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State v Gubag [2023] PGNC 267; N10462 (4 September 2023)

N10462

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1017 OF 2022

THE STATE

V

KOMENG GUBAG

Waigani: Berrigan J
2023: 28^th February, 1^st, 2^nd, 10^th March, and 4^th September

CRIMINAL LAW – WILFUL MURDER – Identification Evidence – Recognition Evidence – Credibility – Guilty of one count of murder – Guilty of one count of wilful murder.

On the evening of 23 October 2021 the accused, an off-duty police officer, attacked sellers at the market at the settlement at Garden Hills. He broke tables and fired several shots from a pistol. The situation developed and people threw rocks down from the settlement on to passing vehicles on the road leading up to the Garden Hills residential area. Sometime after 9 pm two private security vehicles arrived and parked at the yard next to the settlement. They fired some shots, possibly into the settlement. Police in two white ten seaters subsequently arrived. They fired tear gas and several shots into the settlement behind the market. Ivan Neson, a resident of the settlement went down the hill towards the market to see what was happening. His nephew, Laki Yamo, tried to stop him but Ivan carried on until they met the accused who was standing some distance inside the settlement. Ivan and Laki were standing a few metres up the hill from the accused on a relatively flat area above some sandbags. The accused removed a pistol from his shorts and shot Ivan Neson in the lower left chest. The bullet exited through his right shoulder. Ivan fell to the ground. Laki moved towards Ivan to help him. He shouted at the accused “he got the bullet already so enough”. But the accused shot Laki Yamo to the head instead and he too fell to the ground. The accused went down the hill where he tried unsuccessfully to get hold of a rifle from one of the police officers at the road before he got into one of the police vehicles both of which left the scene. Ivan Neson died from a collapsed lung due to gunshot wound. Laki Yamo died from a shattered skull and brain damage.
Held:

(1) There is no principle of law or procedure which precludes the conviction of an accused person in the absence of ballistic evidence in a case involving death caused by a firearm. As in any case, the question is whether the totality of the evidence establishes the guilt of the accused beyond reasonable doubt.

(2) Intention goes to the state of mind of the accused person at the time he or she acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either case it is necessary to examine the course of conduct of the accused prior to, at the time of and subsequent to the act constituting the offence: State v Raphael Kuanande [1994] PNGLR 512. It may be inferred from the nature of the weapons used and the location or nature of the injuries inflicted: see R v Sigo Sasawari (1975) SC825; Mako Ranjigi v The State [1994] PNGLR 44, The State v Wanaepe Warara [1977] PNGLR 458 and The State v Stanley Kuma Kuru (2011) N4264, amongst others.

(3) The direct evidence, which was supported by other evidence, established that the accused killed Ivan Neson and Laki Yamo. It excluded any possibility that the deceased were killed in other places, by different weapons, at different times by policemen or security personnel who responded to the disturbance in the Garden Hills settlement area over a period of several hours on 23 and 24 October 2021. The deaths were unlawful. The evidence excluded any rational inference other than that at the time the accused killed Ivan Neson he intended to cause him grievous bodily harm and that at the time he killed Laki Yamo he intended to cause his death.

Convictions accordingly.

Cases Cited:

State v Raphael Kuanande [1994] PNGLR 512
R v Sigo Sasawari (1975) SC825
Mako Ranjigi v The State [1994] PNGLR 44
The State v Wanaepe Warara [1977] PNGLR 458
The State v Stanley Kuma Kuru (2011) N4264
Jimmy Ono v The State (2002) SC698
R v Ulel [1973] PNGLR 254
Peacock v The King [1911] HCA 66; (1911) 13 CLR 619
S v Felix Simon (2020) N8183
The State v Melchior Ibor (2005) N2896
Paulus Pawa v. The State [1981] PNGLR 498
Maraga v The State (2009) SC968
James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173
RD Tuna Canners Ltd v Sengi (2022) SC2232
John Beng v The State [1977] PNGLR 115
Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State (2002) SC698
State v Kande & Ors (2021) N9132
The State v Francis Vau Kamo (2006) N2991
Sheekiot v The State (2019) SC1824
State v Raphael Kuanande [1994] PNGLR 512
R v Sigo Sasawari (1975) SC825
Mako Ranjigi v The State [1994] PNGLR 44
The State v Wanaepe Warara [1977] PNGLR 458
The State v Stanley Kuma Kuru (2011) N4264
Kandakason v The State (1998) SC558
Driscoll v R [1977] HCA 43; (1977) 137 CLR 517
R v Salih [2005] VSCA 282; (2005) 160 A Crim R 310
Balbal v The State (2007) SC860

Legislation and Other Materials Cited:

S 299(1) of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Ms L Jack and Mr J Siminji, for the State
Mr D Dotaona, for the Accused

DECISION ON VERDICT

4^th September 2023

1. BERRIGAN J: The accused is charged with two counts of wilful murder, contrary to s 299(1) of the Criminal Code (Ch. 262) (the Criminal Code), such that on the 23^rd day of October 2021 at Garden Hills, Port Moresby, he wilfully killed Ivan Neson and Laki Yamo.
   
2. The State alleged that at about 6 pm on 23 October 2021 the accused drove up to the Garden Hills settlement in a white Honda CRV Vehicle. The road- side market sellers called out to him to slow down. He stopped his vehicle, wound down his window and told them “I will go and come back” before continuing on. At about 7.00pm he drove back to the market in the company of other boys. He was drunk and smashed a market table and said “today I will kill someone”. He was armed with a pistol and opened fire first at the sellers at the market, and then at settlers nearby, all of whom ran uphill towards their houses. On hearing the commotion the two deceased came down to see what was going on. The accused shot Ivan Neson as he walked down, the bullet entered at the left rib and exited out through the right shoulder, causing his death instantly from a collapsed right lung. Laki Yamo tried to help Ivan but was shot by the accused just below his right eye. He died instantly from a gunshot wound to the head that fractured his skull and penetrated his brain.
   

WILFUL MURDER

3. To establish the offence of wilful murder contrary to s 299(1), Criminal Code the prosecution must establish beyond reasonable doubt that the accused: a) killed the deceased; b) unlawfully; and c) with the intention of causing his or her death or the death of some other person.
   

STATE CASE

4. Jack Amos, 31, married with three children, sustains his living by selling smoke and buai at the market. He lived at Garden Hills settlement at the time but now lives at 6 Mile following the eviction of settlers from Garden Hills in January 2022. He said that at about 6 pm on 23 October 2023 the accused drove past the market at high speed, in response to which the crowd yelled at him to slow down. He stopped his vehicle, rolled down the window and yelled at them that he would “come back to kill someone here”. Jack had come to know the accused well over the three years prior because they both lived in Garden Hills and the accused would chew betelnut and smoke in the settlement. He is often with the accused and is familiar with his attitude. The accused drives at high speed and sometimes discharges his firearm. Because of that Jack decided to pack up his things and leave. His house is located in the middle of Ivan and Laki’s houses in the settlement. The houses are very close together. About thirty minutes later, sometime between 7 and 8 pm according to his phone, he heard plenty of gun shots, more than five, and could hear a lot of things destroyed and bullets came into the houses and so he, Laki and Ivan came out to see what was happening. They only came out three metres but they did not realise that the accused had come up already. The accused was standing there with a pistol pushed with his shirt into his trousers. When he saw Laki he took out a pistol and shot Laki, who fell down. Ivan moved as if to stop the accused but the accused shot Ivan across his ribs. He was afraid that the accused would shoot him too so he ran away. The accused was standing about five metres from Laki at the time he shot him. Jack was standing two to three metres to the right of Laki, who was standing close to Ivan. There was lighting from a solar light from Moni Plus and from a power pole spotlight, as well as fluorescent lights from the outside of houses at the settlement. He went back and told the family to get the bodies and they took them to Boroko Police Station. Police told him that there was an ongoing fight at Garden Hills so police cannot go in that night to investigate and gave him K200. They took the bodies in their own car and brought them back to the settlement. Early the next day CID came and took the bodies to the morgue.
   
5. Under cross-examination he denied that there was any settlement fight with police and there were no police present at the time of the incident. When it was put to him that his statement said that the accused had two guns, a pistol in his pocket and a long gun, he said that the person who wrote the story down did not understand him well. When it was put to him that he said that the accused fired tear gas at the crowd, he said that the person who wrote his statement did not understand him well, the accused brought that gun after the death of the deceased. That was a rifle from a police car. It was put to him that in his statement he said he looked up at the hill and saw the accused shoot two persons but that he did not know the two persons and only found out later that it was his brother and nephew. He maintained that he was with them but as the shots were fired he fled for his life. He thought they were only injured and did not realise until later that they were dead. The police did not come and destroy anything on Friday, 22 October. There was no settlement fight with police on Saturday night, 23 October. He did seek compensation of K80,000 on behalf of the family from the accused’s family for repatriation of the bodies to Goroka. He thought the police would help but they gave nothing. He took the bodies to Boroko Police Station because the accused shot the deceased. He knew the accused was a policemen, a member of the Dog Unit.
   
6. Jeremy Laminapo is from Goroka. He has been employed at Moni Plus for three years, now as a sales agent. He is educated to Grade 12 at Goroka Secondary School. Between 2017 and 2021 he lived at Garden Hills opposite Moni Plus up in the settlement on the hill.
   
7. The accused instigated the problem. He fought with people at the market between 6 and 7 pm. Jeremy did not know what it was about. The accused appeared to be drunk and talking nonsense. He fired a pistol and destroyed the market, that is he broke the tables. Jeremy could not remember the number of shots fired. He was about 15 metres from the accused at the time.
   
8. Between 7 and 8 pm police fired tear gas and shots into the settlement and people ran up the hill. Ivan and Laki came down to see what was happening. The accused was standing underneath about four to five metres from them when he shot them with a pistol. The witness was standing about 12 metres from the two deceased men and 13 to 14 metres from where the accused was at the time of the shooting. Ivan, the older man, was shot first. Laki came to try to save Ivan. He shouted to the accused that “he got the bullet already so enough” but the accused did not listen. The accused shot Laki in the eye and he fell down towards the toilet. There was no one else present with the deceased at the time. The accused was also by himself. He was able to see him because there were normal bright fluorescent lights from the two houses at the front of the settlement where the shooting occurred. There was also a large security light from the Moni Plus car park at the road leading to the houses at the settlement. It faces towards the road and is very bright. There was nothing blocking his view. After the shooting Jeremy went up and told the family that the accused shot Ivan and Laki and that they were dead.
   
9. Jeremy knows the accused well. He is from Madang. His house is up the hill near the settlement at Garden Hills. He used to drive on high speed up the road back and forth and stop and chew buai and smoke at the market. He identified the accused in the dock. Jeremy also knew the deceased well. He lived with them in the settlement. He did not know why the accused shot them.
   
10. Prior to the shooting of Ivan and Laki there were security and police vehicles present. The TSI vehicles arrived first and parked at the BPNG yard they were looking after about ten metres from where the incident happened. Two police vehicles arrived and shot tear gas and plenty of shots towards the settlement. After the shooting the accused went and argued with two policemen. He was trying to fight one of the policemen who was holding a gun, an M16, and pull it out of their hands. Two policemen called the other officers and they came and got the accused into the car and they left. The accused did not manage to get the gun. The police from the two vehicles did not come up into the settlement area where the accused stood at the time of the shooting. They were down at the road beside the market.
    
11. Jeremy agreed under cross-examination that there was a fight on the street for three to four hours. He agreed that he saw two white ten-seater police units and two security vehicles on the street and they drove in and started firing. There was a commotion between police and gun shots before 9 pm. He was at the Moni Plus bus stop on the opposite side of the main road, some 200 metres away waiting for his wife. TSI and police shot some bullets into the settlement between 9 and 10 pm. He maintained that he brought his wife up from the bus stop and smelt tear gas and heard more shots being fired and went down. He wanted to see what was happening. He came down beside the houses to avoid being shot. On the way down Laki tried to stop Ivan but Ivan refused and went down and was shot. He did not see the policemen get out of the vehicles as he was coming down but he heard guns coming from the police whilst he was coming down. He did not agree that there were hundreds of rounds from police at that time but around 9 or ten. That is when he saw the two deceased being shot. He agreed that police were shooting because people were throwing rocks down from the settlement onto the road. People were stoning vehicles on the road.
    
12. He agreed that he said in his statement that at the time of the fight the accused was continually firing until he ran out of bullets. When it was put to him that he could not therefore have shot the accused later he said that that fight was earlier at 6 pm. He denied that other police officers shot the deceased and he did not know who they were so he blamed the accused. He was at the bus stop before the shooting. He was waiting for his wife. There was a fight for three to four hours involving police against the settlement but bullets were not firing for three hours. When his wife came he took her up to the house. He left his wife and child at the house and came back and saw it. At the time the accused was wearing short trousers and no shirt. After that he went up and told the deceased’s family to take the bodies.
    
13. Kori Buka is from Goroka. She has never been to school and is not sure of how old she is or the ages of her five children. Following the eviction of the settlers from Garden Hills she has been living at the Seventh Day Adventist Church area at Garden Hills. She was not sure when the eviction took place. She said 2001 or 2002 but this must be a reference to 2021 or 2022. She makes her living selling food at the marketplace at the side of the fence towards Moni Plus office. Whilst she could not recall the date of the alleged offences she said that she saw the accused come in a taxi to the market and kick a buai table. He came with a lot of boys in the same vehicle but she did not know them or how many there were. He was not wearing a shirt only short trousers. He was holding a bottle of SP and put it on the table and said “I am Komeng”. He pulled a pistol from his trousers pocket. She was only three metres from him at the time. She saw it, grabbed her grandchild and ran away. She ran up the hill into the settlement area. She heard two shots and kept running. She identified the accused in the dock. She knows him very well. He is a policemen. He used to come and fight with the people at the market. She had known him for one year at the time. She did not see the direction the shots were fired as she was running away. She ran up into the settlement. It was about 10 pm. She had her phone so she saw the time. She ran all the way to her auntie’s daughter’s house in Murray Barracks. She returned at 6 am the following day and heard that Ivan and Laki were dead. She is Ivan’s auntie and Laki is the son of her elder sister. There was a spotlight at the side of the settlement, a large light in the middle of the market and a bright light in front of the store on the settlement side of the road. There were many people working two or three tables at the market.
    
14. Sergeant Danny Simon, was Commander of Fox Unit, Zone One, between 2018 and 2022 which supports Boroko Police Station and the zone as needed. On 23 October 2021 he was patrolling within his area, Moresby South, when he heard over the police radio that there was a fight at Garden Hills. He responded to the call at about 11 pm with his driver, Constable Nathan Meke. He approached the crowd and told them to remove the barricade which was set up across the road about fifty metres from Moni Plus. There were about fifty or so people at the barricade but he could not see exactly how many. It was manned by angry relatives of the victims who had been shot. He told them that what has happened has happened so we can leave it to the police but for now they must remove the barricade. At about 12 am or 1 am another officer Inspector David Terry arrived. He went to brief him. Whilst he was doing that the accused walked past them and fired several shots into the air from a K1A1 rifle. The accused was alone at the time. He did not hear any other gunshots. There were lights toward the settlement side but on the other side it was a bit dark. He told Inspector Terry that they had to disarm him and told the accused to hand over the weapon. The accused refused and so Sgt Simon grabbed the rifle with his left hand. The accused said “bai mi shootim yu”. Sgt Simon drew his police pistol and pointed it at the accused and told him to release the weapon. Whilst both his hands were occupied the accused punched him to the face and took off with the rifle to a waiting vehicle and fled. There was a policeman, in uniform, whom he believes was with the accused but he was focused on the accused. He identified the accused in the dock. He knows him as a fellow police officer. His unit used to work with the Dog Unit to which the accused belonged. That night the accused was wearing civilian clothes, short trousers. S/Sgt Simon did not discharge shots from his pistol that night. He left the following morning between 4 and 5 am. There were no other police vehicles at the time he arrived but four of five arrived later.
    
15. He agreed under cross-examination that there was a serious law and order situation unfolding the night he attended. He heard that a store had been burnt but he did not see it himself and only became aware of the report later. He was aware that the accused’s parents had a house in the area but he was not aware that there were threats to burn the house. He agreed that the police did a good job to maintain law and order that night. He was aware that the settlement was subsequently bulldozed by police.
    
16. According to the statement of police officer Nathan Meke, tendered by consent, at about 11 pm on 23 October 2021 he and S/Sgt Simon received a priority message for all units to attend Garden Hills following reports of a big fight. He responded with S/Sgt Simon. At the time they arrived there were no other police units present. There were angry crowds of 100 or more gathering at a barricade erected in front of the Moni Plus entrance. S/Sgt Simon approached the angry crowd to enquire what was happened and was told that Komeng Gubag had shot and murdered two people and injured others. Senior Inspector David Terry arrived at the scene to assist. A few minutes later the accused walked up from behind and fired shots into the crowd to disperse them. S/Sgt Simon was ordered to disarm the accused but the accused fought with him and gave the firearm, a K1 police issued rifle, to another police man as he got into a blue ten seater which was parked in front of Moni Plus and left.
    
17. The statements from members of the crowd to Sgt Simon and DC Meke about what had happened are hearsay in the absence of those witnesses but the fact that the barricade had been erected by 11 pm is relevant to the establishment of a timeline.
    
18. Dr Stephanie Kialo-Davis conducted the autopsies on the two deceased men at the Port Moresby General Hospital. She has been a doctor for eight years and at the time of the autopsy had been a training pathologist registrar for five years. The bodies were identified to her by Jack Amos in the presence of First Constable David Yakasa. The autopsies were not conducted until 3 December 2021 by which time there was evidence of decomposition of both bodies.
    
19. She gave oral evidence and confirmed the findings in her autopsy reports which were admitted. She confirmed that despite the internal and external decomposition of the bodies she was able to determine the cause of death in both cases. She was still able to identify the entry and exit wounds on the bodies as the entry wounds were smaller due to being hit by the bullet at higher velocity than that at which the bullet exited the body. She agreed that an autopsy should ideally be undertaken within 24 hours of death. She did not have an explanation for the delay. She was unable to say whether there was gunshot residue present on the bodies due to the presence of decomposition at the time of the autopsies.
    
20. The autopsy report for Ivan Neson stated that the body appeared to be 20 years older than the stated age of 30 years. At the time of the autopsy he was wearing a red t-shirt. There was a 1 x 1 cm gunshot entry wound on the left side of the chest between the 8^th and 9^th ribs. It measured 25 cm from the mid line. There was a 1 x 1 cm penetrating wound to the diaphragm on the left side. There was a 1 x 3 cm exit wound on the right side of the back at the 6^th rib. It measured 49 cm from the midline. The posterior right 6^th rib was fractured. The right lung showed evidence of collapse. In her opinion death was caused by a collapsed right lung due to a gunshot wound to the chest.
    
21. The autopsy report for Laki Yamo, 25 years old, revealed a 1 x 1 cm wound on the right check and a skull fracture of the right temporal region. Three fragments of a pellet were found in the decomposed brain tissue. The largest was 1 cm in dimension. There was no exit wound. In her opinion death was caused by gunshot wound to the head. There was no exit wound because the bullet broke into pieces when it hit the very strong skull bone.
    
22. Superintendent Michael Tilae, a member of the RPNGC for some 30 years, was Director of the Dog Unit Bomana from October 2020 until January 2023. The accused, First Constable Gubag, was an administrative clerk in the NCD Dog Squad. On the morning of 24 October 2021 he was directed by the Commissioner to apprehend the accused. He called the accused’s supervisor. The accused came to Boroko in response. He asked the accused if he had a firearm but none was produced. The accused was an administrative clerk but he had a dog and was therefore entitled to a firearm. The standard issue is a 9 mm pistol. He believes the pistol was retrieved at the time of the accused’s suspension because he saw an order directing its production. He was unable to recall the date of the suspension.
    
23. Chief Sergeant Maxwell Barai, a police officer of 31 years standing, is attached to the Crime Scene Investigation Unit, at the National Forensic Science Centre. He has been the OIC of the Section for about two years. Before that he was a crime scene examiner and trained in firearms examination. He attended the scene at Garden Hills on Sunday, 24 October 2021 where he took photographs of the two deceased men and asked community leaders to bring forward witnesses the following day. On Monday 25^th October 2021 he conducted an examination of the alleged crime scene, which he recorded in his statement, Exhibit P1, which was tendered by consent. The photographs are admissible as is the physical description of the scene made from his own observations. Much of the other information contained in his statement about where persons were standing at the time of the alleged shooting and related measurements taken from unnamed persons is hearsay.
    
24. C/Sgt Barai photographed the removal of bullet fragments from a Nim Tree standing close to the toilet at the alleged crime scene by Constable David Yakasa of the CID Homicide Squad, Boroko Police Station. It appears the calibre of the fragments was not discernible. A 9 mm fired bullet was retrieved by Constable Kila Vele from a house near the SDA Church Sign Board at the main road and a dirt road leading up to another part of the settlement. Photos show bullet holes through the sign and house but it is not clear where this house is located in relation to the crime scene.
    
25. C/Sgt Barai recorded in his statement the collection of a gas canister and three 9 mm fired casings reportedly found near and at the alleged crime scene, and seven 5.56 millimeter fired casings reportedly found near the alleged crime scene. For reasons which are not clear, however, the statements of the persons who reportedly found the items were not produced. Only the statements of two other witnesses were tendered by consent the State. Adubi Eto, Rarowan Village, Okapa, produced an empty 5.56 mm bullet case to police which he found on Sunday 24^th between 3 and 4 pm near the roadside gutter on the road up to the Garden Hills residential area. Hagi Ayano, Kimi Village, Okapa, produced a 5. 56mm fired casing found at around 9 am on 24 October 2021 along a track leading up to the alleged scene of the killings. I will return to this below.
    
26. In oral testimony C/Sgt said that 9 mm casings are shot from a 9 mm handgun, also known as a pistol. 5.56mm casings are issued from rifles including M16, AR15 and K1 rifles. He was unable to compare the casings found at the scene of the alleged offences with any weapons as no weapons were produced to him for examination. In his view the wounds suffered by both deceased were consistent with being caused by a 9 mm bullet. It was not possible for them to have been caused by a rifle because the entry wound of a 556 mm would be much smaller and the exit wound much larger than that found on the bodies of the deceased.
    
27. Under cross-examination he maintained that the wounds were probably caused by 9 mm bullets. He agreed in general terms that he would expect to see gunshot residue at a range of less than 10 metres, a lot at five to seven metres. The photo of Ivan Neson P2-2 showed some residue. He disagreed with the suggestion that the bullet did not exit Laki because it was shot from a long distance. It was possible from a close distance. He agreed it was possible that the two injuries could have come from different weapons. He agreed that he could not say definitively whether the wounds were caused by 9 mm or 556 mm bullets. He maintained that the bullet fragment retrieved from the brain of Laki was too large to have come from a 556m jacketing.
    
28. In re-examination, photograph P2-8 showed gunshot residue on the face of Laki which in his experience indicated that the person had been shot within a distance of one to ten metres. It is possible to find residue on clothing and at the skin at the place of penetration but the shirt Ivan was wearing was soaked in blood and that could have destroyed the residue.
    
29. An affidavit from Johnny Passingan, Chief Operations Officer, Tactical Solutions International (TSI), was admitted by consent. He states that TSI provides armed guards, armed response and other security services. TSI does not use high calibre rifles only 9 mm handguns and 12 gauge shot guns. TSI’s armed division, the Tactical Armed Group, responded on the date of the alleged incident but observed only and did not discharge any firearm. Any discharging would be a warning shot into the air as per standard operating procedures. According to a security incident report of 23 October 2021 TSI’s control room received reports of civil unrest at Garden Hills settlement at 2100 hours as a result of police destroying markets. Four guards on site reported at 2115 hours that an angry mob threw rocks at residents in the area. At 2116 hours it was reported that police discharged warning shots and a civilian was hit in the process. All drop-offs to the location were cancelled until further notice. Control dispatched response units to monitor the site and assist where necessary and advise the guards on ground to keep the premises locked and remain at a safe distance whilst maintaining communication with controls. At 2200 hours TSI was reportedly blamed for shooting the civilian. Situation reportedly tense as police forces and TSI reportedly withdrew their presence. At 2210 hours it was reported that an angry mob burnt tires at the main entrance at Garden Hills and set up a road block. At 0147 hours it was reported that a nearby residential property was looted and a trade store set on fire. At 0149 guards on site reported two deaths. At 239 hours it was reported that the mob moved from the settlement to private residential areas. At 240 hours it was reported that police responded with overwhelming numbers, barricades were removed and situation brought under control. I will return to this material below.
    
30. The investigating officer, Inspector Apollos Terry, OIC Police Internal Affairs, is an officer of 39 years standing. He served disciplinary charges and a notice of suspension on the accused when he arrested and charged him for these offences. He is not aware of any other suspension. He did not recover a weapon from the accused. He asked the accused for it but the accused remained silent. He raised a search warrant for Red Sea Barracks where the accused was living but did not execute it after receiving certain intelligence. There is no longer a settlement at Garden Hills following a mass eviction. At the time of the investigation there were streetlights, one opposite the settlement at Moni Plus and one on the other side of the road where the incident took place. There were also lights at the settlers’ houses. He did not cordon off the crime scene because he was not there at the time. He attended the following day and compiled witness statements. He relied on the forensic team to collect bullets. There was no need for an identification parade because the witnesses knew the accused. He did not know why the autopsy took place some months after the alleged event. As for the memorandum directing himself, the accused and eight other officers to attend an interview by a senior officer, he was required to attend to explain what happened with an unrelated investigation. He did not know what the other persons named, including the accused, were required for. There was no malice on his part in charging the accused. He has nothing personally against him. He obtained statements at the scene on 24 October 2021 and instructions to call in the accused. He denied that the witness statements were rushed. On 18 January 2022 he recalled the witnesses to go through their statements again and certify the translations.
    

DEFENCE CASE

31. In accordance with his right the accused elected to give an unsworn statement from the dock. I remind myself that no adverse inference is to be drawn by the Court as a consequence of an accused person deciding to give an unsworn statement: Jimmy Ono v The State (2002) SC698. I may take the unsworn statement into consideration as a possible version of the facts and consider it with the sworn evidence whilst giving it such weight as it appears to be entitled in comparison with the facts clearly established by the evidence: R v Ulel [1973] PNGLR 254 applying Peacock v The King [1911] HCA 66; (1911) 13 CLR 619: S v Felix Simon (2020) N8183 at [42] to [44].
    
32. The accused said that: “The incident started on 22 October 2022 at around 6 to 7 pm, Friday evening. I had a stress call from my family. The settlers pick pocketed a boom box from my nephew at the market area on Friday evening. When I got the call I called my police units and we all went up to Garden Hills on Friday, around 6 to 7 pm. From there we destroyed their markets because Garden Hills was a well-known petty crime area so I advised the vendors that there will be no more marketing after you guys return the boombox. After I addressed the vendors we all went on our ways. On the 23, the next day, Saturday, I had a feast up at my house in Garden Hills to remove a haus krai. So the whole day I was with my family up at Garden Hills residential area. Between 9 and 10 when driving down from Garden Hills I was with two other cars, my nephew and my brother. I was in the lead vehicle, driving my wife’s car, a white Rav 4, when I was stoned and bottled by the settlers at the same exact location where on Friday evening we came and removed all the street vendors. I stopped the vehicle. I came out with a soft ball bat and realized that I was outnumbered by all the settlers so I told my family to hop back on the vehicle. As we were driving down we were chased by the settlers with stones, sticks, bottles and all weapons. My big brother was stoned on his forehead and the back wind screen of my small brother’s car was smashed by the settlers. Not only that, they chased us all the way to Stop N Shop bus stop and in between this time frame, from the settlement down to Stop N Shop bus stop, the settlers were also stoning the normal motorists plus the residential area, so there was a big commotion from Stop N Shop bus stop right around from Moni Plus junction to the settlers, all the settlers moved down. By then I made a call to the police operations, I gave my name, that I was under attack by the settlers. By then all the police units responded as well as TSI Security. They were at the Bank of PNG flats and their response unit also responded. From the bus stop right through the police units dispatched over a hundred rounds trying to bring all the setters from the main road right through the settlement and back to the settlement. While the police were firing shots, sticks and stones were still being thrown and also other properties like vehicles were still stoned by the settlers. From there as soon as I saw that there was a response unit we had to rush my big brother to the hospital because he was hit by a rock. From there I was at home when I got another call from my parents that the settlers were trying to attack, they were trying to burn my parents’ house. So I came back with my police units. We came back. Yes, I came out of the vehicle with the state of mind I was trying to protect family property because a house had already been burned, after the two deceased were dead. So, I came out with my police, there was a barricade already on the road, so I came out from the vehicle, I came out with a K1A1 but I didn’t open up any shots I was trying to find ways how to go up to save my mother and father’s property. But since the commotion was too big and after confronted with the deadly I had to go back and the policemen including the soldiers they guarded my parents’ house till the next day. When I heard the news on Sunday, I myself because of the safety of my parents’ house plus their lives including my own family, I myself voluntarily went to Boroko Police Station to detain myself just to calm down the situation because all the blame was on me, so just to clam down the situation I had to surrender myself for the safety of my parents.”
    

SUBMISSIONS

33. The State submitted that if the Court accepted the evidence of identification then all other elements had been proven. Its two eyewitnesses were generally consistent and corroborated by the medical evidence. Their differences demonstrated that they were honest and the discrepancies were not serious enough to cast doubt. C/Sgt Barai confirmed that only two 9 mm bullet casings were found at the crime scene. The injuries were consistent with being caused by a 9 mm bullet fired from a pistol.
    
34. Defence counsel submitted that the State only called two eyewitnesses. They gave conflicting evidence which shows that they were coached. As such there is no direct evidence and the case is based entirely on circumstantial evidence. The facts do not lead reasonably to only one conclusion. There were other policemen in police vehicles and security guards who attended to the unrest at Garden Hills between 9 pm, Saturday 23 October 2021 and 240 am on Sunday, 24 October 2021. Tear gas, pistol and 556mm rounds were fired into the settlement by other persons who are responsible for the death of the two deceased. The court cannot convict in a wilful murder case involving firearms without ballistic evidence, relying on The State v Melchior Ibor (2005) N2896. No firearm or murder weapon was seized by police. It is not clear whether a revolver, pistol or rifle was used or the calibre of bullets used in the killings. There was no proper crime scene investigation. The scene was not secured and family, friends and neighbours of the deceased were allowed to access it. It is not known who found the bullet shells. The deceased should have been left at the scene undisturbed until police came to investigate. Instead the relatives took them to Boroko Police Station. There was no crime scene sketch showing precise locations and measurements.
    

ASSESSMENT OF EVIDENCE

35. The State’s case stands or falls on the eyewitness evidence. Without eyewitness evidence the case would be wholly circumstantial and the other evidence in the case is insufficient to exclude the possibility that the deceased were shot, possibly in other places, by different weapons and at different times, by policemen or security personnel who responded to the disturbance in and around the Garden Hills settlement area over a period of several hours on 23 and 24 October 2021: see Paulus Pawa v. The State [1981] PNGLR 498 (approving The State v Tom Morris [1981] PNGLR 493.
    
36. I make the following assessments having heard and observed the witnesses whilst giving evidence and having regard to their evidence by itself and in the context of the evidence in the case as a whole, together with logic and common sense, and bearing in mind that I may accept or reject any part of a witness’ evidence: Maraga v The State (2009) SC968; James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173. I remind myself that an untruthful witness may be confident and convincing, whilst a conscientious truthful witness may be hesitant and uncertain: see RD Tuna Canners Ltd v Sengi (2022) SC2232 at [35].
    
37. I am unable to accept Jack Amos as a reliable witness. He was a confident witness but there is a critical discrepancy between his oral testimony and the statement he made to police on the issue of whether he was with Laki and Ivan when they were shot. He agreed under cross-examination that in his police statement he said that he did not know the persons gunned down and only found out later that it was his brother and nephew. I don’t accept his explanation for the discrepancy, namely that what he meant was that he thought the two men were only injured and found out later that they were dead. According to where he marked himself to be standing at the time of the alleged offences there was no brick at his side, in fact he marked his location in the centre of the scene and very much exposed. In addition, whilst not determinative of its own, it is also the case that the witness is related to the two deceased men and it is quite clear despite his protestations he is a leader within the family. His evidence is also inconsistent with other evidence in the case, which I do accept, in a number of respects.
    
38. I am also unable to accept the evidence of Kori Buka. She was Ivan’s auntie and Laki the son of her elder sister. She was concerned about what happened to them and that was why she was in court. This does not of itself mean that she is lying and on one view her evidence was straightforward. She readily conceded that she did not see the accused shoot anyone and that she grabbed her grandchild and ran away as soon as the accused pulled a pistol from his trouser pocket. Her evidence is to some extent consistent with Jeremy’s account of what happened earlier in the evening of 23 October 2021 albeit that she says that it happened at 10 pm. 10 pm is not consistent with the other evidence in the case which establish that by 10 pm the security situation at Garden Hills had already deteriorated. Honest witnesses make mistakes but I am troubled by the fact that she says she was able to recall the time of the incident because she looked at her phone when she also gave evidence that as soon as she saw the accused’s gun she got up, grabbed her grandchild and ran and did not stop until she got to Murray Barracks, and when she was not confident about any other detail. When asked by the Court if anything had happened earlier in the night at the market she seemed very unsure and initially responded by saying that he used to come and fight with them and then said that nothing had happened that day. In my view her evidence lacked reliability.
    
39. Jeremy Laminapo, however, impressed me as a witness of truth.
    
40. The principles governing identification evidence are well established. The Court should be mindful of the inherent dangers and the need for caution before convicting in reliance on the correctness of identification. The Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he or she knows mistakes can be made. When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered: John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153; Jimmy Ono v The State (2002) SC698; State v Kande & Ors (2021) N9132 at [39].
    
41. In assessing the quality of the evidence a court should closely examine all of the circumstances in which the identification was made and critically weigh those factors before relying on the identification evidence. I remind myself that there is always the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken: John Beng (supra): State v Kande & Ors (2021) N9132 at [40].
    
42. Ultimately, the court must be satisfied that the witness is both credible and reliable. Or “honest and accurate” as per The State v Francis Vau Kamo (2006) N2991. Relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he or she recognised; the length of time that the witness observed the accused (e.g. a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (e.g. was it broad daylight or at dusk or dawn or inside or outside?); the line of sight (e.g. did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?). If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability: The State v Francis Vau Kamo; State v Kande & Ors (2021) N9132 at [41].
    
43. To my mind this is a case of recognition rather than identification and the critical issue is one of credibility or honesty. Having regard to the above principles, I find on Jeremy’s evidence, taken in the context of the evidence as a whole, that it was the accused who shot both Ivan and Laki. He was both credible and reliable.
    
44. Jeremy’s evidence as to the alleged shooting and the identity of the accused was convincing. The identification evidence was strong. It was a case of recognition. Jeremy’s evidence established that he knew the accused well.
    
45. In addition, the evidence of both the presence and conduct of the accused was made in circumstances which, whilst stressful, allowed the witness to observe the accused and the two deceased, in conditions of light, at a relatively close distance, uninterrupted, at the time the alleged offences took place. Jeremy was standing about 12 metres from where the two men were and about 14 metres from where the accused was. Whilst it was night he was able to see the accused and the two men from the fluorescent lights at the two houses at the front of the settlement. There was also a large security light from the Moni Plus car park leading to the houses at the settlement. It faced the road but was very bright.
    
46. Jeremy was careful in his evidence. His evidence about the alleged shootings was clear and consistent when taken as a whole. He readily marked the location of the two deceased on Exhibit P2-17A but was unable to mark the location of the accused in the same photo because it was just out of shot which became clear when he marked the location of the accused in P2-13(A), a photo taken a bit further down the hill. He was adamant, and I accept his evidence, that there was no-one else standing with the deceased at the time they were shot. He maintained that Ivan was shot first despite being told that an earlier witness had said that Laki had been shot first. He was questioned about the order the deceased had been shot a number of times by both the State and defence counsel and his evidence was clear.
    
47. In making this assessment I have taken into account that the witness lived with the two deceased at the settlement, knew them and their family, and accompanied the family and the bodies to Boroko Police Station after the shooting. But he was not a market seller allegedly attacked by the accused earlier in the night and nor was he related to the deceased. There is nothing that suggests that he is lying for the family or has contrived his evidence with them. On the contrary, his evidence contradicted that of Jack Amos in several key respects, including that no-one was standing with the deceased men at the time they were shot as Jack said he was, and the order in which they were shot, and he was unmoved by being informed that an earlier witness had said otherwise.
    
48. Jeremy openly testified that the disturbance lasted several hours, during which numerous shots were fired by police and security personnel, at different times, including towards the settlement area.
    
49. Jeremy readily conceded certain matters, including that he did not carry a watch and was not sure about the time at which various events took place. It is apparent from the totality of the evidence that events unfolded over the course of several hours at Garden Hills on the night of 23 October 2021. Despite this and the fact that the State did not have the witness describe what he observed step by step in sequential order that night his evidence was clear when taken as a whole. He was able to clarify matters put to him about things which happened at different times during the night, including under cross-examination. Whilst he initially said that the alleged offences took place between 7 and 8 pm, when reminded under cross-examination that he had said in his statement that events took place at about 9 pm he agreed and his explanation that he estimated that was about the time because that is when his wife is normally dropped off makes sense.
    
50. It is well established that the existence of a prior inconsistent statement does not of itself make a witness’s evidence unreliable: Kandakason v The State (1998) SC558. It is a matter to be considered when assessing a witness’s credibility or reliability, if that evidence demonstrates that the witness is unable or unwilling to accurately recall relevant events: Driscoll v R [1977] HCA 43; (1977) 137 CLR 517. A witness who makes a prior inconsistent statement is not necessarily lying. While dishonest witnesses are more likely to introduce inconsistencies into their stories, truthful witnesses may make mistakes about details: R v Salih [2005] VSCA 282; (2005) 160 A Crim R 310. As the Supreme Court explained in Balbal v The State (2007) SC860:
    

“[Q]uestions of inconsistency do not arise until a witness gives a testimony that directly opposes or contradicts a statement previously given by the witness. Even in that case, that is not conclusive. As long as the Court warns itself of the kind of weight it should place on such evidence, it can still consider the evidence. Thus in our view, a prior statement that omits other evidence but included subsequently in the oral testimony of a witness, does not amount to prior inconsistent statement”.

51. In the circumstances whilst there is some inconsistency and I do not consider his evidence unreliable. It is not surprising that a witness may be uncertain about the time that events took place some time ago, particularly when the events of that night extended over several hours. His evidence is also consistent with other evidence about the time of events.
    
52. Jeremy’s evidence is not inherently improbable. He waited for his wife before taking her home through the holes in the fence from the Moni Plus car park away from where everything was happening. He then went down to see what was happening near the market, as it appears Ivan also did. For obvious reasons Laki tried to stop him from going. I think it can be accepted as a matter of general experience, however, that it is not uncommon for some people to want to go and see what is happening even when the situation is potentially dangerous.
    
53. In assessing Jeremy’s credibility I have also taken into account that on his evidence the accused put himself in danger by walking several metres into the settlement whilst police who had fired into the settlement just moments earlier were still on the road below.
    
54. Jeremy’s evidence is supported by other evidence.
    
55. It is not clear why the autopsies were not conducted sooner but there is no suggestion of any impropriety and I take judicial notice of the fact that the country was in the midst of a global pandemic at the time. Critically, Dr Kialo-Davis is experienced in the conduct of autopsies and gunshot wounds and I accept her findings as to the nature of the injuries and the cause of death of each of the deceased despite the presence of decomposition.
    
56. Whilst I caution myself in the absence of expert opinion, as a matter of common sense, the trajectory that the bullet travelled from Ivan’s lower left chest to exit through his right shoulder is generally consistent with Jeremy’s evidence that he was shot by the accused whilst standing on the hill a relatively short distance beneath him. The injury suffered by Laki is also consistent with Jeremy’s evidence.
    
57. No issue arises from the fact that Dr Kailo-Davis’ autopsy report states that the body was identified to her by Jack Amos as being Ivan Neson of 30 years of age. The identities of the persons autopsied were not challenged. She clarified in her report that the body appeared to be 20 years older than that, i.e. about 50 years old, which is consistent with Jeremy’s evidence that he was older than Laki. This is also consistent with the photographs taken by C/Sgt Barai of Ivan Neson, which show an older man, with some grey hair, wearing a red t-shirt and bearing wounds to his left chest and right shoulder area.
    
58. As for the presence or otherwise of gunshot residue, expert evidence about the nature or cause of it, the length of time it might be detectable on skin or clothing, the circumstances in which it might be detected or cause burns, the method for its detection and so forth was very limited. There was no examination for gunshot residue at the time the bodies were first recovered or at autopsy. As such the evidence was inconclusive but it does not raise any doubt in my mind. Dr Kialo-Davis was not an expert on the topic but I accept her evidence that no residue would be detectable given the presence of decomposition at the time she conducted the autopsies. It was put to C/Sgt Barai by the defence, and he confirmed in cross-examination, that there was gunshot residue on the face of Laki the day following the alleged shooting. He disagreed that there was none present at the entry wound on Ivan’s chest and I accept his evidence that the lack or limited nature of gunshot residue could be explained by the fact that Ivan was wearing a t-shirt at the time he was shot, and furthermore, that by the time the photograph was taken the following day the body, covered by the t-shirt, had been soaking in blood for several hours.
    
59. Whilst of limited probative value given the lapse of two days and that it is observational only, it is of some relevance that C/Sgt Barai found large amounts of what appeared to him to be blood near the toilet at the alleged crime scene towards which Jeremy said that Laki fell.
    
60. The evidence of Sgt Simon and PC Meke is generally consistent with Jeremy’s evidence that the killings took place sometime after 9 pm. Their evidence establishes that by 11 pm on 23 October 2021 there was a serious security situation in Garden Hills. By the time they arrived a large angry crowd had gathered at a barricade at the road near Moni Plus. There were no other police present. Sgt Simon’s evidence that the accused was wearing civilian clothes, in particular shorts, is consistent with Jeremy’s description.
    
61. Whilst both parties rely on Johnny Passingan’s evidence I regard it with caution. No statement has been provided by the guards purportedly reporting from Garden Hills and accordingly most of it is hearsay both as to whether or not TSI fired and the content of the security incident reports for 23 to 24 October 2021. Given that by their own admission TSI were initially blamed for shooting a civilian the material is also potentially self-serving. I accept Jeremy’s evidence that TSI did fire shots that night. I have considered the evidence that TSI do not carry rifles and that Jeremy said that he saw TSI with a long gun or a rifle, not an M16. He may be mistaken about the type of weapon but there is no reason for him to lie about TSI firing into the air or towards the settlement and it does not assist the State case.
    
62. Having regard to the principles contained in s 61 of the Evidence Act, however, I accept that TSI has a system in place for reporting and recording information received by its control centre from its guards and response units and that the report records the times at which certain information was conveyed to the control centre and the time at which the control centre issued instructions acting on information received, and that these are recorded in the incident reports produced. The reports can be used to show when certain matters were reported to the control centre but not whether or not those things in fact happened. On that basis the report shows that the control centre received reports of unrest at Garden Hills at 9 pm, that at 915 pm it cancelled all drop offs to the area following certain reports, that it despatched response units to the site at 916 pm in response to those reports, and it received reports of an escalating security situation that night until it was reported to be under control at about 240 am.
    
63. I do not accept the version of events given by the accused in his unsworn statement. I reject his statement that he did not fire the K1A1 rifle that he was holding when he came to the barricade. The unchallenged evidence of Sgt Simon and PC Meke establishes otherwise. I accept the tested evidence of Sgt Simon, who impressed me as a direct and honest witness, that the accused arrived one or two hours later, between 12 and 1 am and that he fired several rounds from a K1A1 rifle into the air. He threatened to shoot and then did punch Sgt Simon when the latter tried to disarm him before leaving in a vehicle with another policemen. The accused’s statement that he handed himself in to Boroko Police station of his own volition when he heard the news on Sunday morning is in my view an embellishment. I find the suggestion that he destroyed the market at 6 pm the night before in the company of police but that disgruntled settlers waited more than 24 hours to start stoning vehicles in response in general terms implausible, let alone that they waited until the accused happened to drive past in his sister’s civilian vehicle between 9 pm and 10 pm the following night. I am unable to accept the statement that his brother was so badly injured that he had to rush him to the hospital and yet whilst with his injured brother and his other civilian family members and being pursued and under attack from an angry mob with sticks, stones and other weapons, for some distance, the accused rang for police, then waited some time for them to arrive and then to push the crowd back into the settlement, again over some time, before he left the scene entirely, took his brother to the hospital and then went home, by which he must mean his barracks. I reject the statement that there was a largescale police response between 9 and 10 pm on the other evidence.
    
64. I have also taken into account the fact that a sketch of the alleged crime scene has not been produced and that police were unable to secure the alleged crime scene that evening given the security situation on the ground and that an inspection of it did not take place until two days later. It does not automatically follow that evidence as to where spent casings or bullets were recovered one or two days later is inadmissible, it is a question of weight. The defence objects to the evidence about what was produced to C/Sgt Barai. Some statements were produced in evidence and C/Sgt Barai was present when some bullets were recovered. That is admissible. The difficulty is that whilst C/Sgt Barai took photographs and recorded the names of the persons pointing to the locations where the items were reportedly recovered by them on particular dates, statements were not taken from those witnesses or at least were not tendered in evidence and accordingly that evidence is hearsay. In the circumstances the evidence about how many casings and bullets were found at the scene is incomplete and unreliable and I reject the State’s submission that it establishes that only two 9 mm casings were found at the scene. Whilst the evidence about how many 9 mm or 556 mm casings were found at the scene is unreliable it does not raise a doubt in my mind when considered with the other evidence.
    
65. I have further taken into account that there is no ballistic evidence linking the deaths of the deceased with the accused. I reject the submission that a court cannot convict an accused person in the absence of ballistic evidence in a case involving death caused by a firearm or that it is necessarily unsafe to convict in the absence of ballistic evidence when the evidence suggests that there was more than one shooter. There is no such principle of law or procedure. Ballistic evidence is one piece of evidence to be considered with all the other evidence. Whilst it may be more difficult for the State to prove its case in the absence of such evidence in some cases, the question in any case is whether the totality of the evidence establishes the guilt of the accused beyond reasonable doubt.
    
66. The accused relies on State v Ibor, supra. In that case a large crowd numbering several thousand came to watch a soccer game at which a fight broke out and following which several policemen drove down to the southern end of the field, fired tear gas and bullets to disperse the crowd. Hundreds of people were running everywhere. The accused fired two shots. During the course of the fight the deceased was shot in the back of the head as he was running away. The case is distinguishable from this one on its facts. The identification evidence was made in very difficult circumstances in that case because very large numbers of people were moving about, a lot of police officers had firearms and were firing indiscriminately. The trial judge found that the possibility that another police officer shot the deceased could not be excluded in the circumstances. Furthermore, the trial judge found that the ballistic expert’s evidence did not support the State’s eyewitness. Indeed, a reading of the case reveals that the test bullet fired from the accused’s rifle was so badly deformed that grooves were not discernible whilst the bullet removed from the deceased had visible grooves on it suggesting that the bullet had come from a rifle other than the accused’s.
    
67. This case is also distinguishable from Sheekiot v The State (2019) SC1824 in which it was alleged that the accused shot and killed a deceased who was travelling in a vehicle that he shot at whilst in pursuit of it. The Supreme Court upheld the appeal against conviction, however, in circumstances where there was unchallenged evidence from the defence witnesses that shots had been fired from another vehicle involved in the incident. Again, there was evidence to suggest that the bullet that hit the deceased was a different calibre to that fired by the accused. Thus the State had failed to exclude the possibility that the fatal shot had been fired by someone other than the accused.
    
68. There is evidence in this case that the accused had access to a pistol. By his own admission, the accused was a member of the Dog Unit at the time of the alleged offences. He refers several times in his statement to “his police units”. It is reasonable to infer therefore that he had not yet been suspended and was still in possession of the pistol issued to him as a member of the Dog Unit according to the unchallenged evidence of Supt Tilae albeit that the State failed to produce any documentation in this regard.
    
69. Inspector Terry’s evidence establishes that the police never recovered this weapon and were therefore not able to examine it.
    
70. C/Sgt Barai is very experienced in dealing with firearms and he gave his evidence in a careful way. He was sure that the fragment found in Laki’s head was from a pistol and I accept his evidence. Whilst C/Sgt Barai could not make a definitive finding about the calibre of bullet which killed Ivan his evidence establishes that it was consistent with being inflicted by a pistol.
    
71. It is also a relevant factor that the deceased were related. Of course, that relationship does not of itself mean that they were together at the time each were shot but it is another relevant circumstance which supports Jeremy’s evidence, both as to why they were together and how they died.
    
72. I have also taken into account the submission that few witnesses were called. The defence did not call for the other witnesses listed on the indictment to be called for cross-examination, however, as it was entitled to do. Furthermore, there was evidence that the entire settlement was removed following the incident in 2021 and it is reasonable to infer that that made locating the witnesses difficult. No objection was taken to that submission when it was made by the State, albeit from the bar table, and nor was the investigating officer cross-examined on the point. I am not satisfied that there was any failure on the part of the State to call the witnesses. The essential question, however, is whether the absence of the witnesses raises any doubt in my mind. For the reasons outlined above it does not.
    

CONSIDERATION

73. The evidence establishes that the alleged crime scene was located on a hill several metres above a marketplace which was located on the road going up into the Garden Hills residential area, and 50 to 60 metres up the hill from the main road. A perimeter fence ran along the left side of the hillside separating the settlement from a yard. To the right of the fence was a track which started out a few metres wide, to the right of which was the market. The track widened as it went up into the settlement area and past the market, leading to a relatively flat area above several sandbags. Houses were adjacent at the right of this area and behind it.
    
74. It is clear from the evidence in the whole of the case that the security situation at Garden Hills was a dynamic one and extended over several hours on 23 October 2021 and well in to the early hours of the following morning. There were other policemen and security personnel who fired shots into the settlement at various times that night. Nevertheless, I am satisfied beyond reasonable doubt that the two deceased were killed by the accused in the circumstances described by Jeremy Laminapo.
    
75. I find that events started in the earlier part of the evening when the accused argued with sellers at the market at the settlement at Garden Hills. It is not clear what prompted the attack but the accused was drunk and aggressive. He broke the tables and fired several shots from a pistol. Jeremy went to wait for his wife at the bus stop at Moni Plus. The situation developed and rocks were thrown down from the settlement on to passing vehicles on the road leading up to the Garden Hills residential area. Sometime after 9 pm two TSI Security vehicles arrived and parked at the yard next to the settlement. They fired some shots, possibly into the settlement. Police in two white ten seaters subsequently arrived. They fired tear gas and several shots into the settlement behind the market. Once Jeremy’s wife was dropped at the bus stop Jeremy took her back up to their house in the settlement via the back way. He smelt tear gas and heard more shots being fired and went down towards the market to see what was happening, staying close to the houses for protection. On the way down he saw Ivan and Laki. Laki was trying to stop Ivan from going down but Ivan persisted. The two deceased men then encountered the accused who was standing some distance inside the settlement. Ivan Neson and Laki Yamo were standing a few metres up the hill from the accused on a relatively flat area. The accused removed a pistol from his shorts and shot Ivan Neson to the lower left chest. Ivan fell to the ground. Laki moved towards Ivan to help him. He shouted at the accused “he got the bullet already so enough”. The accused shot Laki Yamo to the head and he fell to the ground towards the toilet. The accused went down the hill where he tried unsuccessfully to get hold of a rifle from one of the police officers at the road before he got into one of the police vehicles both of which left the scene. Jeremy went and reported the deaths to the family and the security situation in the settlement deteriorated further. When Sgt Simon and PC Meke arrived at Garden Hills at about 11 pm there were no police present and an angry crowd had gathered at a makeshift barricade they had erected at the entrance to Garden Hills.
    
76. I cannot make a definitive finding about how the accused came to join the policemen who fired tear gas and shots into the settlement from the road leading up to Garden Hills. The evidence suggests that he may have called in “his units” to respond to the security situation but I cannot be certain of that. In any event, I am satisfied beyond reasonable doubt that the accused returned to the marketplace, the site of his attack earlier that night, and was present when police fired tear gas and shots into the settlement behind the market sometime after 9 pm, before he went a short distance into the settlement and shot Neson and Laki.
    
77. In summary, the possibility that other police shot Ivan and Laki is excluded beyond reasonable doubt by Jeremy’s evidence, which is supported by other evidence and which I accept in all the circumstances.
    
78. I am satisfied beyond reasonable doubt that the accused killed Ivan Neson. He caused the deceased to die of a collapsed lung when he shot him in the lower chest and the bullet travelled upwards through his lung and exited his right shoulder.
    
79. I am satisfied beyond reasonable doubt that the accused killed Laki Yamo. He caused his death when he shot him in the head and the bullet entered below his right eye, fractured his skull and penetrated his brain.
    
80. Intention goes to the state of the mind of the accused person at the time he or she acted. “It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence”: State v Raphael Kuanande [1994] PNGLR 512. It may be inferred from the nature of the weapons used and the location or nature of the injuries inflicted: see R v Sigo Sasawari (1975) SC825; Mako Ranjigi v The State [1994] PNGLR 44, The State v Wanaepe Warara [1977] PNGLR 458 and The State v Stanley Kuma Kuru (2011) N4264, amongst others.
    
81. I am satisfied beyond reasonable doubt that at the time the accused shot Ivan that he intended to cause grievous bodily harm to him. The evidence establishes that the accused was drunk and aggressive earlier in the night when he attacked the market sellers at the settlement. His state of mind at the time of the alleged offences is demonstrated by the fact that he deliberately went into the settlement area whilst the other policemen remained on the road and whilst he was armed. There is no suggestion on the evidence that Ivan or Laki were armed and I find that they were not. The accused removed the pistol from his shorts and shot Ivan, a defenceless man, in the lower chest, a very vulnerable part of the body, at relatively close range. The only rational inference is that he intended at a minimum to cause him grievous bodily harm. I think it is highly likely in all the circumstances that he intended to kill Ivan but I cannot be satisfied of that beyond reasonable doubt.
    
82. I am however, satisfied beyond reasonable doubt that the accused intended to kill Laki Yamo at the time he shot him. The accused had already shot Ivan who had fallen to the ground. Laki was moving to help Ivan and protect him. He told the accused “he has had enough”, in response to which the accused shot Laki in the head at relatively close range. It was only after he too had fallen to the ground that the accused left the scene. In summary, the totality of the evidence, the circumstances in which the accused went into the settlement, the weapon used, the location of the injury, the close range at which it was inflicted and the conduct of the accused in all the circumstances excludes any rational inference other than that the accused intended to kill Laki.
    
83. I am satisfied beyond reasonable doubt that the deaths were unlawful. None of the defences were addressed by either party, which were excluded by the evidence. The shootings were deliberate and not an accident for the purposes of s 24, Criminal Code. There was no lawful excuse for the shootings. The accused was not acting under any compulsion pursuant to s 32 of the Criminal Code. There was no sudden emergency pursuant to s 26 of the Criminal Code. There is no evidence to suggest that the accused acted in self-defence. Whilst there was evidence that the accused was drunk earlier in the night and the evidence of Sgt Simon is consistent with him still being drunk when he saw him between 12 and 1 am but there is no evidence that he was so intoxicated he lacked the requisite intention at the time of the killings.
    
84. In conclusion the evidence establishes beyond reasonable doubt that the accused killed Ivan Neson and Laki Yamo. He did so unlawfully. The evidence excludes any rational inference other than at the time the accused killed Ivan Neson he intended to cause him grievous bodily harm and that at the time he killed Laki Yamo he intended to cause his death. The accused is convicted of murder and wilful murder, contrary to s 300(1)(a) applying s 539(1), and 299(1) of the Criminal Code, respectively.
    

Verdict: Guilty of the murder of Ivan Neson.

Guilty of the wilful murder of Laki Yamo.
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Public Prosecutor: Lawyers for the State
Dotaona Lawyers: Lawyers for the Accused