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State v Akia [2017] PGNC 388; N7169 (27 July 2017)

N7169

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 300 OF 2014

THE STATE

V

TORRY AKIA

Popondetta: Koeget, AJ
2017: 19^th, 21^st, 26^th, 27^th July

CRIMINAL LAW- Indictable offence – Wilful murder – pursuant to section 299 of the Criminal Code Act – acquittal after a trial.

Counsel:

L. Toke, for the State
E. Yavisa and C. Namono, for the Accused

27^th July, 2017

1. KOEGET AJ: INTRODUCTION: The accused is charged that on the 3^rd of November 2012, at Popondetta in Papua New Guinea wilfully murdered one Joe Suma. The charge is brought pursuant to section 299 (1) (a) of the Criminal Code Act.

FACTS

2. The accused is a serving member of the Royal Papua New Guinea Constabulary and is employed at the Popondetta Police Station in the Northern Province.

3. On the 3^rd of November, 2012 the accused received information that the deceased Joe Suma allegedly committed a serious offence at SBS Compound in Popondetta and is hiding in a house located along Isivi Street in Popondetta town.

4. He called for man power and four policemen namely Reserved Sergeant Brian Tamanabae, Senior Constable David Kanawi, Senior Constable Modu Deboya, Senior Constable Ezekiel Tendepa went to assist him. The policemen were armed with firearms except Senior Constable Ezekiel Tendepa. There is no evidence that the accused carried a firearm. There were two motor vehicles, a white 10 seater and a brown Toyota Hilux (5^th element, a double cab) used by the accused and the other policemen.

5. Those policemen that drove in the white Toyota Land Cruiser, a ten seater were Senior Constable Kanawi, Senior Constable Modu Deboya and Senior Constable Ezekiel Tendepa. The driver of this motor vehicle was Senior Constable Ezekiel Tendepa. In the brown coloured Toyota Hilux were Senior Constable Torry Akia and Reserved Sergeant Brian Tamanabae. The driver was Brian Tamanabae’s son.

6. The two vehicles drove in a convoy to Isivi Street to the house where the suspect, now deceased was hiding and the brown Toyota Hilux (5^th element) parked at the front of the house along Isivi Street whilst the white Toyota Land Cruiser drove to rear of the house and parked.

7. The front door of the house was locked from inside so the accused punched a hole in the fibro wall near the front door, pushed his hand and opened the door from inside the house. The accused armed with a Galil Ace 23 rifle forced the deceased out of the house and it is alleged he fired several shots from the rifle he carried. The shots inflicted severe injuries on the deceased’s legs.

8. The deceased laid unconscious and later was taken to Popondetta General Hospital. He was admitted to the hospital and three days later died. The State alleged the accused had intention to cause death of the deceased.

9. So a trial was conducted to determine the allegations. At the commencement of the trial, State tendered by consent the following documents:

Document Evidence for the State

(1) Record of Interview between the accused and the investigating officer dated 14^th November 2013 – marked Exhibit “1A” – Pidgin version.

Exhibit “1B” – English translation.

(2) Medical Certificate of death dated 15^th November 2012 - marked as “Exhibit 2”.

(3) Post Mortem Report by Dr Niure Badia dated 15^th November 2012, marked as “Exhibit 3”.

(4) Ballistic Expert’s report – Joseph Numbos dated.......... “Exhibit 4”.
(5) Photographs of Crime Scene –

Doc # 1 – “Exhibit 5A”

Doc # 2 – “Exhibit 5B”

Doc # 3 – “Exhibit 5C”

Doc # 4 – “Exhibit 5D”

Doc # 5 – “Exhibit 5E”

Doc # 6 – “Exhibit 5F”

Doc # 7 – “Exhibit 5G”

Doc # 8 – “Exhibit 5H”

Doc # 9 – “Exhibit 5I”

Doc # 10 – “Exhibit 5J”

Doc # 11 – “Exhibit 5K”

(6) Statement of Inspector Charles Winean (the investigator) dated 16^th November 2013 – “Exhibit 6”.

(7) Statement of Mugua Kend the corroborator dated 15^th November 2013 is marked as “Exhibit 7”.

Oral evidence for the State

Witness 1 – Adrian Koura

10. This witness stated that he is from Kokoda District and is married and lives with wife and two children in their house located along Isivi Street, in Popondetta town. He has lived in that house for 15 years to date.

11. On the night of the 3^rd of November 2013, between 7 o’clock and 8 o’clock at night he was with his family outside of their house. He saw 2 motor vehicles drove along Isivi Street and one went down to the end of the street and parked. This was the 10 seater, Toyota Land Cruiser, white in colour.

12. The brown coloured Hilux Toyota 5^th Element drove and parked in front of the neighbour’s house. The area was in total darkness and when the door of the Hilux opened, he saw a policeman come outside. The policemen surrounded the house and took positions. The witness saw a policeman knock on the door of the neighbour’s house and there was no response.

13. The policeman banged the front door of the house and opened it. The policeman went into the house and few seconds, someone was dragged from inside of the house. The person was dragged to the front of the motor vehicle parked as its head lights were switched on. This vehicle was parked in front of the neighbour’s house.

14. The witness did not identify the policemen at the scene except Brian Tamanabae, a popular policeman in Oro Province. He wore white “T” shirt.

15. A few seconds after that person was dragged out of the house, he heard number of shots fired. The witness heard someone said “Aio mama, aio mama.”

16. The policemen lifted a person and put him in the tray of the Toyota Hilux, 5^th Element and drove away. As they drove away, more shots were fired. He watched all these from a distance of 30-40 metres away from his house.

17. It was dark so he did not see how many policemen were present at the scene and did not see how many went into the neighbour’s house when the front door was opened.

Witness 2 – Brian Tamanabae

18. He is a Reserved Police Sergeant attached to the Popondetta Police station. He owns and operates a security service in Popondetta.

19. On Saturday 3^rd of November, 2013 between 7 o’clock and 8 o’clock at night he was in his house when he received phone call from the commander requesting assistance to arrest a suspect.

20. So he drove the Toyota Double Cab, 5^th Element brown in colour to the Second Police Barracks were rest of the members were waiting for the commander. They had a short briefing and were told a suspect was hiding in a house along Isivi Street.

21. He was the driver of the Toyota Hilux and Senior Constable Ezekiel Tendepa drove the 10 seater. They drove the vehicles to Isivi Street and surrounded a house belonging to someone where the suspect was hiding. The house was in total darkness.

22. He stated: “I drove the Toyota Hilux brown in colour, and parked it along side of the house with head lights switched on as it was dark. The white 10 seater was parked at rear of the house shining light to the house.”

23. The policemen came out conned the house as it was dark. He was at the front of the house with the accused and the others were at the back of the house. He saw Senior Constable Torry Akia enter the house and apprehended the suspect and both came out through the front door. The suspect walked first followed by Senior Constable Akia, then four shots were fired.

24. He saw the suspect attempted to run away then heard four (4) shots fired from direction of Senior Constable Torry Akia. There were other shots fired by other policemen at the scene.

25. He walked with other policemen to where the accused was with the suspect, saw the suspect was bleeding so reversed the vehicle loaded the suspect to the Toyota Hilux (5^th Element) and drove to Popondetta General Hospital.

26. He carried a Pistol and did not fire shots at the crime scene. The first 4 shots were fired by Senior Constable Torry Akia.

27. In Examination in chief the witness stated:

“I did not see Senior Constable Torry Akia press trigger of the firearm he carried. I did not see who shot the suspect but the barrel of the firearm which Torry Akia carried pointed towards the suspect who was in front of him.”

28. In Cross-Examination the following question was asked:

You saw the barrel of the rifle carried by Torry Akia point to the suspect so you thought he fired the suspect?

Ans: I saw the barrel point to the suspect then heard the shots. There were no policemen only Torry Akia.”

Witness 3 – Modu Deboya

29. He is a policeman attached to Popondetta Police station. On the night of 3^rd November, 2012 between 7 o’clock and 8 o’clock he accompanied Senior Constable Daniel Kanawi and Senior Constable Ezekiel Tendepa in a White Toyota Land Cruiser 10 seater to a house located at Isivi Street. The 10 seater was driven by Senior Constable Ezekiel Tendepa. They drove to the rear of a house, parked the vehicle, came out and stood beside the vehicle with Constable Daniel Kanawi keeping a watch.

30. A Toyota Hilux 5^th Element driven by Brian Tamanabae’s son (a civilian) parked at front of the same house.

31. They heard shots and went to the front and saw a person wounded and he was bleeding. So they help to put him into the Hilux then drove to the Popondetta General Hospital where they left the injured person. They return to their respective houses.

Witness 4 – Daniel Kanawi

32. His evidence is similar to Modu Deboya’s evidence.

Inconsistencies in the Oral Evidence of State witnesses

1. Adrian Koura – a Civilian Witness
   

The Toyota Land Cruiser 10 seater, white in colour drove to the end of the street (Isivi) and parked there. The brown coloured Toyota Hilux drove and parked in front of the neighbour’s house.

But witnesses Brian Tamanabae, Modu Deboya and Daniel Kanawi stated that the Toyota Land Cruiser, white in colour, 10 seater drove to rear of the house and parked there.

2. Brian Tamanabae
   

“I drove the Toyota Hilux, brown in colour and parked it along side of the house with head lights switched on as it was dark.”

“I saw the suspect was bleeding so reversed the vehicle“and loaded the suspect and drove to Popondetta General Hospital.”

But, witnesses Modu Deboya, Senior Constable Daniel Kanawi, Senior Constable Torry Akia stated the Toyota Hilux Double Cab, brown in colour, was driven by Brian Tamanabae’s son, a civilian.

33. So Brian Tamanabae concealed the fact that his motor vehicle was driven by his son. He was a passenger that night. He lied on oath and came prepared to conceal the truth.

34. The State witness Brian Tamanabae in examination-in-chief stated that he saw 4 shots fired from the direction of Senior Constable Torry Akia. The four shots were fired by Senior Constable Torry Akia.

35. However, in Cross–Examination he stated:

“I did not see Senior Constable Torry Akia press the trigger of the fire arm he carried. I did not see who shot the suspect but the barrel of the firearm which Torry Akia carried pointed towards the suspect who was in front.”

36. This evidence shows that he can change, his evidence any moment and at any time.

Analysis of the State’s evidence in the trial

37. The Toyota Land Cruiser, 10 seater white in colour drove and parked at the end of the street and not at the rear of the house at Isivi street.

38. I accept the evidence of State witness Adrian Koura as he is an independent witness and is witness of truth.

1. All policemen took position –
   

39. The policemen went to apprehend a suspect who was a known criminal so they took position when Constable Torry Akia entered the house. They all participated when the deceased was led outside of the house and not stand outside the motor vehicle and watched.

Evidence of Tamanabae

40. The State witness Brian Tamanabae deliberately concealed the truth, and lied on oath when he did not state his son was the driver of the Toyota Hilux 5^th Element.

41. He lied on oath when he stated that he drove the Toyota Hilux 5^th Element to the crime scene and then to the hospital.

42. The evidence of other State witnesses contradicts the evidence of Brian Tamanabae and so very serious doubt is casted on the reliability of his evidence.

43. His evidence changes persistently within minutes so it is unreliable to follow and accept. This witness’s evidence is unreliable so no weight is attached to it by the court. The oral evidence by Brian Tamanabae relating to the shooting of the suspect by the accused is unreliable.

44. The State witnesses are also suspects because they were with the accused conducting an arrest of a known criminal and the accused stated when he went into the house, he called out for cover. So in normal police operations the policemen outside took position and were ready to shoot with their firearms should there be any confrontation between the accused and the deceased inside the house or should the accused attempt to escape from the house.

45. The suspect sustained injuries to his legs after being led out of the house by the accused to the front of the house. He followed the suspect from behind so someone outside shot the deceased in the leg as he was led outside by the accused.

46. The State witnesses evidence in the trial are unreliable and are therefore, rejected. The only evidence the State rely on is the record of interview, that contains admissions.

47. The record of interview between the accused and the police is dated 14^th November, 2013.

48. The accused in his oral evidence stated that soon after death of the suspect, they submitted their respective statements to the superior officers for purposes of police internal investigation as to the circumstances leading to the death of the deceased.

49. As far as he was concerned that was end of the matter because he did not shoot the deceased outside the house at Isivi Street. This is what he stated in his prior statement.

50. He was shocked and surprised to learn that he was investigated for the shooting of the suspect at Isivi Street on the night of 3^rd of November 2012. His colleagues conspired with other policemen to charge him alone.

51. He participated in the ROI and answered the questions asked but refused to sign the interview.

52. The accused had given explanations in the statement he gave to Senior Constable Simon Tingkeo soon after death of the deceased. In the questions in the record of interview, the police investigator did not refer accused to his prior statement. The prior statement was not produced in the trial because it was misplaced by police.

53. So the record of interview is the second statement obtained by the police from the accused. The second statement (i.e, record of interview) contain admissions which the accused refused to sign.

54. The other State witnesses conceal that they made prior statement about the incident and deliver them to the superior officers.

55. The record of interview was admitted as part of the evidence for the State. There is no reference to the prior statement by the police investigating officers in the record of interview and the record of interview is unsigned. So what weight should the Court attach to the unsigned record of interview. In this case, the court attaches no weight to the unsigned record of interview.

56. The accused denied shooting the deceased and such denial was contained in the prior statement delivered soon after death of the deceased. It is very serious when evidence are destroyed by police as in this case, particularly when persons are charged with very serious criminal offence carrying maximum sentence of death.

57. The only evidence the Court now relies on is the evidence of the accused alone in the trial.

Verdict

58. The accused admitted going into the house and led the deceased outside but did not fire shots at the deceased. The deceased walked ahead and he followed when both came outside of the house. The deceased walked normal.

59. So the court accepts the accused’s evidence that he did not fire shots nor injured the deceased by firing shots at the deceased’s legs. Someone fired the shots at the deceased’s legs and injured him as he was led outside by the accused. That person was not identified.

60. Therefore, the accused is found not guilty on the charge of Wilful Murder and is acquitted forthwith.

ORDER

61. The bail of K1, 600.00 is ordered to be refunded to the accused forthwith.
___________________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Accused