Papua New Guinea Law Reports - 1988-89
[1988] PNGLR 116
N673
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
JOSEPH AMPI
Lae
Woods J
6 July 1988
CRIMINAL LAW - Particular offences - Murder - Defences - Self-defence - Extraordinary emergency - Police constable in performance of duty - Belief that firearm about to be produced - One shot fired at legs - Self-defence not available under Code - Whether actions “reasonable in all circumstances in which he found himself” - Criminal Code (Ch No 262), ss 26, 269.
CRIMINAL LAW - Criminal responsibility - Extraordinary emergency - Police constable in performance of duty - Belief that firearm about to be produced - One shot fired at legs - Self-defence not available under Code - Whether actions “reasonable in all circumstances in which he found himself” - Criminal Code (Ch No 262), ss 26, 269.
The Criminal Code (Ch No 262), s 26, provides:
“Subject to the express provisions of this Code relating to acts done on compulsion or provocation, or in self defence — a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self control could not reasonably be expected to act otherwise.”
Section 269 of the Criminal Code provides for the defence of self-defence “when a person is unlawfully assaulted ...”.
A police officer, acting in the performance of his duties, encountered a suspect who had earlier threatened police with what looked like a firearm. Honestly believing that the suspect had a pistol or firearm which he was going to draw, and knowing that he himself had one shot in his shotgun, he took aim at the suspect’s legs. The suspect later died from the injury so inflicted. On a charge of wilful murder,
Held:
(1)      Because mere apprehension that a firearm was about to be produced did not constitute an assault, the defence of self-defence under s 268 of the Criminal Code was not available.
(2)      Because the police officer was faced with a sudden emergency and his actions were not unreasonable but were the actions of an ordinary person possessing ordinary powers of self-control “in all the circumstances in which he found himself”, s 26 of the Criminal Code applied to relieve him of criminal responsibility.
Viro v The Queen (1978) 141 CLR 88 at 88, adopted and applied.
Cases Cited
The following cases are cited in the judgment:
Palmer v The Queen [1971] AC 814.
R v McKay [1957] VR 560; (1957) ALR 648.
State, The v Angela Colis Towavik [1981] PNGLR 140.
Viro v The Queen (1978) 141 CLR 88; 52 ALJR 418; 18 ALR 257.
Trial
This was the trial of an accused on a charge of wilful murder.
Counsel:
M Peter, for the State.
M Konido, for the accused.
Cur adv vult
6 July 1988
WOODS J: The accused Joseph Ampi is charged with the wilful murder of one Philip Iari. The facts leading up to the death of the deceased are that on the evening of 8 December 1986 the accused, a police constable, and another constable were on patrol and they came across the deceased and two other people on the side of the road and they stopped their vehicle and approached the deceased and his friends who, according to the evidence, had been drinking all day. The accused and his fellow policemen state that when the deceased was approached, he pulled out what looked like a firearm and threatened the police. The police acted sensibly and backed away and went to get help and went to the police station to call for assistance. In their call for assistance they stated that there was a man with a firearm and other police involved in this case do confirm that there was a report of a man with a firearm. It also turns out that the accused had recognised the man with the firearm as a man who had been in trouble before and he believed there was a bench warrant outstanding against him. When they went back to find the deceased he was walking along another street by himself and when the accused approached him anti called on him to stop, he acted in such a manner that the accused honestly believed he was going to turn around and shoot. The accused stated he only had a single shot shotgun and that it was unreasonable to fire a warning shot because that would have left him unarmed and as he had the firm belief, from the way the victim had acted earlier on in threatening him and the way he looked as though he was going to act then, that there was a danger to himself and he took what action was necessary to protect himself by shooting the victim not in the upper part of the body but around the legs.
On all the evidence I must find that there was a strong possibility that there was a pistol. The State evidence includes reference to the pistol, although the State is asking me not to believe the police witnesses but to believe the two friends of the victim that there was no pistol. It is not a matter of weighing the accused’s evidence against the State evidence, it is simply that the State evidence itself says that there may have been a pistol so I must find that there may have been a pistol. So finding that there may have been a pistol, or some sort of firearm, I therefore must find that any reasonable person, like the accused, when faced with someone later on that evening who refused to stop and acted as if he was going to pull that firearm again, did act reasonably in firing the shotgun.
I find that this case is a difficult case in our jurisdiction because looking at the authorities in other parts of the world it is quite clear that the accused could have pleaded self-defence in other jurisdictions because self-defence does allow for an apprehension of or a genuine purpose of protecting a person from attack. In other words, at common law, you can act in self-defence if you firmly believe there was danger of an unlawful attack which was about to be made upon you. However, in our Criminal Code, self-defence is a more narrowly defined defence. There is a pre-condition in the self-defence sections of the Code that the accused is unlawfully assaulted, in other words not an apprehension of an attack but actually being assaulted: see Criminal Code (Ch No 262), s 269: “When a person is unlawfully assaulted ...” and see The State v Angela Colis Towavik [1981] PNGLR 140 where it is stated (at 142-143) “that the defence of self defence is not available unless there has been a prior assault on the accused by the victim”. The pointing of a firearm is assault but in this case we do not even have that; we only have the apprehension that the firearm is going to be produced. The common law uses the words “believes that an unlawful attack which threatened him with harm was about to be made”.
Looking at the authorities in the common law jurisdictions it is quite clear that on the facts of this case a jury could acquit on self-defence and I refer particularly to the Victorian case of R v McKay [1957] VR 560, where the Full Court heard an appeal from conviction where a jury found the accused not guilty of murder but guilty of manslaughter. The case involved a householder deliberately shooting a fleeing thief. On the evidence there was no suggestion that the thief was actually going to shoot the householder, the thief had stolen some things and was running away and yet was deliberately shot. I refer to the statement of self-defence in that case and how the jury should approach it in the judgment of Lowe J (at 562-3):
“(1)    Homicide is lawful if it is committed in reasonable self-defence of the person committing it, or of his wife or children, or of his property, or in order to prevent the commission of a forcible and atrocious crime. ...
(2)      Reasonable self-defence is not limited to cases in which the life of the person committing homicide is endangered or grave injury to his person is threatened. It is also available where there is a reasonable apprehension of such danger or grave injury. There is such a reasonable apprehension if the person believes on reasonable grounds that such danger exists. ...
(3)      The homicide in order to be justified must be necessary, and the jury are to inquire as to the necessity of the killing. ...
‘(4)     There must be no malice coloured under pretence of necessity: for wherever a person who kills another acts in truth upon malice and takes occasion from the appearance of necessity to execute his own private revenge, he is guilty of murder.’...
(5)      Motive is to be distinguished from intention. If the killing is held justifiable, motive is irrelevant, but evidence of motive is to be considered in determining whether the killing is justifiable. ...
(6)      If the occasion warrants action in self-defence or for the prevention of felony or the apprehension of the felon, but the person taking action acts beyond the necessity of the occasion and kills the offender, the crime is manslaughter — not murder.”
I have no doubts that if the facts of this case before me now arose before a jury and the jury believed the evidence of the two police the jury could acquit.
I refer to another case on excessive self-defence Palmer v The Queen [1971] AC 814, where their Lordships said (at 831):
“the defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no obstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary.”
It therefore becomes a matter of degree as to whether the defence was reasonable in the circumstances.
However, in Papua New Guinea we have a situation where the accused cannot plead self-defence under our law and yet he could have been able to plead it elsewhere. So what does our law allow? This then takes me to a section in our Criminal Code which has been very little used; it is headed: “Extraordinary Emergencies”. Section 26 of the Criminal Code (Ch No 262) states that:
“a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.”
The history of this section goes back to the Queensland Criminal Code and when that was drafted Sir Samuel Griffith stated,
“this section gives effect to the principle that no man is expected (for the purposes of the Criminal Law at all events) to be wiser or better than all mankind. It is conceived that it is a rule of the Common Law, as it undoubtedly is a rule upon which any jury would desire to act. It may, perhaps, be said that it sums up nearly all the Common Law rules as to excuses for an act which is prima facie criminal”.
This raises the concept of criminal responsibility. Of course, technically this concept of criminal responsibility is covered in the Code in the self-defence, provocation and mistake of fact sections. But those sections do not apply in this case and yet surely a court is entitled to say that this accused is not criminally responsible. In other words he has not acted in a criminal manner, he has acted reasonably in the circumstances as he saw it at the time, not in the circumstances as we now know later. As the High Court, in Viro v The Queen (1978) 141 CLR 88 said (at 88):
“the accused ... reasonably believed that an unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him. ... By the expression ‘reasonably believed’ is meant, not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself.”
There is no suggestion that the accused had any special vindictive reason to shoot the victim. There is no evidence that he was out to get him. The only evidence before me is that the accused honestly thought that a pistol or firearm was going to be drawn and he only had one shot in his shotgun and he therefore shot low down but unfortunately not low enough and he shot the deceased in the buttocks which caused his death. It is not as if the accused was shooting an unarmed minor offender in a crowd of people where there was no danger to anybody from the victim. In other words he was not acting negligently or stupidly in a calm situation. Therefore as well as there being no criminal intent there may also be no criminal negligence. In this case he shot a person who had threatened him with a firearm a short time earlier that evening. So I cannot find that the accused acted with such negligence that even allowing for what was discovered afterwards this was criminal negligence.
In the circumstances I am satisfied that s 26 of the Criminal Code applies in this case: the accused was faced with a sudden emergency and his actions were not unreasonable, they were the actions of an ordinary person possessing ordinary power of self-control in the circumstances that he believed he was in, in the words of the High Court “in all the circumstances in which he found himself”. I therefore find the accused not guilty as charged. In the circumstances of s 26 I find it is not a matter of an alternative verdict, it is a matter of not guilty.
Verdict of not guilty
Lawyer for the State: Public Prosecutor.
Lawyer for the defendant: Public Solicitor.