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State v Aware [2025] PGNC 291; N11422 (13 August 2025)

N11422

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR No 37 OF 2015
CR No 12 OF 2015

BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:
ENOS AWARE
JEFFERY RONNY
Accused

MADANG: NAROKOBI J
17 JULY, 13 AUGUST 2025

CRIMINAL LAW – No Case to Answer Application – Seven Counts of Wilful Murder, s 299(1), Criminal Code – s 7, Criminal Code, aiding and abetting, s 8, Criminal Code, prosecution of a common purpose – Whether the no case to answer application should be upheld for all seven counts.

Enos Aware and Jeffrey Ronny were each charged with seven counts of wilful murder, contrary to s 299(1) of the Criminal Code. Their charges were sought to be established through aiding and abetting under s 7 of the Criminal Code and prosecuting a common purpose under s 8 of the Criminal Code. The incident occurred on 14 April 2014. They were initially convicted and sentenced to death by the National Court in 2018. After a successful review in the Supreme Court in 2023, a retiral was ordered. Of the 97 persons convicted, many have either died or escaped from prison. At the close of the State’s case in their re-trial they made a non case to answer application relying on the principles pronounced in State v Paul Kundi Rape [1976] PNGLR 96.

Held:

(1) The accused Enos Aware’s application for no case to answer for counts 1, 2, 3, 4, 5 and 7 on his indictment are upheld on the the first limb of State v Paul Kundi Rape [1976] PNGLR 96, and he is acquitted of those charges on the indictment. There was no evidence of who killed the deceased on the charge of wilful murder for those counts and there was no evidence of aiding and abetting under s 7 of the Criminal Code and prosecuting a common purpose under s 8 of the Criminal Code (Kakivi v The State (2023) SC2539 applied).

(2) Enos Aware has a case to answer for count 6 on the indictment for the death of Nathan Aki. Applying the case of Angitai v The State [1983] PNGLR 185, the need for reasons for refusal of a no case to answer application is limited, unless the court is acquitting an accused.

(3) The accused Jeffrey Ronney’s application for no case to answer for counts 1, 2, 4, 5, 6 and 7 on his indictment are upheld on the the first limb of State v Paul Kundi Rape, and he is acquitted of those charges on the indictment. There was no evidence of who killed the deceased on the charge of wilful murder and there was no evidence of aiding and abetting under s 7 of the Criminal Code and prosecuting a common purpose under s 8 of the Criminal Code (Kakivi v The State applied).

(4) Jeffrey Ronny has a case to answer for count 3 on the indictment for the death of Yambung Nawayo. Applying the case of Angitai v The State [1983] PNGLR 185, the need for reasons for refusal of a no case application is limited, unless the court is acquitting an accused.

(5) Obiter remarks made on social and cultural challenges in attributing culpability to offenders bonded by social and cultural obligations inherent in a village setting.

Cases cited
Angitai v The State [1983] PNGLR 185
Kakivi v The State (2023) SC2539
State v Kakiwi (2018) N7067
State v Paul Kundi Rape [1976] PNGLR 96

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

RULING

1. NAROKOBI J: This is a ruling on a no case to answer application made by the accused Enos Aware and Jeffrey Ronny, who were each charged with seven counts of wilful murder, contrary to s 299(1) of the Criminal Code, to which they pleaded not guilty.
   

The Charge

2. The seven counts they were charged for occurred on 14 April 2014. The date is not disputed. The seven deceased were:
   
   • Count 1 – Sike Wamne.
   • Count 2 – Nick Uria.
   • Count 3 – Yambung Nawoya.
   • Count 4 – Beramo Tipupu.
   • Count 5 – Baupa Dangingayo.
   • Count 6 – Nathan Aki.
   • Count 7 – Anao Gunumi.
     
3. The State also allege aiding and abetting under s 7(1)(a), (b) and (c) of the Criminal Code. In addition, the State says they committed the offence, carrying out a common purpose under s 8 of the Criminal Code.
   

Previous Conviction in the National Court

4. The two accused were part of a group of 97 men, women and children who were previously found guilty by the National Court on all 7 counts. From the 97, only two accused have remained in custody for the retrial, Enos Aware and Jeffrey Ronny. The others have either escaped from custody or passed on. They were given the maximum punishment for wilful murder at the time, the death penalty. Their conviction is reported as State v Kakiwi (2018) N7067. Amongst the findings of the National Court, the following was held:
   

The State proved beyond reasonable doubt that each of the deceased was unlawfully killed by persons who intended to cause their death. The offence of wilful murder under Section 299(1) of the Criminal Code was committed in relation to each of the deceased in the manner contended for by the State. The State proved (and it was not contested) that an incident, as alleged, actually occurred, ie that a group of about 189 males (120 adults and 69 juveniles) marched together along public roads for at least 10 kilometres, armed and with painted warlike faces, in the direction of the village, with the intention of seeking out and killing alleged sorcerers who were residing in that village and on their way to the village some members of the group attacked and killed a bystander (the deceased the subject of count 1) intending to cause his death, and the group then proceeded to the village and raided it, destroying property including houses and food gardens, and threatening and chasing away many residents and at the village some members of the group attacked and killed six residents, who are the deceased the subject of counts 2 to 7 on the indictment, in each case intending to cause death.

5. The court also held that for the first count, they had formed a common intention, under s 8 of the Criminal Code and it held:
   

(4) Further, the State, having proved beyond reasonable doubt that each of the accused was a member of the group that marched along the public roads in the manner alleged and raided the village and that certain members of the group committed the seven offences of wilful murder the subject of the indictment, and the only reasonable inference to draw from the evidence being that none of the accused left the group or engaged in any conduct that would suggest that he was an unwilling participant in all the group’s activities including killing the bystander on the way to the village, raiding the village, destroying property, threatening and chasing residents and killing six village residents, and further having proved that the members of that group had formed a common intention to prosecute an unlawful purpose (to raid the village believed to be harbouring sorcerers and to attack residents of the village and to kill sorcerers or persons connected with or harbouring them) and in the prosecution of that purpose, seven offences were committed that were of such a nature (involving death) that commission of those offences was a probable consequence of the prosecution of that unlawful purpose, it followed that the State had established beyond reasonable doubt the elements of criminal liability under Section 8 of the Criminal Code. Therefore each of the accused was deemed to have committed seven counts of wilful murder, as charged.

(5) For the avoidance of doubt it was stated that the findings of guilt under Sections 7 and 8 of the Criminal Code are made in respect of each of the accused and made independently of each of those provisions (Sections 7(1) and 8) and independently of the findings of direct guilt under Section 299(1) in respect of eight of the accused.

The Appeal

6. They appealed that decision and were successful and the court ordered a re-trial, see Kakivi v The State (2023) SC2539. The Supreme Court held in the leading judgment of Gavara-Nanu J that there was no evidence to show aiding and abetting, as mere presence does not amount to aiding and abetting (at [75]). As to whether there was common intention under s 8 of the Criminal Code, his honour said, the deaths were caused by criminal opportunists, and the State had conceded to this point. The painting of the faces in warlike manner, was not indicative of a common intention (at [84]). In my deliberation on this matter, I am therefore mindful of the Supreme Court decision.
   

The State’s Case

7. Facts of the case the State sought to prove against the accused in summary were as follows. This was a sorcery related killing. The deaths occurred at a village called Sakiko, outside of the Ramu township. Some of the inhabitants of the village were migrants from an inland village, Gomumu. They fled to Sakiko, for fear of attacks from villagers there, as they were accused of sorcery sometimes before the date of the alleged offence on 14 April 2014. Unknown to the villagers of Sakiko, vengeance for what the villagers of Gomumu believed were deaths caused by sorcerers who now reside in Sakiko simmered to the point where a group numbering 200 to 300 men, women and children, formed a group call “Haus Man,” and descended upon Sakiko. They came armed with weapons – homemade guns, bows and arrows, axes, bush knives, hunting spears, wire catapults and kitchen knives. They marched along the Bruce Jephcott national highway, going past the Ramu township and turned off the highway onto a dirt road leading to Sakiko Village.
   
8. As soon as they entered the road, their first victim was an employee of Ramu Agri Industries Ltd, Sike Wamne, from Jiwaka Province, who was shot with arrows from a bow, and struck with axes. Upon entering the village, Nick Uria was the next victim. They proceeded then to attacking the rest of the village, burning houses, chasing people, and killing another five people – Yambung Nawoya, Beramo Tipupu, and Bauopa Dainginayo, adults and two children – Anao Gunumi, 5 years old and Nathan Aki, 3 years old.
   
9. A total of seven people were killed in their death march from Gomumu to Sakiko, as payback for what they thought were deaths caused by sorcery.
   
10. The State alleges that the persons were killed contrary to s 299(1) of the Criminal Code, that is wilful murder, and the State alleged that they each individually and collectively formed a common intention to carry out the offence pursuant to s 8 of the Criminal Code.
    
11. The State further alleges that the accused aided and abetted each other to wilfully murder each of the six deceased at Sakiko Village, within the meaning of s 7(1), (a), (b) and (c) of the Criminal Code.
    
12. For Sika Wamne the State alleges that he fell victim to a larger group that had formed the common intention to kill, and that his death was a probable consequence of the execution of that common intent.
    

The State’s Evidence

13. I now turn to the evidence, to determine the application. Five witnesses were called. I now summarise their evidence in the following manner.
    
14. Inspector Peter Gorek was the first state witness. The witness gave sworn evidence. He said that on 14 April 2014 he was the police station commander of Ramu at the time of the mass murder, and they arrested 192 persons. Between 5:30am and 6:00am he was praying when he was interrupted by a phone call from policeman Kenneth Huya. He told him that on his way to Madang, he sighted a group of men with black painted faces at Sankian bridge and they were armed with bush knives, guns, bow and arrow and catapult. The group of men were walking to Ramu Sugar. After hearing this, the witness went to pick up two policemen and briefed them on what had transpired. The three went to the police station to pick up arms, but there were no guns in the armory.
    
15. At 5.50am he drove on to the main road and met a group of men and turned on the police blue lights. He saw more than 200 armed men. He talked to them to stop but he was outnumbered. The group headed to what is commonly referred as the Southgate of the Ramu Sugar Estate and continued on. The witness drove behind them. He met another police car and gave instructions for them to get other policemen. The group was heading to Sakiko and Sanira villages. The witness told the other policemen to alert the villages at Sakiko and Sanira to flee from the village.
    
16. The witness picked up four officers and followed the group. He said these men live in a “house man,” and fasted to execute their plan. He followed the group for some distance and some company people in the fence were shouting that police had failed because one person was already killed. The deceased was from Jiwaka province and a company employee (Ramu Sugar Industries Ltd). He sighted the body bag on his left side and continued following the group with a siren and blue lights.
    
17. The group of men split into two groups. The witness accelerated ahead to Sakiko village to warn them of the impending attack. There was a young man at second bus stop who tried to fight against the attackers. After passing the young man, he went to the edge of the village, next to Bumbu river and stopped at the escape route.
    
18. The witness received instructions from the Acting Commissioner of Police, and the Provincial Police Commander not to make arrest as they were outnumbered and they should wait for reinforcement. At about 10:00am there was calm. He instructed the policemen to conduct a small search. Houses were burnt and people were screaming and running for their lives. When they were conducting search, reinforcement arrived from Madang and they had a short briefing. They thoroughly searched the whole area. During the search he saw murdered people with heads cut, and brains removed. One of the deceased was an old man, killed and burnt in a house. He was told the man’s name was Dangingayo. At the Sakiko bus stop, he spotted the “hausman,” group, hiding amongst the cassava crops and told them to surrender. Although they were fully armed, they surrendered. He saw similar weapons to what he saw earlier.
    
19. The witness was not able to recognize them. The group was escorted to Sakiko field and put into 10 village groups and told to follow his instructions. They walked from the field to the main Bruce Jephcott Highway. It was getting late when they loaded them on to trucks to Ramu police station and contained them in the fence. He bought three cartoons of biscuits, and fed them. The police said units from Goroka and Ramu guarded them until the next day.
    
20. In cross examination, he said there were no other suspects brought in by other policemen. All of the suspects were hiding in the cassava crops. The perimeter of their search was 1km. It was still light when they found them.
    
21. From questions and answers from the bench, he said he could see fire, and someone trying to burn a house. He saw only three deceased. All of the attackers had painted faces. He could only remember Gomumu village and two other villages when he was asked where the suspects were from. An identification parade was conducted as it was getting dark, and they all cooperated. There was a total of 7 deaths.
    
22. The second witness was Kanda Popusewe. She gave sworn evidence. She moved with her family from Gomumu village to Sakiko village because a lady was killed and they were suspected of causing her death. She came to court because her child was killed. She was holding her child, Nathan Aku, who was three years old at the time. On Monday 2014 the “Hausman” came and killed her child. She said one of the persons who killed her son is in the courtroom and the other one was released because he was a student. She said it was Goyoyu, Duma, and Ruma who cut his head with knives at Sakiko. She identified Goyoyu in the courtroom as the second person from the left.
    
23. In cross examination, she said their faces were painted with black paint. Even though their faces were painted, she recognized them because they were from the same village. From questions and answers from the bench she said Duma and Goyoyu swung the knives at her child. They are from the same village.
    
24. The third state witness was Susan Yambung. She gave sworn evidence and said they moved from Gomumu to Sakiko when the hausman group was formed, after the death of a woman in Gomumu Village. She was on her way to the market when policemen came and warned them of the coming of hausman. She informed her husband, and a boy assisted them to carry her father, to flee from the oncoming attack. The boy was speared on his leg and he left her father and ran away. Her father was left near a banana tree and she went and stood about 3m away and watched them.
    
25. They came and cut him to pieces. She left that area and ran to the mountain. The body was taken to Lae. Her father's name was Yambung. The hausman came from Gomumu. The faces of the hausman attackers were painted black and they could not recognize them. They came with bows and arrow. She did courtroom identification and said the person with the green shirt attacked her father.
    
26. In cross examination, she said the name of the person with green shirt is Gusom. She did not mention the name Gusom in her statement to the police and it was put to her that she created the name Gusom in court.
    
27. From question and answers from the bench, she said she saw Aware Muru and others. The person in the green shirt in the company of others cut his father. The person in green shirt is Aware Muru.
    
28. The fourth state witness was Yukui Sango. He gave sworn evidence and said he moved from Damainde to Sakiko because of accessibility of government and company services. He was in court because his grandfather, Baupa Dakinaiyo, was killed. On 14 April 2014 at 6:00am, he was asleep with his grandfather when policemen from Ramu arrived, woke them and told them to flee up to the mountain and river because “hausman,” have arrived. His grandfather was from Damainde Village and Gomumu village. He was surprised.
    
29. The first fight took place at Sakiko bus stop. The fight came up to where they resided at the end of the village near the mountains. He told his grandfather to flee with him. His grandfather told him to leave him and go as he was an old man. He repeatedly asked his grandfather 5 or 6 times to come with him, but his reply was the same. He said these people are his grandsons, and his life will be in their hands. His grandfather also told him he was a young man and had a long life to live and they should not both die together.
    
30. He left his grandfather and came out. The attackerds were already close to the door of the house. Their faces were painted and they were armed with guns, knives, wire catapult and bows and arrows. The sweat had washed some paint from their faces and he recognized three of them, two of them have been released and one has escaped and is in the village now. The attackers were from Sonokai village and they joined Gomumu hausman that day. The hausman group was formed after the death of a mother and they formed a group to look for sorcerers.
    
31. He jumped down 3m from the house, avoided a spear and he ran up the hill. He went uphill for about 12m to 15m and looked back to where he left his grandfather and he heard his grandfather called his name when they cut him. He watched as they set fire to the house. He followed the hill and ran away and came to the Ramu Agri Industries Ltd management area and met the Police.
    
32. From question and answers from the bench, he said he was 34 years old and married with three children at the time of the incident. His family went with the police to his grandfather.
    
33. The fifth state witness was Pastor Waha Foisa. The witness gave evidence and said he is from Jayapura and married to Sakiko village. He is a PNG citizen. He was present when the incident happened. He removed his parents before the attack. The group attacking them used guns, bows and arrows, and bush knives. He saw a young man shot as they were fighting. He escaped with his family. The fight continued as they exchanged spears. An elderly man was killed, but he did not see how he was killed. They found two dead bodies, one of a baby in the bush. There was an old man found near bananas. At the same time one of the attackers was shot with a gun so he assisted him. The attackers were young men, about 300. After the fight he counted a total of six deaths.
    
34. From question and answers from the bench, he said he came as a missionary and went to pastor the local school and he married a lady from that area. The current fight now started in 2011. There were two children who were killed - one was five years old and the other was older.
    

No Case to Answer Application

35. At the close of the State’s case the Accused applied to have the case struck out on the basis that there was no case to answer. The principles to consider when deciding cases where such an application is made is the often-cited case of State v Paul Kundi Rape [1976] PNGLR 96. This case has been applied and expounded on in many subsequent cases. Essentially the court would be obliged to end the case if, firstly no evidence in adduced on any of the elements of the offence the accused is charged for. The second limb is that even if there is evidence brought by the State, the evidence is lacking in weight and credibility that no reasonable tribunal could safely convict on it.
    
36. The accused submits that there is no evidence on counts 1, 2, 4, 5 and 7 and therefore the accused ought to be acquitted. This is on the first limb of Paul Kundi Rape.
    
37. For counts 3 and 6, the accused submits on the basis of the second limb, that the evidence is lacking in weight and credibility.
    
38. The State concedes to the no case to answer application for counts 1, 2, 4, 5 and 7, but opposes the application for counts 3 and 6.
    

Considerations

39. To determine the no case to answer application, I have had recourse to Kakivi v the State. Gavaru-Nanu, J held that for aiding and abetting to be established under s 7 of the Criminal Code there has to be clear evidence of who killed the deceased, and how those aiding and abetting counselled or procured the killing of the deceased. He went on further to say that there was no common purpose, and that the deaths were caused by criminal opportunists, especially the death of Sike Wamne. I am bound by the Supreme Court’s decision on these points unless the State has brought better evidence to meet the expectation of the Supreme Court.
    
40. After considering the evidence, I uphold the accused’s submission that the evidence adduced so far by the State does not establish who killed the five deceased persons in the five counts of the seven counts of wilful murder they have been charged with. “Killing a person,” is one of the three elements of wilful murder charge. The State has also not improved its case before the National Court from which this decision was appealed from on the allegation of carrying out a common purpose under s 8 of the Criminal Code. These observations relate to counts, 1, 2, 4, 5 and 7. I therefore discharge the accused of these counts on the indictment.
    
41. Because there was no evidence of aiding and abetting brought by the State for the wilful murder of Yambung Nawoya against Enos Aware, I also discharge the accused Enos Aware on count 3 on the application of the first limb of Paul Kundi Rape.
    
42. Similarly, as the State has not brought any evidence on aiding an abetting for the wilful murder of Nathan Aki against Jeffrey Ronny, for count 6, I acquit him of this charge on the indictment.
    
43. Counts 3 and 6 will therefore have to be dealt with individually for Enos Aware and Jeffrey Ronny. I determine that there is evidence from two witnesses identifying the two accused in the killing of Yambang Nawoya (evidence of Susan Yambung, identifying Enos Aware), and Nathan Aki (evidence of Kanda Popusewe, identifying Jeffrey Ronny). It is not for the court to weigh the evidence and consider issues of credibility unless it is a very clear case. Applying the case of Angitai v The State [1983] PNGLR 185 I note the limited nature of reasons I have to give on a no case to answer application unless I am acquitting an accused. I will therefore order that the trial will continue on the indictment for counts 3 for Jeffrey Ronny, and count 6, for Enos Aware.
    

Closing Remarks

44. Let me state in closing that the State faced an almost insurmountable challenge to prosecute this case. The incident happened in 2014. There were 97 accused. Some of them have died. Others have escaped from prison. They were convicted in 2018. Their appeal was decided in 2023. The re-trial is being heard in 2025. Many of the witnesses on the indictment have moved to other locations, and some have died. In many respects this case exposes the challenges of our criminal justice system, from arrest, conviction, and detention over a prolonged period.
    
45. This case also looks at how the modern criminal law premised on individual responsibility can effectively attribute group criminal responsibility to offences committed by offenders who are tied together by social customary norms. Justice Batari in Kakivi v The State made comments alluding to this when he observed at [105]:
    

It is a notorious fact in the circumstances of this country and the cultural influences in communities, that in a group enterprise, irrespective of good or evil, the individual finds solace, comfort, and security in the group closely knitted by kinship and social obligations. So, when the occasion presents itself for cooperative participation, the individual rights to freedoms becomes secondary, it is quickly lost to group bonding and peer pressure. Hence, the individual is more susceptible to merely follow others or even volunteer responsibility in sacrificial acts to save others, particularly, elders and those with status.

46. These observations are made to acknowledge the difficult circumstances present in the country in upholding the rule of law – not just financial but the conflict of modern law with customary law.
    

Orders

47. The formal orders of the court are as follows:
    
    1. The accused Enos Aware’s application for no case to answer for counts 1, 2, 3, 4, 5 and 7 on his indictment are upheld, and he is acquitted of those charges in the indictment.
    2. Enos Aware has a case to answer for count 6 on the indictment for the death of Nathan Aki.
    3. The accused Jeffrey Ronny’s application for no case to answer for counts 1, 2, 4, 5, 6 and 7 on his indictment are upheld, and he is acquitted of those charges in the indictment.
    4. The accused Jeffrey Ronny has a case to answer for count 3 on the indictment for the death of Yambang Nawoya.
       
48. Ruling and orders accordingly.
    

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