The State v Leonard Masiap [1997] PNGLR 610

• Jurisdiction: Papua New Guinea
• Citation: [1997] PNGLR 610
• Date: 28 August 1996
• Court: National Court
• Year: 1997

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

National Court: Sevua J

Judgment Delivered: 28 August 1996

1 Criminal law—attempted murder—self defence—unprovoked assault—test to be applied—assault an essential ingredient under s269 and s270 Criminal 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—s269 and s270 Criminal Code

2 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

3 Test in The State v Takip Palne of Dumbol [1976] PNGLR 90 adopted and applied

4 R v Nikola Kristeff (1967) No445, The State v Takip Palne of Dumbol [1976] PNGLR 90, R v Korongia (1961) No204, R v Muratovic [1967] Qd R 15, Tapea Kwapena v The State [1978] PNGLR 316, R v Lobell [1957] 1 QB 547, Chan Kau v R [1955] 2 WLR 192, R v Hoare (1958) 100 CLR 448 and The State v Wanaepe Warara [1977] PNGLR 458 referred to

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 had 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; the State must prove beyond reasonable doubt that the necessary elements in s269 of the Criminal Code adverted to in The State v Takip Palne of Dumbol [1976] PNGLR 90 do not exist

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Sevua J: The accused pleaded not guilty to an indictment charging him with attempted murder contrary to s304 (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 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...