National Court of Papua New Guinea

The State v Takip Palne [1967] PNGL PNGLR 90

Regina v Korongia (1961) No. 204

Reg v Muratovic [1967] Qd R 15

Tapea Kwapena v The State [1978] PNGLR 316

Regina v Lobell [1957] 1 QB 547

Chan Kau v The Queen [1954] UKPC 40; [1955] 2 WLR 192

The Queen v Howe [1958] HCA 38; [1958] 100 CLR 448

The State v Wanaepe Warara [1977] PNGLR 458

Counsel:

Ms M Boni for State

Mr M Apie’e for Accused

28 August 1996

SEVUA J: The accused pleaded nolty ilty to an indictment charging him with attempted murder contrary to s. 304 (a) of the Code.

The facts are brief and simple. The accused is an offic thof the National IntelligOrganisation (NIO). O60; On the nigh29 Novembevember, 1994 at about 9 pm, he fired two shots from his pistol at the victim, SunYoba, between the Somare Foundation Building and the old NIld NIO office at Waigani. As a result, thtim suffereffered bodily injuries to his left arm and left side of the posterior chest wall. Thy point of contention heon here is where the shooting occur#160; The prosecution alleged that, the victim was shot as t as he stood against the perimeter fence at the rear of the Somare FoundaBuilding. The accusedcused deniis anis and says, he shot the victim near the NIO office. He rathe statutory defencefence of self defence. At the end of the dhe ulti ultimate question to be decided is whether I accept the evidence of the victim or tcused.

The evidence of the victim is that, he was onas one of three (3) security guards on duty that night at the Somare Foundation Building premises.

At approximately 9 pm, he left the two others at the front gate, which I observed, from visiting the scene, to be the gate east of the building, and walked around the left side parallel to the Sir John Guise Drive to the rear of the building. At the rear eter fence, hee, he stood almost against it. As he stood there,ng the Athe Australian High Commission, which I noted, is on a south easterly direction, he was shot on the left arm and as he turned around, he was shot the setime on the left side of the back. He said he saw thew the accused beside the NIO office and he estimated the distance between them to be twenty metres. He thn to the front gate, ate, jumped over it then escaped to his boss’ office at Nilkare ordons, near the Indonesianesian Embassy, approximately half a kilometer away from where he was shot.

The victim’s evidence also include estimates of distances and lighting. As to lig, he said there were were three security lights. The first one t the front ront gate, the second at the roof of the NIO office, and the third at the rear gate of the Australian High Commn.&#1uring the visit tsit to the scene, I observed the victim pointing to a double flood lights ghts located above the northern fence of the Somare Foundation Building, and further, the one at theoffice was lwas located where a broken gutter hung, not on the roof. I also observed that the victim pointed to the corner of the northern and western end of the fence where he said he j out from and escaped.

From where he stood by the fence to where he said the accused stood was approximately 12 - 15 metres. From where he was shot to the NIO office was approximately 12-15 metres. From where he jumut, to thto the NIO office was approximately 10-12 metres. Frome he was shot to the pthe point at the fence he jumped out was approximately six metres.

The second proson witness did not see anything, so really his evidence is of no probative value to the proe prosecution’s case. It is thre unnecessary to y to discuss that evidence here.

On the contrary, the accused’s evidence presents a completely dint picture of what had transpired.

On the date in question, he had left the NIO offi office at approximately four or five in the evening, but returned at 9 pm to carry out a routine check. He parked his official vehicle at the end of the NIO office (I observed as the western end), walked to the northern side of the building and called out to the guards who supposed to be in however, there was no response0; Ac0; According to h to him, the place was dark as there was no light.

Suddenly, he saw “something like a mop head popping out on the side of the building.” It was a perso ran out frot from the side of the building towards the accused’s stationary vehicle. Thused said, as the man raan ran, he saw that man pointing song which appeared to be a gun at him (accused). That That person ranhe acce accused’s vehicle and sheltered behind it.&#1he accused was alarmed by t by the action of that person so he called out, “hey” to him. There was no response so hled out to the people who swho supposed to be in the NIO office, however there was no response either. He then remembered that s armed so he pulled out his pistol, corked it and fired at the direction of his vehicle whle where he saw that person ran to. s pisas a semi automatic wtic weapon, a second shot was fired as he maintained his finder oder on the trigger. After these shot saw persoperson running along a track towards the fence of the Somare Foundation Building.ding. Appately, two minutes late late got into his vehicle and drove out on the same track towards Sir John Guise Drive in purs pursuit of the fleeing man, however, the ed was unable to catch up with that man so he drove to the the other NIO office at Boroko. He ot report that incidentident until the next day.

Basically, that is all the evidence before me in this trial.

Firstly, I must determine which evidis more probable and to do that I need to assess the credibredibility and demeanour of both the victim and the accused so that I can arrive at a finding of fact as to whether the victim was shot, as he said, inside the premises of the Somare Foundation Building, or near the NIO office, according to the accused’s evidence.

Having observed both witnesses testified on oath, the victim’s demeanour in the witness box did not impress me at all. He appeared stubburing exag examination in chief and I observed that he did not fully co-operated with the prosecuting counsel. He looked quite ed and thed there was no rehe should behave in that manner.

His demeanour worseworsened during cross examination when he appeared angry and mean and becaco-operative and difficult, until I warned him of possible ible imprisonment for contempt and ordered him to sit up straight and lean toward the microphone to answer questions.

There were inconsistencies in his evidence which I consider fatal to his credibility. If, it was true h shot witt within the premises of Somare Foundation Building, why didn’t he call out to his colleagues that he had been shot? He said he ran to the main gate where his colleagues were, before he left them at 9 pm and jumped over the gate. I alludedarlier that from from the Court’s point of view, this would be a distance of a hundreres or more. But he a he also said, ist distance from where he was shot to where he jumped over the fence was approximately six metres. At the scene, he pinpointed these two spots and the distance of six metres appeared to be accurate. He could not have ran dredndred metres or more to the front gate to escape. He said we ran to that gatt gate, he saw his two colleagues there ho, this was denied by Christopher Wai, the second prosecution witness.

This puzzles mles me and leads me to ask where exactly we victim shot, within the pthe premises of Somare Foundation or near the NIO office? I will anshis question aftn after assessing the credibility of the accused.

The accused spoke in a relaxed and calmed tone. He spoite good English andh and aed quite attentive and co-operative. He was somewhat what reluctant to answer one particular question which directly relates tonature of his job and I accepted that he was bound by the Nthe National Intelligence Organisation Act as to what he can or cannot div On one occasion, I d, I directed him to answer a question in cross-examination relating to firearm licence as I considered that his answer would not prejudice the security of the nation. Aprom these instances, I f, I find the accused to be quite an experienced NIO officer with a quiet personality. I believe his evi and I pr I prefer it to that of the victim.

I therefeel that I must give him thim the benefit of the doubt that he did shoot the victim near the NIO office and not where the victim wasding by the fence inside thde the Somare Foundation Building premises. I cannot find any motivethor the accused to shoot the victim who was going about his lawful business inside the premises of Somare Foundation Building.

The only reason I can fin the shooting is that, the victim was an intruder at the NIhe NIO office premises. I therefore as a fact that that the victim was shot near the NIO office.

The next question I must determine is whether the action of the accused amounted to self def His counsel argued that it did, and he relied on s. n s. 269 of the Code. Without citing thision in n in full, let me say that, assault is an essential element of this provision. A person titled in law to w to use such force as is necessary againsunlawful assault he has not provoked. To put it negatnegatively, he cannot use force without an assault being offered against h160; Counsel for the accuseccused relies on two cases, The Queen v Nikola Kristeff (1967) No 445 and The State v Takip Palne [1976] P90. Counsel for the pthe prosecution, on the other hand, relies on Regina v Korongia (1961) No 204. I will refer to these authorities later.

At this juncture, let me review the evidence of the accused. He saw a peran from the sihe side of thlding to where his vehicle was parked. That person positioned himself behind the vehi vehicle. The ed said he saw song whng which he thought was a gun pointed at his direction when when the man was running towards the vehicle. However, by his own ece, twas no light and and the area was dark. How could held he had seen that the person was running with something like a gun?&#160could have been a stick. How could tcused specificaifically say, he thought it was a as a gun? Therevidence that theance ance between the two men waen was about four metres, but there is no evidence of any threat against the accused. If that person had , he otd not fire at the accused or threaten to fire. #160; Neither d assault or t or threaten the accused with whatever he may been holding. So what is the basis fe ache accused shooting the victim?

When then the accused saw that person running wiat he assumed was a gun, hen, he said “I was alarmed thinking that this is it for me”. Ho said, “what went went on my mind when I saw someone running out pointing something like a gun at me was fear, fear of being killed and I thought to myseell this is it”. The accuay well have thou thou thought that his life was in danger, however, that is not the test in self defence. The test is wh the nature ture of the assault was such as to cause a reasonable man apprehension of death or grievous bodily harm. The accused wasd with a pe a person running away in the dark. He did not actuaee if that that person was armed.

He was not being attacked or threatened. I therefore d accept his ehis evidence that he thought he was going to bled. In other words, he had no reasonable grounds to s to believe that he could not preserve himself from death or grievous bodarm otherwise than by firinfiring at that person.

In The Queen v Nikola Kristeff, (supra) His Honour Frost J (as he then was) said at p. 23:

“the test is whether the nature of the assault was such as to cause a reasonable man apprehension of death or grievous bodily harm.”

In Regina v Korongia (supra) Man CJ said at p. 8:

“...the essence of self defence under the Code is that violence is presently being offered. An actual assault is red tred to have been made under both sections 271 and 273 (my underlining). An actual threat mu made bade by some bodily act or gesture before section 245atisfied.”

Those provisions are presently ss. ss. 269 and 270. In my view, and I agree Thth Their Honours in thoses, assault is an essentialntial ingredient under ss. 269 and 270.

The test to be applied in a trial where self defence is plehas been settled in this jurisdiction. O’Leary eary AJ sutlinctly stated the test in The State v Takip Palne (supra) following His Honour’s adoption and application of the Court of Criminal Appeal decision in the Queensland case of Reg v Murat[1967] Qd R 15. In faIn fact, tst is contacontained in the judgment of Hart J at p. 26. I wishdopt, restate and rend re-emphasise the test in the present case.

The test in Takip Palne which I adopt and apply here is this: To raise a plea of self de under s. 269, there must be evidence of the following:

1. ; T60 accesed was unlawfullwfully assaulted.

2. The accused htd novopro thed the assault.

3. ҈;ټ Tture e asse asswas such as to caus cause reae reasonabsonable aple appreheprehension of death or grievous bodily harm.

4. ـ Tce ac bsed bed on reasonaasonable grounds thds that he could not preserve himself from death or grievous bodily harm otherwise than by using the forceh he ct usp> [1978] PNGLR 316. Incidentally, I have jualirealised that I was the junior lawyer and appeals officer who prepared the opinion on that appeal based on R v Muratovic for ri Kapi, then Public Solicitor, who argued this appeal in the Supreme Court on 1st August, ust, 1978. The Supreme Court in that case followed R v Muratovic, so it is not necessary to cite what the Court of Criminal Appeal said, as I have already alluded t judgment of His Honour Hart J.

For my part, I would simplify the test as follows:

Where an accused person raises self defence, the onus is not on him to prove self defence, the onus is on the prosecution throughout to prove beyond reasonable doubt that the elements in s. 269 Code set out in The State v Takip Palne do not exist or are not present.

If on the whole of the evidence before the Court, the Judge, as a tribunal of fact, finds that those facts exist, the accused is entitled to an acquittal because the prosecution has not negatived the defence. If, however, the tribuf faof fact finds that those facts do not exist then a verdict of guilty should be returned.

Since I have adverted to the issue of onus of proof, let me briefly discuss that here. As Iioned, the onus onus onus of proof is upon the prosecution. In a v Lobell [1957] IQB 5IQB 547 at 551, the English Court of Criminal Appeal established the law as to onus of proof on an issue of self defence as follows:

But there is a difference between leading evidence which would enable a jury to find an issue in favour of the defendant and in putting the onus upon him. The tis that the jury must must come to a verdict on the whole of the evidence that has been laid before them. If on a considerationll thll the evidence the jury are left in doubt whether the killing or wounding may not have been in self defence the proper verdict would be not guilty.”

The Privy Council in allowing an appeal from the Supreme Court of Hong Kong in Chan Kau alias Chan Kai v The Queen [1954] UKPC 40; [1955] 2 WLR 192, at 193 & 194, thought it desirable to state that:

“In cases where the evidence discloses a possible defence of self defence the onus remains throughout upon the prosecution to establish that the accused is guilty of the crime of murder and the onus is never upon the accused to establish this defence.”

Dixon CJ in The Queen v Howe [1958] HCA 38; [1958] 100 CLR 448, at 459, said:

“The state of the law appears to be that once a ground is disclosed by the evidence upon which a plea of self defence may arise, it is essential to a conviction of murder that the jury shall be satisfied beyond reasonable doubt that one or other or all of the ultimate facts which establish that plea were not present. That appears to be the effect of the modern law.”

His Honour then cited Chan Kau v The Queen [1954] UKPC 40; [1955] AC 206 at pp. 211, 212.

Frost J in The Queen v Nikola Kristeff (supra) said at p. 4:

&#8220o onus of proof, so far as r as the defence of self defence and provocation are concerned, there is no onus on the defence to establish these defences. Once a d is disclosed by t by the evidence upon which a plea of self defence may arise, or provocation, it is essential to a conviction of murder that the jury shall be satisfied beyond reasonable doubt that one or the other or all of the ultimate facts which establish those pleas are not present.”

His Honour then cited Chan Kau v The Queen, (Supra) R v Howe (supra) and R v Johnson (1984) QSR 1 and further said:

“It is for the Crown to exclude these defences of self defence and provocation and exclude them beyond reasonable doubt.”

The onus of proof therefore remains with the prosecution throughout, on the criminal standard of proof, ie proof beyond reasonable doubt. The State must prove beyond reasonable doubt that the necessary elements in s.269 adverted to in Takip Palne do not exist. To put it in a slightly dint form, the State must exclude or negative each of the elements of self defence in s. 269 269 of the Code.

Let me revert to est in Takip Palne. Again, the mental considersideration in the present case is whethwhether there is evidence of the existence of those matters alluded to in Takip Palne. On the whole of thdence bece before me, I find no evidence that the accused was assaulted by the victim, therefore, it is not necessary to consider the remaining three aspects of the test. Accordingly, I tisfiyond rond reasonable dble doubt by the State that there was no assault here such as would cause reasonable apprehension that thesed was about to be killed or caused grievous bodily harm.

I am further satisfied beed beyond reasonable doubt that the accused had no reasonable grounds for believing that he could not otherwise preserve himself than by firing the two shots at the victim. I am also satisfied beyeas reasonable doubt that the force used was excessive.

If the plea of self defence were to succeed, and assuming that the accused fired the shots in order to preserve himself from death or grievous bodily harm, I consider that the appropriate time for him to act was at the moment he saw the fleeing man with what he assumed was a gun. Howevere, the fleeing man man had taken shelter behind the accused’s vehicle and most importantly, he had not offered violence oeatened the accused. There was fore a lapse of e of time, even if it was for only momy momentarily, before the accused fired. view, the accused acted ited in panic, not out of necessity.

I am therefore satisfied beyond reasonable doubt that the Shas excluded each of the elements of self defence.

Finally, I turn to the question oion of intent with which the accused fired the shots. There is no eve of intent tent before me. Therd of interview (Exhibixhibit “A”) is very brief as the accused refused to continue with it as he claimed to have sufficiently stated what he wanted to in his statement, which is n evidence before me. 160; Thus,vidence of intenintent by way of admission can be found. Howeveconsider that I am e am entitled to draw an inference from the facts and circumstances of this case as to whether or not intent was present in the mind of the ad at the material time.

Again, the accused is entitlntitled to the benefit of the doubt on this aspect and as I have found no evidence of intent, he cannot be guilty of attempted murder. However, I find that his action in firing the shots was not out of necessity, but was carried out recklessly and negligently. I find that I am entitled to conclude that the accused, ast, intended to cause some bodily harm to the victim since ince I find he was not in any real danger. I therefore consider thatlternative verdict could be brought pursuant to s. 542 (1) (1) of the Code on the basis that, “intent to inflict grievous bodirm” is “an intent to cause...a result of a similar but less injurious naturere” than the intended result of attempted murder.

Accordingly, I find the accused guilty of intent to cause grievous bodily harm pursuant to s. 315 (b) & (d) of the Code on the basis of the decision in The State v Wanaepe Warara [1977] PNGLR 458.

Lawyer for State: Public Prosecutor

Lawyer for Accused: Public Solicitor