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State v Gadiwilo [1998] PGDC 9; DC32 (12 June 1998)

Unreported District Court Decisions

[1998] PNGDC 9 - STATE V STANLEY GADIWILO

[1998] PNGDC 9

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 400 OF 1998

PARTIES:� THE STATE

INFORMANT

V

STANLEY GADIWILO

DEFENDANT

Kimbe

T Mongko PM

11-12 June 1998

POSSESSION OF FIREARM AND THREAT TO USE FIREARMS � threatening to discharge a pistol � pistol pointed to two members of public � Policeman off-duty and not authorised to be in possession of pistol when offence occurred.

Representation

Counsel/Representative

Informant:� S/C Bangui

Defendant:� Mr Oiveka

Lawyers/Representative

Defendant:� Public Solicitor

12 June 1998

L MONGKO PM:

N1>[1]����� The Accused is charged under s65B of the Firearms Act (Chapter 310) ("the Act"). He is a policeman attached to the General Duties Section in Kimbe, West New Britain Province. The State alleged that on 12 March 1998 at the Christian Bookshop at Kimbe, the Accused threatened and pointed a regular 6P100.357 Magnum Calibre police pistol at other persons, namely Julie Henson and Catherine Pidik, thereby contravening Subss65B(a), (b) and (e) of the Act.

N1>[2]����� The issue before the court is whether the Accused did threaten to discharge or point the pistol at Julie Henson and Catherine Pidik.

N1>[3]����� S65B states that a person who threatens to discharge or points a fire arm, a high-powered fire arm, or, a pistol towards another person is guilty of an offence. The offence carries a penalty of imprisonment for a term not less than eight (8) months and not exceeding fifteen (15) months.

N1>[4]����� The Accused, through his counsel, initially denied all elements of the charge. However when the case came to trial, the defence only denied that the Accused ever pointed the pistol at Julie Henson and Catherine Pidik, who are also the only two State Witnesses.

N1>[5]����� I consider the issue of whether the Accused did point the pistol at Julie Henson and Catherine Pidik to be a question of fact. During cross-examination, the Accused admitted that he was off-duty and was in possession of the pistol. He had obtained the pistol to escort a prisoner to Rabaul, East New Britain Province on 27 February 1998. After his return from Rabaul, he was still in possession of the pistol although the assigned task was completed. He was required to return the pistol after his return from Rabaul but he did not do so.

N1>[6]����� From the evidence, the accused is well known to the two State Witnesses. They have known him for a year so there is no question about his identity. The evidence of these two witnesses is consistent. They both say they saw the Accused go into the Coffee Shop through the Book Shop to see his girlfriend, Shirlyn Jack, who works at the Ice Cream Bar. According to them he appeared to be very drunk, his eyes were red, he smelled strongly of liquor, talked too much and was unsteady in his posture. The Accused demanded to see his girlfriend and banged on the back door of the Ice Cream Bar (the Ice Cream Bar is adjacent to the Coffee Shop and one can go back and forth from the Ice Cream Bar to the Coffee Shop).

N1>[7]����� When he demanded to see his girlfriend and banged on the door, Julie Henson came from the Bookshop and told him to calm down and that she and Catherine would tell his girlfriend to come. Julie warned him that if he continued his violent manner, she would get the Company's security to come and fight him.

N1>[8]����� The Accused then said insulting words to Julie and Catherine and then pulled out the pistol from his right trousers pocket with his right hand and pointed it directly at Julie and Catherine. Catherine got scared and hid her face and Julie got a shock and jumped.

N1>[9]����� I am satisfied beyond reasonable doubt by the evidence of Julie and Catherine that the Accused did point the pistol at them. I observed their demeanor, which was good and that their response was spontaneous when they were asked questions. I find their evidence truthful and convincing. The Court is therefore satisfied beyond reasonable doubt that the accused did point the pistol at Julie Henson and Catherine Pidik.

N1>[10]��� As to the defence case, at the outset, I must say I find the evidence of the Accused's witness, Shirlyn Jack, untruthful. This is because her evidence was severely attacked during cross-examination and she was very inconsistent in her answers. So I concluded that she could have been suborned and therefore disregarded her evidence.

N1>[11]��� The two State Witnesses said that she was not in the Coffee Shop. The only people who were there were Julie and Catherine and the Accused. The Accused said she was there. Shirlyn Jack said she was there from the time the Accused arrived until the time the Accused left the Coffee Shop. She further said that apart from herself, the Accused, Julie and Catherine, there was the company's security guard behind the counter of the Coffee Shop eating bread. Neither Julie, Catherine nor the accused mentioned the security guard's presence.

N1>[12]��� Although the Accused's witness claimed to be in the Coffee Shop throughout, when the prosecution asked if the Accused said anything whilst inside the Coffee Shop, she said "No". This was inconsistent with the evidence of Julie and Catherine and the Accused himself. This leads the court to disbelieve her whole evidence. So the court then has to weigh the evidence of the Accused as against that of the two State Witnesses. I find that Shirlyn Jack was not in the Coffee Shop at the material time.

N1>[13]��� As regards the Accused's evidence it was not convincing. He admitted in cross-examination that he was drunk at the time he went to the Coffee Shop but denied pointing the pistol at Julie and Catherine.

N1>[14]��� I find unsatisfactory and unreasonable the explanation by the Accused that he merely put his hands on his waist and accidentally pulled his shirt up and the butt of the pistol showed. I think a reasonable person on merely seeing the butt of a pistol would not get frightened and run away or hide his or her face. A reasonable person would do that only if a pistol was pointed directly at him or her.

N1>[15]��� I am of the view that the Accused was very drunk and he did not know what he was doing at the material time. I am also of the view that he did threaten to discharge or point the pistol at Julie and Catherine. He mistakenly believes that he merely put his hands on his waist which the State has proven to the contrary.

N1>[16]��� The Accused is well-known to the two State Witnesses. They had been on good terms before the alleged incident. His girlfriend works in the same vicinity with Julie and Catherine. Julie works in the Bookshop, Catherine works in the Coffee Shop and Shirlyn at the Ice Cream Bar. The premises are owned by Kimbe Bay Shipping Agencies (KBSA) and they are a business arm of KBSA. Julie, Catherine and Shirlyn are employees of KBSA and there is no evidence that they are not on good terms. Had they not been on good terms, then the court may have doubted their evidence.

N1>[17]��� I therefore conclude that Julie and Catherine would not have reported the Accused to the police for nothing. They reported him to the police because he had threatened to discharge or point a pistol at them, which is a very serious offence. Here is a policeman whom the public look to for security. It is demeaning to the Police Force to see a policeman brandishing a pistol and pointing it at members of the public whom he is supposed to protect. More so, he was off-duty, and therefore not authorised to be in possession on the pistol. Further, he was not provoked. In the circumstances, therefore, he was not required to use a pistol to protect himself.

N1>[18]��� My view is that a mere verbal threat to discharge a pistol, firearm or a high powered firearm is not sufficient. What is required is the actual or physical pointing of such weapon. To lift or pull a pistol from its original place and point it directly at a person, in my view, is a threat to discharge a pistol. By the person pointing the pistol, it shows in the minds of reasonable persons, that he is threatening to discharge it. In the case before me, I am satisfied beyond reasonable doubt that the Accused removed the pistol from its original place (his right trousers pocket) and lifted it up and pointed it directly at Julie and Catherine. By so doing, he demonstrated that he could pull the trigger at anytime and therefore did threaten to discharge the pistol.

N1>[19]��� For the above reasons, I find that the Accused is guilty as charged.

N1>[20]��� I further refer to comments made by the Police Commissioner, Mr Peter Aigilo in the Post Courier dated 4 June 1998, that "policemen and women who did not follow the Country's laws had no place in the force". Although this is not binding on the court, such comments show that policemen are there to uphold the law. If police maintain discipline, the general public will have confidence in our Police Force. I refer to s57(2)(a) Police Force Act. S57(2) is mandatory. Briefly, the court which convicts a member of the Police Force must recommend his or her dismissal from the force, reduction in salary or reduction in rank. I, therefore, recommend his dismissal from the Police Force pursuant to s57(2)(a) of the Police Force Act (Chapter 65).

N1>[21]��� Before I make an order for imprisonment, I will refer to the penalty provision in s65B and whether there was any provision for a fine. The prosecution now attempts to present to Court the latest amendment to s65B of the Firearms Act. The court notes that an amendment was in fact made in 1986, namely, No 23 of 1986. The court is, however, of the view that that amendment was superseded by another amendment, namely, No 17 of 1993, which in effect removed the provision for a fine in the penalty provision. The amendment of 1993 therefore provides only for imprisonment of not less than eight (8) months and not exceeding fifteen (15) months. Section 65B is a new section which was added by an amendment (No 23 of 1986, s3), and is the one the prosecution produces to court claiming it to be the latest amendment. But that section (s65B) penalty provision was further amended by No 17 of 1993, which as stated above, removed the provision of fine and replaced it with a provision of imprisonment only.

N1>[22]��� Based on my reasons above, I am of the view that it is not unreasonable to impose a sentence of 12 months' imprisonment with hard labour on the Accused. I further recommend that the Defendant be dismissed from the Police Force pursuant to s57(2)(a) Police Force Act.

N1>[23]��� Orders accordingly.