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State v Tokarep [2025] PGNC 114; N11238 (9 April 2025)

N11238


PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]


CR NO. 330; 331; 332; 333 & 334 OF 2022


THE STATE


V


WESLEY TOKAREP; ALLEN THOMAS; BARKLEY NICKY; LOVELYN TOKAREP & MAILYN TOKAREP


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


CRIMINAL LAW– wilful murder – whether the State proved the commission of the offence of wilful murder beyond reasonable doubt.


Facts

Wesley Tokarep, Allan Thomas, Barkley Nicky, Lovelyn Tokarep, and Mailyn Tokarep of Boroi Village, Bogia District, Madang Province stand charged that on 28 May 2022, they wilfully murdered Kenny Kingstone contrary to s 299(1) of the Criminal Code Act 1974, and they aided and abetted each other to commit this offence, under s 7(1) of the same Act.
Held

(1) After hearing submissions from the State and the accused, and noting that the State conceded that, except for Wesley Tokarep, there was insufficient evidence against Allan Thomas, Barkley Nicky, Lovelyn Tokarep, and Mailyn Tokaprep in relation to aiding and abetting the principal offender, a verdict of not guilty is returned for them.

(2) From the State’s evidence, Wesley Tokarep had put in place the domino pieces, starting from his rape of Illian Lester, his unhappiness in paying compensation, the threats to kill Lincoln Kenny and Kenny Kingston, and the summoning of the two men to his house. The killing of Kenny Kingstone is the last domino piece to fall, that Wesley Tokarep as the central protagonist in this sad plot, had constructed. The only reasonable conclusion then, is that it was Wesley Tokarep that fired the spear that killed Kenny Kingston.

(3) The State has proven beyond reasonable doubt, each of the elements of wilful murder against Wesley Tokarep, and he is found guilty, contravening s 299(1) of the Criminal Code.

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


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


DECISION ON VERDICT


  1. NAROKOBI J: Wesley Tokarep, Allan Thomas, Barkley Nicky, Lovelyn Tokarep, and Mailyn Tokaprep of Boroi Village, Bogia District, Madang Province stand charged that on 28 May 2022, they wilfully murdered Kenny Kingstone contrary to s 299(1) of the Criminal Code Act 1974, and the State invoked s 7(1) of the same Act.
  2. I also want to place on record the self-less and dedicated service of the Royal Papua New Guinea Constabulary Bogia rural command under detective senior sergeant Albert Saui and his men and the members of the Papua New Guinea Correctional Services in Madang, who travelled 12 hours by foot and by boat up the Boroi river of Bogia District in the late hours of the night and early the next day to apprehend some of the accused who had absconded bail and were at large in their village. Often the members of the disciplinary forces are targeted for public criticism, but this was an occasion where their self-less dedication to upholding the rule of law under very difficult circumstances and with little resources, is to be commended. This case would not have commenced if all the accused were not brought in for trial.

Background


  1. On arraignment all the accused pleaded not guilty and the matter proceeded to trial.
  2. On 12 March 2025, after hearing submissions from the State and the accused, and noting that the State conceded that, except for Wesley Tokarep, there was insufficient evidence against Allan Thomas, Barkley Nicky, Lovelyn Tokarep, and Mailyn Tokaprep in relation to aiding and abetting the principal offender, I acquitted them, and advised Counsels that I would give my full reasons for all accused including Wesley Tokarep at a date to be advised. I now give my decision and reasons on verdict for all the accused.
  3. The State was to prove beyond reasonable doubt each of the elements of wilful murder that is: - 1) a person was killed; 2) the killing was unlawful; and 3) there was intention to kill the deceased, and the elements of aiding and abetting under s 7(1)(a), (b), (c) and (d) of the Criminal Code.
  4. The intention to kill may be inferred from the type of weapons used, and the location or nature of the injuries suffered by the deceased (Mako Ranjigi v The State [1994] PNGLR 44).

Law on Identification Evidence, Circumstantial Evidence and Aiding and Abetting


  1. 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:
  2. I bear all these considerations on identification evidence in mind, when I am assessing the evidence of the State.
  3. Whilst I bear in mind the requirements of circumstantial evidence, I note that the State’s case is sought to be proven on direct evidence. In Paulus Pawa v The State [1981] PNGLR 498:
  4. I also apply the principles of aiding and abetting under s 7 of the Criminal Code. Section 7 of the Criminal Code is in the following terms:

7. Principal Offenders

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:–

(a) every person who actually does the act or makes the omission that constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence.

(2) In Subsection (1)(d), the person may be charged with–

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is–

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment,

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.


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

In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted.


  1. His Honour Wilson J went on further to state that there must be an intention to encourage the commission of the offence and an encouragement in fact of the commission of the offence.

Facts Sought to be Proven by the State


  1. The State was to prove the following facts, which I restate from the submissions of Mr Kasse, Counsel for the State, with appropriate editing and summary where necessary. These facts along with the indictment were put to the accused, for their plea.
  2. On 27 May 2022 Wesley Tokarep, the principal accused, paid a fine of K1,000.00 for raping Illian Lester the wife of Lincoln Kenny. He however expressed frustration and openly declared his intent to kill Kingston Kenny and Lincoln Kenny despite being advised against it by Miller Aaron, a village court committee member. The next day, 28 May 2022, Wesley Tokarep, while paddling on the river with co-accused Barkley Nicky, threatened Lester Wati with a bush knife and told him to deliver a message, summoning Kingston and Lincoln to his residence to talk about the rape issue. That evening, Kingston and Lincoln arrived at Wesley’s place. However, when they arrived, they were ambushed by Wesley Tokarep, Allen Thomas, and Barkley Nicky who were armed with rubber guns and bush knives. The two female accused persons Lovelyn Tokarep and Maylin Tokarep ran behind Wesly, Allan and Barkley shouting “kilim ol, kilim ol” (kill them, kill them).
  3. Kingson Kenny and Lincoln Kenny were chased into the coconut plantation and surrounded. There Wesley Tokarep fatally shot Kingston Kenny with an arrow from a rubber gun which penetrated his chest. He died from the spear wound.
  4. Lincoln Kenny who narrowly escaped harm, later returned with others to retrieve Kingston Kenny’s body. The matter was reported to the police, and Wesley Tokarep along with his co-accused persons were arrested and charged.
  5. In light of these facts, the State invokes s 7 of the Criminal Code and say that Wesley Tokarep, and his co-accused – Allen Thomas, Barkley Nicky, Lovelyn Tokarep and Mailyn Tokarep wilfully murdered another person, Kingston Kenny on 28 May 2022, at Boroi Village in Papua New Guinea, thereby violating s 299(1) of the Criminal Code 1974.

State’s Case


  1. The State began by tendering a number of documents with the consent of the accused, and they were admitted into evidence. These documents were the statements of police investigator senior sergeant Albert Saui, statement of constable Aloysius Gabe, who was the corroborator to Albert Saui, statement of Elisha Tangi, photographs of the crime scene and records of interview of each of the accused, both in their Pidgin version and English translation.
  2. The State then called four witnesses – Lincoln Kenny, Illien Lester, Miller Aaron, and Nigel Arumbra. I am assisted by Counsels in their summation of the evidence brought before the court, which I state as follows.
  3. Lincoln Kenny gave sworn evidence. He is from Boroi village in Bogia District. He is married to Illian Lester. Wesley Tokarep raped his wife. The rape incident was brought for resolution via village mediation. The village court magistrate, Miller Aaron, found Wesley Tokarep guilty and ordered him to pay K1,000.00 compensation. Another complainant, Nigel Arumbra was also there with the others during the village court hearing. After Wesley Tokarep paid the K1,000.00, he told Miller Aaron the village court magistrate that he will kill Kingston Kenny or Lincoln Kenny. Lincoln then told the court that Wesley showed K20,000.00 to Namunga Kenny, Lincoln's Uncle, that he will kill Lincoln or Kingston and pay compensation. On the next day Wesley and Barkley Nikki met up Wagi Lester and send word to Kingston and Lincoln to come and meet them so they could solve the issue. When Lincoln and Kenny went to meet with them, Wesley and his co-accused persons were waiting for him and Kenny, and launched a surprise attack on them. Lincoln said they were armed with bush knives and spear guns when they attacked them and chased them away. Lincoln testified that although the incident happened around 7:00 PM to 8:00 PM, there was enough moonlight shining that night and he held a torch and was able to see their faces when they attacked him. When he was asked who exactly killed Kenny Kingston, Lincoln told the court that from 5m to 10m away he saw Wesley Tokarep killing Kenny Kingston. He also told the court that all of them were chasing them together. He said Wesley tried to shoot him but he ducked and dived to the ground and instead Wesley shot Kenny Kingston with a rubber spear gun. He was able to identify each of them in court when he pointed to them and indicated the positions they were sitting in the dock.
  4. During cross examination he said Miller Aaron told him that Wesley would kill him and Kenny Kingston. He was scared when he heard about it. Lincoln recalled Wesley Tokarep wanted to see him to sort out the issue so he took Kingston and they went to meet with Wesley Tokarep. Lincoln told the court that after avoiding one of the arrows aimed at him, he flashed his torch and saw Wesley right behind his back. When it was put to him that Wesley was not the one who killed the deceased, he said in unequivocal terms that Wesley killed Kenny Kingston and he saw it. When it was put to him that Denise Enegai Komi that might have killed Kenny he said it no, it was Wesley Tokarep who killed Kenny.
  5. Lincoln, in re-examination said he only heard about the K 20,000.00 compensation after Kenny Kingston was killed. He told the court that Wesley Tokarep and his colleagues sent word for him and Kingston to go and see him to settle the issue of rape. He also said Denise was not present during the attack. He further reinforced that it was Wesley Tokarep that killed the deceased.
  6. There were some questions asked by the court to which Wesley took her up was said to have speed Kenny Kingston around the left chest area and he was about 5 to 10 metres away when he saw Wesley who was about 3 meters away shooting Kenny Kingston with a spear gun. He said a rail spear gun was used to kill the deceased. After he saw Wesley Tokarep shooting Kenny Kimgston, he ran away to seek help.
  7. The next State witness was Illian Lester who gave sworn evidence, from Boroi village in Yawar LLG of Bogia District, Madang Province. She said she has been married to Lincoln Kenny for four years now and she is 21 years old. She said she was in court to give her story. She recalls she was in the garden with her cousin. Wesley Tokarep wanted them to hide him because he was being chased. Wesley Tokarep looked drunk at the time, and after conversing with him, she ignored him and climbed a pawpaw tree. At that point Wesley came and grabbed her, tied her hands and told her to marry him because he will take better care of her than her husband Lincoln. Wesley Tokarep told her that Lincoln will cut you with knives, so you should marry me. After breaking her clothes, she said Wesley pushed his fingers into her vagina and also touched her breast. She escaped from Wesley Tokarep by grabbing his pennis and squeezing his testacles causing Wesley to release her. She went to her husband Lincoln Kenny and told him about what happened to her and they both went to Miller Aaron and reported the matter. For his actions, Wesley Tokarep was ordered to pay K1,000.00 compensation by the village court. K500 was paid to her and K500 to Tonton Arumba. She also testified that at the village court compensation ceremony, Wesley Tokarep apologized but his actions didn't show any remorse. He was angry for paying compensation. Wesley Tokarep was identified in the courtroom.
  8. In cross examination she said she reported the matter to the police. This was however clarified in re-examination when she said she didn't report the matter to the police but that the matter was reported to the village courts.
  9. Miller Aaron was the next State witness, 56 years old from Boroi village in Ward 3 of Yawar LLG in Bogia District, Madang province. Grade 6 is his highest educational qualification. He also told the court that he is a member of the ward development committee and also the current magistrate of Tagibe Village. He told the court that as a village court magistrate they deal with minor cases such as violence against women, stealing etc. He told the court that he came to give his evidence regarding the incident of rape and murder that Wesley Tokarep was involved in. He recalled that he had a case in his capacity as village court magistrate where on 18 February 2022 Wesley Tokarep, whilst under the influence of homebrew committed rape. He said two different complaints were brought at Tagibe village court. He said Wesley was summoned to the court and Wesley himself admitted to committing the offences for rape. The village court made orders for Wesley to pay K500 each to Illien Lester, Lincoln's wife and one to another female namely Tontong Arumbra. When he was asked about Kingston Kenny he said Kingston is now deceased. Miller was able to identify Wesley Tokarep, seated in the courtroom.
  10. In cross examination he was asked about the jurisdiction of the village court. He said murder cases are referred to the police. Attempted rape and rape cases the village court orders compensation up to K1,000.00. He tries to create a good village environment by solving social problems in the village.
  11. At re-examination he states that the maximum award at the Village Court is K1.000.00.
  12. Miller Aaron told the court after the court asked them to clarify about Tagibe village court and he explained that the Tagibe Village court covers Ward 1, 2, 3 and 4 of Yawar LLG, and he is from Boroi village in Ward 3.
  13. The last state witness was Nigel Arumbra who gave sworn evidence like the other three witnesses. He's from Boroi village Ward 3, Yawar LLG, Bogia district in Madang Province. Is 40 years old. He is married to Tong Tong. He's a church member of the SDA church. He told the court that on 18 February 2022 Wesley Tokarep whilst under the influence of home brew came and shouted to his wife and signaled his wife to have sex with him. He said he was with his wife and saw the actions of Wesley took her. When he returned and saw Wesley doing the actions, the action of bending knees and moving heaps, Wesley then ran away. After that incident he reported the matter to the village court. Wesley was found guilty and paid K1,000.00 compensation. He told the court that Wesley Tokarep was his brother-in-law, because Wesley married his younger sister.
  14. At cross examination Nigel said that Wesley’s actions was not one of dancing but meant something else.
  15. At re-examination he said Wesley’s actions were such that he wanted his wife to go and have sex with him, that was how he interpreted Wesley's actions.

Defence Case


  1. The accused had three options in their evidence – to remain silent, to give unsworn evidence or give sworn testimony. They all decided to remain silent. The court therefore proceeded to determine the issue of verdict on the evidence led by the State.

Facts Not Disputed and Disputed Facts


  1. After considering all the evidence, I agree with Mr. Kasse from his submission, that the following facts are not disputed:
  2. The disputed facts as submitted by Mr Kasse, which I agree after considering the evidence, are these:
  3. The main factual issue, from the submission of the accused point of view, is who killed Kenny Kingston?

Submissions


  1. The Defence submits that evidence from State witness Lincoln Kenny is that when they were chased the deceased ran first, Lincoln ran after the deceased the accused Wesley Tokerap ran behind Lincoln and shot the spear. Lincoln fell to the ground and avoided the spear and the spear shot the deceased in front of him. But when the court asked where the deceased was shot, Lincoln pointed to his left side of the ribs under the armpit.
  2. The Defence submits that the direction where the spear came from and the side of the deceased body the spear struck is not consistent. If the spear was shot from the back the spear would have struck the deceased somewhere on his backside. There is no evidence before the court the deceased turned his left side to the incoming spear. Therefore, logically the spear that killed the deceased was shot from the left side and not from the back where Wesley Tokarep was.
  3. Lincoln Kenny’s evidence is not clear what he was doing when he saw the deceased being shot. In examination in chief he said he was standing 5m to 30m away. He also said that he was running after the deceased and fell on the ground to avoid the spear. These are two inconsistent statements given by the witnesses.
  4. Therefore, the State failed to prove beyond reasonable doubt that Wesley Tokarep directly caused the death of the deceased or if one of the four other accused directly caused the death of the deceased.
  5. Defense also submits that Lincoln Kennedy is not an honest and accurate witness. There is no explanation how he saw Wesley Tokarep could have shot the spear from the back when he was running in front of the accused. There is also no explanation how the spear came from the back and shot the deceased and hit his left chest under the armpit. Therefore the State failed to prove Wesley Tokarep directly caused the death of the deceased.
  6. The evidence of Lincoln Kennedy that Wesley Tokarep shot the deceased is not logical as the deceased was shot on his left side. The witness evidence is also incredible because it was impossible to see what was happening at his back when he was running forward.
  7. The State failed to prove the actual person who was directly responsible for causing the death.
  8. The State further failed to prove the co-accused actively aided and abetted the killing of Kingston Kenny.
  9. The State also failed to establish the other four (4) accused knew that the killing would be done. The Defense submitted mere presence in the village does not constitute aiding and abetting.
  10. On the other hand, the State submits that Wesley Tokarep and others sent word for Lincoln and Kingstone to meet them, to “sort out the issue,” and then on their arrival a surprise attack met the two of them. These facts are provided in the evidence of Lincoln Kenny.
  11. The State then submits that Wesley Tokarep killed Kenny Kingstone with a spear gun, and this is from the evidence of Lincoln Kenny who saw him at a distance of 5-10m away, and he saw Wesley Tokarep about 3m away from the deceased, who had a spear gun prior to the shooting. Lincoln Kenny identified all the accused in the courtroom. Miller Aaron was able to identify Wesley Tokarep, and Nigel Arumbra, too was able to identify Wesley Tokarep.
  12. The State also submits that based on the provided facts, particularly Lincoln Kenny’s testimony, Wesley Tokarep appears to be the central figure directly implicated in the killing of Kenny Kingston. Although others were present during the attack, Wesley Tokarep is the only person directly identified by witnesses having committed the act that resulted in Kenny Kingston’s death, making the prosecution case for willful murder strongest against him, as the available facts indicated the motive, a direct threat, and an eyewitness testimony placing him at the scene of the crime. The level of involvement of the other accused in the actual killing did not have evidence implicating them.
  13. In the State’s final submission, the four State witnesses gave evidence confidently and never stumbled during cross examination. Their stories corroborate each other’s testimony.

Findings of Facts


  1. The State has not brought any evidence showing that Allen Thomas, Barkley Nicky, Lovelyn Tokarep and Maylin Tokarep, aided and abetted Wesley Tokarep to commit the offence of wilful murder. Although the brief facts allege that Lovelyn Tokarep and Maylin Tokarep screamed “kilim ol, kilim ol,” no evidence was brought to prove this allegation. For these reasons, the State has properly conceded that they be acquitted, and I have accordingly found them not guilty and acquitted them of the charge of wilful murder, contrary to s 299(1) of the Criminal Code.
  2. The motive for the killing and the characters involved in this offence relate to three events that are not disputed in the evidence, that is the rape of Illien Lester, the sexually suggestive behaviour of Wesley Tokarep, and the payment of compensation by Wesley Tokarep. These are the central events of the plot of this case, culminating in the killing of Kenny Kingston.
  3. There is a theory called the “domino effect,” which describes a situation, where one event causes a series of events to happen, following on, one after another. There is a link in causality in the chain of events. One event starts and several others follow suit.
  4. From the undisputed facts, Wesley Tokarep comes across as a troublemaker in the village. He digitally raped Illien Lester, and at that time was under the influence of alcohol, and paid K500.00 compensation for it. He also tried to commit adultery with the wife of his brother-in-law, Nigel Arumbra. For this reason, too, he paid another K500.00 compensation. Total payment of K1,000.00 compensation was confirmed by the village court magistrate Miller Aaron, who ordered Wesley Tokarep to pay this amount.
  5. From the evidence of Lincoln Kenny and Illien Lester, Wesley Tokarep was not happy with paying the compensation and he sent word for Lincoln Kenny and Kenny Kingston to go and see him. When they went to see him, Wesley Tokarep attacked them. It was Miller Aaron’s evidence to Lincoln Kenny that Wesley Tokarep expressed the intention to kill them.
  6. The question is whether, Lincoln Kenny gave inconsistent evidence about which part of the body Kenny Kingston was shot, as the Defence suggests and therefore, he would have mistaken the identity of Wesley Tokarep. In my view, the inconsistency has two explanations. Firstly, the fact that from the date of the commission of the offence that is in February 2022 to February 2025 at the time of trial, three years have passed, and it would have been difficult to recollect accurately the specific details of something that happened very quickly.
  7. Secondly, the Defence does not dispute the evidence that Wesley Tokarep was seen with an offensive weapon when Lincoln Kenny went into Wesley Tokarep’s area. It was not sufficiently challenged that he then went into motion to project the spear at Lincoln Kenny and Kenny Kingston. When the two saw this, they fled. Fortunately for Lincoln Kenny he escaped harm. Unfortunately for Kenny Kingston he did not. It was therefore not necessary for him to see where the spear pierced Kenny Kingston. It was enough that he saw Wesley Tokarep in the process of launching the spear, as he and Kenny Kingston were making their escape. Again, it happened quickly.
  8. What is essential is the clear and positive identification of Wesley Tokarep, from a short distance of a man who is known to the witness, under reasonable light, who held a weapon and had a clear motive for his actions. In fact, he summoned them to go and see him. This piece of evidence was not disputed nor disturbed by the Defence.
  9. The medical report prepared by the health personal in Bogia, Herman Yiyiri dated 29 May 2022 tendered by consent, Exhibit K provided the cause of death as internal haemorrhage from spear wounds.
  10. Wesley Tokarep had put in place the domino pieces, starting from his rape of Illian Lester, his unhappiness in paying the compensation, the threats to kill Lincoln Kenny and Kenny Kingston, and the summoning of the two men to his house. The killing of Kenny Kingstone is the last domino piece to fall, that Wesley Tokarep as the central protagonist in this sad plot, had constructed. The only reasonable conclusion then, is that it was Wesley Tokarep that fired the spear that killed Kenny Kingston.

Verdict


  1. I am therefore satisfied beyond reasonable doubt that Wesley Tokarep killed a person, Kenny Kingston by a spear from a rubber gun, confirmed by the medical report, that the killing was unlawful as there is no justification in law for the killing such as accident or self-defence, and that Wesley Tokarep intended to kill Kenny Kingston, which intention is apparent from the oral testimony of the State and also from the nature of the injuries and the type of weapon that was used, which showed a strong desire to kill.
  2. I therefore find Wesley Tokarep guilty of wilful murder, contrary to s299(1) of the Criminal Code, and I will now proceed to hear submissions on sentence.

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


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