N9923

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 408, 409, 410, 411, & 412 OF 2019

THE STATE

V

HUGO AMBANE &
TELIS TUI & GRAHAM HANGUAI & MARCUS NIMIHEAU &TONY KERUA.

Wewak: Miviri J
2022: 16th June ;14th September

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Trial – Severe Gunshot Wound Left Buttocks – Loss of Blood Death Resulting – Closure of State Case – No Case Submission – Principles of – Primae Facie – Question of Law – No Real Weighing – Accused in Vehicle Gun Discharged from – Three Shots Fired – Intent to Cause GBH – Death – Application Dismissed – Case to Answer.
Facts
Five Accused were policeman who discharged a gun that hit the deceased in the buttock area from which he bled to his death. They aided and abetted each other causing him Grievous Bodily Harm from which he died.
State case close
No case application.

Held
Question of Law
Death from Gunshot
Accused in vehicle gunshot from
Grievous Bodily Harm
Death
Case to Answer five Accused.

Cases Cited: 
State v Paul Kundi Rape [1976] PNGLR 96. 
The State v Roka Pep [1983] PNGLR 19.

Counsel:

F.K. Popeu, for the State
A. Kana, for G. Hanguai
J. Javapro, for Rest of the Defendants
		
RULING
15th September, 2022

1.	MIVIRI J: 	This is the ruling on the application that the accused have made after the closure of the State case charging each of them with murder pursuant to section 300 (1)(a) of the Criminal Code Act.

2.	Which section is as follows:

(1)	Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–

(a) 	if the offender intended to do grievous bodily harm to the person killed or to some other person;

(b) 	if death was caused by means of an act–

(i) 	done in the prosecution of an unlawful purpose; and
(ii) 	of such a nature as to be likely to endanger human life;
(c) 	if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–
(i) 	the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) 	the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) 	if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);
(e)	 if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).
Penalty: Subject to Section 19, imprisonment for life.

(2)	In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3)	In a case to which Subsection (1) (b) applies, it is immaterial that the offender did not intend to hurt any person.

(4)	 In a case to which Subsection (1) (c), (d) or (e) applies, it is immaterial that the offender–

(a) 	did not intend to cause death; or
(b) 	did not know that death was likely to result.

3.	And the facts asserted invoking the charge are that they individually and severely on the evening of the 26th of August 2018 at about 6.00pm were in a vehicle a Toyota Landcruiser Utility belonging to a logging company. And they were travelling along the Yawasoro Police Barracks near the Vocational School and passed a group of youths who were sitting on the side of the road. They turned the vehicle around and went to check the youth. For a suspect of wounding a relative of Marcus Nimiheau if he might be amongst the group. As they came back, they called out Police, Police, do not run. But the youths got up and ran. The deceased Gabriel Kumasi was one of the Youths as they ran one Graham Hanguai discharged three shots from the Police issued weapon. One of the shots hit the deceased in the thigh and he fell down. He was taken to the hospital but died due to blood loss that night. A medical examination showed deceased suffered severe gun shot injuries and loss of blood. He died as a result of the shot by Graham Hanguai who was aided and abetted by the others. And section 7 covered them because they all acted together with the intent to cause grievous bodily harm when he was shot.

4.	In its endeavour to prove the case against the five accused, the State called four witnesses on oath, Zachary Hakaure, Jethro Singut, Adam Kosek, and Joshua Kosek. Including the tender of the medical report under hand of Doctor Jimmy Kambo, exhibit P1.

5.	Prima facie the evidence called in summary is that Gabriel Kumasi died as a result of gunshot injury to the left buttock from which he bled to his death. He suffered that injury from a gunshot that was fired from the Toyota Land cruiser white in colour on which were the five accused who were picked up by Zackary Hakaure on the 26th of August 2018. One of the accused was in the cabin with the driver. The rest were at the back of the open back white Toyota Landcruiser. And the gun discharged was a police issued weapon in their possession by one of them from the back tray. It was a grievous bodily injury that led to his death.

6.	There was evidence of the death of the deceased immediately after the vehicle that the five Accused were on came to where the deceased was. He died as a result of gunshot fired from that vehicle from the back tray. And that vehicle went and picked the body and took it to the hospital where it was pronounced dead.

7.	Prima facie this is the evidence against the five Accused in the matter. Could they be individually and severely lawfully convicted of the indictment of murder pursuant to section 300 (1) (a) of the Criminal Code Act. Because that is what it is, it is really a question of law as a man can only be tried once for the allegation levelled against him, not twice. Therefore, all weighing of the evidence which including distinguishing evidence, comparing evidence as to which is reasonable or not, believable, or not will come at the end after all the evidence is in and completed. The invitation by both defence counsel is not the law in this regard. What they are inviting is to distinguish evidence, weigh the evidence which is clearly not the law. It will not be acceded to by the authority of State v Paul Kundi Rape [1976] PNGLR 96. 

8.	Which views are firmed out in The State v Roka Pep [1983] PNGLR 19 that there is a discretion to weigh out the evidence, but this is in very clear case where the evidence is so lacking in credibility, has been so tainted that no reasonable tribunal of fact will return a verdict on its basis. It has been tarnished by cross examination that no reasonable tribunal would lawfully convict on the basis of it. Is that the case here I ask myself to invoke my discretion to stop the case? Because the defendant does not carry the burden nor is he obligated to prove his innocence. It is my view prima facie that there is a case lawfully upon which the five accused can be convicted of the indictment laid pursuant to section 300 (1) (a) of the Criminal Code. The application fails against all Accused.

9.	It is without merit and must be dismissed. There is a case to answer against all the five Accused named on indictment of the charge preferred all individually and severally of murder pursuant to section 300 (1) (a) of the Criminal Code.

Ordered  Accordingly.

_________________________________________________________________
Public Prosecutor:  Lawyer for the State	
Public Solicitor: Lawyer for G. Hanguai
JPJ Lawyers: Lawyer for four Defendants