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State v Num [2016] PGNC 46; N6223 (29 February 2016)

N6223

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 598 of 2014

Between:

THE STATE

And:

WILSON NUM
Accused

Mt Hagen: Nablu, J
2015: 3, 4, 5 November
2016: 29 February

CRIMINAL LAW – Particular Offences - Murder by criminal negligence – Criminal Code ss. 300, 287

CRIMINAL LAW – Criminal negligence – question of worthiness of firearm - State must tender clear and coherent evidence of defectiveness or unworthiness of firearm – Insufficient to raise issue of defectiveness of the firearm from the Bar- for purposes of s.287 of the Criminal Code.

CRIMINAL LAW – Policeman – Surrounded by crowd – Firearm discharged – Accidental or negligent – Inconsistency in State Evidence – Reasonable doubt raised – Unsafe to convict on evidence tendered - Accused acquitted.

Cases cited:

Java Johnson Beraro v. The State [1988-89] PNGLR 562
The State v. Albert Tiki (2013) N5103
The State v. Angeline Winara (No.1) (2008) N3345
The State v. Mas Judah Binas (2007) N3118
Wanamba v. The State (1998) SC551

Counsel:

J.Done, for the State
J.Morog, for the Accused

DECISION ON VERDICT

29th February, 2016

1. NABLU, J: The accused pleaded not guilty to one count of murder of Jeff Kellange Jr (deceased), a 14 year old male child, contrary to Section 300(1) (b) of the Criminal Code. The accused was a Policeman on duty at Banz Market, Jiwaka Province, whilst attending to a complaint, it is alleged that he fired a shotgun which killed the deceased. The State also invoked Section 287 (1) & (2) of the Criminal Code (Duty of persons in charge of dangerous things). During the course of the trial, it became clear that the following defences were raised; accident pursuant to s.24 of the Criminal Code and the defence of extraordinary circumstances (s. 26 of the Criminal Code).

2. The following facts are not in dispute. The accused was a policeman and held the rank of Constable. At the material time, he was attending to a complaint of drunk and disorderly conduct at the market place at Banz. When attending to the complaint he was in the company of four policemen. The accused was armed with a Russian made Mossberg Shotgun. It is also not disputed that the deceased died as a result of gunshot pellet wounds.

3. It is not disputed that the incident took place on Saturday 26th October 2013 at about 9:00am at Banz Market and that the deceased was within the vicinity of the Market.

4. Upon indictment, the State alleged that the accused was the only officer armed with a shot gun whilst the other officers were not armed. Two of his colleagues were effecting the arrest of a drunken person when he retaliated and stabbed an officer on his right leg with a knife. A commotion ensued between the officers and the drunkards. The perpetrator's friends and bystanders then joined in to help them fight off the police officers. At the time, a huge crowd had built up.

5. It is alleged that the accused fired the shotgun to disperse the crowd. The pellets from the shotgun spread and hit a number of victims injuring them and one of them, Jeff Kellange Jr, died as a result of the injuries he sustained.

6. The State alleged that the accused by the act of unlawfully discharging the firearm was an act likely to endanger human life. Consequently, the pellets hit the deceased on the right chest causing his death.

The Criminal Charge

7. The accused is charged with the offence of murder pursuant to s.300(1)(b)(ii) of the Criminal Code. Alternatively, the State also invoked the alternative verdict of murder by criminal negligence pursuant to s. 287 (1) and (2) of the Criminal Code.

The State's Case

8. By consent the following documents were tendered as evidence and given exhibit numbers as follows:

Exhibit A – Record of Interview dated 19th December 2013

Exhibit B- Post Mortem Report with Medical Certificate of Death

Exhibit C- Affidavit of Doctor Brian Galungim

9. The State called three witnesses, Joseph Sinemau, John Negints and Paul Steven. All three witnesses gave an oral account of what had happened on that day.

10. The first witness Joseph Sinemau was from Kenakopi Village in Jiwaka Province. He stated that he knew the accused. He was a newly recruited Police Constable who was posted to Banz Police Station. On that day he went to Banz Market in the morning. He recalled that, some drunken men came to the market and wanted to collect the market gate takings. Upon learning of the incident, the men who normally collected the gate fee then laid a complaint at the Police Station. A policeman came to apprehend the two drunkard men. The two men resisted arrest and fought with the policeman. The policeman then called out to four other policemen to assist him.

11. The accused was among the other policemen who came to assist. He stated that the accused held the gun. When asked what the policemen did when they arrived, he said, he was trying to save himself and he fired the shots. He stated that he was twelve (12) or thirteen (13) meters away, when the accused fired those shots. He said the accused had his back to the Korean Store and the other policemen. He fired the shot towards the market. The deceased was at the same place they were situated at in the market. The others were trying to arrest the two drunkards and the accused was trying to disperse the crowd. The policemen were 2.5 to 3 meters away from the accused. When he fired the shot, a man's hand was severed and the deceased fell down and died.

12. In cross-examination he denied that the policeman who initially attended to the scene was stabbed. When asked if there were some people between him and the accused, he agreed that a crowd came to see what was happening. When asked whether the crowd was close to the accused, he denied that they went close to the accused. When asked why the crowd maintained their distance, he said that they were scared of the police and the drunkards. He stated that there was no crowd and that nobody had surrounded the accused.

13. The next witness John Negints was from Warakar in Banz. In examination-in-chief, he stated that he knew the accused. He was at the market with his wife to sell pineapples at the material time. He stated that there was one auxiliary policeman complaining about the gate fee takings the two drunkards were collecting.

14. He said that he saw two policemen arrest the suspects. One policeman Dick Tang called for backup and more policemen came to assist. He saw the accused carrying the firearm and he was accompanied by three other policemen. He stated that the accused turned his back to the drunkards and policemen, cocked the gun and got ready. He aimed, fired the gun and shot the boy. The accused was at the bus stop where their market stalls were situated. The witness stated that the deceased grandfather was from Chimbu and he lived with them at Banz.

15. He then told Joseph Sinemau to take the deceased to the hospital. Then he went after the accused and confronted him. He asked him why he had shot the deceased. He said that he was arrested by Dick Tang and was locked in the cell for seven hours. According to Negints, the accused pointed straight, aimed and fired the gun. He was pointing straight when he aimed and fired. When asked where the deceased was he said that the accused was about 4-5 meters in front of him, next to a woman who was selling scones. He also admitted that the deceased father was married to a girl from his village, which was how he knew the deceased.

16. In cross-examination he stated that Joseph also sold scones at the market and their market tables faced each other. He said that there was a little path in between their market stalls which people could walk through. He also said that he knew the two drunkards as Sans and Danny who had struggled with Dick Tang. When asked whether a big crowd gathered around he answered, yes. When asked whether they surrounded the accused. He said that there was no one close to the accused because he was holding a gun. He stated that the accused had walked pass him with the gun pointing straight to go to the Korean Store. He denies that the accused was ahead or separated from the other policemen. He stated that there was a crowd but they were not close to the accused, because he was armed.

17. The third witness Paul Steven was from Munumb Village in Banz. He stated in examination-in-chief that he was at the Blue Sea John Konga's store with some of his sport's team members seeking donations from the members of the public. He stated that he saw a drunkard asking for gate fee takings. The drunkard started arguing and fighting with those people. Then one auxiliary policeman named Dick Tang arrived at the scene of the incident. The drunkard was a young man so he overpowered the policeman. Dick Tang then rang for police reinforcement.

18. He saw the accused come with the police reinforcement. Four police men were part of the reinforcement. A total of five policemen were at the scene (including Dick Tang). He stated that when the reinforcement arrived, they went straight to the drunkards and Wilson Num cocked the gun. He told all the men to take cover and they took cover. They took cover when the shot was fired. He said when he got up, he saw that a child and a man were injured. When asked where the deceased was located. He said the deceased was in front of the accused. When they asked where he was, he stated that he was in between the accused and the deceased, about 3 to 4 meters away. He said that the accused came in, cocked the gun and just fired indiscriminately at the crowd prompting them to all lay on the ground. He stated that the other policemen were behind him and there was no one next to the accused when he fired the shot. He stated that the policemen came as a group and attended to the complaint. He stated that the crowd was not big because it was early in the morning. He stated that he was with 5 to 6 players. He said that only one shot was fired.

19. In cross-examination he stated that there were six (6) of them in the group including himself. He said they were in front of the store. He said there was one drunkard. He said he saw Sans fighting with Dick Tang and he cut him. When asked if he saw the drunkard stab Dick Tang in the leg, he stated that he saw Sans and Tang exchanging punches. When asked how the police reinforcement arrived at the scene. He said some policemen walked up first and the others came after. But he maintained that they came in a group. He said three of the policemen attended to the complaint. He stated that the accused stepped away from his colleagues and fired the shot.

20. When the defence put their case to him, he stated that it was none of his business and therefore they did not interfere. He maintained that the accused just gave his back to the store and fired the shot gun at them. He stated that there were customers going back and forth, buying goods at the marketplace and shop. But he denies that there was a crowd because it was still early, on a Saturday morning. When the defence counsel put their case to him, he denied that he and the rugby boys surrounded the accused and tried to get the gun from him. He stated that they went about their business. The accused was doing his duty and that nobody surrounded him.

21. In re-examination, he stated that they kept their distance because they did not want to be involved in the drunkards' arrest. During his testimony, the third witness also demonstrated on three occasions, how the accused discharged the firearm.

The Defence Case

22. The defence argued that the accused did not wilfully or intentionally discharge the firearm. The defence of accident pursuant to section 24 of the Criminal Code and extraordinary emergencies pursuant to section 26 of the Criminal Code were raised during the course of the trial.

23. The accused decided to take the stand in his defence. His evidence was that he was on duty at the material time. He went with three other policemen to attend to the complaint at Banz Market that morning. According to their briefing, the auxiliary Constable Dick Tang was sent ahead to identify the perpetrators. About five minutes later the accused and the other policemen followed the auxiliary constable. The accused said that upon seeing Dick Tang struggling with the drunkards, he stepped out and went ahead of the other officers who were 9 or 10 meters behind him. He said he went ahead of them because he was armed with a Russian made Mossberg pump action shotgun.

24. When he was five (5) meters away from the Constable Dick Tang, the drunkards surrounded him. In the commotion, unidentified persons in the crowd then tried to pull the shotgun from him. He held the gun firmly and tried to pull back and he struggled with them. The firearm was loaded so it went off during the struggle. After the firearm went off, the public retaliated and threw stones and sticks thereby prompting the policemen to return to the Police Station. The firearm was loaded with 12 volt cartridges which contained 12 pellets within one cartridge. He stated that one bullet contained 12 volt cartridge which travelled at an effective range of 30-25 meters. As soon as it is fired, the pellets spilt after reaching a distance of 4-5 meters. Which meant 12 pellets would spread in different directions. He said when he was approaching Constable Tang he was carrying his gun at point safe. This meant the butt was under his armpit and the barrel of the gun was facing down. When the crowd surrounded him they grabbed the butt of the gun from under his arm. He was pulling it back and that was when the gun went off.

25. During cross-examination, the accused maintained that he was about 9 or 10 meters ahead of his colleagues when the crowd surrounded him. He maintained that he was about five (5) meters away from where Constable Tang and the drunkards were struggling. The crowd then surrounded him and tried to wrestle the firearm from him. He also maintained that he was carrying the gun at point safe position. He said they were pulling the gun from behind and he was trying to pull it back. This resulted in the cock lever going back and forth. The application of pressure back and forth consequently caused the loaded gun to go off. He said his finger was always on the trigger. But he denied pressing the trigger of the shotgun.

26. The State also raised issues in regard to whether the firearm was defective. The accused stated that he was aware that the safety catch of the shotgun was not working properly; however, the Police only had two firearms in Banz. When the State's case was put to him he denied that he panicked and discharged the firearm. He also stated that from where he was, he saw that his comrade needed help. Therefore he was trying to get over to him to assist him, when he was surrounded by a crowd of people.

27. In re-examination, the accused stated that they had being briefed prior to attending to the complaint. The plan of action was that Auxiliary Constable Tang would go ahead and identify the suspects; thereafter they would then attend to apprehend the suspects. He maintained that he was trying to hold on to the shotgun and prevent it from being taken from him. He also maintained that his finger was on the trigger but he denied that he pulled the trigger in order to dispense the crowd of people.

28. The defence also called Auxiliary Constable Dick Tang who had 17 years' experience with the Banz Police Station. He comes from Nondugul village in Banz. He stated that on that day he was on duty. A complaint was lodged of drunkards who had destroyed the market and were unlawfully collecting gate fees. After registration of the complaint in the OB Book, the NCO Tom Nick told him to go and arrest the suspects. He went ahead and saw two suspects. He held them both. But they struggled with him and one got away. One of the suspects started to fight with him. During the altercation he saw his colleagues approaching. He saw the accused, who was about five (5) meters away from him. The other policemen were about 15 meters away from him. While they were struggling the suspect took out a knife and stabbed him on his right leg.

29. At that point, the crowd surrounded him and wanted to fight with him. Despite this, he maintained a hold of the suspect. He stated that he saw the accused coming and the crowd also surrounded him and tried to pull the gun from him during the struggle. He stated that the crowd also overpowered him and the suspect was set free. He stated that he knew the suspect was from Malbanga village in Banz. The Policemen were about 15 meters away and the accused was 5 meters away from him when they initially approached him at the scene. He was chased by the crowd so he ran to the Police Station. When asked what happened to the accused and the other Policemen he said that he did not know. He was at the Police station when they came. He stated that the accused came a few meters ahead of the other policemen.

30. In cross-examination he stated that there were a lot of people around at the time of the incident. When asked how he could see the accused struggling with the crowd when he was also struggling, he stated that he needed assistance so he could see them coming. He also maintained that persons in the crowd struggled with the accused in order to assist the drunkard get away. He also maintained that the other policemen were about 15 meters away.

31. In re-examination he stated that he was at the top of the Korean shop and the accused was below him struggling with the crowd. Because he was in a position which was elevated he was able to see the police officers coming to assist him and he was also able to see the accused struggling with the crowd.

32. The third witness for the defence was Constable Frank Hune. He passed out from Bomana Police College with the accused and was posted to Banz Police Station where he is still posted. On that day, he recalled that he was on duty at Banz Police Station. Someone laid a complaint about some drunkards disturbing the peace at Banz Market. After the briefing Dick Tang was sent ahead to identify the perpetrators. Dick Tang left and the accused followed him. He said he was with the other policemen who followed after the accused. Dick Tang saw a crowd so he was trying to arrest the suspects; however, people in the crowd came and attacked him. Dick Tang was up at the store entrance and landing area when the crowd attacked him.

33. The accused was below him when the crowd attacked him. He stated that the crowd was big so he could not see through the crowd. He could not see the accused through the crowd, but heard the gunshot. The crowd started to throw sticks and stones. Then they chased them back to the Police Station. He stated that he was also armed with an AR 15 Rifle. He also stated that he was about 15 meters away from Dick Tang. When asked how far he was from the accused he said he was about 10 meters away from him. He stated that there was a big crowd. He said he could not see the accused when the crowd surrounded him. He did not go close to Dick Tang, but he saw him fall down after being punched. He also stated that he could not see what happened when the accused was in the crowd, but when the gun was fired, the crowd hurled sticks and stones at them. The crowd then chased them back to the Police Station. They walked slowly back to the police station, as the crowd threw sticks and stones at them. He stated that he had the AR15 rifle, but he did not use it because his life was not in danger.

34. In cross-examination the witness confirmed that he had passed out at the same time as the accused, but denied that he was giving evidence in court to support him. He said that even though he was pressured to use the gun, there was nobody close to him to grab the gun or attack him. They were at a distance from them and they were throwing sticks and stones. He maintained that a crowd had surrounded the accused and he could not see what happened. He was aware that the shot gun had a safety pin defect, but stated that they did not have many firearms so their bosses continued to give it to them to use. He also maintained that Dick Tang went ahead and was struggling with the suspect. They reiterated that the accused followed Tang when he was surrounded by the crowd. Whilst the crowd surrounded the accused, the gun went off and the crowd then chased them back to the Police Station. He maintained that he was not able to see through the crowd so could not see who had discharged the firearm.

35. In re-examination he stated that he was telling the truth and did not have reason to lie to the Court.

Submissions for the Accused

36. According to the defence case, the facts are not in dispute. The accused was on duty at the material time. He attended a complaint at Banz Market in the company of other Policemen. The firearm was discharged which resulted in the death of the deceased. Mr Morog of counsel for the accused submitted that the accused was not responsible for discharging the firearm. The discharge of the firearm was an accident. Counsel submitted further that the issue for the Court to determine is which evidence is logical and to be believed. The credibility of the witnesses is another issue for determination.

37. The facts in issue are how the policemen came to the scene? Was the accused the only officer armed? How big was the crowd? Whether Dick Tang was stabbed or not? Was the accused surrounded by the crowd?

38. The accused took the stand in his defence. Counsel submitted further that the evidence of the defence witnesses were consistent. The oral testimony of the accused was consistent with the Record of Interview. The defence has made out the defence of accident and extraordinary circumstances. Counsel submitted that case of Wanamba v. The State (1998) SC551 is applicable. He submitted further that the State had not proved their case beyond a reasonable doubt. The State has not proved that the accused was criminally negligent or responsible for discharging the firearm which resulted in the death of the boy.

Submissions for the State

39. The State responded initially by submitting that the case of Wanamba v. The State (supra) was not applicable for the reason that the facts of that case were distinguishable from the facts of the present case. In that case, the Supreme Court held that the discharge of the firearm by a Policeman attempting to dispense a crowd that were trying to loot a cargo truck was accidental. In this case, the accused was criminally negligent for carrying a defective firearm. The accused did not take precaution by going ahead of his colleagues; therefore he placed himself in a position where the crowd was tempted to attack him. In order to disperse the crowd, he fired the gun which killed the boy.

40. Mr. Done of counsel for the State submitted that the State witnesses were consistent. The State witnesses had no reason to give false evidence. The elements of the offence of murder were made out. In regard to the issue of whether the discharge of the firearm was accidental? The State submitted that the answer to that issue was in the negative. The State argued that the facts stated by the defence witnesses were illogical and unbelievable. How can a crowd attack a policeman who was armed at the time? Counsel submitted that the Defence's version of the facts was unbelievable. Therefore, the State had made out the offence of murder by criminal negligence and that the accused is guilty as charged.

Elements of the Offence

41. The accused was indicted for a criminal offence pursuant to Section 300(b) (ii) of the Criminal Code. Section 300(b) (ii) states that;

300. Murder.

Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder –

(a)...

(b) if death was caused by means of an act –

(i)...

(ii) of such a nature as to be likely to endanger human life...

Penalty: Subject to Section 19, imprisonment for life.

42. The State also invoked Section 287 of the Criminal Code. Section 287 of the Criminal Code states that;

Section 287. Duty of persons in charge of dangerous things.

(1) It is the duty of every person who has in his charge or under his control anything whether living or inanimate, and whether moving or stationary, of such a nature that in the absence of care or precaution in its use or management the life, safety or health of any person may be endangered to use reasonable care and take reasonable precautions to avoid that danger.

(2) A person on whom a duty is imposed by Subsection (1) shall be deemed to have caused any consequences that result to the life or health of any person by reason of any omission to perform that duty.

Elements of the Offence

43. By invoking Section 287, the State must prove criminal negligence. The onus is on the State to prove that the accused was reckless and acted in such a way as to disregard human life and endanger the lives and safety of others. The accused must have acted in such a nature that was likely to endanger human life. The State must prove beyond a reasonable doubt that the accused discharged the firearm and that his actions were criminally negligent, reckless or grossly negligent.

Alternative Verdict

44. The alternative verdict is manslaughter by criminal negligence pursuant to s. 539(2) of the Criminal Code.

Defence

45. During the course of the trial the accused raised the defence of accident under Section 24 of the Criminal Code. Alternatively, he also raised the defence of extraordinary emergencies under s. 26 of the Criminal Code. In the case of Java Johnson Beraro v. The State [1988-89] PNGLR 562, the Supreme Court was unanimous in its view that the defence of accident under s.24 (1) of the Criminal Code is not available to the accused for a charge of manslaughter by negligence. After consideration of various overseas authorities, the Supreme Court held that the duty of care for the purposes of s. 287 of the Criminal Code is "... a duty to use reasonable care and take precautions to avoid danger." The question of what constitutes criminal negligence is one which involves a question of degree, to be decided on the facts. When considering whether an act or omission is criminally negligent or not? The starting point is to consider the circumstances at the time the alleged act or omission occurred. Consideration and reference should be had to the circumstances as opposed to the consequences of the act or omission.

46. In Beraro v. The State (supra) the accused was charged for one count of manslaughter. Therefore, the defence of accident under s. 24 of the Criminal Code was not available. In this case, the charge is one of murder. I am of the view that the defence of accident is available to the accused. If the defence of accident succeeds it would negate the second element of the offence and relieve the accused of criminal responsibility for the death of the deceased.

47. If the Court is not satisfied that all the elements for the offence of murder under s. 300(1) (b) (ii) have been made out. It is open for Court to find him guilty of an alternative offence. An alternative verdict of manslaughter maybe entered under s. 539(2) of the Criminal Code where the defence of accident does not succeed (see The State v. Mas Judah Binas (2007) N3118, The State v. Albert Tiki (2013) N5103; The State v. Angeline Winara (No.1) (2008) N3345). Therefore, I am of the view that the defence of accident under s. 24 of the Criminal Code is available to the accused.

Issues:

48. Whether the accused fired the gun accidentally or intentionally? Whether the accused actions or omissions were of such a nature as to amount to criminal negligence?

Onus of Proof:

49. The defence of accident and extraordinary circumstances were raised by the accused; therefore, the onus is on the State to disprove the defence raised.

Assessment of Evidence

50. Dr. Brian Galungim conducted the post mortem. The post mortem report was tendered by consent. The report is Exhibit B. Dr Galungim stated in the report that the "...deceased was hit by bullet pallets (sic) from a shot gun". Upon physical examination he observed that there were eight (8) anterior entry bullet wounds to the deceased right side chest wall. On the posterior chest wall there were 3 exit bullet wounds. Death was caused by massive blood loss of the right chest and lungs from gunshot wound.

51. Mr. Done of counsel for the State submitted that the State witnesses gave credible evidence which were consistent. They had no ulterior motive to come to Court and bear false witness. Their testimonies were good and they were not shaken during cross-examination.

52. The evidence of two of the witnesses namely, Joseph Sinemau and John Negints were similar but had some inconsistencies, which I consider to be serious and adversely affects the State's case. The notable inconsistencies are firstly, Joseph Sinemau said the first policeman came to get those drunkards. The drunkards fought with him so he called out and a lot more policemen came. He then said that he tried to save himself and fired the shots. He said the accused fired the shot from the side of the Korean store. Then he said the accused had turned his back to the Korean Store and fired the gun towards the market. He stated that the deceased was next to the market and he saw him at an angle. At the time the shot was fired, the other policemen were arresting the drunkards. He said that he saw two drunkards.

53. The second witness said that one auxiliary policeman attended to the complaint. Then he said two policemen came to arrest the two suspects. He named Dick Tang as one of the policemen who went to arrest the suspects. The two policemen needed more manpower so they called for more policemen to come. He said three policemen came with Wilson Num. The accused carried the firearm. He said the policemen were about 15 meters away. He said the deceased was in front of him at the bus stop where market stalls were situated. Despite these obstructions he said that he clearly saw the accused give his back to the drunkards, cocked the gun, aimed and fired the shot towards the market. He said that the deceased grandfather was from Chimbu but he came to live with them, then later in re-examination he said that he was related to the deceased. The deceased father had married a girl from his village.

54. He said he told Joseph Sinemau to take the deceased to the hospital and he confronted the accused. He said Dick Tang arrested him and locked him in the cell. He agreed there was a crowd. I find this account of what happened unbelievable. During the chaos, Negints was still able to confront the accused and ask him why he shot the boy. None of the State witnesses corroborate his version of the events, that is, his confrontation with the accused and consequential incarceration. I find it unbelievable that Negints says that nobody surrounded the accused because he was armed with a shotgun and then later after he allegedly shot at the crowd, he was able to confront him to ask him why he had shot the boy.

55. Another inconsistency is that he later said that the accused walked pass his market with the gun pointing straight, similar to an attacking position and another two policemen came behind him. Whereas, the other two State witnesses said he walked up and then turned and aimed the gun at the market or crowd and fired the fatal shot. He then said that the accused walked in the middle path between him and the first witness. Later he said that the three policemen were behind him. Later he stated that all the policemen went together in a group. He says there was a crowd but not close to where the accused was. He says he saw the accused fire the gun, and then he said he saw the deceased fall. The witness said the deceased was watching what was happening and facing the store. Later he said that when the accused cocked the gun, everyone lay down and the deceased did not know what was happening and he was shot.

56. The third witness said one policeman Dick Tang came to attend to the incident. He said there was one drunkard. He said he told the players to take cover. He stated that he was in between the deceased and the accused. When asked how far he was from the accused, he said he was about 4 to 5 meters away. He said the other policemen went and attended to the drunkards and the accused just came cocked the gun and fired. He said the police came in a group and attended to the complaint. In cross-examination, he said he saw Sans fighting with Dick Tang and he cut him. In the next question when asked if he saw the drunkard stab Dick Tang, he stated that he saw those exchanging punches. He said they came in a group and then later, said some came first and the others came later. He denied that there was a crowd but he said that there were people at the bus stop and at the market place but they carried on with their business.

57. There are other inconsistencies when examining the whole of the States' evidence. The first is that the two witnesses state that their markets were opposite each other, there was a bus stop and market stalls in front of the shop. Despite the obstructions in their view, they clearly saw the accused walk up and give his back to his colleagues, cock the gun, aim and fire.

58. Another inconsistency is that the third witness says he was in front of the accused and saw him clearly. He says he was 4 or 5 meters away from the accused. He also stated that he was in between the deceased and the accused. He told everyone to take cover when the accused cocked the shotgun and aimed at the market.

59. In this case, the Court has to choose between the State witnesses and the defence witnesses. I examined all the witnesses in the witness box when they gave their evidence. I also observed their demeanour in the witness box. At the outset, I was not impressed by the State witnesses. I observed that they appeared to be adding extra parts of their story to fit into the State's case, as a result their evidence was inconsistent. Furthermore, they were not clear as to their reasons for testifying before this Court. Their accounts of the events were not consistent. Their stories were inconsistent for example their descriptions of the way the policemen approached the scene. One witness said the accused went ahead and later said they went in a group. They said there was a crowd but then said that there weren't many people. The State did not really present any persuasive evidence of how many people were there or the size of the crowd. It was 9am on a Saturday morning; therefore, I infer that there would've been many people at market going about their business. Another inconsistency is whether the Auxiliary Constable Tang was stabbed or not. The third witness said Tang was stabbed and later changed his story and said he did not see the stabbing but saw Tang fighting with the drunkard.

60. I find that the first two witnesses were located about 12 – 13 meters away from the accused. Both said there was a bus stop and market stalls in front of them where the deceased was standing but adamantly say they clearly saw the accused cock the gun, aim and fire towards them. I find this account of events difficult to believe for two reasons if there was a bus stop and market place in front of them, and then they could not have had a clear and un-obstructed view of the accused. Secondly, if they had seen the accused cock the gun, aim and fire, obviously a natural reaction would be to take cover. In their testimony, they did not say, how they reacted when they saw him cock the gun. Did they take cover or lay on the ground? Therefore, their evidence of clearly seeing the accused, I find difficult to believe. Thirdly, it is unclear what the witnesses experiences are with handling firearms, therefore, their evidence of how the firearm was cocked, in my view is questionable.

61. I find that the third witness' demeanour was that of someone who was simply not telling the truth. I do not accept his version of the incident. He said he was 3 to 4meters in front of the accused. He was in between the accused and deceased. He then told everyone to take cover. I do not believe the witness was in front of the accused because of the following reasons. According to the Post Mortem, the deceased had 8 pellet wounds to his chest. This corroborates the accused's evidence, that the 12 volt cartridge has an effective range of 25-30 meters. He stated that when fired at about 4-5 meters the cartridge would disperse 12 pellets. I do not accept that the witness was in front of the accused and he ducked for cover. The deceased would have been quite close to the accused when the firearm was discharged because he received 8 out of the 12 pellet wounds. This infers that the deceased was probably at very close proximity to the accused when the firearm went off. I am also not convinced that he was in between the deceased and the accused. The witness would have been seriously injured if he was in front of the deceased. I find his evidence illogical and contrary to common sense.

62. Therefore, in deciding where the truth lies I accept the evidence of the accused, Constable Dick Tang and Constable Frank Hune. I accept the evidence of the defence witnesses. I am satisfied that they told the truth and they were consistent, coherent and believable

63. The test for determining the question of whether the accused actions or omissions were criminally negligent, it is necessary to refer to those established facts beyond a reasonable doubt.

64. The accused attended to the complaint in the company of three other policemen. The accused went ahead to assist his colleague when he saw that he had been stabbed and needed help. The crowd surrounded him and tried to wrestle the gun from him. He struggled to maintain control of the shotgun. The shotgun went off. The deceased was 4 to 5 meters away. I accept the medical evidence as to the number of pellet entry wounds which is supportive of the fact that the deceased was close to the accused. These being the facts relevant at the time can the accused' act of discharging the firearm be criminally negligent?

65. The State argued that the accused was criminally negligent for placing himself in that position where he had to discharge the firearm. The State argued further that he was using a defective firearm.

66. Firstly, I am not persuaded by these submissions. He went to attend to his colleague who was in danger, that is, he was stabbed. Secondly, there is no evidence before me of the state of the firearms. Whether the firearm was defective or not? I do not accept the State's submissions from the bar table. There is no expert evidence relating to the firearm to confirm its' unworthiness or defectiveness. Just because both the accused and the third witness Constable Hune were aware that there were some issues with the safety pin, is not conclusive evidence that the firearm was defective. I am of the view that expert evidence should be tendered where there are questions of the defectiveness or unworthiness of a firearm. Also, the State did not tender any evidence about the process of how firearms were assigned to officers and how the firearms are kept and handled at the Police Station. For the purposes of Section 287 of the Criminal Code, such evidence would have been relevant and necessary to prove whether the accused was criminally negligent or not.

67. In this case, where it is alleged that a person was criminally negligent in the use of a firearm, there must be direct evidence of the defectiveness of the firearm by an independent expert witness. It is not sufficient for State's counsel to raise the issue from the bar. For the purposes of s.287 of the Criminal Code and a charge of murder by criminal negligence the State must prove its case beyond a reasonable doubt. The State must tender clear and coherent evidence of the defectiveness of the "dangerous thing", which in this case, was a firearm. Failure of the State to tender this expert evidence raises a serious doubt and a number of unanswered questions such as whether the accused acts or omissions were reckless or grossly negligent and therefore amounted to criminal negligence.

68. In all these circumstances, can it be safely said beyond a reasonable doubt that the actions of the accused were culpable, reckless or grossly negligent such as to amount to criminal negligence. At the time, the prevailing situation was that a crowd had built up and opportunists in the crowd saw their chance to surround the accused and wrestle the firearm from him. I am bound to consider the accused's acts and omissions at the material time as opposed to the consequences of those acts or omissions (Beraro v. The State).

69. When considering the whole of the States' evidence against the defence's case, I am not convinced that the State has established the charge against the accused and proved their case beyond a reasonable doubt. The inconsistency in the States' evidence raises a reasonable doubt and leaves a lot of unanswered questions. It would be unsafe for the Court to lawfully convict the accused of the offence of murder or an alternative offence where the evidence is sketchy, unclear and inconsistent. Accordingly, I return a verdict of not guilty of the charge of murder. As a consequence I acquit you of the charge of murder and discharge you accordingly. Further to that I order that any bail monies paid by you and your guarantors in relation to this charge is refunded forthwith after provision of the official receipt.

Public Prosecutor : Lawyers for the State
Public Solicitor : Lawyers for the Accused