The State v Daniel Kapen (2012) N4895

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 20 November 2012
• Citation: (2012) N4895
• Docket Number: CR NO 294 of 2012
• Court: National Court
• Year: 2012
• Judgement Number: N4895

Full Title: CR NO 294 of 2012; The State v Daniel Kapen (2012) N4895

National Court: Cannings J

Judgment Delivered: 20 November 2012

N4895

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 294 OF 2012

THE STATE

V

DANIEL KAPEN

Madang: Cannings J

2012: 6, 7, 12, 13, 15, 20 November

CRIMINAL LAW – attempted murder – Criminal Code, Section 304 – trial – elements – whether the accused acted unlawfully: defence of self-defence – whether the accused attempted to kill the deceased – alternative charges: grievous bodily harm, with intent (Section 315); grievous bodily harm (Section 319)

The accused, a police officer, was charged with the attempted murder of a young man on a public road, contrary to Section 304(a) of the Criminal Code (the primary charge) with alternative charges on the indictment being unlawfully doing grievous bodily harm with intent (Sections 315(b) and (d)) and unlawfully doing grievous bodily harm (Section 319). It was undisputed that the accused shot the complainant in the foot with a police-issued firearm. The State’s case was that the accused fired the shot deliberately without good reason. The defence case was that the complainant was drunk and disorderly and armed and that the accused acted in self-defence against an unprovoked assault by the complainant. Further that there was no intention to kill or do grievous bodily harm to the complainant.

Held:

(1) The elements of the offence of attempted murder under Section 304(a) are that the accused:

· intended actually to kill the deceased;

· put his intention into execution by means adapted to its fulfilment;

· manifested his intention by some overt act; and

· acted unlawfully.

(2) The elements of the offence of unlawfully doing grievous bodily harm with intent under Sections 315(b) and (d) of the Criminal Code are that the accused:

· did grievous bodily harm to the complainant;

· with intent to do grievous bodily harm; and

· acted unlawfully.

(3) The elements of the offence of unlawfully doing grievous bodily harm under Section 319 of the Criminal Code are that the accused:

· did grievous bodily harm to the complainant; and

· acted unlawfully.

(4) Here, the State failed to prove an intention to kill so the accused was acquitted of the primary charge of attempted murder.

(5) As to the first alternative charge the State proved that the accused did grievous bodily harm and that he acted unlawfully (due to the State excluding the defence of self-defence) but failed to prove that he intended to do grievous bodily harm to the complainant. The accused was acquitted of that charge.

(6) As to the second alternative charge the State proved that the accused did grievous bodily harm and that he acted unlawfully (due to the State excluding the defence of self-defence). The accused was convicted of that charge.

Cases cited

The following cases are cited in the judgment:

Browne v Dunn (1893) 6 R 67 (HL)

Kutau v The State (2007) SC927

R v Kiki Kau’Au (1970) No 557

Tapea Kwapena v The State [1978] PNGLR 316)

The State v Alphonse Dumui (2009) N3686

The State v David Yakuye Daniel (2005) N2869

The State v Henry Judah Les (2005) N2950

The State v Lenny Banabu (2005) N2871

The State v Mathias Yangi (2012) N4573

The State v Michael Nuli (2011) N4198

The State v Norman Kukari (2009) N3635

TRIAL

This was the trial of an accused charged with attempted murder and two alternative charges.

Counsel

M Zurenuoc, for the State

B Tabai, for the accused

20 November, 2012

1. CANNINGS J: The accused, Daniel Kapen, is charged with the attempted murder of Donald Mara at Alemo, near Erima, Madang Province, on Sunday 11 December 2011. The State’s case is that the accused, a police officer, was driving a police vehicle along the road when he came upon the complainant and a friend who were on the road. He stopped the vehicle, ordered the complainant to come to the vehicle, which he did, and then the accused shot him in the foot without lawful excuse, intending to kill him. The complainant survived but suffered grievous bodily harm. Attempted murder is the primary charge on the indictment. There are two alternative charges: unlawfully doing grievous bodily harm with intent and unlawfully doing grievous bodily harm. The accused pleaded not guilty to all charges. The defence case is that the complainant was drunk and disorderly and armed and that the accused acted in self-defence against an unprovoked assault by the complainant. Further that there was no intention to kill or do grievous bodily harm to the complainant.

2. This judgment begins by setting out the undisputed facts before consideration is given to the three charges on the indictment, starting with the primary charge.

UNDISPUTED FACTS

3. A number of undisputed facts have emerged from the evidence:

· The accused holds the rank of Senior Constable. He has been a member of the Royal Papua New Constabulary for 21 years and has for the bulk of that period been based in Madang Province. For 13 years he was attached to Ileg Police Station in the Rai Cost district, which is in the vicinity of where the incident happened. He has been in charge of the Rapid Response Unit for Madang Province since 2006.

· On the afternoon of Sunday 11 December 2011 the accused was on duty, driving a blue Toyota Landcruiser (a hire vehicle, which was on long-term hire to the Rapid Response Unit) on the Rai Coast Highway from Ileg in a westerly direction towards Madang town. He had not been consuming alcohol. He was sober. With him in the vehicle were his wife Christine Kapen (who is also a member of the Constabulary, with 18 years service, holding the rank of First Constable) who was in the front, off-sider’s seat, their three children (a girl aged 10, a boy aged 11 and a girl aged 12), who were in the back seat and a Probationary Constable attached to the Rapid Response Unit, Ronnie Tovue, who was in the rear compartment of the vehicle.

· Just ahead of and accompanying the Landcruiser was a grey Toyota Hilux 4WD utility driven by Reserve Const Kevin Waongo. It was referred to in the evidence as an ‘ex Raibus Security vehicle’. There was another member of the Constabulary in that vehicle and some employees of Reserve Constable Waongo.

· The two vehicles passed Erima village and were about 100 metres from the Alemo junction of the Rai Coast and Madang-Lae Highways (25 km from Madang town) when the accused observed a group of youths on the road in front of him. They appeared to be drunk and disorderly and armed. He sensed trouble so he slowed the vehicle and most of the youths scattered into the bush. There are no houses near the road. The Hilux kept going along the road.

· The group of youths on the road included the complainant, 19-year-old Donald Mara, and his 17-year-old friend Cedric Waraho. They lived and went to school at Erima and had earlier that afternoon been drinking yawa (home brew) with their mates celebrating a recent soccer victory and the end of the school year. They had walked up to the market at the Alemo junction to buy cigarettes and were on their way back when the Hilux and the Landcruiser approached.

· The accused stopped the Landcruiser on the left side of the road, wound down the driver’s window and instructed two men who had not fled into the bush to come towards the vehicle. They did so. One of them was Cedric Waraho. (The identity of the other is contentious. The complainant and Cedric say it was the complainant. The accused and his wife say it was not the complainant but an innocent bystander, a local, mature-aged man, Clement Kalo, who was not drunk and not in the youths’ group).

· The accused’s children all moved to the driver’s side of the vehicle and looked through the window to see what was going on. Their mother scolded them and told them to stay away from the window.

· Between or on (it is not clear) the front seats of the Landcruiser the accused had a police-issued Galil, Israeli-manufactured semi-automatic combat rifle. He reached for it, cocked it inside the vehicle (so there was one bullet in the chamber) and held on to it as he moved to get out of the vehicle. No sooner had he put one foot on the road (he had bare feet as he had a gout problem at the time) when the magazine fell from the rifle (the accused said he must have accidentally hit the release pin). He bent down to pick it up. As he did so his children (it is unclear which one(s)) yelled out from the back seat ‘Daddy, candela man holim busnaip na kam baksait long yu!’ (Daddy there is a man with a bushknife coming from behind you!’).

· The accused then immediately shot the complainant with the rifle. He fired one shot only. The bullet hit the complainant in the right foot, where it inflicted the most serious injury, then ricocheted into the left foot.

· The accused did not say anything to his wife or to Res Const Tovue before getting out of the vehicle. Neither of them got out until after the shot was fired.

· The accused instructed...