State v Kapen [2012] PGNC 385; N4895 (20 November 2012)

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CRIMINAL LAW – attempted murder – Criminal Code, Section 304 – trial – elements – whether the accused acted unlawfully: defence of self-defence – whether the accused attempted to kill the deceased – alternative charges: grievous bodily harm, with intent (Section 315); grievous bodily harm (Section 319)

The accused, a police officer, was charged with the attempted murder of a young man on a public road, contrary to Section 304(a) of the Criminal Code (the primary charge) with alternative charges on the indictment being unlawfully doing grievous bodily harm with intent (Sections 315(b) and (d)) and unlawfully doing grievous bodily harm (Section 319). It was undisputed that the accused shot the complainant in the foot with a police-issued firearm. The State's case was that the accused fired the shot deliberately without good reason. The defence case was that the complainant was drunk and disorderly and armed and that the accused acted in self-defence against an unprovoked assault by the complainant. Further that there was no intention to kill or do grievous bodily harm to the complainant.

Browne v Dunn (1893) 6 R 67 (HL)
Kutau v The State (2007) SC927
R v Kiki Kau'Au (1970) No 557
Tapea Kwapena v The State [1978] PNGLR 316)
The State v Alphonse Dumui (2009) N3686
The State v David Yakuye Daniel (2005) N2869
The State v Henry Judah Les (2005) N2950
The State v Lenny Banabu (2005) N2871
The State v Mathias Yangi (2012) N4573
The State v Michael Nuli (2011) N4198
The State v Norman Kukari (2009) N3635

This was the trial of an accused charged with attempted murder and two alternative charges.

1. CANNINGS J: The accused, Daniel Kapen, is charged with the attempted murder of Donald Mara at Alemo, near Erima, Madang Province, on Sunday 11 December 2011. The State's case is that the accused, a police officer, was driving a police vehicle along the road when he came upon the complainant and a friend who were on the road. He stopped the vehicle, ordered the complainant to come to the vehicle, which he did, and then the accused shot him in the foot without lawful excuse, intending to kill him. The complainant survived but suffered grievous bodily harm. Attempted murder is the primary charge on the indictment. There are two alternative charges: unlawfully doing grievous bodily harm with intent and unlawfully doing grievous bodily harm. The accused pleaded not guilty to all charges. The defence case is that the complainant was drunk and disorderly and armed and that the accused acted in self-defence against an unprovoked assault by the complainant. Further that there was no intention to kill or do grievous bodily harm to the complainant.

2. This judgment begins by setting out the undisputed facts before consideration is given to the three charges on the indictment, starting with the primary charge.

4. Attempted murder is an offence under Section 304 (attempted murder etc) of the Criminal Code, which states:

(b) with intent unlawfully to kill another person does any act, or omits to do any act that it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life,

5. The charge in this case is based on Section 304(a). The elements of the offence are, as explained in R v Kiki Kau'Au (1970) No 557, The State v Henry Judah Les (2005) N2950 and The State v Michael Nuli (2011) N4198, that the accused:

6. I say at the outset that whichever view of the evidence is taken (there are two entirely different versions of events that have been put before the court) the accused cannot be convicted of this offence as the State has failed to prove an intention to kill. Even if the version given by the State witnesses is accepted – that the accused got out of the vehicle and fired a shot deliberately into the foot of the complainant – that is not proof of intention to kill. It is evidence only of the (lesser) intention to do grievous bodily harm (The State v Mathias Yangi (2012) N4573). It is unnecessary to consider the other elements. The accused must be acquitted of the primary charge and the first alternative charge must be considered next.

THE FIRST ALTERNATIVE CHARGE: UNLAWFULLY DOING GRIEVOUS BODILY HARM WITH INTENT

7. This charge is based on Section 315(b) and (d) (acts intended to cause grievous bodily harm or prevent apprehension) of the Criminal Code, which states:

8. The elements of the offence are, as explained in The State v Norman Kukari (2009) N3635 and The State v Alphonse Dumui (2009) N3686, that:

9. There is a definition of "grievous bodily harm" in Section 1 of the Criminal Code. It means:

any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health.

10. The medical evidence, supported by graphic photographic evidence, demonstrates the seriousness of the complainant's injuries. He spent 10 days in Modilon Hospital. He clearly suffered bodily injury of such a nature as to be likely to cause permanent injury to his health. He suffered grievous bodily harm. It was done to him by the accused so the first element of the offence is proven. This is not disputed by the defence.

11. The second element raises the issue of whether grievous bodily harm was done unlawfully. Doing grievous bodily harm to another person by shooting them in the foot constitutes an "assault" as defined by Section 243(1) of the Criminal Code. An assault is by virtue of Section 244(1) unlawful unless it is authorised, justified or excused by law. There are a number of possible defences, which, if successful, would authorise, justify and excuse the accused from criminal responsibility and render the grievous bodily harm lawful. These defences, such as provocation, prevention of repetition of insult and self-defence, are set out in Sections 267 to 271 of the Criminal Code. The accused relies on Section 269 (self-defence against unprovoked assault), which states:

(1) When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(a) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and

(b) the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm,

it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm.

12. As the force used by the accused did in fact cause grievous bodily harm he must rely on Section 269(2), which means that the court must be satisfied that the following five elements of the defence exist:

13. If all those elements exist the force used by the accused is lawful even though it has caused grievous bodily harm to the complainant (The State v Takip Palne of Dumbol [1976] PNGLR 90 and Tapea Kwapena v The State [1978] PNGLR 316). Once the accused puts evidence of self-defence the onus rests on the prosecution to disprove the defence (The State v David Yakuye Daniel (2005) N2869, The State v Lenny Banabu (2005) N2871).

15. Four witnesses gave evidence for the State, as summarised in the following table.

No	Witness		Description
1	Donald Mara		Complainant
Evidence		There were three other friends who had been drinking with him and Cedric and who walked with them to Alemo: Charlie, Muti and Ted. As they were walking back towards Erima, Charlie and Muti had a fight with another boy and then Charlie and Muti fought with him (the complainant), but things had quietened down by the time the accused arrived on the scene. He and Cedric then met two of their uncles, Clement Kalo and Mugulis Irena. When the Raibus vehicle came along its occupants gave a signal that the police were following. He remained standing on the roadside with Cedric, Clement and Mugulis and two daughters of Mugulis, Anna and Martha. He recognised Daniel Kapen as the driver of the vehicle so when he wound down the window and told them to come over he and Cedric walked over, leaving Clement and Mugulis on the other side of the road. As he approached the vehicle the accused opened the door and pushed it straight into him causing him (the complainant) to lose balance. The accused got out of the vehicle, cocked the rifle, did not say anything, looked at them, and then deliberately aimed a shot into his foot, which caused him sharp pain and he fell to the road. He (the complainant) was holding a boom box and a small carry-bag containing his wallet and other personal items. The accused got the boom box and smashed it, and then he asked him his name, so he told him "Donald Mara". That was the first time he had drunk yawa. He had had other alcohol before but not home brew. But neither he nor Cedric was drunk. They only consumed two 500 ml containers and it was mixed with Tang orange juice and shared amongst five drinkers. He denied all knowledge of the US-style bayonet. It is not his knife.
2	Cedric Waraho		Complainant's friend
Evidence		When he went to the junction after their drinking session he did not feel drunk. He was surprised when the accused shot Donald. He heard a child's voice from inside the vehicle call out 'Daddy there is a man with a knife coming at the back of your vehicle!' When he saw the accused with his gun he thought he might fire it in the air but the next thing he knew he aimed at Donald's foot and fired and Donald was lying on the road. The accused threatened to shoot him (Cedric) too if he did not use his shirt to stop the bleeding. Asked in cross-examination whether the complainant was holding anything at the road he (Cedric) replied yes, he was holding a container with Tang orange juice in it, but that he threw it away when the Hilux came along and they received the signal that the police were approaching. The complainant was not at the front of the vehicle before he was shot. The complainant was not attempting to attack the accused.
3	Charles Winuan, Inspector		Police investigator
Evidence		He has been a member of the Constabulary for 27 years. He gave evidence of the police investigation. The accused was cooperative and took part in an extensive interview.
4	John Maihua, Dr		Surgeon
Evidence		He managed the surgery and treatment of the complainant over a period of ten days in December 2011. He confirmed that the most serious injuries were on the right foot.

16. A number of exhibits were admitted into evidence by consent: the accused's record of interview, various photographs of the complainant's wounds, crime scene photographs, statements by State witnesses, the medical report, the US-style knife said by the accused to have been found at the scene and a plastic soft drink bottle containing orange liquid said to be yawa.

17. Two witnesses gave evidence for the defence, as summarised in the following table.

No	Witness		Description
1	Daniel Kapen		The accused
Evidence		He says when he came upon the scene he sensed trouble as the youths were armed and staggering. He did not say anything to his wife or to Res Const Tovue before getting out of the vehicle. Neither of them got out until after the shot was fired. When he stopped the Landcruiser the two men he saw on the opposite side of the road and whom he called towards him were Cedric and Clement (who was holding a bushknife). They came over and were only a metre away when he opened the door and then closed it. He had been the victim of three previous incidents on that part of the Rai Coast Highway so he was alert to the risks that the area posed. When he heard his children call out he had his back to the driver's side door, with his head down, preparing to pick up the dropped magazine. He felt that his life was in imminent danger, so he reacted instantly to the alarm raised by his children, intending to scare the person who was attacking him. He considers that the complainant was about to attack him with the bayonet. He discharged the rifle without delay, downwards, as a matter of caution, from an angled, crouching position. He did not see the complainant before he fired. Unfortunately the complainant was only one metre away, near the bull-bar, so he received the bullet on his foot. He denied that he was standing up when he fired and that he deliberately aimed at the complainant's foot. If he had shot the complainant from that position he would have blown off his leg. The complainant was not standing with Cedric. He had approached from the front of the vehicle. The complainant did not fall when he was shot. He kept himself propped up by holding on to the bull-bar. The complainant stayed standing near the front of the vehicle after he was shot. He (the accused) told him to move away from the front of the vehicle. The accused's wife told the accused that she had seen the complainant throw something into the bush and when he went to investigate he found a US-style bayonet [exhibit D1]. He showed it to the complainant but he denied that it was his. The accused asked Clement why he was with 'the drunkards' and Clement convinced him that he was not in their group and that he was sober. Clement alerted the accused to some plastic bottles that had been thrown into the bush by the drunkards, so he investigated and found a soft drink bottle containing illicit spirits. He also picked up a boom box, which he proceeded to smash on the road. He visited the complainant later that evening at the hospital and five days later checked on him again.
2	Christine Kapen		Wife of the accused
Evidence		When her husband stopped the vehicle she turned around to Const Tovue who was seated at the rear of the vehicle and told him to get out and assist 'Senior'. She instructed her children, who had moved close to the window at the back of the driver's seat, and opened the window, to get back inside. She got cross with them as she did not want them to see what was happening. Then her attention was drawn to the front of the vehicle. There was a youth close to the front bumper. She could not at that stage tell if he was holding anything. She turned around to again check on the children and realising that they were still on the driver's side scolded them: 'Move to the back of my seat!' Her eldest child replied 'The man who is at the back of Daddy is holding a knife!' Upon turning around she saw that the youth who had been at the front of the vehicle had moved to the driver's side and that he was holding a knife in his right hand. She heard her daughter calling out to her father, telling him that there was a man with a knife at his back. Then she tried to get out but was unable to as her door was over a drain and the bush was close to the edge of the road. She heard the gunshot then devoted her attention to the children, to calm them down. Then she realised that the youth who had moved from the front to the side of the vehicle had been shot. He was limping. That was the complainant. Then she saw him throw something into the bush. She informed her husband and he found the US-style bayonet in the bush.

18. Having regard to the demeanour of the witnesses and noting that there were two obvious candidates as witnesses – Clement Kalo and Mugulis Irena – who were, without explanation, not called, I generally prefer the evidence of the defence witnesses as to how the incident unfolded. I do not accept the evidence of the complainant and Cedric that they were not drunk. There were some inconsistencies in their evidence. I accept the accused's evidence that he stopped the vehicle as he sensed trouble. There were youths on the road and they appeared to be drunk and disorderly. Most scattered and ran off into the bush. Why would they do this if they were sober and innocently walking along the road? The complainant admits to having consumed yawa for the first time and being involved in two fights just before the accused arrived.

19. The evidence of the State witnesses about the accused stepping out of the vehicle, not saying anything and firing deliberately from an upright position into the complainant's foot is not believable.

20. I accept the evidence of the accused that he reacted instantly upon hearing his children raise the alarm. I accept the evidence of Christine Kapen that she saw the complainant at the front of the vehicle. She did not, however, see him holding a knife.

21. I find that there is insufficient evidence that the complainant was holding a knife. I uphold Ms Zurenouc's submission that important parts of the defence case about the knife and its belonging to the complainant were not put to the State witnesses. The rule in Browne v Dunn (1893) 6 R 67 (HL) (the requirements of which are explained in Kutau v The State (2007) SC927) was breached in significant respects. When the children called out that a man was holding a knife, the man, I find, they were referring to was Clement Kalo. Their attention was being drawn to what was happening outside their window and what their father was doing about it. They would not have had a clear view of a man approaching from the front of the vehicle. They drew their attention to a "man" but the complainant was more likely to have been referred to as a "boy". None of the children was called to give evidence. There was no explanation for this.

22. Irrespective of who the children were referring to and even assuming for the moment that the complainant did have a knife, there is insufficient evidence on which to base a finding that he was threatening to use it. Why would the complainant attempt to approach a well known policeman holding a semi-automatic weapon and attack him with a knife?

23. Those are the court's general findings of fact. I will now address the elements of the defence.

25. The prosecution must prove that the answer to one or more of these questions is 'no'. If it cannot do this, all elements are presumed proven and the defence of self-defence will operate. Having weighed the competing evidence and the submissions of counsel I have concluded that the questions should be answered as follows:

1 No, the accused was not unlawfully assaulted. The State has proven beyond reasonable doubt that the complainant did not assault or threaten to assault the accused.

2 No, the accused did provoke the assault. There was no assault, but if the opposite view is taken and it is assumed that there was an assault, the accused himself provoked it by the aggressive manner in which he alighted from the vehicle, cocking his firearm and giving the appearance of being ready to fire a shot.

3 No, the nature of the assault was not such as to cause the accused reasonable apprehension that he would die or suffer grievous bodily harm.

4 No, the accused did not have reasonable grounds to believe that he could not otherwise preserve himself from being killed or suffering grievous bodily harm.

5 No, the accused did not use only such force as was necessary for his defence. It was a panic reaction, not to imminent danger to his life but to a panic call from one of his children. He only had to point the gun at the complainant to scare him off (if he really was threatening him).

Conclusion re self-defence and the second element of the s 315(b) & (d) charge

26. The State has discharged the onus of disproving all elements of the defence. One was sufficient. The defence of self-defence does not apply. There are no other defences raised by the accused. It follows that the State has proven the second element of the Section 315(b) and (d) offence: the accused acted unlawfully.

27. The State has not proven this beyond reasonable doubt. The accused fired indiscriminately and recklessly and without good reason but I accept his evidence that he did not even see the accused. It was not his intention to cause him grievous bodily harm.

28. The third element is not proven. Therefore the accused must be found not guilty.

29. I now consider whether the accused should be found guilty of the lesser offence of unlawfully doing grievous bodily harm, ie without intent, under Section 319 (grievous bodily harm) of the Criminal Code, which states:

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

31. Both elements have been proven beyond reasonable doubt. A verdict of guilty under Section 319 must be entered.

32. Daniel Kapen, having been indicted on one count of attempted murder under Section 304(a) of the Criminal Code, and in the alternative one count of unlawfully doing grievous bodily harm with intent under Section 315(a) and (d) of the Criminal Code and one count of unlawfully doing grievous bodily harm under Section 319 of the Criminal Code is found:

Verdict accordingly.
____________________________
Public Prosecutor: Lawyer for the State
Tabai Lawyers: Lawyers for the Accused

National Court of Papua New Guinea

State v Kapen [2012] PGNC 385; N4895 (20 November 2012)