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Public Prosecutor v Naicah [2003] VUSC 26; Criminal Case No 013 & 014 of 2003 (26 May 2003)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 13 of 2003
Criminal Case No. 14 of 2003

PUBLIC PROSECUTOR

-v-

CHARLIE NAICAH
HARRY AMBUA
SIRI KALO
IAN WILLIE
DEVI ROBERT

JUDGMENT

On 8th February 2002 in the morning there was great tension in and around Marae Village on the island of Emae. The defendants and others came from other villages. The house of Joel Meto was burned to the ground. The VCMB copra dock and its contents were burned. Other incidents of stoning and chasing took place. The central questions are whether the prosecution have proved beyond reasonable doubt it was Charlie Naicah and Harry Ambua who burned the copra dock and Siri Kalo, Ian Willie and Devi Robert who burned Meto's house.

I must consider each charge separately and each defendant separately. It must not be assumed that because one verdict is to be entered for one defendant, the same verdict applies to any others. I examine the evidence against each defendant separately, although necessarily there is a lot of overlapping.

The prosecution say there are eye-witnesses in relation to each defendant's culpability and all but Robert made confession statements to the police two days later. The defence say the witnesses are mistaken in their identifications, the circumstances were such that reliance cannot be placed on them. The defence also stated the confessions were not voluntary. A voir dire was held and the statements of Naicah, Kalo and Willie were ruled voluntary and admissible. Nevertheless, I re-examine, in reaching a verdict, the question whether or not the prosecution have proved beyond reasonable doubt the statements of these three were made voluntarily.

This is a criminal trial. It is for the prosecution to prove their case, and do so beyond reasonable doubt. It is not for these defendants' to prove anything.

At a preliminary hearing counsel for the defendants was required to make sure the defence had proofs of evidence from all the defendants and notes ready for cross-examination as to where the defence disagreed with the prosecution witnesses. Although there was no obligation to do so the proofs and notes were handed to the Court at the beginning of the trial.

It must be stated that this trial has been particularly difficult to hear in view of the fact that both counsel for the prosecution and defence had not prepared their respective cases as well as is to be expected, and were not conversant with some basic criminal procedure, practice and evidence law. This again illustrates the need for greater training before admission and a system of articles or pupilage.

Charlie Naicah and Harry Ambua are charged as follows:-

"Statement Blong Rong

ARSON - Agensem section 134 (1) Penal Code Act [CAP. 135]

Particulars Blong Rong

CHARLEY NAICAH mo HARRY AMBUA yutufala blong Emae. Samtaem long namba 8th February 2002 long Marae Village, Emae, yutufala ibin bornem dock blong copra long Marae village mo long taem ia yutufala isave gud se hemi property blong narafala man."

Siri Kalo, Ian Willie and Devi Robert are charged as follows:-

"Statement Blong Rong

ARSON - Agensem section 134 (1) Penal Code Act [CAP.135]

Particulars Blong Rong

SIRI KALO, IAN WILLIE mo DEVI ROBERT yufala blong Emae. Samtaem long namba 8th February 2002 long Marae village Emae, yufala ibin bornem haos blong sleep blong Mr. JOEL METO mekem se hemi harem nogud tumas."

I will now consider the evidence of each witness in turn. These are cases of recognition. I remind myself of the Turnbull guidelines, and in particular examine all the circumstances surrounding the recognition in each individual case.

Boua Toara is 38 years. He had known Kalo, Willie and Robert for a long time, "since I was young". He said he was in the garden of his house in the morning of 8th February. He saw Kalo had a mat which he lit. Robert had some lit coconut leaves, as did Willie. They each put the fire under the roof of Meto's leaf house. He drew a diagram where each put the fire, P1. He said the fire was big. At the end the house was burnt to the ground. Two photographs identified by Leiwia David show this.

In cross-examination he agreed the date in his statement was wrong. It was a mistake. He said he could see from his garden. There were no houses in the way nor were the bushes or plants that obscured the view. He gave the distance as the same as from the Prosecutions office to the corner of the Court. He had not run away or was frightened as he had been told his house would not be touched. It was suggested there was heavy rain. He denied that, saying there was only a shower.

I have the evidence of the defence witness Moses Titongoa. He drew a sketch plan which shows the position of Boua Toara's house and that of Meto. Whilst exact positions are not shown, there is a line of sight from Toara's house to that of Meto.

I accept the evidence of Toara. I found impressive his description of how and specifically where on Meto's house the fire was placed. There is some distance between the houses, but not one, on the face of the evidence, which necessarily would preclude a line of sight. Heavy rain might have caused visual problems, but I am satisfied it was more light rain or a shower.

I consider the evidence of Jimmy Kalo. His house is directly opposite to Meto's house and the VCMB dock. He is 40 years old and has known the defendants for a long time.

He remembered a small chief of Emae leading three men. The small chief was not in Court. The small chief told Kalo not to be frightened, "stay quiet in your home". He stayed in his yard. He said there was a riot between people from Sasake and Sangavah on the one side and half of Marae on the other.

He saw Naicah and Ambua whom he has known for twenty years go to the copra dock, about 25 meters from his house. Others were there. A full drum of kerosene was inside the dock. Naicah and Ambua went in. He saw Naicah bend down and strike matches. Ambua was there. There was "nothing in the way of my view". The dock burned for several days.

He looked across to Meto's house, about 10 meters away and saw Kalo and Willie in the kitchen, an open-sided bush kitchen. They put fire in the kitchen; Devi Robert was outside. There were no others around the kitchen then. The fire became big.

In cross-examination he said it was a small shower not heavy rain. He did not reply when asked why he didn't stop them. He said he was not stationery while watching, there were no trees or plants in his line of view. He said "they attacked any people, then ran away".

I accept his evidence. It was clear, not exaggerated or adding detail. It is consistent with that of Toara. It is important to note Kalo would be looking from one end of Meto's house, Toara across the opposite end.

It was Leiwia David's house that was burnt. She has known Siri Kalo, Willie and Robert for a long time. She was in her house on 8th February when the door fell down. She ran outside with her two year old girl. She looked back at her house and saw three men putting fire to it. She said Robert, Siri Kalo and Ian Willie were the three. She said Kalo had a mat on fire, and Robert and Willie coconut leaves. (This is consistent with Toara. The position is also consistent Jimmy Kalo and his line of sight and what he described). She said her house was completely burnt. She was very afraid.

Although cross-examination was not lengthy, nor very rigorous, Leiwia David was expecting a baby at any time, she was clear and unshaken in her evidence. I accept it. The first question put was "You were frightened and you couldn't see who put the fire". She replied "I was standing there, and I saw".

I accept her evidence. It must be noted that in her statement she did not say who had made the fire. I therefore accept her evidence on identification to the point that it is not inconsistent with Toara and Jimmy Kalo.

Joseph Kalo went to Marae village on 12th February. He said the copra was still burning. He described the dock, its construction and cost. It was a write-off.

Frazer Tambe was called again and formally produced the statements to police of Naicah, Siri Kalo and Ian Willie. I have reconsidered the statements of these three defendants and their voluntariness. For the reasons set out on the ruling on the voir dire, and having considered each of the defendants evidence on this I accept the evidence of Tambe. I am satisfied the statements made by Naicah, Kalo and Willie to the police were voluntary.

I now consider the defendants' evidence. I consider each in turn. What is clear is that on the morning of 8th February a message went out from Marae village requesting help, physical help. Several men from Sasake and Sangavah went to Marae, about 20 - 30. They met at or near Amos Titongoa's house and were given instructions. Then there took place the chasing and stoning of a large number of people in Marae. Meto's house and the VCMB dock were burned. Other houses were burned.

Charlie Naicah said on 7th February, Leslie Peter had asked for security in Marae. On 8th he and others went down to Marae to Amos house. He stayed there till after lunch. He didn't leave as it was raining heavily. He then returned to Sasake. He did see smoke, but didn't take part.

On 9th or 10th February he saw police and VMF assaulting people. He had not been in such a situation before. His statement was not read to him, he was just told to sign it. He agreed that at no time did Tambe hit him or threaten him. Nobody threatened him when he made the statement. He said apart from Amos family he was the only one at the house.

I do not accept his evidence. I do not believe he went down with the group of men in these circumstances and just stayed for a few hours at Amos house and then returned. Many people came to Amos house, including the other defendants. I don't accept he would have just stood and watched the smoke from such fires that were going on.

I am satisfied beyond reasonable doubt that Charlie Naicah together with others were directed to set fires. He went to the copra dock and did that. I find him guilty.

Harry Ambua was at the Sangavah nakamal when a letter arrived from Chief Leslie in Marae asking for security. He went with Ian Willie to Amos house in Marae. There were many people there. They were told that the property of Leslie and a woman had been damaged. He said he went to assist in keeping the peace. Stones were thrown at him. He went to the nakamal. He saw a lot of smoke but didn't go to look more closely. He stayed at the nakamal for a while, went to Amos house, then back to Sangavah.

I have ruled the statement of Ambua inadmissible. However, I reject the evidence of Ambua. From observing his demeanour I am satisfied beyond doubt he was part of the group that went to Marae, rendezvous'd at Amos house and then went out to do damage. He went to the dock and assisted in setting fire to it. I find him guilty and convict as charged.

I turn to the case of Siri Kalo. He was at Sasake village and heard about the trouble. He went with Naicah to Marae. It was raining heavily. He went to Amos house. He stayed there with others for about an hour then went out to try to make peace. He then went to the nakamal to look after people there until the police arrived. He denied going to Meto's house at any time. He did not know who burnt it. He repeated what was said in the voir dire concerning his statement to police.

I reject his evidence. He was seen putting fire to Meto's house. He admitted this in his statement to police. When it was put to him in cross-examination he had put the fire he denied it, yet clearly from his reaction to the question he knew he was not telling the truth. I find him guilty and convict him as charged.

Ian Willie was at Sangavah village when the letter arrived asking for security help.

He went with Ambua to Amos house in Marae. He was told to look for the people causing trouble. He tried talking to one person but he ran away. He then went to the nakamal and from there saw smoke. He was frightened and stayed there. He reiterated what he said in the voir dire about the statement. He didn't read it before signing it. He was told to sign, and did so. He said Amos' house had been full up with men. It was raining. They came out in a big group and others ran away. He knew Meto, but didn't know where his house was.

Ian Willie's reaction when it was put to him he had burnt Meto's house was the same as Siri Kalo. He denied it, but clearly know he was not telling the truth. I find him guilty and convict as charged.

Devi Robert gave evidence. He went to Warana to make a telephone call to Port Vila. A walk of 30 - 45 minutes. There he saw Timothy and Ben Toara. He made his call then went to Amos house in Marae. He only stayed a short time there, then went to the nakamal. He saw smoke when he was at the nakamal, then returned to Amos house. He denied having anything to do with the house burning. He said Meto is a good friend of his.

I did not believe the evidence of Devi Robert. He was known and seen by three eye-witnesses at the house of Meto when he denied going there. He was part of the group that went down to Marae and assembled at Amos house. I accept he did go to the telephone and make a call. However, he is not telling the truth about what happened soon afterwards. I find him guilty and convict as charged.

There are some inconsistencies in the statements to police of the defendants. I do not find these affect the specific findings made.

I accept the evidence of Moses Titongoa. It corroborates the telephone call of Devi Robert. He drew the plan D1. I consider his evidence carefully about the question of trees and plants around houses and the viewing line of witnesses. Before February 2002 he last visited Marae in December 2001. It is unlikely the plants and trees would be much different at that time. The photographs don't specifically help about the height or the position of trees and plants. There may well have been some plants in between, though not precluding lines of sight. I accept the evidence of Toara, Jimmy Kalo and Leiwia David and find that they would not have said they could see what they did if they couldn't.

Timothy Timakata gave evidence about ringing the bell and his organisation of the repair to the nakamal in his village. He received the letter about the problem in Marae. He told people to go to Marae to calm things. He decided to call the police and saw Devi Robert at the telephone. He asked the police to come quickly. While there he heard a house was burnt down. He went to Marae to try to keep things quiet. When he arrived he saw a burnt house. He had not told the boys to burn houses, or anything like that.

Whilst I do not reject the evidence of Chief Timothy it is clear he knows more of what went on than he has told the Court. I cannot say when exactly he arrived in Marae. However, I am satisfied there was sufficient time for Devi Robert to go to Marae and become a party to the arson before he arrived.

Accordingly I find all five defendants guilty as charged of arson.

Dated at Port Vila, this 26th day of May 2003.

R. J. COVENTRY
Judge.