with Judas Kone, arrange and meet with him, a total stranger, to plan and execute a very serious crime which could land him in a lot of strife and possible imprisonment for life or for a very long time. One would have thought that, in cases like this, accomplices would hold close to their hearts, the trust and reliance on each other's confidentiality to ensure success of their evil enterprise. The circumstances for that trust and confidence are not in evidence. And common sense dictates that one does not enter into this kind of deals with strangers. 

30.	And if the accused was known to Judas, why did he (Judas) wait five years to report his involvement. And what is the circumstance of his reprieve to give evidence against someone who, according to his evidence, is merely a middle man to the principal planner and mastermind behind the destruction of the Live Lave property. 

31.	Furthermore, the offences arose in 2004. Joseph was arrested in December 2009. The lack of explanation for the long delay in charging the accused is simply deafening. It begs the issue of proper and professional investigation of the charges against the accused. There was opportunity to concoct evidence and the prosecution has not dispelled that possibility.

32.	The strong suggestion of Papindo Company being behind the arson offence is also fascinating. Joseph Fron was employed with SP Brewery in 2004. He was not an employee of Papindo Company. What has him or SP Brewery to do with Papindo Company? Where is the connection between Joseph Fron and Papindo Company? If the destruction of the Live Lave Distribution Depot was an attempt by SP Brewery to kill-off a business rival, then it would make no sense that Papindo Company would be dishing out a hefty K75,000.00 reward money for a criminal act that may well result in all manner of strife for the latter company.

33.	What's more, it would make no business sense for SP Brewery to use one of its Madang employees in mid 2004 to commit a crime in Lae and then, shortly the following year, have the same employee transfer out of Madang to Lae at the risk of the employee being caught and 'spilling the bean' against the company.

34.	In the end, the State has not discharged the alibi defence on the required standard of proof beyond reasonable doubt. The evidence is also so lacking in weight; it cannot sustain a lawful conviction.

35.	I find Joseph Fron not guilty on the conspiracy and arson charges. He is formally acquitted and discharged forthwith. 

___________________________________________________________
Public Prosecutor: Lawyer for the State
Blake Dawson Lawyers: Lawyer for the Accused