The State v Mathias Yangi (2012) N4573

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 09 February 2012
• Citation: (2012) N4573
• Docket Number: CR NOs 684-687 of 2011
• Court: National Court
• Year: 2012
• Judgement Number: N4573

Full Title: CR NOs 684-687 of 2011; The State v Mathias Yangi (2012) N4573

National Court: Cannings J

Judgment Delivered: 9 February 2012

N4573

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 684-687 OF 2011

THE STATE

V

MATHIAS YANGI

Madang: Cannings J

2011: 12, 13, 14, 15, 19 December,

2012: 9 February

CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299(1) –police officer, while on duty, shot and killed three people – whether he unlawfully killed the deceased – defence of mistake of fact: Criminal Code, Section 25 – defence of extraordinary emergency: Criminal Code, Section 26 – whether the accused intended to kill the deceased.

The accused, a police officer, while on duty, shot and killed three men in two incidents arising from the police signalling a vehicle in which the deceased were passengers to stop on the roadside. The State’s case was that the accused intentionally killed the deceased. The accused admitted to shooting (and killing) the deceased but raised two defences: mistake of fact and acting in extraordinary emergency. He gave evidence that he reasonably believed that the deceased and other members of their group were engaged in criminal activity and were armed with a firearm and that they were resisting arrest and/or escaping from lawful custody and he acted reasonably in the face of sudden emergency. Further, that he had no intention of killing them, that his intention was only to shoot them in the legs to temporarily disable them, to prevent them escaping.

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) As the first element of each of the three counts was conceded, the issue became whether the killing of the deceased was unlawful, as under Section 289 of the Criminal Code it is unlawful to kill a person unless the killing is authorised, justified or excused by law.

(3) As the accused raised two excusatory defences and gave evidence in support of each defence the onus was on the prosecution to exclude both defences: to prove beyond reasonable doubt that one or more of the elements of each defence did not exist.

(4) The elements of the defence of mistake of fact under Section 25 of the Criminal Code are that: the accused had a mistaken belief in the existence of a state of things; the mistaken belief was an honest and reasonable one; and, if the real state of things had been such as the accused believed to exist, the accused would not be criminally responsible for his act or omission.

(5) The elements of the defence of extraordinary emergency under Section 26 of the Criminal Code are that: the accused’s act or omission was done under sudden or extraordinary emergency; and the circumstances were such that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.

(6) As to mistake of fact, although the accused acted under a mistaken belief that the deceased were armed and that belief was honest and reasonable, the State proved beyond reasonable doubt that if the real state of things had been such as the accused believed to exist, he would nonetheless be criminally responsible for his acts as even if the deceased and their friends were armed that would not have justified his actions. There the defence did not apply.

(7) As to extraordinary emergency the State proved beyond reasonable doubt that an ordinary police officer possessing ordinary powers of self-control would have acted other than the accused did. Therefore the defence did not apply.

(8) As neither of the defences raised by the accused applied, his killing of each of the deceased was unlawful.

(9) As to the third element the State failed to prove that the accused intended to kill the deceased but proved that he intended to cause grievous bodily harm. The accused was convicted of three counts of murder.

Cases cited

The following cases are cited in the judgment:

Anide v Denehy [1973] PNGLR 215

John Jaminan v The State (No 2) [1983] PNGLR 318

John Kule v The State (2011) SC1138

Migi Barton v The State (1981) SC213(M

R v Ulel [1973] PNGLR 254

The State v Abaya Ulas (2010) N4009

The State v Horris Raraka CR No 38 of 2003, 07.05.07

The State v Jeffery Bijuma (1989) N765

The State v Jenny Dei (2011) N4231

The State v John Bosco (2004) N2777

The State v Joseph Ampi [1988] PNGLR 116

The State v Lotivi Mal & 3 Others (2011) N4457

The State v Mark Bongede (2011) N4470

The State v Melchior Kapus & 7 Others (2010) N4114

The State v Moses Nasres (2008) N3302

The State v Peter Eddie (2009) N3782

The State v Raphael Kuanande [1994] PNGLR 512

The State v Smith William (1995) N1380

The State v Titeva Fineko [1978] PNGLR 262

The State v Wilson Mari (2011) N4359

TRIAL

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

Counsel

J W Tamate, for the State

M Mwawesi, for the accused

9 February, 2012

1. CANNINGS J: The accused, Mathias Yangi, is charged with three counts of wilful murder. He was a police officer on duty, a member of a motorised patrol, on the highway at Bogia Station, Madang Province. On the night of Tuesday 15 February 2011 he waved down a 10-seater Toyota Landcruiser which contained seven men. The accused spoke to the driver and smelt marijuana in the vehicle and became suspicious. The driver and the six passengers alighted from the vehicle. During two incidents that followed, the first at the roadside and the second, shortly afterwards, at Bogia Police Station, the accused shot all seven of them. Two died soon afterwards and one died in hospital four days later.

2. The State’s case is that the accused intentionally killed the three deceased. Three State witnesses – three of the other occupants of the vehicle – gave evidence in support of that proposition. The accused gave sworn evidence and was the only defence witness. He conceded that he shot the deceased and caused their deaths but raised two defences that, it is argued, render his actions lawful: mistake of fact and acting in extraordinary emergency. He gave evidence that he believed that the deceased and other members of their group were engaged in criminal activity and were armed with a firearm and that they were resisting arrest and/or escaping from lawful custody and he acted reasonably in the face of a sudden emergency. Further, that he had no intention of killing them, that his intention was only to shoot them in the legs to temporarily disable them, to prevent them escaping and enable them to be apprehended.

3. The indictment alleges that the offences were committed on 14 February 2011. It is clear, however, from the evidence that the incidents took place late on the night of Tuesday 15 February and/or in the early hours of Wednesday 16 February. The error in the date does not make the indictment defective and has had no material effect on the manner in which the trial has been conducted and has not affected the verdict. Section 534(1)(c) of the Criminal Code provides that an indictment is not open to objection “for stating imperfectly the time at which the offence was committed”; and this reflects the common law rule that a date specified in an indictment is not a material matter unless it forms an element of the offence (The State v Titeva Fineko [1978] PNGLR 262, The State v Horris Raraka CR No 38 of 2003, 07.05.07).

UNDISPUTED FACTS

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

· The driver and all but one of the passengers were from the Mumeng area of Morobe Province and had left there early on the morning of 15 February. The vehicle was privately hired by two of the deceased and they engaged a man to drive it for them to Bogia. He brought three of his friends with him on the trip. When they reached Madang town, they picked up a local man from the Madang district. The seven men, aged in their 20s, were:

Ø Junior Bon, the driver, State witness No 1;

Ø Reagan David Menzi, a friend of the driver, State witness No 2;

Ø Bobby Ango, a friend of the driver, State witness No 3;

Ø Henry Piro, the local man picked up at Four Mile, Madang;

Ø Titus Osi, one of the hirers of the vehicle, the deceased the subject of count 1 on the indictment;

Ø Abobo Sarus, one of the hirers of the vehicle, the deceased the subject of count 2 on the indictment;

Ø Andrew Conney Menzi, younger brother of Reagan David Menzi, the deceased the subject of count 3 on the indictment.

· The first incident was at the White Sands Market on the highway at Boikulu, Bogia Station. Parked at the roadside were a Landcruiser, attached to Bogia Police, and a PMV bus. The accused, who was in police uniform, holding the rank of Constable, was accompanied by about six other police personnel, one – Snr Const Joe Simbirato – from the Regular Constabulary, who was in charge, and five auxiliary members....