N9565

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1328 OF 2018

BETWEEN
THE STATE

AND
ALEX KURI

Mt Hagen:  Toliken, J
2021:  13th July, 10th August, 2nd September
2022: 30th March

CRIMINAL LAW – Practice and Procedure – Particular offence – Wilful murder – Police shooting – Whether accused pursued, shot and killed deceased - Accused shot deceased – Whether killing unlawful – Killing unlawful – Whether killing was intentional – Intention to cause death not proved – Intention to cause grievous harm proved – Alternative verdict of murder returned – Criminal Code Ch. 262, ss 299 (1), 539(1).  

Cases Cited

Mako Ranjigi v The State [1994] PNGLR 44
R v Sigo Sasawari (1975) SC825
The State v Wanepe Warara [1977] PNGLR 458)
The State v Tony Emmanuel & Anor (No.1) (2012) N5124
The State v Dorothy Buku (2011) N5011
The State v Emmanuel Bai & Anor (2003) N2416

References Cited

Injia, S, Injia on Criminal Offences in Papua New Guinea and the Pacific, (University of Papua New Guinea Press and Bookshop 2013) 

Counsel

E Thomas, for the State
D Pepson, for the accused

JUDGMENT ON VERDICT

30th March, 2021

1.	TOLIKEN J:	The accused Alex Kuri stands indicted with one count of wilful murder pursuant to Section 299 of the Criminal Code (the Code).

ALLEGATIONS

2.	It is alleged that 13th August 2018, the accused was seen driving a White 5 Door Toyota Land Cruiser bearing the registration number LBM:830 in Banz Town Jiwaka Province. Between 6.00p.m and 6.30p.m he was seen parked on the roadside in front of Waghi Klos arguing with his wife before she drove off into her premises. They were in different vehicles. The accused was angry as he  drove out in the direction of the Jiwaka Mission Resort. He revved his engine as he drove out along the side of the road where a group of boys were standing. He drove at them causing them to jump to the side to avoid being hit. The deceased who was with the group was hit one the right side of his face by the accused’s vehicle causing him to fall. He got up bleeding and asked the accused “Bosman olsem wanem ya?” The accused told the deceased and his friends to stay there. He opened the door and came out with a rifle. Seeing this the deceased ran across the road. The accused ran after him and fired two shots at him. One of the shots hit the deceased on his back, penetrated the body and exited through his neck killing him instantly.

3.	The State alleged that when the accused pursued the deceased and shot him on his back, he had the intention of killing him and he had no lawful justification for doing so. At all material times the accused was a Probationary Police Constable.

PLEA
4.	The accused pleaded not guilty to the charge. He initially raised the defence of provocation against a provoked assault, but later changed his defence to one of general denial. 

THE OFFENCE
5.	Section 299 of the Code provides for the offence of wilful murder as follows:

299.	WILFUL MURDER.
(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.
ELEMENTS
6.	The elements of the offence of wilful murder which the State must prove beyond a reasonable doubt are the accused:
1.	Killed a person.
2.	Without any lawful excuse.
3.	He intended to cause the death of that person.

THE ISSUES

7.	Since the accused traversed the charge the following issues fall for determination:

1.	Whether the accused killed the deceased.
2.	Whether he intended to kill him.
3.	Whether the killing was unlawful.

	THE EVIDENCE

8.	The State called the following four witnesses out of a total of 20 witnesses:

1.	Ginga Herman
2.	Du Maine
3.	Inspector Michael Kapal
4.	Sergeant Levi Mangole 

9.	The State also tendered the following documents by consent.

No	Description of Exhibit	Exhibit Number	
1	Statement of PPC Piamia Horim dated 6th Sept 2018	A	
2	Statement of Inspector Michael Kapal dated 30th August 2018	B	
3	Statement of Senior Insp. Marangi Kauga dated 20th August 2018	C	
4	Statement of Sgt Moses Pain dated 28th August 2018	D	
5	Statement of Tibau Jason dated 23rd August 2018	E	
6	13 x Photographs of deceased’s corpse taken at Post Mortem	F1 – F13	
7	15 x Photographs of crimes scene	G1 – G15	
8	4 x photographs of alleged murder weapon (rifle)	F1 – F4	
9	2 x photographs of vehicle registration & Safety Sticker 	H1 & H2	
10	4 x Photographs of vehicle used by accused	 J1 – J4 	
11	Medical Certificate of Death by Dr, Jon Gabriel	K	
12	Record of Interview of accused (Pidgin & English) 	L & L1	
13	Affidavit of Dr, Jon Gabriel dated 10th Sept 2018, annexing Post Mortem Report dated 21 August 2018 	M	

10.	The accused testified on oath but did not call any witnesses.

 	UNDISPUTED FACTS

11.	The accused was at the relevant time a Probationary Constable. He was as assigned to the then Acting Provincial Police Commander (PPC) Chief Inspector Piamia Horim as his Close Protection Officer (CPO) at the Jiwaka Provincial Police Headquarters at Banz.

12.	On instructions from Chief Inspector Horim the accused signed out a 5.56 mm caliber Korean made K2C rifle, Serial No. K003070 from the Police Armoury at Minj Police Station.

13.	On Monday 13th August 2018, a request was made to Chief Inspector Horim for a security escort for then Minister for National Planning, Honourable Richard and his delegation from Kagamuga Airport (WHP) to Banz. Chief Inspector Horim contacted Sergeant Ande Kurond, who was the Unit Commander for Kudjip Highway Unit 4 and instructed them to be on standby for this special task.

14.	At around 9.30a.m Chief Inspector Horim left Banz left for Kagamuga with the accused. At Kagamuga he was advised by Sergeant Ande Kurond at around 12.30p.m that the organizers of the Minister’s program had hired two vehicles and they needed someone to driver one of these. The other vehicle Registration No. LBU:642 was given to one Du Maine to drive.

15.	Chief Inspector Horim then instructed the accused to driver one of the vehicles, a white 5 Door Land Cruiser Registration No. LBM:830. He handed over the Korean made 5.56 mm caliber K2C rifle, bearing the Serial No. 003070 to the accused. Only the Minister’s First Secretary arrived on the mid-day flight while his Press Officer and CPO from the McGregor Barracks were to arrive on the 4 o’clock flight. Chief Inspector Horim therefore left for Jiwaka, leaving the accused behind with the others.

16.	 When the 4.00p.m flight finally arrived, the entourage left Kagamuga. Du Maina drove ahead. In his vehicle were the Minister’s First Secretary, Press Officer and others. In the accused’s vehicle were First Constable Malewa Gumu, the Minister’s CPO, A Senor Constable from McGregor Barracks and a member of the Mobile Squad.

17.	The left Kagamuga between 4.45p.m and 5.00p.m. They stopped briefly in the city for the Minister’s First Secretary to get somethings from the shop before heading off for Banz. They arrived at the Jiwaka Mission Resort, Banz, where the delegates were to be accommodated sometime between 6.00p.m and 6.30p.m. The Resort is about a kilometer from Banz Town. The accused dropped off his passengers and drove off into Banz Town with his gun to pick up his wife.

18.	The accused returned about 15 – 20 minutes later. He was with Du Maine when Du Maine received a call from his brother at their Kosem Coffee Factory which is next to Waghi Klos advising him that a policeman either shot or bumped a youth and that there was commotion in town.  Du Maine then drove the accused to the factory in the company of F/C Gumu. There he asked the accused to jump over the fence into his residence at the Waghi Klos premises.

19.	 The accused was surprise to find that his wife, her sister and their house girls were not at home, so he made his way through the back gate to get to the Police Station. He soon noticed that his vehicle was torched and was burning at the Bus Stop. At the Police Station he asked an officer to ring the PPC. He surrendered the gun to the PPC when he arrived. He was arrested the same night and placed in the cells at Minj. 

20.	An investigation was soon conducted by the police. Among those involved, was Sergeant Moses Pain, the Officer in Charge (OIC) of Crimes Scene Section at the National Forensic Science Centre, Gordons, National Capital District. He was a Crime Scene Examiner with 28 years of experience at the relevant time. He had completed a 1-year Crime Scene Examination Course at the State Forensic Science Laboratory in Melbourne, Australia.  The course included examination, recording, and photographing crime scenes and examination of items recovered at crime scenes.

21.	Sergeant Moses made a Statement dated 28th August 2018. He unfortunately passed away before the trial. However, his Statement (Exhibit D) was tendered into evidence by consent. 

22.	In his Statement, Sergeant Pain recalled being given a Korean-made high-powered rifle which he described as a 5.56mm caliber, 2KC, with Serial No. K003070 by Senior Inspector Kauga Maragel who was Staff Officer to the then Divisional Commander of Police, Assistant Commissioner of Nema Mondial in Mt. Hagen.

23.	Sergeant Pain took possession of the firearm and took photographs of it (See photographs numbered 1, 2, 3 and 4)

24.	It is instructive to reproduce Sergeant Pain’s Statement in full:

On Tuesday 21st August 2018, at 3.20p.m I attended to a Post Mortem conduct upon the body of a young male deceased at 	the Mt. Hagen General Hospital Morgue …
 
These are shown in photographs 5, 6 and 7.  

The deceased had two what appeared to be bullet wounds to his body.  The entry wound appeared to be from the middle back area below the shoulder and back. It was 0.5 by 0.5 centimeters.

These are shown in photographs 8 and 9.

The exit wound appeared from the front left side collar area below the neck.  It measured .09 by 0.9 centimeters.

These are shown in photographs: 10 and 11

The projectile appeared to have struck two rib bones and went through the liver and heart and sort of ricocheted though part of the backbone and exited through the foresaid area.  There were about 500 millimeters of blood inside the deceased body.

These are shown in photographs: 12, 13, 14 and 15.

There were other injuries to the deceased body. There were cuts to 	the right side of the deceased head, bruises to the right elbow, scathes to the left knee area and left fingers.

These are shown in photographs:  16, 17, 18, 19, 20, and 21.

On the 22nd August 2018, at 12.20pm I attended to the alleged scene to the above said shooting in Banz Town in Jiwaka Province. 	The alleged crime scene was to the Eastern side along the main 	road that runs East/Westly. The road heading towards the Western side heads to the main Banz Police 	Station of Jiwaka 	Province. 

The exact alleged scene area was along the main road approximately 100 meters East from the “T” road junction at the main shopping center of the 	Banz Township. The road then slightly descends from a slight slope and 	slightly curves northly to a bridge. A dirt road runs South from the main road at that top of the slight slope and this area was reported to be the alleged crime scene area.

These are shown in photographs:  22, 23, 34, 25, 26, 27, 28, 29 and 30.

I was shown the alleged position of the Policeman at the southern side of the road close to the junction of the main and dirt road (heading South).

These are shown in photographs:  31, 32 and 33.

The I was shown the alleged position of the deceased after being shot with a firearm. The was a [pile] of stones that indicated the position of the deceased on the side of the dirt road. The alleged positions of the Policeman and the deceased were 19 meters apart. 

These are shown in photographs: 34, 35 and 36.

On 27th August 2018, I examined the firearm (Item:1) allegedly used 	against the alleged deceased. It was a high powered rifle, factory 	made, 5.56mm caliber, K2C brand, serial number K003070 and 	Korean Made and Police Standard issue known as K-2. It was 78 	centimeters in length and in perfect working condition.

I refer to photographs marked: 1,2,3 and 4 again.

The firearm and the firearm magazine reportedly received separately are part of each other and are 5.56mm caliber.

The entry wound to the deceased body was consistent with 5.56mm caliber firearm.

The injury path from the entry to the exit wound appeared to have been the same projectile.

It appeared to have been a single 5.56 mm caliber bullet that penetrated and exited from the deceased body.

Therefore the firearm (Item one) and the injuries, especially the entry wound to the deceased body were consistent.

The distance between the alleged position of the Policeman and the 	deceased were quite effective shooting range. The position of the 	deceased when actually shot was not indicated suggests that it may have been prior 	to reaching the 19 meters, therefore appeared below 19 meters shooting distance.   
	
To conclude, the deceased appeared to have been shot by Police with a 5.56 mm caliber firearm, distance of below 19 meters and therefore Item 1, K2 	rifle appears to be responsible for the deceased’s murder.

25.	It is unclear though from Sergeant Pain’s Statement if a bullet was recovered in the deceased’s body during the autopsy or at the crime scene for that matter. Despite that, Sergeant Pain’s opinion - judging from the entry wound - that the deceased was shot with what appeared to be a 5.56mm caliber bullet, which was consistent with the firearm the accused had in his possession at the time of the alleged shooting was not disputed any way by the defence.

26.	The State also tendered the Post Mortem Report by Dr. John Gabriel. The autopsy was conducted on 21st August 2018. Defence counsel Mr. Pepson initially objected to the tender of the report. However, he relented after the court advised him that the report was very much relevant and may only be excluded from the evidence on very good grounds. He was also advised that he can always cross-examine the examining Dr. Gabriel. Counsel, however, did not call Dr. Gabriel for cross-examination, hence the report stands unchallenged.   

27.	The Post Mortem Report pertinently revealed the following observations –

	EXTERNAL EXAMINATION

	Head	 	- 	right facial laceration (superficial)
	Neck		-
	Chest 	-	Posterior Chest
•	Bullet entry wound at 3rd intercostal space measuring 	5mm x 5mm.

-		Anterior Chest 
•	Bullet exit wound at the anterior lower neck just inferior to the cricoid cartilage, measuring 0.8cm x 0.9cm. There is associated blast effects. The angle of trajectory is at 45º angle.
Abdomen 	-
Perineum	-
Limbs	-	Left hand dorsal surfaces bruises
-		Right posterior elbow bruises
	
INTERNAL FINDINGS
	
	Head 	-	
	Face		-	
	Neck		-
	Chest	- 	Inner right chest wall there is a fracture to 					the 3rd rib
	Lung		-	Significant blood collection in the right pleural 					cavity. The right lung also appeared collapsed.
-		The superior (upper) lobe of the right lung is 	hemorrhagic with a rugged wound through it.

28.	Except for a difference in the measurement of the entry and exit bullet wounds between Dr. Gabriel autopsy report and Sergeant Pains observations (which I would take to typographical more than anything else on the part of the latter) the two reports are complimentary.

FACTS IN DISPUTE

ISSUE NO.1: 	Whether the accused shot and killed the deceased.

29.	The following facts which have a direct bearing on whether the accused shot and killed the deceased are disputed:

1.	That the accused had an altercation with some youths including the deceased, who hit the accused’s vehicle and that of his wife and then swore at him. 
2.	That the accused chased the deceased and fired two shots 	directly at him and that one of those shots hit the deceased.
3.	That the deceased was nervous and agitated and sweating 	profusely when he arrived back at the Jiwaka Mission Resort.
4.	That he told Du Maine that he felt that he must have shot a 	youth. 

30.	A resolution of these disputed fact will directly resolve the issue of whether or not the accused shot and killed the deceased. 

31.	The relevant evidence on these matters is that of the State witnesses Ginga Herman (Herman) and Du Maine (Maine) and the accused himself. 

	Evidence of Ginga Herman

32.	Ginga Herman has a “table market” just in front of Waghi Klos – a secondhand clothing shop - which the accused and his wife were managing.
 
33.	He recalled that on the date in question, around 5.00p.m and 6.30p.m, he was selling his wares when he noticed a White 5-Door Toyota Landcruiser with tinted glasses, which he soon learned was driven by the accused, drive up and stop close to where he was. After a while he also noticed a White 10-Seater Landcruiser driven out of the Waghi Klos premises by the accused wife and stopped next to the 5-Door. The vehicles stopped about 5 – 6 meters away from where he was. The accused’s wife came out of the 10-Seater and came over to his stall. She bought betel nut and smoke and then walked over to the 5-Door and gave these to her husband.

34.	Herman had known them for about 2 – 3months as they were his customers. He knew that the accused was a policeman based at the Minj Police Station.  At the relevant time he knew also that the accused was driving for Provincial Police Commander (Acting) Horim.

35.	Herman continued attending to his customers. After a while he noticed the accused’s wife drive off and drove into the Waghi Klos premises. Just then he noticed 3 boys walk up. Two crossed over to the other side of the road while the other one whom he identified as the deceased walked past between him and the parked 5-Door, i.e., the accused’s vehicle. 

36.	After the deceased had gone a fair distance, the accused started his vehicle and drove after the deceased blocking him off, surprising the deceased. Herman heard the deceased apologize to the accused saying “Sorry bosman.” At that, the accused came out of the vehicle with his “machine gun.”  Seeing this, the deceased ran for his life toward the direction of St. Anslem Primary School and the accused ran after him.

37.	 Soon after that he heard two gunshots. He saw the accused shoot the deceased on the back. When the deceased fell the accused walked back to his vehicle brandishing his gun to the crowd that had by then gathered. He got in and drove off to the Wara Market and then headed towards the Jiwaka Mission Resort. Herman saw all this from about 12 meters away from his stall.

38.	By then an angry crowd had gathered and were threatening to burn down the Banz Police Station and attack the policemen.

39.	Herman’s view was not obstructed by anything and there was still a lot of light as it was not yet dark. He puts the time to about 5.30p.m.

40.	In cross-examination Herman denied that the boys all walked pass between him and the accused. He maintained that only the deceased did while the other two had already crossed over to the other side of the road. He said he did not hear the boys threaten to kill the accused nor did he see them throw betelnut skins and other objects at him as he sat in the vehicle. Neither did he witness anyone being drunk and disorderly, including the boys when these were put to him by Mr. Pepson.

41.	Mr.  Pepson put to the witness that as the accused stepped out of the vehicle after being abused by the boys and members of the public, he was hit by a hard object. And so, he fired a warning shot into the before getting back into the vehicle and driving away. Herman denied that and maintained that the accused shot and killed the deceased.

	Evidence of Du Maine

42.	Du Maine recalled that when they arrived at the Jiwaka Mission Resort he settled the Minister’s delegates into their accommodation and was just hanging around the lawn area when the accused arrived back from town. He was sweating and appeared agitated and uneasy. He asked him what happened, and the accused replied “Mi pilim olsem mi sutim wanpla youth.” (I have a feeling that I shot a youth) He threw the car keys at Du Maine and asked him and FC Gumu to take him to the Banz Police Station.

43.	 Soon after that they heard a commotion. People were wailing and were crying. and were approaching the Mission Resort. Du Maine, who runs a coffee exporting business which had a factory in Banz next to Waghi Klos, received a call from his brother at the factory. He told him that a policeman had shot a youth in town. The youth was from within the surrounding area. Du Maine was very nervous as the atmosphere was tense.

44.	 Du Maine’s brother soon drove in with the company vehicle. He told him that the youth was from the area. He wanted Du Maine to use the company vehicle, but Du Maine told F/C Gumu to get the keys for the vehicle he had driven in from Kagamuga to drive the accused out. This was around 6.30p.m. It was already dark and there were people already outside who saw him.

45.	As they drove into town, they noticed that a 10-seater Landcruiser was burning outside Waghi Klos where the accused stayed. The accused wanted Du Maine to drive through but Du Maina sensed trouble and instead drove into the Kosem Coffee Factory. There he told the accused to jump over the fence into his residence and from there he can then make his way to the Police Station. 

46.	Du Maine described the gun the accused had as an M16 but when a photograph of the gun allegedly used by the accused was shown to him, he confirmed that that was the gun he saw on the accused. When asked in chief about the accused’s appearance, he said that he was sweaty and when he questioned him, he said that the youth blocked him and so he shot him.

47.	 In cross-examination he was asked where he was when the accused arrived back from town, and he said he was on the lawn about 15meters from the carpark with F/C Gumu. He was asked to confirm that the accused told him that he had a feeling that he had shot a youth, Du Maine said the accused said to him “Mi open fire long wanpela youth.”  

	Evidence of Accused

48.	The accused testified that he was residing at Minj. When he was assigned to drive a/PPC Horim he would drive him to the Provincial Police Headquarters in Banz. He has his own vehicle so before he goes to work, he would drop his wife first at Waghi Klos where they managed a secondhand clothing shop. Th have a residence there as well.

49.	On the morning of the day in question, he dropped off his wife at Waghi Klos then he drove back to the Police Station. There the a/PPC advised him of the trip to Kagamuga to pick up Minister Maru’s delegation and they soon left for Kagamuga. 

50.	At Kagamuga, as we have seen, he was assigned by Inspector Horim to drive one of the vehicles that were hired by the Minister’s officers. Inspector Horim also handed the gun over to him. After picking up the Minister’s officers they left Kagamuga late in the afternoon around 5.00p.m for Banz. They arrived at the Jiwaka Mission Resort at exactly 6.30p.m.  After dropping off his passengers he then drove into town to pick up his wife. He picked up his wife from Waghi Klos and took her to the Police Station to pick up their vehicle which he had parked there. They then drove back in separate vehicles to Waghi Klos. They stopped outside the gate and the accused gave K20.00 to his wife to buy coca cola for them. It was by then about 7.00p.m.

51.	While his wife was away some drunken boys came along and hit the vehicle he was driving as well as his wife’s while swearing at the same time. When his wife returned, he told her that it was getting dark, and she needed to go home and prepare dinner for them while he returns to the Jiwaka Mission Resort.

52.	The group of drunken boys turned around and realizing that he was a policeman hurled abuses at him and continued towards Wara Mombol. He did not do anything or react out of concern for his wife and the vehicles. When he saw his wife drive into the Waghi Klos premises he pulled out and slowly drove towards Mombol River towards Jiwaka Mission resort.

53.	 After he had driven past the market for about 5 – 7 meters he heard people shouting. Opposite the market were people playing darts under a bamboo grove. He heard people swearing and betelnut skins and plastic bottles were thrown at his vehicle. There were a large crowd of people and people were doing their market all the way to Mombol River. Others were waiting for PMVs to go home. 

54.	 For the safety of the vehicle, he stopped at a fuel station. Objects including a small bottle of Mountain Wine were hurled at the vehicle and he heard people saying in the local vernacular “To to a!” or “Fight him.” He opened the door and stepped out but as he was reaching for the PCC’s gun which he had placed between the seats in front, a hard object hit him on his right side.  He cocked the gun and discharged one warning shot into the air at a 45º angle. The crowd moved back, and he got back into the vehicle and drove off to the Mission Resort. This was around 7.00p.m to 7.15p.m. 

55.	At the Resort he was asked to stay around for dinner. With him were First Constable Gumu, the Minister’s bodyguard and Du Maine. The Minister’s delegates were also there but were on separate tables.

56.	 They were having tea/coffee while waiting for dinner when Du Maine received a call. The accused could not understand what they were saying as they were speaking in tokples. However, Du Maine later told him that the police had shot a man or bumped someone. He then told Du Maine that they had disturbed him, and he discharged a warning shot.

57.	When asked in chief how the others reacted when they heard this, the accused said that First Constable Gumu recalled a similar incident he was involved in back in 2014 – 2014. FC Gumu then asked Du Maine to call his caller. The caller said he will come for them and so the three of them went out to the carpark. The caller who was from the Kosam Coffee Factory soon arrived and they drove off to find out what happened.  

58.	The road was clear, but it was already dark, so they drove straight to Kosem Coffee Factory which shares a fence with Waghi Klos. The accused did not say how he went into the Waghi Klos premises but when he got there his wife, her sister and house girls were not at home. He was confused because he thought that she would have been at home. He had no way of knowing what happened as he said none of them had any phones - presumably referring to himself and his wife.  He waited for a while and left through the back gate heading for Banz Police Station. As he stepped out, he saw that his vehicle was up in flames at the Bus Stop. He headed straight for the Police Station where he told a policeman there to call the PPC. The PPC came and he surrendered the gun which he had with him all the while to him. He was soon after arrested.

59.	In cross-examination, the accused was referred to State Exhibit G5, a photograph showing a pile of stone indicating the spot where the deceased was allegedly shot and fell. It was put to him if it was possible that he had discharged the firearm at the same time he was raising it to fire. He answered in the affirmative.  Asked if the bullet could have accidentally hit the deceased, he said no. 

60.	It was also put to the accused that he told Du Maine to take him back to the Police Station. He replied that he told Maine to take him back to the scene to confirm the incident. When it was put to him that Du Maine asked him to jump over the fence to Waghi Klos from Kosem Coffee Factory because he knew that the accused was responsible for shooting the deceased, the accused said Maine did not know that. When pressed that Du Maine did what he did for his safety the accused maintained that they only went to the factory to confirm the phone call Du Maine received from the factory.  When it was finally put to him that the people could not have burned his vehicle if he was not responsible for shooting the deceased, the accused said that he was simply targeted because he was the only policeman within the vicinity of the fatal shooting.  He maintained opening fire into the air when he was attacked.

61.	It must be said at this juncture that the evidence of Inspector Michael Kapal concerned Constabulary Standing Orders in the management and use of Police firearms and the investigations that followed. These are not entirely relevant to the resolution of the issues to be determine by the Court.

62.	Witness Sergeant Levi Gangola was the Arresting Officer. His testimony was very brief, and he essentially confirmed that the interview was done in pidgin and later translated into English. The accused was accorded was rights and he did sign the record of interview.

63.	So, did the accused have an altercation with some youths including the deceased, and did they hit the accused’s vehicle and that of his wife and then swore at him? 

64.	The only direct evidence on these questions are the testimonies of Ginga Herman and the accused. It is a question of who to believe essentially. 

65.	Ganga Herman, as we have seen above, denied seeing the 3 young men, including the deceased, being drunk and disorderly as they approached the accused’s vehicle, hit his and wife’s vehicles and then swore at the accused. According to him, the other two young had crossed the road to the other side and only the deceased passed between him and the accused.  He saw the accused start his vehicle and drive after the deceased blocking his way. He saw and heard the deceased apologized to the accused. The accused then alighted from the vehicle with his gun. Seeing this the deceased ran for his life toward the direction of St. Anslem Primary School. The accused ran after him.

66.	Now, why then would the accused go after the deceased for no apparent reason? Certainly, something or someone must have provoked him. Is it possible that the accused and two friends indeed hit the accused and his wife’s vehicle and swore at him as the accused said in his evidence?

67.	I find it extremely illogical for the accused to have behaved in the manner described by Ginga Herman – that he pursued the deceased without any provocation at all. I am not convinced that Ginga Herman gave his undivided attention on the accused and the deceased and his two friends. With all the people around, coupled with the fact that he would be minding his stall, it can hardly be expected of him to focus his attention on the accused, let alone the deceased and his friends completely.

68.	Then, it must be borne in mind that at that time, the accused’s wife had gone over to Herman’s stall to buy betelnut and smoke. Certainly, his attention at that critical time would have been drawn away from what was happening around him as he was focused on serving his customer. It was therefore impossible for him to hear, let alone see what the boys did as they passed the accused in his vehicle. I believe the accused when he said that it was during the time that his wife was at the market stalls that the drunken youths came along and hit their vehicles and swore at him.

69.	It may be true that the other two boys may have already crossed over to the other side of the road and that only the deceased was the only one who passed between the accused and Herman. By then Herman would have finished serving the accused’s wife and logically he would not have witnessed everything that transpired while he was serving the accused’s wife. 

70.	  Could it be that it was the deceased who swore at the accused as he passed by? Whether or not that was the case, the fact of the matter is that the accused could not have pursued the deceased had he or his friends not offended him. I am convinced that the deceased and his friends provoked the accused when they hit his and his wife’s vehicles and the swore at him when they realized that he was a policeman. 

71.	But did he pursue the deceased as Herman said? I believe he did. I believe that he was offended by the deceased and his friend’s insults and wanted to get back at them. And so, after sending his wife away and after seeing her enter their premises safely, he turned his attention on those who had just scorned him. I believe that the other two boys had already crossed over to the other side of the road and may have disappeared into the crowd. And so, the accused turned his attention on the deceased and pursued him in his vehicle and then later, on foot. In this regard I believe the testimony of Ginga Herman. I do not believe testimony of the accused that betelnut skins and other objects were hurled at his vehicle as he was pulling out and was heading back to the Mission Resort. 

72.	But did the accused fire two shots at the deceased killing him, or did he fire a single warning shot into the air and did not shoot the deceased?  

73.	Again, the only evidence here is that of the Herman and the accused. And on this question, I am convinced beyond a reasonable doubt that the accused ran after the deceased and fired two shots at him from the firearm he was carrying. One of the shots hit the deceased on his upper back. The bullet entered the 3rd intercostal space and travelled upwards at an angle of 45º and exited at the anterior lower neck just inferior to the cricoid cartilage according to the autopsy report by Dr. Gabriel. That the bullet or projectile travelled upward at 45º may be explained by the possibility that the bullet, after hitting and fracturing to the 3rd rib, ricocheted upwards and exited at the front lower neck.

74.	The entry wound is consistent with that from a 5.56 mm caliber bullet and with the type of firearm the accused was armed with – K2 high powered rifle according to the evidence of Crime Scene Examiner the Late Sergeant Moses Pain. Even though he was not a ballistic expert, his evidence was not challenged by the defence and his evidence was largely complemented Dr. Gabriel’s post mortem report.

75.	I am not at all convince by the accused version of facts – particularly that he said he only fired one single warning shot into the air to disperse the crowd as they were hurling objects at him.

76.	That he shot the deceased is also corroborated by his behaviour and words when he returned to the Mission Resort. I believe Du Maine’s evidence that the accused arrived sweating and visibly uneasy. I believe that he told Maine that he believed that he had shot a youth. I do not believe the accused’s testimony that he told Maine that he had fire a warning shot only after he learned that a youth had been shot by the police.

77.	I also believe Maine’s evidence that the accused had wanted to be driven to the police station which was of course the proper thing to do. Maine, however, thought that the safest option was to take the accused to the Kosem Coffeee Factory from where the accused can get into Waghi Klos and then make his way to the Police Station in the cover of darkness.  

78.	The accused of course disputed that he wanted to be taken to the Police Station. Rather he said he wanted to be driven back to the scene – the center of the ensuing violent remonstration against the killing of the deceased – a local youth – to confirm the incident. How illogical that is. The man knows that he had killed the deceased or at the very least just heard from Maine that a youth had been shot by a policeman and he wants to be brought to the scene. That is against logic and commonsense and obviously is a lie which should corroborate Herman’s evidence that it was him (accused) who shot and killed the deceased. 

79.	Lastly there was no evidence of another shooting in Banz on that day.  The only shots that were fired were by the accused.

80.	I am therefore satisfied beyond a reasonable doubt that the accused shot and killed the deceased.  

	ISSUE 2: Was the Killing unlawful?

81.	It is obvious to me that the killing was unlawful. The accused had not lawful justification at all for killing the deceased. He was not acting in self defence or in the defence of another person.

82.	 Even though I did find that he was insulted by the deceased and his friends, there is no evidence that he was so deprived of self-control that he killed the deceased in the heat of the moment before his temper could cool down, hence according him the defence of provocation.

83.	In short, the killing was indeed unlawful. This element has been proven beyond a reasonable doubt

	ISSUE 3: Was the killing intentional?     

84.	Finally, did the accused intend to kill the deceased?  The evidence on this element comes entirely from Ginga Herman and to a certain extent from the accused’s evidence that he fired a single warning shot in the air when his vehicle was pelted with betelnut skins and other objects.

85.	I have already found and accepted that the accused pursued the deceased firstly with the vehicle. After the deceased ran for his life upon seeing the accused come down from his vehicle with a gun, the accused pursued him on foot and then fired two shots at the accused as he was fleeing away in the direction of St. Anslem Primary School. 

86.	In deciding this element of the charge, the pertinent question for the Court is: what did the accused intend, or did he intend to kill the deceased or some other person? 

87.	The State must prove beyond a reasonable doubt that the accused had an actual and subjective intention to kill the deceased. Since intention is a state of the mind and it is difficult to prove as a fact in the absence of an admission, intention must necessarily be proven by other facts. These include –

•	An admission.
•	The degree of force use from which the necessary intention to 	cause death can be inferred. (See The State v Tony 	Emmanuel & Anor (No.1) (2012) N5124)
•	The nature of the injuries that were inflicted on the deceased 	and their location on the body. (See The State v Wanepe 	Warara [1977] PNGLR 458)
•	The type of weapon used. (See R v Sigo Sasawari (1975) SC 	825)
•	The words spoken at the time of the offence even though it 	has been held that words such as “Bai mi kilim yu” and “Bai 	yu dai” have been held to be insufficient to establish an 	intention to kill. (See The State v Tony Emmanuel & Anor 	(No.1) (supra); The State v Emmanuel Bai & Anor (2003) 	N2416; The State v Dorothy Buku (2011) N5011).
•	The accused’s conduct and any he said prior to, during or after 	the killing. (See The State v Tony Emmanuel (supra); Mako 	Ranjigi v The State [1994] PNGLR 44)

	(See Injia on Criminal Offences in Papua New Guinea and the 	Pacific at 	pp. 525 – 529 for a useful discussion on these principles) 

88.	So, has the State proven through any of these that the accused had the necessary intention – that is to kill the deceased?

89.	It has been proven that he pursued the deceased first in his vehicle and then on foot before discharging two shots at the deceased as he was fleeing. It has also been proven that he shot him with a high-powered rifle and that the bullet entered through the back and exited in the neck. These facts appear sufficient for the Court to infer that the accused had the intention to kill the deceased.

90.	 However, do these facts, standing alone or taken together lead to one conclusion only – that he intended to kill the deceased, or could it be that he merely meant to cause grievous harm or simply scare him without inflicting serious harm on him? 

91.	In this regard the State appeared to have planted reasonable doubt in the mind of the Court when Mr. Thomas asked the accused if it was possible that the firearm went off when he was raising it up to fire what he said was a single warning shot to which the accused answered in the affirmative. If that was a possibility, then I am of the view that a reasonable doubt has been raised and not disproved appropriately by the State that the accused intended to kill the deceased.

92.	Furthermore, there is no evidence of whether or not the accused uttered any words as he was chasing the deceased and at that time he discharged the shots at the fleeing young man. If he did, no other witness out of the many that the Police and taken statements from who witnessed the killing was called by the State to prove that.
	
	VERDICT

93.	I am therefore not satisfied beyond a reasonable doubt that the accused intended to kill the deceased. I am satisfied, however, that by discharging his firearm directly in the direction of the fleeing young man he can reasonably be inferred to have caused him some grievous bodily harm, for no one shoots someone or at him without intending to cause him great harm unless he shoots over the person, which in this case appeared not to have been the case.

94.	I therefore find the charge of willful murder not proved. I, however, return an alternative verdict of murder instead. (Section 539(1) of the Code)

Ordered accordingly.

________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Accused