The State v Abaya Ulas (2010) N4009

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 13 May 2010
• Citation: (2010) N4009
• Docket Number: CR NO 751 OF 2008
• Court: National Court
• Year: 2010
• Judgement Number: N4009

Full Title: CR NO 751 OF 2008; The State v Abaya Ulas (2010) N4009

National Court: Cannings, J

Judgment Delivered: 13 May 2010

N4009

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 751 OF 2008

THE STATE

V

ABAYA ULAS

Madang: Cannings J

2010: 15, 16, 17, 22, 24 March, 13 May

VERDICT

CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299(1) – elements of the offence – whether the accused killed the deceased – whether the killing was unlawful – whether the accused intended to kill the deceased – alternative verdicts, Criminal Code, Section 539(1).

The accused, a police officer, was charged with the wilful murder of a man suspected of involvement in the killing of the accused’s relative. The accused was not on official police duty but went to a village where the deceased was staying and with the help of others, raided the house the deceased was staying in and fired at lest two shots from a police-issued firearm that he was carrying. The deceased died soon afterwards from loss of blood caused by a bullet wound to the leg. The accused admitted firing the shot but did not concede that he killed the deceased and denied intending to kill him or shoot him.

Held:

(1) Under Section 299(1) of the Criminal Code the offence of wilful murder has three elements:

· the accused killed the deceased;

· the killing was unlawful; and

· the accused intended to cause the death of the deceased.

(2) The State proved that the accused killed the deceased.

(3) As the accused did not attempt to set up any specific defence, the killing was unlawful by virtue of Section 289 of the Criminal Code.

(4) Given the circumstances in which the deceased was killed (the most likely scenario being that the accused was angered by the deceased’s failure to co-operate and panicked and shot at him) the State failed to prove that the accused intended to kill the accused but proved that he intended to do him grievous bodily harm.

(5) The accused was accordingly convicted of murder under Sections 539(1) and 300(1)(a) of the Criminal Code.

Cases cited

The following cases are cited in the judgment:

The State v David Yakuye Daniel (2005) N2869

The State v Ephraim Ria Boa (2008) N3436

The State v Moses Nasres (2008) N3302

The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07

The State v Raphael Kuanande [1994] PNGLR 512

TRIAL

This was the trial of an accused charged with wilful murder.

Counsel

A Kupmain for the State

A Meten for the accused

13 May, 2010

1. CANNINGS J: The accused, Abaya Ulas, is a police officer based at Yomba police station in Madang town. He is charged with the wilful murder of a 30-year-old man, Siragu Raila Masi. The State’s case is that the accused, who was not on official police duty, was at Malas village in Madang Province in the early hours of 9 June 2007 and attempted to apprehend the deceased who he suspected of involvement in the killing of one of his relatives. He had information that the deceased was staying in a house at Malas, so he, with the help of others, raided the house the deceased was staying in, and fired at least two shots from a police-issued firearm that he was carrying. The State alleges that he deliberately shot the deceased, intending to kill him and that the deceased died soon afterwards. The accused admits firing two shots but does not concede that he killed the deceased and denies intending to kill the deceased or to shoot him.

ELEMENTS

2. The offence of wilful murder is created by Section 299(1) of the Criminal Code and has three elements. The prosecution has the onus of proving beyond reasonable doubt that:

· the accused killed the deceased;

· the killing was unlawful; and

· the accused intended to cause the death of the deceased.

ISSUES

3. The accused does not concede that he killed the deceased, so the State has to prove that he did. If that issue is decided against the accused, the next issue will be whether the killing was unlawful. If it was an unlawful killing the court will proceed to assess whether he intended to cause the death of the deceased. If he did not have that intention, an alternative conviction for murder or manslaughter will be considered.

4. The primary issues are:

1 Did the accused kill the deceased?

2 If he did, was the killing unlawful?

3 Did the accused intend to kill the deceased?

4 If he did not intend to kill the deceased, should he be convicted of some other offence?

1 DID THE ACCUSED KILL THE DECEASED?

5. Determination of this issue requires:

· a summary of the evidence for the State;

· a summary of the evidence for the defence;

· a preliminary assessment of the State’s case;

· a summary of the defence counsel’s submissions;

· an assessment of the defence counsel’s submissions; and then

· a final determination of the question whether the accused killed the deceased.

EVIDENCE FOR THE STATE

6. Three witnesses gave evidence. The other significant evidence was a medical certificate of death and a report on the death prepared by a health extension officer and the accused’s record of interview.

7. Anton Akei is a community leader at Malas. He said that he was present at the village when the accused brought his ‘pressure group’ there at 4.00 am on 9 June 2007. The deceased was from another village but had been staying at Malas for four days when the incident happened. The accused and his group burst into the house that the deceased was staying in and brought him outside, sat him on the doorstep and then the accused shot him. They took him to the back of the house and the accused shot him a second time. The first shot was to the back. The second was to his knee. The deceased was not running away when he was shot.

8. The second State witness was Kaitu Mavara. He is also a Malas villager. The deceased, who is related to him, came to the village and was staying in his house. The accused and his group knocked on the door of the house at 4.00 am and came inside. The deceased was asleep on the bed and they dragged him outside and shot him. The accused fired two shots and it was the second shot, fired into the deceased’s right knee, which caused a big wound, that killed him.

9. In cross-examination Kaitu Mavara said that it was dark and there were no lights on. Although he could see the accused’s face, he did not actually see him shoot the deceased.

10. The third State witness was Ambrose Kayok. In June 2007 he was a Senior Sergeant of Police and the police station commander of Talidig police station. He has since retired, after 36 years in the Police Force. The accused approached him shortly before 9 June 2007 for assistance in apprehending a person suspected of involvement in the murder of a close relative, who the accused described as ‘his father’. The accused told him (Snr Sgt Kayok) that the suspect was at Malas. Snr Sgt Kayok told him that he had just returned from dawn raids on several villages and was not in a position to assist him other than providing him with a police-issued firearm, an AR-15 assault rifle (which was admitted into evidence at the trial). He gave him instructions on how to use the firearm and advised him only to use it as a last resort if his life were in immediate danger. The accused left and returned a day or two later with some of his relatives at Malas and they said that they had shot the suspect and he was dead. He contacted provincial police headquarters and a CID officer came to Malas. He also went there to assist in the investigation. He retrieved the firearm and observed that of the six rounds of ammunition that were in the magazine when he issued it to the accused only one was left. He asked the accused about this and the accused said that he only used two rounds.

The medical evidence

11. A medical certificate of death and a report on an examination of the deceased’s body were prepared by Mr Herman Yiyiri, Health Extension Officer and OIC of Bunabun Health Centre. The cause of death was ‘severe haemorrhage, due to hypovolaemic shock, due to bullet wounds’. The summary of findings stated:

(a) Firstly, he (the deceased) did sustain a bullet wound to his right posterior thigh bone through to the inner aspect causing rugged wounds resulting in comminuted or smashed bone into bits and pieces.

(b) The scratches and cuts including abrasions, swelling and the indurated marks would resemble or indicate that the decased was hit with sticks, stones and/or a knife.

Record of interview

12. The accused was interviewed on 8 May 2008. He admitted firing two shots but denied deliberately shooting the deceased. He is recorded as stating:

The suspect was trying to escape so I fired a warning shot, but how I shot him I don’t know. …If he was not trying to escape I would not have shot him. He was trying to escape so I shot him. I don’t know how the bullet caught him.

EVIDENCE FOR THE DEFENCE

The accused’s sworn evidence

13. Abaya Ulas is 35 years old and has been a member of the Police Force for 12 years. He holds the rank of Constable. He was contacted by some of his relatives at Malas in June 2007 who told him that a suspect who had been involved in the killing of a relative was staying at Malas. He informed his immediate supervisor at Jomba police station, Snr Const Paul Liplib,...