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State v Kips [2025] PGNC 374; N11516 (8 October 2025)

N11516

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 1305 OF 2022

THE STATE

v

YASE KIPS

WABAG: ELLIS J
7, 8 OCTOBER 2025

CRIMINAL LAW – WILFUL MURDER - s. 299(1) CCA – Trial – Circumstantial evidence – Reasonable hypothesis that accused did not kill deceased.
CRIMINAL LAW – PRACTICE AND PROCEDURE – No case submission – No evidence accused killed deceased – Circumstantial evidence only – No need to weigh evidence.

Brief facts
The evidence established that the victim was killed during the night, after he was seen at a club with the accused. There was evidence that security guard saw a truck and that, when that guard shone a torch on that truck, someone in it said: “kill him too”. In his record of interview, the accused said he was in that truck. However, there was no direct evidence that the accused killed the victim. As a result, the State’s case was based on circumstantial evidence.

Held
(1) There was no direct evidence that the accused killed the victim.
(2) The prosecution had failed to exclude any reasonable hypothesis that would indicate innocence.
(3) A no case submission was accepted as there was no direct evidence the accused killed the deceased, the circumstantial evidence was not sufficient, there was no need to weigh the evidence, and no reasonable tribunal could convict on the State’s evidence.

Cases cited
Koroka v The State [1988-89] PNGLR 131
Maury v The State (2001) SC668
Paulus Pawa v The State [1981] PNGLR 498
The State v Morris [1981] PNGLR 493
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Roka Pep [1983] PNGLR 287

Counsel
J. Kasen for the State
L. Toke for the defendant

JUDGMENT

1. ELLIS J: Yase Kips, of Kapal village in Wabag in Enga Province, was charged with wilful murder, based on section 299(1) of the Criminal Code Act 1974. To that charge he entered a plea of not guilty.
   

Overview

2. The State’s case against the accused rested on circumstantial evidence. A no case submission was made at the end of the prosecution case. As there was no direct evidence that the accused killed the victim and, as there was clearly a reasonable hypothesis consistent with the innocence of the accused, the no case submission was accepted and a verdict of not guilty was entered in response to the indictment.
   

State’s evidence

3. After the indictment was presented, two documents were tendered and admitted by consent. The first an English translation of a record of interview with the accused (Exhibit A), which contained no admissions. While it did raise a question in relation to a cap the accused said was his, there was no evidence as to where that cap was found. Secondly, an autopsy report (Exhibit B) established that the death of victim was caused by a “severe head injury” and recorded a rupture of the left femoral artery.
   
4. It was indicated that the State intended to call three witnesses: Timun Pakau, Ameth Pakau and Kennedy Itaki.
   
5. The first witness called was Kennedy Itaki, who was working between 6pm and 6am on the night of 30 March 2022. His evidence did not include any identification of the deceased. He said he observed a white dump truck at around 4am and gave evidence of the movements of that vehicle at around 4.30am. This witness said that when he first saw that vehicle and, when he shone a torch on it, he heard someone say: “Somebody is flashing a torch on us. Kill him as well.”
   
6. Timun Pakau was also called to give evidence. He suggested he could not recall the time when the victim’s dead body was found and claimed he was sleeping at home with his wife on that night. As that evidence contradicted the statement he gave to the Police, on the application of the prosecutor, which was not opposed, the witness was declared hostile, thereby permitting the prosecutor to cross-examine him. The statement of this witness was tendered and admitted, without objection, as Exhibit C. In that statement, which the witness sought to distance himself from, he did not provide any direct evidence that the accused killed the victim.
   
7. Ameth Pakau was the final witness. His evidence was that he was at a club on the night when the victim died, that he saw the accused in the company of the victim and three others between 10pm and 11pm, that they were drinking beer together, and that he left that club at about 11.30pm. He said there was a fight back at the village, before that time at the club, which fight he never saw but heard about.
   

Relevant law

8. The case law on circumstantial evidence, namely The State v Morris [1981] PNGLR 493, Paulus Pawa v The State [1981] PNGLR 498, Koroka v The State [1988-89] PNGLR 131 and Maury v The State (2001) SC 668, make the position in relation to circumstantial evidence clear.
   
9. Circumstantial evidence is a substitute for direct evidence. It involves a series of established facts which can provide the basis for a finding of guilt, if the cumulative effect of those facts is sufficient to constitute proof of the charge beyond reasonable doubt.
   
10. However, since the onus is on the prosecution to prove the charge beyond reasonable doubt, it must follow that the accused is entitled to be acquitted if there is a reasonable hypothesis consistent with the innocence of the accused.
    
11. As to a no case submission, the position was established by cases such as The State v Paul Kundi Rape [1976] PNGLR 96 and The State v Roka Pep [1983] PNGLR 287. The position may be summarised in the following propositions:
    

(1) A no case submission may be granted if there is no evidence to prove an element of the offence.

(2) Such a submission can also be accepted if the State’s evidence is so insufficient that the accused should not be required to answer it.

(3) Any no case submission should only be accepted when the judge is not required to weigh up the evidence.

Submissions for the accused

12. The no case submission was based on an assertion that the prosecution had failed to establish “elements of the offence and reference was made to the case of Rape.
    

Submissions for the State

13. It was conceded that the State was trying to establish a case based on circumstantial evidence and that the second witness (Timun Pakau) did not come up to proof. The Court’s attention was directed to (1) the accused being in the company of the victim on the night he died, (2) he being one of the last people in the company of the victim before he died, (3) the accused placing himself in a white dump truck later that night during his recorded of interview, and (4) the evidence that someone in that truck said to a security guard who shone a torch on that truck “Kill him as well”.
    

Consideration

14. The State did not lead any direct evidence that the accused killed the deceased. As that is an element of the offence, the submission for the defence, that the State had failed to prove an element of the offence is correct. However, that is not the end of the matter because the State is entitled to rely on circumstantial evidence.
    
15. It is not necessary to weigh any of the evidence because, even if all the State evidence is accepted, that only establishes:
    

(1) The accused was in a club with the victim as late as 11.30pm on the night the victim died.

(2) The victim was later killed by a severe head injury” and sustained a rupture of the left femoral artery.

(3) The accused was in a white dump truck at around 4am the next morning.

(4) When a security guard shone a torch on that truck, someone in that truck said “Somebody is flashing a torch on us. Kill him as well.”

16. There is clearly a reasonable hypothesis consistent with the innocence of the accused, namely that the victim was killed by someone other than the accused, such as one of the people he was with at the club, and that it was someone other than the accused in the white dump truck who used the words “Kill him as well”.
    

Conclusion

17. For the reasons indicated above, the Court is satisfied that a verdict of not guilty should be entered, that the accused should be acquitted and discharged from custody.
    

Orders accordingly.

Lawyer for the State: Public Prosecutor
Lawyer for the defendant: Public Solicitor