State v Kule [2009] PGNC 32; N3619 (16 April 2009)

N3619

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No 1357 OF 2006

THE STATE

V

JOHN KULE

Waigani: Paliau, AJ
2009: 17th, 18th, 20th, February &
16th April

CRIMINAL LAW – Murder – Verdict – Charge of – Not Guilty Plea – Criminal Code s. 300 (1)(a) – Defence of Accident, whether made out

Cases cited:
Timbu-Kolian v. The Queen [1967-68] PNGLR 320
R. v. Yigwai [1963] PNGLR 40
The State v. Kaiwa Iasumi (1978) N163
John Wanamba v. The State [1998] SC551

Counsel:
Ms. L. Wawun & Mr. T Ai, for the State
Ms. M. Painap & Ms. G. Peu, for the Accused

DECISION ON VERDICT

16 April, 2009

1. PALIAU, AJ: The accused is charged with Murder pursuant to Section 300(1)(a) of the Criminal Code.
   
2. The accused pleaded not guilty upon arraignment to these facts. In the early hours of the 18th May 2006, the accused who is a Reserve Police Constable, attached to the Koitaki Farm together with Gairo Morea, an Auxiliary Policeman and Tau Oa, the driver of the Koitaki Farm vehicle and Simu Jimmy also an employee of Koitaki Farm went to Iarowari High School to apprehend the deceased, Empti Kiro. The deceased was suspected of killing of a cow belonging to Koitaki Farm. The deceased was found sleeping on the verandah of the Headmaster’s house. He was woken up and escorted back to the vehicle by the accused and Gairo Morea. On the way to the vehicle he managed to escape and started running away. The accused shot him when he was about 15 to 20 meters from where he was. He was shot at the back. The bullet from the gun penetrated his spleen. He died from loss of blood.
   
3. At the end of the trial, there was no dispute that the deceased died as a result of the actions of the accused. The only dispute was that the accused shot the deceased by accident. It was contended by the accused that he fired two shots. The first shot was a warning shot. The second shot that caused the death of the deceased was aimed at the deceased leg. It was at that relevant time that the deceased tripped and the bullet penetrated through his back.
   
4. The State presented evidence through three witnesses. They were Tau Oa, Simu Jimmy and Gairo Morea. The State also tendered documents by consent as evidence. They were:
   

1.	Record of Interview, Pidgin Version	Exhibit "A"
2.	Record of Interview, English Version	Exhibit "B"
3.	Statement of John Kuno	Exhibit "C"
4.	Statement of Stanley Japelle	Exhibit "D"
5.	Photographs 1-14 of them	Exhibit "E"
6.	Statement of Samuel Koy	Exhibit "F"
7.	Crime Scene Sketch	Exhibit "G"
8.	Sketch of Deceased Injuries	Exhibit "H"
9.	Statement of Samson Patan	Exhibit "I"
10.	Statement of Joseph Numbos	Exhibit "J"
13.	Autopsy Report, by Dr. Philip Golpak	Exhibit "M"

5. The accused gave evidence on his behalf and also tendered documents purported to be prior inconsistent statements by the State witness, Gairo Morea. They were:
   

11.	Statement by Gairo Morea, dated 18/05/06	Exhibit "K"
12.	Statement by Gairo Morea, dated 06/06/06	Exhibit "L"

6. The issue in this case was whether the accused shot the deceased by accident.
   
7. The accused relied on Section 24 of the Criminal Code which is in the following terms:
   

"24. Intention: Motive.

(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—

(a) an act or omission that occurs independently of the exercise of his will; or

(b) an event that occurs by accident."

8. The State on the other hand produced evidence which purported to show that the accused was criminally negligent in the way the firearm was used or managed and that he had the intention to cause grievous bodily harm. It relied on Section 287 and 300 of the Criminal Code. Section 287 states that:
   

"287. Duty of persons in charge of dangerous things.

(1) It is the duty of every person who has in his charge or under his control any thing, whether living or inanimate, and whether moving or stationary, of such a nature that in the absence of care or precaution in its use or management the life, safety or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid that danger.

(2) A person on whom a duty is imposed by Subsection (1) shall be deemed to have caused any consequences that result to the life or health of any person by reason of any omission to perform that duty."

9. And Section 300 of the Criminal Code states that:
   

"300. Murder

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person."

10. I consider that because there is little or no dispute as to the events leading up to the apprehension of the deceased from the Headmaster’s residence, it is not necessary to examine carefully the facts in relation thereto.
    
11. The facts I consider necessary to be examined carefully are in relation to the events after the apprehension of the deceased. These are the number of times the deceased tried to escape, the number of shots the accused fired and that the deceased tripped which resulted in him being shot in the back.
    
12. The evidence by the State’s first and second witnesses, Tau Oa and Simu Jimmy were only relevant in so far as they relate to the number of shots the accused fired. They were in the car some 150 to 200 meters away. They both heard only one gun shot. They were able to hear the one gun shot clearly. They maintained their stories even when pressured during cross-examination.
    
13. The State’s third witness, Gairo Morea was with the accused when they were escorting the deceased from the Headmaster’s house to the vehicle. The deceased managed to struggle free from the accused and Gairo Morea and ran away and was about 15 to 20 metres from the accused and Gairo Morea when the accused fired the deadly shot. Gairo Morea being closer to the accused when the shot was fired was able to identify that only one shot was fired. This is clearly corroborated by Tau Oa and Simu Jimmy. Tau Oa when cross-examined maintained that only one shot was fired. He had the windows of the vehicle down and the engine was off. Simu Jimmy also maintained that only one shot was fired. That he and Tau Oa were not asleep and the noise of the river did not prevent him from telling that it was only one shot.
    
14. Gairo Morea was the only eye witness and he did not see the deceased trip when he was fleeing away from them. He said the deceased was running away after he managed to free himself when he was shot by the accused. And he was shot only once not twice.
    
15. The accused in his evidence in chief stated that the deceased made three attempts to escape from the grips of Gairo Morea and himself when being escorted to the vehicle. It was on the third attempt that he succeeded and ran away. The accused fired a warning shot. Apparently the deceased, according to the accused, did not heed this warning and kept running away. It was at this time that the accused fired the second shot. The second shot was aimed at the deceased leg with the intention of wounding him to prevent him from running away any further.
    
16. While the deceased continued running away, the accused at the same time was still aiming the gun at him. When the accused fired, the deceased tripped on gravel and when he fell the bullet hit his back.
    
17. The accused stated that there were two previous attempts made to apprehend the deceased. At the Headmaster’s house the deceased tried three times to resist arrest.
    
18. There was light coming from the staff room when Empti, the deceased was running away. The accused had a clear vision when he took aim to shoot at Empti the second time. Empti was approximately 15 – 20 meters away when he fired the second shot. There was gravel in the escape route that the deceased took when he was running away.
    
19. From the above evidence, it is clear that the accused is raising the defence of accident. That the deceased was accidentally shot when he tripped on the gravel. He was aiming for the deceased leg but was shot at the back when he tripped.
    
20. I consider this to be the main focus of this case. And as such I consider also that any evidence in relation to the number of times the deceased tried to escape and previous attempts to apprehend him are not relevant.
    
21. Gairo Morea was the main State’s witness that saw and heard the accused shot the deceased only once. And he did not see the deceased trip. It is his version of the story against that of the accused.
    
22. During cross-examination, the Defence tendered two statements by Gairo Morea with a view to establish that he made prior inconsistent statements. The Defence sought to establish prior inconsistent statements in relation to the deceased being shot at twice and that the deceased tripped and he was shot at the back to discredit Gairo Morea’s evidence.
    
23. The Defence relies heavily on the inconsistent statements of Gairo Morea and urged the Court not to believe Gairo Morea. The Court must believe the accused’s version of the story. The accused fired two shots. One, a warning shot and the other hit the deceased back because he tripped. He was aiming for the deceased leg, but because he tripped, the shot hit his back. Had the deceased not tripped, he would have been shot on the leg and death would not have resulted. This is what the Defence wants the Court to believe.
    
24. The State on the other hand is saying that the Court should believe Gairo Morea. Although his two statements may be inconsistent, he was able to offer an explanation why this is so. The Court should believe his explanation.
    
25. He explained that his first statement on the 18th May 2006 (Exhibit "K") was not written by him. The accused gave the story. He did not read the Statement as it was late. His second statement on the 6th June 2006 (Exhibit "L") was given by himself and Constable Japelle wrote it down for him.
    
26. His second statement of 6th June 2006 is consistent with his evidence in Court. That there was only one shot. This was also corroborated by the other two State’s witnesses, Tau Oa and Simu Jimmy. The State submits that the Court should believe this witness than the accused.
    
27. It is trite law that the prosecution has the burden of proving all the elements of an offence. If the accused has raised a defence, it has also the burden of disproving or negating that defence. And the burden of proving all the elements and negating a defence is proof beyond reasonable doubt.
    
28. No doubt the accused has raised a defence of accident. The deceased was accidently murdered or killed by him. He did not intend to cause grievous bodily harm or intended to kill the deceased.
    
29. As defined earlier, a person who kills another person with the intention to cause grievous bodily harm is guilty of murder. And grievous bodily harm is defined under Section 1 of the Criminal Code as any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health.
    
30. There is no dispute that the accused shot the deceased. He intended to shoot the deceased on his leg. The intention to shoot the deceased on his leg is clear. He wanted to wound him so that he cannot run away or escape.
    
31. The type of gun that was used was a slide action shot gun. And the type of injuries that would have caused to a person, if the gun was discharged at a distance of 15 to 20 meters are evident in the sketch of the deceased injuries by Samson Patan, and the Autopsy Report by Dr. Golpak. According to Samson Patan, there was a wound like a hole on the left side of the deceased back. This was surrounded by 36 pellet wounds. Dr. Golpak reports that there was pellet wounds measuring 70 x 60 mm in diameter inflicted to the spleen. There was no problem with the lighting according to the accused. He was able to clearly see the deceased when he fired the shot.
    
32. Clearly from the above evidence there was a deliberate intention on the part of the accused to inflict or cause serious bodily harm to the deceased.
    
33. Given the finding that the accused intended to cause grievous bodily harm to the deceased, is he criminally responsible for the death of the deceased. The accused pleads accident as his defence. The death of the deceased was accidentally caused. He meant to shoot the deceased on the leg but because he tripped on gravel the bullet penetrated his back instead and died as a result.
    
34. Against the State’s evidence is the accused’s evidence that there were two shots fired. The first shot was a warning shot. The second shot was the one that penetrated the deceased back and killed him. The accused was aiming for the deceased leg and when he tripped he was shot at the back. Gairo Morea for the State testified that only one shot was fired and that was the shot that killed the deceased.
    
35. The question now is who to believe and that is where the credibility of witnesses comes into play.
    
36. I accept the evidence given by Gairo Morea because his evidence of one gun shot was corroborated by the other two State’s witnesses, Tau Oa and Simu Jimmy. I do not think Tau Oa and Simu Jimmy have any reason to tell lies to the Court.
    
37. Secondly, I accept Gairo Morea’s explanation as to why he gave two inconsistent statements. His second statement of 6th June 2006 is consistent with his evidence in Court. And lastly he maintained a professional demeanour throughout this evidence.
    
38. I do not accept and do not believe the accused evidence that two shots were fired and the deceased tripped. First, because his demeanour in the witness box was questionable. He was being evasive in his answer to questions, in particular during cross-examination. Secondly, he had conflicting statements in his record of interview and his evidence in Court in relation to whether he had search warrants when he went to apprehend the deceased at Iarowari High School. No reasonable explanation was given. Third, the accused wants the Court to believe that the deceased was wanted for a number of offences which he cannot recall including cow theft. However, in his record of interview, he stated that he planned the raid and the Police Provincial Commander and the Sogeri Police Station Commander knew nothing about the raid. Finally, in his record of interview, he made no mention of the deceased tripping on gravel.
    
39. Under Section 24(1)(b) of the Criminal Code, a person is not criminally responsible for his negligent acts or omissions if the act or omission that caused the event occurred by accident. And so accident is a complete defence to murder.
    
40. Section 287(1)(2) of the Criminal Code imposes a duty of care on every person and to take precaution when in charge or in control of any thing so that its use does not endanger the life, safety or health of any person. A person is deemed to have caused any consequences that result to the life or health of any person if that person on whom the duty of care is imposed omits to perform that duty.
    
41. The accused was in possession and in charge or in control of a slide action shot gun. This was a dangerous weapon. And as such he had the duty of care to avoid any use of the gun that may endanger the life, safety or health of any person. He had the duty to use reasonable care and to take reasonable precaution to avoid that danger.
    
42. The deceased was running away and he ran for 15 to 20 meters when the accused fired the shot. The type of injuries revealed by the medical and autopsy reports is evident that the gun was fired at close range. The accused as a Police Officer who is trained to use firearms knew that at that distance, there is great danger to the deceased life or his health, if he did not exercise reasonable care and precaution. The accused omitted to perform that duty of care and as a consequence the deceased died as a result of being shot at, at close range.
    
43. Even if the accused failed to discharge that duty of care resulting in the death of the deceased, is he criminally responsible if the deceased death was accidentally caused.
    
44. The question that arises here is whether the bullet from the gun shot that penetrated the deceased back and caused his death was foreseeable by the accused to cause grievous bodily harm or death. Whether anyone putting himself in the shoes of the accused could have reasonably expected or foresaw it as a result of the accused firing that shot. In the case of Timbu-Kolian v. The Queen [1967-68] PNGLR 320, the Court there held that in order for the defence of accident to be made out, the accused must show that the act of firing the shot that killed the deceased was not foreseeable and cannot be reasonably foreseeable by any other ordinary persons to cause grievous bodily harm or death to any one. That the accused act was an unwilled one. That he was deprived of his conscious to act freely to come within s. 24: R. v. Yigwai [1963] PNGLR 40.
    
45. In the case of The State v. Kaiwa Iasumi (1978) N163, for the action of the accused to be brought within the ambit of s. 24 as one of the accident, the occurrence of the event had to be unintended, unforeseen and unforeseeable. This was a case involving a small boy who was shot by an arrow from a bow. The boy died the next day. The accused fired the arrow aiming at a chicken. The chicken was under the house. The accused was unaware of the presence of the boy. In fact when he fired the arrow it hit the boy instead. The trial Judge said this:
    

"....... It hardly need be stated that an event which is unintended, unforeseen and unforeseeable is an event as to which the accused person is neither intentional, nor reckless nor negligent. This accused caused the death of the deceased but he may not be held criminally responsible for doing so if, with respect to the deceased, he acted neither intentionally nor recklessly nor negligently. If that be the case, the event is conveniently called an accident."

46. In the case of John Wanamba v. The State [1998] SC551, the Supreme Court there said that the accused plea of accident was made out because he did not consciously or willingly pull the trigger. This was a case of a policeman who together with some of his workmates went to control a crowd who were hell-bent in looting cargoes from an overturned vehicle. In the process he fired a shot from a pump-action shot-gun and a woman in the crowd was killed. The Court found that the accused intended to fire the gun into the air after he had lifted it up. However, he had not yet completed lifting the gun when it went off. The gun went off accidentally.
    
47. This could not be said of the Policeman, the accused in the present case. The accused in the present case had the intention to shoot at the deceased to prevent him from escaping. It was a willed act. He consciously and willingly pulled the trigger. He intended to cause grievous bodily harm by pulling the trigger to immobilise the deceased. He had the duty of care towards the deceased, which duty was omitted. He acted intentionally, recklessly and negligently.
    
48. I am satisfied that the State has negated accident beyond reasonable doubt. I find the accused guilty as charged in the indictment. I convict him accordingly.
    

________________________________________________
Public prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused