State v William [1995] PGNC 37; N1380 (18 October 1995)

Unreported National Court Decisions

N1380

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 600 OF 1995
THE STATE
v
SMITH WILLIAM

Mount Hagen

Injia J
11-18 OCTOBER 1995

CRIMINAL LAW - Particular offence - Unlawful killing - Policeman accused of shooting a suspect armed with a shotgun and involved in a road-block on Okuk Highway at Mulitaka, Enga Province - Whether defence of acting on sudden emergency under S. 26 of Criminal Code available to accused - Statutory and common law duty of policeman to use reasonable force to defend person and property under person’s custody or to prevent commission of crime generally and on the highway discussed - Criminal Code, Ss. 26, 31 (1) (a), (b), 269, 302, Police Force Act Ch No 65, s. 139, Constitution s. 35 (1) (b) (i), (iv).

Cases Cited:

State v Ampi [1988] PNGLR 116

R v Waterfield [1963] All ER 659

Text Referred to:

Archbold’s Criminal Pleadings and Practice 42nd Edn

Halsbury’s Laws of England, 3rd Edn Volume 30

Counsel:

P Kumo for the State

P Dowa for the Accused

JUDGMENT

18 October 1995

INJIA J: The accused is a pman eman based at Wabag, Enga Province. He is indicted on one cof t of the unlawful killing of one Lais Tolo of Tulipato village, Mulitaka, Laiagam, in tha Province. The charge is laid underioection 302 of t of the Criminal Code.

It is the State’s allegation that on 7 August 1994, between 7pm - 9pm, the accused shot the deceased with a AR. 15 rifle on the hip area as a result of which the deceased died that same night. To suppors case, the StateState called seven (7) eye-witnesses who gave oral evidence. The State also ted into evto evidence, by consent of the accused, the Medical Report of Dr Canety Lombage. The Scase is basically thay thatdeceased and 3 other men were returning home from Tulipato market place when the governmentnment vehicle used by the accused and anotoliceman came to a full stop and the accused who sat on then the “crew side” in the front cabin came out, opened fire and shot the deceased with the first shot. The vehicle then tff and aand as the vehicle went, two further shots were fired. said the deceased was a le a leader in the village and denied knowledge of any road-block set up at or near Tulipato villagt eve

The accusaccused gave sworn evidence supported by Const. John Boscue who was the drhe driver of the motor vehicle. His is that at that time,time, they were based at the Tapinini Police camp at the Pogera mine site. In the afternoon, they westructed by their Commander to come to Wabag to collect some ammunition from the Police arme armoury at Wabag for use in a mini-raid ext day. After collecting the ationition at Wabag, they returned. They had with with them a AR. 15 rifle and a 303 rifle plus live ammunition rounds. As theyoached Tulipato vilo village, they came across a road-block manned by 6 men who were armed bushknives, axes, and one of them was armed with a home-made-made shotgun. As the vehicle came to a top, the men approached them. ccused got out of the vehi vehicle with the AR. 15 rifle, took aim at the legs of the person armed with the shotgun and fir him,lose range, intending to injure and disable him.&him. Then he gck into the car acar acar and Const. Boscue managed to climb over the road-block and they drove off. This whole incident happened very fast - it took less then one minute. As they off, the ed firedfired 2 md 2 more shots into the air to disperse the men. At that time, they did not know if the man with thegun htually been hit ahit and whether or not he died that evening.

The medical evidence snce shows that a single gunshot pellet entand penetrated the right mid thigh, through the pelvic area area and exited to the left iliac area. The exit spot showed a deep laceration measuring 1.5cm x 1.5cm. This is consistent with the accused’s evidence as to the target aimed at.

Much depends on the factual iss whether there was a road-boad-block at or near Tulipato village. The onus is on the prosecution to persuade me, beyond reasonable doubt, that there was no road-block. On the State’s ece, nce, I am not satisfied that there was no road-block.&#Indeed, I am satisfied on the totality of the evidence for for the State and the defence that there was a road-block which was manne6 or more persons who were were armed and whose faces were smeared with mud or charcoal. I am sied that one of thes these persons was armed with a shotgun. I so satisfied that this phis person was the victim, Lais Tolo. Tidence from whichke thesethese findings are as follows. The Statnessesesses admit dmit there were plenty of people at Tulipato market place during the day0; They said, at the material time, that is between 7pm - 9m - 9pm, there we 80-90 people on each side of the road, some people were at the snooker house and these four men, i.e. the deceased, Tumu Sakato, Peter Kapili and Nision Kendeap were all walking along the road. Shortly before the ac arri arrived in the vehicle, a team of 3 vehicles had carried the dead body of a man from that area killed at the Pogera mine site explosion. They stopped at ato becausecause the deceased was somehow related to these people and arrangements were made to attend the funeral the next day. There would no doubt have been some excited people in mou, in grief or in anger on o on or near the road between Tulipato and Yambali camp. A road-block bein up by soby some of these ms not an unlikely event. The State wses have dene dene denied there was no road-block. But all the witnesses coms come fhe same area and are related to the deceased by tribal affi affiliation. is no independent evidencidence that there was a road-bloc60; The two defence witnesses have strongly maintained that that there was no road-block. Why would wo policemen sudn suddenly at Tulipato, for no reason,ason, and take aim at one of the four men on the road, aim for his leg and just shoot with a high-powered rm at close range; for no reason at all, and drive off?&#16? Thwo policemen, like any oany other policemen were there on their normal official run. They had nmies at this plas place including the victim.

It is submitted by Mr Kumo of counsel he State that the deceased ased was a village leader and a man with four children and that he was walking along the road with three other village leaders. It is subd, as leaders, ths, they would not have been involved in any road-block and the deceased would not have been armed with a shot-gun that night. However, there iindependenendent evidence that the deceased was a village leader. There is the medical report that he was aged about 40 years old but on this evidence alone, I am unable to conclude thatas not or could not have beve been involved in the road-block and was not armed with the shotgun.

If I accept the State witnesses’ version, I would have to find that these two policemen and especially the accused were so stupid; immoral; lacking in commonsense, dignity and sense of respect for the law that they had to stop at a busy place for no apparent reason and just fire the first shot directly at those who appeared and take off. Tate has sought to taint tint the accused character by the fact that earlier that day they had picked up two young women, given them a lift to Laiagam and on their way back, they picked up the woman and placed her in bein between them in the front cabin. itness herself, Poan YalyaYalya, has come to give evidence of being asked to come to the front and the accused kissing her on her cheek, holding her breast and stomach and that she smelt alcoh his mouth when he kissed hsed her. The accused and his other witness do not deny that they gave her a lift to Laiagam and returned back with her and dropped her off at Yambali. The accused enied he fondlfondled her breasts and stomach and kissed he60; Both men denied they drey drank alcohol that day. Does her evideufficiently ntly depict the accused as a man of bad charactd such that he abused his phis powers when it came to the performance of his duties, especially when it came to the use of the gun onpeople on the road that nigt night? In my view, I am unable to make any such definitive conclusion on his character on this kind of evidence. This woman was arced womanwoman at the material time. She was free to associate with any men of her c. There idoubt tubt that thet the trip to and from Laiagam was done with her consent and also with her consent, she joined the two m the cabin of the vehicle. I find the accu accused foed fondled her breasts, held her stor stomach and kissed her. I find that there done wite with the implied consent of Poan. I also find the ed was nots not intoxicated that night because there is insient evidence. But whatever was saidone ione in between them in the front cabin was awas all between consenting adults and I amprepared to impute any bad bad character on the part of the accused.

In any case, on the evidence of the two policemen and the evidence of Poan Yalya, I find that the two policemen misbehaved that day. They should not haven lift lifts to Lapian and her 2 sisters. They should not hav Poan ioan in between them in the front cabin, at night. They ambers of a discip foip force and should have avoided engaging themselves in thesethese kinds of suspicious activities, even with the best of intentions. Thouldisciplined by their heir superiors for their “wo20;womanising” that day whilst in the performance of their duties.&#But then I should not ignore the fact that these two women, with the assistance of Lapian wian who was a friend of Const. Boscue and who is the real sister of Poan, asked these two policemen to give them a lift to drop off Poan’s sister at school at Laiagam. Then Poan asked them tk heck her up at Laiagam on their way back because she didn’t have return bus fare and she also feared trouble on the road. In my view, their misbehaviour that day is an isolated incident on its own and of a less serious nature and I am not prepared to impute bad character on the accused part in terms of the possession and handling of a very l weapon which was in his lais lawful possession and which he was empowered to use in situations which called for its use.

Lapian was the first person to be given a lift by the two policemen. There is some dispute as eo whether Lapian was dropped off at Yambali or taken to Laiagam and returned with them and dropped off at Tulipato just before the killing. I accept the nce o accusedcused and Const. Boscue in particular that he t he was dropped off at Yambali where the two women were initially picked 160; Const. Boscue has no reason to lie against a friend of his whom he gave favourable tree treatment to that day. Whereas Laps from Tulipatoipato and a fellow clansman of the deceased and he has every reason to lie. I fiat he lied. So d So dan Yalya, rother,ther, on this point.

The other factor relied on by the Statement tont to discredit the accused and impugn hisacterhe statements he made to the police which are cone contained in his Record of Interview datw dated 6/1/95 and the different version he gave in court as to the r of people at the road-blad-block who had guns, the number of shots fired directly at the victim whom he perceived to be in possession of the shotgun, and the number of warning shots fired. ccused admitted the inconsnconsistencies existed but he maintained his story to the court saying he did not give a logical sequence of events to the police durie interview. It is submitted byumo that that those inse inconsistencies related to very material aspects of the incident and if he could not accurately recollect the sequence of events in January 1995, then he cannot do so now and his evidence to the Court should be doubted. In my view evidence of botf both State witnesses and the defence witnesses are consistent in their story that only 3 shots were fired that evening. The first shot was thal shal shot which was deliberately fired at the victim and the 2 later shots were warning shots. In the light of this evidence, the inconsistencies do not appear to be materially signif any more. I would reld reject theseninconsistencies on that basis. I would also think that the inconsistencies in the Reof Interview were more to d to do with lapse of memory and re-collection of events which happened so fast and it does not reflect badly oncharacter of the accused.

Having decided the factualctual issues, the remaining issue is whether the defence of self-defence under S. 269 has been established by the accused. The princ are clear. #160; The State bear burdenurden of proving each element of the offence beyond reasonable doubt. It is for the Statnegativeative any defence which is fairly raised on thdencethe balance of prof probabilities, by the accused. Th0; The defence d on this this case is self-defence under S. 269. Theence is there was fear fear fear created in the mind of the accused that there was going to be an attack of some kind and magnitude.& He se men armed and rand ready to attack and coming towards him but there was no actual or thre threatened assault as yet. On this nce, I do not thin think an assault within the definition of S. 343 (a) and (b) had occurred yet. On that basis, I reject efence of self-defence under S. 269 (2): see State v Ampi [1988] PNGLR 116.

This does does not however mean that the accused fin his defence to the charge. Turt is not limited to theo the defences raised by the the accused. Are there any other defences, general defences or defences special to policemen acting in the performance of their duties, under the Criminal Code, which aailable to this accused?

In relation to special defences, at the outset, I say that that there are no special exculpatory defences in the Criminal Code which may be available to policemen who act in the performance of their duties. There are some gl defencesences, which may be available to policemen such as S. 32 (1) (a) which provides that a person is not criminally respon for an act done in “execution of the law”. Howeverseems that this dhis dhis defence is only applicable to policemen who act in the process of executing an order of the Court such as a sentence of death and not in a situation of day-to-day enfent and maintenance of law law and order in the community. Sec32 (1) (b) may also be o be available but that provision only applies to policemen who carry out a lawful order of his superior and it is not available to this accused on the facts of this cas>

In relation to generalneral defences, I am of the view that the defence of sudden emergency in S. 26 is available to the accused on the facts. That sectiovides:

&

“Subject to the express provisions of the Code relating to acts done on compulsion or provocation, or in self-defence - a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extra-ordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.”

This defence involves several things. First, it speaks of a situation of sudden emergency. On thdence, I am satisfiedsfied thate was a situation of s of sudden emergency.

Sec, it speaks of an ordinary person, having power of self-control. In my vin ordinordinary pery person in this case can be referred tordinary member of the PolicPolice Force having the power of self-control. The accused actions must be judged by the standards o “ordinary policemen emen test”.

Thirdly, it speaks of the reasonableness of the actions of the policemen in an emcy situation. Was the accused as reasonaasonable (or (or necessary or justified) in the circumstances? In order to determine issu issue, it is necessary to examine the nature of the legal obligations and duties of policemen in this country.

The gl approach to be adopted in determining whether a policeman acted in the performance of hisf his duties and within his limits was stated by Ashworth J in R v Waterfield [1963] 3 All ER 659 at p. 661:

“In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie or unlawful interference with a person’s liberty or property. If so, ithen relevant to c to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within thpe of such a duty, involvedolved an unjustifiable use of powers associated with the duty.”

It may be said that the accused act of firing the shot at the victim and killing him constituted a prima facie interference with the victim’s right to life as guaranteed by Constitution S. 35.

In relation to the accused scope of duty, policemen by virtue of their authority are empowered by the Police Force Act Ch No 65 to act in accordance with law in discharging their duties. Section 139 o Act providesvides that policemen “have the same powers, duties, rights and liabilities as constables under the under-lyin, except so far as they are modified by or under an Act.” The relevant statutestutes include the Search Act, Arrest Act and Bail Act. None of these Actsapplicablicable to the facts of this case. The closest Act is trest Aest Act but the of this case are that the shot was not fired to effect an t an arrest so it doesn’t apply.

At common law, policemen have widers to main law and order in the community. The genergeneral duof a po a policeman is summarized in Archbold’s Criminal Pleadings Evidence and Practice, 42nd Ed. para 20-192 at page 1683 as follows:

“It is part of the obligations and duof a police constable to tato take all steps which appear to him necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury. There is no exhaustivenitiinition of the powers and obligations of the police but there are at least these and would further include the duty to detect crime and bring an offender to justice: Rice v Connolly [1966] 414, per Lord Parker CJ.&#CJ. lso R v Waterfield and Lynd Lynn [1963] 48 Cr App R.42, 57 and Coffin and Another v Smith [1980] 72 Cr App R.221, DC. Stemming the constableRe’s duty to give adequate protection to all persons and their property, is his duty to control traffic on public roads: Johnson v Phillips [1975] 3 All ER 682, DC.”

In Halsbury’s Law of England, 3rd Edn. Vol. 30; para 206, the primary duty of a policeman is stated as:

“The first duty of a constable is always to prevent the commission of a crime. If a constabasonably appreapprehends that the action of any person may result in a breach of the peace it is his duty to prevent the action. It is his general duty to protect life and property and tneral function of controllirolling traffic on the roads is derived from that duty.”

But the performance of his duty is nlimited. When the situation calr thor the use of forc force to prevent the commission of a crime, the force used must be justifiable, reasonable or not excessive. He must not abuse his powers or act arbitrarily. It is thicept of “re20;reasonableness” which is incorporated in S. 26. The concept of “onablonableness” of the actions of a policeman iituatf sudden emergencrgency in the context of S. 26 were canvasanvassed by Woods J in a case involving a policeman charged with manslaughn circumstances similar to r to the present case. In State v Amnte, he said said at p. 119 -120:

“This raises the concept of criminal responsibility. Of course, technically this concept of criminal responsibility is covered in the Code e self-defence, provocationation and mistake of fact sections. But tsections do not applyapply in this case and yet surely a cos entitled to say that this this accused is not criminally responsible. In other words he has not acted in a criminal manner, h acted reasonably in the cihe circumstances as he saw it at the time, not in the circumstances as we now know later. As the Higrt, io v The Quee Queen [1978] 141 CLR 88 said (at 88):

:

‘the accused...reasonably believed that an unlawful attack threatened him with death or serious bodily harm was being or was about to be made upon hion him... By the expression “reasonably believed” is meant, not what a reasonable man would have believed, but what the accused himself might reasonablyeve in all the circumstances in which he found himself.’

There is no suggestioestion that the accused had any special vindictive reason to shoot the victim. There is no evidence the wthe was out to get him. Thy evidence before me is e is that the accused honestly thought that a pistol or firearm was going to be drawn and he only had one shot in his shotgun and hrefort low down but unut unfortunately not low enough and he shoe shot the deceased in the buttocks which caused his death. It is noif the accused wasd was shooting an unarmed minor offender in a crowd of people where there was no danger to anybody from the vi In other words he was not acting negligently or stupidly in a calm situation. 160; Therefore ll as therethere being no criminal intent there may also be no criminal negligence.”

Some analogy may also be drawn from S. 35 (1) (b) (i), (iv), ( the Constitution which provides:

“35. < & Righlife.life.

(1)p>(1) ـ No pers person shall be deprived of his life intentionally except:

(a) &&#160exec tion tion of a sf a sentence courtowingconviction of an offence for which the penalty ofty of death is prescribed by law; or

(b)p>(b) &##160;hel tofus ofuse oce oce to s to such auch an extn extent as is reasonable in the circumstances of the case and is permitted by any other law:

(i)&##160;;ټ for the defence of any personerson from from viol violence; or

(ii) ټ ie ord e to effect fect a lawful arrest or to prevent the escape of a person lawfully detained; or

(iii) forpurpose of sssingot, aut, aurrection or a mutiny; or

(iv)&#iv) &160; ҈ in ; in order to prto prevent him from committing an offence; or(v)&ـ҈ for the purpose of supprsuppressinessing pirg piracy oacy or terrorism or similar acts; or

(c) as the result of a lawful act of war.

(2) ҈& Nothingthing in Suin Subsection (1) (b) relieves any person from iabilt lawespecthe kg of another.” (underlining is mine).

.

The >The analoanalogy hegy here is that even when the accused in purporting to perform his duties to prevent the victim and others from committing an offence; he deliberately shot at the victim intending to disable him and thereby caused his death; if the force used was unreasonable in the circumstances, the killing may be said to be unlawful in which case he would be criminally liable for his actions.

In the present case, the accused is charged with the unlawful killing of the deceased under S. 302 of the Code. The accused says the killing was lawful as being justified under S. 269 of the Code. However,ve already ruled tled that this defence is not available to the accused on the facts. ve also ruhat the accused dsed did not act in pursuance of e of the powers conferred on him by the Arrest Act to use reasonable force, to t the arrest of the victim and others who were caught or suspected of having committed an o an offence. In relation to the defef a of acting on sudden emergency under S. 26 which is available to the accused, I hold the view that he acted in the performanchis general duties conferred on him by the common law and by analogy, Constitution, S. 35 ( 35 (1) (b) (i), (iv). In determinin reasonablenebleness of this accused actions, I have had regard to the fact that the two men were trained and experienced police#160; They were trained and had experience in working in some of the most difficult parts orts of this country in terms of law and order problems and maintaining safety on the highway. They wrained and experiencrienced in apprehending trouble and fear on the highway. They had two high ed riflerifles and live ammunition in their car. They were in a position toon to appr the danger in a situation tion of sudden emergency, form a quick judgment and act in the way they saw fit to defend or prevent the commisof a crime upon their person and property under their custocustody. In that context, I accept the accused evidence and the evidence of Const. Boscue that the accused believed on reasonable grounds that there was no other way to prevent the commission of ae, preserve their safety and dangerous weapons under their heir control and avoid the danger other than by doing what he did. He no mistake in forming hing his judgment of the situation of emergency and effectively fired shot at the leg of the man whom heeved posed the most immediate and serious threat. The medical r supports thes the acce accused story as to which part of the victim’s body the accused aimed at. I am satisfied that anynardinary policeman working in this part of the country in ituation the accused was plas placed in would have acted in the same way.

In all the circumstances, I am not satisfied that thte has negatived the defencefence of acting on sudden emergency under S. 26 which has been fairly raised on the evidence by the accused, on the balance of probabilities. I find the accused nolty olty of the charge and acquit him. His bail money will be redunded to him.

Lawyers for the State: Public Prosecutor

Lawyers for the Accused: Paulus Dowa