State v Alojipan [2021] PGNC 679; N10150 (25 August 2021)

N10150

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1109 OF 2018

THE STATE

V

EDSON ALOJIPAN

Waigani: Ganaii, AJ.
2021:18^th, 19^th, 20^th, 25^th August

CRIMINAL LAW – Wilful murder – Trial – Elements – Shooting and Killing following an Argument – Both Deceased and Offenders are Security Managers and are armed with pistols – Deceased walks away - Accused shoots Deceased with pistol 16 times – Medical Evidence of 16 shots establishes intention to kill

CRIMINAL LAW – Evidence - Accused raises Section 269 and 270 Self Defence – Section 25 Mistake of Fact - Elements of Self-defence and Mistake of Fact – Prosecution has onus of disproving the defence – prosecution must establish that one or more elements are not present - No state witness saw Deceased reach for firearm – Accused say Deceased drew and corked firearm and he acted in self-defence – Question of who to believe – Reasonable Inference in whole of circumstance of case favours prosecution case - Accused’s evidence of Deceased firing shots is not consistent with Ballistic Expert’s Evidence – Accused story is rejected
Cases Cited:
Meckline Poning v The State (2005) SC814
R v Kaiwor Ba [1975] PNGLR 90
R v Nikola Kristeff (1967) No 445
R v Paul Maren (1971) N615
State v Alphonse Dumui (2009) N3686
State v Anjipi [2007] PGNC 179; N4963
State v Banabu [2005] PGNC 88; N2871
State v Dei [2011] PGNC 21; N4231
State v Kai Joip Dipa (2007) SC868 (Sakora, Kirriwom, Lay JJ):
State v Maria Agua CR No 208 of 2007, 16.07.09)

Counsel:
Ms T. Aihi and Mr. Gubon, for the State
Mr. F. Kirriwom, for the Prisoner

JUDGMENT ON VERDICT

25th August, 2021

1. GANAII, AJ: The accused Edson Alojipan stands charged on an indictment dated 18^th August 2021 that he on the 15^th day of February 2018, at Boroko Food World Supermarket, Gordons, National Capital District in PNG, wilfully murdered one Jeffery Verlade thereby contravening Section 299 of the Criminal Code.
   

Statement of Facts

2. The accused Edson Alojipan and the deceased Jeffery Verlade are both from the Philippines and are employed as Security Managers with Garamut Security Firm which provides security at Boroko Food World Supermarket. They worked as Shift Supervisors.
   
3. The State’s allegations are that between 7.00pm and 7.30 pm on 15^th of

February 2018, both the accused and the deceased were inside the Boroko Food World Supermarket. The accused was armed with a factory-made pistol namely a Glock pistol bearing the serial number BBPB 179 (pistol) at that time.

4. Whilst inside the said Supermarket, an argument started between the accused and the deceased close to one of the shop counters. A security guard namely Maraga Teka intervened and separated them and escorted the deceased away. The accused pulled out his pistol and followed the deceased and Maraga Teka from behind. He called out to the deceased and as the deceased turned the accused fired three shots at the deceased. The deceased fell on his back to the floor. Whilst the deceased was on the floor, the accused continued to fire more shots from his pistol to various parts of the deceased’s body. The deceased died on the spot.
   
5. The autopsy report reveals that the deceased received sixteen bullet wounds and nine exit bullet wounds to various parts of his body.
   
6. The state alleges that when the accused shot the deceased all over his body sixteen times after the short argument, he did so with the intention to kill the deceased and did so without legal justification, thereby contravening section 299 (1) of the Criminal Code.
   

Plea

7. The accused pleaded not guilty to the charge and a trial was conducted. The accused pleaded self-defence from provoked assault under Sections 269 and 270 of the Code and Mistake of Fact.
   

Undisputed Facts

8. The defence concedes that the accused shot the deceased several times with a firearm, a semi-automatic Glock pistol causing his death. Hence, there is no dispute that the accused caused the death of the deceased.
   

Disputed Facts

9. What is disputed though is that the accused intended to cause death and the killing was unlawful.
   

Issue

10. The issue thereby is whether the accused intended to kill the deceased and whether he had a lawful excuse for doing so.
    
11. The defence raises the legal defence of self-defence under sections 269 and 270 of the CCA. The sub issues arise from here.
    

The Offence

12. 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 Of Charge

13. In the State v Dei [2011] PGNC 21; N4231 (11 March 2011), the court held that the elements of offence of Wilful murder under section 299 (1) of the Criminal Code are: the accused killed the deceased; the killing was unlawful; and the accused intended to cause the death of the deceased. The State must prove the those elements for the crime of wilful murder beyond a reasonable doubt to secure a conviction.
    

The Evidence Prosecution Evidence

14. The State tendered the following documentary evidence by consent:
    
    • (1) The accused Original Record of Interview dated 22^nd February 2018–

(Original English version)- Exhibit ‘A”.

(2) Statement of Chief Sergeant Joseph Numbos dated 17^th April 2018 – Exhibit “B”.
(4) Photographs taken by Chief Sergeant Numbos – Exhibits “B1-28”
(5) Affidavit od Dr Seth Fose dated 01^st May 2018 – Exhibit “C” and the
(6) Autopsy Report by Dr Seth Fose dated 25^th March 2018 – Exhibit “C1”

The accused Original Record of Interview dated 22nd February 2018–

(Original English version)- Exhibit ‘A”.

15. The accused stated that he is 41 years old and comes from Iloilo City, Manila in Philippines. He is employed as a Security Manager with Garamut Enterprise. He was married but is separated. He recalled the 15^th of February 2018 between the hours of 7-7:30pm he was inside Boroko Food World and looking after securities in the store. He was with Brian a guard with Siggy International. He was getting cash from the cashier to the enquiry counter and upon returning he met the deceased Jeffery Verlade standing at the counter. He greeted the deceased and said, “How are you?” Jeffery responded stating that he was not okay and asked him about the re-investigations concerning a CCTV caption of a stealing incident at the bakery and the movement of the camera in the bakery. Upon hearing this the accused told the deceased to take it to the boss but the deceased said the accused had destroyed his reputation. Jeffery was angry and swearing in Philippine’s language saying: “Son of a bitch, I’m going to kill you”. The accused said he smelt alcohol because they were standing face to face. Then a security guard called Maraga came and separated them and pulled Jeffery away so the accused went and stood at the boss’ office asking the deceased to go there and see the boss. The deceased continued to speak in language and called the accused “Gago’ in Tagalo meaning stupid and said, ‘I’m going to kill you”. The accused then said, “don’t just say it, do it”.
    
16. The deceased heard and pulled out his gun from his left waist because he was left-handed and corked it in front of the accused. So accused pulled his gun out and shot the deceased three times on his leg just to injure and not kill him. And when he fell, he still holding his gun on his left hand and still pointing at the accused. The accused thought he will shoot him, so he fired all the shots until the magazine finished and the accused handed the gun to the security guards who came to stop him and escorted him into the boss’s office.
    
17. Accused said during the argument his weapon was inside the gun holster at his side. He pulled out his gun when he was threatened and out it back into his pocket. He stated that he fired the first three shots and he continued to fire all the shots until bullets finished. The accused was able to recognise the gun by its serial number BBPB 179, Black Glock pistol.
    
18. There was a total of 16 bullets, 15 in the magazine and I in the chamber. He stated that he shot the deceased in self-defence because the deceased threatened to kill him.
    

(2) Statement of Chief Sergeant Joseph Numbos dated 17th April 2018 –

Exhibit “B”.

19. Witness is a Chief Sergeant of Police attached to the National Forensic Science Centre (NFSC) of RPNGC. He is attached with the Firearms and Toolmark section of NFSC. He had served in the RPNGC for 33 years and has undergone specialist training in Crime Scene Examination specialised in crime scene techniques and procedures. He has also attended a Forensic Digital Photography Course and a Crime Scene Evidence Management course.
    
20. He attended to the shopping centre at Food World and saw the body of the deceased lying face up. There were 9mm casing and fragment bullets around the deceased. There were blood stains on the floor, a pool of blood. He also took photographs and labelled them. He was later given two 9mm Glock Pistols by the Arresting Officer. The pistols have similar models and were differentiated by serial numbers BBPB 179 and BBPB 188. The weapons were test fired and samples were collected and compared against the exhibit bullets. From his opinion, the witness stated that the 13 exhibited fired cases that he collected from the crime scene of shooting/murder at Boroko Food World were fired from the Glock pistol model 17 serial number BBPB 179 and not from BBPB 188.
    
21. Witness also attended to the Post-mortem of the deceased. He received three bullets on the clotting of the deceased from the attendants at the funeral home and labelled them as exhibits.
    
22. He observed the multiple bullet wounds as follows: in the testicles, above knee, right groin, chest, and shoulders joint totalling to 16 wounds.
    
23. At the back of the deceased’s body, he observed five exit bullet wounds, two in the left side and one on the right bum, totalling to eight exit bullet wounds. He also took photographs and labelled them.
    
24. In his sworn oral testimony, he stated that the three casings given by the Case officer Sergeant Pige to him were fired from Glock Pistol BBPB 179. He also states that the pistol was semi-automatic and so long as the gun was corked, the pulling of the trigger is only by pulling the trigger one at a time to discharge the total of 16 bullets.
    

(3) Photographs taken by Chief Sergeant Numbos – Exhibits “B1-28” Photographs of Crime Scene

Exhibit B1 -B2 – Depicts Deceased lying on back, face up

Exhibit B3 – Depicts Close up view of face of deceased

Exhibit B4 – B6 – Depicts Cell casings

Exhibit B7 – Depicts Trolley with shopping

Exhibit B8 – Depicts Blood stain on floor

Exhibit B8-B10 – Depicts casings

Exhibit B11-B12 – Depicts close view of deceased body, showing Bullet wounds to abdomen

Exhibit B13 – Depicts Close up view of deceased body showing bullet wound to leg

Exhibit B14 – Depicts the isle in the supermarket

Exhibit B17- Depicts body of deceased showing bullet wounds on thigh
Exhibit B18 – Depicts close view of deceased showing bullet wounds to abdomen

Exhibit B19 – Depicts close view of deceased’s abdomen showing ...

Exhibit B20 – Depicts close view of deceased’s chest and shoulder area showing bullet wounds

Exhibit B21 – Depicts back of deceased showing bullet exit wounds

Exhibit B22 – Depicts a close-up view ..........

Exhibit B23-25 -Depicts Glock pistol with serial number BBPB 188

Exhibits 26-28 – Depicts Glock pistol with serial number BBPB179

(4) Affidavit of Dr Seth Fose dated 01st May 2018 – Exhibit “C”

25. The witness is Medical Doctor by profession. On the 21^st of February 2021 he carried out a post-mortem on the deceased. His findings were that the deceased died from lacerated multiple organs due to multiple bullet wounds to the body due to gun shots.
    

(5) Autopsy Report by Dr Seth Fose dated 25th March 2018 – Exhibit “C1”

26. Total of 25 bullet wounds. 16 were entry wounds and 9 were exit wounds, Distribution of the wounds are as follows:
    

Entry Bullet wound No 1	– front right shoulder
Entry Bullet wound No 2	– front right chest
Entry Bullet wound No 3	- front abdomen
Entry Bullet wound No 4	- front abdomen
Entry Bullet wound No 5	- front abdomen
Entry Bullet wound No 6	- front abdomen
Entry Bullet wound No 7	-front abdomen
Entry Bullet wound No 8	-front abdomen
Entry Bullet wound No 9	-front abdomen
Entry Bullet wound No 10	- front abdomen
Entry Bullet wound No 11	-front abdomen
Entry Bullet wound No 12	-testes

Entry Bullet wound No 13		-inner right thigh
Entry Bullet wound No 14		-inner right thigh
Entry Bullet wound No 15		-inner side of right knee joint
Entry Bullet wound No 16		-outer side of right buttock
Exit Bullet wound No 1		-back of left shoulder
Exit Bullet wound No 2		- lower border of right shoulder blade
Exit Bullet wound No 3		- lower border of left shoulder blade
Exit Bullet wound No 4		- middle part of back
Exit Bullet wound No 5		- left side of abdomen
Exit Bullet wound No 6		-left side of abdomen
Exit Bullet wound No 7		-left side of abdomen
Exit Bullet wound No 8		-top part of right buttock
Exit Bullet wound No 9		-front of left scrotum and testis
Internal injuries

27. The following injuries are noted.

Lungs lacerated			- bullet wounds on upper and lower lobes,
Liver			-bullet wounds at the liver, lacerated
Spleen			-bullet wounds at spleen, lacerated
Left kidney			- bullet wounds at left kidney, lacerated
Large bowel			- bullet wounds at ascending and descending portions of large bowl. Loops of bowel were bruised

Report Summary

28. Among others, the report showed that there were 16 entry bullet wounds and 9 exit bullet wounds. The 16 entry wounds were in the front of the deceased’s body and the distributed over the front chest wall, abdomen, right scrotum, right thigh, and right knee joint.
    
29. There was a significant singly entry wound at the outer side of the right buttock. All exit wounds were at the back. Seven bullets were lodges in the body and one bullet was handed to the ballistic expert. The internal examinations showed the bullet wounds to the right lung, liver, spleen, large bowel and left kidney causing injuries and death.
    
30. Death therefore resulted from a multiple lacerated organs due to multiple bullet wounds to the body due to bullets fired from a gun.
    

(7) Photographs of Deceased at Post-mortem

31. Exhibits C1.1 – C1.21 are photographs depicting the name tag of the deceased and his body of showing the bullet entry and exit wounds.
    

Oral Evidence

32. The five witnesses who gave sworn oral testimony were: Maraga Teka; Leoba Kanyak; Brian Nepita; Joseph Numbos and Kila Raiva.
    

Maraga Teka

33. In examination in chief, this witness stated that he worked as an internal security with Garamut Securities. He was on duty at Boroko Food World at the time of the incident. He heard and saw the deceased and accused having an argument and were speaking in their language. He didn’t know what they were saying. He stepped in to stop them and separated them to either side of him. He cooled down his manager Jeffery Verlade, (the deceased) and took him away towards the restaurant. The accused Edson spoke in language and went after them. They were facing the restaurant and walking towards it and Edson followed at the back. Witness said he held the deceased shoulder and they both turned. Just as they turned, shots were fired, and Jeffery fell onto the floor. He heard two shots at first and then the shots continued. The deceased had fallen onto the floor as the shots continued.
    
34. The deceased laid face up and was on his back. The witness estimated that the accused would have been about 2-3 metres away from the deceased when he fired the shots. The shots were fired continuously, and he was not able to tell how many were fired when the deceased was on the floor.
    
35. He said he had removed his hands of the deceased’s shoulders before the deceased was shot. The accused didn’t give any time after firing the first shots and continued to fire the other shots. He watched the accused finished firing the shots and he grabbed him and locked him in the office. When he returned, the deceased was already dead.
    
36. In cross-examination, the witness agreed that the deceased also has a Glock pistol and a holster. He couldn’t agree if the deceased drew his pistol when they turned because he turned too and didn’t see the deceased remove his pistol. The witness was concentrating on the accused. He knew what a gun holster is and agreed that once the guns are strapped, they won’t fall out. He saw the deceased’s gun under the shelf. He was not sure if the gun was in the holster.
    
37. In re-examination, the witness said he didn’t see the deceased remove his gun from the holster. When the deceased was shot and was falling, he didn’t see if the deceased held his gun in his hand. He also said the gun was not on him.

When the deceased fell, he didn’t think of checking his hand whether the deceased’s weapon was in his hands and so he would not know. He also said it was hard to see the holster of the deceased’s weapon because it was concealed under his shirt. He again said when the deceased was shot, he didn’t see if he was holding a pistol.

Leoba Kanyak

38. In examination in chief, this witness stated that she worked as an accounts receivable clerk at Boroko Food World. At the time of the incident, she was at the enquiries counter when both the deceased and accused came in. They spoke in language and were arguing. Their facial expression showed that they were having a serious argument. They were facing and bumping into each other’s. Maraga Teka came and separated them. After Maraga separated them, Jeffery was going towards the coffee shop. She saw Jeffery walking by himself to the coffee shop. She stated that after what happened she panicked and ran away and didn’t see Maraga Teka. That is when Edson pulled out his pistol. She saw this and was scared. She ran away into the office. She heard gun shots. When she came out, she saw the deceased lying on the floor.
    
39. In cross-examination she said Edson pulled out the pistol after Maraga Teka separated them. She stated that Edson started the argument. Jeffery walked towards Edson and stopped to talk to him. They raised their voices. She agreed that both carried their guns. She saw the accused pull out his weapon. She agreed that the deceased had his weapon too. When it was put to her that the accused pulled out his weapon the deceased also pulled his out, she said no. She agreed that she didn’t see because she went inside. She couldn’t agree that the deceased was escorted to the coffee shop. In re-examination she confirmed that after the deceased walked away, the accused drew his pistol.
    

Brian Nepita

40. In examination in chief, this witness stated that he was employed as a security guard by Siggy International and is located at Boroko Food World Supermarket. The deceased and the accused argued in their language, and he didn’t know what they were saying. Then the deceased walked away and one of them shot the other. He was walking at the side of the accused. The accused removed his firearm and shot at the deceased. The witness left the accused and ran and hid next to the fridge. He didn’t see the deceased and was busy looking at the accused. He saw the deceased lying dead.
    
41. In cross-examination he said the deceased started the conversation and he was angry. When asked to explain his statement ‘that they make a shoot-out’ he stated that one shot the other. His attention was on the accused, and he did not see if the deceased drew his weapon. He agreed that security managers are armed and, on the night, both the deceased and the accused were armed. He agreed that at the counter, during the initial argument, both men reached for their weapons but then the situation was calmed down.
    
42. In re-examination the witness agreed that at the counter, both men reached for their weapons but didn’t pull them out.
    

Chief Sergeant Joseph Numbos

43. In examination in chief, the witness said he collected casings and made examinations. His expert opinion was that all the casings belonged to the accused’s weapon, the Glock Pistol bearing the serial number BBPB 179.
    
44. In cross-examination he agreed that the three other casings were given to him by the case investigator, and they were also from the accused’s pistol. He agreed that he did not mention that in his statement to the police but in his oral testimony he explained that they were examined, and his opinion was that they came from the accused’s pistol also.
    

Kila Raiva

46. In examination in chief, the witness stated that he worked as a security officer with Dragons Security and is based at Boroko Food World. At the time of the incident, he was at his location at the Pro-Clean section. He heard gun shots.

He approached the accused and removed and cleared his weapon. The accused’s weapon was empty and had no bullets.

47. In cross-examination he confirmed clearing the accused’s firearm. He didn’t see the deceased’s firearm under the shelf.
    

Defence Case

48. The accused gave sworn evidence and did not call any other witnesses.
    
49. In examination in chief the accused said he is from Iloilo City, Manila in the Philippines. He is 45 years old and has five children. He is legally separated from his wife.
    
50. After graduating from college, he became a member of the Philippines Army and later joined the National Police attached to the anti-drug squad. He came to PNG and worked as a Security Manager. The deceased came later. They were friends and lived closer to each other.
    
51. On the date in question he was at work at Boroko Food World. He went to enquiries desk and saw the deceased arriving for duty for the night shift. He was the day shift security manager and was finishing work. He greeted the deceased in Tagalo and asked how he was. The deceased swore at him in Tagalo saying “you idiot mother fucker, I’m going to kill you because you destroyed my reputation.” He was shocked and recalled the incident where he was asked by their boss to do a re-investigation into a stealing incident in the bakery caught on CCTV. The deceased did an initial report, but the boss may not have been happy with it and asked the accused to do a re-investigating and a new report.
    
52. The witness said the deceased was drunk because he smelt of alcohol and they were close and facing each other. They were bumping each other in the heat of their argument. The accused asked the deceased why he swore at him. At first their voices were low, then they raised them. The deceased was blocked off by the bench and no one saw him. The accused saw the deceased reach for his gun. They both reached for their guns. The deceased asked him if he wanted a draw? Meaning to use their weapons. He knew the deceased was a combatant in the Philippines army before coming to PNG. He knew the deceased could kill him and that the deceased was fully armed. He also drew his gun but held it down and did not point it at the deceased. The deceased did the same when he too drew his gun, held it down and didn’t point it at the accused. He said they were closer to the counter which was waist high and no one saw them.
    
53. At that point in time, Brian Nepita approached the accused and calmed him down and Maraga Teka took the deceased away. The accused saw the deceased put his gun in the holster and he put his gun in his holster also. The holster for the gun was made of plastic and is exclusive for Glock pistols. He recalled the deceased placing his pistol at his left side holster. The accused told the deceased to go talk to the boss. Maraga Teka took the deceased into the isles towards the restaurant. The accused wanted them to go and see the boss and he called the deceased. The deceased kept swearing and threatening to kill him. The accused then told him “Don’t just say it, do it”.
    
54. The accused saw the deceased grab his firearm, corked it, and loaded the bullet whilst turning to shoot and the accused loaded his whilst in the pocket and shot at the deceased on the leg. The first two rounds were aimed at the deceased’s legs. The accused said he wanted to disable him because the deceased was a threat and the gun was still in his hand when he fell.
    
55. The accused said he heard gun shots from the deceased and he continued to fire. Then in a state of shock he continued to fire all the bullets from his pistol to save his life.
    
56. In cross-examination the accused agreed that they both pulled their weapons at the counter and it was not just him. They then put their weapons back. He did not agree that whilst the deceased was walking away, he pulled out his gun, corked it and fired at him when he turned.
    
57. When it was put to the accused that when the deceased walked away the threat was eliminated and he could have gone to the boss’ office, he said they both agreed to go to the boss’ office. He agreed that if his life was under threat he could have gone ahead to the boss’ office.
    
58. However, he paused and didn’t answer the State prosecutor’s question when the state prosecutor said to agree that he did not go to the boss’ office even when he felt his life was at risk.
    
59. He also agreed that as soon as the deceased turned, he (the accused) fired the shots. He maintained that the deceased fired the shots and he fired back to save his life.
    
60. When it was put to the accused that he fired the 16 shots he said he was in a state of shock when he fired the shots and he fired the shots to disable the deceased who was a threat to him.
    
61. In re-examination said again that he was in a state of shock when he fired the bullets to save his life because the deceased fired at him.
    

Defence Submissions

62. The Defence concedes that the accused shot the deceased with a firearm killing him.
63. The Defence contends that there was no intention to cause the death of the deceased.
    
64. If the court finds that there was intent, defence submitted that the killing was not unlawful and it was necessary under the circumstances of the case to act in self defence to prevent himself from death or GBH.
    
65. Defence submitted that the state witnesses’ evidence is blurred from the moment the shooting occurred. In cross examination they showed that they were unsure if the deceased turned around and pulled his gun and corked it. They were concentrating on the accused and did not know.
    
66. State witnesses’ evidence is that the deceased’s firearm was located under the shelf in the shop. Defence submits that the only reasonable and plausible explanation for the gun to be there under the shelf is that the deceased drew it from its holster, fired it and when the accused fired at him, he fell and the gun fell out of his hands. In the absence of evidence showing whether the deceased drew his gun or not, the only plausible explanation in the circumstance is that he drew it.
    
67. Defence further submitted that the accused had described the holster as being made from a certain plastic and is secured unless it is unlocked. If it is intentionally unlocked, the gun can fall out or be drawn out.
    
68. In summary, defence submitted that the State witnesses are not certain on seeing the deceased pull his weapon or no one said the deceased never pulled his weapon? As such, defence submitted that if state witnesses say the deceased never drew his gun, there is no explanation offered by the state in their evidence on the possibilities of the gun falling out of its holster.
    
69. Chief Sergeant Joseph Numbos didn’t mention anything in his statement about the three casings given to him by Sergeant Pige. They were not tested and defence says they could have come from the deceased’s gun.
    
70. Defence submits that based on the accused’s evidence, when the deceased turned, he unholstered his firearm and corked it. At that instant, the deceased’s bodily actions conveyed a threat to the accused. The bodily gesture amounts to an assault which was complete pursuant to ss 243 ss (1) (b) CCA definition of assault making reference to ‘bodily gesture’.
    
71. According to the accused, what he believed would happen to him, as the deceased was drawing his gun and corking it led him to believe that his life was in danger and thus his act was in self-defence. He was aware that the deceased came from a military background and he was trained on handling guns.
    

71. In their further submissions, defence submitted that if court is not satisfied that defence in sections 269 and 270 exist to exculpate the accused, the circumstances starting from the time arguments started and the threats were issued is sufficient to cause the accused reasonable belief that when the deceased was armed, he would kill him because he was angry and was in fact issuing threats.

73. The Defence also relied on section 25 of the CCA to exculpate the accused, submitting that s 25 exculpation by mistake of fact operates under the facts of this case and the state had not negatived it. Defence submits further that the proportionality argument does not arise because it is not a defence of provocation.
    
74. On the question of use of such ‘force as necessary’ the defence submitted that accused fired three shots initially to stop the deceased because he believed that the deceased was reaching for his gun to shoot at him. Then after the first shots, the accused believed that the deceased fired at him, and so he continuously fired the rest of the bullets and emptied his gun. The Defence say that the force was not unreasonable as he felt threatened, the deceased was armed, and whilst lying down he could still shoot at him. The Defence say the force was reasonable in the circumstance.
    
75. Defence further submitted that they have established the lawful defence of self-defence to the required standard on balance of probability and the onus is on the state to negative. State had not negatived the defence because they are not able to say for certain how the deceased’s weapon got under the shelf.
76. Under this circumstance, the benefit of the doubt must be given to the accused because the state had failed to also negate honest and reasonable mistake of fact.
77. The defence relies on caselaw of State v Banabu [2005] PGNC 88; N2871 (8 June 2005) and State v Anjipi [2007] PGNC 179; N4963 where in summary it was held that in determining whether the defence of self-defence applies, if the accused adduces sufficient evidence to legitimately raise the defence the prosecution has the onus of proving, beyond reasonable doubt, that at least one of the elements of the defence did not apply. R v Nikola Kristeff (1967) No 445 applied. Where the onus was not discharged. The defence of self-defence therefore applied and Self-defence is a complete defence.
    

Prosecutions Submissions

78. The issue is whether the killing was unlawful and it was intended by the accused.
    
79. The State submitted that the elements of the defence under s 269 (1) and (2) and s 270 (2) are negatived beyond reasonable doubt in the following ways:

-

1. The bodily act or gesture that the defence rely on to say the deceased acted in a manner that constituted an assault on the accused did not occur. The accused was never assaulted by the deceased. The deceased did not draw and cork his weapon as he turned;
   
2. Were the defence say that the accused did not provoke the assault, there is evidence from state witnesses that the accused did provoke the assault by firstly, going towards the deceased when he walked off and cooled down and by saying “don’t just say it, do it”. If the court found that there was any assault by deceased, the accused provoked it by his words and movement towards the deceased;
   
3. On the element of the accused’s use of such force as was reasonably necessary to make the actual defence against the assault, in his experience, training and background as a military man, the force used, i.e., the firing of all 16 bullets on the deceased was not reasonably necessary; and
   
4. The force used, i.e., the firing of the 16 bullets in the circumstance was intended to cause death or GBH.
   

Element of Assault in Self Defence

80. State submits that in relation to the assault there are two different versions, and the court must decide on which version to believe. In assessing the evidence the court must assess it in terms of consistency, logic, common sense, demeanour, and sophistication of witness etc.
    
81. Summary of the State’s submission is as follows:
    1. The accused was not assaulted. The deceased did not draw his weapon and point it at the accused. That is the essence of state witnesses’ evidence. When they said they did not see the deceased raise his weapon, that is exactly what they meant. That they saw the deceased, but he did not draw his weapon and not that they did not see him at all;
    2. There are possible safe inferences to draw as to how the deceased’s weapon got to where it was under the shelf. One is it could have fallen out of the holster after not being secured back after it was first drawn at the enquiries counter;
    100. The deceased did not draw his weapon because there is no evidence from state witnesses that he drew it. The only evidence is the accused’s story. The accused’s evidence should not be accepted as it is illogical when he said the deceased drew his weapon, corked it and was ready to fire and did fire at him when there were no fired bullets from the deceased’s pistol and the accused was not hurt. If the deceased was ready to fire, and being a military personal himself, the accused could have been shot by the deceased. The accused was not shot or fired at or missed by the deceased’s bullets because there is no evidence of the deceased’s fired shots or bullets. Ballistic expert evidence is that all fired bullets came from accused’s gun. The court should reject the accused’s version that the deceased drew his weapon and fired it.
         
82. State says it’s likely that the deceased’s weapon was not locked in the holster and fell out from the impact of him falling. There was no assault by the deceased as there was no drawing and corking of the gun.
    
83. The accused provoked the assault by saying “don’t just say it, do it” – as such the s 269 defence does not apply.
    
84. The accused was a trained ex-military man. In the manner he described,

i.e., where he said he was in a state of shock, and continuously fired shots and emptied all bullets from his pistol, this demonstrated recklessness and that the accused did not properly exercise discipline even though he was a military man. The continuous firing of the shots was unreasonable in the circumstance especially after the deceased was injured and on the floor.

85. The defence of self-defence under 269 and 270 is negatived for the above reasons.
    
86. The shots fired before and after the deceased fell are unjustified and unreasonable. Through the medical report, on the extent of the injuries sustained, the intention to cause death and GBH is present.
    

Defence Reply

87. It is not the defence case that the State witnesses are lying. It was never put to any of the witnesses that they are lying. They are simply uncertain.
    
88. All of them were looking at either the accused or the deceased and none of them paid attention to the deceased’s hands and as to whether he drew his weapon. They just don’t know. They didn’t pay attention. They were focusing elsewhere.
    
89. The assault defence relies on was what happened along the isles. When the accused called out to the deceased and the deceased turned around and corked his weapon whereupon the accused reacted in self-defence and shot him.
    
90. The act of corking his weapon while turning around is an assault that falls within the definition under section 243 (1) (b). That gesture of turning around in one motion, corking your gun that gesture was sufficient to comprise of an assault within the meaning of section 243 (1) (b) of the CCA.
    
91. State does not explain from the evidence that it had adduced how the deceased’s gun ended up under the shelf.
    
92. The submission from state that the deceased initially pulled out the gun and put it back in its holster but could not have locked it properly to secure, resulting in it falling out from the holster, never came from any witnesses of the state or the accused. That submission from the state is giving evidence from the bar table. The court should reject that attempted explanation as to how the deceased’s weapon came to be under the shelf.
    
93. The state provided no evidence to rebut whether the holster can hold the gun properly, the only evidence is from the accused.
    
94. Whether there is a possibility that the holster could not have been locked properly and the gun had slipped off, the State had every opportunity to put that to the accused and he did not do so. The rule in Browne and Dunn had been breached.
    
95. There is only one plausible explanation as to how deceased’s gun ended up under the shelf and that plausible explanation was offered by the accused. It ended up there because the deceased drew his weapon, corked it in his attempt to shoot the accused. When he was shot by the accused the weapon fell, came loose from his hand and slid under the shelf adjacent to where he laid.
    
96. The assault by the deceased did occur.
    
97. On the question of whether the force used was reasonable, and where the State submits that the firing of the 16-gun shots were unreasonable, especially after the threat was neutralised, the defence submit that the state failed to tell the court which bullet caused the fatal wound. State failed to show whether it was the first bullet or the 16^th bullet that caused the fatal wound; which injury was fatal; which bullet shot him om the leg; which bullet shot him on the kneecap, and which on the shoulder etc? The medical report said he had a ruptured liver, but state failed to show which bullet caused that and whether it was the first three bullets or it was the subsequent 13 bullets? It’s not clear unless the state can identify which bullet caused the fatal wound then the state can safely say that the rest of the bullets was unnecessary because the threat was neutralised.
    
98. Defence submitted that it is not in evidence which bullet caused the fatal wound. The bottom line is that the deceased was holding a loaded firearm and he was a threat. The weapon is capable of being shot by somebody lying on the ground, even by a person mortally wounded, and it was possible to take very little effort to pull the trigger to fire a shot. Defence says the accused therefore acted in self -defence.
    

Application

Self Defence and Defence of Dwelling House

99. See Criminal Code s.269 - Self defence against unprovoked assault; and s.270 - Self defence against provoked assault.
    
100. The law recognises the right of an accused person to act in self defence from an attack or threatened attack. The right arises where the person believes that the act in self-defence was necessary in order to defend themselves and that what the person did was a reasonable response in the circumstances as the person perceived them.
     
101. Where self-defence is raised, it is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that the act of the accused was not done in self-defence. State may do this by proving beyond reasonable doubt that the accused did not believe at the time of the incident that it was necessary to do what he/she did in order to defend him or herself; or if it is reasonably possible that he or she did have such a belief, that nevertheless the act of the accused was not a reasonable response in the circumstances as he or she perceived them.
     
102. As to whether the accused may have personally believed that his or her conduct was necessary for self-defence the court must consider the circumstances as the accused perceived them to be at the time of the conduct. The circumstances should not be looked at with the benefit of hindsight but in the realisation that calm reflection cannot always be expected in a situation such as the accused found him or herself: Meckline Poning v The State (2005) SC814.
     

Self Defence

103. So did the accused kill the deceased in self defence against a provoked assault under Section 269 of the Code?
     

The Law

104. Section 269 relevantly provides:
     

269. Self-defence against unprovoked assault.

(1) When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm.
(2) If—

• (a)
• (b) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and
• (c) the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm.
  

105. Under Subsection (1) the following elements of the defence must exist:
     
     1. The accused;
     2. Is unlawfully assaulted;
     3. He did not provoke the assault;
     4. He used force that was reasonably necessary to make an effectual defence against the assault;
     5. The force used is not intended to cause and not likely to cause death or grievous bodily harm.
        
106. Notwithstanding that, an accused person may use force which may result in the death of or cause grievous bodily harm to the other person if the following elements under Subsection (2) are further made out:
     
     6. The deceased unlawfully assaults the accused; and
     7. The accused did not provoke the assault; and
     8. The nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and
     9. The accused believed on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm than to use such force as was necessary for his defence; and
     10. Killed the deceased.
         
107. The accused need not affirmatively show that he acted in self-defence. However, when the defence is fairly raised or the accused leads evidence to that effect, the State must negative the defence beyond a reasonable doubt. The State need not, however, disprove every element of the defence. Disproving or negativing at least one element is sufficient to discharge its duty. (R v Paul Maren (1971) N615, The State v Alphonse Dumui (2009)N4258"> N3686, The State v Maria Agua CR No 208 of 2007, 16.07.09)
     
108. The two parts to this provision do not in my opinion create two separate defences. Rather the whole provision is clearly saying that where a person has been unlawfully assaulted without provoking the assault, he can use such force as is necessary to put up an effective defence, providing that the force he uses is not intended to cause death or grievous bodily harm.
     
109. However, if the assault by his assailant is of such a nature as to cause reasonable apprehension of death or grievous bodily harm, and the accused believes on reasonable grounds that he cannot otherwise preserve himself from death or grievous bodily harm, he may use such force as is necessary even if it causes death. But where an accused person clearly shows from the evidence that he intended to kill the deceased or cause him grievous bodily harm, he cannot avail himself of the defence.
     
110. In R v Kaiwor Ba [1975] PNGLR 90, Frost CJ held, inter alia, that:
     

“To establish self-defence against unprovoked assault under s. 271 of the Criminal Code (Queensland adopted) it must be proved beyond reasonable doubt (a) that the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm; (b) that the person using the force believed that he could not otherwise preserve the person defended from death or grievous bodily harm; and (c) that such a belief was based on reasonable grounds”.

111. The force used to put up an effective defence need not be proportionate to the force used by the other person. As the Supreme Court said in The State v Kai Joip Dipa (2007) SC 868 (Sakora, Kirriwom, Lay JJ):
     

“It is the reasonableness of the belief and the reasonableness of the grounds for that belief which found the defence and not any proportionality between the assault and the defence.”

112. At this juncture, it must be reiterated again that the defence under Section 269 is not available if the accused intended to cause the death of the deceased or cause him grievous bodily harm.
     

Deliberations

113. So, this is now a consideration of the elements of the defence against the evidence.
     

Was the accused unlawfully assaulted?

114. Defence relies on the accused’s oral evidence that when the deceased turned, drew his weapon and corked it, that amounted to an assault within the meaning of the CC definition provision of Assault by bodily gesture.
     
115. State witnesses’ evidence on this was mainly one of uncertainty due to not focusing attention to what was in the deceased’s hands and what he did with anything that was in his hand or the gun for that matter, when turning around, falling and whilst on the floor. The only evidence from state witnesses in relation to the deceased’s gun and where it was that it was found some time later under the shelf after he was shot dead.
     
116. If the accused is the only person who provides the evidence that the deceased held the gun in his hand and corked it before he was shot, the court still must decide whether to accept that or not in the whole of the circumstance of the case as the evidence presents. In the present case, for purposes of finding an assault by the deceased on the accused in order for the self-defence to stand, if I was to accept the accused’s evidence that the deceased corked his weapon before the accused did, it would be expected that given his experience and expertise as a military man, the deceased would have shot at the accused as he was first in time to cork his weapon. There is no evidence that the deceased’s gun fired any shots at all.
     
117. I therefore reject the accused’s story that the deceased had corked his gun and was about to shoot him when he fired at the deceased.
     
118. Further, the accused said that after he fired the first shots, the deceased fired back. Again, there is no evidence from the ballistic experts and specifically the oral testimony of Sergeant Numbos that the deceased’s gun fired any shots. On this basis, I reject the accused’s story. The state witnesses’ evidence that they did not see the deceased cork his weapon or had it in his hand as he was turning is consistent with the ballistic findings that the deceased’s weapon never fired any shots.
     
119. I do not find that the deceased held his gun and corked it.
     
120. It can also be possible that the deceased corked his weapon but didn’t intend to use it just like what happened at the first instance at the enquiries counter, and if that is so, there would not be any need to consider either the presence of or absence of any fired bullets to determine if the assault was made out. If that is the case, just holding a weapon in the hand and corking it is an assault as in the circumstance, and that presented an imminent danger.
     
121. But I reject that also given the above reasons as there is a plausible inference that the deceased could not have locked the weapon in the holster after drawing it the first time at the enquires counter section, and that it fell away from him as he was falling down and or landing on the floor after being shot by the accused.
     
122. Further, in response to the defence argument that this possibility (i.e. that the accused did not lock his gun back properly in its holster) was not put to state witnesses, I say it would not have been fair on the state witnesses to have this put to them in cross-examination or even to the accused for that matter as it would have been a matter solely within the knowledge of the deceased unless someone was closely observing him. I doubt that it would have been possible to tell whether the deceased locked his weapon in the holster after he first drew it given the tensed situation everyone was all under at that time.
     
123. The accused had given his own opinion about the deceased not locking his weapon, but the fact of the matter in the absence of any eye-witness account on whether the deceased locked his pistol back securely in its holster is within the knowledge held by him (deceased) alone. If the deceased locked his pistol back in the holster, the accused or anyone else would not have known unless they were paying attention to this minute detail.
     
124. It is therefore, for the court to infer in all of the circumstance whether the deceased locked his pistol back in the holster or not? The other questions the court would ask are: at that time, as he was leaving the heated argument, was locking back a pistol a priority for him? In rejecting the accused’s story for above reasons, I accept the State’s submission that, there is one possibility that the deceased didn’t lock his weapon in the holster and that landed the gun on the floor under the shelves adjacent to where he laid.
     
125. I reject the accused’s story that the deceased turned, and corked his pistol based on common sense and logic because if he had turned, he would not have sustained a bullet entry wound at the back of his right buttock. Evidence of the bullet entry point on the buttock of the deceased indicated that he had his back to the accused as he was turning and when he was called by the accused. From the medical evidence, it appears that the shot on the buttock would have been sustained first in time as the deceased had his back to the accused and was turning around when the accused fired the first shots. Once the deceased was fully turned and facing the accused, the rest of the shots were fired in rapidly before and after he fell and landed on his back to the floor. The rest of the bullets according to the evidence of the bullet entry points showed that the bullets entered from the front of the deceased’s body and at his abdomen, chest and shoulder area.
     
126. If the deceased had his back to the accused, he would not have presented a threat or offered an assault in the manner the accused said he did. It would not have been reasonable in the circumstance to say the accused’s life was in danger or the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm when there was no such assault or threat.
     
127. In rejecting the accused’s story as above, I accept that the deceased did not draw his gun or it was not locked in the holster and it fell out upon the impact of him being shot, falling and landing on the floor, and from continuous shooting.
     

Did the accused provoke the assault?

128. It is not disputed by the accused that the deceased walked away or was taken away by Maraga Teka. He was saying the words ‘I will kill you’ but was not presenting a threat as his back was towards the accused. Maraga Teka said the deceased had calmed down and they were heading to the restaurant. The accused said the words “Don’t just say it, do it”, and that is provocation. The accused did offer provocation but the deceased did not assault the accused. The defence is negatived.
     

Was the nature of the assault such as to cause reasonable apprehension of death or grievous bodily harm?

129. There was no assault by the deceased. The accused was not assaulted.
     

Did the accused believe on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm?

130. There was no assault. The accused was not assaulted.
     
131. Section 270 defence does not apply.
     

Was the killing lawful?

132. The next question is, was the killing lawful? It would be lawful if the accused did not intend to cause the death of the deceased or cause him grievous bodily harm.
     
133. I had found that GBH and or death was not caused in the execution of a self-defensive act due to an assault that was aimed at effectively neutralizing or fending off an assault. There was no assault of such a nature to cause a reasonable apprehension of death or grievous bodily harm.
     
134. On the presence or otherwise of the element of the intention on the charge of wilful murder, I find that there was intention.
     
135. The Medical report is evidence of the fact that the accused fired all 16 bullets from his pistol thus emptying his firearm and these fired bullets caused lacerated internal organs resulting in the death of the deceased.
     
136. The threats if any had been eliminated twice, first when the deceased walked away from the accused at the enquiries counter and again, when he was shot down. The accused’s self-invitation to go after the deceased after he walked away when the threat was eliminated and whilst his back was to the accused, shooting at him and the continuous shooting whilst he was wounded and on the ground is unreasonable under the circumstance.
     
137. It is logical and common sense to say that the bullet entry wound to the buttocks confirm that the first shot would have occurred whist the deceased had his back to the accused. The evidence of the bullet entry wound on the buttock is consistent with the fact that the deceased still had his back to the accused when the first shot or shots were fired.
     
138. The rest of the bullet entry wounds were in the front of the deceased’s body indicating that the deceased had then fully turned around and faced the accused. Again, common sense and logic from the medical report tells that if the shot on the buttock was the first shot, that was the shot that got the deceased down immediately and not the shot on the legs as the accused say. For this reason, I also reject the accused’s story that he fired on the deceased’s legs to disable him.
     
139. The continuous further shooting after the deceased was shot down, causing the deceased to die from the multiple bullet wounds exhibited an intention to kill on the part of the accused. In the accused’s own evidence in cross examination, he was in a state of shock after his first shots and when the deceased fired back at him. I have rejected that evidence that the deceased fired back, therefore, the continuous rapid shots demonstrated intentional conduct to end the life of an already wounded person.
     
140. There could not have been a mistake of fact by the accused as the court had found that the deceased had his back to the accused and was turning. The court had also rejected the accused’s story that the deceased had drew his weapon and had corked in. In the circumstance, although the deceased was armed, and had earlier on drawn his weapon, he had not fired any shots, he had walked away and calmed down and having had his back to the deceased, it was not reasonable in the circumstance to find that it can be mistaken that he had drawn and corked his weapon.
     

Verdict

141. For all the reasonings above, I find that the excusatory defences of self-defence and Mistake of Fact do not apply and the State has negatived these defences beyond reasonable doubt. The State had proven its case beyond reasonable doubt that the accused had wilfully and unlawfully caused the death of the deceased.
     
142. I find the accused guilty as charged on one count of wilful murder.
     

Ordered accordingly.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitors: Lawyer for the Accused