N8488

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 543 OF 2017

THE STATE

V

FELIX KANGE

Waigani: Berrigan, J
2020: 3rd to 6th March,11th August and 4th September

CRIMINAL LAW – S. 302 of the Criminal Code - Manslaughter – S. 287 of the Criminal Code - Criminal Negligence – Duty of Care – Breach of Duty – Causation–Prosecution Duty to Call Material Witnesses – Admissions by Accused.

The accused was in the upstairs bedroom of his home at Garden Hills in Port Moresby in the company of three others, namely his wife, the deceased, the accused’s sister-in-law and her husband.  The deceased was standing less than 10 metres away from the accused near a window. The accused’s sister-in-law was seated on the floor not far from the deceased. The accused’s sister-in-law’s husband was standing near the door to the room and close to the accused.  The accused removed a 9 mm calibre firearm from a dresser drawer in the bedroom.  In the course of attempting to clear the weapon the accused caused the gun to discharge, shooting the deceased in the head and causing fatal injuries to the base of her skull.  The State charged the accused with manslaughter on the basis that his conduct was criminally negligent.

Held:

(1)	To establish the charge of manslaughter contrary to s. 302 of the Criminal Code the State must prove that the accused unlawfully killed another under such circumstances as not to constitute wilful murder, murder or infanticide. It is not necessary for the State to establish that the accused intended to kill the deceased or intended to do the deceased any particular harm; the prosecution need only prove that the accused unlawfully killed the deceased.  

(2)	Pursuant to s. 291 of the Criminal Code, any person who causes the death of another, directly or indirectly, by any means, is deemed to have killed that other person. 

(3)	Pursuant to s. 287 of the Criminal Code it is the duty of every person who has in his charge or under his control anything 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. Furthermore, a person is deemed to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.

(4)	Thus, to establish manslaughter through criminal negligence the State must prove beyond reasonable doubt that the accused:  

a.	owed a duty of care to the deceased, such that he was in charge of a thing 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 might be endangered;
b.	breached that duty through criminal negligence (i.e. negligence to the criminal standard); and 
c.	thereby caused the death of the deceased.

The State v Richard Namaliu (2020) N8284.

(5)	Criminal negligence involves a very high degree of negligence.  There must be negligence which may be described as recklessness involving grave moral guilt, or in other words, negligence which shows such disregard for the life and safety of others as to amount to a crime against the State and deserving of punishment:  Beraro v The State [1988-89] PNGLR 562 applying Evgeniou v The Queen (1965) ALR 209. See also Namaliu.

(6)	The test is an objective one and reflects community standards.  The accused’s conduct must be compared with the behaviour of a reasonable hypothetical person in the situation of the accused:  Beraro, Evgeniou (supra).  

(7)	Ultimately, what is or is not, criminal negligence is a question of degree to be decided on the facts of each particular case: Beraro (supra).  

(8)	Whether an act or omission is criminally negligent or not, must be decided by reference to the circumstances at the time the act or omission occurred and not by reference to the consequences thereof: Beraro per Amet J (as he then was). 

(9)	Whether or not there has been a breach of the duty will depend upon whether such danger was reasonably foreseeable: Namaliu; Evgeniou (supra); R v Hodgetts and Jackson [1990] 1 Qd R 456 applied.

(10)	A breach of the duty under s. 287 of the Criminal Code does not depend upon an intention to cause harm; the gravamen of the offence lies in the failure to use “reasonable care and take reasonable precautions to avoid” danger to life, safety and health. 

(11)	Under s 287, the failure to take reasonable care and precaution in the use of a dangerous thing renders the offender criminally culpable for the consequences of that failure. Where death results, the killing is unlawful.

(12)	An accused is deemed to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.  Thus, there must be a causal connection between the criminal negligence and the death: Namaliu, Evgeniou, Beraro, Sharp (2017) N6813.

(13)	Where death is alleged to have resulted from a failure to use reasonable care or take reasonable precaution required under s. 287, liability is to be determined without reference to the defence of accident under s 24(1) of the Criminal Code: Beraro (supra).  

(14)	The State must prove that the criminal negligence on the part of the accused was a substantial and operating cause of the death of the deceased.   It need not be the sole or even the main cause of death, provided it contributed significantly to the victim’s death: Namaliu; The State v Subang [1976] PNGLR 179 applying R v Gould (1963) 47 Cr App R 241;  see also R v Cheshire [1991] 1 WLR 844 and Royall v The Queen (1991) 172 CLR 378.

(15)	Causation is not a philosophical or scientific question.  It is a question of fact to be determined by applying common sense to the facts as the Court finds them, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Namaliu, adopting and applying Royall v The Queen (1991) 172 CLR 378 at 387, 425 and 441, adopting and applying Burt C.J. in Campbell v. The Queen (1981) WAR 286, at p 290; (1980) 2 A Crim R 157, at p 161.   See also Sharp.

(16)	The accused owed a duty of care to the deceased pursuant to s. 287 of the Criminal Code.  At the time of the alleged offence he was in charge of a 9 mm firearm, a thing of such a nature that, in the absence of care or precaution in its use or management, the life, safety or health of another person might be endangered:  Evgeniou v The Queen (1965) ALR 209 applied.

(17)	The risk associated with a firearm is both extreme and obvious.  It is by its nature a lethal weapon, the very purpose of which is to inflict serious harm.  Deliberate and active diligence is required to discharge the duty of reasonable care imposed by s. 287. As a matter of common sense this includes keeping the firearm safely and in good working order, whilst also taking great care in its handling. 

(18)	The accused breached his duty to take reasonable care and precaution to avoid danger to the life and safety of another in the use and management of the firearm,when, having regard to its lethal nature, he attempted to clear the weapon, causing it to discharge, whilst in the upstairs bedroom of a residential property in close proximity to three others, including the deceased.  That he did so whilst failing to take all reasonable care and precaution to ensure that the weapon was not pointed at the head of the deceased at the time only serves to compound the very high degree of negligence in this case.

(19)	The danger, or the risk of harm, was extreme and obvious and the accused’s conduct greatly departed from the standard of care required, or from that which a reasonable member of the community would use in the same circumstances, and showed such disregard for the life and safety of others as to amount to a crime against the State and deserving of punishment.   

(20)	The accused’s criminal negligence was a substantial and operating cause of the deceased’s death.  The deceased died as a result of bleeding at the base of the brain which was caused by the gunshot wound suffered as a result of the accused’s criminal negligence. 

(21)	The accused is guilty of the manslaughter of the deceased, Regina Morove, contrary to s. 302 of the Criminal Code.

Cases Cited:
Papua New Guinea Cases

R v Ginitu Ileandi [1967-68] PNGLR 496
R v Peck (1971) No 650
The State v Subang [1976] PNGLR 179 
The State v Toiamia [1978] N145
R v Birch [1978] PNGLR 79
Paulus Pawa v. The State [1981] PNGLR 498
The State v Kuya [1983] PNGLR 263
The State v Mana Turi [1986] PNGLR 221
Beraro v The State [1988-89] PNGLR 562
Wanamba v The State [1998] SC551
R v Namiropa Koinbondi [1969-1970] PNGLR 174
The State v Ungum Ovohe (1980) N245
The State v Malepo (No 2) [1996] PNGLR 252
Nara v The State (2007) SC1314
Andrew v The State (2009) SC997
Sheekiot v The State (2019) SC1824 
The State v Tiki (2013) N5103
The State v Num (2016) N6223 
The State v Sharp(2017) N6813
Paru v The State (2017) SC1632
The State v Giru (2017) N7028 
Tom v The State (2019) SC1833 
The State v Joan Kissip (2020) N8184
The State v Richard Namaliu (2020) N8284

Overseas Cases

Dyers v R [2002] HCA 45; (2002) 210 CLR 285 
McDermott v The King (1948) 76 CLR 501
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
Jackson v R (1962) 108 CLR 1 
Evgeniou v The Queen (1965) ALR 209 
R v Hodgetts and Jackson [1990] 1 Qd R 456
R v Cheshire [1991] 1 WLR 844 
Royall v The Queen (1991) 172 CLR 378
R v Clark (2007) 171 A Crim R 532 

References Cited

Sections 24, 287, 291, 302 of the Criminal Code (Ch. 262) (the Criminal Code)
Section 16 of the Mutual Assistance Act, 2005   
Section 28 of the Evidence Act. 

Counsel

Ms. H. Roalakona, for the State
Mr F. Kuvi with Mr. F. Lunge, for the Accused

DECISION ON VERDICT

4th September, 2020

1.	BERRIGAN J: The accused is charged with the manslaughter of Regina Morove on 14 May 2016, contrary to s. 302 of the Criminal Code (Ch. 262) (the Criminal Code).

2.	On arraignment the State alleged that between 7 and 8 pm on Saturday, 14 May 2016 the accused was with his wife, Regina Morove, in their bedroom at their home at Garden Hills in Port Moresby with their 7 month-old child and two other relatives. Whilst getting ready for a night out, the accused took a pistol from the dresser drawer.  He applied pressure to the trigger of the pistol discharging a bullet, shooting his wife through the mouth and causing her death.  The accused then took her body to the funeral home.  The next day, 15 May 2016, the accused reported the shooting to Hohola Police Station as accidental.  

3.	The State alleges that the accused being in charge of the firearm did not take reasonable care and precaution to avoid endangering those around him and that the negligent handling of the weapon caused the death of Regina Morove.

4.	The defence does not dispute that the deceased died from a gunshot wound to the head on 14 May 2016. It contends, however, that there is no evidence to establish that the accused shot the deceased or, alternatively, that when he did so he was criminally negligent. 

STATE’s CASE

5.	The accused pleaded not guilty and the State called six witnesses at trial.

6.	Sergeant Nei Pige was the officer in charge of the investigation. He has been a police officer for 35 years and attached to the Homicide Division at Boroko Police Station for the past 10 years.  Between 8 am and 9 am on 15 April 2016 he was asked to take charge of a case following a report of a shooting overnight.  He went to Boroko Police Station where he was joined by a forensic officer, Sergeant Numbos.  They travelled to Hohola where they received a briefing from Sergeant Ben Trepi before the accused, whom he referred to as “the complainant”, led them in his own vehicle to his house in Garden Hills.  Once there the accused took them to where the incident occurred in one of the bedrooms.  The accused said that it was “his bedroom”, “our bedroom” or the “family’s bedroom”.  Crime scene officers were also present in the room with Sgt Pige and the accused at the time.  The accused indicated where he was at the time of the incident whilst Sgt Numbos took photographs.

7.	As they left the house Sgt Pige asked the accused for the firearm that was used.  The accused went to his vehicle and produced a firearm from the glove box and gave it to Sgt Pige.  It was a pistol, silver grey in colour, holding 6 rounds of ammunition in the magazine. Sgt Pige gave it to the forensic officer for examination, following which it was returned to him as investigating officer.  A pistol, serial number TBU12721, together with a magazine and six bullets, was identified by Sgt Pige as the firearm provided by the accused, and admitted as Exhibit B. Sgt Pige asked the accused for his firearm licence, which was provided in respect of firearm bearing serial number TBU12721:  Exhibit C.

8.	Sgt Pige obtained statements from two witnesses who were in the house at the time of the incident, i.e. a woman called Samantha who lived with the accused and her boyfriend. Samantha and her boyfriend could not be made available for trial because they are now living in Australia and could not be contacted on the mobile numbers provided.  He also obtained statements from a doctor at 2K Medical Clinic, two witnesses at the funeral home, a security guard and a woman who lived with the accused.  

9.	During the course of Sgt Pige’s evidence the defence objected to the admission of a written statement provided by the accused to the investigating officer on the basis that it was involuntary and unfair.  In the interests of ensuring the fair trial rights of the accused, and obtaining clarity for the benefit of the Court and the State, the defence was permitted to filed a Notice of Voir Dire, albeit that they had not complied with the requirements to do so earlier.  I refused to admit the statement following the voir dire.  

10.	The accused’s record of interview conducted 2 June 2016 was admitted without objection: Exhibit A. The accused attended the station on that day with his lawyer and refused to participate in the interview or sign the record.

11.	Under cross-examination Sgt Pige confirmed that no empty ammunition shells were found at the accused’s property following a search.  Despite the fact that the accused told him that he had a “couple of” firearms, they were unable to locate any others at the premises.  He did not check how many firearms were registered to the accused with the Registrar of Firearms because the accused told him that the weapon provided was the one used. He agreed that the investigation was centred inside the house and the bedroom and not outside the house.

12.	Sgt Pige was aware that Samantha and her boyfriend were both brought up to Port Moresby by the Office of the Public Prosecutor (OPP) in September 2019 for trial but did not give evidence as the trial was adjourned.  

13.	The police regard a person who reports a matter as “the complainant”. He referred to the accused as the complainant because he was the person who reported the matter to the police. 

14.	Senior Sergeant Max Barai has been employed with the Royal Papua New Guinea Constabulary (RPNGC) for 28 years. He undertook his training at the National Forensic Science Centre and is currently based there. He has been a crime scene officer for the past 20 years and a firearms officer for the past 18. 

15.	He identified Exhibit B as the firearm he examined at the National Forensic Science Centre upon receiving it from Sgt Pige.  The firearm was a Taurus Pistol, Model 3.120.  He test-fired the firearm and compared the sample bullets and casings with the exhibited bullet which came from the post mortem.  He concluded that the test-fired bullet did not match the exhibited bullet, or in other words the exhibited bullet from the post-mortem was not fired from Exhibit B. 

16.	Exhibit B fires 9 mm calibre bullets. Bullets are loaded through the magazine. The exhibited bullet would have been discharged from a weapon similar to Exhibit B.  To clear a weapon like Exhibit B, that is to check if the firearm has any bullets in it, one must insert the magazine, and then cock the weapon, which would eject any bullets from the chamber. When the last remaining bullet ejects one has to cock it again to make sure the chamber is free from any bullets.   For the purposes of safety, this should be done whilst the weapon is pointed downwards.

17.	Some weapons which fire 9 mm calibre bullets have safety mechanisms and some do not.  In the case of a firearm that does have a safety mechanism, when the pin is set to “safe” it means that the weapon cannot fire even if pressure is applied to the trigger.  To fire the weapon, it is necessary to disengage the safety catch.   

18.	To fire a pistol like Exhibit B it is necessary to place a finger around the trigger and pull back with sufficient pressure to fire the bullet. It would be possible for a person holding a firearm to fire it if they hit their arm or elbow on another object but this would still require a degree of force. It is possible for a firearm to accidentally discharge.  It if is dropped it can go off.  But a firearm which is in good working condition will only discharge when sufficient human force is applied to the trigger. Once fired a bullet will move in the direction it is shot unless it ricochets off another object.

19.	Chief Sergeant Joseph Numbos has been a police officer for 35 years.  He is currently attached to the firearms section of the National Forensic Science Centre at Gordons. He is also a crime scene examiner and has worked in forensics since 1988.  He was trained in 1988 for one year at the State forensic Laboratory in Melbourne regarding the examination of crime scenes and evidence, the identification of items located at crime scenes, and the restoration of obliterated serial numbers of firearms, engine numbers of vehicles and serial numbers of other appliances.  He has also been trained to compare bullets fired from firearms, the identification of fired cases,  ammunition and firearms. 

20.	On Sunday, 15 May 2016, C/Sgt Numbos attended the crime scene of an alleged shooting at Garden Hill. He was with two of his trainees and was met there by Detective Pige and Jack Timbi of Homicide. He introduced himself and the two trainee officers to the accused and told him that they were investigating an alleged shooting. The accused said that he could show him around, and he then told C/Sgt Numbos what had happened in the bedroom of the residence.  

21.	The accused told him that he “accidentally shot his wife”. C/Sgt Numbos asked him if he would show him where he was and where the deceased was at the time.  The accused said that he was in the process of clearing the weapon “when it suddenly went off” and that is how he shot his wife.  The accused said that his sister-in-law and her husband were in the room at the time and indicated where they were located.  

22.	C/Sgt Numbos took 14 photographs which were admitted as Exhibit D1-14.  Exhibit D1 shows the residence. Exhibits D2, D3 and D4 show the room where the incident occurred. Exhibits D5 to D12 were taken at the funeral home during the post-mortem. Exhibits D13 and D14 show the exhibited weapon Exhibit B.

23.	C/Sgt Numbos gave the following evidence: 

•	Exhibit D1 shows the residence in Gordon Hills.  
•	Exhibit D2 shows the room at the end of the top floor of the residence.  In that photograph the accused stated that he took the weapon from the drawer and cleared the weapon.  The door that is shown is the door to the room.  

I note here that a dressing table is also shown, comprised of a mirror and one set of drawers.  The door to the room can be seen just to the left of those drawers.  The accused is also seen in the photograph pointing to the right-hand side drawer.  

•	Exhibit D3 shows the accused indicating where his sister-in-law was sitting on the floor in the same room.  The deceased was standing close to the windows near her.  

•	Exhibit D4 shows the accused pointing to where his sister-in-law’s husband was standing at the door into the room. 

C/Sgt Numbos said that the windows shown in Exhibit D3 are opposite the door seen in Exhibit D4 and whilst C/Sgt Numbos did not measure the distance with a tape measure, he estimated that the distance between them was less than 10 metres.

Apart from taking the photographs, he also observed that the room itself was in a “good orderly manner”.  There were no fallen items on the floor or anywhere else. It was tidy.  Only two louvre blades were broken.  Those louvre blades do not appear in D-3, they are in the next row (column) of louvres.  

The accused, Sgt Pige, Jack Timbi, and his two trainees, Jarrod Sagayau and Stuart Robert, were present in the room at the time he took the photographs. Examination of the crime scene took less than an hour. 

•	Exhibit D5 was taken on 20 May prior to the post-mortem and shows the tag attached to the body of the deceased.  It states:

“Late: Regina Movere
Date Approved: 14/05/16
Time: 840 pm
Transport by: Private
Received by: Micks”. 

•	Exhibit D8 shows the “powder punch” or a blackened area on the mouth and chin of the deceased caused by powder burns.

•	Exhibit D9 shows the missing front teeth of the deceased.

•	The bullet shown in D11 was extracted during the post-mortem and C/Sgt Numbos took possession of it in a container provided by Dr Bannick.  He lodged it with the Liaison Office at Forensic on 24 May 2016 for examination purposes by Maxwell Barai.  C/Sgt Numbos identified Exhibit E as the projectile extracted from the deceased’s body during post-mortem. 

24.	Under cross-examination C/Sgt Numbos agreed that when giving evidence the day before he was not able to recall whether it was the sister-in-law or her husband who was depicted in D3 or D4 or vice versa, and that he read his statement overnight but maintained that he recalled the contents of the other photographs. He also maintained that he was able to identify the projectile removed at post mortem because of the damage at the top of the bullet.  He agreed that it would have been possible for someone to remove the bottle containing the bullet from the Liaison Office. 

25.	With respect to Exhibit D9 he said that the powder burns could be seen as powder turns black.  In response to a question about whether powder burns could indicate the distance the shooter is from the impact point he said that it was not his area of expertise but his understanding was that they could be incurred within 5 and 10 metres of discharge.

26.	He did not find any file casings at the scene.  He doesn’t know what other searches were conducted.  He did not check if any other firearms were registered to the accused.

27.	He agreed it was possible that the louvres were broken by someone throwing something into the house but disagreed that it could result from a gun being fired from outside.  In the latter case the louvres would have been broken into many small pieces, whereas they were “just broken”.

28.	Chief Sergeant Ben Trepi has been a police officer since 1982. In 2016 he was Second in Charge of the Hohola Police Station.  On 15 May 2016 he received a phone call at his home between 5 and 6 am from Felix Kange who said that he was in trouble and that he had accidentally shot his wife.  Chief Sergeant Trepi told him that he would meet him at the Hohola Police Station. 

29.	He arrived at the station between 7 and 8 am and called Felix to come to the station, which he did.  Chief Sergeant Trepi rang the officers at Homicide.  They came to the station and he handed Felix over to the them. After that he went on with his duties.  He recorded the matter in the Occurrence Book:  OB302 of May 2005. There was no “complainant” as Felix reported the matter himself.

30.	C/Sgt Trepi identified the accused in the dock.  The accused is a Reserve Policeman who has reported to him at Hohola since 2014.  When the accused came to the station he looked very sad. Chief Sergeant Trepi believed what he told him: that he was in trouble and had accidentally shot his wife. 

31.	Police photographer Senior Sergeant Agnes Sive is attached to the photography section of the National Forensic Section.  She produced three photographs taken of a text message contained on a mobile phone at the request of Sgt Pige on 26 May 2017. She did not know who the mobile phone belonged to.  I raised a query about the relevance and provenance of the text message.  There was no objection by the defence and I admitted the photographs as Exhibit F.  There are a number of issues here, however.  Sergeant Pige gave no evidence about where, how or from whom he obtained the phone.  He gave no evidence about how he kept the phone prior to giving it to Sergeant Sive.  These are essential matters that go to the provenance of the phone, its relevance to the case and the reliability and credibility of the evidence.  In the circumstances, I intend to disregard it.

32.	Dr Bannick is a medical officer and pathologist.  He graduated with a Bachelor of Masters of Pathology in 2005 and has practised pathology for the last 20 years.  He recalled well conducting the autopsy on the deceased, Regina Morove, on 26 May 2016 at a private funeral home. The autopsy report he compiled was admitted as Exhibit G.

33.	The direct cause of death was a gunshot wound to the head.  As reported in Exhibit G, an external examination revealed: a bruise over the chin three centremetres in diameter; a laceration/burn on the upper lip above the entry wound; an entry wound at the base of the upper incisors, which were shattered; and a fractured mandible and maxillary bone (jaw bone).  

34.	Dr Bannick explained that the presence of bruises on the deceased caused him to look for an entry wound near the deceased’s mouth.  The entry wound was through the upper incisors (the biting teeth), one of which was fractured. From there he found that there was a hole.  The impact of the gunshot caused a fracture of the jaw bone.  

35.	The presence of the entry wound caused him to look for an exit wound.  Exit wounds are normally larger than entry wounds.  There wasn’t an exit wound but an x-ray revealed that the bullet had lodged in the neck just below the ear.  

36.	He found from the “bullet track wound” that the bullet entered through the mouth and travelled in a line to where it lodged in the soft tissue of the neck.  In his view the deceased would have been in an erect position, standing or sitting upright to receive that sort of injury.  It was plausible that she was sitting on the floor if the shooter was also sitting in the same line. The shooter was in the same line as the deceased whether sitting or standing.

37.	In Exhibit D: 12, a photo taken during post mortem, Dr Bannick identified a green probe used to show the tack the bullet took, which showed that the bullet entered the mouth and travelled in a straight line to the back of the head where it lodged. 

38.	In his view a gunshot from close range would cause the bruises seen on the deceased.   Similarly, the blast from a shot at close range would cause the burning mark on the deceased’s face. 

39.	Dr Bannick reported his opinion at page 3 of the report, Exhibit G, namely that the cause of death was gunshot wound to the head.  Death was ultimately caused by bleeding at the base of the brain.  

40.	I will return to his findings in more detail below.

DEFENCE CASE  

41.	The accused declined to give evidence himself or to call any other witnesses in his defence.  That is his Constitutional right and I draw no adverse inference as a consequence of that decision.

MANSLAUGHTER

42.	To establish the charge of manslaughter contrary to s. 302 of the Criminal Code the State must prove that the accused unlawfully killed another under such circumstances as not to constitute wilful murder, murder or infanticide.

43.	It is not necessary for the State to establish that the accused intended to kill the deceased or intended to do the deceased any particular harm; the prosecution need only prove that the accused unlawfully killed the deceased.

44.	Pursuant to s. 291 of the Criminal Code, any person who causes the death of another, directly or indirectly, by any means, is deemed to have killed that other person.

45.	Here the State relies on s. 287 of the Criminal Code to establish that the accused killed the deceased through criminal negligence. Under s 287, the failure to take reasonable care and precaution in the use of a dangerous thing renders the offender criminally culpable for the consequences of that failure. Where death results, the killing is unlawful.

46.	I considered the principles applicable pursuant to s. 287 in The State v Richard Namaliu (2020) N8284 [79] to [82].  Section 287 provides (emphasis added) as follows: 

“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.”

“…Thus it is the duty of every person who has in his charge or under his control anything 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. Furthermore, a person is deemed to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.

78. It follows that to establish manslaughter through criminal negligence the State must prove beyond reasonable doubt that the accused:  

a.	owed a duty of care to the deceased, such that he was in charge of a thing 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 might be endangered;
b.	breached that duty through criminal negligence (i.e. negligence to the criminal standard); and 
c.	thereby caused the death of the deceased.

…

79. It is well established that criminal negligence involves a very high degree of negligence:  Beraro v The State [1988-89] PNGLR 562 (emphasis mine):

“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.
The words used there to use reasonable care and take reasonable precautions sound like words describing civil liability for negligence. Nevertheless, it has been well established that these words describe a much higher degree of negligence, namely criminal negligence. This matter was decided in Australia by the High Court in Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115, an appeal from a section in the Western Australian Criminal Code equivalent to our s 287. The High Court in a unanimous decision (at 124) held that, because those words appear in a Criminal Code dealing with major crimes involving grave moral guilt, they were not intended to punish as manslaughter the degree of negligence which gave rise to civil liability. The High Court considered that those words describe the common law criminal standard of negligence. That view was followed by the High Court on an appeal from the pre-Independence Supreme Court of Papua New Guinea in Evgeniou v Reginam [1964] P&NGLR 45 at 46. That has been followed by numerous judges in Papua New Guinea. An example, involving a charge of manslaughter by shooting, is R v Peck (Williams J, SC No 650 of 19 October 1971, unreported).
The classic statement of criminal negligence at common law is found in the judgment of Lord Hewart CJ reading the unanimous judgment of the Court of Criminal Appeal in R v Bateman (1925) 28 Cox’s Crim Cas 33 at 36:
“In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as ‘culpable’, ‘criminal’, ‘gross’, ‘wicked’, ‘clear’, ‘complete’. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.” 

That decision was affirmed by the House of Lords in Andrews v Director of Public Prosecutions [1937] AC 576, where at 583, Lord Atkin said:

“[A] very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied ‘reckless’ most nearly covers the case ... but it is probably not all-embracing, for ‘reckless’ suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction.”

80. In summary, there must be negligence, which may be described as recklessness involving grave moral guilt, or in other words, negligence which shows such disregard for the life and safety of others as to amount to a crime against the State and deserving of punishment: Beraro applying Evgeniou v The Queen (1965) ALR 209 and Bateman (1925) 28 Cox’s Crim Cas 33.  

81. The test is an objective one and reflects community standards.  The accused’s conduct must be compared with the behaviour of a reasonable hypothetical person in the situation of the accused:  Beraro, Evgeniou (supra).  

82. Ultimately, what is or is not, criminal negligence is a question of degree to be decided on the facts of each particular case: Beraro.  Furthermore, whether an act or omission is criminally negligent or not, must be decided by reference to the circumstances at the time the act or omission occurred and not by reference to the consequences thereof: Beraro per Amet J (as he then was).”

47.	In Beraro (supra) the appellant took a borrowed shotgun and went into the Waigani swamps to shoot something for dinner. He fired three shots at birds, one or two of which hit and killed the deceased, who at that time was near his bandicoot trap. 

48.	The Supreme Court upheld the appellant’s appeal against conviction for wilful murder and then invited counsel to address the balance of the issues as to what the alternative verdict might be: whether it could be unlawful killing by negligent acts or omissions under s 287 of the Criminal Code (Ch No 262) or a complete acquittal.

49.	The court unanimously agreed on the law to be applied in cases of alleged criminal negligence.  The majority, Bredmeyer and Sheehan JJ, convicted the appellant of manslaughter, finding that he was grossly negligent given the lethal nature of the weapon used and in circumstances where he was shooting on public land, just a few hundred metres from a large suburb, frequented by adults and children for various purposes, who were present, and where in poor light he shot into long kunai grass that could easily obscure an adult or a child, rather than into the air.

50.	Amet J, whilst agreeing with the majority on the legal principles to be applied,  dissented on the basis that it had not been shown that the appellant should have taken further care and precaution to avoid hitting the deceased who was squatting amongst the tall grass and who could not be seen at the time.

51.	In Wanamba v The State [1998] SC551 the Supreme Court quashed a conviction of manslaughter on appeal. The Supreme Court was not satisfied that the accused, a police officer, had acted negligently in discharging his firearm in circumstances where the crowd was closing in on him and his officers.  The appellant had wanted to fire the gun into the air to frighten them off but after pumping the gun he was lifting it up to fire into the air when his hands could not meet the weight of the gun and it went off.  The Supreme Court found that there was no evidence that he mishandled the gun but the pressure upon him in the situation should also have been taken into account when determining the responsibility to use reasonable care or take reasonable precautions to avoid danger to the public.

52.	In Sheekiot v The State (2019) SC1824 the appellant was convicted of one count of wilful murder after a trial. The State alleged that the appellant in the course of his duties as a policeman, whilst travelling in a police vehicle, was chasing another vehicle, a Camry. In the Camry was a 12-year-old child and her mother. The appellant fired several shots from a gun in his possession at the Camry. The State alleged that the child died as a result of those gunshots and that the appellant had the requisite intention to kill when he fired at the Camry.

53.	In upholding the appeal, the Supreme Court found that the learned trial judge failed to warn himself before acting on circumstantial evidence and erred in finding that it was the bullets fired by the appellant which caused death in circumstances where there was evidence that shots were also fired from another vehicle involved in the incident.  The bullets fired by the appellant were 5.56mm calibre.  However, there was evidence that the entry wounds on the deceased were one of 8mm and two of 9mm and that the wounds were caused by one bullet or projectile that entered the boot of the Camry and fragmented. Furthermore, there was evidence that the wounds on the deceased, if caused by a bullet which had not fragmented, could not have been caused by a 5.56mm bullet as the wounds were 8 and 9mm and were too large. If however, the wounds were caused by a bullet which fragmented, the fragments from a 5.56mm bullet, being smaller, would not have caused wounds as large as those found on the deceased. In addition, there was no evidence that explained whether and/or how a 5.56mm calibre bullet, or fragments of such a bullet, could cause three similar wounds of 8mm and 9mm.  There was thus a reasonable hypothesis that the bullets fired by the appellant did not cause the death of the deceased. 

54.	In R v Peck (1971) No 650 the accused was convicted of unlawful killing in criminally negligent circumstances where he fired shots from a window, aware that a person was within the general direction of his line of fire, about 16 feet away. It was late at night and, according to the accused, there was a partial moon overhead.The area into which he was firing had trees, bushes and shrubs and there was the ever-present likelihood of sudden movement of the person behind the frangipani bush.

55.	In The State v Tiki (2013) N5103, the accused was charged with murder.  The evidence established that the accused and his wife had an argument in a trade store. The accused's wife ran out of the trade store pursued by the accused. One of the persons sitting with the deceased grabbed the prisoner to prevent him from assaulting his wife. The prisoner managed to pick up a brick-like object from the ground and hurled it intending to hit his wife. The scuffle between the prisoner and the other person caused the brick-like object to ricochet of the wall of the store and hit the deceased at the base of the skull ultimately causing his death.  David J convicted the accused of manslaughter on the basis that the hurling of the object by the accused showed reckless disregard for the lives and safety of those near him. 

56.	In The State v Num (2016) N6223 it was alleged that the accused, a police officer, was with two of his colleagues, who were effecting the arrest of a drunken person who retaliated and stabbed one of the officers on his right leg with a knife. A commotion ensued and the perpetrator's friends and bystanders joined in to fight off the police officers. At the time, a huge crowd had built up.  The officer fired the shotgun to disperse the crowd. The pellets from the shotgun spread and hit a number of victims injuring them, one of whom died as a result of the injuries he sustained.  Nablu J acquitted the accused finding that the State had failed to prove beyond a reasonable doubt that the actions of the accused were culpable, reckless or grossly negligent such as to amount to criminal negligence when firing the gun in circumstances where a crowd had built up and opportunists in the crowd saw their chance to surround the accused and wrestle the firearm from him. 

57.	In The State v Giru (2017) N7028 the accused was a policeman who fired three shots from his police issued gun. It was alleged that two of the shots went harmlessly into the air whilst the third hit the deceased who was directly in the line of fire causing his death. The accused was acquitted. There was no ballistic evidence to link the accused to the shot fired into the victim.  The accused denied shooting into the crowd at any time, which evidence was supported by two defence witnesses.  In addition, there was evidence that other police units were attending at the time.  There was also evidence that others within the crowd were in possession of weapons. The learned trial judge also found that an A2 M16 carbine with a banana magazine of thirty rounds of 5.56mm, of which the accused was in possession, at rapid or near rapid fire, would have not left only one dead or injured if fired into a crowd.

PROSECUTION DUTY TO CALL ALL MATERIAL WITNESSES

58.	The prosecution failed to call the two witnesses present in the bedroom at the time of the alleged offence, namely Samantha, and her boyfriend.

59.	In The State v Joan Kissip (2020) N8184, at [97] to [104], I was required to consider the key principles applying to the prosecution’s duty to call material witnesses:

“The ordinary rule is that the prosecution should call all witnesses whose evidence is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, unless valid reason exists for refraining from calling a particular witness or witnesses. Generally, all witnesses who can give “material evidence” should be called by the prosecution: R v Harris [1927] 2 KB 587.

As the prosecution seeks the truth, it must call evidence favourable and unfavourable to its case: see R v Soma [2003] HCA 13; (2003) 212 CLR 299; R v Shaw (1991) 57 A Crim R 425.

The prosecution has a discretion as to whether, any particular witness should be called. The discretion is not unfettered, however, and must be exercised in the interests of justice so as to promote a fair trial: see Muhammed El Dabbah v Attorney-General for Palestine [1944] AC 156 PC; Apostilides v R [1984] HCA 38; (1984) 154 CLR 563 considered.

The prosecution does not need to call a witness if his or her evidence is likely to be unreliable, untrustworthy or otherwise incapable of belief: Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657; R v Newland (1997) 98 A Crim R 455. Nor should the prosecution call a witness whose evidence is likely to be unnecessarily repetitious: Whitehorn v R (supra).

Where the prosecution fails to call a witness without providing a reasonable explanation, the Court may, if it considers that the prosecution has not exercised its discretion fairly, invite the prosecution to reconsider its position but is not obliged to do so: see R v Olivia [1965] 3 All ER 116; and R v Apostilides (supra). It may, in exceptional circumstances, call the witness itself: see R v Birch [1978] PNGLR 79, or make an adverse finding that the witness should have been called.

As a general rule, a trial judge should not infer that the evidence of those who were not called would not have assisted the prosecution. A judge should not speculate about what the person might have said. Exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution’s failure to call the person in question was in breach of the prosecution’s duty to call all material witnesses: see Dyers v R [2002] HCA 45; (2002) 210 CLR 285 considering Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

In RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, Gaudron A-CJ, Gummow, Kirby and Hayne JJ said:

“... if the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused.””

60.	Prior to the commencement of the trial the State applied to have the evidence of the two witnesses taken through video-link from Australia, where they now reside, pursuant to s. 16 of the Mutual Assistance Act, 2005.

61.	The defence objected to the application on the basis that s.16 applied only to the taking of evidence in Papua New Guinea at the request of a foreign country and not the taking of evidence in a foreign country for use in criminal proceedings here. Whilst not relied upon by the State the defence also objected to any potential application pursuant to s. 12, which appears to permit such a course, on the basis that it required not the Court but the Minister for Justice to make the request to foreign authorities, and that this would cause delay.  

62.	Prior to hearing submissions, I indicated that the defence submission regarding s.16 appeared to be correct but also raised the question of whether it was necessary for the evidence to be taken under the Act if the witnesses were willing to participate in a video link voluntarily.  I note here that s. 5 provides that the Act does not limit the provision or obtaining of international assistance in criminal matters other than assistance of a kind that may be provided or obtained under the Act.  I asked the parties to consider the procedures that should be followed and whether any such proposal would be fair to the accused.  

63.	When the parties returned the State took the view that there was a gap in the legislation, and withdrew the application in its entirety.  As such, neither party addressed the issues I had raised.  My tentative view is that in this day and age, where financial resources are limited, and technology advanced, the use of video link may be an appropriate tool to secure the evidence of witnesses in certain circumstances.  Ad hoc directions for this purpose could be given by the Court pursuant to s. 185 of the Constitution in the absence of procedural provision. Each case must be determined upon its own circumstances, however, and as the matter was not pursued, I am not in a position to make any finding on those issues today. 

64.	Nevertheless, a number of matters are clear.  The witnesses are not available in Papua New Guinea and cannot be compelled to attend through summons in the normal manner.  I accept Sgt Pige’s evidence and it does not appear to be in dispute that the witnesses currently reside in Australia.  Nor is it disputed that the State incurred significant cost in securing the attendance of the witnesses on the last occasion the matter was fixed for trial before another judge in 2019, but that the witnesses did not give evidence because the matter was adjourned.  I also accept Sgt Pige’s evidence that since then the authorities have been unable to contact them. Despite this the State sought to obtain an order compelling the witnesses to attend in Australia to have their evidence taken via video link. It was only upon the objection of the defence that the State withdrew its application.  It cannot be said that the State’s application to secure the witnesses’ evidence via video link was not genuinely made. In the circumstances, I am not satisfied that the failure of the State to call the two witnesses in this trial was an improper exercise of discretion by the prosecution.  

65.	Accordingly, I direct myself that I will not infer that their evidence would not have assisted the prosecution. Nor will I speculate about what the witnesses might have said: Dyers v R (supra) considering Jones v Dunkel (supra) adopted and applied.  

66.	Ultimately, the question remains whether on the evidence admitted, the State has established beyond reasonable doubt that the accused unlawfully killed the deceased.

CIRCUMSTANTIAL CASE

67.	The State’s case relies on admissions by the accused in the form of both words said to and conduct observed by C/Sgt Trepi, C/Sgt Numbos, and Sgt Pige after the alleged incident, together with inferences to be drawn from those admissions.  This conduct includes the accused’s presentation of himself to C/Sgt Trepi at Hohola Police Station and his participation in a recreation of the alleged incident as recorded in photographs Exhibit D1-14 which were taken by C/Sgt Numbos, in the presence of Sgt Pige.  

68.	I remind myself that in a case resting wholly or substantially upon circumstantial evidence, an accused cannot be found guilty unless the prosecution has excluded all rational hypotheses consistent with innocence; that is the guilt of the accused must not only be a rational inference, but the only rational inference in all of the circumstances: Paulus Pawa v. The State [1981] PNGLR 498(approving The State v Tom Morris [1981] PNGLR 493, adoptingBarca v The Queen (1975) 50 ALJR 108 quoting Peacock v the King (1911) 13 CLR 619 (emphasis mine):
“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstantial evidence are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock v. The King [1911] HCA 66; (1911) 13 C.L.R 619 at 634. To enable the jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw: Plomp v. The Queen (1963) C.L.R 234 at 252, see also Thomas v. The Queen [1960] HCA 2; (1960) 102 C.L.R 584 at pp. 605-606. However, 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence: Peacock v. The Queen at p. 661.
An inference as to the guilt of an accused should be drawn only after the court had made a full and thorough evaluation of all the circumstances in evidence … ”.

DUTY OF CARE

69.	The defence submits that there is no evidence that the accused shot the deceased, and in effect that there is no evidence that the accused was in possession of a firearm at the relevant time or owed a duty of care.

70.	It points to the fact that the bullet found in the victim did not come from the weapon provided by the accused to police, Exhibit B, and relies on Sheekiot and Giru (supra) to submit that the State has not excluded the possibility that someone other than the accused, either in the room, or outside the house, shot the deceased. 

71.	I do not agree.

72.	The accused admitted by words said to, and conduct observed by, C/Sgt Trepi, C/Sgt Numbos and Sgt Pige, including his participation in the recreation of the alleged incident, that he was in possession of a firearm at the relevant time, and indeed that it was he who shot the deceased. 

73.	An admission, or a statement of fact which suggests an inference as to any fact that is relevant and which is adverse to the interests of the person responsible for the statement, has long been accepted as an exception to the hearsay rule because it is presumed to be reliable. What an accused person admits or confesses to be true may reasonably be presumed to be:  Slatterie v Pooley (1840) 151 ER 579, per Viscount Parke at 581.

74.	Furthermore, there is no rule of law that says a conviction cannot be based on an uncorroborated confession: R v McKay (1935) 54 CLR 1, adopted and applied in  R v Mon and Debong [1965-1966] PNGLR 42; R v Namiropa Koinbondi [1969-1970] PNGLR 174; The State v Ungum Ovohe (1980) N245; and The State v Malepo (No 2) [1996] PNGLR 252; Nara v The State (2007) SC1314; Andrew v The State (2009) SC997.  

75.	Before doing so, however, the trial judge must carefully examine the nature and extent of the confession and the circumstances in which it was made to exclude any reasonable doubt that it is a false or unreliable confession.  Per Clarkson J in Koinbondi: 

“I think it is now clearly established that a court, taking proper safeguards may, even on a charge of wilful murder, act on a confession which is uncorroborated but it will do so only after the closest scrutiny and testing of the confession and only after an examination of the considerations, if any, supplying hypotheses by which the making of a confession may be explained more or less reasonably consistently with innocence.” 

76.	The accused called C/Sgt Trepi, his senior officer, early in the morning of 15 May 2016, between 5 am and 6 am, and volunteered to him that he “was in trouble” and had “accidentally shot” his wife.  He then voluntarily attended Hoholo Police Station in response to C/Sgt Trepi’s request.

77.	At the house, after C/Sgt Numbos introduced himself, the accused told him that he had “accidentally shot” his wife.  The accused demonstrated where he and others in the room were situated at the relevant time.  The accused told C/Sgt Numbos that he was clearing the weapon when it “suddenly went off” and that was how he shot the deceased. 

78.	I have taken into account that C/Sgt Numbos was unable to recall whether it was the accused’s sister-in-law or her husband who was shown in photograph 3 and 4 respectively, or vice versa, and that he did check his statement overnight without leave for that purpose.  His evidence as to what the accused said was otherwise clear, however, and he admitted referring to his statement about photographs 3 and 4 under cross-examination.  I am satisfied that the rest of his evidence was given from memory.

79.	Despite being the investigating officer, Sgt Pige’s evidence as to what the accused said was limited.  Nevertheless, his evidence confirms that the accused participated in the recreation at the crime scene.  Furthermore, the accused produced a 9 mm firearm, Exhibit B, in response to Sgt Pige’s question as to where the firearm was that was used. 

80.	I accept the credibility of each of those witnesses having assessed their honesty and reliability having regard to the content of their evidence in the context of the evidence as a whole, their demeanour when giving evidence, and bearing in mind that I may choose to accept or reject, in whole or in part, the evidence of any witness.Their evidence was straight forward and generally consistent with one another as to the statements and conduct of the accused but not so similar as to suggest that it was in any way fabricated.  

81.	Moreover, neither the fact that certain things were said by the accused to each of the officers, the content of those statements, nor the participation of the accused in the recreation, was challenged under cross-examination, nor was objection taken to the photographs, Exhibits D1-14. 

82.	It is well established that:

“[A] criminal trial is accusatorial but also adversarial.  Subject to well-defined exceptions, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue.":Tom v The State(2019) SC1833 at 46.

83.	Furthermore, whilst the defence objected to a written statement that was provided by the accused to police some time later, and which was excluded on a voir dire, it was not suggested that the admissions referred to above were not made voluntarily, either at common law or by reference to s. 28 of the Evidence Act. 

84.	A confession made by an accused must be voluntary in that it is made in the exercise of a free choice to speak or remain silent: McDermott v The King (148) 76 CLR 501 at 511.   As stated by the Supreme Court in Paru v The State (2017) SC1632:

“The confession must be made under circumstances and conditions that are fair and allowed for a free exercise of an accused's mind. The failure to accord the accused his right to see a lawyer or to administer the caution before the confession is made per se are not grounds for rejecting a confession if the confession was made freely. It is not out of the ordinary for an accused person who feels compelled by the dictates of his own conscience about guilt to give the confession at the earliest opportunity to a law officer or policeman, however the confession must not be induced or coerced upon by threats of harm, assault or any other forms of intimidation that would have an overbearing effect on his mind. A confession may be voluntary even if he was not told of his right to remain silent: R v Girinu Ileandi [1967-68] PNGLR 496; R v Suk Ula [1975] PNGLR 123. Failure to comply with Section 42(2) of the Constitution for that reason alone does not render a confession necessarily inadmissible: Constitutional Reference No. 1 of 1977 [1977] PNGLR 295.”

85.	There can be no doubt that it was the accused who first approached the police, and that the admission made to C/Sgt Trepi was entirely of the accused’s own volition.

86.	Whilst the accused was not cautioned following his statement to C/Sgt Trepi, s. 42(2) of the Constitution does not apply as the accused was not under arrest and had not been taken into custody or detention effectively or otherwise. Furthermore, a confession may be voluntary although the confessor has not been told either expressly or impliedly that he or she has the right to remain silent.  It is compulsion or pressure that offends not the absence of a caution:  R v Ginitu Ileandi [1967-68] PNGLR 496; The State v Kuya [1983] PNGLR 263.  

87.	Similarly, as stated in The State v Toiamia [1978] N145:

“[I]it has been… the position that … ‘When a police officer is trying to discover whether, or by whom, an offence has been committed, he is entitled to question all persons, whether suspected or not, from whom he thinks that useful information may be obtained’… ‘This is so whether or not the person in question has been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted for it.’ In these days of ever-mounting crime, it is indeed essential not to fetter the hands of the police unnecessarily so as to hinder them in their difficult and vital tasks. They always remain a target for criticism even when correctly doing their duty. Only if they exceed the bounds laid down either by the Judges’ Rules or by the common law or indeed common decency, judges will then exclude statements thus obtained.”

88.	There was evidence from Sgt Pige on the voir dire that the accused appeared somewhat confused that morning and said that he was in a state of shock.  There might be a number of reasons for that in the circumstances but it does not follow that his statements and conduct were not voluntary.  Certainly, there is no evidence that his mind was so unbalanced as to render them involuntary:  see Jackson v R (1962) 108 CLR 1. 

89.	Indeed, in my view the evidence establishes otherwise.  This was a man who was very much in control of what he was doing that morning. There were admissions by both words and conduct, made at different times, and to different police officers.  It was the accused who first reported the matter to police, namely his senior officer, it was the accused who led police officers to the scene in his own vehicle, and it was the accused who once there again admitted shooting his wife, volunteered to, and did, explain what had happened in the bedroom of the house, whilst photographs were taken.  

90.	I have no doubt that the admissions made by the accused to C/Sgt Trepi, C/Sgt Numbos and Sgt Pige, his participation in the recreation on 15 May 2016 and the provision of the 9 mm firearm to Sgt Pige, were voluntary.  I am further strengthened in my view by the fact that the accused is a reserve police officer and not someone naïve or inexperienced in dealing with police.  

91.	Whilst the defence has not suggested otherwise, it is also my view that having regard to the conduct of the police and all the circumstances of the case, it is fair to use the accused’s own statements against him: The State v Mana Turi [1986] PNGLR 221.

92.	The nature and extent of the admissions that the accused shot his wife, and the circumstances in which they were made exclude any reasonable doubt that they were false and unreliable: Koinbondi (supra) applied.  See also Nara and Andrew (supra).

93.	In applying these principles, I have taken into account that no shell casings were found at the scene and that the bullet found in the deceased did not come from Exhibit B.  If the police conducted a search immediately following the incident and failed to find a shell that might be more relevant but here it was the accused who chose when to report the matter, and then took the police to his home and showed them the bedroom in which he said the shooting took place. It is clear that the matter was not reported immediately and that by the time the accused took the police to his home, the body had been removed from the house and the bedroom cleaned of blood. Furthermore, the weapon was provided by the accused himself to police. I find that the accused did so deliberately. As the evidence shows the accused was very much in control of what he said and did that morning.  The gun provided by the accused was registered to him and was the same calibre as the weapon used in the shooting, i.e. 9mm, a matter of which the shooter would well be aware.  Rather than raising any doubt his conduct was in effect a further admission, and consistent with his earlier admissions.

94.	This case is also distinguishable on its facts from Sheekiot and Giru (supra).  Those cases do not stand for the proposition that there must always be ballistic evidence linking the accused to a shooting. Whatever the evidence, however, it must be sufficient to establish the role of the accused to the requisite standard.  

95.	In Sheekiot the accused denied that it was he who shot the deceased and there was evidence to suggest that the bullet that hit the deceased was a different calibre to that fired by the accused, and that shots had also been fired from another vehicle involved in the incident.  Thus, the State had failed to exclude the possibility that the shot was fired by someone in the other vehicle.  Similarly, in Giru the evidence of the accused and other witnesses was that he fired only into the air, that there were police and others armed in the crowd, and the nature of the accused’s weapon led the judge to find that if it had been discharged into the crowd it would have resulted in greater death or injury.

96.	In this case the accused’s own admissions by both words and conduct exclude the possibility that someone else in the room shot the deceased.

97.	I also reject the submission that the shot may have been fired by someone outside the house.  This is inconsistent with the accused’s version of events and the possibility is excluded by the medical evidence from Dr Bannick that the victim was shot at sufficiently close range to suffer a powder burn.  This is particularly so given that the deceased was shot whilst on the second floor of a building.

98.	In summary, I am satisfied beyond reasonable doubt that the accused owed a duty of care to the deceased pursuant to s. 287 of the Criminal Code.  At the time of the alleged offence he was in charge of a 9 mm firearm, a thing of such a nature that, in the absence of care or precaution in its use or management, the life, safety or health of another person might be endangered:  Evgeniou v The Queen (1965) ALR 209 applied. Indeed the evidence has excluded any rational inference that someone other than the accused shot the deceased.

BREACH OF DUTY

99.	As above, the duty of a person under s. 287 of the Criminal Code is to “use reasonable care and take reasonable precautions” in the “use or management” of a thing that might otherwise cause danger to the life, safety and health of others. 

100.	It follows that whether or not there has been a breach of the duty will depend upon whether such danger was reasonably foreseeable. It is not necessary that the precise result be foreseeable but at least some serious harm must be reasonably foreseeable:  Namaliu (supra) at [106] adopting R v Hodgetts and Jackson [1990] 1 Qd R 456.

101.	Furthermore, a breach of the duty under s. 287 does not depend upon an intention to cause harm; the gravamen of the offence lies in the failure to use “reasonable care and take reasonable precautions to avoid” danger to life, safety and health.  

102.	Per Keane JA in R v Clark (2007) 171 A Crim R 532 at [22] to [23], dealing again with s 289 of the Queensland Criminal Code:

“Whether there has been a failure in this sense on the part of an accused person does not depend upon an intention to cause harm but upon a failure to take reasonable steps to avoid danger. What is reasonable in this context inevitably depends upon the nature of the danger and the extent of the opportunity of the accused person to ensure that the danger does not lead to injury to life, safety or health. In some cases, the danger will be extreme and obvious; in such cases, deliberate and active diligence will be required to discharge the duty of reasonable care imposed by the section. In other cases, the danger may be relatively slight or remote; in such cases, it may be that only conscious disregard of the danger will amount to a failure to exercise reasonable care worthy of punishment as a crime.

103.	The risk associated with a firearm is both extreme and obvious.  It is by its nature a lethal weapon, the very purpose of which is to inflict serious harm.  Deliberate and active diligence is required to discharge the duty of reasonable care imposed by s. 287. As a matter of common sense this includes keeping the firearm safely and in good working order, whilst also taking great care in its handling. 

104.	By his own admission, through both words and conduct, the accused was in control of a 9 mm firearm in the upstairs bedroom of a residential property in a suburb of Port Moresby.  Present at the time were three other adults situated in various places around the room, including the deceased, the accused’s wife. By his own admission, the accused attempted to “clear” the weapon to check if it was empty of ammunition.  Evidently it was not. The accused is a licenced firearm holder and would know what it means to say that he was “clearing” a 9 mm weapon, namely undertaking a process that involves inserting a magazine and cocking the weapon. 

105.	Any reasonable person would know that to clear a lethal weapon in the circumstances described was a very dangerous thing to do.  As above, it is a matter of common sense that firearms must be handled with great care and anyone in control of a weapon must be expected to know that, let alone a police officer and licensed firearm holder.

106.	I find that in clearing the weapon the accused applied sufficient pressure to the trigger to cause the firearm to discharge.  There is no other rational inference.  S/Sgt Barai gave evidence that was not challenged that the bullet found in the deceased was fired from a pistol like Exhibit B.  Furthermore, that if such a firearm is in good working order, it is necessary to place a finger around the trigger and pull back with sufficient pressure to fire the bullet. S/Sgt Barai was an impressive witness, with over 28 years of experience as a firearms specialist with the RPNGC.   

107.	There was no evidence to suggest that the gun discharged due to some fault like a hare trigger, but even if that were the case it would not exonerate the accused whose duty to take all care and precaution included ensuring that the gun was in good working order, especially before clearing it in a room with others present. 

108.	Similarly, there was no evidence to suggest that the offender dropped the firearm.  Dr Bannick’s evidence that the bullet was fired in line with the deceased’s head excludes this possibility. Nor is there any evidence to suggest that the accused was interfered with in any way whilst holding the firearm.

109.	The defence submit that Dr Bannick’s findings are not consistent with the State case.  It is important, however, to look carefully at what Dr Bannick’s evidence actually was.

110.	In his report, Exhibit D2, Dr Bannick set out his understanding of the report from police as follows: “The deceased a 25 year old from Milne Bay was in the room with her husband Felix Kange with her cousin sister Samantha Genia Sidhu and her boyfriend Jarron Bray.  The deceased husband Felix Kange took out his pistol from the dresser and he loaded it and the firearm discharged and shot the deceased”. 

111.	In giving his conclusion he said (verbatim): “However, I am also of the view that the circumstances surrounding the death is suspicious and does not correlate with the nature of the wound and also does not correlate with the alleged accused statement”. He recommended a thorough crime scene and other investigation.

112.	In evidence Dr Bannick explained that the wound was not consistent with what he understood to have been the accused’s explanation, that is with it being sustained in the process of the shooter getting a gun out of a dresser.  In his view the shooter had to have been in line with the victim to cause the “track wound”, which showed that the bullet entered the mouth and travelled in a straight line back through the head to where it lodged in the neck. 

113.	I agree with Dr Bannick that in general terms the medical evidence does not correspond with a gun discharging whilst being taken out of a dresser.  

114.	Moreover, I am satisfied that the evidence excludes any rational inference that the gun discharged whilst being removed from the dresser in this particular case.  The dresser drawer can clearly be seen in Exhibit D2 to be at about waist height on the accused who is standing beside it in the photograph.  

115.	The defence point to Dr Bannick’s evidence that it was possible for the deceased to have been shot whilst sitting down if the shooter was also sitting in line with her.  He agreed, but this doesn’t assist the accused.  The accused admitted to C/Sgt Numbos that the deceased was standing at the relevant time. 

116.	Moreover, the accused did not tell C/Sgt Numbos that the gun discharged when he was removing it from the drawer but that he removed the weapon from the drawer and that it discharged when he was clearing it.

117.	The accused’s admission that he was attempting to clear the weapon, i.e. checking that it was empty of ammunition, also excludes any rational possibility that he was responding under pressure to an imminent threat.

118.	It is difficult to see how a firearm could safely be cleared in an upstairs room as a general proposition.  In the event it was pointed downwards and it discharged, the shot could penetrate the floor and hit anyone below, or ricochet around the room, as it could if discharged upwards.  But here the evidence of S/Sgt Barai that a bullet will travel in the same direction unless it ricochets off another object, together with the evidence of Dr Bannick that the bullet entered the mouth of the deceased and travelled in a straight line until it lodged in the back of her neck, establish that the gun was in line with or pointed at the deceased’s head at the time it discharged.

119.	The evidence of powder burns on the deceased’s face, together with Dr Bannick’s evidence, also establishes that the deceased was shot at close range, albeit that Dr Bannick did not clarify how close or within what distance. 

120.	I agree with Dr Bannick.  The circumstances of this case are suspicious.   A woman has been shot in the head, at close range, in the bedroom of her own home, by her husband, who failed to report the matter immediately to police and told them it was an accident.  The State did not charge wilful murder, however, or seek to establish that the accused’s assertions about how the gun discharged are false.  

121.	At a minimum the evidence excludes any rational inference that the accused was paying sufficient care and attention to the direction in which the gun was pointed.   What reasonable person in possession of a firearm does not take all care and precaution to ensure that it is not pointed at the head or body of another, in a room with other people, including his own wife, at any time, let alone before attempting to clear the weapon?

122.	The State has asked me to take into account the accused’s provision of the wrong gun to police as consciousness of guilt on his part that he was grossly negligent.  Before drawing an inference of guilt it is necessary to find that the accused provided the wrong gun because of a consciousness of guilt in relation to the offence charged and not for any other reason: The State v Epei (2019) N7845 at [58] to [59].The entirety of his post-offence conduct:  the delay in reporting the matter to police, the taking of police to a cleaned room, together with the provision of the wrong gun demonstrate a consciousness of guilt in my view but they are not necessary to my finding that he breached his duty of care given the other evidence.  

123.	In summary, I am satisfied beyond reasonable doubt that having regard to its lethal nature, the attempted clearing of a 9 mm firearm by the accused, causing it to discharge, whilst in the upstairs bedroom of a home, in close proximity to others, including his wife, the deceased, showed a very high degree of carelessness on the part of the accused amounting to criminal negligence. That he did so whilst also failing to take all reasonable care and precaution to ensure that the weapon was not pointed at the head of the deceased at the time only serves to compound the very high degree of negligence in this case.  

124.	The danger, or the risk of harm, was extreme and obvious and the accused’s conduct greatly departed from the standard of care required, or from that which a reasonable member of the community would use in the same circumstances.  It showed such disregard for the life and safety of others as to amount to a crime against the State and deserving of punishment.   

CAUSATION

125.	Pursuant to s. 287, where an accused breaches his duty he is deemed to have “caused any consequences which result to the life or health of any person by reason of any omission to perform that duty”.  Thus, in a case of alleged manslaughter there must be a causal connection between the criminal negligence and the death:  Evgeniou, Beraro, Sharp (supra), Namaliu.

126.	The State must prove that the criminal negligence on the part of the accused was a substantial and operating cause of the death of the deceased.   It need not be the sole or even the main cause of death, provided it contributed significantly to the victim’s death: Namaliu applying The State v Subang [1976] PNGLR 179 applying R v Gould (1963) 47 Cr App R 241;  see also R v Cheshire[1991] 1 WLR 844 and Royall v The Queen (1991) 172 CLR 378.

127.	Causation is not a philosophical or scientific question.  It is a question of fact to be determined by applying common sense to the facts as the Court finds them, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Namaliu adopting and applying Royall v The Queen (1991) 172 CLR 378 at 387, 425 and 441, adopting and applying Burt C.J. in Campbell v. The Queen (1981) WAR 286, at p 290; (1980) 2 A Crim R 157, at p 161.   See also Sharp (supra). 

128.	I am satisfied beyond reasonable doubt that the accused’s criminal negligence was a substantial and operating cause of the deceased’s death.  The medical evidence establishes that the deceased died as a result of bleeding at the base of the brain which was caused by the gunshot wound suffered as a result of the accused’s criminal negligence.

DEFENCES 

129.	None of the statutory defences apply in this case. The State has excluded them beyond reasonable doubt as part of establishing the principal facts. 

130.	Section 24 of the Criminal Code, Intention: Motive provides (emphasis mine): 

“(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for–

(a) an act or omission that occurs independently of the exercise of his will; or
(b) an event that occurs by accident.”

131.	The clearing of the weapon by the accused which caused it to discharge was a willed act.  Section 24(1)(a) has no application in this case.  Nor would it have any application given the introductory words of s. 24(1) and my finding that s. 287 of the Criminal Code applies.

132.	Similarly, it is well established that in a case where death is alleged to have resulted from a failure to use reasonable care or take reasonable precautions required under s. 287, liability is to be determined without reference to the defence of accident under s 24(1)(b) of the Criminal Code: Beraro.  In this case the deceased’s death was a foreseeable consequence of the accused’s use and management of the firearm. 

133.	For the purposes of completeness, I make it clear that there was no extraordinary emergency for the purposes of s. 26 of the Criminal Code.  As above, I have found that the fact that the accused was checking to confirm that the weapon was empty of ammunition excludes that possibility.  Nor was there a mistake of fact for the purposes of s. 25 of the Criminal Code.  It was his duty to ensure that the gun was not loaded before handling it in the manner he did in the circumstances described. 

CONCLUSION

134.	In conclusion, I am satisfied beyond reasonable doubt that the accused is guilty of the manslaughter of the deceased, Regina Morove, through or by criminal negligence, contrary to s. 302 of the Criminal Code. This is not just a rational inference but the only rational inference.  The evidence led by the State to prove each of the elements of the offence is such that any reasonable hypothesis consistent with the innocence of the accused has been excluded.

135.	Verdict:  The accused is guilty of the manslaughter of Regina Morove. 
________________________________________________________________
Public Prosecutor: Lawyers for the State
Elemi Lawyers: Lawyers for the Accused