State v Ambus [1997] PGNC 101; N1608 (27 August 1997)

Unreported National Court Decisions

N1608

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 1269 OF 1996
THE STATE
v
SAMSON AMBUS, WILLIE WAINE and EDDIE KUSUP

Waigani

Passingan AJ
14-16 July 1997
7 August 1997
25 August 1997
27 August 1997

CRIMINAL LAW - Murder - arising out of Police raid - issue of identification - recognition - question of weight and credibility - Circumstances.

SENTENCE - no special aggravating or mitigating factors - disregard for life - major factor.

Cases Cited:

John Beng v The State [1977] PNGLR 115

Goli Golu v The State [1979] PNGLR 653

The State v Laura (NO. 2) [1988-89] PNGLR 98

Criminal Trial

Samsom Ambus, Willie Waine and Eddie Kusup were jointly charged on an indictment charging them with the murder of the deceased Sande Latu Aepan. The relevant facts appear in the judgment.

Counsel:

L Maru and M Zurenou for the State

D Koiget for the Accused

JUDGMENT

27 AUGUST 1997

PASSINGAN, AJ: The accused was jointly charged with two others on an indictment charging them with the murder of the deceased Sande Latu Aepan on the 5th of November 1994.

The charge arose out of an incident of Police raid of the deceased’s premises (tradestore or tuckershop) situated at the Moitaka Showground at 9 Mile, Port Moresby. On the 5th of November, 1994, between 12.00 midnight and 1.00 a.m. the deceased his young daughter and a relative were asleep in the store. Two security men were out at the front of the store guarding the premises. At that time they were playing snooker. Then two Police vehicles arrived at the premises. Members of the Police Force got out of the vehicles and held the two security men at gun-point while others broke the door opened, entered and pulled the deceased out of the store. It is the State case that the deceased was assaulted (kicked all over his body and dragged out) by Members of the Police Force. As the deceased was pushed out of the door the Accused Samson Ambus Struck the deceased at the back of his head with the barrel of a gun. The deceased fell onto the ground with his face. He sustained a deep cut at the back of his head and became unconscious. Attempts by Police to revive him failed.

The deceased was taken to the Boroko Police Station and then to the Port Moresby General Hospital. He was confirmed dead on arrival at the Hospital. The Medical cause of his death were head injuries due to the deep cut at the back of his head.

Three eye witnesses were called by the State. Jeff Niso and Win Tole were the two security men on the premises when the two Police vehicles arrived. They gave evidence of being held up at gun point by members of the Police Force. They were surprised and confused but stood and witnessed the assaults on the deceased as he was pushed out of the tradestore door. They were held up next to the Snooker Table where fluorescent lights were. There were lights all around the store and the area was clearly lit up. They were able to see all that happened. A Police White Landcruiser ZGR 894 was parked at the front of the store. A blue Toyota Hilux double Cabin drove passed to the back of the Store. They saw about 8-9 Policemen coming out of the white landcruiser. About two of them held the witnesses up at guu-point. The others broke the door opened and entered whilst the accused Samson Ambus and two others stood outside at the door way. They know the Accused as a man from the same area in Wabag. The accused comes from a nearby village of Lengke in Wabag. They both saw him struck the deceased at the back of his head with the barrel of a gun. Both demonstrated the holding of the gun with both hands and a down ward stroke onto the deceased’s head. The impression created by their movements is that the accused used great force. Win Tole said that the deceased was “Killed” by the Police. When asked in cross-examination how he knew the deceased was dead, he said when hit on the head with the gun, the noise was like the Cracking opened of a coconut. Both witnesses said the accused Samson Ambus arrived with others on the White Landcruiser and not the blue Toyota Hilux. He did not remain seated in the vehicle as alleged by the Defence. Everyone came out of the White Landcruiser.

Apart from the accused Samson Ambus, Jeff Niso identified 2-3 other policemen who are not in Court. Win Tole also identified 2 other Policemen who are not in Court. The first one comes from Mendi and the other comes from Bougainville. He was sure that, that Policeman did not come from any of the other Provinces put to him by Defence Counsel. The third witness called was Nick Minao, the deceased’s Uncle. He lived at the back of the deceased’s store. He heard banging noise and shouting coming from the direction of the store. He came to the verandah and looked over to where the noise was coming from. He saw the vehicle lights and went down to investigate. He saw some Policemen standing near a blue Toyota Hilux (double-cabin). One of the Policemen called out to him, “brother” and pointed to where the deceased was. This witness followed the direction and found the deceased lying down at the water place. He was wet all over. He did not respond when called. The witness then lifted him up but could not and only lifted his head. He noticed blood on his body and noticed injury marks on the back of the deceased’s head. He called out to friends for assistance. As he was crying and calling many people gathered and assisted to lift the deceased and carry him to the verandah of his tradestore. People gathered and mourned over the deceased. The body was then taken to the Boroko Police Station. Reports were made and the body was taken to the Port Moresby General Hospital.

This witness identified two Policemen at the time, Philip from Ialibu who was stationed at the Badili Police Station and another Policeman who comes from Buka. They were the men who directed the witness to where the deceased was. He did not see any other Policemen at the scene because he and others were attending to the deceased.

The next witness called was Dr. Diro Babona. He conducted an examination on the deceased and produced a Post-Mortem Report (Exhibit “A”). The following injuries were observed:

“Slight putrefaction face with IM blister at the back.

Swelling (R) occipital region with laceration - subdural haemorrhage occipital region.

1 cm diameter and 5 cm deep laceration (R) occipital scalp. Bilaterally emphysaematous and congested lungs.

Diffuse scanty bleeding under the scalp.”

The cause of death was head injury.

In cross-examination the witness was asked what size object would have caused the injury. He said for head injuries, it does not depend on the size of the object. But that it depends on the speed or force used. Some blunt object such as a club or iron rod could have been used. The State’s next witness was Porepakali Tupi. He was asleep in the store with the deceased and his daughter when the Police arrived. His evidence is that when the Police arrived they broke opened the door and 5-6 men entered and assaulted the deceased. He was kicked and forced out of the store. The accused Samson Ambus was standing at the door way with a gun. As the deceased was pushed out of the door the accused Samson Ambus hit him at the back of his head with the barrel of his gun. The witness demonstrated the holding of the gun with both hands with a downward forceful motion with the barrel of the gun. The deceased fell forward with his face and with his hands outstretched. That the deceased died. That the Police continued to kick him and forced his body to move to about 31/2 metres away from the door way. This witness identified two others, Philip from the Southern Highlands and a man from Buka.

The final State Witness was Benson Okole who was the Investigating Officer. He was called merely to confirm a Statement taken by Constable Tangole from Porepakali Tupi. The Statement was taken and translated from the Enga language by Constable Tangole. That concluded the evidence for the Prosecution.

DEFENCE

At the Close of the State Case Mr. Koiget for the accused submitted that the accused Willie Waine and Eddie Kusup had no case to answer. On the evidence as outlined the Court ruled that both accused had no case to answer. Both accused were acquitted and discharged. The trial continued against the first accused, Samson Ambus.

The accused elected to give sworn evidence in his defence. On the 5th of November, 1994 he was on duty from 6.00 p.m. to about 2.00 a.m.. Between 12.00 midnight and 1.00 a.m. he went on patrol with other members. Two vehicles were used. The accused was the Acting supervisor and travelled with about 9 others on a Toyota Hilux Double-Cab Registration No. ZGC. 632. The second vehicle was a Landcruiser 10 seater, Registration No. ZGR. 984. About 7-8 Members were in that vehicle. The Police were patrolling the 9 Mile, Mount Erima and Laloki areas. In the Toyota Hilux the Accused was the Officer-in-charge whilst Constable Emos was the driver. The landcruiser led the way and stopped infront of a Tuckershop at 9 Mile. The accused’s vehicle also stopped.

A red sedan was parked at the front of the tuckershop. Three men were drinking beer with loud music coming from the Car radio. Then Police members in his vehicle got out and approached the three men. The accused and the driver remained in the vehicle. A Police raid was conducted for illegal sale of beer.

Whilst the accused and his driver were sitting in the vehicle two Engan men (Win Tole and Max) approached them and asked then why a raid was conducted. The accused explained the reasons to them in their language. The Conversation took about 15-30 minutes whilst the raid was being carried out by Members. The two men left and went to the scene. A short time later they returned and informed the accused that the Tuckershop owner had collapsed due to asthma. He had been taken to the Hospital twice for treatment. The men requested the accused to call an Ambulance to the scene. The accused advised the two men that the Ambulance Service was not available due to financial situations. That they should find another vehicle to transport the deceased to the Hospital.

The deceased was taken by relatives to the front verandah of the tuckshop where people gathered and mourned. Police were not permitted to view the deceased. Police got into their vehicles, pulled out and watched from the outside. The deceased was placed in a tipper truck and taken to the City. The accused and others returned to the City and carried on with normal duties. Constable Edward Tangole was the second defence witness. His evidence was mostly in relation to a Statement he took in the Engan language from witness Porepakali Tupi. He is a blood Cousin of the witness.

The third defence witness was Constable Emos Samuel of the Police Task Force. On the 5th of November, 1994 he was on duty as a driver of a blue Toyota Hilux double-cabin registration No. ZGC.623. He was accompanied by about 7 other Policemen, including the accused as his NCO. The accused sat in the front Cabin with him. They drove to 9 Mile and saw a vehicle parked at the front of a tuckshop. He saw three men consuming beer on the side of the vehicle. All Crew Members, except the witness and the accused, got out of the vehicle. The three men were questioned and then the Police Members went to the tuckshop to conduct a raid. That during the duration of the raid the Accused remained in the vehicle with him. Two men approached the accused and had a conversation with him. A short time later he heard someone shouting at the back of the tuckshop. He later learned that someone was dead. That the deceased died of asthma. A White Toyota Landcruiser was also at the scene that night. It was parked on the side of the tuckshop. The witness did not see what his men or others in the white Landcruiser did.

The final defence witness was Tom Kanambo. He was one of the three men in a vehicle that was seen parked at the tuckshop at 9 Mile. He was the owner of a red Mazda 323 Sedan Registration No. BAK. 610. At 6.00 p.m. on the 5th of November, 1994 he was drinking with his two friends at Boroko. At about 12.30 p.m. they left to take his other friend (Roy) to the McGregor Barracks. On the way to the McGregor Barracks they decide proceed on to a tuckshop to look for beer. He approached four men playing snooker near the tuckshop and asked for beer. He gave K10.00 to the Shopkeeper who gave him 6 bottles of beer. The witness and his two friends stood out side their vehicle and drank. About 5-10 minutes later Police arrived on a blue Toyota Hilux and asked them where they had bought the beer. The witness advised, at that tuckshop. He was told to identify the shopkeeper. But the shopkeeper was not there. Then a second Police Vehicle arrived, a white 10 seater. A short Policeman told them to remain next to their vehicle. About 20-30 minutes later they heard crying coming from the back of the tuckshop. Police told them to leave the premises. Three Policemen from the blue Toyota Hilux spoke to him and his two friends. At that point the 10 Seater dropped off some Policemen and drove on to the back of the tuckshop. There were about 7-8 men from both vehicles. He was not sure if everyone got out of the blue Toyota Hilux.

ISSUES

The undisputed facts as agreed to by both Counsel are:

(a) On the 5th of November, 1994 between 12.00 midnight and 1.00 a.m. the accused was an NCO and a member of the Police Force on motorised Patrol of the 9 Mile area. Two Police vehicles were involved, a blue Toyota Hilux Registration No. ZGC. 623 and a White Toyota Landcruiser Registration No. ZGR. 984.

(b) Police searched the premises of the deceased (Tuckshop).

(c) In the Course of the search the deceased suffered injuries to the back of his head.

(d) Deceased died instantly from head injuries.

It is the State case that the Accused Samson Ambus struck the deceased at the back of his head with the barrel of a gun. He sustained a deep cut at the back of his head and died as a result. The accused denied responsibility. That although he was at the scene, the alleged assault by him did not take place. He never left the vehicle for the duration of the search or raid of the premises. He had remained in the vehicle to maintain communication with Boroko Police. The main issue, therefore, is one of identification. The Supreme Court decision in John Beng v The State [1977] PNGLR 115, is authority on this issue. The Court held (inter alia):

“In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a witness could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognise someone he knows mistakes can be made.

State Counsel Submits that relevant evidence of identification of the Accused Samson Ambus were given by Win Tole, Jeff Niso and Porepakali Tupi. Matters to be taken into account are “what opportunities the person identifying had to form a judgment of the identity of the person who committed the crime...the position of the parties when the identification was made, the lighting, the opportunities to form a judgment, and generally the circumstances in which the identifying witness formed his judgment as to identification.” (John Beng at p. 124).

Bearing in mind all the inherent dangers and the need for this Court to act cautiously on the evidence of the three main State witnesses these aspects of the evidence stand out:

(a) the accused is not a Stranger to the Witnesses, he is known by them as he comes from the same area in Wabag;

(b) Witnesses were positioned so closed to the accused when he struck the deceased on the back of his head with the barrel of his gun;

(c) Lighting was good. The premises was well lit by fluorescence lights; and

(d) Accused was NCO and one of the Officers in charge that night;

Accused and his men were armed with an AR.15 Rifle, a gas-gun and a shotgun.

The Accused denies assaulting the deceased in the manner alleged. He was on the premises, but that he remained in a blue Toyota Hilux which was parked at the front of the tuckshop. Win Tole and Jeff Niso say that the accused came out of a White 10 Seater Landcruiser which was parked at front of the tuckshop. In my judgment this is not a major issue.

Defence adduced evidence to show that three persons were seen on the premises. A red sedan was parked with doors opened, loud music was on and the three men were drinking beer. Police arrived and asked where they had bought the beers. They replied, at the tuckshop. When taken to the tuckshop to identify the shopkeeper, they could not find him. In my judgment this is not a major issue. I am satisfied that Police pulled into the deceased’s premises to investigate on suspicion. As they were on normal Police patrols that night I consider that it was within their duties to investigate suspicious situations.

Defence Counsel took issue with inconsistencies in the sworn testimony of Porepakali Tupi with his Statement taken by Police on the day after the incident. Basically, that there was no mention of the accused as the person responsible. That Statement (Exhibit) was tendered by the Defence and accepted by the Court as evidence of a statement given by the Witness, not as truth of its contents. In my View, as against the Witness's oral sworn testimony, any inconsistencies or discrepancies are of no great significance. The main evidence before the Court is his sworn testimony.

On the whole of the evidence the issue narrows down to one of recognition rather than identification. The weight to be given to evidence of recognition depends upon the length and degree of prior acquaintance (John Beng v The State at p.127). I am satisfied beyond reasonable doubt that the three witnesses and the accused knew each other well as they come from the same area in Wabag, and in fact from neighbouring villages. I find that in all the circumstances possibility of mistakes made by the witnesses is very remote.

Finally, is there a motive for placing the blame on the accused. I find no evidence that the witnesses were not in good terms with the accused. The issue before me, therefore, turns upon the credibility of all the witnesses who testified before the Court.

Defence evidence leaves alot of questions in my mind. If the Accused had remained in the vehicle for the duration of the raid would the witnesses have seen him? His claim that he was the NCO and Officer-in-Charge is inconsistent with his evidence that he did not lead the raid but remained in the vehicle. The accused and the rest of the Police members took no action to assist the deceased. The Police driver, Constable Emos Samuel, says he was with the accused in the vehicle. The vehicle was parked facing the tuckshop. His men went towards the tuckshop but he did not see what they did. Tom Kanambo was the third defence witness. He was the owner and driver of the red sedan which was parked outside the deceased’s premises. Him and two friends bought 6 bottles of beer at the tuckshop. They were drinking outside their vehicle when Police arrived. Police spoke to him and led him to the tuckshop to identify the shopkeeper. The shopkeeper could not be identified. He also did not see anything happened. Police told him to leave. They left the premises.

On the whole of the evidence I give very little weight to the defence evidence. I find Prosecution evidence consistent and credible. I accept Win Tole, Jeff Niso and Porepakali Tupi as witnesses of truth. I find that the Prosecution has proved beyond reasonable doubt that the accused Samson Ambus is guilty of the charge of murder.

VERDICT

Guilty of Murder.

REASONS FOR SENTENCE

Samson Ambus, you have been convicted of the crime of murder pursuant to s. 300 of the Criminal Code. The facts and circumstance are fully set out in my Judgment delivered on the 25th of August, 1997. Briefly, you were a Member of the Task Force patrolling the 9 Mile area on the night of the 5th of November, 1995. You were infact the NCO and Acting Supervisor of the Police raid at the Deceased's premises. The Court found on the evidence that you were armed (as usual on raids) with an AR 15 rifle, a gas gun as a shotgun. You, as the Officer-in-charge were armed with the AR. 15 rifle. The Court has found that there was nothing unusual about your task that night. You were on normal police patrols carrying out your duties. You stopped at the deceased's premises on suspicion to make enquiries. There is evidence that there was a red Mazda 323 parked outside the premises. Three men were seen drinking and making loud noises. The driver of that vehicle told the Police he bought the beer at the tuckshop. Your men asked him to identify the shopkeeper but he failed to do so.

The deceased sustained injuries in a Police raid situation. It was past midnight and I am satisfied that the tuckshop was closed and the deceased was asleep. There is no evidence that the deceased, Porepakali Tupi, Win Tole and Jeff Niso resisted Police. Those men were unarmed. In the circumstances Police actions that night were most unreasonable. I accept the evidence of the nature of the assaults inflicted upon the deceased.

The maximum penalty, subject to s. 9 of the Criminal Code, is one of life imprisonment. I consider that in the circumstances of this case life imprisonment is out of reasonable proportion to the particular circumstances of this crime: Goli Golu v The State [1979] PNGLR 653.

The following guidelines maybe taken as appropriate in sentencing for murder according to The State v Laura (No.2) [1988-89] PNGLR 98. On a plea of not guilty, a range of sentences from 8-12 years or more in a case where aggravating factors are evidenced.

In this case there are no special aggravating factors apart from the circumstances under which the deceased was injured. I find that it was a normal police raid where Members of the Police Force exceeded their authorities in using unreasonable force in the circumstances. The deceased was asleep, he was defenceless and was not attempting to escape. I am satisfied that the raid or search was carried out without the necessary Search Warrants.

It is submitted on your behalf that you are a first Offender, married with four children aged 11/2 - 71/2 years, and good employment record as a Policeman from 1984 to 1997. No time was spent in custody.

Although there are no special mitigating factors in this case your penalty must fit the particular facts here. The actions of the Policemen who were under your command and your own disregard for life is a major factor against you.

This is a conviction after a trial which lasted many more days than estimated. At the end of it all you showed no remorse for what you did.

In conclusion I consider that a sentence of 7 years imprisonment in hard labour is appropriate.

SENTENCE

7 years IHL.

ORDER

That your bail be refunded.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor