N11216

PAPU NEW GUNIEA
[NATIONAL COURT OF JUSTICE]

CR NO. 1166; 1168; 1169; 1170 & 1179 OF 2025

BETWEEN:
THE STATE

AND:
JOSEPH ASAGAR; GIDEON ASAGAR; JUDE ASAGAR; MUNDUS ASAGAR & OGING ASAGAR
Accused

BOGIA AND MADANG: NAROKOBI J
14 FEBRUARY, 4 APRIL 2025

CRIMINAL LAW– circumstantial evidence – whether the State proved the commission of the offence of wilful murder by each of the accused on circumstantial evidence.

Facts
The accused were all charged with one count of wilful murder contrary to s 299(1) of the Criminal Code Act 1974, in that they aided and abetted each other to wilfully murder, one John Kanagui, on 22 August 2022 at Ariap Primary School, Yawar LLG, Bogia District of Madang Province.

Held:
(1)	The State has proven beyond reasonable doubt that Joseph Asagar committed the offence of wilful murder contrary to s 299(1) of the Criminal Code, however from the evidence, the existence of a reasonable hypothesis other than the guilt of the other co-accused to Joseph Asagar meant a verdict of not-guilty is returned for them, as the State’s case was proven on circumstantial evidence.

Cases cited
Aieni v Tahain [1978] PNGLR 37
Biwa Geta v The State [1988-89] PNGLR 153
David v State (2006) SC881
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

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

DECISION ON VERDICT

1.	NAROKOBI J: Joseph Asagar, Gideon Asagar, Jude Asagar, Mundus Asagar, and Oging Asagar were all charged for the wilful murder of John Kanagui under s 299(1) of the Criminal Code Act 1974, in that they aided and abetted each other to commit the offence, under s 7 of the Criminal Code. All the co-accused pleaded not guilty to the charge, and a trial ensued. They all exercised their right to remain silent.

Background

2.	The State relied on documentary evidence and testimony from three witnesses:

•	John Ureka, Ward Councillor of Ward 14, Yawar LLG, Bogia District, Madang Province.
•	Patrick Wadam, from Niapak Village, Ward 14, Yawar LLG, Bogia District, Madang Province.
•	Gabriel Arika, Village Court Magistrate, of Ward 14, Yawar LLG, Bogia District, Madang Province.

3.	Documents tendered by the State with the consent of the accused include the record of interview of the arresting officer, Detective Sargeant Albert Saui, and his corroborator, Detective Elimash Bonnie, the medical reports and the photographs of the deceased, John Kanagui.

4.	The basic facts that the State was to prove was that the co-accused aided and abetted each other to wilfully murder the deceased, John Kanagui, at Ariap Primary School, in Bogia District of Madang Province on 22 August 2023 between 7.30pm and 8.30pm.

5.	The photographs and the medical report showed that the deceased died from a spear wound to his side on 22 August 2023. It is therefore not disputed that John Kanagui was killed on 22 August 2023, and that he died from internal haemorrhage from the spear wounds.

Elements of the Offence

6.	It is trite law that the State must prove each of the elements of wilful murder under s 299(1) of the Criminal Code beyond reasonable doubt. These elements are:1) the accused killed a person; 2) the killing was unlawful; and 3) the accused intended to cause the death of the deceased. 

7.	This is a case that is based on identification evidence, circumstantial evidence and aiding and abetting. I therefore set out the principles I am required to consider in the facts of this case.

Law on Identification Evidence, Circumstantial Evidence and Aiding and Abetting

8.	The cases of John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698 provide the accepted principles a Court must be alert to when it considers the evidence of a witness identifying an accused who denies involvement. These considerations are:

•	There must be issued an appropriate self-caution.
•	There must be a careful assessment of the identification evidence.
•	An honest witness may be a mistaken one.
•	An identification witness must be honest and accurate.
•	Whether the evidence is corroborated.
•	Whether the person to be identified is a stranger or is known to the witness.
•	The length of time the witness observed the accused.
•	The emotional state of the witness.
•	The prevailing conditions.
•	The line of sight.
•	An accused is presumed innocent and sufficient weight is given to the accused defence evidence.
•	Accused right to remain silent is enforced.
•	Elements of the offence are accurately set out and applied.

9.	I bear all these considerations on identification evidence in mind, when I am assessing the evidence of the State.

10.	This case is to be proven on circumstantial evidence. I apply the principles set out by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498:

•	the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and
•	to enable the court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt be a rational inference but that it be the only rational inference that the circumstances would enable it to draw.

11.	I also apply the principles of aiding and abetting under s 7 of the Criminal Code. In order for derivative responsibility to be established ie aiding and abetting, there must be both an intention to encourage the commission of an offence and an encouragement in fact to commit an offence (Aieni v Tahain [1978] PNGLR 37).

State’s Evidence

12.	John Ureka, the Ward Councillor of Ward 14, Yawar LLG, Bogia District, gave the following evidence. On 22 August 2023, he was at his house for a fellowship. Noises were heard between 7:30pm and 8:00pm, coming from Ariap Primary School, about 60 meters from where they were. Initially he thought the noise was caused by the Catholics in the community. Prompted by the noise, he walked to the road and saw Joseph Asagar, Gideon Asagar, Mundus Asagar, Kelly Asagar, and Jude Asagar, returning home. They were threatening people along the way. They walked past him at a distance of 1.5m. They were recognizable to him from the moonlight. They were armed with a knife, grass knife, rubber gun, and spear. They did not talk to him. He went to the school with their Pastor and saw John Kanagui who was by then already dead. John Kanagui had a spear stuck to his side.

13.	In cross-examination he was asked by Mr Momoi, counsel for the accused that as the community leader whether he was aware of the deceased destroying crops belonging to Simon Bararangi, Aparika Mugara, Akoreng Adani and Wadama Jason, and he answered that these were paybacks. The issue with Joseph Asagar was payback. They burnt the deceased house, and they paid back by killing the deceased. He was able to recognize the accused persons from the moonlight.

14.	Patrick Wadama gave the following evidence. He is from Niapak village. He was with John Kanagui and a Mr Gubag. He left them at the school ground and returned home. When he arrived at his house, he saw Mundus, Jude and Aguri at his house. Aguri tried to spear him with a rubber gun. He moved one metre away from them and told them not to start trouble. Mundus Asagar told him they will go and kill John Kanagui. He left them and walked to the road and met Joseph Asagar and spoke with him. Joseph said they will go and kill John Kanagui and Patrick responded by saying you will put the boys in trouble. The time was 7:30pm when he spoke to Joseph Asagar. There was moonlight. Joseph Asagar was with all the accused persons. After they talked Joseph Asagar led the boys towards the school. He was at home when he heard the garamut drum beating at 9:45pm. In cross examination he said he did not know why Aguri tried to spear him.

15.	Gabriel Arika gave the following evidence. He is a Village Court magistrate at Ward 14, Yawar LLG. He is in court as a witness concerning the death of John Kanagui who died on 22 August 2023 between 7:30pm and 8:00pm. He was at a fellowship, and they had noise from the school. He walked to the road and heard swearing and threatening words. He was 1.5m beside the road and saw Joseph Asagar, Gideon Asagar, Mundus Asagar, Jude Asagar, Kelly Asagar and Goging Asagar making their way out. There was moonlight. They were scared as they thought the relatives of John Kanagui might attack them. In cross-examination he said it takes one hour to walk from Niapak village to Ariap Primary School. The argument between them is one of payback. They burnt John Kanagui’s house first. He was scared but he stood beside the road, and they walked past. They threatened him and the councilor.

Issues

16.	The central issue is whether the circumstantial evidence showed who killed John Kanagui? If indeed one of the co-accused did kill the deceased, what evidence is there that the co-accused aided and abetted each other to commit the offence of wilful murder?

Considerations

17.	The State’s evidence is circumstantial. The three State witnesses did not see who killed the deceased, but identified each of the accused, and saw them holding onto weapons. Patrick Wadama saw Jude Asagar, Mundus Asagar and Joseph Asagar before the death of the deceased. Joseph Asagar told him that they were going to kill John Kanagui and then he led them to Ariap Primary School. He also saw a person by the name of Aguri who tried to spear him. The Defence exercised their right to remain silent. So there was no evidence to dispute what Patrick Wadama told the court. The accused also did not disturb his evidence in cross-examination on the vital aspects of the conversation he had with them, especially the expressed intention of Joseph Asagar to kill John Kanagui.

18.	The presence of the accused in the vicinity of the crime scene soon after the death of John Kanagui was witnessed by John Ureka and Gabriel Arika.

19.	In my assessment of the evidence, I find the State witnesses to be witnesses of truth. Patrick Wadama told the court what he saw, and what he heard, that is that the accused Jude Asagar, Mundus Asagar and Jospeh Asagar were on their way to Ariap Primary School. They had weapons with them, and they were angry. No one saw the killing, but after the killing all the accused were walking away from the scene of the crime. This is from the evidence of John Ureka, a village councillor and Gabriel Arika, a village court magistrate.

20.	 The question is whether that is enough for me to convict the accused for wilful murder? I have drawn considerable assistance from the Supreme Court case of David v State (2006) SC881. In that case the Supreme Court held that in a homicide trial in which conviction turns on circumstantial evidence, the trial judge should make clear findings as to who killed the deceased and where, when, how and why the deceased was killed. Failure to do so will constitute an error of law.

21.	I deal first with the inconsistency in the evidence raised by the accused. Firstly, the distance taken to walk from Niapak Village to Ariap Primary School. Gabriel Arika said it takes one hour to walk there. Patrick Wadama said he saw them at 7.30pm. According to Gabriel Arika the death occurred sometimes between 7.30pm and 8.00pm. This means that by the time the accused arrived at Ariap Primary School, the deceased would have already died. In my view the time provided by Gabriel Arika was an estimation. The significant evidence is that the accused expressed an intention to go to Ariap Primary School to kill John Kanagui.

22.	Because of the issue of the timing the accused submits that the State witnesses are not credible witnesses. In my view, again the significant evidence, is that the accused were positively identified before and after the incident occurred in the vicinity of the crime scene. The time provided was an estimation, and would have to be considered together with the whole of the evidence. If there was a difference of several hours, or a day, together with the fact that the accused were some distance from the crime scene, then this submission would carry weight. As it stands, not much can be made of it.

23.	The next issue raised by the accused, is their identification. They say that the State’s evidence is not logical, and the fact that they were armed is not corroborated. The State also failed to establish which spear in the photographs was stuck to the victim’s side. This submission is countered by the fact that three witnesses, independent of each other, identified all the accused, before the incident and after the incident, and in the general vicinity of the crime scene.  

24.	It was Patrick Wadama’s evidence that he was with the deceased and a person by the name of Mr Gubon. He left them at the school ground and returned home. When he arrived at his house he saw Mundus Asagar, Jude Asagar and another person, Aguri. He said Aguri tried to spear him with a rubber gun. He moved one meter away from them, and told them, not to start trouble. Joseph Asagar told him that they will go and kill John Kanagui. Patrick Wadama told him, that this will put the boys in trouble. Joseph Asagar then led them to Ariap Primary School. This evidence is critical and has not been disturbed.

25.	The accused strongest submission is that there are other reasonable explanation inconsistent with the guilt of the accused because the State’s case is circumstantial. Firstly, there are other people who may have motives to kill the deceased for destroying their crops (from the cross-examination of John Ureka) and secondly, two people who may be involved, who were seen in the vicinity of the crime scene, and they are Kelly Asagar and Aguri.

26.	As to the first contention, I form the view that this is a mere conjecture, and not a reasonable hypothesis. It is dispelled by the evidence of Patrick Wadama who gave evidence of the expressed intention of Joseph Asagar and the evidence of Gabriel Arika and John Ureka who saw the accused moving away from the scene of the crime at the material time. There is no evidence of persons who have the motive to kill the deceased seen at the scene of the crime, such that they can equally be suspects of the offence such as Simon Bararangi as the accused suggest. On the second contention, Kelly Asagar was in fact charged with the accused now in court, but he has escaped from custody. As to the person by the name of Aguri, I will come to this aspect when I consider the extent of the involvement of each of the accused on the question of aiding and abetting.

Findings of Facts 

27.	In making my findings, I bear in mind the considerations on identification evidence set out in John Beng v The State, Biwa Geta v The State and Jimmy Ono v The State, referred to above, with an appropriate self-caution in my assessment of the evidence. 

28.	Based on all the evidence that is before me, I find the following facts proven by the State beyond reasonable doubt:

•	All the accused were positively identified by the State witnesses. There was no issue of lighting, and that of proximity, and they are known to the witnesses. Their identity is also corroborated by each of the State witnesses. John Areku in his re-examination, states he knows them well as they are his people.
•	Joseph Asagar led the accused to go and look for John Kanagui with the intention to kill him on the night of 22 August 2023, between the hours of 7.00pm and 9.00pm.
•	This intention to kill John Kanagui was expressed, by Joseph Asagar to Patrick Wadama.
•	When Joseph Asagar made this intention known, to Patrick Wadama, Jude Asagar, Mundus Asagar and a person by the name of Aguri were with him.
•	Aguri attempted to spear Patrick Wadama.
•	The inconsistency in the time differences from the evidence, was because the timing by the witness was an estimation, and did not materially affect the State’s case.
•	The motive for the killing was payback for destruction of properties. This came out from the re-examination of Gabriel Arika.
•	Joseph Asagar and his co-accused went to Ariap Primary School to look for John Kanagui to kill him.
•	When they found him at the house of one of the teachers there, one of them shot him with a spear gun on his side.
•	Medical report tended without objection showed that the deceased died from internal haemorrhage from the spear wounds.
•	After one of the accused fatally wounded the deceased from the spear gun, all the accused walked away from the crime scene, and this was when Gabriel Arika and John Ureka saw them.
•	Although it is probable that one of Gideon Asagar, Jude Asagar, Mundus Asagar and Oging Asagar fatally wounded the deceased, there is no evidence of the extent of their involvement in the commission of the crime on the basis of proof beyond reasonable doubt. It may have met the civil standard of balance of probability, but not the criminal standard of proof.
•	In that regard, the contention that Aguri may have been a possible aider and abetter of Joseph Asagar comes into play as a reasonable hypothesis other than the guilt of the co-accused to Joseph Asagar. He was not an innocent bystander as he wanted to attack Patrick Wadama.
•	If the State had led further evidence on the motive of killing and the nature of the relationship of each of the accused to each other, then it would have established a common intention on all of them.
 
29.	I make these findings as the basis of the verdict I will return on the charge faced by the accused.

Verdict

30.	For the reason of the lack of evidence of the extent of involvement of the other co-accused under s 7 of the Criminal Code, in terms of how they aided and abetted Jospeh Asagar in the commission of the crime, I will return a verdict of not guilty for Gideon Asagar, Mundus Asagar, Jude Asagar and Oging Asagar.

31.	As to Joseph Asagar, I find him guilty of wilful murder as the State has proven beyond reasonable doubt, that he was aided and abetted to kill John Kanagui, whose death is not disputed, that there was no lawful justification for the killing from the evidence, and that he intended to kill the deceased, when he expressed this intention to Patrick Wadama, and further that intention is shown in the nature of the injuries sustained by the deceased.

32.	The State has negatived beyond reasonable doubt all reasonable hypothesis that would have been inconsistent with the guilt of the accused, Joseph Asagar.

33.	For the foregoing reasons, I return a verdict of guilty of wilful murder contrary to s 299(1) of the Criminal Code for Joseph Asagar and not guilty for Gideon Asagar, Jude Asagar, Mundus Asagar, and Oging Asagar and they are to be discharged forthwith from custody.

34.	I will now hear submissions on sentence for Joseph Asagar. 
________________________________________________________________
Lawyer for the State: Acting Public Prosecutor
Lawyer for the accused: Public Solicitor