N2482

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1262 OF 1999

BETWEEN:

JACK GOPAVE
Plaintiff

AND:

FRANCIS KUGAME
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

GOROKA: DAVANI, J
2003: 8, 29 October

EVIDENCE – the hearsay rule – when applicable – whether statements by third parties admissible

NEGLIGENCE – Policeman in possession of a gun – not in pursuit – standard and duty of care to be applied.

Cases Cited:
Donaldson v McNiven [1952] 2 All E.R. 69
Subramaniam v Public Prosecutor [1956] 1 SLR 965, 970
Fowler v Lanning [1959] 1 QB 426
Court v Wyatt The Times, June 25, 1960
Ratten v R [1972] AC 378
Pike Dambe v Augustine Peri and The Independent State of Papua New Guinea [1993] PNGLR 4
State v Peter Raima [1993] PNGLR 230

Charlesworth on Negligence 6th Edition
Aranson, Reaburn and Weinberg "Litigation: Evidence and Procedure" 2nd Edition 1979

Counsel:
D. Umba for Plaintiff
F. Kuvi for Defendants

29 October 2003

DECISION
(Hearing on Liability)

DAVANI, J:	The Plaintiff sues by writ of summons and statement of claim filed on 9.11.99 in his capacity as the customary representative of the deceased, Molten Awete (‘Deceased’). This is a claim for damages under Part IV of the Wrongs (Miscellaneous Provisions) Act Chapter 275 for death caused by the first defendant whilst employed as a policeman.

The Defendants filed a defence on 20.3.00 pleading general denial.

Back ground:

The First Defendant, a policeman, was charged with the manslaughter of the Deceased and the matter heard in the National Court Goroka by Kirriwom .J on 10, 11, 16 and 17 November 1999. On 15.12.99, the Court found the First Defendant not guilty and acquitted him of that charge. (see CR 86 of 1999, judgement by Kirriwom. J).

The Claim:

The Statement of Claim alleges negligence by the First Defendant in his handling of a gun which resulted in the Deceased’s death. The Plaintiff claims damages as a result of this negligence. The particulars of negligence as pleaded in the Plaintiff’s Statement of Claim are;

i.	failing to ensure that the gun was unloaded;
ii.	failing to ensure that the guns safety catch was unlocked;
iii.	failing to keep the gun pointed downwards away from the public.

The Court proceeded to hear evidence on whether the First and Second Defendants were liable.

Undisputed Facts:

The undisputed facts are that on the night of 23.10.98, the Deceased was on duty as an auxiliary policeman. At the time of the shooting, he was at the Goroka Base Hospital together with a group of policemen. They had just been involved in a car chase involving a vehicle that did not stop at a police road block, which was then pursued by police and which vehicle then crashed and overturned injuring the persons on board. The Police ascertained at the scene of the accident that those involved in the accident were a group of criminals who had held up the vehicle and were holding the passengers hostage when they drove through the police road block without stopping. Both hostages and the criminals were either dead or injured and were taken to the Goroka Base Hospital. The police vehicles parked in the hospital’s emergency car park were a white toyota land cruiser 10 seater task force vehicle (‘white toyota’) and a blue (traffic) toyota land cruiser 10 seater (‘blue toyota’). It was whilst the policemen and several bystanders were assisting in the conveying of the injured and dead on trolleys to the emergency ward, that the gun went off and the Deceased shot.

Plaintiff’s evidence:

Harry Konduwe, Roger Amos and the Plaintiff gave evidence. Harry Konduwe, a villager from Wamunau Village, Ungai, said on 23.10.98 at about 8 pm, he was at the Goroka Base Hospital with one Roger Amos when he saw the police pushing persons on trolleys to the emergency ward. He said he later learnt that some of these injured persons were criminals and were injured when the vehicle they were travelling in overturned after a car chase involving the police. He said both Roger and him then participated in this errand of mercy. Whilst this was happening, he said he saw the First Defendant standing at the rear of the blue toyota. He said he saw that the both back doors of the blue toyota were open and that the First defendant stood there with both hands raised. In his right hand, he held the gun and the other hand was rested on the open door. He said suddenly, the First Defendant dropped his right hand and the gun he was holding went off. He said he was standing about 1.5 m away from the Deceased when he saw the Deceased fall. He said he then heard the First Defendant say ‘mi wrong pinis’, which in English is translated to mean ‘I am wrong’. He said he heard one other policeman say ‘Francis, I did not lock the gun, why did you put it down, you should have it up’. This conversation or statement is proof that the First Defendant may have been negligent. It is interesting to note that this policeman was not called to give evidence to substantiate his statement, so I will not place any weight on it. Both counsel also did not press the issue and there were no submissions from the both on this aspect. Nonetheless, I will dwell on it because I find the statement is hearsay. The hearsay rule is a common law creation which prohibits witnesses in court repeating out of court statements made by others in order to establish the truth of those statements. This statement is hearsay because it is made by somebody other than the witness and its admission will have a prejudicial effect on the Plaintiff’s case and would have a bearing on the ultimate result. It will not be hearsay if the maker of the statement is brought before the Court and evidence led on the statement with opportunity given to Defence Counsel for cross-examination. As stated by Aranson, Reaburn and Weinberg in their text "Litigation, Evidence and Procedure," "it is clear that the main justification put forward in support of the hearsay rule today is the fact that the maker of the court statement is not available to be cross-examined by the party opposing the reception of evidence. Cross-examination might serve to expose defects in the perception of the maker of the statement, or his veracity, or his memory, or his capacity to narrate effectively what he wishes to say." (see par. 30.04, pg 777 1979). Although both Counsel did not submit on this aspect, this is an important part of the Plaintiff’s case that was not "progressed". When I say the statement may be proof of the First Defendant’s negligence, I refer to the case of Ratten v R [1972] AC 378 where Lord Wilberforce, giving judgement for the Privy Council, said at pg. 367;

"The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on "testimonially" i.e. as establishing some fact narrated by the words. Authority is hardly needed for this proposition, but their lordships will restate what was said in the judgement of Subramaniam v Public Prosecutor [1956] 1 SLR 965, 970."

"Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made."

A fuller statement of the same principle is provided by Dean Wigmore in his work on Evidence para. 1766. He emphasises, as their lordships would emphasise, that the test of admissibility in the case last mentioned, is "relevance to an issue." (As discussed in State v Peter Raima N1153 [1993] PNGLR 230 judgement delivered by Brown .J on 20.4.93 in Mount Hagen).

Roger Amos’s evidence is similar to Harry Konduwe’s, only to the extent where they both were unloading the injured and dead onto trolleys. But he did not see the Deceased being shot, he only heard the shot. His evidence does not assist in establishing negligence by the Plaintiff.

Jack Gopave, the Deceased’s first cousin’s evidence, was in relation to being at the hospital when the post mortem was conducted. He was the one who received the Post Mortem Report. So his evidence has no relevance to establishing negligence by the first Defendant.

Defendant’s evidence:

The Defendant said that evening, he was ordered by the officer-in-charge, a Sergeant Naekabam to guard a notorious criminal who was captured in that same car crash. 

He said before he was given the gun, Sergeant Naekabam who was sitting in the crew’s seat in the blue Toyota’s cabin, gave him the gun to hold because he wanted to check on the accident victims in the hospital theatre. The Defendant said whilst he was seated near the doors, the ‘small’ door was open and the ‘big’ door closed. No proper description of the doors were given but I will take judicial notice of those doors, being the standard sized doors on police 10 seater land cruisers.

He said whilst seated in the blue Toyota with the criminal, he told the criminal to move towards the driver’s cabin because he wanted to stretch considering the interior of the blue Toyota was cramped and confined. Before he did that, he placed the gun on the floor. He then ordered the criminal to move to the rear. Simultaneously, he lifted the gun. That was when the gun went off.

In relation to the type of gun used, he said the gun is a Winchester pump action gun and can take a maximum of six bullets. The gun is ready to be fired after it is cocked. This is done by holding onto the handle with one hand and the other hand is used to cock the gun which then releases the safety mechanism. Both hands are used in that process. The process of cocking was demonstrated to the court by the first Defendant, which is a process where the person holding the gun, uses the other hand to move the cocking mechanism up and down. His evidence is that he did not see this done by either Sergeant Naekabam or anybody else. He also did not do that. The evidence also is that Sergeant Naekabam only told him to hold the gun, nothing more. So he believed the gun was not cocked and ready to fire, as is the procedure.

Analysis of evidence and the law:

The Plaintiff must establish on the balance of probabilities that the Defendant was negligent in the manner in which he used or handled the gun. The evidence is that the First Defendant was shocked when the gun went off. He said because he was shocked, he did not hear or know of what happened next or what was said by bystanders or his colleagues. His action is deemed to be unintentional. In a situation such as this, the common law is that "if a person shot intentionally at another, the cause of action was in trespass to the person but if the injury sustained by the plaintiff was caused unintentionally, then negligence was a necessary ingredient to be proved, were he to succeed in an action for damages. In Fowler v Lanning [1959], 1 Q.B 426, Diplock .J held that the onus of proving negligence, where the trespass is not intentional, lies upon the Plaintiff, whether the action be framed in trespass or in negligence". (see Charlesworth on Negligence 6th Edition, pg. 366 par. 581).

This not a situation where a loaded gun was left in a place that was not considered safe, and subsequently, somebody was injured. It is also not a setting where a loaded gun was left in the care of a person who by his youth, ignorance or lack of intelligence, did not know how to use the gun or a setting where he fired the gun, knowing there were members of the public around. The scenario before the Court is analogous to a case involving a father who allowed his son the use of an air gun on condition that it was only to be used in the cellar of the house, not outside, but the boy used it in the open and injured another boy. The father was held not to be liable. (see Donaldson v McNiven [1952] 2 All E.R. 69). Or where a father of a boy aged 15 was held liable for failing to take reasonable care to ensure that his son did not use an air gun in such a way as to injure other persons. (see Court v Wyatt, The Times, June 25, 1960).

In this case, the First Defendant was not told if the gun was loaded or not. But, he is a policeman. The Court must make itself aware of the duty of care to be applied by a policeman in possession of a gun. This was discussed by Amet .J, as he then was, in Pike Dambe v Augustine Peri and The Independent State of Papua New Guinea [1993] PNGLR 4, a dependency claim by a widow claiming damages, after a policeman shot at her husband, a fleeing suspect, and killed him. The Court found the State to be vicariously liable for the Defendant’s actions. Amet .J when discussing the use of firearms by policemen, said at pg. 10;

"The police do not have the licence to carelessly, negligently and unjustifiably shoot any person, whether he be a suspect or not… The issue of firearms to the police must be under strict conditions of use. Firearms should only be used in 
extreme situations of danger to life of the police or other persons, and only after all reasonable and other possible alternatives have been exhausted…".

However, this is not a situation involving a pursuit as in Pike Dambe (supra). It is a situation where a policeman, a professional in his own right, is in possession of a firearm. The evidence is that he knows the weapon is locked because the usual practise is that weapons must always be locked until ready to fire or use. The evidence is that this weapon was not discharged in the conventional manner of ‘pumping’, as with guns of that make. If the Plaintiff alleges that the First Defendant was negligent, then he must prove that (see Charlesworth on Negligence (supra). But the evidence from the Plaintiffs witnesses do not show any negligence on the part of the First Defendant. There is no evidence to prove or substantiate the particulars of negligence set out in the statement of claim. I have heard he picked up the gun, then was in the process of placing it down, when it went off. There is no negligence in the manner in which he handled the weapon, none at all. As far as the Court can tell, it was an accident. 

Orders:

I find the Plaintiff has not proven on the balance of probabilities that the First Defendant is negligent. The Court will dismiss this action in its entirety and the Plaintiff shall pay both Defendants’ costs of the proceedings, to be taxed if not agreed.
_____________________________________________________________________
Lawyer for the Plaintiff	:	Acanufa & Associates
Lawyer for the Defendant	:	Solicitor-General’s Office