State v Popeu [2015] PGNC 45; N5967 (16 March 2015)

N5967

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 397 OF 2013

THE STATE

-V-

KAPIN POPEU
Respondent

Popondetta: Toliken, J
2014: 07th, 08th, 09th, October
2015: 16th March

CRIMINAL LAW – Murder – Trial – Deceased died from gunshot wound – Firearm discharged by accused – No Post Mortem Report – Photographs of deceased's wounds taken by relative - Refusal by Relatives for a Post Mortem – No relative, whatever the reason, should be allowed to circumvent the powers of the Coroner to order a Post Mortem – Accession by Coroner to relatives demand, a negligent and serious dereliction of duty – Court at liberty to refer to medical and scientific authorities – Post Mortem and forensic/ballistic examination necessary - Consequences of absence of Post Mortem Report – Conclusions and inferences inconclusive – Reasonable doubt cast on State's case - Verdict – Not Guilty -Criminal Code Act Ch. s 302.

Cases Cited:

Nil

References cited:

Vincent J.M. Di Maio; Gunshot Wounds: Practical Aspects of Firearms, Ballistics, and Forensic Techniques, 2nd Edn; CRC Press, Boca Raton, FL (1999)

Counsel:

J. Done, for the State
E. Sasingian, for the accused.

VERDICT

15th March 2015

1. TOLIKEN, J. The accused was charged on indictment with the murder of one Noel Tiwekuri thereby contravening Section 300 (1)(a) of the Criminal Code Ch. 262.
   
2. The State's allegations are that on the 18th of September 2011 between 9.00a.m. and 10.00a.m., the accused, a policeman on duty, chased a suspect into the Niugini Compound. He was armed with a rifle. While pursuing the suspect he came across the deceased Noel Tiwekuri. Instead of completing his pursuit of the suspect he diverted his attention to the deceased. He called the deceased over and grabbed him by the shirt collar to effect arrest. The deceased resisted and a scuffle ensued during which the deceased stabbed the accused on his thigh with a knife and escaped. He ran down to a creek and when he was about 30 metres away the accused fired three shots with the rifle he was carrying. One of the shots penetrated the deceased's right backside below the shoulder blade and exited through the right side of the chest. The deceased ran on for some 50 metres and fell down and died. The gunshots attracted neighbours who attended the scene and took the body to the Popondetta General Hospital.
   
3. The State alleged that the accused intended to cause grievous bodily harm to the deceased when he fired the shots, however, the deceased died as a result of the injuries he sustained.
   
4. The accused pleaded not guilty, raising the defence of self defence.
   

THE OFFENCE

5. Section 300 of the Code provides for the offence of murder and the different situations which may constitute the offence. In the current case the accused was indicted under s 300 (1)(a) which provides:
   

300. Murder.

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

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

...

Penalty: Subject to Section 19, imprisonment for life.

(2) ...

(3) ...

(4) ...

6. For the State to secure a conviction it must prove the following elements beyond reasonable doubt –
   
   1. The Accused
   2. Intended to cause grievous bodily harm on the deceased; but
   3. Killed the deceased instead
      

THE EVIDENCE

7. The State called a total of 7 witnesses. These were:
   
   1. John Jiregari
   2. Lawrence Waide
   3. Henry John Jiregari
   4. David Thomas
   5. Justin Erepa
   6. Edrick Tiwekuri
   7. Dr. Towai Giara
      
8. The State also tendered the following exhibits into evidence with consent.
   
   1. Record of Interview
      1. Original Pidgin version - A1
      2. English Translation - A2
   2. Medical Certificate of Death by Dr. Towai Giara dated 26/09/11 - B
   3. An excerpt from Police Inventory (p.9) – C (tendered through Justin Erepa)
   4. Excerpts from Weapons Issue Register (pp. 12 & 13) – D1 & D2 (tendered through Justin Erepa)
   5. Series of colour digital photographs tendered through Edrick Tiwekuri:
      1. Photograph showing a bandaged right flank back area of deceased with a bullet wound below the shoulder blade – E
      2. Close-up shot of Exhibit E without the bandage - F
      3. Photograph of the front torso showing a bullet wound just a few centimetres off to the right above the right nipple – G
      4. Close-up shot of Exhibit G – H
      5. Photograph of the same area of the torso from just below the navel and up to the neck area around the epiglottis (Adam's Apple) – A clearer resolution showing the bullet wound in the chest as shown in Exhibits G & H – I
      6. A close-up shot of the chest area showing the right nipple and bullet wound – J
   6. Statement of Virgil Tiwekuri dated 24/12/11 – K
   7. Statement of Bonita Tiwekuri dated 24/12/11 – L
   8. Statement of Moere Leana dated 23/12/11 – M
   9. Statement of Chief Sergeant Amoko Besso – N
   10. Joint Statement of Virgil and Bonita dated explaining their refusal for a Post Mortem – O1
   11. Joint Statutory Declaration by Virgil and Bonita Tiwekuri declaring their refusal for a Post Mortem – O2.
       
9. The Accused testified on oath. He did not call any other witness but tendered a Medical Report dated 31.10.2011. ( Marked Exhibit 1 for the Defence)
   

ISSUE

10. The general issue for my determination is: Whether the accused acted in self defence when he discharged the firearm at the deceased. There are, however, issues of fact which I will allude to further down in this judgment.
    

UNDISPUTED FACTS

11. From the evidence I find the following undisputed facts:
    
    1. On the 18th of September 2011 the accused, armed with a police issued firearm was in hot pursuit of an escapee, Lato Andrew towards the New Guinea Compound. When he came out from behind Jiregari's toilet he ran passed the deceased and his two friends John Jiregari and Lawrence Waide who had been looking for beer. The escapee by then had crossed the Sorovi Creek and ran into the New Guinea Compound hence the accused stopped pursuing him.
       
    2. He instead turned to the deceased and his friends and yelled at him to stop saying "Hey you blue shirt come here first" or words to that effect. The accused approached the deceased and attempted to arrest him by placing his right hand on the deceased's right shoulder while holding his gun on his left hand. The deceased, however, resisted by pushing the accused hand away and a scuffle followed. At that point the deceased's friend Lawrence Waide got afraid and left the scene.
       
    3. The accused grappled the deceased to the ground while still holding on to the gun. During the scuffle the deceased stabbed the accused on the left thigh with a pocket knife which he had on him. I accept that the accused was stabbed on the left thigh based on his Medical Certificate to that effect which, despite claims to the contrary by the State's witnesses, cannot be denied in light of the Medical Certificate.
       
    4. The firearm discharged hitting the deceased. After he was shot the deceased fled the scene following the Sorovi Creek as it meanders in the general easterly direction. The deceased collapsed and died some 119 meters away on the bank of the Sorovi Creek.
       
    5. The deceased was later taken to the Popondetta General Hospital. The deceased parents and relatives refused, for reasons known only to themselves, to have a Post Mortem examination conducted on the deceased. While a Warrant to Bury was in fact issued under his hand the Coroner was not allowed to fully exercise his jurisdiction. As a consequence of the relatives' refusal,no Post Mortem was conducted and hence no Post Mortem Report was done, though Dr. Toua Giara, the Medical Director did issue a Certificate of Death where-in he stated the cause of death as "GUNSHOT WOUND (CHEST)."
       
    6. On 29th of September 2011, Edrick Tiwekuri, a brother of the deceased took photographs of deceased's chest and back area at the morgue when the body was being prepared to be taken away for burial. The photographs of the deceased's back show a small wound just below the right shoulder blade and a larger chest wound just off to the right from nipple. There was no doctor or policemen present when he took the photographs. It is accepted that Edrick Tiwekuri is not an expert witness or a forensic photographer at that.
       
    7. While there was some issue with the exact firearm the accused had on him at the relevant time, it is not disputed that the accused had a Sig rifle and it was a round from that rifle that killed the deceased.
       

THE DISPUTED FACTS

12. The thrust of the State's case is that the accused shot the deceased on his back as he was fleeing from him after he had stabbed the accused on the thigh during the scuffle.
    
13. The defence case on the other hand is that the gun discharged and hit the deceased on the chest during the scuffle when the accused was trying to defend himself from the deceased. It is not clear who pulled the trigger, so contends the defence.
    
14. Apart from the accused himself, the only State witness John Jiregari testified to directly witnessing the fatal shooting while another State witness Henry John Jiregari testified to seeing the accused fire a few shots into the general direction to which the deceased had fled. The factual issues are therefore:
    
    1. Whether State witness John Jiregari was present during the scuffle between the accused and the deceased and the eventual shooting of the deceased?
       
    2. Whether the accused shot the deceased on his back as he was running away from him, or;
       
    3. Whether the deceased was shot on the chest during the scuffle, and if so, who pulled the trigger?
       
15. To resolve these factual issues I summarize below the relevant evidence of John Jiregari, Henry John Jiregari and the accused, these being most crucial as to what happened at the scene of the crime.
    

Evidence of John Jiregari

16. John Jiregari testified that on the morning of Saturday the 18th of September 2010 he woke up at around 9.00a.m and went to the toilet. When he returned he met the deceased at the back the house. The deceased wanted beer so they went across to New Guinea Compound to buy beer from a canteen there. The canteen had, however, run out of beer, so they turned back the same way they came.
    
17. As they were walking along a man ran passed and told them that the police were pursuing him. They continued on and crossed the Sorovi Creek and as they were coming up on the other side they saw the accused come out from the back of the toilet. They had walked passed him for about a couple of meters when the accused called out to them. He singled out the deceased who was wearing a blue collar shirt and told him to go to him. The deceased walked back while the witness stood waiting for him.
    
18. When the deceased walked back to the accused, the accused told him to lie down on the ground. The deceased protested, telling the accused that he had not done anything wrong. At that the accused grabbed the deceased by his shirt collar and tried to force him to the ground and so they begun to struggle. The accused still had his right hand on the deceased's shirt collar and tried to trip him with his leg. They both fell down. Sensing that he was going to be shot the deceased tried to push the muzzle of the gun away but the accused kept on pushing it against the deceased's stomach. The deceased then pulled out a knife and stabbed the accused on his right thigh. At that the accused let go of the deceased and the deceased ran down the Sorovi Creek. The accused stood up and fired 3 shots after the deceased. The deceased kept on running though. The witness said he did not know where he finally collapsed but was later told that he had died.
    
19. In examination in chief John Jiregari said that the deceased had run for about 10 -11meters when the accused fired at him. He said he was about 6 meters away from the accused when the accused fired. On inspection of the crime scene the distance was measured to be about 8 meters. He described the gun to be a big one and estimated it to be about a meter long.
    
20. John Jiregari denied in cross examination that the deceased swung the knife six times at first at the accused and that the accused tripped as he was reversing. He admitted though that the deceased and the accused did fall down together but denied that the deceased swung the knife another 3 times at the accused while they were on the ground and that it was at this time that he stabbed the accused. He denied that the accused had moved some 5 meters and then fired at the deceased saying that he fired after the deceased from where they had been struggling as soon as he stood up. When it was put to him that he did not see exactly where the deceased was hit the witness said that he saw him being hit on the back as he was running away.
    
21. When asked what day it was the witness said it was on a Saturday. He also maintained that the deceased stabbed the accused on his right thigh and not the left as suggested by Mr. Sasingian. While he admitted that Lawrence Waide who was with them ran away as soon as the scuffle between the deceased and the accused started he denied that he also ran away. He maintained that he was present and saw everything. He denied that the gun accidently discharged and when the Medical Certificate of Death was shown to him he admitted that its only one wound and that was to the chest.
    
22. When re-examined, the witness maintained that the deceased was running down the creek when the accused shot him on the back. In answer to questions put to him from the bench the witness said that he saw with his own eyes the accused fire at the deceased from a distance of about 13 meters and saw him being hit on his back.
    
23. On re-cross by Mr. Sasingian the witness agreed that he and the accused were standing on a slope. Counsel suggested to him that 13 meters was quite a distance but he said that it was not far. He said that there were banana trees but there were no other trees between him and the deceased. The place was clear and he saw what happened. When asked if the deceased fell down, he said he did but got up and continued running.
    

Evidence of Henry John Jiregari

24. Henry John Jiregari, father of John Jiregari, testified that on that Saturday morning the deceased and Lawrence Waide came to his house looking for his son John. He told them that John was living with his wife across the creek and they left. And as he was having breakfast with his family he heard a scuffle along the track where his son lives. When he came out the scuffle was already over. Looking towards the track that leads to their toilet (outdoor) he saw the accused in a position ready to discharge his firearm which he later described in examination chief as an M16. He then heard the accused discharge simultaneous shots. The accused then cut across to the witness' house for the purpose, he presumed, of getting a good sight of the deceased. However, he slowed down and Jiregari said he noticed that he was bleeding from a wound on his right thigh. Jiregari's wife who is nurse assisted the accused. A few minutes later a police vehicle came along and took the accused away. A little while later the deceased was found dead further down the Sorovi Creek.
    

Evidence of the Accused

25. The accused testified that on the date in question, a Sunday, he was informed by an informant that an escapee Lato Andrew who was wanted for escaping from custody and for motor vehicle theft was seen drinking at a house at the Niugini Compound. The accused proceeded by vehicle to the Niugini Compound, accompanied by his Unit Commander Sergeant Jimmy Bonanda. Sergeant Bonanda dropped the accused off at Johnson's Tucker Box while he drove on to the back of the Catholic Church to wait for the accused at another Tucker Box called Baniwa. The accused then proceeded slowly, taking cover behind banana trees to where he was told the escapee was drinking. However, as he approached the house some children saw him and warned the escapee. The escapee fled running passed the Catholic Church and headed for Jiregari's house towards New Guinea Compound.
    
26. The accused ran after him in hot pursuit. As he ran passed the back of Jiregari's toilet he saw the escapee cross the Sirovi Creek and run into the New Guinea Compound. The accused ran behind the Jiregari toilet and when he came out he crossed paths with the deceased Noel Tiwekuri, John Jiregari and Lawrence Waide. He called at them to stop saying "Hoi you blue shirt stop." This was in reference to the deceased. The deceased stopped. The accused said the deceased's name was mentioned in an armed robbery a couple of days earlier and hence was a suspect.
    
27. So the accused approached him and laid his right hand on the deceased's right shoulders. He told him that he was a suspect in the robbery and asked him to accompany him to the Police Station. He had his gun on his left hand. The deceased protested asking the accused what crime he had committed and resisted arrest by pushing off the accused's hand. The accused grabbed his shirt collar while still holding on to his gun and tried to wrestle him to the ground face down in order to subdue him. In the struggle the deceased took out a kitchen knife from his back pocket and swung it at the accused some 6 times. Sensing that the deceased would stab him the accused pushed him away and retreated backwards for some 7 meters. He, however, tripped on a stone and fell down but as he was trying to get up the deceased jumped on him and swung the knife on him another 3 times.
    
28. As they grappled on the ground the accused put up his hand to protect himself while his left hand still held on to the gun. The deceased still had the knife but was trying to remove the gun at the same time. At that moment the deceased swung the knife and stabbed him on his left thigh. The accused did not feel the knife go into his thigh at first. He only sensed that he was stabbed when fresh air hit the wound.
    
29. At that time though the accused kicked the deceased away and he landed on some banana trees. The deceased bounced off the banana trees and landed back on top of accused and again proceeded to try and get the gun off him. They continued to struggle and in the process the gun went off. The accused did not see where the bullet went. But at that moment the deceased let go of the accused and ran towards the creek. The accused tried to get up but initially could not because of his injury. He eventually got up by bracing himself on his right leg. He noticed a lady doing her dishes in the creek so he fired a shot above the banana trees to scare off any friends of the deceased in case he returned with them. As he stood there he could see the deceased – though not very clearly -fleeing down the creek. He could only see his shirt and the back of his head as he was running away.
    
30. He then limped off for some meters. The shots attracted people who started to converge on the scene from every direction. Not knowing whether they were the deceased's friends or just mere spectators he fired two more shots into the air. He then walked to Jiregari's house where some people unsuccessfully tried to dress his wound. A police vehicle came around and he got on. He was rushed to the Popondetta General Hospital where his wound was sutured and treated with medication and discharged with a course of antibiotics.
    
31. When asked in examination in chief what happened to the deceased's two friends the accused said they had run away as soon as the scuffled started. He was not sure how long the scuffle took but it could have been some 5 – 10 minutes.
    

DELIBERATIONS

Was John Jiregari Present During The Scuffle Between The Accused And The Deceased?

32. John Jiregari said he witnessed the scuffle from a distance of about 6 meters (8 meters when measured on inspection). He described how it started, how the accused grabbed the deceased by his shirt collar and how he tried to trip him, how they both fell down and how the deceased was trying to push the muzzle of the gun away from his stomach, how he stabbed the deceased on his right leg and ran away down the Sorovi Creek and how the accused fired three shots after him. He saw the deceased hit on the back and he fell down but then got up and continued running along the creek.
    
33. Mr. Sasingian submitted that John Jiregari is not a credible witness for the following reasons. He was adamant that the deceased stabbed the accused on his right leg when in fact he was stabbed on this left thigh as confirmed by the accused's Medical Report. He further maintained that the 18th of September 2011 was a Saturday when in fact it was a Sunday. Counsel submitted that if he was unreliable on such small matters then he could not be believed on more important matters. Also the deceased was his childhood friend and this affected his evidence. In short his evidence was intended entirely to incriminate the accused. No weight should therefore be placed on his evidence.
    
34. I find that the witness was clearly mistaken about where the accused was stabbed and about what day of the week the 18th of September 2011 was. But does that make him a liar? I think not because a person may firmly believe a certain state of affairs but may be genuinely mistaken. Of course a lie would corroborate an opposing party's evidence but I do not find that to be the case here. Aside from those mistaken facts I find this witness to be generally credible and unshaken in his evidence on the most crucial matters.
    
35. I must mention here that some aspects of Jiregari's evidence actually were corroborated by the accused himself. For instance, their evidence agree on some critical facts - the accused grabbed the deceased by the collar and tried to topple or trip him over, they both fell over, and that at that moment the muzzle of the accused gun was in contact with his mid-section or abdominal area, that the deceased stabbed the accused and fled down the Sorovi Creek. How could John Jiregari have seen all these if he had fled the scene like Lawrence Waide did?
    
36. Of course he could have retreated to a safe distance and watched things unfold from there but no suggestion to that effect was put to him and it is not open to the Court to make such an inference.
    
37. I am satisfied therefore that John Jiregari was present at the scene of the crime and saw what happened between the accused and the deceased.
    

Where And How Exactly Was The Deceased Shot?

38. So where exactly and how was the deceased shot? Was he shot by the accused as he was fleeing down the Sorovi Creek or during the scuffle with accused? Did the bullet penetrate him from the back or from the chest? If the deceased was running away from the accused as State Witness Jiregari said then the bullet would have hit and entered his body from the back. But if the gun went off during the scuffle as the accused said then the bullet would have entered through his chest. Whose evidence should I believe?
    
39. Again the only direct evidence on these crucial questions is that of John Jiregari and the accused. Of course there is the evidence of Henry John Jiregari but I am of the firm view that the two simultaneous shots that he saw the accused fired were not the fatal shots. This is because if the accused had moved up from where he had struggled with the deceased and then fired those shots then the deceased would have been a fair distance away from him already.
    
40. Apart from that we have the Medical Certificate by Dr. Giara and the photographs taken by Edrick Tiwekuri of the deceased which although secondary can assist the Court in arriving at some conclusions.
    
41. Be that as it may, I must decide, as best as I can, from the evidence before me how the deceased got shot. And that evidence is that of John Jiregari and the accused, the Medical Certificate of Death and the photographs of the deceased showing the gunshot wounds on his body.
    
42. Let me deal firstly with the oral testimonies of John Jiregari and the accused. Jiregari testified that the deceased fled down the Sorovi Creek as soon as he stabbed the accused and the accused rose from where he had been grappling with the deceased and fired his gun after him and hit him on his back. The distance from where the accused fired to where the deceased was said to have been hit was measured to be about 13 meters.
    
43. The accused version is that the gun discharged as he and the deceased was grappling each other. As we have seen he said that he tripped when retreating to avoid the deceased's swings with the knife and when laying on the ground the deceased jumped on him. With the knife in one hand the deceased was trying to remove the gun which the accused still held on with left hand. At that moment the deceased swung the knife and stabbed him on his left thigh. The accused said he did not feel the knife go into his thigh at first. He only realized that he was stabbed when fresh air hit the wound. He, however, kicked the deceased away and he landed on some banana trees. The deceased bounced back from the banana trees and landed back on top of accused and again proceeded to try and get the gun off him. They continued to struggle and in the process the gun went off. The accused did not see where the bullet went. The deceased left him and ran down the Sirovi Creek. All the time during the scuffle the barrel of the gun was facing up towards the deceased with the muzzle literally touching his chest.
    
44. Both versions seem plausible. However, I find it hard to see how the deceased could still have held on to the kitchen knife in one hand while trying to wrestle the gun from the accused with the other hand. The accused said he had the gun on his left hand so the deceased would naturally have been trying to get it off him with his right hand. The deceased would have needed his left hand to be free so that he could effectively restrain the accused's right hand. But then again he could have held the knife with his right hand and that probably explains why he was able to stab the accused on his left thigh.
    
45. Granted, there is no evidence that the deceased was right-handed but assuming that he was, he would have stabbed the accused anywhere on the right side of the body. So in the circumstances, if the deceased's intention was to wrestle the gun from the accused, I find that his efforts would have been rendered more difficult in the circumstances described by the accused.
    
46. And of course there is no question that the gun could have gone off during the scuffle and hit the deceased on the chest. And that is the defence's contention which counsel said is supported by the Medical Certificate of Death where Dr. Giara describes the cause of death as "Cardiac Respiratory Arrest" due to "Haemorrhage Shock" from a "GUNSHOT WOUND (CHEST). Is this conclusive evidence that the deceased was shot in the chest, more specifically did the bullet enter the deceased's body through the chest?
    
47. There is no question that deceased sustained gun wounds to his chest. The photographs taken by Edrick Tiwekuri of his late brother's body indeed show that there was a wound on his right chest just above the right nipple off to the right towards the breast bone (sternum). (Exhibits G, H, I and J for the State) But this was not the only wound. Exhibits E and F show a wound in what appears to the deceased's back just below the shoulder blade. This wound is smaller and more regular in shape than the one on the chest which is bigger and irregular in shape.
    
48. That being the case it is important to ascertain whether the bullet entered the body through the chest or through the back. Which of the wounds shown in the photographs is the entry wound and which is the exit wound, assuming that bullet exited and not get lodged inside the body? And this is where a Post Mortem and/or a Forensic/ballistic examination become necessary.
    
49. Of course there is no Post Mortem Report because none was ordered and hence conducted. And there is no forensic/ballistic report before the Court and no expert evidence to that end was called. Counsels have not referred me to any academic or scientific work on the subject either. So, can the Court inform itself by way of research on the sciences of Ballistics and Forensics and in particular the behaviour of projectiles such as bullets when they enter the human body?
    
50. A leading work on gunshot wounds and forensic techniques by Vincent J.M. Di Maio; Gunshot Wounds: Practical Aspects of Firearms, Ballistics, and Forensic Techniques, 2nd Edn; CRC Press, Boca Raton, FL (1999) at p.65 says that –
    

"Gunshot wounds are either penetrating or perforating. Penetrating wounds occur when a bullet enters an object and does not exit; in perforating wounds, the bullet passes completely through the object. A wound can, however, be both penetrating and perforating. A bullet striking the head may pass through the skull and brain before coming to rest under the scalp, thus producing a penetrating wound of the head, but a perforating wound of the skull and brain."

51. Di Maio classifies gunshot wounds into four broad categories, depending on the range from the muzzle to target. These are; contact, near contact, intermediate and distant.
    
52. For our present purposes we are interested in contact wounds and distant wounds given the nature of the competing evidence of John Jiregari and the accused.
    
53. Di Maio defines contact wounds and distant wounds as follows:
    

"Contact Wounds

In contact wounds the muzzle of the weapon is held against the surface of the body at the time of discharge. Contact wounds may be hard, loose, angled, or incomplete (a variation of angle).

54. The evidence suggests that the muzzle of the gun was somehow, and at sometime during the scuffle, pressed against or in contact with the deceased's chest or mid-section. John Jiregari testified of the deceased trying to remove the muzzle of the gun away from his stomach and the accused evidence pretty much agrees. If the gun went off at that time, the resulting wound would have been either a hard-contact or loose contact wound. Di Maio describes these at pp.65, 66 as -
    

"Hard-Contact Wounds. In hard contact wounds the muzzle of the weapon is jammed "hard" against the skin, indenting it, so that the skin envelops the muzzle. In hard contact wounds the immediate edges of the entrance are seared by the hot gases of combustion and blackened by soot ... This soot is embedded in a seared skin and cannot be completely removed either by washing or by rigorous scrubbing of the wound.

Loose-Contact Wounds. In loose-contact wounds, the muzzle, while in contact with the skin, is held lightly against it. Gas preceding the bullet, as well as the bullet itself, indents the skin creating a temporary gap between the skin and the muzzle through which gas can escape. Soot carried by the gas is deposited in a zone around the entrance. ... This soot can be easily wiped away. A few unburnt grains of powder may also escape out this gap and be deposited on the skin in the zone of soot."

55. If on the other hand the deceased was shot as he was fleeing from a distance of some 13 meters, then, obviously this would have resulted in a distant wound which Di Maio describes at p.82 as –
    

"In distant wounds, the only marks on the target are those produced by the mechanical action of the bullet in perforating the skin."

56. And this leads us to the other important or crucial question; where did the bullet enter the deceased body? Was it through the chest as the accused claimed or through the back according to John Jiregari? To answer these questions it is important to know something about the characteristics of entrance and exit gunshot wounds. Di Maio describes these pp.83, 84 and 92 in the following terms –
    

Entrance Wounds

Most entrance wounds, no matter the range are surrounded by a reddish, reddish-brown zone of abraded skin – the abrasion ring. ... This is a rim of flattened, abraded epidermis, surrounding the entrance hole. Fresh entrance wounds have an abrasion ring with a moist, fleshy appearance. As the abrasion ring dries out, however, it assumes the more familiar appearance.

The abrasion ring occurs when the bullet abrades, ("rubs raw") the edges of the hole as it indents and pierces the skin ..."

...

Exit Wounds

Exit wounds, whether they are the result of contact, intermediate, or distant firing all have the same general characteristics. They are typically larger and more irregular than entrance wounds, with rare exception, do not possess an abrasion ring. Exit wounds can be stellate, slit-like, crescent, circular, or completely irregular ..."

57. The competing evidence of parties must be resolved on the crucial points raised above. Is it, however, sufficient for me to draw inferences or conclusions based entirely on the photographs of the deceased's wounds and what text book authority says without the benefit of a physical forensic examination report of the deceased and the wounds he sustained?
    
58. To be honest, based on what Di Maio said above, it appears that the deceased sustained a distant perforating wound where the bullet entered through the back and exited through the chest. This appears to be supported by the small regular circular wound on the back which is characteristic of an entrance wound, and a larger more irregular wound characteristic of a text book description of an exit wound.
    
59. I am of the view that while I am at liberty to rely on scientific or medical text or publication these cannot replace the need for a physical examination of the body by a medical or forensic/ballistic expert. The Court is not an expert on medical or scientific matters lesser still on forensics or ballistic which are very specific and technical fields of science.
    
60. A Post Mortem Report would have, at the very least, among other details, shown at what angle the bullet entered the body. This is important because of different versions of evidence by State witness John Jiregari and the accused. Take for instance the State's version. If the accused shot the deceased as he was fleeing from him down the Sorovi Creek, given the fact that he was on a slope and basically firing down, at what angle through the body would the bullet have travelled? Would it not have travelled downward from the point of entry? Only a medical or forensic examination of the body would have provided an answer to this important question. I cannot tell from the photographs what angle the bullet traveled once it entered the body. As it stands a reasonable doubt is inevitably cast upon the State's case.
    
61. The onus is on the State to prove its case beyond reasonable doubt. This is not a water-tight case as one would think. It was badly handled from the start and this may have been due to the different positions the deceased's relatives and the police hierarchy took in the matter.
    
62. If the matter was reported to the Coroner, and I believe it was, because he could not have issued the Warrant to Bury without an Initial Report to Coroner, which would have indicated the prima facie circumstances of the death, the Coroner acted negligently and in serious dereliction of his duty in not taking full control of the matter which would have been well within his exclusive jurisdiction. Instead it appears that he acceded to the deceased's relatives' refusal for a Post Mortem and the difficulties in the prosecution of this matter are the unfortunate result.
    
63. The absence of a Post Mortem Report or expert forensic evidence or a ballistic report did not assist the Court at all. And this is largely due to the unreasonable if not unlawful refusal by the deceased's relatives to subject the deceased's body to the jurisdiction of the Coroner. This was a serious matter that ought to have taken the normal course, if criminal prosecution was contemplated, which in fact turned out to be the case, and rightly so too. Even if the cause of death would have been apparent at that time hence making an inquest by the Coroner unnecessary, the least that could have been done was for a Post Mortem to have been ordered and performed.
    
64. Deaths from gunshots are never straight forward as one might think. Hence, a Post Mortem, but perhaps more particularly a forensic and ballistic examination of the body and the firearm involved, is crucial to help determine how the deceased met his fate.
    
65. In this case - and I hate to say it but it must be said - the relatives seemed to have been so pre-occupied with their demand for compensation that they forgot about the fact that justice had to be done to the deceased by ensuring that the criminal justice process runs its course from start to finish. And in so doing they unwittingly destroyed any chance by the State in securing a conviction. Where a person dies under similar circumstances as these, no relative – whatever the reasons are - should be allowed to circumvent the powers of the Coroner to order a Post Mortem and as a result impede or jeopardize the course of justice.
    

CONCLUSION & VERDICT

66. The inevitable conclusion in this matter is that without the benefit of a Post Mortem Report I am not in a position to draw any inferences that the deceased was shot in the chest as the defence contended nor could I reached a solid conclusion that he was shot in the back while running away from the accused.
    
67. Reasonable doubt has been cast on the State's case and despite my hunch that the accused may have indeed shot the deceased while he was fleeing from him, I must find that the case had not been proven beyond reasonable doubt.
    
68. I therefore return a Verdict of Not Guilty. I order that the accused be discharged forthwith, that his bail be refunded and further that sureties paid by his guarantors be refunded also.
    

Ordered accordingly

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The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused