Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Giru [2017] PGNC 347; N7028 (16 June 2017)

N7028

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NO 910 OF 2013

THE STATE

V

GABRIEL GIRU

Kimbe: Miviri AJ

2017: 23^rd , 24^th May & 16^th June

CRIMINAL LAW- Trial- Manslaughter CCA – policeman duty of care s287- no evidence measure of duty of care-deceased sustaining wound on chest-admission at hospital in Kimbe-Medivac to Port Moresby General hospital-death multiple organ failure-no ballistic evidence-no evidence to confirm cause of death through gunshot-not guilty-acquitted and discharged.

Facts

The accused was a policeman who came out with a police issued gun and fired three shots from his police issued gun. Two of the shots went harmlessly into the air. The third went and hit the deceased who was directly in the line of fire. He was rushed to the Kimbe General hospital and then medivac to Port Moresby General Hospital were despite intensive care, medical complications ensued and he died as a result. Accused was negligent in the use of the gun and did not exercise proper care which resulted in the injury and subsequent death of the deceased.

Held
Medical evidence of pathologist said cause of death of deceased was multi organ failure. No evidence of ballistic to trace gun to deceased and accused not guilty of manslaughter by criminal negligence. Acquitted and discharged. Bail refunded forthwith.

Cases cited:

Evgeniu v Reginam [1964] PNGLR 45

Limitopa v The State [1988-89] PNGLR 364
The State v Clifford Rangit CR NO 413 OF 2013

Counsel:

R. Luman, for the State

J Waiwai Emam Lawyers, for Defendant
VERDICT

16^th June, 2017

1. MIVIRI AJ: Gabriel Giru of Patanga, Talasea, West New Britain is charged with the manslaughter of Junior Peter Lilibur pursuant to Section 302 of the Criminal Code on the 18^th May 2013 at the Independence Park here in Kimbe, West New Britain Province. On that day at about 11.00 and 12.00 midday, Gabriel Giru was a policeman with another policeman in a police vehicle which they drove to the road between Independence Park and the Provincial Administration Office and parked on the side of the road. He got off the vehicle and he approached members of the public who were watching and taking part in the games that were being held that time at the Independence oval. He fired several shots from the police issued gun he was carrying and shouted telling the public to stop the game. The shots were fired into the air. However one of the shots was fired in the direction of the crowd. This shot struck Junior Peter Lilibur on the chest. He fell and was rushed to the Kimbe General Hospital and later medivac to Port Moresby General Hospital where he died on the 31^st May 2013. State alleged that he breached his duty as a policeman trained in handling firearms under Section 287 of the Criminal Code and therefore charged him with Manslaughter under Section 302 of the Code.
   
2. Section 302. Manslaughter is in the following terms section 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.

3. The State is saying that he was a trained policeman who was fluent in the use of police issued guns and on this day he did not exercise proper and professional care and control of that gun on the standard of a reasonable and prudent policeman trained as such. That his care control and use of the gun fell way below and was not on par with that of a reasonable and prudently trained policeman, in so doing he breached his duty under section 287 duty of persons in charge of dangerous things. And therefore the consequences that arose as a result here the allegation of the discharge of the weapon into the direction of the crowd and one of the bullet going into and injuring Junior Peter Lilibur on the chest for which he was admitted at the Kimbe General Hospital then medivac to Port Moresby General hospital wherein he died as a result.
   
4. It means that the State must call evidence from an instructor of the Bomana Police College or like institution to establish what is taught there in the use of firearms by Police and what they are expected to do in a given situation that is presented to them. In effect what are the grounds that one ticks off in the use of a firearm and comparing that with the facts here has the defendant therefore fallen below that set of preliminary before the use of a firearm in a given situation as here. Was this a code red situation where a firearm used was called for and what is the evidence that establish this code red situation here? So it is not just another case of manslaughter as in the case of a spleen Killing.
   
5. This point is to be contrasted with the Rabaul Queen case for example, the vessel, the Rabaul Queen was built for what waters, could it go out to open sea, and if so, what were the loading capacity that was to be administered to meet the standard of a like vessel out to sea? It meant that experts at sea, mariners and masters were to be called including those who built the ship to establish the standard to draw against the evidence and for manslaughter then to follow suit.
   

Section 287 of the Criminal Code. 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.

6. The invoking of this section is that Gabriel Giru was in charge of a gun which was a dangerous thing within the meaning of the section in that he had not exercised reasonable care and was criminally liable for the death that resulted as a result of him not discharging that duty of care. Evgeniu v. Reginam [1964] PNGLR 45 is the case on point in the application of section 287.
   

Preliminary Issues posed

7. Thus the question that is posed here is; Did Gabriel Giru exercise reasonable care in the management of the gun a dangerous thing?
   
8. What is that reasonable care that he ought to have exercised in the management of the gun?
   
9. And by what standards is this reasonable care measured?
   
10. And how did he exercise that reasonable care here?
    
11. And if he failed where is that failure going below that standard?
    
12. What is the evidence that has been led by the Prosecution to show this out?
    
13. That is the evidence of the standard to be measured against the conduct of Gabriel Giru.
    

Evidence

14. The Prosecution has not led evidence of what is the standard that is to be applied as to the measure of what is the reasonable care that he ought to have exercised in the management of the gun?
    
15. The evidence here is that a gun was discharged by the defendant it remains to be established whether the discharge of that gun by itself fell below the reasonable care?
    
16. And what evidence now shows the court to measure against to say that, that discharge fell below that figure as it were or formula as it were.
    
17. What is the formula of a reasonable care here is not clear and has not been established by evidence called by the Prosecution. The court cannot make a finding without evidence of that fact led here. It means that the court cannot make a finding as to what the reasonable care is and where has the defendant fallen in his observance of that reasonable care.
    
18. The State is invoking section 287 for section 302 to be made out but it has not led the evidence that will make out what is that requirements fulfilling section 287.
    
19. Limitopa v The State [1988-89] PNGLR 364 is another analogy but drawing in respect of lawyers and the measure of negligence of lawyers. The measure is set not so the case here. See also Evgeniu v Reginam (supra).
    

Substantive Issue Posed

Has the State established evidence here beyond all reasonable doubt that Section 287 has been breached and therefore an offence under section 302 has been made out beyond all reasonable doubt of the guilt of Gabriel Giru.

State Evidence by Consent

20. The state’s evidence by consent comprised of exhibits: Record of interview of Gabriel Giru Exhibit S1 which did not have any evidence that put the state case anymore stronger. Accused did not admit the offence. Accused elected to remain silent in the record of interview.
    
21. In any case he was not obliged and at this stage the Police informant would have known with certainty and precision that the defendant was going to dispute that he shot the deceased. The producing of the weapon in the record of interview at question 43 of an M16 A2 without the serial number clearly left a lot to be said of the State case there and then. It meant that there was no specific weapon pinned down to the possession of the defendant on the 18^th May 2013 which weapon was the one that had been discharged in the direction of the deceased hitting him in the chest and from which he was admitted at the hospital at Kimbe and then medivac to Port Moresby General Hospital where despite the best medical help he succumbed to the injury caused by the bullet.
    
22. Further from the witnesses account it was clear a number of shots were fired into the air the area was not searched for the spent casing emitted by the gun. Better still there was also no statement or evidence as to how the gun came into the possession of the investigator and corroborator, where was the gun at the time of the shooting disposition sheet any tasking minute under hand of the Police Station Commander or the Provincial Police Commander to explain the role of defendant. The gun was not just another M16 A2 but a weapon that was specifically in the custody of the defendant that he had on that occasion at that place at that time discharged as seen by the witnesses and that he shot the deceased because spent projectile taken from the body of the deceased test fired matched that of the hammering pin impression of the weapon that the defendant had. That never happened here.
    
23. Too much emphasis was placed on the witnesses account and not enough was done to get forensic and ballistic evidence to properly put beyond doubt restriction of possession of the gun to the defendant and the spent cartridge to be traced back to the firing pin impression of the gun that was in the possession of the defendant. This never happened and the investigation was very poorly done. Bearing in mind that all the witnesses for the state were in one way or another related to the deceased, either they all lived at Gigo, or were related family member.
    
24. In the case of The State v Clifford Rangit CR NO 413 OF 2013 the gun was properly itemized with its serial number contained and then spent cartridge collected at the scene of the shooting was sent across to Police Forensic where it was confirmed by comparison microscope of having come from the same gun that was held by the defendant. Armoury officer in charge also confirmed that the weapon and serial number police issued firearm XM15 Sporter Rifle-serial No. 009454 was confirmed scientifically of being in the possession of the defendant and fired at the victim spent cartridges from there at the scene was collected by the father who is a reserve policeman and sent across to Gordons forensic and confirmed as from the gun that was in the custody of the defendant fired at the victim. Clifford pleaded guilty and is now serving 4 years for Grievous bodily harm.
    
25. Medical Affidavit dated the 29^th August 2013 Dr. Philip Golpak Exhibit S2 states that he was a pathologist who was not helped by any of the referring doctors here at Kimbe General Hospital as to why the patient was initially admitted here and what was the treatment administered here and why he was medivac and referred to Port Moresby General Hospital. There is no medical evidence to this effect setting out the initial attendance at the accident and emergency here in Kimbe General Hospital. There is no medical report at the Kimbe General Hospital who is referring Junior Peter Lilibur to Port Moresby General Hospital and for what reason. This is important in showing continuity of the matter originally here and eventually to the death bed in Port Moresby General Hospital. Even then when it comes out from there medical evidence does not explain that the multiple organ failure is a climax directly of the initial admission. Here also it is not detailed out as to what the initial admission was for and why the patient was referred to Port Moresby General Hospital.
    
26. The affidavit at paragraph 9 states that the significant abnormal findings were Multi Organ failure which is not the same as saying the multi organ failure is a climax of the following factors initially which have stemmed from the initial injury where he was admitted at accident and emergency at Kimbe General Hospital for.
    
27. Further the medical report by Doctor Golpak does not specifically state that the deceased was admitted as a result of a gunshot wound to the chest area, nor does it state that the complete organ failure was as a result of the primary injury that was sustained as a result of the gunshot wound which led to complication associated which contributed to his eventual death. There is no mention of the initial admittance at the Kimbe General Hospital and why it was referred to the Port Moresby General Hospital. The initial admittance particularly the history is important because it will establish why the patient was admitted into the hospital and then referred to Port Moresby. There is always history and here it was of importance to have as it would show the culmination or the pinnacle
    
28. Exhibit S3A is the weapon M16 AR15 Bushmaster carbine rifle with 30 rounds magazine.
    
29. Exhibit S3B is the same weapon M16 AR15 Bushmaster carbine rifle with 30 rounds magazine.
    
30. Exhibit S3C is the same weapon with 18 rounds M16 AR15 Bushmaster carbine rifle with 30 rounds magazine.
    
31. Exhibit S3D is the particulars of the weapon M16 AR15 Bushmaster carbine rifle CAL 223-5.56mm mod XM15-E2S serial number is L088358.
    
32. Exhibit S3E photograph of general view of Independence Park where the allegation took place.
    
33. Exhibit SF photograph of where the police vehicle allegedly stationed.
    
34. Exhibit SG photograph allegedly of where the policeman stood and fired the shots
    
35. Exhibit SH Photograph another view of where the policeman allegedly stood and fired the shot.
    
36. Exhibit SI Sketch map of independence oval by Luke Maibogu.
    
37. These entire evidence exhibit S3A to Exhibit SI did not in any way or form help prove the State case.
    

Witness on Oath

38. Fidelis Benny- wards 1 Kimbe LLG Gigo Laleki settlement resident at Gigo for two terms as councillor. On the 18^th May 2013 I was an official on the grandstand at the Provisional Games the Governor’s cup at the Independence Park. And there was more than one game, one it was not just touch rugby, but there were other sports also played. And there were a lot of people on the field. It was 11.30 am he shot and told us to stop the game of touch football. He fired the first shot and myself and my assistance we came down and went and stood on the road. Then he shot twice the third shot and I looked over and that boy placed his hand on the chest. When he fell down the players ran over and said you already shot a man. From there Gabby put his gun down got in the vehicle and went. At Independence Park there were plenty people. I know Gabriel Giru as he is a family on my mother’s side he is my brother. My mother is from Talasea and father is East New Britain. Junior Lilibur is well known to me and was a referee in the field. He is the son of my father’s brother. In all his shots he fired towards the beach. Junior Lilibur died on the 31^st May 2013 and is buried at wandoro cemetery.
    
39. The courts assessment of this witness who was 6 meters is that he did not say with precision where the barrel of the gun was immediately pointed to at the time that it was fired the third time. He said the gun was fired and then Junior Lilibur fell holding onto his chest. The prosecutor’s questions as to what the gun was to a lay witness did not advance the case any further. The witness will regard Junior Lilibur as son because he is my brother’s son. I will be his uncle. I am his father’s brother. He may have been a witness but his evidence could not be firm or believed by the court because of his evidence that he did not specifically see the gun pointed at the deceased and fired at that time. It was pointed in a general direction towards the beach.
    
40. Richard Wongi was sworn and gave evidence in pidgin. He was from Morobe was resident at Gigo and in 2013 was also resident there. He recalled the 18^th May 2013 he said he was at the field. Their women’s team was playing and he was there giving support and watching them. They were playing rugby touch 7s at the Independence Park. It was about midday then. Whilst they were playing the police vehicle came and stopped at the side of the road at the back of the grandstand. And Gabby came down fired once, and then the second fire and we took cover and the third one we thought he only slept down but when we looked we saw that he was shot we saw blood come out of the boy we did not see he was shot we came and took him to the hospital. The defendant was 10 meters from where I was like the witness box to the door of the court.
    
41. The court specifically asked this witness as to the direction of the barrel of the gun each time it was fired the witness said he pointed into the air but when he came down the hill it came down towards where the boy was. This was not conclusive as it needed to be established that indeed the deceased was hit by a projectile or bullet from the gun that was fired.
    
42. This witness was watching the game and turned to see the defendant fire with a gun three times. The first one he heard the second he took cover and with the others were dispersed. He thought that the deceased just fell but later upon being checked, saw that he was shot. He said he knew Gabby who was now resident at Talasea and all the policemen here. Again this witness did not say where the gun was pointed with precision each time it was fired. He said he did not know why Gabby fired the gun and did not hear what Gabby said immediately before and after and when he fired the gun. Again the prosecutor asked as to the description of the size of the gun which was in the assessment of the gun and not advancing the case for the prosecution.
    
43. The next witness was Peter Wama who was resident at Gigo Settlement. And in 2013 was still resident there. Independence Park I had just finished work and came stood by as a spectator. There I heard gunshots fired. I turned and ran up to the back of the grandstand. There I looked and saw Gabby was armed with a gun firing the shots. The place was clear I could turn around and see Gabby. Then I turned around and saw Junior fall down and I ran up to the road where he was standing. After I ran back down to field and assisted the boys with Junior to the hospital. I also went to the hospital there were plenty people so I remained outside the car park area. Gabby approached me and said you get your boys from Gigo and take me to court. He came about six times and told me this. I know Gabby well as in our young days we were together in church activities. He fired a total of three shots. Second shot upwards fingers pointing upwards by witness. He fired in intervals not rapid same timing in between each shot. The third shot was fired as he came down slope. And he was facing to the field when he fired. It was facing down moving hand down. Yes it was a semi- automatic rifle. And the witness did not know why Gabby fired the gun. But he did hear him say stop the games.
    
44. The witness said Peter alias Junior was married to a daughter. He is dead now since 2013. And that when gun is fired people are generally afraid. He agreed that there is widespread use of staple guns and that at big events as such as these there are carried around and hidden. He agreed that the field was packed with people. And that no other person was injured except for Junior. Again this witness’s description was again to the entrance to the courtroom door 10 meters as was with the other witnesses. He also upon hearing the gunshots ran to the back of the grandstand obviously to shelter and keep out of the path of any projectile or bullet emanating from the gun so how reliable is the observation that he makes. Even if accepted, would a man who has just killed another person in full view of all in a public venue front up six times at the place where the injured person is and offer to the persons there to take him to court. A gun is a deadly weapon and no person will get in its way blindly knowing the consequences bearing upon so time for observation is not as clear as would be in a normal situation in everyday life.
    
45. The witness description of the gun did not advance the case for the prosecution without specific details of the gun itself including the serial number of the weapon. What if any projectile were retrieved from the deceased or near where the gun was discharged. What ammunition was capable of being fired from that weapon and what if any spent casing found at the scene test fired and confirmed with the weapon in question.
    
46. The next witness was Fidelis Paran who was yet again another resident of Gigo. On the 18^th May 2013 he was at the field at the Independence Park. There was Governors cup and we were all taking part and our women’s team were playing and we were alongside the field. Gabby and Jack came he fired first shot second shot third shot he was coming down the field same time Uncle Junior fell and I went and assisted him and we took him to the hospital. We were caring for him when I turned around and saw my mother speaking to Gabby saying you have already shot my bubu and Gabby said he did not mean to. Next day he was flown over to Port Moresby. I was in front of the fence at that time when the first shot was fired. It was Gabby Giru and I saw it. There were three shots in all that were fired. First gunshot we were afraid and I also ran to the back of the grand stand. Gabby was trying to walk down still on the road when he fired the second shot. First shot was up into the air. Second time he fired the gun he was facing the field but facing upwards when firing. He was firing in seconds in between each shot that he discharged. Gabby was at the entrance of the gate to the main court premises. As he was going downhill the gun must have got Junior Lilibur.
    
47. What is incredible and not worthy of belief of this witness’s evidence is his assertions that the gun was fired in seconds interval apart between the first shot and the third shot. So if that was the case either the projectile or the bullet emanating would have all gone into the air away from any danger to the public or it would have gone into the public causing massive injuries and death there. Even then like all other witnesses before him he does not see that the gun is aimed in the direction of the deceased. This witness also says that he is scared when the gun is fired the first time. And he runs to the back of the grandstand in fear but then makes the observation that he describes even in that status of mind. His observation is not the same as a witness who is composed and posed.
    
48. His evidence like the witnesses before him have the same distance from the gunman to their observation point, the witness box to the main court room door 10 meters estimation. Are all the witnesses by chance at the same distance at the same time? It must also be clear that not all members of the public own guns and have used guns let alone held one and fired. The very sound of a gun being fired is also very frightening. Normal human behaviour is that it would take some time to adjust ones composure in such a dramatic situation as here unless one is trained for such situation and circumstance. But these are ordinary Papua new Guinean just ordinary persons from Gigo like any other suburb in the country.
    
49. Saint Luke Maibogu and Francis Munup the court considered both witnesses as not adding any evidence to the strength of the prosecution evidence. It was clearly not good investigative work to not be able to get ballistics and to confirm forensically that the gun was indeed locked and in the possession of the defendant.
    
50. How the sketch map is added to the case is not there. The photographs are similar other than showing a gun and its magazine and rounds of ammunition remaining, that is all it does to the case. It does not pin the weapon to the defendant in any way or form without ballistic confirmation of the issue of the weapon to the policeman. Nor of any spent ammo retrieved from the body of the deceased that draws the defendant into the gun all the way to the deceased. That is not the case here at all.
    
51. Obviously the deceased was taken immediately to and for medical attention; one of the procedures would have been to take out any foreign object dislodged with the body of the deceased. If this was done that material would have been taken to police forensic, examined and compared if indeed it was the remnants of a bullet or projectile fired from a gun. If so did it in any way or form resemble 5.56 calibre ammo?
    
52. Tina Harry is a resident of Gigo. She is part Talasea which is her mother and East New Britain her father. The deceased Junior Peter Lilibur is her nephew from the father’s side. She recalls the 18^th May 2013 she called from church where she went straight to the hospital as he was already at the hospital. She cared for and looked after him in the hospital here at Kimbe and continued all the way to Port Moresby General Hospital at the intensive care unit. She looked after him and ensured that he was well looked after. She was there with him until his passing on the 31^st May 2013 and thereafter where he was brought back here to Kimbe and subsequently buried.
    
53. Defence counsel has submitted under order 4 Rule 9 of the Criminal Practise Rules for the court to summon the appearance of the ballistic officer at police forensic to testify in the matter. She argued that the matter was incomplete and the court had powers to order that evidence by summons under this rule. As much as helpful it was the prosecution case and it was his duty not of the court to run his case. He was mandated under the Constitution and it was his discretion to call as he saw fit not the prerogative of the court.
    
54. State counsel replied stating that what defence was entitled to do given the circumstances was to make a no case submission that there was no ballistic evidence that the case was weak and unsatisfactory to call the defendant to answer.
    
55. I ruled that there was no need to invoke Rule 9 Order 4 of the Criminal Practise Rules as the duty was of prosecution counsel and the court will not assist counsel make out his case for himself. If there was no ballistic evidence well that was in favour of the defence to seek the relevant orders for Prosecution he was liable and to endure out what the law had for him.
    

Defence case

56. Gabriel Giru alias Gabby was from Patanga Talasea, 37 years old self employed in a Security Firm with 130 guards. He was Senior Constable from 2012 to 2013 with the response unit of the Task Force. Because of the events of the 18^th May 2013 he was suspended and criminally charged, discharged and terminated from the Police Force. He first joined the police on the 5^th May 1997 and was in it for 16 years. That after passing out from Police College in 1998 he was posted to Kerema for 2 years and then selected to Special Services Division or SSD but before enlisting he was trained for 3 months at Bomana Police College. In 2000 he passed out and was posted to Southern Highlands to curb the law and order there. 2003 he was selected to come back to McGregor where he was put into an 8 men team operating under the Prime Minister on deportation of illegal immigrants. He came back to 2007 to assist his father who was ill but active.
    
57. As a policeman he was trained to use firearms AR 15 A2, Mossberg Pump Action Shotgun, Rifles Sig, Hand Guns .38. When shown the exhibit firearm he said it was similar to the firearm that he used. He was familiar with it and said it would travel at a velocity of 2500 feet per second and the impact would be that it would penetrate through a lot of people on a crowded field as was the case here. Here it would have penetrated through the deceased at 100 meters or 200 meters and would have done a lot of damage.
    
58. He also stated that a 5.56 mm would not fit into a Mossberg pump action as it only used buck shots only. The former was only for AR 15 A2 or M16 A2
    
59. That on the 17^th May 2013 there was a commotion with Corrective Institution where his unit was intimidated and punched by Corrective Institution Personal because of the fact that his unit had arrested and detained a CIS personal who was acting offensively in the public bus stop. That matter was not at rest and police were on alert at that time for the CIS to come down with their compensation demand on the next day the 18^th May 2013.
    
60. The place at Independence Park was packed to capacity by the people who had come in for the Governor’s cup and all teams were taking part in the games. There were 4 or 5 fields within Independence Park and a lot of different games were being played at that time. And stalls also were built around and housed sellers and buyers who were trading goods and food items. And that during their patrol they came across and confiscated a number of staple guns.
    
61. That a Spirit of West Vehicle was loaded with cargo passing them in front of the Provincial Government Office. One of his policeman asked the driver as they passed where the cargo was going and he said it is for those who are in custody “bilong ol lain long banis”. The policeman was frustrated over the treatment by CIS and the confrontation with them pending so stopped the Spirit of West Truck and unloaded all the cargo onto the side on the road. Members of the public saw these and were rushing to get the cargo he ordered them to stop, they did not so he discharged his weapon into the air first for three rounds and then a second one for a further three rounds which stopped them. And all were shots into the air and not at the level of the people on the field. As he was about to turn and walk to the vehicle he heard, Hey Policeman ya sutim wanpela man pinis. I never saw any object there that can divert the course of the bullet back into the crowd. There was nothing to divert the bullet as I opened up into the air. The field was flat including the bitumen and the grass nothing there so told Constable Jack Pipilak to tow the Spirit of West vehicle to the Station and leave the vehicle there.
    
62. Then he proceeded to the hospital and parked the vehicle and left the weapon and went into accident and emergency room where Junior Lilibur was lying. He checked where the bullet might have hit him. He said he couldn’t get close as the victim was surrounded by immediate friends, relative’s and family members so he turned around and told the victim’s mother, that he was very sorry. He said “ I was dispersing the crowd who were intent on looting the cargo. I told her justice system is in place follow the proper way and course to take in this situation. I came out to the car park a lot of youths I spoke to them the same thing sorry for what happened that the justice system is in order for me to answer. On Monday 20^th May 2013 PPC disarmed and disbanded the unit.
    
63. I lowered my gun as taught following safety after engagement thumb safety, gun face to the ground safety of the place and relocate. When gun fire the sound comes later in rifles. And there would be an entry and exit wound located on the body. Staple guns use buck shot rounds cannot use 5.56mm which is for AR 15 M16 rifles.
    
64. He said as part of his duties as a policeman he has arrested and processed in court a number of serious criminal cases emanating from defendants from Gigo and no doubt there were people there who were against him.
    
65. Gabriel Giru called two other witnesses Rokus Kaimu and Vernon Naurikeam; both witnesses confirmed the confrontation with CIS and of Police units on alert for that matter for compensation payment. That the defendant did fire but not at the crowd but into the air. And both confirmed that Independence Park was very crowded.
    

Assessment of the case

66. Ballistic expert would have put beyond doubt the weapon used and comparison with the retrieved led from the body of the deceased. It would have shown beyond doubt that indeed what the witness saw is credible and consistent with the circumstances then prevailing at that time. That there is a direct line of fire from the weapon held and in the possession of the defendant to the cartridge that came out into the body of the deceased confirmed so that it merely led back to the defendant and to his guilt. When it was fired was it controlled in the sense that the direction of the weapon was specific one up into the sky or sway as the member was walking.
    
67. The evidence of the path the weapon took is also not clear. Who took the weapon off the defendant and where was the weapon taken from there. And where has it been kept now. How do I link the weapon to the deceased. There is a metallic lead object that is in a penicillin bottle as to what it is the court does not know. It could be a piece of iron picked from anywhere and inserted into a penicillin bottle that is readily available. The person who initially collected the piece of metallic object has not stated why he collected it and placed it in a penicillin bottle. It is not clear as to the facts upon which the court can make findings of fact necessary to determine the case one way or the other. It is not even evident before this court as it has not been tendered into evidence. And there is no basis in law for the court to consider it in any way or form in the case.
    
68. What the court is being asked to accept from the State witnesses is that this trained policeman not just any other ordinary policemen but a specially trained member of the Special Services Division who has been schooled and trained in weaponry is so lax that he fires into the crowd wounding and killing a person within the crowd. This is not a situation of armed tugs running at the policeman but citizens in a sports arena playing and spectating could it have been reasonable to assume and find that a loaded automatic weapon of mass slaughter was fired indiscriminately into a crowd.
    
69. It was a day at 11.00 to 12.00 midday and teams were in from throughout the Province into the Governor’s Cup naturally it would have been filled and crowded. Description by the defendant is consistent with normal celebration of this magnitude and no doubt the scene would be crowded especially at 11.00 to 12 00 midday this is normally the peak period where the scene would be crowded as opposed to in the early morning when people are trickling in and in the later afternoon when people are living and the crowd is going down.
    
70. Kimbe is normally very crowded in very big events and it is normally so with the Oil Palm Industry putting money in every pocket so that whether or not it is a government pay fortnight or a business pay fortnight the town is always crowded. And as here where there was provincial celebration heightening to the Governor’s Cup and the field marked out to various fields within which stalls at the side with sellers and buyers it would have been heap of activity within and without.
    
71. Hence put into the perspective of this case the firing of a gun especially a A2 M16 carbine with a banana magazine of thirty rounds of 5.56mm at rapid or near rapid would have not left only one dead or injured but a whole lot more in view of the crowd gathered on this day 18^th May 2013 for the Governor’s Cup.
    
72. It cannot be ignored that the State has not settled the matters that the defence has raised that staple guns were confiscated at that meeting and the sports. And also the State has not negatived the allegations that the defendant has raised that there were other police units who were alert because of the situation with Corrective Institution and therefore were on high alert and did discharge weapons at Kisere the shopping centre there and the surrounding places including the post office.
    
73. The court finds that on the evidence that has been led in this court it is unsafe and unsatisfactory to establish Section 287 beyond all reasonable doubt.
    
74. The court finds that it is unsafe and unsatisfactory to return that the duty under Section 287 has been breached by the defendant Gabriel Giru.
    
75. The court further finds that elements of Section 302 manslaughter given the invoking of Section 287 has not been made out beyond all reasonable doubt against the defendant Gabriel Giru of Patanga, Talasea, West New Britain Province.
    
76. The court is not satisfied beyond all reasonable doubts that the State has discharged its burden in proving by evidence that these were the standards in the use of a firearm and applied to the facts of the case here that standard was breached making out the elements of Section 287 and therefore an offence under Section 302 of Manslaughter against Gabriel Giru.
    
77. The court returns a verdict of Not Guilty of Manslaughter under Section 302 against the defendant Gabriel Giru of Patanga, Talasea, West New Britain Province.
    

Orders accordingly.
--------------------------________________________________________________________________

Public Prosecutor : Lawyer for the State

Emam Lawyers : Lawyer for the Defendant