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State v Yana [2025] PGNC 118; N11239 (9 April 2025)

N11239

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR 251 & 252 OF 2024

THE STATE

V

SAMSON YANA & SAMENA YANA

BOGIA AND MADANG: NAROKOBI J
18 FEBRUARY, 9 APRIL 2025

CRIMINAL LAW– aiding and abetting – whether the State proved that the co-accused aided and abetted the principal offender in the commission of the offence of wilful murder.

Facts

The three accused, Lambert Yana, Samena Yana, and Samson Yana were charged with the wilful murder of Jeremiah Arimba contrary to s 299(1) of the Criminal Code Act 1974. The State also alleges that they aided and abetted each other under s 7(1) of the Criminal Code to commit this offence.

Held

(1) At the close of the State’s case, the accused pleaded guilty, and the plea was confirmed after re-arraignment and his Counsel confirmed that the plea was consistent with instructions and the Court perusing the tendered court depositions.

(2) There was a question raised by the court as to whether the court should adjourn the case for the other two co-accused to be dealt with before another judge, but after hearing submissions from Counsel the court proceeded to hear the case against the two co-accused.

(3) As to the other two co-accused, from the evidence there was no intention to encourage the commission of the offence of wilful murder and an encouragement in fact to commit the offence of wilful murder under s 7(1) of the Criminal Code.

(4) In a village setting it is common sight to see persons carrying bush knives, and walking around freely. The State would therefore have to lead evidence to show some actual words said to encourage the commission of the offence, on the element of intention to kill. Presence sat the crime scene with a bush knife may readily attribute encouragement in an urban setting where it is not a common to see people carrying bush knives.

Cases cited

Aieni v Tahain [1978] PNGLR 37
Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State (2002) SC698
John Beng v The State [1977] PNGLR 115
Mako Ranjigi v The State [1994] PNGLR 44
Paulus Pawa v The State [1981] PNGLR 498
The State v Dippon (2014) N5705
Tawingo & Others v The State (2008) SC983
Queen v Coney and Others [1882] UKLawRpKQB 30; (1881-1882) 8 Q.B.D 534

Counsel

Mr J Kasse for the State
Mr C Momoi for the accused

DECISION ON VERDICT

1. NAROKOBI J: The three accused, Lambert Yana, Samena Yana, and Samson Yana were charged with the wilful murder of Jeremiah Arimba contrary to s 299(1) of the Criminal Code Act 1974. The State also alleges that they aided and abetted each other under s 7(1) of the Criminal Code to commit this offence.
   
2. In a separate trial one of the co-accused, Ernest Yana was found guilty of murder contrary to s 300(1) of the Criminal Code and sentenced to 17 years in hard labour before another court. At the close of the State’s case, Lambert Yana pleaded guilty. Judgment delivered now is on verdict and consequently applies only to Samena Yana and Samson Yana.
   
3. After the guilty plea I asked whether the court should adjourn the case for the other two co-accused to be dealt with before another judge, but after hearing submissions from Counsel the court proceeded to hear the case against the two co-accused. It is an issue that I wish to explore in future, as to whether the facts that one of the co-accused pleaded guilty to, may prejudice the remaining co-accused.
   
4. State had the task to prove that Samena Yana and Samson Yana aided and abetted Lambert Yana to commit the offence, under s 7(1) of the Criminal Code.
   
5. The allegation was that on 26 April 2023, between 5.15pm and 5.30pm, each of the accused were at Akakum Village, located in Giri Parish, Yawar LLG, Bogia District, Madang Province, and aided and abetted each to wilfully kill Jeremiah Arimba.
   
6. The State was required to prove beyond reasonable doubt each of the following elements of the offence of wilful murder: - 1) a person was killed; 2) the killing was unlawful; and 3) there was intention to kill the deceased, and the elements of aiding and abetting under s 7(1) of the Criminal Code.
   
7. The State tendered by consent the statement of the arresting officer, Detective Sargeant Albert Saui, and his corroborator Jude Samor, the death certificate, medical reports, photographs, and the record of interview of each of the accused.
   
8. The State called four witnesses, Abraham Karambi, Tina Kanisius and Raphael Kanisius, and Erick Kupar.
   
9. All the accused exercised their right to remain silent.
   
10. From the facts I find that on 26 April 2023, between 5.15pm, the accused were present at Akakum village, located at Giri Parish, Yawar LLG, Bogia District, Madang Province.
    
11. Lambert Yana and Samson Yana are Samena Yana’s brothers. The deceased Jeremiah Yana is Samena’s husband.
    
12. The deceased had a domestic dispute with his wife Samena, in Amuruk hamlet at the residence of witnesses Kanisius Namrangi and Tina Kanisius. Samena had a grass knife with her. When the arguments heated up, her brothers Ernest, Lambert and Samson came in carrying offensive weapons. Earnest was armed with a bush knife and a rubber hunting gun, Lambert had a rubber hunting gun and a knife, and Samson had a knife. Upon their arrival they started fighting with Jeremiah. Lambert speared Jeremiah’s abdomen using his spear gun. When Jeremiah fell to the ground, Ernest further assaulted him by stabbing him with a spear in his leg. The deceased died from loss of blood from these injuries as was confirmed by the medical report.
    
13. Ernest Yana in a separate trial before another judge has been found guilty and is serving 17 years in hard labour less time spent in custody for murder. Lambert Yana has pleaded guilty and I have sentenced him to 20 years in hard labour less time spent in custody.
    
14. I agree with Mr Momoi that the issue that I have to decide is whether the elements of aiding and abetting under s 7(1) of the Criminal Code has been met? To my mind that would mean that there is aiding and abetting on each of the elements of the offence of wilful murder. There is no issue about the killing of the deceased, and that it was unlawful. What is at issue is the evidence that Samson Yana and Samena Yana aided and abetted Lambert Yana with the intention to kill to kill Jeremiah Arimba.
    
15. Section 7 of the Criminal Code is in the following terms:
    

7. 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.

16. In the case of Aieni v Tahain [1978] PNGLR 37, Wilson J, cited with approval a statement of Hawkins J in the case of Queen v Coney and Others [1882] UKLawRpKQB 30; (1881-1882) 8 Q.B.D 534, at pp 557 to 558:
    

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. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted.

17. His Honour Wilson J went on further to state that there must be an intention to encourage the commission of the offence and an encouragement in fact of the commission of the offence.
    
18. What is the evidence of the involvement of Samena Yana and Samson Yana? Abraham Karambi said Samson and Samena were present at the scene of the crime and Samena was holding a grass-knife. Tina Kanisius stated that Samena and Samson were present when Lambert speared Jeremiah. Samena held a grass-knife. Raphael Kanisius did not mention Samson Yana’s name but said that Samena Yana was there and held a grass-knife. Erick Kupar stated that Samena and Samson were present when Lambert speared Jeremiah and both had grass knives. I have also read Samena Yana’s record of interview, but I am not sure whether she understood the implications of what she was saying in the absence of legal counsel. I will therefore not give much weight to it.
    
19. From the evidence, was there an intention to encourage the commission of the offence of wilful murder and an encouragement in fact to commit the offence of wilful murder? True they were present at the scene of the crime. True they held offensive weapons. But is that enough to encourage Lambert Yana to kill Jeremiah Arimba? There is no evidence of Samson Yana or Samena Yana saying anything beyond their presence at the crime scene. There is no evidence of the two accused planning with the Lambert Yana to kill the deceased. To my mind, in a village setting it is common sight to see persons carrying bush knives, and walking around freely. The State would therefore have to lead evidence to show some actual words said to Lambert Yana by Samson Yana and Samena Yana to show the element of encouragement. I may readily attribute encouragement in an urban setting where it is not a common thing to see people carrying bush knives. I will therefore return a verdict of not-guilty for Samson Yana and Samena Yana on the charge of wilful murder.
    

Lawyer for the State: Acting Public Prosecutor
Lawyer for the accused: Public Solicitor