State v Aga (No.1) [2013] PGNC 64; N5119 (25 March 2013)

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Wewak: Geita AJ
2012: 24, 25 July;
6, 17, 28, 31August;
24 September
23 October,
6 December,
2013: 25 March

CRIMINAL LAW – Trial – Wilful murder, Dangerous weapon used – A police issued SLR Assault rifle - Section 299 (1) of the Criminal Code – Decision on verdict.

CRIMINAL LAW – Wilful murder - Evidence inconsistent and not corroborated – Post Mortem Report – No expert witness called – Whether action willed or an accident

CRIMINAL LAW – Wilful Murder – Section 24 Criminal Code - Defence of Accident raised – Not negative – Duty of care under Section 287 Criminal Code not successfully made out –– Wilful murder not made out- Alternative Verdict of manslaughter returned under Section 539 Criminal Code.

SCR No.1 of 1980, Re.s22 of the Police Offences Act [1981] PNGLR 28
SCR No. 2 of the Summary Offences Act [1981] PNGLR 50
John Jaminan v The State [1983] PNGLR 318
The State v Paul Dimin Asilip (2011) N4197
The State v Kobale Rau (1997) N1509

Criminal Law and Practice in Papua New Guinea by Chalmers, Wesbot, Injia and Andrew.

2. On Saturday 14th August 2010, between 7.00 pm and Sunday next day 3.00 am the accused and other Auxiliary policemen were on duty, providing security at the Wewak Yacht Club dance. Around 3 am the dance was stopped due to unruly behaviour by drunks and patrons were told to leave the premises. A patron Steward Kapak approached the accused and demanded the return of his bayonet which was earlier removed from him before he entered the dance area but was told to collect it from the Police Station the next day and so he moved on. As Steward Kapak was about to walk away the deceased Christopher Kawi picked up an argument with the accused over a previous police matter resulting in his friend been arrested for 114kgs of marijuana. The deceased armed with a bottle of beer and bush knife attacked the accused who retreated to his police truck to get his rifle in order to ward off the deceased's approach. However the deceased followed closely by and a scuffle ensued resulting in the rifle going off, killing the deceased through the left ribs. He was rushed to the hospital but pronounced dead on arrival.

3. Section 299 (1) of the Criminal Code creates the offence of wilful murder and it is in the following terms:

5. There is no dispute that the deceased Christopher Kawi was shot dead with a gun at Wewak Yacht Club and that the killing was unlawful

7. It is trite law that in criminal proceedings the onus of proof rests entirely on the State and prosecution must prove every element of the charge beyond reasonable doubt.

8. The prosecution's evidence consisted of 8 sets of exhibits which were tended into court by consent and four oral testimonies given during trial.

9. Column 1 of the table gives the exhibit number, column 2 describes each witness and column 3 summarises their evidence.

Exhibit	Witness	Description of evidence
A	Accused	Record of interview in English, 30/08/10 – denied involvement in the murder – Accident pleaded as defence.
B	Accused	Record of interview in pidgin – 30/08/10 - denied involvement in the murder – Accident pleaded a defence.
C	Mahley Bigilam	Police Sergeant - Arresting Officer's statement dated 1/9/2010.
D	Ray Simon	Police constable - Corroborator's statement 30/08/10.
E	Doctor Regina Migira	Carried out post-mortem and report on the deceased – observed sutured wound of about (5) centimetres under the left hypochondria which proved to enter the peritoneal cavity- no major organs involved – death caused by shock from severe haemorrhage as a direct result of the injury sustained. (25/08/10)
Fa-f	Photographs	Six sets of black & white photos of murder weapon and spent bullet shell,
Ga-c	Photos of Autopsy	Twelve sets of coloured photographs of deceased.
Ha-b	Photos	Sketch map and photograph of crime scene.
I	Murder weapon	Police AR15 assault rifle

10. He told the Court of being present at the Yacht Club function with his three friends, Emmanuel Bak, Christopher Kawi (deceased) and Benson Taiko Rawa. Around 3 am they left the bar and walked towards the gate when the function ended. They were at the boom gate when the deceased returned to the club to get his bag. He followed the deceased back, caught up with him and they both walked back past the boom gate.
11. The witness said as they were walking back he saw the accused running to his police car to get his gun. The accused removed the gun, inserted a magazine and without saying a word, pointed the gun at them and fired. He said he ducked and the bullet hit the deceased. The witness said the accused than pointed the gun at him and he ran and took cover behind a security guard standing nearby.

12. He said his other friends began scolding the accused for killing the deceased. Emmanuel Bak attended to the deceased who was bleeding at the time and showed the blood to the accused. The deceased was then transported to the hospital in the accused's police vehicle but pronounced dead on arrival.

13. During examination in chief, the witness stated that when the accused raced to get his gun he was about three metres away from them.

14. When questioned during cross examination whether he saw how the shot was fired the witness replied in the affirmative. Cross examinations continued as follows:

Q. 17. I put to you that you would say anything to implicate the accused is that correct?

Q. 18. You say you were 3 metres away from the accused when the shot was fired and you ducked, is that correct?

A. That is correct, when I saw Vele load the gun and fire I ducked and cartridge took deceased. There were big lights at time.

15. When the defence case was put to the witness in that he was so drunk at the time the witness denied. Likewise when suggested to him that as they were coming out of the dance area the deceased had an argument with the accused the witness also denied. The witness said the deceased did not talk to anyone when they walked out, not even to Vele. The Defence counsel continued cross examining the witness:

Q.4 Argument was over some person named Sam and Vele took 140 kilograms from him.

Q.6 That is when the accused in self defence pulled the rifle, and both he and the deceased struggled, is that correct?

16. In my analysis of this witness's testimony I ask myself this question. Are there evidence of all elements of the offence of wilful murder that would support the accused conviction?

17. Steward Kapak appears to be States key witness however despite his best attempts to recall events as he says he saw unfold that fatal night his attempts lacks credibility. His sense of judgement that night remains questionable. I draw inference from evidence that he was at the dance venue were beer was obviously consumed in large quantities. In his own admissions he entered the dance venue at 7pm Saturday night and came out the next morning Sunday 3 am with his three friends. State witness Paul Achaluen corroborates the beer drinking by saying that there were drunks there and the deceased was the leader in causing commotions at the club. Although he claims to be an eye witness his testimony in parts stand hopelessly loose, hardly capable of corroborating any of the State testimonies. This evidence is inconsistent with the wounds and line of penetration of bullet as shown in the post mortem report. The entry of bullet was on left side of deceased-furthermore at a distance of 4.5 metres between the accused and the deceased and with the witness standing in between them and the rifle said to be fired at such close range/space, common sense dictates that there is barely time for the witness to avoid the projectile or duck as he claims he did. At that intoxicated state of mind obviously ones reflexes were greatly affected. Be that as it may, one would have to have super human reflexes to avoid the projectile especially one coming from a gun or rifle for that matter. Even at very close range I consider it highly unlikely. For instance the evidence of the deceased facing the accused when shot at, at a distance of about 4.5 metres with him standing in between; denial of seeing struggling and argument between the accused and the deceased. That is all.

18. Witness Steward Kapak's testimony is fraught with inconsistencies and lacks credibility. I therefore conclude in relation to the accused from this witness testimony that there is insufficient evidence that all of the elements of the offence of wilful murder are present hence the accused cannot be lawfully convicted as a matter of law.

19. This witness said he met his three friends at the Yacht Club dance on Saturday evening and stayed on until the next morning Sunday and left the club around 4am when everyone had left. At the gate he saw the accused standing beside an open back blue police land cruiser. He said he approached him and enquired about his knife but was told to collect it from the police station the next day and so he walked out of the gate. The witness said his three friends had gone ahead whilst he was talking with the accused Vele. By the time he got to them, the deceased told them that his bag was left behind and he needed to go inside the club to fetch it.

20. At the time the witness said he had gone over to Benson to light his cigarette and not very long he heard a gunshot. He jumped to the side, turned around and saw Christopher fall down. The witness said he ran towards the deceased and saw Vele with a gun which was pointed at him and he jumped the second time. He shouted at Vele for killing his friend but was told to wake his friend and carry him away as he was in a state of shock. The witness checked the deceased body and saw blood which he showed to the accused. The accused than brought his police van and transported the deceased to the hospital.

21. When asked whether he was drunk during cross examination the witness said he wasn't and also denied that they were not rowdy at the Yacht Club dance. In cross-examination, the witness said the following:

Q.12 I put to you that when you went to ask for your knife the deceased was with you?

Q. 14 When you came out of the gate the deceased was adamant about asking Vele about something, is that correct?

Q.15 I put to you that you were there when deceased asked Vele about his friend and about some marijuana, true?

Q.20 You mentioned about gunshot, jumped to the side and saw deceased fell down?

A. They were in front. Steward in front of Vele, Chris behind Steward. I was with Benson.

22. Again in my analysis of this witness' testimony, I ask myself this question. Are there evidence of all elements of the offence of wilful murder that would support the accused conviction?

23. My answers are in the following: Yes I can detect some. The accused was at the scene of the murder and that is all. Otherwise the witness says he did not see the events which led to the time of the gunshot. It was only after hearing the gunshot when he turned around and saw the deceased fall to the ground. He denied seeing the deceased charging at the accused, he denied hearing the deceased questioning the accused about the marijuana, he denied the deceased was with him at the time when he enquired about the marijuana. He denied seeing the deceased armed with a knife and arguing with the accused. I am of the view that his testimony remains uncorroborated, tainted and riddled with inconsistencies though he claims to be an eye witness. There is evidence that his friend was wounded from a gun fired by the accused. That is all. Other crucial evidence leading up to the gun being fired remain obscure or that the witness was very careful and selective in his choice of words and events.

24. I make inference and observation as follows: His testimony of being in the company of the deceased as they went to the accused and enquired about the knife and something else remains uncorroborated. State witness Pierson Kamangip told the Court that he saw both youths, one of whom was the deceased walk to the accused and ask for Emmanuel Bak's knife. I fail to detect any credible evidence, express or inferential that connects the accused to the death of Christopher Gawi

25. The witness, a security supervisor with Yarapos Security Company was on duty that night at the Yacht Club dance with four other security officers. They were hired to provide security alongside the auxiliary police members. The accused was the officer in charge of security at the Yacht Club dance. He said when the dance finished around 3 am he was manning the main gate with Johnson Tonge and Roger Yamang whilst the auxiliary police officers were looking after the club.

26. The dancers were allowed to move out and so he and his two comrades began walking towards the sign board where Sergeant Vele was. As they all stood around in a circle drinking and smoking courtesy of the management they saw the last group of youths approaching them at the gate. The witness said as they came nearby two youths approached Vele and asked for the knife but were told to collect the knife tomorrow as it was night time. One of the youths was the deceased. The witness said the deceased insisted on Sergeant Vele to release the knife but was told to collect it the next day however they insisted on being given the knife. He said at the time he was standing about 3-4 metres away from them. Both men then returned to the main gate. The witness said after a short walk the deceased turned around and walked towards the accused. The deceased came, faced Sergeant Vele and said, " You sent my brother to jail and the evidence were drugs, where is it?" He said Sergeant Vele replied and questioned him why he was questioning authority.

27. The witness said Vele ran towards the police car, opened the left side door, took out a police AR rifle, cocked it and shot the deceased and began threatening them with the gun. All the boys ran away except Johnson Tonge who took cover behind a security guard. The witness said he was standing near Sergeant Vele and took cover as the gun was pointed at them. The witness said he saw the deceased fall to the ground, attempted to get up again but couldn't and fell headfirst after calling for his mother. The witness said the boys came out and saw the deceased loosing blood. Sergeant Vele brought the police truck and transported the deceased to the hospital.

28. During examination in chief the witness said of the two youths who approached Sergeant Vele, the deceased was the first to ask for the knife and said they were standing about 3-5 metres from each other. The witness further said that Sergeant Vele stood at a distance of about 10-15 metres when he fired the gun at the deceased.

Q.4. The evidence from Emmanuel Bak was that he was the one who asked for the knife and he never mentioned about the deceased, what do you say?

Q.5 Emmanuel Bak did not say anything about the deceased asking the accused about his brother being sent to jail and the evidence, what do you say.?

A. That is true, first they asked for the knife. Deceased and Emmanuel came and approached Sgt Vele for knife. They returned and Emmanuel walked away and the second time deceased came back and approached Sgt Vele for the knife.

Q. 6 You said you were close by when deceased came back and faced accused again, is that correct?

Q. 9 How far was the distance between the deceased and the accused when the deceased was asking?

Q10. You said when the accused shot the deceased; the distance was about 10-15 metres.

A. When Sergeant Vele pointed gun, our positions changed the deceased was some metres away when he fell down.

Q.13 At the time the deceased asked the accused about his brother, he charged the accused, is that correct?

Q.15 And at that time the accused was near the deceased and struggling, is that correct?

Q16. In the cause of both the accused and the deceased struggling the gun went off, is that correct?

A. Your Honour that is all lies; no struggle and commotion, only questioning by the accused but the accused retaliated by shooting the deceased.

Q.17 I put you that what you are telling court are lies and inconsistent with other witness statements, what do you say?

Q. 20. They are from the same district therefore you collaborated and told lies to court, is that correct?

30. Again in my analysis of this witness's testimony, I ask myself this question. Are there evidence of all elements of the offence of wilful murder that would support the accused conviction?

31. My answers are in the following: Yes I can detect some. The accused was at the scene of the murder and that is all. The witness confirms the dance finishing at 3 am the next day and confirms youths coming out of the dance venue. As he stood in a semi circle with the accused and two other security officers he saw two youths approach the accused and demanded for a knife which was taken away from one of them earlier in the evening. He identified one of the youths to be the deceased who demanded the release of the knife. He could not recognize the other youth. The witness said the deceased also questioned the accused about a previous incident in which his brother was jailed for some quantity of marijuana and demanded the drugs be returned to him. According to the witness they were facing each other about 2 metres apart. He said the accused sensing that his authority was questioned raced to his police car, took out his AR rifle, cocked it and shot the deceased and later threatened them also. He said they both were facing each other during the verbal confrontation. The distance the shot was fired was said to be between 10 to 15 meters according to the witness. The witness made no mention of seeing witness Steward Kapak standing in the line of fire or saw him nearby.

32. Like other previous witnesses, his testimony remains uncorroborated, tainted and riddled with inconsistencies though he claims to be an eye witness. Despite the presence of evidence connecting the accused to the death of Christopher Gawi, I fail to detect any credible evidence, express or inferential that the death was intentional. I make inference and observation as follows. The deceased whilst heavily intoxicated approached the accused and demanded the release of his knife. He was in the company of his friend who were also intoxicated and very abusive. The witness testimony of the shot being fired at a distance of between 10 to 15 metres contradicts earlier state witnesses' testimonies. Steward Kapak said a distance of 4-5 metres, Emmanuel Bak unable to tell distance although he claims to be at the scene and saw everything. His testimony of confronting the accused alone with regards to his knife and something else remains uncorroborated.

State witness Pierson Kamangip told court that he saw both youths, one of whom was the deceased approach the accused and demanded for the return of the knife.

33. The witness is a policemen attached to the Wewak Police Station for the past 10 years. He has been a policeman for the past 34 years. He was on duty at the Yacht Club dance assisting Sergeant Vele, the accused that evening. At the dance he said there were plenty of drunken people. The witness said after the dance ended, there was an argument between the deceased and some people in the club so he left Sergeant Vele, the accused and walked to the club to stop the "spak man" who were fighting. He said he was about 10-15metres and removed the deceased outside the club who was very aggressive and tried to fight the people at the club. The witness said the deceased came out and went to the main gate where Sergeant Vele was. He said whilst in the club he heard a gunshot, thought about Sergeant Vele and ran to the gate and saw the accused with other auxiliary members. By than the deceased was already put in the vehicle and rushed to the hospital. The witness said there were also security members manning the gate with the accused. He said there were drunks about and the deceased was the leader in causing commotions at the club.

A. Sergeant Vele is a long time policemen in Wewak. He works full time with the Traffic Section. He was appointed OIC for auxiliary police in Wewak. He is a non beer drinker and committed to church work. He leads church choir at the Police Barracks. He is not an aggressive man and likes all persons. He loves the public and visits them during community policing. He is a committed person to do police duty until the time of the incident. The witness said they were surprised when the incident happened.

35. The witness' part in all these was to testify on the accused good character and dedicated service to the Police force and the community. That is all.

36. The accused was the only one who gave evidence. The accused at the time of the incident was a police sergeant based at Wewak Police Station and has 40 years of policing behind him.

37. The witness said he was assigned to provide security with other auxiliary members at the Yacht Club on the night of 14 August 2010. At a meeting held with management early in the evening, possible weak entry points into the club were identified. He then positioned his officers and took his place at the main gate with some private security personnel who were also engaged to provide security. He said the dance scheduled to finish at 2 am continue into the early hours of the next morning when a patron contributed K500 for more drinks. He said prior to the dance lots of youths had attempted to go inside the club via the main gate but were stopped from entering. However a dance official authorised some youths who were already drunk to enter the gate which made policing and crowd control very difficult. At about 10 pm in the night Paul Achaleun came to assist him followed by Senior Constable Steven Yakapu around midnight.

38. The witness said around 9 pm and 10 pm some youths standing outside began throwing beer bottles on to the police vehicle but they could not see them as it was dark that night. He said between 2 am and 4 am, the next day Sunday, there was a big problem inside the dance hall and so he despatched Sergeant Achaleun and one other policeman to go and control the fight. They removed some drunken youths from the inner gate but others were still in the premises. He said at that time auxiliary policeman Paul Kewa confiscated a bayonet from a youth Emmanuel Bak but says he was not around at the time. The witness said around 4.30 am the dance was closed down due to too much problem and the crowd began to leave the dance floor. He said the first group to leave were youths from YC and Bronx and they were drunk and rowdy. He said he signalled to senior constable Steven and the private security guards not to do anything as they were outnumbered.

39. The witness said the second lot of youths including the deceased came out and began making their way out. They too were very rowdy and shouted insulting words. He said Emmanuel Bak came out and sat on the boom gate cross bar and was joined by the deceased. Both men were trying to break the cross bar by lifting it up and down.The witness said Emmanuel Bak began calling out obscenities at him and called him names and said 'Kan you'. Give me my bayonet I have not killed anybody yet. I am not a criminal. The deceased was encouraging Emmanuel Bak to call out more obscenities at him. He said he told Emmanuel Bak to cool down and talked to him. When told to retrieve the knife from the police station the next day Emmanuel Bak was satisfied and moved on. He then shook hands with him and he introduced himself as Franklyn Steven Kawangu. The witness said that was the same person who came and changed his name to Emmanuel Bak and gave evidence for the State.

40. The witness said as he was talking with Emmanuel Bak the deceased Christopher Gawi was staring at him and grinding his teeth but Emmanuel Bak tapped him on his shoulder and told him to cool down and move on. He said the deceased refused to hear Emmanuel Bak's request.

At this point, both lawyers raised the observance of the rule in Brown v. Dunn and Court ruled that that be so.

41. The witness continued giving evidence and said the deceased pointed his finger at him and accused him of arresting his cousin brother, Samuel Sari over a marijuana incident. He said the deceased was referring to an earlier arrest made by him in 2010 which resulted in the imprisonment of his cousin brother. The witness said the deceased quizzed him over the arrest of his brother and the marijuana but was told that they were court exhibits and would be destroyed at a later date. He said the deceased then charged at him and demanded further explanation by then he said they were about 2-3 metres apart from each other. He said three private security guards were standing nearby watching. Senior Constable Steven Yakabut was standing watching from behind.

42. He said the deceased charged at him and grabbed him from the back. NB: objections were raised again when accused made reference to a knife....The objection was sustained again. The witness said he moved back about 1-2 steps, turned and ran to the vehicle, knowing that he was going to be cut. The witness said he opened the left side door, to get the rifle, thinking that he would show the rifle to the accused and that his life was no match for the gun." I intended to show gun and for him to move back." Instead the deceased came to me from behind and when I turned deceased... Objections again raised by state which was overruled. He said he saw deceased hold the barrel of gun with his left hand and tried to pull it from him but couldn't so he threw the knife which he was holding in his right hand down and grabbed the gun with both hands. The witness said with his left eye he saw his right hand holding a knife.

43. The accused said the deceased was a strong fat man and pulled him to his back for a distance of about 4-5 metres. He felt threatened and pulled the gun away from him but it was difficult so he released some tension on the gun and both struggled. The witness said he expected all policemen and security guards to come to his aid but they never did. He said security guards from H.45, security supervisor and S/C Steven Yakapu did not come to his aid. The witness said he finally made a mighty pull and went off balance and almost fell to the ground. He said that was the moment the gun went off and the deceased released his grip on the gun. He said they both were standing face to face staring at each other. Some seconds later the deceased took two steps backwards and sat on the ground facing upwards. At that time there was nobody nearby, only deceased and him were alone.

44. The witness said that time he saw witness Steward Kapak running beside the fence and grabbed a security guard in fear of being shot at. By than the boys at the gate had rushed in and questioned the accused for shooting the deceased. But he replied that the deceased was only shocked from the gun shot. He said at that time he was not aware that the gun had exploded on the deceased side and not into open air. NB: the witness indicating to his side stomach. The witness said when the deceased fell to the ground he picked up the knife and put it in the vehicle and told them to wake the deceased and take him home. The witness said witness Emmanuel Bak put his hands on the side of the deceased to lift him up and saw blood on his hands and told him that he had shot a person.

45. During examination in chief the accused said when charged by the deceased he feared that he would be cut with a knife as they were about 5 metres apart from each other. He said when he reached for the gun it took him about 1-2 minutes before the deceased reached him and they both struggled for the gun. The struggle lasted for about 1 minute before the gun went off and he thought either him or the deceased was shot. The accused said the main gate was a bit far from the inner gate and so he did not know which drunkards were coming out. He said the name given was Steven Franklyn Wongi, son of Steven Kurangu. He said at the time both when him and the deceased were struggling, three private securities and a regular police men were nearby.

Q.3 You told court that you moved from initial struggle place and moved 5 metres away?

Q.4 You also told court that there were some people there, 3 security guards and a policemen?

Q.12. You told court about 1-2 minutes struggling and moved away by 5 metres, why do you think the security guards and police did not come to your aid.

Q.13 Is it correct to say that they did not come to your assistance because there was no struggling between you and the deceased?

Q.14 You went to vehicle, got gun, fired and killed the deceased because there was no struggle?

Q.15. Correct that deceased walked away from you when you went to the car got rifle and shot him?

Q.17 Correct he only asked for his brother and marijuana when you replied by saying why he was questioning your authority?

Q.21 After cocking the gun, it's your duty to put the catch to safety or lock?

Q.27 I put to you that that is not the case, the gun was with you all the time.?

Q. 29 Correct procedure in handling guns like one used that night? Before you pick up gun you ensure that safety catch is on lock?

Q. 31 I put to you that you are lying to court, you went to the vehicle, had it corked and shot the deceased?

A. I told court that when an officer from the club allow some people into the dance place, that is time some went in.

A. Steven Kapak came from main gate and ran into premises where second guard was stationed.

Q.37. So when you asked him he said he was scared you may shoot him is that correct?

Q.38. After shooting the deceased he was with Steven and so you started pointing gun at him so he ran away and hid?

A. I was struggling with deceased and Steven Kapal wasn't there that time of struggle.

Q.40 At time deceased challenged you, that is why you shot him because you were not happy.

Q. 41 Because you were Senior Sergeant Vele and upon persistent asking you got incensed and shot him correct?

Q.44 But it's your duty; you should take precautions when handling guns correct?

A. When deceased came and grabbed gun there was no time to take precautions, as it was too hard.

Q.45 Gun was in your direct control at time, it was your duty to take extra precautions, correct?

Q.46 So at that struggling he could have easily being controlled by you or others nearby?

Q. 47 You are telling lies, if he did gun, will be recovered as he was drunk, what do you say to that/?

Q.47. I put to you that there was no struggle, no knife; you went took gun, cocked it and fired at deceased?

Q.48 You heard Pearson gave evidence? He was a security guard at the gate correct?

Q.49. He told court there was no struggle between you and deceased, what do you say?

1. During cross examinations you were asked about safety catch, who was that person.

47. Again in my analysis of this witness' testimony, I ask myself this question. Are there evidence of all elements of the offence of wilful murder that would support the accused conviction?

(3) unlawfully, as the evidence suggests that the shooting was unlawful when shot on the side of the stomach by the accused Anthon Aga Vele; and

(4) intentionally, as the evidence suggests that the person took part in the murder of Christopher Kawi.

48. My answers are in the following: Yes I can detect some. The accused was at the scene of the murder and that is all. The witness confirms the dance finishing at 3 am the next day and confirms youths coming out of the dance venue. He confirms being in company of other security officers when Emmanuel Bak and the deceased approach him and demanded for his knife which was removed from him earlier in the evening. The witness said the deceased was inciting Emmanuel Bak to shout more obscenities at him. He said the deceased quizzed him over a previous incident in which his brother was jailed for some quantity of marijuana and demanded the drugs to be returned to him. According to the witness they were facing each at a distance of other about 2-3 metres apart when the deceased charged at him and grabbed him from behind. The accused sensing that his authority was questioned moved to his police car, took out his AR rifle to ward off the deceased. By than the deceased had got to him and grabbed hold of the barrel of the gun with his left hand and tried to pull it from him but couldn't so he threw the knife which he was holding in his right hand down and grabbed the gun with both hands. The witness said with his left eye he saw his right hand holding a knife.

49. The witness said the deceased was a strong fat man and pulled him to his back for a distance of about 4-5 metres. He felt threatened and pulled the gun away from him but it was difficult so he released some tension on the gun and they both struggled. The witness said he expected all policemen and security guards to come to his aid but they never did. He said security guards from H.45, security supervisor and S/C Steven Yakapu did not come to his assistance. The witness said finally he made a mighty pull and went off balance and almost fell to the ground. He said that was the moment the gun went off and the deceased released his grip on the gun. He said they both were standing face to face staring at each other. Some seconds later the deceased took two steps backwards and sat on the ground facing upwards. At that time there was nobody nearby, only deceased and the accused were alone. He said at that time he was not aware that the gun had exploded on the deceased side and not into open air. At the time he said he thought the deceased was winded or stunned by the gunshot and was surprised that he had shot the deceased.

50. The total sum of State's oral testimonies in my view lacked corroboration, credibility and lacked truthfulness. They were all very closely related to the deceased, live in the same community and were his close friends hence it was not hard for court to detect the presence of evasiveness in giving their testimonies and during examinations. They were very selective in their testimonies and only told court what they wanted court to hear. As a result, glaring inconsistencies began to surface all throughout State's presentation of evidence which forced the State to reprioritise and realign its approach to no avail. The only sober State witness testimony likewise lacked corroboration. In terms of believability he is closely related to the deceased and they both come from the same village, hence the urge to give testimony favourable to the deceased remained high.

51. During examination in chief the State lawyer raised objections in that new evidence was introduced and not put to its witnesses hence State would be prejudiced. Such objections were sustained by court with further directions that the rule in Brown vs. Dunn be observed. Defence counsel was adamant that the curtailing of his witnesses' right to give evidence would amount to unfair trial and asked the court to reconsider its earlier ruling. The case of Cosmos Kitava vs. State (2007) SC 927 was cited by the defence. The State's position was that the new evidence of the allegation of the deceased charging the witness, if allowed to go into evidence would go unchallenged hence the objection.

52. State was not given the opportunity to rebut this piece of evidence. Mrs Lipai said it was the duty of defence counsel to put its case properly and it failed to do that however she concede to some evidence in the record of interview. The case of State v Wapiti & 2 Ors (2009) by Makail J was cited. In that case defence attempted to bring into evidence some parts of evidence but were disallowed by court upon state objection resulting in the witness disallowed from giving evidence.

53. I upheld my earlier ruling that the rule in Brown vs. Dunn be observed and the accused continued to give evidence hereon.

54. Crucial evidence contained in the post mortem remains evidence as they were and I have accepted them as such. In the absence of State calling the expert witness in the doctor important evidence were not adduced. The State's failure in directing the courts mind to the report and linking the direction of impact of the projectile on the deceased body, in preferably lay men's language again proved fatal. To my mind this line of evidence is crucial because defence gave ample notice that it would be relying on the defence of "accident". Any evidence relating to "intention" of the accused in my view is imbedded in the post mortem report. Again State failed to run with this evidence.

1. Right anterior lacerations x 2 of right leg
2. Left posterior lateral upper arm bruises

3. Penetrative wound measuring 0.5cm x 0.5cm at left lateral upper quadrant
4. No exist wound

6. Commuted fractures of 11th - 8th ribs at spinal vertebral- open fractures
7. Rupture spleen - massive

9. Penetrative wound on left diaphanous - 12cm x 12cm
10. Abdominal Haemorrhage

13. Multiple soft tissue injuries extending from the posterior spleen, diaphragou, left posterior chest extending the to the thoracic spine

14. Penetrative wound extend to posterior 10th - 12th thoracic spine - A lead piece of bullet was identified. Tissues around the lead piece of bullet were massively destroyed.

55. From photographs taken of the deceased body prior to mortuary examinations no visible signs of frontal wounds or damage were present. The penetrative wound measuring 0.5x.05 cm was noticed on the lateral upper quadrant. From my observation of the photographs, it shows an area below the left armpit. According to the doctors report all wounds were concentrated on the "posterior" or back end of the deceased's body extending to the "posterior 10 -11th thoracic spine. Evidence inferring to a direction of a leaning or angle of the wounds. If I am to draw any inference from the type of wound as described by the doctor it would lean heavily to the accused's versions of events which led to his death. The accused testified of a struggle between him and the deceased over the rifle/gun with him almost falling down after losing his balance. This would indicate a leaning angle consistent with his story and corroborated by the post mortem observations. The State's version leaves a lot to be desired as they maintained that the deceased was shot frontally contrary to the post mortem report and photographs.

56. Under s.24 (1) (b) Criminal Code, a person is not criminally responsible for his negligent acts or omissions if the act or omissions that caused the event occurred by accident. The accused relied on this defence hence the onus rested upon the prosecution to negative the defence, in the same way that defences such as self defence and provocation operate. (R v Johnson (1951) No 26: Thick v Hoeter [1963] PNGLR; The State v Albert Gias (2005) N2812)

57. I cannot detect nor draw any inference on the State negating this defence save to casually suggest to the accused that he was negligent in his use and safe custody of the murder weapon. These casual defences were easily explained away by the accused when he testified that the rifle was brought later by Sergeant Yakapu and left in the police truck as they stood guard. He only reached for it when he felt threatened by a heavily aggressive and intoxicated opponent. The rifle accidently went off during the scuffle and tussle between the both of them. I draw inference from the accused testimony when he told Emmanuel Bak that his friend was in a state of shock and told him to wake him up and take him away. It was only after the sighting of blood when he realised that the deceased had been shot.

58. Again the State casually suggested that the accused was duty bound to take control of the rifle and that he failed to discharge that duty to take care. This line of defence was likewise explained away by the accused when he said the struggle for the rifle happened within seconds leaving him no time to take precautionary measures.

59. 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 anything 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. In view of insufficiency of State evidence on this point, I am at liberty to accept the accused's version of events. Drawing on inference and evidence before the court describing the accused's mannerism and trouble free character I do not think him capable of killing somebody in cold blood. I did not detect any adverse aggressive mannerism and possible motive present in this unfortunate killing to criminally hold the accused responsible. This matter is therefore put to rest.

60. The end result is that the defence raised by the accused were clearly made out and not negative by the State and that this court is satisfied beyond reasonable doubt that the death of the deceased was accidental.

61. The accused counsel Mr Malambaul submitted on behalf of his client that a verdict of not guilty be returned and referred me to several cases. However I will only refer to two which he says may be of relevance to his client. They include the cases of John Wanamba v The State SC 551 (Unreported judgment dated 29/4 1998) and The State v Paul Sim CR No 283 of 2008 (Unreported judgment dated 25 May 2010). In John Wanamba's case his plea of accident was accepted by the Supreme Court as he did not consciously or wilfully pulled the trigger which killed a person amongst a looting crowd. He was indicted on a charge of manslaughter which was subsequently quashed by the Supreme Court. In Pauls case the defence of self –defence against provoked assault was raised and accepted by court due to contradictory evidence and the prosecution's failure to negative the defences raised therein.

62. This case is however different in that the accused was indicted on the charge of wilful murder. It follows that the death of the victim is an essential element and there is no dispute that such death was caused by the actions of the accused. The first and second elements are present. As to the third element of intention to kill, I am not satisfied that this was made out successfully by the State. In The State v Raphael Kuanande [1994] PNGLR 512 at 514, Injia AJ (as he then was) said:

"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, at the time and subsequent to the act constituting the offence."

63. Lawyer for the State Mr. Popeu however submitted that should the defence of accident be accepted by the Court, the accused cannot be excused of any criminal liability with complete acquittal. He referred me to several cases however I shall only refer to one which I consider relevant to this case under the circumstances. (The State v Angeline Winara [2008] PGNC 65; N3345 (4 April 2008). In that case the accused was charged with murder under s. 300 (1) (b) and the Court having accepted his plea of defence of accident, considered alternative verdicts instead.

64. Mr Popeu submitted that in the circumstances, a conviction of manslaughter should be made and not an acquittal as submitted by defence counsel ( R.v Woods (1966) No399). Furthermore Section 539 (1) Criminal Code gives the legal basis on the subject:

" 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 offences other than that with which he is charged." .

65. Hypothetically, if this court was to believe the version of wilful murder as told by the State's only sober witness Pierson Kamangip it would unfold something like this:

"On that night two heavily intoxicated youths were returning from a dance hall/club at around 3 am in the morning, approach the accused and demanded for the release of a knife which was confiscated the previous night. Upon being told that they could retrieve it from the police station the next day they walk away. However the deceased returned, confronted the accused and argued with him over a previous arrest and jailing of his brother by the accused. The accused sensing that his authority was being questioned, rushes to his police truck, leaving the heavily intoxicated youth 10 meters away from the victim. The accused harms himself with a police issued rifle, loads the magazine, cocks it and fires it at will at the youth who was still standing at a distance of about 10 meters, supposedly waiting for the accused to return to him to cause him harm. I ask myself, is that hypothetical situation plausible?

66. I now turn to the accused version of events and pose the same question is that hypothetical situation plausible? ....it would unfold something like this:

"After the dance/bar had closed at 3 am in the morning and two heavily intoxicated youths approach the accused and demanded for the release of a knife belonging to one of them. They walk away when told to collect it from the police station the next day. The deceased however returns, confronts the accused an argument ensues over a previous incident involving his brother and his subsequent jailing. The accused sensing that his authority was being questioned and now faced with a heavily intoxicated and agitated youth who is much stronger than him feels threatened and moves to his police van to get his rifle to ward of his threat. The heavily intoxicated youth, goes into a rage and charges at the accused as he was about to get to the police van. They both get involved in a scuffle and tussle over the rifle which was now in the accused's hands. As a result of the scuffle the rifle accidently goes off resulting in wounding the deceased."

67. I ask myself which of the two hypothetical situations is believable and plausible? I am of the view that if common sense and logic were to come into play, I would be more inclined to lean towards the accused's version than the State's version. I draw inference from the accused's testimony that the youth was well built and stocky and heavily intoxicated. That there was a struggle over the rifle which accidently went off when the accused lost his footing and went off balance. Furthermore the intoxicated youth had a motive and was already harbouring a past grudge against the accused and the police force for that matter and so when the opportunity presented itself he went into a rage. There is ample evidence before the court from both sides that he was the instigator of fights that night and was the cause of disturbance at the dance/club that fatal night. He was very aggressive.

68. I therefore find it difficult to believe the State witness version of events despite him being sober that night. His version of events was inconsistent and not corroborated by other state witnesses. Furthermore the post mortem report although not very helpful only confirms the death of the victim and shows massive wounds on the body. I ask myself what has become of thorough forensic investigations procedures and evidence relating to homicide cases and the calling of expert witnesses to assist court on the type of firearm involved and likely cause of wounds resulting from their use at close range and at long range. The angle of penetration of the bullet or projectile on the deceased body would greatly assist the court in determining serious question of intention to some extent in my view. Unfortunately these vital pieces of evidence in my view were not forthcoming from the State or any explanations for their lack.

69. Instead I am more inclined to believe the accused version of events and I hold him to be a witness of truth. I draw inference from an abundance of evidence confirming his length of service with the police force, his loyalty and dedication to his police work. His private life and his involvement in church and the community speak for itself.

70. Due to the foregoing reasons and findings I am not satisfied that the accused had the intention to kill the deceased hence I will not find him guilty of wilful murder under Section 299(1) of the Criminal Code. However I find him guilty of the alternative charge of manslaughter under Section 539 (1) of the Criminal Code.

Public Prosecutor: Lawyer for the State
Pau Paraka Lawyers: Lawyer for the Accused

National Court of Papua New Guinea

State v Aga (No.1) [2013] PGNC 64; N5119 (25 March 2013)