N2896

PAPUA NEW GUINEA

[In the National Court of Justice in Kundiawa]

CR 515 OF 2003

THE STATE

-V-

MELCHIOR IBOR

KUNDIAWA : SAWONG, J.
2005 : 6, 7, 8, 11, 12 & 13th April, 2005

CRIMINAL LAW – Wilful Murder – Trial – Evidence – Identification.

CRIMINAL LAW – Wilful Murder – Death caused by firearms – Evidence – lack of – many other firearms used at time of shooting – require forensic evidence from firearms expert witness.

CRIMINAL LAW – Wilful Murder – use of firearm – no expert evidence – not guilty verdict.

Counsel:
S. Kesno, for the State
M. Apie’e, for the Accused

SAWONG, J: The accused stand trial on a charge of willful murder. The State’s evidence consisted of both oral and documentary evidence. The documentary evidence consisted of the written statements of the investigator, Constable David Saule, his corroboration, Constable Murray Kupe, the Record of Interview, the post mortem report, the sketch plan, the Statement of Senior Constable, Joseph Numbos, an AR 15 rifle bearing serial number L102085 alleged to have been used by the accused and a copper metallic fragment found in the body of the deceased. All of these were tendered and accepted into evidence by consent. In addition the State called several witnesses who gave sworn oral evidence.

The defense evidence consisted of the sworn evidence of the accused, Senior Constable Joseph Numbos, Constable Felix Tigom and parts of the evidence contained in the written Statements of Peter Kerenga (exhibit "D1") and Albert Mogli Waugla (Exhibit "D2").

For the purpose of this decision, I propose to summarize the evidence given by each witness. I start this with the evidence from the State’s witnesses. The first witness was one, Peter Kerenga. At the material time he was a senior teacher at the then Kerowagi High School where this incident occurred. His evidence was that on 17th February 2002 at around 4:30pm, he was watching a soccer grand final game being played between Blue Kumuls team and Eagle Forest team. The game was played at one of the ovals at the Kerowagi High School. When the second half of the game started, a fight broke out amongst the players of the two teams. At that point in time he was watching the game from a point just beneath the grandstand. When the supporters joined in the fight, some policemen fired warning shots into the air and they also fired tear gas into the crowd to disperse the crowd. But this did not stop the fight. He was still at his original position watching the two groups fighting up and down the main field. He said that the supporters of Blue Kumuls team chased the players and supporters of the Eagle Forest towards the end of the field, but those people then manage to re-group and turned on the Blue Kumuls players and supporters up towards the mess. At that point in time, he left his original place and decided to go to his house, which is located on the side of the field not far from the grandstand. As he was walking to his house, he heard the voice of the Mobile Squad Commander urging his men to fight. When he heard that, he turned around and saw the accused kneeling down and taking aim with a firearm and firing a shot across which missed the deceased. He then lifted his gun slightly and fired the second time and this time the shot hit the deceased causing him to fall down. When he saw that, he called out to the accused that he had shot a man dead. The accused then got his gun and he walked away from the scene. The witness saw the figure "9" at the back of the accused soccer uniform. He said that at the time when the accused fired the shots, no one else around the scene had a firearm. He also said that there was a police vehicle but this was right at the back and was further away from the scene where the accused was. He also stated that when the accused fired the two shots, he did not hear any other shots. He also said that he knows the accused as a policeman attached to the Mobile Squad which is based at Kundiawa and that he was one of the players in the Blue Kumuls team that took part in the grand final that day. He told the court that there was no vegetation and from where he stood to where the accused was at the time of shooting and he saw the accused clearly.

In cross examination he demonstrated how the accused fired the two shots. First he said that the accused held the gun around his torso area and fired but after he missed, he lifted his gun to about the shoulder and fired. It was suggested to him that he had given inconsistent evidence about how the accused had held the gun and fired it the second time, in that, in his written statement he said that he lifted his gun "above" his head and fired again.

In re-examination he demonstrated that when he said "above" his head, he meant that the accused held the gun at the eye level and fired the gun.

The next piece of evidence came from Albert Mogli Waugla. He gave evidence in pidgin. He is an eye witness. On the day in question he was standing at or near the grandstand watching the game. During the second half of the game a fight started between the players for both sides. The fight developed and got bigger as supporters from both sides joined in. As a result, policemen arrived in a police vehicle and fired warning shots into the air. They also fired tear gas in order to stop the fight. He said the players and supporters of Blue Kumuls team chased the players and supporters of Eagle Forest towards the southern end of the field but they mobilized and chased the Blue Kumuls players and supporters up towards the grandstand area and continued up towards the old mess hall.

As a result, he left his original position, took cover and stood next to a tree not far from the grandstand. From there he watched the accused take a gun, went and took aim and fired two (2) shots towards the eastern side. Immediately after the two shots, he saw the deceased fall down. When that happened, he heard other people who saw what had happened calling out, "No. 9 you have killed a man".

He also called out to the accused that he (the accused) had killed a man. He then saw the accused take up his gun, gave a thumbs up sign, walked to the waiting police vehicle, got in and the vehicle was driven away.

He said in his evidence that the accused shot the deceased well after the police had stopped firing warning shots and tear gas. He said that he was standing next to a big gum tree and watching what had happened. He also said that at the time the accused shot the deceased there was no one else around armed with a gun or firing a gun either near where the accused was. 

In cross examination considerable amount of time was spent in asking him about the presence of other policemen. But he said that he saw two (2) police vehicles arrive but he didn't know how many policemen had come in those vehicles. He also confirmed that the police came and fired tear gas and many warning shots into the air. This occurred towards the southern end of the field and when this happened, the crowd ran past the vehicle and headed towards the grandstand. As a result of police firing tear gas and warning shots and because of the fighting, people including the witness ran for cover. This witness ran and took cover next to a big gum tree. He said that whilst there, he did not see any policemen either in uniform or in civilian clothes holding a gun and standing near the grandstand. It was suggested to him that when the police arrived, they spread out. But this witness said that he did not see that.

He also said that even though he was standing next to a big gum tree, he was able to see clearly towards the grandstand. He confirms that there were a lot of people who took part in the fight. He also said that from where he was, he was able to see the accused clearly, because the accused was in the open. He also described how the accused fired the shots. His description and demonstration was similar to the evidence given by the first witness. 

In cross examination he was taken to task and asked by Mr Aipie’e about giving inconsistent evidence regarding the number of shots fired by the accused. But the accused responded that the accused fired two shots only. In his re examination, he confirmed that the accused fired two shots.

The third witness was Wagi Gena Kua. He too, is an eye witness and he gave evidence of what he saw, heard and did that afternoon. The first part of his evidence relates to the fight and the arrival of the policemen and subsequent firing of tear gas and warning shots into the air. On that aspect, his evidence is similar to the evidence of the first two witnesses. In his evidence he said that even though the police came and fired the warning shots and tear gas, this didn't stop the fight. The fight got worse and a lot of people were running around all over the place. Amidst all these he ran to the grandstand and stood against the side of it. As he stood there, he saw the accused fired two shots at the deceased. He said that after the accused shot him, he called to the accused who gave him a thumbs up sign and walked to the police vehicle. He gave detailed evidence of observing what the accused did. This witness was standing about 6 to 8 meters from the accused and there was nothing obstructing his view. He also described how the accused fired the two shots. His evidence on this aspect is similar to the evidence given by the other State witness. He confirms that at the time the accused fired the two shots, there was no one else armed with a gun nor indeed seeing or hearing anyone else firing a gun. He said the only person who fired the two shots was the accused. He also said that he did not see anyone, either a policeman or a civilian armed with a gun standing near the police vehicle.

In cross examination he said that the policemen came and fired warning shots and tear gas but after that, they did not fire any further shots. After that they drove away. He also confirms that there was no policeman either in uniform or in civilian clothes standing near him near the grandstand. He said repeatedly that he did not see any policemen armed with a gun near where the accused was or where he was. He also said that the accused did not fire his gun into the air but he fired downwards. He said that he saw very clearly what the accused did because he stood very close to him and there was no vegetation or persons which obstructed his view. 

Wena Gendambo was the next witness. He too, is an eye witness. He gave similar evidence as the others in relation to events of the fight between the players and supporters of both teams and what the police did. He too, says that as the two groups were fighting, he ran towards the grandstand and ran past it. As he ran he turned around to ensure that he was not hit at the back when he saw the accused armed with a gun and stood next to the grandstand. He said the accused then knelt down and lifted his gun and fired the first shot. By then he was frightened and he kept running when he fired the second shot and the deceased fell down. He ran past the decease and went further. After that he turned around and saw the accused stand up, got his gun and went away. As the accused was walking away, the witness noted the figure "9" on the back of the jersey he was wearing.

He also said that the police fired warning shots into the air only where the fight was on but they chased away the crowd. They did not fire any more shots. In cross examination, he elaborated further in his evidence of what he observed. He confirmed his earlier evidence that at the time the accused shot the deceased, there was no-one standing with him or anyone else carrying a gun and that no one else fired a gun. He also confirmed that there was no person or vegetation which obstructed his vision and that he saw very clearly what the accused did that day.

The final witness for the State witness was Jack Yolland. His evidence is also similar to that of the other State witnesses. He too, is an eye witness. As I have alluded, his evidence of the events prior to the accused firing the guns are similar to the evidence given by the other State witnesses. He confirmed seeing policemen around with guns chasing people towards the northern end where the old mess is located and out towards the gate leading into and out of the school. He said he observed all of the events that day from the same spot and that he had not moved out anytime. According to him, after the police chased the people away, the police vehicle came back to the field. From where he was, he could only see the top part of the vehicle. The vehicle came and stopped at the other end of the upper field and was firing westward. Then later, he saw the accused get a gun and came. He saw the deceased in that field but when he saw the accused carrying a gun, the deceased in fear ran towards him. Then he saw the accused take the gun and came to the edge of the field and took aim towards where he was standing and in the direction of where the deceased was running. He said, accused knelt down, lifted his gun and fired the first time but missed. Then he raised his gun and fired the second time which shot the deceased and he fell down and died.

His evidence of the accused’s action after the shooting is similar to the evidence of the other State witnesses. He said that there was no one else near where the accused was, when he fired the shots. He also said that no one else fired any shots at that material time and that the gunshots came from the accused. He also said in his evidence that where the police vehicle was parked, there were armed policemen standing around.

The record of interview is of no assistance to the State case for it contains no evidence against the accused.

The medical report (Exhibit ) is the next piece of evidence. It sets out inter alia, the nature and type of injuries inflicted upon the deceased. In the report the doctor set out his findings both external and internal of the body of the deceased. On the external he found that the deceased’s "abdomen was very much distended and a small entry wound at the lower back at about the lower lumbar vertebrae. That was wholly covered by dried blood". There were no other external findings on the body. There is no mention of an exist wound.

The final piece of evidence is the sketch plan. (Exhibit "S.6"). This was drawn by Constable Saide about one or two weeks after the incident. It shows amongst other things, the position of various State witnesses and the accused at the time of the alleged shooting by the accused. Whilst it shows fairly accurately where these people were at the material time which were confirmed at the visit to the scene during the trial, it did not contain some relevant pieces of evidence. To that extent the document is flawed. For instance, about 2 to 3 meters immediately to the left of the position of the accused, were two large trees which were still standing at the time of the shooting, were not shown. There was a further tree, about 2 to 3 meters left of those trees and, which was directly in the line of vision of the witness, Albert Mogli Waugla were not shown. Constable Saule did say that the tree was still standing when he drew the sketch plan. When we visited the scene, this tree had already been cut down. The other matter not included in the sketch is the upper playing field. It does not show where the other policemen were at and during the fight and when they chased the crowd.

The next pieces of evidence consisted of the firearm alleged to have been used by the accused and the fragments of bullets found in the body of the deceased.

The final piece of evidence was the two page forensic examination report compiled by Senior Constable Joseph Numbos. This was tendered as part of the State’s case during his cross examination. In that report he set out his qualifications and experiences in conducting inter alia, the identification of firearms and the comparison of bullet and spent cartridges by the use of comparison microscope. He states that on 11th June 2002, he received from the liaison officer, AR 15 rifle, .223 caliber rifle bearing serial number L102085, a container containing 5 rounds of 5.56 mm cartridges and a copper metallic fragments of a bullet copper.

He conducted his examination by test firing the exhibited rifle and collected samples. He found that the weapon was in good working condition and was capable of discharging 5.56 brand of cartridges when the pressure is applied to the trigger. He then sets out the results of his examination. The results were as follows:

"1.	The test bullet was so badly deformed that the visibility of lands and groves were almost from recognizable.

2.	The copper metallic fragment alleged to have been removed from a deceased had visible lands and groves on it. The fragment is part of a metallic coating of a bullet.

3.	 Because of the deformities of the test bullet, the examination of bullet comparison was inconclusive".

The defence evidence consisted of the sworn evidence of the accused, Senior Constable Joseph Nambos and Constable Felix Jigons.

In addition, parts of the statements of Peter Kerugu, (Exhibit "D1") and Albert Mogli Waugla (Exhibit "D2") were accepted into evidence to prove prior inconsistent statements.

The accused’s evidence is to a large extent consistent with the evidence of the State’s evidence but he says he did not wilfully murdered the deceased at all He says he did not shoot the deceased at all. He confirms that he was in the soccer uniform and was wearing a jersey which had the figure "9" on it at the back at the relevant and material time. He confirms there was a fight between the players and supporters of both teams and that the fight grew and became bigger. He also confirms that there was a large crowd and it moved up and down the field, are consistent with the State evidence. He also confirms that several police arrived in two (2) police vehicles and one vehicle went to the southern end of the field and fired tear gas and warning shots. There were about eight (8) policemen there. These men were armed with guns and they fired guns and tear gas to disperse the crowd. He was still at the field of players when he saw all this. He then went up to the grandstand and stood with some other policemen. Some of them were in uniform and others in civilian clothes. Some of those policemen were also armed with rifles. He said that as the fight was still going on, the policemen were continuously firing their guns into the air. At that point in time he did not have a gun. Subsequently, he saw the second police vehicle which was parked at the lower eastern end of the upper field and he went to it. There he saw a number of policemen outside the vehicle who were also armed and were also firing their guns as warning shots. He went to the vehicle and saw a rifle inside the vehicle and decided to get hold of it to help the other policemen as the fight was still going on. He got the rifle and went back to the grandstand where other armed policemen were. He said the fight originally continued up towards the northern end but it turned around and crowds proceeded down back towards the grandstand. In the meantime the policemen were continuously firing warning shots. He said that subsequently he crouched down and fired two shots into the air. He then told of what he did after that. This part of his evidence was consistent with the evidence of the State witness. He denied shooting at the deceased and killing him.

In cross examination he confirms what he said in evidence in chief. He elaborated further about the number and names of policemen who were standing around the vicinity where he fired the shots. He named six policemen and said that some were in uniform and some were in civilian clothes. Of these, some of them had rifles and only two did not have any firearms. He also said these policemen who had guns were also firing them, some towards the east.

It was put to him that his second shot struck the deceased at the back and killed him. He said that if he had shot the deceased from that distance where he was alleged to have fired from, the bullet would have done great damage to the deceased. He also said that the investigating officer had not done a thorough job of investigation because none of the policemen who were at the scene were asked to give any statements nor were the other firearm used at the scene examined to determine which firearm had been used to kill the deceased.

In re examination he said that, with the rifle he had, if he fired it from a distance of 50 to 60 meters, the bullet would have exited from the body and would have left a gaping hole at the exist sight. He further stated that having looked at the medical report and in particular of discussing where the bullet fragment was found, it was clear to him that the bullet was fired from a distance of 300 to 400 meters away. He said that given the nature of the injury and the bullet fragments found in the deceased’s body, the bullet could not have come from the firearm he had and from the distance he was alleged to have been when he is alleged to have fired his weapon.

The next piece of evidence came from the police expert witness, Joseph Numbos. His oral evidence was similar to what he said in his report to which I have referred to earlier. He confirmed receiving the rifle concerned, the bullet fragments and the 5 round magazine and test firing the rifle. 

His finding was inconclusive because the test fired bullet was deformed. He also said that the copper metallic fragment that was given to him could have come from a different gun.

The final witness was Constable Felix Jigons. His evidence is similar to that of the accused.

DECISION

The issue for determination is whether the accused was the person who wilfully murdered the deceased. The issue thus pose requires a close examination of all the evidences. But before I examine the evidence in the circumstances of this case and for the reasons that I will come to later in this judgment, it is necessary at this juncture to state some settled and trite principles of law in criminal cases.

The first is that, the onus is on the State to prove beyond reasonable doubt each and every element of a particular charge. It is trite law that an accused person is innocent until proven guilty. The State must prove its case beyond any reasonable doubt. The onus is not on the accused to prove his or her innocence.

The next point to make is that, when an accused person raises a defence the State must negative that defence beyond any reasonable doubt. 

For reasons that I will come to later, it is my view that, in cases such as the present case where the defence raises allegation of other persons discharging firearms around the same vicinity, it would be incumbent on the State to call expert evidence to negative such a defence. There are literatures on the subject of firearms and use of firearms in the commission of crimes makes this abundantly clear.

I refer to, for instance, a book by J.H. Phillips and J.K. Bowen, "Forensic Science and the Expert Witness", Revised Edition. In it the learned authors devote a whole chapter (Chapter 7) on the science of Firearms and Toolmakers.

After setting out some preliminary matters, (which is not relevant for the present purpose), the learned authors set out some important features of firearms. These are set from pp.44 to 47. For the present purposes, I consider the material set out in pp.42 to 48, and p.51 to be relevant in the circumstance of this case. This is what the learned authors say at pp.47 to 48:

"Some typical questions for the firearm expert.

Identifying type or make of firearm used

If a shooting occurs, and the firearm is not immediately found by the investigators, some information as to the type and calibre of firearm used may be gleaned from any bullet recovered. Depending upon the condition of a recovered bullet, the expert may occasionally be able to identify the make of firearm used if certain marks impressed on the bullet during its passage through the barrel are sufficiently distinctive. If shotgun cartridge wads are located at the scene of a shooting they can indicate the gauge or bore of the shotgun used, and possibly provide information about the brand of ammunition used. If fired cartridge cases are found at the scene of a shooting they can indicate the type and calibre of the weapon used.

Direction, distance and deflection

In a particular case, and especially when there is no surviving eye-witness to a shooting, it may be important to establish such things as the direction from which a shot was fired, the distance at which the shot was fired, and whether or not the bullet or shot could have been deflected by some unforeseen factor.

Direction of fire

Establishing the direction from which a shot was fired may be important for a number of reasons. It may assist an expert to reconstruct the respective positions of victim and shooter at the moment when the firearm was discharged, and this aspect may be vital to either the Crown or the defence case. It may assist the investigator to narrow the field of suspects, such as where a bullet is presumed to have been fired from one of 20 windows in a block of flats. It is also important for the investigator to establish the exact location from which a shot was fired as soon as possible, because important evidence such as ejected cartridge cases may have been left behind. If the position of the victim is known at the moment of impact, it may be possible to determine the direction from whence the shot was fired from the track of the bullets through the victim’s body, or from the appearance of the entry would made by a bullet, for example, circular or elliptical. It is here that the forensic pathologist has a role to play.

Distance between firearm and victim

Determining the distance between firearm and victim may be vital in particular cases, as we shall shortly illustrate. With rifled firearms, for practical purposes no reliable conclusions as to the distance between muzzle and victim can be drawn when the muzzle of the firearm is beyond the range at which gunshot residues can be deposited on the victim. When the muzzle of the firearm is in direct contact with the flesh or clothing of the victim at the moment of discharge, the blast of gas and residues produces a characteristic tearing of skin and fabric. At distances up to three feet the blast of gas and residue from the muzzle produces an area of blackening about the entry wound frequently with particles of unburnt or partially burnt propellant adhering to the would and the surrounding area of blackened skin or fabric.

In these characteristic close range blast appearances are present on a victim, the expert tests the suspected firearm, using if possible ammunition identical in type and condition with that used in the shooting, to discover at what range a similar effect is produced. If the characteristic close range blast effects are absent from the victim, the exert tests to discover at what minimum range no visible effects are discernible".

And at p.51 the learned authors say:

"Condition of the firearm

The firearm expert’s assessment of the working condition of a firearm used in a shooting could be highly significant to the outcome of a particular case. The accused may claim that his firearm went off accidentally and injured the victim. The firearm expert will subject the firearm to tests designed to establish whether accidental discharge was possible. The firearm might be found to have a defective firing mechanism.

I now turn to the evidence.

I begin by looking at the facts which are not in dispute. I find from all the evidence the following facts are not in dispute.

The accused was the captain of Blue Kumuls soccer team. He was wearing a soccer jersey which had the figure "9" on the back at the relevant and material time. There were two playing fields at the Kerowagi High School, one on the upper level and one on the lower level. The soccer game was played on the lower level oval (the oval).

There was a large crowd of people numbering several thousands who came to watch the game that afternoon. During the second half of the game, a fight broke out between the players of the two teams. This occurred towards the southern end of the oval. The fight grew bigger as players and supporters from both sides joined in. As a result a police vehicle with several policemen drove down the side of the lower oval and parked towards the southern end of the oval and fired tear gas and bullets to disperse the crowd. Either all or majority of these policemen were armed with firearms, including rifles and they used them. As a result, the fight moved upwards towards and onto the upper field and moved northwards around the upper field and towards the old mess hall and then onto the main road. Hundreds of people were running everywhere. The accused went to another police vehicle which was stationery on the upper level field, picked up a rifle and went near the grandstand and he fired two shots. During the course of the fight, someone shot the deceased on the back as he was fleeing from the upper level playing field. He was running down hill and as he cross the drain he was shot at the back. He died from the injuries he received from the gun shot.

It is the State’s case that it was the accused that shot and killed him. Counsel for the State, Mr Kesno, submitted that the State called a number of eye witnesses who saw clearly what happened that day. Their views were not obstructed by anything and at the relevant and crucial time both immediately before and after the accused fired the shots, these witnesses did not see anyone else armed with a gun or firing a gun in and or around the immediate vicinity of the location of the accused. He submitted that the Court should give little weight to the forensic evidence of Senior Constable Numbos because the results of his examination were inconclusive. He submitted that if the Court gives little weight to his evidence, the Court should proceed and convict the accused on the evidence of the State’s eye witnesses’ evidence.

Mr Apie’e on the other hand, criticized the evidence of those State witnesses. He submitted that the Court should not rely on those evidence because of inconsistencies and the evidence was unreliable. 

He submitted that the identification evidence was made in difficult circumstances. The difficulties arise because a large number of people were moving around. A lot of policemen also had firearms which were fired indiscriminately. Therefore there were real possibilities of mistakes being made. 

He also submitted that there were no forensic evidence to support the State eye witnesses’ evidence and that the circumstance under which the deceased was shot demonstrate that it would be dangerous and unsafe to convict.

I have already set out earlier all these evidences given in these trial. For the reasons that will become obvious, I do not propose to restate them here nor analyze those evidence any further.

This is a case that not only required calling eye witnesses but also required the calling of expert witnesses relating to the use of firearms. I state this at the outside because of the defence that was raised by the accused. The accused denied the allegations and therefore everything was in issue. The State was obliged to call all necessary and relevant evidence coming from both eye witnesses and forensic evidence to prove its case beyond any shadow of doubt.

In the present case I have some difficulties with the State’s case for a number of reasons. Whilst the eye witness say that they saw the accused firing the fatal shot, there are other pieces of evidence that do not support what they saw.

First is that, expert witness, Senior Constable Numbos who conducted tests on the firearm alleged to have been used by the accused and test bullet recovered from the test firing gave evidence that the test bullet was so badly deformed that he could not compare with the groves or lands found in the copper metallic fragment found in the body of the deceased. In his written statement, which was tendered as part of the State’s case, he stated that the "test bullet was so badly deformed that the visibility of the lands and groves were almost non recognizable". On the other hand the "copper metallic fragment alleged to have been removed from the body of deceased, had visible lands and groves on it. He was therefore not able to make a comparison to determine accurately whether the copper metallic fragment found in the deceased’s body came from the gun used by the accused or not. Earlier on in his oral evidence, he said that it was possible that, that could have come from another gun. His findings were inconclusive. The State has not proved beyond any reasonable doubt that, that (bullet) did in fact came from the rifle used by the accused at the relevant and material time.

I think the State’s witness standing alone without any scientific evidence from a firearm expert to support those evidence would be quite dangerous, given the circumstances prevailing at the time when the deceased was shot. At the time the deceased was shot there were also many policemen present within the vicinity where the accused was, who were also discharging firearms. There were also other armed policemen firing their guns who were about 300 meters away from the accused was at the time the deceased was shot. Anyone of these policemen could have shot the deceased. That possibility cannot be discounted.

Even if I were to accept the State’s eye-witnesses’ evidence, the State’s own employee, who is a forensic expert on firearms, gave evidence that did not support their evidence. There is no iota of evidence that the bullet fragments found in the deceased’s body in fact came from the firearm used by the accused. In fact, this witness’s evidence was to the effect that this particular object may well have come from another gun.

The onus was on the State to negative this defence beyond reasonable doubt. Unfortunately this, it has not done. There is no evidence from the State that this metallic fragment did in fact come from the firearm used by the accused. It may well have come from the other guns that were no doubt used by other policemen that day.

In addition, there has been no expert evidence from the State about the distance or direction from where the bullet came from and landed on the victim. This is vital in my view because of state of the metallic fragment that was found in the deceased’s body. There is evidence from the accused that if he had shot deceased with the firearm he had from the distances the State’s witness alleged, which ranged between 50 meters to 60 meters, the bullet would have existed outside the body of the deceased leaving a gaping hole. He said that, whilst he was no firearm expert, the state of bullet found in the body of the deceased showed that it could have been fired from a distance of 300 to 400 meters. The state has not rebutted this by expert evidence to show the distance between where the firearm was used and the victim. 

In addition the medical report does not show any exist wound on the body. These pieces of evidence, or rather the lack of it, create doubts to my mind. The direction from which the bullet came is also important in cases such as the present one. This evidence should be given by experts in firearms. There is no expert evidence from the State on these crucial aspects, given the nature of the circumstance prevailing at the time of commission of the offence.

For the reasons I have given, I am of the view that the State has not proved its case beyond reasonable doubt. The matters I have raised create doubts, in my mind such that, in my view it would be unsafe to convict on the evidence as it stands.

Accordingly, I find the accused not guilty and acquit him.

_______________________________________________________
LAWYERS FOR THE STATE : PUBLIC PROSECUTOR
LAWYERS FOR THE ACCUSED : PUBLIC SOLICITOR