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State v William [1995] PGNC 37; N1380 (18 October 1995)

Unreported National Court Decisions

N1380

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 600 OF 1995
THE STATE
v
SMITH WILLIAM

Mount Hagen

Injia J
11-18 OCTOBER 1995

CRIMINAL LAW - Particular offence - Unlawful killing - Policeman accused of shooting a suspect armed with a shotgun and involved in a road-block on Okuk Highway at Mulitaka, Enga Province - Whether defence of acting on sudden emergency under S. 26 of Criminal Code available to accused - Statutory and common law duty of policeman to use reasonable force to defend person and property under person’s custody or to prevent commission of crime generally and on the highway discussed - Criminal Code, Ss. 26, 31 (1) (a), (b), 269, 302, Police Force Act Ch No 65, s. 139, Constitution s. 35 (1) (b) (i), (iv).

Cases Cited:

State v Ampi [1988] PNGLR 116

R v Waterfield [1963] All ER 659

Text Referred to:

Archbold’s Criminal Pleadings and Practice 42nd Edn

Halsbury’s Laws of England, 3rd Edn Volume 30

Counsel:

P Kumo for the State

P Dowa for the Accused

JUDGMENT

18 October 1995

INJIA J: The accused is a policeman based at Wabag, Enga Province. He is indicted on one count of the unlawful killing of one Lais Tolo of Tulipato village, Mulitaka, Laiagam, in the Enga Province. The charge is laid under Section 302 of the Criminal Code.

It is the State’s allegation that on 7 August 1994, between 7pm - 9pm, the accused shot the deceased with a AR. 15 rifle on the hip area as a result of which the deceased died that same night. To support this case, the State called seven (7) eye-witnesses who gave oral evidence. The State also tendered into evidence, by consent of the accused, the Medical Report of Dr Canety Lombage. The State case is basically that the deceased and 3 other men were returning home from Tulipato market place when the government vehicle used by the accused and another policeman came to a full stop and the accused who sat on the “crew side” in the front cabin came out, opened fire and shot the deceased with the first shot. The vehicle then took off and as the vehicle went, two further shots were fired. They said the deceased was a leader in the village and denied knowledge of any road-block set up at or near Tulipato village that evening.

The accused gave sworn evidence supported by Const. John Boscue who was the driver of the motor vehicle. His story is that at that time, they were based at the Tapinini Police camp at the Pogera mine site. In the afternoon, they were instructed by their Commander to come to Wabag to collect some ammunition from the Police armoury at Wabag for use in a mini-raid the next day. After collecting the ammunition at Wabag, they returned. They had with them a AR. 15 rifle and a 303 rifle plus live ammunition rounds. As they approached Tulipato village, they came across a road-block manned by 6 men who were armed with bushknives, axes, and one of them was armed with a home-made shotgun. As the vehicle came to a stop, the men approached them. The accused got out of the vehicle with the AR. 15 rifle, took aim at the legs of the person armed with the shotgun and fired at him, at close range, intending to injure and disable him. Then he got back into the car and Const. Boscue managed to climb over the road-block and they drove off. This whole incident happened very fast - it took less then one minute. As they drove off, the accused fired 2 more shots into the air to disperse the men. At that time, they did not know if the man with the shotgun had actually been hit and whether or not he died that evening.

The medical evidence shows that a single gunshot pellet entered and penetrated the right mid thigh, through the pelvic area and exited to the left iliac area. The exit spot showed a deep laceration measuring 1.5cm x 1.5cm. This is consistent with the accused’s evidence as to the target aimed at.

The accused relies on the defence of self-defence against unprovoked assault (Code, S. 269).

Much depends on the factual issue of whether there was a road-block at or near Tulipato village. The onus is on the prosecution to persuade me, beyond reasonable doubt, that there was no road-block. On the State’s evidence, I am not satisfied that there was no road-block. Indeed, I am satisfied on the totality of the evidence for the State and the defence that there was a road-block which was manned by 6 or more persons who were armed and whose faces were smeared with mud or charcoal. I am satisfied that one of these persons was armed with a shotgun. I am also satisfied that this person was the victim, Lais Tolo. The evidence from which I make these findings are as follows. The State witnesses admit there were plenty of people at Tulipato market place during the day. They said, at the material time, that is between 7pm - 9pm, there we 80-90 people on each side of the road, some people were at the snooker house and these four men, i.e. the deceased, Tumu Sakato, Peter Kapili and Nision Kendeap were all walking along the road. Shortly before the accused arrived in the vehicle, a team of 3 vehicles had carried the dead body of a man from that area killed at the Pogera mine site explosion. They stopped at Tulipato because the deceased was somehow related to these people and arrangements were made to attend the funeral the next day. There would no doubt have been some excited people in mourning, in grief or in anger on or near the road between Tulipato and Yambali camp. A road-block being set up by some of these men was not an unlikely event. The State witnesses have denied there was no road-block. But all the State witnesses come from the same area and are related to the deceased by tribal affiliation. There is no independent evidence that there was a road-block. The two defence witnesses have strongly maintained that there was no road-block. Why would the two policemen suddenly stop at Tulipato, for no reason, and take aim at one of the four men on the road, aim for his leg and just shoot with a high-powered firearm at close range; for no reason at all, and drive off? These two policemen, like any other policemen were there on their normal official run. They had no enemies at this place including the victim.

It is submitted by Mr Kumo of counsel for the State that the deceased was a village leader and a man with four children and that he was walking along the road with three other village leaders. It is submitted, as leaders, they would not have been involved in any road-block and the deceased would not have been armed with a shot-gun that night. However, there is no independent evidence that the deceased was a village leader. There is the medical report that he was aged about 40 years old but on this evidence alone, I am unable to conclude that he was not or could not have been involved in the road-block and was not armed with the shotgun.

If I accept the State witnesses’ version, I would have to find that these two policemen and especially the accused were so stupid; immoral; lacking in commonsense, dignity and sense of respect for the law that they had to stop at a busy place for no apparent reason and just fire the first shot directly at those who appeared and take off. The State has sought to taint the accused character by the fact that earlier that day they had picked up two young women, given them a lift to Laiagam and on their way back, they picked up the older woman and placed her in between them in the front cabin. The witness herself, Poan Yalya, has come to give evidence of being asked to come to the front and the accused kissing her on her cheek, holding her breast and stomach and that she smelt alcohol in his mouth when he kissed her. The accused and his other witness do not deny that they gave her a lift to Laiagam and returned back with her and dropped her off at Yambali. The accused has denied he fondled her breasts and stomach and kissed her. Both men denied they drank alcohol that day. Does her evidence sufficiently depict the accused as a man of bad character and such that he abused his powers when it came to the performance of his duties, especially when it came to the use of the gun on the people on the road that night? In my view, I am unable to make any such definitive conclusion on his character on this kind of evidence. This woman was a divorced woman at the material time. She was free to associate with any men of her choice. There is no doubt that the trip to and from Laiagam was done with her consent and also with her consent, she joined the two men in the front cabin of the vehicle. I find that the accused fondled her breasts, held her stomach and kissed her. I find that these were done with the implied consent of Poan. I also find the accused was not intoxicated that night because there is insufficient evidence. But whatever was said or done in between them in the front cabin was all between consenting adults and I am not prepared to impute any bad character on the part of the accused.

In any case, on the evidence of the two policemen and the evidence of Poan Yalya, I find that the two policemen misbehaved that day. They should not have given lifts to Lapian and her 2 sisters. They should not have put Poan in between them in the front cabin, at night. They are members of a disciplined force and should have avoided engaging themselves in these kinds of suspicious activities, even with the best of intentions. They should be disciplined by their superiors for their “womanising” that day whilst in the performance of their duties. But then I should not ignore the fact that these two women, with the assistance of Lapian who was a friend of Const. Boscue and who is the real sister of Poan, asked these two policemen to give them a lift to drop off Poan’s sister at school at Laiagam. Then Poan asked them to pick her up at Laiagam on their way back because she didn’t have return bus fare and she also feared trouble on the road. In my view, their misbehaviour that day is an isolated incident on its own and of a less serious nature and I am not prepared to impute bad character on the accused part in terms of the possession and handling of a very lethal weapon which was in his lawful possession and which he was empowered to use in situations which called for its use.

Lapian was the first person to be given a lift by the two policemen. There is some dispute as to whether Lapian was dropped off at Yambali or taken to Laiagam and returned with them and dropped off at Tulipato just before the killing. I accept the evidence of the accused and Const. Boscue in particular that he was dropped off at Yambali where the two women were initially picked up. Const. Boscue has no reason to lie against a friend of his whom he gave favourable treatment to that day. Whereas Lapian is from Tulipato and a fellow clansman of the deceased and he has every reason to lie. I find that he lied. So did Poan Yalya, her brother, on this point.

The other factor relied on by the Statement to discredit the accused and impugn his character is the statements he made to the police which are contained in his Record of Interview dated 6/1/95 and the different version he gave in court as to the number of people at the road-block who had guns, the number of shots fired directly at the victim whom he perceived to be in possession of the shotgun, and the number of warning shots fired. The accused admitted the inconsistencies existed but he maintained his story to the court saying he did not give a logical sequence of events to the police during the interview. It is submitted by Mr Kumo that those inconsistencies related to very material aspects of the incident and if he could not accurately recollect the sequence of events in January 1995, then he cannot do so now and his evidence to the Court should be doubted. In my view, the evidence of both State witnesses and the defence witnesses are consistent in their story that only 3 shots were fired that evening. The first shot was the fatal shot which was deliberately fired at the victim and the 2 later shots were warning shots. In the light of this evidence, the inconsistencies do not appear to be materially significant any more. I would reject these inconsistencies on that basis. I would also think that the inconsistencies in the Record of Interview were more to do with lapse of memory and re-collection of events which happened so fast and it does not reflect badly on the character of the accused.

Having decided the factual issues, the remaining issue is whether the defence of self-defence under S. 269 has been established by the accused. The principles are clear. The State bears the burden of proving each element of the offence beyond reasonable doubt. It is for the State to negative any defence which is fairly raised on the evidence, on the balance of probabilities, by the accused. The defence relied on this case is self-defence under S. 269. The evidence is that there was fear created in the mind of the accused that there was going to be an attack of some kind and magnitude. He saw the men armed and ready to attack and coming towards him but there was no actual or threatened assault as yet. On this evidence, I do not think an assault within the definition of S. 343 (a) and (b) had occurred yet. On that basis, I reject the defence of self-defence under S. 269 (2): see State v Ampi [1988] PNGLR 116.

This does not however mean that the accused fails in his defence to the charge. The Court is not limited to the defences raised by the accused. Are there any other defences, general defences or defences special to policemen acting in the performance of their duties, under the Criminal Code, which are available to this accused?

In relation to special defences, at the outset, I say that there are no special exculpatory defences in the Criminal Code which may be available to policemen who act in the performance of their duties. There are some general defences, which may be available to policemen such as S. 32 (1) (a) which provides that a person is not criminally responsible for an act done in “execution of the law”. However, it seems that this defence is only applicable to policemen who act in the process of executing an order of the Court such as a sentence of death and not in a situation of day-to-day enforcement and maintenance of law and order in the community. Section 32 (1) (b) may also be available but that provision only applies to policemen who carry out a lawful order of his superior and it is not available to this accused on the facts of this case.

In relation to general defences, I am of the view that the defence of sudden emergency in S. 26 is available to the accused on the facts. That section provides:

“Subject to the express provisions of the Code relating to acts done on compulsion or provocation, or in self-defence - a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extra-ordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.”

This defence involves several things. First, it speaks of a situation of sudden emergency. On the evidence, I am satisfied that there was a situation of sudden emergency.

Secondly, it speaks of an ordinary person, having power of self-control. In my view, an ordinary person in this case can be referred to an ordinary member of the Police Force having the power of self-control. The accused actions must be judged by the standards of the “ordinary policemen test”.

Thirdly, it speaks of the reasonableness of the actions of the policemen in an emergency situation. Was the accused actions reasonable (or necessary or justified) in the circumstances? In order to determine this issue, it is necessary to examine the nature of the legal obligations and duties of policemen in this country.

The general approach to be adopted in determining whether a policeman acted in the performance of his duties and within his limits was stated by Ashworth J in R v Waterfield [1963] 3 All ER 659 at p. 661:

“In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie or unlawful interference with a person’s liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the scope of such a duty, involved an unjustifiable use of powers associated with the duty.”

It may be said that the accused act of firing the shot at the victim and killing him constituted a prima facie interference with the victim’s right to life as guaranteed by Constitution S. 35.

In relation to the accused scope of duty, policemen by virtue of their authority are empowered by the Police Force Act Ch No 65 to act in accordance with law in discharging their duties. Section 139 of the Act provides that policemen “have the same powers, duties, rights and liabilities as constables under the under-lying law, except so far as they are modified by or under an Act.” The relevant statutes include the Search Act, Arrest Act and Bail Act. None of these Acts are applicable to the facts of this case. The closest Act is the Arrest Act but the facts of this case are that the shot was not fired to effect an arrest so it doesn’t apply.

At common law, policemen have wide powers to main law and order in the community. The general duties of a policeman is summarized in Archbold’s Criminal Pleadings Evidence and Practice, 42nd Ed. para 20-192 at page 1683 as follows:

“It is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police but there are at least these and would further include the duty to detect crime and bring an offender to justice: Rice v Connolly [1966] 2 QB 414, per Lord Parker CJ. See also R v Waterfield and Lynn [1963] 48 Cr App R.42, 57 and Coffin and Another v Smith [1980] 72 Cr App R.221, DC. Stemming from the constable’s duty to give adequate protection to all persons and their property, is his duty to control traffic on public roads: Johnson v Phillips [1975] 3 All ER 682, DC.”

In Halsbury’s Law of England, 3rd Edn. Vol. 30; para 206, the primary duty of a policeman is stated as:

“The first duty of a constable is always to prevent the commission of a crime. If a constable reasonably apprehends that the action of any person may result in a breach of the peace it is his duty to prevent the action. It is his general duty to protect life and property and the general function of controlling traffic on the roads is derived from that duty.”

But the performance of his duty is not unlimited. When the situation calls for the use of force to prevent the commission of a crime, the force used must be justifiable, reasonable or not excessive. He must not abuse his powers or act arbitrarily. It is this concept of “reasonableness” which is incorporated in S. 26. The concept of “reasonableness” of the actions of a policeman in a situation of sudden emergency in the context of S. 26 were canvassed by Woods J in a case involving a policeman charged with manslaughter in circumstances similar to the present case. In State v Ampi, ante, he said at p. 119 -120:

“This raises the concept of criminal responsibility. Of course, technically this concept of criminal responsibility is covered in the Code in the self-defence, provocation and mistake of fact sections. But those sections do not apply in this case and yet surely a court is entitled to say that this accused is not criminally responsible. In other words he has not acted in a criminal manner, he has acted reasonably in the circumstances as he saw it at the time, not in the circumstances as we now know later. As the High Court, in Viro v The Queen [1978] 141 CLR 88 said (at 88):

‘the accused...reasonably believed that an unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him... By the expression “reasonably believed” is meant, not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself.’

There is no suggestion that the accused had any special vindictive reason to shoot the victim. There is no evidence that the was out to get him. The only evidence before me is that the accused honestly thought that a pistol or firearm was going to be drawn and he only had one shot in his shotgun and he therefore shot low down but unfortunately not low enough and he shot the deceased in the buttocks which caused his death. It is not as if the accused was shooting an unarmed minor offender in a crowd of people where there was no danger to anybody from the victim. In other words he was not acting negligently or stupidly in a calm situation. Therefore as well as there being no criminal intent there may also be no criminal negligence.”

Some analogy may also be drawn from S. 35 (1) (b) (i), (iv), (2) of the Constitution which provides:

“35. Right to life.

(1) No person shall be deprived of his life intentionally except:

(a) in execution of a sentence of a court following his conviction of an offence for which the penalty of death is prescribed by law; or

(b) as the result of the use of force to such an extent as is reasonable in the circumstances of the case and is permitted by any other law:

(i) for the defence of any person from violence; or

(ii) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or

(iii) for the purpose of suppressing a riot, an insurrection or a mutiny; or

(iv) in order to prevent him from committing an offence; or

(v) for the purpose of suppressing piracy or terrorism or similar acts; or

(c) as the result of a lawful act of war.

(2) Nothing in Subsection (1) (b) relieves any person from any liability at law in respect of the killing of another.” (underlining is mine).

The analogy here is that even when the accused in purporting to perform his duties to prevent the victim and others from committing an offence; he deliberately shot at the victim intending to disable him and thereby caused his death; if the force used was unreasonable in the circumstances, the killing may be said to be unlawful in which case he would be criminally liable for his actions.

In the present case, the accused is charged with the unlawful killing of the deceased under S. 302 of the Code. The accused says the killing was lawful as being justified under S. 269 of the Code. However, I have already ruled that this defence is not available to the accused on the facts. I have also ruled that the accused did not act in pursuance of the powers conferred on him by the Arrest Act to use reasonable force, to effect the arrest of the victim and others who were caught or suspected of having committed an offence. In relation to the defence of acting on sudden emergency under S. 26 which is available to the accused, I hold the view that he acted in the performance of his general duties conferred on him by the common law and by analogy, Constitution, S. 35 (1) (b) (i), (iv). In determining the reasonableness of this accused actions, I have had regard to the fact that the two men were trained and experienced policemen. They were trained and had experience in working in some of the most difficult parts of this country in terms of law and order problems and maintaining safety on the highway. They were trained and experienced in apprehending trouble and fear on the highway. They had two high powered rifles and live ammunition in their car. They were in a best position to apprehend the danger in a situation of sudden emergency, form a quick judgment and act in the way they saw fit to defend or prevent the commission of a crime upon their person and property under their custody. In that context, I accept the accused evidence and the evidence of Const. Boscue that the accused believed on reasonable grounds that there was no other way to prevent the commission of a crime, preserve their safety and dangerous weapons under their control and avoid the danger other than by doing what he did. He made no mistake in forming his judgment of the situation of emergency and effectively fired shot at the leg of the man whom he believed posed the most immediate and serious threat. The medical report supports the accused story as to which part of the victim’s body the accused aimed at. I am satisfied that any ordinary policeman working in this part of the country in the situation the accused was placed in would have acted in the same way.

In all the circumstances, I am not satisfied that the State has negatived the defence of acting on sudden emergency under S. 26 which has been fairly raised on the evidence by the accused, on the balance of probabilities. I find the accused not guilty of the charge and acquit him. His bail money will be refunded to him.

Lawyers for the State: Public Prosecutor

Lawyers for the Accused: Paulus Dowa