N5625

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 327 OF 2012

THE STATE

V

OTTO KABOIR

Popondetta: Toliken, AJ.
2014: 09th, 10th, 11th, 14th, 15th April
10th June

CRIMINAL LAW –– Trial –Negligent manslaughter – Police Shooting in a riot at market place – Identification – Competing evidence on who shot deceased and type of firearm used – Not proved beyond reasonable doubt that accused shot the victim – Proved beyond reasonable doubt that accused was armed with a gun different from one he is said to have been armed with – Evidence point to someone else - Verdict – Not guilty - Criminal Code Act Ch. ss 302, 287. 

Cases Cited
Papua New Guinea Cases

 Balbal v The State (2007) SC 860

Overseas Cases

Browne v Dunn (1893) 6 ER 67

Counsel

D. Kuvi, for the State
E. Sasingian, for the accused

VERDICT

10th June, 2014

1.	TOLIKEN, AJ. The accused was indicted for one count of negligent manslaughter contrary to Sections 302 and 287 of the Criminal Code Act Ch. 262. The indictment charged that –

OTTO KABOIR of Yuo Island, Wewak, East Sepik Province, stands charged that on the 17th of June 2011 at Guba market, Popondetta Town, Oro Province, in Papua New Guinea, he unlawfully killed one Leonard Keke. 

THE ALLEGATIONS

2.	The State's allegations are that the accused is a policeman attached to the Popondetta Public Safety Division and had been based here for over a decade since passing out from Police College.

3.	On the 16th of June 2011 a day before the alleged offence by the State against the accused, there was another unlawful killing at the Bangoho Compound here in Popondetta town. The deceased in that incident was from Hangiri village, along the Kokoda Highway.

4.	The next day, that is the 17th June 2011, the relatives of that deceased mobilized themselves and came into Popondetta town with the view of taking revenge against the settlers. There were several truckloads that came into town between 11am and 1pm that day. When the villagers from those vehicles got off, they marched up to the Guba market, located just near the Bangoho Compound (squatter settlement) and proceeded to destroy make shift market shelters there. Among the group was the deceased, late Leonard Keke.

5.	The accused and several other regular and reserve policemen, armed with police issued and privately owned factory-made shotguns came around from behind and using another track circled around to the front and confronted the crowd who by then were in the middle of the deserted market.

6.	By then the accused, armed with a privately owned shot gun, aimed directly at the crowd and fired a shot into the group which was a distance away. The deceased who was in the group at that instant was hit by a pellet in the chest area. By then the crowd had retreated and carried the deceased to the roadside where he died. From there the deceased's body was taken down to the police station where it was placed in front of the police front counter by the relatives.

7.	The State alleged that the accused had no justification to kill the deceased. It alleged that by operation of section 287 of the Criminal Code, the accused was in control of a dangerous object and had failed to exercise proper care. In failing to do so he was negligent and is responsible for the death of the deceased under section 302 of the Criminal Code.

PLEA

8.	The accused pleaded not guilty traversing the charge, that to say he raised general denial as his defence.

THE ISSUE

9.	The central issue for the Court to determine is whether the accused negligently and without justification killed the deceased Leonard Keke.

THE OFFENCE

10.	Sections 302 and 287 provide as follows:

302.	Manslaughter.

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

......................................................

287.	Duty of persons in charge of dangerous things.

(1)	It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or 	stationary, of such a nature that in the absence of care or precaution in its use or management the life, safety or health of any person may be 	endangered, to use reasonable care and take reasonable precautions to avoid that danger.

(2)	A person on whom a duty is imposed by Subsection (1) shall be deemed to have caused any consequences that result to the life or health of any person by reason of any omission to perform that duty.

11. The elements of the charge, which the State needed to prove beyond reasonable doubt are that:

•	The accused
•	Caused the death of the accused
•	Without lawful justification 

And since the State invoked Section 287 it must prove that the accused did so negligently.

THE EVIDENCE

12. The State called a total of 6 witnesses while the defence called accused himself and 3 other witnesses.

THE FACTS

Undisputed Facts

13. On Thursday 16th of June 2011 a man from Hanjiri, in the Kaiva area was killed at Guba Market in Popondetta by settlers at the Banghoho (Guba) Compound or settlement. On Friday 17th of June, his relatives and others from the area converged on the town travelling in truck loads to take revenge. They alighted next to the police station and despite orders from the Provincial Police Commander the late Micah Ainawe they proceeded on foot to the Guba Market. The first confrontation with the Guba Compound settlers happened at the Mobil Service Station and the two groups started fighting there. The fight moved to the main Guba Market and the Kokoda villagers set about destroying and burning market stalls. The two groups fought each other with spears, stones and sticks and other missiles.

14. On that morning before the Kokodas came down PPC Micah Ainawe had summoned all police personnel including reservists and Community Based Constables (CBCs) and informed them of the impending confrontation. He instructed them to bring whatever arms they had in their possession to quell the situation.

15. The accused brought two shotguns that were in his possession, an ASTRA single shot shotgun Serial No.157079 that was registered to him and a BOTTO single shot shotgun Serial No. 951251 own by a Peter Woreka given to him for safekeeping.

16. The policemen (consisting of regulars, reservists and Community Based Constables (CBCs)) led by the Provincial Police Commander Late Micah Ainawe and Police Station Commander (PSC) Zozoba followed the villagers to the market warning people along the way to keep away from the fight. The policemen split into two groups, one led by the PPC took the main road to the Market while the second group took a route to the back of the market. The accused was in the second group which included Senior Constable Kemokemo, senior Constable Cain Haira, Reserve Constable Vincley Gambe, Reserve Constable Philemon Viore, Senior Constable John Boki and other Reservists and CBCs. These men were armed with an assortment of firearms including police issued arms and exhibits. Senior Constable John Boki had a police issued Pump Action shot gun. Reservist Philemon Viori also had a Pump Action, Senior Kemokemo had a pistol and Reservist Vincly Gambe had a Single shot shotgun which was a court exhibit.

17. The men had to cross a creek and climb a small slope to get to the back of the market. They then split up, one group led by the accused moving to the right in the direction of Girida Undari Workshop and the other move to the other direction.

18. Shots were fired by these two groups of policemen in the midst of fierce fighting. A pellet from a shot fired in to the retreating crowd hit and wounded the deceased Leonard Keke in the chest area and he died moments later. Eleven others also sustained pellet wounds to various parts of their bodies. That fatal shot was fired by a member of the police contingent. 

19. The villagers first carried the deceased's body on foot to the Police Station and laid it outside the duty counter and telling the PPC that policemen had killed the deceased. The body was then taken to the Popondetta General Hospital. An Autopsy or Post Mortem was conducted on the body by Dr. Nuiro Badia on 24/06/11 and he compiled a report on the same day. (State Exhibit A)

20. The Post Mortem findings were –

A)		EXTENAL

a)	A single entry wound of 1.2cm diameter in the left costosteral junction over the third rib.
b)	Bleeding from nose as signs of respiratory and gastrointestinal involvement.
c)	No other injuries noted.

B)		INTERNAL

a)	Through and through entry into junction of the 3rd rib with sternum
b)	Lungs not touched
c)	Entered aorta (major exit vessel from heart) through and through
d)	Cardiac temponade (lots of blood in pericardium)
e)	Mediastiral bleeding into posterior aspect (more than 5 litres)
f)	Bullet (single) stopped at the spine which was retrieved.
g)	Lungs normal

CONCLUSION 

Sudden death due to torrential loss of blood in the mediastrim. Cardiac temponarde was also a contributing factor. The victim did not stand a chance of surviving from this fatal injury.

21. Dr. Giara, the Senior Specialist Medical Officer and Medical Director at the Popondetta General Hospital, was called to explain the Autopsy report. He concurred with the conclusion as to the medical cause of death reached by his colleague, Dr. Badia.

	Disputed Facts

22. The principal disputed facts which bear upon the central issue before the Court are –

•	Whether the accused negligently discharged a firearm that 	resulted in the death of the deceased and injuring 11 others.

•	Whether he used his privately owned and licensed ASTRA single shot shotgun Serial No. 157079 described as having a brown wooden butt.

23. This boils down to whether the accused was positively identified as the person who discharged his firearm into the crowd.

Relevant Evidence

The following is a summary of the relevant evidence of the disputed facts.

Evidence by the State 

Lamek Kageni

24. Lamek Kageni testified that on the 17th of June 2011 he joined the villagers who had converged on the town in truckloads to protest over the killing of a relative by youths from Bangoho Compound the previous day, 16th of June 2011. He and others got on a USG oil palm fruit cartage truck armed with knives and other weapons. They arrived at in town around 11.00a.m. and 12.00p.m. They alighted at the Police Station and then ran straight to Guba Market. They had the first fight with the settlers at the Mobil Service Station. They then moved to the market and set about destroying and burning stalls and other things at the market. They also cut down banana trees and destroyed houses belonging to the settlers.

25. In examination in-chief he said that he was at the back of the toilet when four policemen viz. Otto (accused), Parimon (Philemon), Vincent (Vincely) Gambe and another policeman whom he did not see properly came out from the side of the toilets some 20 meters from where he was. 

26. Upon seeing the police they tried to run away when he heard gunshots from the policemen or "lawmen" as he put it. He then saw the accused who was dressed in police uniform and wearing a Focus cap lift up his gun to fire he ducked and turned sideways for his safety. He, however, felt a pellet enter his body so he ran straight for the hospital but fainted and did not know what happened after that. He described the gun the accused as a single shot with a long barrel. He said 11 others were injured and a cousin of his from Hanjiri died as a result. He heard other shots fired from behind the toilet before he was injured. He said that apart from the accused no one else from that group of policemen fired any shot.

27. Kageni said in cross examination that there was a big fight at the market and that it lasted some 2 hours. He agreed that he was in the thick of the fighting but denied not seeing who shot at them when the question was put to him. He maintained that it was the accused and he described the gun held by the accused as having a brown wooden butt and a long barrel.

Brian Brey

28. Brian Brey testified that he had come into town on the morning of the date in question. He got off at the Kokoda/Oro Bay Junction and noticed that a big fight was going on. He soon learned that the fight was over a death that occurred the previous day at the Guba (Bangoho) Compound. When he arrived at the Guba Market he saw the Kokoda people dragging a pig around the market and a group of men were chasing a small boy intending to chop him. He intervened and stopped them from chopping the boy telling the men that the boy was his son. He grabbed the boy and at that moment a group of policeman came out from behind the market from the direction of the workshop. He recognized them as the accused Otto, Philemon Viori, John Boki and Vincely Gambe. He said the accused come out with a single shot long barrel gun, aimed at their direction and fired. Brey said he immediately called out "It is Otto!" When he turned around he saw that someone (whom he referred to as his brother) was injured. He grabbed the boy and was trying to run away when he heard the injured man say to him in Kaiva "Enjo namo tehera."("Brother they shot me.") He then carried the injured man, got the boy and ran to the main road towards the Guba Clinic. There the injured man said that he wanted to rest so he laid him down on the bitumen. The man then shook his hand and said "brother I am going now" and then died. He then carried the man towards the workshop gate where the PPC and his men were, laid him down and told the PPC "A lawman shot him." They then carried the man and as they were walking away a vehicle came along and took them to the hospital. 

29. Brey said in examination in chief that he was about 20 meters away from the accused when saw the accused fire in his direction. He said he knew the policemen well as they were all based here in Popondetta. He knew that the accused was from Sepik and indentified him in Court. He said he carried the injured man some 40 meters to the bitumen between Steamships Hardware (now Hardware Haus) and the Guba Clinic. There he said the man told him that he was from Hanjiri and that his name was Leonard Keke. He then shook his hands and passed away. 

30. In cross examination Brey said that he was a little away from the centre of the market about 10 meters from the toilet and septic tank when he saw the policemen come out. He said that when the people fighting saw the police they retreated. He agreed that there were two groups of policemen, one in front and the other group that came out from behind the market and in between them were those that were fighting. He agreed that the police were armed but did not see what arms they had. He, however, said that the PPC was armed with a pistol. 

31. When asked how he could have escaped injury he said he had lifted the boy up and raised his left hand as a sign of surrender at the moment the accused fired and thus escaped injury. But all the boys to his right were injured. He maintained that only one shot was fired during the whole time even though policemen were armed and people were fighting

32. He agreed when it was put to him that the deceased's relatives chased and tried to attack Reserve policeman Vincley Gambe because they suspected him of shooting the deceased. When asked if they also tried to attack the accused Brey said he did not know where the accused went to after the deceased was injured. However, Vincly Gambe was there so they attacked him instead. 

33. When asked on re-examination where Vincly Gambe was when the accused discharged his firarm, Brey said that when the policemen came they spread out so Vincley was some distance from the accused to the side. He maintained that Vincley never once fired a shot. 

Robert Kerahupa

34. Robert Kerahupa's statement dated 30.06.2011 was tendered into evidence. He was examined in chief and cross examined on his statement. Kerahupa is a Community Based Constable. He was part of the police contingent present at the Guba Market riot. He stated that the accused gave him his private ASTRA single shot shotgun (brown butt) with two 12 gauge rounds before they moved to the market while he (accused) held on to a black BOTTO shotgun. Kerahupa said that he never fired a single shot and that the accused never got the gun back from him anytime during the riot. He returned the gun instead to Sergeant Erepa (OIC – Firearms) after the riot.

Ronald Yaneku

35. Acting Chief Sergeant Ronald Yaneku is a Forensic Crime Scene Examiner. He is the Officer in-charge of the Crime Scene Investigation Section at the Forensic Science Centre in Port Moresby. He was involved in investigating the Guba Market incident. He compiled a report of his investigation and findings dated 27th July 2011 (State Exhibit C) and was examined and cross-examined on that report. The report included photographs of the post mortem on the deceased, the guns alleged to have been used in the killing, the crime scene and photographs of injuries of others who suffered pellet wounds but survived.

36. The witness was present during the post mortem examination of the deceased and took possession of the pellet that was retrieved from the deceased's body (State Real Exhibit "A"). Other pellets were removed from others who sustained pellet wounds but who survived. These were also tendered into evidence and marked State Real Exhibits "E", "F" and "G". 

37. He examined 6 firearms which were handed to him by the local police. These included an ASTRA single shot shotgun Serial No. 157079 which was licensed and registered to accused (Real Exhibit "B", a BOTTO single Shot Serial No. 951251 (no licence – State Real Exhibit "C") and a Mossberg Pump-Action shot gun serial No. L441145 (State Real Exhibit "D"). He test fired all firearms at station and found out that the ASTRA was functional but the BOTTO was not. Yaneku testified also that the empty shells were never retrieved or handed over to him. There were admittedly errors in his report pertaining to the description of firearms he examined but these were typographical and hence not significant.

Anthony Hukambari

38. Detective Senior Constable Anthony Hukambari is a Homicide Investigator based in Boroko, NCD. He was the lead investigator in the Guba incident. He conducted his investigation almost immediately after the incident. Among other things, he collected and compiled statements from witnesses and confiscated firearms from policemen including the accused and interviewed the accused. He also delegated tasks to certain members of the investigation team to identify witnesses and obtain statements from them. These included gunshot victims.

39. Hukambari testified that there were a lot of suspects and the investigation was made particularly difficult by lack of co-operation by the local Popondetta police who almost to a man denied knowing anything about the shooting. 

40. He and his team of investigators attended the autopsy by Dr. Niure Badia. He also instructed Senior Constable Erepa (OIC- Firearms) to hand over the firearms that were in the armoury which were alleged to have been used in the shooting. The accused handed over two shotgun – one registered to himself (licensed) and another (unlicensed) that he said belonged on Peter Woreka of Timbeki Village. In total 4 single shot shotguns and 2 Mossberg Pump Action shotguns were confiscated. Of these only one, a Mossberg Pump Action was a police issue (issued to the Traffic Section). The other Mossberg was a court exhibit which was used by Reserve Constable Philemon Viori. The other two shotguns were not licensed. Spent cartridges casings were never tendered to his team when he asked for them. Instead Senior Constable Erepa handed over a box of empty shells which Hukambari duly rejected. He said that policemen they interviewed were not able to disclose how many shots they fired, how many shells they brought back and how many live rounds were returned for proper upkeep of the armoury inventory. 

41. On 19th of July 2011 the accused was invited in for an interview. The interview continued on to the 20th of July. Reserve Constable Philemon Viori was also invited in on 20th July for an interview. Based on the information established by the investigation the accused Otto Kaboir was arrested and charged with one count of wilful murder and 11 counts of attempted murder. Philemon Viori was also arrested and charged with 11 counts of attempted murder.

42. In cross-examination Hukambari agreed that no ballistic report done, though. It was also put to him that Vincley Gambe was suspect and that gambe's statement was obtained in what was in fact a record of interview. He denied this and the defence successfully sought to tender Vincley Gambe's statement dated 01/07/11. Hukambari explained that Gambe was a key witness so had to start collecting his statement by posing a few questions to him. 

43. He was also shown State witness Robert Kerahupa's statement about being given brown handle hunting shot gun by accused and asked why he did not investigate further . He said that Kerahupa did not avail himself after he gave his Statement.
 
Defence Evidence

The accused

44. The accused testified that on that morning he was brought down the two firearms in his possession as instructed by PPC Ainawe. He held on to the BOTTO shot gun owned by Peter Woreka which he left in his house for safe-keeping and gave his licensed private ASTRA shot gun to CBC Reservist George Alquin who then gave it to Kerahupa.

45. He was in that group of policemen who approached the market from the back. The group included Vincley Gambe (armed with a single shot long barrel shot gun), Philimon Viori with a Pump action, S/C Kemokemo with pistol, Senior Constable Cain Haira, Senior Constable John Boki who had a pump action and other Reservist and CBCs. They crossed a creek and climbed up a slope. He struggled getting up the slope because he was fat so the others went ahead of him. By the time he reached the top of the slope shots were already being fired from the side and the middle. He did not see who was firing.

46. As sticks and stones were flying around everywhere he had to turn around to defend himself. He and other CBCs then made their way towards the Girida Undari Workshop and giving their back to the other policemen. As they moved along the fence he could hear shots still being fired but did not see who was firing. They continued to follow the side of the fence all the way to the bitumen where they joined the PPC and others. The PPC fired two rounds from his pistol into the air and the accused fired a single warning shot into the air towards the Comfort Inn. That was the only shot he fired. He tried firing again but the gun jammed. He denied ever shooting into the crowd.

47. He proceeded on foot to Wing Hay for the Police Station with the PPC and other policemen when crowd carrying the deceased passed them by shouting "police killed this man". When they arrived at the Police Station the crowd was yelling and saying "The Bokoro man, the reservist killed this man." The State took issue with this part of the accused evidence saying that he did not mention this in his statement to the police dated 05/07/11. Counsel sought to tender the document as a prior inconsistent statement. The defence objected that they State cannot do that as it has closed its case. I denied leave ruling that while the State was entitled to have the document tendered as a prior inconsistent statement, the fact that a witness says something in his oral evidence that he did not mention in his statement to the police is not a prior inconsistent statement. What would amount to a prior inconsistent statement is a statement in oral testimony that is completely inconsistent with his prior statement. (Balbal v The State (2007) SC 860) 

Albert Hungapa

48. Albert Hungapa, a Community Base Constable was with the group of policemen with the PPC that morning. He testified of seeing Vincley Gambe approach from the back of the market and fired into the crowd after which he saw a person fall to the ground after the shot. He then saw the people react, pointing to Vincely Gambe and tried to attack him chasing him towards the Service Station where he managed to escape.

49. He said that he is a cousin brother of Vincley Gambe and that the late PPC Ainawe knew that it was Gambe who shot the deceased but because he is married to a woman from their village he shielded Gambe. Hungapa further told the court that Vincley Gambe was in court when the trial started and had in fact confronted him and asked him (Hungapa) why he was he was in court. Vincley Gambe told him to leave the court but he did not. 

Peter Toki

50. Peter Toki, a leader of the Guba Compound community testified that he led the Guba Community in the fight against the Kokoda group. They had managed to move their adversaries back so he retreated and was behind Reserve Policeman "Vinces Gama." Thinking that he was safe enough from the fighting he put his spear down and as he looked to the right he saw "Vinces Gama" lift up his gun and aimed at the people who were running back. He saw him fire at their direction and saw one of them fall down. The man got up and ran but fell down again close to the bitumen. He saw someone pick the fallen man up and ran towards the Independence Oval. He then heard people shouting "Vinces Gama, Vinces Gama, Bokoro man shot him!" He picked up his spear as Vinces Gama was taking off his helmet and ran into the Compound. Peter Toki said he was about 20 meters from Vinces Gama. When asked in cross-examination if anyone else was with Vinces Gama Toki said he was with CBC Albert. I accept that this Reserve Policeman Vinces Gama is the same Vincly Gambe.

Grace Byron

51. Grace Byron testified that she was residing at the Girida Undari Workshop at the time of the incident while her son was hospitalized at the Popondetta General Hospital. On the day in question she had returned from the Police Station and was entering the workshop gate carrying her in-law's 4 year old child when the fight erupted in the market. The Kokoda people entered the market and started destroying stalls and ran into the compound. They were confronted by the residents of the compound and fierce fighting ensued. Soon thereafter the police arrived. She took a position besides a container behind the dividing fence and saw a reserve policeman whom she described as tall and of light skin complexion wearing a woollen cap and a green helmet. She said she could tell that the man was from Bokoro. She saw the policeman lift his gun and shot the deceased. She then saw the deceased being carried away.
 
52. The next day when she heard that the accused was accused of having killed the deceased she went to the Police Station with her husband and daughter and she reported what she witnessed to the Officer In-Charge of CID Sgt Begola in his office. She denied any relationship with the accused and said she went to the police because the accused was made a scapegoat for a killing that was done by a Popondetta man simply because he was an outsider.

53. In cross-examination Byron said that only a fence separated her from the man who shot the deceased. She denied that her view was obstructed by vehicle wrecks. She said there were wrecks around but these were towards the back of the workshop. From where she stood beside a container she had an unobstructed view of what was happening. She said she was about 7-9 meters from where that reservist from Bokoro was when he shot the deceased. She denied also that she was mistaken about the identity of the reservist when it was put to her that she could not have been sure that the man was from Bokoro saying that she could tell what part of Popondetta a person comes from.

DELIBERATIONS

54. The above basically is the opposing evidence on the disputed facts. So the question is: 

Did the accused discharge a firearm that resulted in the death of the deceased and injuring 11 others? If he did, did he use his private hunting gun, an ASTRA single shot Shotgun Serial No.157079?

55. The State's and defence's evidence on these matters are diametrically opposed and seem irreconcilable. State witnesses Lamek Kageni and Brian Brey testified that they separately saw the accused shoot into the crowd with a brown butt shotgun. This, however, could not have been the case because State witness Kerahupa testified that the accused gave him his hunting gun, an ASTRA single shot with a brown butt, a fact confirmed by the accused and seemed to have been accepted by the investigating officers. This was the accused, own private gun, an uncontroverted fact. Kerahupa was and is a state witness and his statement of having been given the ASTRA by the accused while he kept the black butt BOTTO coupled with the fact that Kerahupa never returned the ASTRA to the accused during the riot ought to have alerted Hukambari. The evidence was pointing him to another direction but he failed to follow the lead and investigate further.

56. I accept that the accused held on to Woreka's BOTTO single shot which he had taken down with him together with his own gun. It is clear to me then that Kageni and Brey were either mistaken or deliberately told untruths to incriminate the accused. Kageni admitted that he was in the thick of the fighting so how he could have clearly observed the colour of the butt of the gun the accused had defies common sense and logic in the circumstances. In short there is irreparable contradiction between the evidence of these three State witnesses.

57. And the contradictions do not stop there. Brey said that only one shot was fired during the whole incident. However, Kageni said that apart from that one shot fired by the accused he heard other shots coming from the back of the market. I also find that the PPC himself fired a couple of rounds from his side-arm or pistol. The accused fired a shot from the BOTTO single shot he had when he rejoined the PPC and his group after which the gun jammed. So obviously Brey was again telling untruths. Therefore not only is there contradiction on this point, it also again goes against common sense and logic in that for a riot where people were fighting with spears and other weapons and market stalls were being burnt and destroyed not to mention the large crowd that would have been around, only a single shot was fired by the police.

58. Now the only witnesses who testified of seeing the accused shoot directly at the crowd are Kageni and Brey. The only other evidence that implicate the accused is the statement by Vincely Gambe (Exhibit 1 for the defence) where he stated that he saw the accused and other policemen with them fire at rampaging crowd and when he saw someone collapsed he knew that he was hit by the accused fire. Gambe in fact also stated that there were a lot of gunshots from his colleagues. He was, however, was not called by the State though he is listed in the indictment as a State witness and a vital witness according to Hukambari. There is evidence that he was present in the court premises at the beginning of this trial. His statement is, however, untested but for all it is worth, it merely adds to the contradictions in the State's case. Why he was not called, though, is something known only to prosecuting counsel. Mr. Kuvi attacked the defence's attempt to shift liability to Gambe as offending the rule in Browne v Dunn (1893) 6 ER 67. This argument, however, does not hold because Gambe's statement was put into evidence for the defence through State witness Anthony Hukambare. It was put to the witness in cross examination that Gambe was also a suspect. This was in my view sufficient to alert the State and it ought to have made Gambe available to allay any suggestions of his involvement in the killing of the deceased. The State chose not to and will suffer a huge dent in its case as a result. 

59. In contrast the defence led evidence from no less than three witnesses who separately saw Vincely Gambe shoot into the crowd of fighters as a result of which the deceased was fatally injured and 11 others received pellet wounds. These witnesses were not related to the accused and have nothing to gain from the outcome of this prosecution.

60. Albert Hungapa, a Community Base Constable was with the group of policemen with the PPC that morning. He saw Vincley Gambe approach from the back of the market and fired into the crowd after which he saw a person fall to the ground after the shot. He then saw the people react, pointing to Vincly Gambe and tried to attack him chasing him towards the Service Station where he managed to escape. This confirms Brey's evidence on this point and further bolsters the accused evidence that the people carrying the body of the deceased were shouting that the police had killed the man and when they arrived at the Station they further shouted in pidgin saying "Man Bokoro, reserve police killim man! Man wantem helmet!" (The Reserve Policeman from Bokoro killed this man! The man wearing a helmet!") This was an obvious reference to Vinceley Gambe. 

61. Hungapa and Gambe are cousins. Hungapa gave uncontroverted evidence that Gambe was in Court at the start of the trial and had told him (Hungapa) to leave the Court but he did not, choosing to testify for the accused even though he is not related to him. It has not been shown to me that Hungapa was vindictive towards Gambe or that they are not in good terms. Hence I find his evidence to be reliable.

62. Grace Byron evidence was not shaken by the State. As we have seen she was in the premises of Girida Undari Workshop which is situated immediately next the Guba Market. I accept that she had an uninterrupted view of the Market area from where she was when from a distance of about 7-9 meters she saw the tall Bokoro man fire directly into the crowd. I accept - without proof to the contrary- that Byron reported what she saw to Sergeant Begola the very next day. This was important information that ought to have been made available to the investigating officer. If it had been passed on, the direction this prosecution took would have been completely different. Why this crucial information, freely given to Sergeant Begola by an independent and uninterested person was not passed on to the investigation officer is again known only to the good sergeant. There were some assertions of complicity by the late PPC Ainawe but I do not wish to be drawn down that road for the deceased is not around to defend himself. Be that as it may, the fact remains that evidence of the involvement of somebody else apart from the accused was not taken seriously or considered by the police, if at all.

63. Peter Toki was also not moved by cross-examination and I was impressed with his evidence in general. His evidence corroborated the evidence of Hungapa and Grace Byron that it was Vincley Gambe who fired that fatal shot that resulted in the death of the deceased. His evidence also corroborated the evidence of others including State witness Brey that the crowd started shouting that it was Reserve Policeman Vincley Gambe from Bokoro who shot the deceased.

64. Now something has to be said about the evidence of the forensic examiner Acting Chief Sergeant Ronald Yaneku. He test fired all the 6 firearms that were given to him by the police which he was of course entitled to do. However, before doing that he did not conduct an examination to see if the alleged murder weapon, the ASTRA, was fired at all prior to it being handed over him give the fact that their investigation showed that the accused used his private shotgun, the ASTRA. Nor was a similar examination done on the the BOTTO or to any of the other firearms that he examined. There is no sense in test firing the guns to merely prove that they are functional without having first examined if they were previously fired. The witness is a forensic expert and one would have thought that that would have been the first thing he ought to have done or thought about. The fact that the guns were functional does not prove that they were the murder weapons, as it were. If he had examined the guns first before test firing he would have probably confirmed Kerahupa's evidence that he did not fire a single shot from the ASTRA. And again this would have also pointed him to another direction. 

65. There is strong evidence incriminating somebody else (Vincley Gambe) and not the accused. And the State's failure to call him does not do anything but cast serious doubt not only upon the current charge but also on the lesser 11 counts of attempted murder the accused is also facing. In fact, if I can be at liberty to refer to Vincley Gambe's statement (Exhibit 1 for the defence), he actually attributes the injuries sustained by the other 11 people to Philemon Viori. This of course runs against the evidence of Brey and cast further doubt on the State's case against accused Philemon Viori.

VERDICT

66. The above therefore leads to one inevitable conclusion – No, the State has not proved beyond reasonable doubt that the accused discharged the firearm which resulted in the death of Leonard Keke and, NO, the accused could not have used the brown butt ASTRA shotgun because it has been proved beyond doubt that he was in fact armed with the BOTTO shotgun which had a black butt.

67. I therefore return a verdict of NOT GUILTY and accordingly order that the accused be discharged forthwith. I further order that his bail be refunded and sureties paid by guarantors (if any) be refunded also. 

Ordered accordingly.
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The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused.