State v Vutnamur (No 1) [2005] PGNC 104; N2848 (8 June 2005)

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CRIMINAL LAW – indictable offences – Criminal Code, Division V.3, homicide etc – Section 299, wilful murder – shooting death of police officer in course of armed robbery – two co-accused – first co-accused pleaded not guilty; second co-accused pleaded guilty – first co-accused raised defence of compulsion – neither co-accused alleged to have shot the deceased – Section 7, criminal offenders – Section 8, offences committed in prosecution of common purpose – main perpetrators not brought to trial – whether there was evidence of the required standard of wilful murder of the deceased by the main perpetrators – whether the defence of compulsion applied – whether the first co-accused aided, the main perpetrators – whether the first co-accused formed a common intention with the main perpetrators to prosecute an unlawful purpose – defence of compulsion did not apply – prosecution unable to establish aiding – able to establish formation of common intention to prosecute an unlawful purpose – able to establish any alternative offence – first co-accused convicted.

Counsel:
L Rangan for the State
O Oiveka for the first co-accused
R Inua for the second co-accused

Two men, Jacky Vutnamur and Kaki Kialo, have been charged with wilful murder. The first co-accused, Jacky Vutnamur, pleaded not guilty. The second co-accused, Kaki Kialo, pleaded guilty. A provisional plea of guilty has been entered against the second co-accused but he has not been sentenced yet. This judgment gives the verdict on the first co-accused.

The incident giving rise to the charge took place at Kapiura in the Bialla District of West New Britain in May 2003. A police officer, Walter Ajimba, was shot and killed during the course of an armed robbery of the Kapiura Trading store. The prosecution does not allege that either of the co-accused shot the deceased but that they are criminally responsible for what happened by virtue of their membership of the gang that committed the robbery.

Both co-accused were also charged with unlawful use of a motor vehicle, armed robbery and unlawful deprivation of liberty. They have not faced trial on those charges. The State has elected to proceed first with the charge of wilful murder, as Section 531 of the Criminal Code precludes the joinder on one indictment or in one trial of a charge of wilful murder, murder or manslaughter with any other offence (Charles Bougapa Ombusu v The State [1996] PNGLR 335).

On 18 May 2005 the co-accused were brought before the National Court and faced the following indictment:

Jacky Vutnamur of Takekel, Rabaul in East New Britain Province and Kaki Kialo of Suanumbu, Yangoru in East Sepik Province, stand charged that they ... on the 5th day of May 2003 at Kapiura in Papua New Guinea wilfully murdered Walter Ajimba.

On 5 May 2003 the two co-accused went with other persons, as an armed gang, to Kapiura in a vehicle owned by Hertz Rent-a-Car, intending to rob a store known as Kapiura Trading. They arrived about 7.00 am. The gang got out of the vehicle, pointed guns at employees of the store and threatened to shoot them. They went to the manager’s office and took some money and other things from the store. They jumped into the vehicle and, as they were escaping, a police officer, Walter Ajimba, fired some shots at them. Other members of the gang fired back at Walter Ajimba, shot him and he fell down and was rushed to the local health centre. He died from the injuries he received. Neither of the co-accused actually shot the deceased but being members of the gang, they are criminally responsible for his wilful murder under Sections 7 and 8 of the Criminal Code.

The first co-accused pleaded not guilty while the second co-accused pleaded guilty to those facts.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

The prosecution alleged that the first co-accused aided other persons to kill the deceased and/or formed a common intention to prosecute an unlawful purpose in the course of which the offence of wilful murder was committed. Therefore he is guilty of the wilful murder that took place. Mr Rangan invoked Sections 7 and 8 of the Criminal Code for that purpose.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(d) any person who counsels or procures any other person to commit the offence.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.

(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,

As the first co-accused is charged with wilful murder the question of an alternative conviction under Section 539 (charge of murder or manslaughter) may need to be considered.

(1) On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged.

(2) On an indictment charging a person with the crime of murder, he may be convicted of the crime of manslaughter but not, except as is expressly provided in this Code of any other offence other than that with which he is charged.

(3) On an indictment charging a person with the crime of manslaughter he shall not, except as is expressly provided in this Code, be convicted of any other offence.

(4) On an indictment charging a person with wilful murder, murder or manslaughter, the accused person may be convicted of—

(b) unlawfully assaulting such other person and thereby doing him bodily harm; or

The State tendered 26 exhibits by consent and called two witnesses to give oral evidence.

Column 1 of the table below gives the exhibit number, column 2 describes the exhibit and column 3 summarises its evidentiary content.

Exhibit	Description	Content
A	Statement: Margaret Lepan and Samson Lepan, 20.05.03	Statement re theft of vehicle.
B	Statement: Nick Buka, security supervisor, Kapiura Trading, 16.05.03	Statement re circumstances of robbery – white Toyota double-cab – police uniforms – identified Felix as shooting the policeman.
C	Statement: Manuel Theo, security guard, 16.05.03	Was present – identified the offsider as Felix Tokonai Tengis – told public to go in and get what they want.
D1/D2	Statement: Sebastian Walter Ajimba, son of deceased, 13.05.03	His father was alerted about the robbery – his father was the first to fire – two criminals took aim at him and shot him.
E1/E2	Statement: Jacob Patore, 16.05.03	Statement by customer – saw vehicle drive in – occupants were wearing police uniforms – identified Felix – saw Felix fire pump action shotgun.
F	Statement: Chang Soo, managing director, Kapiura Trading, 16.05.03	States that he was in his office when four people came in – two uniformed, two civilian dressed – stole K45,600.00 cash plus K3,000.00 store goods.
G	Statement: Biatus Savuki, bystander, 16.05.03	He was at the police station with the deceased when some people came and raised the alarm that the supermarket was being robbed – heard the gunfire.
H	Statement: David Lua, 16.05.03	Customer in shop – saw vehicle arrive with S/C Lelepe of Salelubu police station in back – recognised Felix Tokonai – emerged from crew door – heard gunfire.
I	Statement: Paul Ammon, security guard	Was in the shop and was held up by the criminals who were armed – no masks – recognised Felix Tokonai – the driver was the son of an ex-policeman.
J	Statement: Otto Kawale, shop assistant	Was outside the shop when incident happened – saw police officer Lelepe amongst them – thought that they were police officers – driver had no uniform – did not recognise him – offsider was prison escapee, Felix Tokonai, armed with pump action shotgun.
K	Statement: Elisa Sukina, cashier, 16.05.03	Was in the store when the rascals came in – asked for boss’s office – hid in the wholesale section.
L1/L2	Statement: Alice Siperi, shop assistant, 16.05.03	Was in the shop when the criminals came in – recognised Felix Tokonai – hid out the back – did not hear gunfire.
M	Statement: Peter Mirio, detective sergeant, CID, Kimbe, 16.05.03	Came to police station on 10.05.03 as Jacky had surrendered himself – corroborated his interview – Jacky admitted to involvement in robbery – on 13.05.03 Kaki Kialo surrendered to police and gave confessional statement.
N	Statement: Kingsford Mahuvu, DFC, Kimbe police station, 16.05.03	Interrogated Jacky who surrendered on 10.05.03 – Kaki surrendered on 13.05.03.
O1/O2	Record of interview: Jacky Vutnamur, 10.05.03	Did not know about the robbery plan – lives at Kavui section 10 – it was a Sunday – was with his family – Vincent Peni (now deceased) came and asked him to drive a vehicle to the block – wore a cut jean – walked down to the 3-acre – when they came to the vehicle, Felix put a gun on him – a young boy had previously driven the vehicle – drove to Mamota – drove through long grass and came to a hut – stopped and gave them the key – cooked them some rice – they slept – did not sleep well – left at 6.00 am – then drove somewhere else – stayed until 8.00 am – then went to Salelubu police station, to Lelepe’s house – they took him into the house and took police uniforms and pump action shotgun – ordered him into the vehicle – drove out – went to Bilomi supermarket – three went in: Vincent Peni, Seu from Talasea and Raymond from Sepik – three stood guard: Kaki, Felix and Raymond – Kawasi guarded Lelepe and witness – Kaki was standing at shop doorway – three of them went in and took money and came out – put money in vehicle – then instructed public to go in and help themselves – then deceased arrived on the scene – fired first and hit Vincent Peni and he dropped the money – "uncle" was shot – Felix was armed with police issued pump action shotgun – they told accused to start the vehicle – drove first towards Kimbe but they told him to go towards Mamota – did so and they told him to drive into the road where the Malaysians cut logs – hid the vehicle – walked to a clearing – had cigarettes – shared things: was given K450.00 cash, earphone stereo, watch, cigs, gas lighter – heard Landcruiser, and police, so fled – then tracked along the jungle – took four nights and five days to get to Kavui – met up with Kaki – sent message to his father at Buvussi – discussed the matter and agreed to surrender.
P	Statement: Sr Talien, Kautu Clinic, 05.05.03	General report on late Walter – confirmed dead @ 0900.
Q	Post-mortem report, medical certificate of death, affidavit, Dr Sammy Thomas, Kimbe Hospital, 23.05.03	Cause of death: haemorrhagic shock – shattered right femoral artery – eight pellet wounds: two entering from lower back, exiting in groin, six around legs.
R	Real	three empty shotgun cartridges.
S	Real	one empty gas gun shell.
T	Real	three back paper clips.
U	Real	one pair black thongs.
V	Real	one black cap.
W	Real	one orange gas lighter.
X	Real	three police shirts.
Y	Real	one firearm.
Z	Real	one black bag.

The first witness for the State was Lelepe Kubak. He is the son of the second witness, Lelepe Isicas, who is a police officer based at Salelubu police station. He was a schoolboy at the time of the incident.

In examination in chief Lelepe Kubak stated that a gang drove into their yard, held up him and his family early in the morning, about 7.00 am, on 5 May 2003. He recognised one of the gang as the first co-accused, Jacky Vutnamur, who was driving the vehicle. He did not get out of the vehicle. He did not see anyone pointing a gun at Jacky. He did not see Jacky doing anything after he parked the vehicle. What happened was that the whole family was in the kitchen having breakfast when a vehicle with a number of men in it drove into their yard. One of them asked for their father and when his father came out, one of the men pointed a gun at him. They took his father into the house. When they were inside the house, other gang members pointed guns at the family members. They asked his father to give them a gun. At first his father said he had no gun. However, the third time they asked he told them he had a gun and it was in the patrol box. They then asked for bullets. At first he said he had none but they threatened to shoot him. Therefore, he gave them the bullets. Then they got police uniforms. Then they told his father to get onto their vehicle, which he did. As they were leaving one of the gang members discharged a pump-action shotgun.

In cross-examination Lelepe Kubak stated that Jacky was wearing a shirt but he did not recall the colour. He knew Jacky as Jacky’s father used to work with the witness’s father at Bavussi. Jacky did not greet him. Jacky had parked the vehicle and was looking straight at the house. He was wearing a cap and he had it pulled down over his eyebrows. It was a red cap with a PNG flag on it. Jacky did not say anything or threaten anyone.

Answering questions from the bench the witness said that there were seven or eight members of the gang. The vehicle was a white double-cab Hilux. When his father was ordered onto the vehicle, he sat on the open-back.

The second witness for the State was Lelepe Isicas. He is a police officer stationed at Salelubu.

In examination in chief he stated that on Monday 5 May 2003 at about 7.00 am he and his family were having breakfast. A white Toyota Hilux drove into the yard. The people in the Hilux asked for him. He was having kaukau and a cup of tea. He walked outside. He was quite surprised when one of them pointed a pistol at him and asked him where the gun was. He eventually went into the house with that person and handed over a gun, cartridges, police uniforms (shirts, belts, berets, a small torch and sandshoes). They ordered him to go with them, which he did. He got onto the back of the utility and sat on the driver’s side, looking towards the left hand side of the vehicle. There were three others on the back. He looked at the driver, Jacky Vutnamur, and nobody was pointing a gun at him. There was one person in the front passenger seat, the offsider, who had a gun. He cannot recall how many were in the back seat or whether they had guns. They headed to the main road, then on to the highway towards Kimbe. While they were driving along they distributed the police uniforms and some of them started wearing them. They told him not to try to jump and they would leave him somewhere. They went to Kapiura Trading. They did not stop on the way. They were not travelling fast. When the vehicle was parked at Kapiura, the driver, the witness and one other person remained with the vehicle, while the others went inside. The other person was standing near the store "guarding the two of us", with a gun. That person did not point the gun at Jacky or the witness. When the gang members went inside, the witness was standing at the back of the vehicle until one of the gang members invited people to go inside and loot the store. After about two minutes he asked the person who was guarding him if he could also go inside and that person said ‘yes’. Therefore, he went in but he did not get anything. He went out the back, escaped and looked for help. When he came back he heard that they had shot a police officer.

In cross-examination Lelepe Isicas stated that he did not know the name of the person who took him into his house to get the gun, uniforms and other items. That person later got into the back of the vehicle. Jacky had come with the others to his house. He confirmed that Jacky knew him and his family. He does not know the name of the person who was guarding him at Kapiura. He does not know who was giving the orders, maybe it was the one who pointed the pistol at him when they came into the yard. Jacky was not being guarded at Kapiura. Jacky and the other person were guarding him (the witness). "Jacky was one of them", he stated. Jacky did not do anything to him or talk harshly to him. He was asked if Jacky appeared frightened and replied that he did not see what his appearance was. He was asked if Jacky was wearing a shirt. At first he stated that he could not say, and later said that he was wearing a shirt but could not say what colour it was. He does not know what type of gun was pointed at him by the man who was guarding him at Kapiura. It was his first time to be in such a situation. He, the driver, and the person standing guard did not talk, until after the others came out of the store and that is when he asked the guard if he could go inside. Jacky did not talk or threaten him. He was at the back of the store when the shooting started.

Apolonia Jacky is the wife of the first co-accused, Jacky Vutnamur. They live at Buvussi and have been married since 1998.

In examination in chief she stated that on a Sunday night in 2003 the second co-accused, Kaki Kialo, came to get Jacky at their house, to go and get a vehicle. Jacky told her that he would go to the highway and come back. Jacky came inside to put on a cut-jean. He had no shirt or cap and held nothing in his hands. Someone else came with Kaki but she did not see who it was as it was too dark, at about 7.30 pm.

In cross-examination Apolonia Jacky said that her husband had been with her the previous day, Saturday. She heard Kaki tell Jacky that the two of them would go down to the highway to get a vehicle and come back. She knew Kaki and Jacky knew Kaki, as Kaki lives in the same area. Jacky did not return until the following Friday. She asked him where he had been. He said that when he went to get the vehicle the other boys took him to the highway. They held him at gunpoint and asked him to drive the vehicle. She believed him. He did not tell her the names of those that were pointing a gun at him.

In re-examination the witness repeated that Jacky was only wearing a cut jean.

Apolonia Jacky was the only witness for the defence. The first co-accused elected to remain silent. The defence case was then closed.

Mr Oiveka conceded that an offence had taken place and that the first co-accused, Jacky Vutnamur, was present at the scene of the crime. He was the driver of the vehicle that was used in the armed robbery.

The evidence, however, is that he went involuntarily. He did not talk to anyone and did not threaten anyone. Lelepe Isicas’s evidence was, at first, that another man was guarding him and Jacky outside Kapiura Trading. Jacky surrendered to the police. A member of the gang, Felix, was swearing at him. He knew Lelepe Isicas’s family, so it does not make sense for him to freely hold them up. The evidence is that it took four days for Jacky to trek through the bush from Kapiura to Kavui. Mr Oiveka relies on Section 32(1)(d) of the Criminal Code to set up the defence of compulsion.

Jacky told his wife that he was held at gunpoint and asked to drive the vehicle. His mere presence at the crime scene does not make him guilty. He did not have a good opportunity to escape when they overnighted in the bush. He gave the keys to Felix. It would have been like trying to run away from a bullet.

Mr Rangan submitted that it was not necessary for any other person to have been convicted of the wilful murder of Walter Ajimba before the two co-accused could be found guilty of wilful murder. The court only had to be satisfied that an offence had taken place and that the co-accused had aided or counselled it or were prosecuting an unlawful purpose so as to be caught by Sections 7 or 8 of the Criminal Code.

The prosecution was not relying exclusively on the first co-accused’s confessional statement, as the elements of the offence were within his knowledge.

The defence of compulsion cannot operate when a person is charged with wilful murder. If it operates, then on the facts of this case it should not operate as the first co-accused had a number of opportunities to leave the group. The group overnighted from the Sunday night to early Monday morning in the bush. He had the opportunity to sneak away. He said that he did not sleep well, so the whole night was available to him to abscond. Then he had another opportunity to escape at the scene of the killing.

The story that he was taken from his home ought not to be believed. His wife’s evidence is that it was Kaki who came to get him. But he says in his confessional statement that it was Vincent. There is no evidence that he was forced to leave. The safe inference for the court to draw is that Jacky knew who the robbers were and knew what was going on.

By driving the robbers he aided and abetted them getting to the scene of the crime and their getaway.

The first co-accused has been charged with wilful murder. As previously indicated, it is not alleged that he physically killed the deceased, ie it is not alleged that he shot him. It is alleged that the first co-accused aided others to do those things or that he was involved with the others in the prosecution of an unlawful purpose, in the course of which the offence of wilful murder was committed. Mr Rangan invoked Sections 7(1)(c) and 8 of the Criminal Code.

The things to be proven, if the accused is to be convicted of wilful murder, therefore are:

The above matters are the elements of the offence of wilful murder for the purposes of this case. They are, however, subject to two other things. First, the defence of compulsion, which exists under Section 32 of the Criminal Code. Secondly, if the court is not satisfied that all elements of wilful murder are proven and the defence of compulsion does not operate, an alternative verdict of murder or manslaughter can be entered under Section 539.

Kapiura Trading was held up by an armed gang on the morning of Monday 5 May 2003. The gang arrived at the store in a Toyota Hilux utility, driven by the first co-accused, Jacky Vutnamur. The utility had been stolen the previous day. Earlier that morning the gang had gone to Salelubu and held up Senior Constable Lelepe Isicas, stolen a pump action shotgun, cartridges, police uniforms and a few other items. Lelepe Isicas was forced to go with the gang and travelled in the back of the utility. At all material times Jacky Vutnamur was driving the vehicle.

Jacky stayed in the vehicle when the robbery was taking place. He did not talk to anyone. He did not threaten anyone.

The gang members stole about K45,000.00 cash and K3,000.00 worth of store goods. They did not fire any shots while they were inside the store. They did not physically injure any staff members, customers or bystanders.

However when the gang emerged from the store and were about to make their getaway the deceased, police officer Walter Ajimba, attempted to apprehend them by firing shots from a gas gun. He struck one of the gang members but did not seriously injure him. Two of the gang members fired back and a shootout ensued, in the course of which Walter Ajimba was fatally injured.

Neither of the co-accused fired the shots that killed Walter Ajimba. The first co-accused, Jacky Vutnamur, stayed in the vehicle at all times.

Neither of the two State witnesses was particularly impressive or unimpressive in their testimony. I was surprised that the second witness who is a police officer did not have clear answers to some questions, eg when he was asked what sort of gun was pointed at him. He said he did not know as this was the first time he had been in such a situation. However this did not detract from the overall credibility of his evidence.

As for the defence witness, Apolonia Jacky, she was not very impressive. Her demeanour gave the impression of a witness who had been coached. She did not convey the impression of someone who was giving a truthful account of what actually happened.

I refer here to Section 291(definition of killing) of the Criminal Code, which states:

Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.

I am satisfied beyond reasonable doubt for the purposes of this case that the deceased was shot by one or two members of the gang that held up Kapiura Trading on the morning of 5 May 2003. There is evidence that the shots were fired by Felix Tokonai and one other person. Those who shot the deceased directly caused his death. They therefore killed the deceased.

It is unlawful to kill a person unless the killing is authorized or justified or excused by law.

I am satisfied beyond reasonable doubt for the purposes of the present case that the killing of the deceased was not authorised, justified or excused by law. They killed him unlawfully.

I am satisfied beyond reasonable doubt for the purposes of the present case that those who shot the deceased intended to cause his death. I am therefore satisfied that they each wilfully murdered the deceased.

The first co-accused asserts that he acted under coercion. Mr Oiveka argues that it is a complete defence under Section 32 of the Criminal Code.

(1) A person is not criminally responsible for an act or omission done or made—

(b) in obedience to the order of a competent authority that he is bound by law to obey, unless the order is manifestly unlawful; or

(c) when the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence; or

(i) in order to save himself from immediate death or grievous bodily harm threatened to be inflicted on him by some person actually present and in a position to execute the threats; and

(ii) believing himself to be unable otherwise to escape the carrying of the threats into execution,

but this protection does not extend to an act or omission that would constitute an offence, punishable with death or the offence of wilful murder or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself liable to have such threats made to him.

In the present case "the act" committed by the first co-accused, Jacky Vutnamur, that the prosecution argues makes him criminally responsible for the wilful murder that was committed, is driving the vehicle that was used in the armed robbery of Kapiura Trading. The only parts of Section 32 that could conceivably provide a defence are Sections 32(1)(c) and (d). Those provisions are, however, subject to the proviso in the final part of Section 32(1): the protection, ie defence, does not extend, amongst other things, to an act or omission that would constitute the offence of wilful murder.

The court needs to be satisfied therefore that the elements of the defence apply and that the proviso in the final part of Section 32(1) does not apply.

In addition to one of those sets of circumstances applying, the driving of the vehicle:

I will deal with the proviso first. I do not think it is intended to exclude the possibility of the defence of compulsion applying in the present sort of case. If a person were forced to drive a car (eg by having a loaded gun pointed at his head) and the car was used in an armed robbery and a person was wilfully murdered during the course of the robbery and the first person had done nothing other than drive the car, under threat of death if he did not, the defence of compulsion would appear to be warranted. As for the wording of the proviso, "the act" must constitute the offence before the proviso operates. In the present case, the act was driving the vehicle and that was not the act that killed the deceased. Therefore, it was not the act which constitutes the offence. I conclude that the proviso does not apply.

I now need to consider the alternative defences provided by Section 32(1)(c) and (d). However, before doing so the issue of onus of proof needs to be addressed.

Does the defence have to prove that the elements of either Sections 32(1)(c) or 32(1)(d) apply? Or does the prosecution have to disprove the elements?

I have not been provided with, or found, any authority directly on point. So I will adopt the same approach that is taken to other defences available under the Criminal Code, such as provocation and self-defence. Once the accused puts evidence of compulsion the onus rests on the prosecution to disprove the elements of that defence beyond reasonable doubt.

There is sufficient evidence before the court for the accused to legitimately raise it as a defence. Whether it is a valid defence depends on whether the prosecution can discharge the onus of proving beyond reasonable doubt that one or more of the elements of this defence do not apply.

The prosecution must prove that the answer to one or more of these questions is ‘no’. If it cannot do this, all elements are presumed proven and the defence of compulsion will operate.

On the one hand, the accused has consistently maintained that he was forced to drive the vehicle and told that if he did not, he would be shot. That version of events is in his record of interview, conducted on 10 May 2003, five days after the armed robbery and wilful murder took place. He identified the gang member Felix (the person identified by some witnesses as one of the gang who fired shots at the deceased) as the person who threatened him. In support of that version of events is:

On the other hand, in support of the prosecution’s version of events – that the first co-accused was not threatened – is the following evidence:

In assessing this critical question, I am mindful of the inherent difficulties faced by the prosecution in being asked to disprove things, ie to prove that something did not happen. This is especially so when the persons capable of giving direct evidence of these events have not done so. It is a matter of drawing inferences from and making findings of fact on the available evidence.

I am satisfied that the inference that is properly to be drawn is that the first co-accused was not threatened. The evidence outlined above, particularly that of the second witness, supports that finding. I consider that that evidence outweighs that favouring the opposite conclusion. I am satisfied of that beyond reasonable doubt. Therefore the answer to question (1) above is no. The prosecution has disproved the first element of the defence under Section 32(1)(c). That defence does not apply. It is not necessary to consider questions (2) and (3).

As with Section 32(1)(c) the prosecution must prove that the answer to one or more of these questions is ‘no’. If it cannot do this, all elements are presumed proven and the defence of compulsion will operate.

I consider that Section 32(1)(d) is asking the court to embark on a similar inquiry as it did with Section 32(1)(c). I have concluded earlier that the prosecution has proven beyond reasonable doubt that the first co-accused was not threatened. For the same reasons I am satisfied that it has been proven beyond reasonable doubt that he did not drive the vehicle in order to save himself from immediate death or grievous bodily harm. Question (1) is answered no. The prosecution has disproved the first element of the defence under Section 32(1)(d). That defence does not apply. It is not necessary to consider questions (2), (3) or (4).

I am not satisfied beyond reasonable doubt that the first co-accused aided the gang members who shot at the deceased, to kill him. Section 7(1)(b) of the Criminal Code is not satisfied. I accept Mr Oiveka’s submission that an accused person does not become criminally liable simply because of being present when a crime is committed. Likewise, an improper motive on the part of the accused does not, without something extra, make him criminally liable (R v Potosi (1973) No 730, R v Fum Boto (No 2) [1967-68] PNGLR 448, Porewa Wani v The State [1979] PNGLR 593).

The accused was present at the incident and sitting idle in the driver’s seat of the vehicle. If he had shouted instructions or encouragement to the gunmen or if he allowed them to get into the vehicle and then driven it in such a way that they could get a better shot at the deceased, he might have been regarded as aiding them. However, that was not what happened.

I now turn to consider the issues arising under Section 8 of the Criminal Code.

DID THE ACCUSED FORM A COMMON INTENTION WITH THE FIRST PERSON(S) OR ANY OTHER PERSON TO PROSECUTE AN UNLAWFUL PURPOSE AND PROSECUTE THAT PURPOSE AND WAS THE OFFENCE OF WILFUL MURDER COMMITTED IN THE PROSECUTION OF THAT PURPOSE AND WAS THAT OFFENCE OF SUCH A NATURE THAT ITS COMMISSION WAS A PROBABLE CONSEQUENCE OF THE PROSECUTION OF THAT PURPOSE?

To explain why, it is necessary to dissect Section 8 into its composite elements:

The answer to question (1) is yes as the prosecution has proven beyond reasonable doubt that the first co-accused was a willing participant in the gang that committed the armed robbery. I have rejected the contention that he acted under compulsion. A reasonable inference to draw from the evidence is that the plan to be involved in the robbery was put to him when the gang went to his house on the night before the robbery. He then agreed to go along and be involved. He formed a common intention with other persons to prosecute an unlawful purpose – to commit an armed robbery – in conjunction with them.

The answer to question (2) is yes. They prosecuted their purpose – the armed robbery – in conjunction with one another.

The answer to question (3) is yes. I have already concluded that the deceased was wilfully murdered by those who shot and killed him.

As to question (4), I am not satisfied that the offence of wilful murder was of such a nature that it was a "probable consequence" of the armed robbery, in the sense intended by Section 8(b). When a gang commits an armed robbery, with a number of guns and a bushknife as weapons, it is not unlikely that someone will be killed, whether it is the person actually being robbed, an innocent bystander or as in this case a police officer who attempts to interrupt, apprehend or prevent the escape of the robbers. However, on the facts of this case, I do not think it was a probable consequence. That does not mean that the first co-accused escapes criminal liability for the death of police officer Walter Ajimba. However, it means that he is not guilty of his wilful murder.

In reaching that conclusion, I have followed the approach taken by the Supreme Court (Kapi DCJ, Woods J, Barnett J) in Willy Kelly Goya v The State [1987] PNGLR 51. The offender was one of four persons who attacked the deceased while he was walking with some girls. Extreme force was used. The deceased’s abdominal organs were forced into his chest cavity suggesting that he had been stamped upon or hit with extreme force by a rock or feet. The trial judge concluded that at least one of the four attackers had an intention to kill him. It was not known whether the injuries were caused by the offender. Nevertheless, he was convicted of wilful murder. On appeal the Supreme Court noted that the offender was a party to the common unlawful purpose of attacking the deceased and that death resulted. However the Court stated:

Whether or not he should have been convicted of wilful murder will depend on whether the intention to kill was the common purpose which he shared with the others or whether it was a probable consequence of their common purpose. If the purpose which they shared was to attack with the intention merely to cause grievous bodily harm then the appellant should have been convicted of murder even though one of the other assailants formed the intention to go further and to actually kill the deceased. We find no sufficient evidence, which would have justified the trial judge in being satisfied beyond reasonable doubt that the appellant himself formed the intention to kill and that his blows caused death. Nor is there sufficient evidence to show that the group formed a common purpose ... which the appellant shared ... to actually kill the deceased. Nor was the offence of wilful murder a probable consequence of their unlawful common purpose.

The Supreme Court upheld the appeal, quashed the conviction of wilful murder and substituted it with a conviction of murder (and reduced the sentence from life imprisonment to 20 years). Applying the principles in Goya to the present case, I conclude that: there is no evidence that the first co-accused intended to kill Walter Ajimba; there is no evidence that the gang formed a common purpose or intention to kill him; and the offence of wilful murder was not a probable consequence of their unlawful common purpose. Question (4) is answered no. The first co-accused cannot be convicted of wilful murder.

However, as stated above, that does not mean that he escapes criminal liability for the death that occurred. I now consider issue No 7.

HAS IT BEEN PROVEN THAT THE ACCUSED SHOULD BE CONVICTED OF AN ALTERNATIVE OFFENCE UNDER SECTION 539 OF THE CRIMINAL CODE?

As Goya’s case shows, a person who is involved with others in prosecuting an unlawful purpose can be guilty of murder if a death occurs. The first co-accused, Jacky Vutnamur, was an active participant in an armed robbery. A person was killed intentionally by a member or members of the gang. This means due to the combined effect of Sections 8, 300(1)(b) and 539(1) of the Criminal Code that the first co-accused is guilty of murder.

The order of the National Court is that Jacky Vutnamur is convicted of the murder of Walter Ajimba.

Verdict accordingly.
____________________________________________________________

Lawyer for the State : Public Prosecutor
Lawyer for the first co-accused : Public Solicitor
Lawyers for the second co-accused : Paul Paraka Lawyers

National Court of Papua New Guinea

State v Vutnamur (No 1) [2005] PGNC 104; N2848 (8 June 2005)