N7463

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 832 & 833 OF 2017

THE STATE

V

KASI PURING

Kimbe: Miviri AJ
2018	   : 11th September

CRIMINAL LAW – PRACTICE AND PROCEDURE – Armed as to cause fear S70 CCA – Assault occasioning bodily Harm S340 CCA – Trial – No case submission – primae facie – Question of Law not fact – Balance of probabilities –Case to answer.
Facts
Accused was a policeman who went armed with a pistol to the victim. He discharged the pistol at the victim’s foot and also assaulted him.

Held
Primae facie
Question of Law not fact
Case to Answer.

Cases: 
State v Paul Kundi Rape [1976] PNGLR 96 
Pep; Re Reservation of Points of Law under section 21 Supreme Courts Act (Ch.37), 
The State v [1983] PNGLR 287 

Counsel:

D, Kuvi, for the State
J, Woiwoi, for the Defendant
		
RULING ON NO CASE
11th September, 2018 
1.	MIVIRI AJ: Kasi Puring of Wampun, Markham, Morobe Province is charged that he on the 13th February 2016 at Morokea VOP here in Kimbe without lawful occasion went armed in a public place in such a manner to cause terror to one Vitalis Lakoya. 

2.	He is further charged that on the same day at the same place at the same time he unlawfully assaulted Vitalis Lakoya.

Charge

3.	The first charge is contrary to s70 Going Armed so as to cause fear, under the Criminal Code Act prescribing a maximum penalty of two years. The second charge is that under section 340 “Assaults occasioning Bodily harm,” also of the Criminal Code Act. It carries the maximum penalty of three years imprisonment.

No case Submission

4.	At the closure of the State case the defence has made a no case submission relying on State v Paul Kundi Rape [1976] PNGLR 96 and also Pep; Re Reservation of Points of Law under section 21 Supreme Courts Act (Ch.37), The State v [1983] PNGLR 287 (14 September 1983) contending that the Judge has a discretion to stop the case because prima facie there is lack of evidence that accused was acting unlawfully. He was carrying out his duties as a policeman and was not breaching law. Further when the pistol was discharged it was because Vitalis Lakoya had resisted arrest and tore the shirt of the accused at that time. He was therefore justified to discharge the firearm as he did. There was no testing of the spent shell to match with the gun discharged at scene which was in the possession of the accused. There was no fingerprint to link the wine bottle with the accused at the scene. There was no occurrence book entry produced nor a firearms register produced that indeed the accused was issued the subject firearm in question leading to the spent shell. State evidence is lacking and accused cannot be called to answer. Section 141 “Protection of members of the Force” of the Police Act accused was acting in obedience to an order of the court. And therefore is not accountable for what has allegedly transpired.

       State Reply

5.	State counsel has invited the court to consider on the basis of the tendered Exhibits of the State that there is a case to answer on both charges against the accused. It is a question of law not fact at this stage. Credibility believing one witness from the other is not the status at this juncture of the proceedings.

Evidence

6.	The State evidence tendered by consent comprise, 

(i)	Exhibit S1 (a) Pidgin original record of interview of Kasi Puring dated the 17th February 2017. Accused admits going to the house of Vitalis Lakoya and picking him up but not assaulting him. And that he was armed with a rifle at that time. He elects to remain silent when put on the discharge of the gun and production of the empty shell Exhibit S8.

(ii)	Exhibit S1 (b) English translation of that record of interview.

(iii)	Exhibit S2 (a) Affidavit of Orovu Sere Senior Service Emergency Registrar of the Port Moresby General Hospital. This is a medical affidavit deposing that the victim Vitalis Lakoya suffered multiple injuries to his facial head hands and knee as a result of police brutality at Kimbe West New Britain Province.

(iv)	Exhibit S2 (b) Medical Report of Vitalis Lakoya dated the 1st March 2016 under hand of Doctor Orovu Sere MBBS Senior Service Emergency Registrar Port Moresby General Hospital Confirms these injuries and evaluating that they were assessed to be caused by severe Police brutality to be dealt with as grievous bodily harm.

(v)	Exhibit S3 is Statement of Flora Lakoya wife of the victim Vitalis Lakoya dated the 23rd February 2016 confirms that persons in a vehicle came to their premises and asked for her husband by his name. She did not know they were policemen until they said they were going to arrest him because they were not in uniform. One of them got hold of him and discharged the pistol that he took out from under his jacket. She thought that he had already shot Vitalis Lakoya her husband and was in fear for him and called out to him to cooperate. Two daughters Paskalin and Lusian also came and witnessed what they did to their father. She was very frightened of what they did to their father.

(vi)	Exhibit S4 is statement of Paskaline Blasius her evidence is similar to her mother. These were new faces and not wearing police uniform. She saw what they did to her father Vitalis Lakoya together with her mother. That one of this man came and held her father’s hand and he removed his hand and asked him why he was holding him. And he reached inside his jacket pulled out a gun and pointed it at the foot of her father and discharged it. She thought that her father was already shot by this man.  He appeared very drunk and his eyes were blood shot. They put their father on the vehicle and assaulted him. And this policeman fired the gun twice into the air again. And when they wanted to follow one of the other policeman with the big gun fired into the air and said if we came close he would shoot us.

(vii)	Exhibit S5 Statement of Alphonse Kolokolo dated the 23rd February 2016 he was with his wife, daughter of the Vitalis Lakoya at the house when all happened before him and his evidence is similar in material particulars with that of Paskaline Blasius. He confirms that they were not able to see if these were policemen or not as they were not in uniform nor did they identified themselves. And he confirms the discharge of the firearms at that area. And the threat as set out by Paskaline Blasius after the firearm was discharged from the vehicle.

(viii)	Exhibit S6 statement of Arresting officer Alexander Isouve is the investigator who was handed a spent bullet casing together with wine bottle by the witnesses which they retrieved from the scene and handed to him for safe keeping. They were allegedly of the guns discharged at the scene and bottle that was thrown out by one of the policeman out of the vehicle there. He also conducted the record of interview with the accused in pidgin and translated into English set out above.

(ix)	Exhibit S7 is that empty wine bottle that is set out by Alexander Isouve’s evidence supra.

(x)	Exhibit S8 is the shell casing of a bullet retrieved by the witnesses at the scene of the shooting allegedly by the policeman who went there and given to the arresting officer Alexander Isouve.

Tale of evidence

7.	After closure of the State case these evidence established prima facie that the Accused came to Morokea on the 13th February 2016 at 6.00pm accompanied by others in a vehicle armed with a pistol and a rifle.  

8.	He confronted and laid hands upon Vitalis Lakoya who removed his hands and the accused discharged a pistol into the foot of Vitalis Lakoya who avoided but then was assaulted and taken to the vehicle. And when his wife Flora Lakoya, daughter Paskaline Blasius and son in law Alphonse Kolokolo tried to follow the vehicle because the victim and father was taken away, the rifle was discharged into the air and they were told that if they came again they would be shot.

9.	Vitalis Lakoya was taken to the police Station and assaulted. He suffered multiple injuries to his face, head, hands and knee as a result and was seen by Doctor Oruvu Sere who viewed that these injuries were assessed to be caused by severe Police brutality to be dealt with as grievous bodily harm.

10.	Prima facie the accused was identified not in police uniform or in police marked vehicle with a pistol and another had a rifle both of whom were discharged at Morokea a public area. And that Vitalis Lakoya the victim was assaulted and a medical report confirmed that independently.

Ruling

11.	On the basis of these evidence I adjudge that the accused can be lawfully convicted of the allegation that he went armed in a public place Morokea Village Oil Palm so as to cause fear in particular that he was armed in the presence of Vitalis Lakoya so as to cause him fear. The gun a pistol was discharged and did not only cause him fear but that he was assaulted and suffered as a result evidenced primae facie by the medical report and affidavit of Doctor Orovu Sere. A second gun was also discharged and the accused was part of that group who were together he was the Non Commissioned officer in charge of that unit which was not acting in the course of police duties because he was not in police uniform nor was the vehicle a police marked vehicle, nor where the others who were with him in police uniform to so identify. The witnesses saw them as new faces to the area and thought they were enemies. The force used in the discharge of the weapon was not reasonable prima facie and therefore fitting of Sections 70 and 340 of the Criminal Code because Vitalis Lakoya’s injuries at the hands of the accused and those who were with him are confirmed independently.

12.	The no case submission of the accused is rejected.

13.	He has a case to answer prima facie on both charges of section 70 Going Armed so as to cause fear, of the Criminal Code Act and also of 340 “Assaults occasioning Bodily harm.”

Orders Accordingly.
__________________________________________________________________Public Prosecutor:  Lawyer for the State	
Emam Lawyers:  Lawyer for the Defendant