State v Aia Peto [1975] PGNC 11; N17 (8 December 1975)

Unreported National Court Decisions

N17

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
AIA PETO

Waigani

Frost CJ
1-4 December 1975
8 December 1975

FROST CJ: The accis charged upon indn indictment with three alternative counts under s.317 of the Criminal Code of unlawfully doing grievous bodirm on 28th March, 1975, to one David Bolton, an Inspector of Police, the intents alleged beed being to prevent the lawful detention of one Philip Gabi, to disable the said David Bolton, or to do some grievous bodily harm to him.

Upon a fourth count of doing grievous bodily harm with intent to prevent the lawful arrest of Philip Gabi I upheld a submission that there was no case to answer in view of Inspector Bolton’s evidence that he had no present intention of making such an arrest.

The main facts are not in dispute. On the night in question in his house at Saraga at about 9.00pm Inspector Bolton was in bed when he was wakened by his wife because of noise and the barking of dogs coming from the adjoining house, which was apparently unoccupied and in darkness. Having asked his wife to telephone the police he took with him a torch and a service pistol, which was without doubt unloaded, and proceeded to the house which was less than 30 feet away. Outside the house he noticed a youth who made off up the hill. The Inspector went around the back of the house, opened a flywire door which was not fastened and then proceeded to push open the kitchen door which was also unfastened. He noticed an obstruction, so he slipped inside, closed the door and, switching on his torch, noticed an intruder behind the door who proved to be Philip Gabi. The Inspector then grappled with Gabi and, he said, another youth who came from behind the refrigerator. In the course of the struggle the accused, who had been posted outside to keep watch and must have been the man whom Inspector Bolton noticed on his way over to the house, entered the kitchen and hit the Inspector upon the head with a piece of wood. The three intruders then made off, Philip Gabi taking the pistol.

As the blow unfortunately caused a compound depressed fracture of the skull which clearly endangered life, which would support an inference that the intent was to do grievous bodily harm, the main elements of the crimes charged are not in issue. What is in issue is whether the blow was unlawful for because of further circumstances to which I shall now refer there is raised the defence that the accused acted in good faith in aid of Philip Gabi for the purpose of defending him.

The defence relates to the use which it is alleged Inspector Bolton made of the pistol he took with him. His evidence is that he went to the house holding the torch only and with the pistol in its holster tucked beneath the band of his underpants - his only other garment was a shave-coat.

The defence case is that the Inspector carried also the pistol out of its holster, that he pointed it at Gabi and was holding it when he grappled with him, that he grappled with Gabi only, that the third youth, whose name was Philip Naime and who was certainly in the kitchen, remained hidden under the table, and that the accused intervened and struck the blow to prevent Gabi from being shot.

One feature of the case was the effect on Inspector Bolton’s memory caused by the injury. He was rendered unconscious for a short time but recovered to make his way back to his own house where he was assisted by his wife. On admission to the hospital soon after he was found to be disoriented but not fully conscious, and on the morning of the next day he was still unable to remember the incident. He gradually recovered his memory so that on 3rd April he was able to give sufficient details to enable a statement to be prepared for him by Inspector Selva. However, even at that stage six days later, the latter found that the Inspector was going off at a tangent and that the information was given piecemeal and not in logical form, so that he was not then fully recovered. Fortunately, however, the Inspector made a good recovery and now claims that he has entirely recovered his memory.

Mr. Frank Smyth, the highly-qualified surgeon who conducted the operation to reduce the fracture, considered that it would not be inconsistent with his injuries and the recovery he has since made that the Inspector should have regained his recollection. As against this, as appears from an affidavit by Dr. David Butterfield, which was read to the Court, it was under his immediate care that Inspector Bolton was treated for the two or three weeks that he was in hospital. Dr. Butterfield took a somewhat different view, deposing that the Inspector did not recover during the period of treatment from his post-traumatic amnesia affecting his recollection of the incident and of a very short period immediately before and after it. From his observation of the patient and of other patients with similar injuries he would not expect him fully to recover his recollection of the incident.

Another feature of the case was that Philip Gabi was called by the State, apparently to support an alternative case if the Court found itself unable in all the circumstances to act on Inspector Bolton’s evidence.

Gabi’s evidence was that whilst in the kitchen he heard the accused call from outside that an European man was coming. This caused him to open the door to see if he could escape, but seeing the Inspector coming he stood behind the door. He said he saw Inspector Bolton approach with a lighted torch in one hand and a pistol in the other, and that after the Inspector had gained entry to the kitchen that he flashed the torch on him and pointed the pistol at him, and then he called out what are you doing here?, that Gabi then grabbed the pistol by the barrel and whilst the Inspector was twisting it violently to recover it from Gabi’s grasp he grabbed Gabi’s other hand and twisted it behind Gabi’s back. The torch fell to the floor. Gabi then called out to the accused. His first account was that he called, the European man is hitting me, but later he gave evidence consistently with an earlier statement made by him to the police that the words he called out were, the European man is shooting me. It was then that the accused came in and struck the Inspector.

The accused, who was the only witness called for the defence, gave evidence much to the same effect. He said he saw the Inspector approach holding a lighted torch in his left hand and a pistol in the other. The evidence of both men that the accused called out warning of the approach of Inspector Bolton is consistent with the fact that the accused was found hiding behind the door. The accused said his intention in delivering the blow was to enable Gabi to escape, but he was adamant that his intention also was to make the Inspector drop the pistol and prevent him from shooting Gabi.

The defence is put under ss. 272N17.html#_edn137" title="">[cxxxvii]¹ and 273N17.html#_edn138" title="">[cxxxviii]² of the Criminal Code. Counsel for the defence conceded that the unlawful presence of Gabi upon the premises constituted s.272 sufficient provocatiocation to Inspector Bolton to grapple with him, but he submitted that the use by Inspector Bolton of the pistol, which Gabi and the accused had no reason to believe was unloaded, was excessive in the circumstances as neither of the youthful intruders was armed. It was then submitted that the use of the pistol was sufficient to cause reasonable apprehension at least of grievous bodily harm and to induce Gabi to believe on reasonable grounds that it was necessary for his preservation to use force in self-defence, and that a blow of the nature inflicted by the accused was reasonably necessary for his preservation, although it might have caused grievous bodily harm.

It was then submitted under s.273 that as it would have been lawful for Gabi to act in that manner it was lawful for the accused, as he was acting in good faith in his aid and for the purpose of defending Gabi, to use a like degree of force.

Counsel for the State conceded that if it was not excluded that Inspector Bolton had placed Gabi in reasonable apprehension of grievous bodily harm by menacing him with the pistol then it was lawful for the accused to intervene and take the action that he did. He agreed that the use of a pistol in such a way as to cause Gabi to believe that Inspector Bolton would shoot him would in the circumstances of the present case have been the use of excessive force and going beyond what was reasonable and that for the accused to act as he did would have been excused by law. Counsel did however put an alternative submission that as on the evidence of both Gabi and the accused the Inspector and Gabi were struggling together, both holding the pistol pointing away from Gabi and Gabi’s hand twisted behind his back, it was not a plain case of the Inspector menacing Gabi with a pistol, and that the accused could not reasonably have believed that the Inspector was intending to shoot Gabi. Further, it was submitted it was going too far for the accused to hit the Inspector on the head, rather than for example knock the pistol from his hand.

The main issue of fact is whether the Inspector had the pistol in his hand. It is not necessary to go into the details but there are inconsistencies in various significant respects between his police statement, the evidence he gave to the District Court and to this Court. The probabilities do not entirely support his account. Why would he take an unloaded pistol - he had the choice of a loaded Biretta which was also in the cupboard - except for display, and there is the practical unlikelihood that the heavy service pistol would remain securely held by the waistband of his underpants as he ran across to the other house, and also during the time he was engaged in a fierce struggle with Gabi. On the whole, I have reached the conclusion that it would be unsafe to act on the Inspector’s memory, impaired as it was by his grave head injury.

Accordingly the doubt must be resolved in favour of the accused, so that the State has not excluded that the Inspector was carrying the pistol in his hand.

On that basis I feel unable to uphold the alternative case put by the State, that the accused went too far in delivering the blow that he did. On this part of the case I am again unable to exclude Gabi’s evidence that it was with him alone that the Inspector was struggling. The instances in which a pistol has been fired during a violent struggle with tragic consequences have been only too frequent in these courts. In my opinion Gabi might honestly and reasonably have believed that there was a real risk that in the course of the struggle between the Inspector and himself that the Inspector would fire the pistol and shoot him. Thus I am not satisfied beyond reasonable doubt on the evidence of this case that the accused did not have reasonable grounds to believe that it was necessary for him to take the action that he did, or that the accused was not acting in good faith for the purpose of defending Gabi. The conclusions that I have reached in this case mean that the accused is entitled to be acquitted on each of the three alternative counts to which he pleaded not guilty.

I trust that Inspector Bolton has some consolation in the knowledge that his actions which he took honestly and immediately, in the path of his duty as he saw it and without regard to his own personal safety, led to these three rascals being apprehended and brought to justice.

Solicitor for the State: L.W. Roberts-Smith, Public Prosecutor.

Counsel for the State: B.J. Cassells.

Solicitor for the Accused: N.H. Pratt, A/Public Solicitor.

Counsel for the Accused: A.J. Alpine.

N17.html#_ednref137" title="">[cxxxvii]^{* Self-defence against provoked assault. - When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults him with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce him to believe, on reasonable grounds, that it is necessary for his preservation from death or grievous bodily harm to use force in self-defence, he is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.}

N17.html#_ednref138" title="">[cxxxviii]^{** 273. Aiding in self-defence. - In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use a like degree of force for the purpose of defending such first-mentioned person.}