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State v Banuk [2014] PGNC 332; N5760 (20 June 2014)

N5760

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.816 OF 2013

THE STATE

V

JOHN BANUK

Kokopo: Lenalia, J.
2014: 19th 20th, 22nd, 23rd May
20th June

CRIMINAL LAW – Murder – Plea – Not guilty – Trial – Criminal Code s.300 (1) (b) (i) (ii)

CRIMINAL LAW – Murder – Evidence in trial – Killing of student – Evidence of accused being present with three other policemen – Accused a policeman allegedly hit the victim against the brick wall of the Kokopo Police Station – Finding of guilty

CRIMINAL LAW – Evidence of accuser's presence on the scene of brutal attack on the student late Stanis Jiki – Parties to offences – Finding of guilty to failure to or omitting to do any act or acts to prevent commission of the offence – Finding of guilty to lesser charge of manslaughter

Cases cited

R v Wendo [1963] PNGLR 217
Willy Kelly Goya v The State [1987] PNGLR 51
Porewa Wani v The State [1979] PNGLR 593
The State v John Bali Woli and Pengas Rakam [1978] PNGLR 51

Counsel

L. Rangan, for the State
P. Yange, for the Accused

June 20th, 2014

1. LENALIA, J: The accused pleaded not guilty to one count of murder. The offence of murder is contrary to s.300 (1)(a) of the Criminal Code.

Section 300(1)(a) of the Criminal Code states:

"300. Murder.

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

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or

(b) if death was caused by means of an act—

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life; or

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating—

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Sub-paragraph (i); or

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c); or

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1)(a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1)(b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1)(c), (d) or (e) applies, it is immaterial that the offender—

(a) did not intend to cause death; or

(b) did not know that death was likely to result."

State's of Evidence.

2. On the evidence, the State alleges that on the night of 24th June 2011, the accused, and three other policemen Constables Paul Sophrate, Mathew and another Task Force member went to Kokopo Business College (KBC) to attend to a distress call relayed by someone to the Officer in Charge of the night shift at Kokopo Police Station.

3. When the policemen arrived at KBC, they proceeded to the boys' dormitory and after talking to the staff, the students obeyed but some did not. When police took off someone threw something either on the police vehicles or on the road. Police stopped and went up to the boys' dormitory and forcefully pulled three students out. Those students included the deceased (Stanis Jiki), Clement Tuka and one other. Once the students were outside the dormitory, policemen whipped them with fan belts. Those students were also assaulted when they were led out from the dormitory.

4. After they took those students, they were taken into two police vehicles, a 5 door and a 5th Element. As they were driving off, the 5 door vehicle was hit with an object so hard that, policemen had to stop to find out who had thrown the object on the police vehicle because it caused a big noise. They stopped and tried to find out who had stoned the vehicle. There was some commotion and police had to quieten the angry noise down before they drove away.

4. The students were taken away to the Kokopo Station. Evidence by the State came from four witnesses. They included Smith Pennie, Don Hoken, Clemet Tuka and the Doctor. Mr. Pennie's evidence shows that, he came to the police station because, he wanted to tell the police that, Don Hoken was arrested for nothing. Don, a student at the Kokopo Open Campus was accommodated by Mr. Pennie and his family at Kennabot near and opposite the KBC school campus. He followed the police vehicles and came to the police station.

5. When he parked his vehicle near the entrance to the Court premises, he got out and saw a task force officer stand beside a 5th element vehicle and punched the deceased and asked him in Pidgin "strong blong iu we nao, iu laik pait bek long mipala antap long skul." Immediately after uttering such comments, another task force officer who was described by this witness as "muscular and well built" with the same built of the task force driver started to whip the late student with a fan belt.

6 He continued whipping the victim from there to the brick wall of the police station and the student was ordered to stand against the brick-wall. He hit the victim against the brick wall a number of times until he fell down with his head first onto the cement.

7. While the student was lying down on the cement, he did not move and he was kicked around his body a number of times in the hope to wake him up. When the late student did not wake up, a person whom the witness referred to as 'James Copex' walked toward the victim with an instrument and said he was to wake him up.

8. Whatever the instrument was, it was pushed against certain parts of the body of the victim but he never woke up. When the victim failed to wake up, the same policeman left the scene and a few minutes later, he returned with a bucket of water and poured water on the body of the student. When policemen realized that, the victim though was breathing could not talk, they ordered two or three students to carry the victim into the police cells.

9. Don Hoken's evidence is similar to that of Smith Pennie. Don heard the commotion at the KBC campus and came out of the gate of Mr. Pennie's house and as he stood on a police 5 door vehicle stopped and he was ordered to get into that vehicle. In that 5 door were four policemen including the driver.

10. They drove up into the college campus grounds and went to the boys dormitory where they assaulted three students and took them down back to where the vehicles were parked. The three students were placed in the vehicles and they drove away. As they started to drive out, Don heard a big bang on the 5 door vehicle. Someone had thrown an object on it and police had to stop to find out who was the culprit. There was further commotion between the students in the campus and police.

11. Don Hoken was in the 5 door vehicle and he sat with the deceased. The vehicles stopped and policemen got out and had exchange of words between the police and students. When they took off, the victim was told to sit on the floor and he was repeatedly assaulted until they got to the police station.

12. When they got to the police station, Don's description of the policeman who assaulted the victim was that, he was not fat, with somewhat light skin with a flat top hair cut.

13. Don's recollection is that two policemen were responsible for assaulting the victim. One of them used a fan belt to whip the deceased around the vehicle and when the deceased was pushed toward the brick wall of the police station office, another policeman punched his head toward the brick wall until he fell down head first to the concrete floor.

14. The victim was washed with a bucket of water with hope to revive him but he did not wake up. He saw another task force member applied an instrument on the body of the victim. Policemen ordered the students to take the victim into the holding cells.

15. Don was placed in the cells that night together with the KBC students including the victim. He said, while the KBC students went to sleep, he did not sleep that night until day break. Between 4 and 5 the victim woke up and asked Don to assist him sit up. Don assisted him to sit up, but he could not sit up steadily so he laid him down again on the floor.

16. A policeman came into the cells about 5 am. The students requested him to immediately take the victim to the hospital. The policeman said, they would take him to hospital in the morning when it was day break. About the same time the Deputy Principal of KBC came in to visit the students in the cells.

17. He saw the victim lying on the floor and asked colleague students to check if the victim was still breathing. When the two students checked him, they found that he was no longer breathing. On insistent of the Deputy Principal, other students were released.

18. In cross-examination, the witness was asked about the identity of the policeman who hit the victim's head against the brick wall, the witness said, the person responsible was not so built and was in police uniform.

19. Clement Tuka was the next witness. He comes from Arowe District in West New Britain Province. He was one of those students who were bashed up by the police in the KBC campus. Clement recalls that on 24th June 2011 between 10.30pm and 11pm, there was a big disturbance at the KBC campus involving students and outsiders. This involved throwing of stones and other debris at each other.

20. This incident occurred after the students at the KBC had sat for the first semester exams of 2011 when the students came to town and bought alcohol and went back to the campus where they consumed them. After consuming all liquor, some of them went down to the nearby liquor outlet and conducted an attempted robbery by waking the shop owner and when he came out from the house, one student held a small knife against his neck and ordered him to give them beer.

21. He told the students to wait outside so he could go in and bring the beer cartons out. When he went in, he woke his family members and they all came out from their house and chased the students right to the campus premises. That was why there was a big commotion in and around the KBC campus.

22. Due to such commotion, the Principal called Guard Dog Security Service for assistance. Security personals came but could not contain the disturbances. Then police was called and when they came, they calm the students down and informed them to return to their dormitories and sleep. Some students obeyed. Clement went upstairs into his room and sat down while his room-mate pretended that he was fast asleep. Others stood around on the campus grounds when the two police vehicles with all the policemen drove off.

23. As they were driving away, a student threw a mug behind the police vehicle causing a loud noise. Police vehicles stopped and policemen walked back to the dormitory and started to belt students by using fan belts. Clement was assaulted from his room and taken out together with the victim of this case and a few other students.

24. When they were on the road, they were ordered by police to lie down on the bitumen. They were hit with fan belts and taken away into the police vehicles to the police station. In case of Clement, he said a light skin policeman whipped him with a fan belt when he was taken out from his room. He pointed to the accused and said, the accused was the one who hit him. His evidence is that, he did not see how the deceased Stanis Jiki was hit or who hit him. He was also locked up in the cells until the next day.

25. The next witness was the doctor. Dr. Hilton Abraham was called to give evidence on his findings when he conducted a post mortem report of the late Stanis Jiki. (See Ex. "4" & "5"). In his findings, he found that the cause of death was direct result of significant injuries to vital organs of the body and he named them as the liver, and the brain. In his opinion, the doctor said, "Significant force must have been applied to the abdomen, chest and head culminating in the development of internal bleeding, haemothorrax and subdural haemorrhage respectively."

Defence Evidence.

26. The defence called three witnesses. There is no dispute about the accused presence on the scenes of the fights at KBC and the front of the Kokopo police station. The accused, John Banuk is a policeman and he comes from Komoria village, Karkar Island, Madang Province. Since his graduation from the Bomana Police College at the end of 2010, he was posted to Kokopo Police Station. He has been in East New Britain ever since then.

27. The accused denies liability although he admitted in evidence that, he was on the scene of the killing. His evidence reveals that on the date of the incident he had been on duty with the C.I.D office at the Kokopo police station. After he knocked off, he decided to stay on in town and while he was around in the police station, a task force vehicle came and parked at the station car park.

28. When he was telling stories with other task force members, a member of the task force received a phone call that there was a fight at Gaulim. The accused was invited to accompany those members to attend to the fight at Gaulim. They got on the vehicle and drove to Gaulim only to find that there was no fight. They returned and on arrival, they were requested to attend to another call from Kabaleo Teachers' College that there was a fight and they all attended to it. Police settled the fight there and they returned to Kokopo.

29. On arrival at the station, the task force members were informed that there was a fight at KBC. The accused and task force members attended. When police got to KBC, they spoke to a staff member and asked if they could speak to the principal. When students realized that the police had come, they gathered around and they were informed by police to go back to their rooms to sleep. Some obeyed and some lingered on. When the police vehicles were driving off, an object was thrown either on the vehicle or at the back landing on the road which made so much noise.

30. The police vehicles stopped, three or so policemen came out and walked up to the dormitory to find out who had thrown the object. The accused said, when the policemen went up, he stayed in the vehicle. When the policemen came back, they returned with the suspects, they boarded the two police vehicles and they drove down to the Kokopo police station.

31. The version by the defence is that as soon as the vehicles parked in front of the police station car park, the accused stood together with the students and he was asked to conduct interviews. It is not clear from the accused evidence as to who told him to conduct immediate interviews with the suspects as according to his evidence, he was a junior officer attached to the Criminal Investigation Division.

32. He then walked into the station office and when he noticed that, the students were not with him, he walked back and noticed that the victim Stanis Jiki was lying on the cement floor and a policeman was pouring water on him and then two students were ordered to carry the victim into the cells. All the students were locked up in the cells.

33. In cross-examination, the witness revealed that, the late Stanis Jiki needed immediate medical attention but, he could not do anything as he was a junior officer only. When asked about whether, he was in uniform, he maintained that he was in his civilian clothes because during the day, he had been in the CID office.

34. The next two witnesses' evidence was very brief. Philip Morea and Mathew Sepe are both policemen. Their evidence is only relevant to the kind of clothing worn by the accused on the date of the incident and the fact that, the accused is attached to the Criminal Investigation Division at Kokopo police station. They both confirmed that on the date of the incident, the accused was on duty at the Kokopo CID office and he wore civilian clothes.

35. They both confirmed in cross-examination that unless a CID member is required to wear police uniform, CID members are usually in civilian clothes during working hours.

Application of law to the Evidence

36. On this case, the State invoked s.7 of the Criminal Code. This section states:

""7. Principal offenders.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

(d) any person who counsels or procures any other person to commit the offence.

(2) In Subsection (1)(d), the person may be charged with—

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment,

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission."

(Emphasis added.)

37. There is no dispute as to whether the accused was present on the scene of the brutal assault carried out by a number of policemen on the victim. The issue is would the accused be responsible or not.

38. There is evidence that after attending to the big disturbance that took place at the campus ground at the Kokopo Business College, on the night of the incident, the accused was present at KBC and thereafter at the police station. He and those other policemen attended the fight at KBC.

39. The accused was together with four other policemen. In order to secure a conviction under section 300(1)(a) of the Criminal Code, the prosecution must prove beyond reasonable doubt that the accused intended do some grievous bodily harm to late Stanis Jiki. As on the instant case, the prosecution must prove beyond reasonable doubt that, the action by the accused and his colleague policemen carried or done in prosecution of such act likely to endanger human life.

40. I am also of the view that, to make out a case under s.300(1)(a) of the Code, by operation of sections 7 (1)(a) of the Code, the prosecution must establish that there was a probable consequence of the intention formed by the accused that he acted upon such intent. It was said in R v Wendo [1963] PNGLR 217 that the phrase "probable consequence" appearing in s.8 (b) of the Code includes "an inevitable consequence". So to justify a conviction for murder pursuant to s.8, the prosecution must prove beyond reasonable doubt that the intention to kill was the common purpose shared by those involved: Willy Kelly Goya v The State [1987] PNGLR 51.

41. There is evidence before this court that comments such as "strong blong yu we nao na yu pait long mipala long school. Yu bai yu dai." Or "yu, mipala i go daon long station, dai blong yu." In English, you fought with us at the school, where is your strength now or when we get down to the police station, you will die.

42. The accused was with the group of policeman which attended the fight at KBC on the night of the incident. The evidence does not specifically pinpoint the accused uttering such comments.

43. Although there is evidence that, while the group was on their way down from KBC to Kokopo police station, someone in the vehicle in which the deceased was in made the comments mentioned above, the law is clear, where two or more persons participate in a crime, each person is responsible for the act of the other: Porewa Wani v The State [1979] PNGLR 593, The State v John Bali Woli and Pengas Rakam [1978] PNGLR 51.

44. The court cannot accept the defence version that, the oral evidence by the accused "elaborated" what he said in answer to question 52 in the record of interview. The version given by the accused in the ROI is when he opened the door of the 5 door vehicle, he escorted the deceased and other students to the duty office, and right in front of him the deceased fell down in front of the door way to the duty office.

45. In his oral evidence, the accused said, as they came out from the vehicle, he then walked into the duty office to conduct the record of interview with the suspects. After a while, he realized that, the students had not walked in. He went out the main door and he then realized someone pouring water on the deceased.

46. I will accept the prosecution submission that, the oral evidence given by the accused contradicted what he said in the record of interview and the oral evidence should be treated with caution and be regarded or treated as recent invention. The accused record of interview was tendered as Ex. 1.

47. The court will only accept such defence version as recorded on the record of interview that, the accused was outside the police station when the deceased and other students were whipped with fan belts and the victim was punched and pushed against the brick wall of the police station until he fell down unconscious on the cement.

48. I find the accused was present on the scene at the police station when the victim was brutally attacked by members of the task force. The nature of the assault was the deceased was either repeatedly punched or hit against the brick wall of the police station until he fell down unconscious on the cement. He later died on the early hours of 24th June 2011. The court finds that the accused took part in the hitting of the victim against the brick wall of the police station.

49. According to the doctor's findings, the deceased death was caused by significant force applied to the deceased abdomen, his chest and head culminated in the development of internal bleeding, "haemothorrax and subdural haemorrhage respectively." Applying s.7(1)(a) of the Criminal Code, I find the accused guilty on the lesser charge of manslaughter pursuant to s.302 of the Criminal Code.

50. The accused is found guilty and convicted on the charge of manslaughter.

___________________________________________________

The Public Prosecutor: Lawyer for the State
Kamen Layers: Lawyer for the Accused.