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State v Kande [2021] PGNC 411; N9132 (13 September 2021)

N9132

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1804 OF 2016, 154 OF 2017 AND 1364 OF 2017

STATE

V

TONY KANDE, HENRY NAIO AND WILSON MUKA
Waigani: Berrigan J
2021: 11^th - 14^th June and 13^th September

CRIMINAL LAW– PRACTICE AND PROCEDURE – ATTEMPTED MURDER – OBSTRUCTING THE COURSE OF JUSTICE – THREATENING INJURY – WILFUL DAMAGE – Sections 304, 359, 136 and 444(1) of the Criminal Code - Elements of offences – Application of s 7 – Each accused guilty of obstructing the course of justice.

Cases Cited:
Papua New Guinea Cases

Karani and Aimondi v The State (1997) SC540
Kandakason v The State (1998) SC558
Mark Nainas v The State (1998) SC598Vaii Rocky Maury v The State (2001) SC668

Jimmy Ono v The State (2002) SC698
Balbal v The State (2007) SC860
Maladina v The State (2016) SC1495
Ikalom v State (2019) SC1888
Roland Tom v State (2019) SC1833
R v Turan (1952) N211
R v Wendo [1963] PNGLR 217
R v Yofia Abone [1967-1968] PNGLR 277
Gaiari-Ganereba v Giddings [1967-68] PNGLR 346
John Beng v The State [1977] PNGLR 115
Agiru Aieni v Paul T Tohian [1978] PNGLR 37
Thomas v The State [1979] PNGLR 668; [1979] PNGLR 140
Wani v The State [1979] PNGLR 593
State v Gende [1980] PGNC 13; N247
Paulus Pawa v The State [1981] PNGLR 498
Pawa v The State [1981] PNGLR 498
The State v Tom Morris [1981] PNGLR 493
Paulus Pawa v The State [1981] PNGLR 498
Imiyo Wamela v The State [1982] PNGLR 269
Biwa Geta v The State [1988-89] PNGLR 153
State v Kiliki [1990] PNGLR 216
The State v Raphael Kuandande [1994] PNGLR 512
Kilikili and State v Kembu [1996] N1404
Kasen v The State (2001) N2133
The State v Francis Vau Kamo (2006) N2991
Martin Tukai and Vincent Chare v The State, unreported, 1 November 2017
The State v Epei (2019) N7845

Overseas Cases

Attorney-General’s Reference (No 1 of 1975) [1975] EWCA Crim 1; [1975] 2 All ER 684
Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108
De Gruchy v The Queen [2002] HCA 33; 211 CLR 85
Driscoll v R [1977] HCA 43; (1977) 137 CLR 517
Plomp v The Queen (1963) C.L.R 234
Coney [1882] UKLawRpKQB 30; (1882) 8 QBD 534
R v Vreones [1891] UKLawRpKQB 14; (1891) 1 QB 360
Peacock v the King [1911] HCA 66; (1911) 13 CLR 619
Peacock v The King [1911] HCA 66; (1911) 13 C.L.R 619
R v Lopuszynski [1971] QWN 33
Borg v R [1972] WAR 194
R v Tovarula [1973] PNGLR 140
Stuart v The Queen [1974] HCA 54; (1976) 134 CLR 426
R v Machin (1980) 71 Cr App R 166
R v Oberbillig [1989] 1 Qd R 342
Shepherd v R [1990] HCA 56; (1990) 170 CLR 573
R v Rogerson [1992] HCA 25; (1992) 174 CLR 268
R v Rafique [1993] 4 All ER 1
R v Adams [1998] QCA 64
R v Russell [1933] VR 59
Reg. v Todd (1957) SASR
Thomas v The Queen [1960] HCA 2; (1960) 102 C.L.R 584
Peacock v The Queen
R v Cowdell [1962] Crim.L.R. 262
R v Salih [2005] VSCA 282; (2005) 160 A Crim R 310
The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308

Cases Cited:

Sections 7, 8, 304, 359, 136 and 444(1) of the Criminal Code

Counsel

Mr D Kuvi with S Binding-Suwae, for the State
Mr J Sebby, for the Accused

DECISION ON VERDICT

13^th September, 2021

1. BERRIGAN J: The accused are jointly charged with four counts, namely the attempted murder of Patrick Premenga, threatening injury to him, attempting to obstruct the course of justice, and wilful damage, contrary to ss. 304, 359, 136 and 444(1) of the Criminal Code (Ch. 226) (the Criminal Code), respectively, such that on 19 October 2014 they:

Count 1: ...attempted to unlawfully kill one Patrick Premenga

Count 2: ...threatened to injure one Patrick Premenga with the intent to prevent him from serving contempt of court charges against them

Count 3: ...attempted to obstruct the course of justice by threatening Patrick Premenga not to serve contempt of court charges against them

Count 4: ...wilfully and unlawfully damaged the vehicle ZPD-013, under the care of Patrick Premenga

2. In brief the State alleges that following his attempts to serve contempt charges on Sergeant Pokop and his men for allegedly stopping the execution of a warrant of arrest on the former Prime Minister, Peter O’Neill, the four accused went to Sgt Premenga’s home and attempted to kill him, deliberately damaged a vehicle, threatened him with a view to stopping the service of the contempt charges, and obstructing the course of justice.
   

STATE CASE

3. The State called five witnesses and tendered a number of documents by consent, including the records of interview of each of the accused, and photographs of the alleged crime scene and items recovered.
   
4. Chief Sergeant Patrick Premenga, is a police officer of 25 years standing, 16 years as Chief Sergeant. He is now based at the National Fraud and Anti-Corruption Directorate (NFACD). A warrant of arrest was issued for the then Prime Minister, Peter O’Neill in September 2014. There was an order staying the warrant of arrest. The matter was referred to the National Court and then the Supreme Court, which upheld the warrant of arrest. As they were about to execute the warrant of arrest they were stopped by NCD police led by Sgt Pokop. The National Court issued contempt charges against Sgt Pokop and nine others alleged to have prevented execution. They were instructed by the Director, NFACD, to serve the contempt charges on those named, starting with Sgt Pokop. At about 6 pm on 19 October 2014 he, in the company of Chief Sergeant Barum, attempted to serve charges on Sgt Pokop at his residence at Games Village. Sgt Pokop refused to accept the charges and told them to leave his premises because it was the weekend. Premenga told him they were policemen who do their duties 24 hours but they would serve him the next day, Monday. As they walked back to their vehicle, he heard Sgt Pokop put a magazine in his rifle and call out to him. He and CS Barum were unarmed. He told Sgt Pokop there was no need for a firearm and walked to the main road. Sgt Pokop followed them up to the road. Sgt Pokop asked him “why are you following us with the ten vehicles and all this?”. There were only two or three vehicles, his double cab and a small vehicle or vehicles, no ten seaters, and four or five men, certainly less than 10. They exchanged words and left him there and went to serve Ela Ravu at Bagita Barracks, 1.5 km away. He also refused to accept service of the contempt charges but they placed them on the ground, telling him that whatever he did with them was up to him. Ravu told them he was going to burn the charges. It was getting late so they decided to debrief at their office at Konedobu. They were told to retire to their homes and continue the next day. He returned home about 7pm.
   
5. Between 7 and 8 pm three vehicles came to his house. Two of his daughters, the youngest 7 years of age, were inside the house. His wife was outside with the neighbour. One vehicle blocked his driveway, and the others parked at the side of his residence. He heard the policemen shouting at the neighbours “put the lights off, don’t come out”. Someone called his name and he came out. They were dressed in full uniform. His in-law was outside and then came back in. As Premenga approached the door he saw Sgt Pokop, Henry Naio and Tony Kande, with two graduates he did not really know, outside on his verandah. He told them that he was only doing his job. He was not a criminal. He told them to leave him and his family. Some threatening words were said trying to suppress him because he was the one leading the team to serve the contempt charges. He cannot really recall what they said when they first came to the door but they were threatening and they said they wanted to kill him. They were saying we are just small policemen like you. He said “this is not the way that we solve this thing, I am only doing my job”. Kande was drunk and he could smell alcohol on him. Kande punched him with a clenched fist very hard on his face. After that two guns were pointed at him. Sgt Pokop pointed an M16 rifle at him. Kande was right in front of him and pointed a pistol revolver, point 38, at his face, straight to the left side of his face. Kande pulled the trigger but the firearm did not go off. As he pointed it up to test it, it went off. At the time he thought he was going to die. He cannot recall what Pokop’s actual words were when he pointed the M16 at him. They wanted to kill him. They wanted to stop him executing the warrant of arrest. It all started from the warrant of arrest. The episode lasted half an hour before they just walked off. Exhibit P7(5) is a photograph showing where the bullet fired from Kande’s gun went into the ceiling inside the kitchen. P7(22) and (23) show the 9 mm shell recovered in his kitchen.
   
6. Just before Kande pointed the pistol at him and pulled the trigger, he was saying something like “we are just small policemen just like you, why are you coming with 10 vehicles looking for us”. Pokop and all of them were saying that. The first shot fired that night was at him. The second shot was at the vehicle. In the morning he discovered and collected an empty shell, a 5.56mm from an M16 near police vehicle, ZPD013, Toyota Hilux, double cab, which was parked in his driveway. The rear driver side tyre had been shot.
   
7. After the men left he felt really traumatised. The men were policemen but they acted like criminals and their actions really shocked him. As police officers they are by law the officers responsible for performing their constitutional duties by serving summons or orders from the court. This incident really affected him as a sworn officer. Because of the incident he was not able to serve instruments on all members and he does not know what became of the contempt proceedings after the incident. Apart from Pokop and Ravu, the others present at his house that night were not to be served with contempt charges.
   
8. The next day, sometime in the afternoon, the NFACD office was surrounded by Sgt Pokop and his team. They threatened them there. They wanted to arrest two of the policemen who arrested Sam Bona for assault or something. They were arrested and bailed out.
   
9. Under cross-examination he said he was aware of the police protocol on serving documents on colleagues. He did not agree that the charges could be given to their bosses to be served on them. As to whether he could have served them when they reported to work, they operated on the street. Contempt charges must be personally served. They are not administrative charges. It was proper for him to serve a court document on a Sunday. Orders can be served any time. He is a sworn police officer, he works 24 hours a day. He agreed that he went to Henry Naio’s house on 14 October but he was not around at the time so they left. He went to Pokop and Ravu first and then to Naoi’s house. He did not come in ten police vehicles and harass their families. He did not bring a lot of officers and they were not armed. He did not deny the possibility the debrief was at Gordons. It had been 8 years. He heard the first vehicle coming up to the house, and looked out to the road, and saw three cars coming up. A lot of policemen coming out. They were in full gear and armed. It was dark he cannot recall how many but they were policemen. At the verandah he saw Pokop, Kande, Naio and two others. There could have been others coming up but the verandah is too small, so he can’t say. His in-law came out first and then came in and then he walked out. He agreed that when he came out to see what was happening he was holding a hammer behind his back. He told them to put their firearms down and let’s fight. He did not throw the hammer or hit anyone with it. He was unarmed, it was for his protection. He reported the matter to police for investigation. He did not get a medical report, it was not a permanent injury. He confirmed that Kande was holding a revolver and that a 9 mm calibre bullet was fired from a revolver. He strongly disagreed that Naio was not there at the time of the incident and came later after the incident. He was there. He did not stop Pokop and Kande. He did not agree that the manner in which he served the contempt charges on the respective officers wholly provoked the incident.
   
10. In re-examination he made clear that the verandah light was on. He admitted he was “mixed up” about whether a 9 mm or 38 mm was used in a revolver. He was not sure if a revolver could fire a 9 mm round. He had not been handling firearms for a long time. From his recollection he only took two vehicles to Pokop’s house, so maybe there were four officers in total. He did go to Naio’s house, at Gordons Barracks, after Ravu’s house. He does have some difficulty recalling whether the debriefing was at Gordon’s or Kone, it was probably at Gordons. Naio was present on the verandah when Kande fired the shot. He had the hammer because they were shouting “pullim kam outside”. He knew very well that Pokop was holding a firearm, his intention was to protect himself. He did not throw the hammer.
    
11. In response to my questions, he said the verandah was at the front of the house. The house lights were on. A 12 volt light was on his verandah. Henry Naio was 1.5 metres behind the other two men on the verandah.
    
12. His wife, Thecla Premenga, gave evidence that on 19 October 2014 between 730 and 8 pm she was standing outside at the neighbours chewing betelnut when three police vehicles approached, revving their engines. One marked ten seater drove into the residence and two unmarked vehicles parked outside. They blocked off the main road and instructed all neighbours to switch off the lights. They were in police uniform as they came out. Five officers “stomped up” to the verandah, very angry. Others were outside on the road. She went over to see what was happening, about 5 metres away from the base of the steps leading up to the verandah. She could hear what was happening on the verandah. They were arguing with her husband. They beat him up and tore his collar shirt. She walked over to the side of the house because her 7 year old daughter was scared and crying. Not long after that she heard a gunshot from inside the house. She was still standing there when she heard the siren or the car alarms go on when another gun shot was fired. They continued to argue with her husband. She did not see them leave. After they left she went into the house. Her husband showed her where the gunshot was fired. She only knew one of the policemen, Henry Naio as they lived together at Gordon’s Single Barracks. He was standing at the verandah of the house. There were plenty of police officers but because it was night and they yelled at the neighbours to switch off the lights. She was not sure how many there were except for the ones that went up to the house. She did not see what the other officers present that night did as she was watching what was happening upstairs at the house. The second gunshot was 20 minutes after the first one. After it, she heard the car alarm but she did not know what happened to the car til the next day and the tyre was flat. She did not see the policemen leave. Her 16 year old daughter was inside her room. Her small brother was also in the house. It was night. It got all of them scared. When she went up to the house she thought her husband was going to be dead.
    
13. Under cross-examination she said she was afraid and could not say if the police went to Willie Lape’s house but she saw them go to her house. All the houses in the front switched of their lights but she could not say if the lights at Willie Lape’s house were turned off as she was at her house and could not see. The lights in her house were not switched off. She was standing in the flowers/bushes but could see up to the verandah. She did not see who fired the shot. She did not see anyone under the house. She saw Henry Naio among the other men that night.
    
14. Elizah Mase, is a 28 year old, mechanic. At the time he was living with his elder sister and her husband, Patrick Premenga, at Games Village Police Barracks. He was inside the house watching a movie in the bedroom when he heard vehicles approaching on the road. They stopped in front of the house and he came out to the verandah and saw three vehicles. As he turned he saw some policemen rushing up the stairs. They looked serious, like they were looking for their enemy. He did not know any of them. He reversed through the main door of the house into the kitchen. Patrick was already there. He was standing to the side of Patrick, about a metre away. Policemen stopped and argued at the verandah face to face with Patrick. At one time one of the officers said “we are not William Kapris that ten cars went to our house” and then went on to say “we drink blood”. They argued for a while and one policemen took out a pistol, cocked it and aimed it at Patrick’s head and fired a shot but it buggered up and did not fire so he then immediately lifted the gun up and he fired again. He was standing about 2 metres away from Patrick at the time. There was one with a bigger gun. They continued to argue and then they left. He saw four officers on the verandah, which is about 2.5 x 5 metres. He was standing about 2 metres away from the person who held a small gun pointed at Patrick’s head. He saw three vehicles approach but could not see the type as he reversed into the house. He was not sure if there were other policemen, he only saw the ones that came up to the verandah. The light on the verandah was on. There was too much noise outside so he could not hear any gun shots from outside but inside the house he could only hear one. When the policemen first came in they argued with Patrick, swung hands at him and tore his shirt. After they fired the gun they argued for a while and then they left. From the time they arrived until they left it lasted one hour. After they left, he was so scared because it was his first time to witness such a thing so he went into the room. He was scared at the time so he didn’t know who was in the house. He can only say it was him and Patrick. He wasn’t sure if Patrick’s daughters were in the other rooms. His big sister had gone out to look for buai next to their neighbours house when the thing happened.
    
15. Under cross-examination he agreed that he did not see the policemen disembark the vehicles when they arrived, he only saw them coming up the steps and he stepped back. He did not hear them saying put the lights off. He can’t say if the lights were turned off but the verandah lights were on. When the policemen came he stepped back and Patrick came up to face them. Patrick was holding a hammer but he did not see him throw it at anyone. He did not go into his bedroom until after the incident. He was scared that they might come back. He maintained that he saw the pistol pointed at Patrick’s head. The policemen came up, he reversed back, they attacked Patrick, tore his shirt until he dropped the hammer to the floor. He agreed he did not mention the hammer to police. He did not mention Patrick being assaulted by the policemen. It was his first time to witness such incidents and he was only able to give what he recalled and he failed to give others he didn’t recall. But he is telling the court what he witnessed with his own eyes.
    
16. Willie Lape, formerly with the RPNGC for 14 years, Four Mile Traffic for 9 years and then with the Fraud Squad. He lived at Games Village next to Premenga’s house. On 19 October 2014 between 7 and 8 pm two policemen came to his house looking for the complainant’s house, so he pointed to the next house and they crossed over to his yard. He walked out from his house to the entrance to his yard to see what was happening, and saw several police vehicles on the road. Some officers went into Sgt Patrick’s house and there was some commotion, a pistol shot went off inside the house and from there the residents of the barracks came out to see what was happening. Policemen on the road chased everyone back to their residences. He walked back to his yard, someone called his name and he saw Wilson Muka and said goodnight to him and walked to his yard. He saw Muka cross over to Premenga’s residence and about 3 to 4 seconds later he heard a gunshot and the alarm and signals came on. There were about three vehicles parked on the road. There were lots of policemen. He could not recognise them because he was a bit far, about 100 metres to Premenga’s entrance. Premenga’s house is boundaried by flowers and is about 5 metres away from his house. He knows Muka because they lived together at the same barracks, Gordon’s single barracks, in 2007 and 2008, before he moved. There was bright lighting from Sgt Premenga’s residence across to his residence and he had lighting too so he saw him. Muka was serving with Highway Patrol at the time. Two men that went into the house shouted in pidgin “karrim kam outside”. The policemen left after about half an hour. After they left, he crossed over to the house. They inspected the vehicle and saw that the right rear tyre was burst and flat. He identified Muka in the dock.
    
17. Under cross-examination he was not sure if they told everyone to turn off their lights. Premenga’s security light on the side of the house, and the light under his house, were on. He was at his driveway. Police told them to go back. When he did that he saw Muka at the boundary of Premenga and his house. After he greeted him, Muka crossed over to Premenga’s residence. He walked into the yard where the vehicle was parked. He stood at the back of the vehicle on the right side. The security lights at his house and the lights under his house were also on. He maintained that he saw Muka that night. There was sufficient lighting. He saw him and he recognised his voice. He was certain it was Muka. The distance between him and Muka was about three to four metres. The distance from Muka to Premenga’s house was 500m. During the night after the policemen left, they confirmed that the tyre was shot out. He was not there the next morning when forencis came.
    
18. In re-examination he was asked to demonstrate the distance between where he was and Muka was and he confirmed it was 2 to 3 metres. He pointed to a location in the court room where Premenga’s house was from where Muka was standing. Counsel agreed it was a distance of 15 to 20 metres. He said 500 metres because that was his estimation. He was not able to see Premenga’s verandah from his house because it was obscured by the side of the building. He heard voices and screams but could not see what was actually happening. In response to my question, he said that the demeanour of the men who came to ask where Premenga’s house was aggressive.
    
19. Detective Sergeant Vincent Tapungu, forensics officer for 26 years, now with the Special Investigation Team with NFACD. Specialist in crime scene examination. Not trained in firearms but deals with them at crime scenes. A 5.56 round would be fired from the following standard issue rifles at the Constabulary: AR15- A1, AR15 -A2, M16, M4, K1 – A1. Under cross-examination he confirmed that they found an empty shell, P7(22) and (23) inside the house. He did not collect the bullet fragment in the wood. It was embedded in the ceiling and required assistance from carpentry to retrieve it, but he was involved in other duties and did not send the request. Upon attending the scene, Premenga was still under stress, he handed him the spent shell and Tapungu told him it came from a 9 mm weapon, a small handgun. Only a 9 mm calibre weapon fires a 9 mm cartridge. It is impossible for it to be fired from a revolver. A revolver only fires a .38 cartridge. If a bullet is discharged from a revolver, a spent shell will not eject, it revolves. According to the sketch map P4, which he drew, he concluded that someone in the right hand vicinity would be the shooter of the tyre, but he did not take any measurements of the bullet that entered the tyre.
    
20. The records of interviews conducted with Tony Kande, Henry Naio and Wilson Muka, Pidgin original and English translations, were admitted as Exhibits P1(A) and (B), P2(A) and (B) and P3(A) and (B), respectively. At the time Tony Kande was a police officer attached to the NCD. He was the Close Protection Officer for the Attorney-General. He exercised his right to remain silent during the interview.
    
21. Henry Naio was attached to the Gerehu Police Station. In the interview he admitted going to Premenga’s house later the same night but denied that he was there at the time of the alleged offences. He said he went to ask Premenga and other policemen why they went to his house with 10 unmarked 10-seater vehicles and threatened his family between 630 and 7 pm.
    
22. Wilson Muka was a First Constable attached to Central Traffic. He was not there at the relevant time and did not hear about what happened til the next day. He was at Hula or on the highway and did not get back until late.

DEFENCE CASE

23. The accused exercised their right to remain silent at trial. I make it clear that I draw no inference of guilt from this: Pawa v The State [1981] PNGLR 498. Henry Naio and Wilson Muka filed notices of alibi. Wilson Muka claimed that he was never at the complainant’s house. Henry Naio claimed that he went to the complainant’s house but not until later the same night and was not there at the time of the alleged offences. Neither gave or called evidence in support of the notices and I make it clear I draw no inference from this either. The accused are under no obligation to prove anything in this trial. The question remains whether the State has established the case against each of the accused beyond reasonable doubt.

SUBMISSIONS

24. The State submitted that it was not in dispute that the complainant was confronted by a group of policemen, including Kande and Naio, at his house after trying to serve the contempt charges earlier the same day. One of the accused was armed with a gun. The only rational inference is that Kande intended to kill the complainant when he aimed and fired the gun at his head. The threats were intended to prevent him from serving the contempt charges in accordance with his lawful duty. The evidence established the officers intended to obstruct the course of justice. The complainant was not aware what became of the contempt charges after the incident. The evidence establishes that it was Muka who shot the tyre of the complainant’s vehicle.
    
25. Defence counsel submitted that Counts 2 and 3 were bad for multiplicity. Alternatively, there is no evidence that the accused said anything about stopping the complainant from serving the contempt charges on them or perverting the course of justice. They simply asked why he had brought 10 unmarked vehicles to their respective houses on a Sunday and harassed their families, when the charges could have been served during the week at their offices. The complainant and his men provoked the accused to “return the same favour”. The whole incident would not have happened if the complainant had followed proper police protocol and served during normal business hours, or through their supervisors. There was no intention to stop service. They were just showing their frustration. With respect to Count 1, the court should disregard Mase’s evidence. It is inconsistent with the complainant’s evidence, and is just given to support the complainant. He made no mention of the hammer in his statement to police. As for the complainant, he said that Kande had a revolver pistol/handgun and that he found a 9 mm shell. The defence does not dispute that a shot was fired at the material time but it is submitted that the State has not established that it was Kande who fired the shot, anyone of those present could have fired the shot. As for Count 4, Lape made the identification under difficult conditions. Police had directed the lights to be turned off. He could have been mistaken. Even if the court finds Muka was there the case is circumstantial. His evidence as to the distance to the vehicle was confusing. It was impossible for Muka to reach the vehicle in the time indicated.
    
26. Neither party addressed the application of s 7 of the Criminal Code.
    

S 7 OF THE CRIMINAL CODE

27. The State relies on s. 7 (principal offenders) of the Criminal Code against each of the accused in respect of all four counts of the indictment. It provides:
    

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

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

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

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

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

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

(a) committing the offence; or

(b) counselling or procuring its commission.

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

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

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

(b) liable to the same punishment, as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.

28. Pursuant to s. 7 of the Criminal Code criminal responsibility is extended to a person who is a party to an offence. Section 7(1)(a) to (d) deems to be guilty of an offence those persons who actually do the punishable act or omission, who do or omit to do any act for the purpose of enabling or aiding another person to commit the offence, who aid another in committing the offence, or who counsel or procure another to do it. In some cases more than one subsection of s. 7 may be relevant.
    
29. For the purposes of s 7(1)(c) the State must first establish by evidence that is admissible against the accused that a crime has been committed by another person: R v Tovarula [1973] PNGLR 140. The words do not require that the principal offender must be convicted before another may be found liable as a party to an offence: see R v Lopuszynski [1971] QWN 33. It is enough that the commission of an offence by someone is established in the case against the alleged accessory: Borg v R [1972] WAR 194.
    
30. The State must also establish for the purposes of s. 7(1)(c) that the accused knew the essential facts constituting or making up the offence that is being committed or about to be committed, including where relevant the state of mind of the principal offender, and acted with intention to aid him: R v Turan (1952) N211; Tovarula (supra).
    
31. It is not possible to be an aider through an act which unwittingly provides some assistance to the offender: Coney [1882] UKLawRpKQB 30; (1882) 8 QBD 534. To aid means that the person charged as a principle in the second degree “is in some way linked in purpose with the person actually committing the crime and by his words or conduct does something to bring about, or render more likely, the commission of the offence”: R v Tovarula applying R v Russell [1933] VR 59.
    
32. In addition to the intention to aid, there must be aiding in fact: R v Wendo [1963] PNGLR 217.
    
33. Mere presence at the scene of a crime is not of itself sufficient to constitute aiding for the purposes of s. 7(1)(c) of the Criminal Code: Tovarula. In some cases, however, an accused may assist or encourage the commission of a crime by being present. For example, by providing moral support to the primary offender or demonstrating a willingness to assist if required. In other words, presence and wilful encouragement of the commission of the offence will suffice: Tovarula. See also Agiru Aieni v Paul T Tohian [1978] PNGLR 37; Wani v The State [1979] PNGLR 593; Vaii Rocky Maury v The State (2001) SC668.
    
34. It is not necessary, however, that the presence be a strict actual and immediate presence provided that the presence was and remained up to the commission of the offence pursuant to a common design, for example by keeping a lookout, or to aid the escape of the principal offender: Tovarula (supra); Charles Andrew Epei (2019) N7845.
    
35. In summary, to establish liability pursuant to s. 7(1)(c) against each of the accused in this case the State must establish beyond reasonable doubt that: (a) the principal offence was committed; (b) the accused knew that the principal offender intended to commit the offence, including their state of mind; and (c) the accused intentionally assisted or encouraged the principal to commit the offence.
    
36. The term “counsel” is not defined in either the Criminal Code or the Interpretation Act. The plain and ordinary meaning might be found in the context of the section, that is “urged” or “advised” or “solicited”: as stated by Gibbs J in Stuart v The Queen [1974] HCA 54; (1976) 134 CLR 426; see also R v Oberbillig [1989] 1 Qd R 342 considering the equivalent provision in the Queensland Criminal Code. On a charge of being a counsellor, it is not enough to show that the defendant knew that some illegal venture was intended. However, it is not necessary that knowledge of intention to commit a particular crime, which was in fact committed, should be shown. The prosecution must show that the defendant knew that an offence of the kind that was committed was intended and with that knowledge did something to help the offender commit it: Imiyo Wamela v The State [1982] PNGLR 269; Mark Nainas v The State (1998) SC598; Karani and Aimondi v The State (1997) SC540.
    
37. Similarly, to “procure” is “to obtain”, “to bring about”, according to the Oxford Learner’s Dictionary. In considering the equivalent of this provision in R v Adams [1998] QCA 64 the Queensland Court of Appeal said that procuring involves more than mere encouragement, and means “successful persuasion” to do something. There must be a causal link between the procuring and the commission of the offence: see Attorney-General’s Reference (No 1 of 1975) [1975] EWCA Crim 1; [1975] 2 All ER 684.
    
38. If a person wishes to withdraw his involvement in the commission of an offence he must communicate that fact to his or her co-accused and take action to undo the effect of the previous encouragement or participation: Imiyo Wamela v The State [1982] PNGLR 269.
    

IDENTIFICATION EVIDENCE

39. The principles regarding identification evidence are well established. The Court should be mindful of all the inherent dangers and the need for caution before convicting in reliance on the correctness of identification. The Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he or she knows mistakes can be made. When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered: John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153; Jimmy Ono v The State (2002) SC698.
    
40. In assessing the quality of the evidence a court should closely examine all of the circumstances in which the identification was made and critically weigh those factors before relying on the identification evidence. I remind myself that there is always the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken: John Beng (supra).
    
41. Ultimately, the court must be satisfied that the witness is both credible and reliable. Or “honest and accurate” as expressed by the Court in The State v Francis Vau Kamo (2006) N2991. Relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he or she recognised; the length of time that the witness observed the accused (e.g. a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (e.g. was it broad daylight or at dusk or dawn or inside or outside?); the line of sight (e.g. did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?). If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability: see The State v Francis Vau Kamo.
    

PRINCIPLES GOVERNING A CIRCUMSTANTIAL CASE

42. Some aspects of the State’s case are circumstantial. The principles governing such cases are well established. 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, adopting Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108 quoting Peacock v the King [1911] HCA 66; (1911) 13 CLR 619. See more recently Maladina v The State (2016) SC1495. See also The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308):

“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 ... ”.

43. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence: see the comments of the High Court of Australia in De Gruchy v The Queen [2002] HCA 33; 211 CLR 85 at [48] referred to in The State v Epei (2019) N7845. Similarly, the principles applicable in a circumstantial case are no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt: see Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at [2]. This will depend upon whether all of the evidence establishes that the only rational conclusion is the guilt of the accused.
    
44. As above, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: Paulus Pawa (supra). The evidence must be considered as a whole and not by a piecemeal approach to each particular circumstance: Baden-Clay at [46] to [47][1]. The essential elements of the offence must be proved beyond reasonable doubt but it is not necessary for every fact, or every piece of evidence, relied upon to be proved beyond reasonable doubt: Shepherd v R, supra at [6].
    
45. The High Court also observed in Baden-Clay, approved in Roland Tom v State (2019) SC1833 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."
PRELIMINARY FINDINGS OF FACT

46. I found the State witnesses to be honest and reliable. I make these findings having regard to both their demeanour whilst giving evidence as well as the content of that evidence in the context of the evidence as a whole. Their evidence was generally consistent as to the events of that night but not so similar as to suggest that it was in any way fabricated. The fact that witnesses have different recollections of some details, particularly given the traumatic nature of the alleged events, and the lapse of almost seven years is to be expected. The key State witness, Premenga, gave his evidence a direct manner. It was clear that he was traumatised by the events of that night. It is also clear that he simply wishes now to put the events of that night behind him. His frustration is understandable and nothing about his evidence suggested to me that he is anything but honest and reliable. He readily conceded matters about which he could not be sure but was adamant about the key aspects of his evidence.
    
47. The evidence of Thecla Premenga was straightforward and accorded with common sense. She moved to see what was happening at her house, observed the officers on the verandah, including one she recognised, but moved to the back of her house when she heard her 7 year old daughter crying, as any mother would do.
    
48. Mase’s evidence was consistent with Premenga’s in all material respects. Both Premenga and Mase say that Mase went out first and came back in when Premenga went out to meet the men. Patrick did not say the gun was pointed at the right side of his head as submitted by defence counsel. He said it was pointed at the left side of his face. The fact that he said that and Mase said it was pointed to the side of his head is not a material inconsistency in my view. The fact that Mase only saw four men is consistent with the fact that Mase did not have the benefit of the view that Premenga had standing at the door. Nor is the difference in evidence consistent with an attempt to mislead the court or simply support everything that Premenga said. On the contrary the difference is explicable and speaks to his truthfulness. Similarly, the fact that he only heard one shot that night again speaks to his truthfulness. He was not asked to identify the person who pointed the gun at Premenga. He did not know him and dock identification would have had limited value in the circumstances particularly given the lapse of time. To suggest that he is lying when he says he was present during the incident but went to his room afterwards because he was scared fails to appreciate that individuals react differently to stress. My impression of him was of someone who had been traumatised by the events.
    
49. It is well established that the existence of a prior inconsistent statement does not of itself make a witness’s evidence unreliable: Kandakason v The State (1998) SC558. It is a matter to be considered when assessing a witness’s credibility or reliability, if that evidence demonstrates that the witness is unable or unwilling to accurately recall relevant events: Driscoll v R [1977] HCA 43; (1977) 137 CLR 517; R v Salih [2005] VSCA 282; (2005) 160 A Crim R 310). A witness who makes a prior inconsistent statement is not necessarily lying. While dishonest witnesses are more likely to introduce inconsistencies into their stories, truthful witnesses may make mistakes about details (R v Salih [2005] VSCA 282; (2005) 160 A Crim R 310). As the Supreme Court explained in Balbal v The State (2007) SC860:
    

“[Q]uestions of inconsistency do not arise until a witness gives a testimony that directly opposes or contradicts a statement previously given by the witness. Even in that case, that is not conclusive. As long as the Court warns itself of the kind of weight it should place on such evidence, it can still consider the evidence. Thus in our view, a prior statement that omits other evidence but included subsequently in the oral testimony of a witness, does not amount to prior inconsistent statement”.

50. In the circumstances whilst I warn myself that Mase failed to mention that Premenga held a hammer, and that Premenga was assaulted, in his statement to police, it does not alter my finding as to his credibility. I accept that he was traumatised by the events and failed to mention them to police when interviewed. There is evidence from both Premenga and his wife that Premenga was assaulted. I also find on the evidence of both he and the complainant that the complainant did not throw the hammer at any of the five armed men on his verandah. I do, however, prefer the evidence of Patrick and Thecla Premenga to the effect that the incident lasted about half an hour.
    
51. For the reasons outlined below under Count 4 I also find Lape a credible witness. Again his evidence is consistent in key respects with the other State witnesses.
    
52. The evidence of the balance of State witnesses was not in any real dispute.
    
53. Accordingly, I make the following findings of fact.
    

Preliminary Findings of Fact

54. I find that contempt charges were issued by the National Court against Sgt Pokop and ten police officers alleged to have frustrated the execution of a warrant for the arrest of the former Prime Minister, Peter O’Neill. At about 6 pm on Sunday, 19 October 2014 Premenga and CS Barum went to serve the charges on Sgt Pokop at his home at Games Village. They travelled in two to three vehicles with between four and ten men. They were not armed. Pokop refused to accept the charges and followed them up to the car with an armed rifle. They then attempted service on Ela Ravu at his home at Bagita Barracks, who also refused to accept service. They went to serve Henry Naio at his house but he was not present so they left. After debriefing they returned home. Between 7 and 8 pm three motor vehicles came to the complainant’s house. One blocked his driveway, and the others parked on the road beside his residence. Several armed police officers in uniform exited the vehicles. Officers shouted at the neighbours to turn off their lights and go back inside. Five officers led by Sgt Pokop stormed up the stairs to the complainant’s verandah, including Kande, Naio and two others. Someone called for Premenga to come outside. The complainant came to the door. They said they were going to kill him. Kande, who was drunk, punched him hard with a clenched fist to the face. Sgt Pokop pointed an M16 rifle at him. Kande pointed a gun at the complainant’s face. The gun triggered but failed to discharge. Kande pointed the gun up into the air and it discharged into the ceiling. Sometime later a second shot was fired, from an M16 rifle, into the rear driver side tyre of the complainant’s police-issued vehicle, which was parked in the driveway of his house. The whole incident took about half an hour before the accused and other policemen left.
    
55. Whilst I have warned myself about the dangers of identification evidence, I am satisfied beyond reasonable doubt that Sgt Pokop, and the two accused Kande and Naio were present on the verandah of the complainant’s house at the relevant time. The evidence of the complainant as to the facts described and the identities of the accused were both clear and convincing. The circumstances in which the identifications were made were very good. His house is on posts. He was standing at the doorway of the house and Pokop, Naio and Kande were standing 1 to 2 metres away from him on the verandah. He recognised Sgt Pokop, Kande and Naio. He had worked with Sgt Pokop and knew him very well. He was a member of the beat unit in NCD. Whilst the complainant did not know Kande personally, he recognised his face. He knew that he was based at NCD with Sgt Pokop. He had seen him and worked with him. Kande was standing directly in front of him, only 1 to 2 metres away. Naio was 1.5 metres behind Sgt Pokop and Kande at the top of the stairs on the verandah. The complainant had had contact with him as part of his duties and had talked with him. He could see both of them in the 12 volt light overhead on the verandah. Premenga observed both of the accused for an extended period of time, about half an hour. Whilst the complainant may have been traumatised by the events he was not so traumatised that it affected his ability to identify the accused. His evidence as to the identities and conduct of each of Kande and Naio was clear and compelling. He formally identified Naio and Kande in the dock as the persons present at the time of the alleged offences.
    
56. Whilst not necessary to my finding, the identification of Naio is corroborated by Thecla Premenga, who knew the accused well, having lived with him at Gordons Single Barracks. Having heard her evidence and had regard to the photographic evidence, I accept that she had the opportunity to observe him on the verandah. Both her evidence and the evidence of Mase corroborates that the light on the verandah was on. The State’s evidence excludes the possibility that Naio came to the house later that night after the incident.
    
57. I am also satisfied beyond reasonable doubt for the reasons outlined under Count 4 that Muka was at the complainant’s home that night, and that he was armed.

COUNT 1: ATTEMPTED MURDER

58. Section 304 creates the offence of attempted murder:
    

A person who–

(a) attempts unlawfully to kill another person; or

(b) with intent unlawfully to kill another person does any act, or omits to do any act that it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life,

is guilty of a crime.

59. The State did not specify under which subsection of s 304 it proceeded but in either case the key question is whether the accused intended to kill the complainant at the material time, or whether they aided, encouraged or procured another to kill the complainant.
    
60. I find that based on the evidence of the four witnesses present that evening that a gun was fired inside the house, which is supported by photographic evidence taken the following day. Defence counsel does not dispute that a gun was discharged into the ceiling that night but submits that anyone present could have fired it and forensic evidence is required to link the firearm to Kande. I do not agree. There is no requirement that ballistics evidence is required before a person can be convicted of a crime involving a firearm. Whatever the evidence, it must establish the conduct of the accused to the requisite standard. This is a case where the complainant is able to identify the person who pointed the gun at him. It would have strengthened the case against Kande if the evidence had shown that the bullet/shell matched a firearm in his custody or control but it is not essential.
    
61. The case is also distinguishable on its facts from the decision given by the Supreme Court in Martin Tukai and Vincent Chare v The State, unreported, 1 November 2017, relied upon by the defence. In that case identification evidence was poor. It was dark, there was no evidence as to the conditions, including lighting, and no evidence as to who identified the accused, the distance between them, or the mode of identification. There were multiple potential shooters, no apparent motive on the accused’s part for the killing, and ballistics evidence, which was available, did not match.
    
62. For the reasons stated above, the situation here is very different.
    
63. I am satisfied beyond reasonable doubt that it was Kande who pointed a hand gun at the face of the complainant. I find the complainant’s evidence to be both credible and reliable. The identification evidence was strong. The fact that he confused a revolver with a pistol does not establish that he is either unreliable or untruthful given the stressful events of that night. The essential point is that a hand gun was pointed at his face by Kande, that it triggered and failed to discharge, before being fired into the ceiling.
    
64. I reject the suggestion that the gun discharged during the course of a scuffle. I reject the submission that the complainant threw a hammer at any one of them, including Kande. It was not submitted and the State’s evidence excludes the application of s 269 of the Criminal Code.
    
65. I do think it is very possible that Kande intended to kill the complainant at the time the gun triggered but failed to discharge. He was drunk, angry and aggressive. He pointed a loaded gun at the head of the complainant, whilst words were said by someone about killing the complainant. That of itself is highly significant. In addition, the gun was triggered albeit failed to discharge. On their face those matters point to an intention to kill on the part of Kande.
    
66. What happened next is also significant, however. Immediately following the discharge, Kande pointed the gun upwards, and it fired into the ceiling. There are in my view at least two possible hypotheses here. The first is that Kande intended to kill the complainant and deliberately pulled the trigger whilst pointing the gun at the complainant’s head but for some reason the gun failed to discharge until he pointed it upwards to check if it was working. The second is that he intended to threaten the complainant by pointing the gun at his head and that in his drunk and aggressive state he negligently pulled the trigger and the gun failed to discharge until he pointed the gun upwards and away from the complainant.
    
67. The fact is that Kande could have fired immediately again at the deceased if he wanted to kill him. It is entirely possible that at the time the gun first discharged he intended to kill the complainant but that the malfunction shook him into his senses but I cannot be satisfied of that beyond reasonable doubt. It is also relevant here that it appears on the evidence that Kande remained present for some time after the shot was fired, i.e. he had plenty of opportunity to kill the complainant during that time if that was indeed his intention. Intention may be inferred by examining the accused’s conduct prior to, at the time and subsequent to the act constituting the offence: The State v Raphael Kuandande [1994] PNGLR 512; Ikalom v State (2019) SC1888. In all the circumstances the State’s evidence has failed to exclude the alternative hypothesis. As such I cannot be satisfied beyond reasonable doubt that the accused Kande attempted to kill the complainant that night.
    
68. With respect to the liability of Naio and Muka pursuant to 7(b), (c) and (d) of the Criminal Code, the State needed first to establish that the offence had been committed by the principal and that Naio and Muka aided, counselled or procured him to commit the offence, with the knowledge that he intended to kill the complainant. As above, the State cannot establish the offence against Kande beyond reasonable doubt for this purpose.
    
69. Accordingly all three accused are acquitted of Count 1 in the indictment.
    

COUNT 3: ATTEMPT TO OBSTRUCT THE COURSE OF JUSTICE

70. Section136 of the Criminal Code creates the offence of attempting to pervert justice.

A person who attempts, in any way not specially defined in this Code, to obstruct, prevent, pervert or defeat the course of justice is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding two years.

71. The court was not addressed by either party on the elements of the offence, or applicable case law.
    
72. The offence is committed where an accused:
    
    1. does an act or embarks upon a course of conduct;
    2. which has a tendency to; and
    100. is intended to obstruct, prevent, pervert or defeat;
    4. the course of justice.
       

R v Vreones [1891] UKLawRpKQB 14; (1891) 1 QB 360; R v Rogerson [1992] HCA 25; (1992) 174 CLR 268; State v Kiliki [1990] PNGLR 216.

73. The contempt charges have not been produced but it is not in dispute and I have found that the National Court issued contempt charges against Sgt Pokop and nine other officers alleged to have prevented the service of an arrest warrant on the former Prime Minister. It is not clear whether the charges alleged civil or criminal contempt. Given the nature of the allegation underpinning the contempt charges it might be assumed that the charges are criminal in nature but I cannot make any determinative finding about that and it matters not.
    
74. Allegations of perverting the course of justice often arise in the context of criminal proceedings but it is not necessarily so. The course of justice includes the proceedings of judicial tribunals, that is tribunals having authority to determine the rights and obligations of parties and having a duty to act judicially. The course of justice begins with the filing or issue of process invoking the jurisdiction of a court or judicial tribunal or the taking of a step that marks the commencement of criminal proceedings: per Mason CJ in R v Rogerson [1992] HCA 25; (1992) 174 CLR 268. As Brennan and Toohey JJ explained in that case (emphasis mine):
    

“Justice, as the law understands it, consists in the enjoyment of rights and the suffering of liabilities by persons who are subject to the law to an extent and in a manner which accords with the law applicable to the actual circumstances of the case. The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case (19) Reg. v. Todd (1957) SASR, at p 328. The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice.”

75. I emphasise here that that is not to say that the offence might not lie in appropriate cases where a person intends to prevent the possible institution of judicial proceedings (e.g. criminal proceedings). This issue is discussed in detail in Rogerson, and has been considered in this jurisdiction in Kilikili and State v Kembu [1996] N1404. See also R v Rafique [1993] 4 All ER 1. That is not in issue in this case, however. As above, it is clear that contempt proceedings had been initiated by the court itself.
    
76. An attempt to pervert the course of justice is a substantive and not an inchoate offence. It consists of conduct which has the tendency and is intended to pervert the course of justice and it is irrelevant whether or not it did in fact frustrate, or defect the course of curial proceedings: R v Machin (1980) 71 Cr App R 166, at p 170; Rogerson.
    
77. As Brunton J explained in State v Kiliki [1990] PNGLR 216 (emphasis mine):

“The essence then of the offence, whether its facts are rooted in time before a trial, that is, in the police investigation, or are part of the trial-process such as interfering with witnesses, or trying to persuade a judge or magistrate to do something, or not to do something, is that the conduct might lead to a miscarriage of justice, whether or not a miscarriage actually occurred. There must be an act which attempts to "turn aside" the course of justice, and the act must also have that tendency.”

78. The State have used the term “obstruct” instead of pervert. No submissions about the effect of this, if any, have been made by either party. It makes no material difference but to my mind “obstruct” is particularly apt in this case. “Obstruct” means block, prevent, hinder or make difficult: Oxford Dictionary Online; Oxford New English Dictionary of English (1998). For obvious reasons, the persons named in the charges could not be dealt with by the court until they were served. Any attempt to block, prevent, hinder or make more difficult the service of the contempt charges had a tendency to obstruct – block, prevent, hinder or make more difficult - the contempt proceedings themselves and thus the course of justice. A police officer would understand that better than anyone.
    
79. I am satisfied beyond reasonable doubt that Kande and Naio both threatened the complainant with the intention of stopping service of the contempt charges and obstructing the course of justice. Kande did so directly by punching the complainant and threatening him with a weapon whilst threats to kill the complainant were also spoken, for the purposes of s 7(a), and by encouraging and aiding those present to commit the offence for the purposes of s 7(c). Whilst he was intoxicated he was not so intoxicated that he lacked the requisite intention.
    
80. Naio was not armed and stood behind Pokop and Kande but he too directly threatened the complainant by his immediate presence in the above circumstances for the purpose of s 7(a) of the Criminal Code. Furthermore, his presence was intended to and did aid through encouragement the commission of the offence by both Pokop and Kande for the purposes of s 7(c).
    
81. I note again here that the evidence of both the presence and conduct of Naio and Kande was made in circumstances which allowed the witness to observe the accused, in conditions of light, up close, and for an extended period.
    
82. Whilst Muka was not immediately present on the verandah I am satisfied beyond reasonable doubt that his presence at the complainant’s house that night was deliberate and made in full knowledge of the threats that Pokop, Kande and Naio intended to make against the complainant, the purpose of which was to stop or hinder service of the contempt charges, and with the intention on his part to encourage them in the commission of the offence by providing moral support and a readiness to assist. The State has excluded any rational inference that Muka was there unwittingly. It is implausible that any police officer who attended the residence of the officer responsible for serving the contempt charges, in the circumstances described, did not go there with the full knowledge and intention of encouraging and assisting Sgt Pokop, Kande and Naio to threaten the complainant with a view to stopping service of the charges. I am further satisfied beyond reasonable doubt that his presence was intended and did so encourage Pokop, Kande and Naio to commit the offence for the purposes of s 7(c). That was why they took a large group of armed officers with them in the first place, to commit what was clearly a planned offence.
    
83. I also find that by his armed presence amongst such a large number of officers at the complainant’s house Muka directly participated in the threatening behaviour intended to stop service of the contempt charges and obstruct justice for the purposes of establishing his participation in the offence pursuant to s 7(a).
    
84. I reject the submission that the accused were just expressing their frustration at being served on a weekend, or at home, or instead of through their superior officers. I don’t accept that the complainant and his men “went with ten vehicles” and harassed the families of the accused. I accept the description given by the complainant as to the circumstances of attempted service. I have taken into account statements made at the time to the effect that “we are not criminals”, and are “small policemen just like you, why are you coming with 10 vehicles looking for us”. Those statements only strengthen my view that the accused considered that they should not face charges at all. Moreover, this was not merely an exercise in frustration. This is not how officers concerned about breaches of protocol behave. They do not coordinate three vehicles and marshal several armed police officers to storm another officer’s home at night, in the presence of his family, demanding that neighbours turn off their lights, before threatening him with weapons, threats of death and actual assault.
    
85. I reject the submission that because they did not use any words directly saying that they wanted to stop service of the charges or obstruct the course of justice that they did not have that intention. Their intention may be inferred from their conduct.
    
86. I find beyond reasonable doubt that each of the accused embarked upon a course of conduct, namely the threatening and intimidation of the complainant, which had a tendency to obstruct and was intended to obstruct the course of justice. This was a clear and deliberate attempt to stop or hinder the service of the contempt charges with a view to obstructing the court’s adjudication of them.
    
87. The intention to prevent service of the charges by Premenga alone was sufficient to establish the offence. It would obstruct, hinder or make difficult the contempt proceedings. I also make it clear, however, that I am satisfied beyond reasonable doubt that the intention of the accused was not just to stop Premenga from serving the charges but to stop or hinder service of the charges by anyone, and furthermore to send a strong message to any officer concerned that the charges should not be pursued.
    
88. As it happened the offence had its intended effect. Premenga did not go on to serve the charges. For the reasons outlined above, neither that nor the ultimate frustration of the service of the charges, or the proceedings themselves, was required to establish the offence.
    
89. The indictment avers that the threats to injure the complainant were intended to “prevent from serving contempt of court charges against them”. Charges were to be served on Pokop and Naio but not on Kande and Muka. Neither party addressed the issue, or the requirements of s 7 in this regard.
    
90. I am satisfied beyond reasonable doubt that Naio intended to prevent the service of the charge on himself personally and anyone else against whom the charges were issued. It appears from his statements that Kande may have believed he was to be served. Regardless of that, or whether or not Kande or Muka were named in the contempt charges, I am also satisfied beyond reasonable doubt that Kande and Muka aligned themselves with those to be served, that is with “them” for the purposes of the indictment. Alternatively, they each aided (Pokop and) Naio in that regard.
    

COUNT 2: THREATS

91. Section 359 of the Criminal Code provides that:
    

A person who threatens to do any injury or cause any detriment, to another person with intent–

(a) to prevent or hinder the other person from doing an act that he is lawfully entitled to do; or

(b) to compel him to do an act that he is lawfully entitled to abstain from doing,

is guilty of a misdemeanour.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.

92. It follows from the above that I am satisfied beyond reasonable doubt that Kande and Naio each personally threatened the complainant with injury to prevent or hinder him from doing that which he was lawfully entitled to do, namely serve the contempt charges issued by the court in accordance with his duties. Furthermore, that Kande, Naio and Muka aided each other to do so.
    
93. I raised the issue of s 16 of the Criminal Code with the parties at the close of the State case. Defence counsel submits that Counts 2 and 3 are bad for multiplicity and that the State was required to elect which charge to proceed with.
    
94. Multiplicity must not be confused with duplicity of charges. The rule of duplicity prohibits the simultaneous charging of several distinct and unrelated crimes in one indictment. It is also defined as the joining in a single count of two or more distinct and separate offences: Kasen v The State (2001) N2133.
    
95. Whilst it is clear that the indictment contains several distinct indictable offences, they are related and arise out of the same acts or omissions, or a serious of acts done in the prosecution of a single purpose, and are properly joined for the purpose of s 531 of the Criminal Code, which was not raised by defence counsel.
    
96. I am unable to see any prejudice to the accused in their defence as a result of the fact that the indictment contained the two counts. The prejudice identified by defence counsel is double punishment and not any unfairness in the conduct of the trial itself. It is not suggested, and the accused cannot have been under any misapprehension as to the allegations against each of them nor did the inclusion of both counts unnecessarily complicate the issues at trial.
    
97. The issue here is not duplicity but multiplicity as governed by s 16 of the Criminal Code, which provides:
    

PERSON NOT TO BE PUNISHED TWICE FOR SAME OFFENCE.

(1) Subject to Subsection (2), a person cannot be punished twice under the provisions of this Code or under the provisions of any other law for the same act or omission.

(2) Subsection (1) does not apply where an act or omission is such that by means of it the offender causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing the death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission.

98. Where the issues arises, the court should only determine whether there is a violation of s 16 at the close of the evidence: R v Yofia Abone [1967-1968] PNGLR 277 at 282. To do so otherwise is premature.
    
99. The proper test to be applied under s. 16 of the Criminal Code is whether the same wrongful act or omission, which previously resulted in conviction and punishment, was the central theme, the focal point or the basic act or omission of the alternative offence: Thomas v The State [1979] PNGLR 668; [1979] PNGLR 140.
    
100. In that case the majority (Per Prentice C.J. and Andrew J., Pritchard J. dissenting.) held that entry of a conviction on the charge of unlawful carnal knowledge, following conviction for rape amounted to double punishment for the same act or omission within the meaning of s. 16 of the Criminal Code and that the conviction should be quashed. In approving the remarks of Minogue J in Gaiari-Ganereba v. Giddings, [1967-68] PNGLR 346, at p. 355, Chief Justice Prentice C.J expressed the view that Section 16 of the Criminal Code is to be read as intending that the entry of a particular conviction, of itself, may amount to a punishment, where it can clearly as a matter of English meaning, be seen to punish; a second conviction must be considered a punishment at least so far as it becomes established on a person’s criminal record.
     
101. The Court approved the approach of the Court of Appeal of England in R v Cowdell [1962] Crim.L.R. 262, as applicable to the conditions of Papua New Guinea, whereby the second count is treated as an alternative and the jury, or for our purposes, the trial judge, makes findings on the second charge but without proceeding to conviction, such that he/she is discharged from giving a verdict on the second and alternative count. The second count is in effect left alive such that in the event of a successful appeal against the more serious charge it is open to the Supreme Court to substitute a verdict on the lesser charge. See also Kasen (supra).
     
102. The two offences in this case are actually quite distinct. The gravamen of the offence of perverting the course of justice lies in the intention to prevent justice being administered. Threatening conduct is much wider and extends to threating injury to a person to do anything they might lawfully be entitled to do. The issue arises in this case because of the way the State has particularised the charges.
     
103. It is unclear why the State included both charges in the indictment. Its submissions do not assist in this regard. Alternatives are usually contained in an indictment when the State is unsure whether it can succeed on the more serious charge. It may be that Count 2 was included as an alternative in the event that the evidence did not establish that the accused intended to obstruct services of the contempt charges in a general sense but only that they intended to stop Premenga from doing so.
     
104. As above, an attempt to stop even Premenga alone from serving the charges was an attempt to obstruct the course of justice. Furthermore, I have already found that the actions of the accused were intended to send a clear message to anyone concerned with the service of the contempt charges not to do so.
     
105. Perhaps the State anticipated that the accused would argue that the accused objected only to service of the charges by the complainant personally instead of through their superior officers, or to them being served at their homes instead of at their places of work. Putting aside the fact that these were not administrative or disciplinary charges but charges issued by the court, for the reasons set out above I have already rejected these submissions.
     
106. The “act” to which s.16 refers implies that the act must take place at the same time and place constituting the two different offences: State v Gende [1980] PGNC 13; N247 per Kapi J.
     
107. In this case the act (or acts) is the threatening of injury, which takes place at the same time and place that constitutes the two different offences in Counts 2 and 3. Accordingly, it is my view that whilst the elements have been established beyond reasonable doubt it would contravene s 16 to enter a conviction on both.
     
108. It is clearly in the interests of justice in such circumstances that the court proceed to convict on the most serious charged indicted. Attempting to obstruct the course of justice is not only the more serious charge but the more appropriate charge given the actions of the accused as serving police officers.
     
109. Accordingly, and adopting the approach outlined in Thomas, Counts 2 and 3 should be regarded as alternatives. Whilst I make findings that both counts have been established, I do so without proceeding to conviction of the accused on Count 2 on the indictment.
     

COUNT 4: WILFUL DAMAGE

110. To establish the offence of wilful damage under s 444(1) the State must prove that the accused:
     
     1. Wilfully
     2. Unlawfully
     100. Destroys or damages any property.
          
111. The State chose only to proceed under s 444(1). It did not charge that the offence occurred in the night for the purpose of invoking 444(2), attracting a higher penalty.
     
112. The evidence establishes beyond reasonable doubt that a person wilfully damaged the property particularised in the indictment, namely the vehicle ZPD-013 under the care of Patrick Premenga. The only question is whether that person was Muka.
     
113. I accept the evidence of Willie Lape that it was Muka who called out to him that night and that he saw Muka cross over to the complainant’s house. The identification evidence was strong. It was a case of recognition. Lape knew Muka well as they had lived together at Gordon’s single barracks for at least two years about three years earlier. He recognised both his face and his voice. There was bright lighting from which to see Muka’s face from the security light on the side of the complainant’s house as well as a light from under the house. Lape too had lighting at his house. I accept Lape’s evidence, which I have considered in light of the photographic evidence, that Muka was only three to four metres from him at the time. His evidence as to the distance between himself and Muka was very clear in that respect. He identified Muka in the dock.
     
114. I also accept Lape’s evidence that he saw Muka cross over to the complainant’s residence towards the rear of the vehicle on the right side, and that at the time he was carrying an M16 rifle, and that 3 to 4 seconds later he heard a gunshot immediately followed by the alarm and lights of the vehicle go off. The direction of the shot indicated by Tapungu in the sketch map, who is not an expert in firearms, and did not examine the entry site in any detail, is of no probative value.
     
115. There is a very strong inference that it was Muka who shot the tyre that evening. It is almost irresistible. To establish it as the only rational inference, the State needed to exclude the possibility that one of the other officers present on or near the road or the driveway shot the tyre. Lape was an honest witness but his evidence as to where those other officers were in relation to the vehicle was not clear. In all the circumstances, whilst I think it is highly likely that it was Muka who shot the tyre that night the State has not excluded beyond all reasonable doubt the possibility that it was another officer.
     
116. The next question is does it matter whether or not it was Muka? That depends on whether or not the State has established beyond reasonable doubt that the accused set out with a common intention to wilfully damage a vehicle, or some property, in the possession of the complainant for the purposes of s 7, or aided, counselled or procured the shooter to do so. Again, it is entirely possible they did just that as part of their efforts to threaten the complainant and obstruct justice. In all the circumstances, however, I cannot exclude the possibility that the shooter acted of his own volition to damage the vehicle.
     
117. To my mind, however, there is a compelling argument that s 8 of the Criminal Code applies in this case. It provides:
     

OFFENCES COMMITTED IN PROSECUTION OF COMMON PURPOSE
Where–

(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,
each of them shall be deemed to have committed the offence.

118. To justify a conviction pursuant to s 8 there must be proof beyond reasonable doubt that there was a common intention to obstruct the course of justice and/or threaten to injure the complainant, and that the wilful damage was a probable consequence of their common purpose. As above, I have found that there was a common intention on the part of the accused, and others who attended with them that night, to obstruct the course of justice. In my view it was clearly a probable consequence of the prosecution of that common purpose in the circumstances described that one of them would wilfully and unlawfully cause damage to property.
     
119. The State did not rely on s 8. I have seriously considered whether I should convict each of the accused in the circumstances. I thought I had raised s 8 with counsel but I don’t have a note of that and neither party addressed it in their submissions. In the absence of argument, I will reluctantly give the accused the benefit of the doubt and acquit each of them of Count 4 in the indictment.
     

Verdict

120. Each of the accused are acquitted of Count 1, attempted murder, and Count 4, wilful damage. I discharge myself from giving a verdict on the alternative charge under Count 2. I find each of the accused guilty of Count 3, attempting to obstruct the course of justice.

Verdicts accordingly.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Jopo Lawyers: Lawyer for the Accused

[1] Applying R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at 638 [48]. See also Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 535; [1984] HCA 7.