SC2662

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 58 OF 2022

DARRYL YAKALI
Appellant

-V-

THE STATE
Respondent

Kimbe: Geita J, Narokobi J & Coates J
2024: 26th November & 27th November

CRIMINAL LAW – appeal against conviction – murder, s 300(1)(a) Criminal Code – whether defence of accident under s 24(1)(b) Criminal Code properly raised – whether conviction was safe and satisfactory.  
 
The Appellant was convicted for murder under s 300(1)(a) of the Criminal Code. He exercised his right to remain silent during the trial but relied on his record of interview, which he submits, raised the complete defence of “accident” under s.24 of the Criminal Code, but was not negated by the State led evidence and as a result the conviction was not safe. 

Held:

(1)	For the defence of accident under s.24(1) of the Criminal Code to be properly raised, there has to be evidence providing reasonable explanation of the defence of accident, for the State to negate the defence. Here, the statements in the record of interview, although admitted into evidence, did not sufficiently raise the defence of accident, for the State to negate.

(2)	In any case, the trial judge properly considered the defence, and made findings that the accidental shooting was negated by the evidence led by the State.

(3)	The conviction was safe and satisfactory, and the appeal is dismissed.

Cases Cited:
James v State (2020) SC1937
John Beng v The State [1977] PNGLR 115
Namaliu v The State (2021) SC2126

Counsel:
N Hukula and N Loloma, for the Appellant
H Roalokona, for the Respondent

27th November 2024

1.	BY THE COURT: The Appellant was found guilty of murder under s300(1)(a) of the Criminal Code after trial and was sentenced to 20 years. He appeals against both conviction and sentence.

2.	It is an appeal under the Supreme Court Act, Chapter 37, and not a review pursuant to s 155(2)(b) of the Constitution.  Section 22 of the Supreme Court Act provides for appeals against conviction and sentence (s 22(d)).  Three grounds of appeal are raised by the Appellant against the decision of the learned trial judge:

•	The trial judge erred in rejecting the Appellants Defence of accident in the Appellant’s record of interview.
•	There is overwhelming evidence that the deceased was a criminal and a threat.
•	The sentence of 20 years was excessive and in the circumstances, harsh.

3.	During submissions the Appellant abandoned his appeal against sentence, and we proceeded to hear counsels only on the appeal against conviction. 

4.	In the National Court the State proved that on 25 June 2020, the Appellant and other policemen were in search of the deceased Dale Benny. They saw the deceased father and told him that his son must go to the police station. After that the deceased father heard three gunshots. From the record of interview, after a shot was fired by the Appellant, the deceased grabbed the barrel of the gun and they both struggled. This was when the Appellant pulled the trigger again and fired several shots. Graphic photographs show the horrific injuries inflicted on the right and left legs of the deceased. After shooting the deceased, the Appellant took him to the hospital where he later succumbed to his injuries.

5.	The only issue before us relates to conviction. The enquiry the court undertakes to look at whether conviction should be overturned is framed by the often-cited case of John Beng v The State [1977] PNGLR 115, and is stated this way, that is whether in all the circumstances, the verdict was safe or satisfactory?

6.	Reliance is placed on the Appellant’s record of interview. Appellant says in his record of interview that he raised the defence of accident. The following is apparent from the questions and answer in the record of interview:

Q18: What did you do when you saw Dale with his friend?

Answ: I walked around the fence and came in front of them and said, “Police,” and told him to lay down. The boy with him got up and ran away and at the same time two of the policemen were walking behind me.

Q19: What did you do when you told Dale to lay down?

Answ: He did not listen to us because he was so drunk. Three of us believe he was armed with a home-made gun.

Q20: What did you do when you saw that?

Answ: I shot his leg or not I’m not sure but I fired one shot and Dale got up and grab hold of the barrel of the rifle and we struggled. When we struggled, how many shots were fired, I couldn’t count or recall and Dale fell and I stood there with the rifle.

Q29: Do you have anything to say regarding your charge?

Answ: Yes. We know Dale’s character who he is. We tried for a long time to pick him up and he has a long history of shooting back to police also alot of public are his victims at Section Fifteen (15) area. On Wednesday night Dale went into the Police barracks and threatened the police that’s why we approached in that manner. If Dale had not grabbed hold the barrel of the rifle and struggle. He shouldn’t have received such injuries.  

7.	Apart from the record of interview, which the Appellant did not object to the State tendering, the Appellant chose to remain silent throughout the trial. The record of interview was the only piece of evidence he relied on to support his defence of accident.

8.	As we understand it, the Appellant submitted that no direct evidence was led by the State to show what transpired when the shots were fired. The only witness who would have given direct evidence against the Appellant in the National Court was not available to be called by the State. For this reason, the Appellant submits that the defence of accident was not negated by the State beyond reasonable doubt. 

9.	Section 24(1)(b) of the Criminal Code provides for the defence of accident:

“Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for ... an event that occurs by accident.”

10.	Accident is a complete defence that operates in the same way as other excusatory defences such as self-defence (James v State (2020) SC1937). The Supreme Court in James v State went further to hold that once the accused puts evidence that the fact in which the accused has been charged for, has ‘occurred by accident,’ the onus shifts to the prosecution to disprove that explanation.

11.	In our view, the statement by the Appellant in the record of interview was a “mere conjecture.” There had to be more detailed explanation from the admissible evidence, to shift the burden to the State to disprove the defence. For example, in the case of Namaliu v The State (2021) SC2126 where the defence of accident was raised, the accused gave oral evidence. The Appellant exercised his right to remain silent in this case.

12.	We are not satisfied that the Appellant had properly raised the defence of accident. The defence may arise from the circumstantial evidence. Simply asserting the defence of accident is not enough. The Appellant is in the position where his defence consistent with innocence ceases to be rational or reasonable. 

13.	In any case, accident implies no preconceived intention for the criminal act or omission. In our view the trial judge adequately considered the record of interview (especially question and answer 19 and 20) and the evidence of the father of the deceased, Benny Torua. The uncontradicted evidence of the father of the deceased is that the Appellant would shoot him like he shot some other person if his son did not come in with K500 to the police station. We reject the submission of the Appellant that it is not clear who made the statement to the deceased’s father, evidencing intention to cause grievous bodily harm, as it could have been made by any of the policemen accompanying the Appellant because he (deceased father) used the words to the effect of “they said” and not that the “the Appellant said to him.” The totality of the circumstances from what the two oral testimony, the fact that the Appellant approached the deceased with a gun, the nature of the injuries inflicted, and the insufficient explanation of the Appellant support the findings of the trial judge that the Appellant went to see the deceased with the intention to cause him grievous bodily harm and he did in fact cause him harm, by shooting him and that led to his death.  The evidence in the record of interview was that one shot was fired before the Appellant and the deceased entered into a tussle, and then several more shots were fired by the Appellant. Four empty shell casings were retrieved from the scene of the shooting. 

14.	As the Respondent submits, the trial judge discussed whether it was logical for the deceased to put up a struggle with the Appellant after he was shot in the leg from the first shot that the Appellant himself said he discharged in the record of interview. Learned trial judge’s view which we agree with, is that the injuries were so severe that it was not logically possible to have occurred from a struggle. We agree with the Respondent that the Appellant’s assertion of an accident defy logic and commonsense.

15.	We conclude after considering the whole of the circumstances that the conviction was safe and the appeal against conviction should be dismissed. 
________________________________________________________________
Public Solicitor: Lawyers for the Appellant
Public Prosecutor: Lawyer for the Respondent