N11417

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 1514 OF 2024  
CR NO. 22 OF 2025

BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:
DAVID POKOP KANAH
Accused

AND:
BERNARD NANAU PORAI
Co-Accused

MANUS:   DINGAKE J
16, 17 JULY 2025

CRIMINAL LAW – Wilful Murder, Criminal Code, S299(1): s7(1)(a)(b)(c) Identification – sole witness for the prosecution – R v. Turnbull (1977) QB224 and John Beng v The State (1977) PNGLR 115 (in full) requirements discussed – defence of alibi discussed – held Accused persons guilty as charged

Cases cited
State v Minong [2016] PGNC 139; N6271 
James v State [2020] PGSC 39; SC1937 
State v Ruben [2010] PGNC 225; N4170
Jaminan v The State [1983] PNGLR 318
R v. Turnbull (1977) QB 224
Beng v The State [1977] PNGLR 115
Geta v The State [1988-89] PNGLR 153
Ono v The State [2002] PGSC 10; SC698
Kuanande, The State v [1994] PNGLR 512

Counsel
Mrs Linda Maru, for the State
Ms Cecilia Pulapula, for the prisoners

JUDGMENT

1.	DINGAKE J: INTRODUCTION: The trial in this matter was conducted yesterday, the 16th of July 2024. This is my judgment on the verdict. The accused persons David Pokop Kanah and Bernard Nanau Porai (“Accused persons”) were charged with one count of wilful murder pursuant to Section 299 (1) of the Criminal Code Act. 

2.	The State alleged that David Pokop Kanah and Bernard Nanau Porai of Nohang Village, Lorengau, Manus Province, on the 27th day of April 2012 at Nohang, Papua New Guinea, wilfully murdered one, John Saiyo, thereby contravening section 299 (1) of the Criminal Code. 

3.	The State also says that the accused persons, aided and abated each other in the commission of the crime and therefore they are both principal offenders pursuant to Section 7 (1) (a) (b) (c) of the Criminal Code.

4.	The two accused persons pleaded not guilty. They said they didn’t kill the Deceased. They said they were elsewhere. They raised the defence of alibi.

5.	The State says, “they were there, and they killed him”.

6.	It falls to this court to determine based on evidence, reason and the law, whether the prosecution has proven its case beyond reasonable doubt. 

THE ISSUES 

7.	There are three (3) primary issues that fall for determination, namely:

(i)	Was the Deceased, John Saiyo unlawfully and wilfully killed? 

(ii)	Were David Pokop Kanah and Bernard Nanau Porai the persons who killed him?

(iii)	Did the State negative the alibi raised by the accused persons? 

THE LAW

8.	Section 299 provides as follows:

“299.	WILFUL MURDER.

(1)	Subject to the succeeding provision of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) 	A person who commits wilful murder shall be liable to be sentenced to death.”

9.	As is clear from the above quotation, Section 299 (1) of the Criminal Code criminalises wilful murder – the unlawful killing of a human being with intent to cause death. It carries with it a heavy burden on the prosecution to prove that the accused persons not only caused death but did so wilfully – with a formed and conscious intention to bring about death. 

ELEMENTS OF THE OFFENCE OF WILFUL MURDER

10.	The elements of the charge of wilful murder are the following;

(i)	A person;
(ii)	Who unlawful kills;
(iii)	Another person;
(iv)	Intending to cause his death is guilty of wilful murder;

(See State v Minong [2016] PGNC 139; N6271; James v State [2020] PGSC 39; SC1937; State v Ruben [2010] PGNC 225; N4170)

11.	Section 7 (1) (a) – (c) of the Criminal Code provides that persons who aid, abet, counsel, or procure a commission of an offence are equally liable as principal offenders. 

12.	The defence of alibi asserts that the accused could not have committed the offence because they were elsewhere at the material time. Once raised, the burden remains on the prosecution to negative the alibi beyond reasonable doubt. (Jaminan v The State [1983] PGSC 12; [1983] PNGLR 318 (29 September 1983)

13.	The law is clear that the defence of alibi can only arise if there is some evidence (not flawed or inconsistent) in support thereof. Once raised, it puts every matter in issue and if the evidence creates a reasonable doubt, in the mind of a trial judge, as to the guilt of the accused, the accused should be acquitted.

THE EVIDENCE

14.	At the commencement of the trial, the Prosecution and the Defence by consent admitted certain evidence that was marked as exhibit: “S1 to S8”, being the following: 

(a)	Exhibit S1: Record of Interview (Pidgin/English) of David Pokop Kanah dated 8th March 2024.

(b)	Exhibit S2: Record of Interview (Pidgin/English) of Bernard Nanu Porai dated 20th August 2024.

(c)	Exhibit S3: Statement of Arresting Officer, Police Sergeant Markson Gamui, dated 12th March 2024 — found on page 12 of David Pokop Kanah’s Court File and page 11 of Bernard Nanu Porai’s Court File.

(d)	Exhibit S4: Statement of Arresting Officer, Police Sergeant Markson Gamui, dated 12th March 2024.

(e)	Exhibit S5: Statement of Arresting Officer, Police Sergeant Markson Gamui, dated 21st August 2024.

(f)	Exhibit S6: Statement of Police Constable Channel Yakom, dated 21st August 2024 — located on page 10 of Bernard Nanu Porai’s Court File.

(g)	Exhibit S7: Statement of Police Constable Michael Pondros, dated 12th March 2024 — located on page 10 of David Pokop Kanah’s Court File.

(h) 	Exhibit S8: Postmortem Report, dated 9th December 2012 — located on page 13 of David Pokop Kanah Court File and on page 13 of Bernard Nanau Porai’s Court File.

STATE’S EYEWITNESS

15.	The State called one witness, Kais Pepi Kanau. He was an eyewitness. He said he saw it all. 

16.	According to Mr. Kais Pepi Kanau, on the morning of 27th April 2012, between the hours of 5am to 6am, he left Patusi Village, on his way to Nohang when he saw that the two accused persons, David Pokop Kanah and Bernard Nanau Porai beat up the Deceased, one John Saiyo. 

17.	He told the Court that it was a clear morning on that day, and he could easily identify both accused persons. In court he pointed out to the two accused persons in the dock as the persons who were beating the Deceased, John Saiyo.

18.	He said all of them were from Nohang Village and he knows them very well. He also says they are all related to him. 

19.	Mr. Kais Pepi Kanau told the Court that as the two accused persons were beating up John Saiyo they were saying, “kaikai kan, kilim em” “eat vagina, kill him”. He said they repeatedly uttered these words when they were beating him. According to him, he was standing about 1.5 meter away as he witnessed the relentless beatings. 

20.	All of these happened at Yondras junction. In addition to the two accused persons, he also saw at the said junction, Philip Kanah, Charlie Ndrakeu, Vincent Tapo and Bryan Tapo.

21.	Mr. Kais Pepi Kanau told the Court that he saw the Deceased being beaten, defenceless and outnumbered by the mob that included the two accused persons.

22.	Mr. Kais Pepi Kanau told the Court that the accused persons used a deadly combination of weapons: a gun, an axe, and a piece of timber with a nail embedded at one end. He said they beat the Deceased all over the body, all the while, yelling, “kill him!”. He said the Deceased was killed by the two accused persons. He said John Saiyo died in front of him. 

23.	Mr. Kais Pepi Kanau told the Court that the Accused Bernard Nanau Porai ordered him and Charlie Ndrakeu to carry the body of the Deceased and dump him in the bush, which he did. He further told the Court, that after dumping the body, Bernard Nanau Porai tried to kill him with an axe because they feared he will report them, and he escaped. 

24.	In Court, Mr Kais Pepi Kanau demonstrated how the accused persons beat up the Deceased. He demonstrated that the blows were delivered with so much force and intensity to the Deceased jaw, side of his neck, his chest and stomach. It was his evidence that Bernard Nanau Porai was holding an axe, and he delivered blows to the thigh, muscles and the knees of the Deceased. 

25.	This account of Mr. Kais Pepi Kanau was supported by a medical report by Dr. Samson Vava, which was admitted as evidence by consent and marked “Exhibit S8”. 

26.	Exhibit S8 report by Dr. Samson Vava, records the nature of the injuries sustained by the Deceased as follows:

•	visible bruising on the left frontal scalp, the left temporal scalp (anterior aspect) and left side of face;

•	frontal scalp lacerations, x2, measuring 2cm and 4cm. 
•	4 loose teeth in upper jaw – two incisors and two canine teeth.

27.	According to Dr. Samson Vava, the deceased sustained blunt force trauma to the face and head, causing traumatic brain injury, with the cause of death, being Diffuse Axonal Injury.

28.	It was also the evidence of Mr. Kais Pepi Kanau that since he witnessed the killing of Mr. John Saiyo, his life has always been under threat, and he moved away to Karun Village which is his father’s village.

29.	The defence called four witnesses. They told a different story. The net effect of their testimony was that they were not there at the crime scene at all on the material day and time.
 
30.	David Pokop Kanah testified that on the 24th of April 2012, he and his wife Elizabeth and their daughter Sandra left for Pere Village, because his daughter was sick. They stayed in Pere with his father and mother in- law until the 27th of April 2012 when they went back to Nohang. His evidence was that they left Nohang between 8:00am and 9:00am and they arrived there between 11:00am and 12:00 noon. He said that he didn’t kill the Deceased. He also said he did not give his side of the story to the Police because he opted to remain silent. He said he wanted to give his side of the story in Court.

31.	Under Cross examination, Mr. David Pokop Kanah denied being related to Kais Pepi Kanau. He also said that he didn’t know John Saiyo and denied killing him. 

32.	Bernard Nanau Porai also denied killing the Deceased. He said on the 27th of April 2012 he was in his house in Nohang Village together with his small brother and uncle. He said the story that he and David Pokop Kanau killed John Saiyo was not true.

33.	Under cross examination he admitted that he was related to Kais Pepi Kanau saying that his grandfather is a brother to Kais Pepi Kanau’s grandmother. He also admitted that he was related to David Pokop Kanah, but they are distant relatives. He further admitted that Kais Pepi Kanau is related to David Pokop Kanah, saying that they are distant relatives. 

34.	The next witness for the defence, Changol Cholai told the Court that on the 27th of April 2012, David Pokop Kanah, Elizabeth and the daughter Sandra went to Pere from Nohang. He said Sandra was sick. He said they stayed there until the morning of the 27th of April 2012. According to Changol Cholai at 6:00am David Kanah’s sister came to the house and called for David Pokop Kanah and that is when they woke up. 

35.	The last witness for the defence was Glen Felix. He testified that he was at the house of Bernard Nanau Porai on the 24th of April 2012 and that he was asleep on that the day and he was woken up by Bernard Nanau Porai. He told them to go to school. 

EVALUATION AND FINDINGS

36.	The Court has gone through the evidence with a fine comb. The court accepts the State’s witness evidence given by Kais Pepi Kanau as to the events or beatings of John Saiyo of the 27th of April 2012 as credible. He gave a clear and concise account of what happened. He gave very vivid demonstration of what happened on that fateful day.

37.	He had no apparent reason to lie. 

38.	He identified David Pokop Kanah and Bernard Nanau Porai who were known to him as the persons who beat the Deceased. 

39.	From the evidence of Kais Pepi Kanau, the only eyewitness, I am satisfied beyond reasonable doubt that he knew the accused persons very well as they were relatives and lived in the same community. His account of what happened on that day was detailed and coherent. I didn’t find any inconsistencies in his testimony at all. The medical report by Dr. Samson Vava Exhibit S8 corroborated this testimony. I found him to be the witness of truth, and I believe his testimony in its entirety.

IDENTIFICATION

40.	This Court is mindful of the warning in R v. Turnbull (1977) QB 224 which requires caution on cases relying on visual identification. Significantly, I have considered the leading cases of John Beng v The State (1977) PNGLR 115, Geta v The State [1988-89] PNGLR 153 (28 April 1989); Ono v The State [2002] PGSC 10; SC698 (4 October 2002).

41.	Consistent with the above cases, I have considered and cautioned myself against the inherent dangers of relying on the correctness of the identification of the accused persons by the only State’s eyewitness.

42.	The cases referred to earlier, at paragraph 40, above settle the law on identification, in this jurisdiction. The cases make it clear that the trial judge should by his or her reasons for decision demonstrate that the danger is recognized and heeded. This is often done, by administering a “self-caution” as I have just done.

43.	The above cases have laid down detailed guidelines to help judges and juries assess the reliability of identification evidence. 

Key Principles Established in R v Turnbull and John Beng v The State (supra)

44.	The guidelines emphasise the need for caution when evaluating identification evidence. The principles are discussed briefly below.

Judicial Warning

45.	Judges must warn themselves and or juries about the special need for caution with identification evidence, because mistaken identification has led to wrongful convictions in the past.

Assessment of Conditions

46.	The Court must always be mindful that the reliability of identification depends on factors such as:

i	How long the witness observed the suspect.
ii	The distance between the witness and the suspect.
iii	The quality of the lighting and visibility.
iv	Whether there were obstructions during the observation.

Supporting Evidence

47.	If identification evidence is weak and unsupported by other evidence, judges must advise themselves and or the jury to consider this carefully. In some cases, they may acquit or direct the jury to acquit.

Role of Discrepancies

48.	Discrepancies between a witness’s initial description of the suspect and their appearance at the time of identification must be highlighted to the jury.

49.	In this case, considering the Turnbull guidelines, I am satisfied that the evidence that unfolded in court was not fleeting in nature. It occurred in the morning, and the witness could see everything that happened, and he was able to describe it with clarity. He witnessed prolonged beating in daylight by persons who were his relatives and community members. I have considered that Mr. Kais Pepi Kanau observed the accused beat the Deceased over a prolonged period, he was one and half meters away from the action and he could see clearly. He knew the Deceased persons. They were relatives. There were no obstructions or any risk of false identification.

APPLYING THE LAW TO THE FACTS

50.	The question that arises at this stage is whether the elements of wilful murder have been proven beyond reasonable doubt. On the evidence I am satisfied that the two accused persons repeatedly beat the deceased John Saiyo to death using a combination of lethal weapons: axe, gun and timber embedded with a nail and that it was their assault or beating of John Saiyo that caused his death. There was no lawful justification for his death. Their conduct was plainly unlawful.

51.	What then of intention? Did the accused intend to kill John Saiyo? In our law intention is a matter which reflects the state of mind of the accused, at the time he or they acted. It concerns the subject mind of the accused. It may be proven by the accused expression of intention, followed by the act or by a combination of factors (State v Raphael Kuanade 1994 PNGLR 512). To this extent, I agree with Injia AJ (as he then was) when he stated that:

“Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proved by direct evidence of the accused’s expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior, at the time and subsequent to the act constituting the offence.”
(Underlining is mine)

52.	In this case, I find the intention proven from: (a) the expression of intention to kill: “Kill him!” (b) the conduct of vicious beatings of the accused using deadly weapons like axe, gun and timber embedded with a nail. The ferocity and intensity of the beatings as demonstrated by the State’s only eyewitness in Court also goes to show that the accused intended to kill John Saiyo. I find this element proven beyond reasonable doubt.

53.	As to alibi, the Court does not find it compelling. The State was able to rebut the defence alibi by showing inconsistencies in the alibi defence that rendered it unreliable, such as not telling the Police at the first opportunity that they couldn’t have been the persons who killed the deceased because they were not there. Further, David Pokop Kanah denied being related to Kais Pepi Kanau but was contradicted by Bernard Nanau Porai who testified that they were all related.

54.	While the accused are not required to prove the alibi, the credibility of the claim is under scrutiny. Curiously, when the accused were first questioned by the Police, they did not mention this alibi. 

55.	Their silence is telling. 

56.	This Court wonders why if they were truly elsewhere, did they not say so from the beginning? Why keep silent on something so crucial? This silence, in my mind damages the credibility of their claim. I am satisfied beyond reasonable doubt that the defence was an afterthought – a fabrication stitched together after the event. 

57.	I have no hesitation whatsoever in finding as I do that the State has negatived the alibi raised by the accused persons beyond reasonable doubt. 

58.	It seems to me to be true that the truth during trial may occasionally seem obscured, but it cannot be extinguished. In this case, the evidence of Kais Pepi Kanau made sure the truth is not extinguished.

CONCLUSION 

59. In the final analysis the Court is satisfied beyond reasonable doubt that:

1.	The Deceased died from injuries inflicted on him by the accused persons.

2.	That the attack was carried out by both accused persons using a mixture of lethal weapons: a gun, an axe and a timber embedded with nail. 

3.	The accused persons clearly intended to kill the Deceased. 

4.	I am able to confidently infer from the conduct of the accused persons of repeatedly beating the Deceased, the nature of the weapons used, the parts of the body targeted, that they intended to kill the Deceased. And worse they shouted, “kill him!” a clear manifestation of their intention consistent with their conduct. 

5.	The alibi raised by the accused persons has been shown by the state to be false beyond reasonable doubt.

6.	I am satisfied beyond reasonable doubt that the accused persons killed John Saiyo and committed the offence of wilful murder.

ORDERS OF THE COURT

Verdict: Guilty as charged.

Ordered accordingly. 
__________________________________________________________________
Lawyer for the State:	    Public Prosecutor
Lawyer for the prisoners:   Public Solicitor