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State v Kupuso [2022] PGNC 106; N9573 (12 April 2022)

N9573

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 519 OF 2021
CR 909 OF 2021

THE STATE

v

ANDREW KUPUSO AND JOHN LAVONA

Waigani: Salika CJ
2021: 11^th, 12^th, 15^th, 16^th, 17^th November, 2^nd December
2022: 12^th April

CRIMINAL LAW – Practice and Procedure – Charge of unlawful killing – Section 302 of Criminal Code - Actions of Accused – Amounted to criminal negligence carelessness and recklessness.

Cases Cited:

The State v Stanley Japele (4 March 2022) N9552
R v Laki Tumbipai and Another (1974) SC782
John Beraro v The State [1988-89] PNGLR 562
John Wanamba & Another v The State (1998) SC551
The State v Bomai Hesi (No. 1) (2007) N3231

Counsel:

Mr J Gubon, for the State.
Mr Sumbuk, for the Accuseds.

12^th April, 2022

1. SALIKA CJ: INTRODUCTION: Andrew Kupuso of Chambri village, Wosera Gawi, East Sepik Province and John Selan Lavona of Rambutso village, Lorengau, Manus Province, are charged that they on the 16^th of September 2019, at Rainbow, National Capital District, PNG, unlawfully killed one Peter Pamben.
   

ALLEGATION

2. They were arraigned on the following allegations:
   

On the 16^th September 2019, between 1 pm and 2 pm at Rainbow, National Capital District, the deceased, one Peter Pamben, was unlawfully killed by policemen who were in a blue double-cab, Toyota Hilux, a marked police vehicle bearing the registration number ZPD 283. On the date and time in question, the deceased who had been selling betel nut at the Rainbow bus stop, was chased by the police into the Jubilee University grounds on the opposite side of the road. It is alleged that both accused were with two other policemen in the police marked motor vehicle.

Peter Pamben ran into the Jubilee University grounds and jumped over the fence into the Port Moresby National High School grounds (POM NATS). The policemen, seeing this, sped out of the University grounds and drove into POM NATS premises. There, Andrew Kupuso and another policeman got off the vehicle and pursued the deceased on foot whilst John Lavona drove back out of POMNATS into the main road to the other side of the fence. The deceased was on the spiked fence trying to jump over when his trousers got caught on one side of the spikes. He was trying to free himself from the spiked fence and jump over when the accused Andrew Kupuso and the other policeman caught up with him. Whilst still stuck on the spike of the fence, the State alleges that the accused Andrew Kupuso and co-accused John Lavona pulled his legs downwards, therein causing him to fall onto the spikes of the fence which pierced his groin area. He thereafter fell to the ground whilst holding onto his betelnut bag.

While he was bleeding and unconscious on the ground, the accused John Lavona got back into the vehicle, drove to where the deceased was lying, picked up the bag and drove into POMNATS to pick up Andrew Kupuso and the other officer. They then drove out back to where the deceased was originally left by John Lavona but by then he had been assisted and rushed to the hospital by a bystander. The deceased succumbed to his injuries at the hospital and died later that day.

The allegation by the State is that, when both accused pulled the deceased’s legs, it caused him to fall onto the spiked fence which pierced his groin area which ultimately caused his death. The State alleged that they unlawfully killed him and that their actions contravened Section 302 of the Criminal Code.

ISSUES

3. On arraignment, the two accused denied the charge. The issues are:
   
   1. Were the two accuseds part of the police unit which scattered the betelnut sellers from the place where they were selling betelnuts?
      
   2. If yes, were the two accuseds involved in chasing the victim to the Jubilee University grounds?
      
   100. If yes, were the two accuseds involved in pulling the deceased’s legs downwards causing him to fall into the spiked fence which pierced his groin?
        
   4. If yes, were their combined actions lawful or not?
      
4. As is usual the burden of proof lies with the accuser and in this case the accuser is the State. The State must prove each and every element of the charge of manslaughter beyond reasonable doubt.
   

ELEMENTS OF OFFENCE

5. Section 302 of the Criminal Code reads:
   

“A person who unlawfully kills another under such circumstances as not to constitute willful murder, murder or infanticide is guilty of manslaughter.”

6. The elements on the charge of manslaughter are:
   
   1. An accused;
   2. On a date;
   100. Unlawfully;
   4. Killed another;
   5. The circumstances of that killing did not amount to:
      
      • (i) wilful murder,
      • (ii) murder or
      • (iii) infanticide.
        
7. The State must prove each of the elements of the offence identified above, beyond reasonable doubt.
   

THE EVIDENCE

8. The State called five witnesses to prove its allegations. They were:
   
   • (i) Kone Pamben;
   • (ii) Orona Aroma;
   • (iii) Samson Buba;
   • (iv) Sandrick Kindai; and
   • (v) Rhonda Peter.
     
9. The combined and uncontradicted evidence of Kone Pamben, Sandrick Kindai and Rhonda Peter goes to prove that Peter Pamben was a betelnut vendor at the Rainbow Market near the Rainbow Service Station. There is no dispute that was the case. The combined evidence also proved that a police marked motor vehicle, a Toyota Double Cab Reg No. ZPD 283, came with policemen inside and scattered the betelnut vendors causing Peter Pamben to run for cover into the Jubilee University premises and eventually into the Port Moresby National High School (POM NATS) premises. They also gave evidence of Peter Pamben trying to climb over the spiked POM NATS school fence to escape from the police who were effectively in hot pursuit. Peter Pamben could not come down the fence because his trousers got caught on the spike of the fence and the spike pierced the groin area of the deceased.
   
10. Those three witnesses saw two policemen pull the deceased downward from his legs. One of the policeman had an aluminum base ball bat and was hitting Peter Pamben while the other was pulling him by his legs. The three witnesses did not know who those men were. All they knew was that the men arrived in a police marked motor vehicle, scattered and chased the betelnut sellers away from the Rainbow Service Station and chased Peter Pamben and that Peter Pamben had run into the Jubilee University premises.
    
11. The issue of identification did not arise because the evidence by the two police witnesses, Orona Aroma and Samson Buba settled the issue of who the men were. Orona Aroma’s evidence was that on that day he was on a motorized patrol with John Lavona, Andrew Kupuso and Samson Buba. They were on a blue 5^th element Toyota Hilux Double Cab. He said John Lavona was the driver and he was the offsider. He said Andrew Kupuso and Samson Buba were seated at the back. He said on 16 September 2019, they were on normal police patrol and they received a radio message to disperse betelnut sellers at Rainbow and that they went to Rainbow to disperse the betelnut sellers. He said on arrival the betelnut sellers scattered and they parked their motor vehicle near the road going into the Rainbow Estate.
    
12. Then he said the deceased caught their attention and they followed him towards the Jubilee University grounds. He said the deceased ran into the Jubilee University yard and that he was on his own.
    
13. The witness said the deceased then jumped into the Port Moresby National High School yard and the policemen followed him there. Orona Aroma said the deceased was walking through the school grounds and when he saw them he ran. He said they stopped their motor vehicle and followed him on foot and the deceased ran towards the fence and was climbing over the fence that separated the school from the main road. He said the deceased was on the school side of the fence trying to get to the main road side. He said the man got stuck on the fence. He said they could not get him down as he was a big man. He said he asked the deceased to get down but then noticed that the deceased’s trousers had gotten stuck on the spiked fence and he was struggling to get himself free from that spike. He could not.
    
14. He said the spike of the fence pierced through his trousers and he was stuck. He said he and the others were telling him to come down but he was stuck and could not come down.
    
15. This witness said he was armed with a police issued firearm while Andrew Kupuso held an aluminum baseball bat. He said Andrew Kupuso did nothing with the baseball bat.
    
16. The next witnesss Samson Buba gave similar evidence to that of Orona Aroma. He agreed with Orona Aroma that they went to Rainbow to remove betelnut sellers from the Rainbow bus stop and service station. He agreed that John Lavona was the driver and Orona was the offsider and that he and Andrew Kupuso sat at the back seats. He denied the policeman doing anything to Peter Pamben or injure him. That was the witness’ evidence.
    
17. On the strength of the policemen’s evidence, there is no issue as to the identification of the two accused. I am satisfied beyond reasonable doubt that the two accuseds were present at the scene of the alleged crime and that they were involved in the chase. Moreover, I am satisfied beyond reasonable doubt that Peter Pamben died from this incident. This too is not disputed. Issues a), b) and d) identified earlier are answered in the affirmative beyond reasonable doubt.
    
18. This means that elements a), b) and d) of the offence are proved beyond reasonable doubt.
    
19. The remaining elements of the charge yet to be proved are:
    
    100. Unlawfully, and;
         
    5. The circumstances of that killing did not amount to wilful murder, murder or infanticide.
       
20. The evidence of the three State witnesses Kone Pamben, Sandrick Kindal and Rhonda Peter differ from the State’s other two witnesses who are both police officers who were on patrol with the two accused. The two police officers were part of the four men police team who took part in the exercise to remove the betelnut sellers from the Rainbow bus stop and service station. The State’s other three witnesses were all part of the betelnut sellers crowd.
    
21. On one hand the betelnut sellers who were removed by the policemen and the betelnut sellers dispersed in all directions. The deceased became a person of interest to the policemen who pursued him because he was carrying a bag. One reason the police witness gave for going after Peter Pamben was that they saw him carry a bag and suspected that he might have marijuana in the bag. As events unfolded only betelnuts were in the bag and this bag was picked up by John Selan Lavona after Peter Pamben fell from the fence to the ground. The bag was the only item John Selan Lavona was interested in. He had not interest in the welfare of the man who was lying bleeding to death next to the bag.
    
22. They pursued him up to the spiked fence. The deceased was not going to surrender on his own to the police and the policemen were not about to give up the chase. The deceased climbed up the spiked fence and got himself tangled on the spiked fence.
    
23. He got stuck. The three civilian witnesses said one of the man was hitting the deceased with an aluminum base ball bat while the other was pulling his legs downwards. The person identified as pulling the legs of the deceased downwards was the driver of the police motor vehicle. The driver of the police motor vehicle, the Toyota Hilux Double cab, was from all the evidence John Selan Lavona and the person hitting the deceased with an aluminum base ball bat was Andrew Kupuso.
    
24. John Selan Lavona was pulling him by the legs downwards, this action enabled the metal spiked fence to penetrate the groin area of the deceased into the stomach and intestine area. The evidence was that John Lavona pulled the deceased’s legs downward. The deceased cried out in pain when that action was being done on him by John Lavona. The deceased eventually fell to the ground and was bleeding and taken to the Gerehu hospital by a bystander.
    
25. This is a case of whether an act or omission by a person is criminally negligent or not. The factual circumstances in this case appear to be so. In R v Laki Tumbipai and Another (1974) SC 782, the Supreme Court said whether an act or omission is criminally negligent or not, must be decided by reference to the circumstances at the time, the act or omission occurred and not by reference to the consequences.
    
26. The circumstances of this case have been set out and explained. I am of the view that the circumstances of the case lead me to conclude there were certain acts and omissions by John Selan Lavona and Andrew Kupuso which amounted not only to criminal negligence but carelessness. See also John Beraro v The State (1988-89) PNGLR 562, John Wanamba v The State (1998) SC 551, and The State v Bomai Hesi (No. 1) (2007) N3231.
    
27. From this evidence, it is clear to me that the police officers involved in the operation were on duty. They suspected the deceased for having in his possession marijuana which would be an offence, if he did have marijuana in the bag. They were in their right to pursue the deceased. It is part of their role, see The State v Stanley Japele (4 March 2022) N9552. The deceased did not surrender.
    
28. However, it is not the role of a police officer to assault a suspect and treat him or her in a way that is going to endanger the suspects life. Police are empowered to use reasonable force to prevent a suspect from escaping arrest. In this case, the chase had ended. There was no more need to pull him by his legs. They were required to take all necessary steps to bring him down safely without endangering his life. The Court visited the crime scene. The driver of the police vehicle could have reversed the motor vehicle to help gently bring him down from the precarious position he was in. Instead, he pulled him by his legs which caused more damage to the deceased. This caused the metal spike of the fence to penetrate his groin area more into the stomach. In my respectful opinion, John Selan Lavona’s actions were negligent which led to more injuries, and which led to the death of the deceased.
    
29. The next question is: Were John Selan and Andrew Kupuso’s actions lawful? They were performing lawful duty at first until they got Peter Pamben on the fence. Their lawful duty was to take down Peter Pamben safely from the top of the spiked fence. They were then to interrogate him and have him charged if necessary. Otherwise, they were obliged to let him go after the interrogation with his bag of betelnuts.
    
30. In this case, they had Peter Pamben stuck on the fence. Peter Pamben was never going to escape from that position. He was well and truly helpless. John Lavona and Andrew Kupuso were to assist Peter Pamben to safely get out of being stuck on the spikes of the fence onto the safety of the ground. In other words, they were obligated to get Peter Pamben unstuck without inflicting any further injuries and damage to him. Instead, the evidence is that John Lavona pulled his legs downward thus causing more damage and more injuries to Peter Pamben. By his actions, it enabled the metal spike to penetrate deeper into Peter Pamben’s stomach. As a result of the pulling of his legs by John Lavona, Peter Pamben’s injuries and sufferings were exacerbated by such actions. With respect, these actions were not only unnecessary but they were unlawful in my respectful opinion.
    
31. It concerns me to note the actions of John Selan Lavona after Peter Pamben fell down with his bag on the ground. Remember, Peter Pamben was a person of interest because he was carrying a bag which the policemen suspected contained marijuana. Upon his fall, the first item of interest to John Selan Lavona was the bag. He picked up the bag and took it away. That is the last we heard of the bag. What happened to its contents, we still do not know. My guess as to what happened to the bag and its contents is as good as yours. I will leave that to you.
    
32. Was there any interest or concern shown by John Selan Lavona on the fallen man? Did John Selan Lavona even check if the fallen man was alright or still alive after he fell to the ground? There is no evidence of any concern shown by the policeman John Selan Lavona as to the welfare of the victim.
    
33. The carelessness exhibited by John Selan Lavona towards the injured victim in my respectful opinion amounts to carelessness and recklessness. He left Peter Pamben on the ground for some time.
    
34. In those factual circumstances, I am not satisfied that John Selan Lavona intended to cause death to Peter Pamben such that the charge would be wilful murder. I am not satisfied that John Selan Lavona intended to cause grievous bodily injury to Peter Pamben such that the charge would be murder. Moreover, I am satisfied this is not an infanticide case. However, on the evidence before the Court, I am satisfied that there was some degree of carelessness and recklessness displayed by John Selan Lavona. He was there on the spot. To me, with respect, he made the wrong choices when Peter Pamben was stuck on the spiked fence and after he fell down. When he came back to check him, Peter Pamben had been taken to the hospital. The policemen then left.
    
35. Accordingly, I find him guilty beyond reasonable doubt of unlawful killing of Peter Pamben. The circumstances of the killing did not amount to wilful murder, murder or infanticide. Rather, the death arose out of the negligent and wreckless behaviour and action of John Selan Lavona.
    
36. In relation to the accused Andrew Kupuso, he hit the deceased with an aluminum base ball bat which in itself amounted to unlawful assault, but, did not contribute to the cause of death. However, the State invoked Section 7 of the Criminal Code. This means whatever John Selan did, Andrew Kupuso is also responsible and whatever Andrew Kupuso did, John Selan Lavona is responsible. On that basis, I find Andrew Kupuso also guilty of unlawful killing beyond reasonable doubt under Section 302 of the Criminal Code.
    

______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accuseds