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State v Poroli [2004] PGNC 113; N2655 (25 August 2004)

N2655

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO: 788 OF 2003

THE STATE

-v-

MARK POROLI

Mendi: Lenalia, J.
2004: 18, 25 Aug.

CRIMINAL LAW – Wilful murder – Plea of guilty – Criminal Code, s. 299 (1), Ch. No. 262.

CRIMINAL LAW – Wilful murder of policeman in execution of his lawful duties – Policeman gruesomely murdered – One gun shot killing policeman instantly – Policeman hunted down as though he was criminal – had away to be slaughtered like a sheep – "Worst type" case killing – Inhuman barbaric cruel and horrific killing of a policeman on duty.

CRIMINAL LAW – Payback killing – Concept – Non applicability of – Deceased policeman from coastal Province – Policeman on duty – Constitutional obligation to enforce law and "preserve peace and good order" – Right to life – Instant killing categorized "worst type" case – Death penalty appropriate, see ss. 35, 36 and 197 of the Constitution.

Cases cited:
Goli Golu -v- The State [1979] PNGLR 653
Ure Hane -v- The State [1984] PNGLR 105
Avia Aihi (No.3) -v- The State [1982] PNGLR 92
Steven Loke Ume & 2 Others -v- The State (2000) SCRA 10 of 1997
The State -v- Arua Maraga Hariki (2003) N2332
The State -v- Kepak Langa (2003) CR No. 300 of 2003
The State -v- Ben Simakot Simbu (2004) CR No. 1413 of 2002
Jae Fae Leslie Leslie -v- The State (1998) SC560
The State -v- Tumu Luna (2002) N2205
The State -v- Yapes Paege & Relya Tanda [1994] PNGLR 65

Counsel:
Mr. S. Kesno, for the State
Mr. P. Kapi, for the Accused

25th August 2004

LENALIA, J. The accused Mark Poroli of Levani village, Koroba District, Southern Highlands Province is charged that on 18th day of May in 2002 at Hetawi village near Koroba station, he wilfully murdered Constable Gaier Semai (deceased). This is an offence contrary to s. 299 (1) of the Criminal Code.

After the accused had been arraigned and asked to plea, he entered an unequivocal plea of guilty.

Facts

On Friday 17th of May 2002, a group of four (4) policemen including the deceased all from the Police Mobile Squad 10 based in Tari Police Station left Tari station at 1 pm to provide an escort to a Bromley & Menton delivery cargo truck en-route to Koroba Station. On the same date an intending candidate campaigning for the 2002 General Election also requested that, he too be escorted by police to Kabilo village somewhere past the Koroba Government Station. The reason for this request was because Benias had brought with him a large sum of money in cash believed to be some K150,000.00.

On the convoy that afternoon, there were four vehicles. The police vehicle, two Toyota Land Cruisers, one of them owned by Benias and another by Willie Pongoli. The later was the supporter of the former. The fourth vehicle was a Dyna Toyota Truck owned by Bromley and Menton in Tari. The truck was carrying a full load of cargo destinated [sic] to Koroba Station.

On arrival at the station at Koroba, the convoy stopped to wait for the Dyna Toyota truck to unload its cargo. Benias requested the four policemen to escort him further up to Fuguwa village. They took off from the station and on their way along the Hetawi villages, they came across a man carrying in his possession a factory-made high powered gun. He was asked by the four policemen how come he had a high-powered gun and as to where he got it from. He answered that he was a body-guard personnel to their local MP. Hon. Herewa Agiwa. The police arrested this man and had him detained in their vehicle.

They took of from there to Hetawi village. In that village, the convoy came across a large crowd of people gathering to witness a compensation payment being made by one of their clans for the death of a young man from the other. The police estimated that the crowd would have numbered between 5,000 to 7,000 people. Having seen this large crowd, the police vehicle being on the load slowed down in order to drive through slowly.

A community leader in that crowd sighted Benias in the police vehicle and shouted at the police car demanding an answer as to why the police had provided an escort to somebody who was not a minister of the State. In the course of that conversation, the man who had been arrested by police and detained in the police vehicle started to call out from inside the vehicle and called out for assistance. The man took advantage of the slow movement of the vehicle, he leaped to his feet and jumped out from the police vehicle.

As soon as the arrestee jumped out from the car, a man from the village got into the police vehicle a 10 seater and manhandled the policemen sitting at the back. He struggled with them and grabbed one gun from the police. The facts are not clear if, the gun which the man got from police was a police issued gun or the gun they seized from the arrestee. Having realized there was a confrontation, the driver of the police vehicle drove a little distance away from the scene.

The driver of the police vehicle drove away some few hundred metres, but as the policemen sitting at the rear looked back, they saw that the two vehicles of that convoy were surrounded and people started to attack them. The driver of the police vehicle was told about that and they turned around and drove back to the scene and the policemen noticed that there was already a commotion. By the time they reached the crowds, the two Toyota Land Cruisers were already being damaged beyond repair.

Warning shots were fired by police, but those from the crowd who had gun open fired at the police vehicle. In the course of such cross fire, the driver of police vehicle Constable Gideon Tui was shot on his chest. Another policeman was also shot. In a bid to drive away from the scene, the police vehicle could not run fast as it’s back tyres had been punctured by gun fire from angry villagers.

Police could not stand the shooting. For one thing, they were outnumbered and secondly they were no match to the fire-power coming to them from the crowds as the police vehicle was fully surrounded. Police was totally out-gunned. The police driver drove off slowly and ran down hill toward the Koroba Station. On the way they could not continue with flat tyres. They planned to abandon their vehicle and set on foot toward the direction of Tari.

As the four policemen and Benias were fleeing, they heard shouts from mountain top to mountaintop calling out in the Huli language that villagers at Hetawi village and police had had a gun battle and some of their people had been killed in the shoot out and that the main road should be blocked and Helas should set up ambushes for the policemen. With the assistance of Benias, policemen learnt that they were being ambushed so they paired off in twos and ran in different directions fleeing for their lives.

Constable Gideon Tui and Caspar Maugla tell the story of how they spent the cold night in the forest. They were very weak and their bodies were totally numb. In case of Constable Tui, he got up very early in the morning at 5:30 am and realizing it was downing, he started to look for a place where he could hide. As he was walking around in the bushes, he caught up with late Constable Seimai. Gideon found a place where he could hide and so he hid himself. Whilst in his hiding place, he requested Constable Semai to join him in the same place. The victim refused. Gideon repeated his call the second and third time but the victim said, it was too late because villages were closing in from all directions.

As Gideon was hiding, he saw the people coming up their direction. Then they came across late Constable Semai. After they found the victim, the people stopped searching. Two of the men held the victim one on each hand and they led him up to the main road. Up toward the road, they met the accused and another group of men. A Pastor of the Weslyan Church met the mob and he was told that they were going to kill the policeman.

Kope Kaipiawi, a student at Fuguwa Community School and another youth from that area Hetawi Tapole said the accused and his men led the victim further up the road and the pastor offered to say a last prayer for the policeman before he could be shot. After praying, the pastor took off.

The accused and his mob led the policeman up to a nearby hill where there is a cliff on one end of it. The victim was asked to go and stand at the edge where the cliff is and he stood still. He was ordered to turn around to face the mob. This the victim obeyed willingly. Before he was shot, the victim requested his captors to allow him a few minutes so he could pray for himself.

After praying, the victim said "Amen" and as he started to open his eyes, the accused raised his homemade gun, aimed at the policeman’s forehead and fired a single shot at the victim landing right on the deceased’s face. The deceased died instantly he fell down and rolled down the cliff face to the level ground.

The medical report confirms that a single bullet had travelled through the deceased’s head into the centre of the brain right through to the temporal bone and on to the skin on the other side of the deceased’s head.

The Court asked the accused if he wanted to say anything before his lawyer addressed the Court on sentence, the accused said he is sorry for committing this offence and asked if the Court could take into account in his favour the fact that he himself surrendered to the police in Tari. He expressed some concern however that, the reason why he did what he did was because, the policemen had shot his uncle. That was his uncle who reared him up in absence of his parents who were both dead by the time he was small.

Mr. Kapi of counsel for the accused submitted that though there may have been some elements of provocation in the "non legal sense" they conceded that the present case is one of the worst type cases warranting a sentence of either a life sentence or a term of years.

Mr. Kesno for the State submitted in reply to the defence that the circumstances of the present case are such that the case should be categorized as the "worse type" case. That this was the killing of a policeman who was lawfully carrying out his Constitutional duties. He further submitted that s.19 of the Criminal Code should not be seen as an alternative moderation f the law on the prescribed maximum. That the above provision should only be invoked where there were special mitigations and that the instant case is the "worst type" case warranting imposition of the death penalty.

Law

The prescribed maximum penalty under s.299 (2) of the Criminal Code (Ch. No. 262) is death. When Papua New Guinea got its Independence on 16th September 1975, the prescribed penalty for wilful murder was death. But only one year after that, by an amendment called the Criminal Code (Amendment) Act (Act No. 2 of 1976) the death penalty was repealed and replaced instead with life imprisonment. Because of the rise in the general law and order problem in the country and more particularly in this region where tribal fights was then common, the Parliament decided to reintroduce the death penalty. So in 1991, by an amendment, the Criminal Code (Amendment) Act (Act No. 25 of 1991) the penalty provision was amended which resulting in the reintroduction of the death penalty.

The wording of the section under which the accused is charged provides:

"299. Wilful murder.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other persons, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death".

This Court has discretion to impose either, the prescribed maximum, a life sentence or a term of years pursuant to s.19 of the Code.

The principle for sentencing in wilful murder cases were enunciated in Goli Golu -v- The State [1979] PNGLR 653, Avia Aihi (No.3) -v- The State [1982] PNGLR 92 and Ure Hane -v- The State [1984] PNGLR 105. The principle is that, the maximum penalty should be reserved for the most serious instances of offences under consideration. This means that, the maximum penalty should only be imposed in those cases where they are categorized to be the "worst type" of cases or the "worst type cases".

It is often said that, the penalty to be imposed must be fit for the crime committed. Both counsels concede that, the killing in the present case can be categorized as amongst the "worst type" case. In any consideration in regard to life being something precious and at the same time so delicate, some consideration must be had to s.35 of the Constitution. The right to life is a fundamental one and ought to be safeguarded as much as possible at all cost except as defined by the above section in the following words:

"35 Right to life

(1) No person shall be deprived of his life intentionally except –

(a) in execution of a sentence of a court following his conviction of an offence for which the penalty of death is prescribed by law; or

(b) as the result of the use of force to such an extent as is reasonable in the circumstances of the case and is permitted by any law –

• (i) for the defence of any person for violence; or
• (ii) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or
• (iii) for the purposes of suppressing a riot, in an insurrection or a mutiny; or
• (iv) in order to prevent him from committing an offence; or
• (v) for the purposes of suppressing piracy or terrorism or similar acts; or
  

(c) as a result of a lawful act of war.

(3) Nothing in Subsection (1)(b) relieves any person from any liability at law in respect of the killing of another".

Counsels have referred the Court to a number of cases including the ones I have cited above. I have read all the cases that were referred to me and I will only mention some of them. In The State -v- Tumu Luna (2002) N2205 (dated 20th May 2002), Jalina, J. sentenced the accused to life imprisonment. That was a case of wilful murder where the deceased pleaded with the accused that they were brothers and the accused should leave him alone. The prisoner in that case did not listen and shot the deceased at point blank range with one single shot from a homemade gun.

I distinguish the facts of the above case to those of the present case. That case involved a killing of an ordinary villager whereas, the killing in the instant case involves the killing of a policeman in execution of his lawful duties. Nor can this Court liken the circumstances of the present case to that of Joe Fae Leslie Leslie -v- The State (1998) SC560. In that case, the appellant was a prisoner escapee from Bomana C.I.S. On a tip-off, police mounted an operation to re-arrest the appellant. They came to the house where he was and surrounded it. Police called out if there was anyone in the house but there was no response. Police fired shots into the house to force the appellant out but he did not come out. The victim policeman in that case pushed the door open and walked in to find the man they were after sleeping on the floor. The appellant turned to the policeman and shot him. He was sentence to life imprisonment but his appeal against conviction and sentence was dismissed.

Bredmeyer, J. in Ure Hane’s case (supra) categorized what he thought to be the "worst type" cases of wilful murder. I remind myself that, wherever reference is made to the words "worse type" or "worst type case" in Hane’s case and Aviah Aihi -v- The State and that of Goli Golu -v- The State (supra), those were references made to the then maximum penalty of life imprisonment for the offence of will fulfil murder. There are many wilful murder cases on which various judges have made references to the terminologies used in the above cases as well as in murder and manslaughter cases.

My observation on wilful murder cases where the National Court has imposed the maximum of death penalty since Ombusu -v- The State [1996] PNGLR 335 right up to the latest sentence to death in The State -v- Ben Simakot Sumbu (2004) CR. No. 1413 of 2002, just have made reference to the principle that the maximum penalty ought to be reserved for the worst category of cases.

I adopt the principles stated in Goli Golu, Avia Aihi and Ure Hane’s cases and apply them to the circumstances of the instant case and I must say that the killing in the present case falls into the "worst type" category. The killing of the policeman was totally unwarranted. The accused in the instant case had shown complete disrespect and contempt for the process of the law. It is the duty of this Court to protect policemen, policewomen, warders and wardress in the execution of their lawful duties. All law enforcement agencies such as police, CIS officers and the Courts deserve the full protection of the law. In this manner, the stern approach by this Court in relation to sentencing on people who take lives of others in the most inhuman, cruel and gruesome killings of law enforcement agencies and other people for that matter ought to be consistent.

I wish to adopt and apply to the circumstances of the instant case comments made by the trial judge in Leslie Leslei’s case. Those comments are quoted at page 7 of the Supreme Court decision of 7th of August 1998 in the following terms:

"I adopt these statements in the present case and I want to reiterate my own belief that, where a policeman is attacked in the course of his lawful duty, the attackers must be severally punished. It is my view that an attack on a law enforcement agency, is a very serious matter. I consider that an attack on any of the law enforcement agency, be it a police officer, Judge, Magistrate or CIS officer, is a very serious matter. I consider that an attack on any of the law enforcement agency is tantamount to an attack on the fundamental democratic institutions we have under our Constitution. The attack on the police officer in the present case, in my view, is tantamount to an attack on the function of the Police Force under s.196 of the Constitution. Neither the Courts nor the community at large should condone or tolerate violence against police officers who are going about their lawful and constitutional duties".

Since the reintroduction of the death penalty in 1991, no death sentence had been passed until the case of The State -v- Charles Bougapa Ombusu (decision of the National Court dated 17th February 1995) where the accused was sentenced to death. He appealed to the Supreme Court and the appeal was upheld in both conviction for rape and wilful murder quashed and the appeal was set aside on technical grounds only. (see Charles Bougapa Ombusu -v- The State [1996] PNGLR 335).

Since the above case, not only in wilful murder cases, but in murder and manslaughter cases as well, judges have consistently remarked and made comments about the kind of disrespect and casual attitude taken by offenders toward the sanctity of life. In the most recent case of The State -v- Ben Sumakot Simbu CR. No. 1413 of 2002 (unreported judgment dated 25th March 2004), Kandakasi, J. sentenced the accused to death after he was found guilty of a double murder of a woman and her 2 years old son.

His Honour the trial judge commented in the above case that it was one of the "worst type" case because the Court found there that, the accused had no reason at all to kill the woman and her child. The accused in that case came to the victim and requested the woman to borrow one of her life chicken on credit. She refused two times and on the third request, she still refused. Being angered by her refusal, the accused put up a fight with the woman. He threw her to the ground and thereafter raped her. After raping her, he took an old piece of iron and hit her across her head and face several times causing her instant death. He picked up the same object and hit the 2 year old son who sat crying on the bed side somewhere. The child died instantly too.

On the trend of sentencing for wilful murder cases, His Honour, the trial judge in the above case made the following observations at page 15 of his judgment:

"No doubt therefore, there has been great reluctance in the National Court to impose the death penalty. On the other hand, offenders have not shown any reluctance in committing serious wilful and other types of killing. Offenders appear to be finding it easier to readily commit wilful murders and get away with a determinate term of years to life imprisonment. There simply appears to be no deterrence by the kind of sentences in the majority of the wilful murder cases that have proceeded to trial and concluded with a sentence. In view of this, the highest Court of the land in Tony Imunu Api -v- The State, has suggested the death penalty should be seriously considered".

Coming now to the important issue of determination of an appropriate penalty to be passed on the prisoner in the present case, the terms of the wording in the penalty provision suggests that, that is a clear legislative intention empowering this Court to make the punishment fit the severity with which the crime of wilful murder is executed.

This Court has considered the accused guilty plea to this highest crime of homicide. I have also taken into account his co-operation with the police during police investigation and not only his admissions during the record of interview, but the accused even showed to the investigating team where they took the deceased from and what they did to him up to the state where the accused mercilessly slow the victim by firing one single shot into the deceased’s head. I have also consider the fact that, the accused surrendered himself to the police at Tari.

The above factors are considered in favour of the accused. However, when considering the serious nature of the manner under which the policeman empowered by law, namely first s.196 of the Constitution and the duties lawfully vested upon the deceased by the Police Force Act, (Ch. No. 65), all mitigations raised in favour of the accused fade away very significantly. In any event a guilty plea to a very serious charge like the present one involving a wilful murder deserves no credit.

A few other matters worth mentioning. First the killing in the instant case cannot be compared with the case of Leslie Leslie’s case as that was an attempted murder. The circumstances under which the deceased policeman met his death is a mockery of the system of Government adopted by our Constitution and even before Independence. I find from the brief facts of this case that, the policeman now deceased was gunned down in the most gruesome circumstance. The killing in the present case was not a case of an accident nor was the deceased killed in a cross-fire between the police and the accused. It was an intentional killing of an innocent man whom I must say, he died for his country.

The deceased policeman was hunted down like a criminal or an animal. He had spent a bitter cold night in the forest in the hope that he himself and his colleagues would somehow escape on the morning he was shot. His hope vanished when you and your mobs came upon him and caused an unlawful arrest on an innocent man. You then led him away to be slaughtered like a sheep.

In answer to question 36 of the record of interview, the accused raised the issue of provocation in the "non legal sense" by saying that, the reason he shot the policeman was because a policeman had hot his maternal uncle who raised him up in place of his deceased parents who died living him while yet a baby. The question here is can the concept to payback killing be extended to cover situations in the circumstances where a policeman or a Warder is carrying out their lawful duties.

It is my respectful that, the concept of payback killing in tribal conflicts situation cannot be extended to cover situations where a policeman or warder is killed in execution of their lawful duties. This in my view would be a direct attack on the Constitution and concept of democracy.

It is this Court accepts the argument by the defence that since, police killed the accused’s uncle, the accused had to kill a policeman to pay back, would in my view be tantamount to legitimizing insurgency against the legally constituted Government of the day. In any event it would be against s.200 of the Constitution and authorize and promote unauthorized forces.

So clearly, I must reject the mitigation raised on behalf of the accused that, because a policeman killed his uncle, he had to kill the deceased.

After all, the accused could not tell which policeman had shot his uncle suffice it to say that, he might have been a policeman. But the facts clearly show there was a big commotion which created the shoot out and the crowds were firing at the police vehicle from all directions. Even then, a bigger argument still is that, any killing done in the circumstances as was the case in the present situation cannot be regarded as a case of provocation in the non legal sense.

Further, the concept of "payback killing" ought not to be extended to cover situations where a policeman or any other law enforcement personnel is being killed in the lawful execution of his or her duties. This principle of payback killing should not be applied to cover law enforcement agencies as I have said above. This is my view undermines, the Constitution of Police Force Act and the concept of democracy and the process of the law.

What I have said above is not an excuse for policeman or warders to kill escapees or anyone in the process of lawful arrest. In all, the police is required by law to preserve the peace and good order in "an impartial and objective manner" and the law does not justify the use of greater force than is reasonable in specific circumstances, see ss. 197 Constitution and Part IV of the Arrest Act (Ch. No. 339).

Taking your mind back to the scene of the incident in the present case, the poor deceased did not even resist his illegal arrest caused on him by his captors. The deceased surrendered himself in order for the accused and those of his gang to gun him down. It appears to me from Mr. Kesno’s submissions that there is a general law and order problem in this region and more particularly in this Province. One can understand that from the circumstances of the instant case. There were many people on the scene carrying high powered guns. There were more homemade guns as well.

It is the duty of this Court to ensure that policemen, policewomen, warders and wardress are protected by the law. The Courts must do their duty to tray and assist in the preservation of order, peace and life so that the police and prison officers can carry out their lawful duties to the best of their abilities, so they can carry out their responsibilities boldly well knowing that their lives will be protected by law if they use reasonable force.

I ask myself a question, if this Court is submissively and weakly concede with the defence submission that, this case does not fall under the "worst category" for whatever reasons, I cannot see nor even comprehend what else can this brutal killing be defined or described like. Clearly, the case before me was and is the "worst category" of its kind. The deceased policeman in the present case was truly wilfully murdered in the course of carrying out his Constitutional duties.

Simply put, the facts of the instant case reveals that the nature of killing was one of those most barbaric brutal, horrific and cruel type of killing known to this Court in the history of the Constabulary in Papua New Guinea. Honestly, the Court must say, there was no mercy shown to the deceased since, he was from a nearby neighbouring coastal Province of Western Province. He was even asked to say his last prayer before the accused shot him through his head. The deceased who was on duty lost his life in the most horrific and inhuman manner.

It appears to this Court that, life is very cheap in Papua New Guinea. Crimes of homicides are freely committed without fear and respect due to the human person. Lack of sophistication cannot be claimed in this part of the country. Exposure to both the Government and Christianity has been around for sometime now. But despite such exposure, such influences has had very little impact on communities in this country.

In relation to ignorance of government services and the strong tribal conflicts controlling the lives of people requiring them to carry out certain killings and the possibility that it might conflict with s. 35 of the Constitution, Woods, J. said in The State -v- Yapes Paege & Relya Tanda [1994] PNGLR 65 at page 68:

"Twenty years ago, judges were considering in wilful murder situations in tribal conflicts that there may be a partial cultural justification for this sort of killing which reduces the defendant’s culpability or level of moral blame worthiness; for example, see R -v- Kilape (1973) No. 763. In another case, consideration was given to the defendant’s ignorance of the ways of government, their up bringing, and the strong tribal traditions which have until now controlled their life and which require these killings. Those were all circumstances which were properly to take into account into determining the question of sentence".

His Honour continued from pages 68 to 69:

"However, how can that be seen to be relevant in places like Liagam, where there has been a history over the past 10 years of police action to try and curb tribal fights, where the road is busy with modern traffic and modern business, and where schools have been operating for years and people have been benefiting from the modern advantages synonymous with the modern wealth flowing down from Pogera and Mout Kare?

Parliament has clearly sown their concern at these tribal continued tribal fight and ambush killings and ordered that the punishment is death. This Court cannot ignore the law. And considering the history of violence and similar killings in that area, I have some difficulty in finding the existence of appropriate circumstances, which allow the exception provided for in s.19."

I agree with the above observations and I must say that the manner under which the victim was gruesomely and un-mercilessly executed by the prisoner in this case is amongst the "worst type case" or "most serious type case". There is the need to protect human life and the community at disrespect for the sanctity and dignity of human life enshrined in the Constitution.

The decision in this case which shall shortly be pronounced will send a clear message to the people of this Province and elsewhere that, blatant disregard to human life is too prevalent. More particularly under the circumstances of this case where the deceased Police Constable was mercilessly slain in the course of the lawful execution of his duties away from his Province, people relatives and friends.

I consider therefore that, the wilful murder of the deceased policeman in this case is worthy of the death penalty. The prisoner is sentenced to death. The Court orders that you shall be remanded in custody at Baisu Correctional Services or at such other convenient secured places as may be considered appropriate by C.I.S. authorities awaiting the execution of the death penalty.

Sentenced accordingly.
___________________________________________________________________
Lawyer for the State : The Public Prosecutor
Lawyer for the Accused : The Public Solicitor