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Police v Yaura [2021] PGDC 228; DC7079 (15 December 2021)

DC7079

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]
SUM NO: 04 & 05 /2021.

IN THE MATTER BETWEEN:

POLICE/STATE.
Informant (s).

AND.

JOHN YAURA
Defendant.

Popondetta: Michael W. Apie’e

2021: December 03^rd 10^TH, 13 and 15^th.

SUMMARY OFFENCES. Possession of Offensive Weapon contrary to Section 12 of the Summary offences Act, Possession of Live Ammunition contrary to Section 65A(a) of the Firearms Act

Cases Cited:

References:

Representation;
Senior Constable Pasitara
Defendant in person

RULING ON VERDICT.

Background.

1. The Defendant John Yaura is a Juvenile male aged 17 years old from Eroro village in the Ijivitari District of the Northern Province.
   
2. He was arrested and charged by Police on the 03^rd of December 2021 that on the 27^th of November 2021 at Kaks Corner in Popondetta, Firstly that he had in his custody an Offensive Weapon namely a Small Homemade gun, and secondly that he had in his custody a Live 223 round whilst not being a holder of a firearm or Ammunition license.
   
3. He pleaded not guilty and the matter went to Trial.
   
4. Police called two Policemen involved in his apprehension and they gave similar accounts that when they drove near the Workshop at Kaks Corner the Defendant was acting suspicious and when they tried to called him over to them, he ran away so they followed the yard and entered a house and saw the Firearm in there and picked it up.
   
5. They then d the parents of the Defendant and later had the Defendant surrendered to Police and had him charged with Offenses.
   
6. The Defendant denied the offence and said that he was working at the Tyre Service when Police went in, Got the firearm from a Goroka man’s house and came out and picked on the Defendant so he ran away.
   
7. Later they took his parents to the police station and he followed them up and then ultimately he had to surrender to Police.
   
8. He stated that his parents were assaulted and when he did surrender he was also assaulted and a Policeman threaten to cut his tongue with a scissor’s so he admitted to being the owner of the firearm out of fear.
   
9. He said that since the trouble at home his family was displaced and they came and were living with the owner of this premises a man from Kainantu as his mother is the Kainantu man’s wife’s sister, and they did not own the premises let alone the House in which the gun was found, which is in fact owned by a man from Goroka.
   
10. The Defendant sleeps in one of the vehicles in the yard and not in the house.
    
11. The Defendants father Alfred Yaura came to court on Monday the 13/12/21 and gave similar evidence to his son.
    

OBSERVATIONS.

12. The Court makes the following observations;
    
    1. If what the Police told the Court is true and they were in pursuit of the Defendant when he ranaway and entered the House and discovered the gun, then the charges can stand as the evidence was gather during hot pursuit and therefore lawfully obtained.
       
    2. If on the other hand, as stated by the Defendant, if the Police entered the house first, got the Gun then tried to arrest the Defendant causing him to run away, then, this whole process would be void as they would have entered a premises without a Search Warrant and so the Evidence or exhibits obtained would have been obtained illegally and so not acceptable to this court.
       
    3. The Defendant and his family are clearly displaced people from Eroro village due to tribal conflict hanging around and living at the mercy and grace of the owner of Kak’s Corner Workshop namely Mr. Kauri from Kainantu.
       
    4. His father Alfred Yaura said he works for Mr. Kauri to earn a money to buy little things for his family.
       
    5. There are claims of Police threats and brutalities including threat by Policeman to Cut the Defendants Tongue with a Scissors that he told the court when the Police witnesses were present in Court.
       
    6. In my experience both as a Lawyer and also as a magistrate, Witnesses in cases like these normally would not state false allegations of impropriety in court when their arresting officers are present unless they are stating truths. I have no reason to doubt that indeed someone threatened to cut the Defendants Tongue with a scissors when he was in Police custody.
       
    7. No independent witnesses like other people living in the workshop in Kaks corner have come to court to corroborate the Police claims that the Firearm belonged to the Defendant.
       
    8. But more importantly, the Firearm and Ammunition is not found in the custody or possession of the Defendant, it is found in a house in which he denies living in let alone owning it.
       
    9. No one else is called to verify that he owns the house, let alone sleep in it, and the confessions and admissions that were made by the parents and the Defendant were coaxed out of them with assaults and threats
       
    10. The main element of the two Charges laid against the Defendant is that of ‘Possession’ and in this case possession entails the items to be either in his possession or within his immediate and direct Control.
        
    11. The Home-made gun and the 223 round are found in a house away from the Defendant so how does that complete the element of Possession under Section 12 (1) of the Summary Offences Act and Section 65A(a) of the Firearms Act?
        
    12. This is a mucked up case, the main element of Possession has not been proven on the facts presented.
        
13. Accordingly, the Court finds and orders as follows;
    
    1. The Prosecution has not discharged its duty in proving its case beyond a reasonable doubt on both counts, and the Defendant is therefore found not guilty on both Counts.
       
    2. The Defendant is to be released from custody forthwith unless he has other charges pending
       

Police Prosecution for the State.
Defendant in person.