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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. NO. 1535 OF 2001
THE STATE
TITUS WAMBUN
Lae : JALINA, J
2002: 9th – 12, 14th October
: 18th November
CRIMINAL LAW – Evidence – No eyewitness evidence – Circumstantial evidence – Death of deceased from injuries after being shot with a pistol – Size of bullet head found in deceased’s body same as size of bullet head found embedded in the ground at scene of alleged crime and size of empty bullet shells and live bullets found from magazine from accused’s pistol – Accused admits firing shots into the air but denies shooting deceased – No other shots fired at scene of alleged crime – Accused armed with pistol at scene when police arrived at scene – Explanation given by accused through Record of Interview two months later - No direct evidence that accused fired shots at deceased – Whether accused shot the deceased – Inference to be drawn.
CRIMINAL LAW – Wilful murder – Elements of offence – Intention to kill – Circumstantial evidence – Death of deceased from injuries after being shot with a pistol – No eyewitness evidence – Size of bullet found in deceased’s body same as size of empty bullet shells and live bullets found from accused’s pistol at scene of alleged crime – Accused admits firing shots into the air but denies shooting deceased – No other shots fired at scene of alleged crime –No direct evidence that accused fired shots at deceased – Whether accused intended to kill the deceased – Inference to be drawn.
Cases Cited:
Paulus Pawa –vs- The State [1981] PNGLR 498
Counsel:
P. Kaluwin for the State
D. Sakumai for the Accused
18th November 2002
JALINA, J: The accused Titus Wambun has been charged that he on 30th December, 2000 at Lae in Papua New Guinea wilfully murdered one Peter Akusa. He has pleaded not guilty to the charge.
The facts given to the Court by the State Prosecutor for purposes of arraignment were that between 5 and 6 pm on 30th December, 2000 the accused and others were drinking beer at a house on 7th Street, Lae. In the course of drinking, a fight broke out between some of the men who were drinking with the accused.
While they were fighting, the deceased Peter Akusa appeared at the scene. The accused who was in possession of a pistol shot the deceased in the chest. The deceased died on his way to hospital.
After the plea of not guilty by the accused, his lawyer, Mr Sakumai indicated that the accused admits to being present at the scene of the alleged crime but denies that he was the one who pulled the trigger and shot the deceased.
The issue, Mr Sakumai indicated, for determination by this Court was whether it was the accused who shot the deceased and if so whether he intended to cause the deceased’s death.
Evidence for the prosecution were adduced through statements tendered by consent of Defence Counsel as well as from oral testimony of witnesses. Oral evidence was given for the prosecution by Dennis Kamen, Michael Daure, Kelly Kove, Daniel Kaie, Allan Lolea, Paul McFawn and Issac Mol the investigator in this case.
Dennis Kamen’s evidence was basically to the effect that on the day in question he went in a vehicle with John Gola and his uncle the deceased, to 7th Street. When they arrived at the drive-way the deceased got out of the car and went into the premises the scene of the crime. He remained in the vehicle with its driver John Gola. While they were sitting in the vehicle he saw the accused drinking beer with others and then an argument broke out between two boys. In the course of the argument one of the two boys picked up a bush knife in the kitchen and chased the others to the back of the house. After that he heard a gun shot. Later those who were chased to the back of the house returned to the front and he saw the accused with a pistol. The accused then pointed the pistol at the boy who had chased the other boy to the back of the house and shot him in the leg and the boy fell down. The accused fired shots everywhere after that so the driver of the vehicle drove the vehicle away with him inside. He never saw the deceased after the deceased ran with the others to the back of the house.
On cross-examination he said that between the time he heard the shot at the back of the house and the time the accused was firing shots when they returned to the front, he did not hear any other shots.
Michael Daure was the next person called by the State. He was a former employee of the accused’s Company Pukoko Security. He refused to co-operate with the State Prosecutor and stated that the contents of the Statement to the police concerning the crime was made out of fear of his life because police assaulted him and put a gun to his head. After I declined an application by the State Prosecutor to declare him a hostile witness, further evidence from him was not pursued.
The next witness was Constable Kelly Kove. He stated that whilst he was at Bumbu Barracks on the day in question, he heard over the police radio that a man was shot at 7th Street so he proceeded there and went to Mr Anian’s residence. When he walked into the yard after parking the vehicle on the drive-way, he saw the accused standing there with a pistol. When he asked the accused about what had happened, the accused told him that Peter Akusa had been injured with a knife and was taken to the hospital so he proceeded to Angau Hospital with other policemen but was informed on arrival that Peter Akusa was already dead. They then went to the Police Station, had a briefing and then returned to the scene of the alleged crime with Constable Kaie, Constable Koliadi and other policemen. There was no one at the scene when they returned. They then started searching and while searching the scene for evidence, he found 3 empty 9mm bullet shells. Constable Koliadi also found 3 more empty 9mm bullet shells. All the 6 bullet shells looked the same. The 6 empty 9mm bullet shells have been tendered by consent.
He stated that apart from the accused, no other person had a gun when they first went to the scene. He did not remove the pistol from the accused at the scene because the accused told them that the deceased was stabbed.
The next witness was Constable Daniel Kaie. He was called merely to tender his statement which was done and then made available to Defence Counsel for cross-examination.
The Statement of First Constable Daniel Kaie also relates to his visit to the scene of the crime soon after he picked up the information through the police communication network about a policeman being injured at 7th Street.
When he arrived at the scene, he saw Titus Wambun (the accused) with a pistol in his hand. Titus was standing with others. He then asked Titus for the injured policeman and was told that the injured policeman was Peter Akusa. Titus Wambun further told him that Peter Akusa received knife wounds and was taken to hospital. First Constable Kaie then drove to the Angau Hospital but was told on arrival that Peter Akusa was dead from bullet wounds.
He then returned to the scene to gather evidence at the scene. The empty 9 mm calibre bullet shells referred to in Constable Koliadi’s statement were handed over to him at the scene.
The next witness was Constable Allan Lolea. He was attached to the Crime Scene Examination Unit at the Lae Police Station. On 30th December 2000 he attended the crime scene at 7th Street at about 6:30 pm and due to poor visibility he did not do any searches but attended to a person who was wounded in the leg by taking that person to hospital. At the hospital he met Senior Constable Yaeng Birum who handed to him a Semi Automatic Glock Pistol Serial No. CYE 992 with fixed magazine. The magazine contained 5 hollow type 9mm live bullets with a further one in the barrel. The 6 bullets and the Pistol were tendered into evidence unopposed. He also did a sketch of the scene the next day 31st December 2000 which was also tendered unopposed.
Also, while searching the scene of the crime he found a grey bullet head which was embedded in the ground. Later in January 2001 Constable Paul Sakauwo handed to him a grey metal which appeared to be a bullet head which was retrieved from the deceased Peter Akusa’s body during post mortem examination. Both bullet heads were tendered into evidence unopposed. He then sent the pistol, the 6 empty 9mm bullet shells and the 2 bullet heads to Port Moresby for ballistics examination or tests.
The cross-examination of this witness by Mr Sakumai did not in any way discredit the evidence bearing in mid that the Pistol, the magazine, the empty bullet shells and bullet heads were tendered unopposed.
The next witness was Federal Agent from the Australian Federal Police and Ballistics Expert Paul McFawn who examined the above exhibits and also fired test shots with the accused’s Glock 9mm Calibre Pistol. These items were taken to him by Senior Constable Joseph Numbos whose statement was tendered unopposed. Senior Constable Numbos was not required for cross-examination.
For the avoidance of doubt I reproduce below paragraphs 7 to 13 of Paul McFawn’s affidavit which was tendered unopposed after a short introductory evidence to identify the affidavit: Paragraphs 7 to 13 of that affidavit contain the following:
"7. On Tuesday 26 June 2001 I received the following exhibits from First Constable Joseph NUMBOS, Royal Papua New Guinea Constabulary, for examination.
1 x Glock brand, model 26, self loading pistol, in the calibre 9mm Luger, serial number CYE-992
1 x Glock magazine of 19 round capacity, model 17 type, fitted with a +2 magazine extension floor plate.
4 x Rounds of PMC brand hollow point ammunition in the calibre 9mm Luger
1 x Lead projectile labelled as removed from dirt
1 x lead projectile labelled as removed from the deceased PETER AKUSA
On cross-examination he basically stated as expressed in paragraphs 11 to 13 of his affidavit that whist the bullet test fired from the accused’s Glock Pistol and comparison of the bullet head found in the deceased’s body showed that it was fired from a Glock brand self loading pistol in the calibre 9mm Luger, it could not be concluded with certainty that it was fired from the accused pistol due to impact damage to the projectile fired from the accused’s Glock pistol.
The final State witness who gave oral evidence was Chief Sergeant Issac Mol the investigator in this case. In the course of giving his evidence he revealed a very sad and undesirable state of affairs in this case which was that no actual eye-witness was available to give evidence in this trial because of threats against them by the accused’s friends and relatives. Even Senior Constable Fabian Kigulu who is a policeman based in Lae and who was with the accused at the time of the alleged crime refused to co-operate and appear in this Court to give evidence.
Chief Sergeant Issac Mol also interviewed the accused in relation to the alleged crime and the accused’s explanations appear in question and answer 16 to 18 of the Record of Interview which I reproduce below:
"Q.16. At that day, where were you really?
Ans: Yes, it was normal company policy that on such public holidays when the Papindo usually give food stuff to Buimo Prison Camp, so on that day around 10:00 am, I went to Eriku Papindo Supermarket. We loaded some food stuff onto a Papindo vehicle and proceeded to Buimo CIS. A police officer also accompanied us and he was Fabian Kigulu. After dropping the food stuff at the camp, we returned back with another CIS officer known as Rocky. We dropped off some Papindo workers at Papindo, and myself and Fabian Kigulu proceeded to 7th Street where, he wanted to see Ananian Dogola’s wife. Mrs Ananian Dogola told them that the man whom Fabian Kigulu wanted to see was not there. Whilst waiting there, Mrs Ananian Dogola had some beer to be sold. I told her to give us two cartoons of beer to drink and wait for that man. I gave one of those crates to the police officer and the warder and the other to the street boys, and we had those beers and stayed around.
We finished those and I got another two again and told the boys to stay around. My wife wanted to go to Port Moresby so David Daure drove the vehicle and we proceeded to our office, located at Mongola Street, where my wife picked hand bag, and we proceeded to the airport, leaving the boys drinking those beers at Ananian Dogola’s house at 7th Street.
They put my wife on the waiting list and we waited till 4 or 5 in the afternoon, so we went back to Lae. We drove my wife at Mongola Street and we went to 7th Street to check out the boys, who were drinking there.
At 7th Street, Paliau and the warder and few other boys went away, leaving Fabian Kigulu and the boys from 7th Street. I asked Fabian Kigulu if he had seen the man that he wanted to see and he replied that he did not see him as yet. I asked Mrs Dogola if there were some more beer and she said that another carton was there so she gave it to us, myself, David Daure and Fabian Kigulu, we drank that carton and stayed around. While there, other boys took their beer in from somewhere and stayed close to us, where we were staying. And we stayed together and had our beers.
While we were staying there, the boys from 7th Street started arguing with Fabina. I told the boys that Fabian came to see the old woman and why they were getting on him, and I got onto them. They got up and swing one or two times at Fabian Kigulu and I stopped them. They later got up and argue with David Daure. I stopped them and separated them. Kabai got a piece of iron and charged at us again. He wanted to swing the iron bar at us and I tackled him to the ground and sit on him and pulled the iron bar out from his hand and throw it to the other side where, a house was before. I slapped him. He ran to the front of the house and took something like empty bottles and started throwing at Fabian Kigulu and David Daure. He went in again and took a bush knife and started charging at us. That was after 2 or 3 weeks when Kabai was released from prison. For 10 or 20 minutes, Kabai chased us around. I was scared and took out my pistol from the back pocket and cocked it. I then shot into the air 2 or 3 times. Kabai did not started charging with the bush knife. When he came on the other side, I still held the pistol u there yet. Peter Akusa just came to where me and Fabian were standing and said; "Kaim I am injured now". I shouted at him and said, what happened. He replied that he was shot now. When Peter Akusa said that to me, I shot Kabai at his leg and he fall down. Me and Fabian Kigulu held Kabai and told the other boys to take Peter Akusa to the hospital.
Q.17. Titus, we will continue with the interview from yesterday now. But before we proceed, I would like to caution you that whatever
you say regarding this incident, will be recorded and may be given as evidence in Court. Do you clearly understand this?
Ans: Yes.
Q.18. Do you want to continue with the story which you left yesterday?
Ans: Yes, but first read my statements first and then I will continue. (Last paragraph read back to Titus)
Police did not take me with them. Later, the people who were walking down 7th Street said the Police accused me of shooting Peter Akusa. I was inspired by this but it was already dark. When I heard this, it inspired me and I went to the residence of my boss, Kevin Chow at Eriku. I told Kevin what had happened and the police had accused me and asked him to come with me to see the police boss. Kevin then rang ACP Mr Reu. He told us to meet him at his office. I want to tell him but he said to contact the Metropolitan Superintendent Mr Sete first. When we waited for Mr Sete, Mr Reu came out of the office and went to the car to use the radio or something. I stayed with Kevin in the office and I had the two way radio and heard police destroying my office and assaulting my neighbours. Not very long, we heard the police burnt a house at 7th Street after breaking it. I think of my properties and my families and asked the Metropolitan Superintendent and the ACP to go and fix them first before them first before I returned. They said it was ok and they let me go. At the same time, the police raided my office and took some of my two way radios. Police made many threats and swear at me. I was scared and hid myself. I thought of Peter Akusa’s funeral but it was conducted inside the barracks. Also, I wanted to talk to the relatives of Pete Akusa but they were inside the barracks. I did not have any way so I stayed till the 4th of January, 2001 you went to Butibam village and picked me up. That is all."
I will refer to other aspects of the Record of Interview later in this judgment.
The Statements of Senior Constable Yaeng Birum, Constable Dickson Koliadi, Senior Constable Paul Sakauwo, Senior Constable Joseph Numbos and Benson Nablu were tendered by consent. Other evidence tendered by consent was the Post Mortem Report of Dr. M. Sau.
The Statement of Senior Constable Yaeng Birum was to the effect that he was on duty on the 30th December 2000. Soon after he had signed on for duty at about 4 pm he heard that Peter Akusa had been shot at 7th Street so he went out to the police car which was parked outside the Lae Police Station and drove straight with four (4) other policemen to 7th Street. He stopped the vehicle at the entrance to the yard and walked into the yard. When he walked in he saw a man sleeping outside covered in blood. He walked closer and saw Titus Wambun (the accused) standing with a policeman by the name of Fabian Kigulu. He did not speak to Titus Wambun nor did Titus Wambun speak to him. Titus just gave him a pistol which he immediately took into possession. He then noticed that the man sleeping who was covered in blood was not Peter Akusa (the deceased) so he returned to the police vehicle, reversed it into the yard, and with the help of other policemen who went with him, put that man into the police vehicle and rushed to Angau Hospital. He took him to the emergency room, handed him over to hospital staff and went outside where he was told that Peter Akusa had died. He then handed the accused’s pistol to Senior Constable Allan Loloea.
The Statement of Constable Dickson Koliadi relates to his visit to the scene of the crime at 7th Street and in the course of an attempt to reconstruct the scene, he searched the area and found 3 empty 9 mm calibre bullet shells and handed them over to Constable Daniel Kaie. Constable Kaie also found other empty 9mm calibre bullet shells in the area.
Senior Constable Paul Sakuwo had two statements tendered by consent. He is the Police Photographer based in Lae. The Statement dated 9th March 2001 related to the photographs he took of the scene of the alleged crime and the statement dated 16th March related to the photographs he took of the deceased’s body during the post mortem examination. He also mentions the grey lead head which was removed from the deceased’s body during the post mortem. Since the photographs and the grey lead head have been tendered unopposed it is not necessary for me to set out the contents of those statements in detail.
The statement of Senior Constable Joseph Numbos relates to the following items which he received from Senior Constable Loloea for ballistics tests and examinations.
(a) 6 spent PMC Luger 9mm cartridges.
(b) 2 spent WIN Luger 9mm cartridges.
(c) A Glock pistol serial number CYE 992 with the magazine and 6 rounds of PMC Luger 9mm cartridges.
(d) A bullet retrieved from a deceased from the hospital.
(e) A bullet retrieved from the ground/soil at Section 68 Lot 16 at Robin Street, Lae.
On the 9th of January 2001, he test fired using the Glock Pistol serial number CYE 992 with 4 rounds of 9mm WIN LUGER cartridges issued by the Police. He also conducted other test shots using the suspect weapon referred to above as well as carried out examinations and comparisons to the lead heads retrieved from the ground at the scene and from the deceased’s body. He concluded that because of bullet differences and the poor quality of lends and grooves on the bullets in question, the positive identification of the bullets fired from the accused’s pistol was not possible.
The next Statement which was tendered by consent was that of Benson B. Nablu. His statement is to the effect that, on Saturday 30th of December 2000, between 9-10 pm he was at home with his family when he heard a car stop at the front gate of their house and not long someone knocked on the gate. His 10 years old son went out to check and a lady (Rose) called out that they wanted to see him. His son then called for him to come down and see them so he came out of the house and to his surprise saw Titus standing outside his locked entrance gate looking in. He thought this was a bit strange to have an uninvited visitor at this time of the night drunken and acting strange. The white sedan that dropped Titus off reversed back on to the street and drove off leaving him behind.
He opened the gate to let the accused in and quickly asked him why he had come to his house at this time of the night drunk. He paused for a while then said in tok Pidgin, "Mi no tink yu bai amamas sapos mi tokim yu wanem samting mi nau mekim"
He quickly asked the accused what he did and nervously the accused said he accidentally shot someone and he wanted to be taken quickly to the Lae International Hotel to stay there for the night then turn himself into the Police on Monday. He was visibly very upset and angry to hear of what the accused did and quickly asked that he take him (the accused) to the Police station.
The accused refused and demanded that he take him (the accused) to Lae International Hotel. He left the accused standing on his driveway and went into the house to pick up his car keys and at the same time asked his wife to accompany him to drop the accused off. As they reversed out of the gate the accused asked him to drive into Admin Compound so he could pick up a lady named Celley.
He obliged and hesitantly drove into Admin Compound to pick Celley. From there they all drove up to Lae International Hotel where the accused gave Celley some money to go into the reception and pay for a room while they were sitting in the car outside the hotel waiting.
When she returned she directed that he (Benson Nablu) drive around the hotel to room 108 which was located at the top end of the road and that’s where he dropped both of them off in front of their room on the car park and drove back home with his wife. Benson Nablu was not cross-examined so his evidence remains intact.
The final document that was tendered by consent was the Post Mortem Report of Dr. M. Sau. On his external examination of the deceased who was aged about 30 years and was about 145 cm tall, he found a 1cm x 1cm entry wound 7cm lateral to the left nipple. On internal examination he found in the mediastinum a collapsed left lung with displacement of mediastinum to the right. In the left chest cavity, he found an entry wound 7 cm below Left 7th rib laterally penetrating the left costophrenic angle of the pleura and entering the left lateral area of the diaphragm. About 600mls of blood was evacuated from the left chest cavity. Mediastinal structures (pericardium etc) were un-damaged.
In the Diaphragm he found a penetrating wound to the left lateral diaphragm extending posteriorly. In the abdominal cavity particularly in the stomach there was a presence of partially digested food. Entry of wound of missile was from left lateral side (at superior part of the greater curvature) to posterior and middle part of stomach with spillage of gastric contents into the peritoneal space. The lumbar vertebrae had a penetrating wound at 45 degree angle (in a postero-inferio direction)
The right kidney had a large tear/laceration of the upper pole. A bullet was found nestling in the right loin area postero-lateral to the right kidney.
The cause of death was found to be from tension pneumothorax and haemothorax due to the bullet penetration of the left chest wall, pleura, left lung and diaphragm.
Contributing cause of death was found to be from blood loss from pleural cavity and abdominal cavity.
Dr. Sau was cross-examined when he appeared upon request of the Court to clarify certain aspects of his Post Mortem report. Apart from pointing out to the Court where different organs of the human body as described in his post mortem report are located, Dr. Sau confirmed that the bullet entered the deceased’s body at a 45 degree angle downwards.
At the end of the prosecution case, the accused elected to give sworn evidence in his own defence. In view of the accused having maintained through his evidence in chief and in cross-examination the explanation he gave Chief Sergeant Issac Mol as set out in question and answer 16 to 18 of the Record of Interview that the deceased fell down before he fired warning shots and that he shot William Kabai after he heard about the deceased being wounded, it is not necessary for me to set out his evidence in detail. For me to do so would be to repeat what are essentially set out in question and answer 16 to 18 of the Record of Interview.
The accused’s lawyer then called three (3) other witnesses. They were husband and wife Luke and Hevaro Yabong and Allan Iwing.
Luke Yabong’s evidence (apart from what he said in cross-examination and re-examination which I will return to later) is contained in his statement dated 14 April 2001 which was tendered by Defence Counsel by consent of the State Prosecutor after deletion of those parts which appeared to be an expression of opinion or were based on hearsay. Luke Yabong’s statement was to the effect that on Saturday 30th December 2000 between 6 pm and 7 pm there was a fight at Anian Dogola’s residence at Robin Street and he could recall seeing people trying to stop Kabai William from continuing on with the fight. He was standing near a laulau tree in Anian Dogola’s yard. He said he was not drinking at that time. He stood there and watched those people who were trying to pull stones, sticks and pipes away from Kabai. At that time he saw Junior Dogola entering the house and as he was still watching, Kabai walked away and came back with a bush knife. When Titus Wambun saw that Kabai was returning with a bush knife he pulled out his pistol and held it up in the air and when Kabai continued to advance towards them, Titus fired one warning shot into the air to stop Kabai William.
Immediately after the warning shot was fired, he heard another gun shot fired from the back of the house and he looked to see what was happening and he saw a man who was also there at that time fall down. People called out that a man has been shot. He later found out that the dead man was a policeman.
If Kabai had stopped the fighting sooner none of these would have happened. Titus aimed his pistol at Kabai and shot him on the leg. His first shot missed Kabai’s leg but the second shot got him on the lower right leg. Kabai then fell to the ground and people got scared and there was crying, screaming and shouting and people started running away.
He was still watching when he saw Junior race out of the house and he (Junior) went over to the other side of the house to see the victims. When he took off he (Luke) also left the scene and walked back to his house which was nearby.
But as people were running away, he saw Junior Dogola going towards where he was standing with his wife. He started talking and he said, "Mi kilim man idai, mi kilim man idai." (I killed a man, I killed a man). He did not care about who was there or what he was saying he just kept on saying, "Mi kilim Policeman idai ya, mi kilim Policeman idai ya." (I just killed a Policeman, I just killed a Policeman) At that point he started telling them how he shot the Policeman. He said he went into the house and standing and aiming from their parent’s room he shot that Policeman. (He even acted it out to them).
While repeating himself he (Junior) started beating his chest and he said, "Mi gat skin diwai ya, Pupu bilong mi .... em wasman bilong mi ya." (I have a piece of a bark of a tree, my grandfather is my protector.) He repeated himself aloud couple of times and they could see that he was nervous and confused and he just kept on repeating the words, "Mi kilim man idai ya, wasman bilong mi istap ya." (I just killed a man, my protector is with me.)
He (Junior) then began to cry and he said that he meant to shoot David Daure but instead he shot the policeman. He continued and said, "Tasol em olrait, ol kilim Kabai olsem na mi kilim wanpela long ol." (But its alright, they killed Kabai so I killed one of them.) He continued crying thinking that Kabai was dead.
When he realised what he had just said, they told him to shut up and get out of our their premises because he might bring attention and trouble on them. They knew straight away what he (Junior) had just said was a confession and it could attract bigger problems into their house and they told him to leave their house immediately which he did and went on down to Allan’s house and he kept on repeating himself and there were many people there including his (Junior’s) wife and members of the family. He was talking at the top of his voice, "Kabai em idai olsem na wanpela long ol tu idai" (Kabai is dead so one of them too is dead). They could hear him from where he was because he said it aloud and many people heard it. He was shouting and boasting and telling people how he did it and why he did it.
A little while later he (Junior) went into their house again and came out with three cartoons of beer. Not long after, Police arrived and they all took off. He (Junior) could have been killed if he was still there. Mr Yabong watched and saw the task force (Police) burn down Anian Dogola’s house.
Luke Yabong did not know the murder weapon or what type of gun was used because he fired from inside the house and there was no way of him knowing what gun was used. That gun was used on some occasions at 7th Street and he had been seen carrying it in public but no one has reported it to the police in fear of their lives. That gun was still at large.
Junior Dogola’s confession happened in the presence of his (Luke Yabong’s) wife and his neighbours (Akai and Elsie) and they were shocked. He knew straight away that he had just witnessed a murder and at the same time heard the murderer admitting to the crime and he knew Junior had a gun.
He heard of Titus Wambun’s health condition and the fact that he (Titus) was kept at maximum security cells at Buimo made him come forward to assist with the case and set the matter straight once and for all. He believed Titus was innocent and why was he punished for something he did not do. The real culprit must be arrested and he should face the consequences of his actions that he had just confessed and admitted to the people at Robin Street."
The evidence of other defence witness, Hevaro Yabong is also contained in her statement dated 14th April 2001. She is the wife of Luke Yabong. Her statement is to the effect that she was standing with her husband Luke Yabong in front of their yard when the police arrived at the scene of the crime and as they turned to go to the back of their house, they noticed Junior Dogola coming towards their house through the neighbouring yard that belongs to a Madang man who was married to a woman from Wain. The gentleman’s name was Akai and his wife’s name was Elsie.
She called out to Junior and said "yu wokim wanem long hap ya, ol police ikam ya, yu kam na stap wantaim mipela." (what are you doing there, the police are here so come and stay with us.) He then climbed the fence and went over to their house.
She could see that he was nervous and shaking. He opened his mouth to talk but he just managed to mention their names over and over again as if he was trying to tell them something. She slowed him down and asked him, "Junior olsem wanem na yu wok long kolim kolim name bilong mitupela, yu laik tok wanem long mitupela." (Junior why are you mentioning our names like that, is there something you wan t to tell us?) Then he looked at her and said, "Mi kilim man idai ya" (I killed a man). In a state of shock she asked him, "Yu sutim husait?) (Who did you shot?) He replied and said "mi sutim policeman pinis ya." (I have just shot that policeman.) Still in a state of shock she continued asking "yu sutim em olsem wanem?" (How did you shot him?) He replied and said when Titus Wambun fired those warning shots, he (Junior) was in his parent’s room and had his gun with him and aimed from the window and fired down at the policeman. "Taim Titus Wambun isutim warning shot mi stap insait long rum bilong papa na mama na mi putim pipe (gun) bilong mi long window na mi sut igo down na sutim dispela policeman." (He acted it out for them.)
She then told him that what he did was very bad and that he was in a very serious trouble. He replied and said that he was scared and he started crying. They listened to him when he started beating his chest, boasting and he said, "pupu bilong mi em stap wantaim me" (my grandfather is with me) "ol kilim Kabai olsem na mi kilim wanpela long ol tu" (they killed Kabai so I killed one of them too). He repeated that statement many times infront of them and beating his chest and boasting of killing a policeman.
While he was saying that, Akai and Elsie were standing on their veranda and they heard him too as he was talking at the top of his voice, and they did not approve of what he just said and they called to him to take his trouble somewhere else.
They then called out from their veranda and told him to leave as he had just confessed a murder in front of them and they did not want anything to happen to them as they were scared and innocent.
They asked him to leave their house and he went across to Allan’s house and they saw him go into their (Anian Dogola’s) house and got three cartoons of beer out and brought them outside and they started drinking until Task Force arrived at the scene and burned down Anian Dogola’s house.
The evidence of the final witness for the defence namely Alan Iwing is also contained in his statement dated 14th April 2001. His statement is to the effect that on 30th December 2000 at about 11 pm after the incident at Anian Dogola’s residence they were about to go to sleep when Junior Dogola arrived at their house.
He came and asked them to have some beer with him. He kept on asking so he bought a cartoon of beer and brought it to the house for them to drink. Allan was there with his wife plus Junior and his wife.
While they were drinking he started talking about the man he had just killed. He started telling the story of what happened. Allan did not like what he was saying so he told him to stop talking and leave. He told him that this was a very serious matter and he cannot just go on talking like that.
He was drunk so he never shut up, he kept on talking and he mentioned, "yu tupela lukim, dispela policeman idai ya, mi kilim em ya." (Yu saw that policeman who got killed, no one killed him, I killed him.)
He (Mr Iwing) could not believe what he (Junior Dogola) was saying and told him that, "samting yu wokim ya, em bikpela samting turu. Yu pasim maus bilong yu na yu go, klia long haus biling mipela." (what you did is a very serious thing and you have to get out of my house.) After that he (Junior) left Allan’s house with his wife.
Since the response (in cross-examination) by Luke Yabong, his wife Hevaro Yabong and Allan Iwing were similar, it is not necessary for me to refer specifically to what each of them said during cross-examination. However, some common features about their evidence (particularly) on cross-examination were that they gave their respective statements to the Public Solicitor in Lae on 14th April 2001 which was about 3 months and 2 weeks after the incident. They did not give their statements to the Police. The reason they gave for the delay was that they were scared of the Police. They also said that they decided to come forward 3 months and 2 weeks after the confession to them by Junior Dogola when they heard about the accused being remanded at Buimo Corrective Institution and that he was very sick in hospital. In fact they visited and talked to the accused while he was in hospital. They also stated that they all live along the same street as the accused and even on the morning of Saturday 12th October 2002 the day when they were due to give evidence in this Court, the accused was taken down by Buimo Correctional Officers to visit his brother who lived along the same street but they denied that he spoke to them that morning.
Before I proceed to consider the evidence adduced by both the prosecution and the defence I wish to point out facts which are not disputed. It is not disputed that on the afternoon of 30th December 2000 the accused was drinking beer with a number of men in the premises of Anian Dogola at 7th Street, Lae when the deceased entered the premises. It is also not disputed that in the course of their drinking one Kabai William chased with a bush knife those who were drinking to the back of Anian Dogola’s house and it was at the back of that house that the deceased Peter Akusa was shot and he fell down. It is again not disputed that the accused had in his possession a 9mm Glock Pistol Serial No. CYE 992 and that he fired several shots at the scene. It is further not disputed that the 6 empty 9mm bullet shells and the grey lead head found embedded in the ground at the scene of the crime was fired from the accused’s pistol and that the live bullets found in the magazine with the pistol belonged to the accused.
Again it is not disputed that a grey lead head was found in the deceased’s body during post mortem examination by Dr. Sau and that the accused’s pistol, the empty 9mm bullet shells, the two grey lead heads and the live bullet shells were taken to Australia by Senior Constable Joseph Numbos and were tested and examined by Federal Agent and Ballistics Expert Paul McFawn. What is disputed and is in issue in this case is whether the accused shot the deceased Peter Akusa and if so whether he intended to cause the deceased‘s death.
As correctly pointed out by both counsel during submissions, there being no evidence from eye witnesses who were with the accused, the deceased and others as to what actually happened at the back of Anian Dogola’s house before the deceased fell to the ground, the case against the accused is founded or based on circumstantial evidence. The law on circumstantial evidence is as set out by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498 where it was held that when a case against an accused person rests substantially upon circumstantial evidence there should be an acquittal unless all the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
In deciding the guilt or otherwise of the accused I have taken into account the evidence adduced by both the prosecution and the defence
and the submissions put to me by both counsel. I must indicate at the outset that the evidence of husband and wife Luke and Hevaro
Yabong and Allan Iwing which were given on behalf of the accused do not assist the accused for a number of reasons. Firstly, notwithstanding
the fact that their statements were tendered by Defence Counsel with consent of the State Prosecutor, they are based on an alleged
confession by Junior Dogola and as such they are hearsay evidence and should be disregarded by this Court. Secondly, if their evidence
cannot be disregarded for hearsay then there being no evidence of police in Lae being disruptive and behaving in an intimidating
manner for the whole 3 months and 2 weeks since the incident on 30th December, 2000 and their decision to give their statements to
the Public Solicitor as well as the fact that they visited the accused in hospital and talked to him, raises the possibility that
their statement was given to the Public Solicitor after discussions with the accused. My observation of their demeanour while they
were giving evidence gives me the impression that they gave those statements after they talked to the accused so I do not believe
them. When a person lives so close and volunteers a statement regarding a serious crime after a long delay whereby blame is shifted
to another person and that person cannot be located by police to verify it, care should be taken in accepting such a statement lest
it results in the arrest of an innocent man and acquittal of
the real perpetrator of the crime.
Thirdly, the circumstances under which Junior Dogola purportedly confessed to them heavily weigh against normal human behaviour. Here we have a case where policemen became highly emotional upon hearing of the death of their colleague Peter Akusa and then proceed to the scene and burnt down Anian Dogola’s house the same evening. When the police arrived at the scene the Dogola family had fled but Mrs Yabong refers to an exchange of conversation between her and Junior Dogola and even in the face of him shaking. They appear to be exchanging conversation as if nothing had happened. Also Luke Yabong says nothing in this statement about the conversation between Hevaro Yabong and Junior Dogola but she refers to words that were exchanged with Junior Dogola while he was with her. So both statements cannot be correct. Even Akai and Elsie who are said to have been listening from their veranda have not been called by the defence to give evidence. I also cannot imagine Junior Dogola returning to the house after a very serious incident and taking 3 cartoons of beer out and drinking before Task Force members arrived. Other members of the Dogola family had fled so what made Junior Dogola stay behind with his wife if he was the one who shot the deceased from inside his parent’s bedroom?
Allan Iwing’s statement is also unreliable for similar reasons. His conversation with Junior Dogola at his house at 11 pm and even buying a cartoon of beer by which time police had burnt down the Dogola family residence and were emotional and looking for the assailant(s) of Peter Akusa cuts across the grain of normal human behaviour. Even Mr Iwing’s demeanour did not impress me.
If Junior Dogola did shoot the deceased from his parent’s bedroom window as the above three (3) witnesses claimed he confessed to them, why is it that Senior Constable Fabian Kigulu who would seem to me to be a friend of the accused and who was drinking with the accused and others and who no doubt was chased to the back of the house with others by Kabai William, did not appear as a defence witness if he was not prepared to appear for the prosecution and give evidence so that the whole issue of who actually shot the deceased could be clearly determined by this Court.
Further more, the above three witnesses, particularly husband and wife Luke and Hevaro Yabong’s evidence about Junior Dogola’s confession to them of shooting the deceased in retaliation for Kabai William being shot, cannot be correct because the accused’s evidence through the Record of Interview and in this Court was that he shot Kabai William after the deceased fell down.
So all the above coupled with the demeanour of Luke Yabong, Heravo Yabong and Allan Iwing which did not impress me as I have said, I place little or no weight on their evidence.
Bearing in mind the undisputed facts which I have alluded to above, the evidence that remains for consideration are the Statement of Benson Nablu, the Record of Interview and the accused’s evidence which as I have said, is consistent with his explanation in the Record of Interview. The Post Mortem Report and the affidavit evidence of Paul McFawn will also be referred to later.
When I consider the prosecution evidence particularly the Statement of Benson Nablu, the evidence of Paul McFawn and the Post Mortem Report against the accused’s bare denials through his Record of Interview and his oral evidence in this Court, I am convinced that what actually happened was as stated by Benson Nablu of the accused telling him (Mr Nablu) albeit nervously that he accidentally shot someone. This was between 9 and 10 pm on the day of the incident after the accused went to Mr Nablu’s residence. From his answer to question 60 of the Record of Interview, it is clear that Benson Nablu’s residence was at Yalu which I believe is Yalu Village at the outskirts of Lae City. The statement of Mr Nablu having been tendered unopposed and further that his statement has not been challenged or discredited through cross-examination, his evidence remains intact. There is also no suggestion that Mr Nablu was a friend of the accused let alone known to the accused. Consequently the accused’s "confession" to Mr Nablu about accidentally shooting someone must be correct because the incident happened about 4 to 5 hours earlier and was therefore fresh in his mind. He told Mr Nablu of something that was within his personal knowledge.
The accused’s "confession" to accidentally shooting someone is also consistent with his answer to a number of questions in the Record of Interview which I reproduce below:
Q. 40 I got information that you yourself fired the first shot, what will you say to this?
Q.45. I collect information that after all this, you pointed the pistol towards your head and tried to pull the trigger but Fabian Kigulu pull your hands away. What are you going to say about this?
Q. 46 What do yo think about the firearm shot?
A. To stop Kabai from attacking Kigulu and David.
Q50. Do you agree that at 7th Street, Senior Constable Kigulu told you about shooting Peter Akusa?
A. Yes he told me that I must have shot my brother.
So it is clear from his above answers that he fired shots at Kabai when Kabai charged at them with the bushknife and that he accidentally shot the deceased in the process. He did not shoot into the air at first as claimed by him through the Record of Interview. I would consider his explanation through the Record of Interview that he fired warning shots into the air as a mere exculpatory statement given more than a month after the incident. He had sufficient time to plot his defence. But what he told Mr Nablu appears to be correct as it was done, as I have said, a few hours after the incident when everything was fresh in his mind.
This is also consistent with the evidence of Dennis Kamen that after the accused and others were chased to the back of the house by a person with a bush knife, he heard a shot from a gun.
The Post Mortem Report of Dr. Sau which showed that the bullet entered the deceased’s body at a 45 degree angle did not make it consistent with the evidence of Luke Yabong, Hevaro Yabong and Allan Iwing that it was Junior Dogola who shot the deceased from his parent’s bedroom window for several reasons.
Firstly, it is hearsay evidence and should be disregarded. Secondly, from the medical report which showed that the deceased was 145 cm in height and my observation that the accused appeared to be much taller at about 165 cm, he could have shot the deceased downwards while the deceased was standing or that the deceased may have been sitting down. From his own "confession" to Benson Nablu to accidentally shooting someone I am satisfied that the person the accused accidentally shot was the deceased because Kabai was intentionally shot after the deceased fell down.
Another aspect that is consistent with the accused confession that he shot someone is the evidence that the accused’s Glock Pistol was the only one at the scene at that time.
The inference I draw from all the circumstantial evidence and from which I am satisfied beyond reasonable doubt is that the accused shot the deceased with his Glock Pistol Serial No. CYE 992 and that the grey lead head found in the deceased’s body was the one fired from the accused’s pistol.
The next issue for determination is whether the accused intended to cause the deceased’s death. There being no direct evidence
showing what actually happened before the accused shot the deceased I cannot be satisfied beyond reasonable doubt that the accused
intended to cause the deceased’s death. I accordingly find the accused not guilty of wilful murder but guilty of manslaughter.
_____________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Accused : Public Solicitor
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