N11523

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 105 OF 2024

THE STATE

v

KIAP YAKA
(NO 1)

WABAG: ELLIS J
13, 14 OCTOBER 2025 

CRIMINAL LAW – WILFUL MURDER – s299 (1) CCA – Trial – Accused used gun to shoot victim in the chest – Accomplice used gun to shoot victim in the thigh – Identification evidence accepted – Alibi defence rejected – Accused found guilty of Wilful Murder – Remanded for Sentence
Facts
The offender shot the unarmed victim in the chest with a gun.  His accomplice used a gun to shoot the victim in the thigh.  The victim died from those inflicted injuries.

Held
(1)	Unchallenged identification evidence accepted.
(2) 	Alibi defence, not put to State witnesses, rejected.
(3)	Accused and accomplice had common purpose.
(4)	Victim died due to inflicted gunshot wounds.
(5)	Accused guilty of wilful murder.

Cases cited 
Biwa Geita v The State [1988-89] PNGLR 153
Jaminan v The State (No 2) [1993] PNGLR 318
John Beng v The State [1977] PNGLR 115
John Jaminan v The State [1983] PNGLR 318 
Ono v The State (2002) SC698
State v Meriam [1994] PNGLR 104
The State v Simon Ganga [1994] PNGLR 323; N1232

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

1.	ELLIS J: 	Kiap Yaka (the accused), of Kanomanda village in Kompiam, Enga Province was charged that, on the 4th of September 2022 at Kanomanda village, he wilfully murdered Nanes Ipati.  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.	The State’s case was that the accused shot the victim in the chest, that his Nyeta Pundi (the accomplice) shot the victim in the left thigh, and that the victim died as a result.  The accused raised an alibi defence.  There was no effective challenge to the identification evidence and the accused’s alibi defence was never put to either of the State’s witnesses.

4.	It was determined that the evidence of the State’s two witnesses should be accepted that the evidence of the accused should be rejected.  Further, that the accused and his accomplice had a common purpose of killing the victim by each shooting him with a gun, with the result that the accused was liable not only for the shot which he fired but also for the shot fired by his accomplice. 

Evidence for the State

5.	The record of interview with the accused was admitted as Exhibit A.  The tender of medical evidence was rejected because (1) it did not include any evidence from a qualified doctor, (2) it did not reveal the qualifications and/or experience of the authors – a health extension officer and two nursing officers, (3) the first of those three pages purported to give evidence of what occurred at the time the victim was shot, (4) the second suggested the author witnessed the killing, (5) the third referred to conclusions based upon an examination that were said to be in an annexed report that was not annexed, and (6) none of the authors was available to give evidence.

6.	Two witnesses were called: Kangu Nanes and Maggy Nanes.

7.	Kangu Nanes said he was at Erecu (the spelling of that place was never indicated) at 7am on 4 September 2022, and that he was preparing food while others were gardening.  He said that the accomplice shot his father (the victim) on his left thigh, at a time when he was about 5 metres from the victim and about 10 metres from the accomplice.  His evidence was that there was a second shot by Kiap, who shot the victim in the chest, from about 5 metres away.  He said that the reason for those shots was a land dispute.  He also used the name Koikam to describe the place where the gardens were located and said they were more than 1 kilometre (km)from his house.

8.	In cross-examination, the witness said it took three hours to walk from his village to Erecu.  However, when it was put to him that if he started from his village at 7am he would not arrive until 10am, he replied that if he started at 7am he could be there by 8am.  When it was put to him that it took three hours to get from his village to Erecu, he replied: “No, it takes three hours to reach that village” and the distinction between Erecu and “that village” was not explored further.  It was noted that this witness told the Polce that the accomplice shot the victim in the chest, not the left thigh.  He said the Police must have mistaken him.

9.	This witness said that the accomplice was his cousin and that the accused was from the same tribe, but from a different sub-tribe.  He denied a suggestion that he was not present at the time of the shooting of the victim.  It must be noted that the cross-examination of this witness did not include any suggestion that the accused was not present at the time of the incident.  Nor was this witness given a chance to respond to the alibi defence of the accused.

10.	In re-examination, evidence was given that the witness made his statement to the Police in the Engan language after which it was read back to him, with an interpreter present.  He also said he did not have a watch when he went to the garden on the day in question.

11.	Maggy Nanes gave the same name for his village, Kanomanda.  He referred to the place where the garden was as Toles (the spelling of that place was also never indicated).  His evidence was that he set out for that garden at about 5am or 5.30am and that he arrived there at 6am.  He said the accomplice shot his father in the thigh and that the accused shot his father in the chest.  His evidence was that nobody else, other than his brother, was around when his father (the victim) was shot twice.  He identified the accused as the person who shot the victim in the chest, said he knew him before the date of the incident, and that he is related to him, saying “we are like family”.

12.	When cross-examined, this witness said he left home around 5am, arrived by 6.30am and that the incident occurred at around 7am.  He suggested the distance from his home to the garden in question was around two kms.  An attempt was made to suggest that his brother had said the garden was at Erecu and he had said Toles, but this witness later gave evidence that they were the same place and that answer, which was not challenged during cross-examination, was repeated in re-examination.  This witness denied the repeated suggestion that he was not present when the incident occurred.  His evidence was that he only knows the accused by his first name of Kiap and said they are from the same village.  When pressed to give a surname for the accused his answer was that his other name is Govma (again, the spelling of that name was never indicated).

Evidence for the defence

13.	The statement of the first State witness to the Police was admitted at Exhibit 1.  While a Notice of Alibi was filed, it provided an alibi for 24th September 2022 and not the date of the alleged offence, which was 4th September 2022.  Although that Notice suggested the accused and Jim Yakap would be called, only the accused was called in the defence case.

14.	The accused gave evidence.  He suggested that on 4 September 2022 (which was a Sunday) he was at Kundiulam which was said to be about 7 km from Kanomanda.  He said he went there on Saturday (ie the day before) to help Jim Yakap build a house.  He said the house was incomplete “and there was trouble on Sunday”.  When asked what kind of trouble, he replied: “I don’t know but he told me there was trouble and we did not complete the house”.  He said he then went to his village where he claimed compensation was paid and that he was told the victim had been killed by the accomplice (ie Nyeta Pundi).  He said he did not know the reason why the victim was killed.  He claimed he was falsely accused and said he is from the same tribe as the victim, but from a different sub-tribe.  

15.	It was further asserted by the accused that he went to “buy stock”, that he had K3,050 with him, which money was said to have been taken by “the CID”.  He claimed he only received K50 back and that they kept K3,000.  He suggested the Police had no good reason to arrest him, and that they only wanted to take his money.

16.	When asked if he told the Police he was someone else at the time of the killing, the accused replied: “They never asked me any question in relation to that.  I would have told them if they asked me.”  He went on to say he told the Police he was away from his village.  When asked if he told the Police he was in Kundiulam village, about 7 kns from his village, the accused suggested they did not ask him about that and he did not tell them about that.  The accused suggested the two State witnesses were telling lies.  He accepted that he knew the victim before this incident.  When asked if he was related to the victim, he said they were from the same tribe, but different sub-tribes.

17.	When asked why he said the State witnesses lied to the Court, he gave a non-responsive answer then said “This witness and the other fellow, they conspired and took my money.  That is why they gave false evidence against me.”  The next two questions and answers are set out below:

Q	The second State witness also said he saw you shoot the victim with a single shot gun.
A	He was telling lies.

Q	Why do you say he lied?
A	I am confused.  I do not know what sort of gun I used on that day.

18.	When the question of why he was alleging that witness lied was repeated a second and third, the accused again gave non-responsive answers. 

19.	In re-examination, an attempt was made to have the accused explain what appeared to be an admission:

Q 	When you said: “I don’t know what kind of gun I used”, what do you mean by that?
A	I have no idea.

Submissions for the defence

20.	It was contended that there were weaknesses in the evidence of the State’s two witnesses as to (1) the name of the place where the incident occurred, (2) the distance from where they travelled to that place, (3) whether other persons were present, apart from the two State witnesses and the victim,  and (4) the oral evidence of the first witness was that the accused shot the victim in the thigh and the accomplice shot the victim in the chest, but his statement had those matters the other way around.

21.	Submissions were made that neither the first State witness nor the second State witness were present at the time of the incident.  It was contended that the evidence of the State witnesses should not be accepted, and that the evidence of the accused should be accepted because the evidence he gave matched what he said in his record of interview.  

22.	In short, the defence case was that (1) the State’s case had not been proved beyond reasonable doubt, and (2) the alibi defence should be accepted, with the contended result that the accused should be found not guilty.

23.	It is worth noting that no explanation was provided for the accused’s answer: “I do not know what kind of gun I used that day.”

Submissions for the State

24.	The State’s case was that the victim was shot by two persons, and it was noted that there was no dispute that the victim died on the date of the incident.  The Court was reminded that the State’s two witnesses fled the scene after the victim was shot twice.  It was submitted that, although there were inconsistencies on minor matters, they were consistent on the major points in their evidence.  It was noted that what the first witness said in his oral evidence as to the gunshots was consistent with the evidence of the second witness.

25.	A submission was made that medical evidence was not necessary as it was clear that the victim dies of the two gunshot wounds that were inflicted and that aspect of the State’s evidence was never contested.  It was noted that neither of the State’s witnesses was cross-examined in relation to the accused’s alibi.  Further, that he had not told the whole story, which he gave in evidence, when he was questioned by the Police.  It was contended that the accused’s alibi was false which was said to provide support for the State’s case.  The Court was urged to return a guilty verdict.

Submissions in reply

26.	Mr Toke directed the Court’s attention to the accused’s answer to question 13 in his record of interview and it was noted that a State witness said the accused’s name was Kiap Gavman, instead of Yaka. 

Relevant law

27.	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) SC 698. 

(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?

28.	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.  

29.	That concept is given statutory effect in s 8 of the CCA, which provides:

“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”.

30.	Fairness requires that, if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness during cross-examination.  Failure to do so constitutes acceptance of that evidence in chief, which cannot then be impugned during a final address.  When an accused gives evidence of matters which ought to have been put in cross-examination to one or more State witnesses, but were not, that failure operates to damage the credibility of the accused: State v Meriam [1994] PNGLR 104 and Jaminan v The State (No 2) [1993] PNGLR 318.  Further, failure to put an alibi defence in cross-examination of the State witnesses reduces the weight to be given to that alibi defence: The State v Simon Ganga [1994] PNGLR 323; N1232.

Issues

31.	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)	Does the evidence establish beyond reasonable doubt that the accused unlawfully murdered the victim and that he intended to do so?

Assessment of witnesses

32.	Kangu Nanes gave plausible evidence of what he saw.  His identification evidence of the accused was never challenged, other than a suggestion that he was not present when the shooting occurred.  Nor was the accused’s alibi ever put to this witness, with the result that he did not have a chance to either respond to it or to refute it.  Further, it was never suggested to this witness that his father did not die from the gunshot wounds.

33.	There were three potential discrepancies in the evidence of this witness.  First, the time it took to get from his village to the area where the incident occurred.  However, his evidence was that, if he started at 7am he would be there by 8am and that is consistent with the only evidence of the distance, being 2 kms.

34.	Secondly, the statement of this witness to the Police was out of step with (1) his oral evidence, (2) the statement his brother gave to the Police, and (3) the oral evidence of his brother. Potential explanations are that he was mistaken when he spoke to the Police or that a mistake was made at some stage by the Police when taking that statement and having it interpreted and read back to the witness.  This aspect is of less moment because there was a clear common purpose between the accused and his accomplice, with the result that s 8 of the CCA operates to render each of them liable for both shots.  This discrepancy does not alter the evidence that this witness was present, his unchallenged identification evidence, or his evidence that two shots were fired, one by the accused and one by his accomplice, and that the victim was struck in the left thigh and the chest.

35.	Thirdly, there is the unexplained difference of this witness saying he was cooking for those working in the garden while his brother said they were cooking for themselves.  The State conceded such a discrepancy but that is a peripheral matter that does not alter the firm evidence of the presence of the accused and his accomplice and that his father was killed buy two shots, one fired by the accused and one by his accomplice.

36.	Maggy Nanes was also criticised by the defence submissions.  Apart from his saying he was only cooking for three people, a recollection more than three and a half years after the incident, there was nothing untoward in his evidence.  First, he said that Erecu and Toles were the same place.  Secondly, his evidence walking between 5am to 5.30am and 6am was not materially different to his later evidence of 5am to 6.30am.  Both those answers are consistent with both his estimate of a 2 km distance and the one-hour time estimate of his brother. It is noted that estimates of time by the State witnesses were estimates by people without watches.  The witness venturing the family name of Govma for the accused carries little weight when he said he only knows that accused by the name Kiap.

37.	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.

38.	There is difficulty in rejecting the identification evidence when it was not challenged.

39.	The accused gave evidence.  It is noted that his Notice of Alibi said he was building a house with Jim Yakap on 24 September 2022, despite the evidence being that the incident occurred on 4 September 2022.  In favour of the accused, that discrepancy is not held against him as (1) it appears to be a typographical error, and (2) the State did not tender the Notice of Alibi.  Likewise, the failure to call Jim Yakap is not held against the accused as the Notice of Alibi was not tendered.

40.	There are multiple impediments to accepting the alibi defence of the accused:

(1)	In his record of interview, he did not avail of his right to silence, with the consequence that the State is entitled to use his answers against him.
(2)	His answer to question 13 only said he was at “the other village” and did not indicate either which village or what he claimed he was doing,
(3)	His answer to question 20 commenced with “I was at my village …” which does not marry with the answer to question 13.
(4)	The failure to challenge the identification evidence weighs against the credibility of the accused and acceptance of the accused’s alibi evidence.
(5)	The failure to put the accused’s alibi to either of the State witnesses decreases the weight that can be given to his alibi evidence.
(6)	The suggestion that the Police took K3,000 from him was later changed to the two State witnesses conspiring to take his money.
(7)	The unexplained answer: “I do not know what sort of gun I used on that day.” tells against the accused.
(8)	The accused was unable to provide any convincing reason why the State witnesses would lie to implicate him.
(9)	That was despite him being asked that question three times.
(10)	His non-responsive answers suggest he was trying to avoid answering questions that challenged the strength of his alibi defence.

41.	It is sufficient to here note that the evidence of the State’s witnesses is preferred to that of the accused.  The assessment of the evidence of the three witnesses impacts on the Court’s consideration of the live issues in this trial. It is also noted that the State’s evidence of the death of the victim was never challenged and that issue was never raised by the accused, either in evidence or in submissions.  It must be observed that a Court is entitled to have regard to not only the evidence but also to the reasonable inferences from that evidence.

Consideration

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

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

(1)	How long was the period of observation?  This was not explored during oral evidence but appears to be a relatively short period from when the accused and his accomplice arrived and each shot the victim until when they ran away.
(2)	In what light was it made?  The evidence suggests the time of day was about 7am and there was no suggestion it was not light at that time.  There was a suggestion there was smoke between the second State witnesses and the incident but that was convincingly denied as preventing identification.
(3)	Form what distance was it made? The distance appears to have been 10 metres for the first State witness. This topic was not explored with the second State witness, either in evidence-in-chief or in cross-examination. 
(4)	Was there anything about the person observed which would have impressed itself upon the witness?  The accused and his accomplice carrying guns would have been a matter that had an impact on the State’s witnesses.
(5)	Was there any special reason for remembering the person observed?  The use of those guns by the accused and his accomplice would have provided such a reason.
(6)	How long afterwards was the witness asked about the person concerned?  This was also not explored with the State’s witnesses.  It is noted that the statement to the Police of the first State witness, which became Exhibit 1, was dated 1 February 2023, which is almost five months after the incident.  However, identification evidence must have been provided to the Police earlier because the Police would not have arrested the accused without such evidence.  
(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. 

44.	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, both the State witnesses gave evidence that they were related to the accused and that evidence was never gainfully contested. It must also be observed that the identification evidence came from two witnesses.  The probative value of identification evidence is greater when there is more than one eyewitness. 

45.	For those reasons, the Court is satisfied that the accused was accurately identified as being present at the time when the victim was shot twice.

46.	Secondly, the alibi defence.  By reason of the ten matters set out above (in [40]), the alibi evidence of the accused and his alibi defence is rejected as being false.

47.	 Lies told with the aim of avoiding guilt have been held to amount to corroboration of the State’s case: John Jaminan v The State [1983] PNGLR 318.

48.	Thirdly, did the accused unlawfully kill the victim and did he intend to kill the victim? 

49.	It is clear from the evidence that the gun-carrying accused, and his gun-carrying accomplice, had a common purpose of attacking the victim and the death of the victim was a probable consequence of him being shot with a gun, twice, once in the left thigh and once in the chest.  Moreover, the death of the victim was an extremely likely consequence of the victim being shot in the chest with a gun.  Those circumstances satisfy s 8 of the CCA with the result that the accused is liable for the conduct of the accomplice.  As a result, he is criminally liable for both the gunshot to the left thigh and the gunshot to the chest.

50.	Even if it could be said it is not a reasonable inference that a gunshot to the thigh killed the victim, it is a reasonable inference that a gunshot to the chest killed the victim.  The evidence warrants such an inference, and the defence case did not displace that inference.  Accordingly, the Court considers the accused killed the victim.

51.	There was no suggestion the victim was armed or that there was anything to rebut a finding that that the killing of the victim was unlawful.

52.	An intention on the part of the accused to kill the victim arises from (1) his use of a gun as a weapon, (2) his being in the company of an accomplice who was also carrying a gun, and (3) the firing of both those guns at the body of the victim.

Findings of fact

53.	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)	By early September in 2022 there was a land dispute involving the victim, the accused and his accomplice.
(2) 	Early in the morning of Sunday 4 September 2022 the offender and an accomplice each shot the victim with a gun.
(3)	That involved a common purpose on the part of the offender and his accomplice.
(4)	The offender shot the victim in the chest.
(5)	The accomplice shot the victim in the left thigh.
(6)	The death of the victim was caused either or both those gunshots.
(7)	The victim was thereby killed both unlawfully and intentionally by the accused.

Conclusion

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

(1)	The offender was present at the time when the victim was unlawfully killed.
(2)	The offender tried to rely on an alibi defence that was false.
(3) 	The victim was unlawfully killed by the accused, either by the shot he fired or by the shot fired by the his accomplice, pursuant to a common purpose.
(4)	That common purpose was an intention to kill the victim by shooting him.
(5)	The accused killed the victim both unlawfully and intentionally.

55.	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