State v Isau [2024] PGNC 411; N11080 (4 October 2024)

N11080

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 113 & 114 OF 2023

THE STATE

v

ANDREW KOLA ISAU AND
PHILIP AISAUA MAINO

Waigani: Salika CJ
2024: 16th, 17th, 18th & 19th April; 4th October

CRIMINAL LAW – Practice and Procedure – Robbery – Accused and others demanded money – Driver gave K40 – Driver did not give any more after several demands – Co-accused fired shot and killed another person – Defence of not being the person who fired the shot - Section 7 (1) (b) covers the accused.

CRIMINAL LAW – Practice and Procedure – Intent to cause grievous bodily harm – Inference drawn from conduct of the accused.

Cases Cited:
State v Raphael Kuanande [1994] PNGLR 512

Counsel:
Ms E Kave, for the State
Mr D Kayok, for the Accused

4th October 2024

1. SALIKA CJ: INTRODUCTION: Andrew Kola Isau and Philip Aisaua Maino were charged with one count of Murder contrary to Section 300 (1) (a) of the Criminal Code. The charge read:
   

“Andrew Kola Isau and Philip Aisaua Maino both of Waisaka village, Kairuku, Central Province stand charged that, at Ofola village, Kairuku, Central Province in Papua New Guinea, on the 27 day of October 2020, murdered one Steven Apini, contrary to s. 300 (1) (a) of the Criminal Code.

And at the time the said Andrew Kola Isau enabled the commission of the offence, contrary to s. 7 (1) (b) of the Criminal Code.”

2. On arraignment, Philip Aisaua Maino pleaded guilty to the charge and his matter was stood down while Andrew Kola Isau denied the charge and his trial ensued.
   

FACTS

Allan Apini and his family were travelling in a motor vehicle he was driving to their village in Kairuku, Central Province, when they were stopped in the middle of the road at Okofa village by a group of drunken men. Amongst this group were the co-accused: Andrew Kola Isau and Philip Aisaua Maino.

It was alleged that the group of men demanded money from Allan Apini and his family before they could be allowed to pass through. Allan Apini, who is the brother of the deceased gave K40 to them. Andrew Kola Isau went up to the window still demanding more. It was during this time that the accused Philip Aisaua Maino called out to Andrew Kola Isau and the others to stand clear of the vehicle as he loaded his firearm and fired a shot directly towards the driver. The bullet missed Allan Apini the driver but hit Steven Apini in his chest area. Upon realizing the deceased had been shot, the youth group fled the scene.

This deceased was rushed to St Gerard Hospital, Veifa’a, but succumbed to the injuries and was pronounced dead on arrival.

The State invoked Section 7 (1) (b) of the Criminal Code against Andrew Kola Isau, alleging he enabled the commission of the offence by approaching the driver and demanding money, preventing him from driving off, during which time accused Philip Aisaua Maino fired the shot that got the deceased which caused his death. The allegation by the State, therefore, is that the accused persons intended to cause the deceased grievous bodily harm and their actions caused the deceased fatal injuries which resulted in his death; thereby contravening Section 300 (1) (a) of the Criminal Code.

ISSUES

3. There is no dispute that Philip Aisaua Maino fired the shot that killed Steven Apini. There is no dispute that Andrew Kola Isau was part of the group of armed men preventing the motor vehicle driven by Andrew Apini from proceeding on its onward journey.

The State invoked s. 7 (1) (b) of the Criminal Code in an endeavour to connect Andrew Kola Isau to the shooting of Steven Apini by Philip Aisaua Maino. The issue therefore is whether the actions of Andrew Kola Isau during this entire episode amounted to “enabling or aiding another person to commit the offence” pursuant to s. 7 (1) (b) of the Criminal Code.

THE STATE EVIDENCE

4. The State called only two witnesses; Dr Seth Fose and Allan Apini.
   
5. Dr Fose’s evidence covers the medical report and the cause of death of Steven Apini. His evidence is not in dispute as to the cause of death. He gave evidence of an error in his report and the subsequent correction of the error in the report.
   
6. The next witness was Allan Apini. Allan Apini’s evidence is that he and his family left Port Moresby during the day to go to their village, Veifa, on a motor vehicle. He was the driver of that motor vehicle. His brother, Steven (deceased) sat next to him on the off-side. Others including his wife sat at the back of the motor vehicle. They reached OFoka village, a small village before Veifa. At that village, he saw a group of youths standing on the side of the road. As the vehicle went closer to them, they ran onto the road and prevented him from going any further. The youths were armed with knives and demanding money and hitting the side of the vehicle and shouting and jumping up and down. When the youths jumped onto the road he stopped the vehicle, took out his wallet and gave them some money but they wouldn’t let him through. As he sat in the vehicle, the accused came up to the vehicle and demanded for more money. He said that he took out K40 and gave it to him and he saw that Andrew relaxed a bit and seemed to want to let go but he was waiting for an order from the gunman. Whilst all this was happening, Allan was keeping his eyes on the road to see if he could drive off. As Andrew Kola and the others were still holding onto the vehicle and some were standing in front of the vehicle, he could not drive off. He then heard Philip shout for them to move and Andrew moved and stepped away from the vehicle. The next minute he felt a hot gush of air go past under his chin and felt like something burned his face, he heard the gunshot and heard his brother shout ‘aiya’, He looked across and saw his brother slumped over and he reached out and touched him and saw blood on his hands and then he turned and looked at Philip and shouted, “you shot my brother”. He said when he looked at Philip, the gun he was holding still had smoke coming out of it and he (Philip) did not react; it was as if he had just shot a pig or a sick dog and not a human being. When the rest of the boys realized that someone had been shot they all ran away. He then held onto his brother and drove the vehicle at very high speed to try and get his brother to the hospital at Veifa’a but on the way his brother died and when they reached the hospital, the doctors and nurses confirmed that he was already dead.
   
7. Allan Apini was asked to clarify Andrew Kola Isau’s part in the whole incident and he said that when Andrew approached the vehicle, he did not say anything. He just demanded money and after he gave him the money he did not say thank you, he just grabbed the money and kept on holding onto the vehicle. He said these were just young village boys and when he saw them he did not feel afraid; in fact he thought that when they saw that he was older they would let them go out of respect for elders but this did not happen. He further said that after his brother was shot and killed, the village people and chiefs worked together with the police and gave names of the boys involved and he was able to identify both Philip and Andrew when they surrendered to the chiefs. He was also asked who he was referring to when he said Andrew and he pointed to the accused in the dock and said that at that time Andrew was slimmer but he has since put on some weight. But he said he remembered his face.
   
8. In cross examination, Allan Apini was asked if he knew the accused, Andrew or if he had seen him before prior to the incident and he said no. He did not know him and had not seen him before. It was put to him that the accused was identified by the chiefs and not him and he responded that the chiefs and police had brough them and he identified them. At that time he did not know their names but knew his face. It was also put to him that there were a lot of boys that day and if he identified any others but he said if they were brought in maybe he would have but for the two now before the Court, he remembered them because they were the main ones. Their faces were ‘burnt into his memory’.
   
9. There is no dispute Andrew Kola Isau was with the group of young men. He admitted that. It was not necessary to cross-examine Allan Apini if he knew Andrew Kola Isau. Andrew Kola admitted to the part he played in the robbery and the murder.
   

DEFENCE EVIDENCE

10. The accused did not give any evidence and exercised his right to remain silent. His record of interview was tendered into evidence by consent of his counsel, that is the Pidgin version and the English version. They are Exhibits A1 and A2 respectively in this proceeding. The confession statements were also tendered into evidence by consent of his counsel as well. They are Exhibits B1 and B2, that is the Pidgin version and the English version.
    
11. The evidence in the Record of Interview and the Confession Statement place Andrew Kola at the crime scene. He admitted he was the one who got the K40.00 from the driver. This evidence corroborated Allan Apini’s evidence. No issue of identification arose here.
    
12. Andrew Kola Isau was present the entire time at the crime scene; from the time of blocking the road preventing Allan Apini from passing through to the shooting of Steven Apini by Philip Aisaua Maino.
    
13. That was the only evidence from the accused in relation to his part at the scene of the crime.
    

THE LAW

14. The accused is charged with the offence of Murder under s. 300 (1) (a). Section 300 (1) (a) reads:
    
    1. MURDER.

(1)[103] [104]Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–

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

(b) if death was caused by means of an act–

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life;

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

15. The State invoked s. 7 (1) (b) of the Criminal Code.
    

Section 7 (1) (b) reads:

1. PRINCIPAL OFFENDERS.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:–

(a) every person who actually does the act or makes the omission that constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence.

ELEMENTS OF THE OFFENCE

16. The following are elements of the offence of murder:
    
    • (a) The accused;
    • (b) On a date and place;
    • (c) With intent to cause grievous bodily harm to a person killed that person.
      
17. Since the State invoked s. 7 (1) (b) of the Code, the State must also consider the elements of that provision. Which are:
    
    1. The accused.
    2. Aided or enabled the person.
    100. To commit the offence.
         

BURDEN OF PROOF

18. The State has the burden of proof to prove all the elements of the charge under s. 300 (1) (a) and s. 7 (1) (b) of the Criminal Code beyond reasonable doubt.
    

UNDISPUTED FACTS

19. The following facts are not disputed.
    
20. The accused did not give any evidence but the way his submission is couched suggests that he did not fire the shot that killed Steven Apini and therefore is not criminally responsible for the death of Steven Apini.
    
21. The accused’s submission is that he did not fire the shot that killed Steven Apini. That is an admitted fact.
    
22. His next submission is that he never intended to cause grievous bodily harm to Steven Apini and that his evidence in his Record of Interview shows he was trying to stop the other boys from blocking the car and that Allan Apini never felt threatened and was shocked when Philip Aisaua Maino fired the shot.
    
23. Allan Apini’s evidence describes a group of men standing on the side of the road blocking his passage through. They prevented Apini’s vehicle from going any further. The group of men were armed with knives and demanding money and hitting the side of the vehicle and jumping up and down. When the youths jumped on the road, Allan Apini stopped the motor vehicle and gave the accused K40.00 but the accused was demanding more.
    
24. The description of the event by Allan Apini in his evidence is more like a robbery that went wrong and in the process a man was shot and died from that shot.
    
25. The accused’s confession statement says after the accused was given K40.00 by Allan Apini, the man who shot Steven Apini told the accused to clear off which he did and after he stepped aside, Philip was able to shoot Steven Apini.
    
26. Do actions of the accused described above, bring the accused s. 300 (1) (a) and s. 7 (1) (b) of the Criminal Code? First of all, to answer the question, I deal with the elements of the offence under s. 300 (1) (a).
    

Element One

(1) The accused – No dispute, it is Andrew Kola Isau.

Element Two

On a date and place – No dispute the date was 20 October 2020 and the place is Ofoka.

Element Three

With intent to do grievous bodily harm to a person killed that person.

The evidence shows the group of youth went looking for unwary motorists to rob. Allan Apini came along and he was swarmed by the youth and money was demanded by them including the accused. He gave K40.00 to the accused. They asked for more which was not given. Philip Aisaua Maino told Andrew Kola Isau to clear off so he could fire his gun. At Philip’s direction to, Andrew to clear off is a statement of the intent of Philip. A shot was fired by a member of the group and Steven Apini died from the shot. Before the shot was fired, the accused was told to clear off so that a shot could be fired. The accused moved himself from the path of the bullet and when the shot was fired, Steven Apini was shot.

Considering all those facts, I am satisfied that this element of the charge has been proven beyond reasonable doubt. Philip’s command to Andrew and Andrew’s act of clearing himself from Allan Apini amounted to his agreement to do grievous bodily harm to Steven Apini.

27. With respect, I agree with the State’s submission that the accused and the group were armed with weapons; guns and knives, and stopped Allan Apini and prevented him from passing through on his way to his nearby village. Before Philip Aisana Maino fired the gun, the accused knew Philip Aisana Maino was armed with a gun and when Philip told him to move away, the accused did nothing to stop Philip from firing the shot. Instead, he gladly moved away enabling a clear pathway for the bullet that killed Steven Apini.
    
28. In relation to the issue of intention, Counsel usefully referred to a case precedent the State v Raphael Kuanande (1994) PNGLR 512 where Injia J (as he then was) said:
    

“In relation to s. 300(1)(a), it is clear that the accused intended to cause grievous bodily harm to the deceased or any of the other “enemy” persons who accompanied him. It is immaterial that the accused intended to hurt the deceased (see s. 300(2)). In firing the gun directly at the deceased, he intended to do bodily harm of such a nature as to endanger or like to endanger life or to cause or be likely to cause permanent injury to health. (see s. 1 of the Code for definition of grievous bodily harm).”

29. Whether an accused had the requisite intention, the Court must have regard to all of the evidence and the circumstances under which the offence was committed. The bullet missed Allan Apini but got Steven Apini.
    
30. From all the evidence, I am satisfied beyond reasonable doubt that the intention of the accused is clearly played out. He was there to rob unsuspecting motorists and when that robbery went wrong, Steven Apini was killed. That killing arose out of a robbery that went wrong. It was a foreseen consequence if the robbery did not go according to plan or something went wrong.
    
31. In any case they set out to rob motorists on the main road and that plan was not fully successful and when it was failing, the death eventuated. Death was always going to be a foreseeable event should their scheme failed, and it did in this case.
    
    

Element 4

32. Kills another person – this element of the charge is not disputed. Steven Apini was killed as a result of a shot fired from a gun by Philip Aisaua Maino. This element of charge is proved beyond reasonable doubt.
    
33. Moreover, the accused is caught under s. 7 (1) (b) of the Criminal Code in that the accused being part of the group of youth is deemed to have taken part in committing the offence even though he did not fire the gun shot that killed Steven Apini. The accused other contribution to the commission of the offence of murder is that he did the act of clearing away from Allan Apini to enable Philip Aisaua Maino to have a clear view of Allan Apini and Steven Apini. Once the accused moved, Philip fired, missed Allan but got Steven. I am satisfied beyond reasonable doubt that the elements of Section 7 (1) (b) of the Criminal Code have been proved.
    
34. Accordingly, I find the accused, Andrew Kola Isau, guilty of the charge of murder beyond reasonable doubt.
    

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