State v Sim [2008] PGDC 97; DC784 (28 April 2008)

DC784

PAPUA NEW GUINEA
[IN THE GRADE V COURT OF JUSTICE]

GVCr 593 of 2007

BETWEEN

THE STATE
Informant

AND

RINGO KEE AN SIM
Defendant

Lae: Iova S. Geita

2007: 07 November, 03, 05, 17 December
2008: 14 March, 16 April, 24 April, 28 April

CRIMINAL LAW - Particular Offence, Threatening to discharge a pistol – Firearms Act Chapter No.31 Section 65B (a) & (e)

CRIMINAL LAW-Particular Offence, Threatening to discharge a pistol – pistol brandished at the complainant – complainant felt threatened and moved away from the table – reasonable amount of alcohol consumed at the time – physically pointing the pistol at complainant’s direction sufficient – whether the pistol was loaded or not loaded considered irrelevant – Verdict of guilty entered - Firearms Act Chapter No. 31. s 65B (a) & (e).

Cases Cited

State v Stanley Gadiwilo No 400 of 1998. PNGDC 9

References

None

Counsel

Sgt.Hove Genderiso, For The State
Paul Ousi, For The Defendant

28 April 2008

REASONS FOR DECISION.

I.Geita: PM. This was the trial of the accused Ringo Kee An Sim who pleaded not guilty through his lawyer on a charge of threatening to discharge a pistol.

The Facts

2. The State alleged that on 13 and 14 March 2007 at Lae Yacht Club, the accused threaten to discharge a black Sig PSA pistol with serial number S.149099 towards another person namely Tom Smith and threaten to shoot him. Thereby contravening s 65B (a) and (e) of the Firearms Act.

3. The facts leading up to the alleged incident are that at around 8:00 pm that night the accused went to Lae Yacht Club where he is a member and had dinner with some red wine. He stayed on with some friends until about 10.30 pm and returned to his house after the key and joker draw. Around 11.15 pm upon realising that his pistol was missing he started looking for it in the house and in the car parked at the garage. He than armed himself with another pistol for security reasons and went looking for the lost pistol at Lutheran Shipping yard, the Yacht Club car park. Still the lost pistol could not be found and so he went into the club and met his friends seated on a high bar stool. They include Mr. Paul Duffield, Mr. Lohbergher and Mr. Ben Frame. He ordered a drink and joined them.

4. He said during the cause of their conversation Paul Duffield enquired about the lost pistol and he told him that it was a standard steel type B327. Upon realising that Paul Duffield could not understand what he was saying he repeated it again. He said by that time Mr. Lohberger had moved on. He said because Paul kept asking he took his other pistol and showed it to him, at the same time removing the magazine and put it in his left pocket. The accused said he stood on the stool footrest and showed pistol to Paul and returned it again to his pocket. He said he than told Paul jokingly that if he finds the person who took/stole his gun “mi bai sutim em”. His two other friends were with him at the time.

5. The accused said after a while Jerry the club manager came and removed the gun from him. A short while later Guard Dog security guards numbering between six to seven (6-7) arrived with Police and took him to the Police Station. He said during the cause of arresting him he was assaulted and punched to the floor. The accused said he didn’t know who hit him at the time. He gave his statement to police but they would not believe him so he gave his car keys to a policeman who searched his car and found the lost pistol. The magazine was also handed over to the police at the station.

6. No assault charges were laid against Tom Smith, the complainant. The accused said Tom Smith was not in his view and was seated behind him, quite far away, indicating a distance of about three (3) to four (4) metres away from him. He said he was facing Paul at the time when he showed him the pistol and said he did not make any statement to Tom Smith.

7. During cross examinations the accused admitted not knowing Tom Smith save for people from Guard Dog firm seated at the other table. The accused denied taking out the pistol and pointing it at the direction of the complainant and other people seated at the other table. He also denied uttering those words saying he was on the bar stool. When questioned if he was drunk and couldn’t remember the accused said he knew what he was doing as he drove his car home that night.

Cross examination continue:

Q. 10. In police evidence they said Tom Smith assaulted you?

A. I don’t know who assaulted me at time but I know later as Tom Smith.

Q. 11. Do you know why you were assaulted?

A. I have no idea at all.

Q. 12. Correct to say you were taken to police station because of allegation against you for use of pistol and threatening?

A. No never.

Q. 13. Why were you taken to the police station?

A. So many security guards fighting me, I was scared, so was taken to police station.

8. The accused’s second witness Mr. Paul Duffield is Managing Director of Arthur Strathen Real Estate. Paul Duffield said he was in the company of Ben Frame and Jonathan Lohberger when the accused waked in and was asked to join them. He had a glass of wine and looked upset. The witness said Jonathan left the table and he asked the accused what was wrong and he said he had lost his gun. He said the accused replied jokingly that he would shoot somebody. Paul Duffield said when he enquired two (2) to three (3) times about what type of weapon it was; the accused produced a pistol. He said the accused was facing the main entrance and he looked over to him. (demonstrated to court ). The witness said the accused than put the gun back into his pocket with the magazine in side pocket. The witness indicated that the complainant was seated at the other table with Guard Dog workers. He said the accused and him talked for a while when the bar manager came and asked about the weapon and the weapon handed over to him. He said within seconds the complainant came and flattened the accused to the ground. He said as soon as he got off the ground Tom Smith was still hitting him on the back of the head. Witness Paul Duffield said Tom Smith was as drunk as a drunk. He said there must have been ten (10) security guards and five (5) to six (6) police men including the General Manager of Guard Dog security firm who were present. “Tom Smith said I saw this, I saw that” but the witness denied what Tom Smith was saying, what ever it was. He never told court about the exchange of words. The witness said Tom Smith threatened to spoil his client base and punched him to the ground. He said he fell on the fence, got up and were all taken to the police station due to intimidation. Witness Paul said racist comments were made against the accused which were not called for. He denied that there was communication between the accused and the complainant, including himself. He said when the pistol was shown to him it wasn’t loaded. He demonstrated to court how the pistol was shown to him. The witness further said Tom Smiths statement of pointing the pistol as the accused was a lie.

9. During cross examination the witness said he had known Tom Smith for eight (8) years. He said the complainant was with his wife, some lady friends and guard dog friends seated at a table. When asked if the accused was seated in front of Tom Smith the witness in the negative.

Cross Examination continue...

Q.4 Where was Tom Smith seated?

A. About 30 to 40 degrees on accused’s right side.

Q.5 When pistol is taken out, could that pistol be facing Tom Smith and others?

A. No, because he was facing the main entrance.

Q. 7 There is evidence that the accused pointed the pistol at direction of Tom Smith?

A. No.

State Evidence.

10. State witness Tom Smith said he was at the Yacht Club on the night of 13 March 2007 at around 12.30 am when he saw the accused seated with a group of people. He said he first noticed a gun when the accused lifted his shirt up. The witness said one expatriate left because he was scared of the gun. He said the accused lifted the gun and pointed directly at them at the time. He thought either himself or somebody at the table, if gun went off, would be shot. He said he than asked someone to call the police and moved away from the table. The witness said the club manager came over to the accused and gun was given to him and later handed over to police who attended. He said they were all asked to Lae Police station and gave their statements. He said he had no malice against the accused all that time but at that time he was definitely scared as somebody would be shot. He said it’s a very dangerous thing firearm. During examination in chief he said there were about eight (8) to ten (10) people seated at his table and some standing around. He indicated a distance of about three (3) to four (4) metres away from the accused. He said the gun looked to him like a semi- automatic, saying that he is no gun expert but it had a square handle.

11. He said the pistol was pointed directly at him and others at the table. The witness said the accused was seated at a high table, turned around and pointed at him and others at the table. NB: The witness demonstrated to court the gun being pointed with full arms length stretched. He said he was scared when the gun was pointed at him. I was also scared that if it went off it would hit someone or me at the table.

12. He said he moved away from the table and asked someone to call police. The witness said the accused was intoxicated at the time he pointed the gun at them and said he would shoot anybody. The witness said these words were said earlier on to two females not in attendance in court today.

13. When asked during cross examination if he heard the accused say he was going to shoot somebody the witness answered in the affirmative. He said the accused was engaged in conversation with Paul Duffield but it stopped when he turned away from them and pointed the gun.

Cross Examination continue...

Q.16. Did you notice that the accused was showing pistol to Paul Duffield?

A. No he was brandishing it, that’s all I can say.

Q.17. Did you say the accused removed gun from side?

A. Yes (demonstrated it to court)

Q.18. I suggest to you that he took magazine out before showing gun to Paul Duffield?

A. I don’t believe that he took magazine out. I am saying the magazine was in the gun.

Q.19. You says you have no previous dealing, animosity towards the accused?

A. Never.

Q.20. Do you know why he would be pointing pistol at you?

A. I believe alcohol

Q.27. I suggest to you that the accused was not pointing gun at you because of no previous disagreement?

A. The gun was pointed at me and others seated at the table.

Q.28 Is it correct that the accused did not call any name at the time?

A. No he didn’t call any names, I didn’t say that.

Q.29 You were only scared that he would shoot somebody?

A. Because I thought he was drunk and pistol could discharge at any minute.

Q.31. I suggest to you that the accused did not threaten to shoot you with a pistol?

A. I felt threatened that I would be shot or someone would be shot.

Q.32. I suggest that the reason to proceed with the charges was to cover up the assault charge on the accused?

A. You are 100 percent wrong. I did it to report matter to police

14. The State’s second witness Senior Constable Itama Komba said he was on 12 midnight to 8 am shift when called to attend to the complaint. He said as he arrived at the Yacht Club the complainant met him and pointed to the accused as the one who pointed the gun at him. Suddenly the complainant punched the accused to the ground and was immediately stopped by the witness. By than the accused had been punched several times by the complainant. After having contained the situation the witness returned to the police station with the accused and the pistol. Thirty minutes later the complainant and three other persons arrived at the police station. They were all said to be drunk at the time. The witness said when asked about the alleged pointing of the pistol at the complainant, the accused denied the incident saying that he was moving the pistol from one pocket to another.

15. The witness said when they searched the accused vehicle at the police station the second pistol was found with seven rounds in the magazine. Upon being satisfied that there was sufficient evidence the accused was formally charged.

16. During examination in chief the witness said there were two pistols, one silver and one black. The black one was handed over to him at the club by the club manager without the magazine. He said the men who gave him the pistol told him that he took the pistol from the accused who made the threat. When shown the pistol the witness identified it as the one handed over to him at the club without the magazine.

17. During cross examination the witness said the accused had declined to lay assault charges against the complainant. He further said the pistol magazine was handed over to him at the police station by the accused with seven (7) rounds, total fourteen (14) rounds altogether from the two pistols.

Cross examination continue:

Q.3 Can you recall defendant telling you that he lost pistol?

A. Yes he did and came the second time.

Q.4 Can you recall defendant telling you that Duffield was shown pistol at the Yacht Club?

A. That I cannot recall.

Q.5 Can you recall defendant telling you that the pistol at Yacht Club was not loaded?

A. Yes he did.

Q.6 Also denied pointing gun at Duffield?

A. Yes he denied it and said he was moving it from one pocket to another.

Q.10 You agree that the attack by complainant on the accused was unproved?

A. No.

Q.11 Correct, your friend searched and found pistol in car?

A. Yes the silver one, under the seat as I was told.

Observations

18. On all the evidence I must find that there was a strong possibility that the accused did threaten to discharge the pistol towards the complainant. The accused and his witnesses evidence includes references to the pistol, although they have asked me not to believe police witness saying that there was no threat and it was not directed at the complainant.

19. This now becomes the matter of weighing the accuser’s evidence against the state evidence. First I look at the accused evidence. Around 11.15 pm he visited the Yacht Club for the second time in search for his missing pistol. During the cause of the evening he produced his second pistol and showed it to a friend and returned it again to his pocket. He than jokingly told his friend that he would shoot the person who stole his other pistol.

20. The issue here is did he threaten to discharge the pistol towards the complainant, including other persons? The State through the complainant is alleging that he pointed the pistol with full arms length at the complainant’s direction causing the complainant to move away from the direction the pistol was pointing at. The complainant said he felt threatened, moved away from the direction and requested for someone to call the police.

21. The accused and his witness’s version of the repeated questioning and production of the pistol appears to wanting credibility. Firstly the accused is asking me to believe that his witness who is Managing Director of a reputable real estate firm in Lae of European origin could not understand nor comprehend the type of pistol he was referring too. I find it a bit hard to understand. As it is the witness has brought himself down so low to bail the accused out from a situation.

22. Secondly the same witness said the accused was facing the Yacht Club entrance when he took out the pistol and showed it to him. His demeanour was observed and he demonstrated leaning over the high table towards the accused's side to see the pistol. His version is clearly contradicted by the accused’s saying that he stood down on the high stool footrest and showed pistol to his witness. He said at the time he was facing his witness. The accused’s version of the alleged pointing of the pistol to the complainant is further varied. During questioning at the Police Station the Accused’s witness told the investigation officer that he was moving the gun from one pocket to another. This statement was further confirmed during cross examination in which he said the accused had told him that the gun was moved from one pocket to another. The accused has departed greatly from his first statement made at the Police Station to that of now showing the gun to Paul Duffield. Very little of that was given to court in evidence. The accused has forgotten what he told the policeman on the night in question. I am of the view that the new version was made up and disregard it.

23. On all the evidence I must find that there was a strong possibility that the accused did threaten to discharge the pistol towards the complainant and others. I am satisfied that the accused was armed with a pistol at the material time. I am also satisfied that a reasonable amount of alcohol had been consumed up to the time of the incident. All witnesses admitted drinking some form of alcohol that evening.

24. I am not convinced by the accused and his witness evidence. There are glaring inconsistencies. Their version of the magazine being shown, removed and returned to the accused pocket is not very convincing. I am inclined to believe that that piece of information was fabricated and was of recent invention. The accused’s version of moving the gun from one pocket to another appears contradictory to what was later told to court. I find his evidence lacking creditability and do not take him to be a witness of truth. I find his version of just showing the pistol to Paul and his explanations unsatisfactory and unreasonable.

25. I am more inclined to believe the evidence of the complainant. Firstly there is no suggestion that the complainant had any special vindictive reason to assault the accused, save for the fear and threat occasioned on his person. The opportunity to assault the accused presented itself when the pistol was removed from him and when the situation was under control. By saying this I do not condone for one moment the incident of assault on the accused. Secondly there is no evidence that the complainant was out to get him. The accused chose not to lay assault charges against the complainant for reasons only known to him.

26. There is ample evidence before me that the accused honestly felt threatened in the pistol being pointed at him and others seated at their table. He saw the pistol at the accused’s side and the accused raise pistol and pointed it at his direction. The complainant and the defendant were within some meters apart from each other and the sight of the pistol being pointed at his direction must be a real worry and concern. A distance of about 3 to 4 metres was given in evidence. Not to mention the environment in which the alleged incident took place. They were all at a public drinking place and a reasonable amount of alcohol consumed throughout the evening. Any reasonable person who finds himself in that situation would be greatly disturbed and threatened. I am equally satisfied that because the accused felt threatened he drew the attention of the club management who intervened and removed the pistol from the accused minus the magazine. Furthermore the threat was real in that Police were called into the club to intervene.

27. During cross examination when the complainant was asked if he noticed the accused showing the pistol to Paul Duffield he answered in the negative and said he was brandishing it. In the Oxford Advanced Learners Dictionary of Current English (6th ed) brandish means to hold or wave something especially a weapon in an aggressive or threatening way. That word used by the complainant in my view encapsulates the whole incident as he saw it.

28. The complainant reasonably believed that any unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him. A reasonable man who finds himself in that situation might reasonably believe in all the circumstances the complainant found himself. In the circumstances I am satisfied that the treat was real and it was made by the defendant. I have no reason to disbelief the complainant. His demeanour was observed during trial and he remained calm and collected during cross examination. He responded to questions in a forthright manner. I found his evidence true and convincing. The same cannot be said for the accused and his witness.

29. On the question of whether the pistol was loaded at the time it was pointed at the complainant is immaterial in my view. There is evidence before me that the magazine was handed in to Police at the Police Station after the incident. There is also evidence that the magazine was removed before the pistol was shown to Paul Duffield however this evidence clearly contradicts the accused’s version. He simply said he was moving the pistol from one pocket to another. He made no reference to removing the magazine at the time whilst moving it from one pocket to another. One of the witnesses is obviously telling lies to the court. As a result this line of evidence is disregarded. It therefore becomes a matter of degree as to whether either one of their evidence regarding the magazine could reasonably be believed under the circumstances. I have no doubt to believe that the magazine was still in the pistol when it was pointed at the complainant’s direction.

30. I refer to a District Court case on possession of firearm and threaten to use a firearm. The State v Stanley Gadiwilo No 400 of 1998. PNGDC 9, where Her Worship Magistrate Theresa Mongko said (at page 3)

“My view is that a mere verbal threat to discharge a pistol, firearm or a high powered firearm is not sufficient. What is required is the actual or physical pointing of such weapon. To lift or pull out a pistol from its original place and point it directly at a person, in my view, is a threat to discharge a pistol. By the person pointing the pistol, it shows in the minds of reasonable persons, that he is threatening to discharge it. In the case before me I am satisfied beyond reasonable doubt that the accused removed the pistol from its original place (his right trousers pocket) and lifted it up and pointed it directly at Julie and Catherine. By doing so, he demonstrated that he could pull the trigger at anytime and therefore did threaten to discharge the pistol.”

31. In that case the magazine was not in issue, whether the pistol was loaded or not loaded was not in evidence. However Her Worship ruled that the action or physically pointing of such weapon was sufficient to find that the threat was eminent. A guilty verdict was entered.

32. On all the evidence before me I hold the same view and am satisfied beyond a reasonable doubt that the accused removed the pistol from his pocket and brandished it at the complainant and others seated with him at their table. In the circumstances I am satisfied that Section 65B (a) (c) of the Firearms Act has been proven. I therefore find the accused guilty as charged.

A verdict of guilty is entered,

Lawyer for the State: Sgt. Hove Genderiso
Lawyer for the Defendant: Warner Shand Lawyers