Kuanande, The State v [1994] PGNC 115; [1994] PNGLR 512 (28 February 1994)

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CRIMINAL LAW - Wilful murder - Shot deceased with a .22 rifle - Revenge - Earlier attack by the deceased and others upon the accused and his family - Defence of self-defence and extraordinary emergency - Whether intended to kill - Verdict of murder per s 539 Criminal Code.

The accused used a .22 rifle to kill the deceased. He was charged with wilful murder pursuant to s 299 of the Criminal Code.

N1>1. The charge of wilful murder was not proven, as there was an absence of intent to kill the deceased specifically.

INJIA AJ: The accused pleaded not guilty to a charge that on 13 March 1993 he wilfully murdered one Mangua Waugo, contrary to s 299 of the Criminal Code. The State alleged that on the said date at about 6 - 6.30 pm, the deceased and other friends went to the accused's house to inform him that they would solve certain problems between them the next morning. The problem related to claims made by the accused that the deceased's father was about to die. As the accused was not in his house, the deceased relayed the information by shouting out the message and returned to his house. Between 6 - 6.30 pm, the accused armed himself with a .22 rifle and followed the deceased to his house. He stood on the main highway and shouted to the deceased, saying that he was ready to fight with him. As the deceased heard this and came out from the house, the accused shot him in the stomach. As a result, the deceased died shortly later. The State alleged that by firing the gun directly at the deceased, the accused intended to kill the deceased.

The State called eight of the 16 witnesses listed in the indictment. Of these, six of them were eye-witnesses. They are Waugo Wena (the deceased's father), Anton Kama (deceased's brother-in-law), Josepha Anton (deceased's sister), Witne Waugo (deceased's elder brother), Kugame Numi (deceased's next-door neighbour and relative), and Joe Koma (a pedestrian on the road who was on his way to Kerowagi at that time). The non-eye witnesses are Sgt Gia Morea Kukuna (police bullet or firearm expert), S/Const Marjie Mazuk (police investigating officer) and S/Const Gerald Bus (OIC of Firearms, Kundiawa Police Station). S/Const. Bus was called at the request of the Court, even though he was not listed on the indictment.

The State tendered by consent the following documentary and other physical evidence:

In addition, the Court visited the scene of the crime at the request of the State. As a guide, the Court used S/Const. Mazuk who drew up the sketch map.

The accused in his sworn evidence admits he was armed with the said .22 rifle and shot the deceased with the first of three shots fired that night. He denies that he aimed at the deceased and fired the fatal shot. He says the fatal shot went off accidentally when he was positioning himself to defend himself from a repetition of an earlier attack by the deceased and others. He denied any intention to kill the deceased or any other person. The accused also raised the defence of self defence against provoked assault, pursuant to s 270 of the Code, and acting in a situation of extraordinary emergency, under s 26 of the Code. I will first deal with the issue of intention to cause the death of the deceased or any other person.

Intention is a matter which goes to the state of mind of the accused at the time he 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. I wish to deal with the evidence in that chronological sequence.

Almost all the relevant facts here are not in dispute. The accused and the deceased are closely related. They know each other, are part of the same family, same clan, live on the same land acquired by Waugo Wena, and live in the village of Koronogl. This village is situated on the Kundiawa side of the Koronogl river bridge, which is situated on the Okuk Highway.

The accused's house is situated on the north-western side of the Okuk Highway and the deceased lived in his brother's house, which is situated on the south-eastern side of the highway. Their houses are about 115 m apart. Their houses are right on the banks of the Koronogl river and there are no other houses between their houses or on the banks of the said river. The accused's house was completely burnt to ashes after the incident. From the remains of the house, it appears to have been a big modern building measuring some 10 m x 15 m. There was a wire fence about 2 m from the front wall but it is not there now. The accused's house is connected to the deceased's house by a private road.

The deceased lived in his elder brother Witne's house, as he was only a high school student. The private road branches off from the highway to the gravel loading area and then runs past the accused's house, under the bridge and then stops at Witne's house. This road is used by motor vehicles. Witne's house is also a big modern building. It is fenced by security fencing wire and is about 1.2 m high. There are also other houses inside the fence and next to Witne's house. The front and side door of the house is situated at the southern end of the building. The house is situated along the side of the fence. The back of the house is closer to the highway. The distance between the highway and Witne's house is about 45 m. The distance between the highway and accused's house is about 70m. From the edge of the bridge one can clearly see Witne's house and other houses in that area in full view because the highway or bridge is situated on a short but steep slope. The angle of the slope is 45 degrees. There is a bush track which leads from the Highway road to Witne's house.

The deceased was a Grade 10 student at Kundi High School. He was liked by everyone including the accused.

The deceased's father Waugo Wena is an old man. Even though there is no evidence as to his exact age, my own assessment when he gave evidence is about 60 years. He appeared to be a physically fit man when I saw him. The evidence is that at the material time, he had been very sick for some time and had visited the Kundiawa General Hospital for treatment. There is no evidence as to the exact type of his illness. Waugo says he was told by Doctors that he had "high blood pressure". His illness was such that it was serious enough to render him physically incapable of doing any physical or manual work.

Waugo did not see any sorcerers in the area to cure his illness. He says he only knew the accused and his wife as sorcerers. At one time they wanted to pray for him and pour "holy water" on him but he did not avail himself to them. The accused denies he or his wife is a sorcerer. The accused says he has night fellowship at his house and he cannot be a sorcerer at the same time. The accused does however admit in cross-examination that his wife used to have visions, and implies that she had the ability to predict future events.

Sorcery or sorcerers, whether good or bad are difficult to identify and prove. The belief in sorcery exists throughout PNG and this fact is recognised by everyone but no-one seems to be prepared to admit he is a sorcerer when everyone in the community suspect him or know him or her to be a sorcerer. In the instant case I am unable to find that the accused was a sorcerer as a matter of fact. Nevertheless, he was suspected as a sorcerer and I will bear that in mind when I consider the evidence where allegations of sorcery are raised by him and his wife or raised against him and his wife in this case. In this context, in view of the admission made by the accused that his wife had visions, it tends to strengthen the suspicion by the community that his wife was a sorcerer in the wider sense of the word - in the sense that she possessed the supernatural power or ability to have visions from which she could translate or predict past and future events.

The accused had in his possession a .22 rifle which is in evidence. He was issued with a firearm licence to possess and use this firearm in 1973 and has had it with him since 1973. He was suspected of having another unlicensed firearm but since there is no evidence to show that he did have one, I am unable to find that he had a second one which he possessed illegally. As for the .22 rifle, in 1989, the licence was renewed when he was on study overseas and it was re-issued in his wife Jenny's name. When he came back, he sought to change the name to his own name, but police told him that the licence, as it was, was sufficient for his purposes. Since then, the licence has been issued in Jenny's name.

In all those 20 years in which he has had the .22 riffle, there appears to be no bad incident except the present one. Witne says in his evidence that the accused used to threaten to shoot people who came to his club and caused trouble. I am unable to make any finding of fact in this respect because Witne's claims lack particularity and substance. I find that the accused fully complied with the terms of his licence and did not abuse it in any way.

I also consider that even though at the material time, the firearm licence was in his wife's name, the accused was entitled to its use and that the firearm was issued for his use for the purpose specified in the licence. There is no documentary evidence before me as to the licence itself. The accused's licence was lost when his house was burnt down. However, as the State does not dispute the accused's evidence that it was issued to him for purposes of "hunting, killing cows and protecting property", I accept this evidence.

The accused says at about 2 pm, two of the young men, in the family of the accused and deceased, Gagma and Wamna fought over beer. It appears Wamna is more closer to the accused as a brother than Gagma. However, it also appears that Wamna's house is next to Witne's house and not the accused's house. In the fight, Gagma stoned Wamna on the right ear, which caused severe bleeding, and he was taken to Kundiawa Hospital. Wamna used a stick to hit Gagma on his head. The fight occurred in the accused's presence. After the fight the accused went back to his house.

The State witnesses were silent on this fight. The State did not lead evidence on this fight despite the fact that it was raised in the ROI. The Defence also did not cross examine the State witnesses on this incident. That may be one reason why the State witnesses were silent on the incident. For my purposes, I will not make any findings of fact on this incident until I have dealt with the other evidence.

The accused says at about 5.45 pm, he and his wife Jenny went to Witne's house. Jenny filled her bilum with beer which they took with them. The purpose of their visit was to talk to Witne about the fight between Wamna and Gagma and to try to solve it. The accused says they took the beer with them because the two brothers fought over beer so they wanted them to drink this beer and shake hands in the presence of Witne. The accused and Jenny met Witne in his "house cook" which is a small bush material house just close at the back of the modern house. Witne agrees that the accused and Jenny came to his house and Jenny carried some beer in her bilum. The accused says Witne asked for beer so he was given two bottles. Witne however says he was offered two bottles of beer which he accepted and drank. In my view this is a minor contradiction which I will disregard. The fact is that the accused and Jenny took the beer with them so that they would share them with Witne and talk about solving the problem between the two brothers.

The accused says when Witne asked for beer from them, he told Witne "You drink beer everyday, you don't want to rest, like a lot of people say, and one sorcerer woman from Ganige said, your father Waugo use to get sick as he has no blood. You must try and stop drinking beer as the death of Waugo, we do not know". The accused and his wife then left Witne's house. Witne however says while he was drinking the two bottles of beer, the accused told him "Witne Waugo, you must buy plenty of pigs, plenty of sugar cane and banana because your father is soon going to die". There is no evidence that Witne said anything in response or how he reacted to the words spoken to him by the accused.

The question of fact here is as to what exactly was said by the accused to Witne. Leaving aside the disputed parts, it is clear that the accused and his wife told Witne about the impending death of Waugo and the need to save money to spend on the funeral feast on the occasion of Waugo's death.

It is also clear that neither the accused and his wife nor Witne discussed anything about the fight between Wamna and Gagma. It would be reasonable for the accused and his wife to raise the issue since they went to Witne's house for that purpose and in view of the fact that only the accused was aware of that fight. If in fact that fight took place at 2 pm as the accused says, it would also have been reasonable for the accused to go to Witne's house earlier than 5.45pm to solve the problem if the fight was that serious to warrant a discussion between him and Witne. Instead when Witne asked for the beer, which request is not inordinary, the accused came up with a totally different subject. In my view that different subject was really what was in the accused's mind and his wife's mind. I find that the accused and his wife went to Witne's house to tell Witne about the impending death of Waugo. Indeed the conduct of the accused and his wife after leaving Witne's house and on the way to their house shows that that was the real and only reason why they went to Witne's house.

The accused says, on the way to their house from Witne's house, they met Josepha and Wamna's wife. He asked Wamna's wife as to where Wamna was and she pointed up to the main road. He looked up and saw Wamna and other boys in the process of setting up a roadblock in which seven vehicles were lined up and Wamna himself opened the door of "a red family sedan car" and closing the door quickly. The accused and Wamna's wife called out loudly to them to come back to the house where they were, but they did not. So the accused told Wamna and the other boys "the new PPC who came to Chimbu told me not to hang around on the road around 6 o'clock. The fighting zone is still on and it will finish at the end of March. You leave the road and come down or else I will report the matter to police." Wamna's wife got scared and went to her house and the accused and Jenny went back to their own house.

State witness Josepha and her husband Anton confirm that they met the accused and his wife at Witne's gate. They did not see any roadblock on the highway. Anton was some distance away from the accused and Josepha seems to be unsure of what the accused was discussing with Josepha. As the accused is silent on seeing Anton, I will leave aside Anton's evidence for a while. Josepha says she overheard what the accused and his wife said. When they came out and met her at the gate, the same prophesy was repeated to her (Josepha). The accused told her "the foodstuff and pig he bought, they will eat and go. Where the sun comes and waits at the head of the river and at the bottom of the river, everyone will meet". To Josepha, these words meant everyone will gather and eat the pig and foodstuff Witne bought. The accused also said "I saw your family sat around". When Josepha wanted to go, the accused told her "listen, my wife has a vision". The accused's wife then said "plenty of people get together and surround the family". Josepha then said "may be something may happen tomorrow, something will happen". She then went and told Witne about what the accused and his wife had told her.

In my view, Josepha's evidence supports Witne's evidence as to what the accused and his wife told her. It is also consistent with the accused's evidence that his wife Jenny used to have visions. What the accused and his wife told Witne and Josepha amounts to an attempt to translate Jenny's so called "visions" regarding the future. I accept Josepha's evidence in this respect. I also consider the accused's reference to a sorcerer from Ganige predicting Waugo's death difficult to accept in view of the accused's own admission of Jenny having "visions". I find that the vision came from his wife, which vision they went to tell Witne and told Witne and Josepha.

The accused is a man who believed in sorcery and the ability of sorcerers to have visions and translate them in terms of future events. In that sense his wife Jenny was a sorcerer and he had faith in her visions and was able to publicise those visions. Furthermore, the accused says he had fellowship or prayer gatherings in his house in the night. There is no evidence as to the form and type of prayer or fellowship meetings conducted in his house. If they were Christian fellowships as he seems to imply, it was contradictory to the teachings of Christianity to drink beer and publicise the visions of sorcerers at night-time and create fear and anxiety in the extended family he belonged to. I find that the accused was a strong believer in sorcery. For instance, he says in cross examination that "to call someone a Sanguma man is a big thing. People fight over it and people die and plenty of things happen. For spoiling the good name of someone in the community". I find that he firmly and seriously believed in sorcery and in his wife's visions.

I also find that there was no roadblock on the highway by Wamna and other young men. No-one else except the accused saw it. Also, it would have been unlikely for Wamna to be taken to Kundiawa Hospital after he was hit by Gagma because the accused who was Gagma's "small brother" did not see any urgency in the fight between Gagma and Wamna because he went back to his house at 2 o'clock after witnessing the fight. If Wamna was in fact taken to hospital, it is unlikely that he would be on the road conducting the roadblock. If he was there, then the accused should have called out to him to come down so that he and Witne could solve the problem between him and Gagma. Instead, he told him to just come down for another reason altogether. In these circumstances, I also find that there was no fight between Wamna and Gagma as claimed by the accused.

These facts are not disputed by the accused. After the accused and his wife went back to their house, the deceased's immediate family gathered at Witne's house to discuss what the accused and his wife told Witne. They included Witne, Waugo, Josepha and Anton. Waugo upon hearing the prediction of his death got very angry and shouted loudly "who is saying I am going to die. I am not that old and I am not thinking about death, I am not about to die". The deceased heard this and got very angry, armed himself with a bushknife and came out of the house saying words to the effect that his father was not that old to die quickly. The other family members also appear to have been angered.

I will deal with the State evidence first. Upon arming himself with a bushknife, the deceased rushed out and went to the accused's house. He was followed by other boys. All the State witnesses give different numbers of boys but it seems there were some three to ten other boys who followed the deceased. They did not hold anything in their hands. All except one boy were small primary school age children aged between 12 years to 14 years who just followed the deceased to see what he was going to do. Some boys took the private road under the bridge while others took the footpath leading to the highway. As to what exactly happened at the accused's house, only Kugame Numi saw what happened. He was the only bigger boy who followed the deceased. The other witnesses only heard noise of gravel being thrown on the iron roof of the accused's house. They did not think a big attack was taking place.

State witness Kugame Numi described the attack as follows. He followed the deceased and the other small boys. The small boys threw gravel and sand at the accused's roof. The deceased went to the accused's door and kicked the door and the door opened. As he stood at the entrance of the house, the deceased entered the house. There was no sign of the accused or his family members. Upon seeing rice served on plates inside, he assumed that they were somewhere inside the house or around the building. The deceased looked inside but could not find the accused and his family so he said they would solve problems between them the next day. The deceased repeated this from the outside. While saying these words he tapped the wall near the bedroom window. All this time, the small boys continued throwing gravel on the roof. Then from a distance of two metres, he heard the voice of Raphael say, "Mangua you will be dead". Upon hearing this he grabbed the deceased's hand and ran back to Witne's house. After they went inside, Witne locked the gate.

There is some inconsistencies as to how long after the boys left Witne's house they returned to Witne's house. Josepha says it was after a "short time" which to her is 30 minutes. Witne said it was 5-6 minutes later. Kugame said the incident took about 20 minutes allowing for 4 minutes travelling time each way and because they went to the accused's house and stood for a while. I accept Kugame's evidence as he was present at the scene of the attack at the accused's house. I find that the attack took about 15-20 minutes. I also accept both the accused's evidence and the State witnesses evidence that the time at this point was 7.30-8 pm and dark.

The accused has given account of a much bigger attack of wider magnitude. In evidence in chief he said at about 8 pm, he was with his wife and two twin sons at his house. The door which has a padlock was locked from the inside. The lantern lamp light was on and he was serving food for the visitors whom he expected to receive for the prayer meeting that night. He heard people on the road saying "Suo Suo Singogo" which means "kilim, kilim indai". He thought the drunkards on the road were fighting. Not long after, big stones were thrown on the roof, the door and wall of his house. Some of them pushed the wire gate and came to the back door of his house. They banged the door some 6 times using what appeared to him to be a piece of wood. As a result the door lock and hinges came off and fell onto the plates of food and put off the lantern lamp. One of his small sons got a shock. So he and his family went and hid in the bedroom. He thought the attackers were enemy clansmen whom his group had chased them out of the area in a tribal fight before. He and his family sat in the dark in the bedroom not knowing what would happen next. He was in such a state of fear that he urinated. He saw the men kicking the food plates and threw big stones and sticks inside the house. Others ran towards the bedroom where he and his family were. When he saw them running towards the bedroom, he pretended as if he was loading the gun to fire. They heard it and ran away.

N2>Q. Did you think of firing the gun when they broke in and came into the house?

N2>A. Yes, if they came into the sleeping room, I would fire the gun. We are men of the "good-news". I cannot shoot them when they are in the living room.

About two minutes after the men heard him load the gun and ran out, he put the loaded gun inside the bedroom and went outside and stood near a pawpaw tree. Some people continued to throw stones at him and one of them hit his left ear and another hit him at his back. He then went back inside the house and got his loaded gun plus 4 more live bullets. When he went inside, the boys outside continued to throw stones at his house. Upon seeing him going inside and coming out of the house, the boys ran away. He ran after them closely. Some of them ran towards Witne's house taking the private road under the bridge and others took the road leading to the highway. Some of them ran to Witne's gate and towards the light and into the dark.

There are several issues of fact which I have to decide in relation to the attack at the accused's house. The first issue is whether there was an attack at the accused's house. I find that the accused and his family were in fact attacked at his house without prior warning. He and his family were preparing food and serving them for visitors as confirmed by State witness Kugame Numi. Had he expected the attack, he and his family would not have been at the house but would have been hiding somewhere else.

The second issue is whether the size of the attack was of the kind described by the accused. The answer to this issue depends on my finding as to who his attackers were, whether they were armed, the reason for the attack and the duration of the attack. In relation to the identity of the attackers, I am satisfied that the deceased was not only a participant but most importantly, he was the instigator and leader of the attack. I am also satisfied that the other boys who accompanied them were smaller boys except Kugame Numi. They followed the deceased not only to see how the deceased attacked the accused but also to stand by to assist the deceased if the need arose. I am satisfied that the deceased was the only person who was armed with a lethal weapon namely, a bushknife. I am also satisfied that even though the other boys who followed him were not seen by the State witnesses, to have any weapons because it was dark, they were armed with stones, sticks and other non-lethal weapons. I find that the deceased and Kugame and other boys were capable of executing the kind of attack described by the accused. The State witness Kugame Numi appears to be a mature and well built young man who can fight, defend himself and execute attacks. As to the duration of the attack, I have already found that the attack lasted for about 20 minutes. I also find that an attack of such degree at night time clearly raised fear of harm among the accused and his family. I find that the accused and his family were trapped inside their own house.

As to the reason for the attack, the State witnesses are consistent with their evidence that the deceased was angered by what the accused and his wife said about the impending death of Waugo Wena.

On the other hand the accused has given four possible reasons. The first one is his enemy clansmen. The second reason is the drunk people on the highway. The third reason is the boys on the highway including Wamna who blocked the highway whom he warned them to stay away or else he would report them to the police. The fourth reason is Gagma who could have been angered by the accused's small brother Wamna's attack on him during the day.

In my view, I am satisfied that the reason for the attack is that given by the State witnesses. I consider that the accused is evading this reason by suggesting the 4 possible reasons. I find that all those persons implicated by the accused never carried out any attack on him. As for the enemy clansmen, why would they pick this day to attack him. Why would the drunk men on the highway attack him. Why also would Wamna, his small brother lead the boys to attack him. After all, the accused was not someone who would be in a position of authority to report the roadblock to the police. Finally, why would Gagma attack the accused when Wamna's house was next to Witne's house and Gagma could have attacked Wamna there.

The third issue is whether the accused knew the identity of his attackers, that is, the deceased, Kugame Numi and others. I am not satisfied that the accused knew them. The accused was taken by surprise and it was dark inside and outside his house and so he could not see the deceased and Kugame and others. As to possible identification by voice, Kugame said the deceased on two occasions told the accused they would solve the problem in the morning. There is no evidence from the accused as to any discussions which took place between him and the deceased. Only Kugame says the voice was that of the accused who said "Mangua, you will be dead". Given the distance from the accused's house and Witne's house, the hill and bush in between and the sound of the nearby Koronugl river, it would have been difficult for the accused to hear what the old man Waugo and the deceased said at Witne's house just before the deceased left Witne's house. It would also be difficult for him to hear what Anton Kama said from the bridge. The impression I get from the evidence of both State witnesses and the accused is that of hide and seek situation with less or no disclosure of their identity to each other. In the circumstances, I am unable to find that the accused knew of the exact identity of his attackers at this point in time.

The State witnesses say that it was some 20-30 minutes after the boys had returned to Witne's house and Witne had locked the gate that the accused came and stood on the highway near the bridge and shouted out certain words. The accused says he followed the boys in close pursuit and it could not have taken 30 minutes. The impression I get from State witnesses as to timing generally, in particular, Witne (whom I consider to be an intelligent witness who gave evidence in English at times) is that nothing happened at the accused's house and the accused took all the time to prepare himself to come and attack his home. In my view, just as I rejected his timing as to the duration of the deceased's attack on the accused's house, I also reject his timing as to how long after the boys returned that the deceased came to his house. I find that the accused, having loaded the gun before-hand, followed the deceased and the other boys in close pursuit and, therefore, it could not have taken 20-30 minutes. It must have taken a short time.

It is not disputed that the accused came and stood on the main road near the edge of the bridge and next to the "Give-way" sign post. At this stage, State witness Joe Koma says he saw the accused's wife coming behind him carrying an axe. The accused is not sure if she was behind him. Joe Koma is an independent witness from Kangi Village, Kerowagi who happened to be passing that way. He knows the accused and his wife. He has no reason to lie to this Court. In view of the fact that the accused does not really deny the presence of his wife at the bridge, I accept Joe Koma's evidence. I find that she was at the bridge armed with an axe ready to assist her husband, the accused.

Whilst the accused was on the road, it is not disputed that he had traced some of his attackers to Witne's house. So when he arrived at the road, he stopped and stood there facing Witne's house for 3 minutes as he was running out of breath. It is also not disputed that the accused said certain words directed at the people inside and outside Witne's house. As to what happened from hereon, I will come to it later. I will first examine the topography of the area between the place where the accused stood and Witne's house and the lighting in the area.

As to the general topographic features of the area, I have already set them out. In addition, it is clear from the evidence and my visit of the scene that the front lawn between Witne's house and the gate is clear of any trees, shrubs or banana trees. The trees, shrubs, coffee trees and banana trees are situated at the back of the house or lined along both sides of the fence. The elephant grass growing on both sides of footpath on the 45 degree angle slope measure about 2 m in height. The grass on the right hand side next to the bridge appear to have been recently cut. Josepha said the deceased cut them before the incident. Nevertheless, even if it were not cut, the grass on both sides would not pose an obstacle to the view of Witne's house, the front lawn of his house and the gate, if one stood on the position where the accused is alleged to have stood or where the accused says he stood. The spot where the deceased stood when he was shot, which is not disputed, is on the front lawn about 11 m from the side door of the house.

Kugame Numi's house is directly adjacent to Witne's house and is about 15 m from Witne's house. In between, there is a small tree where the 500 watt security light is said to have been fixed.

As to the lighting in the area at the time of the incident, Witne's house is serviced by electricity supply. It is not disputed that there is a medium size fluorescent security light permanently fixed to the edge of the roof just above the side door of the southern end of the building. It is also not disputed that a powerful 500 watt security light was fixed about 8m up on the tree situated in front of the side door of Witne's house. This light was focused on the highway in the direction of where the accused stood on the road. Finally it is not disputed that the medium size fluorescent bulb security light was switched on all the time that night.

The only dispute is as to whether or not the 500 watt security light was switched on at that time and if so, at what point in time. It is clear that if this light was switched on, it was capable of lighting the entire area between the gate, the slope and the bridge area where the accused stood. The only issue to be decided is whether this light was switched on at the time the accused came to the road and shouted at Witne's house. I will decide this issue after I look at the evidence relating to the actual shooting and events shortly thereafter. I will also then decide the issue of whether the small fluorescent security light was capable of lighting the spot where the accused stood when he was shot.

It is not disputed that the accused stood on the road and said certain words directed at the people inside and outside Witne's house. The only dispute is as to what he actually said.

All the State witnesses are consistent with what they heard the accused say. They heard him say words to the effect that he came to fight, that he was ready to fight and he challenged the people in and around Witne's house to come out and fight with him. State witness Joe Koma says the accused told him to go to his destination quickly because there was a fight in progress and he showed Joe Koma a box containing cartridges. When the deceased heard this, he got his bushknife and came out of the house despite Witne's warning not to go out because the accused was armed with a gun. When the deceased came out, he said words to the effect that the accused could not use his gun because there is a law against using the gun at fellow human beings.

The accused in his ROI and in his sworn evidence maintains that he merely said "I know you guys. You came and spoiled my house and attacked me. So we will fight during the day." In other words, he did not challenge them to come out and fight him now that he was ready to fight. He admits that he was very angry at them when he said these words. When he said these words, the people inside Witne's house said "we" or "yes" and rushed out in anger.

In my view, I am satisfied that he said the words described by the State witnesses. The accused was in an angry mood to issue the challenge, he was capable of issuing the challenge, he was armed with a loaded gun ready single-handedly to attack or defend himself if attacked first, and that he was not only ready to fight in the night but also during the day. I have observed his demeanour when he gave evidence and find him to be a confident and a fearless man who could issue such challenge in the circumstances he was placed in. Even if I am wrong in accepting the State evidence on this aspect in its entirety, I consider that what the accused says he actually said amounted to a challenge to fight. Whether the challenge was responded to by those in Witne's house there and then or the next day was only a matter of how they understood the challenge and it was only a matter of time.

As to what happened after the deceased came out but before the shooting, there is not much in dispute. From the State evidence, it is clear that the deceased rushed out of the house despite Witne's advice not to go outside. It is not disputed that the deceased was shot on the front lawn about 11m from the front side door and that the first shot was the fatal shot. It is also not disputed that the deceased was armed with a bushknife and the first one to go out of the house followed by Witne and then Kugame.

The accused says in his sworn evidence that he did not recognise the first man who came out of Witne's house. He was followed by another man and then another man. He saw the first person holding something flat, a bushknife, or something like a bushknife which shined in the light. The second and third person who followed him also held a stick or iron or a metal rod, a black thing. In the ROI, he gives the following answers to questions 71 - 75.

N2>A. When I called out, they said "WE" and ran towards me with bushknife and spear.

N2>Ans. They ran, came out of Witne's house and came towards the road to attack me, so I fired a shot (warning) to stop them from attacking me, may be this shot must have hit the iron, bounced back and hit the boy.

N2>Ans. The big security light was not on, only small one which was on the side of the door.

N2>Q74 Was it correct when this light is on, you can see clearly anyone who is beside the house?

N2>Q75 Was that correct in the small light you did identify Mangua came out of the house?

It is clear from the evidence of the accused that there was sufficient light from the small security light for him to see the deceased and two persons who came out of Witne's house. The accused also saw his attackers going into Witne's house earlier on because there was sufficient light from this small security light. If the big security light was switched on at that time, it would have improved the accused's view in terms of identifying the first person who came out of the house as being the deceased. It would have also enabled the State eye-witnesses to see the accused in terms of how he stood, held the gun and fired it.

The question is whether the big security light was switched on at this point in time. Witne says it was switched off when the deceased went to the accused's house. When they returned to his house, he switched it on and closed the gate. Waugo says the light was on and it was bright as daylight. Anton Kama says this light was switched on. Josepha is not sure if it was on. Kugame merely says the 500 watt security was there but does not specifically say if it was on. Joe Koma merely said "I saw the boy come out, the light was very clear, I saw him point the gun and shot the deceased. I saw the deceased fall".

The accused says the big security light was switched on only after the deceased was shot. He says when the first shot was fired, he saw the people there lying on the ground. Upon seeing this, he got scared and ran back to the bush where he hid himself for 3 minutes. Whilst there, he heard men and women screaming and crying. So he came back to the main road to see what had happened. At this point, the big security light was switched on and he saw the deceased sitting on the grass while the men and women were screaming and crying in the dark. The people said "Mangua, they shot him".

In my view, I am prepared to accept State witness Witne's evidence on this issue. It is supported by Joe Koma, Waugo, and Anton. Witne is the owner of the house and would know the exact location of the control switch of this big light which is not a permanent fixture of the house. It is also unlikely that he would have manipulated the switch to suit his convenience in the dangerous situation he and his family including the deceased were in. He would have most probably left the light on to shine in the area of where the accused was so that he could easily identify his attackers including the accused. I consider that the accused is evading the lighting in the area at those times which place him in the picture or which is damaging to his case.

I now return to the issue of whether the accused was able to identify the deceased as Mangua Waugo just before he was shot. I am not satisfied that he did. The two lights were shining at the back of him and he was rushing out facing the gate. He was followed by Kugame and Witne and there were others around the vicinity of Witne's house too. I am however satisfied that the persons the accused saw coming out of Witne's house were members of Witne or the accused's extended family. I am also satisfied that at this point, the accused had already made up his mind that they were his previous attackers and now prospective attackers. They were his enemies in that sense.

I will deal with the evidence of State witnesses first. Only State witnesses Anton Kama and Joe Koma clearly saw how the accused positioned himself and fired the first fatal shot. Josepha says she saw only the barrel of the gun pointed towards Witne's house. However, in my view having visited the scene and having seen the exact position where she was when she saw the barrel of the gun, I do not think she clearly saw the gun. Anton says he clearly saw the accused pointing the gun down towards Witne's house and fired the gun. His evidence is amply supported by Joe Koma. As I have already said, I do not doubt Joe Koma's evidence as to its truth. As to the reliability of their observations and the opportunity to form their respective judgments, I have already found that the big security light was switched on and it clearly lit the area where the accused was when he fired the gun. They clearly saw the accused holding the gun pointing downwards and not in a normal position, that is in a straight upright or horizontal position. They also clearly saw the accused firing the gun straight at the first man who came out of Witne's house. From the point where the accused is said to have stood, (that is point "B" on the sketch plan) the gate, the spot where the deceased was when he was shot and the main side door of Witne's house are in the same direction.

Upon being shot, the deceased fell down and the people there poured water over him. The deceased said "I am going to die" or words to that effect. At the same time, men and women screamed and cried. The old man Waugo saw the accused still loading some more bullets and he told him that the accused was a sorcerer and that he had killed Waugo's son. The accused replied "Waugo, I killed your son, you cook it and eat it" or words to that effect. At the same time the accused fired 2 more shots towards them and this prevented them from taking the boy up to the highway where a vehicle could be found to take the boy to Kundiawa hospital.

The deceased died on the way to the hospital or died on arrival at the hospital. When he was taken to the Kundiawa General Hospital in a police vehicle that same evening, it was confirmed that the deceased died at about 8 pm on 13 March 1993. Dr T Kubu conducted post mortem on 16 March 1993 at 2.30 pm. His findings as to the nature of the injury and the cause of death is as set out in his post mortem report which is in evidence. In summary, they are as follows:

Cause of Death: Haemorrhage (blood loss) due to injury to mesenteric vessels and intestine."

In this oral evidence, Dr Kubu explained that the injury was caused by a bullet. He ascertained this based on the history of this particular injury and from his previous experience in dealing with similar patients involving bullet wounds from different types of guns. The entry point was on the right side of the deceased's umbilicus and the direction it travelled was towards the deceased's left side at 30 degree angle using the umbilicus as the centre point.

The evidence of Sgt Kukuna is that he is a police ballistic or firearm expert who is based at the National Forensic Centre at Gordon. He has been employed in that section since 1991. He completed a two year course on firearms examination and ammunition. In his term, he had examined about 5 firearms per month including .22 rifles. On 7 May 1993, he visited the scene of the shooting with S/Const Mazuk. By this time, S/Const Mazuk had compiled the sketch map and was available to assist him. On 8 May 1993, he was given the .22 rifle plus two live cartridges and two spare cartridges for examination. These cartridges can be fired from this particular rifle. The results of his examination are contained in his certified statement dated 26 August 1993, which is in evidence. In his opinion, the gun was fired at a 45 degree angle position because the powder was concentrated at the front end of the barrel. If it had been held in the normal upright position, that is the gun pointing straight, the powder would have been evenly distributed along the entire length of the bottom of the barrel. That was not the case here. If the gun had been held and fired straight up in the air, the powder would be found in the firing chamber. That was also not the case here.

That is a summary of the State evidence as to the actual shooting. What does the accused say? I will first set out his statement as per the ROI dated 5 May 1993. I have already set out his answers to questions 71-75 (supra at p 524.) The other relevant answers are in relation to questions 76-78, 80-84, 89, 90, 92, 95, 99, 100, 102, 103 and 104. I reproduce them below.

N2>Q78: Why didn't you warn them by firing towards the sky or to Mt Hagen way or to Kundiawa way?

N2>Ans: I was trying to fire towards Mt. Hagen but my hand was quickly touching the trigger so it fired.

N2>Q80: Was that correct that you got very angry because they came and broke your door?

N2>Q81: Was that correct when you went to ask them, you still have this angry mind?

N2>Q82: Is it correct that we the people of this earth, if someone do any harm to us we always intend to repay back this?

N2>Ans: this is to repay back, but it was in the night and I did not have any reason for them to attack me.

(Note: he changed his answer later to 'It is correct but that time many of them came and attacked me so I went there not to pay back, but to see them only, if I happen to pay back, they would have killed me long time').

N2>Q83: Was that correct there was no reason for their attack so you went there to pay back this?

N2>Q84: You went for identification, and why didn't you go with weapons like bushknife, axe or stick and you got the gun?

N2>Ans: That was because many of them attacked me with axe, knife and broke my door and they planned to kill me, so I got my gun and went.

N2>Ans: This is because they attacked me and speared me, that time I fired to kill him but I missed him.

N2>Q100: From my observation I believed that you got very angry and meant to kill this boy. What will you say?

N2>Q104: Where did you fire other rounds because you said you fired three rounds?

N2>Ans: That was when I first fired and shot the boy, they cried and I thought they were playing up and I saw the victim did not die was sitting, so I fired one more time. Then I moved further to the bridge and fired."

In his sworn evidence in chief, the accused said upon reaching the spot next to the sign post, he stood there for about three minutes because he was running out of breath. After three minutes, he called out to Witne's house challenging them to a fight, followed by those inside the house responding with "we" or "yes". Upon seeing the men coming out of Witne's house, he says he reversed back a little bit onto the bitumen. At this point, the loaded gun was on his right hand, with his fingers on the trigger. He then lifted up the gun with both hands not "completely but about half way up (at about 20 degree angle), as my hand was already on the trigger, it fired. When I fired it, it went straight to the gate. I saw the men dived onto the ground so I ran back to the bush and hid myself in case they might attack me." He said he did not take aim and fire the gun at the two to three persons who came out. Then he heard men and women screaming and crying, so he ran back to the security light thinking he had not actually shot the deceased. He saw the deceased sitting on the grass whilst the men and women were screaming and crying in the dark. The deceased did not move, he just sat there. He heard them saying "Mangua, they shot him". The accused then loaded another bullet and fired another warning shot up in the air. Then he ran to the bush again and hid there for about 20 minutes. Whilst in hiding, he was attacked by an "enemy" with a metal spear at his back near the right shoulder. He showed to the Court a round black scar. The enemy tried to push the spear in further. The accused fired the third shot at him in self-defence intending to kill him but it missed. The enemy ran away.

In cross-examination, he maintained his story he gave in chief. Asked why he pointed the gun at the gate he said, the gun was pointed towards the Koronugl river and it fired because his hand was already on the trigger and because of "quick movement". In addition, the following answers he gave in cross-examination are significant:

N2>A. I didn't aim at the spot where the deceased was. I aimed at towards the river in between the space.

N2>A. I fired and then ran back. The people who came and dived on the ground, I would not know.

N2>Q. So when the people dived to the ground, you ran away and hid for three minutes?

N2>A. Because I did not shoot that man. They might have tricked me. Some of them might hide and attack me. So I fired a warning shot.

N2>Q. But before you fired this second shot you hear the people saying "Mangua was shot at and died".

N2>Q. When the old man shouted "You Sanguma man, you killed my son" why did you say "you cook it and eat it?"

N2>Q. Do you think to be called a Sanguma man is more serious than killing a man?

N2>A. In Christians, to call someone a Sanguma man is a big thing. People fight over it and people die and plenty of things happen. For spoiling the good name of someone in the community.

At this juncture, it is also significant to note accused's answers to the following questions in examination in chief:

N2>A. They ran up with stones, bush knives and sticks to fight and not to say hello to me.

N2>A. When I moved back, I held the gun in my right hand and when the boys ran up, I held it up, half-way, and my left hand held the barrel of the gun and it fired.

N2>A. I thought of getting a shot to stop them. I was thinking of them not coming close to me. I must go away before they get me.

N2>Q. Waugo also said that you told him "Waugo, I killed your son, you cook it and eat it."

N2>A. He said "You Sanguma, you killed my son" and I said "You cook it and eat it."

N2>A. Because he called me a sorcerer. I did not think I really shot the boy. I thought the boy dived. I just said it to make him angry."

That is a summary of the accused's evidence. I must now evaluate the evidence for both sides and make findings on those disputed facts.

First, it is clear from the evidence of the State witnesses and the accused's own evidence that the gun was held in a downward position pointing towards Witne's house. I accept Sgt Kukuna's evidence that the first fatal shot was fired in a downward position at a 45 degree angle. As to the other two shots, the State eye-witnesses also say they were fired towards Witne's house in a similar manner as the first shot. Sgt Kukuna's findings also support this evidence.

The accused's explanation as to the direction in which he fired the second and third shots and the purpose for which they were fired is conflicting in many material respects. As such, I am not prepared to accept his story. I accept Sgt Kukuna's evidence as conclusive on the position from which the second and third shots were fired, even though I am conscious of the fact that he could have been influenced in his judgment by what S/Const Mazuk told him and his visit to the scene. I do not see any good reason why I should not accept his evidence.

Secondly, as to the issue of whether the accused took aim at the deceased or in that direction, where the three men were coming out of the house, and deliberately fired at them can be decided in favour of the State. State witnesses Joe Koma and Anton Kama clearly saw the accused point the gun at the deceased and the other boys. I find that he intentionally or deliberately fired the first fatal shot at those boys after clearly seeing them. I do not accept his story that the gun went off accidentally. If that were true, the other two shots would have gone off accidentally as well. Even the third shot, which he says he fired at his enemy directly, intending to kill him, was fired by him when he had been attacked and a spear was pushed into his shoulder and he was still carrying the spear in his body. If he was able to aim that third shot, then he was more likely than not to take proper aim and deliberately fire the first shot, when he was not in any real fear of immediate attack and when he was not carrying any injuries.

The accused is not an ordinary villager who is new to guns. He is an educated man who was sent on scholarship to study in Japan. He has had the gun in his possession for 20 years. The gun is no ordinary gun, it is a high powered rifle. He had this gun without prior accidental incidents. I am aware of the fact that there is no actual evidence as to the accused's prior ability, skill, and expertise in the use of this gun in terms of handling it and taking aim to reach his target with maximum precision. I am also aware of the principle that the State bears the evidentiary burden of producing evidence on this aspect or adducing it from the accused in cross-examination. Nevertheless, in the circumstances of the instant case, I can safely infer that the accused was experienced enough to handle this gun, as his past clean history shows. I also consider that these matters are matters which are peculiarly within the knowledge of the accused, which the accused should have given in evidence when he explained the circumstances of the killing.

I consider that the accused is evasive when he says he fired the first shot towards the Koronogl river in the space between the gate and the grass on the right side. This and other evidence which he gave in an effort to demonstrate that he did not fire directly at the deceased and other boys are so contradictory that I am unable to precisely ascertain what direction, if any, he fired the fatal shot, which is of assistance to his case. His evidence goes a long way to support the State case that it was aimed at the deceased, in the direction of the gate and Witne's house generally. Finally, the medical evidence of Dr Kubu is consistent with the direction in which the accused fired the gun. The point of entry of the bullet and the angle in which it travelled is consistent with the point at which the accused stood near the sign post and the direction at which the deceased was coming towards the accused. The distance between the gate and the deceased is a long way off. The deceased was coming from the south and facing the north towards the accused. Also, from where the accused stood, the gate would have posed no obstacle to his aim, because the fence is short and the point where the deceased was when he was shot at was some 20 metres from the gate. The accused would not have made any mistake about his target. I also consider that the real reason why he waited for three minutes before he issued the challenge was so that he could regain his breath, prepare for the aim and actually aim at Witne's house, then issue the challenge for them to come out of the house so that he could fire at them. When they came out of Witne's house, he moved back to get a steady aim and fired the gun at the first person who came out, the deceased, and others who followed him.

The accused's conduct subsequent to the killing also shows that the first fatal shot was not an accidental shot. His conduct is consistent with a man who loaded his gun with one bullet and took another four spare bullets with him to avenge the attack at his house, armed and ready to fire at any moment, went out to search for his enemies and, having found his enemies and succeeded in shooting his enemy, he expressed satisfaction at what he had achieved. This is clearly demonstrated by the fact that even when he was told he had shot the deceased, he issued very insulting words and showed no sign of surprise or remorse at having shot one of his own extended family members. He said, "Waugo, you cook it and eat it". The accused's explanation is that he said this because he thought the men and women who were crying were merely playing up or tricking him or pretending. I find it difficult to accept that he would believe such a thing. To begin with, the attack at his house was not a joke or trick. What he set out to do and actually did was also not a joke.

In any case, he was not in any more immediate danger at the road than he was by himself with his family in his own house, when he was attacked by the deceased. He did not fire his gun when he went outside his own house and stood under the pawpaw tree, by which time he had his gun loaded. When he was outside his house, he was being attacked and hit on his body. Yet, he exercised caution on his part and did nothing to stop them from attacking him, except to pretend he was loading the gun. When he came to the main highway, he was not being actually attacked. There were other people, more mature people who were part of his own extended family, who could stop the fight between those who came out of Witne's house and the accused if there was actually a fight. There was Witne, Witne's old father Waugo, Anton and his wife Josepha, all of whom are known to the accused and close to him.

The accused says that he was in a real state of fear for his life when he was first attacked, when he saw the men coming out of Witne's house, and even after the shooting, when he was attacked and speared. However, the three situations he found himself in were quite different. First, the attack at his house was immediate and by surprise, so he had every reason to fear for his life. Secondly, when he was on the road, he was not actually attacked yet. The deceased's reaction to the accused's challenge to fight was also not unexpected by the accused. The deceased and others were merely responding to the accused's invitation to fight. The accused was well aware of what was going to happen, and he was prepared to meet them. Finally, the attack by the "enemy" with the spear was only a consequence of what he had done to the boy. Had he not shot him, he would not have been speared. That event happened some 20 minutes after the shooting.

This is the final issue I have to decide now that I have examined the evidence. On the evidence before me, I am not satisfied that he intended to cause the deceased's death. First, I am mindful of the distance of 45 m between the accused and the deceased. Secondly, if the accused wanted to kill the deceased, he would have done so when they broke into his house and attacked him. He had the loaded gun then. Thirdly, if he wanted to kill the deceased, he could have fired the second shot at the deceased when he saw him sitting on the grass under the light after he was hit with the first shot.

The State submits that even if the accused did not intend to kill the deceased in particular, he intended to kill the other persons who came out with him or any other "enemy" person in the vicinity of Witne's house. Counsel submits that s 299 of the Code makes provision for this situation in the phrase "intending to cause his death or that of some other person". However, in my view that is not how the indictment is worded. The accused is charged specifically with the murder of the deceased intending to cause the death of the deceased specifically. Therefore, it would be unsafe to convict the accused on a charge of wilful murder on that basis.

In my view, the evidence clearly establishes a crime of murder under both s 300(1)(a) and (b). In relation to s 300(1)(a), it is clear that the accused intended to cause grievous bodily harm to the deceased or any of the other "enemy" persons who accompanied him. It is immaterial that the accused intended to hurt the deceased (see s 300(2)). In firing the gun directly at the deceased, he intended to do bodily harm of such a nature as to endanger or likely to endanger life or to cause or be likely to cause permanent injury to health (see s 1 of the Code for definition of grievous bodily harm).

Alternatively, the evidence clearly establishes murder under s 300(1)(b). The distinct unlawful purpose which the accused prosecuted was that he was in the process of engaging in a fight with his supposed enemies and in the process of unlawfully discharging the gun to attack his enemies. The deliberate firing of the gun at his enemies was clearly of such a nature as to be likely to endanger human life, not only of the deceased but those others who were with him at that time or could reasonably be expected to be around the community of people living close to Witne.

I am not satisfied that the evidence supports the defence of self defence against unprovoked assault under s 269 of the Code, or self-defence against provoked assault. In relation to the former, the firing of the gun was not reasonably necessary because of the distance of 45 m between the accused and the deceased; the deceased was still inside the locked fence; the accused was geographically in a more advantageous position than the deceased because the deceased would have taken some time to reach the mountain where the accused was; and the deceased knew, or would have known, that the accused was armed with a loaded, high-powered .22 rifle and would not have come very close to the accused. The attack on the accused at his house and the attack upon him after he shot the deceased were far removed in time and distance.

In relation to the defence of self-defence against provoked assault under s 270, I do not think it is applicable to the facts of the case because the defence case is that the accused did not assault the deceased in the first place. It is misconceived.

I also consider that the defence of extraordinary emergency, pursuant to s 26 of the Code, is not available on the facts before me in this case.

If there is any evidence produced by the defence or adduced through State witnesses in support of these three defences, the State has negatived those defences. I am satisfied beyond reasonable doubt that the accused committed murder upon the deceased Mangua Waugo, contrary to s 300(1)(a) or, alternatively, under s 300(1)(b) of the Code. I return an alternative verdict of guilty on murder, pursuant to s 539 of the Code.

iv>

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National Court of Papua New Guinea

Kuanande, The State v [1994] PGNC 115; [1994] PNGLR 512 (28 February 1994)

PNG Law Reports 1994