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State v Buka (No.1) [2016] PGNC 29; N6204 (19 February 2016)

N6204


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR. No.1388 of 2014
CR. No 1389 of 2014


STATE


V


JEFFREY BUKA
(NO.1)
Accused


Tari: Ipang, J
2015: 19, 20, 21, 22 May & 29 September
2016: 19 February


CRIMINAL LAW – Two (2) counts of wilful murder – Section 299 (1) Criminal Code Act, Chapter 262, the accused a policeman was alleged to have shot the first deceased on his head and the second deceased through his stomach


CRIMINAL LAW - Defence raised initial defence of self defence to general denial. The principle issue then became one of 'identification' or as to who actually shot the two (2) deceased persons.


CRIMINAL LAW – Wilful murder - Element of Offence – Death of two (2) deceased persons arose from injuries sustained from gun shots- whether the accused was the person who shot the two (2) persons – whether ballistic evidence is required in given circumstance of this case.


Cases Cited
Pike Dambe v. Augustine Peri & or [1993] PNGLR 4
State v. Ben Wafia (No.1) [2003] PGNC 3; N2579; (3.10.03)
State v. Kapin Popeu [2005] PGNC 45; N5967 (16 March, 2015)
State v. Melchior Ibor [2015] PGNC 39; N2896 (13.04.05)
State v. Robin Warren & ors, (2003) N2417
State v. Wambun [2002] PGNC 64; N2279 (18.11.02)


Counsel


J. Waine, for the State
S. Inisi, for the Accused


DECISION ON VERDICT


19th February, 2016


  1. IPANG, J: This is the decision on verdict for the accused one Jeffery Buka who had pleaded not guilty to two (2) counts of wilful murder contrary to Section 299 (1) of the Criminal Code Act, Chapter 262. On the 19th May, 2015 State had presented an indictment against the accused, charging him on two (2) counts of wilful murder of two (2) deceased persons Albert Naki and Talewa Auwa.

Brief Facts


  1. The accused was arranged on the following facts; the State alleged that the accused, a policeman based in Tari was in company of his colleague policemen patrolling along the Highway along Homa area beside the Airport. That was on the 20th May, 2014. They approached a traffic jam caused by Tari Town Mayor who had parked his vehicle causing obstruction to free flow of traffic. The accused and his colleagues directed the Mayor to remove his vehicle to allow smooth flow of traffic. The Mayor did not co-operate and an argument developed which then led to confrontations. The crowd of people who were there for the funeral feast of Late Sir Matiabe Yuwi became uneasy and the situations got tensed. It was further alleged that when police saw the situation, they fired shots into the air to disperse the crowd. Soon after that, the accused is allege to have fired two (2) shots killing the two (2) deceased, Albert Naki, and Talewa Auwa, hitting one on his head and another on his stomach. State further alleged that the accused intended to cause the death of the two (2) deceased persons.

The Offence


  1. The accused was indicted under s.299 of the Criminal Code. Section 299 reads:

299. Wilful murder


(1) Subject to 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) The State bears the ones to prove beyond reasonable doubt that;

Defense Defence – Issue(s) for Trial


  1. The defense defence was one of self defence then to one of general denial. The issue then becomes one of identification as to who actually shot the two (2) deceased persons.
  2. It is worth mentioning from the outset issues that were to be determined during the cause of the trial. From the Pre Trial Review (PTR) statement filed on the 13th of March, 2015 the Defence filed for a defence of Self Defence. However, during the state's case, the Defence caused a defence of general denial, thus putting everyone in to issue. Obviously the court and the state were not informed about the Defence shift to the Defence of general denial and were caught by surprise. The State took issues with the defence approach in conducting its case and shift from the original defence filed in the Pre Trial Review Statement. I then directed both Counsels to address this issue in their submissions.
  3. Both Counsels have addressed the Court on this issue and I am of the view that I should address this issue first before deciding on the evidence that were before the Court.
  4. First, the fixing of issues for trial proper as contained in the Pre Trial Statement (PTR) is stated in Order 2 – Pre Trial Review of the Criminal Practice Rules 1987 (No. 1 of 1987). In Stave v. Robin Waren & ors Unreported (18.06.03) N2417 Kandakasi, J clearly explained the purpose and effect of Pre Trial Review in the following and I quote:

"Pre-trial is a process in our Criminal Justice System (Order 2 – Criminal Practice Rules 1987) that enables the parties and the Court to settle amongst other issues for trial. This is very critical and important part of our case management process. It is a necessary process when judicial time and resources are very limited and so are the resources and the ability of the law and justice to promptly each and dispose of cases within the dictates of the Constitution, particularly s.37 (14)... Accordingly it is imperative that parties should be held to their representations at the pre-trial with the Court staying guided with what was settled at the pre-trial when conducting a trial". (Underlining mine)


  1. His Honour went further and stated:

"This will bring about certainty in approach and getting cases disposed off within the time periods allocated rather than be faced with adjournment challenges and/or blowing out circuit time and resources. There would off course be cases in, which there will be a need to depart from representations by the parties. In such a case, I am of the view that a party wishing to depart from what was settled should make out of a good and a convincing for it."


  1. Defense did not make any application or any submission that would warrant a departure from the issues or defence of self-defence settled during the Pre Trial Review.
  2. The State conducted the trial on the presumption that the defense was one of self defence as stated or raised during the Pre Trial Review. When the first State witness Hiribi Tandole completed giving evidence it became clear that the issue was not of self defence but the Defence raised the defence of general denial by denying the allegations. When defense shifted its defence from self defence to general denial, it caught the State off-guard. I had to allow State counsel to ask questions apart from the defense of self defence to one of general denial. Such an approach was in my view fair especially when Defence has not made any application to depart from the original defence of self defence to that of general denial.

State's Case


  1. Prior to calling its witnesses, the State tendered the following documentary evidence with consent from the Defense counsel. The following are the documentary evidence.
  2. The State called three (3) witnesses and they are; Hiribi Tandole, Hangu Ruben and Constable Jacob Ten. Hiribi Tandole and Hangu Ruben gave direct eye witness on how the incident took place as both were present at the scene of the alleged crime. The third witness for the State Senior Constable Jacob Ten was called and he gave evidence to verify the different firearms.
  3. Given the serious nature of the charge, instead of giving the summary of the evidence adduced by the State, I will re-state the evidence given by each State witnesses.

Evidence of Hiribi Tandole


  1. This witness says he comes from Keria village in Koroba in Hela Province. He worked with the Nationwide Company. He said he can recall 20th May, 2014 which was on a Tuesday around midday. He was with his Filipino Boss and they drove in their company vehicle to where the gathering was. As they arrived, there was a huge crowd of people. The witness said the Mayor's vehicle was parked in such a way that it blocked the road. The front of the Mayor's vehicle faced towards Tari Hospital.
  2. The witness said just then, the accused Constable John Sengiso plus other five (5) policemen drove in and parked their vehicle facing Homa way. The policemen went and told Mayor of his vehicle parked wrongly. The argument erupted. Mayor was assaulted and blood poured out from his body. The public were alerted of Mayor being assaulted. The crowd who gathered for the funeral of Late Sir Matiabe Yuwi became rowdy. Constable John Sengiso fired a shot towards Pi village. Another policeman with Pump Action shot gun fired towards the Tari Hospital. Witness Hiribi said he does not know the name of this policeman but can identify him if he sees him.
  3. Witness Hiribi said the accused got out of his vehicle and fired shots toward the Tari Airport and former Police Barracks. This witness said the accused fired first shot and shot the deceased from Koroba on the head. Then the accused walked towards where the deceased was lying on the ground. The witness said, the accused used his leg and moved the deceased body. He said when the accused realized that the deceased had died the accused then pointed the gun towards where the witness and others were standing. He said the accused then fired a second shot towards Homa which shot the second deceased between his chest and stomach. The witness said as soon as the deceased was shot, the deceased informed the witness he was shot. So the witness said he gave his cloth rug to the deceased and the deceased placed it on the gun wound.
  4. After the second shot was fired by the accused, the witness said the policeman got on the police vehicle and drove off. The witness said the first deceased died on the spot while the second deceased died on arrival at the hospital.

Evidence of Hangu Ruben


  1. This is the second State witness. He said he is from Homa village, Hela Province. He is unemployed. He said he can recall 20th May, 2014. He said it was on a Tuesday and it was around midday, he was at Late Sir Matiabe Yuwi's pig killing area. He was part of the crowd who gathered there. He was one of the Security Guard for the event, i.e. pig killing for funeral of Late Sir Matiabe Yuwi. At that time, the witness, he saw the police vehicle come to the pig killing area. Constable John Sengiso got off the police vehicle so the crowd gathered. He said as a Security Guard, he tried to stop or control the crowd so he came to where the police vehicle stopped.
  2. He said he saw Constable John Sengiso fire two (2) shots. Crowd tried to disperse so they moved. He said he was afraid. He stood at the back of a Company vehicle. He said the police vehicle was in front. The witness demonstrated the distance from where he stood at the back of the company vehicle and where the police vehicle parked is like from the Defendant's Box where the witness is seated. Estimated at 2.5 meters.
  3. Police brought the Mayor from the pig killing area to the road. The witness said he stood there and watched. He said he saw the accused Jeffery Buka with his firearm on the side of the police vehicle. He said as he watched he saw the accused pointed his gun at the first deceased and shot him dead. He said the accused Jeffery Buka then pointed his gun to where the witness was standing. He said then the accused pointed his gun at the second person and shot him on the stomach. He said after the second deceased person was shot, policeman got in the vehicle and drove off.

Evidence of Senior Constable Jacob Ten


  1. He is a Senior Constable of RPNG Constabulary based in Tari Police Station. He gave evidence on his experience in handling firearms. He was shown two (2) different firearms issued by police and described one (1) to be Galil ACE 22 Assault Rifle, an Israeli made and the other to be a Pump Action shotgun.

Defence Case
Evidence of Jeffery Buka


  1. Defense called only two (2) witnesses namely Jeffery Buka and John Sengiso. Jeffery Buka gave evidence that he is a policecman based in Tari. He however, comes from Kiburu village in the Southern Highlands Province. He said he had been a policeman for four (4) years. He said on the 20th May, 2014 at around 12 midday, Constable John Sengiso, Constable Reti Thomas, Constable Rex Kol and himself drove to Sir Matiabe Yuwi's funeral. He said John Sengiso was their Commander who drove the Police Vehicle Registration ZGP 154 Brown in colour. They drove to where the funeral of Late Sir Matiabe was. As they approached the funeral area, he said they saw lots of people on the road. He estimated the people there to be more than 5,000.
  2. Jeffery Buka told the Court, they saw one (1) person had parked his vehicle and controlled the crowd. He said they drove to where the man was. He said they drove and made a 'U' turn. They saw a policeman in the middle with the Tari Town Mayor and the crowd. Constable Labi approached the Mayor to move his (Mayor's) vehicle to the side of the road. The Mayor had two (2) vehicles, a Dump Truck and a Toyota Land Cruiser 10 seater.
  3. Buka said there were lots of drunkards on the truck. Mayor himself was also drunk and was controlling the vehicles. Constable Labi approached Mayor three (3) times to remove his vehicle. Buka said the Mayor responded by saying "You Arsehole policeman. Me Lida gat rait long blokim rot" (meaning I am the leader and I have the right to block off the road). I am at "funeral service". Mayor then punched Constable Labi on his face when Constable Labi was in full police uniform. Constable Labi felt blood and he exchanged punches with the Mayor. Situation got out of control. He said Police tried to stop Mayor and Constable Labi. He said they (police) struggled with the crowd. Mayor called out and said "Ol pipia polisman paitim me nogat gutpla risen" (Rubbish policeman assaulted me with no good reasons) Mayor called out to the crowd, "Kilim na Katim ol polisman", (Kill and chop up policemen).
  4. Mayor then grabbed the gun which Constable Rati was holding. Both Mayor and Rati struggled in the crowd. He (Buka) said they got the gun back. Constable Rati had a bleeding nose and his police uniform was torn. Mayor held on the police vehicle bull bar. The crowd became aggressive. Police fired warning shots. Constable Rati was accompanied by the Police Station Commander to the Commander's vehicle. Crowd had gone after Constable Labi when he wanted to move to another vehicle. The crowd threw stones and sticks. Another police vehicle was driven by Senior Constable Rati. The Commander's vehicle back screen was smashed. Crowd blocked the road, we (police) fired warning shots and the crowd gave way for us and we drove to the Police Station and briefed the Provincial Police Commander (PPC) to arrest the Mayor.
  5. Jeffery Buka was put through vigorous, very extensive and lengthy cross examination. This is due to the very fact that the Pre Trial Review stated dated 13th March, 2015 filed revealed that the defence will rely on the defence of Self Defence. However, as the State opened its case and as its two (2) witnesses gave evidence, the Defense shifted its defence of self defence to one of general denial. So this has brought about the nature of extensive and lengthy cross examination from the State Prosecutor. I will further discuss the manner of conducting defense case during analysing of the evidence.
  6. In Examination In-Chief the following questions were asked and the following answers were given:

Q. Who was the driver of the vehicle you were on?

A. Constable John Sengiso


Q. Where were you seated?

A. At the back of the driver


Q. How many policemen were in the vehicle?

A. Four (4) of us, Constable John Sengiso, Constable Rati Thomas, Constable Rex Kol and Constable Jeffery Buka.


Q. Any other persons?

A. No


Q. You people carried guns?

A. Yes, John Sengiso with Galil Assault Rifle; Rex Kol with Galil Assault Rifle; Constable Rati Thomas with Pump Action and Jeffery Buka with Pump Action.


Q. How many police vehicle at the scene of the incident?

A. Three (3) Police vehicles (2 other vehicles and one accused was in) Vehicle ZPD 832, Senior Constable Tony Paki (Driver) with Constable Jonathan Lakaiyo. Vehicle Reg. ZGT112, Police Station Commander and Constable Labi.


Q. Any other firearms?

A. Yes, firearms were with Constable Lakaiyo, Senior Constable Tony Paki and PSC.


Q. Which vehicle was at the scene first?

A. PSC's vehicle Reg ZPD 832. Then the one accused was and then the 3rd vehicle was driven by Constable Tony Paki.


Q. When Constable Labi and Mayor fought, what were you doing?

A. I went out of the vehicle, went in to the crowd to stop the fight.


Q. What about other policeman?

A. They also got out of the vehicle to save the policeman's life. I did not see them.


Q. How was the crowd' reaction?

A. They were aggressive and wanted to attack the police.


Q. How did you react?

A. I feared for my life. I fired a shot in the air so that crowd would not come closer to me.


Q. Demonstrate how you fired the shot?

A. Accused pointed into the sky


Q. What were other policemen's reactions?

A. They fired warning shots


Q. You heard number of shots fired?

A. I can't tell, too many shots fired


Q. After you fired first shot, where did you go?

A. Into the vehicle


Q. The other policemen in your vehicle?

A. They came to the vehicle same time.


Q. State witness said you fired two (2) shots directly at the two (2) deceased persons?

A. Only one (1) shot.


  1. The accused basically denied pointing his gun at both deceased persons and shot them dead. He maintained throughout his evidence that he doesn't know the death of the two (2) deceased persons.
  2. Accused said he doesn't know the two (2) State witnesses. He only knew them when they gave evidence in Court. In cross examination, the following questions were put to the accused and the following answers were given;

Q. The two (2) State witness were lying about you firing two (2) shots?

A. Yes


Q. Hiribi Tangole was 2 ½ meters away from where you were, is he lying?

A. Yes


Q. The distance between you and the first was about five (5) metres?

A. Yes


Q. Distance between you and the second victim is 6 metres
A. Yes


Q. Explain how they are lying?

A. I was inside the crowd.


Q. Witnesses were in the crowd, you did not see them?

A. Yes


Q. How did two (2) witnesses come?

A. I don't know


Q. Everybody saw what happened?

A. Yes


Q. Crowd closer to you saw what you did?

A. Yes


Q. After the incident, you and your colleagues were asked to make your statements?

A. Yes


Q. You made your statement on the 20th May, 2014?

A. Yes


Q. You did two (2) pages statement?

A. Yes.


Q. You wrote how many shots you fired?

A. Yes


Q. Is this your statement? (Accused shown the statement)

A. Yes


Q. In page 2, read the paragraph? (Accused read the paragraph)

A. I fired two (2) shots.


Q. You returned the firearm back to Armoury? (ROI Q&A: 21)

A. Yes


Q. You handed the firearm over to Chief Ouve?

A. Yes


ROI: Q & A: 36. How many shots you fired? One warning shot.


Q. Exhibit 'G' conducted first?

A. Yes


Q. Exhibit 'G' conducted when incident was fresh?

A. Yes


Re-Examination


Q. What's your explanation on statement given by Chief Ouve

A. On the 20th May, 2014 incident happened in Tari, media took control regarding the funeral of Late Sir Matiabe Yuwi.


Q. Why Superintendant Ouve led with the gun you handed in?

A. ACP, Commissioner ordered Investigation to investigate the incident. Police gave statements. Chief Ouve gave statement. He (Ouve) said he did not write.


Q. Which took place first? Your Record of Interview (ROI) or statement given as Exhibit 'G'?

A. Exhibit 'G' statement and then the Record of Interview (ROI).


Q. Exhibit 'G' page 2, last paragraph 2 is it correct?

A. Not correct


Q. Why not correct?

A. I gave a signed statement. Now it's not signed


Q. Why you said this was your statement?

A. All particulars are mine.


Q. Why you said statement not yours?

A. Record of interview says one shot


Evidence of Constable John Sengiso


  1. He is the Task Force Commander based at Tari Police Station. He said he can recall 20th May, 2014. On that day he said the Provincial Police Commander (PPC) for Hela Province called him about the funeral of Late Sir Matiabe Yuwi. He was instructed to get his members and patrol around the funeral area. He reported to the Armourer and he was given two (2) Gas guns, two (2) Pump Actions, and two (2) Galil Ace Rifles. As the Commander, he gave Galil Ace Rifles to Rex Kol and he had one to himself. Two (2) Pump Action shotguns; one to Jeffery Buka and one to Thomas Rati; they patrolled Homa area and Tari Airport. As they drove many vehicles blocked the road. He drove on the right side of the road and parked the vehicle. In front, there were two (2) vehicles parked in the middle of the road. He tooted the horn and turned the vehicle. There were many people and vehicles. He tried to turn the vehicle 3 to 4 times and finally parked the vehicle straight close to Mayor's vehicle.
  2. In the middle of the crowd, he saw Constable Labi who was talking with Mayor Ken Arawi. Arawi was drunk. He said he went closer to where Ken Arawi was and Arawi punched Constable Labi. He tore Constable Labi's uniform and said "Who are you Policemen? You arsehole policemen, yupla bai wokim wanem?" (What will you do). Labi saw blood coming out from his (Labi) nose and he punched the mayor. Constable Rati and himself went closer to Labi and the mayor. He told the mayor, you're at fault so remove your vehicle. Mayor tried to grab Rati's gun so both struggled. He stopped them and told Mayor to return Rati's gun. Mayor said blood came from his body and he is the leader. Why you (Rati) give me blood. He (mayor) spoke to the crowd that he is the leader assaulted by police. There were lots of people around 5 -6 thousand. People will make trouble if a leader is assaulted by police. He gave signal to Rati and Labi to withdraw to the vehicle. Mayor provoked the crowd so the crowd followed them. They swung bush knives and threw stones at us.
  3. Sengiso said he got his Rifle as crowd followed them. He looked facing Pii Lodge way and fired two (2) shots up in the air. At the same time other policemen fired shots. Outsiders fired shots so as the policemen. I don't know I was looking the Pii Lodge way. I went and got in the vehicle so as other policemen and we drove off. He said he learnt of the death of the two (2) deceased at the Police Station that police shot the two (2) deceased.

Examination in Chief


Q. State witness told the Court that the accused fired two (2) shots killing the deceased person?
A. I was in the middle of the crowd facing Pii Lodge, I fired two (2) shots, I heard gun shots, I don't know.


Undisputed Facts


33. Both deceased persons were unarmed and caused no provocation. Both deceased persons were innocent by-standers. Accused was armed with a firearm and was present at the scene of the alleged crime. All other policemen present at the crime scene were armed with firearms. Mayor's vehicles blocked the road. There was confrontation and exchange of punches between mayor and Constable Labi.There was crowd gathered for Late Sir Matiabe Yuwi's funeral.


Disputed Facts


34. Was it the accused who shot dead, the two (2) deceased persons?


What type of firearm was in possession and used by the accused at the crime scene? How many gun shots did the accused fired at the crime scene? Did the accused fire any warning shots?


Were the crowd armed with firearm(s), offensive weapons, sticks, stones?
Did the crowd attack the police?


Issues


35. As mentioned at the outset of this decision, the issue as stated in the Pre Trial Review Statement (PTR) was one of self defence later driving the course of the prosecution's case, the defence diverted their defence to that of "general denial" Thus, this raises important issues for this Court to determine:


  1. The issue of identification. Who actually shot the two (2) Deceased persons.
  2. Was it the accused that shot the two (2) or other policeman or the member of the crowd?
  3. Which firearm was the accused in possession of during the confrontation between the crowd and the police?
  4. Is this case ripe for forensic/ballistic expert evidence?

The above are basically the crucial issues central to determine the guilt or innocence of the accused.


Analysis of Evidence


36. The evidence of two (2) state witnesses are crucial. This is almost certainly when the accused denied the allegations that he was holding a Galil Assault Rifle, but he was in possession of a pump action shotgun. Given such denial from the accused, then comes the next question, do we need a forensic/ballistic expert evidence to analyse the type of bullet(s) that penetrated the two (2) deceased persons? Under what type of circumstances do we need forensic/ballistic expert evidence?


37. In State –v- Kapin Popeu [2005] PGNC 45; N5967 (16 March, 2015) His Honour Toliken, J expressed in paragraph 48 for the need for ballistic/ forensic examination to determine whether the bullets entered the deceased body through the chest or through the backside. There was no Post Mortem Report. The Medical Certificate of Death stated the cause of death was from the gunshot wound (chest). In Popeu's Case (Supra) there was a need for a forensic/ballistic expert evidence because the Court was not sure as to where exactly and how the deceased was shot; thus the Court questioned; was the deceased shot by the accused as he was fleeing or during the scuffled with the accused? Which part of the deceased's body did the bullet penetrate, the back or the chest?


38. The Court went further and queered in paragraph 38:


"If the deceased was running away from the accused then the bullet would have hit and entered his body from the back. But if the gun went off during the scuffle as the accused said then the bullet would have entered through his chest. Whose evidence should I believe?"


39. In State –v- Titus Wamben [2002] PGNC 64; N2279 (18 November, 2002), the forensic/ ballistic expert evidence was given by Paul MaFawn who was the Federal Agent from Australian Federal Police. In this case there was no evidence from eye witnesses who were with the accused, the deceased and others as to what actually happened before the deceased fell to the ground. The accused case was therefore based on circumstantial evidence. Accused admitted firing shots in the air but denied he fired shots at the deceased. No direct evidence that the accused fired shots at the deceased. Given the circumstances forensic/ballistic evidence was necessary.


40. I find State v. Melchoir Ibor [2005] PGNC 39 N2896 is as almost similar to the present case. In State v. Melchoir Ibor Sawong, J made this observations:


The accused denied the allegations and therefore everything was in issue. The State was obliged to call all necessary and relevant evidence coming from both eye witnesses and forensic evidence to prove its case beyond any shadow of doubt.


In the present case I have some difficulties with the State's case for a number of reasons. Whilst the eye witnesses say that they saw the accused firing the fatal shot, there are other pieces of evidence that do not support what he saw.


First is that expert witness, Senior Constable Numbos who conducted tests on the firearms alleged to have been used by the accused and test bullet removed from the test firing gave evidence that the test bullet was so badly deformed that he could not compare with the groves or the lands found in the copper metallic fragment found in the body of the deceased. In his written statement, which was tendered as part of State's case he stated that the "test bullet was so badly deformed that the visibility of the lands and groves were almost non recognizable". On the other hand the copper metallic fragment alleged to have been removed from the body of deceased, had visible lands and groves on it. He was therefore not able to make a comparison to determine accurately whether the copper metallic fragment found in the deceased's body came from the gun used by the accused or not. Earlier on in his oral evidence, he said that it was possible that, that could have come from another gun. His findings were inconclusive. The State has not proved beyond any reasonable doubt that, the (bullet) did in fact came from the rifle used the accused at the relevant and material time. (Underlining mine)


I think the State witness standing alone without any scientific evidence from a firearm expert to support those evidence would be quite dangerous, given the circumstances prevailing at the time when the deceased was shot. At the time the deceased was shot there were also many policemen present within the vicinity where the accused was, who were also discharging firearms. There were also other armed policemen firing their guns who were about 300 metres away from the accused was at the time the deceased was shot. Any of these policemen could have shot the deceased. That possibility cannot be discounted


Even if I were to accept the State's eye-witnesses' evidence, the State's own employee, who is a forensic expert on firearms, gave evidence that did not support their evidence. There is no iota of evidence that the bullet fragments found in the deceased's body in fact came from the firearm used by the accused. In fact, this witness's evidence was to the effect that this particular object may well have come from another gun.


The onus was on the State to negative this defence beyond reasonable doubt. Unfortunately, this has not done. There is no evidence from the State that this metallic fragment did in fact come from the firearm used by the accused. It may well have come from other guns that were no doubt used by policemen that day.


41. All these cases cited, the Kapin Popeu's Case, (Supra), Melchoir Ibor's Case (Supra) and Titis Wambun's Case (Supra) all of the circumstances of these cases required the forensic/ballistic expert evidence. In order to consider this we have to look at the circumstances of this Case. The evidence of the first two (2) witnesses are direct eye witness account of what they witnessed at the scene were the alleged crimes were committed.


42. Hiribi Tandole saw the accused go out of the vehicle, fired a shot towards the Tari Airport and former Police Barracks. As the accused fired the shot, the deceased was lying on the ground the accused walked over the deceased and moved the deceased body with his leg. Accused found out that the deceased had died. He pointed the gun to where we were standing. As the accused fired a second shot towards Homa, another victim was shot between chest and stomach. At the same time, the second victim told him he was shot, so the witness gave him a rug cloth to place over the gun wound.


43. The second State witness Hangu Ruben was the Security Guard at the Late Sir Matiabe Yuwi's Pig killing area. He was at the back of a company vehicle and the police vehicle was in front of the company vehicle. Distance estimated from Witness Box to Defendant's Box inside Tari Court House. He saw accused armed with a firearm standing at the side of police vehicle. He saw accused point the gun at the deceased and shot him dead. The accused pointed the gun at where the witness was with others. He pointed at the second deceased and shot on his stomach.


44. Both State witnesses knew the accused and identified him as a policeman in Tari who often sit as off sider to John Sengiso in the Police Vehicle. Both witnesses identified the accused in court by pointing to him. There were no obstacles blocking view from the two (2) witnesses to see what the accused was doing. The time was around 12:00 midday and so it was on a broad daylight that the incident took place.


45. The next issue is, the accused was armed with what type of firearm? The accused said he had a Pump Action shotgun. The other defense witness John Sengiso told the Court when he distributed the firearms to his officers; he gave a Pump Action shotgun. The first State witness Hiribi described the firearm the accused had as "M16 short barrel and said he can identify the firearm if shown to him". The second State witness described the firearm the accused had as, "a shot black gun and said he can identified the firearm when the firearm was shown to the witness on the 20th May, 2014. The witness pointed to the Galil Assault Rifle as the firearm used by the accused.


Inconsistent Statement By The Accused


46. Right after the incident at the Airport, Homa area, the accused and his colleagues drove back to the Police Station and each one of them wrote their statements. The accused statement given on the 20th May, 2014 page 2 of the statement Exhibit 'G' stated that the accused fired two (2) shots. In the Record of Interview (ROI) conducted between the accused on the 11th July, 2014 especially Q&A: 36 "Did you fire any shots from the weapon you were holding, if so, how many shots did you fire? Just one warning shot. Q&A 37 "Which direction did you fire the warning shot? Towards Homa village."


47. During cross – examination the accused said the unwritten statement dated 20th May, 2014 was given first and the Record Of Interview was conducted on the 11th July, 2014. This was almost two (2) months later. In relation to Exhibit 'G' the answers given as two (2) gun shots, the accused said the answer is not correct as he gave a signed statement. This is again contrary to the statement given by Inspector Kenzly Sailas dated 11th July, 2014 that he collected an unsigned statement from Constable Jeffery Buka.


48. During cross - examination, the following questions were put by State's counsel to the accused:


Q. & A: After the incident, you and your colleagues were asked to make statements? Yes


Q & A: These statements were made on the 20th May? Yes


Q & A: You made a statement two? Yes


Q & A: You gave two (2) pages statement? Yes


Q & A: You stated how many shots you fired? Yes


Q & A: Is this your statement? (Accused shown the statement) Yes


Q & A: In page 2, read the paragraph (Accused read the paragraph). Is it true you fired two (2) shots? Yes, I fired two (2) shots.


49. Chief Sergeant Busale Uwa gave a statement dated 23rd June, 2014 almost a month after the shooting incident. He is the OIC Firearm section in Tari Police Station. He gave statement that on the 22nd May, 2014 two (2) days after the shooting incident; he collected firearms and ammunitions from police personals. He collected from the accused;


(i) Constable 13920 Jeffery Buka

Firearm: GALIL ACE 22 SA 5.56mm Rifle.

Amo. (9) x 5.56mm


50. The accused and Constable John Sengiso maintained that the statement by Chief Sergeant Uwa that he collected a Galil Assault Rifle from the accused is not true and that Chief Sgt Uwa is lying. The accused when re-examined by the Defense counsel as to his explanation given by Chief Sergeant Uwa said that since 20th May, 2014 the media took control of the incident in Tari. The Police Commissioner ACP ordered Investigators to investigate the incident. Police personnel gave statement so as Chief Sergeant Uwa. It was the same Chief Sergeant Busale Uwa who filed on 18th July, 2014 affidavit to be one of Bail Guarantors for the accused to be released on bail. It is very difficult to try to comprehend the reason(s) why such a high ranking police officer would lie.


Application of law to the Facts


51. The elements of the offense of wilful murder under Section 299 of the Criminal Code Act are:


Medical Report – Deceased Albert Alua Dated 22.05.14 Exhibit 'A'


52. The Medical Report Stated:


He (Deceased) sustained very serious gunshot wound to his left parietal skull. There was 6cm x 5cm skin damaged wound parietal area of the head. All the skull bone around the site was seriously damaged and brain matter pouring out from that opening. The further examination revealed that all skull bone around the left parietal skull was broken into fragmentation was about 10cm long extending all the way to the base of the forehead and nose. The skin incised and brain matter removed to check for bullet and pallets but there was nothing found. The deceased Albert Naki died from severe head injury due to gunshot wound. The Medical Report revealed he sustained injury from a very close range.


The Medical/ Post Mortem Report-Talewa Auwa dated 22 May, 2014 Exhibit 'B'


53. The medical report stated that there was an entry bullet wound on right outer upper quadrant of the abdomen. It was measuring 25 cm in diameter. The exit wound was on the left side above iliac crest and below 12th rib along the umbilical line. It was measuring 5cm by 5cm. The intra abdominal examination revealed thick clot of blood removed. Some faeces were also removed. The bullet pierced and perforated multiple omeantum, small intestine, colon and large intestine. There was no bullet or cartridge. It was through a gunshot wound. He was shot by a high powered gun from a very close distance. Cause of death – severe blood loss from multiple intra – abdominal organ involvement due to gunshot wound.


54. The Medical Report findings are consistent with the evidence of State's first two (2) witnesses given especially with close distance and types of injuries both of the deceased sustained.


Sketch Map – Scene of Crime Exhibit 'F'


55. This was tendered in to Court as part of State's case (evidence) with no objection from Defence counsel. This Sketch Map was drawn up the Investigation Officer Senior Sergeant Jack Kimala. In Court the State's witnesses especially Hiribi Tandole said at the crime scene, he was like where he was sitting (Witness Box) and Accused was like where he was sitting now in Court. Both counsels estimated to be 2.5 metres. The witness estimated his distance to the first deceased like Witness Box to the two persons sitting at the Back Gallery in Court. Both counsels agreed to be 6 metres. Basically the distances given in Court by the two (2) State witnesses were confirmed during the Crime Scene visit.


56. The two (2) State witnesses clearly identified the accused at the scene of the incident. They saw the accused at the place of the incident on the 20th May, 2014. He dressed in Police Uniform and held a new model M16 gun, black shot gun, the butt of the gun when fired, pulled out and pushed in. Later the witness identified the rifle in Court as Galil Ace Rifle. That was the rifle which Chief Sergeant Uwa collected from the accused. The accused shot first deceased on his head, deceased died instantly. He walked over checked deceased with his leg on his head. Then moved back, fired another shot and hit the second deceased on his stomach. Second deceased died soon after arrival at the Tari Hospital. It was the accused Jeffery Buka who shot the two (2) deceased persons dead.


Was that killing unlawful?


57. The evidence of the two (2) State witnesses were credible, untainted and both withstood very extensive vigorous examination. Both were not shaken but stood to the evidence they gave in Court. There was no warning shots fired by the accused. Accused aimed and pointed the gun at the first deceased and shot him on the head. Then the accused took the aim, pointed the gun at the second deceased and shot the deceased at his stomach and the deceased died upon arrival at Tari Hospital. The shootings and killing of the two (2) deceased persons by the accused is unwarranted and unjustified in the given circumstances. Therefore, the killings amounted to unlawful killings. By the accused pointing his firearm at both deceased and shooting them when both deceased persons were unarmed and without warning shots and on the vital parts of their bodies clearly demonstrated that the accused had intention to kill both deceased. The accused aimed at both deceased persons and shot first through his head and shot second through his stomach, these are vital parts of human body and clearly demonstrated the accused intention to kill both deceased persons. The Court in State v Wanape Warara [1977] PNGLR 458 at pp.460 the court observed:


"the location of the wound in Yena's stomach rather than in his arm or thigh or some other places likely to kill, associated shortly after with stabbing in another equally vital place, the chest, in Yena's case, provides a strong support of the contention that an actual intent to murder Yena, was present in the accused's mind. The nature of the weapon used also support this. I, therefore come to the conclusion that the charge of attempt murder has been made out and I convict the accused on the accused indictment


58. In Police Dambe .v. Augustine Peri & Independent State of Papua New Guinea [1993] PNGLR 4 Amet J (as he then was) sounded this caution on the use of firearm especially by policemen or policewomen during the course of their duty. Thus, Amet J (as he was then) stated:


The police do not have the licence to carelessly, negligently and unjustifiably shoot any person whether he be a suspect or not. The issue of firearms to the police must be under strict conditions of use. Firearms should only be used in extreme situations of danger to life of the police or other person and only after all reasonable and other possible alternatives have been exhausted. In relation to pursuit of suspects or escapees from custody, similar conditions of last resort must be present. Every effort at pursuit must be made; that failing every effort of warning and caution must be given by mouth, and if no heed is paid to that, again, warning shots should be fired above the head in to the air. There is much danger in indiscriminate shooting without adhering to these kind of guidelines for the safety of the innocent. (Underlining mine)


59. Given all the above findings and reasonings, I am satisfied beyond reasonable doubt that the accused Jeffery Buka is guilty of wilful and unlawfully causing the death of the two (2) deceased persons namely Albert Naki and Talewa Auwa.


Verdict: Guilty of two (2) counts of wilful murder contrary to section 299 Criminal Code Act.


Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused

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