N11514

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 1444 OF 2022

THE STATE

v

SAMUEL SIKIN
(NO 1)

WABAG: ELLIS J
7, 8, 9 OCTOBER 2025 

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder –s299 (1) CCA – Trial – Victim murdered by brother of the accused – Brother encouraged by accused – Identification evidence accepted – Alibi defence rejected – Guilty of Wilful Murder – Remanded for Sentence

Facts
The father of the accused handed an axe to his brother.  The father and the accused used words encouraging the accused’s brother to kill the victim.  The accused’s brother killed the victim by striking him on the head with that axe.

Held
Identification evidence accepted.
Alibi defence rejected.
Accused deemed to have committed the offence.
Guilty of Wilful Murder.

Cases cited 
Biwa Geita v The State [1988-89] PNGLR 153
John Beng v The State [1977] PNGLR 115
John Jaminan v The State [1983] PNGLR 318 
Ono v The State (2002) SC698

Counsel
J. Kasen, for the State
L. Toke, for the defendant
		
VERDICT

1.	ELLIS J: 	Samuel Sikin (the accused), of Pausa village in Wapenamanda, Enga Province was charged that, on the 7th May 2022 at Pausa, he wilfully murdered Junior Ambi.  To that charge he entered a plea of not guilty.

2.	He was indicted pursuant to Section 299(1) of the Criminal Code Act 1974 (the CCA) which provides:

Subject to the succeeding provisions 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.
Overview 

3.	During a bride price ceremony, the accused’s father (Sikin Wapea) handed an axe to the accused’s brother (Ben Sikin).  After the axe was handed to Ben Sikin, his father and the accused encouraged him to use it to strike Junior Ambi (the victim), which Ben Sikin did, and the resulting blow to the head caused the death of the victim.

Evidence for the State

4.	Although it was suggested that the state wished to tender the record of interview with the accused, that did not proceed because neither the Court’s file nor the files of the lawyers had a legible copy of that document.  As a result, the only document admitted into evidence in the State’s case was the autopsy report and related documents, being six pages that were admitted as Exhibit A.  

5.	Three witnesses were called: Pastor Newman Ikis, Alo Pando and John Pyakea.

6.	Pastor Ikis, who is a pastor of a local church at Pausa, gave evidence of what he saw and heard.  His evidence included (1) identification of the accused, (2) stating that the accused encouraged his brother to attack the victim with an axe, and (3) firmly rejecting the suggestion that the accused was not present.

7.	Alo Pando is a villager who also gave evidence of what he maintained occurred on the evening of 7 May 2022.  His evidence was consistent with that of Pastor Ikis, save that the words of encouragement he recalled hearing the accused used differed to those recalled by Pastor Ikis. 

8.	John Pyakea also said he was present at Pausa on the day of the murder.  He also gave evidence of his recollection of the events relating to murder of Junior Ambi.  His evidence of the words of encouragement the accused used matched the evidence of Pastor Ikis on that aspect.

Evidence for the defence

9.	While a Notice of Alibi was filed, it provided no details to indicate what he was doing at the time of the murder.  The evidence of the accused included a suggestion that he was reading a book around the time of the offence.  He claimed that, after hearing that his brother had attacked the victim, he went into hiding because he was scared, and then surrendered to the Police four days later.

10.	The accused’s mother also gave evidence in support of the accused’s alibi defence.  Both the accused and his mother were cross-examined, and the effect of both their evidence-in-chief and their cross-examination is considered below.

Submissions for the defence

11.	It was submitted that the crucial issue was the alleged participation of the accused.  A submission was made that there were major inconsistencies in the evidence of the State’s three witnesses, with reference being made to the side of the head on which the victim was cut and the recollections of the words used.  There was also a submission that no reasonable person would give back an axe as the victim was said to have done.

12.	The accused’s lawyer suggested that the first State witness, Pastor Ikis, was evasive and the second State witness, Alo Pando, was poor.  Further, that the evidence of the defence witnesses should be accepted and that the State had failed to (1) prove its case beyond reasonable doubt, and (2) rebut the alibi defence.

Submissions for the State

13.	There was said to be no dispute that it was Ben Sikin who used an axe to strike the victim, causing his death.  The issue was said to be how the accused assisted.  It was noted that the focus of the evidence of the State’s witnesses was the involvement of the accused and submitted that his conduct contributed to the death of the victim because he was lending support for his brother, Ben Sikin, to kill the victim.

14.	The words of encouragement attributed to the accused were said to be significant for the purposes of s 7 of the CCA.  A submission was made that the evidence of the State’s witnesses was not inconsistent, that they had no reason to lie, and were independent.  It was noted that accusing a family member of a serious offence was something that would not be done lightly.  

15.	In short, the State’s case was that (1) the accused’s father provided the axe to his brother, Ben Sikin, (2) the accused lent support by saying words of encouragement, and (3) Ben Sikin used the axe to murder the victim.  The Court was reminded that a conviction of murder can be made in response to a charge of wilful murder.

16.	In relation to the alibi defence, it was said that the story proffered by the accused and his mother was one that was easy to put together.  It was noted that the Notice of Alibi withheld details of what the accused claimed he was doing at the relevant time. Also that, despite the right to remain silent, the accused did not raise his alibi.  It was submitted that someone who was innocent would protest his innocence at that time and that his conduct revealed that he did not want to disclose his alibi defence to the Police.  The State’s case was that the alibi evidence of the accused and his mother was false and that falsity was said to corroborate the State’s case against the accused.

Relevant law

17.	As to identification evidence, it is noted that caution is necessary because even an honest witness may be mistaken.  That is why the reliability of identification evidence depends on a factors, such as those listed below, which need to be considered before making findings of fact: John Beng v The State [1977] PNGLR 115; Biwa Geita v The State [1988-89] PNGLR 153; Ono v The State (2002) SC698. 

(1)	How long was the period of observation?
(2)	In what light was it made?
(3)	From what distance was it made?
(4)	Was there anything about the person observed which would have impressed itself upon the witness?
(5)	Was there any special reason for remembering the person observed?
(6)	How long afterwards was the witness asked about the person concerned?
(7)	How did the description then given by the witness compare with the appearance of the accused?

18.	Since the prosecution must prove the charge beyond reasonable doubt, it follows that an alibi defence will be an answer to the charge if it creates a reasonable doubt.  It is noted that Order 8 rule 3 of the Criminal Practice Rules 2022 requires notice to be given by the accused to the prosecution of the evidence of the alibi upon which the accused intends to rely.  The required form for that notice (Form 26) includes not only where the accused was but also what he was doing.

19.	The doctrine of common purpose is a concept developed by the common law, ie case law.  Simply stated, its effect is that anyone who joins in the commission of a crime may be guilty even though they are not the principal offender.  That concept, and the concept of a person being an accessory to a crime, is given statutory effect in sections 7, 8 and 9 of the CCA.  So far as is relevant for present purposes, s 7 provides:

(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 –
…
(d)	every person who aids or procures any other person to commit the offence.
20.	Next, s 8 is in the following terms:

Where:
(a)	Two or more persons form a common purpose to prosecute an unlawful purpose in conjunction with one another; and
(b)	In the prosecution of such a purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,
each of them shall be deemed to have committed the offence.

21.	Further, since s 9 is relevant in this case, its wording is set out in full below:

(1)	Where -
(a)	a person counsels another person to commit an offence, and
(b)	an offence is actually committed under that counsel by the person to whom it is given,
it is immaterial whether –
(c)	the offence actually committed is the same as that counselled or a different one; or
(d)	the offence is committed in the same way counselled, or in a different way.
(2)	The person who gave the counsel shall be deemed to have counselled the other person to commit the offence actually committed by him.
22.	Those three sections in the CCA each have potential application in this case. If either s7 or s8 of the CCA applies, then the effect is that the accused is deemed to be guilty as if he were the person who killed the victim by striking him in the head with an axe. 

Issues

23.	As it was not disputed that Ben Sikin killed the victim with an axe that was provided to him by his father, the issues requiring determination are:

(1)	Does the identification evidence establish the presence of the accused beyond reasonable doubt?
(2)	Does the evidence led in support of the alibi defence create a reasonable doubt?
(3)	Did the accused play a role in the murder that renders him guilty of the offence?

Assessment of witnesses

24.	Pastor Ikis cannot be said to have been an evasive witness.  That submission is rejected.  His evidence was internally consistent.  It is noted that his evidence included that the accused’s father asked the victim to return the axe, which he did.  Despite him giving that answer three times in cross-examination, that explanation was overlooked in the submissions for the accused.  His evidence that the victim was struck on the left side of the head, above the eye, accords with the uncontested medical evidence.  His evidence-in-chief, repeated in cross-examination, was that the accused was encouraging his brother by telling him to “attack him more”.  That was consistent with the evidence of John Pyakea on that aspect.  It is noted that the unchallenged evidence of this witness was that he is related to the accused which raises the unanswered question of why he would lie in relation to this matter. The Court considers Pastor Ikis to be a truthful witness.

25.	Alo Pando gave evidence which, on major points, matched that of Pastor Ikis.  There were only two differences.  First, this witness mistakenly pointed to the right side of his head when asked where the victim was struck.  Secondly, the words he said he heard the accused say were “I am at the back of you”.  It is noted that this witness also gave evidence that he was related to the accused and that evidence was not challenged.  Although it was submitted that this witness was a poor witness, little, if any, explanation was provided for that submission.  His evidence provides support for the presence of the accused and, even if his evidence were to be put aside, there remains the evidence of the third witness for the State.

26.	John Pyakea gave evidence which corroborated that of Pastor Ikis.  He correctly suggested that the victim was struck on the left side of the head and his recollection of the words of encouragement used by the accused, namely, “attack that fellow” was sufficiently consistent with that of Pastor Ikis.  No specific reason was advanced, on behalf of the accused, as to why the evidence of this witness should not be accepted and the Court is unable to discern any such reason.  It is noted that this witness also said he is related to the accused.

27.	It is convenient to here note that lawyers commonly suggest, as in this case, that the evidence of witnesses should be rejected whenever there is an inconsistency and that when the evidence of witnesses matches it should be accepted.  However, the reality is that when truthful witnesses give evidence recalling events there are usually inconsistencies and that whenever the evidence of two witnesses matches closely, there is a prospect that such evidence involves collaboration rather than corroboration.

28.	The accused gave evidence.  Cross-examination revealed him to be a witness whose evidence could not possibly be accepted.  First, he gave answers that were clearly false, including suggestions that (1) after he was arrested, the Police did not ask him questions, (2) that he told the police he was not at the crime scene, (3) that he told the Police he was at Lyokepus village.  He then gave a contradicting answer when he said he told the Police he would tell his story in court.  In one answer, he claimed that Pastor Ikis was in Port Moresby at the time of the incident but in answer to the next question he asserted that Pastor Ikis was at home at that time, thereby giving inconsistent answers.  The accused gave numerous non-responsive answers, which showed he was seeking to avoid questions designed to elicit the truth.  There were also multiple aspects of the accused’s evidence that were never put to the State’s witnesses, which would have been done if he had told his lawyer of those matters.  The better view is that those answers were created “on the run”, during cross-examination.  It is clear the accused was not a truthful witness.

29.	The mother of the accused sought to provide evidentiary support for her son, which is understandable since she is his mother.  However, despite her attempt to match the evidence of the accused, she contradicted him when she gave evidence that he was reading after food was cooked for him while his evidence was that he read before that food was cooked.  This witness also gave many non-responsive answers, reflecting the fact that she was trying to “sell” her son’s story to the Court rather than respond to the questions that were asked.  In particular, it is noted that, every time this witness was asked why a witness for the State would lie, instead of providing a reason, she kept trying to assert her son’s alibi.  That suggests she was unable to think of any reason why the State’s witnesses would lie.  Her evidence also contradicts that of the accused in more than one respect.  For example, she suggested that her husband did not contribute to the bride price which, according to the accused’s evidence, would mean that his father would not have been at the ceremony when the victim was killed.  She sought to suggest that Pastor Ikis did not attend the ceremony because he did not contribute.  She even suggested that Ben Sikin was not at the ceremony and that her husband did not attend that ceremony.  As the evidence of the accused must be rejected, so the evidence of his mother cannot be accepted.  As between the evidence of Pastor Ikis, and the other two witnesses for the State, that the accused was present, and the claim of the accused’s mother that he was not, the evidence of the State’s witnesses must be preferred.

Consideration

30.	In the light of what is set out above, it is necessary to consider each of the three live issues in these proceedings.

31.	First, the identification evidence.   Going through the factors listed above:

(1)	How long was the period of observation?  The period of observation was during a bride price ceremony and may be expected to be many minutes, perhaps even more than an hour.
(2)	In what light was it made?  The accepted evidence is that, although it was late in the day, it was still light.
(3)	From what distance was it made?  The distance from which the accused was identified by each witness obviously varied but was not explored with each of those witnesses.
(4)	Was there anything about the person observed which would have impressed itself upon the witness?  The conduct of the accused, his brother and his father was such that it is highly likely that what occurred would have made an impression on the witnesses who gave identification evidence.
(5)	Was there any special reason for remembering the person observed?  Yes, as indicated in (4) above. 
(6)	How long afterwards was the witness asked about the person concerned?  This is another question that was not explored with any of the State’s three witnesses.  However, as the evidence suggests the accused went to the Police four days after the incident, it is reasonable to expect that the State’s witnesses were asked about the accused within a week of the incident. 
(7)	How did the description then given by the witness compare with the appearance of the accused?  No description was sought or obtained during the evidence.

32.	Other relevant considerations are that the identification evidence was recognition evidence, since the accused was known to the witnesses.  In other words, they were not identifying a stranger.  Further, each of the three witnesses who gave identification evidence said they were related to the accused and that evidence was never contested.

33.	 It must also be observed that the identification evidence came from three witnesses.  The probative value of identification evidence usually increases with the number of witnesses.  For example, if there is a one in ten chance that a witness is mistaken, there is a one in a hundred chance that two witnesses are both mistaken and a one in a thousand chance that three witnesses are mistaken.

34.	For theses reasons, the Court is satisfied that the accused was accurately identified as being present at the time when his brother struck the victim with an axe and killed him.

35.	Secondly, the alibi defence.  Since the accused had a right to silence, it could be said that he was not obliged to tell the Police where he claimed he was at the time of the offence.  Accordingly, the Court does not hold that against the accused although common sense does suggest that an innocent person would claim he was not present when questioned about a serious criminal offence.  

36.	However, the Notice of Alibi was clearly deficient because it failed to indicate what the accused claimed he was doing at the time of the offence.  There is no satisfactory reason before the Court as to why those details were not included.  Potential explanations are (1) that the accused did not want to give advance notice to the prosecution of what he would claim, (2) he had not decided what would be his alibi evidence at the time when that notice was prepared, and (3) he did not want to be “pinned down” by those details which could provide a basis for rebutting his alibi defence if he gave evidence inconsistent with what was said in that Notice of Alibi.

37.	The evidence of the accused and his mother cannot sensibly be accepted. That evidence certainly cannot be preferred to the evidence of the three witnesses for the State.  It must follow that the alibi defence must be rejected as false.  Lies told with to avoid guilt has been held to amount to corroboration of the State’s case: John Jaminan v The State [1983] PNGLR 318.

38.	Thirdly, did the role played by the accused render him guilty of wilful murder?  As the evidence warrants a finding that the accused aided his brother by saying words of encouragement, the Court is satisfied that s 7 of the CCA applies to deem him guilty of the offence with which he has been charged.

39.	In addition, it is clear the accused, his brother and his father had a common purpose of attacking the victim: the accused’s father provided the axe, the accused encouraged his brother to use it, and the accused’s brother did use it.  The death of the victim was a probable consequence of him being struck with an axe.  Moreover, the death of the victim was an extremely likely consequence of the victim being struck in the head, above the eye, with an axe.  Those circumstances satisfy s 8 of the CCA with the result that there is a second reason for deeming the accused to have committed the offence of wilful murder.

40.	Further, the evidence satisfies the Court that the accused, by saying words which encouraged his brother to attack the victim, counselled him to commit the offence of wilful murder which brings s 9(1)(a) into play.  Even if it could be said that the accused was only encouraging his brother to attack the victim, and not to kill him, paragraphs (c) and (d) of s 9(1) of the CCA render it immaterial whether the offence committed by the brother of the accused differed from what the accused counselled. 

41.	As a result, s 9(2) of the CCA also operates to deem the accused to have counselled his brother to commit the offence of wilful murder.  In counselling his brother to commit the offence of wilful murder, the accused was aiding the commission of that offence.

Findings of fact

42.	Based on the evidence, together with the assessment of that evidence, and having regard to the submissions made by the lawyers, the Court makes the following findings of fact:

(1)	Pastor Newman Ikis, Alo Pando and John Pyakea are each related to the accused.
(2)	Between 6pm and 7pm on 7 May 2022, in a field at Pausa village, there was a bride-price ceremony which involved pig-killing and the distribution of pork meat.
(3)	As that was the bride price for Kevin Ambi, his younger brother (Junior Ambi) was also present.
(4)	Other people present included Pastor Newman Ikis, Alo Pando and John Pyakea.
(5)	The accused, his brother (Ben Sikin), and their father (Sikin Wapea) were also present at that time.
(6)	When a fight erupted between Ben Sikin and Junior Ambi, Sikin Wapea gave Ben Sikin an axe.
(7)	At that time Ben Sikin was under the influence of liquor. 
(8)	When Junior Ambi was able to get hold of that axe, he obeyed Sikin Wapea’s request to give the axe back, and it was returned to Sikin Wapea.
(9)	From then on, Junior Ambi was not holding any weapon.
(10)	Sikin Wapea then gave that axe to Ben Sikin.
(11)	Ben Sikin took that axe and went to attack Junior Ambi.
(12)	At that time, the accused said words to the effect: “attack him more”.
(13)	The accused thereby aided the commission of the offence by counselling Ben Sikin to strike Junior Ambi with that axe.
(14)	At that time, Sinkin Wapea and Ben Sikin and the accused had a common purpose of attacking Junior Ambi with an axe.
(15)	Ben Sikin used that axe to strike Junior Ambi on the left side of the head, above the eyebrow.
(16)	Using an axe to strike the body of another person establishes an intention to kill that person.
(17)	Using an axe to strike another person on the left side of the head, above the eyebrow, establishes an intention to kill that person.
(18)	As a result of that use of the axe, Junior Ambi died.

Conclusion

43.	As a result of those findings of fact, the Court is satisfied the State has  proven beyond reasonable doubt that:

(1)	the accused was present when the victim was murdered,
(2)	the victim was wilfully murdered by the accused’s brother, 
(3)	the accused encouraged the commission of that crime, and
(2) 	the accused is thereby deemed to have committed that crime.

44.	Accordingly, the Court returns a verdict of guilty of wilful murder on the indictment and the accused will be remanded to await sentence.

Ordered Accordingly.
__________________________________________________________________
 Lawyer for the State: Public Prosecutor		
Lawyer for the defendant: Public Solicitor