SC2321

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 23, 24 AND 25 OF 2019

BETWEEN:
BLAISE WATAKAPURA,
HILARY SOMERI and
JACK PIPILAK
Appellants

AND:
THE STATE
Respondent

Kimbe: Hartshorn J, Makail J, Anis J
2022: 21st & 22nd November

SUPREME COURT CRIMINAL APPEAL - Appeals against conviction

Cases Cited:
John Beng v. The State [1977] PNGLR 115

Counsel

Ms. J. Bibilo, for the Second and Third Appellants
Mr. B. Watakapura, the First Appellant, in person 
Mr. P. Kaluwin, for the Respondent

Oral decision delivered on
22nd November 2022

1. BY THE COURT: This is a decision on three appeals against conviction by three policemen convicted of wilful murder pursuant to s.299(1) Criminal Code.
Background
2. It was alleged by the State that on 6th May 2017 between 9 and 10pm the appellants were returning from Lakiemata CIS after playing darts at the warders’ compound. They were travelling in a white hired ten seater vehicle. Also in the vehicle were three other persons. They claimed that the vehicle was hit by a stone that had been thrown. The driver, Jack Pipilak, reversed the vehicle towards the deceased who was standing on the left side of the onward vehicle. Pipilak alighted from the vehicle and fired three shots from a firearm at the deceased. The deceased ran towards some houses. The other two appellants came out of the vehicle, were both armed and chased the deceased. Someri also fired three shots. Someri and Watakapura brought the deceased who was at that time injured, to the vehicle and the deceased was taken to Kimbe General Hospital where he was pronounced dead. It was alleged that the appellants intended to kill the deceased when they fired at him. The State had invoked s. 7 and s. 8 Criminal Code.
Appeal or review
3. In written submissions, the State contends that these appeals were filed out of time. We note however, that the appeals were filed within 40 days of the decision upon sentence. Further, the Public Prosecutor did not press the point in submissions before us and did not take issue with the submissions of counsel for the appellants that these are appeals and not reviews. Consequently, we proceed on the basis that what is before us are appeals filed in time.
Appeals
4. The appellants contended that the primary judge fell into error as follows:
Jack Pipilak:
The primary judge fell into error in finding that:
a)	Pipilak caused injury to the deceased as when Pipilak fired shots into the air, the deceased ran away and did not cry out in pain;
b)	there was an intention to kill, as Pipilak fired shots into the air and not at the deceased;
c)	Pipilak shot the deceased as there was no evidence of an exit wound on the deceased and no pellets or bullets were found in the body of the deceased.

Hilary Someri and Blaise Watakapura:
The primary judge fell into error in finding that they had aided and abetted Pipilak when there was overwhelming evidence that the appellants were policeman and were executing their duties in pursuing the subject who could have thrown stones at their vehicle.
Consideration

5. In an appeal against conviction an appellant must demonstrate that there is in all the circumstances a reasonable doubt as to the verdict being safe and satisfactory for the court to allow the appeal: John Beng v. The State [1977] PNGLR 115.

6. The primary judge found as fact at [88] of his written reasons for judgment that Pipilak fired his weapon three times at the deceased. Earlier in his judgment at [85], the primary judge had said that the deceased had been shot at close range and that 5 to 6 m was point blank range.

7. The undisputed evidence as to the deceased when Pipilak fired his shots is that the deceased did not cry out or scream in pain, he turned around and ran towards a house, fell over, got up, entered the house and then ran out and fell over. Further, no bullets or pellets were found in the body of the deceased, no exit wounds were found on the body of the deceased and no gunshot wounds were found on the back of the deceased.

8. If a person is shot while forward facing which the deceased was, with a shot gun, at what the primary judge described as between point blank and close range, it is rather unlikely that the person would remain silent, unless he was shot in the head or killed instantly and then that he would be able to run away quickly. Further, it is rather unlikely that such a person would not have bullets or pellets in his body or would not have exit wounds for such pellets or bullets.

9. These inconsistencies were not considered or explained by the primary judge. For his findings of fact, the primary judge preferred the evidence of State witness Bosco Swambun over the evidence of other State witnesses who were in the vehicle with the three appellants. In particular, the primary judge did not prefer the evidence of the witness Kialo Lucas, a CIS officer. Lucas had given evidence that he had been feeling sick and had arranged a lift in the vehicle with the appellants. There was no evidence that he had been drinking with the appellants.

10. Lucas gave evidence that he saw Pipilak lift the gun into the air, pointed the gun into the air and fired. The primary judge however, preferred Swambun’s evidence. It was that Pipilak shot directly at the deceased. The other witnesses’ evidence was that Pipilak fired shots into the air.

11. Of all the witnesses, Swambun was the furthest away from the incident, about 10 metres away and at night. Further, in cross examination Swambun gave evidence that he had lived with the deceased and his family for almost eight years and that they were like a family to him. This casts doubt as to the impartiality of this witness.

12. The State submitted that there was no other explanation as to how the deceased died and that the totality of the facts and evidence led to the conclusion that Pipilak shot the deceased. It is for the State to prove its case beyond reasonable doubt. It is not necessary for an accused to have to establish an alternative cause of death to prove a reasonable doubt. In considering whether the State had proved its case beyond reasonable doubt, to our minds the primary judge fell into error in his finding of fact that Pipilak fired his weapon three times at the deceased and fell into error in preferring the evidence of a witness who was the furthest away from the incident at night - a witness who admitted living with the deceased and his family for almost eight years and who he considered his family. Further, the primary judge fell into error in not explaining the inconsistencies that arose with his finding of fact. Those inconsistencies are the lack of any cry or scream of pain from the deceased when he was purportedly shot at between close and point blank range; that the deceased was able to run away quickly after being shot and that no bullets or pellets or exit wounds were found in or on the body of the deceased. These errors together with the state of the evidence, to our minds create a real doubt and more than a reasonable doubt that Pipilak shot the deceased and as found by the primary judge, or that the shots from Pipilak’s gun caused the death of the deceased. Consequently, there is more than a reasonable doubt that the guilty verdict against Pipilak is safe and satisfactory.

13. As there is more than a reasonable doubt that the shots from Pipilak’s gun caused the death of the deceased, there is not sufficient or credible evidence to establish that Pipilak committed the lesser offences of murder or manslaughter of the deceased. Consequently, Pipilak is entitled to have his appeal upheld, his conviction for wilful murder quashed and that he be acquitted.

14. In regard to the other two appellants, they were convicted of wilful murder pursuant to s. 7 and s. 8 Criminal Code in that they were principal offenders and aided and abetted Pipilak in the commission of the offence of wilful murder. As Pipilak has had that conviction for committing the offence of wilful murder quashed, Hilary Someri and Blaise Watakapura are entitled to have their appeals upheld and their convictions quashed. Given the above it is not necessary to consider the other submissions of counsel.

Orders

15. It is ordered that:

a)	The three appeals are allowed.

b)	The three convictions for wilful murder are quashed.

c)	Jack Pipilak, Hilary Someri and Blaise Wakatapura are acquitted.
__________________________________________________________________
The First Appellant In person
Public Solicitor: Lawyers for the Second and Third Appellants
Public Prosecutor: Lawyers for the Respondents