Kiu v State [2024] PGSC 75; SC2606 (2 August 2024)

SC2606

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV. NO. 42 OF 2019

BETWEEN
WILLIAM KIU
Applicant

AND
THE STATE
Respondent

Waigani: Gavara-Nanu J, Frank J and Wawun-Kuvi J
2024: 25th June & 2nd August

JUDICIAL REVIEW – Application for review - conviction – Constitution, s 155 (2) (b) – Multiple offenders - Wilful murder –ss 299, 7 and 8, Criminal Code – Aiding and abetting – Common intention – Common purpose - Applicant in a group – Involvement and Identification – conviction after trial - Whether conviction safe?

Cases Cited:
Kakivi v State [2023] PGSC 176; SC2539
Gamu v State [2023] PGSC 37; SC2368
Jacob v State [2022] PGSC 69; SC2265
RD Tuna Canners Ltd v Sengi (2022) SC2232
Waranaka v Dusava [2009] PGSC 11; SC980
Balbal v State [2007] PGSC 16; SC860
Beng v The State [1977] PNGLR 115
R v. Umarum [1969-70] PNGLR 190

Legislation
Criminal Code, sections 7, 8 and 299(1)

Counsel:
N Hukula, for the Applicant
H Roalakona, for the Respondent

2nd August 2024

1. BY THE COURT: The applicant was charged on an indictment that he, with Max Malala and Alois Bailey, on 12 November 2016, at Minda Village, Talasea, West New Britain Province, wilfully murdered Cletus Kito Mane, contrary to section 299(1) of the Criminal Code.
   
2. He was convicted of wilful murder on 16 August 2018 after a trial and was sentenced to life imprisonment on 10 September 2018.
   
3. He now seeks a review of his conviction and sentence.

Facts

4. The undisputed facts are that Max Malala (perpetrator) approached Cletus Kito Mane (the deceased) and cut his left hand, resulting in its amputation. The deceased ran off and was later discovered alone, with multiple knife wounds to his body. He succumbed to his injuries and died. The perpetrator confessed to cutting the deceased and killing him.

Issues at trial

5. The prosecution's case against the applicant is that when the deceased ran off, the perpetrator and the applicant, together with four others, chased and killed him. The State's position was that the applicant and those others were caught by sections 7 and 8 of the Criminal Code as aiders and abetters.
   
6. The issues at trial were identification and involvement or participation of the applicant in the crime.

Grounds

7. The applicant's grounds of appeal are condensed into three broad categories:
   
   1. The trial judge erred in fact and law by accepting the applicant's identification when (1) prosecution witnesses were intoxicated and (2) identification of the applicant was made under difficult circumstances.
   2. The trial judge erred in fact and law in finding that the applicant aided, abetted, procured, or encouraged the perpetrator of the crime when there was no evidence to support the finding.
   3. The sentence of life imprisonment was manifestly harsh and oppressive given the circumstances of the case.

The Law

8. The Court cannot interfere with the factual findings of the primary judge unless the judge was demonstrably and clearly wrong: Beng v The State [1977] PNGLR 115, Balbal v State [2007] PGSC 16; SC860, Waranaka v Dusava [2009] PGSC 11; SC980; RD Tuna Canners Ltd v Sengi (2022) SC2232, Jacob v State [2022] PGSC 69; SC2265 and Gamu v State [2023] PGSC 37; SC2368 applied and followed.

Consideration

9. Given that the question of participation or involvement will determine the appeal, we shall consider it first.
   
10. It is incontrovertible that there were no witnesses to the killing of the deceased. He was killed some distance away from where State witnesses initially observed the perpetrator cutting his hand. His body was not found immediately but sometime later.
    
11. The conclusion that the applicant was involved or participated in the killing was derived from findings that he was armed with a bush knife and in his actions of following the perpetrator to chase the deceased.
    
12. With respect, the trial judge’s finding that the applicant was armed with a bush knife was not borne out by the evidence. The prosecution called Dominic Ngava and Gerald Gorea. Dominic Ngava stated that the applicant was holding a stick. Gerald Gorea said the applicant was holding a knife. The trial judge did not reconcile this inconsistency before accepting that the applicant and others were armed with knives.
    
13. As to the applicant’s specific involvement or participation, the State concedes that there is no evidence other than the applicant’s actions of following the perpetrator to chase the deceased.
    
14. Additionally, there was no evidence presented by the prosecution to disprove the perpetrator's confession that he acted alone when he killed the deceased.
15. The State also concedes that the trial judge did not direct his mind to the governing principles on aiders and abetters under sections 7 and 8 of the Criminal Code and their application to the evidence.
    
16. After careful consideration of the decision of the trial judge the only reference to sections 7 and 8 is found at page 134 of the Appeal Book where the trial judge stated:
    

"That they each and severally aided and abetted each other in the commission of the crime of wilful murder in accordance with sections 7 and 8 of the Criminal Code; see Wani v The State [1979] PNGLR 59.”

17. In our opinion, the evidence presented to the primary judge did not establish that the applicant and others had formed a common intention to prosecute an unlawful purpose as required under section 8 of the Criminal Code. The prosecution did not identify the unlawful purpose nor present any evidence. The evidence failed to demonstrate the presence of the essential elements of section 8 of the Criminal Code: see Kakivi and Others v The State [2023] SC2539 on the discussion of the principles of section 8 by Gavara-Nanu J endorsed by the full bench.
    
18. Concerning section 7 of the Criminal Code, the Supreme Court in Kakivi and Others v State [2023] SC2539 held at paragraph 72:
    

"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."

19. The State’s submission is that its evidence at the highest is that the applicant was part of a group that chased the deceased. Considering the circumstances of the case, that evidence, in our view, does not prove that the applicant aided and abetted the killing as required by section 7 of the Criminal Code.
    
20. It is also important to note that mere presence or passive approval does not constitute aiding and abetting or encouraging the wilful murder: See Kakivi and Others v The Independent State of Papua New Guinea [2023] PGSC 176; SC2539 adopting R v Umarum [1969-70] PNGLR 190; [1969] PGSC 43.
    
21. The prosecution must provide clear evidence to demonstrate that the applicant was aware of the plan to kill the deceased, actively facilitated the killing, and anticipated the killing as part of the plan: Kakivi and Others v The Independent State of Papua New Guinea [2023] PGSC 176; SC2539.
    
22. The prosecution failed to establish these essential elements to prove that the applicant was an aider and abettor under section 7 of the Criminal Code.
    
23. It follows that the primary judge erred in finding that the applicant aided and abetted the wilful murder of the deceased under sections 7 and 8 of the Criminal Code.
    
24. Consequently, there is no merit in considering the remaining ground for review of the conviction.
    
25. For all the reasons given herein, we allow the applicant’s application for review against his conviction on one count of wilful murder under section 299(1) of the Criminal Code.
    
26. It follows that it is not necessary to consider the ground for review of the sentence.
    

Orders

27. It is Ordered:
    1. The applicant’s application for review of his conviction is upheld.
    2. The applicant’s conviction for wilful murder under section 299(1) of the Criminal Code on 16 August 2018 is quashed and set aside.

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