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State v Ambane [2022] PGNC 380; N9924 (20 September 2022)

N9924

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 408, 409, 410, 411, & 412 OF 2019

THE STATE

V

HUGO AMBANE &
TELIS TUI & GRAHAM HANGUAI & MARCUS NIMIHEAU &TONY KERUA.

Wewak: Miviri J
2022: 16^th June,14^th September

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Trial – Severe Gunshot Wound Left Buttocks – Loss of Blood Death Resulting – State Evidence – Accused Policeman All on Subject Vehicle – Back Tray of Vehicle Three Shots Fired – Shots to Where Deceased Was – Vehicle Driven to Where Deceased Fell After Being Shot – Deceased Picked up By Accused Loaded on Vehicle – Transported to Hospital – Three Shots Fired – Intent to Cause GBH – Death – Whether Balance Discharged – Accused all Remained Silent.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Trial – No Alternative Evidence Except State Evidence – Identification of Accused – Law on Identification – No Direct Evidence of Gunman – Circumstantial Evidence – Law on Circumstantial Evidence – Whether there are other Hypothesis Other than Guilt – Silence of Accused – No Alternative Hypothesis – All Accused Policemen On Subject Vehicle – Gun Discharged therefrom At Group Deceased In – Death Resulting – Section 7 CCA – Accused Aiding Abetting – All Guilty of Murder – Bail Refunded Accused – Remanded.

Facts
Five Accused were policeman who discharged a gun that hit the deceased in the buttock area from which he bled to his death. They aided and abetted each other causing him Grievous Bodily Harm from which he died.

Held
Accused all on vehicle to scene.
Gunshot from back of Vehicle.
Deceased Shot in the left buttock.
All Accused loaded deceased in vehicle.
All Accused got off and only Driver delivered body hospital.
Death from gunshot.
Aiding abetting Accused Section 7 CCA.
Guilty of Murder.
Bail Refunded.
Remanded.

Cases Cited:
Tonde v The State [1994] PNGLR 539
State v Wer [1988-89] PNGLR 444; N776
Porewa Wani v The State [1979] PNGLR 593
The State v John Badi Woli and Pengas Rakam [1978] PNGLR 51.
Amoko, The State v [1981] PNGLR 373
The State v Nataemo Wanu [1977] PNGLR 152
Wamela v The State [1982] PNGLR 269
Nimagi v State [2004] PGSC 31; SC741
Beng, The State v [1976] PNGLR 471
Bate v State [2012] PGSC 46; SC1216
Paulus Pawa v The State [1981] PNGLR 498

Counsel:

F.K. Popeu, for the State
A. Kana, for the G. Hanguai
J. Javapro, for Rest of the Defendants

VERDICT

20^th September, 2022

1. MIVIRI J: This is the verdict after trial against the five accused all who have been charged individually and severely with murder pursuant to section 300 (1)(a) of the Criminal Code Act.
   
2. The State has invoked section 7 of the Criminal Code against all accused in that they aided and abetted each other in the commission of the murder of Gabriel Kumasi on that day 26^th August 2018. And relevantly the allegation is that all five Accused individually and severely on the evening of the 26^th of August 2018 at about 6.00pm were in a vehicle, a white Toyota Landcruiser Utility belonging to a logging company. And they were travelling along the Yawasoro Police Barracks near the vocational School and passed a group of youths who were sitting on the side of the road. They turned the vehicle around and went to check the youth. For a suspect, one Nathan of wounding a relative of Marcus Nimiheau if he might be amongst the group. As they came back, they called out Police, Police, do not run. But the youths got up and ran. The deceased Gabriel Kumasi was one of the Youths, as they ran one Graham Hanguai discharged three shots from the Police issued weapon. One of the shots hit the deceased in the thigh and he fell down. He was taken to the hospital but died due to blood loss that night. A medical examination showed deceased suffered severe gunshot injuries and loss of blood. He died as a result of the shot by Graham Hanguai who was aided and abetted by the others. And section 7 covered them because they all acted together with the intent to cause grievous bodily harm when he was shot.
   
3. At the outset the charges laid against all five Accused is pursuant to section 300 (1) (a) which section is in the following:
   
   • (1) 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) if the offender intended to do grievous bodily harm to the person killed or to some other person;

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

(i) done in the prosecution of an unlawful purpose; and

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

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1) (b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1) (c), (d) or (e) applies, it is immaterial that the offender–

(a) did not intend to cause death; or

(b) did not know that death was likely to result.”

4. Each Accused have pleaded not guilty to the Indictment. And the State led the following evidence to prove its case against all five accused. Firstly, sworn oral testimony was led from the following witnesses; Zachary Hakaure, Jethro Singut, Adam Kosek, and Joshua Kosek.
   
5. Zachary Hakaure is from Koimuro village, Kubalia, and resides at Yarapos and is now a PMV driver. In 2018 he was working with a logging Company. He was a dump truck driver and his boss was a Malaysian. On the 18^th August 2018 they were working at Hawain Logging. On the 26^th August 2018 at 2.30pm I was at the camp and the Manager Peter Tang called me to the office. He told me that Policeman Marcus has a problem at home, and he directed me to drive him to Yawasoro Police Barracks. And I thought that I will leave him there and go back. There he said, you drive me to Boram Hospital because he was chopped with a knife there. I said there was no instruction and that I will leave you here so I drove him to the hospital. From there we went to town Police Station. And they went into the Police Station and were there for a while inside probably making entry in Occurrence Book because it is their work.
   
6. This was Marcus and the four policemen we went together. From Town we went back to Yawasoro and on the way told me to stop at Erinungu. And they said you drive all the way. At Junction at vocational he told me to turn the vehicle. I stopped and one woman and child got off and we drove back heading back to Erinungu. At SSC Mission he told me to drive to junction when I slowed down, I heard two gunshots when I stopped, I heard third gunshot went off. And the shots came from the back of the vehicle from those who held the weapon. I was driving and did not see who held the weapons but the gunshots were from the back of the vehicle. Policeman Michael Nimiheau alias Marcus Nimiheau was with me. When I looked in front, I saw a person fell down. It was about 30 meters like from the witness box to the bananas at the back. The place was clear but when we got the body it was dark. There were four of them sitting. When the first and the second shot were fired, they were sitting in a circle and stood up and ran away. And the person who was shot I know him Gabriel Kumasi was sitting together and running away when the bullet hit him. I saw three guns, one was from the camp, and the other two were from the Barracks. I do not know the four other policemen who were four of the Accused at the back of the vehicle. I know Marcus Nimiheau who was security at the camp, whose real name is Michael Nimiehau.
   
7. I was afraid and reversed and they said stop. I reversed vehicle turned and did not go out of the vehicle. They brought the person who fell and put him in the vehicle and told me to drive out all the way to Boram Hospital. They jumped out and I took the person to where the Ambulance parked. I came out and helped the trolley man to load the body, and I drove off picked them, and we went to the Barracks. I left them there and went to the logging camp and reported the matter to my boss.
   
8. The vehicle I drove them in is a Toyota Land Cruiser White in colour open back. The policeman I assisted is Marcus Nimiheau who looks after the security at the logging camp. I know his face he is in the brown shirt second man sitting there in the dock. The others got on the vehicle four other policemen on the other side sitting at the back. Referring to the four accused in the dock. They were the four policemen I picked up at Yawasoro Police Barracks.
   
9. The next witness called on oath was Jethro Singut, 23 years old resident at Kaindi since his elementary school. He was living at Kaindi in 2018. On the 26^th August 2018 he recalls that there was a Talis Tree and we were sitting under it and discussing how to form and participate in a soccer tournament. I had my back to the road where the vehicle came from. And the gun was fired as the vehicle was in motion. The boys disbursed only four (4) of us there. And after the gunshot the vehicle came in. One policeman swore, “Kaikai Kan bilong mama bilong yu. Bai mipela sutim yu”; Eat your mothers vagina we will shoot you. So, I stood there. One policeman came from the back and booted me from the back. They assaulted the three of us. We did not know that the first time the shot was fired deceased was shot. They put him, Gabriel Kumasi in the vehicle and drove out. And when they came, he told them, he was Gabriel Kumasi. They were looking for Nathan, I don’t know him.
   
10. There were three shots fired. The first and the second were loud. The third was not loud. The shots were fired as they drove down from Yawasoro road. We could not tell who fired the shots. And we did not look to see who had the gun as our heads were down. So, we did not see anyone holding the gun. I had my back so assumed it was from Yawasoro down. Then they swore at us, “Yu kaikai kan bilong Mama yu stand.” Plenty boys ran away only us were contained and I stood, four of us were standing and they came and belted us as we got up to run. The policeman who belted me is Marcus Nimiheau because I saw his face as I was on the ground. They did not call out Police, Police, and we were not drinking. And yes, we were afraid when they fired the gun and arrived. And then when they pointed the gun at us so we did not run. We were Gabriel Kumasi, me, and Adam. And I was there and saw the incident happened. I was present at the scene.
    
11. Adam Kosek of Wariman West Manga Village educated to grade 3 was living at Wariman in 2018 and was there on that day gave sworn evidence. On the Sunday 26^th August 2018 in that afternoon, we were sitting at the Junction planning to play soccer. There was a vehicle travelling from Yawasoro and turned on the right-hand side. They shot twice on the right-hand side from the junction. We ran away and went and third shot was fired. “Surrender” I heard call and I did that and came back. I ran about 10 meters and turned back. I saw Gabriel Kimasi turned and shots got him and he was turning and I said, “Hey, yupela sutim man pinis” And they lifted him up and put him on the vehicle and drove up to town. The vehicle is civilian open back and white single cabin and there were maybe six men. They came and death occurred. I could not recognize. But there were two in the cabin and four outside on the tray. There were six people who came on the vehicle. And six of them that now we are here. 1, 2, 3, 4, 5, and driver made 6. Five Policemen. They rushed at us so I did not recognize them. But the six men came and death occurred. And I was not able to tell who shot but the shot came from the back of the vehicle. And they were holding firearms. The four at the back lifted the body and put it on the vehicle. I saw one gun it was an M16 gun. And yes, I know it as M16. I told the policemen you have shot a man already.
    
12. We were not drinking homebrew and there were ten (10) of us and when the gunshot we were scared and ran away in all directions. I was there and when they called surrender, I did that. I came back and surrendered. What happened is what I have told the Court. It was still light but darkness was beginning to set in. And yes, there were bushes and trees and it was hard to see. But I saw Gabriel turning as he fell sideway when the cartridge got him and he was lying there sleeping in pain.
    
13. The last witness on oath was Joshua Kosek from Manga sworn related to the last witness. He was his uncle, small father. He was resident at Mangar and recalls the Sunday 26^th August 2018 in the afternoon. He was at DPI Junction when the incident occurred around 6.00pm to 6.30pm. They came in a civilian vehicle Landcruiser white open back. And opened up and fired two (2) Shots. The last shot they shot Gabriel Kumasi which was the third shot. After seeing that I got scared and ran away. It was clear and I saw these people. But I was scared and ran away.
    
14. I observed all four prosecution witnesses give evidence on oath. I have no reservation in their respective evidence. Zachary Hakaure, Jethro Singut, Adam Kosek, and Joshua Kosek all gave evidence in a forthright manner. They were not shaken in their evidence. Each witness gave an account from where he observed what happened as he saw it. All did not improve their evidence, nor did they give evidence to secure a conviction at all costs. That is clear by the fact that they all said they all did not see the face of each of the Accused who were sitting at the back tray of the white land cruiser open back utility. Each did not struggle by their evidence to secure a conviction for the death of Gabriel Kumasi. They gave evidence honestly and with a sense of Justice. We were beaten so did not see the face of the policemen because they rushed us. And we were afraid because the guns were fired three times. But all witnesses maintain consistency that there were four policemen who were sitting at the back tray of that vehicle on that day 26^th August 2018 from which the three shots were fired. Two in succession followed by a third and all saw Gabriel Kumasi was shot when that vehicle came down to where they were with the deceased. They all maintain that they were not drinking home brewed alcohol or smoking marijuana but sitting down to discuss a soccer match how they would take part in it. Their accounts are not challenged and have not been distorted or destroyed in cross examination by the accused counsel. They all gave a consistent account of what happened on that day. I find all of them individually and severely as witnesses of the truth, nothing but the truth and uphold their evidence as the truth of what happened on that day. There is no reason apparent or identifiable to doubt the veracity of their evidence. I find each witness as having told the truth of what they saw and witnessed on that day in the shooting and death of Gabriel Kumasi at the hands of the Accused all now before the Court. I uphold all in the determination of this matter as witnesses of the truth. In so making this determination I take account of the fact in law that the burden is always on He who alleges not the other way around. The State bears the burden to succeed beyond all reasonable doubt not without. The defendant is not obliged to disclose his defence or his alibi there and then. Not even in the record of interview, Tonde v The State [1994] PNGLR 539. But where there is weight to be drawn in its weighing it does seriously in my view, effect the way to be given it in the determination of whether the allegation he raises succeeds or goes by the wayside. Here there is nothing placed for the accused, all are silent.
    
15. Only documentary evidence tendered and marked as exhibit P1 was the medical report under hand of Doctor Jimmy Kambo dated the 12^th September 2018. It confirmed the identification of the body as that of Gabriel Kumasi whose examination was conducted by Doctor Jimmy Kambo 16 days after his death. And the Doctor stated that the cause of death was gunshot. And the date or time of death was 27^th August 2018. The cause of death was severe Gun Shot injury.
    
16. Externally he was a 35-year-old Melanesian with a gunshot wound noted on the left buttock of which there was no exit wound noted and there were also no other injuries noted.
    
17. Internally the gunshot entry was diagonal with the direction of the left thigh. The left iliac bone fractured into small fragments. And doctor was unable to locate the gunshot pallet. The left buttock muscle was shattered from the pallet. And the conclusion was that death occurred due to severe gunshot injury and loss of blood.
    
18. There is no evidence in defence by the five Accused either by their records of interview, or unsworn evidence from the Dock or sworn evidence. All five did not call any evidence in defence. All elected to remain silent. Their records of interview have been objected to so have not been tendered into evidence. It means the only evidence to weigh to determine whether or not they are guilty or not is the evidence of the state set out above. And in this regard, there is no alibi that they were not on that vehicle on the 26^th August 2018 between 6.00pm to 6.30pm at that location where Gabriel Kumasi was shot fatally in the left thigh shattering it causing massive bleeding which eventually led to his death. It is not challenged that the Accused were all policemen. Marcus Nimiheau alias Michael Nimiehau was a policeman stationed working at Hawain Logging with the witness Zachary Hakaure. This witness identified him as the second man in the dock with the brown shirt second man sitting there in the dock. Policeman Michael Nimiheau alias Marcus Nimiheau was with me. And this witness was the driver of the subject vehicle that had left the Hawain Logging Camp because Policeman Michael Nimiheau alias Marcus Nimiheau had a problem. So, he was in the cabin with the witness. The others got on the vehicle four other policemen on the other side sitting at the back. Referring to the four accused in the dock. They were the four policemen I picked up at Yawasoro Police Barracks. They were all on the back tray with arms. I saw three, one with us from the logging camp and the other two with the policeman who got on the vehicle. And all three shots were fired from the back where the four policemen were at the back on the tray on the white land cruiser open back. And the discharge of all shots were made at the area where the deceased was, one injuring him fatally from which he later died at the hospital. When I looked in front, I saw a person fell down. It was about 30 meters like from the witness box to the bananas at the back. The place was clear but when we got the body it was dark.
    
19. It is not good to state from the bar table reasons that are not before the court by and supported by evidence and rely on that as here, State v Wer [1988-89] PNGLR 444; N776. Because as it is there is no alternative to the assertions by the Prosecution. And that is the only rational and reasonable hypothesis by the evidence that will be considered in the determination of the matter against the accused.
    
20. Policeman Michael Nimiheau alias Marcus Nimiheau had purposely left the Hawain Logging camp assisted by the approval of Manager Peter Tang who had instructed Zachary Hakaure the driver of the subject vehicle to assist him to Yawasoro Police Barracks because he had a problem there at home. But upon arriving there Policeman Michael Nimiheau alias Marcus Nimiheau directed him to Boram Hospital. It would appear that the trouble involved injury for which the subject was admitted to the hospital. And this is clear when they further went to the Police Station at Town. From there they went looking for the suspect involved one Nathan. And all the while the directions where within and in the cabin as to where the vehicle proceeded was from Policeman Michael Nimiheau alias Marcus Nimiheau. It was his problem that took approval for the use of the subject vehicle which approval was executed by the witness Zachary Hakaure the driver of the subject vehicle. No doubt that is clear when the vehicle was specifically turned and going back to the scene where the deceased and others were sitted. And one Nathan who was presumably and mistakenly held to be in the group that the deceased was in that evening at that location between 6.00pm and 6.30pm. Marcus Nimiheau assaulted Jethro Singut who saw him face on as he was on the ground assaulted by this Accused.
    
21. What is proved beyond all reasonable doubt by the evidence called set out above is that Gabriel Kumasi died as a result of gunshot injury to the left buttock from which he bled to his death. He suffered that injury from a gunshot that was fired from the Toyota Land cruiser white in colour on which were the five accused who were picked up by Zackary Hakaure on the 26^th of August 2018. One of the accused Policeman Michael Nimiheau alias Marcus Nimiheau was in the cabin with the driver. The rest were at the back of the open back white Toyota Landcruiser. These were the four accused policemen who were on the back tray. Amongst them were three guns, one was brought from the logging camp by Marcus Nimiheau. The other two were brought by the four policemen who had got on the vehicle at Yawasoro Police Barracks. And the gun discharged was one or more of those police issued weapon in their possession by one of them from the back tray. Those were the only guns in the vicinity of the shooting of the deceased Gabriel Kumasi. And were discharged from where the four Accused were at the back open tray of that vehicle Toyota Land Cruiser open back utility. And they were the only persons who had motive to discharge the guns in their possession because they were after a suspect Nathan who was being pursued by them. Because as soon as they shot Gabriel Kumasi, they jumped off the vehicle went and assaulted them. As they did the accused Marcus Nimiheau was identified by Jethro Singut as he was on the ground assaulted. He saw his face at close quarters.
    
22. There was evidence of the death of the deceased immediately after the vehicle that the five Accused were on came to where the deceased was. He died as a result of gunshot fired from that vehicle from the back tray. And that vehicle went and the four Accused who were at the back of the vehicle tray picked up the body of the deceased and took him to the hospital at Boram. Just before reaching Boram hospital, they got off and allowed the witness Zackary Hakaure to drive with the body of Gabriel Kumasi to the Boram Hospital. I took the person to where the Ambulance parked. I came out and helped the trolley man to load the body, and I drove off picked them, and we went to the Barracks.
    
23. None of the four Accused and the accused Marcus Nimiheau ever got off the Toyota Land Cruiser white open back driven by Zackary Hakaure anywhere on that day 26^th August 2018, except just before he off loads the body at where the ambulance parks and to where the trolley man is. Then they all get on the vehicle and he drops them all off at the Barracks. All are there immediately before the shooting of the deceased and at the time that the deceased is shot and load the deceased onto the vehicle. They are not in a crowd, nor are they amongst persons who are also policemen armed and firing their guns at the deceased. They are the only persons with guns, there were three immediately there that afternoon between 6.00 to 6.30am, at SSC Mission junction and all four accused were on the back tray on that Toyota Land Cruiser open back Utility from which the three shots were fired injuring Gabriel Kumasi through the left buttocks and from which he bled to his death. In the front cabin was Marcus Nimiheau who was directing that vehicle to look for Nathan. His direction led to where Gabriel Kumasi was and the firing of the gun and injury following and death. And no doubt without which Gabriel Kumasi was and would not have been shot, or that the shooting would not have taken place. He is a principal offender within Section 7 of the Criminal Code is canvassed by these facts within the definition of Porewa Wani v The State [1979] PNGLR 593. This is a case likened to The State v John Badi Woli and Pengas Rakam [1978] PNGLR 51 both accused were responsible in law for death resulting from an attack where both, in the presence of each other and with intent to harm, were aiding and abetting each other in the attack. It was not to the point that it could not be elicited whose blow caused death. Here it is not established who fired the gun first, second and the third time, but the fact is that the gun was fired where all accused were on the back tray of the subject vehicle. All stand as parties to a criminal offence and the allegation is that they aided and abetted each other in the commission of that offence, Amoko, The State v [1981] PNGLR 373. It was fired from that fixed location moving with all four accused on it and Marcus Nimiheau in the cabin directing to where deceased was located and shot. And when Gabriel Kumasi was shot all four accused loaded him onto the vehicle and took him to the hospital. They were present there aided and abetted each other in the offence as seen in The State v Nataemo Wanu [1977] PNGLR 152. They did not disassociate themselves from that common purpose to find the suspect Nathan. Their presence is willed and not innocent in other words the five accused were part of the group and had knowledge of what was happening and actually participated, Wamela v The State [1982] PNGLR 269. And disassociation or separation or withdrawal must be shown for an accused to be exonerated or be not criminally responsible, Nimagi v State [2004] PGSC 31; SC741. Here that is not the case all were on that vehicle white open back Toyota Land cruiser.
    
24. This is not a fleeting glance of a masked hood seen in difficult lighting situation, or of trying to identify a stranger. Here the five Accused are all in the vehicle, Marcus Nimiheau is sitted in the cabin, whilst the four co accused policemen are all sitted on the back tray where the gunshot is fired three times leading to the death of the deceased. The identification of all are firmed out because there is no challenge to the fact that all were in that vehicle at the time the shots were discharged injuring fatally Gabriel Kumasi, who bled from that injury to his death. They loaded him on the vehicle and took him to just near the hospital, got off allowed Zackary Hakaure to complete his delivery to the hospital. Conveniently they tried by that fact to conceal and to hide their identity. It did not distort and conceal because it corroborated the evidence of the State witnesses identifying them as sitting on the back tray and discharging the fatal shots that killed. Had they lawfully executed their duties they would have delivered the body to the hospital at Boram in person. But did not because they had shot and taken the life of another fellow human being. They got off before the body was delivered to the hospital accident and emergency because they unlawfully discharged the gun at him causing him grievous bodily harm from which he bled to his death. They had committed murder. Their identification has been settled and meets the test of Beng, The State v [1976] PNGLR 471. because the opportunity to make a mistake in the identification of the Accused is not there.
    
25. It was not a case of being in the dark of the night where visibility was zero to none. This is not the situation that was observed in Bate v State [2012] PGSC 46; SC1216 where the supreme court overturned the conviction because the evidence on identification was not beyond all reasonable doubt. It did not caution itself in taking account of that evidence upon which it returned the guilty verdict. Recognition was well but there were cases where even then mistakes were made. And that the reliability of the evidence could be the basis upon which the conviction was safe considering. Adverse inferences could not be made upon the case of the Accused that they did not disclose the Alibi at the first opportunity with the Police. Here the Accused are presumed innocent until proven guilty. And that burden is always on the State start to end, not on the Accused. It cannot be assumed that the silence is recently concocted because the burden is on the State to prove even without the Accused opening his mouth. And the decision here stems from the Constitutional rights of the Accused under section 37 (3) and (4) (f) which are heeded in that all opportunity is given him to run his defence. Here it is my view that that is in accordance with the Rules of Court. They promulgate fairness to both sides of the dispute, hence that is the effect of Order 4 Division 2 in the case of Alibis. I have in accordance caution myself that the evidence does not disclose that this is a case of mistaken identity. The Accused are all static in that vehicle isolated to the offence that they commit here. I have no lingering or lurking doubts as to their identity in the offence. Only one reasonable hypothesis is open on all the facts, their guilt of the allegation made here by indictment.
    
26. It is confirmed by the fact that all five Accused are policemen armed with three guns sitting in that vehicle who have pursued the deceased mistakenly for the suspect Nathan to his demise. Marcus Nimiheau alias Michael Nimiheau sitting in the front cabin with the witness and the four on the tray at the rear when the gun is discharged three times leading to the death of the deceased. All are not in a raid with other policemen also armed in pursuit of criminals. Or where guns are discharged in a confrontation back and forth between the parties on either side. That is not the situation here. Hence therefore a need to verify the guns that were discharged to single out the guilty from the innocent. Here the guns are with the policemen who are stationary sitted on the back tray of an open land cruiser in pursuit of a suspect Nathan who they have mistakenly taken to be the deceased Gabriel Kumasi who is wanted there for an allegation and shot by them in company.
    
27. On another footing are the circumstances incompatible with the guilt of the Accused as the only rational inference from all the facts set out above? Is there another reasonable hypothesis other than the guilt of the five Accused on the facts set out above? Because if there is, then the five Accused are entitled to an acquittal of the charges laid against them, Paulus Pawa v The State [1981] PNGLR 498. There is no challenge to the evidence of the Prosecution by the Defendants. Each has elected to remain silent in the face of the fact that, Gabriel Kumasi was shot on the 26^th August 2018 between 6.00pm and 6.30pm fatally in the left buttock and thigh shattering it causing massive bleeding which eventually led to his death. Nothing is deduced from their silence and cannot be held out against them. Nothing will be held against them for exercising their right. But the fact remains that the only evidence in the case is of the prosecution. And the story of that evidence is nothing but the guilt of the five Accused on the indictment of murder pursuant to section 300 (1) (a) Criminal Code against all Accused named. What comes to the top and on the basis of which there is no other reasonable hypothesis other than the guilt of the five Accused that they were in company on that vehicle white Toyota Land cruiser open back armed with three guns, one of which was discharged at Gabriel Kumasi that afternoon of the 26^th August 2018 between 6.00pm and 6.30pm, injuring him in the left buttock causing him grievous bodily harm from which he died from the massive bleeding associated. This is not a case where there is shifting of the blame of one gun against the other two. That is not the case here because each of the five accused are silent. But the subject guns were with them on the back tray of the subject open back land cruiser on which they four accused were sitted. And from where came the three shots one of whom killed the deceased. He was grievously injured and died from that injury. There was intent to cause grievous bodily harm by the accused. And they caused that upon Gabriel Kumasi when they discharged that gun at him. And as a direct and immediate cause of that gunshot he died from the massive bleeding that followed. In all the circumstances there is no doubt in my mind that, Hugo Ambane of Yuwari, Kundiawa, Chimbu Province, and Telis Tui of Kar, Nipa Kutubu, Southern Highlands Province, and Graham Hanguai of Tari, Tari Pori, Hela Province, and Marcus Nimiheau alias Michael Nimiheau of Niegrie, Yangoru Sausia. East Sepik Province and Tony Kerua of Mindima, Kundiawa, Gembogl, Chimbu Province are each and severely guilty of murder pursuant to section 300 (1) (a) of the Criminal Code Act committed upon Gabriel Kumasi on the 26^th day of August 2018 at Wariman, Wewak in Papua New Guinea.
    
28. The verdict is guilty of murder against all defendants named on the Indictment dated the 14^th June 2022.
    
29. As a direct consequence of verdict in law, I order that all bail moneys of the defendants are hereby refunded forthwith. All will be remanded in custody forthwith to await sentence.
    

Ordered Accordingly.

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for G. Hanguai

JPJ Lawyers : Lawyer for four Defendants