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State v Sakna (No 1) [2022] PGNC 378; N9919 (14 September 2022)

N9919

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1368 OF 2019

THE STATE

V

NAPOLEON SAKNA
(No 1)

Wewak: Miviri J
2022: 23^rd June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Arson 436 CCA – Alternative Charge Wilful & Unlawful Damage Section 444 (1) CCA – Trial – Land rover Discovery Motor Vehicle – Conflict – set on fire – destroyed – Identification of Assailant – Sworn Evidence State – Vehicle Burnt Down – Who Burnt It Down – Accused Denies – Sworn Evidence of Accused – Alibi – No Notice – False – Question of Credibility – No Motive Against Accused – Circumstances of Identification Good – Identification of Known Person – Circumstances Incompatible with Mistaken Identification – Guilty of Arson – Bail refunded forthwith – Remanded.

Facts
Accused argued and fought with the victim and then set fire to his vehicle destroying it completely.

Held
Good Identification
Guilty of Arson
Bail Refunded
Remanded to await Sentence.

Cases Cited:
The State v Beng [1977] PNGLR 115
John Jaminan v The State [1983] PNGLR 318
Kandakason v The State [1998] PGSC 20; SC558
Waranaka v Dusava [2009] PGSC 11; SC980

Counsel:

F. Popeu, for the State
D. Kana, for the Defendant

VERDICT

14^th September, 2022

1. MIVIRI J: This is the verdict after trial of Napoleon Sakna of Mindibit, Angoram District, East Sepik Province for Arson pursuant to section 436 of the Code. Alternatively for wilful and unlawful damage pursuant to section 444 (1) also of the Code.
   
2. The facts relied on in pursuit are that on the 07^th of July 2018 at Kreer village Wewak, the Accused had no lawful excuse nor justification for setting on fire and destroying a motor vehicle, a Land rover discovery TDI White in Colour registered number WAE 406 the property of one Kevin Soopring. On that day the Accused was at Kreer village when the subject vehicle was driven there by one Daniel Simingu. On seeing it the Accused accompanied by friends and relatives went to it alleging it had caused the death of a relative earlier. Which culminated in confrontation between the family of Daniel Simingu. The Accused had a bush knife that he used to cut up the vehicle. And when Daniel Simingu tried to stop him, he was cut on the forehead. And the vehicle was pushed to the side and set on fire burning and destroying it. The Accused aided and abetted the offence contrary to section 7 of the Code. He contravened section 436 of the Criminal code.
   
3. It is in the following terms, “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.”

4. The State invoked section 436 (e) in his case. He entered a not guilty plea. This meant that the State needed to prove that the Accused was the person responsible for wilfully and unlawfully setting fire to the vehicle and destroying it.
   
5. To this end the state called on oath Daniel Simingu who was also from Kreer village. He was born there and worked as a private Electrical Contractor. On that day 07^th July 2018 he was with his cousin at Kreer village in front of the house of Chris Kabai’s man house. And whilst there Naomi Momo accused that the vehicle driven by the witness when it was driven by Kevin Soopring killed her father. And to which the Accused appeared from nowhere and damaged the glasses of the vehicle, white Land Rover Registered number WAE 406. It belonged to his brother one Kevin Soopring. He damaged the vehicle and swung the bush knife at me twice almost chopping off my neck. So, I wrestled with him and my face was cut as a result. The scar is on my right forehead. I lost a lot of blood and they pushed the vehicle into the open space and proceeded to burn it down. I was in the hospital. And the reason for what the accused did is not clear. He was in a big group. And he was one in the group that did this. Because they were swearing and under the influence of alcohol when they came. I drove the vehicle there and it was there since 12 midday and they set fire to it at 8.00pm. I know Napoleon Sakna because his mother gave birth to him there and we live there together. And he is sitting on the other side. I did not see the vehicle being set on fire. After the incident I only saw the burnt out frame of the vehicle there. And I did not do anything as the tension was high. Yes, that is the vehicle I drove in the photographs which was pushed to the field and burnt. I tried to stop him, he cut me and the others pushed the vehicle to the field. And I was taken to the hospital because I lost a lot of blood.
   
6. This was materially the evidence of Daniel Simingu and he was backed up in his evidence by Augustine Kabai. Also, from Kreer village he was employed with PNG Institute of Medical Research and on that day 07^th July 2018 was at Kreer at 5.30pm to late. He was infront of the house where the incident arose. To attend a gathering to take off a mourning house, “haus Karai”, and had finished and were just in front when the incident arose. A small argument occurred over the vehicle that we were using to move around. Napoleon came after following the argument cut the vehicle and smashed its glasses. It was a white vehicle a corolla Ranger. And we tried to stop him whilst he was doing this. When Daniel who was driving went to stop him, he swung the bush knife at him. Daniel avoided but got cut on the forehead. We stopped and rushed him to the hospital. It was clear it was 5.30pm and we could see. But they came with force so pulled the vehicle and burnt it. And we stood watching it burn down at the Kreer village field. The vehicle belongs to Kevin Soopring who is in Australia. But Daniel looks after it. Yes, that is the vehicle in the photos.
   
7. And I know Napoleon because he is son of a sister in the community. I was born there and grew up there and so know him. Napoleon Sakna was at the start and at the end when the vehicle was burnt and destroyed. And he identifies the vehicle as a white vehicle, a corolla ranger. Obviously, he is not knowledgeable about the model and make of the vehicle. But he is consistent that he stood and watched it burnt down at the gathering at Kreer field. And he sums it up stating Napoleon started it and ended it. He was at the start of the incident right to its end.
   
8. Which evidence is challenged by the Accused in his defence firstly in the record of interview marked as Exhibit P1 pidgin version, English translation P1(a) that he elects to remain silent and does not disclose that he had since left after the confrontation with the principal witness Daniel Simingu. The version in the court on oath is that he witnessed Naomi Momo asking for the removal of the subject vehicle driven by Daniel Simingu. To which an argument developed and the same vehicle also almost bumped him with his wife and children. And he admits that he swung the bush knife and cut Daniel Simingu on his head. After that they took him to the hospital and he went back to his own house after that, ate and then slept. And he does not know that the vehicle was set on fire and destroyed.
   
9. He is supported in his evidence by one Sharon Karo, aged 40 years old who works at South Sea Tuna who witnesses that on the 07^th July 2018 she ran back to the house of the parents of the Accused fetched them up and they took him back to the house. His father was cross with him had him eat his food. He sat and he was eating and noise of the damage that was done to the vehicle was heard. And the vehicle was damaged by those who had grudges with the owner of the vehicle because of the death of Walter that was not settled. And the Accused was inside the house when the vehicle was burnt up.
   
10. This witness of the Accused is his sister-in-law because accused is married to her small sister. And she acknowledged that the Accused was drunk on that occasion. But the sister-in-law says both Daniel Simingu and Augustine Kabai were drunk as they had been drinking that day to when the offence allegedly took place. Yet at the same time she was out looking for food to help in the haus karai. And preparing food so it does not make sense as to when she made the observation against both witnesses of the State. Her evidence does not tie in with that of the Accused in the withdrawal of the accused from the scene after the initial assault. That is consistent with the State account but varied by the omission of the facts leading to the offence against the Accused. She and the Accused have opted to create an alibi that was not there in the first place. When the lighting is good identification is good. And when it is made of a fellow villager a relative at close quarters that is good identification of the perpetrator of the allegation. Because when she explains that the noise of the damage that was done to the vehicle was heard when the Accused was eating. She does not explain how she distinguishes and identifies that sound as made by damage done to the vehicle. Not just any other vehicle but the subject vehicle. She is sure of it even though she was not there witnessing its destruction and setting on fire, because she was with the accused as his father got cross with him and told him to eat, a grown man not a toddler or young teenager. She has an incredible account that does not add to the Accused alibi. It adds and corroborates the State account of the identity of the Accused as one of the perpetrators of the Assault together with the assailants she has named as Aron, Judas, Junior, and friends. She does not explain why she names them as responsible for the offence other than that they were drinking together.
    
11. There is effectively an alibi that the Accused has put up by this evidence. That the offence was committed but he did not commit it because his own parents removed him after his sister-in-law alerted his parents who came up and removed him from what he was doing. He did not continue as he was no longer at the scene where the vehicle was and burnt up and damaged. There is no notice filed in accordance with the Criminal Practise Rules, Order 4 Division 2 Notice of Alibi. So this is in effect a late alibi in the face of evidence that identifies him as the perpetrator of the allegation. Because if it was what happened that day a notice of alibi would have been filed and evidence led at first instance. No notice has been filed it means the credibility of the alibi is not there. Because both Daniel Simingu and Augustine Kabai both know the Accused as they are all from the same village of Kreer. Both maintained their evidence that they saw the Accused do what is alleged. There was light and Augustine Kabai says that the Accused is a son of his cousin sister. He was there at the beginning of the offence to the end of the offence. The conditions of lighting described by the witnesses for the prosecution fulfill what is observed in The State v Beng [1977] PNGLR 115. Because the accused is not a stranger, he is from the same village related to the witnesses and seen at close quarters in good light. The identification meets the test and the principles of law set out by the Beng case set out above.
    
12. And the lateness of the Alibi fulfills the observation made in John Jaminan v The State [1983] PNGLR 318. That a false alibi has been held to corroborate the account of the Prosecution. Here that is the status of the evidence that the Accused has led. He has created a false alibi that he left the scene and was not there. He was escorted by his parents and never returned to the scene. It strengthens the State case on his identification as the instigator and perpetrator of the offence. I have observed the witnesses for the State, both Daniel Simingu and Augustine Kabai give evidence. I have no reservation to doubt the evidence that they gave. I found both to be truthful. Daniel Simingu said he was not there to see who set fire to his brothers’ vehicle that he drove. Because he was attacked by the Accused and suffered cut to his head for which he was rushed to the hospital. The pieces that he did not see are filled out by Augustine Kabai who saw the role of the accused from beginning to end.
    
13. For the reasons I set out above I prefer the evidence of the prosecution over the accused. I believe the State witnesses because the Accused has serious unexplained inconsistencies in his evidence in the lateness of his alibi. And viewed in that perspective his evidence does not anchor with logic and common sense. He has the right to his silence but for consistency and credibility it makes every sense to disclose his alibi at the first given opportunity. That has not happened hence leaves his credibility as a witnesses of truth not on the same footing as that of the State witnesses. I therefore on that basis reject his evidence: Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); I am firm in this regard also in the light of Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009) upon the basis of which I hold forth in the evidence of the State.
    
14. Accordingly, there is no doubt that the Accused was at the scene of the arson. He wilfully and unlawfully set fire to the vehicle. In that he aided and abetted the others to set the vehicle on fire. He started the assault upon the witness complainant that led eventually to the vehicle being pushed to the field and then set on fire because it was allegedly involved in the death of the father of one Naomi Momo. There is no doubt that the Accused has been identified as the principal offender in the arson of the vehicle a Land rover discovery TDI White in Colour registered number WAE 406 the property of one Kevin Soopring. I find him guilty as charged on the indictment of Arson pursuant to section 436 (e) of the Criminal Code Act.
    
15. The verdict is guilty of Arson on the basis of which I order that his bail money is refunded forthwith, and he is remanded to await his sentence in jail.
    

Ordered Accordingly
__________________________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant