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State v Fabian [2019] PGNC 189; N7929 (22 July 2019)

N7929

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR Nos. 1635 and 1636 of 2016

THE STATE

V

THOMAS FABIAN & ENOS SIMON

Kerevat: Anis J
2019: 15, 16 & 22 July

CRIMINAL LAW – No case to answer – charge – arson – section 436(a) – Criminal Code Act Chapter No. 262 – second limb – whether evidence tenuous and whether the Court should stop the trial

Facts

The two (2) co-accused were charged with one count each for arson. The State had alleged that on 30 April 2016, they had set fire to the dwelling house of one Eliasir Lalu which was situated in Tavaluai Block in Madress in East New Britain. They both pleaded not guilty and the trial proceeded. When the prosecution closed, the defence made a no case to answer application.

Held

1. The second limb does not require the Court to concern itself with inconsistencies between each respective evidence but rather for the Court to consider all the evidence where if considered in totality at their highest and as accurate, would result in a conviction and therefore should require the trial to continue.
   
2. The evidence disclosed by the State, that is, both sworn and tendered, were tenuous, vague and had many uncertainties in them, to an extent that called into question whether the Court should exercise its discretion and stop the trial.
   
3. The Court was inclined to exercise its discretion and stop the trial.
   
4. Both accused were discharged forthwith of their charges.
   

Cases cited

State –v- Paul Kundi Rape [1976] PNGLR 96
State v. Roka Pep (No. 2) [1983] PNGLR 287
State v. Tom Tomugal (2016) N6329

Counsel

Ms J. Batil, for the State
Mr A. Tunuma, for the Accused

RULING ON NO CASE

22^nd July, 2019

1. ANIS J: The defence made a no case to answer application on 15 July 2019. The State responded on 16 July 2019, and I reserved my ruling to today.

2. This is my ruling.

BACKGROUND

3. The 2 accused are charged with 1 count each of the offence, arson, under section 436(a) of the Criminal Code Act Chapter No. 262 (Criminal Code). The section reads, and I quote in part, A person who wilfully and unlawfully sets fire to.....a building or structure, whether completed or not.....is guilty of a crime.

4. The 2 accused come from Lungalunga Village, which is situated in Reimber/Livuan LLG, Gazelle District of East New Britain. It is alleged that on 30 April 2016, the 2 accused wilfully and unlawfully set fire to the house of Eliasir Lalu (Mr Lalu) which was situated at Tavaluai Block, Mandress in East New Britain.

APPLICATION

5. The defence based its no case to answer application on the second limb. The second limb of course is held in the case of State v. Paul Kundi Rape [1976] PNGLR 96. Justice Pratt held on point, and I quote in part,

there is some evidence covering the elements of the offence charged but it is so tenuous or incredible or discredited that it amounts only to a scintilla, and thus could not be accepted as persuasive by any reasonable person.

ISSUE

6. Of course, the issue for determination is whether the State evidence, both sworn and tendered, is tenuous or vague that the trial should be stopped. The Court’s power is discretion and under the second limb, so even I find that the evidence are tenuous, I could still order the trial to continue. See cases: State v. Paul Kundi Rape (supra), State v. Roka Pep (No. 2) [1983] PNGLR 287 and State v. Tom Tomugal (2016) N6329.

STATE EVIDENCE/SUBMISSIONS

7. The State called 4 witnesses, namely, Joe Liliur, Desmond Burege, Isolly Vinavana and Petaro Molot. It also tendered a total of 10 exhibits without objection.

8. I note the submissions from the defence and the State, in relation to the application.

9. Let me state a summary of the material evidence. I firstly refer to the exhibits and in particular to the records of interviews, namely, exhibits P9 and P10. In the records of interviews, the 2 accused admit being at Mr Lalu’s house on that night. Accused Thomas Fabian said that he fought with Nikson Lowai who was at Mr Lalu’s house. Accused Enos Simon said that he threw a dry coconut frond onto the veranda at Mr Lalu’s house. However, both accused deny that they started the fire, or threw a fire into Mr Lalu’s house that night.

10. I refer to witness Joe’s evidence. He said that the incident occurred on 3 May 2016. He said he was at Mr Lalu’s residence that night with Desmond, Nixon Lowai and Mr Lalu. He said the time was around 7 O’clock to 8 O’clock in the evening. He said some boys shouted up and approached them. He said they came in front of Mr Lalu’s face and they fought him. He said accused Thomas Fabian then ran to where he was standing, got a glowing fire from a wood and threw it into Mr Lalu’s veranda. He said that a fire was made during the day which was where Thomas Fabian got the burning wood from. He said he recognised accused Thomas Fabian when he came to grab the burning firewood from about a meter away from where he was standing. He said there was also a dim light at the veranda of the house about 5 meters away from where he was standing. He said when accused Thomas Fabian threw the fire into the house, he told Mr Lalu about the fire being thrown onto the veranda of the house. He said Mr Lalu told him to wait for the police to arrive. In cross-examination, he admitted that he consumed alcohol that evening. He also admitted that he mentioned in his statement to police that the incident had occurred between 2 O’clock and 3 O’clock in the morning. He also said that Nixon Lowai and Raphael had fought each other as well at the time of the incident. He said after all that, he left Mr Lalu’s house and walked to his house. He said Mr Lalu’s house did not caught on fire when he left. He said he learnt of that much later. He was asked whether Mr Lalu had checked his house after he was told about the burning wood being thrown in. He said Mr Lalu never went in to check except that he told him and the others to wait for the police.

11. I refer to witness Desmond. He said the incident occurred on 3 May 2016. He said that he was at Mr Lalu’s residence with Nickson Lowai, Joe Liliur and Mr Lalu. He said they sat there and were telling stories. He said the time was between 3 O’clock to 4 O’clock in the morning. He said they then heard boys shouting up towards where they were. He said they were asking for Mr Lalu and they also started throwing stones at Mr Lalu’s house. He said he saw accused Enos Simon threw a dry coconut frond into Mr Lalu’s veranda. He said the coconut frond was not lit or set alight. He said he recognised accused Enos by his voice. He said he also saw him. He said he knew accused Enos all his life which was why he was able to identify him. But he said that the place was dark. He also said there was no lighting; he said there was no lamp that was lit at that time. He said also that he recognised accused Thomas Fabian’s voice. He said he knew him since he was a child. He said they tried to stop the boys but they kept throwing stones at their direction or at Mr Lalu’s house. He said the men kept asking where Mr Lalu was. He said he stayed there and after a short while he also left. In cross-examination, witness Desmond confirmed that Mr Lalu’s house had no lighting. He confirmed that the coconut frond that was thrown by accused Enos Simon was not lit but only a dry coconut frond or leaf. When he was asked where Mr Lalu was at that time, this is what he said. He said Mr Lalu had left to the police station as soon as he heard the boys shouting and heading towards his house where they were. He said he did not know who was responsible for the burning down of Mr Lalu’s house. He said they were surprised the next morning to learn that Mr Lalu’s house had burnt down.

12. I will address the evidence of witnesses Isolly and Petaro together. These two witnesses gave evidence of what they heard during a ‘mediation’. No specific date of the mediation was disclosed by these witnesses. Witness Petaro said the incident occurred on 3^rd 2016 and the mediation occurred on 5^th March. Both witnesses said that the mediation had occurred at the police station with relatives of Mr Lalu and the 2 accused. They said the 2 accused admitted at that time to burning down Mr Lalu’s house. They however gave conflicting evidence as to which accused threw the coconut frond and which threw a burning wood, onto Mr Lalu’s house. According to witness Isolly, he said accused Thomas Fabian was the one that had admitted to throwing the coconut frond and accused Enos Simon was the one that had admitted to throwing a burning wood, into Mr Lalu’s house. But according to witness Petaro, he said that it was accused Enos that had admitted to throwing a coconut frond and that accused Thomas Fabian had admitted to throwing a burning wood, into Mr Lalu’s house.

CONSIDERATION

13. Let me deal firstly with the testimonies of witnesses Isolly and Petaro. Their evidence was aimed to say that both accused had admitted in their mediation discussions to committing the offence. Secondly, it was also aimed to corroborate the evidence of witnesses Joe and Desmond.

14. In my view, the testimonies of the witnesses Isolly and Petaro are vague and contradictory. Both witnesses did not say for certain when the mediation was conducted. There is nothing to say whether the 2 accused had been cautioned by the police before the mediation or interrogation was conducted. It is also not certain whether it was a mediation on a without prejudice basis or whether it was a police type interview whereby evidence adduced will later be used against them, and if so, whether the 2 had been cautioned by the police before the mediation or interview proceeded. Both witnesses gave opposite accounts of what each of the accused was alleged to have thrown into Mr Lalu’s house on that night. Witness Isolly said that accused Thomas Fabian threw in a coconut frond onto the veranda of Mr Lalu’s house and accused Enos Simon threw a burning wood onto the same veranda. Witness Petaro on the other hand said that it was accused Enos that threw the coconut frond onto Mr Lalu’s veranda and that it was accused Thomas Fabian that threw the burning firewood onto the veranda.

15. In relation to the evidence of witnesses Joe and Desmond, I will say the following. Both witnesses said that the incident occurred on 3 May 2016. This is contrary to the date of the incident as pleaded in the indictment, that is, 30 April 2016.

16. Witness Joe gave different times on when he said the incident occurred. He told police that the incident occurred between 2am and 3am in the morning. But in his sworn testimony, he said that the incident occurred between 7pm and 8pm in the evening. He also said that Mr Lalu was present at that time, and when the boys arrived; he said they faced him and fought with him. However, witness Desmond said that when the boys arrived at Mr Lalu’s residence, Mr Lalu had already left to report the incident. Witness Joe only mentions the fight between the boys and Mr Lalu and he said that it was at that time that he saw accused Thomas Fabian grabbed a lit firewood and threw it into the veranda of Mr Lalu’s house. When he was cross-examined regarding the fight, he said that it was Nickson that had fought with Raphael.

17. According to witness Desmond, there was no fights during that time. He said the confronting boys kept throwing stones into the yard and onto Mr Lau’s house. He said that they tried to stop them without success. He also said that there was no lighting at Mr Lalu’s house and the place was dark. Witness Joe however said that there as a dim light at the veranda of the house. Witness Desmond said the boys kept calling out Mr Lalu’s name but Mr Lalu had left for the police station earlier when the boys were still on their way up to the house.

FINDING

18. When I consider the State’s evidence as a whole, I find its evidence tenuous and vague. I also find that there are too many uncertainties in the evidence on the material facts. The only unshaken evidence to the fact in relation to what was thrown onto the veranda of Mr Lalu’s house was the coconut frond that was thrown in by accused Enos Simon. In relation to the fire, it was only witness Joe that said that he saw accused Thomas Fabian threw the burning wood onto the veranda of the house. But given the variance in the evidence of both witnesses, that is, Joe and Desmond, the level of uncertainty is such that I cannot be convinced, if I am sitting as a tribunal of fact, to safely accept witness Joe’s evidence and therefore enter a conviction.

19. I also wish to point out what was stated in evidence which does not make logical sense. The defence counsel, in my view, rightfully queried with witness Joe why Mr Lalu, the owner of the house, would knowingly tell witness Joe and the others not to be bothered about the burning wood that was allegedly thrown onto the veranda of his house, that is, assuming that he never left to report the matter but had been there at that time. Witness Joe’s evidence on this is quite incredible, I must say. And I must add that evidence shows that the house did not caught on fire during or after the alleged incident, and that it was only discovered on the next day.

20. I am therefore inclined to exercise my discretion and stop the trial from proceeding. The 2 accused are to be discharged forthwith.

ORDERS OF THE COURT

21. The no case to answer application is granted and the 2 accused shall be discharged forthwith.
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