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State v Sua (No. 1) [2022] PGNC 308; N9785 (8 July 2022)

N9785

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 614 & 615 OF 2021

THE STATE

V

JORDON SUA
(No 1)

Madang: Miviri J
2022: 07^th & 8^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Two Counts Arsons 436 CCA – Trial – semi permanent house – Argument Over Smoke – set on fire – destroyed – Identification – Whether Reliable – Breaking Entering & Committing Assault – Meaning Of – Two Different Victims – No Evidence Third Arson – Not Guilty Third Count Arson – First Count Guilty of BE & Committing Assault Section 395 (1) (c) CCA – Guilty of Second Count of Arson Section 436 (a) CCA .

Facts
Accused went to the dwelling house of the victim in the early hours of the morning. He went inside assaulted victim then set his house alit after pouring fuel on it. The house was completely burnt down. He did the same to another victim burning the house down completely.

Held
Accused positively identified.
Balance discharged.
Guilty of BE commission of crime inside.
Guilty of Arson Second Count.
Not guilty of Arson Third count.

Cases Cited:
Daugamani, Regina v [1965-66] PNGLR 80
R v Phillips Boike Ulel [1973] PNGLR 254.
Kassman v The State [2004] PGSC 9; SC759
Bate v State [2012] PGSC 46; SC1216
Tonde v The State [1994] PNGLR 539
Jaminan v The State [1983] PNGLR 318
Kandakason v The State [1998] PGSC 20; SC558
Waranaka v Dusava [2009] PGSC 11; SC980
Beng v The State [1977] PNGLR 115

Counsel:

D. Ambuk, for the State
N. Katosingkalara, for the Defendant

VERDICT

08^th July, 2022

1. MIVIRI J: This is the verdict after trial of Jordon Sua who had gone to the dwelling house of the victim for smoke. He became agitated and assaulted the victim and set his house on fire completely destroying it. He also went to another location and set fire upon the house of yet another victim destroying it all.
   
2. The facts upon arraignment were that on the 23^rd day of February 2020 sometimes between 3.00am and 4.00am, the Accused with his brother and accomplice Gilman Sua were at Kerema Compound Madang Province. They had gone in search of smoke and approached the house of one Bion Kamba. He refused to sell them smoke. They reacted and broke and entered his house and fought him. They assaulted and injured him with a bush knife on his right hand and on his head before setting his house on fire. It was completely destroyed and burnt to the ground.
   
3. Sometimes later on that same day one Gabriel Aimare was at his house when Jordon Sua approached and picked a fight with one Junior Gabriel. Who ran into his father’s house to avoid the fight. But the Accused followed him into the house, fought him, chased him out of the house, and set the house on fire, destroying it completely.
   
4. The State invoked section 7 (1) (a) (c) of the Criminal Code Act against the Accused, contending that he had no lawful excuse, nor did he have any justification to break enter the dwelling house of Bion Kamba, and also to set it on fire. And when he proceeded to the house of Gabriel Aimare, he similarly did not have the lawful basis nor justification to do what he did.
   
5. In respect of the first count preferred against the accused that charge is laid pursuant to Section 395 (1) (c) housebreaking or Burglary. That section reads:
   

“(1) A person who–

(a) breaks and enters the dwelling-house of another with intent to commit a crime in it; or
(b) having–

(i) entered the dwelling-house of another with intent to commit a crime in it; or
(ii) committed a crime in the dwelling-house of another,

breaks out of the dwelling-house; or
(c) breaks and enters the dwelling-house of another and commits a crime in it,

is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If the offence is committed in the night, the offender is liable, subject to Section 19, to imprisonment for life.”

6. Both second and third counts of the indictment pursued against the accused are pursuant to 436 of Arson, “A person who wilfully and unlawfully set fire-
   

(a) a structure whether complete or not; or
(b) a vessel whether complete or not;
(c) a stack of cultivated vegetable produce; or
(d) a stack of mineral or vegetable fuel; or
(d) a mine, or the workings, fittings, or appliances of a mine; or
(e) an aircraft or motor vehicle,

Is guilty of an offence.

Penalty: subject to section 19 imprisonment for life.”

7. At the conclusion of the State case there is simply no iota of evidence in respect of count three of arson against the accused. No evidence has been led into court from Gabriel Aimare. He is not available nor has he been called to sustain the count. There is no evidence in respect of this Count. The application by the Defence on No case submission is upheld. The accused is not called to answer the allegation. He does not have a case to answer on that count that he on the 23^rd day of February 2020 at Kerema Compound in Madang wilfully and unlawfully set fire to a semi-permanent building serving as a dwelling house of Gabriel Aimare. The no case submission sustains, the Accused is not guilty of Arson and is acquitted forthwith of count 3.
   
8. In respect of count number one (1) that the accused on the 23^rd day of February 2020 broke and entered the dwelling house of Bion Kamba and committed the crime of assault in it, evidence has been called by the State from Bion Kamba who says it was 3.00am to 4.00am in the early hours of the morning that the Accused came to his house asking for smoke. He said there was no smoke. The accused broke and entered his house and assaulted him. He sustained injuries from a bush knife on his right hand and on his head used by the Accused.
   
9. He says he saw the Accused in light similar as in the courtroom, florescent tube that was connected to his house from the house of a next-door neighbour Mark Kamai, who was about 20 to 25 meters away from his house. That the Accused together with his brother one Gilman Sua were not masked and he saw them in this light. They lived together at the scene since the 1990s up to 2000 including the date of the allegation. He knew both very well. He admitted that they had pre-planned with his wife who they had “bribed”. The elder brother Gilman Sua had sexual intercourse with her. He testified that the other five persons who accompanied the two Sua brothers were masked and so he was not able to identify them except the two.
   
10. The next witness for the State was Kimberley Kamba daughter of the first witness. She stated that on the night of the allegation she saw both brothers Jordon and Gilman Sua. Both did not wear any mask so she saw them. The other five who were with them were masked and so she did not identify them. She too like her father stated she knew both as all lived at the same place for a long time. And she saw them both on this night. She said the florescent tube that was connected to their house from the neighbour was smashed by the assailants and yet she continued to see them without this lighting the place. She was seeing from 20 to 25 meters from the house of one Mark Kamai to whose house they had sought refuge. And she was making observations at 3.00am to 4.00am. And this was immediately after she with the father were chased out of their house by the Accused and his brother. The assaults were at close quarters as described by the father. Both jumped out of the house securing refuge at the house of Mark Kamai next door. But continued to be vigilant and watching what the accused continued to do.
    
11. This identification is uncontradicted and remains consistent with both father and daughter. It places the accused at the scene of the assault upon the father, testimony of both father and daughter. Both have given sworn evidence, tested verified as to the propensity of its truthfulness. Both have remained consistent and adamant that it was the two brothers, not any others because both were unmasked and were seen at close quarters when assaulting the father in the house after breaking entering the dwelling house. This is evidence which cannot be ignored in favour of the unsworn untested evidence of the Accused. The voice of the Accused was heard calling to open the door for smoke. They responded in conversation that there was no smoke to which the accused took offence and broke and entered their dwelling house and assaulted the father. His voice together with seeing him face on in light seals that he was their assailant. It is firm when the father places that there was preplanning with accused together with his brother Gilman Sua. Because they had bribed her. The wife sold her body to the elder brother. He had sexual intercourse with her. He is prepared to tell all even if it means that there is a motive that will be entailed against his evidence. It is my view that where a witness is prepared to tell all even if it is against them, the witness is prepared to accept responsibility for all. He is prepared to live out the truth even if it is painful to his cause, as is of the Bion Kamba here. I have no doubts as to the veracity of his evidence as a witness of the truth. I have observed him in the witness box as he gave evidence. He was straight in his answers. He did not look for words to answer the questions that were posed him. He knew what he was giving evidence against. He told all the truth that was best known to him even if it was against him. He is a witness of the truth. I accept his evidence without reservation. I reject the evidence of the accused which is unsworn untested unverified from the dock. His evidence does not meet the standard that has been discharged by the evidence of the principal witnesses father and the daughter for the State.
    
12. Canvassed against the Accused he is in my view a very selective witness. He is prepared to tell what is conducive to his case not all. He has picked all the points that will sustain his defence not the whole truth as it is known to him. His has chosen to shy away from the truth in giving an unsworn statement from the Dock. Which is conducive to his cause, because he will not be examined in its veracity, and truthfulness. Which denies its veracity as against the testimony of both father and daughter which has been vigorously tested out by the defence in cross examination. In my view it has not been tatted or dozed through with holes to sink the State’s case in all material particulars. Because the fact is no one except the accused accompanied by his brother Gilman Sua attacked the father and daughter in their dwelling house after breaking entering it. And within which there was intent to commit a crime, which crime was perpetrated of assault upon Bion Kamba with the bush knife upon his body. Both witnesses were enclosed locked within their dwelling house that was made accessible for entry by the accused breaking it, and entering, and then committing the crime of assault upon the father sustaining the charge. It is not the situation observed in Daugamani, Regina v [1965-66] PNGLR 80. Here there is breaking entering and the commission of the crime of assault that is aggravated by the use of a bush knife upon the body of the witness injuring him. The accused has not entered into the dwelling invited by the witnesses or accessed by unlocking to gain access. He has forced by breaking into the dwelling unwelcomed by the occupants the witnesses of the state, and assaulting the witness with a weapon a bush knife at night-time which aggravates his conduct upon the witness.
    
13. The submission and contention of the defence that there must be a crime committed is without any merit because that is the evidence. A serious criminal offence has been committed upon the witnesses at the hands of the Accused. He has broken into the dwelling house and assaulted the witness with a bush knife in their house. There is no basis in law for the submission of the defence and I reject it in its entirety. It has not been backed by any law and has no legs to stand comparable with the evidence led by the state.
    
14. The house was being set on fire at 6.00am in the morning when it was already broad daylight. That is the reason Bion Kamba was able to identify both accused, notably the accused before the court Jordan Sua. And that is also the evidence of the daughter. Both are consistent credible accounts tested by cross examination both by the parties and the Court. And which must be accepted as the truth compared to the unsworn statement by the Accused from the Dock.
    
15. The dates contended on arraignment are that of being the 23^rd of February 2021 and the indictment dates the 23^rd February 2020 as the date of the allegation. Counsel prosecuting has submitted that the dates have been a typing error and that the date is that on the indictment not on the facts on arraignment. I have examined that contention and, in my view, it sustains because the evidence of both State witnesses is 23^rd February 2020. It is clear that is the evidence which ties to the Indictment including the record of interview exhibit P1, Pidgin original dated the 25^th November 2020. And English translation P1(a). Exhibit P2 and P3 are the Arresting officer and Corroborating Officers in the Record of Interview basically stating what they did in the drawing up of it.
    
16. Of relevance in it the Accused has simply exercised his right to silence. There is no evidence that would advance the State case any further. And conversely it does not advance the case of the accused. He is not obligated to prove his innocence. The burden is always on the State. It is clear that 3.00am to 4.00am in the morning is still dark. And to be able to see there must be light. Here there was a florescent light tube that was in the window side prompting the observations that were made by the witnesses. But the burning of the house is not in light by the evidence of both Bion Kamba father and Kimberley Kamba daughter. The father states the burning was at around 6.00am so he was able to see. The daughter says it was about 3.00am to 4.00am. And she was making the observations at 20 to 25 meters from the house of Mark Kamai. And it was after the florescent lighting tube was smashed. Common sense and logic do not approve that this is always the case. It would be unlikely to pick out a person in the early hours of the morning at 3.00am and 4.00am to spot what a witness was doing in the dark without any lights.
    
17. But it is undisputed that the accused and his brother broke and entered the house of the witnesses and attacked the father inside. And were seen in that assault that is contended by Bion Kamba and Kimberley Kamba. It is a serious assault with a bush knife that has injured Bion Kamba on his right hand and on his head. He is the complainant in the matter. He wants the Court to believe him on the version he makes with the assertions that they referring to the accused and the brother had bribed his wife. Gilman Sua had sexual intercourse with his wife. “My wife sold her body to big brother.” This is evidence against the case that he contends, but he is prepared to disclose that fact on oath in court. It would be motive for his evidence against the accused. But if this is the evidence by itself, there would be doubts in the identification of the Accused as the assailant. And doubts as to his evidence.
    
18. What sets out his evidence is that the identification is particularized as to what position he was witnessing and identifying the accused. I was sleeping both brothers broke and entered fought with me using a bush knife. I blocked them using my hand and came down to the ground. And later around 6.00am they came and burn down my house. I was at compound and saw my house burning down. Two brothers are at Lavege. They were both inside my house when I jumped down. Jordon came with the petrol fuel poured it around the house inside the house and set it a lit with match. I lived there for a long time since 1990s up to 2000 I know both of them. I was watching at Mark Kamai’s house I saw him burning down my house. Which is about 20 to 25 meters. When suggested that other people burnt down his house, he firmed that it was the two brothers. One of whom was Jordon who came down from Beon and was sitting there, pointing the accused in court in the dock. He made the identification of the accused in light similar to the lights in court, florescent tube. And that the accused and is brother had come earlier on in the night about 10.00pm to 11.00pm, he argued with them, and Jordon returned again in the early hours of 3.00am and 4.00am and assaulted him. He ran out of the house to Mark Kamai’s house from where he stood and watched him poured petrol fuel inside and outside house. Then strike a match and set it on fire burning it down destroying it. It means this is light that lights up the darkness and it would be bright to see the accused and his brother in it. The house is destroyed by it. The fire starts out from Petrol fuel. It is accepted that this fire will be lit up very fast. And fire brings light with it. Hence identification was made given. So, the identification is made in good light given these facts by the evidence. There is no evidence that the Accused immediately left the scene after assaulting him in the house. He remains and burns down the house. He is seen by the father and the daughter as he sets about to burn down the house.
    
19. In all material aspects this is the same consistent and credible evidence of the daughter Kimberley Kamba. She mentions another person also amongst them as Koko Rodney. That going towards daybreak they lit it and set it on fire. They poured petrol to the house inside and outside lit it. They were Jordon and Gilman. And she identified the accused in Court who had a mask over his face whilst in court confirming with protocol. But she identified him as the person she saw from Mark Kamai’s house . Because there was nothing in between obstructing her views to what the accused was doing to their house. She was sad and watched because her brother’s books uniform and her father’s work papers were all burnt up in that fire. It was not far 20 to 25 meters and both of them were not wearing masks so I saw both brothers Jordon and Gilman Sua. When put that She was lying she said the accused was lying as She saw him with his brother. And she expands that she heard them come to the house. And Jordon said to her father to open the door. The place was deserted there were seven of them, five were masked and two brothers were not masked and I saw them. It was Jordon and Gilman who did that, Jordon poured petrol and Gilman lit it. I can see Jordon points to Accused in the Dock.
    
20. Accused has given an unsworn evidence from the Dock. It is evidence but is not on the same weight as that of the sworn testimony, “In assessing the evidence, the trial judge had quite correctly alluded to the fundamental and well settled principle of law that, an unsworn statement, though is evidence in the case, does not have the same weight as sworn evidence: R v Phillips Boike Ulel [1973] PNGLR 254. Which was approved and endorsed in Kassman v The State [2004] PGSC 9; SC759 (20 August 2004). Here that is the law which is applied in the consideration of the unsworn statement of the Accused with the sworn evidence of the two state witnesses. Both have had their veracity tested and so would fare more than the unsworn statement from the dock of the Accused here. His unsworn statement is self-serving deposing to an alibi that he was not at the location contended by the State witnesses. That alibi is not the subject of a notice of Alibi under the Criminal Practise rules, Order 4 Division 2 Notice of alibi. It is not given within 14 days to the State so that it is verified by the State. Here there is no witnesses called to independently verify the assertion of the accused. He is therefore self-serving an alibi in the face of identification evidence by both State witnesses’ father and daughter who are adamant he was the person they saw. Because they had lived together at that area since the 1990s according to the father. And a long time according to the daughter.
    
21. It was not a case of being in the dark of the night where visibility was zero to none. This is not the situation that was observed in Bate v State [2012] PGSC 46; SC1216 (20 December 2012) where the supreme court overturned the conviction because the evidence on identification was not beyond all reasonable doubt. It did not caution itself in taking account of that evidence upon which it returned the guilty verdict. Recognition was well but there were cases where even then mistakes were made. And that the reliability of the evidence could be the basis upon which the conviction was safe considering. Adverse inferences could not be made upon the case of the Accused that they did not disclose the Alibi at the first opportunity with the Police.
    
22. He has asserted unsworn that he had seen the blood that was on his brother and reacted when it was already broad daylight at 6.00am. It was to a different person against whom he set the house on fire. He has pleaded guilty to it and is serving time in jail for it. The problem with holding this in his favour is that there is no certificate of conviction depicting out the date time of the offence. Which effect will be to place him away from the present allegation. So, it would be his unsworn word against that sworn on oath of both father and daughter. Its consideration is without any other evidence to support it in any material particular that he was indeed where he was as he contends. There was no other evidence to confirm that he was never at the scene as contended by the state except his own word. Had he called evidence to support where he was at the time of the allegation by the State, it would have added to the weight of his case. As it is his assertion is not the same when weighed with the sworn evidence of the State witnesses, father, and daughter.
    
23. In so making this determination I am mindful that the burden is always on He who alleges not the other way around. The State bears the burden to succeed beyond all reasonable doubt not without. The defendant is not obliged to disclose his defence or his alibi there and then. Not even in the record of interview, Tonde v The State[1994] PNGLR 539. But where there is weight to be drawn in its weighing it does seriously in my view, affect the way to be given it in the determination of whether the allegation he raises succeeds or goes by the wayside. The converse is where it is consciously made in the face of evidence of guilt to avoid that, it has been held that a false alibi can amount to corroboration of the assertion made by the Prosecution, Jaminan v The State [1983] PNGLR 318. Here the assertion of the accused are not genuine that he was at another location.
    
24. The question is if it was indeed credible, why take an unsworn statement from the Dock? What is glaring is that a ring of truth spirals through their evidence so much so that the version credible is that of the state which I prefer over and above that of the accused that he was at another location and therefore not seen by the State witnesses, Kandakason v The State [1998] PGSC 20; SC558; Waranaka v Dusava [2009] PGSC 11; SC980, because assessment of logic and common sense and consistency in evidence are important tests for credibility of witnesses and their testimony. Any serious unexplained inconsistency in evidence, and evidence not in keeping with logic and common sense are basis for rejection of such evidence. That is not the case against the witnesses of the State, father, and daughter, but is the case for the defence because he has asserted an alibi that has come out without a notice to that effect. And it is unsworn baked out at the eleventh hour without its internals cooked well to sustain credible for the Accused. It means in aggregate that he is left high and dry in his cause. What he has turned does not favour his assertion but corroborates the account that the State has wheeled through its witnesses both father and daughter.
    
25. In simple accused has lied in the face of the fact that he has been singled out as their assailant. His lies which are consciously concocted out in the face of guilt are corroboration of the accounts that the father and daughter have made out against him. Relevantly therefore the law is as set out in Beng v The State [1977] PNGLR 115 in these terms:
    

“ In proceedings where 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.

When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.”

26. I caution that mistakes have been made in the identification of known persons. But here the circumstances that I describe above do not give cause for mistake in the identification of the Accused. There is more than material opportunity to make the identification firm that there is no other person other than the accused who is seen. He is not seen in a fleeting glance situation. Or in difficult lighting situation, where the witnesses both are straining to make out his identity. He has been recognized by name at very close quarters bodies touching as he commits the assaults with the bush knife upon the father seen by the daughter within the confines of their dwelling house that he has broke and entered into. His voice has been confirmed. He has earlier attacked them with his brother at 10.00 pm to 11.00pm and has carried on with the attack later. The daughter has expected his return as she was awake when he arrived calling out to them in the house. This is identification evidence that is tested and will not be ignored compared to the unsworn statement from the Dock by the Accused. When parallel out with Beng’s case (supra) there can be no other hypothesis drawn other than the guilt of the Accused identified square as the assailant captured by count 1 on the Indictment and count 2 on the Indictment. He is the author of both allegations and the State has discharged the burden. Because he is observed in light as he sets the fuel to the house pouring it out onto the house then striking match setting it to the alight burning the house down. Both remain and are seen in that light as responsible for what the witnesses sustain at their hands. Jordon Sua is seen together with his brother Gilman Sua authors of the crime. The State has discharged the burden beyond all reasonable doubt of the identity of the Accused Jordon Sua as responsible for the criminal offences charged in count 1 and count 2 on the Indictment. I find him guilty on both counts and convict him accordingly of both counts.
    
27. Accordingly, the verdict of the Court is guilty of count 1 contrary to section 395 (1) (c) against the Accused as indicted. And secondly guilty of count 2 Arson contrary to section 436 (a) of the Criminal Code Act against the accused Jordon Sua committed upon Bion Kamba.
    

Ordered Accordingly
__________________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant