Unreported Supreme Court Decisions
SC551
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCRA 40 OF 1997
JOHN WANAMBA - APPELLANT
V
THE STATE - RESPONDENT
Wewak
Woods Jalina Kirriwom JJ
28-29 April 1998
CRIMINAL - manslaughter - policeman trying to control a crowd - a willed act or an accident or negligence - Section 24 and duty of care under Section 287 - Reasonable doubt on the evidence - an accident.
Counsel
Appellant in person
P Mogish for the State
29 April 1998
WOODS JALINA KIRRIWOM JJ: The appellant was on the 8th May 1997 found guilty of the offence of manslaughter after a trial following a plea of not guilty.  He was sentenced to 4 years imprisonment with hard labour.  He has appealed against the conviction and the sentence - “4 years too excessive, offence committed whilst on duty (Policeman)”.  We have accepted this Notice of Appeal as an appeal against conviction and sentence as the second phrase in the grounds is wide enough to read as an appeal against conviction.
The events leading to the charge were that the appellant, a senior non-commissioned officer holding the rank of sergeant attached to the Highway Patrol and based at Chuave received a call on his police radio about a highway truck with a container of cargo that capsized between Watabung and Chuave.  He was attending to the Provincial boom gate checking for illegal smuggling of liquor into the Province.  Enlisting the help of eight auxiliary policemen from the area he proceeded to the scene to prevent looting whilst arrangements were made to transfer the goods.  There was a large crowd assessed at between 200 and 300 people who were pushing closer.  Keeping the crowd away from the over-turned vehicle was becoming a big problem.  The appellant said that people had forced open the lock and started to steal cargo although the state witnesses denied this.  After some hours another East-West truck arrived and cargoes were removed from the overturned vehicle to the empty one.  At this juncture the crowd came closer apparently wanting to lay hands on some of the cargo.  The appellant went to the police vehicle and picked up a pump-action shot-gun and pumped it.  A shot was fired thereafter and a woman who stood 8 - 10 metres away amongst the crowd was killed.
The trial judge found there to be very little variance in the evidence on this aspect.  However we find to the contrary that there was conflicting evidence as to what exactly happened at the scene.  The State witnesses strongly maintained that there was no looting before the shooting whereas the appellant and the driver of the over-turned vehicle were adamant that the container was forced open and at least two empty pallets were thrown out of the container as the looters helped themselves to the good in the container soon after the vehicle overturned.  The driver was scared and he had to hitch a ride back to Goroka on a passing vehicle.  Further looting was fortunately stopped but not for long as the crowd grew bigger once the news spread.  Defence relied on Section 24 (1) (b) of the Criminal Code - defence of accident.  In order for His Honour to be satisfied as to whether or not this defence had been negatived beyond reasonable doubt, he must assess the whole of the evidence before him.  This necessitated closely examining the credibility of the witnesses who gave evidence in the trial.  The appellant’s evidence is that having pumped the gun he was lifting the gun to point towards the sky to fire a warning shot.  He felt this action was necessary to disperse the crowd that was already converging on them and the cargo when the gun went off.  This is what he explained in the trial:
“In the process of me lifting up my gun in the air, my hands could not meet the weight of the gun.  At that point in time, the gun went off accidentally and myself I was in shock.”
The trial judge did not accept his story but relied on the evidence of two state witnesses Kari Famula and Boni Barakowe who said that the appellant pulled the trigger of the gun with the barrel pointed at the crowd some 8 - 10 metres away.  But to rely on their evidence it was necessary for the trial judge to know just who these two witnesses were - their relationship to the appellant, the crowd of people and their purpsoe for being there in the frist place.  We have no idea as to what their qualifications are, if any, so far as their knowledge or familiarity with the handling of firearms is concerned.  The State failed to establish the identity of these two witnesses and for all we know they could even be relatives of the deceased.  His Honour thus came to the conclusion that the appellant was guilty of manslaughter.  The difficulty with this conclusion is that if the appellant did consciously fire that gun at the crowd of 200-300 people at such a close range of 8-10 metres it must be inferred that he intended to cause harm or even death to anyone in the crowd.  But he was not facing a charge of wilful murder or murder.  His charge was that of unlawful killing.  He can only be accountable for the offence he is charged with and which must be proven beyond reasonable doubt.
In rejecting the defence of accident under Section 24 (1) (b) of the Code the trial judge said that this may be a case where the event occurred independently of the exercise of his will under Section 24 (1) (a) but he said the appellant did not plead this defence.  With respect we do not understand what the trial judge meant here.  It is not the question of the accused actually pleading any particular defence.  It is a question of whether the defence is raised on the evidence before the court.  The judge has a duty to consider any defence that is raised on the evidence when determining the guilt or innocence of an accused in a criminal trial.  An accused does not have to expressly plead to be entitled to the benefit of that defence.
We distinguish this case with cases where police shoot and kill or injure someone by deliberately discharging their firearm either to disperse a rowdy crowd or prevent escapes.  Looking at this case subjectively we cannot imagine that the appellant would have been that naïve to fire into the crowd of some 200 - 300 people where the situation presented a real possibility of someone getting killed by such a careless or reckless disregard for human life.  He is a very experienced policeman and has been based in that part of the highlands region for over 7 years and no doubt he would have had to think about his own continuing good relations with the local people before doing anything that would destroy all that he may have established with the community along the highway.
The explanation given by the appellant is quite logical and sensible in our view.  The crowd was closing in on him and his men who were providing guard to the cargoes of the overturned vehicle and the plea to keep them away was falling on deaf ears.  All that he wanted to do was fire the gun into the air to frighten them off but his intentions simply went wrong.  After pumping the gun he was lifting it up to fire into the air when it went off rather prematurely killing the bystander.  The question now is if this is not an accident then is this not an act that can be said to have happened independently of the exercise of the will of the appellant?  But before the appellant can invoke the benefit of this defence in Section 24 (1) (a) - unwilled act - he must overcome the hurdle in section 287 of the Code which imposes upon him the duty of care as a person in possession of a dangerous weapon likely to endanger human life to use reasonable care and take reasonable precautions to avoid danger to the people around him.  The question is, did he use reasonable care in the handling of the gun or take reasonable precautions to avoid danger to the public whose life would be endangered?  To answer this question one has to look at the prevailing circumstances surrounding this incident.  There is no doubt that the appellant was under threats and pressure from the crowd who were hell-bent on looting the capsized truck.  The people in the crowd were so determined to over-power the skeleton police strength on the site protecting the cargo stating that the owner of the cargo was insured against loss so they had every desire to help themselves when the cargoes were being transferred from one truck to another.
The facts of this case are not the same as in the case Java Johnson Beraro v The State [1988-89] PNGLR 562 which relates to the shooting at birds amongst tall grass.  In that case there is no question about the trigger of the gun being pressed and the intention to shoot is equally beyond doubt.  But the issue there was the ultimate result of the intentional act.  The intention which was to shoot birds  turned out claiming the life of a human being.  In this case at the material time the gun went off, the intention to fire was not there - lack of temporal coincidence or the meeting of the mind with the act.  His intention was to fire the gun into the air after he had lifted it up but he had not as yet completed lifting the gun when it went off.  He did not consciously or willingly pull the trigger.  This is the distinction between this case and Beraro’s case.
But the principle in that case is equally applicable here because we are concerned with criminal negligence.  That is basically what the State case is founded upon.  The Supreme Court in Beraro’s case said:
“For the purpose of S. 287 of the Criminal Code (Ch 262) which prescribes the duty of care, breach of which will give rise to criminal liability as ‘a duty to use reasonable care and take reasonable precautions to avoid’ danger, what is or is not, criminal negligence is a question of degree to be decided on the facts; whether an act or omission is criminally negligent or not, must be decided by reference to the circumstances at the time the act or omission occurred and not by reference to the consequence thereof.”
There is no evidence that he mishandled the gun concerned but the pressure upon him in the given situation must also be taken into account when determining the responsibility to use reasonable care or take reasonable precautions to avoid danger to the public.
We are therefore of the view that the conclusion reached by the trial judge is wrong.  We find on the evidence that the defences under section 24 (1) (a) and (b) were clearly made out and not negatived and there is sufficient doubt on the whole of the evidence of exactly what was the sequence of events at the scene such that the trial judge could not be sure beyond a reasonable doubt that the shot was fired through the negligence of the appellant.
We uphold the appeal and quash the conviction and sentence.
The appellant is acquitted and discharged.