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State v Jack [2016] PGNC 254; N6449 (21 September 2016)

N6449

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. No. 241 OF 2015

STATE

V

PETER JACK

Accused

Tari: Ipang, J
2016: 18^, 19 February, 21^stMarch
31st May, 20^th June And 21^st September

CRIMINAL LAW – Criminal Code Act, Section 304 – Attempted murder or section 315 with intention to cause grievous bodily harm – the accused who is a police officer had prior argument which led to confrontation with the victim, also a police officer. Accused left for police station and returned back with a police issued firearm and shot the victim on his leg.

Cases cited:
NIL

Counsel:
Ms. B. Gore, for the State
Mr. S. Inisi, for the Accused

DECISION ON VERDICT

21^th September, 2016

1. IPANG, J: The accused Peter Jack pleaded not guilty to one (1) count of attempted murder contrary to section 304 of the Criminal Code Act and an alternate count of with intention to cause grievous bodily harm contrary to section 315 of the Criminal Code Act. A trial was conducted and this is the decision on verdict for the accused.
   

Brief Facts

2. The brief facts upon which the accused was arranged are as follows; both the accused and the victim are police officers based at Tari Police Station. The State alleged that on the 17^th of June, 2014 at Homa Barracks, the victim was standing at the gate, the accused who was drunk at that time travelled towards Homa Barracks in a police vehicle and saw the victim standing at the gate. At the gate the victim stopped the police vehicle, the accused rushed out with the police issued firearm and gave a warning shot in the air. He then approached the victim and at a close range shot the victim twice on both legs. The accused ran back to the police vehicle and drove passed Ambua Lodge along Highlands Highway. The Tari Mobile Squad 9 apprehended the accused at Ambua Mountain and took him back to Tari Police Station where he was arrested and charged.
   
3. The accused is charged under section 304 of the Criminal Code Act. This provision reads;

“304. Attempted murder, etc...

A person who –

(a) attempts unlawfully to kill another; or
(b) with an 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.

Is guilty of a crime.

4. The section 315 of the Criminal Code Act reads

“315. Acts intended to cause grievous bodily harm or prevent apprehension.

A person who, with intent –

(a) a to maim, disfigure or disable any person; or
(b) to do some grievous bodily harm to any person; or
(c) to resist or prevent the lawful arrest or detention of any person,

does any of the following thing is guilty of a crime -

(d) unlawfully wounding or doing a grievous bodily harm to a person; or
(e) unlawfully attempting to strike a person with a projectile ; or
(f) unlawfully causing an explosive substance; or
(g) sending or delivering an explosive substance or other dangerous or noxious thing to a person; or
(h) causing any substance or thing referred to in Paragraph (g) to be taken or received by a person; or
(i) puts a corrosive fluid or destructive or explosive substance in any place; or
(j) unlawfully casts or throws a fluid or substance referred to in paragraph (i) at or on a person or otherwise applies any such fluid or substance to the person of a person.

Penalty: Subject to Section 19, imprisonment for life.

5. For the charge under section 304, the State bears the obligation to prove beyond reasonable doubt that;
   • (a) the accused Peter Jack, intended to actually kill the victim Terry Kuimb,
   • (b) the accused Peter Jack, put his intentin into execution by means adapted to his fulfilment and;
   • (c) the accused Peter Jack had manifested his intention by some overact.
     
6. The Defence raised the defence of self-defence under section 269 and 270 of the Criminal Code Act. The section 269 provides;
   
   • (1) When a person is unlawfully assaulted and has not provoked the assault, it is unlawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the forced used is not intended to cause, and is not likely to cause, death or grievous bodily harm.
   • (2) If –
     • (a) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and
     • (b) the person using the 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 unlawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm.

7. The section 270 of the Criminal Code Act Provides;
   • (1) Subject to subsection (2), when –
     • (a) a person has unlawfully assaulted another person, or has provoked an assault from another person; and
   • (b) the other person assaults him with such violence as –
     • (i) to cause reasonable apprehension of death or grievous bodily harm; and
     • (ii) to induce him to believe, on reasonable grounds that it is necessary for his preservation from death or grievous bodily harm to use force in self –defence,
       

the first mentioned person is not criminally responsible for using any such force as is reasonably necessary for such preservation, even if it causes death or grievous bodily harm.

(2) The protection provided by Subsection (1) does not apply –

• (a) where the person using force that causes death or grievous bodily harm –
  • (i) first began the assault with intent to kill or to do grievous bodily harm to some person; or
  • (ii) endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself arose; or
• (b) unless

, before the necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was predictable.
STATE’S CASE

8. The State tendered the following documentary evidence;
   • (i) Record of Interview dated 25.01.2014
   • (ii) The undated Medical Report by Dr. Paralu.
     
9. The State called the following witnesses; James Pakaja, Polip Edward, Wesley Tai and Terry Kuimb. Terry Kuimb is the victim in this matter. Polip Edward is a policeman who drove the police vehicle on which the accused was the offsider back to Homa Barracks. Polip knew nothing about the incident between the accused and the victim which happened earlier during the day.
   
10. Polip and the accused drove towards Homa Barracks and on the way they saw the victim standing at the gate. They went passed the Homa Barracks turned back and drove back. In the front of the gate the victim stopped the vehicle. As soon as the police vehicle stopped, the two (2) eye witness James Pakaja and Wesley Tai said they saw a man came out from the police vehicle from the crew side ran towards the hill gave a warning shot in the air and climbed up the hill.
    
11. Whilst up on the hill he fired two (2) further shots on a person and the victim cried out in pain. The accused ran back to the vehicle and he drove off.
    
12. Polip is the policeman, who drove the police vehicle towards Homa Barracks. The accused was his offsider. He saw the victim and he stopped the vehicle. He said the accused got hold of the firearm, gave a warning shot in the air and rushed up to the hill. He said the accused shot the victim twice on the leg. Polip tried to stop the accused but said he was late.
    
13. The victim basically confirmed three (3) shots were fired by the accused. One (1) shot in the air above his head and two (2) shots (double shots) fired on his leg. He said he was unarmed and did not fight with the accused.
    

DEFENCE CASE

14. The accused said, the victim stopped the vehicle so that he could talk to Polip. The accused armed with a firearm went out of the police vehicle and walked to Homa Barracks. The victim armed with a bush knife swung the bush knife at the accused. In his self-defence, the accused fired a warning shot in the air and then shot the victim on his leg.
    
15. ISSUES
    
    • (1) Did the victim arm himself with a bush knife
    • (2) Where did the accused fire the warning shot.
      

COURT’S ANALYSIS

16. The whole cruxes of the matter boils down to really who should this Court believe. The incident of firing the warning shot and shooting took effect so fast, within the time space of 2 -3 minutes.
    
17. The State witness James Pokaja and Wesley Tai are independent witnesses. They are credible witnesses who gave eye witness account on what they saw and heard. They say the warning shot was fired on the foot of the hill prior to the accused climbing the hill and firing two (2) shots on the victim’s leg.
    
18. Polip’s evidence only corroborates the evidence of James Pokaja who said the accused fired the warning shot before climbing the hill.
    
19. The evidence of defence is thrown in to disarray, when the warning shot was fired on the foot of the hill prior to accused confronting the victim. So how can the evidence of accused, be believed that, his life was in danger and acted in self-defence. He did not fire the warning shot up on the hill but on the foot of the hill. This also brings doubt on the Defence evidence that there was a fight up on the hill and the victim attempted to kill the accused. Even after being shot at on his leg, cried in pain, there was no bush knife to be found. Polip who went to where the accused was lying down could not see any bush knife around. This has also thrown the Defence case and defence of self-defence into limbo.
    
20. In this regard, I do not believe the accused’s version of evidence. The defence of self-defence under ss.269 and 270 of the Code has not being made out or established by the Defence.
    
21. As far as the evidence stands, I do not find the accused did not have prior intention to cause grievous bodily harm. I do not find him guilty of attempted murder under section 304 of the Code, but guilty beyond reasonable doubt on alternate count under section 315 of the Code.
    

Verdict:

22. Guilty of with intent to cause grievous bodily harm (s. 315 of the Criminal Code Act).

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