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State v Masiap [1996] PGNC 21; N1469 (28 August 1996)

Unreported National Court Decisions

N1469

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 1178 OF 1995
THE STATE
v
LEONARD MASIAP

Waigani

Sevua J
12-13 August 1996
16 August 1996
28 August 1996

CRIMINAL LAW - Attempted Murder - Self defence - Unprovoked assault - Test to be applied - Assault an essential ingredient under ss. 269 & 270 Code - Actual assault or threat of assault must be offered to accused - Where no assault or threat of assault, there cannot be belief on reasonable grounds - ss. 269 & 270 Code.

CRIMINAL LAW - Self defence - Onus of proof - Criminal Standard - Onus remains on prosecution to prove beyond reasonable doubt or negative defence - Onus not on accused to prove self defence.

Test in The State v Takip Palne [1967] PNGLR 90 adopted and applied.

Held:

1. There is no evidence that the accused was assaulted by the victim such as would cause reasonable apprehension that the accused was about to be killed or caused grievous bodily harm.

2. The accused had no reasonable grounds for believing that he could not otherwise preserve himself than by firing the two shots at the victim and the force used was excessive.

3. The State has excluded beyond reasonable doubt, each of the elements of self defence.

4. The onus of proof remains on the State throughout and the standard of proof is proof beyond reasonable doubt. That is, the State must prove beyond reasonable doubt that the necessary elements in s. 269 adverted to in Takip Palne do not exist.

Cases Cited:

The Queen v Nikola Kristeff (1967) No 445

The State v Takip Palne [1967] PNGLR 90

Regina v Korongia (1961) No. 204

Reg v Muratovic [1967] Qd R 15

Tapea Kwapena v The State [1978] PNGLR 316

Regina v Lobell [1957] 1 QB 547

Chan Kau v The Queen [1954] UKPC 40; [1955] 2 WLR 192

The Queen v Howe [1958] HCA 38; [1958] 100 CLR 448

The State v Wanaepe Warara [1977] PNGLR 458

Counsel:

Ms M Boni for State

Mr M Apie’e for Accused

28 August 1996

SEVUA J: The accused pleaded not guilty to an indictment charging him with attempted murder contrary to s. 304 (a) of the Code.

The facts are brief and simple. The accused is an officer of the National Intelligence Organisation (NIO). On the night of 29 November, 1994 at about 9 pm, he fired two shots from his pistol at the victim, Sunaban Yoba, between the Somare Foundation Building and the old NIO office at Waigani. As a result, the victim suffered bodily injuries to his left arm and left side of the posterior chest wall. The only point of contention here is where the shooting occurred. The prosecution alleged that, the victim was shot as he stood against the perimeter fence at the rear of the Somare Foundation Building. The accused denies this and says, he shot the victim near the NIO office. He raises the statutory defence of self defence. At the end of the day, the ultimate question to be decided is whether I accept the evidence of the victim or the accused.

The evidence of the victim is that, he was one of three (3) security guards on duty that night at the Somare Foundation Building premises.

At approximately 9 pm, he left the two others at the front gate, which I observed, from visiting the scene, to be the gate east of the building, and walked around the left side parallel to the Sir John Guise Drive to the rear of the building. At the rear perimeter fence, he stood almost against it. As he stood there, facing the Australian High Commission, which I noted, is on a south easterly direction, he was shot on the left arm and as he turned around, he was shot the second time on the left side of the back. He said he saw the accused beside the NIO office and he estimated the distance between them to be twenty metres. He then ran to the front gate, jumped over it then escaped to his boss’ office at Nilkare St, Gordons, near the Indonesian Embassy, approximately half a kilometer away from where he was shot.

The victim’s evidence also include estimates of distances and lighting. As to lighting, he said there were three security lights. The first one was at the front gate, the second at the roof of the NIO office, and the third at the rear gate of the Australian High Commission. During the visit to the scene, I observed the victim pointing to a double flood lights located above the northern fence of the Somare Foundation Building, and further, the one at the NIO office was located where a broken gutter hung, not on the roof. I also observed that the victim pointed to the corner of the northern and western end of the fence where he said he jumped out from and escaped.

From where he stood by the fence to where he said the accused stood was approximately 12 - 15 metres. From where he was shot to the NIO office was approximately 12-15 metres. From where he jumped out, to the NIO office was approximately 10-12 metres. From where he was shot to the point at the fence he jumped out was approximately six metres.

The Court noted that the distance from where he was shot to the front gate would be a hundred metres or more. There seems to be some contractions in his evidence, which I will consider later when assessing demeanour and credibility.

The second prosecution witness did not see anything, so really his evidence is of no probative value to the prosecution’s case. It is therefore unnecessary to discuss that evidence here.

On the contrary, the accused’s evidence presents a completely different picture of what had transpired.

On the date in question, he had left the NIO office at approximately four or five in the evening, but returned at 9 pm to carry out a routine check. He parked his official vehicle at the end of the NIO office (I observed as the western end), walked to the northern side of the building and called out to the guards who supposed to be inside, however, there was no response. According to him, the place was dark as there was no light.

Suddenly, he saw “something like a mop head popping out on the side of the building.” It was a person who ran out from the side of the building towards the accused’s stationary vehicle. The accused said, as the man ran, he saw that man pointing something which appeared to be a gun at him (accused). That person ran to the accused’s vehicle and sheltered behind it. The accused was alarmed by the action of that person so he called out, “hey” to him. There was no response so he called out to the people who supposed to be in the NIO office, however there was no response either. He then remembered that he was armed so he pulled out his pistol, corked it and fired at the direction of his vehicle where he saw that person ran to. As his pistol was a semi automatic weapon, a second shot was fired as he maintained his finder on the trigger. After these shots, he saw that person running along a track towards the fence of the Somare Foundation Building. Approximately, two minutes later, he got into his vehicle and drove out on the same track towards Sir John Guise Drive in pursuit of the fleeing man, however, the accused was unable to catch up with that man so he drove to the other NIO office at Boroko. He did not report that incident until the next day.

Basically, that is all the evidence before me in this trial.

Firstly, I must determine which evidence is more probable and to do that I need to assess the credibility and demeanour of both the victim and the accused so that I can arrive at a finding of fact as to whether the victim was shot, as he said, inside the premises of the Somare Foundation Building, or near the NIO office, according to the accused’s evidence.

Having observed both witnesses testified on oath, the victim’s demeanour in the witness box did not impress me at all. He appeared stubborn during examination in chief and I observed that he did not fully co-operated with the prosecuting counsel. He looked quite annoyed and there was no reason he should behave in that manner.

His demeanour worsened during cross examination when he appeared angry and mean and became unco-operative and difficult, until I warned him of possible imprisonment for contempt and ordered him to sit up straight and lean toward the microphone to answer questions.

There were inconsistencies in his evidence which I consider fatal to his credibility. If, it was true he was shot within the premises of Somare Foundation Building, why didn’t he call out to his colleagues that he had been shot? He said he ran to the main gate where his colleagues were, before he left them at 9 pm and jumped over the gate. I alluded to earlier that from the Court’s point of view, this would be a distance of a hundred metres or more. But he also said, the distance from where he was shot to where he jumped over the fence was approximately six metres. At the scene, he pinpointed these two spots and the distance of six metres appeared to be accurate. He could not have ran a hundred metres or more to the front gate to escape. He said when he ran to that gate, he saw his two colleagues there however, this was denied by Christopher Wai, the second prosecution witness.

This puzzles me and leads me to ask where exactly was the victim shot, within the premises of Somare Foundation or near the NIO office? I will answer this question after assessing the credibility of the accused.

The accused spoke in a relaxed and calmed tone. He spoke quite good English and appeared quite attentive and co-operative. He was somewhat reluctant to answer one particular question which directly relates to the nature of his job and I accepted that he was bound by the National Intelligence Organisation Act as to what he can or cannot divulge. On one occasion, I directed him to answer a question in cross-examination relating to firearm licence as I considered that his answer would not prejudice the security of the nation. Apart from these instances, I find the accused to be quite an experienced NIO officer with a quiet personality. I believe his evidence and I prefer it to that of the victim.

I therefore feel that I must give him the benefit of the doubt that he did shoot the victim near the NIO office and not where the victim was standing by the fence inside the Somare Foundation Building premises. I cannot find any motive for the accused to shoot the victim who was going about his lawful business inside the premises of Somare Foundation Building.

The only reason I can find for the shooting is that, the victim was an intruder at the NIO office premises. I therefore find as a fact that the victim was shot near the NIO office.

The next question I must determine is whether the action of the accused amounted to self defence. His counsel argued that it did, and he relied on s. 269 of the Code. Without citing this section in full, let me say that, assault is an essential element of this provision. A person is entitled in law to use such force as is necessary against an unlawful assault he has not provoked. To put it negatively, he cannot use force without an assault being offered against him. Counsel for the accused relies on two cases, The Queen v Nikola Kristeff (1967) No 445 and The State v Takip Palne [1976] PNGLR 90. Counsel for the prosecution, on the other hand, relies on Regina v Korongia (1961) No 204. I will refer to these authorities later.

At this juncture, let me review the evidence of the accused. He saw a person ran from the side of the building to where his vehicle was parked. That person positioned himself behind the vehicle. The accused said he saw something which he thought was a gun pointed at his direction when the man was running towards the vehicle. However, by his own evidence, there was no light and the area was dark. How could he had seen that the person was running with something like a gun? It could have been a stick. How could the accused specifically say, he thought it was a gun? There is evidence that the distance between the two men was about four metres, but there is no evidence of any threat against the accused. If that person had a gun, he did not fire at the accused or threaten to fire. Neither did he assault or threaten the accused with whatever he may have been holding. So what is the basis for the accused shooting the victim?

When the accused saw that person running with what he assumed was a gun, he said “I was alarmed thinking that this is it for me”. He also said, “what went on my mind when I saw someone running out pointing something like a gun at me was fear, fear of being killed and I thought to myself, well this is it”. The accused may well have thought that his life was in danger, however, that is not the test in self defence. The test is whether the nature of the assault was such as to cause a reasonable man apprehension of death or grievous bodily harm. The accused was faced with a person running away in the dark. He did not actually see if that person was armed.

He was not being attacked or threatened. I therefore do not accept his evidence that he thought he was going to be killed. In other words, he had no reasonable grounds to believe that he could not preserve himself from death or grievous bodily harm otherwise than by firing at that person.

In The Queen v Nikola Kristeff, (supra) His Honour Frost J (as he then was) said at p. 23:

“the test is whether the nature of the assault was such as to cause a reasonable man apprehension of death or grievous bodily harm.”

In Regina v Korongia (supra) Man CJ said at p. 8:

“...the essence of self defence under the Code is that violence is presently being offered. An actual assault is required to have been made under both sections 271 and 273 (my underlining). An actual threat must be made by some bodily act or gesture before section 245 is satisfied.”

Those provisions are presently ss. 269 and 270. In my view, and I agree with Their Honours in those cases, assault is an essential ingredient under ss. 269 and 270.

The test to be applied in a trial where self defence is pleaded has been settled in this jurisdiction. O’Leary AJ succinctly stated the test in The State v Takip Palne (supra) following His Honour’s adoption and application of the Court of Criminal Appeal decision in the Queensland case of Reg v Muratovic [1967] Qd R 15. In fact, the test is contained in the judgment of Hart J at p. 26. I wish to adopt, restate and re-emphasise the test in the present case.

The test in Takip Palne which I adopt and apply here is this: To raise a plea of self defence under s. 269, there must be evidence of the following:

1. The accused was unlawfully assaulted.

2. The accused had not provoked the assault.

3. The nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm.

4. The accused believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm otherwise than by using the force which he in fact used.

The fourth limb of the test was modified in Tapea Kwapena v The State [1978] PNGLR 316. Incidentally, I have just realised that I was the junior lawyer and appeals officer who prepared the opinion on that appeal based on R v Muratovic for Mr Mari Kapi, then Public Solicitor, who argued this appeal in the Supreme Court on 1st August, 1978. The Supreme Court in that case followed R v Muratovic, so it is not necessary to cite what the Court of Criminal Appeal said, as I have already alluded to the judgment of His Honour Hart J.

For my part, I would simplify the test as follows:

Where an accused person raises self defence, the onus is not on him to prove self defence, the onus is on the prosecution throughout to prove beyond reasonable doubt that the elements in s. 269 Code set out in The State v Takip Palne do not exist or are not present.

If on the whole of the evidence before the Court, the Judge, as a tribunal of fact, finds that those facts exist, the accused is entitled to an acquittal because the prosecution has not negatived the defence. If, however, the tribunal of fact finds that those facts do not exist then a verdict of guilty should be returned.

Since I have adverted to the issue of onus of proof, let me just briefly discuss that here. As I mentioned, the onus of proof is upon the prosecution. In Regina v Lobell [1957] IQB 547 at 551, the English Court of Criminal Appeal established the law as to onus of proof on an issue of self defence as follows:

“If an issue relating to self defence is to be left to a jury, there must be some evidence from which a jury would be entitled to find that issue in favour of the accused, and ordinarily no doubt such evidence would be led by the defence.

But there is a difference between leading evidence which would enable a jury to find an issue in favour of the defendant and in putting the onus upon him. The truth is that the jury must come to a verdict on the whole of the evidence that has been laid before them. If on a consideration of all the evidence the jury are left in doubt whether the killing or wounding may not have been in self defence the proper verdict would be not guilty.”

The Privy Council in allowing an appeal from the Supreme Court of Hong Kong in Chan Kau alias Chan Kai v The Queen [1954] UKPC 40; [1955] 2 WLR 192, at 193 & 194, thought it desirable to state that:

“In cases where the evidence discloses a possible defence of self defence the onus remains throughout upon the prosecution to establish that the accused is guilty of the crime of murder and the onus is never upon the accused to establish this defence.”

Dixon CJ in The Queen v Howe [1958] HCA 38; [1958] 100 CLR 448, at 459, said:

“The state of the law appears to be that once a ground is disclosed by the evidence upon which a plea of self defence may arise, it is essential to a conviction of murder that the jury shall be satisfied beyond reasonable doubt that one or other or all of the ultimate facts which establish that plea were not present. That appears to be the effect of the modern law.”

His Honour then cited Chan Kau v The Queen [1954] UKPC 40; [1955] AC 206 at pp. 211, 212.

Frost J in The Queen v Nikola Kristeff (supra) said at p. 4:

“As to onus of proof, so far as the defence of self defence and provocation are concerned, there is no onus on the defence to establish these defences. Once a ground is disclosed by the evidence upon which a plea of self defence may arise, or provocation, it is essential to a conviction of murder that the jury shall be satisfied beyond reasonable doubt that one or the other or all of the ultimate facts which establish those pleas are not present.”

His Honour then cited Chan Kau v The Queen, (Supra) R v Howe (supra) and R v Johnson (1984) QSR 1 and further said:

“It is for the Crown to exclude these defences of self defence and provocation and exclude them beyond reasonable doubt.”

The onus of proof therefore remains with the prosecution throughout, on the criminal standard of proof, ie proof beyond reasonable doubt. The State must prove beyond reasonable doubt that the necessary elements in s.269 adverted to in Takip Palne do not exist. To put it in a slightly different form, the State must exclude or negative each of the elements of self defence in s. 269 of the Code.

Let me revert to the test in Takip Palne. Again, the fundamental consideration in the present case is whether there is evidence of the existence of those matters alluded to in Takip Palne. On the whole of the evidence before me, I find no evidence that the accused was assaulted by the victim, therefore, it is not necessary to consider the remaining three aspects of the test. Accordingly, I am satisfied beyond reasonable doubt by the State that there was no assault here such as would cause reasonable apprehension that the accused was about to be killed or caused grievous bodily harm.

I am further satisfied beyond reasonable doubt that the accused had no reasonable grounds for believing that he could not otherwise preserve himself than by firing the two shots at the victim. I am also satisfied beyond reasonable doubt that the force used was excessive.

If the plea of self defence were to succeed, and assuming that the accused fired the shots in order to preserve himself from death or grievous bodily harm, I consider that the appropriate time for him to act was at the moment he saw the fleeing man with what he assumed was a gun. However, here, the fleeing man had taken shelter behind the accused’s vehicle and most importantly, he had not offered violence or threatened the accused. There was therefore a lapse of time, even if it was for only momentarily, before the accused fired. In my view, the accused acted in panic, not out of necessity.

I am therefore satisfied beyond reasonable doubt that the State has excluded each of the elements of self defence.

Finally, I turn to the question of intent with which the accused fired the shots. There is no evidence of intent before me. The record of interview (Exhibit “A”) is very brief as the accused refused to continue with it as he claimed to have sufficiently stated what he wanted to in his statement, which is not in evidence before me. Thus, no evidence of intent by way of admission can be found. However, I consider that I am entitled to draw an inference from the facts and circumstances of this case as to whether or not intent was present in the mind of the accused at the material time.

Again, the accused is entitled to the benefit of the doubt on this aspect and as I have found no evidence of intent, he cannot be guilty of attempted murder. However, I find that his action in firing the shots was not out of necessity, but was carried out recklessly and negligently. I find that I am entitled to conclude that the accused, at least, intended to cause some bodily harm to the victim since I find he was not in any real danger. I therefore consider that an alternative verdict could be brought pursuant to s. 542 (1) of the Code on the basis that, “intent to inflict grievous bodily harm” is “an intent to cause...a result of a similar but less injurious nature” than the intended result of attempted murder.

Accordingly, I find the accused guilty of intent to cause grievous bodily harm pursuant to s. 315 (b) & (d) of the Code on the basis of the decision in The State v Wanaepe Warara [1977] PNGLR 458.

Lawyer for State: Public Prosecutor

Lawyer for Accused: Public Solicitor