N6468
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 799 OF 2016

THE STATE

V

EVODIA BANAKATO KAUKESA

Kerema: Koeget, AJ
2016	:    9th, 10th, 15th June

CRIMINAL LAW-When accused pleads guilty to charge of Arson after arraignment, and such plea is inconsistent with explanations in the record of interview with police investigators and instructions to counsel, application to change the plea to not guilty can be made under section 563 of the Criminal Code Act.

CRIMINAL LAW - Where accused raises defence of Accident under section 24 of the Criminal Code Act, the State has the onus to negotiate the defence by oral evidence.

INTRODUCTION:

The accused was charged with one count of Arson under section 436(a) of the Criminal Code Act and she initially pleaded guilty to the charge, but Defence counsel objected to my recording of a plea on the basis that the plea was contrary to instructions received from client and the accused made no admissions when interviewed by the police investigating officer regarding the commission of offence.

The defence counsel made an application under section 563 of the Criminal Code Act to change the accused’s guilty plea to not guilty because she raised the defence of Accident under section 24 of the Criminal Code Act.  The application was granted and a plea of not guilty recorded so a trial proceeded.  

FACTS:

On 24th September, 2015 between 2’0 clock and 3’0 clock in the afternoon, the accused was in a dwelling house belonging to PNG Power Ltd located at PNG Power Ltd Compound in Kerema town.  The accused’s husband is an employee of PNG Power Ltd in Kerema and she resides in that house with her husband and immediate family members.

It is alleged that the accused and husband had long standing domestic disputes and the latest of this is the husband having sexual affairs with her younger sister and she is pregnant.

The State alleged that on the 24th September, 2015 the accused wrapped herself with old mattress in the dwelling house she resided in and set the mattress alight.  The prisoner’s two young children alerted the neighbour and the accused was rescued but the fire was not extinguished.  The dwelling house was completely guttered by fire and the State further alleged that the accused set the dwelling house on fire and she had no lawful excuse to do so.

HELD:

(1)	Where an accused pleads guilty to the charge of Arson under section 436 of the Criminal Code Act after arraignment, and the plea is inconsistent with explanations to the police investigation officer in the record of interview and instructions to counsel, an application to change the plea can be made under section 563 of the Criminal Code Act.

(2)	Where accused raise the defence of Accident under section 24 of the Criminal Code Act, onus is on the State to negative the defence by oral evidence.

(3)	In a trial State has the onus to prove beyond reasonable doubt that accused willed or intended to set fire to the building or structure whether complete or not under section 436 of the Criminal Code Act.

Cases cited:

The State –v- Ipu Samuel Yonke [1992] PNGLR 261
The State –v- Soye Wasia Bukere – N1848

Counsel:

D. Mark, for the State
B. Popeu, for the Accused

EVIDENCE FOR THE STATE

15th June, 2016:

1.	KOEGET, AJ; At the commencement of the trial, the State tendered into evidence the record of interview between the accused and the police investigating officer (both Pidgin version and English translation) as there was no issue with allegations that:

(a)	a dwelling house located in Kerema was completely guttered by fire.

-	the house belong to PNG Power Ltd and the accused and family resided in that house up to the date when it was guttered by fire.

2.	At first instance, it appeared that the issues for the court to resolve in the trial were the identity of the person that set the dwelling house on fire on the afternoon of 24th September, 2015 and the defence of Accident raised by the accused under section 24 of the Criminal Code Act.  However, in the trial further issues of location and ownership of the dwelling house arose.

3.	The State witness Lavinia Alex stated on oath that she resides with her immediate family members at the PNG Power Ltd compound in Kerema as her husband is an employee of PNG Power Ltd.  The family resides in a PNG Power Ltd house next to another PNG Power Ltd house occupied by the  accused with her immediate family members. 

4.	She knows the accused well as both are good friends for a long time and she is aware that the accused does not live peacefully with her husband because they are seen arguing and fighting daily in their house and in public places in Kerema town.  In most cases the accused sought comfort from the witness and her husband.

5.	She recalls on 24th September, 2015 between 12 mid-day and one o’clock in the afternoon, she was in her family house watching movies on a laptop belonging to her family.

6.	Her attention was attracted by the two young daughters of the accused screaming for help on the verandah of their house.  She went outside the house, looked in the direction of the accused’s house and saw the two young children calling out for help.  She asked the children where their mother was and both replied “inside the house”.  She ran up to the house pushed open the door and saw the accused inside the house wrapped with burning old mattress.  She pulled the accused away from the burning mattress and took her to the verandah then down the steps to the ground.  She could not go inside the room as the fire was big and there was no one to put it off.

7.	This evidence is contradicted by the evidence of the second State witness Mokoko Hova.  This witness resides with a relative in a house located at the PNG Power Ltd compound in Kerema.

8.	On the morning of 24th September, 2015 between 8 o’clock and 9 o’clock, he was in his relative’s house when his attention was attracted by people outside shouting “fire, fire, fire” so he ran outside and stood on the ground.   He saw people at the Kerema Airport terminal pointing to a PNG Power Ltd house located on the hill so he ran up to that house.  When he arrived at the house, he realized it was occupied by Koni and family.  He saw Koni come outside of his house with a burning mattress and threw the burning mattress down to the ground from the verandah.  He saw Koni spoke angrily to his wife so he returned to the relative’s house.  

9.	The witness stayed in the relative’s house for some time then later went with wife and child to watch basketball competition at the basketball court.

10.	Between two o’clock and three o’clock in the afternoon he saw thick black smoke rising from the direction of the PNG Power Ltd compound so he ran on and when he arrived at the PNG Power Ltd compound, he saw Koni’s house guttered by fire so he stood and watched for sometimes then return to the basketball court to watch the games.

Evidence for the Accused

11.	The accused Evodia Banakato Kaukesa, stated on oath that she is married to Koni Banakato Kaukesa, an employee of PNG Power Ltd in Kerema town.  She lives in a house provided to the husband by PNG Power Ltd in Kerema town.  The house is located in the PNG Power Ltd compound and she lived in that house with her husband for over fifteen years.

12.	She lived unhappy life with the husband as he was in the habit of accusing her of committing adultery with men she did not know.

13.	She recalls her husband married a second wife and had a child.  That female lived with them in the same house for several years then left to live with relatives.  Her marital problems are further compounded in recent times because the husband had relationship with her younger sister who resides with them in the same house and she is expecting a child.

14.	On the morning of 24th September, 2015 she had argument with the husband and was badly assaulted.  

15.	Between 8 o’clock and 9 o’clock in the morning she wrapped herself with an old mattress and set it alight.  Then her husband removed the burning mattress and threw it from the verandah down to the ground.  He spoke angrily to the accused and warned her not to repeat it or else he will cripple her.

16.	When the husband left for work, she remain in the house with the two young daughters.

17.	She stated:

“I was feeling sad, sorry for myself.  I wanted to burn myself, so wrapped with the same mattress inside the room and set the mattress alight.  I wanted to kill myself.

I heard two young children calling, Aunty Lavinia, Aunty Lavinia and one of the child called out to me and said “mummy if you die there will be no one to care for both of us.”

At that instance Lavinia Alex kicked open the door, pulled the mattress of myself and pulled me outside the house.  She threw the mattress outside of the house.”

18.	At that point the dwelling house was in flames so the accused went to the Kerema Police station and surrendered to the police.

19.	At the close of the defence case, both counsel made oral submissions to court.  There was no dispute that a dwelling house was completely guttered by fire on 24th September, 2015.  The main threshold of the argument advanced by defence counsel is that, although, there is evidence from State witness that the accused wrapped herself with old mattress and set it alight in the room, the accused had no will or intention to set the dwelling house on fire.  She wanted to commit suicide that day.  She wanted to kill herself, so if pieces of burning mattress were left inside the room that eventually caused the fire to burn down the dwelling house, it occurred independently out of the will or intention of the accused.  The accused by evidence raised the defence under section 24 of the Criminal Code Act and so the State had the onus to negative the defence.  In this case the State has not negative the defence raised by the accused.

20.	The State Prosecutor conceded that there is ample evidence in the trial that the accused intended to commit suicide and kill herself, because of the unhappy married life she had with her husband.  The accused did not intend to set the dwelling house on fire and so the defence of accident was available to her.

LAW:

21.	The accused is charged that on 24th of September 2015 at Kerema town, Gulf Province in Papua New Guinea willfully and unlawfully set fire to a building namely a dwelling house, the property of PNG Power Ltd.  The charge is laid under section 436(a) of the Criminal Code Act.

Section 4365(a) of the Criminal Code Act states:

Arson

“A person who willfully and unlawfully sets fire to a building or structure, whether completed or not; 

is guilty of a crime.
Penalty: subject to section 19, imprisonment for life.”

Analysis of Evidence in the trial.

22.	There is no dispute that the accused was badly assaulted by the husband on the morning of 24th September 2015 and so she wanted to commit suicide.  She wrapped herself with an old mattress in the room and set the old mattress alight.  She intended to kill herself as she lived an unhappy marriage life with the husband for over fifteen years.  

23.	There is ample evidence from the State witnesses and the accused that on the morning of 24th September, 2015 she wrapped herself with an old mattress in the house and set it alight.  The accused’s husband, a Koni Banakato Kaukesa intervened and removed the old burning mattress and threw it down to the ground.  This was the first attempt for the accused to commit suicide that day.

24.	On the second occasion, the accused wrapped herself with the same old mattress and set it alight inside the house.  Then the State witness Lavinia Alex intervene by removing the old mattress from the accused and took the accused to the verandah and then down to the ground.  She saw there were big flames inside the house.

25.	However, there is no evidence of the allotment and section numbers of the house to show the exact location of it in Kerema town.  Furthermore, there is no evidence of a Survey Plan/Map to show where the PNG Power Ltd compound is located in Kerema town and there is no evidence of title documents to show that the dwelling house belong to PNG Power Ltd as alleged in the indictment.  The State did not produce photographic evidence of the dwelling house on fire or even the structure of the dwelling house after it was burnt down by the fire.

26.	So I find that there is no conclusive evidence in the trial that the dwelling house guttered by the fire belong to PNG Power Ltd and is located in Kerema town.

27.	If it is inferred that some pieces of burning old mattress may have fallen in the house and caused the fire that completely guttered it, then the accused is responsible for that fire.  

28.	However, such an inference is inconsistence with the requirements of section 436 (a) of the Criminal Code Act under which provision the accused is charged.

Section 436 states:

“A person who willfully and unlawfully sets fire to –

(a)	a building or structure, whether complete or not;

is guilty of a Crime”.

So elements of the offence are:

(a)	a person,
(b)	willfully and unlawfully,
(c)	sets fire,
(d)	to building or structure,

29.	The first and last elements of the offence charged are established on oral evidence as the accused is a person and a dwelling house was guttered by fire.

But the second and third elements of the offence are not established by oral evidence in the trial.

30.	There is evidence that the accused wanted to commit suicide and kill herself when she wrapped herself in the old mattress inside the house and set it alight.  She had no intention to set the house on fire.  

31.	If some pieces of the old burning mattress fell out as it was removed out of the house by the State witnesses, and the burning pieces of mattress caused the fire inside the house, then the burning down of the house occurred independently out of will or intention of the accused.

32.	The accused raised the defence of Accident under section 24 of the Criminal Code Act.  

Section 24 of the Criminal Code Act states:

“Intention:  Motive.

(1)	Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for –

(a)	an act or omission that occurs independently of exercise of his will; or
(b)	an event that occurs by accident”.

33.	The State conceded that there is no evidence that the accused intended to set fire to the dwelling house and she actually set the house on fire.  A likely inference drawn is that when the State witnesses remove the old burning mattress from inside the house, some pieces fell out and caused the fire that guttered the house.  The accused did not set the house on fire.  It was accidently the house was set on fire.

34.	The finding of the court is that the accused did not set the dwelling house on fire on 24th September, 2015.  There is possibility that the fire inside the house could have started from the pieces of burning old mattress when removed outside of the house by the State witness.  So that the burning down of the dwelling house was accidently as it occurred independently out of the will or intention of the accused.  The State did not negative the defence of accident raised by the accused.

VERDICT:

35.	The verdict of the court is that the accused is found not guilty of Arson under section 436(a) of the Criminal Code Act.

ORDERS:

(1)	The accused is acquitted of the offence of Arson and is discharged from the indictment forthwith.

(2)	The bail money is refunded to her.

Accordingly Ordered.
________________________________________________________________
Public Prosecutor	: Lawyers for the State	
Public Solicitor 	: Lawyer for the Defence