N5265

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1124 & 1125 OF 2010

THE STATE

V

SOLOMON PENI & DOREEN PENI

Kavieng: Batari, J
2012: 19, 20, 24 & 25 July

CRIMINAL LAW – Evidence – arson – accused allegedly aided and abetted setting of two homes on fire – defence –identification – circumstances of – defence –general denials – onus of proof – onus on State to rebut defence of general denials beyond reasonable doubt - State to prove beyond reasonable doubt guilt of accused – onus not discharged.

Cases Cited

R v Uno Tam & Maru U'u [1973] No. 766
State v John Beng [1976] PNGLR 481
The State v. Alex Ape (2004) N2703

Counsel

J. Done, for the State
M. Maraleu, for the Accused

VERDICT

27 July, 2012

1.	BATARI J: The accused persons are in court upon indictment charging them with two counts of arson following the destruction of two homes by fire at Ungan village, Kavieng, New Ireland Province. Prosecution alleges that Solomon and his sister Doreen aided and abetted others in the commission of the offences and hence, are guilty as principal offenders under s 7 of the Criminal Code. They have each denied the charges in their general denials. 
 
2.	The issues from the common and disputed facts are:

(i)	Whether Solomon Peni was present at the time the residence of Banos Patil was set alight.

(ii)	Whether Solomon Peni was present and provided petrol to set the home of Onglu Mark Patil on fire.

(iii)	Whether Doreen Peni was present and encouraged the commission of the two arson offences.

Uncontested Facts

3.	The common facts are that, on or about 1/1/10, between 12.00 midnight and 1.00am, a Timothy Langa confronted Banos Patil at his home and challenged him to a fight. A larger group then joined him on a rampage, destroying properties belonging to the Patil family. They broke down a kitchen house and damaged kitchen utensils at Banos Patil's home. They moved onto the residences of Joseph Patil, Alfred Patil and Onglu Mark Patil. The damaged properties included houses, copra dryer and canoes. The homes of Banos Patil and Onglu Mark Patil were then set alight. The main perpetrators were named as, Timothy Langa, Mark Frank, Elizah Philip and Paska Levai. Solomon Peni and Doreen Peni are also named as being part of the raiding party. Many others were not named or identified.

4.	The Ungan Island community regarded the Patil brothers as unsociable and trouble-makers. Their general unfriendly conducts and lack of consideration for others had been constant source of unrest, anxiety, fear and animosity in the community prior to the incident in question. This unfavourable view of the Patil brothers is partially conceded by those who gave evidence for the prosecution.

5.	Prior to the incident, the Peni family of which Solomon and Doreen are two of the five male and four female siblings were involved in a church crusade at the nearby, Nonovaul Island. The church activity was organised by the family. One of them, Agedalia Peni and a Pastor Morris of the AOG Church spoke at the main events. On the New Year eve of 31/12/09 after the church rally, the Peni family gathered with their extended family members, at the Peni home in Ungan for dinner. 

(i).	Contested Evidence of Identification of Solomon Peni at Banos Patil home.

6.	The first victim witness for the State, Banos Patil testified that on the night in question, he was awoken from his sleep by noisy celebrations at the Peni family home. The noises were consistent with a drinking party. Then he heard a voice he recognised as that of a Langa's son calling him out to fight. Langa is one of the Peni brothers. He also heard Doreen Peni urging others to set his house alight with petrol. Doreen was in the company of 5 boys. There were others he could not recognise. They attacked his properties before setting his house on fire. Banos also spoke of seeing Solomon in the light from the two burning properties. He described him as wearing dull coloured shorts and a T-shirt, but conceded being unable to see the clothes clearly.

7.	The evidence of State's second witness, Alfred Patil suggests that Solomon joined the unruly mob a little later. He saw Solomon after the mob left Banos Patil's area and were at Joseph Patil's house. When the mob entered his area, he stood some 10 metres away and told them to stop and leave. He recognised Solomon and described him as wearing blue jeans and a Guria jumper. 

(ii)	Contested Evidence of Identification of Solomon Peni at Oglu Patil home.

8.	The State's third and last witness, Onglu Mark Patil gave evidence of being awoken from his sleep at midnight of 31/12/09 by noises from a big party at the Patil family home. He then heard Timothy Langa, Mark Frank, Philip Elijah, shouting 'Happy New Year' and shortly after, Timothy called Banos to come out and fight. That call was repeated by the accused Doreen. The mob proceeded to damage the home of Banos and as the noises grew louder, he saw the crowd moving towards his area. He sat from 8 – 10 metres and recognised under the moonlight, Timothy Langa, Mark Frank, Philip Elijah and Paska Levai. He also saw, Solomon Peni carrying a black plastic container which he assumed to contain the incinerator liquid used to burn his home. With the others, Solomon damaged his house before setting it on fire. 

Solomon's Defence 

9.	In his defence, Solomon testified, that at the end of the family retreat at Nonovaul Island, he ferried participants back to Ungan Island by dinghy. He made the last trip at about 8:00pm for his own family. Upon arrival he immediately retired to bed, exhausted from the day and night programme activities. Later in the night, his wife woke up to attend to their sick child. She also woke him up and alerted him to the fire at Banos' residence. He saw the fire burning towards the island community tuffa tank and ran there to save it. The tank was filled with water and heavy. Then a 
Alu Kevan came on the scene and helped him to topple and rolled the tank to safety.

10.	Solomon's wife, Priscilla Peni gave a consistent version supporting his story.

(iii) Contested Identification evidence against Doreen Peni.

11.	State witness Banos Tapil testified that while Langa was challenging him to a fight, Doreen shouted from the back of his house not to waste time but to get petrol and light his house. He heard and recognised Doreen's voice making that threat about 4 times. He also spoke of Doreen boasting she was a 'Rambo' from the city. 

12.	The witness saw and recognised Doreen and Solomon in the moonlight and under the light from the burning houses. He named the others apart from Langa as, Mark Frank, Elijah Philip and Walter. He could not see the many others who were hurling stones and other missiles from some distance away. Banos described the clothes Doreen wore as, a long white trousers and light blue collar T-shirt.

13.	The evidence on the presence of Doreen throughout the incident is similarly given by the two other witnesses, Alfred Tapil and Onglu Mark Tapil. Alfred described the trousers she wore as, white. He could not recall what top she wore. Onglu said Doreen wore trousers with a meri-blouse which half-covered the trousers. He could not recall the colour of the clothes.

14.	In her defence, Doreen testified, that on 31/12/09 the Peni family members gathered at their Ungan Island home following the crusade at Nonovaul Island. She helped prepare dinner and after dinner, she retired to bed with her husband and their four year old son. Before she slept, she set the alarm clock to 11.50pm. At the set time; the three of them woke up and watched youths lighting fire crackers in welcoming the New Year, from a platform outside the house. At around 12.30 am, they heard noises coming from Banos Patil's residence. They next saw Banos Patil's house went up in flames. A short time later, Onglu Patil's house also went up in flames.

15.	Doreen denied any involvement prior to or during the commission of those two arson offences. She denied being present at the scene or encouraging others to set the houses on fire. She called her husband, Wesley Piakolos as her witness.

16.	Wesley Piakolos gave consistent evidence on the movement and whereabouts of his accused wife on the evening of 31/12/09 and the early morning of 1/1/10. He also spoke of the Peni family as being large, responsible and respected in the community. The four boys and five girls in the family come from a Christian background in their father being an ordained United Church Minister with a supportive mother-cum-church elder and a brother church clergy. On New Year eve, the family gathered for dinner at their Ungan home following a church crusade at Nonovaul Island. Wesley also spoke of there being no alcoholic drinks served. 

Basis on which Identification Evidence is assessed 

17.	When the issues on trial turn on the question of identification, I bear in mind that mistakes had been made in the past, even in purported recognition of a close relative or friend. The case of R v Uno Tam & Maru U'u [1973] No. 766 usefully suggests a number of considerations as a guide to determining reliability of the identification witness:

(i)	How long the person being identified was under observation;
(ii)	The type of lightings under which the identification was purportedly made;
(iii)	The distance from which the identification was made;
(iv)	Anything peculiar about the person being identified that impressed itself upon the witness;
(v)	Any special reason for remembering the person;
(vi)	How long afterwards was the witness asked about the person seen;
(vii)	How the description then was compared with the appearance of the accused.

18.	In State v John Beng [1976] PNGLR 481the court emphasised that: 

"When identification relied upon is that of a single witness it is proper that a jury should be informed that the identification was critical, and that the mistakes have in the past have occurred in regard to identification thereby occasioning a miscarriage of justice, and that they should be satisfied that the witness was not only honest but also accurate in the evidence he gave. Matters to be taken into account are: what opportunity the person identifying had to form a judgement on the identity of the person who committed the crime – the position of the parties when the identification was made, the lighting, the opportunity to form the judgement, and generally the circumstances as to the identification."

19.	Accepting that the identification evidence in this case, implicates the accused persons as to their presence and participation, the question remains whether the State has proven its case against them beyond reasonable doubt. This standard of proof in a criminal offence enhances the constitutional presumption of innocence until proven guilty in a court of law. The high requirement for proof of guilt does not mean that the State has to prove every single fact in the case beyond reasonable doubt. What the onus requires of the prosecution is to prove each element of the offence charged, beyond reasonable doubt.

Submissions and Reasons for Decision

20.	Prosecuting Counsel, Mr Done submits that the prosecution has adduced more than sufficient evidence to establish the presence of both Solomon and Doreen at the scene. They have been positively identified, by voice recognition and by actual observation of him or her from very close quarters, under plenty of lightings. Counsel further contended that the identification by the witnesses was in fact recognition of someone well known to the witnesses. Each witness had recognised a person he had previously known and grew up together from his same village. This enhances the reliability of the witnesses, there is no room for mistaken identification.

21.	I agree there is evidence implicating both accused persons. That evidence is in the form of voice recognition and personal recognition. It establishes a strong prima facie evidence against Solomon and Doreen. 

22.	If that is all the evidence before the Court, I would have had no hesitation finding a case against them. However, there are two other aspects of the evidence I must consider; the first is the quality of the identification evidence. The second is the considerations and weighing up of all the evidence before the Court at the higher standard of prove beyond reasonable doubt. 

23.	A closer examination of the evidence of recognition shows an apparent flaw in the differing descriptions given of the clothing worn by Solomon and Doreen, respectively. I accept the contention by Defence Counsel, Mr. Maraleu that the different descriptions of the clothes worn by the accused persons are so far apart they cannot amount to positive identification. State witness, Banos Tapil described Solomon as wearing dull coloured shorts and T-shirt. His assertions are that he made the observations from a close distance under plenty of lightings from the moon and the burning houses. When pressed for detail, he conceded being unable to see the clothes well. This is extraordinary. He either had poor eyesight. Or, his observations at close quarters were made under poor lightings and for a brief moment. 

24.	State Witness, Alfred Patil described Solomon as wearing blue jeans and a Guria jumper top. I think the jumper top is in reference to a rugby league outfit for Kokopo based Guria Rugby League Club. This witness gives a different description of the clothes to that of the first witness. A blue jean, which is synonymous with long trousers, cannot be the same clothing described by the first witness as, dull shorts. And a rugby league jumper usually stands out for its club colours feature. The difference between a jumper and a normal T-shirt is easily discernible under good lightings. It may be that the witnesses are unsure, or they cannot clearly recall the clothes or they are possibly not describing the same person because no one can be wearing different sets of clothes at the same time. That is common sense.

25.	Furthermore, the clothes description by Alfred Tapil is a suspect. It is remarkably consistent with the clothes type put the State witness, Banos Tapil in cross-examination. Alfred gave his evidence the next day after Banos. I think Alfred tailored his evidence to be consistent with the defence's version. Had he given specific details of the jumper like the colour, whether it was long or short sleeved, and any other special feature that made the jumper stand out as a Guria jumper, this would have improved his credibility. 

26.	His demeanour lessened when he somewhat nonchalantly gave an incredulous timing of 1 or 2 seconds for the length of time he observed Solomon. One has to be superhuman to make any positive identification in a blink of the eye! Even so, this suggests his sighting and recognition of Solomon was made within a very short space of time, consistent with a fleeting glance.

27.	Besides, this same witness had earlier informed the police that he saw Solomon burn the two houses. However, in court while conceding that prior inconsistent statement, he asserted the opposite that he did not see Solomon burn the properties. He then illogically said in cross-examination that both his statements are true. That confusion has remained unexplained at the end of the evidence. So, it is open to inference that Alfred Patil is uncertain about the events of the night and consequently, he is not a reliable witness. 

28.	As against Doreen, Witness Banos Tapil described her as wearing long white trousers and light blue collar T-shirt. Witness Albert Tapil also described her as wearing white long trousers. He could not recall the type or colour of the top she wore. The third witness, Onglu described Doreen as wearing trousers and a meri-blouse. The meri-blouse was long, it half covered the trousers. He could not recall the colour of the clothes.

29.	The apparent striking difference in the versions of clothes Doreen allegedly wore is found in the 'light blue collar T' shirt' and the 'meri-blouse'. A meri-blouse top, synonymous with New Britain and New Ireland traditional wear for women is distinct for its special fashion, make and appearance. There is a vast difference between a meri-blouse and a collar T' shirt. Assuming that the observations in question were made under plenty of lightings and from very close distances as the witnesses spoke of, it is reasonable to expect that the differences between a meri-blouse and a T' shirt would be easily discernible. The evidence is to the contrary. 

30.	Witness Banos said Doreen wore a light blue T' shirt. He had earlier given a different description to the clothes Solomon allegedly wore. He explained that he could not see the clothes properly. This is despite his assertions of making the observation from a very close distance under plenty of lightings. The inference is clearly that Banos was mistaken in his purported recognition of Doreen. The evidence by Onglu that Doreen wore a meri-blouse with long trousers is also a suspect. He could not recall the clothes Solomon wore yet he gave evidence of seeing Solomon and Doreen together at very close distance under plenty of lightings. It seems to me, that his description of the trousers Doreen wore came from the evidence of Banos. Furthermore, there is no reason Onglu cannot recall the colour of clothes Doreen wore. This is compounded by the evidence of Albert Tapil that he cannot recall the top Doreen wore. Albert has no reason to be uncertain because he spoke of observing Doreen from a very close distance on two occasions under plenty of lightings. 

31.	These conflicting descriptions and uncertainties of the clothes the accused persons allegedly wore are not on mere peripheral matters. The accused persons are well known to the witnesses having grown up together in the same village. There is also evidence that both accused persons have lived outside the village for most of their adult working life. The evidence of identification is in the nature of recognition.

32.	When dealing with such evidence, I rely on the warning as restated by Jalina, J in The State v. Alex Ape (2004) N2703 that:

"Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, I remind myself that mistakes in recognition of close relatives are sometimes made. All these matters go to the quality of identification evidence. When the quality is good, the value and the strength of identification evidence is enhanced. When the quality of identification evidence is poor – that is a fleeting glance, or a longer observation made in difficult conditions – the evidence is of little or no value".

33.	The state witnesses are all related as brothers. They were all victims of a community uprising which resulted in damages and personal property losses. There is also evidence of animosity between them and the Peni family. They have their own interests to protect and may give tailored evidence that favour them.

34.	Hence, evidence from independent source is necessary in prosecuting this community based criminal act. There should be no shortage of that evidence from such community leaders as, Village Court officers, (Magistrates, Peace Officers), Council Ward Members, village elders and Church workers. Any one of these leaders should have been summoned to give evidence. Diligent and impartial police investigators in pursuit of justice and the enforcement of the law would have interviewed community leaders and hold them responsible if unwilling to cooperate. A serious criminal act like this in the village cannot simply escape the attention of the leaders. In fact, the identities of the main perpetrators are known as the State witnesses spoke of. For some mysterious reason, only Solomon Peni and Doreen Peni are on trial. This strongly points to conspiracy to pervert the course of justice.

35.	Be that as it may, the defence has set up a strong case that the accused persons were attending a family church related retreat at Nonovaul Island up to the eve of the New Year. There is good basis to support their claim. The parents are United Church workers, the father being an ordained Minister. One of the brothers is also in the church ministry. Besides there is no evidence suggesting the Peni family members are trouble makers or are known for their anti-social behaviour in the community. That eccentricity point to the Patil brothers.

36.	The Peni family crusade at Nonovaul Island is conceded by the victim State witness Onglu Mark Patil who said the retreat ended on the 25/12/09. He testified that on 31/12/09 the Peni family were partying into the night and to the time of the incident. I do not find him convincing. I accept as probable, the evidence of Solomon and Doreen that the crusade ended on 31/12/09 followed by a family dinner. 

37.	The family had two visiting clergy who led the family retreat at Nonovaul Island. I think it would have been normal to hold a formal dinner and more so on New Years Eve. It would also be usual for the gathering to be reflecting on the retreat themes or listening to church choir music as Doreen spoke of. I also take judicial notice of the fact that such gatherings of Christian fellowship groups can sometimes be very noisy and misunderstood. Accepting that as being probable, what would then suddenly turn spiritual passion into demonic hatred and violence?

38.	The onus is on the State to prove beyond reasonable doubt, the unreliability of that defence. The assertions by Solomon and Doreen have not been rebutted by cogent, credible evidence. Evidence should have been called from independent sources to negative the defence assertions and to show, the family crusade at Nonovaul Island did not end on 31/12/09 and that a huge drinking party hosted by the Peni family had preceded the arson offences.

39.	In the end result, I find that the quality of identification evidence is poor. I am further satisfied that the state of the evidence is such that its probative value is reduced by doubts raised on the defence of general denials and the evidence called in support of that defence. Consequently, the State's evidence as it stands is not sufficient to sustain a lawful conviction.

40.	 I find Solomon and Doreen not guilty on both counts of arson. They are both acquitted and discharged forthwith. I also order refunds of their bail monies.

_____________________________________

Public Prosecutor: Lawyer for the State
Mane Isana Lawyers: Lawyers for the Accused