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State v Baki [2022] PGNC 259; N9717 (13 May 2022)

N9717

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 284, 285, 286, 287, 288, 289, 290, 291, 292, 293,
294, 295 & 296 OF 2020

BETWEEN:
THE STATE

AND:
BEN BAKI, JOBIE KIPAU, STEVEN WANGI, STANLEY SAMBAN,
MATHEW MAI, RONNY YAMUNA, SIMON MALENAN, JEFF ANUMA,
HUGO AMBANE, JULIUS SIONI, JEREMY KOWOR, RALPH YIYINA,
& IMASAR PIRIA
.
Wewak: Rei, AJ
2022: 10^th, 11^th, 12^th & 13^th May

CRIMINAL LAW – Arson – plea of not guilty – 13 accused persons – members of Royal PNG Constabulary – identification – participation – circumstantial evidence – whether presence of Police convoy of vehicles sufficient evidence – no clear identification – verdict – not guilty.

Cases Cited:
Papua New Guinean Cases

The State -v- Buka Pepekon (19 May 1995), (unnumbered per Injia J)
The State -v- Yakoto Imbuni (1997) N1558
The State -v- Anis Noki (unreported decision of Akuram AJ)
Papalamnan -v- Nuakona (1973) N771
The State -v- Daniel [1988-1989] PNGLR 580
John Beng -v- The State [1977] PNGLR 115
The State -v- Paul Kundi Rape [1976] PNGLR 96
The State -v- Roka Pep [1983] PNGLR 287
Paulus Pawa -v- The State [1981] PNGLR 498
Grant -v- The Queen [1975] PNGLR 503

Overseas Cases

R -v- Sharmpal Singh (1962) AC

Legislation Cited:

Section 7 of the Criminal Code
Section 436 (a) & (f) of the Criminal Code

Counsel:

Mr. Lukara Rangan, for the State
Defence: Ms. Zurenuoc, for Stanley Samban
Mr. A Kana, for Ralph Yiyina & Imasar Piria
Mr. J. Vitus, for Ben Baki, Jobie Kipau, Steven Wangi, Stanley Samban, Mathew Mai, Ronny Yamuna, Simon Malenan, Jeff Anuma, Hugo Ambane, Jeremy Kowor & Julius Sioni

13^th May,2022

1. REI AJ: The trial on this matter commenced on 10^th of May 2022 at 1:30 pm.
   
2. The accused were each and severally charged under Section 436(a) & (f) and Section 7 of the Criminal Code for committing the offence of arson in which; it is alleged, the accused set fire to several houses at Kreer Village some of which were incomplete and a motor vehicle registration BEM.745.
   
3. The State alleged that these incidents occurred on 13^th of October 2019 when on the 12^th of October 2019 a police officer Xavier Koren hit Frazer Teresang around the mouth resulting in him losing his teeth. Then on the next day 13^th October 2019, the police officers whose names appear in the indictment went to Kreer Village and burnt down houses and the motor vehicle registered BEM.745.
   
4. The accused persons were each and severally arraigned on 10^th May 2022 in which the allegations were read to them as well as the charge.
   
5. All the accused entered plea as follows:
   

6. Counsels for the accused confirmed that the pleas were consistent with instructions from their respective clients.
   
7. The Counsel for the State Mr. Rangan made opening remarks that there is no dispute that arson did take place and that certain police officers were involved whose names appear in the indictment.
   
8. He then submitted that the only issue is of identification and participation.
   
9. He submitted that the State will call witnesses to identify those who actually committed the crimes and those who aided and abetted.
   
10. Defence Counsels agreed with those submissions whereupon the trial commenced.
    

STATE WITNESSES

11. The State called its first witness by the name of Maira Karo.
    
12. This witness stated in his evidence in chief that he was in Kreer Village on the night of 12^th and morning of 13^th October 2019 playing games in his mobile telephone.
    
13. When he heard vehicles driven into the village he came out of his house to investigate. He said his house is located at the gateway or entrance to the village and it is the first house one comes across on his way into the village.
    
14. He saw three (3) ten (10) seater vehicles coming into the village who drove straight to the house belonging to the Ward Councillor which is estimated to be 300 meters away from his house.
    
15. He said he did not go to the house when the vehicles were there.
    
16. After all that had happened, two police officers met him. They are Stanley Simban and Piria Imasar.
    
17. He said Piria Imasar told him that the village people must ensure that Frazer Teresang is brought to the Police Station for questioning. If not the Police will come and burn all the houses in the village.
    
18. Ms. Zurenuoc cross examined this witness on the credibility of his evidence that the oral testimony contradicts the written statement given to the Police which was signed by him and is dated 22^nd November 2019 Ex “D1”.
    
19. The witness agreed to this proposition.
    
20. Ms. Zurenuoc also asked whether her client Stanley Samban was present at the scene.
    
21. He said he was present. Ms. Zurenuoc cross examined this witness and put the following questions to him:
    

Q. Did the meeting come up at 1 pm?

A. It was held at 3 pm.

Q. By that time everything had settled down, is that correct?

A. Yes.

Q. The time you saw Piria and Samban, it was after 5 hours, everything have settled down. Is that correct?

A. Yes.

Q. Is Stanley Samban a community leader?

A. Yes.

Q. Samban negotiates, does he not?

A. Yes.

Q. Was he there to make peace?

A. Yes.

22. The last question asked by Ms. Zurenuoc was: “Was he there to make peace?
    
23. The witness answered and said “Yes”.
    
24. Mr. Kana who represents Piria Imasar and Yiyina cross examined this witness whose answers were evasive.
    
25. The State called its second witness who is Frazer Teresang.
    
26. This witness stated that he was in the village when a Constable Allen Faifo met him.
    
27. Upon seeing the Police convoy of vehicles entering the village Constable Allen Faifo told him to go and hide.
    
28. When asked if he saw any person burning properties and vehicles and looting items of value he said he did not see anyone.
    
29. Earlier on Ms. Zurenuoc showed series of photographs showing injuries to the body of Policemen Xavier Koren and asked whether the witness recognises them. He said he does.
    
30. When asked if he inflicted wounds on two parts of the body he said he only inflicted one wound. From my observations of the photographs which were tendered in evidence, I drew the conclusion that the injuries are life threatening as his head was slashed and stitched.
    
31. Neither Mr. Jimmy nor Mr. Kana cross examined this witness in that none of their clients were identified in evidence as participating in the alleged crimes.
    
32. The third and final witness who gave evidence is Mathias Porika who is the former Councillor and Ward Member for Wewak Local Level Government.
    
33. His evidence is that he saw the Police entering the village and negotiating peace because of what happened on the 13^th October 2019.
    
34. But in evidence in chief and cross examination he was asked whether he actually saw any person setting fire to any of the houses and the motor vehicle registration number BEM 745 and identified them he said emphatically he cannot mention names as he did not identify any of them.
    
35. Indeed from his evidence, it appears clearly that he was not at the scene of structures being burnt down and that his time was spent mostly on negotiating a peaceful settlement.
    
36. The State through Counsel tendered the Records of Interview of all the accused persons which contained no confessional statements.
    

NO CASE SUBMISSION

37. Based on the evidence adduced in Court, Counsels submitted that the case be stopped as there is no iota of evidence supporting the allegations – Paul Kundi Rape -v- The State [1983] PNGLR 287.
    
38. Mr. Rangan replied that there is some evidence linking the accused persons to the allegations as such the trial should continue. He did not cite any authorities to me.
    

DECISION

39. The State submitted in its opening address which was agreed to by defence Counsels that there was police presence on Kreer Village on 13^th October 2019 but the only question to be solved is identification and participation.
    
40. It seems that although the members of the Royal PNG Constabulary were present there, evidence given by State witnesses do not identify any of the accused persons.
    
41. Without citing to me any authorities the State relies on circumstantial evidence such that this case should not be stopped here.
    
42. But the point is that identification must be proven beyond reasonable doubt.
    
43. In The State -v- Buka Pepekon (19 May 1995, unnumbered) His Honour Injia J. said:
    

“Speaking of people in the area of the three accused, it is true that there was a lot of investigation carried out by the village people to identify those responsible. It was not an easy task. But through a painstaking process which took some time, they have singled out these three accused ... Once the accused are singled out through this rigorous process in the village and reported to the police or apprehended and delivered to the police, the village people would be pretty sure of the accused’s involvement in the crime. Therefore, the Court should not treat these accused lightly as some suspects brought to Court on mere conjecture. Once there is sufficient evidence before the village people implicating the suspects, their involvement in the crime is readily inferred as a matter of course. The onus then shifts to the accused to show reasonable cause why that should not be so. If the accused’s defence is one of alibi, he should give evidence of a good alibi and where necessary, supported by alibi witnesses. That is the practice in the village and I see no reason why this Court should not give due weight to this method of screening the evidence against the accused.”

44. The case of The State -v-Yakoto Imbuni (1997) N1558 followed The State -v- Buka Pepekon and in the case of The State -v- Anis Noki Akuram J stated:
    

“Once a leader and villagers had in a suspect, that in itself be regarded as a matter of course or seen as:

(a) an identification of the accused by his own clansmen;
(b) supported by credible and admissible evidence.

And that the following factors must be considered in the light of (a & b) above that:

(i) Leaders to give evidence and reason why those suspects arrested may not be the ones responsible on balance of probabilities;
(ii) The recognition of the relevance and knowledge of leaders and community as paramount in their discharge of Criminal justice; and

45. Prentice J said in Papalamnan -v- Nuakona (1973) N771:
    

“Where evidence of identity is given by a witness whose previous knowledge has not made him familiar with the appearance of the accused and where he has been shown the accused alone as a suspect and has on that occasion first identified him, the conviction of the accused is not safe unless his identify is further proved by other evidence.”

Reliance on personal identification will depend upon, inter alia:

(a) the impression left by the eyewitness as to his or her reliability and accuracy;
(b) the existence of a motive for giving false testimony as to the identity of the offender(s)’
(c) the circumstances in which the person to be identified has been observed;
(d) the circumstances in which the eyewitness find himself or herself when making the observation;
(e) the existence or otherwise of the evidence of other witnesses confirming or contradicting the evidence of the original eyewitness;
(f) the existence or otherwise of other evidence, direct or circumstantial, of facts or circumstances independently proved.

Voice evidence is admissible to prove identification of the accused where:

(a) the voice is known by the witness and recognised by the witness; and
(b) the voice is not previously known to the witness but has such distinctive features that it leaves a clear mental impression in the mind of the witness enabling him or her to draw the conclusion on hearing it later that it was the same voice – “The State -v- Daniel [1988 – 1989] PNGLR 580.”

46. The case of John Beng -v- The State [1977] PNGLR 115 SC112, clarifies this where the Supreme Court said that:

“In proceedings were evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.”

47. Bearing in mind these principles, I do not think the burden of proving identification was satisfactorily discharged by the prosecution. It is not clear that perpetrators have been identified beyond reasonable doubt. No evidence was given that a village leader investigated this matter for purposes of identification. No village leader or elder gave credible evidence on this.
    
48. These events occurred in a village community and surely there are witnesses who saw what happened BUT no one came forward to give evidence.
    
49. The State says that the presence of the Police in convoy of vehicles is strong circumstantial evidence for a conclusion to be drawn on identification. The evidence given by the State witnesses do not suggest that they identified people burning the houses and the vehicle. Evidence on identification is poor. The evidence given in Court is as follow:
    

(i) Maira Karo says he was there but could not see anyone whose evidence relates to the meeting for compensation to be paid;

(ii) Frazer Teresang who cut Xavier Koren says that he was told by Police Officer to go and hide and admits he did not identify anyone; and

(iii) Mathias Porika clearly stated in evidence he did not identify anyone.

50. The law relating to circumstantial evidence is clearly stated in many decided cases one of which is Paulus Pawa -v- The State [1981] PNGLR 498 where the Supreme Court per Kearney DCJ said:
    

“First, where the evidence in a criminal case is wholly circumstantial, the court must acquit unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than the guilt of the accused. This proposition merely re-states, in a way particularly useful in dealing with circumstantial evidence, the basic proposition that the State must prove its case beyond reasonable doubt: see Grant -v- The Queen [1905] ArgusLawRp 161; (1975) 11 ALR 503 at p.504.

Second, no accused person may be compelled to testify. He may choose not to do so. In that event, the court may well be left with an incomplete picture. In such circumstances, the court may draw inferences which properly flow from the evidence, and reach its conclusions thereon, without being deterred from so doing by the incomplete state of the evidence, or by speculation as to what the accused might have said had he testified: see R. -v- Sharmpal Singh (1962) AC 188 at p.198. Only in that sense may an accused by not testifying “strengthen” the State case.

51. It is not safe to conclude that the presence of Police vehicles is sufficient evidence of identification as there is no iota of evidence of identification of the accused persons as perpetrators.
    

52. No village leader was called to give evidence except Mathias Porika. This evidence lacks in many areas including identification.

53. By way of conclusion and in line with the decision in The State -v- Paul Kundi Rape [1976] PNGLR 96 which was confirmed in The State -v- Roka Pep [1983] PNGLR 287 SC261 the case should be stopped here.

54. The orders of the Court are that:

(i) the case is dismissed;
(ii) the accused persons are each and severally acquitted and discharged; and
(iii) bail monies be refunded.

______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendants