N5914

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 363, 364 & 371 OF 2013

STATE

v.

ALIALI TAKIAPU
Defendant

Tari: Ipang, J
2014: 8, 9 & 10 October
2015: 10 & 11 February

Counsels:
Mr. D.Mark, for the State
Mr. S.Inisi, for the Defendant

11 February, 2015 

1.	IPANG J: This is the decision on verdict for the accused. The accused pleaded not guilty on the 8th October, 2014 to 10 counts of Arson contrary to s.436 (a) of the Criminal Code Act. 

2.	The 10 charges presented in the indictment are as follows: 

1)	 On the 10th November 2011 Defendant Aliali Takiapu of Hoiabia village, Tari did unlawfully set on fire a bush material building belonging to one Andaki Tili contrary to s.436(a) of the Criminal Code Act. 

2)	On the 10th November, 2011 Defendant Aliali Takiapu of Hoiabia Village, Tari did unlawfully set fire on a Trade Store belonging to one Andiki Tili contrary to s.436 (a) of the Criminal Code Act. 

3)	On the 28 November, 2011 at Hoiabia Village, Tari Defendant Aliali Takiapu of Hoiabia village, Tari did unlawfully set fire to a semi permanent building belonging to Hayama Tengali contrary to s.436(a) of the Criminal Code Act. 

4)	At Hoiabia village, Tari on the 28 November, 2011 Defendant Aliali Takiapu of Hoiabia village, did unlawfully set fire to a semi permanent building belonging to Hayama Tengali contrary to s.436(a) of Criminal Code Act

5)	On the 28 November, 2011 at Hoiabia village, Tari Defendant Aliali Takiapu of Hoiabia village did unlawfully set fire to a semi permanent building belonging to one Hayama Tengali contrary to s. 7436(a) of the Criminal Code Act. 

6)	On the 28 November, 2011 at Hoiabia village, Tari Defendant Aliali Takiapu of Hoiabia village did unlawfully set fire to a bush material building belonging to one Hayama Tengali contrary to s.436 (a) of the Criminal Code Act. 

7)	On the 28 November, 2011 at Hoiabia village, Tari Defendant Aliali Takiapu of Hoiabia village did unlawfully set fire to a bush material building belonging to Hayama Tengali. Contrary to s.436(a) of the Criminal Code Act.

8)	On the 28 November, 2011 at Hoiabia village, Tari Defendant Aliali Takiapu of Hoiabia village did unlawfully set fire to a bush material building belonging to Hayama Tengali. Contrary to s.436(a) of the Criminal Code Act.

9)	At Hoiabia Village Tari on the 28 November, 2011. Defendant Aliali Takiapu of Hoiabia did willfully and unlawfully set fire to a semi-permanent building belonging to one Janet Punga, contrary to s.436(a) of the Criminal Code Act. 

10)	On the 28 November, 2011 at Hoiabia Village, Tari Defendant Aliali Takiapu of Hoiabia Village did willfully and unlawfully set fire to a bush material –Poultry building belonging to one Janet Pung, Contrary to s.436 (a) of the Criminal Code Act. 

3.	State submitted that at the time of commission of these offences, there were circumstances of aggravation as the Defendant was armed with a homemade gun, a bush knife and was in company of other persons. State also invoked ss. 7 & 8 of the Criminal Code Act. 

Brief Facts:

4.	State alleged that on the 10th November, 2011 at around 3:00pm, the accused Aliali Takiapu and others armed with Firearm and bushknives walked in to the residential compound of Andiki Tili and set fire to a bush material dwelling house belonging to Andiki Tili. Also at the same compound the accused and others tried to break in to Andiki Tili's Trade Store but they couldn't. They left and came back with iron bars then broke open the trade store. Present at the scene to witness the act were Jiwai Andiki, Kirale Andiki (wife of the victim) and Jackson Ronny. 

5.	On the 28 November, 2011 which was two and half (2 ½ ) weeks after the alleged event on the 10 November, 2011 State further alleged that the accused also in company of others armed with home-made gun and bush knives at 8:00am walked in to the residence of Janet Punga and burnt down semi permanent building and a bush material poultry house belonging to Janet Punga. In the afternoon the accused armed with home-made gun and bush knives walked in to the residence of Hayama Tengali. Hayama Tengali was in his garden, the accused used his home-made gun and shot at him.

6.	The accused and others then went on and burnt down 3 bush material houses and 3 semi permanent houses belonging to Hayama Tengali State alleged the actions of the accused and others are contrary to s.436 (a) of the Criminal Code and they have no reasonable or lawful excuse. 

State's Case 

7.	The State through Counsel Mauta tendered the following documentary evidence by consent; 

1.	Record of interview both the original pidgin and English Version dated 8 January, 2013 CR No. 363/13 Marked as Exhibit "A". relating to complainant Andiki Tili

2.	Record of Interview dated 8 January, 2013 both the original Pidgin version and English translated version: CR No. 364/13 Marked as Exhibit "B" Relating to complainant Hayama Tangali.

3.	Recording of Interview dated 8th January, 2013 both Pidgin original version and English translated version. Marked as Exhibit "C" relating to complainant Janet Punga. 

The following State witnesses were called for the State; Jackson Ronney, Joycelin Punga, Linda Punga, Hayama Tengali and Andiki Tili. Defence called Aliali Takiapu and Councilor Mokai Harape. In total there were five (5) witnesses called for State and two (2) witnesses called for Defence which included the accused himself. 

8.	Jackson Ronny was told by his father to look after their properties on the 9th of November, 2011. So he was in the village when he told the Court, he saw the accused came and set fire on the bush material house. Jackson told court, he saw the accused came with a double pipe-homemade gun, painted his face with black ashes, wore feathers on his head and wore a jean trousers. He was 3 meters away from where accused put fire to the house. This witness said the house which got burnt down belonged to Andiki Tili. 

9.	Joycelyn Punga and Linda Punga gave similar evidence that both were at Hoiabia Village on the 28 November, 2014 when they saw the accused and others. Both were in the garden. Linda told the Court, accused was in possession of a homemade gun and painted his face. Witness Linda's evidence is consistent with Jackson Ronny. Both Joycelyn and Linda saw the accused and others put fire to 2 bush material houses and one (1) semi permanent house. 

10.	Hayama Tengali was in the village at Hoiabia when he saw the accused with a group of men painted their faces and walked in to his residence. One of the co-accused chopped his left hand. Hayama had told the Court, accused had a homemade gun and was leading others. Witness said accused tried to shoot him with a home-made gun. He said the accused and others set fire to his 3 bush material houses and 3 semi permanent buildings. Total of 6 houses. 

11.	Andiki Tili was not present at Hoiabia village when the accused and others burnt houses. He was at Mendi when he learnt of his houses got burnt down. He told the Court of Compensation paid to the accused. 

12.	Defence called 2 witnesses. The accused himself and Mokai Harape. Accused when giving evidence in court denied his involvement in committing the offence. This is very much contrary to the evidence the accused gave during the Record of Interview. In the Record of Interview, the accused revealed he was mad and was preparing himself to fight. Refer to questions and answers in 11,12,13,14,18,19,20 & 29. The Record of Interview is very much consistent with evidence of State witnesses Ronny Jackson, Joycelyn Punga and Linda Punga. 

Submission by Defence 

13.	Mr. S.Inisi of Counsel for the accused submitted that the State evidence adduced should pinpoint that; 

•	The accused before the Court was the person who burnt down the houses. 

14.	Mr. Inisi submitted that the accused had received compensation (some money plus pigs) from Andiki Tili and therefore denied accused's involvement in the commission of these offences. Counsel said though the accused was seen by State witnesses, he submitted that their evidence should not be believed as State Witnesses were the victims themselves and they were not the neutral witnesses. The State witnesses, who gave evidence that they saw the accused, were Ronny Jackson, Joycelyn Punga, Jacnet Punga and Hayama Tengali. Though, they were the victims themselves, Defence failed to discredit their evidence during cross-examinations. 

Submission by State 

15.	Mr. D.Mark of Counsel for the State submitted that the crucial issue before the Court is; was the accused responsible for the arson? He submitted that the Record of Interview tendered as part of State's evidence clearly revealed the intensions of the accused person to fight and cause trouble. State Counsel also submitted that State witnesses identified accused person as the person who led a group of men who set fire to the buildings. State witnesses were able to identify the accused person who actually set fire to the buildings. State Prosecutor submitted that Court should find the accused guilty of the 3 counts of arson and not 10 counts. 

16.	There are overwhelming evidence by State witnesses who clearly identified the accused as the person who led a group of men and he was the one who set fire to the buildings. In the Record of Interview tendered as part of State's case, the accused expressed his desire and preparedness to fight Andiki Tili and his family. It was not disputed accused's wife was raped, his mother was assaulted, and his food garden crops & trees were damaged by Andiki Tili and his relatives. It is therefore reasonable to react in the way accused described himself in the Record of Interview. 

17.	The accused initial demand to the victims (Andiki Tili & Ors) was for K15, 000.00 and 15 pigs. However, the victims paid only K1, 200.00 and 3 pigs. Clearly enough, the accused and his relatives were not happy with the compensation much lower to their demand paid. For the accused to say his wife's relatives and his mother's relatives were upset and they burnt down the houses, can be seen as the accused only trying to cover-up. For the State witnesses identifying the accused as the person who led a group of man and who set fire to the houses is reasonable reaction to what victims had done to him, his wife and his mother. 

18.	I do not believe the accused version of evidence given in Court in which he denied his involvement in the commission of the office. He told the Court he was 60 metres away and saw the smoke from the burnt houses. This evidence contradicted the statement given during the Record of Interview. Also, the State witnesses were able to identify the accused as the person putting fire to the buildings. I do not believe Defence witness Moka Harape. Her version of where about of the accused there. Whilst the accused said he was at home. When pressed further she said the accuseds house is near the road. The accused been on the road is not the same as his house is near the road. Defence witness Harape is therefore not a credible or truthful witness. 

19.	I find there are overwhelming evidence implicating the accused in the commissions of these offences of arson. I am satisfied beyond reasonable doubt and I return a verdict of guilty on 3 counts of arson. 

Verdict: Guilty on 3 counts of Arson. 

___________________________________________________________________
Public Prosecutors: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner