N4009

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 751 OF 2008

THE STATE

V

ABAYA ULAS

Madang: Cannings J
2010: 15, 16, 17, 22, 24 March, 13 May

VERDICT

CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299(1) – elements of the offence – whether the accused killed the deceased – whether the killing was unlawful – whether the accused intended to kill the deceased – alternative verdicts, Criminal Code, Section 539(1).

The accused, a police officer, was charged with the wilful murder of a man suspected of involvement in the killing of the accused’s relative. The accused was not on official police duty but went to a village where the deceased was staying and with the help of others, raided the house the deceased was staying in and fired at lest two shots from a police-issued firearm that he was carrying. The deceased died soon afterwards from loss of blood caused by a bullet wound to the leg. The accused admitted firing the shot but did not concede that he killed the deceased and denied intending to kill him or shoot him.

Held:

(1)	Under Section 299(1) of the Criminal Code the offence of wilful murder has three elements:

•	the accused killed the deceased;

•	the killing was unlawful; and

•	the accused intended to cause the death of the deceased.

(2)	The State proved that the accused killed the deceased.

(3)	As the accused did not attempt to set up any specific defence, the killing was unlawful by virtue of Section 289 of the Criminal Code.

(4)	Given the circumstances in which the deceased was killed (the most likely scenario being that the accused was angered by the deceased’s failure to co-operate and panicked and shot at him) the State failed to prove that the accused intended to kill the accused but proved that he intended to do him grievous bodily harm.

(5)	The accused was accordingly convicted of murder under Sections 539(1) and 300(1)(a) of the Criminal Code.

Cases cited

The following cases are cited in the judgment:

The State v David Yakuye Daniel (2005) N2869
The State v Ephraim Ria Boa (2008) N3436
The State v Moses Nasres (2008) N3302
The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07
The State v Raphael Kuanande [1994] PNGLR 512

TRIAL

This was the trial of an accused charged with wilful murder.

Counsel

A Kupmain for the State
A Meten for the accused

13 May, 2010 

1. CANNINGS J: The accused, Abaya Ulas, is a police officer based at Yomba police station in Madang town. He is charged with the wilful murder of a 30-year-old man, Siragu Raila Masi. The State’s case is that the accused, who was not on official police duty, was at Malas village in Madang Province in the early hours of 9 June 2007 and attempted to apprehend the deceased who he suspected of involvement in the killing of one of his relatives. He had information that the deceased was staying in a house at Malas, so he, with the help of others, raided the house the deceased was staying in, and fired at least two shots from a police-issued firearm that he was carrying. The State alleges that he deliberately shot the deceased, intending to kill him and that the deceased died soon afterwards. The accused admits firing two shots but does not concede that he killed the deceased and denies intending to kill the deceased or to shoot him.

ELEMENTS

2. The offence of wilful murder is created by Section 299(1) of the Criminal Code and has three elements. The prosecution has the onus of proving beyond reasonable doubt that:

•	the accused killed the deceased;

•	the killing was unlawful; and

•	the accused intended to cause the death of the deceased.

ISSUES

3. The accused does not concede that he killed the deceased, so the State has to prove that he did. If that issue is decided against the accused, the next issue will be whether the killing was unlawful. If it was an unlawful killing the court will proceed to assess whether he intended to cause the death of the deceased. If he did not have that intention, an alternative conviction for murder or manslaughter will be considered.

4. The primary issues are:

1	Did the accused kill the deceased?

2	If he did, was the killing unlawful?

3	Did the accused intend to kill the deceased?

4	If he did not intend to kill the deceased, should he be convicted of some other offence?

1 	DID THE ACCUSED KILL THE DECEASED?

5. Determination of this issue requires:

•	a summary of the evidence for the State;

•	a summary of the evidence for the defence;

•	a preliminary assessment of the State’s case;

•	a summary of the defence counsel’s submissions;

•	an assessment of the defence counsel’s submissions; and then

•	a final determination of the question whether the accused killed the deceased.

EVIDENCE FOR THE STATE

6. Three witnesses gave evidence. The other significant evidence was a medical certificate of death and a report on the death prepared by a health extension officer and the accused’s record of interview.

7. Anton Akei is a community leader at Malas. He said that he was present at the village when the accused brought his ‘pressure group’ there at 4.00 am on 9 June 2007. The deceased was from another village but had been staying at Malas for four days when the incident happened. The accused and his group burst into the house that the deceased was staying in and brought him outside, sat him on the doorstep and then the accused shot him. They took him to the back of the house and the accused shot him a second time. The first shot was to the back. The second was to his knee. The deceased was not running away when he was shot.

8. The second State witness was Kaitu Mavara. He is also a Malas villager. The deceased, who is related to him, came to the village and was staying in his house. The accused and his group knocked on the door of the house at 4.00 am and came inside. The deceased was asleep on the bed and they dragged him outside and shot him. The accused fired two shots and it was the second shot, fired into the deceased’s right knee, which caused a big wound, that killed him.

9. In cross-examination Kaitu Mavara said that it was dark and there were no lights on. Although he could see the accused’s face, he did not actually see him shoot the deceased.

10. The third State witness was Ambrose Kayok. In June 2007 he was a Senior Sergeant of Police and the police station commander of Talidig police station. He has since retired, after 36 years in the Police Force. The accused approached him shortly before 9 June 2007 for assistance in apprehending a person suspected of involvement in the murder of a close relative, who the accused described as ‘his father’. The accused told him (Snr Sgt Kayok) that the suspect was at Malas. Snr Sgt Kayok told him that he had just returned from dawn raids on several villages and was not in a position to assist him other than providing him with a police-issued firearm, an AR-15 assault rifle (which was admitted into evidence at the trial). He gave him instructions on how to use the firearm and advised him only to use it as a last resort if his life were in immediate danger. The accused left and returned a day or two later with some of his relatives at Malas and they said that they had shot the suspect and he was dead. He contacted provincial police headquarters and a CID officer came to Malas. He also went there to assist in the investigation. He retrieved the firearm and observed that of the six rounds of ammunition that were in the magazine when he issued it to the accused only one was left. He asked the accused about this and the accused said that he only used two rounds.

The medical evidence

11. A medical certificate of death and a report on an examination of the deceased’s body were prepared by Mr Herman Yiyiri, Health Extension Officer and OIC of Bunabun Health Centre. The cause of death was ‘severe haemorrhage, due to hypovolaemic shock, due to bullet wounds’. The summary of findings stated:

(a)	Firstly, he (the deceased) did sustain a bullet wound to his right posterior thigh bone through to the inner aspect causing rugged wounds resulting in comminuted or smashed bone into bits and pieces.

(b)	The scratches and cuts including abrasions, swelling and the indurated marks would resemble or indicate that the decased was hit with sticks, stones and/or a knife.

Record of interview

12. The accused was interviewed on 8 May 2008. He admitted firing two shots but denied deliberately shooting the deceased. He is recorded as stating:

The suspect was trying to escape so I fired a warning shot, but how I shot him I don’t know. …If he was not trying to escape I would not have shot him. He was trying to escape so I shot him. I don’t know how the bullet caught him.

EVIDENCE FOR THE DEFENCE

The accused’s sworn evidence

13. Abaya Ulas is 35 years old and has been a member of the Police Force for 12 years. He holds the rank of Constable. He was contacted by some of his relatives at Malas in June 2007 who told him that a suspect who had been involved in the killing of a relative was staying at Malas. He informed his immediate supervisor at Jomba police station, Snr Const Paul Liplib, of his intention to go to Talidig police station and get their assistance in apprehending the suspect. He approached the Talidig police station commander, Snr Sgt Kayok, but he was committed to other work and was only able to provide him with a firearm and he advised him how to use it. He went to Malas and with the assistance of village elders knocked on the door of the house that the suspect was staying. The owner of the house opened the door and told them that the suspect was inside. They called for him but he did not come out so he decided that he should search the house. He and the village elders entered the house, located the suspect and brought him outside. The suspect was not cooperative. He struggled and punched some members of the group and then pulled out a knife and stabbed a member of the group. That made the group scared so he (the accused) fired a warning shot from the firearm that had been issued to him. The suspect was still resisting apprehension so he discharged another shot, again to warn him, aimed at his side. It was dark and he could not see clearly where he was shooting. The group chased the suspect and held him and it was at that point he observed that the suspect was no longer struggling and he fell to the ground. The group surrounded him. The suspect on the ground was the deceased. They also apprehended two other suspects.

14. In cross-examination the accused said that he does not know how many rounds were in the magazine when Snr Sgt Kayok gave him the firearm. He did not check. He had no intention of discharging the firearm. When he got to Malas it was during the daytime and he organised a meeting with the community leaders who still wanted to wait to see if Talidig police could provide some assistance. He also allowed time for negotiation with the suspect’s people but they refused to come forward to negotiate. The reason he waited until nightfall was not so that he could attack the suspect. He was not angry. It is just that he was the only police officer present and the community leaders were anxious that the suspect be apprehended so he approached the owner of the house that the suspect was believed to be in and properly went into the house to conduct a search.

15. Once the suspect was located the group brought him outside the house but he was struggling and one of the group shouted that he had a knife. He saw that the suspect had a small bushknife. He did not see that he had any other weapon such as a firearm. The suspect was struggling and punched some members of the group so he (the accused) fired the first shot. He fired the shot three or four metres away from the suspect. But he still struggled, and the group was scared. The suspect tried to run away so he fired the second shot, to threaten him, so he can be afraid and stop.

16. The accused acknowledged that Snr Sgt Kayok told him to only discharge the firearm if his life was in immediate danger and that he did not tell him to discharge it if the suspect was running away. He also acknowledged that he was in charge of a dangerous weapon but insisted that he did not aim at the suspect. He acknowledged that the normal practice is to fire a warning shot into the air but said that in this case he had to fire a second shot because the suspect was still struggling after the first shot and he was armed with a knife; also, the suspect was heading into the bush and no one else was armed.

17. Answering questions from the bench, the accused said that he did not have a search warrant or an arrest warrant.

18. The only other defence witness was Norman Atul. He was a member of the group that went to Yomba police station the day before the incident to ask the accused for assistance. He was also with the accused when he went to Talidig police station and spoke to and received the firearm from Snr Sgt Kayok. He was a member of the group that assisted the accused in apprehending the suspect. He went into the house and assisted the accused. They tried to apprehend the suspect in an easy manner but he struggled and fought with them. They eventually got him outside but then the suspect stabbed him (the witness). He saw blood and felt pain, so he stood with the owner of the house, Kaitu Mavara, while the suspect continued to struggle with other members of the group near the bush. He heard a gunshot but it was dark and he could not see what happened.

19. In cross-examination Norman Atul said that he actually heard two gunshots.

PRELIMINARY ASSESSMENT OF THE STATE’S CASE IN LIGHT OF THE EVIDENCE FOR THE DEFENCE

20. The State has presented two witnesses who were present at the incident, one of whom said that he saw the accused shoot the deceased twice. In his police interview the accused admitted firing two shots and he confirmed that this was so when he gave sworn evidence. All the evidence is consistent with the accused firing two shots. There is no suggestion that anyone else present was armed. The medical evidence shows that the deceased died due to loss of blood caused by a bullet wound. The State has therefore compiled a strong case that the accused fired a shot that struck the deceased on the right leg, that this caused a substantial loss of blood and that this led to his death.

DEFENCE COUNSEL’S SUBMISSIONS

21. Mrs Meten submitted that the State had not proven that the accused killed the deceased as it was too dark for any witness to give a reliable account of what actually happened; the death of the deceased was an accident; and it was the inability to get the deceased to a hospital that was the real cause of his death.

ASSESSMENT OF DEFENCE COUNSEL’S SUBMISSIONS

22. None of the defence counsel’s submissions convince me that the State’s version of events should not be believed. There is clear and consistent evidence that the accused fired two shots. Clearly it was the second shot that resulted in the bullet wound to the deceased’s right leg. I disregard the evidence of Anton Akei that the accused fired the first shot into the deceased’s back. That is not consistent with the medical evidence; and no other witness suggested that that is what happened.

23. As to the submission that the death of the deceased was an accident, that is something that is relevant to the second and third elements of the offence, but not to the first. The question at this stage of a wilful murder trial is whether the accused killed the deceased. That is a question of fact to be determined in light of the definition of killing in Section 291 of the Criminal Code, which states:

Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.

24. I find that the second shot fired by the accused resulted in a bullet wound to the deceased’s right leg. This caused a substantial loss of blood and this led to his death. The accused directly caused the death of the deceased and therefore he is deemed to have killed him. I reject the submission that because of some delay in getting medical treatment, there was an intervening event that broke the chain of causation between the firing of the second shot and the deceased’s death. There was insufficient evidence that there was any substantial delay. In fact the evidence suggests that the deceased died soon after he was shot. Even if it were proven that there was a substantial delay, this could not be regarded as some unforeseeable event that interrupted the chain of causation that the accused started.

FINAL DETERMINATION OF FIRST ISSUE: DID THE ACCUSED KILL THE DECEASED?

25. The State has proven beyond reasonable doubt that the accused killed the deceased. The first element of the offence of wilful murder has been proven.

2 	WAS THE KILLING UNLAWFUL?

26. Section 289 (homicide) of the Criminal Code states:

It is unlawful to kill a person unless the killing is authorised or justified or excused by law.

27. Because the accused did not rely on any specific defence, he has not argued that his killing of the deceased was authorised, justified or excused. No defences are available from the evidence that has been presented. Therefore the killing was not authorised, justified or excused. It was an unlawful killing and the second element of the offence of wilful murder has therefore been satisfied.

3 	DID THE ACCUSED INTEND TO KILL THE DECEASED?

28. It is at this point of a wilful murder trial that the Court is required to consider the accused’s state of mind:

•	Did he intend to kill the deceased? If yes, the third element of wilful murder is proven and the accused will be guilty as charged (eg The State v Moses Nasres (2008) N3302).

•	If he did not intend to kill him did he intend to inflict grievous bodily harm? Or did one of the other circumstances prescribed by Section 300(1) of the Criminal Code apply? If yes, the accused would be convicted of murder, not wilful murder (eg The State v David Yakuye Daniel (2005) N2869; The State v Ephraim Ria Boa (2008) N3436). If no, the accused would be guilty of manslaughter, not wilful murder or murder (eg The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07).

29. As Injia AJ, as he then was, highlighted in The State v Raphael Kuanande [1994] PNGLR 512 the relevant time at which to assess the accused’s state of mind is when he committed the act that constitutes or is an element of the offence:

Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused’s expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence. [Emphasis added]

30. Having examined the course of conduct of the accused before, when and after he shot the deceased, I am not satisfied that the prosecution has proven beyond reasonable doubt that he intended to kill him. Mr Kupmain has submitted that the evidence shows that the accused was angry and deliberately waited until it was dark to stage a surprise attack on the deceased in the middle of the night; and that this demonstrated an intention to kill. That is not an unreasonable proposition however it has not been proven beyond reasonable doubt. There is no evidence that the accused expressed any intention to kill the deceased. There is little evidence as to how the accused behaved after the incident to support the proposition that he intended to kill the deceased.

31. I find that the accused did not intend to kill the deceased. The third element of wilful murder is not proven.

4 	SHOULD THE ACCUSED BE CONVICTED OF SOME OTHER OFFENCE?

32. Two provisions of the Criminal Code are relevant here. Section 539(1) (charge of murder or manslaughter) states:

On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged.

33. Section 300(1)(a) (murder) states:

Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: …

if the offender intended to do grievous bodily harm to the person killed or to some other person.

34. The question here is whether the State has proven beyond reasonable doubt that the accused intended to do grievous bodily harm to the deceased. The best explanation of what happened is that the accused was frustrated by the lack of police assistance in apprehending the deceased and decided that firm action needed to be taken. He enlisted the support of a group of village men and decided to stage a quasi-police operation. He was ill-equipped to deal with the suspect who was resisting apprehension. He fired a warning shot, which did not have the desired effect, and then panicked and fired a second shot in the general direction of the deceased. He said he aimed ‘at the side’ but this version of events is not credible. I find it proven that when the accused fired the shot, he deliberately fired in the direction of the deceased and intended to do him grievous bodily harm.

35. The appropriate alternative verdict available under Section 539(1) is therefore that the accused is guilty of murder under Section 300(1)(a) of the Criminal Code; the elements of this offence – that the accused killed the deceased under circumstances in which he intended to do him grievous bodily harm – having been proven beyond reasonable doubt.

VERDICT

36. Abaya Ulas, having been indicted on a charge of wilful murder under Section 299(1) of the Criminal Code, is found not guilty of wilful murder but guilty of murder under Section 300(1)(a) of the Criminal Code.

Verdict accordingly.
____________________________

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