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State v Wair [2025] PGNC 274; N11359 (3 July 2025)

N11359

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR. NO 1319 OF 2024 & CR. NO 383 OF 2025

THE STATE

V

SIMEON WAIR & LOSOI JORIR

MADANG: GEITA J
28 JUNE, 3 JULY 2025

CRIMINAL LAW – TRIAL – Both accused elected to remain silent and not give testimony - Willful Murder Section 299 (1) Criminal Code.

CRIMINAL LAW – VERDICT – Circumstantial evidence –Inconsistent- unsafe to draw inference of guilt.

CRIMINAL LAW – EVIDENCE – Admissibility of co-accused record of interview – not evidence against co-accused.

Facts
The two accused together with five men from Gonoa village were indicted on allegations of the wilful murder of a policeman. One entered a guilty plea and these two entered not guilty pleas. The rest were acquitted after a successful no case submission.

Held:

1. It is a fundamental rule of evidence that a statement made by one defendant either to the police or to others are not evidence against a co-defendant.
   
2. If, however, a defendant goes into a witness-box and gives evidence in the course of a joint trial, then what he says becomes evidence for all the purposes of the case including the purpose of being evidence against his co-defendants.
   

Cases cited:
Aparo, Araba, Haio,Tindipu and Akwia v The State (1983) SC249
Bently Bonsa Asio v The State [2024] SC2657
Paulus Pawa v The State [1981] PNGLR 498
Kakivi & Others v The State (2003) SC2539

Counsel:
Jethro Kase, for the State
Cornelius Momoi, for the accused

RULING ON VERDICT

1. GEITA J: Upon arraignment of all co-accused, save for accused Sauga Wagadi who pleaded guilty to one count of willful murder contrary to s. 229 (1) Criminal Code Act, Chapter 262 (hereafter referred to as the “Criminal Code”), the accused persons pleaded not guilty to the offence.

2. The State alleged that on 25 October 2023 at Kusubur ,Ganoa junction and N 7 location along Bruce Jephcoth Highway Primary School, they willfully murdered Peter Tolpare, thereby contravening Section 299 (1) Criminal Code. The State also invoked Sections 7 & 8 of the Criminal Code.

3. Accused Sauga Wagadi’s case was stood down indefinitely, awaiting the completion of the joint trial for the rest of the accused.

4. After a successful no case submission the remaining five accused: David Monou, Gerard Monou, Manu Ireng and Manu John were acquitted save for the accused Simeon Wair and Losoi Jorir: a case to answer. Both accused elected to remain silent.

5. This is their ruling base on their submissions on verdict.

6. Mr Kase for the Prosecution submitted that accused Simeon Wair and Losoi Jorir aided and abetted each other and also had a common intention to kill the deceased when they collectively pursued the accused for 840 meters before he was captured and brutally murdered. And in doing so they unlawfully killed Peter Tolpare with the intention to cause his death contrary to Section 299 (1) Criminal Code.

The Relevant Laws

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.

8. 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.

S. 299. 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.

Elements of the Offence

1. A person

2. Who unlawfully kills another person

3. Intending to cause his death.

Whether or not the State proved beyond reasonable doubt that the two accused were aiding and abetting each other pursuant to s. 7 Criminal Code and also shared a common intention to kill the deceased pursuant to s. 7 Criminal Code?

7. The primary prosecution evidence is circumstantial and mostly sourced from unsworn statements of co-accused. As such it is a fundamental rule of law that such statements made by an accused person not made in sworn evidence at trial is not evidence against a co-accused, an accomplice, or any person he may implicate. [Aparo & Ors v The State, supra and Bently v The State, supra]. I was a member of this Supreme Court Panel,

8. Section 7 Criminal Code provides that it is possible for those who are not the main perpetrators to be also guilty however there must be some evidence of the wrong committed by that person (s) within the meaning of the provision. Only a single act or omission or a series of them is sufficient in Sections 7 or 8.

9. Furthermore, it is incumbent on the prosecution to prove that the accused were principal offenders under s. 7 of the Criminal Code for aiding and abetting the persons that actually committed the murder. “The prosecution must prove three things. First, the actual persons who were directly responsible for causing the deaths. Second, the accused actively aided and abetted in the killings. Third, the accused knew that such killing would be done.” ( Kakivi & Others v The State (2003) SC2539 at para 72.) I was also a member of this five member Supreme Court Panel.

10. In the current case prosecution failed to identify or prove with certainty the alleged killer. It follows that the accused cannot be said to be actively aiding and abetting in this killing. Obviously, they would not have known the end result. Therefore, the two accused could not be lawfully and safely convicted of aiding and abetting in the wilful murder of the police officer.

Whether or not all the elements under Section 299 (1) Wilful Murder - Criminal Code were successfully made out?

11. The Prosecution failed to prove beyond reasonable doubt that an individual amongst the accused was the person who wilfully murdered the deceased. The crucial element of intention was not successfully made out. Since the case against the two accused persons rests substantially upon circumstantial evidence this court cannot safely return a verdict of guilty.

12. Intention is a crucial element. See case of Raphael Kuanande (supra) and advanced that intention was a crucial element and state must prove that all accused had the intention to wilfully murder the deceased, failing which the accused must be acquitted. I quote Injia AJ as he was then as follows: -

“Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused’s expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior, at the time and subsequent to the act constituting the offence.”

13. Mr Momoi submitted that the unsworn statements of co-accused cannot be used against the two accused. The Supreme Court cases of Aparo,Araba, Haio,Tindipu and Akwia v The State (1983) SC249 fortified this proportion thus:

“It is a well-established rule that an out-of-court statement made by co-accused is admissible only as evidence against the maker of the statement and it is not admissible against other co-accused if it is intended to use the statement to prove the truth of the matters contained in the statement. An out-of-court statement may be received in evidence against the other co-accused if the statement is not sought to prove the truth of what it contains. For example, in Mawaz Khan v. R. SC249.html#_edn198" title="">[cxcviii]⁸ it was held by the Privy Council that statements by each accused setting up identical false alibis could properly be admitted against each other as proof of a concerted action and a common guilt and that it was immaterial that the accused were not charged with conspiracy.

14. In Archbold’s Criminal Pleading Evidence & Practice, 39th ed. the rule is stated in paragraph 1395 as follows:

“It is a fundamental rule of evidence that statements made by one defendant either to the police or to others ... are not evidence against a co-defendant unless the co-defendant either expressly or by implication adopts the statements and thereby makes them his own ... Nor is a plea of Guilty by one defendant in any sense to be regarded as evidence against a co-defendant.”

“If, however, a defendant goes into the witness-box and gives evidence in the course of a joint trial, then what he says becomes evidence for all the purposes of the case including the purpose of being evidence against his co-defendant...”

15. In another Supreme Court case of Bently Bonsa Asio v The State [2024] SC2657, the Court amongst others held that it is a fundamental rule of law that a statement made by an accused person not made in sworn evidence at trial is not evidence against a co-accused, an accomplice or any person he may implicate.

16. As to whether Losoi Jorir was part of the group that chased the deceased to the area he was eventually killed, Mr Momoi submitted that there was no evidence from State witnesses to confirm his identity in pursuit. All State witnesses’ evidence were centered around what happened when the deceased entered the Kusubar market area that day and none from the crime scene some 840 meters away where he was brutally attacked, resulting in his death. Sauga Wagadi admitted in his record of interview of pursuing the deceased with a bush knife, and chopped his hand, in an attempt to dislodge the pistol which was pointed at his attackers. As soon as he realized that the pistol was not loaded, he chopped the victim’s hand. He grabbed the pistol and ran away into the bush.

17. Stella Gumur, in sworn testimony, gave an account of what happened in the morning when the deceased and his friends entered the Kusubur market area and behaved unruly with a pistol in hand. His actions angered the regular market goers and sellers alike which resulted in him being assaulted. She said Simeon retaliated with a bamboo stick when the victim swore at him for asking for a cigarette from the victim’s friend Wagi. She said in evidence that she was seated some 15 meters away at her market table when she saw Simeon attempted to attack the policeman. Ironically, Stella Gumur admitted in court that she was short-sighted and had difficulty identifying who Simeon Wair was and where he was seated in the dock. She was allowed outside the witness box to walk over and closely scrutinize the accused at an arm’s length and eventually pointed at him. The only inference that can be drawn from her evidence was that she was not a witness of truth and her evidence lacking credibility and not to be believed. Under these circumstances her evidence is therefore treated with caution as it was either concocted or tailored to implicate Simeon Wair.

18. Counsel of defense submitted that since the whole of the State evidence is circumstantial, the two accused ought to be acquitted as all facts are inconsistent and not reliable. The State has not proved its case beyond a reasonable doubt: Paulus Pawa v The State [1981] PNGLR 498. Per His Honour Andrew J as he was then:

“I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v. The Queen ((1975) [1975] HCA 42; 50 A.L.J.R. 108 at p. 117):

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v. The King [1911] HCA 66; (1911), 13 C.L.R. 619 at p. 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v. The Queen [1963] HCA 44; (1963), 110 C.L.R. 234, at p. 252; see also Thomas v. The Queen [1960] HCA 2; (1960), 102 C.L.R. 584, at pp. 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture...

19. Mr Momoi submitted that the Court should therefore find the two accused not guilty of wilful murder and have them acquitted.

Application of principles

20. At the outset I remind myself that in order for other persons to be convicted there must be findings and convictions on the main perpetrator without which the operation of Section 7 Criminal Code remains futile. I make reference to this as I have been invited by the Public Prosecutor to also consider the imposition of this provision of the Criminal Code.

21. Any initial findings by the Court must be based solely on the primary facts before the court. The State evidence as it stands is devoid of that crucial elements of intention and identification were not successfully made out. All descriptions of the assault said to be occasioned on the deceased by the accused were not direct and only given in very general and loose terms in that: “‘they assaulted the deceased”. None of the State’s witnesses connected the murder of the deceased to any one of the accused.

22. In view of the scantiness and unreliable evidence before me thus far and applying them to the evidence and law in this case it has become apparent that none of the State’s witness accounts of what happened on that fatal day appears convincing and credible.

23. I agree with Mr Momoi’s submission that all accused evidence were sourced from unsworn co-accused statements, hence the State has failed to prove aiding and abetting including common purpose under s.8 against the two accused. Put simply all co-accused statements are not evidence and therefore the State cannot rely on them to secure convictions.

24. It follows that I cannot confidently infer that all elements have been made out and, on the evidence, presented thus far the Court should therefore find the two accused not guilty of wilful murder and have them acquitted.

ORDER

35. Accordingly, I return a not guilty verdict against the two accused for the willful murder of the policeman. Accused Simeon Wair and Losoi Jorir are acquitted forthwith.

Orders accordingly.

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