N7852

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1331 & 1332 & 1333 OF 2017

THE STATE

V

HILARY SOMERI & BLAISE WATAKAPURA & JACK PIPILAK

Kimbe: Miviri J
2019	   : 24th 25th April

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – death undisputed – from gunshot – intent to kill –who shot deceased –three accused armed three guns – which gun fired at deceased – whether aiding and abetting – intent to kill – totality of overt acts – acting in concert – aiding abetting – false denials corroboration – circumstantial no other hypothesis – guilt only – guilty of wilful murder.
Facts
Accused were Policemen in a vehicle allegedly stoned. They stopped and fired their guns shooting the deceased fatally and he died as a result.

Held
Deceased dead by gunshot
Three Accused armed with guns each
No other hypothesis other than guilt
Aiding abetting
Guilty of wilful murder

Cases Cited 
The State v Garitau and Bonu, [1996] PNGLR 48 
The State v John Jaminan [1983] PNGLR 318 
The State v Kwapena [1978] PNGLR 316 
The State v Nimagi [2004] PGSC 31; SC741 
The State v Paul Kundi Rape, [1976] PNGLR 96
The State v Pawa [1981] PNGLR 498 
The State v Wani [1979] PNGLR 593 

Counsel

E, Kave & M, Tamate, for the State
D, Kari, for Jack Pipilak & Blaise Watakapura
B Takua, for Hillary Someri
		
VERDICT
13th May, 2019 
1.	MIVIRI J: 	This is the verdict of three policemen who allegedly shot and killed the deceased.

Charge

2.	They are all charged pursuant to Section 299 (1) of the Criminal Code Act of Wilful Murder which reads:

(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.
3.	They were together in a Police hired vehicle KAI 213 on the 6th May, 2017 at Sarakolok Section 4. Jack Pipilak was the driver he braked and reversed the vehicle when a hard object hit the side of the vehicle. Clive Nick Sitban was on the side of the road. The accused shot him with a gun through his chest and his stomach. He suffered heavy blood loss and died. They intended to kill him. And aided and abetted each other in killing him.

4.	At the start of the trial, counsel for accused applied to have a second counsel represent accused Hillary Someri because he gave instructions that conflicted one accused blamed the other two for the death. The application was granted with the insertion of second counsel and the trial proceeded. 

5.	A second matter that was raised by counsel for accused Blaise Watakapura without evidence and supporting material was that he was not mentally composed for the trial to start.  Section 569 was relied. It was baseless there was no evidence.

Evidence by Consent

6.      Trial started by the tender of all evidence by consent marked with Exhibit number as follows;-

(a)	Exhibit S1 Statement of Ian Magiten dated the 19th May 2017.
(b)	Exhibit S2 statement of Correctional Services officer David Kambus.
(c)	Exhibit S3 statement by Anton Yauyapi of finding at the scene of the shooting and giving to OIC CID on the 8th May, 2017 a used shotgun shell red in colour and brass basement 
(d)	Exhibit S4 hand written evidence of Everlyne Kekun raking around 2 meters from the place where Clive Yuanis fell down finding an empty shell of a cartridge from a gun on the 11th May 2017, at about 9.00 to 10.00am.
(e)	Exhibit S5A was a photograph of an empty 5.56mm shell and Exhibit S5B was the same empty 5.56mm shell at a distance back.
(f)	Exhibit S6 notification of death prepared by one sister Norman of Clive Mund of Sarakolok dead on arrival at 10.30pm the 6th May 2017  Kimbe General Hospital.
(g)	Exhibit S7 is consultation from the Kimbe General Hospital prepared by Sister Norman to Health Extension officer Ketalu detailing that deceased was brought in by Warder Team. He has gunshot on the left lateral chest and has protruding organs hanging outside lying flat on the trolley unconscious/dead. Vitals were taken with no reading. This witness urged the health Extension officer to come and see the deceased. She covered the wound with gauge. She noted that it was possible there were two more victims to come. She then in big letters wrote emergency and Urgent.
(h)	The next Exhibit S8A affidavit dated 10th August 2017 of Doctor Lawrence Warangi of the Kimbe Provincial Hospital deposing that he examined the body of Clive Nick Sitban deceased. He conducted a post mortem on the body and concluded he died of anoxia, massive blood loss due to penetration of the chest and abdominal wounds causing injuries to his right lung, diaphragm, liver and large intestine. 
(i)	Exhibit S8B is second affidavit of Doctor Lawrence Warangi of the Kimbe Provincial Hospital attaching the post mortem report of examination done 25 days after death exhibit S8C. Notably this report notes under the heading external injuries, fractures, penetrating wounds- right chest and abdomen fractured ribs right 6th 7th 8th on the deceased. The pleurae, pleural sac and lungs there is right heamothorax with three litres of blood within. On oath the doctor stated this was the result of trauma. And further there is penetration at the 7th intercostals space about 4 cm with protruding large intestine and there is 2 litres of blood in the abdominal cavity. The liver and the gall bladder are completely smashed. And there is perforation of the right hemi diaphragm. And the Doctor concluded that all injuries are incompatible with life. Death will not be avoided as did happen here. 
(j)	Exhibit S8D is the medical certificate dated the 1st June, 2017 by Doctor Lawrence Warangi stating the cause of death as set out in earlier. 
(k)	Exhibit S9 statement of Oscar Tobing officer in charge criminal investigation Kimbe deposing his initial investigation identification of witnesses collection of evidence: 

(i)	Exhibit S9A 1 unused slug cartridge (red); 
(ii)	Exhibit 9B 4 unused slug shotgun cartridges (red);
(iii)	 Exhibit 9C empty shell; 
(iv)	Exhibit S9D 1 empty shotgun shell, 
(v)	Exhibit S9E 1 empty 5.56 shell; 
(vi)	Exhibit S9F a Mossberg pump action shotgun serial number K661374; 
(vii)	Exhibit 9 (G) a armsco Pistol grip pump action shotgun serial number A134402; 
(viii)	Exhibit S9H is statement of Maxwell Barai 
(ix)	Exhibit S9I was the Spotter A2 rifle serial number ST008141.
(x)	Exhibit S9J was the Armsco Pistol Grip pump Action shotgun serial number A1344042.
(l)	Exhibit S10 statement of Maxwell Barai dated the 22nd August 2017
(m)	Exhibit S10A photograph of test fired Armscor Pump action shotgun did not fire the two exhibited cartridges.
(n)	Exhibit S10B is identification of fired 12 Gauge cartridge case of the Remington Pump action serial number K661374 on the left is the test fired case on right is the exhibited fired 12 gauge collected at scene of shooting.
(o)	Exhibit S10C is the identification of the fired 5.56mm cases on the left is the exhibit fired case collected at the shooting scene and the right is the test fired case fired from the Colt sporter rifle serial number ST008141.
(p)	Exhibit S10D is the handwritten notes ident Remington shotgun and Ident rifle. 
(q)	Exhibit S11A is the three weapons from Exhibit S9F to S10D
(r)	Exhibit S11B is the Colt sporter A2 serial ST008141
(s)	Exhibit S11C is the plate inscription of Colt Sporter rifle A2 serial ST008141.
(t)	Exhibit S11D is the Remington Pump Action serial number K661374.
(u)	Exhibit S11E is photograph of the Armsco Pistol Grip Pump Action with serial number A1344042.
(v)	Exhibit S11F is the same Armsco Pistol Grip Pump Action with serial number A1344042.
(w)	Exhibit S12A is the plate on the Armsco Pistol Grip Pump Action with serial number A1344042.
(x)	Exhibit S12B four red slug cartridges (unused) collected on 7th May 2017.
(y)	Exhibit S12C is 1 empty red bullet shell collected at crime scene7th May 2017.
(z)	Exhibit S12D shotgun shell collected by accused Yvonne Kumasi at crime scene on 6th May 2017.

7.      Exhibit S12 E is 5.56mm bullet shell found at the crime scene by Police 11th May 2017.

8.     Exhibit S13A, S13B, S13C, S13D, S13E, S13F and S13G are various photographs of the deceased Clive Nick Sitban taken of the extent of his injuries firstly from his back and then frontal zooming in on the stomach and the chest where the contents of the stomach have come out from the gaping hole and the chest with a large diameter hole one small and one big.

9.      Exhibit S14 is a sketch map of the scene where the allegation took place describing the road where the accused were packed on the road and the identifying witness to the deceased across the road.

10.      Exhibit S15 is statement of Fidelis Gabe corroborating officer in the record of interview of Hillary Someri.

11.    Exhibit S16 is statement of the arresting officer Detective Senior Constable in this case.

12.    Exhibit S17A is the record of interview of the accused Jack Pipilak conducted on the 10th July 2017 the English version.

13.   Exhibit S17B is the pidgin original record of interview of the accused Jack Pipilak of the 10th July 2017.

14.     Exhibit S18A is the English translation of the record of interview of the accused Hillary Someri dated the 06th July 2017.

15.      Exhibit S18B is the pidgin original record of interview of the accused Hillary Someri dated the 06th July 2017.

16.       Exhibit S19A is the record of interview English translation of the accused Blaise Watakapura dated 06th July 2017.

17.      Exhibit S19B is the record of interview Pidgin Original of the accused Blaise Watakapura dated 06th July 2017.

18.  Exhibit S20 is the report of death to coroner dated the18th May 2017.

19.     Exhibit S20A is the initial report to the Coroner dated the 19th May 2017.

20.    Exhibit S21 is direction to the Medical Superintendent to conduct a post mortem signed by Coroner dated the 19th May 2017.

21.     Exhibit S22 is the statement of Accused Jack Pipilak dated the 08th May 2017

22.     Exhibit D1 is the affidavit of Probationary Constable 15733 Blaise Watakapura dated the 25th January 2019.

Facts established by evidence tendered

23.      Both Defence and State have essentially by their admission agreed in essence that these facts are established; on the 06th May, 2017 Jack Pipilak was the driver of Police hired vehicle Toyota Land cruiser ten seater registered number KAI 213. He drove to Lakiemata Corrective Institution at 7.00pm. There he was playing darts and drinking beer at the residence of CIS officer Sergeant David Kambus until 9.30pm. Together with offsider Constable Hillary Someri, Kialo Lukas, a warder, Constable Yvonne Kumasi, Probationary Constable Blaise Watakapura and a civilian one Melisha Dalman they left after the first police marked vehicle driven by Senior Constable Pepe. They were assigned in the Task Force with CIS personal to recapture prison escapees.  He was observed to be very drunk when he drove off. It would appear that he was not the only one drunk, all three accused were drunk or did consume some alcohol. At the junction of Sarakolok Section 3 and 4 there was a loud bang at the top back of the vehicle. He braked the vehicle, reversed back and came out of the vehicle. He went to the front of the vehicle and discharged three shots from the Remington Pump Action Serial Number K661374 into the air. Then Blaise Watakapura saw the deceased Clive Nick Sitban ran off, he gave chase accompanied by Hillary Someri. The latter fired his weapon Colt Sporter A2 serial ST008141 as they were chasing deceased in block. They caught him when he stumbled and fell. He covered Hillary Someri who searched him discovering that he was injured so they brought him back to the vehicle where they loaded him and rushed him to the Kimbe General hospital, left him at the Accident and Emergency. At about 11.30pm they heard that he was dead.

Issue

24.     Who caused the injuries to the body of Clive Nick Sitban leading to his death?

Sworn Evidence

25.      The first witness from Kimbe General Hospital Doctor Lawrence Warangi Surgeon holding a Bachelor of Medicine and Surgery and Master of Medicine and Surgery practising for 30 years as a surgeon confirmed the medical evidence set out above. He said the penetration of the body of the deceased was from the outside by a circular or round object with a circumference not a knife or an axe. There was more than one front penetrating wound from a diameter ½ circumferences. It could have been a gunshot wound most likely and highly possible. The force used was not similar to a car crash as the 6th 7th 8th right ribs were fractured. It was a large penetrating force and there was no exiting wound. The skin was an elastic organ and allowed.

26.      Second witness was Kialou Lukas, a CIS Officer who had felt sick 6th May, 2017. He asked for assistance to be dropped off along the way at Sarakolok Section 4 and got on the vehicle with the Accused. The Deceased was standing at the Junction and something hit the vehicle. We reversed back and the head light of the vehicle was on. Deceased was on the left hand side of the road crew side of the vehicle. Vehicle stopped Jack Pipilak went out with weapon told the Deceased to stop and discharged three shots into the air. He was in the middle of the headlights when he discharged the gun. Hillary went out from the off side seat with the weapon. Deceased heard gunshots and ran into his block at the base of a flower. Hillary and Blaise chased after him. As they chased him four shots were fired. Less than one minute when shots were fired. Hillary pulled the Deceased out to the road a minute after the shots were fired. At this time Blaise Watakapura was with Hillary and they both came out together. Jack Pipilak went and met them and came back out in front of them to the vehicle. After shots they dragged the deceased body out to the road. They put the body in the car and we went to the hospital. I saw that his intestines came out and were exposed. He was struggling to breathe and ready to die. There was no other person on the road except the Deceased. There were no other persons apart from the three Accused. There were six of us in the vehicle Jack, Hillary, Blaise, Melisha, Yvonne, and myself. Weapons they had were 1AR15 semi auto, one pistol grip shotgun, and I Winchester. Deceased did not have any weapons. He was just standing on the side of the road. At the hospital Accident and Emergency the body was taken in by Jack and Hillary. When I saw them at Lakiemata they were drinking beer and playing dart for two hours. 80 to 90 precent alcohol was taken by Jack Pipilak, Hillary Someri and Blaise Watakapura.

27.     Next witness was Melisha Dalman originally from Manus and Popondetta Grade 12 student at Trinity Secondary School recalls the 6th May, 2017 when Yvonne Kumasi came and told her to go and play bingo at the house of Mr Bunga. She was there until the Accused Jack Pipilak, accompanied by Hillary and Blaise came and picked her with Yvonne Kumasi and then they drove up to Lakiemata CIS where they played dart and drank beer. At the bend Section 4 junction there was a noise we reversed in the light I saw the Deceased who was not holding anything and Jack got out and fired. As soon as vehicle stopped Hillary and Blaise within seconds came and chased. They ran before Jack fired shots. I put my head down. I heard Jack fired three times and Yvonne collected the shells and I heard shot fired in the block. Two ran in Hillary and Blaise. Both were armed with guns also. About a minute later I heard voice of Hillary open the door. They opened the door either Yvonne or Kialou. They told me to put my head down as if I look up I would be scared. Then we drove to the hospital left the body there and then went and reported at the police Station. 

28.      The next state witness was Bosco Swambun from East Sepik Province who worked with the Bank of South Pacific. He lived at Sarakolok Section 4. On the night of the 6th May, 2017 at about 9.30pm to 10.00pm he observed a vehicle on high speed from Togulo then stopped. It was a white ten seater. It reversed back and three shots were fired by a tall person who was Jack Pipilak. He made the observation from 10 meters opposite where the Deceased was. The Deceased was 5 meters from the man with the gun. On the sketch map exhibit S14 he marked out with an “X” where he was across the road looking at the vehicle straight to the other side where the deceased was, he placed, “D” on it indicating. From this observation Jack Pipilak would have faced him face on traced out along the front of the vehicle stand in front of the vehicle and fire. He would be exposed in full view by the head lights of the vehicle and the observation by this witness would be very good supported by the full moon further illuminating. It was a distance of 5 meters to the gunman and 10 meters to the deceased on the other side of the road.

29.     The witness knew Jack Pipilak very well because for banking runs they engaged him. And saw him get out of the vehicle fired his weapon at the Deceased who was standing. After the shots were fired his wife Yvonne Kumasi went out and collected the shells from the shots. There were three shots in all fired at the Deceased who was about 5 to 6 meters from him when he fired directly at the Deceased not into the air. Deceased was on the crew side of the vehicle. He pointed the gun straight at the deceased swearing and fired at him. He did not fire into the air. Deceased was hit by the bullet and ran. Prior to the gun firing it appeared that the Deceased was not expecting what was going to happen as he was not running away, he was just standing. It was clear Jack Pipilak shot the Deceased. Yvonne wife of Jack called out to some boys who appeared to follow. Because as soon as he was hit he ran into the block and he was pursued and dragged from there where he had fallen about 10 meters at the side of the house. There were a total of three shots outside and two inside the house where he was pursued in. The Body was brought back where the flower was I did not see by whom and I heard some body calling, “Daddy oh, Daddy Oh.” I know the deceased and his family as I lived there for 8 years. I used to live with them and come to work. They are like my family.

30.      I picked up a live shot and gave it to CID next morning from there. It was about 10 minutes when the vehicle came. I was alone and there was no one there. I did not hear anything before it stopped. I believe it bumped the stone that we had painted and put at the side of the road to indicate the corner for it to turn. I did not hear any stone hit the vehicle. It reversed back 5 or 6 meters with its headlights still on and I was on the driver’s side and deceased was on the crew side on the other side of the road. Jack and the Deceased were face to face and it was clear that he shot the Deceased.

31.      The next witness that the State called was Simon Sengiramo from Sepik who resigned on medical grounds from New Britain Palm Oil Limited. On the Saturday 6th May, 2017 he was at the Block 856.He knew Clive Nick Sitban, as he would refer to him as son from the father’s side and uncle from mother’s side. Police shot him. On that night 9.30pm he came and saw me. I asked him and he said the bus had left him at the side of the road Elcom Junction and he had walked to visit us at the house. A police car came past and hit the market table. It was a 10 seater blue colour.

32.      I considered his safety and asked two boys to leave him at his house. They said they did. Then there was a white 10 seater on high speed 120 or 140 miles per hour. I was afraid and stood up at the house and heard 5 gunshots at block 860. I ran down to the house and saw the vehicle reversed back. I saw the door open and two policemen lifted a person and put him into the vehicle. One was tall and the other short. The distance is about from the witness box to the market about 100 to 150 meters. I saw this in the tail light and the reverse light of the vehicle. They put the body and took off. I went down to check and thought the police must have shot the small fellow Clive. The family torched and found Clives face towel and tongs. There was a nurse amongst us who rang the Kimbe General hospital confirming that there was a boy brought in from Sarakolok. We arranged for a vehicle went down that night to the hospital and confirmed that it was him Clive Nick Sitban. He was dead. We came to the Police Station and checked the occurrence book that if it was a suspect of armed robbery. We then went back wrapped the body and took it to the morgue. Clive walked back to his own house he was alright he only had a small billum. 

33.      The next witness was Senior Sergeant Maxwell Barai of the Forensic Science Centre Gordons who served the Royal Papua New Guinea Constabulary as a crime scene examiner for 18 months initially, 6 months in basic photography use of the camera and dark room techniques, 5 years as Firearm and tool mark examiner conducted under the supervision of the senior Firearms examiner Senior sergeant Joseph Numbos. He had served a total of 27 years in the Royal Papua New Guinea Constabulary. On the 17th August 2017 he received through the National forensic Science Liaison office 2 pump action shotguns, first a Remington Pump action shotgun Model 500A Calibre 12 gauge serial number K661374, second was an Armscor Pistol grip pump action shotgun model 30 Calibre 12 gauge, serial number A1344042, a Colt Sporter Rifle model target Calibre -223mm- 5.56mm serial number ST008141. He also received an empty shotgun shell found at Sarakolok on the 7th of May 2017 by one Anton Yauyapi and given to police on the 8th of May 2017. And also the 5.56mm shell found at Sarakolok section 4 block 560 the scene of police shooting found on the 11th May 2017 by Everlyne Kekun. He received too in separate envelopes each 12 gauge fired cartridge shells there were together a total of two. In another he received four live 12 gauge shotgun cartridges.

34.      He test fired the Remington Pump action shotgun Model 500A Calibre 12 gauge serial number K661374 and concluded that fired exhibited 12 gauge shotgun cartridge against the test fired all had similar class and individual characteristics and were ident.

35.      In similar fashion he test fired the Armscor Pistol grip pump action shotgun model 30 Calibre 12 gauge, serial number A1344042 and concluded that the 12 guage exhibited cartridge sent him for comparison had different class and individual characteristics were not ident.

36.      But he concluded that the exhibited fired 12 guage shotgun cartridge shell sent him compared with the test fired was fired from Remington Pump action shotgun Model 500A Calibre 12 gauge serial number K661374.

37.     And similarly the exhibited fired 5.56mm sent him for comparison matched the test fired from the Colt Sporter Rifle model target Calibre -223mm- 5.56mm serial number ST008141.

38.     In simple everyday language both these guns except for the Armscor Pistol grip pump action shotgun model 30 Calibre 12 gauge, serial number A1344042 were fired at Sarakolok section 4 on the 6th May 2017. This was consistent with the evidence of both accused Jack Pipilak and Hillary Someri in defence which I will outline shortly. From the evidence in total there were three shots by Jack Pipilak and two as deceased was chased by Hillary Someri.

39.     He went on crucially to opinion after viewing the injuries of the deceased that it was possibly from a shotgun at close range. And he agreed that 5 to 6 meters was very close. It was point blank range. That the range of the Remington pump action shotgun was 50 meters. And that the damage done at close is very big. It could be possibly liked something like this but exit wound possible. And that if the pellets hit the body he would cry out at the same time.

No case submission Hillary Someri

40.      This was the formal closure of the State case. Defence counsel for Hillary Someri made a no case submission no doubt relying on Paul Kundi Rape, The State [1976] PNGLR 96 which was overruled in the light of all the evidence set out above. He did not state by which leg he was making the application. But even if both legs were pursued it could not succeed. He was a party to the offence prima facie. He fired with the Colt Sporter Rifle model target Calibre -223mm- 5.56mm serial number ST008141 when principle Jack Pipilak fired. He chased after the deceased and together with Blaise Watakapura brought him back. He did not stop what was happening and assisted in its course he was a principle offender prima facie he had a case to answer because he could be lawful convicted at the end of the state case.

Defence Case

41.      Jack Pipilak constable in the Royal Papua New Guinea Constabulary in defence said on the 6th May 2017 he was driving a police hired vehicle KAI 213 from Lakiemata heading to Buluma at 10.00pm. There were three other police personal in the vehicle, Hillary Someri, Blaise Watakapura, and Yvonne Kumasi. Also in the vehicle were a CIS Officer Kialou Lukas, and a civilian one Melisha Dalman. At the sharp corner of section 4 Sarakolok he slowed down to take a turn there was a very big bang at the back so he braked and reversed the vehicle. Then he came out with his gun pump action Remington and discharged three rounds into the air. He then came to the vehicle and stood by its side. It was night time and we were on duty to get escapees who ran away from CIS. I got into the vehicle as Hillary and Blaise had got the suspect so we drove off. At the time that I fired Yvonne collected all the shells to get new rounds upon presentation. We drove straight to the hospital and left him there. He was still breathing. When I discharged the gun I was on the right side front tyre. There wasn’t anyone around I pointed into the air not horizontal.

42.      In cross examination he confirmed that when his life was in imminent danger would he fire the gun. Asked if his life was in imminent danger he said it was night time. And it was important to fire the gun. He agreed that he swore at the time that he discharged the weapon. That Hillary and Blaise brought back the deceased to the vehicle. He was injured so we took him to the hospital. He denied that he told the nurses at the accident and emergency that the deceased shot at them and so was shot. When he was produced State exhibit S22 statement that he made. He denied it stating that he did not say that when the deceased was apprehended he had a homemade gun on him. That it was not the truth he had made that story up. That the story to the court was the truth. He said he and Hillary may have fired at the same time.

43.      Blaise Watakapura was the next witness in defence he said he could recall what he wrote of incident and produced defence exhibit D1 affidavit that he made dated the 25th January 2019. In it he stated that as they were passing Sarakolok section 4 there was a loud bang he noticed that the vehicle slowed down as the driver must have heard it too. Because he reversed back to the suspected area. There the driver and the off sider got out to investigate all of sudden there was gun fire. He ducked for cover and heard that his comrades were engaging in fire. He grabbed his Armscor Pistol grip pump action shotgun model 30 Calibre 12 gauge, serial number A1344042 opened the back of the vehicle and jumped out. He noticed the suspect was fleeing about 10 meters away he gave chase and called out police you stand there. He was accompanied by Constable Hillary Someri. For about 26 meters the suspect stumbled and they apprehended him. He kept in check whilst Hillary Someri searched out the suspect. Since suspect could not walk we used reasonable force to drag him to the vehicle and from the rear lights of the vehicle noticed that he was wounded so we boarded him and rushed him to the hospital arriving 10.08pm. We carried on with our duties and were informed that he had died around 11.30pm.

44.      Constable Hillary Someri in defence said he was a policeman for 4 to 5 years now. On the 6th May 2017 he was in the vehicle that was driven by Jack Pipilak on the crew side in front. He also recounted similar details that there was a loud bang at the back of the vehicle that forced the driver to slow the vehicle and reverse back. Then as the driver went out of his vehicle and discharged his weapons he did likewise on his side. He also fired three times into the air. There was a dark figure on the side he ran into the block followed by Constable Blaise Watakapura. I ran after him and fired shot. He ran and fell I followed him and got him. It was about 14 meters to where we got him. He fell face down. I searched through him and saw he had injury on his right side so took him out opened door placed him in vehicle and rushed him to hospital.

Assessment of Evidence

45.      I assess that there is no issue that on the 6th May 2017 Clive Nick Sitban was well and healthy. By 10.08pm he was rushed by Police hired vehicle driven by Jack Pipilak to the Kimbe General Hospital. There he was initially observed by one Sister Norman as been brought in by Warder Team not a police team. He has gunshot on the left lateral chest and has protruding organs hanging outside lying flat on the trolley unconscious/dead. Vitals were taken with no reading. This witness urged the health Extension officer to come and see the deceased. She covered the wound with gauge.

46.     On 31st May 2017 some 25 days from this initial consultation observed by Sister Norman a post mortem examination was done and report compiled by Doctor Lawrence Warangi particulars set out above. Primarily he said a round object penetrated to cause the amount of injuries that it could have been a gunshot wound most likely and highly possible because of the circumference and the elasticity of the skin as an organ. He is a professional schooled in his field with 30 years experience unrelated to anyone before the court either from the State or defence. I accept his evidence in full without any reservation and hold as the truth what he gave before the court.

47.     His evidence ties in well with the evidence of the next state witness Senior Sergeant Maxwell Barai of the Forensic Science Centre Gordons who confirms that the Remington Pump action shotgun Model 500A Calibre 12 gauge serial number K661374 (Remington Pump Action shotgun) and Colt Sporter rifle A2 serial ST008141 (Sporter A2 rifle) were fired at section 4 Sarakolok because of the collected spent cartridges there that have been compared and confirmed with the test fired. For the latter weapon 5.56mm collected by Everlyne Kekun on the 11th May 2017 handed to Oscar Tobing and then to this witness. Both weapons were discharged at the scene section 4 Sarakolok on the night of the 6th May 2017. One weapon Remington Pump Action shotgun was in the possession of Jack Pipilak who admits discharging from around to the front of the ten seater vehicle but into the air three times. This is where the empty shells are collected by Constable Yvonne Kumasi wife of this accused. The next weapon Sporter A2 rifle is in the possession of Hillary Someri who admits discharging from the crew side but into the air.

48.      It is worth noting at this juncture that the deceased is across the road 5 to 6 meters from where Jack Pipilak is from the evidence of Bosco Swambun. The firing of the Remington Pump Action shotgun by Jack Pipilak sets the deceased to start running triggering Hillary Someri and Blaise Watakapura to pursue after him. Notably no spent shells of 5.56mm are found at the road and immediate area where the former is said to have fired his Sporter A2 rifle but into the block where the witness Everlyne Kekun evidence details. It is reasonable to assume and to hold from the evidence of both Kialou Lukas and Melisha Dalman that Sporter A2 rifle was fired in the block on pursuit of the deceased by Hillary Someri. 

49.     Both do not state that Hillary fired his weapon outside the crew side of the vehicle after Jack Pipilak. None of others within the vehicle so state including Jack Pipilak who is in the front of the vehicle facing him as he fires. Because he comes out of his crew side and fires does not move and fire. So if he was as he is Jack Pipilak no doubt would have seen him. It is safe to hold and to find that only person who fired his weapon immediately outside the vehicle was Jack Pipilak not Hillary Someri as there are no corroborating evidence. He is an accused person he must have independent corroborating evidence materially confirming what he is asserting. It would be safe to reject the assertion that he makes of firing the weapon Sporter A2 rifle immediately outside there. And to find that it was fired when he together with Blaise Watakapura were pursing the deceased in the block evidences of Kialou Lukas and Melisha Dalman. The sketch plan shows the vehicle on the road and no doubt any 5.56mm shell would be found on the road. The evidence is that all three accused are heavily intoxicated by alcohol from the evidence of Kialou Lukas and their observation is impaired by that fact compared to Bosco Swambun and Simon Sengiramo whose evidence I prefer over that of the accused. They are sober observing though related to the deceased are independently corroborated by the other evidence set out in this judgment. The direction of the gun posed to by Kialou Lukas, Melisha Dalman Harry Someri and Jack Pipilak are not independently corroborated. Both the former two witnesses are seated inside the vehicle, the latter two are co accused of this matter, there is no corroborating account to verify their version of the direction of the gun. It is not safe to hold in accordance with their version and I reject their evidence for these reasons and accept the evidence of Bosco Swambun.

50.      The evidence of all these witness in total do not paint the picture of Kwapena v The State [1978] PGSC 4; [1978] PNGLR 316 (1 September 1978) that they were faced with a deadly situation where right or wrong was not the excuse but one of self preservation from immediate and pending threat to life and limb. In other words they had to act as they did to save their lives or the lives of those around them. Echoing the evidence of Jack Pipilak their life and limb was under threat could they use firearms or force to repel or stabilize. When Jack Pipilak comes out of the vehicle he is not stoned or fired with missiles so that he had to do what he did to save himself and those in the vehicle. The deceased is observed to be standing on the side of the road. There is no evidence that he was armed and threatening with a deadly weapon. All witnesses agree that there was a loud bang at the back of the vehicle. Bosco Swambun says deceased acted as if he was not aware of what was coming to him because he was merely standing. This evidence is aligned with common sense because when a person attacks and is responded to he takes precaution to protect. So given these facts the firing of the gun by Jack Pipilak was unwarranted and uncalled for. It was not justified in law to fall within the terms of law that he was acting to save himself and those around him. This is clear that he was on the upper hand because after he fires the deceased is pursued by both Hillary Someri and Blaise Watakapura. And the evidence of Bosco Swambun shows Jack Pipilak deliberately aiming the Remington Pump Action shotgun at Clive Nick Sitban and fires hitting him. There is no reason to doubt this witness he is close to Jack Pipilak who is posed in front of the head lights of the vehicle and also in full moonlight. The distance is 10 meters and 5 to 6 meters to the deceased. The description as pointed out in the sketch plan makes it even clearer. There is no reason to doubt this witness and the veracity of his evidence. I hold him to be a witness of the truth having observed his demeanour and the way he gave his evidence. He was unshaken and remain intact in his evidence although out.

51.      On the other hand Jack Pipilak has two stories one initially to Police in a statement exhibit S22 dated 8th May 2017 which is 2 days after the allegation. Events were fresh in his mind. But that evidence is not consistent with the totality of all evidence before me. There is no evidence of a gun fire a flicker fire to which he responded. Nor is there any retrieval of the homemade pop gun and empty cartridge shell which have been produced in defence. And that is the false report he with the other accused entered in the occurrence book from the evidence of Simon Sengiramo. In order words there are no facts to justify the use of the gun by Jack Pipilak upon the deceased there and then. All the evidence do not show this out that the life of Jack Pipilak and all others in the vehicle were in immediate danger either of death or injuries to body. The effect is that this is a deliberate lie that has been told out of a conscious sense of guilt, that is he has shot a man without cause in law and is seeking to cover up for that wrong by telling this deliberate lie. He corroborates state account: John Jaminan v The State [1983] PNGLR 318 (29 September 1983). That he did not shoot into the air but deliberately aimed the Remington Pump action shotgun Model 500A Calibre 12 gauge serial number K661374 at Clive Nick Sitban who was facing him. That is why he sustained the injuries penetrating at close range on the right side of the chest and the stomach causing the contents of the stomach to come out. That is consistent with Maxwell Barai stating that the injury was possibly by shotgun at close range. And 5 to 6 meters was point blank range a lot of damage was anticipated given the range was 50 meters. The medical report is self explained in this regard. Causing him to run and to be pursued by Hillary Someri and Blaise Watakapura into the block. Hillary Someri fired but does not injure there is no injury penetrating from the back found by the Doctor. This gunfire is heard by the witnesses in the vehicle and Bosco Swambun and Simon Sengiramo. Hillary Someri never fired his gun from the crew side of the vehicle simultaneously. This is again a deliberate lie that has been concocted out of a conscious sense of guilt by the accused Hillary Someri corroborating the version of the state witnesses. Because 5.56mm shell is found in the block by the evidence of Everlyne Kekun. Both the records of interviews of this accused and the former Jack Pipilak do not contain evidence that will assist extend their defence in any way. Hillary Someri no doubt from the off sider’s crew position saw what Jack Pipilak did in shooting the deceased. It was an unlawful act. He did nothing to stop him. Rather he assisted by deliberately telling a lie supporting him to cover his unlawful actions. Therefore within the meaning of Wani v The State [1979] PNGLR 593 (30 November 1979) he has actively participated in the crime. His presence is not relied on but his active participation in it. He chased the deceased and brought him back to the vehicle and to the hospital did not there and then reveal but has continued to detain the truth. Circumstantially Pawa v The State [1981] PNGLR 498 (27 November 1981); Garitau and Bonu, The State v [1996] PNGLR 48 (8 July 1996) there can be no other reasonable hypothesis other than the guilt of this accused.

52.      Blaise Watakapura tailors his evidence carefully by the written affidavit that is dated the 25th January 2019. Like Hillary Someri He is present where Jack Pipilak shoots the deceased. It is a criminal action because of the reasons set out above. It is not police duties by law. He is seated at the right rear of the ten seater,  he describes the driver Jack Pipilak and Hillary Someri going out to investigate but he remains inside. Both go out with guns it was a sudden stop because of projected object that had hit the vehicle. He was alert to this but says the gun was fired suddenly. He could not have ignored the other details of his co accused going out and come in with the chase of the deceased. His facts are not likened to Nimagi v State [2004] PGSC 31; SC741 (1 April 2004) where he is at another part of the crime scene not aware of what the other two co accused are doing so that he is not within that net. He reacts by pursuing the deceased with Hillary Someri into the block and brings him back only to find him injured and so with the other rushes him to the hospital. He was at the scene but has not readily divulged the truth. Rather he has tailored his evidence to smother the truth. He has done this knowingly considering the totality of the evidence. In my view he fills out as an aider and abettor within section 7 of the Code. He knows it is not an armed robbery but goes along that as recorded in the occurrence book.

Findings of Fact

53.      I find as a fact that on the 6th May 2017 Jack Pipilak stopped and reversed the Toyota Land cruiser ten seater registered number KAI 213 about 5 or 6 meters then get out of it with the Remington Pump action shotgun Model 500A Calibre 12 gauge serial number K661374 pointed and fired at Clive Nick Sitban hitting him in the right chest and the stomach causing him to run into the block.

54.      I find as a fact that the actions of Jack Pipilak in firing his weapon three times at the deceased were not excused by law. He was not acting in self defence but intended to kill Clive Nick Sitban and did kill him.

55.     I find as a fact that Hillary Someri and Blaise Watakapura got out of the vehicle and pursued him with Hillary Someri firing his weapon 

56.     Clive Nick Sitban stumbled and fell because he was already injured when shot by Jack Pipilak that is why he could not walk on his own accord back to the vehicle but was dragged by Hillary Someri and Blaise Watakapura back to the vehicle.

57.     I further find as a fact that the actions of Hillary Someri and Blaise Watakapura details to which I have set out in law aided and abetted Jack Pipilak. They are principle offenders within section 7 and 8 of the Criminal Code.

Verdict

58.     The verdict in law is Jack Pipilak of Tinganagalip, Gazelle, East New Britain and Hillary Someri of Saure Wewak East Sepik Province and Blaise Watakapura of Baliau, Bogia Madang Province are each and severally guilty of wilful murder of Clive Nick Sitban committed at Sarakolok on the 6th day of May 2017.

6.	All three accused are found Guilty of Wilful Murder.

Orders Accordingly
__________________________________________________________________Office of the Public Prosecutor      :  Lawyer for the State	
Office of the Public Solicitor        : Lawyer for the Defendant