State v Yangi [2012] PGNC 269; N4573 (9 February 2012)

N4573

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 684-687 OF 2011

THE STATE

V

MATHIAS YANGI

Madang: Cannings J
2011: 12, 13, 14, 15, 19 December,
2012: 9 February

CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299(1) –police officer, while on duty, shot and killed three people – whether he unlawfully killed the deceased – defence of mistake of fact: Criminal Code, Section 25 – defence of extraordinary emergency: Criminal Code, Section 26 – whether the accused intended to kill the deceased.

The accused, a police officer, while on duty, shot and killed three men in two incidents arising from the police signalling a vehicle in which the deceased were passengers to stop on the roadside. The State's case was that the accused intentionally killed the deceased. The accused admitted to shooting (and killing) the deceased but raised two defences: mistake of fact and acting in extraordinary emergency. He gave evidence that he reasonably believed that the deceased and other members of their group were engaged in criminal activity and were armed with a firearm and that they were resisting arrest and/or escaping from lawful custody and he acted reasonably in the face of sudden emergency. Further, that he had no intention of killing them, that his intention was only to shoot them in the legs to temporarily disable them, to prevent them escaping.

Held:

(1) Under Section 299(1) of the Criminal Code the offence of wilful murder has three elements:

• the accused killed the deceased;
• the killing was unlawful; and
• the accused intended to cause the death of the deceased.
  

(2) As the first element of each of the three counts was conceded, the issue became whether the killing of the deceased was unlawful, as under Section 289 of the Criminal Code it is unlawful to kill a person unless the killing is authorised, justified or excused by law.

(3) As the accused raised two excusatory defences and gave evidence in support of each defence the onus was on the prosecution to exclude both defences: to prove beyond reasonable doubt that one or more of the elements of each defence did not exist.

(4) The elements of the defence of mistake of fact under Section 25 of the Criminal Code are that: the accused had a mistaken belief in the existence of a state of things; the mistaken belief was an honest and reasonable one; and, if the real state of things had been such as the accused believed to exist, the accused would not be criminally responsible for his act or omission.

(5) The elements of the defence of extraordinary emergency under Section 26 of the Criminal Code are that: the accused's act or omission was done under sudden or extraordinary emergency; and the circumstances were such that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.

(6) As to mistake of fact, although the accused acted under a mistaken belief that the deceased were armed and that belief was honest and reasonable, the State proved beyond reasonable doubt that if the real state of things had been such as the accused believed to exist, he would nonetheless be criminally responsible for his acts as even if the deceased and their friends were armed that would not have justified his actions. There the defence did not apply.

(7) As to extraordinary emergency the State proved beyond reasonable doubt that an ordinary police officer possessing ordinary powers of self-control would have acted other than the accused did. Therefore the defence did not apply.

(8) As neither of the defences raised by the accused applied, his killing of each of the deceased was unlawful.

(9) As to the third element the State failed to prove that the accused intended to kill the deceased but proved that he intended to cause grievous bodily harm. The accused was convicted of three counts of murder.

Cases cited

The following cases are cited in the judgment:

Anide v Denehy [1973] PNGLR 215

John Jaminan v The State (No 2) [1983] PNGLR 318

John Kule v The State (2011) SC1138

Migi Barton v The State (1981) SC213(M

R v Ulel [1973] PNGLR 254

The State v Abaya Ulas (2010) N4009

The State v Horris Raraka CR No 38 of 2003, 07.05.07

The State v Jeffery Bijuma (1989) N765

The State v Jenny Dei (2011) N4231

The State v John Bosco (2004) N2777

The State v Joseph Ampi [1988] PNGLR 116

The State v Lotivi Mal & 3 Others (2011) N4457

The State v Mark Bongede (2011) N4470

The State v Melchior Kapus & 7 Others (2010) N4114

The State v Moses Nasres (2008) N3302

The State v Peter Eddie (2009) N3782

The State v Raphael Kuanande [1994] PNGLR 512

The State v Smith William (1995) N1380

The State v Titeva Fineko [1978] PNGLR 262

The State v Wilson Mari (2011) N4359

TRIAL

This was the trial of an accused charged with three counts of wilful murder.

Counsel

J W Tamate, for the State
M Mwawesi, for the accused

9 February, 2012

1. CANNINGS J: The accused, Mathias Yangi, is charged with three counts of wilful murder. He was a police officer on duty, a member of a motorised patrol, on the highway at Bogia Station, Madang Province. On the night of Tuesday 15 February 2011 he waved down a 10-seater Toyota Landcruiser which contained seven men. The accused spoke to the driver and smelt marijuana in the vehicle and became suspicious. The driver and the six passengers alighted from the vehicle. During two incidents that followed, the first at the roadside and the second, shortly afterwards, at Bogia Police Station, the accused shot all seven of them. Two died soon afterwards and one died in hospital four days later.

2. The State's case is that the accused intentionally killed the three deceased. Three State witnesses – three of the other occupants of the vehicle – gave evidence in support of that proposition. The accused gave sworn evidence and was the only defence witness. He conceded that he shot the deceased and caused their deaths but raised two defences that, it is argued, render his actions lawful: mistake of fact and acting in extraordinary emergency. He gave evidence that he believed that the deceased and other members of their group were engaged in criminal activity and were armed with a firearm and that they were resisting arrest and/or escaping from lawful custody and he acted reasonably in the face of a sudden emergency. Further, that he had no intention of killing them, that his intention was only to shoot them in the legs to temporarily disable them, to prevent them escaping and enable them to be apprehended.

3. The indictment alleges that the offences were committed on 14 February 2011. It is clear, however, from the evidence that the incidents took place late on the night of Tuesday 15 February and/or in the early hours of Wednesday 16 February. The error in the date does not make the indictment defective and has had no material effect on the manner in which the trial has been conducted and has not affected the verdict. Section 534(1)(c) of the Criminal Code provides that an indictment is not open to objection "for stating imperfectly the time at which the offence was committed"; and this reflects the common law rule that a date specified in an indictment is not a material matter unless it forms an element of the offence (The State v Titeva Fineko [1978] PNGLR 262, The State v Horris Raraka CR No 38 of 2003, 07.05.07).

UNDISPUTED FACTS

4. A number of undisputed facts have emerged from the evidence:

• The driver and all but one of the passengers were from the Mumeng area of Morobe Province and had left there early on the morning of 15 February. The vehicle was privately hired by two of the deceased and they engaged a man to drive it for them to Bogia. He brought three of his friends with him on the trip. When they reached Madang town, they picked up a local man from the Madang district. The seven men, aged in their 20s, were:
  
  • ➢ Junior Bon, the driver, State witness No 1;
    
  • ➢ Reagan David Menzi, a friend of the driver, State witness No 2;
    
  • ➢ Bobby Ango, a friend of the driver, State witness No 3;
    
  • ➢ Henry Piro, the local man picked up at Four Mile, Madang;
    
  • ➢ Titus Osi, one of the hirers of the vehicle, the deceased the subject of count 1 on the indictment;
    
  • ➢ Abobo Sarus, one of the hirers of the vehicle, the deceased the subject of count 2 on the indictment;
    
  • ➢ Andrew Conney Menzi, younger brother of Reagan David Menzi, the deceased the subject of count 3 on the indictment.
    
• The first incident was at the White Sands Market on the highway at Boikulu, Bogia Station. Parked at the roadside were a Landcruiser, attached to Bogia Police, and a PMV bus. The accused, who was in police uniform, holding the rank of Constable, was accompanied by about six other police personnel, one – Snr Const Joe Simbirato – from the Regular Constabulary, who was in charge, and five auxiliary members. They had only one firearm amongst them, a police-issued AR 15 assault rifle.
  
• The accused comes from the Bogia area. After being a member of the Constabulary for ten years, most of that time being spent in the Highlands, he had only a month beforehand been posted to Bogia.
  
• It was a calm and dry night. At some time between 11.00 pm on the 15th and 1.00 am on the 16th February, the Landcruiser, driven by Junior Bon with the six passengers aboard, arrived at White Sands Market. The accused waved it down. The Landcruiser stopped. The accused went to the driver's side and spoke to the driver, who partially wound down the window in order to speak to the accused.
  
• The accused smelt marijuana in the vehicle, a fact about which he was not mistaken, as inside the vehicle was a stockfeed bag containing 50 kg of marijuana.
  
• There was no firearm in the vehicle.
  
• The seven occupants alighted from the vehicle. Shortly afterwards, at the roadside, he used the AR 15 rifle to shoot four of them. Junior Bon, the driver, was the first to be shot. Reagan Menzi was next.
  
• The accused and the other police then took the seven men to Bogia Police Station, transporting them in both the Bogia police vehicle and the Landcruiser that had come from Morobe. At the police station there was a second shooting incident, by the end of which the accused had shot and wounded all seven of the occupants of the Landcruiser. By this time it was around 2.00 am on 16 February.
  
• The accused and the other police took the seven injured men to the Bogia Health Centre for treatment. They were told by a nurse that there were insufficient facilities to treat them and that they should be taken to Modilon General Hospital, Madang town.
  
• The accused and other police drove the seven injured men towards Madang, transporting them in both the Bogia police vehicle and the Landcruiser which had come from Morobe. On the way, Madang police, who had been alerted to the shooting incidents, stopped the convoy. The accused, who had been driving one of the vehicles, was told to drive no more. He was taken by Madang police to Yomba Police Station for questioning and suspended from duty.
  
• By the time the convoy arrived at Modilon General Hospital two of the injured were dead: Titus Osi and Abobo Sarus. The other five were given treatment in the Accident and Emergency Ward. On the following Sunday, 20 February, Andrew Conney Menzi died.
  
• The four survivors were discharged from hospital at various times over the next four weeks. Some were detained in custody for a short period for their suspected involvement in drug trafficking but none was charged with any offence.
  
• The accused was arrested soon after 16 February and has been in custody since then.
  
• Dr Vincent Atua, of Modilon General Hospital, conducted post-mortem examinations on the three deceased on 24 February. The post-mortem reports and accompanying medical certificates of death have been admitted into evidence and show that:
  
  • ➢ Titus Osi received a bullet wound in the area of the left iliac crest [part of the pelvis] and left abdomen, which led to haemorrhagic shock [severe blood loss], which was the cause of death. He also suffered a perforated bowel.
    
  • ➢ Abobo Sarus received two bullet wounds to the right medial thigh and femoral artery [the main artery of the leg, which runs through the thigh], which led to haemorrhagic shock, which was the cause of death.
    
  • ➢ Andrew Conney Menzi received a bullet wound to the right medial thigh and femoral artery, which led to haemorrhagic shock, which was the cause of death. He also suffered sepsis [serious infection; bacterial invasion of the body].
    
• In his police interview, conducted on 22 March, the accused stated that there were police motorised patrols operating in the Bogia area at the time of the incidents due to gun smuggling and drug trafficking. He was on patrol with Snr Const Joe Simbirato and five auxiliary members. When he checked the Landcruiser he discovered the marijuana and a pistol. He called out 'Members! Pistol! Drugs!', removed the key from the ignition, ran back to where Snr Const Simbirato was standing, grabbed the gun from him and discharged a warning shot into the air. The occupants of the vehicle (the suspects) came out of the vehicle and attempted to escape, so he fired another warning shot, but the suspects were still trying to get away so, being afraid that he and the other police may get injured, he shot some of them in their legs so that they could be arrested quickly. He denied taking any cash or mobile phone or other property from the suspects. He also shot three suspects at Bogia Police Station as they were attempting to escape.
  

ISSUES

5. The offence of wilful murder is created by Section 299 of the Criminal Code, which states:

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

6. There are three elements. The prosecution has the onus of proving beyond reasonable doubt that, in respect of each of the three charges:

• the accused killed the deceased;
• the killing was unlawful; and
• the accused intended to cause the death of the deceased.
  

7. As to the first element there is a definition of killing in Section 291 of the Criminal Code:

Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.

8. The accused concedes that he shot each of the deceased and that that led to their deaths. He directly caused each death, which occurred within the one year and one day limitation period provided by Section 297 (limitation as to time of death) of the Criminal Code. Therefore he killed each of the deceased. The first element of each charge has been proven beyond reasonable doubt.

9. The critical issue is the second element: whether the killing of the deceased was unlawful. Section 289 (homicide) of the Criminal Code provides that:

It is unlawful to kill a person unless the killing is authorized or justified or excused by law.

10. The accused relies on two excusatory defences: mistake of fact and extraordinary emergency. If either applies, the killing of the deceased will be excused, not unlawful. The second element of the offence will be unproven. They are complete defences. The accused will be acquitted of wilful murder and not guilty of any other offence. If both defences fail, the second element will be proven. The question of whether the accused is guilty of wilful murder will turn on the third element, where the issue is whether he intended to cause the death of the deceased. If yes, he will be guilty of wilful murder. If no he will be guilty of either murder (if he intended to cause grievous bodily harm to the deceased or one of the other sub-elements of the offence of murder applies) or manslaughter (if he is not guilty of murder). The primary issues therefore are:

1. Does the defence of mistake of fact apply?
   
2. Does the defence of extraordinary emergency apply?
   
3. Was the killing of any of the deceased unlawful?
   
4. If yes, did the accused intend to kill the deceased?
   
5. If he did not intend to kill the deceased, should he be convicted of some other offence?
   

1 DOES THE DEFENCE OF MISTAKE OF FACT APPLY?

11. This defence is set out in Section 25 (mistake of fact) of the Criminal Code, which states:

(1) Subject to Subsection (2), a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

(2) The operation of Subsection (1) may be excluded by the express or implied provisions of the law relating to the subject.

12. The elements of the defence are that:

• the accused had a mistaken belief in the existence of a state of things;
  
• the mistaken belief was an honest and reasonable one; and
  
• if the real state of things had been such as the accused believed to exist, the accused would not be criminally responsible for his act or omission.
  

13. Mistake of fact is labelled an excusatory defence as it entails an admission by an accused that he has done certain acts combined with a claim that he ought to be excused from criminal responsibility. In other words he has an excuse for what he did. Excusatory defences (others are, eg, extraordinary emergency, self-defence, provocation, prevention of repetition of insult) are to be distinguished from, eg, the defence of alibi, which involves an outright denial of involvement (John Jaminan v The State (No 2) [1983] PNGLR 318; Migi Barton v The State (1981) SC213(M)). As mistake of fact is an excusatory defence, once an accused adduces evidence in support of it – as the accused has done in this case by giving sworn evidence – the onus is on the prosecution to exclude the defence. It does that by proving beyond reasonable doubt that one or more elements of the defence does not exist (Anide v Denehy [1973] PNGLR 215, R v Ulel [1973] PNGLR 254, The State v Peter Eddie (2009) N3782).

14. The mistake of fact which the accused claims to have made is that the deceased and their group were armed with a firearm and that they would be prepared to use it to avoid apprehension. He says that when he looked inside the vehicle he smelt marijuana and saw a pistol lying between the two front seats. He only later found out that the pistol was a toy. The issues therefore become:

• did the accused have a mistaken belief in the existence of a state of things?
  
• was the mistaken belief an honest and reasonable one?
  
• if the real state of things had been such as the accused believed to exist, would he not be criminally responsible for his acts?
  

15. The prosecution must prove beyond reasonable doubt that the answer to one or more of those questions is no. The defence case is that the answer to each question is yes, in which case the defence of mistake of fact will apply. To answer these questions it is necessary to review the evidence.

Evidence for the State

16. Three witnesses gave oral evidence.

(1) Junior Bon said that he was the driver of the Landcruiser and he stopped the vehicle at the market when waved down by a policeman in mobile squad uniform. He identified the accused as being the policeman who signalled him to stop. He wound down the driver's side window and the accused asked him to switch on the interior light, which he did. The accused ordered everyone out of the vehicle. He tried to explain to the accused that it was a hire vehicle but the accused and other police would not listen and claimed that they were all raskols. When the police found the marijuana in the vehicle he again tried to explain that it was a hire vehicle and he and his three friends were just along for the ride and had no knowledge of the marijuana. The accused then called him to the front of the Landcruiser, told him to crawl on the sand and then shot him in the right leg from a distance of one metre. He heard five to nine other shots fired at some of the other boys. He feared for his life.

They were then ordered into a police vehicle and taken to Bogia police station, where he and the others were ordered to lie on the grass. The accused fired more shots at them. One was fired at his left leg but it missed. On this occasion the accused fired from a distance of five metres.

Neither he nor any of his colleagues attempted to escape from the police, at the market or the police station. The accused was acting as if he were drunk. He kept pushing him (the witness) with the barrel of his gun. They were kept at the police station for an hour or two and then taken to Bogia Health Centre in the police vehicle. They all remained in the police vehicle while the police looked around for a nurse. They had all been shot and the two men (Titus and Abobo) who had hired the Landcruiser were already dead. A female nurse checked his condition and told the police to take them all to Modilon General Hospital. They arrived at the hospital around 8.00 am. He underwent surgery the following Sunday, 20 February, and still walks with a limp. He did not know that there was marijuana in the vehicle.

In cross-examination Junior Bon maintained that he was only the driver of the Landcruiser. He arranged to hire the vehicle but only after a request came from Titus Osi and Abobo Sarus, who live in a neighbouring village. He saw them load several bags and unbeknown to him one contained marijuana but he remained in the vehicle while they loaded the bags and did not know about any marijuana until the police found it. There was no pistol in the Landcruiser, no toy pistol, no real pistol. No one tried to escape. He and three others were shot at the market. Three were shot at the police station when he and his six colleagues were lying on the grass.

(2) Reagan David Menzi said that when the police stopped the vehicle they accused him and the six others of being raskols. The police thought it was a stolen vehicle and ordered everyone out of the vehicle. He identified the accused as being the policeman who ordered them out of the vehicle. The accused was holding a gun and told them all to lie on the sand. They did as they were told and then the accused started shooting from a distance of 1.5 metres. He was the second one to be shot. He thought of God. There were plenty of villagers at the market but they quickly scattered when the first shot was fired.

The second shooting incident occurred at the front of the police station. Again it was the accused who fired the shots. There were no weapons in the Landcruiser. No one tried to run away, either at the market or the police station. They just did as the police told them. They cooperated. Two of them died in the police vehicle. At the health centre the nurse put them on drips. After they arrived at Modilon General Hospital, his wound was treated and then the police took him to the cell. He was detained for a week, during which time he heard that his small brother, Andrew, had died. CID personnel then came to the cell and released him and told him he was a free man. He is not living a normal life, however. He cannot climb or carry heavy loads or run.

In cross-examination Reagan David Menzi said that Junior Bon asked him and Andrew and their friend Bobby to travel with him and the two men who hired the vehicle to Madang. Junior said that he would be leaving the two who hired the vehicle in Madang and returning by himself, so he wanted some company. There was no pistol in the Landcruiser. No one tried to escape.

(3) Bobby Ango gave evidence that he was shot at the police station while he was lying on the ground with the others, some of whom had already been shot at the market. A policeman pointed a gun at his head and demanded money so he gave him all the cash that he had, K80.00. He identified the accused as the policeman who threatened him with the gun. He thought that the accused was just showing his gun to frighten them. He thought that they would be arrested and taken to court. Instead the accused started shooting. None of them tried to escape. They had nowhere to escape to. Where would they go? None of them knew the local area. There were no firearms in the vehicle. He was shot in the leg and lost a lot of blood. He lost consciousness on the trip to Modilon General Hospital. He thought he would die. He was hospitalised for four weeks. He needs crutches to walk and experiences pain.

In cross-examination Bobby Ango repeated that neither he nor any of the others attempted to escape. He denied knowledge of any plan to take the marijuana to Bogia to sell it. He saw a stockfeed bag in the vehicle, which he only later found out contained marijuana.

That was the evidence for the State.

Evidence for the defence

17. The accused was the only witness for the defence.

The accused, Mathias Yangi said that he had been on the motorised patrol throughout Tuesday 15 February, operating in the area around Bogia Station and Sirunam. He was the driver of the Bogia police Landcruiser, which he had stopped at the market to allow members of the patrol to get betel nut and cigarettes before they went home. At 1.00 am, while he was seated in the police vehicle, he observed a white 10-seater Landcruiser approaching from the direction of Madang town. Its lights were on high beam. He signalled to it to pull aside. It stopped. All the windows were up. He walked to the driver's side, knocked on the door, motioning to the driver to wind down the window. The window came down but only to eye level so he slapped the door and said 'Police!' The window then came right down but the driver's actions were suspicious so he reached in to the vehicle and took the keys out of the ignition. He ordered the driver to switch on the interior light. He smelt marijuana coming from inside the vehicle. He looked inside. He saw a large stockfeed bag on the floor between the seats. He had no doubt it contained marijuana. He saw a black pistol lying between the driver and the front-seat passenger. He immediately stepped back and called out to the other members of the patrol: 'Pistol in truck!' He knew that the patrol had only one firearm, an AR 15 rifle, so he ran back and grabbed it from Snr Const Simbirato. He fired a warning shot into the air. He ran back to the Landcruiser. The seven suspects opened the doors and rushed out without him giving any command to them to do so. Two members of the police patrol tried to stop them running away but they were struggling to escape from them. He feared for the safety of the members of the patrol and himself so he shot four of the suspects on their legs when they were struggling with his colleagues. He had by that time fired five shots: one in the air and four at the suspects.

18. The other three suspects were not wounded. They were apprehended and put into the police vehicle with the four who had been wounded and driven to the police station. He thoroughly searched the suspects' vehicle and drove it to the police station. He confirmed that the stockfeed bag did, in fact, contain marijuana. It was packed in six 10-kg rice packets. He discovered that the pistol he had seen was a toy.

19. At the police station the seven suspects were brought to the yard at the front of the station. He remained in their vehicle and trained the headlights on them as their particulars were being taken by other members of the patrol. Suddenly three of the suspects – those who had not been wounded in the earlier incident – burst out in front of the policemen, near a container that was in the police yard. They were attempting to escape so he opened fire and shot them on their legs. By this time all seven suspects had been wounded.

20. He told the policemen to load them on to the vehicles and to rush them to Bogia Health Centre, which they did. At that stage none of them was dead. A female HEO, who was the duty officer in charge, treated them. She asked that they be taken to Modilon General Hospital. He loaded three of them into the suspects' vehicle, the others were put into the police vehicle and they left for Madang town. At 6.00 am, as they approached Madang, the Madang police waved them down, and he was relieved of his duties and taken to Yomba Police Station. Still, none of the suspects was dead.

21. He was suspended at 8.00 am that day. He is a Christian and admits shooting the three deceased and the four other suspects. He shot them as they were drug trafficking and attempting to escape. He has never neglected his duties. He is a servant of the State. He denied threatening any of the suspects or demanding money.

22. In cross-examination the accused again acknowledged that he shot each of the seven suspects. The only one he spoke to was the driver. He did not know any of them. He does not believe any of them were innocent. The driver refused to converse with him. They had possession of a huge amount of marijuana, which causes great social problems, and were attempting to escape. He denied ordering them out of the vehicle or ordering them to crawl on the ground. He genuinely feared that they had a pistol in their possession. When put to him that his story about the first group at the roadside struggling with the policemen could not be true – as none of the policemen was shot – he replied that he is a trained policeman with mobile squad experience and he knows how to fire. He is an honest, God-fearing man. He was not lying to the Court. He had no intention of killing anybody. If that was his intention he would have shot them on more vulnerable parts of the body, from the abdomen to the head. He did not recklessly shoot them. He shot them deliberately on their legs so they could be arrested and charged. They had attempted to escape. They were trafficking in drugs and they had a pistol, the sight of which put him in fear of his life and the lives of his colleagues. There are people who witnessed what happened but they have been threatened by the arresting officer and may be scared about coming to court to give evidence.

23. Asked to provide more details about the second incident at the police station the accused said that he was not directly attending to the suspects. He was in the suspects' vehicle when all of a sudden he saw three of them running away. He got out of the vehicle, pursued them and shot them to prevent their escape. It was his job to do that. He was not angry. He was acting on behalf of the State to make the highways safe from criminal activities. He is a '24-hour copper'. He was accurate with his shots. They were single shots. He does not believe that the suspects were new to Bogia. Drug trafficking is a major problem on the highway in that area.

24. That was the defence case and it is now time to address the elements of the defence of mistake of fact. I will set out the questions that must be addressed by reference to the specific mistaken belief that the accused said that he had: he saw a pistol, which turned out to be a toy pistol.

Did the accused see a pistol?

25. The only direct evidence that there was, in fact, a toy pistol on the front seat of the Landcruiser came from the accused's testimony: he saw a pistol, which he discovered on searching the vehicle was a toy. Indirect evidence in support of that claim is in the accused's record of interview, which relevantly states:

Q 27 : What did you do with the 10-seater vehicle?

A : I went and checked the vehicle and discovered one stockfeed bag containing 10 kg marijuana and a pistol.

Q 28 : When you seen that what did you do?

A : When I saw the pistol between the driver and the crew and the stockfeed bag at the back of the 10-seater and I call out "Members!", pistol and drug and I then put off the engine of the suspected vehicle ...

Q 29 : You see this pistol. Is this the pistol that you saw lying between the crew and the driver? (Showing the pistol to the defendant.)

A : Yes. [sic]

26. No toy pistol was admitted into evidence, either by the State or the defence. The police officers who conducted the interview did not give evidence. The State witnesses denied that there were any weapons, real or imitation, in the Landcruiser. So it cannot be concluded with certainty that there was a toy pistol in the Landcruiser. On the other hand, it is clear that the accused was saying something about a pistol, and that the police investigator had a pistol in his possession, as evidenced by the statement that a pistol was shown to the accused. It therefore cannot be concluded beyond reasonable doubt that the accused's evidence about the toy pistol is a concoction. Bearing in mind that it is the State which has to disprove this element of the defence of mistake, the benefit of the doubt must go to the accused. I find that the accused did, in fact, see a pistol in the Landcruiser. He mistakenly believed that it was a real pistol when, in fact, it was a toy. The first element of the defence is satisfied, ie the State has failed to disprove the existence of the element.

Was the belief that there was a pistol in the Landcruiser an honest and reasonable mistake?

27. It was night time, the driver of the vehicle appeared reluctant to wind down the window, the accused smelt marijuana, he saw a large bag in the vehicle, there were six passengers, so the accused was naturally suspicious about whether the men in the vehicle were engaged in some form of criminal activity. Given the fact that the accused actually saw a pistol I consider that it was both an honest and a reasonable mistake to make in the circumstances that what he saw was a real pistol. The second element of the defence is satisfied.

If there really was a pistol in the Landcruiser would he not be criminally responsible?

28. This element of the defence requires the court to ask, on the presumption that there was in fact a real pistol lying between the driver and the front-seat passenger, whether the accused would be criminally responsible for how he reacted. To answer that question, it is important to determine what actually happened immediately after the accused saw the pistol. Two very different versions of events have been put forward.

29. According to the evidence of the first two State witnesses, Junior Bon and Reagan Menzi, the accused ordered everyone out of the vehicle, then ordered them to lie down and then fired. Their evidence is not clear as to how many were shot at that time, but is clear that they were not attempting to escape. By contrast the accused testified that all the occupants suddenly ran from the vehicle, without him giving an order to do so, and attempted to escape.

30. I find the State witnesses' version of events more credible than that of the accused. It is difficult to believe that all seven of the occupants of the vehicle, none of whom come from the Bogia area, would suddenly jump out of the vehicle and attempt to make their escape. It is difficult to believe that if they were to make a run for it, all would go in the one direction straight into the arms of the accused's colleagues and struggle with them. Further, as Mr Tamate emphasised in cross-examination, if the seven suspects were struggling with the policemen, how did the accused manage to fire shots and hit only the suspects, leaving the policemen uninjured? The accused's response – that he was a good shot – was not acceptable. His demeanour in the witness box was not convincing. He was overly defensive in responding to straightforward questions. He gave the appearance of lying. By contrast the State witnesses appeared to give an honest and chilling account of what happened to them. They genuinely feared for their lives. I do not necessarily accept all of their evidence. It is difficult to accept that they were oblivious to the fact that there was a large quantity of marijuana in the vehicle. They are not, however, on trial. It is the veracity of their evidence that they, and more particularly the three deceased, were shot by the accused while they were unarmed and complying with his demands, that is in question. On that critical issue of fact I find their evidence convincing. It is of sufficiently high quality to base a finding of fact that the accused shot them in the circumstances that they stated in their evidence.

31. Finally there is the lack of corroboration of the accused's evidence. Both the incident at the roadside and the incident at the police station happened in the presence of the accused's police colleagues. None came forward to give evidence. The court must be cautious in drawing an adverse inference against an accused who fails to call as a witness someone who might reasonably be thought should be called (The State v John Bosco (2004) N2777). The accused is not obliged to give any evidence at all. The onus of proof of guilt must never be allowed to shift from the prosecution. In this case, however, it seems common sense to expect that if the accused's version of events were true one or more of his police colleagues would have come forward to give evidence to support it. The fact that none gave evidence makes it even more difficult to believe that the accused's version of events was truthful.

32. I therefore find as a fact that none of the three deceased or any of the other occupants of the Landcruiser attempted to escape at the market.

33. What about the second incident, at the police station? Again there are two very different versions of what happened. The State witnesses say that they and the other occupants of the Landcruiser were forced to lie on the grass and the deceased shot them in that position. The accused, on the other hand, says that three of the suspects burst out in front of the policemen, near a container, and were attempting to escape so he opened fire and shot them on their legs.

34. I find the version of events given by the State witnesses as truthful for the same reasons that their evidence regarding the first incident was accepted. None of the three deceased or any of the other occupants of the Landcruiser attempted to escape at the police station.

35. Next it is necessary to determine the place at which each of the deceased was shot. The evidence of the State witnesses was not specific in that regard, as was the accused's evidence. If the evidence of the State witnesses is accepted:

• Junior Bon was shot at the market, and he was the first to be shot;
• Reagan David Menzi was shot at the market, and he was the second to be shot;
• Bobby Ango was shot at the police station;
• four were shot at the market, three were shot at the police station (according to Junior Bon).
  

36. According to the accused's evidence:

• four were shot at the market, three were shot at the police station.
  

37. As there is agreement about how many were shot at each place, I find that four were shot at the market and three at the police station. As to the four shot at the market I see no reason to reject the evidence of Junior Bon or Reagan Menzi: they were both shot at the market. As to those shot at the police station there is no reason to reject Bobby Ango's evidence: he was shot there. As to the other two to be shot at the market I find that they were the hirers of the Landcruiser, Titus Osi and Abobo Sarus. The other two shot at the police station were Andrew Conney Menzi and Henry Piro.

38. To sum up I find that the accused shot and killed the three deceased in the following circumstances:

• He shot Titus Osi as he was lying on the ground near the market; he shot him not on the leg as he claimed in his evidence but (as is evident from the post-mortem report) in the area of the left iliac crest, part of the pelvis, and left abdomen, the wound also perforating the bowel. The deceased died within two hours after he was shot, before the police convoy left from Bogia to go to Madang (the accused's evidence that the deceased was still alive during the trip to Madang is rejected).
  
• He shot Abobo Sarus as he was lying on the ground near the market; he shot him (according to the post-mortem report) twice in the right medial thigh, which led to haemorrhagic shock, which was the cause of death. The deceased died within two hours after he was shot, before the police convoy left from Bogia to go to Madang (the accused's evidence that the deceased was still alive during the trip to Madang is rejected).
  
• He shot Andrew Conney Menzi as he was lying on the grass at the front of the police station; he shot him in the right medial thigh and femoral artery, which led to haemorrhagic shock, which was the cause of death. The deceased died at Modilon General Hospital four days later.
  
• None of the deceased was attempting to escape or resist arrest.
  
• None of the deceased was armed with a real or imitation firearm or any other weapon.
  
• Any reasonable person in the position of the accused would have seen that the deceased and their colleagues were unarmed and under police command and control, both at the market and the police station.
  
• The toy pistol that the accused saw in the Landcruiser was left in the vehicle when the occupants came out of the vehicle after being ordered to do so by the accused. By the time of the second incident at the police station the accused had realised his mistake: the pistol he saw was a toy.
  

39. In those circumstances the fact that the accused had seen a pistol when he first looked into the Landcruiser and that he honestly and reasonably thought it was a real firearm, does not relieve him from criminal responsibility. It is accepted that the accused smelt marijuana and that he saw a large bag and reasonably formed the view that it contained marijuana and that the men in the vehicle were engaged in criminal activity. That reasonably held view coupled with his mistaken belief that there was a real firearm in the vehicle did not, however, entitle him to shoot any of deceased. They were unarmed and under police control and unthreatening when he shot them. The third element of the defence of mistake – if the real state of things had been such as the accused believed to exist, would he not be criminally responsible for his acts? – must be answered 'no'; and I find that the State has proven this beyond reasonable doubt.

Does the defence of mistake of fact apply?

40. As the third element has been disproven, the defence does not apply.

2 DOES THE DEFENCE OF EXTRAORDINARY EMERGENCY APPLY?

41. This defence is set out in Section 26 (extraordinary emergencies) of the Criminal Code, which states:

Subject to the express provisions of this 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 extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.

42. The elements of the defence are that:

• the accused does an act or makes an omission under circumstances of sudden or extraordinary emergency; and
  
• an ordinary person possessing ordinary power of self-control could not reasonably be expected to have acted otherwise than the accused did in those circumstances (The State v Joseph Ampi [1988] PNGLR 116, The State v Jeffery Bijuma (1989) N765).
  

43. The defence of extraordinary emergency is, like mistake of fact, an excusatory defence. As the accused has adduced evidence in support of it, the onus is on the prosecution to exclude it by disproving beyond reasonable doubt at least one of its elements. The extraordinary emergency on which the accused relies is that he was confronted by a group of criminal suspects who he believed were armed with a pistol and who were attempting to evade apprehension. An ordinary police officer possessing ordinary power of self-control could not reasonably be expected to have acted otherwise than shooting them on their legs in order to prevent them injuring him or his colleagues and escaping.

Was there a sudden or extraordinary emergency?

44. The court must be conscious of the difficult position that police officers are in when they attend to incidents on the highway (The State v Smith William (1995) N1380). I find that there were circumstances of sudden or extraordinary emergency at the roadside market arising from the accused reasonably believing that there was a group of criminal suspects in the Landcruiser who were armed with a pistol. However, in accordance with the findings of fact made for purposes of determination of the defence of mistake of fact, the suspects were not attempting to evade apprehension or escape.

45. In addition, there was no sudden or extraordinary emergency at the police station. So the defence fails at that point in relation to the deceased Andrew Conney Menzi.

Would an ordinary person not have acted other than the accused did?

46. As to the second element I consider that an ordinary police officer possessing ordinary power of self-control at the market could reasonably be expected to have acted otherwise than shooting the deceased Titus Osi and Abobo Sarus on their legs. Shooting them (and Junior Bon and Reagan Menzi) at the market was unnecessary and unjustified by the emergency which confronted the accused. There was no evidence that the deceased or anyone else attempted to use the pistol (which was a toy) or did any other act that would make an ordinary police officer possessing ordinary power of self-control think that he or any of his colleagues were at risk of personal injury. The accused's reaction to the emergency was out of all proportion to the risk of personal injury that existed.

47. As to the shooting of Andrew Conney Menzi at the police station, this was even more out of proportion to what an ordinary police officer would have done, given that there was no emergency prevailing.

Does the defence of extraordinary emergency apply?

48. The State has proven beyond reasonable doubt that in relation to:

• counts 1 and 2 – the killing of Titus Osi and Abobo Sarus – the second element of the defence does not apply; and
  
• count 3 – the killing of Andrew Conney Menzi – both elements of the defence do not apply.
  

The defence of extraordinary emergency therefore fails entirely.

3 WAS THE KILLING OF ANY OF THE DECEASED UNLAWFUL?

49. As both defences relied on by the accused have been excluded there is no law available that authorised, justified or excused any of the killings. The killing of each of the deceased is thus unlawful by virtue of Section 289 of the Criminal Code. The second element of each count of wilful murder has been proven beyond reasonable doubt.

4 DID THE ACCUSED INTEND TO KILL THE DECEASED?

50. It is at this point of a wilful murder trial that the Court is required to consider the accused's state of mind:

• Did he intend to kill the deceased? If yes, the third element of wilful murder is proven and the accused will be guilty as charged (eg The State v Moses Nasres (2008) N3302, The State v Mark Bongede (2011) N4470, The State v Lotivi Mal & 3 Others (2011) N4457).
  
• If he did not intend to kill them did he intend to inflict grievous bodily harm or did one of the other circumstances prescribed by Section 300(1) of the Criminal Code apply? If yes, the accused will be convicted of murder, not wilful murder (eg The State v Abaya Ulas (2010) N4009, The State v Wilson Mari (2011) N4359). If no, the accused will be guilty of manslaughter, not wilful murder or murder (eg The State v Melchior Kapus & 7 Others (2010) N4114; The State v Jenny Dei (2011) N4231).
  

51. As Injia AJ, as he then was, highlighted in The State v Raphael Kuanande [1994] PNGLR 512 the relevant time at which to assess the accused's state of mind is when he committed the act that constitutes or is an element of the offence:

Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence. [Emphasis added]

52. Having examined the course of conduct of the accused prior to, at the time of and subsequent to the shooting of each of the deceased, I find that the accused's intention was not to cause any of their deaths. The killing of each deceased was unplanned. I accept the accused's evidence that if he had intended to kill them he would have shot them in parts of the body other than where he aimed. Even in the case of Titus Osi, who was shot in the area of the left iliac crest and left abdomen, not in the thigh (as in the case of the two other deceased) there is reasonable doubt about an intention to kill. The accused's conduct subsequent to the shootings is also inconsistent with an intention to kill. He joined with his police colleagues in taking all seven wounded men to the local health centre for treatment and then he headed to Modilon General Hospital for the purpose of getting emergency treatment for them. The third element of wilful murder has not been proven. The court must now consider an alternative conviction.

5 SHOULD THE ACCUSED BE CONVICTED OF SOME OTHER OFFENCE?

53. Two provisions of the Criminal Code are relevant. Section 539(1) (charge of murder or manslaughter) states:

On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged.

54. Section 300(1)(a) (murder) states:

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

if the offender intended to do grievous bodily harm to the person killed or to some other person.

55. Grievous bodily harm is defined by Section 1 (interpretation) of the Criminal Code to mean:

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.

56. When a person fires a bullet into the legs or any other lower part of the body of another person at close range the almost inevitable consequence will be bodily injury of such a nature as to, at least, be likely to cause permanent injury to health. By his own admission it was the intention of the accused to temporarily disable the deceased so that they could be easily arrested. This was tantamount to an admission of an intention to cause grievous bodily harm. The only reasonable finding available on the evidence, in light of the rejection of the argument that there was an intention to cause death, is that the accused intended to cause grievous bodily harm to each of the deceased (John Kule v The State (2011) SC1138). This has been proven beyond reasonable doubt. Therefore the elements of the offence of murder under Section 300(1)(a) have been established. The accused must be convicted of three counts of murder.

VERDICT

57. Mathias Yangi, having been indicted on three counts of wilful murder under Section 299(1) of the Criminal Code, is found, in respect of each count, not guilty of wilful murder but guilty of murder under Section 300(1)(a) of the Criminal Code.

Verdict accordingly.
_________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused