Public Prosecutor v Kalki

 

A. Introduction

 

1. The charges relate to alleged offending on 24 March 2024 on Tanna island involving unlawful assembly, criminal trespass, intentional assault, arson, kidnapping, threats to kill and false imprisonment. It is alleged that the Defendants John Kalki, Lakin Iaham, Luata Sam, Steven Bebe, Willie Talai, Lakin Royal, Jack Royal and Frank Sam entered property belonging to Mr Thomas Lakin and the late Tom Rarken and committed the alleged offending.   

 

2. All eight Defendants are charged ^[1] with criminal trespass contrary to para. 144(a) of the Penal Code [CAP. 135] (Count 1), kidnapping contrary to para. 105(b) of the Penal Code (Count 6), unlawful assembly contrary to subs. 68(1) and s. 69 of the Penal Code (Count 7) and false imprisonment contrary to s. 118 of the Penal Code (Count 9).  

 

3. The following defendants are also charged with:  

 

i) Steven Bebe is charged with intentional assault causing damage of a temporary nature contrary to para. 107(b) of the Penal Code (Count 2);

 

ii) John Kalki is charged with intentional assault causing damage of a temporary nature contrary to para. 107(b) of the Penal Code (Count 3) and arson contrary to subs. 134(1) of the Penal Code (Count 5). In closing submissions, Ms Tasso acknowledged that there was no evidence from the Prosecution witnesses in respect of Count 3. Mr Kalki will be acquitted in respect of Count 3;  

 

iii) Lakin Iaham is charged with intentional assault causing damage of a permanent nature contrary to para. 107(c) of the Penal Code (Count 4); and   

 

iv) Frank Sam is charged with threats to kill a person contrary to s. 115 of the Penal Code (Count 8).  

 

B. Law 

 

4. Subsection 68(1) and s. 69 of the Penal Code provide as follows:   

 

 

 

5. The elements of unlawful assembly are as follows:   

 

(i) The defendant along with two or more other persons; 

 

(ii) Assembled with intent to carry out some common purpose; 

 

(iii) Conducted themselves in such a manner as to cause nearby persons reasonably to fear that the persons so assembled will commit a breach of the peace or assembled with intent to commit an offence. 

 

6. Paragraph 105(b) of the Penal Code provides as follows:   

 

 

 

7. The elements of kidnapping are as follows:   

 

 

 

 

8. Paragraphs 107(b) and (c) of the Penal Code provide as follows:    

 

 

 

 

9. The elements, having regard to this case and in respect of Count 2, of intentional assault causing damage of a temporary nature (para. 107(b), Penal Code) are as follows:   

 

(i) Mr Steven Bebe applied force to the body of the complainant;  

 

(ii) Mr Bebe did so intentionally; and 

 

(iii) Caused damage of a temporary nature.  

 

10. The elements, having regard to this case, of intentional assault causing damage of a permanent nature (para. 107(c), Penal Code) are as follows:   

 

(i) Mr Lakin Iaham applied force to the body of the complainant;  

 

(ii) Mr Iaham did so intentionally; and 

 

(iii) Caused damage of a permanent nature. 

 

11. Section 115 of the Penal Code provides as follows:   

 

115. No person shall, knowing the contents thereof, directly or indirectly, cause any person to receive any oral or written threats to kill any person.       

 

12. The elements, having regard to this case, of threat to kill are as follows:   

 

(i) Mr Frank Sam directly caused the complainant to receive an oral threat to kill him;  

 

(ii) Mr Sam knew the contents of the threat; and  

 

(iii) Mr Sam intended the threat to be taken as real.  

 

13. Section 118 of the Penal Code provides as follows:  

 

 

 

14. The elements of false imprisonment are as follows:   

 

(i) The defendant without lawful authority; 

 

(ii) Detained or confined the complainant; and 

 

(iii) Against the complainant’s will. 

 

15. Subsection 134(1) of the Penal Code provides as follows:    

 

 

 

16. The elements, having regard to this case, of arson are as follows:   

 

(i) Mr John Kalki set fire to;

 

(ii) Any building or other property; 

 

(iii) Knowing that the building or property belongs to another person; and 

 

(iv) He did so wilfully and unlawfully.

 

17. Paragraph 144(a) of the Penal Code provides as follows:     

 

 

 

18. The elements of criminal trespass are as follows:    

 

(i) The defendant entered into or upon any property; 

 

(ii) In the possession of another person; and 

 

(iii) With intent to intimidate, insult or annoy any person lawfully in possession of the property. 

 

19. The Prosecution had the onus of proof and was required to establish the allegations beyond a reasonable doubt before a finding of guilt could be made in respect of the charge.   

 

20. Each charge was to be considered as a distinct exercise.    

 

21. The Defendants were not required to establish anything.   

 

22. Only admissible relevant evidence should be taken into account in determining the outcome of the trial. The Prosecution and defence witnesses have equal value, and each witness is to be considered on their own merits.        

 

C. The Evidence 

 

23. The Prosecution called nine witnesses:   

 

i) Thomas Lakin, complainant; 

 

ii) Joshua Iautu Ture; 

 

iii) Thomas Wol, complainant; 

 

iv) Bob Quao; 

 

v) Jason Tom;  

 

vi) Sam Bob; 

 

vii) Joe Laserus; 

 

viii) Dr Maeckely Tamata; and

 

ix) Nam Kuau, Thomas Wol’s father.   

 

24. I assessed the credibility and accuracy of a witness’ evidence not only by how the witness appeared in Court but also by the consistency of accounts. I looked for consistency within the witness’ account; consistency when comparing that account with the accounts of other witnesses; consistency when comparing the witness’ account with relevant exhibits; and considered the inherent likelihood, or not, of the witness’ account.  

 

25. I reminded myself that if I were to draw inferences, they could not be guesses or speculation but had to be logical conclusions drawn from other properly established facts. Adverse inferences are to be drawn only if they are the only available inference to be drawn. Further, if more than one inference was available, the inference most favourable to the defence must be drawn.      

 

26. Four out of the eight defendants gave evidence: John Kalki, Frank Sam, Lakin Iaham and Jack Royal. Where they gave evidence that would exonerate or limit responsibility of an accused person, the Court must consider whether the denial or explanation might reasonably be true. If it could be, then the charge has not been proved beyond reasonable doubt: Koroka v Public Prosecutor [2007] VUCA 3 per the Court of Appeal: 

 

 

 

27. The other four defendants elected to remain silent.   

 

28. The fact that four of the defendants have chosen to exercise their legal right to remain silent will not of itself lead to an inference of guilt against them: s. 88, Criminal Procedure Code [CAP. 136].   

 

D. Prosecution Witnesses’ evidence  

 

29. The first Prosecution witness Mr Thomas Lakin gave evidence that he is from Lounikawik village at Letekran area on Tanna island. He lives at Lenakel town. He is a businessman. On 15 March 2024, John Kalki came to see him and told him about a meeting in which it was planned to burn down his house at Katuteken village. On 23 March 2024, he went to Vila. The following evening, he received a call from Joshua Iautu, whose group of builders from Aniwa island he had put in the house to carry out repairs of the house, who said that a large group had arrived and were stoning the house. He told him to find a truck and for them to leave and go to Lenakel. He said that 45 minutes later, Joshua called him again and said that as they were leaving, the house was set on fire.  

 

30. That house belonged to the late Tom Rarken (son of his brig brother) and now he looks after the house. He spent about VT6 million to repair the house. It was 15 metres long and 7 metres wide, with 3 bedrooms and 1 sitting room. The builders’ equipment burned down with the house. The house was on land declared to his family. An eviction order has been executed there. The purpose of repairing the house was so that it can be given to Tom Rarken’s two children when they grow up.  

 

31. In cross-examination by Mr Molbaleh, Mr Lakin agreed the house burning was very serious. He went to Vila to purchase house-repair materials and returned after a week. It was put to him that he could have returned immediately. He said that there is the village chief to handle the situation. He agreed that he was in Vila so only heard about the alleged offending. He said that the receipts to prove his VT6 million house repair expenses are at the hardware store.   

 

32. There was no re-examination.  

 

33. In the course of Mr Melsul’s cross-examination about the custom ownership of the land where the burned down house is, a green certificate dated 13 November 2023 for Lapangnaputa land, a cover letter from the Custom Land Management Office (‘CLMO’) and a survey plan were adduced into evidence [Exhibit P1] and a land tribunal decision dated 5 February 2010 [Exhibit P2]. Mr Lakin stated that the land was disputed but following the custom ownership declaration in his and his family’s favour, the CLMO issued the Exhibit P1 green certificate to them. He maintained his account about what Mr Kalki told him. He also adduced into evidence copies of the Supreme Court orders dated 9 December 2019 in Land Appeal Case No. 18/2532 and 17/2102 (old ref. LAC 9/14 [Exhibit P3]; the green certificate dated 8 May 2024 for Rakaul Ne custom land on West Tanna (Letekran) [Exhibit P4]; and my Judgment dated 28 January 2022 in Iapatu v Republic of Vanuatu; CC 20/3510 [Exhibit P5].  

 

34. In re-examination, Mr Lakin stated that both green certificates related to the land where the house that burned down is because Lapangnaputa land is inside Rakaul Ne custom land, and the eviction order was for Lapangnaputa land.

 

35. None of the cross-examination displaced Mr Lakin’s evidence. It gave him the opportunity to adduce into evidence documentary evidence about his and his family’s custom ownership of the land where the house that burned down is. The cross-examination allowed Mr Lakin to confirm to the Court that he was in possession of the house that was burned down. I accepted Mr Lakin as a witness of truth and accepted his evidence.   

 

36. The second Prosecution witness Mr Joshua Iautu Ture is a builder, now living in Vila. On Sunday 24 March 2024, he and his employee builders were at the house that Thomas Lakin repaired at Katuteken at Letekran. They were cooking their evening meal when people stoned them with huge stones used to bake food in an earth oven (“ol ston blong laplap”). His builders were so frightened that he stood at the door and shot twice with the gun. They were at the northern side of the house; the stones were coming from the south; he shot into the air to the west to stop the people stoning them. They stopped throwing stones. He called Tom Noam who sent some guys to come help them. Jason and Lazarus arrived and he and his builders left. They walked to the main road then a truck picked them up and they went to Lenakel town. He left the gun with Jason.  

 

37. In cross-examination by Mr Molbaleh, Mr Ture stated that he had 7 employee builders with him at the time. He said they grew and ate island cabbage growing around the house. He denied that they stole food from gardens belonging to people from Latauliko and Laruwenu. He said Thomas Lakin’s garden was damaged by pigs so they did not eat from his garden. He and his builders began staying at the house on 15 March 2024. Mr Lakin gave him the gun. He shot and killed three pigs. He said that he shot the gun twice into the air to stop the stone-throwing, for his and his builders’ safety. He did not see who threw the stones. The stone-throwing stopped. He denied shooting the gun eight times.   

 

38. There was no re-examination.   

 

39. In cross-examination by Mr Melsul, Mr Ture agreed that he did not see who threw the stones. The kitchen they were cooking their evening meal in was made of tarpaulin and iron roofing. It was close to the house. He said that when the stones-throwing started, his builders left the fire that they were cooking their meal on in the kitchen, and they left. It was put to him that the fire which burned the house started from the kitchen – he said that he did not know. 

 

40. In re-examination, he said that the kitchen roof and walls were made of iron roofing, and they pulled a tarpaulin in the front which they sat under to eat their meals. 

 

41. Mr Ture’s account was not displaced by cross-examination. His evidence dovetailed with Mr Lakin’s evidence (including the exhibits that Mr Lakin adduced into evidence) as to the house and yard being in Mr Lakin’s possession. I accepted Mr Ture as a witness of truth and accepted his evidence.  

 

42. The third Prosecution witness Mr Thomas Wol is also known as, “Thomas Nam.” He lives at Launikawi with his wife and 5 children. At night on 24 March 2024, he was at the nakamal and they received word that people were stoning Thomas Lakin’s house. He, Joe Lazarus, Sam Bob, Bob Kuao and Jason Tom went to the house to see who was stoning the house. When they got to the house, he saw Lakin Iaham, Luata Sam, Jack Royal, Lakin Royal, Steven Bebe, Frank Sam and Willie Talai enter Thomas Lakin’s yard. He pointed to each defendant and identified them by name. He also saw John Kalki, Joseph Iesul and Lava Natnau at the time.   

 

43. He said that he became frightened because they were carrying stones for the earth oven, slingshots (“lastic blo pigeon”), machetes (“ol bale knife”) and pieces of wood. He saw who they were in the light from the two spotlights in Mr Lakin’s yard. Then he heard Jason Tom shoot the gun into the air twice and the group left. Then he heard them beating the tamtam (slit gong) at their nakamal. They were still standing at the house and Lakin Iaham and the other Defendants and many more men that he could not see in the dark came into the yard. Mr Iaham swore at them: “Yufala I fuck-fuckem yufala”, “Yufala I fuckem ol papa mo mama blo yufala”, “ol sting kok.” They were carrying machetes, stones for the earth oven, slingshots and pieces of wood. They filled up the yard. He felt even more scared. He backed up but when he looked back, he could not see Jason, Sam, Joe and Bob. He was alone so he started to run away but fell into a hole.  

 

44. He saw Steven Bebe, Lakin Royal and Jack Royal jump into the hole with him. Jack Royal shone a pistol torch at him. Steven Bebe spoke to him and told him to hand over his knife. He handed his knife to Mr Bebe, who then shot a stone at his left eye (touching his left eye as he said this). The shot knocked him to the ground. Jack Royal hit him with a piece of wood on his left side, in the ribs. Then Willie Talai hit and broke his left ear (touching his left ear as he said this). 

 

45. Then they dragged him back to Thomas Lakin’s house, outside a corner of the house. He saw John Kalki bring over three 5-litre plastic containers of benzene. Mr Kalki gave one container to Joseph Iesul, another container to Lava Natnau and he held onto one. Mr Kalki took a stone and broke open the house door with it. Mr Kalki told Talai Noah Napkai, Konia, Noah Napkai, Neuten Noah Napkai, Samson Talai and Sam Iahoi to go inside the house. They brought mattresses, dishes, plates and trays outside and cut those items with their knives and pieces of wood.  

 

46. Then he saw Joseph Iesul, Lapen Noknok and Mr Kalki pouring benzene on the house. When they had done that, he saw Mr Kalki strike a match and set fire to the house. He saw what they did because the security lights illuminated them. Then Lakin Iaham told Sam Iahoi, Johnson Nabengas, Iasu Iapen and Charley Maktuan to carry him. Two of them hung onto his legs and two his arms. On the road, they threw him into the mud. Lakin Royal hit him again, on his right side, in the ribs. They forced him to stand up. Iasu Laken and Sam Iawai held onto his arms and he walked a little forward, on the road towards the Defendants’ place. Luata Sam got a piece of wood and hit him again in his right side, in the ribs. They told him to stand up again. He told them that he was too weak to walk. He saw Sam Iawai, Johnson Nambengas, Charley Mark Tuan and Iasu Iapen carried him to their nakamal and once they got there, threw him like a pig onto the ground. Lakin Iaham came to him and straightened out his left hand, then stepped on his left hand with his safety boot, breaking his hand. Then he kicked him in the mouth – two of his teeth flew out. Mr Wol showed the Court his left hand and his ring finger on that hand that now cannot bend as a result of the injury caused. Mr Wol also showed the Court the gap in his lower left jaw and the gap in his upper left jaw for the missing teeth. Mr Wol also showed the Court the keloid scars on the left and right sides of his back and said that when he was discharged from hospital, a ‘local doctor’ cut his body with glass as part of his treatment using custom medicine (“kastom meresin”). 

 

47. They left him for a small while, then washed him with a bucketful of water. He saw Johnson Nabengas and Sam Iawai stone his head with earth oven stones. Frank Sam lifted up his head and pressed his machete to his neck (touching his throat as he said this) and asked him if he (Mr Wol) stole his marijuana? He told Mr Sam that he does not smoke marijuana and does not know anything about marijuana. Mr Sam also said that if he (Mr Wol) had stolen his marijuana, that he (Mr Sam) would chop his head off. He (Mr Wol) thought that he would be killed. He was still lying on the ground when he saw a Police truck arrive.   

 

48. The Police wanted to take him but the group members argued with the Police and told the Police that they could not take him. He saw many people argue with the Police but saw Iasu Iapen, Johnson Nabengas, Sam Iawai and Lakin Iaham standing with the Police officers. All eight Defendants were there at the nakamal. He said that he was taken to their nakamal against his will. At the nakamal, he asked them to put him somewhere good to sleep because he felt bad from all the pain but they refused to.   

 

49. In cross-examination by Mr Melsul, Mr Wol confirmed that there were two spotlights that lit up the place. When he did not see his friends, he too ran. He agreed that he fell into the hole because the place was dark. But he saw Jack Royal and the others in the hole with him because Jack Royal was shining them with a pistol torch in the hole. He was also holding an earth oven stone. He maintained that he saw Jack Royal holding a torch and Mr Royal hit his right side, in the ribs. He maintained that Mr Bebe spoke aggressively to him, he (Mr Wol) gave his knife to Mr Bebe then Mr Bebe shot his eye with a slingshot stone. That broke his skin, he bled, and it was painful. He saw them through his other eye. They took him back to Mr Lakin’s house and made him sit on the ground. He agreed that then Mr Kalki, Joseph and Lava Natnau poured benzene on Mr Lakin’s house. He said the house was made of cement and timber and both could burn.  

 

50. He agreed that the fire started inside the house. It was put to him that he was sitting outside so he could not see that the fire started inside the house. He replied that they poured benzene on the outside of the house and on the ground outside and then along and into the house. He saw Mr Kalki strike a match and put it to the benzene, which lit up on the ground outside and then the fire raced inside the house. It was put to him that his evidence earlier was that the fire started inside the house. He repeated that Mr Kalki struck the match outside and lit the benzene outside which then raced inside and burned the house from the inside outwards. He maintained that he saw Mr Kalki strike the match and light up the benzene which they had poured on the ground outside. He stated that he was not dragged to the nakamal but carried aloft.  

 

51. There was no re-examination.   

 

52. In cross-examination by Mr Molbaleh, Mr Wol confirmed that he was born at Lenakel Hospital on 1 January 1982. He confirmed the names of villages inside Letekran area. He said that he just ran away from Thomas Lakin’s house. He was not holding a torch, just his knife. He saw out of one eye in the short distance between the hole and Mr Lakin’s house, because once he got there, he rubbed out the blood that had been blocking his left eye. He said that even though it was dark, he saw what happened in the light from the torch that Jack Royal carried. It was put to him that the Defendants did not chase him into a hole. He said that he saw Jack Royal, Willie Talai, Steven Bebe and Lakin Royal inside the hole with him. He said that the told the Police about them carrying slingshots, stones and knives.  

 

53. It was put to Mr Wol that Frank Sam did not hold a knife that night. He reply that he was lying on ground at their nakamal at Laruwenu when Frank Sam lifted up his head and pressed his machete to Mr Wol’s neck. He said that yes, Frank Sam is from another village Lautaliko but he (Mr Sam) threatened him. He repeated that he saw Mr Bebe that night and Mr Bebe shot him with a slingshot stone, which felled him. It was put to him that Mr Bebe has had a sore on his left since he was 6 years old so could not have chased him into the hole. Mr Wol replied that he saw Mr Bebe in the hole with him, he spoke harshly at him, Mr Wol gave him the knife and then Mr Bebe shot a stone at his eye.   

 

54. It was also put to him that Lakin Iaham has an eye disability so cannot see well at night. He replied that he thinks Mr Iaham’s eye is fine because he saw him that night. He said that Mr Iaham was their captain, he led them into the yard the first time, then they left and beat the tamtam at their nakamal, and then when they returned, he saw Mr Iaham also returned. He agreed that Mr Iaham is his close family, a teacher and an SDA Church elder. He repeated that Mr Iaham was the captain of the group, that Mr Iaham trod on his hand at their nakamal at Laruwenu. It was also put to Mr Wol that Mr Iaham never wore safety boots. Mr Wol replied that he saw Mr Iaham that night wearing safety shoes. It was put to him that Mr Iaham as a provincial government board member could not have behaved as he said. He replied that Mr Iaham is a teacher and SDA Church elder but he saw him that night swearing and causing those injuries to his body.   

 

55. It was put to him that Luata Sam did not do anything to Mr Wol that night. He replied that he saw Luata Sam and Lakin at the front of the group as they entered the yard. He maintained his account in respect of each of the other defendants Frank Sam, Jack Royal, Steven Bebe, Lakin Iaham, Willie Talai, Lakin Royal and John Kalki. He said that he was not too drunk from kava that he could not run. It was put to him that Tom Rarken was Mr Kalki’s nephew so Mr Kalki could not have burned the house. He replied that Mr Kalki lied because he saw Mr Kalki set fire to the house. He said that Frank Sam is related to him but not too close; that he saw Frank Sam threaten him that night with a knife. He said the Defendants and group of people entered Mr Lakin’s house without any shirts on (“Oli kam, oli dry chest.”). It was put to him that he could not remember the colour of their trousers. He replied that he was not interested in their trousers but in their faces. He confirmed that the marks on his body were from the custom medicine treatment he received at home after his discharge from hospital.   

 

56. In re-examination, Mr Wol stated that he drank 2 shells of kava that night. He explained that he received custom medicine treatment once he got home because of the pain he left inside his body so they had to.   

 

57. Mr Wol maintained his account in cross-examination. His account was not displaced by any of the cross-examination. His evidence was detailed and clear. His account was consistent with that of other witnesses Bob Quao, Jason Tom, Sam Bob and Joe Iounion about receiving word that people were stoning Mr Lakin’s house and them going to that house, then seeing the Defendants and a group of people enter that yard. Mr Wol’s account was also consistent with the findings in Dr Tamata’s medical report that Mr Wol presented with symptoms secondary to physical assault [Exhibit P6]. Mr Molbaleh submitted that the medical report did not contain findings about some of the injuries. Dr Tamata’s evidence was that he noted what the patient presented with that day, for Police reporting purposes, but the medical treatment records are kept in a different file. I accept the doctor’s explanation. I accepted Mr Wol as a witness of truth and accepted his evidence.   

 

58. The fourth Prosecution witness Bob Quao is also known as Bob Wol. On 24 March 2024, he was at home at Lawenekeul, West Tanna when Joshua Iautu called that some people had arrived to stone the house and burn the house. He (Mr Quao), Thomas Wol, Joe Lazarus, Jason Tom, Sam Bob and some others went to rescue Joshua and his group, around 8pm. When they got to the place where the house burned down, the group from Laruwenu was already there led at the frontline by Lakin Iaham who is an SDA Church elder, Luata Sam, Jack Royal and Frank Matua (Frank Sam). He identified the Defendant who is Frank Sam. He saw them from the light of the two spotlights in the yard. They came armed with axes, knives, slingshots and pieces of wood. He was standing with Jason, Sam Bob and Thomas. When he saw the group enter the yard, he ran away and hid amongst the burao trees. 

 

59. The group cut the taro plants with their sharp knives. He heard Lakin Iaham swearing, “Yufala ol sting kok” (derogatory term referencing penises), “Yufala I fuck fuckem yufala” (‘You fuck each other’), “Yufala ia nao I stap stilim ol ting long mifala” (“You are the thieves who steal our things’) and “ol kan face” (derogatory term referencing a woman’s genitals). He was hiding in the burao trees when he saw them bring Thomas Wol into the light. If Thomas were here at the Court house, he would have been where the World Vision office is. Then they broke the window louvers of the house and John Kalki broke the door of the house. He saw Mr Kalki set fire to the house by setting benzene alight then they took Thomas Wol away with them. He followed behind them on the road and saw them beat Thomas then they lifted him up and carried him down to the nakamal at Laruwenu. He saw Luata Sam beat Thomas with a piece of wood. He saw them by the light of one of the spotlights that they removed from the yard and took with them. He saw that Thomas had suffered big injuries – he saw blood running down his face, blood running down his body, he was sorry for Thomas. Thomas is his brother. 

 

60. In cross-examination by Mr Melsul, Mr Quao agreed that Joshua called so he and some others went to the house. He was still there when the house was set on fire and burned. He was shown Police witness statements dated 27 March 2024 and 8 April 2023. He said that he did not know the first statement. He then signed a blank piece of paper at Mr Melsul’s request which was tendered [Exhibit D1]. He agreed he lied in the statement dated 8 April 2023 because the house burned down on 24 March 2024. He said that when he was hiding in the trees, he saw what happened because he could see in the light from the two spotlights. He saw Mr Kalki set fire to the house. The fire started outside from the benzene then raced into the house. He said that fire burns the paint on the house, the timber and roofing. He denied that the fire started from a fire in the outside kitchen.   

 

61. He agreed that the spotlights were at the north and south. He said that the fire started in a place lit by the spotlights. He said the door of the house was to the north. He was to the south but was standing such that he was looking to the north and saw what happened. He could see well because of the light shining the place. 

 

62. In re-examination, Mr Quao explained that he said he did not know the first Police witness statement because the signature was not right. That first statement was dated 27 March 2024 with the name Bob Wol on it – he stated that he is the only person called Bob Wol.   

 

63. In cross-examination by Mr Molbaleh, Mr Quao said that he saw Lakin Iaham, Luata Sam, Jack Royal and Frank Matua and they swore. He agreed he did not go down to the Laruwenu nakamal. He maintained that he saw what happened at the house because the place was lit by the lights. The distance was not so far; he recognised the Defendants and he saw what happened.  

 

64. There was no re-examination.  

 

65. Mr Quao maintained his account in cross-examination. He readily made reasonable concessions when appropriate. His account was consistent with that of other witnesses Thomas Wol, Jason Tom, Sam Bob and Joe Laserus about receiving word that people were stoning Mr Lakin’s house and them going to that house, then seeing the Defendants and a group of people enter that yard. I accepted him as a witness of truth and accepted his evidence.  

 

66. The fifth Prosecution witness 26-year-old Mr Jason Tom is also known as Jason Noam, from Leanevik village. On 24 March 2024, he, Bob Wol, Sam Wol, Thomas Wol and Joe Lazarus were at their nakamal at Leanevik. They had taken kava then received word that Joshua Ture had called to say that people were throwing stones at Thomas Lakin’s house at Katuteken. They went to Mr Lakin’s house and saw a group arrive at Mr Lakin’s house. He knows them – Lakin Iaham, Jack Royal, Luata Sam, Frank Sam, Nam Iasik, Steven Bebe, Lakin Royal, and then pointed them out in the Courtroom. There was also Sam Sentelai but he has travelled overseas to work. He saw them carrying weapons. Luata Sam was carrying a machete, Frank Sam was carrying a bush knife, Steven Bebe was carrying a slingshot. He was standing by the house. He saw them by the light shining from two spotlights.   

 

67. The group was as far away as the other end of the Courtroom and he shot twice into the air with a gun. He felt frightened! He fired the shots because he saw the group enter and there were so many of them. After he fired the shots, the group left, beat the tamtam at their nakamal then returned back into Mr Lakin’s yard, again led by Mr Iaham and including the Defendants. They filled up the yard. As they moved closer, he heard Mr Iaham say, “Allez ol maru – yufala I mekem wok blo yufala” (‘OK you marijuana smokers, do your work’). On hearing that, he swung around, saw that the group had already filled up the yard, they were armed with the same weapons as before, and he and Sam Bob ran away. They ran to the creek and then up the other side. He said they ran away because if they had remained at the yard, they would have been seriously injured.  

 

68. In cross-examination by Mr Molbaleh, Mr Tom denied that on 24 March 2024, he and Frank Sam were both at Loan village for a death. He denied drinking kava at Loan or stealing Nam Eric’s kava. He maintained that he saw the Defendants on 24 March 2024. He agreed that the group of people was far larger than the Defendants which made him scared. He said he drank only 1 shell of kava. He maintained that he recognised all of the Defendants. He said he shot up into the air. When he ran away, he hid the gun. The gun belongs to Thomas Lakin. He denied being aware of a complaint to the Police by Nam Eric that he (Mr Tom) assaulted Nam Eric on 24 March 2024.  

 

69. There was no re-examination.  

 

70. There was no cross-examination by Mr Melsul.   

 

71. Mr Tom maintained his account in cross-examination. His evidence was detailed and clear. His account was consistent with that of other witnesses Thomas Wol, Bob Quao, Sam Bob and Joe Laserus about receiving word that people were stoning Mr Lakin’s house and them going to that house, then seeing the Defendants and a group of people enter that yard. I accepted him as a witness of truth and accepted his evidence.  

 

72. The sixth Prosecution witness 21-year-old Mr Sam Bob was assisted by interpreter Tom Hiwa. On 24 March 2024 he was at home at Laonekavik village. He was getting ready to sleep when Joshua called to tell them to come to Katuteken. He, Jason, Bob, Joe and Thomas went to Katuteken, to Tom Rarken’s yard. At the yard, he saw Lakin Iaham, Lakin Royal, Jack Royal, Luata Sam, Willie Talai, Steven Bebe, John Kalki and Frank Sam. He identified each Defendant in the Courtroom. Mr Iaham led them in. Jack Royal was carrying a knife, Lakin Royal was carrying a knife, Luata Sam held a piece of wood, Mr Bebe was carrying a slingshot and Mr Sam was holding a knife. Mr Iaham and Mr Kalki were not carrying weapons. He saw the Defendants in the light from two spotlights. The light from the spotlights is as far away as the flagpole outside the Courtroom. He heard Mr Iaham swearing, “Yufala I fuck fuckem yufala” (‘Go fuck yourselves’), “Yufala I fuckem ol mama blo yufala wetem ol papa blo yufala” (derogatory term referencing the hearer’s parents) and “Ol kok blong yufala I sting” (derogatory term referencing penises). Then Jason shot up into the air twice. He was scared but wanted to see what happened. The group left and beat the tamtam [at their nakamal] at Laruwenu. Then the group returned, entered the yard and were throwing stones as they approached. Jason said for them to run, and they ran down to the creek and then up to Launakanagis. The Police truck picked him up on the main road.    

 

73. In cross-examination by Mr Melsul, Mr Bob said that when the group returned to the yard, he ran away. He did not see who more was in the group but he saw the Defendants at the front. He was scared but wanted to see the group. He repeated that some carried weapons, some did not. He repeated that he saw the Defendants, that some carried weapons, that when they returned to the yard, he was scared and ran away. It was put to him that he saw different men at the time. He replied that he saw the Defendants, whom he saw in the light.  

 

74. There was no re-examination.  

 

75. In cross-examination by Mr Molbaleh, Mr Bob said he did not drink kava then. He denied assaulting Nam Ricky in the evening of 24 March 2024. He said that he did not know about assaulting Nam Ricky because he found Nam stealing his kava. He said he saw many people but recognised the Defendants who stood in the light. After they ran, Jason hid the gun. He agreed that Mr Iaham is an SDA Church elder but maintained that Mr Iaham swore and that he led the group in. He maintained his earlier account about the Defendants who carried weapons.  

 

76. There was no re-examination.  

 

77. Mr Bob maintained his account in cross-examination. His evidence was detailed and clear. His account was consistent with that of other witnesses Thomas Wol, Bob Quao, Jason Tom and Joe Laserus about receiving word that people were stoning Mr Lakin’s house and them going to that house, then seeing the Defendants and a group of people enter that yard. I accepted him as a witness of truth and accepted his evidence.  

 

78. The seventh Prosecution witness 33-year-old Mr Joe Iounion is also known as Joe Lazarus, from Letekran. He said that on 24 March 2024, he, Sam Bob, Jason Noam, Bob Kuao and Thomas Wol were having kava at their nakamal at Launekavik village when Joshua called that some people were stoning Thomas Lakin’s house. So, he and the others went to Mr Lakin’s house. He recognized John Kalki, Steven Bebe, Frank Sam, Lakin Iaham, Luata Sam, Willie Talai, Samson Talai, Nauka William, Nicky John, Iasua Albert and Sam Nawei there. He identified each Defendant in the Courtroom. The group who entered Mr Lakin’s yard were carrying slingshots, stones, knives and pieces of wood. He saw them in the light from the spotlight, which was bright. If they were in the Courtroom, he was standing at the wall at the far end of the Courtroom. They were so outnumbered by the group that he left to get help. As he was coming back, he met his boys on the road and they all went home. 

 

79. In cross-examination by Mr Melsul, Mr Iounion said there were two spotlights in Mr Lakin’s yard, one shining one way and the other the other way. The lights were bright. There were many men in the group. He was frightened and ran away to get more men to come down. He maintained that he recognised the Defendants, and that Mr Kalki was there, was armed and entered Mr Lakin’s yard.  

 

80. There was no re-examination.  

 

81. In cross-examination by Mr Molbaleh, Mr Iounion denied that on 24 March 2024, he stole kava from Nam Ricky’s garden and that Nam found him there. He said that he did not know that on 24 March 2024, a woman at Loam village had died. He said that he did not go to a death. He denied drinking kava with Frank Sam and Lakin Royal at Loam village. He agreed that there were many men in the group but said that he knows the Defendants. He and the Defendants are related, but not close. He left to get help because there were so many people in the group.    

 

82. There was no re-examination.   

 

83. Mr Iounion maintained his account in cross-examination. His account was not displaced by any of the cross-examination. His account was consistent with that of other witnesses Thomas Wol, Bob Quao, Jason Tom and Sam Bob about receiving word that people were stoning Mr Lakin’s house and them going to that house, then seeing the Defendants and a group of people enter that yard. I accepted him as a witness of truth and accepted his evidence.   

 

84. The eighth Prosecution witness Dr Maeckely Tamata was on 24 March 2024, a Medical Officer working at Lenakel Hospital on Tanna island. He is a doctor and oversaw the medical reports for patients. He worked there from 2022-2024. He wrote a report that on 25 March 2024, he examined a patient Thomas N-something – his writing is unclear – at Lenakel Hospital [Exhibit P6]. He wrote that the patient had been physically assaulted. He wrote in his findings that the patient had presented with a swollen face, had a ‘raccoon sign’ meaning he had a black eye and had ogorhea, meaning that blood was coming out of his ear. The patient also had lacerations consistent with the use of a knife behind the peri orbital area, meaning behind his ear, and had reduced mobility secondary to muscular skeletal pain. He concluded with, “Injuries are consistent with physical assault.” A laceration is a cut which has opened up the layers of the skin, consistent with a knife having been used. He said racoon eye is consistent with blunt force trauma such as a punch, which caused swollen face and the black eye. He advised ice for the swelling and pain, then plenty of rest. He cannot remember if the nurse dressed the laceration as he was too busy. They would have administered an I.V. drip if that were needed because the patient’s swollen face would have made eating difficult, and it helps some patients psychologically. He cannot remember how long Thomas was admitted in the hospital. He prescribed medicine for pain – Panadol and Ibuprofen were baseline and whatever other pain relief was available at that hospital at the time. He said that this report for the Police was brief, but the patient management records were in another folder.    

 

85. In cross-examination by Mr Molbaleh, Dr Tamata stated that he has worked as a medical doctor since 2018. He agreed he had seen many patients as the one described in his Exhibit P6 report. He used the term, ‘blunt force trauma’ to describe what he thinks happened – that force was applied which did not penetrate the skin but caused an injury in the structures below the skin. He said that it depended on the extent, but it could be very painful. He agreed that a black eye could be caused by blunt force trauma. He did not note a finding about the patient’s eyesight. 

 

86. In re-examination, Dr Tamata explained that the healing time for a black eye would depend on the extent of the injury; it could take a week to heal, sometimes more. A laceration by a knife would take one or two weeks to heal. 

 

87. There was no cross-examination by Mr Melsul.   

 

88. Dr Tamata maintained his account in cross-examination and gave more detailed evidence about the medical terms he used. I accepted him as a witness of truth and accepted his evidence.   

 

89. The ninth and last Prosecution witness Mr Nam Kuau is 67 years old, from Lawuntauk village on Tanna. He has 5 children; Thomas Wol is his first born child. On 24 March 2024, he went to another village for a death, then had a shell of kava at 5pm and then returned to his village. He arrived to news that an incident would happen and that some boys had gone to stop a fight at Katuteken area. He followed after those boys. 

 

90. When he got to Katuteken, he saw a large group including the Defendants arrive so he hid amongst the taro plants and susut (chouchoutte) vines next to the road. Some of the people in the large group threw stones. He was frightened and sat down on the ground. It was now night-time. He heard Jack Royal say to hold onto that man so he stood up and saw John Kalki, Jack Royal, Frank Sam and Talai Onym place his son Thomas in the light from the two solar lights. If they were in the Courtroom at Isangel on Tanna, then he was standing by the flagpole outside the Courtroom. He saw blood running from above Thomas’ right eye. He felt sorry for his son who they held and hit as if he was an animal. He wanted to help his son but he was too scared to because there were so many people in the group. He sat down on the ground, feeling helpless.   

 

91. He heard John Kalki call two others, Lava Kuao and Joseph. He looked over and saw them pull out two bottles of benzene from a stand of burao trees. Mr Kalki gave one bottle to Joseph, then the two of them doused the house with benzene. They continued to do so round the side of the house and he lost sight of them. He stayed on the ground because he was thinking of his son. He heard the group breaking things in the house – glass. Then he heard the house catch on fire, on the other side of the house. Then he heard the people in the group say that they would take his son with them to Laruwenu. One of them took one of the solar lights with them. They took his son away, then he crawled on his hands and knees though the taro plants to the main road, then he walked away.    

 

92. Mr Kuau agreed in Mr Molbaleh’s cross-examination that he knows Steven Bebe, who is from another village. He has seen the sore on Mr Bebe’s leg. He maintained his account that he drank just one shell of kava. He agreed that there were more than 50 men in the large group. He agreed that he hid in the taro plants about 8pm and that it was dark but that there was light from the 2 solar lights. It was put to him that he mentioned different people in his Police witness statements as holding his son – he said those persons were who he told the Court. 

 

93. There was no re-examination.  

 

94. Mr Kuau agreed in Mr Melsul’s cross-examination that the fire started on the other side of the house, out of his sight. He agreed that there were more than 50 people there in the large group. It was put to him that John Kalki was not there in the large group. He replied that he saw John Kalki, who held a bottle of benzene. He did not see Lakin Iaham. He maintained that both Frank Sam and Jack Royal were there, holding his son.   

 

95. There was no re-examination.  

 

96. Mr Kuau maintained his account in cross-examination. I accepted him as a witness of truth and accepted his evidence.   

 

E. Defendants’ Witnesses’ evidence  

 

97. The Defendants’ first witness Mr John Kalki gave evidence that he is 46 years old, from Louteliko village. He stated that he came to Lenakel and spoke with Thomas Lakin, the leader of Launekaun, and told him that Launekaun not come and steal from their gardens anymore. On 24 March 2024, he went to a death at Laun, had kava there until 8pm. Then he, Frank Matua, Lakin Royal and Steven Napuat walked to Louteliko and had last kava there until 9pm then went home. He denied telling Thomas Lakin about a plan to set fire to a house at Katuteken. He denied setting fire to Mr Lakin’s house because the house belongs to his nephew Tom Rarken and at the time, he was at Louh. After an objection, I adjourned so that Mr Melsul could advise Mr Kalki that no notice of alibi was given to the Prosecution therefore no alibi defence is available to him.  

 

98. After the break, Mr Kalki denied entering Mr Lakin’s yard, handling benzene there, breaking the door of the house with a stone, striking a match and setting fire to the house.  

 

99. In cross-examination, Mr Kalki agreed that the house that was burnt down is on disputed land. He denied being part of a disputing claimant for that land. He agreed that on 15 March 2024, he told Mr Lakin to tell his guys to stop stealing from their gardens. He denied telling Mr Lakin that there was a plan to burn down his house. He denied that he was angry. He agreed that he knew that after that, Mr Lakin went to Vila. He denied that he decided that it was therefore a good time to attack Mr Lakin’s property. He said that he did not burn down Tom Rarken’s house as Tom was his nephew. Many questions were put to him putting to him evidence given by the Prosecution witnesses – he denied those matters or said that he did not know.  

 

100. There was no re-examination.   

 

101. Mr Kalki purported to give evidence as to an alibi defence, that on 24 March 2024 he was at Louh. I reject this evidence as no notice of alibi defence was given in advance of the trial. He said that he did not burn down Tom Rarken’s house but that house was being repaired by Mr Lakin; there was no denial of burning down Mr Lakin’s house. Otherwise, Mr Kalki generally denied the Prosecution witnesses’ evidence. He has not given any evidence that would exonerate him or limit his responsibility. His evidence was of no assistance in determining the factual matters in dispute.     

 

102. The Defendants’ second witness Mr Frank Sam gave evidence that his name is “Frank Matua.” He adduced into evidence a copy of his National I.D. card showing his name is “MATUA Frank” [Exhibit D2]. He said that Frank Sam is the son of his father’s little brother. He said that he is from Louteliko. He said that it is 1 and a half kilometres from Louteliko to Katuteken, and 1 kilometre from Louteliko to Laruwenu. It is half a kilometre from Katuteken to Laruwenu. He said that the late Tom Rarken was his aunty’s son so they were close family.  

 

103. In cross-examination, he denied that he is known by both names, “Frank Matua” and “Frank Sam.” He said that he and Thomas Wol are close family, but that Mr Wol does not know him. He said that when the Police arrested him, they were looking for Frank Sam. It was put to him that it was important for him to show his National I.D. card to the Police; he replied that he does not know. He denied showing his National I.D. card to the Court to get his cousin brother in trouble. He generally denied the Prosecution witnesses’ evidence.   

 

104. In re-examination, he repeated that he was not there (on 24 March 2024).  

 

105. This witness accepted that he had never shown his National I.D. card to the Police. I infer that it was also not raised with the Prosecution. The first time he showed it was to the Court, at trial. This is after there have been many conferences and hearings in this matter. I consider that if this really was a case of mistaken identity, Mr Sam would have raised this well before now. I therefore reject the defence case that Frank Sam has been wrongly identified. I find that the defendant who has answered to the name, “Frank Sam” in the numerous conferences and hearings in this matter up until trial and throughout trial is also known as “Frank Matua”. Otherwise, Mr Sam generally denied the Prosecution witnesses’ evidence. He has not given any evidence that would exonerate him or limit his responsibility. His evidence was of no assistance in determining the factual matters in dispute.  

 

106. The Defendants’ third witness Mr Lakin Iaham adduced into evidence copies of his National I.D. card [Exhibit D3], his marriage certificate [Exhibit D4], a letter confirming that he is a teacher [Exhibit D5] and another letter confirming that he is involved in an organisation for people living with disabilities [Exhibit D6]. He stated that he has a disability with his eye so that at night, he can see through one eye only. He said that on 24 March 2024, he was at home at Laruwenu village. He denied the Prosecution witnesses’ evidence that they heard him swear. He said that was not true because he is a teacher and an elder in the SDA Church; that he did not swear. He denied leading the group at night on 24 March 2024, chasing Thomas Wol and kicking Mr Wol with his boot and causing him to lose two teeth.   

 

107. In cross-examination, Mr Iaham confirmed that he is a teacher, an SDA Church elder and involved in an organization for people with disabilities. It was put to him that he is therefore an influential person in his community. He said that he does not know other people’s feelings about him, but his evidence is about the work that he has done. He agreed that he is respected by his family. He agreed that in 2018, they were moved out of Laruwenu village under an eviction order. He generally denied the Prosecution witnesses’ evidence including about green certificates related to the land. 

 

108. There was no re-examination. 

 

109. Mr Iaham purported to give evidence as to an alibi defence, that he was at home on 24 March 2024. I reject this evidence as no notice of alibi defence was given in advance of the trial, even though time was given to the Defendants to do so. Mr Iaham’s evidence as to his accomplishments was purely self-serving. I do not accept that being a leader in his community means that he did not offend. Otherwise, Mr Iaham generally denied the Prosecution witnesses’ evidence. He has not given any evidence that would exonerate him or limit his responsibility. His evidence was of no assistance in determining the factual matters in dispute.   

 

110. The Defendants’ fourth and final witness Mr Jack Royal of Laruwenu village, Letekran area at West Tanna is a builder. He stated that what the Prosecution witnesses said that he did on 24 March 2024 was not true. He denied chasing and assaulting Thomas Wol.  

 

111. In cross-examination, Mr Royal agreed that there is a land dispute over the land where he lives, Lapangnapuk land. He denied that he and his family are disputing the land ownership. He said unlike Frank Matua, he cannot say what how far away is 1 km or 2 km. He agreed that he knows John Kalki; he said he is from Lotaliko. He said that on 23 March 2024, he was at Lenakel Hospital. He said that Police witness statements on 25 March 2024 and 8 April 2024 were not true. He did not know why the Police arrested him. He denied what the Prosecution witnesses said that he did.   

 

112. There was no re-examination.  

 

113. Mr Royal purported to give evidence as to an alibi defence, that on 24 March 2024 he was at Lenakel hospital. I reject this evidence as no notice of alibi defence was given despite the Court giving the Defendants the opportunity to do so. Otherwise, Mr Royal generally denied the Prosecution witnesses’ evidence. He has not given any evidence that would exonerate him or limit his responsibility. His evidence was of no assistance in determining the factual matters in dispute.   

 

F. Discussion 

 

 

114. The elements of criminal trespass are as follows:    

 

(i) The defendant entered into or upon any property; 

 

(ii) In the possession of another person; and 

 

(iii) With intent to intimidate, insult or annoy any person lawfully in possession of the property. 

 

115. On the evidence of Mr Wol, Mr Quao, Mr Tom and Mr Bob, I find that twice at night on 24 March 2024, the eight Defendants and a large group of people entered into Thomas Lakin’s yard on Tanna island. I find that they entered Mr Lakin’s yard and filled up the yard. On Mr Kuau’s evidence, I find that that the group numbered over 50 people. On Mr Wol’s evidence, I find that Lakin Iaham and Luata Sam were at the front of the group as they entered the yard. I find that Mr Iaham swore at Mr Wol and the others in the yard as they entered. 

 

116. On Mr Wol’s evidence, I find that the Defendants and group of people entered Mr Lakin’s yard without any shirts on (“Oli kam, oli dry chest.”). I also find on the evidence that the eight Defendants entered the yard with most of them armed with weapons. I find on Jason Tom’s evidence that Luata Sam was carrying a machete, Frank Sam was carrying a bush knife, Steven Bebe was carrying a slingshot. I find on Sam Bob’s evidence that Jack Royal was carrying a knife, Lakin Royal was carrying a knife, Luata Sam held a piece of wood, Mr Bebe was carrying a slingshot and Frank Sam was holding a knife. Jason Tom and Sam Bob’s evidence differs as to the weapon that Luata Sam carried. I consider that it is inherently likely that in the heated situation that night, that Mr Tom and Mr Bob saw Luata Sam at different points in time so that at one point, he was seen carrying a machete and at another point, a piece of wood. I do not consider that this is a material inconsistency; my finding is that Luata Sam was armed. I am satisfied that the Prosecution has proved the first element of the charge beyond a reasonable doubt.  

 

117. On Mr Lakin and Mr Ture’s evidence, I find that Mr Lakin was repairing the house in that yard. The house had belonged to the late Tom Rarken. I find that Mr Larkin had engaged Mr Ture and his group of builders to undertake the house repairs. On Mr Ture’s evidence, I find that he and his group of builders moved into the house on 15 March 2024 to carry out those repairs for Mr Lakin. I find therefore that Mr Lakin had possession of the house. I am therefore satisfied that the Prosecution has proved the second element of the charge beyond a reasonable doubt.  

 

118. I find that the eight Defendants entering Mr Lakin’s yard in that large group, at night, shirtless and carrying weapons shows that they intended to intimidate any person lawfully in possession of the property. I am therefore satisfied that the Prosecution has proved the third and last element of the charge beyond a reasonable doubt. 

 

119. Count 1 has been established beyond reasonable doubt in respect of all eight Defendants.     

 

 

120. The elements of unlawful assembly are as follows:   

 

(i) The defendant along with two or more other persons; 

 

(ii) Assembled with intent to carry out some common purpose; 

 

(iii) Conducted themselves in such a manner as to cause nearby persons reasonably to fear that the persons so assembled will commit a breach of the peace or assembled with intent to commit an offence.  

 

121. On the evidence of Mr Wol, Mr Quao, Mr Tom and Mr Bob, I find that the eight Defendants along with other persons formed a large group which twice at night on 24 March 2024 entered Mr Lakin’s yard on Tanna island. They entered Mr Lakin’s yard and filled up the yard. I have found that the Defendants and group of people did not wear shirts. Most of the Defendants were carrying weapons. I conclude that each Defendant along with two or more other persons assembled with intent to carry out some common purpose. Accordingly, I am satisfied that the Prosecution has proved the first and second elements of the charge beyond a reasonable doubt.    

 

122. I also find that in the manner in which the Defendants presented themselves entering Mr Lakin’s yard in a large group, at night, shirtless, with most of the Defendants carrying weapons, that they caused Mr Wol, Mr Quao, Mr Tom, Mr Bob and Mr Iounion who were nearby reasonably to fear that the persons so assembled would commit a breach of the peace. I am therefore satisfied that the Prosecution has proved the third and last element of the charge beyond a reasonable doubt. 

 

123. Count 7 has been established beyond reasonable doubt in respect of all eight Defendants.   

 

 

124. The elements, having regard to this case and in respect of Count 2, of intentional assault causing damage of a temporary nature (para. 107(b), Penal Code) are as follows:   

 

(i) Mr Steven Bebe applied force to the body of the complainant;  

 

(ii) Mr Bebe did so intentionally; and 

 

(iii) Caused damage of a temporary nature.  

 

125. I find on Mr Wol’s evidence that whilst Mr Bebe, Lakin Royal and Jack Royal were inside the hole with Mr Wol, with Jack Royal shining a pistol torch at him, that Mr Bebe told Mr Wol to hand over his knife. Mr Wol handed his knife to Mr Bebe, then Mr Bebe used his slingshot to shoot a stone at Mr Wol’s left eye, resulting in a wound and bleeding which prevented Mr Wol for a time from seeing through that eye. By doing so, Mr Bebe applied force to Mr Wol’s body. I find that the force of the shot was so large that Mr Wol was thrown to the ground. There can be no doubt that Mr Bebe used the slingshot in that manner intentionally. The resultant wound constituted damage of a temporary nature.  

 

126. Accordingly, I am satisfied that the Prosecution has proved all three elements of the charge beyond a reasonable doubt. 

 

127. Count 2 has been established beyond reasonable doubt.  

 

 

128. The elements, having regard to this case, of arson are as follows:   

 

(i) Mr John Kalki set fire to; 

 

(ii) Any building or other property; 

 

(iii) Knowing that the building or property belongs to another person; and 

 

(iv) He did so wilfully and unlawfully.

 

129. On Mr Wol, Mr Kuau and Mr Quao’s evidence, I find that after Mr Wol was dragged back to Mr Lakin’s house, that Mr Kalki brought over three 5-litre plastic containers of benzene. I find that Mr Kalki gave one container to Joseph Iesul and the other container to Lava Natnau. Mr Kalki held onto the remaining container. Then Mr Kalki used a stone to break open the house door. After that, Mr Kalki told others to go inside the house. They brought mattresses, dishes, plates and trays outside and cut those items with their knives and pieces of wood. I find that after that Mr Kalki and two others poured benzene on the house, inside the house and on the ground outside. I also find that Mr Kalki struck a match and set fire to the benzene on the ground outside, and the fire raced into the house and set the house on fire. Accordingly, I am satisfied that the Prosecution has proved the first and second elements of the charge beyond a reasonable doubt.   

 

130. From Mr Kalki’s own evidence, he knew that the house belonged to the late Tom Rarken. The house was in Mr Lakin’s possession. Accordingly, I find that Mr Kalki set fire to the house knowing that the house belongs to another person. I am therefore satisfied that the Prosecution has proved the third element of the charge beyond a reasonable doubt.  

 

131. The house was in Mr Lakin’s possession. It was previously Tom Rarken’s house. Mr Kalki did not have any lawful excuse to set the house on fire so he did so unlawfully. From the manner in which Mr Kalki set fire to the house, he did so wilfully. Accordingly, I am satisfied that the Prosecution has proved the fourth and final element of the charge beyond a reasonable doubt.  

 

132. Count 5 has been established beyond reasonable doubt.  

 

 

133. The elements of kidnapping are as follows:   

 

(i) The defendant compelled the complainant to go from one place to another place; 

 

(ii) By force; and 

 

(iii) Without lawful excuse.  

 

134. On Mr Wol’s evidence, I find that Mr Iaham told Sam Iahoi, Johnson Nabengas, Iasu Iapen and Charley Maktuan to carry him. Two of them hung onto his legs and two his arms. On the road, they threw him into the mud. Lakin Royal hit him again, on his right side, in the ribs. They forced him to stand up. Iasu Laken and Sam Iawai held onto his arms and he walked a little forward, on the road towards the Defendants’ place. Luata Sam got a piece of wood and hit him again in his right side, in the ribs. They told him to stand up again. He told them that he was too weak to walk. He saw Sam Iawai, Johnson Nambengas, Charley Mark Tuan and Iasu Iapen carried him to their nakamal and once they got there, threw him like a pig onto the ground.  

 

135. Accordingly, I find that Lakin Iaham by directing others to carry Mr Wol by his arms and legs compelled Mr Wol to go from the road away from Mr Lakin’s house to the nakamal at Laruwenu. Mr Wol was compelled to do so by force and without lawful excuse. 

 

136. I am satisfied that the Prosecution has proved the three elements of the charge beyond a reasonable doubt hence Count 6 has been established beyond reasonable doubt in respect of Lakin Iaham. 

 

137. I find that this charge has not been proved in respect of the other Defendants.  

 

Has the Prosecution proved beyond reasonable doubt that the eight Defendants committed false imprisonment (Count 9)?  

 

138. The elements of false imprisonment are as follows:   

 

(i) The defendant without lawful authority; 

 

(ii) Detained or confined the complainant; and 

 

(iii) Against the complainant’s will.  

 

139. I find on Mr Wol’s evidence that he was thrown like a pig onto the ground at the nakamal at Laruwenu. I find that Mr Iaham came to Mr Wol and straightened out his left hand then stepped on that hand on the ground with his safety shoe. I find that he broke Mr Wol’s hand, resulting in Mr Wol now being unable to bend his left ring finger. I also find that Mr Iaham kicked Mr Wol in the mouth, resulting in him losing two of his teeth – one from his upper left jaw and one from his lower left jaw. 

 

140. On Mr Wol’s evidence, I find that he was left for a small while, then washed with a bucketful of water. He saw Johnson Nabengas and Sam Iawai stone his head with earth oven stones. Frank Sam lifted up his head and pressed his machete to his neck (touching his throat as he said this) and asked him if he (Mr Wol) stole his marijuana? He told Mr Sam that he does not smoke marijuana and does not know anything about marijuana. Mr Sam also said that if he (Mr Wol) had stolen his marijuana, that he (Mr Sam) would chop his head off. He (Mr Wol) thought that he would be killed. He was still lying on the ground when he saw a Police truck arrive. The Police wanted to take him but the group members argued with the Police and told the Police that they could not take him. He saw many people argue with the Police but saw Iasu Iapen, Johnson Nabengas, Sam Iawai and Lakin Iaham standing with the Police officers. All eight Defendants were there at the nakamal.  

 

141. I find that all eight Defendants were there at the nakamal at Laruwenu. They did not have lawful authority to detain Mr Wol there but he was so detained, against his will. Accordingly, I am satisfied that the Prosecution has proved the three elements of the charge beyond a reasonable doubt.  

 

142. Count 9 has been established beyond reasonable doubt in respect of all eight Defendants.  

 

 

143. The elements, having regard to this case, of intentional assault causing damage of a permanent nature (para. 107(c), Penal Code) are as follows:   

 

(i) Mr Lakin Iaham applied force to the body of the complainant;  

 

(ii) Mr Iaham did so intentionally; and 

 

(iii) Caused damage of a permanent nature.  

 

144. I have found that at the nakamal at Laruwenu, Mr Iaham came to Mr Wol, straightened out his left hand on the ground, then stepped on it and broke Mr Wol’s hand. Mr Wol is now unable to bend his left ring finger. Mr Iaham also kicked Mr Wol in the mouth, causing him to lose two teeth. 

 

145. I find therefore that Mr Iaham applied force to Mr Wol’s body. Straightening out Mr Wol’s hand and then stepping on it in such manner could not have been anything but intentional. The damage caused was of a permanent nature.   

 

146. Accordingly, I am satisfied that the Prosecution has proved the three elements of the charge beyond a reasonable doubt. 

 

147. Count 4 has been established beyond reasonable doubt.  

 

Has the Prosecution proved beyond reasonable doubt that Frank Sam committed threats to kill a person (Count 8)?  

 

148. The elements, having regard to this case, of threat to kill are as follows:   

 

(i) Mr Frank Sam directly caused the complainant to receive an oral threat to kill him;  

 

(ii) Mr Sam knew the contents of the threat; and  

 

(iii) Mr Sam intended the threat to be taken as real.   

 

149. I find on Mr Wol’s evidence that whilst he was lying on the ground at the nakamal at Laruwenu, that Frank Sam lifted up his head and pressed his machete to Mr Wol’s throat, at the front of his neck, and asked Mr Wol if he stole his marijuana? I find that Mr Wol replied that he does not smoke marijuana and does not know anything about marijuana. I find that Mr Sam also said that if he (Mr Wol) had stolen his marijuana, that he (Mr Sam) would chop his head off. I find that Mr Wol thought that he would be killed. 

 

150. Accordingly, I find that Mr Sam directly caused the complainant Mr Wol to receive an oral threat to kill him. There can be no doubt that Mr Sam knew the contents of his oral threat to Mr Wol. There can also be no doubt that Mr Sam intended the threat to be taken as real, having made it whilst lifting Mr Wol’s head off the ground and pressing a machete to his throat and neck.         

 

151. I am therefore satisfied that the Prosecution has proved the three elements of the charge beyond a reasonable doubt.  

 

152. Count 8 has been established beyond reasonable doubt.

 

G. Result 

 

153. For the reasons given, I return the following verdicts: 

 

i) All eight Defendants John Kalki, Lakin Iaham, Luata Sam, Steven Bebe, Willie Talai, Lakin Royal, Jack Royal and Frank Sam are found guilty of the charges of criminal trespass (Count 1), unlawful assembly (Count 7) and false imprisonment (Count 9). They are convicted as charged; 

 

ii) Steven Bebe is also found guilty of the charge of intentional assault causing damage of a temporary nature (Count 2). He is convicted as charged; 

 

iii) Lakin Iaham is also found guilty of the charges of intentional assault causing damage of a permanent nature (Count 4) and kidnapping (Count 6). He is convicted as charged; 

 

iv) John Kalki is also found guilty of the charge of arson (Count 5). He is convicted as charged; 

 

v) Mr Frank Sam is also found guilty of the charge of threat to kill a person (Count 8). He is convicted as charged; 

 

vi) Mr Kalki is not guilty of the charge of intentional assault causing damage of a temporary nature (Count 3). He is deemed to be innocent of that charge and is acquitted of the charge in Count 3; and 

 

vii) Mr Kalki, Luata Sam, Steven Bebe, Willie Talai, Lakin Royal, Jack Royal and Frank Sam are not guilty of the of the charge of kidnapping (Count 6). They are deemed to be innocent of that charge and are acquitted of the charge in Count 6.