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. elevant facts appear in thin the judgment.

Counsel:

L Maru and M Zurenou for the State

D Koiget for the Accused

27 AUGUST 1997

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

Targe arose out of an incident of Police raid of the deceaseceased’s premises (tradestore or tuckershop) situated at the Moitaka Showground at 9 Mile, Port Moresby. On the 5th of Novembe94, b94, between 12.00 midnight and 1.00 a.m. the deceased his young daughter and a relative were asleep in the store. Two secumen were out at that the front of the store guarding the prs. At time they they were plae playing snooker. Then two Police veh arriverrived at the premises. rs of the PoForceout of thof the vehiclehicles and held the two security men at gun-point while others broke the the door opened, entered and pulled the ded outhe store. 160; It is the State that that the deceaseceased was assaulted (kicked all over his body and dragged out) by Members of the Police Force. As the ded was pushed out 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 sustainedep cut at the the back of his head and became unconscious. Att by Police to revive hive him failed.

The deceased was taken to the Boroko Poliationthen to the Port Port Moresby General Hospital. He waHe was confirmed on a 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.&#16ff Nid Win Tole were tere the two security men on the premises when the two Police vehicles arri arrived. They gave evidence of being held up at gun point by members of the Police Force. They werprised and confusenfused but stood and witnessed the assaul the deceased as he was pushed out of the tradestore door. They were up next to t to t to the Snooker Table where fluorescent l were. There were lige lights all around the store and the area was clearly lit up. They were able e all that that happen160; A Police White Landcrundcruiser ZGR 894 was parked at the front of the store. A blue Toyota Hilux doCabi Cabin drove passed to ack of the Store. They saw about 8-9cemen coen comingoming out of the white landcruiser. About two em held the witn witneup at guu-point. The others broke the dooneopened andd and entered whilst the accused Samson Ambus and two others stood outside at tor way. They know the Accused as a man from the same 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. Bothnstrated the holdf thef the gun with both hands and a down ward stroke onto the dthe deceased’s head. The impression creay theirtheir movements is the accused used great force. Win Told that the dthe dece deceased was “Killed” by the Police. When asked in cexaminatio how he knew the deceased was dead, he said when when hit on the head with the gun, the noise was like the Cracking opened of anut. Both witnesses said the accused Samson Ambus arrived with others on the Whhe White Landcr and and not the blue Toyota Hilux. He did not remain seated in the vehicle as alleged by the Defence. Everyone came out of tite hite Landcruiser.

Apart from the accused Samson Ambus, Jeff Niso identifiedified 2-3 other policemen who are not in Court. Win Tole also identified er Policemen who are not in Court. Trst one come comes from Mrom Mendi and the other comes from Bougainville. He was sure, that Poln didn did not come from any of the other Provinces put to him by Defence Counselunsel. The thitness called was Nias Nick , the deceased’s Uncle. He liv the back of the dece deceased’s store.&#16. He heard bannoise and shou shoutining from the direction of the store. He co the vthe verandah anah and looked over to where the noise was coming from. He saw thicle lighd went dent down to investigate. He saw somw some Policemen standing near a blue Toyota Hilux (double-cabin). One ofPolicemen d out to h to him, “brother” and pointed to where the deceased was.&#as. This witnellowed the direcdirectnd fohe deceased lyinglying down at the water place. He was wet all over.; He d He did notd not respond when called. The witneen lifted p but cbut could not and only lifted his head.&#1d. He noticed on his body andy and noticed injury marks on the backhe ded’s head.&#ad. He called out tends for asor assistance. As hecrying ying and callicalling many people gathered and ted to lift the deceased aned and carry him to the verandah of his tradestore. People gathered and mourned over the deceased. ody was thken to the Bthe Bthe Boroko Police Station. Reports were made ae body body was taken to the Port Moresby General Hosp

is witness identified two Policemen at the time, ime, Philip from Ialibu who was stationed oned at the Badili Police Station and anotoliceman who comes from Bukm Buka. They were the men who directed the witness to where the deceased was. He did not see any otoliceolicemen at the scene because he and others were attending to the deceased.

The next witness called was Dr. Dirona.& He conducted an d an examination on the deceased and produced a Post-Mortem Report (Exhibixhibit “A”). The followijuries were obse observed:

“Slight putrefaction face with IM blister at the back.

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

1 cm diameter and 5 cm deep 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 injuries, it d it does not depend on the size of the object. Bat it depends on the spee speed or force used. Some bobject suca club or b or iron rod could have been used. The State’s witnesitnesitness was Porepakali Tupi. He was a in tore with tce dece deceased and his daughter when the Police arrived. His nce is e is that when when the Police arrived they broened oor and 5-6 men emen entered and assaulted the deceased. He was kickd forced outd outd out of the store. The accused Samsbus was standing at the dooe door way with a gun. As the deceased was pusut out of the door the accused Samson Ambus hit him a backis head with the the barrel of his gun. The witness demonstrated the holding of the the gun with both hands with a downward ful motion with the barrel orel of the gun. The deceased fell forward with his face and with his hands outstretched. That eceased di160; That that that the Police continued to kick him and forced his body to move to about 31/2 s away from the day.&#This#This witness iden identified two others, Philip from the Southern Highlands and a man from from Buka.

The final State Witness enson Okole who was the Investigating Officer. He wase was callrely to coto confirm a Statement taken by Constable Tangole from Porepakali Tupi. The Statementtaken and trad translated from the Enga language by Constable Tangole. That concludedevidence fe the Prosecutiocution.

DEFENCE

At the Close of the State Case Mr. Koiget for the accused submitted that tcused Willie Waine and Eddie Kusup had no case to answer. On thdence as outlinedlinedlined the Court ruled that both accused had no case to answer. Both accusre acquitted andd and discharged. The trial continued against the first accused, Samsbus.

The accused eled elected to give sworn evidence in his defence. On the 5th of November, 1994 he was on duty from 6.00 p. about 2.00 a.m.. Between 12.00 midnand 1.00 1.00 a.m0 a.m. he went on patrol with other members. Thicles were used.; The ache accused was the Acting supervisor and travelled with with about 9 others on a Toyota Hilux Double-Cab Registration No. ZGC. 632.&#16e second vehicle was a Landcruiser 10 seater, Registration tion No. ZGR. 984. About 7-8 Members in that that vehicle. The Polire patrolling the the 9 Mile, Mount Erima and Laloki areas. InToyota Hilux the Accusedcused was the Officer-in-charglst Cble Emos was the driver. The landcruleer led the wahe way and stopped infront of a Tu a Tuckershop at 9 Mile. The accused7;s vehiclo stoo stopped.

A red sedan was parked at the front of the tuckershop. Three men weinking beer wier with loud coming from the Car radio. Then Polembers in his vehi vehicle got out and approachedached the three men. The accused anddriver rem ined in the vehicle. A Police was cons conducteducted for illegal sale of beer.

Whilst the accused and his driver sitting in the vehicle two Engan men (Win Tole and Max) approached them and asked then why why a raid was conducted. The accused exed the reasoreasons to them in their language. The Conversation about 15-t 15-30 minutes whilst the raid was being carriedby Members. The two men left and wenthto the scene. A short time lahey rety rety returned and informed the accused that tckershop owner had collapselapsed due to asthma. He had been taken to theitospital twice for treatment. en requested the ed to calo call an Ambulance to e to the scene. The accused advised the two men that the Ambulance Service was not available due to cial tions. That That they should find another vehicle to e to transport the deceased to the Hospital.

The deceased was takenelatives to the front veranverandah of the tuckshop where people gathered and mourned. Police were nrmitted to vito view the deceased. Police got into their vehicles, pulled out and watched from the outside. The deceased was p in a ti a tipper truc taken to the City. The accused and otherurnedurned tned to the City and carried on with normal duties. able Edward Tangos the sece second defence witness. His evidenc mostlyostly inly in relation to a Statement he took in the Engan language from witness Porli Tupi. He is a blood Cousin of the witness.

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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 wcompanied by about 7 ot 7 other Policemen, including the accused as his NCO. The accused sat infront Cant Cabin with him.& They drove to 9 Mile and saw a vehicle parked at the front of a tuckshop. He saw thrw three men conguming beer on the side of ehicle. All Crew Members, except the witness and the the accused, got out of the vehicle. The thre were questioned hned hen the Police Members went to the tuckshop to conduct a ra a raid. That g the duration of thef the raid the Accused remained in thecle with him. Two men approached thesed used and had had a conversation with him. A short time lat heard somd someone shg at the back of the tuckshuckshop. He laearned that someone wone was dead. That the deceased died of asthma. A White ToLandcruiser was also at the scene that night. s was parked on the side side of the tuckshop. The witness didsee what hiat hisor otin the white Landcruiser did.

The final deal defence witness was Tom Kanambo. 160; He was one of tree meee men in a vehicle tas seen parked at the tuckshop at 9 Mile. He was the the owner of a red Mazda 323 Sedan Registration No. BAK. 610. At 6.m. on the f November,mber, 1994 he was drinking with his twis two friends at Boroko. At about 12.30 p.m. left teft to take his frieoy) to the McGregcGregor Barracks. O way to the McGregor Barr Barracks they decide prde proceed on to a tuckshop to look for be160; He approached four men playing snooker near the tuckshuckshop and asked for beer. He gave K10.0the Shopkeepekeeper who gave him 6 bottles of beer. The witnesshis two friendsiends stood out side their vehicle and drank. Ab-10 minutes laterce arri arrived on a blue Toyota Hilux and asked them where they they had bought the beer. The witness advisedthat tuat tuckshop. H told to ify the shopkeeppkeeper. But thekeeper eper was nots not there. Then a second Police Vehicle arrived, a white 10er. &A short Policeman told them to remain next to theo their vehicle. About 2minutesnutes later ater they heard crying coming from the bf the tuckshop. Police told them to the pthe premiseemises. Three emen from the blue Tlue Toyota Hilux spoke to him and wo friends. At that phat point the 10 Seater dropped off some Policemen and drove on to the back of the tuckshop. There were a7-8 men frth voth vehicles.cles. He was nre if everyone gote got out of the blue Toyota Hilux.

ISSUES

The undis facts as agreed to by both Counsel are:

(a) ـ On the 5the 5th of h 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 les wnvolv blue Tlue Toyotaoyota Hilu Hilux Registration No. ZGC. 623 and a White Toyota Landcruiser Registration No. ZGR. 984.

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

(c)&#1c) ـ In the eourse of thof the search the deceased suffered injuries to the back of his head.

(d) ҈ Deceaseceased died instanrly frod inj.

t is the State case that the Accused Saed Samson mson AmbusAmbus struck the deceased at the back of his head with the barrel of a gun0; Heainedep cut cut at the back of his head and died as a as a resu result. The accused denied responsibility. That although he was atscee scene, the alleged assault by him did not take place. He nleft the vehicle for tfor the duration of the search od of remises. He had remained in the vehicle to e to maintain communication with Boroko Poko Police. The issue, thereforeone ofne of identification.&#160 The Supreme Cdecision in J in John Beng v The State [1977] PNGLR 115, is authority on this issue. ourt held r alia):

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“In proceedings where here evidence of identification is relevant, the Court should be mindful of allinherent dangers, the need for caution before convicting in reliance on the correctness of s 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 takeo accounccount are “what opportunities the person identifying had to form a judgment of the identity of the person who comd the crime...the position of the parties when the identification was made, the lighting, tng, the opportunities to form a judgment, and generally the circumstances in which the identifying witness formed his judgment as to identification.” (John Be p. 124).

B

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

(a) < & the accus not not a StranStranger to the Witnesses, he is known by them as he comes from the same area in Wabag;

(b) ـ&#1see poee posed soed soed to the accused when he stre struck tuck the dehe deceaseceased on the back of his head with the barrel of his gun;

(c)ـ҈ Lighting was good. The prs ises was wwas well well lit by fluorescence lights; and

(d) AccusedNwas ndO ae oonthe the Officers in charge that night;

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

e Accdenieaulting the deceased in the manner alleged. H60; He wase was on the prhe prhe premiseemises, but that he remained in a blue Toyota Hilux which was parked at the front of the tuckshop. Win Tod Jeff Niso say that that the accused came out of a White 1ter Landcruiser which was pwas parked at front of the tuckshop. In mgment this is not a ma a major issue.

Defence adducedence to show that three peee persons were seen on the premises. A rdan was parked with dooh doors opened, loud music was on an three men were drinking beng beer. e arrived and asked where here they had bought the beers. They ed, at the tucksh160;h160; When taken to the tuck tuckshop to identify the shopkeeper, they could not find him. In my judgment is not a ma a major issue.& I am satisfied that Police pulled into the deceased’8217;s premises to investigate on suspicion. As they were on normal e patrols that night I consider that it was within their duir duties to investigate suspicious situations.

Defence Counsel tooue with inconsistencies in the sworn testimony of Porepakali Tupi with his Statement taken aken by Police on the day after the incident. Basically, that there o meno mention of the accused as the person responsible. That Sent (Exhibit) was teas tendered by the Defence and accepted by the Court as evidence of a statement given by the Witness, not as truth of its contents. Iniew, ainst the Witness'sess's oral sworn testimony, any incy inconsistencies or discrepancies are of no great significance. The evidbefore the Court iurt is his sworn testimony.

On the whole of the evidence the the issue narrows down to one of recognitather than identification. The t to be given to evideevidence of recognition depends ends upon the length and degree of prior acquaintance (John Beng v The State at p.127). I am satisfied bereasonablonable 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 trcumssances possibility of y of mistakes made by the witnesses is very remote.

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

Defence evidence leaves alot of questin my mind. If the Accused had red in d in the vehicle for the duration of the raid woid would the witnesses have seen him? Hism that he was the NCO aNCO and Officer-in-Charge is inconsistent with his evidence that he did not lead the raid but remained invehicle. The accused and the re thef the Police members took no action to assist the the deceased. The Police driver, Constable Emos Samuel, says he was with the accused in the vehicle. Thicle was parked facing ting the tuckshop. His men wenards the top buop but he did not see what they did. Tom Kanambo was the tdefendefencefence witness. He we owner and r of ed seed sedan which wach was parked outside the deceased’s premises. Himtwo frio friends boughtought 6 bottles of beer at the hop.& They were drinkirinking outside their vehicle when Police lice arrived. Police spoke to him and led him to the tuckshop to ide the shopkeeper. The The shopkeeperd not bnot be identified. He ald not see anything hang happened. Police told hileave. They lee premises.

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On the whole ofle of the evidence I give very little weight to the defence evidence. I frosec evidconsistent annt and credible. I accen Tole, Jeff Niso anso and Porepakali Tali Tupi aupi as witnesses of truth. I find the Prosecutas proveproved beyond reasonable doubt that the accused Samson Ambus is guilty ofty of the charge of murder.

VERDICT

Guilty of Murder.

REASONS FOR SENTENCE

Samson Ambus, you have beee been convicted of the crime of murder pursuant to s. 300 of the Criminal Code. The facts and circuce are are fully set out in my Judgment delivered on the 25th of August, 1997. Briefly, you weMember of t of the Task Force patrolling the 9 Mile area on the night of the 5th of Novembe95. ere infact tact the NCO anCO and Acting Supervisor of the Police raid at the Deceased's premises. The Court found on the ece that you were armed (as usual on raids) with an AR 15 rifle, a gas gun as a shotgun.&#16. You, asOfficer-in-charge wrge wered with the AR. 15 rifle. The Court hund that there here was nothing unusual about yout your task that night. You were on l police ps cals carrying out your duties. You stoppetopped at the deceased's premises on suspicion to make enquiries. There idence thate was a rs a red Mazda 323 parked outside the premises. Three mre seen seen drinkirinking and making loud noises.&#16e drif that vehicle tole told the Police he bought the beer at the tuckshop. Your men aske asked him to identify the shopkeeper but iled to do so.

The dThe deceased sustained injuries in a Police raid situation. It was past mht and I am s am satisfied the tuckshop was closed and the deceased was asleep. 160; There is ndence that that the deceased, Porepakali Tupi, Win Tole and Niso resisted Police. Those men werrmed. 160; 160; In the circumst nces Police actions that night were most unreasonable0; I accept the evidence ofce of the nature of the assaults inflicted upon the deceased.

The maximum penalty, subject to s. 9 of thminal Code, is one of life life imprisonment. I consider that i circumstaumstances 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 gines maybe taken as approprpropriate in sentencing for murder according to The State v Laura (No.2) [1988-89] PNGLR 98. On a pl not guilty, a rang range of sentences from 8-12 years or more in a case where aggravating factors are evidenced.

In this there are no special aggravating factors apart from the circumstances under which the dece deceased was injured. I find that i a normal poll police raid where Members of the Police Force exceeded their authorities in using unreasonable force in the circuces. The deceased was asleep, he was defenceless and was not attempting to escape.&#1e. I am sied that the raid orid or search was carried out without the necessary Search Warrants.

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

Although there are no special mitigating factors in this case your penalty must fit the particular facts here0; The actions of the Policemen who were under your command and your own disregard for life life is a major factor against you.

This is a conviction after a trial which lasted many more days than estimated. At the enit all you showedhowed no remorse for what you did.

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

7 years IHL.

ORDER

That your bail be refunded.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor