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Kakivi v The Independent State of Papua New Guinea [2023] PGSC 176; SC2539 (30 August 2023)

SC2539


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCREV. NO. 84 OF 2018
SCREV. NOS. 109 TO 196 OF 2018
SCREV. NOS. 28, 29, 31 & 33 OF 2020


BETWEEN
DONI KAKIVI & 88 OTHERS
Applicants


AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent


Madang: Gavara-Nanu J; Batari J; David J; Kassman J and Geita J
2022: 25th July
2023: 30th August


JUDICIAL REVIEW – Application for review - convictions – Constitution; s. 155 (2) (b) – Multiple Charges – Multiple offenders - Offence - Wilful murder – Criminal Code; ss. 299, 7 and 8 – Principal offenders - Aiding and abetting – Common intention – Common purpose - Offenders in a large group – Raid of a village – Offenders with faces painted – Probable consequence - Identification – convictions after trial - Whether convictions safe.


JUDICIAL REVIEW – Application for review - Sentences – Constitution; s. 155 (2) (b) -– Life imprisonment – Cumulative and concurrent sentences – Exercise of sentencing discretion – Whether sentences fair and proper – Whether sentences manifestly excessive.


JUDICIAL REVIEW – Application for review – Constitution; s. 155 (2) (b) – Juvenile offenders – Multiple charges – Multiple offenders – Offences – Wilful murder – Convictions after trial – Sentences – Life imprisonment – Juvenile offenders; Juvenile Justice Act, 2014; s. 85 – Sentencing discretion – Power of the Court – Whether exercise of sentencing discretion proper – Whether convictions and sentences proper.


Cases Cited:


Papua New Guinean Cases
Agiru Aieni and Ors v. Paul Tahian [1978] PNGLR 37; [1978] PGNC 13
Anderson Agiru v. The Electoral Commission (2002) SC687
Application by Michael Aika and Ors (2004) SC753
Author Gilbert Smedley v. The State [1980] PNGLR 379
Avia Aihi v. The State [1981] PNGLR 81
Breckwoldt & Co. (NG) Pty Ltd v. Gnoyke [1974] PNGLR 106
Curton Bros. (PNG) Ltd & Anor v. University of Papua New Guinea (2005) SC788
Jimmy Mostata Maladina v. The State (2016) SC1495
Kawaso Ltd v. Oil Search PNG Ltd (2012) SC1218
Les Curlewis & Ors v. David Yuapa (2013) SC1274
Michael Newell Wilson v. Clement Kuburam and Ors (2016) SC1489
Porewa Wani v. The State [1979] PNGLR 593; [1979] PGSC 30
Regina v. Gregory Ino Genai and Ors [1974] PNGLR 1; [1974] PGSC 10
Regina v. Umarum [1969-70] PNGLR 190; [1969] PGSC 43
Reg. v. Witrasep Binengim [1975] PNGLR 95
Saonu v. Dadae (2004) SC763
The State v. Herman Kagl Diawo (1980) N255
The State v. Nataemo Wanu [1977] PNGLR 152
The State v. Peter Painke (No.2) [1977] PNLR 141
The State v. Tony Emmanuel and Edward Yau [2012] PGNC 368; N4599
Willy Kelly Goya v. The State [1987] PNGLR 51; [1987] PGSC 8


Overseas Cases
Air Marshall McCormack and Another v. Vance [2008] ACTA 16
Australian Coal and Shale employees v. The Commonwealth [1953] HCA 25; (1966) 94 CLR 621
House v. King [1936] H.C.A 40; (1936) 55 C.L.R. 499
Johns v. R [1980] HCA 3; (1980) 28 A.L.R 155
Micallef v. ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274
Reg. v. Clarkson, Carroll and Dodd [1971] 3 All E.R. 344; (1971) 55 Cr. App. R. 445
Reg. v. Coney [1882] UKLawRpKQB 30; (1882) 8 Q.B.D 534
Reg. v. Solomon [1957] Qd. R. 123


Counsel:
L. Mamu, for the Applicants
P. Kaluwin with D Ambuk, for the Respondent


30th August 2023


  1. GAVARA-NANU J: Initially, 89 applicants sought review of their convictions after a trial on seven counts of wilful murder under s. 299 (1) of the Criminal Code as aiders and abettors under s. 7 (1) (b) and (c) of the Criminal Code, by the primary judge on 12th January, 2018 and their sentences of life imprisonment given on 24th July, 2018.
  2. The primary judge also found that applicants had a common intention under s. 8 of the Criminal Code to prosecute an unlawful purpose, which was to raid Sakiko village near Ramu township in Madang Province which resulted in seven deaths. His Honour held that seven deaths were probable consequences of the prosecution of unlawful purpose.
  3. It should be noted at the outset that eight co-accused of the applicants who were convicted of six wilful murders at Sakiko village were found to be directly responsible for those deaths and were sentenced to death. They have made a separate application to review their convictions and sentences. My judgment on their application is consolidated with this judgment, and it appears towards the end of the judgment.
  4. From the 89 applicants, 69 were said to be juveniles. Notably, only 47 of the original 89 applicants prosecuted this application after 42 have either escaped or passed on.
  5. As to the 42 applicants, pursuant to Order 5 Rule 37 (a) of the Supreme Court Rules 2012, those who have either escaped or passed on before prosecuting their applications for review, have their applications stand dismissed for want of prosecution. Those who are alive have the liberty to file fresh applications for review of their convictions and sentences with leave.
  6. As to the applicants who have passed on after prosecuting their applications, their applications are by law still on foot. The decision of this Court will therefore apply equally to them like those applicants who have prosecuted their applications for review and are going to receive the decision of the Court.
  7. Regarding the 47 applicants who prosecuted their applications, an updated list was provided to the Court by the Public Solicitor Mr Leslie Mamu of counsel for the applicants. The list shows one had passed on and six have escaped. Because those seven applicants, including the one that passed on have prosecuted their applications, the decision of the Court will apply equally to them as those who will be receiving the decision of the Court.
  8. I strongly recommend to the police and the CS that those applicants who have escaped from gaol be pursued and arrested as soon as possible. They should be charged for escaping from lawful custody and dealt with accordingly.
  9. The applicants raise one pertinent issue regarding their convictions on seven counts of wilful murder viz; whether their convictions were safe having regard to the special facts and circumstances of the case. As to their sentences of life imprisonment, the pertinent issue they raise is whether the sentences are manifestly excessive, which then raises the question of whether the primary judge exercised his sentencing discretion properly.
  10. It is convenient to note at this juncture that should the applicants succeed in their review against their convictions, that should be the end of the matter because it would then be unnecessary for the Court to consider and make determinations on their sentences.
  11. The issue of leave to review does not arise because leave was granted on 7th November, 2018.

The undisputed facts as found by the primary judge


  1. The learned primary judge found the following facts as undisputed and relied on them in his decisions on verdict and sentence. In early morning of Monday 14th April, 2014 at about 5.30am a large group of armed men started marching from Ranara village to Sankiang bridge along Bruce Jephcott Highway in the Madang Province, several kilometres from the western end of Ramu township. The group was armed with assorted weapons, including bush knives and homemade guns. The members of the group painted their faces with black charcoal in warlike way. The group was allegedly known as the “hausman” which was comprised of both adult and young men who were said to be from villages in the mountains west of Ramu township, including Gomumu village. The hausman was said to have been formed following concerns about deaths occurring in those villages. The deaths were blamed on sorcery. As a result, some of the suspected sorcerers who were living in Gomumu village migrated with their families and relatives and took up residence at Sakiko village which is not far from the Ramu township. A bit later in the morning of Monday 14th April, 2014, Ramu Police Station Commander was alerted that members of hausman were approaching Ramu township from Bruce Jephcott Highway en route to Sakiko village in search of the suspected sorcerers residing in that village, to kill them. The Ramu Police Station Commander subsequently met the group and tried to stop it from going to Sakiko village but to no avail. At about 6.00am, as the group arrived at Ramu Sugar mill, they met several Ramu Agri Industries Ltd (“RAIL”) employees who worked and lived in that area. They were walking to work. Some members of the hausman attacked them and killed a man named Sike Wamne, a highlander from Jiwaka Province. This killing is subject of count 1 on the indictment on the charge of wilful murder. The Commander of Ramu Police Station upon realising that the group would not listen to his advice, drove ahead of the group to Sakiko village to warn the villagers that members of hausman were marching to the village to attack them. The members of hausman marched to Sakiko village and raided it destroying properties belonging to the villagers, including food gardens and houses which were set on fire. The group threatened the villagers and attacked them and chased them into the nearby bushes. Some members of the group attacked and killed six villagers including two children. Those killings are subject of the other six counts of wilful murder on the indictment. Sometime after the killings, police reinforcements arrived at Sakiko village, they included several senior police officers. The police told the members of hausman who were still at Sakiko village and still armed, to congregate at a sports field in the middle of the village. The group did as they were told, but not before some of the group members had escaped. That group consisted of 120 adult men and 69 young men who were said to be juveniles, thus total of 189 men from the original reported 200 to 250 men. They were escorted by police to the highway, where they were transported on an open back truck in several loads to Ramu police station. They co-operated with the police, they overnighted at Ramu police station. On the next day on Tuesday 15th April 2014, the police charged all 189 men with provoking breach of peace and carrying offensive weapons, under ss. 7 (a) and 12 (1) of the Summary Offences Act, Chapter 264. On Wednesday 16th April, 2014, a Madang based Magistrate, his Worship Robert Teko heard their cases en-masse outside the Ramu police station. For the hearing, the men were divided into two groups one group consisted of the 120 adult men and the other consisted of the 69 young men who as I said were considered juveniles. All of them pleaded guilty. On Thursday 17th April, 2014, all 120 adult men were each sentenced to six months imprisonment and the 69 young men regarded as juveniles were each fined K200.00. The 120 adult men were transported to Beon Corrective Institution to serve their sentences. The 69 juveniles paid their fines and were released. While 120 men were in jail, they were each charged with seven counts of wilful murder. They continued to serve their six months imprisonment imposed by the Magistrate until completed. The applicants were later tried and convicted of seven counts of wilful murder under s. 7 of the Criminal Code, as aiders and abettors. They were all part of the group that was assembled at the sports field at Sakiko village and transported to Ramu police station and subsequently dealt with by his Worship Robert Teko for the above-mentioned summary offences. No identification parade was conducted for the applicants before their trial. Also, the owners of the weapons confiscated at Ramu Police Station were not identified and the weapons were not labelled.

Primary judge’s findings and conclusions on verdict


  1. His Honour’s findings and conclusions (in his decision on verdict) can be summarized as follows: -
  2. In discussing the offence of wilful murder under s. 299 (1) of the Criminal Code, the primary judge said the prosecution had to prove three elements. First, a person killed the deceased. Second, the killing was unlawful. Third, there was an intention to cause the death of the deceased (or some other person). His Honour said the first element is satisfied when a person kills another person when he or she causes the death, directly or indirectly by any means. For the second element, his Honour referred to s. 289 of the Criminal Code which provides that it is unlawful to kill another person unless the killing is authorised or justified or excused by law. For example, killing in self-defence under ss. 269 or 270 of the Criminal Code. For the third element, his Honour said it relates to the state of mind of the offender at the time of killing. This observation relates to the conduct of the offender and what happened before the killing, at the time of killing and subsequent actions of the offender, which his Honour said are critical. For example, the type of weapon used, number of blows delivered to the body of the deceased, and whether the parts of the body attacked were most vulnerable.
  3. The primary judge then made determinations in respect of each of the seven deceased persons on whether the three elements of wilful murder under s. 299 (1) as he discussed had been proved beyond reasonable doubt by the prosecution.
  4. Regarding the first count of wilful murder on the indictment relating to the first deceased namely, Sike Wamne, who was killed on the fringes of the Ramu township, his Honour found there was direct evidence regarding the circumstances of the death as given by three named prosecution witnesses in their statements. It should be noted that the three witnesses did not identify the person or persons who killed the deceased. His Honour said the post-mortem report corroborated the evidence (statements) of the three witnesses that the deceased suffered multiple wounds caused by bush knives and other weapons and the deceased died instantly. His Honour said:

“...No particular person has been named as attacking the deceased. However, that is not necessary for the purposes of proving beyond reasonable doubt, and I find, that:


(1) a number of persons killed the deceased;

(2) the killing was unlawful (as no specific defence has been asserted);

(3) there was an intention to cause his death., which is clearly evident from the ferocity of the attack, the number of wounds inflicted and the number of wounds to vulnerable parts of the body (eg. head and skull, chest, abdomen and back);


I find that the State has proven beyond doubt that offence of wilful murder was committed against the deceased.”


  1. Regarding the second count on the indictment relating to deceased Nick Uria, his Honour also found there was direct evidence regarding the circumstances of death. The evidence he said was given orally by three named prosecution witnesses, he said the witnesses were cross-examined on the identification of those who attacked the deceased. The evidence was strongly contested by the prosecution and on his assessment, the three were honest and reliable witnesses. He again relied on the post-mortem report on the deceased and found the deceased suffered multiple wounds caused by weapons such as bush knives and the deceased died instantly. His Honour said:

“(1) a number of people killed the deceased;


(2 the killing was unlawful (as no specific defence has been raised);

(3 there was an intention to cause his death, which is clearly evident from the ferocity of the attack, the number of wounds inflicted and the number of wounds to vulnerable parts of the body (eg. head and skull, neck, severed limbs).

I find that the State has proven beyond reasonable doubt that the offence of wilful murder was committed against the deceased.”

  1. Regarding the third count on the indictment relating to deceased Yambung Nawoya, his Honour again found there was direct evidence regarding the circumstances of death, as given in oral testimony by three named prosecution witnesses, who were cross-examined on identification of the persons who attacked and killed the deceased. His Honour said the evidence by these witnesses were not strongly contested. He said, he found the witnesses honest and reliable. Again, his Honour found that evidence was corroborated by the post-mortem report which showed the deceased suffered multiple wounds caused by weapons such as bush knives. The legs and arms were severed, and the deceased died instantly. His Honour said:

“(1) a number of people killed the deceased;


(2) the killing was unlawful (as no specific defence was raised);


(3) there was an intention to cause his death, which is clearly evident from the ferocity of the attack, the number of wounds inflicted and the number of wounds to vulnerable parts of the body (eg. head and skull, neck, severed limbs).


I find that the State has proven beyond reasonable doubt that the offence of wilful murder was committed against the deceased.”


  1. On the fourth count on the indictment relating to deceased Beramo Tipupu, the primary judge again found there was direct evidence regarding the circumstances of death, given in the form of oral testimony by a named female prosecution witness. His Honour noted the witness was cross-examined and her evidence was not strongly contested by the prosecution. The primary judge again relied on the post-mortem report which his Honour said corroborated the evidence of the witness. His Honour found from the post-mortem report that deceased suffered multiple wounds caused by bush knives and other weapons. Both feet and right arm of the deceased were completely severed, and the deceased died instantly. The primary judge said:

“(1) a number of persons killed the deceased;

(2) the killing was unlawful (as no specific defence has been asserted);

(3) there was an intention to cause his death which is clearly evident from the ferocity of the attack, severed limbs, the number of wounds inflicted and the number of wounds to vulnerable parts of the body (eg. open skull fracture with multiple body mutilation).

I find that the State has proven beyond reasonable doubt that the offence of wilful murder was committed against the deceased.”


  1. On the fifth count on the indictment relating to deceased Baupa Dangingayo, again the primary judge found there was direct evidence regarding the circumstances of death, given orally by a named female prosecution witness. His Honour said the witness was cross-examined on her identification of persons who were among the group that attacked the deceased. His Honour said the evidence by the witness was strongly contested, however, he found the witness honest and reliable. His Honour said, members of hausman attacked the deceased and forced him into his house and locked the door and set fire to the house while the deceased was inside. His Honour said:

I find that the State has proven beyond reasonable doubt that the offence of wilful murder was committed against the deceased.”

  1. On the sixth count on the indictment relating to deceased Nathan Aki, the primary judge again found there was direct evidence regarding the circumstances of death given orally by two named prosecution witnesses. His Honour said, they were cross-examined particularly on the identification by Kande Popusewe of the persons who were in the group that attacked the deceased. His Honour found the evidence by the two witnesses were not strongly contested. His Honour found the two witnesses honest and reliable. Again, in respect of the deceased, the primary judge found the post-mortem report corroborated the evidence of the two witnesses that the deceased, a three-year-old boy was wounded, at least three times with a bush knife and he died instantly. His Honour said:

“(1) number of persons killed the deceased;

(2) the killing was unlawful (as no specific defence has been asserted);

(3) there was an intention to cause his death, which is clearly evident from the ferocity of the attack, the number of wounds inflicted and a number of wounds to vulnerable parts of the body (eg. open skull fracture, right temporal).

I find that the State has proven beyond reasonable doubt that the offence of wilful murder was committed against the deceased”.

  1. On the seventh and final count on the indictment relating to deceased Anao Gunumi, again the primary judge found there was direct evidence regarding the circumstances of death, given orally by one named male prosecution witness. His Honour said the witness was cross-examined particularly on the identification of the persons who were in the group that attacked the deceased. His Honour found the witness honest and reliable. Again, his Honour said the post-mortem report corroborated the witnesses’ evidence that deceased, a five-year-old boy suffered multiple bush knife wounds and died instantly. His Honour said:

“(1) a number of persons killed the deceased;


(2) the killing was unlawful (as no specific defence has been asserted;

(3) there was an intention to cause his death, which is clearly evident from the ferocity of the attack, the number of wounds inflicted and the number of wounds to vulnerable parts of the body (eg. three open skull fractures).

I find that the State has proven beyond reasonable doubt that the offence of wilful murder was committed against the deceased.”

  1. His Honour after warning himself of the dangers in wrong persons being identified as responsible for the deaths mentioned above, said he found the State witnesses honest and reliable. As to the evidence regarding identification of the accused, his Honour said, he accepted the evidence by the prosecution witnesses because they knew the accused and were able to recognize them.
  2. Regarding the identifications made by the prosecution witnesses of the accused in the court room, the primary judge said:

“...The courtroom identification procedures were challenging logistically but cannot reasonably be regarded as unsafe or unreliable or prone to false identification; the fact that in most instances of positive identification in the courtroom the name given by the witness did not match the name of the accused on the indictment is inconsequential as judicial notice is taken of the fact that it is not uncommon for people, particularly those in villages to have more than one name and in any event in most instances the name of the accused on the indictment closely resembled the name given by the identifying witness.


I therefore find the State has proven beyond reasonable doubt that the accused shown in the following table directly committed the offence of wilful murder and are convicted under s. 299 (1) of the Criminal Code on the counts shown.” (My underlining).


  1. The primary judge subsequently found the eight accused directly caused the six deaths at Sakiko village, thus they each wilfully murdered the six deceased persons. The eight accused are, Bakun Moa, subject of the fifth count on the indictment, he was found to have killed Baupa Danginayo; Enos Aware, subject of the third count on the indictment, he was found to have killed Yambung Nawoya; Imex Gaosa, subject of the second, third and sixth counts on the indictment, he was found to have killed Nick Uria, Yambung Nawoya and Nathan Aki; Jeffery Ronny, subject of the seventh count on the indictment, he was found to have killed Anao Gunumi; Noguro Sua, subject of the fifth count on the indictment, he was found to have killed Baupa Dangingayu; Simon Duma, subject of second and third counts on the indictment, he was found to have killed Nick Uria and Yambung Nawoya; Simon Towera, subject of the fourth count on the indictment, he was found to have killed Beramo Tipupu and Winson Dos, subject of the third and seventh counts on the indictment, he was found to have killed Yambung Nawoya and Anao Gunumu.
  2. The primary judge then considered the roles of the applicants regarding the seven killings, vz; whether they could be safely convicted of seven counts of wilful murder, as aiders and abettors under s. 7 (1) (b) and (c) of the Criminal Code. After hearing submissions by the defence counsel that it would be unsafe to convict the applicants of aiding and abetting the seven wilful murders, because there were two groups of men that raided Sakiko village, and it was unclear who aided and abetted the killings and given that some of the applicants’ accomplices had escaped from Sakiko village. His Honour in rejecting the submissions said:

“I find no merit in the first argument. I uphold the State’s submission that the only reasonable inference to draw from the evidence is that there was only one Hausman group. There was no evidence adduced by the defence to challenge that inference. That group made its way to Sakiko and members of that group and no other group committed seven wilful murder offences in or in the vicinity of Sakiko. The fact that there are other routes into and out of Sakiko is inconsequential. The evidence of the police officers present is clear that it was the members of the Hausman group that was initially observed walking along the highway at Sankiang Bridge who committed the offences. Some members of the group (but not all) were assembled on the Sakiko field and then conveyed to Ramu Police Station and then charged with wilful murder. The State has proven beyond reasonable doubt that there was only one Hausman group and that all 97 accused were members of that group.


The defence’s second major argument carries more weight. It is true that there is no specific evidence as to what each of the 89 accused against whom there is no direct evidence actually did to aid or assist those who directly committed the offences. However, whilst conscious of the general principle that presence alone does not give rise to guilt, the special and extra ordinary circumstances of this case militate towards a conclusion that in fact each member of the Hausman group was not merely present.


This was a mass raid, a rampage, a massacre. There is no evidence that any member of the group withdrew or exhibited any hesitation about continuing to be involved. I find that each member of the group was actively involved at least by contributing to the mayhem and terror that was wrought upon the residents of Sakiko (and before them on Sike Wamne).


I conclude that the State has beyond (sic.) reasonable doubt that each of the 97 accused was a member of the group that marched along the public roads in the manner alleged and raided the village, certain members of which group committed the seven offences of wilful murder the subject of the indictment. The State proved beyond reasonable doubt that by their participation in the group’s activities each of the accused did acts for the purpose of enabling and aiding those who directly committed the offences. Each of the accused is by virtue of s. 7 (1) (b) and (c) of the Criminal Code guilty of seven counts of wilful murder, as charged”. (My underlining).


  1. In applying the facts and circumstances of the case to the requirements of s. 8 of the Criminal Code, especially on the issue of whether the accused had formed a common intention to prosecute an unlawful purpose of raiding Sakiko village and whether the seven deaths were a probable consequence of prosecuting such unlawful purpose, the primary judge said this:

“I find that the State has proved beyond reasonable doubt that:

Each of the accused as a member of the Hausman group that marched along the public roads in the manner alleged and raided the village and that certain members of the group committed the seven offences of wilful murder the subject of the indictment; none of the accused left the group or engage in any conduct that would suggest that he was an unwilling participant in all the group’s activities including killing the bystander, Sike Wamne, on the way to Sakiko, raiding the village, destroying property, threatening and chasing residents and killing six village residents; the members of that group had formed a common intention to prosecute an unlawful purpose (raid the village believed to be harbouring sorcerers and to attack the residents of the village and to kill sorcerers or persons connected with or harbouring them); and in the prosecution of that purpose, seven offences were committed that were of such a nature (involving death) that commission of those offences was a probable consequence of the prosecution of that unlawful purpose.

I conclude for the purposes of s. 8 that the State has proven beyond reasonable doubt that:

(i each of the accused formed a common intention with other members of the Hausman group, to prosecute the purpose (sic.) of killing people who were suspected sorcerers or those thought to be harbouring them, at Sakiko, in conjunction with each other, and I find that there was a clear intention to kill people – not just cause them grievous bodily harm – that was the common purpose which each accused shared with other members of the Hausman group;

(ii that was an obviously unlawful purpose as they were proposing to take the law into their own hands;

(iii they prosecuted that purpose in that they acted together with the aim of implementing the course of action that they had agreed and embarked on;

(iv in doing so the offence of wilful murder was committed against the seven deceased persons who are the subject of counts 1 to 7 on the indictment.

(v the commission of those offences was the probable (i.e likely) consequence of the prosecution of that purpose.

Each of the accused is therefore by virtue of s.8 of the Criminal Code guilty of seven counts of wilful murder, as charged”. (My underlining).


Grounds of review


  1. The applicants raised six grounds of review, which can be summarized as follows:

(i). The learned primary judge erred in finding that applicants formed a common intention to commit the offence of wilful murder on the seven deceased under s. 8 of the Criminal Code because there was no evidence that each of the applicants intended to kill any of the deceased, nor was there evidence that the death of each of the seven deceased was a probable consequence of raiding Sakiko village in search of the sorcerers to kill them.


(ii). The learned primary judge erred in convicting the applicants of wilfully murdering the seven deceased under s. 7 (1) (b) and (c) of the Criminal Code because there was no evidence of what each of the applicants did to either aid or abet or did any act for the purposes of enabling any person to kill the seven deceased persons.


(iii). The learned primary judge erred in law in convicting the applicants as principal offenders by aiding and abetting the seven wilful murders under s. 7 (1) (b) and (c) of the Criminal Code. There was no evidence of each of the applicants aiding and abetting or doing or omitting to do any act for the purposes of enabling the applicants to kill the seven deceased persons.


(iv). The learned primary judge erred in the exercise of his sentencing discretion when imposing life imprisonment on each of the applicants. There was no evidence at all regarding the degree of their alleged participation in the alleged seven wilful murders. The sentences of life imprisonment were harsh and oppressive and manifestly excessive.


(v). The learned primary judge erred in the exercise of his sentencing discretion in imposing cumulative rather than concurrent sentences.


(vi). The learned primary judge erred in law in not considering the relevant mitigating factors for each of the applicants. For example, the applicants were first time offenders, payments of compensation made to the relatives of the deceased, the applicants being unsophisticated villagers, reconciliation ceremonies having been held throughout the Naho-Rawa Local-level Government of Rai Coast District of Madang Province where the six deceased persons came from and many of the applicants being youthful offenders.


  1. The applicants seek orders that their review be allowed, and their respective convictions and sentences quashed and set aside.

Submissions


(i Applicants
  1. Mr Mamu submitted that convictions of the applicants on seven counts of wilful murder were against the evidence and the weight of the evidence. There was no evidence that each of the applicants intended to kill the seven deceased, let alone aided and abetted their killings. Thus, there was no basis for the primary judge to find that seven killings were the probable consequence of the raid of Sakiko village, and that each applicant aided and abetted the killings.
  2. Mr Mamu submitted that it was crucial for the prosecution to identify the person or persons who were directly responsible for killing and causing the death of Sike Wamne, the subject of the first count on the indictment because that is an element of the offence of wilful murder under s. 299 (1) of the Criminal Code. It was submitted that prosecution had to prove this element beyond reasonable doubt. The primary judge had to be satisfied beyond reasonable doubt of that element to find the applicants guilty of wilful murder of Sike Wamne by aiding and abetting the killing. It was submitted that the prosecution failed to prove this element, thus the first count of wilful murder relating to deceased Sike Wamne was not proved by the prosecution.
  3. It was submitted that primary judge erred in law in finding that applicants had pursuant to s. 8 of the Criminal Code, a common intention to prosecute an unlawful purpose of raiding Sakiko village to find sorcerers to kill them. Mr Mamu submitted the primary judge could not make such finding on the evidence before him because such common intention could not apply to Sike Wamne because he was not a resident of Sakiko village, he was from Jiwaka Province and an employee of RAIL and was residing in Ramu township. Mr Mamu submitted that applicants should have been acquitted of the first count.
  4. It was submitted by Mr Mamu that the reason the applicants were convicted of the seven wilful murders as aiders and abettors by the primary judge is, they were members of hausman; they marched together from Ranara village with a common intention to go and raid Sakiko village, find the alleged sorcerers and kill them; they were all armed with weapons and painted their faces in warlike way and; all the seven wilful murders were committed during the march and they were part of the group of men that raided Sakiko village. Thus, convicting them under ss. 7 (1) (b) and (c) and 8 of the Criminal Code. However, it was submitted that these findings were insufficient for the primary judge to be satisfied beyond reasonable doubt that the applicants aided and abetted the seven wilful murders; nor could the primary judge be satisfied beyond reasonable doubt upon the evidence before him that the applicants had common intention under s. 8 of the Criminal Code to raid Sakiko village, let alone kill the suspected sorcerers. Thus, it was argued that convictions of the applicants for the seven wilful murders were unsafe. It was also submitted that there was no evidence before the primary judge that the applicant were members of hausman.
  5. Regarding the sentences of life imprisonment given to the applicants, it was submitted that primary judge erred in law in not addressing the degree of participation, if any, by each applicant in the seven wilful murders and reflect them in their punishments. It was submitted that the blanket and uniform punishment of life sentence given to all the applicants amounted an error of law because it reflected the failure by the primary judge to properly exercise his sentencing discretion. Furthermore, the sentences were manifestly excessive, harsh, and oppressive.
  6. It was further submitted that the primary judge failed to consider the mitigating factors, such as the applicants being first time and juvenile offenders. Also, that they were unsophisticated villagers and peace and reconciliation ceremonies were held throughout their community.
  7. It was also submitted that the primary judge erred in the exercise of his sentencing discretion by imposing cumulative rather than concurrent sentences. The sentences therefore offend against the totality principle.
  8. The Public Prosecutor, Mr Pondros Kaluwin of counsel for the respondent submitted that the primary court in its decision on verdict properly and adequately addressed the element of intention to kill based on the evidence before the court. It was submitted that applicants’ common intention to kill was obvious from the types of wounds they inflicted on all the deceased, the vulnerable parts of the bodies they attacked, the number of blows delivered on the deceased, and the types of weapons they used to attack and kill the seven deceased.
  9. It was also submitted that all the applicants belonged to hausman and they were same men that marched to Sakiko village and raided it, thus they aided and abetted each other in the seven killings. The primary judge therefore was right in finding each applicant guilty on all seven counts of wilful murder. As to the first killing, it was submitted that the killing was done by the members of hausman. All the convictions were therefore safe and proper.
  10. It was further submitted that same people were rounded up and transported to Ramu Police station where they were charged under the Summary Offences Act Chapter 264. They all pleaded guilty and were sentenced by a Magistrate. The applicants were also identified with black charcoal paints on their faces.
  11. Regarding the sentences imposed on the applicants, it was submitted that mitigating factors were raised by the applicants on allocutus and the court took them into account on sentence. The issue of cumulative and concurrent sentences did not arise because the applicants were given life imprisonments.
  12. It follows that the primary judge did not err in the exercise of his sentencing discretion. The applications should therefore be dismissed.

Considerations and reasons for decision


  1. Sections 7, 8 and 299 of the Criminal Code are pertinent, and are reproduced below for ease of reference.
  2. Section 7 provides as follows:

Division 2. – Parties to Offences.

  1. PRINCIPAL OFFENDERS.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:–

(a) every person who actually does the act or makes the omission that constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence.

(2) In Subsection (1)(d), the person may be charged with–

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is–

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment,

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.


  1. Section 8 provides as follows:
    1. OFFENCES COMMITTED IN PROSECUTION OF COMMON PURPOSE.

Where–

(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,

each of them shall be deemed to have committed the offence.

  1. Section 299 provides as follows:
    1. WILFUL MURDER.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

  1. It is important to note that Mr. Kaluwin had in my view quite rightly conceded during submissions by counsel that the prosecution failed to prove that applicants had a common intention under s. 8 of the Criminal Code to prosecute an unlawful purpose of raiding Sakiko village. I canvass this point further later in my judgment.
  2. It is convenient now to discuss the established principles relating to ss. 299 (1), 7 and 8 of the Criminal Code. I propose to do this by discussing firstly, some case law which discussed and applied the principles then, secondly, discuss how the principles apply to this case.
  3. In The State v. Tony Emmanuel and Edward Yau [2012] PGNC 368; N4599, Kirriwom J, discussed the elements of s. 299 (1) which prescribes the offence of wilful murder. His Honour also discussed the principles relating to aiding and abetting under s. 7 of the Criminal Code and the doctrines of common intention and unlawful purpose under s. 8 of the Criminal Code. In that case, the accused were charged with wilful murder under s. 299 (1) of the Criminal Code. The case involved customary land dispute between the accused and the deceased, and the killing was found to have been motivated by the claim of ownership over the customary land. The trial judge, in considering s. 229 (1) of the Criminal Code said, the following elements of the offence of wilful murder under s. 299 (1) required proof beyond reasonable doubt. First, the accused killed the deceased. Second, the deceased was killed. Third, the accused had the necessary intention to kill the deceased. In addition, the accused had to be clearly and positively identified as the one that killed the deceased. If the prosecution failed to satisfy any of these elements, then the accused was entitled to be acquitted. I respectfully agree with his Honour’s views and adopt them. The learned judge in that case said, the elements of common intention required under s. 8 and the unlawful purpose thereto, were satisfied when the accused and his relatives discussed and agreed to attack the deceased which they did by traveling to the hamlet where the deceased lived and killed him. The trial judge also found there was aiding and abetting under s. 7 and the accused actively encouraged each other to kill the deceased. The judge after discussing aiding and abetting under s. 7 (1) and (2) then discussed s. 7 (3) and (4) relating to counselling and procuring the commission of the offence and relevantly said:

“But this is not to say that the rest of s. 7 does not apply to Tony Emmanuel and Edward Yau. The facts presented in the evidence do not permit the section to be applied restrictively in respect of the two accused. Subsection (sic.) (3) and (4) envisages (sic.) a scenario where the accused only gives orders and (sic.) while his executioner does the dirty work for him, he is somewhere else enjoying himself doing something else. Here both accused were present and physically and actively by words and their actions encouraging Jonathan and the others to attack the deceased and his family. This evidence places them in a nick (sic.) of the action as principal offenders. So whichever way one looks at their complicity in the crime, they are well and truly covered under s. 7 of the Code in all its intents and purposes.”


  1. In Willy Kelly Goya v. The State [1987] PNGLR 51; [1987] PGSC 8, the Supreme Court considered the requirements under s. 8 of the Criminal Code and said, to justify a conviction for wilful murder there must be proof beyond reasonable doubt that all the accused had a common intention to kill and had unlawful purpose in attacking the deceased, and the death was the probable consequence of the prosecution of the unlawful purpose. The court said where the common intention was to attack a person with the intention of merely causing grievous bodily harm and death resulted, the proper conviction was for murder even though one of the assailants may have formed the intention to kill. In that case, the court said it was unclear whether the appellant had the necessary intention to kill. Thus, the court substituted conviction for wilful murder with murder. In coming to this decision, the court said:

“...We find no sufficient evidence which would have justified the trial judge in being satisfied beyond reasonable doubt that this appellant himself formed the intention to kill and that his blows caused death. Nor is there sufficient evidence to show that the group formed a common purpose within the meaning of the Criminal Code (Ch No 262) s.8 (which the appellant shared) to actually kill the deceased. Nor was the offence of wilful murder a probable consequence of their unlawful common purpose.


The actual intention of the appellant is also crucial when considering the effect of s. 7 of the Criminal Code. Undoubtedly, the appellant was aiding the others to commit the offence but the question still remains: was it the offence of wilful murder requiring that the accused had the specific intention that Pais should die or did the appellant merely envisage the infliction of grievous bodily harm – in which case he aided the offence of murder only.


...According to the view of the law which we have stated, the trial judge should not have convicted the appellant of wilful murder unless those findings of fact justified him drawing the inference, beyond reasonable doubt, that the appellant himself shared a common purpose to deliberately kill pais. We find that the highest degree of culpability which can be safely inferred from the facts found by the trial judge was that he must, at least, have joined in a common purpose to cause grievous bodily harm to Pais. That being the case, and such death resulted, the appellant should have been convicted on count 1 of the murder of Pais.


The same reason applies equally to count 2 concerning the death of Francis. He also was attacked by the appellant and his group. One serious blow was dealt to his head by a man named Robert, who may well have intended to kill him. Before that, however, the appellant and the others had joined in punching Francis. As previously stated we are satisfied they had a common purpose to cause grievous bodily harm to Pais and the nature of the attack upon Francis which then followed immediately afterward would justify an inference that their common purpose was also to cause at least cause (sic.) grievous bodily harm to Francis. Even if Robert may have intended to kill Francis, we find that is insufficient evidence for the learned trial judge to find beyond reasonable doubt that all the others, including the appellant, shared this specific intention to kill. Nor was the offence of wilful murder a probable consequence of their unlawful purpose. Nor, within the meaning of s. 7, should he have been satisfied that the offence the appellant was aiding the others to commit was the offence of wilful murder. This conclusion is supported to a certain extent by the fact that they left Francis unconscious but alive. It would have been a different matter if they had notice (sic.) he was still breathing and finished him off.” (My underlining).


  1. In Regina v. Gregory Ino Genai and Others [1974] PNGLR 1; [1974] PGSC 10, Clarkson J, discussed the requirements under ss. 7 and 8 of the Criminal Code. The three accused who were from Goilala in the Central Province, on 18 December, 1971, planned to attack the deceased after the deceased made some disparaging remarks about Goilalas. The incident happened at Palm Tavern, Badili, which was a liquor bar. The three men were at the Tarven and towards the closing time, one of the men bumped into the deceased who was holding his drink causing the drink to spill, that made the deceased to make the remarks about Goilalas. The three men being angered by the remarks, planned to attack the deceased which they later executed. The three men used a wood and a knife to attack the deceased, one of the blows proved fatal. They were all charged with wilful murder but were all convicted of manslaughter. The judge found all three men had a common intention to attack the deceased and in executing that unlawful purpose, killed the deceased which his Honour found was the probable consequence of the attack on the deceased. After discussing s. 8 of the Criminal Code his Honour said:

“Here, there was a common intention formed by the accused to prosecute in conjunction with one another the unlawful purpose of hitting or assaulting the deceased and in the prosecution of that purpose the deceased was unlawfully killed. Was that killing a probable consequence of the prosecution of that purpose? I have already indicated that Toita should not be regarded as having knowledge, before the time he stabbed the deceased, of the nature of the actual weapons used by the other assailants, but this does not mean that viewed objectively it was unlikely that the other assailants would use weapons. On the contrary, common experience in this country is that the use of the weapons in disputes between males of primitive background is by no means exceptional. Here, we have three young men from a primitive area, affected by liquor, who planned to attack with violence a man who comes from another part of the country and who they think has wronged them.

...I conclude that the unlawful killing of the deceased was a probable consequence of the prosecution of the unlawful purpose of attacking the deceased with weapons.” (My underlining).

  1. In Agiru Aieni and 12 Others v. Paul Tahian [1978] PNGLR 37; [1978] PGgNC 13, Wilson J considered the requirements under ss. 7 and 8 of the Criminal Code. This was an appeal against a decision of a District Court in which the appellants were appealing against their convictions on a charge of behaving in a manner that was likely to cause a reasonable person to believe that they intended to start a fight contrary to s. 8 of the Summary Offences Act, 1977. It was claimed they were at the scene of the crime and had aided and abetted each other. In allowing the appeal, the judge held that mere presence was not enough to constitute aiding and abetting. His Honour said:

“Proof of mere presence at a place where a number of people are found will not constitute aiding and abetting, sufficient to support a conviction for breach of s. 8 of the Summary Offences Act, 1977, there needs to be some proof of promotion or encouragement of the principal offender.” My underlining).

  1. The court in that case adopted the remarks made by the Courts-Martial Appeal Court in R v. Clarkson, Carroll and Dodd [1971] 3 All E.R. 344 at 347; (1971) 55 Cr. App. R. 445. There, the court said:

“It is not enough then, that the presence of the accused has, in fact, given encouragement. It must be proved that the accused intended to give encouragement; that he wilfully encouraged... there must be encouragement in fact.” (My underlining.

  1. In Regina v. Umarum [1969-70] PNGLR 190; [1969] PGSC 43; Clarkson J considered s. 7 (b) of the Criminal Code. The accused was charged with murder of the deceased although he was not present at the scene where the deceased was killed. He was charged on the basis that some months before the killing, one of the men that killed the deceased sought his approval to kill the deceased. It was alleged that the accused agreed, and that it was only as a result of such approval that the killing was permitted by custom. However, it was not shown by the prosecution that custom required the approval of the accused before the killing could take place. The Court held that mere consent or acquiescence did not amount to an encouragement, which is the minimum requirement for the operation of s. 7 (b) of the Criminal Code.
  2. The Crown’s case was that by custom, Asis (one of the men that did the actual killing) could not and would not kill without the accused’s assent and that giving of the assent which were in the words - “yes you can kill him” amounted to enabling or aiding within the meaning of s. 7 (b) of the Criminal Code.
  3. In elaborating his view that the alleged assent by the accused that Asis could kill the deceased, was not enough to amount to encouragement under s. 7 (b) of the Criminal Code, his Honour said:

“To my mind the evidence of the Crown falls short of establishing the proposition which it set out to prove. There are a number of difficulties to which I will refer at this stage only briefly; firstly, on the evidence of the patrol officer who took the statement there is the clear admission that there could have been a misunderstanding in the interpretation and that the accused could have been referring to a wounding or attacking of the deceased rather than killing. Additionally, there is, I think, no evidence of any custom which would oblige Asis to obtain the assent of the accused.


The evidence raised the possibility that the refusal of consent by the leader of one’s own village may deter any proceeding with the proposed plan, but of course the accused is, on the evidence, not the leader or big man of Asis’ village. As counsel for the defence has pointed out, what evidence was there of custom related to killings and not to attacks or mere woundings and if the doubt in translation is conceded then it is not certain that the Court has before it any relevant evidence of custom. Also it appears to me that there is no evidence before me that Asis himself or Bitimur was bound by the custom which has been referred to in evidence, nor is there I think sufficient evidence to show that they or either of them were acting pursuant to any custom which had been proved. For myself, having regard to interpretation difficulties in the case and taking into account the general publicity and feeling relating to this case in the Simbai area, I think it would be quite reasonable to construe the conversation which took place as being nothing more than an announcement by Asis to the accused that, he, Asis, intended or was contemplating doing something concerning the deceased, that he sought in effect an assurance from the accused that he had no objection to such course being pursued, and the accused simply indicated that he did not.


A mere consent or acquiescence by the accused does not amount to encouragement, which I think on the authorities is the minimum requirement for the of the subsection. Further, if the conversation is construed in the way I have suggested as a mere acquiescence in or acceptance of Asis’ proposal-and I have said I think that it is reasonable so to construe it-then I cannot see, with specific reference to s. 7 (b) of the Code, how it can be said that a mere acquiescence given in this manner was given ´for the purposes of´ enabling Asis’ attack on the deceased, nor do I think it is even open on the present facts to say that such acquiescence could be “for the purpose of” aiding such attack.” (My underlining).


  1. In Porewa Wani v. The State [1979] PNGLR 593; [1979] PGSC 30; the Supreme Court considered s. 7 (1) (c) of the Criminal Code in relation to aiding and abetting. In that case, the accused, Morris was being tried for dangerous driving causing death along the main Kairuku highway in the Central Province. The deceased in that accident was a man from Kairuku. On the day of the trial, judge visited the scene of the accident accompanied by the police, lawyers, and Morris. The widow of the deceased, Avia Aihi, knew about the planned visit to the scene of the accident by the court party including Morris and went ahead to the scene of the accident with the appellant and some relatives and waited for the court party to arrive. When at the scene of the accident Morris was explaining to the trial judge how the accident happened, when Avia armed with a bush knife rushed to Morris from where she was hiding to attack Morris, at the same time the appellant said to Avia “kill him kill him kill him.”
  2. The court said:

“It is well established that mere presence at the scene of a crime is not enough to constitute aiding. However, presence and wilful encouragement are enough.” (My underlining).


  1. The court also adopted what Hawkins J said in R v. Coney [1882] UKLawRpKQB 30; (1882) 8 Q,B.D. 534 at 557 where the learned judge said:

“In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not.” (My underlining).


  1. In its conclusion, the court in Porewa Wani said:

“We think the crucial finding of fact in this case was that the appellant said in Motu “alaia, alaia, alaia” (which in English means “kill him, kill him, kill him”). The conclusion is irresistible that, by being present when Morris Modeda was murdered and by knowing of Avia Aihi’s intention to kill him by saying those words, the appellant was encouraging intentionally by words intended to signify approval and was, therefore, wilfully encouraging.” (My underlining).


  1. Having given the best of my attention to the learned primary judge’s decision firstly on verdict in which all the applicants were convicted of all seven counts of wilful murder as aiders and abettors of the crime, I have, on the strength of the well established principles as enunciated in the line of authorities I cited above, with the greatest of respect reached an inescapable conclusion that his Honour fell into errors in applying the principles relating to ss. 299 (1); 7 and 8 of the Criminal Code.
  2. To my mind, there cannot be any doubt that the learned primary judge found the applicants guilty of all seven counts of wilful murder under ss. 7 (1) (b) and (c ) and 8 of the Criminal Code on the basis of his findings; that all the applicants were members of hausman group, that they all marched together from Ranara village to Sakiko village via Ramu township with their faces painted in warlike way and raided Sakiko village, destroyed properties belonging to Sakiko villagers, including houses which were set on fire and the six Sakiko villagers being killed by some of them, (although some of them had escaped at Sakiko village). The rest were assembled at a sports field at Sakiko village and transported to Ramu police station together, still armed with weapons. They all handed their weapons to the police at Ramu police station, where they all slept. (The weapons were not labelled, and their owners were not identified before being handed over). They were all charged under the Summary Offences Act, and their cases heard en-masse by a Magistrate from Madang at the Ramu Police station in which they all pleaded guilty and in consequence, all the adult men were each sentenced to six months imprisonment and all the juvenile males were each fined K200.00 and set free upon payment of their fines. None of the applicants withdrew from the group, and they were all willing participants in all of group’s activities in relation to the seven deaths, the subject of seven counts of wilful murder on the indictment. Thus, the applicants aided and abetted the seven wilful murders and had a common intention to prosecute an unlawful purpose which was to raid Sakiko village and find the sorcerers who migrated from Gomumu and neighbouring villagers who were residing at Sakiko village and kill them. As part of the unlawful purpose the applicants also intended to kill Sakiko villagers who were harbouring any of the sorcerers. The seven killings were the probable consequences of the prosecution of the unlawful purpose of raiding Sakiko village.
  3. All these factors having been considered together, formed the basis of his Honour’s finding that the applicants were guilty of the seven wilful murders.
  4. With respect, such factors as found by the primary judge in my considered opinion were contrary to the relevant established principles relating to ss. 299 (1), 7 and 8 of the Criminal Code and failed to satisfy each of the elements pertinent to these provisions.
  5. Thus, these factors on their own were in my opinion not enough to satisfy the primary judge beyond reasonable doubt that the applicants aided and abetted the seven wilful murders pursuant to s. 7 (1) (b) and (c) of the Criminal Code. Nor could these factors establish and prove beyond reasonable doubt that applicants had a common intention under s. 8 of the Criminal Code to raid Sakiko village let alone destroy properties belonging to Sakiko villagers and kill six Sakiko villagers.
  6. There was, in my respectful opinion, no evidence at all before the primary judge that the applicants had a common intention under s. 8 of the Criminal Code to raid Sakiko village and kill suspected sorcerers residing at Sakiko village and kill Sakiko villagers who were harbouring them. There was no evidence that applicants had a plan or a joint enterprise or venture to raid Sakiko village, which is an essential element common intention under s. 8 of the Criminal Code. Furthermore, there was no evidence that applicants had a common purpose, nor was there evidence that the raid of Sakiko village, the destruction of properties belonging to Sakiko villagers and the six wilful murders at Sakiko village were concerted actions of all the applicants nor could those murders be said to have been done by all the applicants “in conjunction” with each other. There was no evidence to support these assertions by the prosecution. All the seven wilful murders, including that of Sike Wamne just outside Ramu township were in my view, random killings committed by criminal opportunists. There is evidence supporting this view. For example, before one of the killings at Sakiko village one of the accomplices told the others not to harm women. Furthermore, there was no evidence that the seven people killed were sorcerers or even suspected sorcerers, and there was nothing in the manner the deceased were killed from which the primary judge could even infer that the deceased were killed because they were sorcerers, let alone suspected sorcerers who migrated from Gomumu and its neighbouring villages. This is very clear from how the first killing of Sike Wamne was done outside Ramu township. Before this person was attacked and killed, the men started throwing stones on top of the roofs of the houses and company buildings at Ramu township. When the men got to the deceased they asked where he was from, when he told them that he was from Jiwaka Province and raised his hands, the first batch of men walked past him but the men that followed attacked him and killed him instantly, cutting his body into pieces including his head. The deceased was shot with arrows and his body was mutilated. There is evidence that those same men tried to kill two other men, one was from Chimbu, the two men escaped into the company premises. Those two men and deceased SiKe Wamne could not be said to be sorcerers or suspected sorcerers, the members of hausmen were allegedly looking for to kill. The killing of Sike Wamne was therefore clearly random and was perpetrated by criminal opportunists and so were the attacks on the two other men.
  7. The six killings that followed at Sakiko village were done in similar way to how Sike Wamne was killed. The first person killed at Sakiko village was shot in the eye with an arrow before being attacked with bush knives, killing him instantly. There is no evidence that this person was killed because he was a sorcerer or a suspected sorcerer; the subsequent killings, including the two children were also random, they also had their bodies mutilated. Their heads were cut open and their brains removed, and bits of the brains were ritualistically put in their bags. All the seven killings were plainly random, they were brutal and merciless. There was no evidence at all that the deceased were killed because they were suspected sorcerers or because they were harbouring suspected sorcerers. To me, this is clear evidence that the killings were random and unplanned.
  8. I also find the destruction of properties, including setting fire to houses at Sakiko village were random and wanton and were pure criminal vandalism, which to me was clear evidence that the offenders also had no common purpose. The killing of Sike Wamne very clearly could not be said to be a probable consequence of the raid of Sakiko village. Nor could it be said to be a possible incident within the contemplation of all the applicants. In Johns v. R. (1980) 155 at 173, Street C.J, gave a helpful description of the doctrine of common purpose. His Honour said:

“a criminal liability (of an accessory) for an act which was within the contemplation of both himself and the principal in the first degree as an act which might be done in the course of carrying out the primary criminal intention - an act contemplated as a possible incident of the originally planned particular venture”. (My underlining).


  1. In the High Court appeal of the case, Mason, Murphy and Wilson JJ; in their joint judgment, quoted the above passage and added:

“Such an act is one which falls within the parties’ own purpose and design precisely because it is within their contemplation and foreseen as a possible incident of the execution of their planned enterprise.” (My underlining).


  1. This statement by the High Court also stresses a critical and important requirement to be satisfied for the doctrine of common purpose, which is, a careful and proper scrutiny of the terms of the agreement, viz; what exactly was in the minds of the proponents of the joint enterprise or venture.
  2. Having regard to the principles discussed herein, it is important to emphasize on certain pertinent points especially in relation to s. 7 of the Criminal Code under which the applicants were charged for the seven wilful murders as aiders and abettors. Firstly, there is no legislative intention under s. 7 to create responsibility for an unwilled act arising out of a planned or a joint enterprise or venture. Secondly, s. 7 creates responsibility for aiders and abettors (and enablers, the procurers and counsellors) and none other than the person who actually committed the offence.
  3. In this case, there is no evidence of a planned enterprise or venture by the applicants. The primary judge had, in my respectful opinion assumed that there was such an enterprise, when there was none. This means there was no basis at all for the applicants to be charged under s. 7 as aiders and abettors. Even the membership in the hausman group of the applicants was assumed, but even if they were members of hausman, which they were not, the membership alone in hausman was not enough for them to be caught by s. 7 as aiders and abettors of the seven wilful murders. For myself, painted faces and being armed with assorted weapons and marching together were not evidence of their membership in the hausman group. In this regard, there is evidence that one of the leaders of the group told the police that youth in the area forced the men to take part in the march and raid Sakiko village. Marching with such large group of men was also no proof or evidence of their membership in hausman. There is also no evidence of when and how hausman was formed and who formed it and who its members were, if any. Furthermore, there is no evidence of what hausman was, what its purposes were and why it was formed. Thus, the material before the primary judge could not in my respectful opinion establish and prove that everyone that marched to Sakiko village was a member of hausman. These issues must raise doubt whether all those who marched from Ranara village to Sakiko village were members of hausman at all, there was no evidence about the membership of hausman.
  4. Having regard to the principles discussed herein, for the prosecution to prove the applicants guilty of the seven wilful murders as principal offenders under s. 7 of the Criminal Code for aiding and abetting the persons that actually committed the seven wilful murders, the prosecution needed to prove three things. First, the actual persons who were directly responsible for causing the deaths. Second, the applicants actively aided and abetted the seven killings. Third, the applicants knew that those killings would be done. The prosecution failed to satisfy these requirements. No evidence was led on these three essential and determinative requirements. Applying these principles to Sike Wamne, (the first person to be killed near Ramu township), no one was identified as the person who was directly responsible for killing the deceased. This is fatal to the prosecution on two fronts. First, the essential element of s. 299 (1) of the Criminal Code, viz; the person or persons who killed Sike Wamne and caused his death with the necessary intention to kill him was or were not identified. See, The State v. Tommy Emmanuel and Edward Yau (supra). Second, because no one was identified as having killed and caused the death of Sike Wamne, the prosecution could not prove that applicants aided and abetted the killings pursuant to s. 7 (1) (b) and (c) of the Criminal Code. Hence, my view that the killing of Sike Wamne and the killings at Sakiko village were random and were not part of any common intention and or purpose of the applicants. Furthermore, no evidence was led by the prosecution to prove those who were present at the scene of the killing of Sike Wamne. Regarding the six wilful murders at Sakiko village, no clear evidence was led by the prosecution to identify those who were present at the scenes of the killings even for a possibility of connecting such persons as aiders and abettors of the killings. The identification evidence of those who might have witnessed the killings and were present at the scenes of the killings was quite poor and lacking in credibility and were such that none of the applicants could in my opinion be lawfully and safely convicted of aiding and abetting the six wilful murders.
  5. I therefore find that the primary judge erred in law in finding that applicants aided and abetted the wilful murder of Sike Wamne, the subject of the first count on the indictment. I also find the primary judge erred in law in finding the applicants guilty of the six wilful murders at Sakiko village as aiders and abettors of those who were directly responsible for and causing their deaths. There was at the very least, no clear evidence before the primary judge that each of the applicants aided and abetted those killings.
  6. There was absolutely no evidence that the persons killed were sorcerers or suspected sorcerers, as claimed by the prosecution, nor was there evidence that it was the common intention of all the applicants to kill the seven deceased. If the applicants were looking for sorcerers or suspected sorcerers residing at Sakiko village to kill as claimed by the prosecution, then the question is, why did they kill Sike Wamne outside Ramu township in the first place? Furthermore, the wilful murders of the children at Sakiko village, were they sorcerers? There was no apparent reasons for all the seven killings. The prosecution not only failed to prove beyond reasonable doubt that applicants aided and abetted the seven wilful murders, but they also failed to prove beyond reasonable doubt that applicants had a common intention and purpose to raid Sakiko village to kill the six Sakiko villagers.
  7. Even assuming the applicants were present at the scenes of the seven killings, for which there was no evidence, it is trite law that mere presence at the scenes of the killings or mere acquiescence of the killings was not enough to find the applicants guilty of aiding and abetting or encouraging the seven wilful murders. See, Regina v. Umarum (supra). As I said earlier, there had to be clear evidence proving beyond reasonable doubt that the applicants knew of the plan, if any, to kill the seven deceased, and that they actively aided and abetted the killings. Furthermore, that they anticipated the seven killings and were part of such plan or join enterprise or venture. The prosecution failed to prove these essential elements to establish aiding and abetting under s. 7 of the Criminal Code. See, The State v. Nataemo Wanu [1977] PNGLR 152; Reg. v. Witrasep Binengim [1975] PNGLR 95 and Reg. v. Solomon [1959] Qd. R. 123 at 128.See also, Willie Kelly Goya v. The State (supra) and Regina v. Gregory Ino Genai and Ors (supra).
  8. In my opinion, the failures and omissions by the prosecution as discussed herein are proper and firm basis to conclude that the decision on verdict by the learned primary judge was mainly based on conjecture, thus was also speculative. Counsel must bear some blame for these errors because, they were supposed to have assisted the court decide issues that were properly before it and arrive at a decision based on the merits of the case an was fair and just. Furthermore, that the case was decided according to law, and “law” in this regard includes the established principles pertinent to ss. 7, 8 and 299 (1) of the Criminal Code. See, Avia Aihi v. The State [1981] PNGLR 81. Of course, the court as the arbiter ultimately carried the onus to ensure that counsel did not deviate from the issues which were properly before it. If irrelevant matters were raised by the parties, and were entertained by the court, the likely result is the court could end up considering and determining matters which were extraneous, thus amounting to miscarriage of justice.
  9. In this instance, the primary judge also had regard to and considered matters which were not raised by the prosecuting counsel in his opening address. The prosecution only had the onus and duty to prove matters it raised in its opening address. See, s. 573 of the Criminal Code. See, also Jimmy Mostata Maladina v. The State (2016) SC1495 and The State v. Herman Kagl Diawo (1980) N255. Among the matters raised by the prosecution in its opening address was the common intention of the applicants to prosecute the unlawful purpose of finding the alleged sorcerers residing at Sakiko village to kill them. The prosecution was confined to proving the matters it raised in its opening address. However, the primary judge in his judgment on verdict said the applicants marched to Sakiko village to not only find sorcerers who were residing in that village and kill them but also to find those Sakiko villagers who were harbouring the sorcerers and kill them. Intention to kill the Sakiko villagers harbouring the suspected sorcerers was an extraneous matter which the primary judge considered, because it was not part of the outline by the prosecution of its case in its opening address, thus it was an error of law, constituting a ground for review. See, Les Curlewis & Ors v. David Yuapa (2013) SC1274; Kawaso Ltd v. Oil Search PNG Ltd (2012) SC1218; House v. King [1936] H.C.A 40; (1936) 55 C.L.R. 499; Micallef v. ICI Australia Operations Pty Ltd & Anor [2001 NSWCA 274 and Air Marshall McCormack and Another v. Vance [2008] ACTA 16.
  10. I also find that the applicants were not arraigned according to the mandatory requirements of s.557 of the Criminal Code, which is in these terms:-

557 Accused person to be called on to plead to indictment

(1 At the time appointed for the trial of an accused person, he shall be informed in open court of the offence with which he is charged, as set out in the indictment, and shall be called on to plead to the indictment, and to say whether he is guilty or not guilty of the charge.

(2 The trial begins when the accused person is called on in accordance with Subsection (1).
  1. The clear legislative intent in s. 557 is that an accused must be called to plead to the charge laid against him on the indictment. This is plain enough from the heading of the section itself. If there are several charges on the indictment, as was the case here, the accused must plead to each of the charges separately and say whether he is guilty or not guilty of the charges. Because this is a mandatory requirement, same procedure will apply even in cases where there is more than one accused, as in this case. Thus, the mandatory requirement is, every accused charged with an offence must plead to the charge or charges in the indictment. The court has the duty to comply strictly with this requirement by reading the charge to the accused, and explaining the charge to the accused who must understand the charge by being specifically asked whether he understood the charge. It is the duty of the Court to ensure the accused understood the charge, before the accused is asked to plead to the charge by being asked whether what is alleged against him in the charge (which had been explained to him) is true or not true and the plea must be unequivocal. In this process, the Court must also be satisfied that the person being arraigned is the same person named in the charge. This requirement can be met simply by the Court asking the accused whether he is the same person named in the charge. The name in the charge should be the name he is called to go to the dock and to plead. If the name in the charge is different or is slightly different to the name he is called to the dock by, then that must be clarified first by the accused himself before the arraignment. Compliance with this process lies at the core of the criminal justice system as it ensures the person answering to the charge is the person accused of the crime charged and is therefore rightly subjected to the rigours of criminal prosecution for offending against the State.
  2. In this case, the applicants did not plead to the indictment, viz; the charges were not put to them in the manner described above, so they did not plead to each of the seven counts of wilful murder on the indictment. Instead, they were all told of the story of their movements especially on Monday 14 April, 2014 by the primary judge and were told of the seven wilful murders they were alleged to have committed that day and were asked individually whether the allegations were true or not true. They told the court that allegations were not true, thus purportedly pleading not guilty. Also, the requirements or the elements of ss. 7 and 8 of the Criminal Code pursuant to which they were charged as aiders and abettors of the seven wilful murders were not explained and put clearly to them on arraignments. The primary judge told counsel that he would not read out the indictment to the applicants on their arraignments. His Honour called the applicants in groups of 8 as they were listed on the indictment and arraigned them together then were asked individually whether the charges were true. There was no identification and confirmation of the applicants’ names to match the names on the indictment before being arraigned. Plainly, the process applied by the primary judge in arraigning the applicants constituted a fundamental error of law and was an abuse of process which amounted to a serious miscarriage of justice. Therefore, although the issue regarding the arraignment of the applicants was not raised by the applicants as a ground of review, it is a glaring error of law going to the jurisdiction of the primary court to try the applicants on the charges laid against them and this Court having unfettered supervisory jurisdiction has power to review the matter and make determination on the matter as a matter of law. The process employed by the primary court in trying the applicants was a clear abuse of process, and this Court has the duty to correct the error and protect its processes from such abuse. See, The State v. Peter Painke (No.2) [1977] PNGLR 141; Authur Gilbert Smedley v. The State [1980] PNGLR 379; Anderson Agiru v. The Electoral Commission (2002) SC687; Application by Michael Aika and Ors (2004) SC753 and Michael Newell Wilson v. Clement Kuburam and Ors (2016) SC1489.
  3. In House v. King (supra), Dixon, Evatt and McTiernan JJ of the High Court of Australia in describing the powers of an appellate court said:-

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” (My underlining).

  1. These principles were adopted in Micallef v. ICI Australia Operations Pty Ltd & Anor (supra). His Honour Heydon JA stated the principles succinctly (Sheller JA and Studdert AJA agreeing) and said:-

“As a result, Garling DCJ had to make a discretionary decision on a matter of practice and procedure – an extremely important one, having potentially serious consequences for the plaintiff, but a discretionary decision on a matter of practice and procedure nonetheless. Any attack on decision of that character must fail unless it can be demonstrated that the decision-maker:

(a) made an error of legal principle,

(b) made a material error of fact,

(c) took into account some irrelevant matter,

(d) failed to take into account, or gave insufficient weight to, some relevant matter, or

(e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning”.

  1. In this case, the errors by the primary judge related to both procedural and substantive law to which the above principles apply equally. The errors are identifiable, thus providing the basis for review of the decisions on both verdict and sentence. What is of the essence is the exercise of discretion by the primary court. Thus, where there is an error in the exercise of discretion by a primary court either in its civil or criminal jurisdiction, such an error is subject to review by the superior court to do justice in the case. See, Curton Bros (PNG) Ltd & Anor v. University of Papua New Guinea (supra) (2005) SC788; Breckworld & Co. (NG) Ltd v. Groyke [1974] PNGLR 106 at 112 -113; Kawaso Ltd v. Oil Seach (PNG) Ltd (2012) SC1218 and Australian Coal and Shale Employees Union v. The Commonwealth [1953] HCA 25; (1956) 94 CLR 621 at 627.
  2. Turning again to the issues relating to s. 8 of the Criminal Code, as I alluded to earlier in my judgment, Mr Kaluwin, for the reasons given, had quite rightly conceded while addressing the Court during submissions that prosecution failed to prove that the applicants had a common intention to prosecute an unlawful purpose of raiding Sakiko village to kill the sorcerers residing in that village. The concession by Mr Kaluwin also applies to the prosecution arguments before the primary judge relating to the killing of Sike Wamne. The concession in my view renders all the issues raised and arguments by the prosecution relating to s. 8 of the Criminal Code merely of academic value. All the arguments by the prosecution regarding s. 8 have therefore been effectively abandoned and negated by the concession and are void of any legal effect.
  3. For all the reasons given herein, I allow the applicants’ applications for review against their convictions on the seven counts of wilful murder. The applicants’ convictions on the seven counts of wilful murders are therefore quashed and set aside.
  4. Having found for the applicants on their applications for review of their convictions for the seven wilful murders, it really is unnecessary for me to consider and determine their applications to review their sentences of life imprisonment because it is consequential that sentences also automatically stand dismissed. However, there is one fundamental legal issue which arises because of the sentences of life imprisonment imposed on the juvenile offenders. The issue must be properly determined.
  5. The sentences of life imprisonment imposed on all juvenile offenders in this case was a clear breach of the mandatory requirement under s. 85 of the Juvenile Justice Act, which provides as follows: -

85. PROHIBITION OF CERTAIN FORMS OF PUNISHMENT.


(1) The following sentences shall not be imposed on a juvenile -


(a) corporal punishment; or


(b) life imprisonment; or


(c) capital punishment


  1. As to the other pertinent requirements under the Juvenile Justice Act, affecting the jurisdiction of the primary judge in dealing with the juvenile offenders, my brother Kassman J has succinctly discussed the issues and the applicable law in his judgment which I have read. I have also read the observations by David J in his judgment regarding rights of juvenile offenders. I respectfully agree with the views expressed by their Honours. I have only one comment to make; the prohibition prescribed under s. 85 of the Juvenile Act, is against both the National Court exercising juvenile jurisdiction and the National Court exercising its normal criminal jurisdiction from imposing sentence of life imprisonment on a juvenile offender. In cases involving very serious crimes committed by a juvenile, the National Court may decide against exercising juvenile jurisdiction, thus try the juvenile offender like an adult. Such situation may arise where the juvenile offender has acted as an adult in committing the crime, for example cases of abduction and rape, wilful murder and so on, which are committed with clear intention and determination to harm in total disregard for human life and committing the crime with viciousness and brutality. In such a case, if the National Court decides to deal with the juvenile offender as an adult, there must be a clear exercise of discretion by the National Court, either on its own volition or on application. In the case before us, there is no evidence that the trial judge exercised such discretion.
  2. Consequently, I allow the applications for review by the juvenile applicants against their convictions and sentences. I also set aside their convictions and sentences.
  3. Orders accordingly.

(In consolidation)
SC Rev Nos. 29, 31 and 33 of 2018
BETWEEN
Enos Awari, Bakun Moa and Jeffrey Ronny
-v-
AND
The Independent State of Papua New Guinea


  1. At the time of hearing this application, only three applicants sought review of their convictions and sentences of death for the six wilful murders at Sakiko village. Originally, there were eight applicants but five escaped, thus pursuant to Order 5 r. 37 (a) of the Supreme Court Rules, 2012, the applications by the five escapees stand dismissed for want of prosecution. They will be at liberty to file fresh applications for review of their convictions and sentences with leave.
  2. Mr Mamu informed the Court that although there were three applicants that sought review of their convictions and sentences, one has since the hearing of this application, escaped. As I said earlier in my comments on the applications for review by 47 applicants, because the third applicant escaped after prosecuting his application, the decision of this Court will apply equally to him, like the two applicants who will be receiving the decision of the Court.
  3. The three applicants were dealt together with the 47 other applicants and arraigned on the seven wilful murders. In regard to the six wilful murders at Sakiko village, they were charged as the actual perpetrators of the wilful murders. I have found that they together with the 47 others were not arraigned in accordance with the mandatory requirements of s. 557 of the Criminal Code. I therefore found that their trial was an abuse of process and it amounted to a serious miscarriage of justice.
  4. Consequently, the considerations I have accorded to the 47 applicants regarding the arraignment under s. 557 of the Criminal Code also apply to the these three applicants, who were found guilty of the wilful murders of six Sakiko villagers and sentenced to death.
  5. There is no dispute that six persons were killed at Sakiko village, two of the deceased were children. The close relatives who the prosecution claimed witnessed the killings were called to give evidence, they were said to be two mothers of the two deceased children, the daughter and grandson of an old man that was also killed.
  6. Unfortunately, the names given for the men who were identified in the courtroom as directly responsible for and causing those deaths by the supposedly eyewitnesses did not completely match the names on the indictment. This issue was acknowledged by the trial judge in his decision on verdict, but his Honour accepted that offenders were properly and positively identified because it was his view that it is common knowledge for village people to have other names. His Honour held that he could take judicial notice of those names because the names bore close resemblance to the names on the indictment.
  7. I respectfully beg to differ from the view expressed by the learned primary judge. Every person accused of committing an offence and charged with an offence must be positively identified by the prosecution from the commencement of the trial when arraigned in the dock, to ensure that he or she is the same person named in the indictment. This is a part and parcel of the heavy burden the prosecution carries which it must discharge to prove the case beyond reasonable doubt. Proper identification of an accused right from the beginning of the trial to the end of the trial is fundamental to a fair trial, and it is a core and pillar principle of our criminal justice system. In the result, I find that in this instance, the prosecution failed to prove beyond reasonable doubt the persons who were directly responsible for and caused the deaths of the six deceased at Sakiko village.
  8. Furthermore, the three applicants not being arraigned in accordance with the mandatory requirements of s. 557 of the Criminal Code was a fundamental error of law by the primary court. The result is the three applicants did not plead to the charges laid against them on the indictment as required by law. This was also a clear abuse of process amounting to a serious miscarriage of justice. Their trial was therefore with the greatest of respect seriously flawed by these errors.
  9. Consequently, I allow the applications by the three applicants to review their convictions and sentences. I quash their convictions and sentences and set them aside.
  10. I consider that the proper order to make given the special circumstances of the case is, the cases against the three applicants be remitted to the National Court to be retried before another judge, and I so order.
  11. Orders accordingly.
  12. BATARI J: In these judicial review applications, the applicants are seeking to overturn their convictions and consequential sentences of life imprisonment for eight counts of wilful murder each. Eight co-accused who were also convicted of wilful murder charges were each sentenced to death. The convictions and sentences followed from eight deaths in a group raid of the victims’ village, mass arrests of those involved and mass (joint) trial of the accused persons. A substantial number of those convicted (89 applicants) were said to be juveniles.
  13. I have had the advantage of reading the leading draft judgment of the Presiding Judge of the Court, Honourable Justice Gavara-Nanu. I have also had the benefit of reading the draft judgment of his Honour Justice Kassman on the aspect of juvenile applicants. With respect, I agree with their Honour’s respective reviews of the primary court materials and their considered reading of the applicable laws and principles, and their respective proposed outcome of the applications for judicial reviews. I have these few remarks to add.
  14. The joint trial of multiple accused persons of such magnitude as in this case, (at least 100 persons) is fraught with the risk of flawed proceedings from the start because of the nature of the proceedings itself.
  15. It is a notorious fact in the circumstances of this country and the cultural influences in communities, that in a group enterprise, irrespective of good or evil, the individual finds solace, comfort, and security in the group closely knitted by kinship and social obligations. So, when the occasion presents itself for cooperative participation, the individual rights to freedoms becomes secondary, it is quickly lost to group bonding and peer pressure. Hence, the individual is more susceptible to merely follow others or even volunteer responsibility in sacrificial acts to save others, particularly, elders and those with status.
  16. At the risk of being presumptuous, I make these observations based on my own knowledge and experience (akin to taking judicial notice), of the common attitudes of the ordinary people in the context of cultural practices and social obligations in a village community setting. This is not to condone the illegality of the group enterprise but rather to set the platform for dealing with community group court trials which should be a rare procedural occurrence in criminal trials.
  17. So, understanding the psychology of the human frailty in that way, it is incumbent on the trial judge to be cautious to treat and accord each accused person a fair trial in line with the fundamental right of the accused person to the full protection of the law under section 37 (4) of the Constitution.
  18. With respect, it is apparent from the face of the records, some 100 co-accused persons were committed and tried together as a group, rather than accorded a fair trial as an individual accused. Traits of procedural irregularities included, young persons being tried together with adults, court room identifications, exacerbated by inherent inconsistencies, and scanty evidence of identification of each accused person at the scene.
  19. Furthermore, the treatment of the juveniles before the primary court was, with respect, totally against the spirit of the Constitution and the provisions of the Juvenile Justice Act 2014 as illustrated in the draft judgment of Justice Kassman. These and the existence of other material irregularities in the trial proceedings are sufficient to vitiate the guilty verdict against each accused person.
  20. In conclusion, noting that a number of applicants have escaped, I, too will grant the applications for judicial review for the remaining applicants. In each application, I will set aside convictions and sentences. In relation to the application by the three remaining prisoners on the death row, I also join my brother Justice Gavara-Nanu in the proposed orders to remit their cases back to the National Court for re-trial on charges which may be preferred by prosecutions.
  21. DAVID J: I have had the benefit of perusing the draft judgments circulated by their Honours Gavara-Nanu J and Kassman J and the reasons expressed for arriving at the outcomes proposed. I respectfully concur with the conclusions reached, the reasons expressed, and the orders proposed. I have also had the benefit of perusing the draft opinion of His Honour, Geita J and respectfully concur with him. However, I wish to make the following additional remarks of my own.
  22. The failure to administer the mandatory requirement of s.557 of the Criminal Code to each accused person amounted to a fundamental error by the primary judge as it tainted and flawed the whole process of the trial.
  23. The Convention on the Rights of the Child adopted by the United Nations General Assembly on 20 November 1989 by General Assembly Resolution 44/25 which sets out the civil, political, economic, social, health and cultural rights of children regardless of their race, sex, language, religion, political or other opinion or abilities and related rules such as the United Nations Guidelines on the Prevention of Juvenile Delinquency (the Riyadh Guidelines) adopted by the United Nations Generally Assembly General Resolution 45/112 of 14 December 1990, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) adopted by the United Nations General Assembly Resolution 40/33 of 29 November 1985, the United Nations Standard Minimum Rules for Non-Custodial Measures (the Tokyo Rules) adopted by the United Nations General Assembly Resolution 45/110 of 14 December 1990 and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty adopted by the United Nations General Assembly Resolution 45/113 of 14 December 1990 to which Papua New Guinea has subscribed as a member State of the United Nations were instrumental in the promulgation of the Juvenile Courts Act 1991 specifically dealing with the question of juvenile offending. The international community recognised the importance of affording the necessary protection, special safeguards and care and assistance to children and their well-being who were in conflict with the law in the early years of childhood in society by reason of their physical and mental immaturity with a view to assisting young people to develop non-criminogenic attitudes. The Juvenile Courts Act 1991 was repealed by the Juvenile Justice Act 2014 (the Juvenile Justice Act) which was certified on 30 May 2014. The Juvenile Justice Act sets out how an alleged offending juvenile should be treated and the type of assistance he should be accorded once apprehended or arrested by police and processed through the criminal juvenile justice system (Part II (ss.7-26) of the Juvenile Justice Act) to the final disposition of his case either by diversion (Part III (ss.27-37) ) of the Juvenile Justice Act) or acquittal or conviction and sentence.
  24. The objectives of the Juvenile Justice Act and the general principles to apply in dealing with juveniles in accordance with the Act which are specified in ss.5 (Objectives of the Act) and 6 (General principles) respectively echo the international community’s concern adopted by Papua New Guinea.
  25. The term “juvenile” means a person who is, or in the absence of evidence to the contrary appears to be, ten years or older, but less than 18 years old: s.2, Juvenile Justice Act. A court is under an obligation to determine the age of a person who is a defendant in any legal proceedings where there is doubt about the person’s age: s.4(2), Juvenile Justice Act, s.63, Evidence Act. At the first appearance before a court and prior to taking a plea from a juvenile, the court must make an inquiry into several matters set out under s.61(1) of the Juvenile Justice Act and that includes the determination of the juvenile’s age in accordance with s.4. This was not properly administered.
  26. The National Court has jurisdiction to hear and determine the trial of a juvenile charged with homicide, rape or other offence that is punishable by death or imprisonment for life (s.20(1), Juvenile Justice Act) or other indictable offences that do not fall under the rubric of or within the meaning of s.20(2), Juvenile Justice Act. The juveniles in the present case were charged with homicide (wilful murder), that at the material time carried the maximum penalty of death.
  27. When the National Court exercises this jurisdiction, it must so far as is practical, sit and conduct proceedings in accordance with the Juvenile Justice Act: s.20(3), Juvenile Justice Act. His Honour Kassman J has pointed to the relevant errors committed by the primary judge.
  28. The kinds of sentences a court may impose on a juvenile who is found guilty of an offence are set out at s.80(1) of the Juvenile Justice Act and these are.
  29. Section 81 imposes restrictions on the use of custodial sentences for sentences considered under s.80(1)(m) or (n) of the Juvenile Justice Act unless the Court has considered all alternatives under the Act and has determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purposes and principles set out in Part VII (ss75-86) of the Act.
  30. The National Court is expressly prohibited by s.85 of the Juvenile Justice Act from imposing on a juvenile sentence of corporal punishment or life imprisonment or capital punishment. In the present case, the juveniles were given sentences of life imprisonment contrary to s.85.
  31. KASSMAN J: I have had the benefit of reading the draft decision of the President of the bench, Justice Gavara-Nanu. With respect, I agree with His Honour’s discussion and the outcome of the review applications.
  32. As to SC Review 84 of 2018. Doni Kakiwi & 88 Others -v- The State, I allow the review for all eighty-nine applicants, and I also agree that their respective convictions and their sentences be quashed.
  33. As to SC Review 29 of 2018. Enose Awari -v- The State, I also agree that Enose Awari’s:
    1. Conviction on count three is confirmed.
    2. Convictions and sentences on counts one, two, four, five, six and seven are quashed.
    3. Sentence of death for the conviction on count three is commuted to life imprisonment by virtue of the law as stated in the Criminal Code (Amendment) Act 2022 and the Gazettal Notice G360 dated 11 May 2022.
  34. As to SC Review 31 of 2018. Bakun Moa -v- The State, I also agree that Bakun Moa’s:
    1. Conviction on count five is confirmed.
    2. Convictions and sentences on counts one, two, three, four, six and seven are quashed.
    3. Sentence of death for the conviction on count five is commuted to life imprisonment by virtue of the law as stated in the Criminal Code (Amendment) Act 2022 and the Gazettal Notice G360 dated 11 May 2022.
  35. As to SC Review 33 of 2018. Jeffrey Ronny -v- The State, I also agree that Jeffrey Ronny’s:
    1. Conviction on count seven is confirmed.
    2. Convictions and sentences on counts one, two, three, four, five and six are quashed.
    3. Sentence of death for the conviction on count seven is commuted to life imprisonment by virtue of the law as stated in the Criminal Code (Amendment) Act 2022 and the Gazettal Notice G360 dated 11 May 2022.
  36. As to SC Review 84 of 2018. Doni Kakiwi & 88 Others -v- The State, with respect, I add my views and observations as to the treatment of juveniles among the eighty-nine applicants which I discuss below.

Juveniles and the Juvenile Justice Act 2014


  1. At the hearing of this review, counsel for the Applicants and the State confirmed no ground of review raised any issue with non-compliance by the police, the committal court and the trial court with certain mandatory requirements of the Juvenile Justice Act 2014 (“JJ Act”) when dealing with a “juvenile”. That is confirmed from our perusal of the grounds of review 3.1, 3.2, 3.3, 3.4, 3,5 and 3.6. That is reaffirmed in my perusal of the written submissions filed for the applicants on 27 June 2022 and handed up at the hearing and the written submission of the State filed 20 July 2022.
  2. At the invitation of the court, Mr Mamu for the applicants submitted section 85 of the JJ Act prohibits imposition of a life sentence on a juvenile. Section 85 provides “The following sentences shall not be imposed on a juvenile – (a) corporal punishment; or (b) life imprisonment; and (c) capital punishment”. I agree the learned trial judge erred in imposing the sentence of life imprisonment on any juvenile among the applicants.
  3. The Concise Oxford English Dictionary provides the following definitions – “corporal punishment” means physical punishment, such as caning or flogging”, “life imprisonment” means “a long-term imprisonment” and “capital punishment” means “the legally authorised killing of someone as punishment for a crime”. Sections 18 of the Criminal Code defines the punishments that may be inflicted under the Code and section 19 of the code provides in subsection (1) “a person liable to death may be sentenced to imprisonment for life or for any shorter term; and a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term;”
  4. I have addressed the following issues. These issues are apparent on the records in the review book and must be addressed as they have serious bearing on some of the applicants whether identified or not as “juveniles”. This is also a reminder to the police and the courts of the basic requirements of the law in the JJ Act as to how the criminal justice system must deal with and treat juveniles at every stage of the criminal justice process for summary offences in the District Court and for serious or indictable offences when a juvenile is committed to stand trial in the National Court. The process starts when a juvenile is being investigated by police and then when the juvenile is charged by police with a criminal office. Where the juvenile is charged with a serious or indictable offence, the juvenile is brought before the committal court for assessment as to sufficiency of evidence to stand trial in the National Court. If the juvenile is committed to stand trial in the National Court, the juvenile then appears in the National Court and is then dealt with at trial whether they admit or deny the charge. Throughout that process, the JJ Act prescribes various mandatory requirements to be followed by police and the courts particularly the presence and involvement of the parents or responsible person, the Juvenile Justice Officer and a lawyer for the juvenile from the time of investigation through to sentence. The police and courts are also required to take steps to divert the juvenile away from the formal court system in certain circumstances. I discuss below some of the specific provisions of the JJ Act that apply.
  5. The preamble to the JJ Act states it is an Act to establish a comprehensive and separate juvenile justice system and that is reinforced in section 5 as the first objective of the Act. That principal objective, to treat and deal with juveniles separate from adults, is further restated in section 6(a)(i) which provides “A Court or person exercising a power or performance a function in accordance with this Act is to be guided by the following principles: (a) Because of their youth and vulnerability, special considerations apply in respect to proceedings against juveniles, and - (i) at all stages, the criminal justice system for juveniles must be separated from that of adults...”.
  6. The Supreme Court in Saonu -v- Dadae [2004] SC763 said “... it is a constitutional dictate that Courts give paramount consideration to the dispensation of justice. Section 158(2) of the Constitution provides this and the Courts are bound by this mandate. It is a part of the overall exercise of judicial power granted to the Courts by the Constitution.” I am obliged to apply the law as described by the JJ Act.
  7. A juvenile shall not be dealt with by police and the courts together with adult persons accused of a criminal offence at the police station, holding cells and at the courthouse. Juveniles must not be questioned and held by police together with adult accused persons. When taken to court, a juvenile shall not be dealt with in court together with an adult accused of an offence. This also applies where a juvenile is a co-accused with an adult.
  8. By section 2, “juvenile” “means a person who is or in the absence of evidence to the contrary appears to be, ten years old or older, but less than 18 years old:” By section 3(1), the JJ Act applies to any a person “under the age of 18 years at the time of the alleged commission of the offence”.
  9. The first task is to consider if any applicant in this proceeding was a juvenile or was under the age of 18 years at the time of the offence. It was not disputed the offence occurred on 14 April 2014. From the start, police failed enquire if anyone in the large group of men was below the age of 18 years. This continued at the committal court where this simple but important issue should have been addressed. Then at trial, no real step was taken by counsel for the applicants and counsel for the State to assist the learned trial judge determine which person, if any, among the large number of accused men was a juvenile.
  10. I note from the transcript that at the start of the trial on 22 March 2017 (page 94 of the Review Book), the learned trial judge asked counsel for the accused if any of the accused are juveniles to which Mr Mesa identified Paku Kono Loiyoi and Iti Gosu and the court accepted their ages which they stated in court as 15 years and 16 years respectively. We note the learned trial judge asked them both to step forward and the court determined their ages from observing their physical appearance in court and speaking with them and that process was done without objection by counsel for the applicants and counsel for the State. The court then determined Paku Kono Loiyoi and Iti Gosu were juveniles. The court also said that determination was made under the Evidence Act and the JJ Act (page 96 of the Review Book) but specific provisions of both laws were not mentioned by both and the learned trial judge.
  11. Section 4 of the JJ Act is titled “Age Determination” and subsection (1) provides a member of the Police Force must treat a person as a juvenile if the person alleges or appears to be under the age of 18 years, and there is no persuasive evidence to the contrary. Subsection (2) provides a Court must determine the age of the person if he or she is a defendant in any legal proceedings. In subsection (3) it states in making a determination of the age of a person, a Court shall have regard to any of the following information that is available, in the following order of cogency: (a) The person’s birth certificate or baptism certificate; and (b) A previous determination of the age of the person by a Court; and (c) Hospital or health clinic records, church records or school records of the person; and (d) An entry about the person in a clinic book, a village record book, or other documentation of a similar nature; and (e) Statements made by the person, a parent, or any other person likely to have direct knowledge of the age of the person; and (f) The person’s physical appearance. Interestingly, subsection (4) states a Court shall not determine the age of a person solely on the basis of the person’s physical appearance.
  12. That is exactly what happened here at the start of the trial. The court asked the two juveniles Paku Kono Loiyoi and Iti Gosu to step forward and the court accepted there statements as to the ages. No documents of the type required by section 4(3) were produced to assist with the determination of the ages of the two juveniles. We also note, throughout that deliberation, the other 95 adult co-accused were in the courtroom or within the vicinity of the courtroom.
  13. The court then enquired “if normal conditions apply, they would be treated separately, tried separately, and that the court would be closed and other procedures of the Juveniles Justice Act 2014 would apply to them” and Mr Mesa agreed. The court then suggested “However, I consider that the court has a discretion, if consent is given by their defence, to deal with them with the other group, and if there is an application to be made at any stage at the trial, they should be treated differently, procedurally, or even taken out of the trial and dealt with it in a separate trial, the court will consider such an application on its merits if and when it is made. So I am proposing to ask defence counsel to give consent to them being dealt with together with the main group.” In other words, the court was suggesting the trial proceed with all accused together meaning the juveniles together with their adult co-accused. Once again, Mr Mesa accepted the suggestion of the court and said “Your Honour, understanding the law regarding juveniles, your Honour, their instructions are consistent with the other accused presently appear – they are with – and at this stage, your Honour, there is no strong objection to them continuing the trial with the other persons.” The court then ruled “Okay. So, leave is granted and these two juveniles shall be dealt with amongst the main group. And I reiterate that if at any stage they or their defence counsel wish to apply to have some separate special procedures apply to them, which might include separating them completely and undergoing a separate trial, that application will be heard on its merits if and when it is made.” Both juveniles were then told “Okay, thank you, Paku and Iti, you now resume your seat. Thank you. Now, I am proposing to arraign the accused eight at a time.” The court arraigned all accused, adults and juvenile together. Juveniles were not arraigned separate from the adults and that was how the court dealt with all co-accused throughout the trial until sentence.
  14. The records show no application was made by counsel for the accused including the juveniles for separate trials for the juveniles and the court conducted the trial of all co-accused, adults and juveniles, together. This was confirmed in the court’s verdict and sentence where the court repeatedly described the group of attackers as comprising “189 males (120 adults and 69 juveniles)”. In the court’s summaries of oral testimony of witnesses for the State, the court referred to “men and youths”. In the court’s verdict, there is no distinction made between adults and juveniles. A total of 97 accused were found guilty of the seven courts of wilful murder, 8 were found to have directly committed wilful murder of at least one of the seven deceased and all 97 were convicted of aiding and assisting in the seven counts and for committing the offences while prosecuting an unlawful purpose.
  15. As stated above, Section 6(a)(i) provides “A Court or person exercising a power or performance a function in accordance with this Act is to be guided by the following principles: (a) Because of their youth and vulnerability, special considerations apply in respect to proceedings against juveniles, and - (i) at all stages, the criminal justice system for juveniles must be separated from that of adults...”. The trial court failed to comply with that mandatory requirement of the JJ Act in conducting the trial of all juveniles and their co-accused together and not separately. I also add it was obvious the police and the committal court also failed to comply with this mandatory requirement when dealing with juveniles together with their adult co-accused. The learned trial judge erred in stating the court had the discretion to proceed when that was prohibited by section 6(a)(i) of the JJ Act.
  16. None of the applicants signed statements of their own. In my search to identify juveniles among those that were charged and went to trial, the only other records which should have captured information as to the age of each individual accused were the records of interview by police and the pre-sentence reports. We will return to that below.
  17. At the hearing of this review, the Commanding Officer of Beon Corrective Institution where all the offenders were held in custody, Superintendent Andrew Polis swore an affidavit filed 22 June 2022 describing the offenders in custody, the offenders who had escaped and the offenders who had died. Among annexures to that affidavit were copies of Notification of Escape. Most of those documents stated the “age of the offender as at the date of escape” as “male adult”. We note in four such notices, Jack Tuko and Koni Tesilo are described as being 18 years old and Nogoru Suo and Ruben Daombon are described as “Male Juvenile”. That was the closest I could decipher anyone as being a “juvenile” but that was just from my perusal of the records and that search would need to be better ascertained with some degree of certainty by the production of documents of the type required by section 4(3) of the JJ Act.
  18. My difficulty was not helped by the absence of copies of all the records of interview and pre-sentence reports. The exhibit list I found after page 692 of the Review Book. That list had the names of the two persons identified in court Paku Kono Loiyoi and Iti Gosu and the four persons identified from our perusal of the CS Notifications of Escape namely Jack Tuko, Koni Tesilo, Nogoru Suo and Ruben Daombon. Unfortunately, only the records of interview of Jack Tuko was found at page 704 and for Koni Tesio was found at page 1294 of the Review Book. From that, I note they both did not make any admissions and they said they had given their statements to their lawyer. Most importantly, I note they were on their own, without their parents or a responsible person or a Juvenile Justice Officer or a lawyer, when they were questioned by police. Furthermore, the Review Book did not contain copies of the pre-sentence reports for all of the applicants.
  19. Section 48 provides if a juvenile is arrested by a member of the Police Force, the member or the officer in charge of the relevant police station shall immediately, or not more than 24 hours after the arrest, notify the following persons of the arrest, the reasons for the arrest and the place of detention and a parent of the juvenile or a responsible person and a juvenile justice officer and they shall be allowed access to the juvenile. Further, section 50 provides a juvenile shall be questioned in the presence of one or more of the following persons; (a) a parent or responsible person; and (b) a juvenile justice officer; and (c) a legal representative of the juvenile; and (d) any other adult support person nominated by the juvenile. It is clear there was complete failure by the police to observe and comply with the mandatory requirements of sections 48 and 50 of the JJ Act when the police spoke with, questioned and charged the juveniles without the presence of the juvenile’s parents or a responsible person such as an adult relative or close friend, a juvenile justice officer and a lawyer.
  20. At trial, all co-accused were represented by a lawyer and denied the charges, exercised their Constitutional right to remain silent and did not give evidence. Section 66 provides (1) a Court shall, with due regard to a juvenile’s procedural rights, conduct proceedings in an informal manner to encourage maximum participation by the juvenile and the juvenile’s parents. (2) The Court shall take steps to ensure, as far as practicable, that the juvenile and his or her parents have a full opportunity to be heard and to participate in the proceedings. (3) Without limiting Subsection (1), the Court shall ensure that the juvenile and his or her parents understand, as far as practicable - (a) the nature of all alleged offence, including the matters that shall be established before the juvenile can be found guilty; (b) the Court’s procedures; and (c) the consequences of any order that the Court makes. It is clear there was complete failure by the trial court to observe and comply with the mandatory requirements of section 66 of the JJ Act.
  21. Section 69 provides (1) the proceedings of a Court in respect to a juvenile are closed to all persons, and the Court shall reduce to a minimum contact between - (a) the juvenile and members of the public; and (b) the juvenile and an offender appearing before any other court. (2) In any proceedings in respect to a juvenile before a Court, the following persons may be present – (a) the Director; and (b) Juvenile justice officers; and (c) Probation officers; and (d) Officers or members of the Court; and (e) persons immediately concerned with the proceedings; and (f) any legal representative of any party to the proceedings; and (g) parents or responsible persons in relation to any party to the proceedings; and (h) members of the Police Force; and (i) any person who has supplied a pre-sentence report in relation to a party to the proceedings; and (j) Witnesses; and (k) any other person by leave of the Court. There was complete failure by the trial court to observe and comply with the mandatory requirements of section 69 of the JJ Act.
  22. With respect, I am satisfied, there were numerous irregularities in the course of the trial which resulted in serious miscarriage of justice to the juveniles. For these additional reasons, I would allow the review and acquit all juveniles and quash the sentences imposed on all juveniles.
  23. GEITA J: I too have had the benefit of reading the draft decisions of Gavara-Nanu J on the first part and Kassman J on the second part of their respective drafts. With respect I agree wither their Honour’s discussions and the final decisions reached however wish to make a view general observation, as regards the administration of Juvenile Justices System and Lawyers assisting juveniles before the Courts.

147. As to the overall conduct and management of a complex and multifaceted criminal indictment such as the one before the primary trial Judge, it was of utmost importance for the Probation Officers to be involved immediately at the point of arrest and interrogations to assist the court throughout the whole process. Primarily, options for early intervention with diversion to be considered where practicable. The mass arrest and detention of 89 suspected persons of which 69 were, already identified as Juveniles should be a concern to the Director of The Juvenile Justice System. Similarly, Counsel appearing before the primary Judge should be alerted to the fact the 69 juveniles were now in the criminal justice process and should acquaint themselves immediately with the relevant legislation(s) affecting the “interests of the juveniles” pursuant to ss 6 (a)(b) & (b) and S 20 (1)(3) and assist the Court accordingly. In this case, I cannot say with confidence that the Lawyers assisting the Court including the Juvenile Justice System has dismally failed these juveniles.

s. 6 GENERAL PRINCIPLES

“A Court or person exercising a power or performing a function in accordance with this Act is to be guided by the following principles:

(a) because of their youth and vulnerability, special considerations apply in respect to proceedings against juveniles, and –


(b) in all actions concerning a juvenile, the best interests of the juvenile are the primary consideration; and...”


s.20 EXERCISE OF JURISDICTION BY NATIONAL COURT


(1) If a juvenile is charged with homicide, rape or other offence punishable by death or imprisonment for life -


(3) When exercising jurisdiction under this section, the National Court shall, so far as is practicable, sit and conduct proceedings in accordance with this Act.


PART III. - DIVERSION.

s.27 PURPOSES OF DIVERSION

The purposes of diversion of a juvenile are to -

(a) provide an effective and timely response to the offending behaviour of the juvenile; and


(b) hold the juvenile accountable for his or her actions; and


(c) encourage the juvenile to acknowledge and repair the harm caused to the victim and the community; and


(d) promote reconciliation between the juvenile and the person or community affected by the juvenile's offending behaviour; and


(e) allow victims to participate in decision-making; and


(f) encourage the juvenile's parents and other family members, and community members, to be directly involved in holding the juvenile accountable, supporting the victim, and providing opportunities for the juvenile to correct his or her offending behaviour; and


(g) prevent stigmatising the juvenile and prevent adverse consequences flowing from the juvenile being subject to the criminal justice system; and


(h) prevent the juvenile from having a criminal record. (Emphasis mine)


PART XI. - RECORDS AND PRIVACY.


s. 108 RESTRICTION ON FINGERPRINTING AND PHOTOGRAPHING.


(1) This section applies to a juvenile if the juvenile –


(5) If proceedings for an indictable offence, whether triable summarily or on indictment, against a juvenile are dismissed, any fingerprints or photographs of the juvenile taken shall be surrendered to the court and the court shall destroy them. (Emphasis mine)


  1. As to all matters relating to all adult applicants including the eloquent and elaborate discourse with the final outcomes arrived at by the President Gavara-Nanu J, I concur and have nothing more to add.
  2. In compliance with Section 108 (5) of the Juvenile Justice Act 2014, I would order that all the juveniles’ fingerprints or photographs be surrendered to this Court to be destroyed under supervision.

________________________________________________________________
Public Solicitor: Lawyers for the Applicants
Public Prosecutor: Lawyers for the Respondent

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