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State v Sam [2026] PGNC 28; N11720 (16 February 2026)

N11720

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO 2129 OF 2023
CR NO 2130 OF 2023

THE STATE

V
AMDIL SAM &
KUPIL KANGIPI

MINJ & MT HAGAN: CROWLEY J
9, 18 JULY (MINJ) 17 OCTOBER (MT HAGAN), 16 FEBRUARY 2026 (MINJ)

CRIMINAL LAW – trial – s300(1)(a) murder- identification evidence- alibil evidence- the rule in Brown vs Dunn- credibility
Cases cited

John Jaminan v The State (No.2) [1983] PNGLR 318
Brown v. Dunn (1893) 6 ER 67

Counsel

Ms T Kagl, for the State
Mr F Timbi, for the offenders

TRIAL

1. CROWLEY J: The trial of this matter commenced while on circuit in Minj, Jiwaka in July of 2025. Later it continued in Mt Hagan in October 2025. It took final submissions when on circuit back in Minj in February 2026.
   
2. The prosecution’s case was that early in the morning of 17 November 2022 at Kugark in Jiwaka Province a group of men set upon Toki Wus an elderly man in his 70 or 80s. The group, including the accused, attacked, beat and stabbed Toki Wus. He was taken to the Nazarene General Hospital in Kudjip where he survived for three days. However, he died on 20 November 2022.
   

Terms of the indictment and offence.

3. The indictment read:
   

Amdil Sam and Kupil Kangipi both of Kugark Village, Anglimp South Waghi, Jiwaka Province, stand charged that they on the 17th day of November 2022 at Kugark in Papua New Guinea, murdered Toki Wus, contrary to section 300(1)(a) of the Criminal Code.

Accused has pleaded not guilty

4. Amdil Sam pleaded not guilty. Kupil Kangipi pleaded not guilty.
   

The Prosecutions case

5. At the beginning, the State tendered 8 exhibits by consent. The first, Exhibit 1 was the statement of the arresting officer Constable Jack Tam. Constable Tam conducted a record of interview on 2 March 2023 almost four months after the incident. It was conducted at 11:08am at the CID Office at Minj Police Station. First Constable Cathy Apa was also present. Mr Amdil Sam was cautioned and informed of his constitutional rights under section 42(2). The interview consisted of 31 questions and the accused Amdil Sam did not make any admissions.
   
6. Exhibit 2 was a statement from First Constable Cathy Apa. She was stationed at Minj Police Station. On Thursday 2 March 2023 at 11:08 am she was asked by Constable Jack Tam to act as the corroborating officer in a record of interview with Amdil Sam. She deposed to there having been 31 questions asked and he made no admissions.
   
7. Exhibit 3 was the transcript of the Record of Interview (ROI) with Kupil Kangipi in pidgin. Exhibit 4 was the transcript of the ROI with Kupil Kangipi in English. In that transcript, Kupil Kangipi indicates that the interview took place on the 6th of March 2023 at the Minj Police station. The corroborating officer was explained why he surrendered himself to police. He denied any involvement in the incident on 17 November 2022.
   
8. Exhibit 5 was the transcript of the ROI with Amdil Sam in pidgin.
   
9. Exhibit 6 was the transcript of the ROI with Amdil Sam in English. Amdil Sam made no admissions but explained why he surrendered himself to police.
   
10. Exhibit 7 is a two A4 pages with two black and white photographs on each page. There are also hand writings explaining the photographs. The first page has two photographs each of a road. The hand writing explanation at the bottom says “The first photograph shows the road heading down Kildip Way through Marban Coffee Plantation.” The second photograph shows the road heading back from Minj. The fight between the two clans occurred along that road. On Page 2, the top photograph is again of a road. Something is barely visible on the opposite side of the road due to the colour contrast. Next to the top photograph there is a hand written note stating “the deceased house the location the back of the Coffee Planation (Marban) and the Okuk Highway”. The bottom photograph is also hard to see but it shows planks of wood, sticks and straw on the ground. Next to it is written “This photograph shows where the deceased house was and the place he was attacked”.
    
11. Exhibit 8 was called the sketch map, though it is computer generated. It has different shapes to denote the coffee plantation, the deceased’s house, where the deceased fell, where the highway is and other things.
    

The witnesses for the prosecution

12. The prosecution called Kay Wus. She was from Kugark near Malban Plantation in Jiwaka province. Ms Wus was married with two children. She was employed at the Kugark primary school as a typist. She was the younger sister of the deceased Toki Wus. Both the witness and the deceased were from the Kurup Kanem Tribe.
    
13. On the 17 November 2022 she was at her house between 8am-9am. She was preparing to go to work. The deceased Toki Wus and his clansmen, the Kurup Kanem came to where Amdil Sam was living to solve a dispute about land that lies near the Malban plantation. Amdil Sam belongs to the Kaim Kanem tribe. They went to discuss this dispute but at once turned and started to walk back. Then Amdil Sam and Kupil Kangipi (who is also from the Kaim Kanem tribe) started a fight. They were both drunk and shouting loudly. They came to the disputed land which Toki Wus the deceased was living on. About six men attacked Toki Wus. They included Otto Sam, Andre Collin, Kupil Kangipi and Amdil Sam. Otto Sam, the brother of Amdil Sam grabbed a spade and used the spade to hit the deceased on the head. The deceased fell over. Amdil Sam got a bush knife and stabbed the deceased in the side. She described this knife as like a bush knife, a pocket knife or a knife that the young boys create and turn into a weapon.
    
14. Kupil Kangipi had a screwdriver (or something like a screwdriver) which he used to stab the deceased in the ear. The deceased was lying on the ground. Ambra Collins came and hit the deceased in the face while he was still lying on the ground. Kupil Kangipi tried to slap the deceased in the face but the witness pushed him away. The witness said that while the deceased lay on the ground, he was losing a lot of blood. She was crying. The witness and others picked up the deceased and put him in a car and took him to the hospital. He was in the hospital on Thursday, Friday, Saturday and he died in there on Sunday at around 12noon.
    
15. She was 3 metres away and nothing was obstructing her view.
    
16. She knows Amdil Sam because they live near each other. She also knows Kupil Kangipi though he lives further away.
    
17. Kathy Wus said she knew the fight was in relation to land. She said the land at the back of Malban Plantation. The deceased had a coffee plantation. He built his garden there. Amdil Sam would come during the night and chop down his banana trees and steal from his garden. The deceased had a house on this land which was burnt down, that’s why he and his tribe were going to resolve this dispute.
    
18. In cross examination it was put to her that she was at home when the fight started. She identified where her home was on Exhibit 8 the Sketch map. She pointed to a box towards the bottom of the page near the bend in the road. She estimated it was around 15 metres from where the deceased was attacked.
    
19. She agreed that she had a house at Milsip Village as did Amdil Sam and Kupil Kangipi. Milsip is 2 km from the highway where the attack occurred. It was put to her that she was at Milsip when the fight occurred. She denied this.
    
20. It was put to her that there was a court order in place regarding the land and that the court had ordered Toki Wus to vacate the land. The deceased had gone to prison because he had disobeyed that order by not vacating. Ms Wus agreed that the deceased went to prison for six months but otherwise said she did not know about the court order.
    
21. It was put to Ms Wus that the fight had started because of this land dispute that the deceased’s tribesmen had attacked and chopped Amdil Sam at around 5am. Ms Wus said there was no fight at 5am. She didn’t think the fight started because of the land dispute and it was a lie to say Amdil Sam had been chopped.
    
22. I found Kay Wus to be an impressive witness. She was short and solidly built. She had a solid head and very dark skin. She seemed to understand English though talked in pidgin. Her answers were forthright and to the point.
    
23. The next witness for the State was Mari Komp. Ms Komp was married with three children. She made her living as a subsistence farmer. She is Toki Wus’ daughter in law (she is married to his son).
    
24. On 17 November 2023 she said she was at her house and headed to the highway around 8 or 9am. She stopped beneath the bamboo when she saw the fight break out between the Kaim Kanem and the Kurup Kanem. It was over a land dispute. Otto Sam (who she knows is a councillor) took the handle of a spade and hit Toki Wus who fell down. Amdil Sam used a bush knife to stab Toki Wus in the ribs. Then Kupil Kangipi took a screwdriver and stabbed Toki Wus in the ear. She was 15 to 20 metres from the fight with nothing obstructing her view. When Toki Wus fell, she ran away but later returned to take him to hospital. She said she knew Amdil Sam because they are from the same clan/village and she knows Kupil Kangipi because they live in the same village.
    
25. In cross examination she agreed that her house was is Milsip Village. That she had walked to the highway where the fight was and it was about 2 kilometres walk. She agreed that it was a tribal fight between the Kurup Kanem and the Kaim Kanem, that there were a lot of people involved and that they used sticks, stones and bush knives. She agreed that the fight was over a land dispute but she did not know about the District Court orders from Minj.
    
26. Ms Komp accepted that when Toki Wus got out of prison he built on the disputed land. She denied knowing of court orders and said “this must have been something that happened between men. I am a woman I’m just telling you what I saw.”
    
27. It was put to her that she was in Milsip village when the fight was on and she didn’t see it. She responded “it was day light and the Good Lord knows what I saw”. She said that after the fight she was chased away but she went back and took the deceased to hospital. He was bleeding a lot from the ribs.
    
28. It was put to her that the Kurup Kanem attacked Amdil Sam at 5am who feared for his life and ran away. She denied that and said no they did not fight when they came back. The fight was between 8am and 9am.
    
29. Mari Komp was taller than Kay Wus but had similarly very dark skin. She seemed unsophisticated. She spoke quietly. I had to ask her to speak up. On a couple of occasions, she just didn’t answer the question. She just sat mute. I had to ask for the question to be repeated and for her to answer it. She seemed overawed by the situation. But I found her to be a truthful witness who maintained her story.
    
30. The next witness was Rebecca David who was married with six children. She did marketing to earn money. She is married to the deceased’s son, so Toki Wus was her father-in-law.
    
31. In the early morning at Milsip village the boys and her husband and 4 other boys came down the highway road. They left the highway road and went to Amdil Sam’s area where the trouble occurred (it occurred frequently there). There is a small plot of land and that was where she and others had their land where they planted beans and bananas. Then “they” come and destroy them. So she and the others built a house. Amdil Sam who she pointed to in the dock) and Kupil Kangipi came and removed the house when they were drunk. The house was as still unfinished with the grass roof on top yet. So the meeting that the morning was to talk about the removal of the house and the destruction of the garden.
    
32. The witness was shown Exhibit 7 and gave evidence that the bottom photo was of the house that had been destroyed. The house was built by Toki Wus. The boys and her saw the damage and we went to go to the house because they:
    

“wanted to mediate, we had discussions and mediated and came back to. But Kangipi was drunk he and Amdil Sama and a group of boys were fighting on the road we walked down and walked up. Our father came out and walked ahead of us we went to his house that was destroys and stood there. I was standing on the road. Crowd came down the road. He was 5 metres away. I saw Amdil Sam run at him with the handle of a shovel, struck him on the head. He’s an old person . He fell on the ground and Amdil Sam put a knife through his ribs. Kanip put a screwdriver through his ear. That’s what I saw . There was a crowd coming. If I stayed longer maybe my life too. So I ran away with my boys. I saw him fall down. I went up and told the boys father has fallen down and I told the boys to pick him up and we got a car and picked him up. I was 15 metres from the fight.

33. She knows Amdil Sam.
    
34. In cross-examination she confirmed she was coming down from Milsip village and that Mari Komp has a house at Milsip and that Kay Wus has one of her houses in Milsip village. She was not aware of the Court order to vacate the land but she said that the land in dispute was not State land it was customary land. She described where it was situated in relation to the Coffee Plantation. The dispute over the land was based on jealousy. She accepted that Toki Wus went to prison for 6 months and that after prison he did not leave the land when he got out. She accepted the fight started because Toki Wus refused to leave the land.
    
35. She denied that Toki Wus’ brothers and clansmen attacked Amdil Sam first but agreed they went to Amdil Sam’s house to mediate, She denied that anyone attacked Amdil Sam there and said she did not see him run for his life. She said that after they talked she and the others came to the road where an argument started which turned into a fight. She agreed that the tribesmen were using stones, sticks and bush knives, that her tribesmen retaliated to being attacked and that Toki Wus was injured as a result of the fight. She denied that the deceased died from his head injuries which she corrected and said were caused by Otto Sam. She said the injury to the head was not bleeding but that he was bleeding from the knife wounds in his side. She agreed that it was a big fight and that she and the other state witnesses were relatives of Toki Wus.
    
36. Rebecca David was an impressive witness. She seemed intelligent with bright eyes and an alert look. She came across as truthful.
    
37. The next witness was constable Jack Tam. He was the investigating officer who had conducted the ROI. His statement had been tendered as Exhibit 1 on the understanding he would be available for cross examination. The state wanted to tender photos of the deceased which the Defence wanted to cross examine Constable Tam over.
    
38. Constable Tam’s evidence was that he received the photographs and he drove to where the body of Toki Wus was to confirm it was the same person. The photographs had been given to Constable Tam from the relatives of Toki Wus. But he confirmed that they were photographs of the deceased and included them in his investigation file.
    
39. The defence objected to the photos being tendered on the basis that the photographer wasn’t being called. I agreed that strictly speaking, the photographer should be called but I point out that there was no issues of documentary hearsay because Constable Jack had satisfied himself that the photos were that of the deceased by comparing the photos to the deceased body. As such I overruled the objections and admitted them.
    
40. The photographs became Exhibit 9. They consist of one A4 page with five photographs. Three are of an old man connected to tubes as if in hospital. Then there is a photograph of a coffin with a crucifix. Finally there is a photograph of a framed photograph of the old man in his casket.
    
41. Prosecution called Peter Kumie. He was now teaching at the Pai Nursing College but in 2023 was working at the Minj Hospital as a Senior Health Officer. He had significant experienced having attended a Bachelor of Community Health Administration and having worked as a health officer at Minj Hospital from 1982 to 2024.
    
42. Mr Kumie said was approached by relatives of the deceased who asked him to complete a medical report for a legal case. They presented him with the clinical health record book of Toki Wus. Mr Kumie did not do medical reports perse, he merely wrote a report based off medical files. He had experience doing this work for legal cases. He identified the medical report when it was handed to him and agreed that his signature appeared on the final page.
    
43. In cross examination Mr Kumie conceded that he prepared his medical report from documents given to him by relatives of the deceased. Further he accepted that he had not examined the body of the deceased. He also conceded that he did not take the documents he was given by the relatives (like the Death certificate) and Kudjip hospital to confirm their authenticity. He was asked to give the court a definition of the term cardiac arrest which appeared on the death certificate. He said that a doctor should explain that. It was put to him that he did not understand what it meant but he answered “I’m just here to verify these documents”.
    
44. The report by Peter Kumie became Exhibit 10. It consisted of 2 pages and was partly handwritten and partly typed. Exhibit 11 was a Affidavit of Peter Kumie dated 6 April 2023.
    
45. Peter Kumie seemed a quiet man who was a little timid. He was shy about getting in the witness box. He spoke a little quietly and was hard to understand. He had a habit of not answering the question that was asked but giving a rambling story. I did not take this as dishonest. He eventually gave the information that was wanted.
    
46. When the trial resumed in Mt Hagan on Monday 13 October 2025 the Prosecution called Dr Benjamim Radcliffe. He worked at the Nazarene General Hospital in Kudjip. He is a Board-certified doctor and surgeon in both the United States and Papua New Guinea. He has been practicing general medicine since 2009 and as a surgeon since 2014. In 2022 he was practising in Kudjip at the Nazarene General Hospital.
    
47. After reviewing the medical notes and death certificate that were handed to him he said that he recalled the patient Toki Wus. The patient was admitted to the emergency department on 17 November 2022 with a stab wound to the left chest. He was operated on, place on the ward to recover, underwent CPR which was unsuccessful and died on 20 November 2022. Dr Radcliffe identified that cause of death was cardiac arrest. The antecedent cause of death was blood loss caused by the stab wound. When asked for further details the Doctor said that the patient was in shock when he was presented in the Emergency Department. He suffered continuous bleeding. He was operated on within an hour of presenting to the hospital. He was given a blood transfusion. The bleeding was difficult to stop. He was operated on, put on the ward and two days later he died of cardiac arrest.
    
48. Dr Radcliff was asked if a postmortem was done. He said There was no coroner in Kudjip so postmortems were not done routinely. They were only done on request by the police or family or the courts.
    
49. The prosecution tendered the death certificate which was admitted and marked Exhibit 12 and the Admission and Clinical Notes which was admitted and marked Exhibit 13.
    
50. In cross examination Dr Radcliffe was asked if he was in the Emergency Department when Toki Wus was presented. He said he was not but that the clinic notes identify that there were three other doctors present. He was asked if the hospital stopped the “continuous bleeding” the patient was suffering. Dr Radcliffe said that yes, that was done by the surgeon on-call and it was identified in the operative notes. He was asked if the patient was given a blood transfusion and if he lived for two more days which the doctor agreed with. Counsel for the co-accused directed the doctors attention to the clinic notes which said that the patient had come back from the toilet, sat on the bed then collapsed. The doctor confirmed using the notes that that had happened. He said the nurse had found a weak pulse, gave CPR but the patient died.
    
51. The doctor was asked if the stab wound was deep. He said that it had gone through the chest wall into the lining around the heart about 7 to 10 cm deep. He was asked how wide the wound was. But the doctor could not recall and there were no notes to suggest width. Dr Radcliffe was asked about the blow to the head suffered by the patient. The Doctor said that the wound was cleaned washed and treated in the Emergency Room. He was asked if it was possible a blow to the head could cause internal bleed. The Doctor said it was theoretically possible. The doctor was asked if he had “assumed” that the cause of death was cardiac arrest since there was no autopsy performed. He said that cardiac arrest caused by significant blood loss was the most likely cause.
    
52. It was put to him that cardiac arrest could happen when someone sustained direct trauma to any part of the body. Dr Radcliff responded that cardiac arrest can be caused by blood loss or blunt force trauma. The cause of death in this case was multifactorial. The death certificate records that he is not a coroner and not qualified to conduct an autopsy. The cause of death that he put on the death certificate was based on the information he had and, in his professional opinion, the most likely cause of death.
    
53. Doctor Radcliffe was an impressive witness. He came across as a very competent medical practitioner. He answered questions thoughtfully and with precision.
    
54. The Prosecution closed its case and the defence were called on. Counsel for the co-accused said that they would go into evidence.
    

The witnesses for the defence

55. The first witness the defence called was the accused Amdil Sam. He said his name was Johnson Sam. He worked security at the planation which was owned by “one of his fathers”. When asked who Amdil Sam was, the witness said he was not in Court. When asked why he was in court he said he was there to keep peace between the company and the village. Two cards were then tendered; one was an expired drivers licence which became Exhibit 14 and a National Identification Card which became Exhibit 15. Both were in the name of Johnson Sam and had photographs resembling the accused.
    
56. When asked to describe the events of the 17th of November 2022 the witness said there was a tribal fight between clans of the Malban. It was the Kurup Kanem against the employees of the plantation. At around 6:30am to 7am the witness was at his house which was inside the plantation on the side near the road. A crowd of men came and chopped down his banana trees. They attacked him and chopped him on the forehead with a bush knife. The witness was scared for his life and ran away into the bush and people were looking for him. He did not come out until he heard his wife and children calling for him. When asked who was calling for him the witness nominated Nelson Otto, Nelson Johnson and Michael Johnson.
    
57. The witness was asked about his house. He said it belonged to the State. His village was Kugark. It is 3 to 4 km up the highway to Kugark. The plantation is 422 hectares.
    
58. The witness saw the group of people who attacked him. He thought that they attacked him because he was the boss of security for the planation. There had been an argument in court regarding a small piece of land, and things had been removed from that small piece of land. The witness thought he was attacked because people believed he had ordered things to be removed.
    
59. When asked how he came to be arrested the witness gave the following account. The attack occurred on17 November 2022. The old man was admitted to hospital on that day. He died four days later on the 20th of November. On Monday the witness and his family were at home. On Tuesday he “went to the big place”. The police came and said they wanted one or two people to surrender themselves so that peace can happen. There was a big public fight at the highway. As head of security I was willing to surrender myself. I wasn’t restrained. I got into the Police car. 5 police were in the back. They took me to the station. They didn’t charge me. In custody from 22 November 2025. Police told me to give them my name. It told them my name was Johnson Sam. Police didn’t say they would charge me. They said I was there to bring peace in the community and when peace returned we would be released.
    
60. The witness was then asked about the bush knife wound he received. He said he did not go to hospital. He was wearing a cap when he was struck so he just got a cut on the forehead.
    
61. In cross examination he was asked if he surrender himself to the police and how long he had been incarcerated. He said yes he had surrendered himself and had been incarcerated for one month in Minj and one year five months in Barawagi.
    
62. The witness was asked if he knew Rebecca David and Mari Komb which he did. He said they were she was lying to the Court when they had given evidence and said he was at the fight. It was pointed out to him that he said in evidence in chief that he was at his house located at Malban when the fight occurred. It was put to him that the Notice of Alibi filed by his lawyers said that he was at Karal Village between 8am and 9am on 17 November 2022. He denied being at Karal Village and said that that was where his co-accused Kupil Kangipi was.
    
63. There was then an exchange between counsel. The Defence Counsel then said that the Notice of alibi related to the co-accused but the Prosecutor pointed out that it clearly identified that it was in relation to Amdil Sam. The defence then said “That’s fine, the State can continue with its cross examination”. Which did not clarify the position for the court.
    
64. It was put to the witness that he was at the offence location with his co-accused and a bush knife. He said that was Amdil Sam not him, he is Johnson Sam.
    
65. The Prosecutor reminded him of his testimony that he was in custody because he is taking the blame for someone else. The witness replied that his father had owned the plantation, he was head of security and he is responsible for the relations with the community. The Prosecutor asked if he had told the police he was Johnson Sam. The witness said he had. He was asked if he had provided the identification cards to the police (Exhibits 15 and 16). He said that he hadn’t because he wasn’t arrested. When pressed by the Prosecutor he said that the police didn’t give him a chance. They didn’t “...give us the time or space to speak”. When pressed again that he could have been free if he had produced the identification documents to the police or press his claim that he was not Amdil Sam he repeated that he had not been charged but also said that the prosecutor had changed. It was pointed out that when the investigating office Jack Tam gave evidence at this trial, Defence Counsel did not put to him that the witness was not Amdil Sam. The prosecutor then put her case which the witness denied. He repeated several times that the events the Prosecutor described involved Amdil Sam, not him.
    
66. I then asked the witness who Amdil Sam was. He said it was someone else. I asked if he had ever met Amdil sam. He said there were 3, 4 or 5 persons in the village called Amdil but they have different fathers. I asked if he had told this to the police. He said “they did not give me time to say”.
    
67. In re-examination he was questioned about what he told the police in his interview and if he was asked for his identification cards. He said he wasn’t asked for them.
    
68. The next witness was the accused Kupil Kangipi the co-accused. He said he was from Wulupka which was his place of residence. He had been educated to grade 2. He was married with 5 children. When asked where he was on 17 November 2022 he said he was at the big village called Karal which was 4 to 5 kilometres from the from the main highway. In the early part of the day he was at Karal with Minga Kangipi, Anna Mare and some others. He was asked to give their names but said “If I did give their names they would not come to court”. He said at the time of the offence he said he was with his family.
    
69. He was asked to describe his arrest. He said there was a big problem in the village, and by that he meant a death; “the police didn’t call names. We just jumped on the truck”. When asked why he did that, he said it was his father’s company and he worked in security for it. He said he wanted to bring peace to the community, that’s why he jumped on the truck.
    
70. In cross examination he was asked if he and Amdil Sam voluntarily surrendered to police. He said yes. He was asked if the person in the dock was Amdil Sam. He said “Yes, Amdil Sam”. After a pause he corrected himself and said that it was Johnson Sam. He was asked why he said it was Amdil Sam but he just repeated that it was Johnson Sam. He was asked how he knew the person in the dock and he said they were from the same tribe. Which was Wulupka. The prosecutor asked if he was in Karal village with his sister and Anna Mare. It was pointed out to him that he did not name the other people he said he was with that morning and it was put to him that was because those people wouldn’t support his alibi. He agreed with that.
    
71. He was asked if he was related to the co-accused. He said that their grandfathers were brothers. He was asked which tribe they were from and he said “Kaim Kanem”. It was put to him that Toki Wus built a house on the side of the road near the plantation and that people from the Kaim Kanem came and destroyed the house. The witness agreed.
    
72. A long question was put to the accused. It was put to him that on 17 November 2022 between 8am and 9am the Kain Kanem and Kurup Kanem tribes gathered to settle their land dispute and that he and his co-accused as sons of the owner of the planation were there to settle the dispute because it was their land that the deceased had built on. The accused answered yes to this question but when the prosecutor followed up he said he was not there but that he was “up at the big village”. This question was repeated in various forms but the response from then on was the same. The accused denied being there. That continued for the rest of the cross examination.
    
73. I then said to the witness “yesterday you were asked to point to Amdil Sam, you pointed at your co-accused, why did you do that?”. The witness said “that’s Johnson Sam”. I asked if he knew “Amdil” Sam. He said there were 3 or 4 people in the village called “Amdil” but they have different surnames. I asked if one of them was called Amdil Sam. He merely repeated his answer about several “Amdils” being in the village but I persisted with my question and he eventually agreed that there was an Amdil Sam. I asked what he looked like. The witness prevaricated and returned to talking about the several “Amdils” in the village. I pressed my question and after several long pauses he said “he looks like his father”. When I asked for a description, he said he has black skin and was old. I asked how tall he was he said the same height as the interpreter. I asked when was the last time that he saw Amdil Sam. There was a long pause. Finally he said “I saw him at his village”. I asked when that was. After another long pause he said “10 o’clock”. I said what day was that? He said “we are from the same community”, I repeated my question. He eventually replied, “I can’t recall the day but I can say that we live together”.
    
74. In re-examination the accused was asked who ran the coffee planation, he answered that Anjip Mare ran it but they had died now Tumbe Industry took over the management. He was then questioned about which tribe or people were involved in destroying Toki Wus’ house. Eventually the witness said that he was not involved. He was asked about Amdil Sam who he said was from Kaim Kanem tribe and lived in the main village.
    
75. The Defence then called their third witness Minga Kangipi. She said she was 20 years old, married and had left school after Grade1. When asked about the incident on 17 November 2022 she said that Kupil Kangipi was in the house asleep. When asked who else was in the house she said that Kupil’s sister was there as well as his cousin. They were all asleep in the house. At around 6am there was a fight at the main highway. Her house she said was “along way from the community”. When asked how she knew there was a fight she said “Kupil was in the house. They said there was a fight but Kupil was at the house”.
    
76. The witness was asked how Anna Mare was related to her. The witness said they were cousins. She was asked what they were doing between 8am and 9am. She said they were still at home. They heard rumours of a fight on the road. She was asked who owned the plantation, she said Kupil Kangipi’s father owned it. It was a very large plantation with a lot of workers. When asked if there was accommodation for the workers at the planation, she said that the plantation house is vacant and the workers merely come and go. She lived in Karal Village which is located outside the community.
    
77. In cross examination the witness was asked if she was related to the accused. She said she was his sister, she said they all lived in the same house. She confirmed that they all slept in the same house and woke up together at 6am. She was asked when the fight occurred at 5am or 6am. She maintained that the fight was at 6am though she said she wasn’t there They only heard about the fight. She was asked to describe the house in which they lived. She said it was a Kapa House. It was not permanent. It had three rooms. Kupil slept in one room and she slept in another room. The third room was a kitchen. She was asked what her brother was doing around 8 or 9am. She said that he was doing some work. It was put to her that Kupil Kangipi said he was asleep. She said they were all asleep then they got up and worked. That he was asleep at 6am but was up and working after 8am. She was asked if she knew Toki Wus. She said he was a father but that she didn’t know him. It was put to the witness she was merely giving evidence to support her brother but the witness stuck to her story that they were all at the house asleep at 6am.
    
78. I than asked the witness “do you know Amdil Sam?”. She said “Amdil Sam no, this is Johnson Sam”. I repeated the question and she said, “I don’t know but this is Johnson Sam”. I asked “Is there an Amdil Sam in your village?” She said “No there is Johnson Sam”. She then collapsed and the Court had to be adjourned. When we resumed I asked if there was anyone called Amdil Sam in her village and she said no, there is Johnson Sam.
    
79. There was no re-examination.
    
80. The defence called their final witness Anna Mare. She was 24 years old and married. She was a housewife. Her husband’s name is Peter Mare. Because of domestic issues she had come to live with her cousin Kupil Kangipi in Karal village. She said that between 8am and 9am on 17 November 2022 she was at Karal village in the house with Kupil Kangipi. In the house was Kupil, Mangi and “the whole family”. When asked for names she said there were a lot of them in the house. She was asked who owns the plantation and she said that Kupil Kangipi’s father and brothers. She was asked how far Karal was from the highway she said 4km or an hour and ten minutes walk.
    
81. In cross examination she was asked to describe the layout of the house. She said it was a two-bedroom house but she slept in the living room.. On the 17th of November 2022 she woke at 6am and was with Mangi Kangipi, Kupil Kangipi and “other family members”. They heard about a fight down at the highway. They heard this around 6am. They stayed at the house from 6am to 9am. The witness said that Kupil Kangipi was sleeping then got up and did some work. He was preparing tea and making fire. She said she had heard of Toki Wus but did not know that he had built a house on disputed land.
    
82. She was asked if she knew Amdil Sam. She said she only knew Johnson Sam. She was asked if there was an Amdil Sam in her village. She said she didn’t know. She said that there were several “Amdils” in the village but with different surnames. The State’s story was put to her but she maintained her evidence that Kupil Kangipi stayed in the house with her and Mangi Kangip between 6am and 9am.
    

Issues raised by the evidence, such as any admissions, identification and defences

83. The only defence raised by the two accused was the defence of alibi. The law in relation to alibi was set out in the case of John Jaminan v The State (No.2) [1983] PNGLR 318. The principles distilled from that case are:
    
    1. Whether the alibi evidence of the accused adduced in Court through his alibi witnesses is of sufficient convincing quality to create a reasonable doubt as to the guilt of the accused, taking into account the strength of the prosecution case;
    2. Whether there is evidence to support the alibi and not mere speculation;
    100. Whether the alibi evidence contains convincing detail or whether it is vague and short on detail;
    4. Whether there is logic and common sense in the evidence given by the alibi witnesses;
    5. Whether there are inconsistencies in the evidence of the alibi witnesses also taking into consideration their demeanor.
       
84. Central to the alibi defence of Amdil Sam was the issue of identity. The man in the dock claimed to be Johnson Sam not Amdil Sam. He produced documents to evidence his name. Unfortunately, none of this was put to the States witnesses. It only emerged when the accused gave evidence.
    
85. On this issue the prosecution submitted:
    

One of the key issues of the Defence case is Identification of the accused Amdil Sam in that they alleged that Amdil Sam was another man and the accused in court was Johnson Sam. They produced an NID Card and a Driver’s Licence as evidence but only after State had closed its case. The rule in BROWN v. DUNN [1893] 6 R 67(HL) is that the accused’s case must be put to the prosecution’s witnesses during cross-examination so that they have the opportunity to refute or provide an explanation. The identification documents of accused Amdil Sam consisting of the NID Card and the Driver’s Licence were never shown to any of the State witnesses during cross-examination, it was only produced after State closed its case and Defence opened and tendered these documents through the accused. This is unfair and directly contradicts the Brown v. Dunn rule.

The State therefore submits that this Court must not give weight to the identification evidence of accused Amdil Sam and submits that the accused is the same person as Johnson Sam.

86. The defence submitted;
    

They wrongly identified Amdil Sam to Johnson Sam. It is evident in ROI Q & A 11 (Exhibit 3 & 4). His name was given as Johnson Sam in the Record of Interview, which was already in evidence. The State failed to ask its witnesses in examination in chief who Johnson Sam was despite Defence’s failure to put its case to the State in line with the rule of Browne and Dunn. His name is also evident in the accused’s official or government Driver’s licence which was produced in 2010, Defence Exhibit 14 and National Identity Card which was produced in 2020, Defence Exhibit 15. Those official exhibit were obtained prior to the occurrence of the death as a result of a tribal fight. The accused gave evidence that his name was Johnson Sam. Even in the Occurrence Book his name was recorded as Johnson Sam as given in his evidence. They mistook Johnson Sam as Amdil Sam. Whilst the rule in Brown and Dunn is important in procedural fairness, it is submitted that, the court exercises its discretion to admit or consider the evidence of accused in the interest of Justice on the basic that his name was already given in Record of Interview.

87. The rule in Brown vs Dunn is not an inflexible rule. It necessarily must operate differently in a criminal case because of the different burden of proof from civil cases and the more serious consequences involved for the accused. However, a failure of the defence to put their case to the prosecution witnesses can be taken into account when assessing the credibility of the defence witnesses.
    
88. The credibility of both accused was harmed by the issue of Johnson Sam and Amdil Sam. Both gave answers that were evasive when asked for a description of the man. In fact Kupil Kangipi eventually said that he lived with Amdil Sam whereas the three defence witnesses all said there was no Amdil Sam in the village was telling.
    
89. Regardless of the rule in Brown vs Dunn, the argument that the person involved in the offence being Amdil Sam while the person sitting in the dock was Johnson Sam ignores that fact that it is not the name that identified him, but his face. Two of the State witness who saw the attack on Toki Wus also came to court and testified. One identified the person sitting in the dock as the person she saw stab Toki Wus. The other did not say “the man in the dock is not the man I saw stab Toki Wus”. Those facts coupled with the inherent unlikelihood that Johnson Sam would sit in custody for more than a year and not mention that he was not Amdil Sam indicates that the Prosecution witness identification is strong.
    
90. The co-accused identifying the man in the dock as Amdil Sam before correcting himself was also telling.
    
91. I am aware of the unreliability of identification evidence and am cognisant of the circumstances in which the State witnesses made the identification. I take note of the distance they were, the time they had the person under observation, the fact that their view was unobstructed and that the accused were known to them (John Beng v The State [1977] PNGLR 115).
    
92. As such I am satisfied that the accused sitting in the dock called Amdil Sam (or Johnson Sam as his identification indicates) was the man who attacked and stab Toki Wus. And I reject the evidence given regarding his alibi.
    
93. In relation to Kupil Kangipi’s alibi, I accept the States submissions
    

In relation to alibi, the State submits that;

• Given the State’s witnesses are eye witnesses, the alibi of the accused persons is not strong.
• Although Defence witnesses were brought in to support the alibi, their stories contradicted each other, one said the fight occurred around 5am in the morning when the evidence adduced was that the fight stated between 8am and 9am. One of the witnesses said the accused Kupil Kangipi was asleep at the time of the incident whilst the accused himself stated that he was doing some work at that time.
• It is logical and common sense that the accused persons would be at the fighting area since it was their family’s land and the land dispute was an old dispute between their grandfathers and the deceased and his family.
  

94. This submission nearly sums up my thinking regarding Kupil Kangipis alibi evidence. The witnesses struck me a having been coached. They would not stray from their story and when more details were sought, they returned to their script. Further, their stories had inconsistencies regarding when and how they heard about the fight and what Kupil Kangipi did that morning which undermined their credibility.
    
95. As such I am not convinced by their evidence and reject their evidence. I find that Kupil Kangipi was not at home but was present at the time of the offence.
    

The relevant law. The elements of the offence. The law as it applies to the issue

96. The charge of MURDER. Under Section 300 (1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;
    
97. The elements of a charge of MURDER under Section 300(1)(a) are that:
    
    1. a person
    2. killed (caused the death of)
    100. another person
    4. And at the time he intended to kill him or do him grievous bodily harm
       

Findings

98. As noted above I find the eyewitness identification of both Amdil Sam and Kupil Kangipi by people who knew them namely Kay Wus, Rebecca David and Mari Komp compelling. Each woman was close enough and had an uninterrupted view of the attack of Toki Wus. They each identified the accused without hesitation. Therefore I am satisfied of the first element of section 300(1)(a) beyond a reasonable doubt.
    
99. It seems to me that there is some evidence that the deceased and/or his tribesman went to Milsip village to confront the accused Amdil Sam. That may or may not have become violent. It seems it was early in the morning of 17 November 2022.
    
100. Certainly, that would explain why such violence erupted on the highway at between 8am and 9am. The prosecution witnesses are related to the deceased and that is a factor to consider in weighting their testimony. However, it only gives them an interest in the outcome of the case less than or equal to the interest that the accused (who face a long period of incarceration) or their witnesses.
     
101. Besides the lay witness for the State struck me as truthful. Their evidence differing on some points, how many were in the fight on the highway, the events leading up to it, whether the deceased was struck with a spade or the handle of a spade but all were consistent regarding the essential elements of the event that being Amdil Sam stabbed the deceased in the side between his ribs while he lay on the ground after being struck in the head. Further they all gave consistent evidence that after Amdil Sam had stabbed the deceased, Kupil Kangipi stabbed the deceased in the ear with a screw driver. Both these actions satisfy the elements of the charge of murder under s300(1)(a) of the criminal code.
     
102. Stabbing a person with a bush knife in the ribs gives a clear indication of an intention to kill or do grievous bodily harm. That conclusion is strengthened considering at the time of the stabbing the deceased had fallen to the ground after being struck. Further the deceased was an old man in his 70’s or 80 and his attackers.
     

Causing the death

103. At the trial the Defence made much of the medical evidence. In their closing submissions they said:
     

The State witness and Medical officer Peter Kumi has never seen the body of the deceased. He never physically examined the deceased. There is no autopsy report would show the cause of death. The medical officer relied on the death certificate produced by another expert who also assumed the cause of death. The medical report of the officer was done on the 6th April 2023, some 4 months and 16 days after the death of the deceased.

There is no post mortem report confirming the cause of the death. Dr Redcliff never conducted a post-mortem to confirm the cause of the death. He assumes that he died as a result of acute blood loss from the stab wound from the left chest. When put to him that a person can die from internal bleeding as a result of one blow to the head, he affirms that it is theoretical possible.

104. The Defence did not challenge:
     
     1. that Toki Wus was attacked;
     2. that he was stabbed in the chest;
     3. that he lost a lot of blood; and
     4. that Dr Radcliffe was an expert.
        
105. Accepting all those facts dooms their argument to mere conjecture. Dr Radcliffe, an expert, said that the most likely cause of death was cardiac arrest due to blood loss. Dr Radcliffe further said that it was possible to have cardiac arrest from a blow to the head. When faced with the possibility that Toki Wus died from a blow to the head or the probability that he died from a stab wound to the chest, I am convinced beyond reasonable doubt that the cause of death was cardiac arrest from blood loss and that that was caused by the stab wound to the chest inflicted by Amdil Sam.
     
106. I am satisfied beyond reasonable doubt of the action of Kupil Kangipi because I have accepted the testimony of the three eyewitnesses called by the State. I find that, in stabbing Toki Wus with a screw driver in the ear, Kupil Kangipi can only have intended to cause grievous bodily harm. In doing so he aided and abetted the killing of Toki Wus and he is therefore just as guilty as Amdil Sam.
     
107. The fact that the wound Kupil Kangipi inflicted was not a fatal wound does not absolve him of criminal responsibility. In participating in the attack on deceased, there was a real possibility Toki Wus would be killed (particular considering the group Kupil Kangipi was part of were armed). As such the death of the deceased was a natural and probable consequence of the attack.
     

Verdict

108. I find Amdil Sam guilty of the offence of murder contrary to the sections 300 (1)(a) of the Criminal Code.
     
109. I find Kupil Kangipi guilty of murder pursuant to section 300(1)(a) of the Criminal Code.

________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the offender: Public Solicitor