N10420
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 1301 & 1302 OF 2022

THE STATE

V

LOHIA BOE SAMUEL & FABIAN HERA

Waigani: Cannings J
2023: 10th, 11th, 14th, 26th July

CRIMINAL LAW – wilful murder, Criminal Code, s 299(1) – two co-accused – elements of offence – whether first accused killed the deceased – whether second accused aided or assisted first accused – Criminal Code, s 7.

The two accused were charged with one count of wilful murder under s 299(1) of the Criminal Code arising from an incident in a restaurant in which a man, who was a friend of the two accused and seated at a table with them, was shot dead. The State’s case was that the first accused did the acts constituting the offence by unlawfully firing one shot with his pistol into the neck of the deceased at close range, killing him almost instantly, with the intention of killing him. The State alleged that the second accused aided and assisted the first accused and was therefore also guilty of the offence by virtue of s 7(1) of the Criminal Code. The State relied on the expert evidence of two witnesses, the doctor who conducted the post-mortem investigation and a police firearms expert, to argue that the person who fired the shot had to be the right of the deceased, who was seated against a wall, and the only person that could have been was the first accused. The State argued that the conduct of the first accused after the shot was fired was consistent with his guilt; and that the evidence of the two accused should be rejected. The State argued for application of the principles of circumstantial evidence: that the only reasonable inference was that the first accused fired the pistol at the deceased with the intention of killing him. The State argued that if the court were not satisfied with the element of intention to kill, there was at least an intention to cause grievous bodily harm, in which case a verdict of guilty of murder could be entered under s 539 of the Criminal Code. Each accused gave sworn evidence. The first accused denied any involvement in the death of the deceased. The second accused testified that the deceased got the pistol from the first accused’s bilum, which was on the table, and started playing with it, and he responded by telling him to put the gun away and rising from his seat and lunging towards the deceased and he made contact with the deceased’s hand holding the pistol, when it fired. He relied on the defence of accident under s 24(1)(b) of the Criminal Code.

Held:

(1)	Under s 299(1) of the Criminal Code the offence of wilful murder has three elements:

•	the accused killed the deceased;
•	the killing was unlawful; and
•	the accused intended to cause the death of the deceased.

(2)	To prove a case based on circumstantial evidence the State must prove that the only reasonable inference to draw from the proven facts is that the accused committed the acts constituting the offence.

(3)	The facts proven included that the deceased was shot at close range by one or more of three persons (the first accused, the second accused and the deceased) and that he died almost instantly and that the first accused behaved according to his evidence and that the second accused behaved according to his evidence. 

(4)	The guilt of the first accused was not the only reasonable inference to draw from the proven facts. 

(5)	It was not proven that the first accused killed the deceased. He was not guilty of wilful murder and not guilty of any other offence.

(6)	It was not proven that the second accused killed the deceased. If it were proven that he killed the deceased, the defence of accident under s 24(1)(b) of the Criminal Code applied. He was not guilty of wilful murder and not guilty of any other offence.

Cases Cited

The following cases are cited in the judgment:

Anide v Denehy [1973] PNGLR 215
Devlyn David v The State (2006) SC881
Namaliu v The State (2021) SC2126
Paulus Pawa v The State [1981] PNGLR 498
R v Ulel [1973] PNGLR 254

Counsel

H Roalakona, S Suwae & D Dusava, for the State
E Sasingian, for the First Accused
F N Kirriwom, for the Second Accused

26th July, 2023

1.     CANNINGS J: The two accused, Lohia Boe Samuel (first accused) and Fabian Hera (second accused) are each charged with one count of wilful murder under s 299(1) of the Criminal Code arising from an incident on the evening of Friday 11 March 2022 at Fusion 2 restaurant, Waigani, in which Robert Jerry (the deceased) was shot dead. 

2.    The first accused was at the time, and still is, the member for Moresby North West Open in the National Parliament. The second accused was at the time, but is no longer, a member of the first accused’s personal staff. The deceased was well known to, and a friend of, both accused. He had been an election co-ordinator for the first accused since the 2017 general election. 

3.     The State’s case is that the first accused did the acts that constitute the offence of wilful murder by unlawfully firing one shot with his pistol into the neck of the deceased at close range, killing him almost instantly, with the intention of killing him. 

4.     The State alleges that the second accused aided and assisted the first accused and is also guilty of wilful murder by virtue of s 7(1) of the Criminal Code. 

5.    The State relies on the expert evidence of two witnesses, the doctor who conducted the post-mortem investigation and a police firearms expert, to argue that the person who fired the shot had to be the right of the deceased, who was seated against a wall, and the only person that could have been was the first accused. The State argues that the conduct of the first accused after the shot was fired is consistent with his guilt; and that the sworn evidence of the two accused should be rejected. 
 
6.    The State argues for application of the principles of circumstantial evidence and that the only reasonable inference to be drawn from the proven facts is that the first accused fired the pistol at the deceased with the intention of killing him. 

7.    The State argues that if the court is not satisfied with the element of intention to kill, there was at least an intention to cause grievous bodily harm, in which case a verdict of guilty of murder could be entered under s 539 of the Criminal Code. 

8.     Each accused gave sworn evidence. The first accused denied all involvement in the death of the deceased. The second accused testified that the deceased got the pistol from the first accused’s bilum, which was on the table, and started playing with it, and he responded by telling him to put the gun away and rising from his seat and lunging towards the deceased and he made contact with the deceased’s hand holding the pistol, when it fired. He relies on the defence of accident under s 24(1)(b) of the Criminal Code.

UNDISPUTED FACTS

9.     A number of undisputed facts have emerged from the evidence:

•	The incident occurred at about 7.00 pm on Friday 11 March 2022. The deceased and the two accused were seated at a table in a far corner of the restaurant. As you enter through the door, you turn left and head to the corner. The deceased was seated on a couch that was against the wall. The two accused were seated on a couch along the opposite side of the table. At one end of the table and couches was a floor-to-ceiling glass window. The other end of the table was open, so that it was one-way-in and one-way-out to enter or exit the couches. 

•	One shot was fired at close range into the deceased from a licensed Glock 19 pistol owned by the first accused. It penetrated his neck below the right ear lobe and followed a downward trajectory, through the spinal column at the third cervical vertebrae, and exited through the left upper back near the shoulder/clavicle. The bullet wound caused his death.

•	Immediately after the shot was fired the first accused shouted “Fabian, why the fuck did you do that?” He shouted it three times.

•	Police were alerted and attended the scene soon after the incident. Amongst them were State witnesses Sergeant Nei Pige, Sergeant Samuel Koy and First Constable Yaku Gwampom.

•	Ambulance personnel also attended the scene soon after the incident. Attempts to save the deceased failed and he died at the scene. 

•	The restaurant was not crowded. Only a handful of other people were inside, including the manager and some staff and several restaurant patrons. 

•	Two of the restaurant patrons who were seated around the table next to the table at which the accused and the deceased were seated, Amanda Maino and Daniel Oaisa, gave evidence. They were seated with their friend, Lyn, when the pistol was fired. Ms Maino was shocked, stood up, checked herself and called the ambulance. Mr Oaisa was also shocked, stood up, checked himself and saw the pistol unattended, picked it up and went towards the kitchen and “cleared” it. He is familiar with firearms and familiar with the Glock 19 pistol. He phoned the OIC of the Homicide Squad to tell him what happened.

•	The first accused left the restaurant soon after the incident and returned an hour later, by which time the police and ambulance personnel were present. The second accused remained in or right outside the restaurant until the police arrived. Both accused cooperated with the police and gave their contact numbers. They remained cooperative with the police at all times. 

•	In his police interview the first accused denied all involvement in shooting the deceased.

•	The second accused in his police interview gave an account of the incident that was generally consistent with his sworn evidence: that the pistol went off after he lunged towards the deceased who had got it out of the bilum and started playing with it and pointed it in his direction. 

ISSUES

10.     The offence of wilful murder is created by s 299(1) of the Criminal Code and has three elements. The prosecution has the onus of proving beyond reasonable doubt that:

1.	the accused killed the deceased;
2.	the killing was unlawful; and
3.	the accused intended to cause the death of the deceased.

11.    As it is the State’s case that the first accused fired the shot that killed the deceased, the critical question is: did the first accused kill the deceased? 

12.     If that is answered yes, the court will then consider the other elements of the offence: was the killing unlawful? did the first accused intend to kill the deceased? If he did not intend to cause death of the deceased, did he intend to do him grievous bodily harm? 

13.     If the first accused is found guilty of wilful murder or some other offence such as murder, it will then be necessary to consider whether the second accused is guilty of the same offence by reason of s 7 of the Criminal Code.

14.     If the State does not prove beyond reasonable doubt that the first accused killed the deceased, he will be not guilty of wilful murder or any other offence as the only alternative verdict argued by the State is murder and an essential element of murder is that the accused killed the deceased.

15.     The criminal responsibility of the second accused will then be considered, bearing in mind that the State’s case against the second accused depends largely on its case against the first accused. 

DID THE FIRST ACCUSED KILL THE DECEASED?

16.     Resolution of this issue requires a:

•	summary of evidence for the State;
•	summary of evidence for the defence;
•	formal determination of the question whether the first accused killed the deceased.

Evidence for the State

17.     Seven witnesses gave evidence for the State, as summarised in the following table.

No	Witness	Description	
1	Amanda Maino 	Restaurant patron, present at time of incident 	
Evidence	

She was seated with her friend, Lyn, and Mr Oaisa – she was seated on the side of the table right next to the couch that was on the side of the next table (where the accused and the deceased were seated) – her friend Lyn and Mr Oaisa were on the other side of her table – she heard the shot come from the table behind her – she was shocked - she turned around and saw the second accused standing up, away from the table, the first accused was sitting down and the deceased was slumped face down on the table – she knew both accused – she heard the first accused shout “Fabian , why the fuck did you do that?”- the first accused was very upset – she heard him hit the table – before the shot was fired, she had not heard any of the conversation coming from the next table – she had seen the first accused come in to the restaurant around 3 pm, he was seated with a number of other MPs who she recognised, they were seated around a large table in the middle of the restaurant – the second accused came in later. 
	
2	Daniel Oaisa 	Restaurant patron, present at time of incident	
Evidence	
He knew the shot was fired from a gun – he heard the first accused shout “Fabian, why the fuck did you do that?” - he checked that Amanda and her friend were OK, then searched for the gun  – he (the witness) found the pistol lying in the middle of the couch next to the first accused – the first accused remained seated at the table, in a state of shock – he saw the second accused standing near the table – the deceased was slumped face down on the table – he (the witness)  is familiar with firearms and it was his first instinct to defuse the situation, so he picked up the pistol, ran towards the kitchen and cleared it, then he phoned Sgt Pige, OIC of the Homicide Squad – he noticed that the first accused left the restaurant soon after the shot was fired – he handed the pistol to Sgt Pige when he arrived.

In cross-examination he said that it was difficult to see the people on the next table - there was no partition between the tables but the couch on the next table had a high back.
	
3	Dr Seth Fosse 	Pathologist	
Evidence	
He conducted the post-mortem investigation and prepared the autopsy report, noting black discolouration of the entry point of the bullet wound, indicating that the gun had been fired from close proximity – in his opinion the shot would have been fired from the right side of the deceased, from an elevated position – on 16 March 2022 he attended the scene of the incident with police personnel “to make sense of the bullet track” – the restaurant was still closed - he prepared a crime scene report, which included his opinion that the first accused would have been seated next to the window, to the right of the deceased, and was most likely to have been the shooter [Dr Fosse’s crime scene report, as distinct from the autopsy report he prepared, was tendered by the State but defence objections to it were sustained as it was based on hearsay and it was not admitted in evidence]  
	
No	Witness	Description	
4	Chief Sergeant Joseph Numbos 	Member, Police Force,
Firearms and Crimes Examiner, National Forensics Centre	
Evidence	

He gained custody of the first accused’s pistol and the spent bullet found at the scene of the incident and confirmed that the bullet was fired from that pistol – he tested the pistol and concluded that it was in good working condition and not subject to accidental discharge – the trigger would have to be pulled to discharge the bullet – in his opinion the shooter would have to have been on the right side of the deceased and, because of the black discolouration of the skin highlighted in Dr Fosse’s report, the shot was fired at close range (within one to three metres).  

In cross-examination he confirmed that the Glock 19 pistol is semi-automatic – it needs to be cocked before the first shot is fired from the chamber, but after that it need not be cocked – it was possible that the pistol from which the shot was fired was cocked earlier, perhaps before it was brought into the restaurant. 
	
5	Sergeant 
Nei Pige 	Member, Police Force,
OIC, Homicide Squad, Boroko Police Station	
Evidence	
He attended the scene of the incident, together with Senior Sergeant Koy and First Constable Gwampom – he was handed the pistol by Mr Oaisa, who he knew – he later passed the pistol to Snr Sergeant Numbos – he took the details of both accused and others present in the restaurant – he assigned the case to the arresting officer.
	
6	Sergeant 
Samuel Koy 	Member, Police Force,
Crime Scene Examiner, National Forensics Centre	
Evidence	
He attended the scene of the incident on the night of the incident and took photos of the layout of the restaurant, in particular the tables around which the accused and the deceased, and Ms Maino and Mr Oaisa and their friend, had been seated – also took photos of the deceased, showing blood stains splattered on the couch on which the deceased was seated, the wall behind the deceased and the table – he returned to the scene of the incident on 3 April 2022, by which time the restaurant had been reopened, and took photos of the table at which the shot was fired and the adjoining table – he also attended the post-mortem investigation and took photos showing the entry and exit points of the bullet wound.
 	
No	Witness	Description	
7	First Constable
Yaku Gwampom	Member, Police Force,
Homicide Squad, Investigating officer	
Evidence	

He attended the scene of the incident with Sergeant Pige on the night of the incident – he was approached by the second accused as he arrived outside the restaurant, who said that he was involved in the incident – he cautioned the second accused, who then sat on a bench outside the restaurant - he went inside the restaurant and assisted Sergeant Pige – he retrieved the spent bullet, it was lodged in the back of the couch on which the deceased had been seated -  the first accused was not there at first, but came in later and spoke to Sergeant Pige – he liaised with Dr Fose regarding the post-mortem examination – Dr Fose wanted to visit the scene of the incident so he and other police officers took him to the restaurant on 16 March 2022 so that he could reconstruct the crime scene – the doctor took a number of measurements at the restaurant and drew a diagram, on which he based his opinion that the first accused was the shooter.

In cross-examination he said that he agreed with the doctor’s opinion, so acted upon that expert opinion and the day after the doctor’s crime scene visit, charged the first accused with wilful murder – he conceded that in making inquiries with those present inside the restaurant when the shot was fired, he interviewed and took a statement from the restaurant manager who said that the deceased shot himself – he nevertheless decided to regard the first accused as the principal suspect, based on the expert opinion of Dr Fose – he agreed that the second accused had told him that the deceased had got the first accused’s pistol and shot himself by accident. 

He conceded that he had prepared a police statement (exhibit P6, tendered by the defence) in which he noted that when he arrived outside the restaurant the second accused approached him and they had a conversation. Paragraph 6 of exhibit P6 states:

He went on to tell me that he was with the deceased Robert Jerry and MP for Moresby North West Lohia Boe Samuel (LBS) and they were sitting in the restaurant and the deceased got Lohia Boe Samuel’s pistol to have a look at it and accidentally shot himself. After talking to him I know he is a genuine fellow.

18.     The following exhibits were admitted into evidence:

P1: diagram of restaurant drawn by Daniel Oaisa (State witness #2).

P2: autopsy report re the deceased, prepared by Dr Seth Fose MBBS, MMED, LLB (State witness #3).

P3: Photographs of the first accused’s Glock 19 pistol (retained in police custody by Sgt Nei Pige, State witness #5).

P4: Statement by Sergeant Samuel Koy annexing 61 photos apart from those admitted as exhibit P3.

P5: Record of interview of first accused.

P6: Statement by Senior Constable Yaku Gwampom (State witness #7); this statement was tendered by the defence.

P7: Record of interview of second accused.

P8: Diagram of seating arrangements drawn by the first accused.

Evidence for the defence

19.     Both accused gave sworn evidence.

No	Witness	Description	
1	Fabian Hera	Second accused	
Evidence	
He went to the restaurant as he had the member’s (first accused’s) vehicle and he was called to meet him there – he drove the first accused’s vehicle to the carpark outside the restaurant – he met the deceased, who he knew well like a brother, outside the restaurant – the deceased said he wanted to go in to see the first accused as he needed financial assistance – he walked inside, saw the first accused sitting at the round table in the middle of the restaurant and told him that Robert was outside and wanted to come in – gave first accused his car keys – first accused said OK, bring him in – so he brought the deceased inside - first accused told them to sit in the corner table and order something to eat and he would join them later – they ordered chicken and the meal came and they ate.

The first accused joined them soon afterwards – the deceased was seated on the couch next to the wall – he (second accused) was seated next to the window and next to the first accused, who was on his right, and opposite and to the right of the deceased – the deceased was seated in front of (ie opposite to) the first accused –  – they told stories, it was a normal conversation – the deceased asked the first accused for financial assistance and the first accused gave him K150.00. 

After a while he became preoccupied with his mobile phone – he heard the deceased ask for betel nut – the first accused was also focussed on his phone – it was silent for a few minutes – then he looked up and noticed that the deceased had retrieved the pistol from the first accused’s bilum, which he (second accused) had brought in from the car – deceased was casually holding it and pointing it in different directions – this annoyed him (second accused) and when he saw the pistol pointed towards himself (second accused) he said firmly “Robert put the gun down” – then he rose from his seat and lunged towards the deceased to push the pistol away – his hand made contact with the hand of the deceased holding the pistol then the next thing he knew, the pistol fired one shot – it was a huge explosion.

He (second accused) thought he himself had been shot – he dropped to the floor – his life flashed in front of him – thought he was going to die – his mind was blank - then he saw the deceased slumped on the table and he realised it was him who had been shot – he was in complete shock – he moved away from the table – does not recall how he got there as the first accused remained seated – people in the restaurant were shouting and screaming - he recalls the first accused shout “Fabian, why the fuck did you do that?!” – other people also shouted at him.

He went outside the restaurant when the ambulance arrived and the officers were working on the deceased – the police approached him and asked what happened and he said that he was involved in the incident – police got his wallet and phone and searched him – one policeman told him he had caused a very big problem and they would take him to the cell – he told police that it was an accident and his friend had shot himself.

The first accused had left the restaurant soon after the incident but after the police and ambulance had been there for a while, he returned – he followed him in – the police inside asked him the same questions as the police had asked him outside – then Sgt Pige told him and the first accused that they could go, as the police had their phone numbers.

His brother came to collect him – the incident was all over Facebook – he went home to his wife.

Some days later the police contacted him and the first accused and they went with their lawyers to Boroko police station – he followed the advice of his then lawyer and remained silent – the police later did a second interview [which is the subject of the record of interview admitted into evidence as exhibit P7].

In cross-examination it was put to him that he had given false evidence about the seating arrangements and that it was the first accused who was seated next to the window – he denied that – he (the second accused) was seated next to the window and the first accused was seated on the couch to his right.   	
No	Witness	Description	
2	Lohia Boe Samuel 	First accused	
Evidence	
He had a busy day on Friday 11 March 22, starting with going to the airport in the early morning with the Prime Minister and other MPs to receive the body of the late member, Hon William Samb, who had died in Dubai – he later attended a handover/takeover function at City Hall to mark the change in City Manager from Bernard Kipit to Ravu Frank – there was another official function at Sir John Guise Stadium – the PM had asked him and Hon Peter Tsiamalili MP to organise the State funeral – so he went to the Fusion 2 restaurant to meet Mr Tsiamalili and other MPs and have a late lunch – after finishing the meal he rang the second accused and told him to come to the restaurant.

The second accused came and gave him his car keys and said Robert was outside – that was not unusual as the deceased had been with him since 2017 and he would usually come to see him on Fridays to get some financial assistance – he told the second accused to bring him in and have something to eat – so the deceased and the second accused took the corner table and ordered food – he joined them later – it was normal chit-chat – his (first accused’s) bilum had been in the vehicle and the second accused brought it in and put it on the table.

He agreed with the sequence of events explained by the second accused in his oral testimony – he agreed that he shouted “Fabian, why the fuck did you do that?!” – he (first accused) was panicking – he drove to the PM’s house to report what had happened – then he drove back to the restaurant – he was shocked, the deceased was “like family”.

He agreed that the Glock 19 pistol was his, and that he had a licence to hold it.

In cross-examination he agreed that he and the second accused were on their phones immediately before the shot was fired – he said that he noticed in passing that the deceased was looking inside his bilum but he was unconcerned, as he would often do that: “This is Papua New Guinea and we are brothers” – he did not know he would get the pistol – the three of them (first accused, second accused and deceased) were having a friendly conversation – he remained seated after the shot was fired – it was put to him that he was the one who pulled the trigger, to which he replied ‘No, you tell me my friend’ and ‘Why would I do that?’

Did the first accused kill the deceased?

20.    The State acknowledges that the only eyewitnesses to the incident are the two accused, who have given evidence that the death of the deceased was an accident and that the first accused was not involved in the accident. The lead prosecutor Ms Roalakona argues that their evidence should be rejected as both were unconvincing, unreliable, and dishonest witnesses. The State maintained its case from the start to the end of the trial that applying the principles of circumstantial evidence, the first accused was the “shooter”.

21.     I will therefore apply the principles governing circumstantial evidence, as explained by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498:

•	the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and

•	to enable the court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt be a rational inference but that it be the only rational inference that the circumstances would enable it to draw.

22.     In Devlyn David v The State (2006) SC881 the Supreme Court restated the Pawa principles by saying that the question to be asked is:

•	do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal.

23.     In determining what are the proven facts, I state at the outset that I reject the argument that both accused should be regarded as unreliable witnesses due to their unsatisfactory and evasive demeanour in the witness box. 

24.     I do not think the second accused was evasive. He appeared to be an honest witness. He broke down in tears as he recounted the moments before and after the pistol was fired. He was either an honest witness reliving a dramatic and traumatic incident in his life or a very good actor. I do not think he was acting. He was asked in cross-examination how he came to be standing up at the end of the table, immediately after the shot was fired. He said he could not remember. I don’t think it follows that he was obviously lying or hiding the truth. He appeared to me to be saying honestly that things happened so quickly, it was such a shocking event, he struggles to remember some of the details. 

25.     I make a similar assessment of the evidence of the first accused: his demeanour was sound, he appeared to be an honest witness.

26.     The first accused was, I consider, genuinely offended when it was put to him in cross-examination that he fired the shot that killed the deceased. He answered a question ‘you pulled the trigger? with a question ‘why would I do that?’ That could, I suppose, be regarded as evasive and arrogant. It is better regarded, however, as the witness’s way of putting to his interrogator that he had no motive to shoot the deceased, who was a political supporter who had assisted him in his election as a member of Parliament, someone who was an ally, who he helped out on a regular basis, who he had no grievance with. Though he answered a question with a question, it was an appropriate and rational answer, with respect.

27.     Ms Roalakona submitted that the second accused’s evidence defies logic and common sense as it has him at one moment, to the left of the first accused, next to the window, rising to his feet to ward off the deceased holding the pistol, then in the next moment he teleported to the opposite end of the table, standing up (where he was observed by the witnesses from the next table) in a state of shock. How did he get past the first accused, who is said to have remained seated? They are both big men, so, the argument goes, his evidence does not make sense. 

28.     Mr Kirriwom, counsel for the second accused, offered a possible explanation: the second accused crawled under the table (which the photos in exhibit P4 showed had a broad area underneath it). I think there is another, which is equally plausible: the tables and the couches in the restaurant, at least the table around which the two accused and the deceased were seated, and the couches on which they were seated, and the adjoining table around which the two State witnesses and their friend were seated, are light and moveable. This is readily observed from the photos annexed to exhibit 4. It is quite conceivable in my view that the second accused pushed back the couch and/or pushed forward the table in an instant, and found himself standing up at the end of the table. This is a plausible explanation for what actually happened. 

29.     Ms Roalakona further submitted that second accused’s story does not explain how the pistol came to be found on the couch that the first accused was sitting on. I consider, however, that the position of the pistol found on the couch next to the first accused, is not inconsistent with the second accused’s evidence, as it might have been the case that after the pistol was fired it dropped on to the table. Maybe one of the two accused placed it on the couch.

30.     I do not accept the submission that the second accused’s evidence is illogical or unbelievable. 

31.     The evidence of the first accused that the second accused moved directly in front of him to exit the confines of the table area was not, in my view, unbelievable. 

32.    Ms Roalakona submitted that the conduct of the first accused after the shot was fired (blaming the second accused, remaining seated, then leaving the scene) was strange and consistent with his guilt. However, that is a matter of speculation. This was, the evidence suggests, an unplanned, shocking, and traumatic event. Different people behave in different ways when such things happen. Very little is to be gained by seeking to psychoanalyse the behaviour of the individuals involved. 

33.      I make a similar comment regarding the first accused shouting immediately after the shot was fired “Fabian, why the fuck did you do that?!” That statement can be interpreted in different ways. Was the first accused deviously trying to shift the blame to the second accused? Was he genuinely upset because he thought the pistol would not have discharged if it had not been for the second accused trying to get it off the deceased? I tend to think that the latter is the more likely scenario. However, ultimately it is a matter of speculation as to how those words should be interpreted. It does not advance the State’s case in any tangible way to highlight those words. 

34.     Based on my acceptance of the evidence of the two accused, I find that these are the proven facts:

•	The deceased was seated on the couch that ran parallel to the rectangular table, next to the wall.

•	The two accused were seated on the couch that ran parallel to the other side of the table. They each faced the deceased.

•	The deceased was shot at close range from the first accused’s pistol while he was seated at the table.

•	Only one shot was fired.

•	The deceased died almost instantly.

•	The deceased was shot because of the actions of one or more of three persons: the first accused, the second accused and/or the deceased.

•	The deceased was shot from his right side, the bullet penetrating the neck beneath the right ear lobe and following a downward trajectory through the spinal cord at the third vertebrae before exiting near the top left shoulder.

•	Before the shot was fired, there was no evidence of a commotion or an argument or raised voices at or around the table at which the deceased was seated.

•	Immediately after the shot was fired the second accused was standing up at the end of the table, towards the main part of the restaurant.

•	The first accused remained seated.

•	The bullet was fired from an elevated position, causing the bullet to follow a downward trajectory from entry point to exit point. 

•	Immediately after the shot was fired, the first accused shouted three times “Fabian, why the fuck did you do that?”

•	One of the restaurant patrons, Daniel Oaisa, picked up the pistol, which was lying on the couch next to the first accused, and cleared it.

•	The police and ambulance were called.

•	The first accused left the scene and returned a short time later.

•	The second accused remained at the scene.

•	Both accused have been cooperative with the police from the start.

•	The story given by each accused to the police during the criminal investigations is consistent with their evidence given in court. 

35.     There are some alleged facts that the State has not proven:

•	That the first accused was seated next to the window.

•	That the deceased was shot deliberately.

•	That the pistol could not have been accidentally discharged. 

36.     I now apply the principles of circumstantial evidence to the proven facts. Applying the Pawa principles:

•	the facts proved in evidence are consistent with other reasonable hypotheses other than guilt of the first accused; and

•	guilt of the first accused is not the only rational inference that the circumstances would enable the court to draw.

37.    Applying the David test:

•	the proven facts do not lead reasonably to only one conclusion – that the first accused did all the things constituting the elements of the offence. 

38.      I find that the proven facts support the version of events opposite to that of the State’s case, contended for by the defence:

•	The second accused was next to the window.

•	The first accused was to the right of the second accused.

•	The second accused rose from his seat when he became agitated by the deceased pointing the pistol in his direction.

•	He lunged towards the deceased and tried to push the pistol away, and in the process the pistol discharged.

39.     I therefore find:

•	The State has not proven that the first accused fired the shot that killed the deceased. 

•	The State has not proven that the first accused killed the deceased.

•	The State has not proven that the first accused committed any offence. 

Did the second accused kill the deceased?

40.     Having found that the first accused did not kill the deceased I now address the question of whether the second accused killed the deceased. This is a question that I raised during submissions. It is a reasonable question to pose based on the evidence of the second accused, in view of the definition of “kill” in s 291 of the Criminal Code, which states:

Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.

41.     It is arguable that the second accused indirectly caused the death of the deceased by rising in his seat and lunging towards him and making contact with his hand in such a way as to cause the pistol to discharge, so that the bullet penetrated a vulnerable part of the deceased’s body, killing him. 

42.     However, I heard no considered argument from either the State or the defence on the issue. There is insufficient evidence on which to conclude that the second accused killed the deceased. 

43.     If I had found that the second accused killed the deceased, I would have had to consider the defence of accident under s 24(1)(b) of the Criminal Code. That defence has been relied on by both accused since the beginning of the trial. In fact the second accused told the police who attended the scene on the night of the incident, including the investigating officer, Senior Constable Gwampom, that what happened was an accident (statement of Snr Const Gwampom, exhibit P6). He repeated the defence in his second police interview (exhibit P7). He further repeated it in his sworn oral testimony.

44.     Section 24(1)(b) states:

Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for … an event that occurs by accident.

45.     The defence operates in the same way as other excusatory defences. It is a complete defence. Once the accused puts evidence that the ‘event’ (in this case death of the deceased) has ‘occurred by accident’, the onus rests on the prosecution to disprove the defence (Namaliu v The State (2021) SC2126, Anide v Denehy [1973] PNGLR 215, R v Ulel [1973] PNGLR 254).

46.     There is clear and convincing evidence given by the second accused that the death of the deceased was an accident. The State has failed to disprove that defence, so it applies as a complete defence. The second accused is not criminally responsible for the death of the deceased and must be found not guilty. 

CONCLUSION

47.    The State’s case that the first accused killed the deceased has failed. The Court has found that he did not kill the deceased. 

48.    The State’s case against the second accused has also failed.

49.    The Court has found that the deceased, Robert Jerry, died by accident. 

VERDICT 

50.    The accused Lohia Boe Samuel, having been indicted on one count of wilful murder under s 299(1) of the Criminal Code, is not guilty of wilful murder and not guilty of any other offence.

51.     The accused Fabian Hera, having been indicted on one count of wilful murder under s 299(1) of the Criminal Code, is not guilty of wilful murder and not guilty of any other offence.
__________________________________________________________________
Public Prosecutor: Lawyers for the State
Sasingian Lawyers: Lawyers for the First Accused	
Public Solicitor: Lawyers for the Second Accused