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State v Luckie Junior [2019] PGNC 91; N7808 (24 April 2019)

N7808

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR No. 1127 OF 2017


THE STATE


V


ALBERT LUCKIE JUNIOR


Kimbe: Miviri J
2019: 18th March 05th April


CRIMINAL LAW – PRACTICE AND PROCEDURE – Attempted Murder S304 CCA – Trial –Accused at scene of shooting– armed with a pistol – Whether accused fired into air or at victim – injury left shoulder front & back – whether gun shot or not – intent to kill – which version is credible State or defence– scaring away – whether analogous to intent to kill –or intent to cause GBH – Serious life threatening injury – not beyond doubt intent to kill – guilty of intent to cause grievous bodily harm.

Facts
Accused was armed with his licenced Glock semi-automatic pistol discharged at the victim Shedrick Kamara injurying him in the shoulders from which he woke up at the hospital.


Held
Accused at scene of shooting
Armed with a pistol
Discharged at victim
Injured
With intent to cause Grievous Bodily Harm


Cases:
R v Bawai Pesoi [1965- 1966] PNGLR 210
State v Kitawal [2007] PGSC 44; SC927
The State v Jaminan [1983] PGSC 12; [1983] PNGLR 318
The State v Pah [1985] PNGLR 188
The State Paulus v Pawa [1981] PNGLR 498
The State v Tapa, [1978] PNGLR 134


Counsel:


E Kave, for the State
J Waiwai, for the Defendant

VERDICT
24th April, 2019


  1. MIVIRI, J: This is the Verdict after trial of the Accused Albert Lukie Junior of Baai charged with Attempted Murder contrary to Section 304 of the Criminal Code Act.
  2. The State has also charged in the alternative that the Accused intended to cause grievous bodily harm upon the Complainant and did cause Grievous Bodily Harm pursuant to Section 315 (b) (d). And still further he caused Grievous Bodily Harm upon Shedrick Kamara contrary to Section 319 of the Code. This would be in order by section 542 Charge involving specific result, that is the Accused charged as he is maybe convicted of any offence which is established by the evidence and of which the unlawful causing of that result is an element: R v Bawai Pesoi [1965- 1966] PNGLR 210. In other words if intent is not established on the principle charge but there is evidence in the alternative conviction will be entered accordingly.
  3. Primarily the State must discharge beyond all reasonable doubt that Accused intended to kill the victim and did put into execution that intent. The injuries sustained by the victim are the completion of that intent.

Short Facts


  1. The allegation is that on the 23rd day of June, 2017 at Aling, Kimbe, he shot and wounded one Shedrick Kamara with a pistol Glock 9mm serial number NUP 772. The injury was on the left shoulder front and back of the victim who woke up in the hospital bed of Kimbe General Hospital. He intended to kill the victim.

Evidence by Consent


  1. The following evidence were tendered by consent by the State in its case against and were marked as exhibits :-

Tale of Evidence admitted


  1. By this evidence it is undisputed and has been established beyond all reasonable doubt that on Friday 23rd June, 2017 around 8.00 pm to 10.00 pm the Accused Albert Lukie Junior was armed with a licenced firearm Glock 9 mm pistol serial number NUP 772 when he confronted Shedrick Kamara at his residence at Aling. And he fired shots three times and the fourth time on the road to scare Shedrick Kamara. Shedrick Kamara escaped by crawling under the house of the Accused out the other side and running up to his house where he collapsed as a result of the injury and was revived at the Kimbe General Hospital.
  2. It is undisputed and established beyond all reasonable doubt that Shedrick Kamara was injured in the left shoulder on both sides of the shoulder front and the rear. And he was admitted to the Kimbe General hospital where he recovered after treatment.

Dispute


  1. The dispute in the case arises on two fronts. Firstly Accused says he fired he licenced firearm Glock 9 mm pistol serial number NUP 772 four times on that occasion but not at the Complainant Shedrick Kamara but into the air to scare him away from his house.
  2. On the other hand the Complainant says the Accused fired twice into the air, the third he shot him through the left side of his shoulder where the bullet went through the shoulder and out the back. He passed out and regained consciousness at the hospital.

Issue


  1. The issue for my determination is whether or not Shedrick Kamara was shot with a gun to the left side of his shoulder. It is necessary to carefully analyse the veracity of the evidence one from the other. Principally which version is the more credible of the two competing versions and therefore aligned to the truth. I start with the State evidence.

State evidence


  1. The Complainant Shedrick Kamara gave evidence on oath in pidgin that on the 23rd June, 2017, a weekend Friday between 8.00 pm and 9.00 pm he was at home when a friend Triwes Rapidik told him to go and tell Faith the daughter of Albert Lukie who was his girlfriend. Which he did at 10’ o clock when he went across to the house of Albert Lukie Junior located on the opposite side of the road at Aling. He went to the door outside and called out to Faith to come to hear what he had to say. He called out many times but there was no response. Younger daughter of Albert Lukie texted the father informing. Who came and stopped the vehicle outside and came behind the Complainant and stood 12 meters away. I recognized him as I lived there for 10 years, I knew him and he knew my family we knew each other. He did not call out to me but opened fire twice. When I heard I turned and faced him, third shot he aimed and shot me on my left side. I fell to the ground and my hand was numb. Blood was flowing and I crawled under the house a low post house. I looked out from under there and saw their legs only. There were around four or five people that came and saw him. They were busy searching on other side and I came out of the other side and ran up to the house. There I heard another shot that was the last on the road. I went and fell on the hand of Kemran Tapidiks hand I do not know what happened next. We had just begun to drink and I had completed 3 bottles when I went down. There was no light on Albert Lukie Juniors house but there was light from sawmill from PDC and Nivani that was shining to the window of the house where I stood.
  2. When I woke up I was in hospital and I saw the drip and recall that Junior shot me. I was in the hospital for three days discharged and then went back again to the hospital for review.
  3. In cross examination Complainant agreed that he was drinking and it was 10 0 clock when he went to the house of Albert Lukie Junior. And conceded that was inappropriate time to go especially when he had daughters. Their houses were located on either side of the road. He acknowledged that he knew the Accused Albert Lukie Junior very well. That he was working for Francis Marus, a candidate for the elections. It was a very sensitive time. But he maintained his evidence that two shots were fired into the air and the third was at him injuring him in the shoulder. The fourth was discharged on the road.
  4. It was not challenged with vigour nor was it set that he was so drunk and intoxicated that his vision was impaired so that what he observed was impaired and could not be relied upon. The issue is not of identification as accused places himself at the scene of the shooting. It is the direction of the shooting that is in issue because accused does not deny shooting four times as contended by this witness. The firing of the gun is prompted by the presence of the Complainant. And according to the Accused, it was intended to scare off the Complainant not to wound him.

Defence case


  1. Accused gave evidence on oath that on the 23rd June, 2017 at night at about 10.00pm he was texted twice and then called by his daughter Faith that there was a man outside who wanted her to come out and to see him. He went to his house a 3 minute drive from where he was in Kimbe. Arriving he parked on the road leading into Kimbe lodge, got out of the vehicle and went on foot holding his Glock 9 mm pistol. He saw a figure in the door way and fired twice into the air. The person turned and ran around the back so he fired again into the air. This person then went underneath the house and crawled to the other side and escaped up the mountain.
  2. The Second Witness for the defence was one Jackson Koni who was with the Accused and saw him fire into the air. He never fired directly at the Complainant. This witness said that Complainant was illuminated by a solar light in front of the door and they saw him.

Assessment of evidence


  1. A fundamental feature that stands out from the evidence of this witness and the Accused is the fact that in the record of interview there is no mention at all of the fact that Complainant may have been injured from iron and other material in particular pointed or sharp under the house of the accused when he crawled there in his haste to escape from the Accused and accomplices. Both witnesses stressed this point in their evidence showing the height by reference to their knees stating that the height of the house from the ground up was such that a person of the size of the Complainant would have been hurt in his attempt to crawl under there to the other side and to escape up the hill. And that is what happened his injury resulted from that fact and not from the discharge of the pistol by the Accused. The accused was adamant that the injury was from there not his gun. He even went to describe injury from there as opposed to a gun. Though he was not a medical person himself nor was he qualified in that field to give this evidence. In this way he no doubt realized the importance of that injury to point it away that he had caused it with a gun.
  2. This is a very important point that was never given to the record of interview conducted 4th of July, 2017 because that would be one week, three days from the date of the allegation 23rd June, 2017. By common sense it ought to have been stated out in the 55 Questions and answers record of interview but there is no material reference at all to this very important evidence. The effect is that it made accused evidence incredible and not worthy of belief. Its veracity did not stand to the same level with the state witness.
  3. Accused has a right to lead his defence as he sees fit he is not obligated to prove his innocence. The burden is always upon the prosecution. Credibility denotes that there must be corroboration and consistency in his defence. He is a former reserve police man, a person who has some basic training in the use of guns in particular .38 and pump action shotgun. He has no training evidence in the use of the 9mm Glock pistol serial number NUP 772. And has placed no material in corroboration that Complainant was injured by sharp materials under the house as he attempted to escape from him. Similarly there is no medical report admitted into evidence that Complainant was injured as a result of a gunshot wound. His injuries arise after he is confronted by the Accused. And the Accused was motivated because he was texted and called by his daughter Faith that there was a man outside who wanted her to come out and to see him. Further Complainant knows the Accused who shot him the third time. And Accused admits he discharged the gun four times purposely against the Complainant.
  4. There is untruthfulness in the evidence of the Accused because he has no consistency and corroboration in his evidence as pointed out above. This untruth is supported by his witness Jackson Koni who by his evidence was initially charged with the matter as an accomplice but the charge was withdrawn. His guilt and innocence has not been determined in law. Any evidence he gives is suspect as he is an accomplice and there must be corroboration of his evidence. He accompanied the accused in the pursuit of the complainant and therefore could have been charged as aiding abetting the offence: Tapa, The State v [1978] PNGLR 134 (10 May 1978). If at all this is a deliberate lie that has been told out of a conscious sense of guilt and would amount to corroboration of the account given by the complainant: Jaminan v The State [1983] PGSC 12; [1983] PNGLR 318 (29 September 1983). This is what it is because there is deliberate calculated intent to paint that the complainant was injured as a result of the haste to escape crawling underneath the almost knee high house of the accused. Not by the discharge of the gun yet it was purposely discharged with the intent to scare the complainant away from his premises. Given these the preferred version more credible is that by the State witness and not the defence. I accept that evidence and make the following findings of fact.

Findings of Fact


  1. There is no other reasonable hypothesis open on the evidence other than the guilt of the accused: Paulus Pawa v The State [1981] PNGLR 498. And the following findings of facts can be made pursuant and which I so find, that the accused was armed with his 9mm Glock pistol serial number NUP 772 purposely to scare away the person who was on his premises as alerted to him by his daughter Faith.
  2. And he did that by discharging that weapon two times initially into the air. The third time he shot the complainant Shedrick Kamara on his left side through his shoulder through to the other side exiting evidenced by the evidence of this witness and the photographs that were taken. The fourth shot was discharged into the air when the complainant exited out from crawling under the house of the accused up to his own house where he collapsed as a result of the injury.
  3. I find as a fact that the injury on the left side of Shedrick Kamara emanates from the third shot that was emitted from the 9mm Glock pistol serial number NUP 772 fired by the accused at the complainant. Both complainant and accused were 12 meters apart of each other in light from PDC and Nivani premises and therefore was clear view for the complainant to make out what he saw. There is clearly intent to fire the weapon at the complainant and sustains with the injury. The injury is located in a vital part of the body where vital organs such as the heart and lung are located and could have easily being injured as a result. By itself 9mm Glock pistol serial number NUP 772 is a deadly weapon and could have easily killed the complainant. The injury is grievous as it threatened the life and limb of the complainant he passed out and came to in the hospital.
  4. The intent of the accused is not expressed and therefore can be deduced from his overt actions what he did leading to the discharge of the gun: Kitawal v State [2007] PGSC 44; SC927 (22 February 2007). Here he wanted to scare off the complainant but shot him. In my view that is not the same as intending to kill the complainant. It would be safe to hold that he was criminally negligent in the discharge of the 9mm Glock pistol because the complainant was an unarmed person not putting up or threatening his life or limb or that of his daughters and immediate family. The firing of the gun twice into the air was in order but the direct aiming and firing at the complainant was life threatening and did cause grievous bodily harm because of the reasons set out above. From these facts it could be inferred that he intended to cause grievous bodily harm.
  5. I am not satisfied that he intended to kill the Complainant within Section 304 of the Code. But I am satisfied beyond all reasonable doubt on the evidence set out above that there was intent to Cause Grievous Bodily Harm pursuant to Section 315 (b) (d). I distinguish the case of The State v Pah, [1985] PGSC 15; [1985] PNGLR 188 (28 June 1985) because here the Indictment pleads in the alternative and by reference to Section 542 would be in order to find as I do here. That was not the case in Pah as it was not pleaded there on the indictment.
  6. Accordingly I return a Verdict of Guilty with Intent to Cause Grievous Bodily harm pursuant to Section 315 (b) (d) of the Code against Albert Lukie Junior of Baai and I convict him accordingly.
  7. By virtue of his conviction, I order that his bail money will be refunded forthwith and he will be remanded in custody to await sentence.

Ordered accordingly.


Public Prosecutor: Lawyer for the State

Emam Lawyers : Lawyer for the Defendant


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