The State v Leonard Masiap [1997] PNGLR 610

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 28 August 1996
• Citation: [1997] PNGLR 610
• Court: National Court
• Year: 1997
• Judgement Number: N1469

Full Title: The State v Leonard Masiap [1997] PNGLR 610

National Court: Sevua J

Judgment Delivered: 28 August 1996

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 1178 OF 1995

THE STATE

v

LEONARD MASIAP

Waigani

Sevua J

12-13 August 1996

16 August 1996

28 August 1996

CRIMINAL LAW — Attempted Murder — Self defence — Unprovoked assault — Test to be applied — Assault an essential ingredient under ss. 269 & 270 Code — Actual assault or threat of assault must be offered to accused — Where no assault or threat of assault, there cannot be belief on reasonable grounds — ss. 269 & 270 Code.

CRIMINAL LAW — Self defence — Onus of proof — Criminal Standard — Onus remains on prosecution to prove beyond reasonable doubt or negative defence — Onus not on accused to prove self defence.

Test in The State v Takip Palne [1967] PNGLR 90 adopted and applied.

Held:

1. There is no evidence that the accused was assaulted by the victim such as would cause reasonable apprehension that the accused was about to be killed or caused grievous bodily harm.

2. The accused had no reasonable grounds for believing that he could not otherwise preserve himself than by firing the two shots at the victim and the force used was excessive.

3. The State has excluded beyond reasonable doubt, each of the elements of self defence.

4. The onus of proof remains on the State throughout and the standard of proof is proof beyond reasonable doubt. That is, the State must prove beyond reasonable doubt that the necessary elements in s. 269 adverted to in Takip Palne do not exist.

Cases Cited:

The Queen v Nikola Kristeff (1967) No 445

The State v Takip Palne [1967] PNGLR 90

Regina v Korongia (1961) No. 204

Reg v Muratovic [1967] Qd R 15

Tapea Kwapena v The State [1978] PNGLR 316

Regina v Lobell [1957] 1 QB 547

Chan Kau v The Queen [1955] 2 WLR 192

The Queen v Howe [1958] 100 CLR 448

The State v Wanaepe Warara [1977] PNGLR 458

Counsel:

Ms M Boni for State

Mr M Apie'e for Accused

28 August 1996

SEVUA J: The accused pleaded not guilty to an indictment charging him with attempted murder contrary to s. 304 (a) of the Code.

The facts are brief and simple. The accused is an officer of the National Intelligence Organisation (NIO). On the night of 29 November, 1994 at about 9 pm, he fired two shots from his pistol at the victim, Sunaban Yoba, between the Somare Foundation Building and the old NIO office at Waigani. As a result, the victim suffered bodily injuries to his left arm and left side of the posterior chest wall. The only point of contention here is where the shooting occurred. The prosecution alleged that, the victim was shot as he stood against the perimeter fence at the rear of the Somare Foundation Building. The accused denies this and says, he shot the victim near the NIO office. He raises the statutory defence of self defence. At the end of the day, the ultimate question to be decided is whether I accept the evidence of the victim or the accused.

The evidence of the victim is that, he was one of three (3) security guards on duty that night at the Somare Foundation Building premises.

At approximately 9 pm, he left the two others at the front gate, which I observed, from visiting the scene, to be the gate east of the building, and walked around the left side parallel to the Sir John Guise Drive to the rear of the building. At the rear perimeter fence, he stood almost against it. As he stood there, facing the Australian High Commission, which I noted, is on a south easterly direction, he was shot on the left arm and as he turned around, he was shot the second time on the left side of the back. He said he saw the accused beside the NIO office and he estimated the distance between them to be twenty metres. He then ran to the front gate, jumped over it then escaped to his boss' office at Nilkare St, Gordons, near the Indonesian Embassy, approximately half a kilometer away from where he was shot.

The victim's evidence also include estimates of distances and lighting. As to lighting, he said there were three security lights. The first one was at the front gate, the second at the roof of the NIO office, and the third at the rear gate of the Australian High Commission. During the visit to the scene, I observed the victim pointing to a double flood lights located above the northern fence of the Somare Foundation Building, and further, the one at the NIO office was located where a broken gutter hung, not on the roof. I also observed that the victim pointed to the corner of the northern and western end of the fence where he said he jumped out from and escaped.

From where he stood by the fence to where he said the accused stood was approximately 12 — 15 metres. From where he was shot to the NIO office was approximately 12-15 metres. From where he jumped out, to the NIO office was approximately 10-12 metres. From where he was shot to the point at the fence he jumped out was approximately six metres.

The Court noted that the distance from where he was shot to the front gate would be a hundred metres or more. There seems to be some contractions in his evidence, which I will consider later when assessing demeanour and credibility.

The second prosecution witness did not see anything, so really his evidence is of no probative value to the prosecution's case. It is therefore unnecessary to discuss that evidence here.

On the contrary, the accused's evidence presents a completely different picture of what had transpired.

On the date in question, he had left the NIO office at approximately four or five in the evening, but returned at 9 pm to carry out a routine check. He parked his official vehicle at the end of the NIO office (I observed as the western end), walked to the northern side of the building and called out to the guards who supposed to be inside, however, there was no response. According to him, the place was dark as there was no light.

Suddenly, he saw "something like a mop head popping out on the side of the building." It was a person who ran out from the side of the building towards the accused's stationary vehicle. The accused said, as the man ran, he saw that man pointing something which appeared to be a gun at him (accused). That person ran to the accused's vehicle and sheltered behind it. The accused was alarmed by the action of that person so he called out, "hey" to him. There was no response so he called out to the people who supposed to be in the NIO office, however there was no response either. He then remembered that he was armed so he pulled out his pistol, corked it and fired at the direction of his vehicle where he saw that person ran to. As his pistol was a semi automatic weapon, a second shot was fired as he maintained his finder on the trigger. After these shots, he saw that person running along a track towards the fence of the Somare Foundation Building. Approximately, two minutes later, he got into his vehicle an drove out on the same track towards Sir John Guise Drive in pursuit of the fleeing man, however, the accused was unable to catch up with that man so he drove to the other NIO office at Boroko. He did not report that incident until the next day.

Basically, that is all the evidence before me in this trial.

Firstly, I must determine which evidence is more probable and to do that I need to assess the credibility and demeanour of both the victim and the accused so that I can arrive at a finding of fact as to whether the victim was shot, as he said, inside the premises of the Somare Foundation Building, or near the NIO office, according to the accused's evidence.

Having observed both witnesses testified on oath, the victim's demeanour in the witness box did not impress me at all. He appeared stubborn during examination in chief and I observed that he did not fully co-operated with the prosecuting counsel. He looked quite annoyed and there was no reason he should behave in that manner.

His demeanour worsened during cross examination when he appeared angry and mean and became unco-operative and difficult, until I warned him of possible imprisonment for contempt and ordered him to sit up straight and lean toward the microphone to answer questions.

There were inconsistencies in his evidence which I consider fatal to his credibility. If, it was true he was shot within the premises of Somare Foundation Building, why didn't he call out to his colleagues that he had been shot? He said he ran to the main gate...