State v Sod [2012] PGNC 118; N4826 (22 October 2012)

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CRIMINAL LAW – arson – Criminal Code, Section 436 – trial – elements of offence – identification evidence – defence of alibi – whether accused present and involved in setting fire to dwelling house.

A man was charged with arson. It was the State's case that the accused wilfully and unlawfully set fire to a dwelling house of a fellow villager. It was undisputed that an offence had been committed, in that the complainant's house had been set alight and destroyed. The question was whether the accused was involved. The State relied on the evidence of two eyewitnesses who identified the accused as being present and involved. The accused gave sworn evidence, denying involvement and raising an alibi – that he was taking his injured brother for urgent medical treatment at the time the house was set on fire – which was corroborated by evidence of the injured brother and another villager.

1. CANNINGS J: Zebedee Sod, aged 19, is charged with arson contrary to Section 436(a) of the Criminal Code. It is alleged that on Tuesday 7 December 2010 at Kananam in the Madang District he wilfully and unlawfully set fire to the dwelling house of a fellow villager, Grentain Kaning. It is undisputed that an offence was committed, in that the complainant's house was set alight and destroyed. The question is whether the accused was involved. The State relied on the evidence of two eyewitnesses who identified the accused as being present and involved. The accused gave sworn evidence, denying involvement and raising an alibi – that he was taking his injured brother for urgent medical treatment at the time the house was set on fire – which was corroborated by evidence of the injured brother and another villager.

2. To prove its case against the accused the State must prove the four elements of arson: that the accused (a) "set fire" to (b) "a building or structure, whether completed or not" and that he did so (c) "wilfully" and (d) "unlawfully". The primary issues are:

4. Three witnesses gave evidence for the State, as summarised in the following table.

No	Witness	Description
1	Grentain Kaning	Complainant, Kananam resident
Evidence	He was not present when his house was burned down – he was at work, at the RD Tuna factory – he built the house using his own money – the house and its entire contents were destroyed.
2	John Manui	Complainant's brother, age 23, Kananam resident
Evidence	He was at the front of his parents' house, which is close to his brother's house, which he saw was set alight by the accused and his brother, Leslie Sod, after they entered the house – Leslie shouted "Burn the house!" before doing just that – the accused and his brother were encouraged to burn the house by the Ward 10 councillor, Mathew Masbud, who also shouted "Burn the house!" – he recognised the accused as he knows him well as they are fellow villagers.
3	Korina Masai	Complainant's cousin, age 21, Kananam resident
Evidence	She was at the front of her aunty's house, which is close to the complainant's house, when she saw the accused and Leslie Sod enter the complainant's house through the window – before entering the house the accused called out 'We are going to burn the house!' – Mathew Masbud shouted 'Burn it!', then the fire started – she knows the accused and Leslie well, they grew up together in the village.

5. Three witnesses gave evidence for the defence, as summarised in the following table.

No	Witness	Description
1	Zebedee Sod	The accused
Evidence	The altercation with the other group occurred at a hamlet called Butbalan – the problem was caused by members of the other group being drunk on yawa: they beat up his little brother, Bonnie, and when he (the accused) asked why they had done that, the other group chased his group with bush knives – as they were running away his brother Mathew fell into a crab hole and the members of the other group caught up with him and attacked him with bush knives – he went to Mathew's aid, he was badly injured, and then at Dumi Beach he assisted Mathew into a boat that was driven by his uncle Taomoi and they took him to Alexishafen Health Centre – Mathew was given an injection by the medical staff and put on a drip – then he (the accused) and his uncle took Mathew by ambulance to Modilon General Hospital, arriving there between 5.00 and 6.00 pm. He believes that the complainant was producing yawa at his house but he denied in cross-examination that that belief coupled with the assaults on his brothers Bonnie and Mathew motivated him to set fire to the complainant's house. He maintained that he was not present – he was with Mathew on the boat when the house was burned down – Leslie was also not present, he was at Sek.
2	Mathew Sod	The accused's brother, age 27
Evidence	He fell into a crab hole as he was attempting to evade the other group and the members of that group set upon him with bush knives and badly injured him – he shouted for help and the accused came running to assist him and took him to the beach where he was put in a boat – the accused was in the boat with two other men and they took him to Alexishafen, where he was treated before being taken by ambulance to Modilon General Hospital. In cross-examination the witness maintained that he remained conscious despite being attacked and cut by five men and losing a lot of blood.
3	Martin Balang	Village recorder, Kananam resident
Evidence	His role as village recorder includes keeping community statistics, assisting the villagers solve problems and disputes, maintaining law and order – he knows both the accused and the complainant, they are his nephews – he attended the graduation and after it concluded he went to his house – he then heard a commotion at Butbalan so he ran in that direction via Dumi Beach where he saw four men in a boat preparing to leave for Alexishafen: the skipper Charles Taomoi, Andrew (from Karkar), Mathew Sod and the accused – next he heard another commotion and observed smoke rising from the complainant's house – he went there and helped remove some personal property from the house before it was engulfed by flames – the police arrived shortly afterwards. In cross-examination he said that he did not see Mathew's injuries and could not tell whether he was conscious and did not see who set fire to the house – he is aware that there had been concerns that the complainant was using his house as a place to produce home brew and some people would have been pleased to see it burned down.

6. This is a case where there is competing evidence (identification evidence versus alibi evidence) as to the presence of an accused at an incident, so the best way to approach the task of determining which is the true version of events, or more particularly deciding whether the State has proven beyond reasonable doubt that the accused was present and involved, is first to assess the quality of the identification evidence and having done that, to then assess the alibi evidence; and then to weigh the two bodies of evidence against each other.

7. Two State witnesses, John Manui and Korina Masai, have given eyewitness evidence identifying the accused as being present and involved. The leading Supreme Court cases on identification evidence are John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698. The key principles are that there are inherent dangers in relying on the correctness of identification to support a conviction. However, if the quality of the identification evidence is good the matter should proceed to verdict. If its quality is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification. There is always the possibility that an honest witness can be mistaken and still be convincing. The court must be satisfied that the witness is both honest and accurate. In assessing the quality of the identification evidence, relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he or she recognised; the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?); the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?). If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability.

8. Having considered those principles my assessment is that both State witnesses appeared to give credible evidence; they were not obviously giving false testimony. They were identifying someone, a fellow-villager, who was well known to them. Their evidence was that they observed the accused for a prolonged period. It was not just a fleeting glance. Their emotional state was sound. It was approaching the late afternoon but visibility was good. They each had an uninterrupted line of sight. There was no material inconsistency in their evidence.

9. My assessment is that the identification evidence was of good quality subject to the qualification that it came from two witnesses who cannot be regarded as independent as one of the witnesses is the complainant's brother and the other is his cousin.

10. The alibi is that the accused was not at the complainant's house when it was set alight. He was assisting Mathew and in the boat that was taking him to Alexishafen. The accused's evidence is the basis of the alibi and it is corroborated by the evidence of Mathew (who says he remained conscious) and Martin Balang (whose evidence supported the proposition that the burning of the complainant's house happened after Mathew was injured and after he was put on the boat). The leading Supreme Court case on alibi evidence is John Jaminan v The State (No 2) [1983] PNGLR 318. The key principles are that 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 strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused.

11. Unlike the defences of self-defence and provocation, there is no rule of law that once an alibi is raised it is up to the prosecution to disprove it. The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail. The court should also consider the demeanour of the alibi witnesses and whether there are any inconsistencies in their evidence.

12. Having considered those principles, my assessment is that all defence witnesses appeared to give credible evidence; they were not obviously giving false testimony. A notice of alibi was filed and the alibi evidence was consistent with that notice.

13. There is no doubt that Mathew was badly injured and in obvious need of urgent medical treatment. It is not difficult to believe that the accused would have rushed to his aid and that the need to get him to hospital would have been a more pressing priority than setting fire to the house of the complainant. Mathew's evidence was convincing. He was adamant that he remained conscious.

14. The evidence of Martin Balang was significant. He was the only independent witness in that he is the village recorder and has a neutral role in resolving disputes and preserving law and order in the village. His evidence was that he saw the accused in the boat and that the burning of the house took place after the boat had left for Alexishafen.

15. The alibi is not perfect. There are question-marks surrounding it. It is surprising that there is no evidence from medical personnel at Alexishafen or Modilon to say that the accused was with Mathew when he was brought in for treatment. There was no evidence from the ambulance personnel that the accused was in the ambulance. (By the same token it is surprising that there is no evidence from the State to show that the accused was not present at Alexishafen or at Modilon or that he did not travel on the ambulance.) Nevertheless the onus was not on the defence to prove the alibi.

16. I have assessed the identification evidence as being of good quality and I have assessed the alibi evidence as being also of good quality. I find that the alibi evidence raises a reasonable doubt as to the honesty and accuracy of the identification evidence. I am not satisfied beyond reasonable doubt that the accused was present and involved in setting fire to the complainant's house. He must be given the benefit of the doubt.

18. Zebedee Sod, having been indicted on a charge of arson under Section 436(a) of the Criminal Code, is found not guilty of arson and not guilty of any other offence.

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the Accused

National Court of Papua New Guinea

State v Sod [2012] PGNC 118; N4826 (22 October 2012)