N11592

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 968, 969 & 970 OF 2025

THE STATE

v

GITAS UPHAS,
PRAIS YANGAMBAO, &
LIU NANDUI 
(NO. 1)

Porgera: Ellis J
2025: 12th, 13th, 14th, 17th November 

CRIMINAL LAW – MURDER – s300(1)(a) CCA – Trial of three accused – identification evidence accepted – alibi defences rejected – each accused guilty of murder – role played by each accused considered – each remanded for sentence 

Facts
A group of men attacked the victim, who was punched and struck with sticks, stones and a bush knife.  The resulting injuries caused the victim’s death.  Each of the three accused was a member of that group and each of them played a role in that attack.

Held
(1)	Identification evidence accepted.
(2)	Alibi defences rejected.
(3)	Each accused aided the attack which was the cause of the victim’s death (s 7).
(4)	Each accused participated in a common purpose (s 8). 

Cases cited
Awoda v The State [1984] PNGLR 165
Biwa Geita v The State [1988-89] PNGLR 153
Browne v Dunn (1893) 6 ER 67
John Beng v The State [1977] PNGLR 115 
John Jaminan v The State [1983] PNGLR 318
Ono v The State (2002) SC698
R v Kiandri [1967-1968] PNGLR 31

Counsel:
J. Kesan, for the State
L. Toke, for the defendants
		
VERDICT

1.	ELLIS J: 	Three men were charged that, on the 29 January 2025 at Porgera Station, they murdered Simion Nita Napal (the victim).  They each entered a plea of not guilty to the indictment.  

2.	The charge was based on s 300 of the Criminal Code Act 1974 (the CCA) which, so far as is presently relevant, provides as follows:

(1)	Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:-
(a)	if the offender intended to do grievous bodily harm to the person killed …

The State’s case

3.	A bundle of documents which included an Autopsy Report was tendered and admitted without objection, as was the record of interview for each of the three accused.  The documents admitted as evidence in the State’s case were:

Exhibit A	Pages 62 to 82 inclusive from the Police brief
Exhibit B	Record of interview of Gitas Uphas
Exhibit C	Record of interview of Praise Yangambao
Exhibit D	Record of interview of Liu Nandui
Exhibit E	Notice of Alibi for Gitas Uphas
Exhibit F	Notice of Alibi for Prais Yangambao
Exhibit G	Notice of Alibi for Liu Nandui

4.	Ruben Kinz said he was present at Porgera Station between 5pm and 6pm on 29 January 2025 when he saw an attack take place at James Paraia’s place, being a place where gold is traded.  He identified the victim as Simion Nita and said he recognised four of those who attacked him, naming the three accused plus Oki Barabas.  He made an in-court identification of each accused by pointing to each of them when their name was called.

5.	His evidence was that he did not know the names of the others in the group that attacked the victim but that he knew them by their appearance.  He said he knew Uphas as they live in the same area, saying he was a teacher.  Also, that he knew Yangambao as they used to live at the same area.  His evidence was that Nandui is his cousin, and that they have previously been living in the same area.

6.	When asked that he saw Uphas do, this witness said he punched him and threw a stone at him, which landed on his shirt.  Further, that Nandui struck the victim on his back with a piece of firewood.  He said that the next blow was struck by Oki Barabas with a bush knife.  Yamgambao was said to have been talking to the people who were there at that time.  This witness also said he heard the victim say: “I am not your enemy.  Don’t attack me.”  He said he did not know the reason for the attack.

7.	This witness said he was on the other side of the road at the time of the attack, about 10m to 16m away.  He said these three accused were not his enemies.  His evidence was that (1) one of the sisters of Uphas is married to his father, (2) that he is not related to Yangambao, and (3) that Nandui’s aunt is married to one of his uncles and that he regards him to be a cousin.

8.	When cross-examined, this witness expressed the view that a curfew was not in place at the time of the attack.  He said that, when the curfew applied, it was between 6pm and 6am.  He also said that the attack occurred between 5pm and 6pm and denied that he had left the area of the attack by 5pm.  As to his understanding of the reason for the attack, this witness said there had been a fight earlier.  He did not accept he could not recognise people because it was getting dark.

9.	This witness was questioned in relation to the statement he made to the police.  He said the name of Jacky Tanda was given to him by relatives of the victim.  It was put to this witness that he said Uphas struck the victim with a stone on his belly, but his oral evidence referred to the chest.  The witness said the blow was on the victim’s shirt and that was what he told the police.  Further, it was noted that, in his statement, he had said Nandui struck the victim with a stone but in oral evidence he had said firewood.  Next, it was said that, in his statement, he said Yangambao used stone and wood, but he was now telling the court he did nothing.  The response was that Yangambao talked at the same time as he attacked him.  

10.	It was also said that, in his evidence-in-chief, this witness said that Uphas and Nandui did not say anything but, in his statement, he said Uphas said: “kill that man”.  The response of the witness was that he was only asked what object was used, and that he only answered the questions that were asked.

11.	When this witness denied that his statement only said what the victim’s relatives told him to say, he replied that he said what he saw.  That statement was tendered and became Exhibit 1.

12.	When the alibi defence of each accused was put, this witness maintained his evidence that they were each present and participating in the attack on the victim.  He said he did not know about any earlier incident involving Oki Barabas and the victim.  He said that Oki Barabas and these three accused had been drinking together.  He denied that he was giving evidence against the accused because of tribal fighting.  He also denied that the victim was his close friend.

13.	Re-examination explored how the statement of this witness was prepared.  It was said that the statement was given in Pidgin, was written in English and then read back to the witness by the police officer who took the statement.  When the statement was read back, it was said that the police officer mentioned the names of Jack Tanda and Nick Leme.  He maintained that his statement was true as to what happened and said that his oral evidence was the result of the questions that were asked.  Finally, this witness denied there was conflict between his tribe and tribe of these accused.

14.	Toni Muli said he was standing on the opposite side to the road to where the attack on his brother by what he called “a crowd of men” occurred. He said that those he could name were the three accused and Jacky Tanda.  His oral evidence was that Uphas got a stone and hit the victim in the chest, that Nandui hit him with firewood, then “a fellow from Porgera” cut him with a bush knife, that Yangambao got a stone and threw it at him, and that Leme also hit the victim with a piece of firewood.  He said that, while the victim was lying down, “everybody threw sticks and stones at him”, that the victim was taken to Paiam and then from there to Wabag Hospital where he died.

15.	When asked if those who attacked the victim said anything, this witness recalled that Uphas said “That’s him. Kill him.”  He said he did not see or hear any other attacker saying anything.  However, he said the victim said: “I am not your enemy.  Why are you attacking me.”

16.	This witness also identified each of the accused when they were named.  He said Uphas is from a neighbouring tribe, and that Yangambo and Nandui are from the same tribe, along with Leme and Tanda.  His evidence was that he was about 19m away from the attack.  It was the evidence of this witness that he did not do anything about the attack as he was alone and was scared.

17.	Omitting matters of no consequence, the cross-examination of this witness elicited that this witness estimated that about 30 people attacked the victim, that they came together as a team, and that they all took part in the attack.  His view was that the attack occurred because of a tribal conflict.  He said the attack occurred around 5pm and there was still daylight.  He maintained that he saw the accused and was able to identify them from where he was at the time of the attack, that there was only one vehicle in the vicinity and it was stopped, far from the incident, and that he was able to identify those he knew.

18.	This witness estimated that the attack lasted about 20 minutes and that he went home at about 5.25pm, running away because he feared for his life as it was his brother had been attacked.  When it was put that there was a curfew that commenced at 5pm, the witness said it was 6pm to 6am.  He also denied that shops close at 4pm, saying that happened around 6pm.

19.	After accepting that Yala Kulimbo was his cousin, he said he did not know that there was a fight earlier that day between Yala Kulimbo and Oki Barabas.  Again, the circumstances of the preparation of his witness statement were explored.  It was put to this witness that in his evidence-in-chief he said Upas hit the victim with a stone on his chest but that, in his statement, he said it was with a fist on his belly.  Also, it was put that, in his statement, he said Nick Leme hit the victim with timber, causing him to fall.  However, that was not an accurate representation of what was said in that statement.  The witness repeated his evidence, as appeared in his statement, that Nick Leme assaulted the victim with a stone.

20.	Tonny Muli said the “fellow from Porgera” was Oki (Barabas).  He denied his evidence was what he was told by someone else, saying he was telling what he saw.  When it was note that the oral evidence of this witness was that Nandui hit the victim with wood and the statement said a stone, this witness affirmed his oral evidence, saying that he told the police that Nandui hit the victim with firewood.  The statement of this witness was tendered and became Exhibit 2.

21.	Tribal fighting was denied by this witness as a reason for his evidence.  He said his evidence was what he saw.  When the alibi defence of each accused was put, this witness maintained that each of the accused was present and was seen by him to have participated in the attack on the victim.

22.	Re-examination only served to confirm the evidence-in-chief of this witness.

23.	Rex Kiako said he was in a shop between 5pm and 6pm on 29 January 2025 when he heard a noise, so he came out and was standing at a gate and the victim was about 3m from that gate.  When a lot of people came and attacked the victim, this witness said he went inside the store where he worked.  

24.	His evidence was that Uphas attacked the victim first, saying he punched him on the belly, but it is noted that, when he gave that answer, he pointed to his chest.  He said Uphas then picked up a stone and hit him on the chest.  He said that Yangambao go a piece of timber or firewood and hit the victim.  He also said he recognised Landui who he said attacked the deceased with firewood.  His evidence was that, when the victim was attacked, he did not say anything.

25.	This witness also correctly identified each accused when their names were called.

26.	When cross-examined, this witness did not accept that, when he was inside the premises, he was unable to identify who was attacking the victim.  He denied that there were any passing vehicles during the attack.  Again, the circumstances of the preparation of his witness statement were explored.  When a conflict was suggested as to whether Uphas hit the victim with his fist or a stone, he explained that Uphas first punched the victim then picked up a stone and hit him.  In relation to Yangambao, it was noted that the statement suggested he used a stone, but the oral evidence was that wood or timber was used.  Next, it was noted that the oral evidence of this witness was that the victim did not say anything, but the statement suggested the victim said: “Why are you people attacking me, I have not done anything wrong and I am not your enemy.”  The statement of this witness became Exhibit 3.  This witness also said the incident occurred at around 5pm and denied that shops closed around 4pm.  He denied having any knowledge of a fight involving Oki Barabas and Yala Kulimbo early on the day of the attack.  As with the other two witnesses, this witness denied the alibis asserted by the accused. 

27.	In re-examination, the witness said he gave his statement on 4 February 2025, about a week after the incident, that it was given in Pidgin and the document, in English, was interpreted for him by the same police officer who took that statement.  He said: “I told my story to the government for them to write it down for me”.

The case for Gitas Uphas

28.	It is necessary to note that, prior to the evidence-in-chief of this accused, any witnesses were directed to leave the court and not remain close to the court. The court proceed to hear the evidence-in-chief of Gitas Uphas then adjourned.  When the Court resumed the next morning, the following remarks were recorded: 

In a recent case in Wabag, the lawyer for these accused suggested to a witness that he had been standing near the courtroom such that he was able to hear the evidence of an earlier witness.  In this case, at the outset of the State’s case, the Court directed that people who was going to be a witness should leave the court and that occurred.  A similar approach was taken at the commencement of the case for the first accused, Gitas Uphas.  Markio Topkoli was directed to not sit in the courtroom and not remain near the courtroom so that he could not hear the evidence being given by Gitas Uphas.

When he left the courtroom. Markio Topkoli was observed to turn left, put on a cap, in an attempt to disguise himself, then walk around to the side of the courtroom and stood close to the window where he remained during the evidence in chief of Gitas Uphas.  After the court adjourned, I checked with my associate who had made the same observations.  All that needs to be done, at this stage, is to put on record what occurred.

29.	Gitas Uphas said he left his village on 28 January 2025 to take up a teaching position at Paiam Primary School, where he was allocated a house, which he said he shared with Michael Topkoli.  He also said that Noah Kasan was his next-door neighbour.  His evidence was that, after a staff meeting, he went to Porgera Station between 10am and 11am, a trip said to be to search for smokes, betelnut, curtains and saucepans.  He said he went with Michael Topkoli and Noah Kasan, and that he returned to Paiam Primary School between 2pm and 3pm.  He claimed he did so because of a curfew which he suggested commenced at 4.30pm or 5pm.  When asked how he returned he said by bus, arriving back at about 3.30pm.

30.	His evidence was that, when he arrived back, Topkoli was doing the cooking while he was putting up curtains with Noah Kasan.  He said they then told stories and shared food, after which they stayed home.  He claimed to know nothing about the attack. When asked if he knew why he was being blamed, he suggested two reasons: (1) his brother, Prais Yangambao had been drinking beer with some people, and (2) there was a tribal fight between two tribes: Palilo and Yop.

31.	When asked how he end up at Paiam police station, he said that, while he was at the Paiam Primary School, on 3 February 2025, the police came and accused him of being involved in the attack.  When asked what he told the police, he gave a non-responsive answer.  When that question was repeated, he claimed he tried to say something to the police, but they forced him into a cell.  He claimed the reason the police gave him was that it was because Prais Yamgambao drank beer in a public place, and that they told him he would be release when Prais Yambangao came in, but they did not release him.  He claimed he did not know why they continued to detain him.

32.	When cross-examined, this witness said he saw Liu Nandui on the day of the attack, but not Prais Yangambao.  He also denied seeing any of the three State witnesses.  His evidence was that he bought three curtains and “one medium teapot, three spoons, that’s all”.  

33.	He agreed that he was picked up at the school grounds on Monday 3 February and said he was put in a cell at the police station.  When asked if he explained his story to the police, this witness gave a non-responsive answer then said “Yes” when the question was repeated.  When asked if he told the police he was in the company of Markio Topkoli and Noah Kasan he again gave a non-responsive answer and then answered “Yes” when the question was repeated.  When asked if they came to the police to support his story, the accused did not answer that question but, when it was repeated, he said: “They came and protested to the police.”

34.	Re-examination only served to confirm that the attack occurred on 29 January 2025 and that the victim died on 3 February 2025.

35.	Markio Topkoli said he was a teacher at Paiam Primary School, having also commenced this year.  He indicated that he and Gitas Uphas shares the same house.  His evidence as to 29 January 2025 was that, after a school meeting between 9.30am and 10.30am, he went to “station” with Gitas Uphas and a neighbour, Noah Kasan.  He said they arrived at about 11am and returned between 1pm and 2pm.  This witness said they arrived back home at about 3.30pm, having travelled both ways by PMV.  He claimed they went home early because they were scared of the police.  He said he cooked while to others put up curtains, that they had dinner around 5.30pm, and that they stayed in the house after that.

36.	Cross-examination revealed that this witness the Gitas Uphas had previously taught together, at another school, for five years.  His evidence of what was purchased was “a kettle, saucepan, cups and spoons and some foodstuffs”, later said to be one saucepan, three spoons and three plates, plus lamb flaps and rice.  This witness said he was present at the school when the police picked up Gitas Uphas.  

37.	As to his whereabouts during the evidence-in-chief of Gitas Uphas the previous afternoon, the questions and answers were as follows:

Q	You were in court yesterday?
A	Yes.
Q	When he (indicating Gitas Uphas) gave evidence?
A	No, I was out of the courthouse.
Q	Where?
A	At the corner, inside the fence.
Q	You were just outside?
Q	No, I did not hear the evidence.

38.	When asked if he went to the police station after he heard that Gitas Uphas had been arrested, this witness gave an unresponsive answer.  It was only after the question was repeated that he said “No”.

39.	There was no re-examination of this witness.

40.	Noah Kasan was also a teacher at Paiam Primary School, saying he had taught there for four years.  He said he accompanied Gitas Uphas to “the station” on 29 January 2025, after an orientation meeting in the morning.  His evidence was that they left at 10am, travelled by bus, went to buy some cooking utensils and curtains, and returned by bus, leaving around 2pm or 3pm and arriving back at the school about 3.30pm.  The evidence of this witness was that he helped Gitas Uphas clean and put curtains.  In answer to a leading question, his evidence was that Markio Topkoli was cooking food at that time.  However, he went on to say, in answer to a non-leading question, that “we cooked food, Markio Topkoli and I helped Gitas Uphas put up curtains”.

41.	According to this witness, they ate dinner between 4 and 5.  He claimed none of them left the house after that, because of a State of Emergency.  He said he went to his house around 5pm, but he then said they were telling stories after eating and that he did not go back to his house until between 7pm and 8pm.

42.	Under cross-examination, this witness indicated that he knew Gitas Uphas before he came to teach at Paiam Primary School.  He said that, when the three of them went to Porgera station on 29 January 2025, Gitas Uphas met friends and relatives, who were greeting him.  He said Gitas Uphas was a leader in his own village.  When asked how many such people Gitas Uphas met that day, he said “a few” but did not elaborate when that question was repeated.  When asked if he recognised some of those people Gitas Uphas met, he gave a non-responsive answer before saying “Yes”.  However, when asked to provide names, he said he did not know the names of any of those people.  This witness said he had dinner of lamb flaps and rice, between 5pm and 6pm, and that Gitas Uphas was with him during that period.

43.	It was the evidence of this witness that he was with Gitas Uphas when he went to the police cells.  He said he was unable to recall why he was arrested, but when the question was repeated, he answered: “The Police said he was involved in a murder case”.  He said the police said that when Gitas Uphas was arrested and it was this witness said that he knew the reason why Gitas Uphas was arrested.  Further, his evidence was that he knew the policeman who arrested Gitas Uphas.  When questions were asked as to whether this witness told the police that Gitas Uphas was with him at the time of the murder, this witness gave excuses for not doing so.

44.	There was no re-examination of this witness.

The Case for Prais Yangambao

45.	Prais Yangambao said he had been living at Porgera station for about three years.  His evidence was that he was at a gold trading place on 29 January 2025, buying gold in the early part of the day, then drinking beer from around 10am. He claimed that Nick Leme, his nephew, told him at 3pm that the curfew is about to start and that he needed to stop drinking beer and go home.  He went on to say that he was drinking with his mates (plural) but then said it was only him and Wilson Angalo.  They were said to have gone to the IPI camp, where Wilson Angelo lives, and to have done so for fear of police personnel.  His evidence was that he arrived there around 3, that “we told them to prepare our meal and we were drinking and sitting together in his place”.  He claimed they did not leave that place.  The given reason was that they were scared of the police as there was a curfew on at that time.  It was suggested by this witness that he went to bed around 8pm at the house of Wilson Angelo.  He denied being involved in the attack which killed the victim.

46.	It is convenient to note that this accused gave multiple unresponsive answers during his evidence-in-chief, which required questions to be repeated.

47.	Cross-examination commenced with the following questions and answers:

Q	That morning, you were buying gold?
A	Yes.
Q	While you were there, did you see Oki Barabas?
A	No.
Q	Later that day, when you were drinking OP, did you see Oki?
A	I did not see him …
…

48.	Shortly thereafter, this accused denied seeking Oki with a bush knife that day.  He also denied a suggestion that, at 3pm, he saw Oki with a bush knife, try to attack Nick Leme. The next two questions and answers are set out below:

Q	Did you tell the police that Oki tried to attack Nick Leme?
A	It was not a bush knife, he was trying to punch him.
Q	Did you tell the police that Oki tried to attack Nick Leme?
A	No.

49.	After denying that he was involved in the attack, Prais Yangambao said he was arrested by the police on 4 February 2025.  When asked if, when he was brought to the police station, he told the police he was with Wilson Angelo, the response of this accused that they never asked him.  When that question was repeated, he said: 

Yes, I did tell them I was with Angalo. They never asked me anything about Angalo.

50.	The evidence immediately after that was as follows:

Q	Did to tell the police you were with Angalo?
A	The CID did not ask me about that and I gave my own story.
Q	You did not tell the police you were with Angalo?
Q	Yes, and I am telling the Court now.
Q	Why not tell the police?
A	He never asked me any question in relation to that.  He never gave me a chance to say or mention his name during the interview.

51.	As to the quantity of alcohol he consumed, this accused said it was about two big bottles of OP.   He said he and Wilson took “two OP beer bottles to his place and we were drinking there”.

52.	There was no re-examination of this Prais Yangambao.

53.	Wilson Angalo, also known as Wilson James, said he lives a Siuyan and has lived in Porgera all his life.  He said that, on 29 January 2025, he travelled from Mount Hagen and reached Porgera around 10am.  His evidence was that, after he arrived in Porgera, Prais Yangambao called him on his mobile and invited him to drink with him.  He said he went to a gold-buying place at James Paraia’s station, and they then drank “OP beer” together.  

54.	After that, he said that “Rocky” came to where they were. Then, one of the sons of Prais Yangambao told them they should go home as there was a curfew.  He claimed that the two of them threw punches at each other after which “Rocky” wanted to attack the son, but Prais Yangambao stopped him.

55.	It was the evidence of this witness that he and Prais Yangambao went to the IPI camp at around 3pm and that, upon arriving, his parents were preparing food so they ate with them.  He claimed that they were both in the IPI camp between 5pm and 6pm.  He also suggested that the curfew now starts at 5pm or 6pm but then it started around 2pm or 3pm.  This witness claimed they did not go anywhere after that, and that Prais Yangambao slept in his vehicle while he slept inside.  When asked if he was related to Prais Yangambao, Wilson Angalo said: “He is my best friend, a friend that we share smokes or betelnut or anything, and we travel to Mount Hagen together sometimes”.  When that question was repeated, Wilson Angalo said he was not related to Prais Yangambao.

56.	The first thing that was clarified in cross-examination was that “Rocky” was a reference to Oki and that the person referred to as a son was Nick Leme.  This witness was asked about Oki’s conduct that day.  When it was suggested that Oki had a bush knife when he tried to attack Nick Leme, the reply was: “At that time he did not have any bush knife.”  This witness denied being present when the victim was attacked, later the same day.

57.	When questioned about the quantity of beer he and Prais Yangambao consumed that day, Wilson Angalo sought refuge in saying they got two beers, took two home and that he could not recall after that as they were under the influence of liquor.  He claimed he learned the next day that Prais Yangambao had been charged with murder when “somebody called on the phone, I don’t know who”.  He said that, at the time Parais Yangambao was charged, he took his sick mother to Wabag Hospital.  He also said he did not go to the police to tell them that Prais Yangambao was with him on the day of the attack because Prais Yangambao had been taken to Baisu.

58.	Re-examination comprised three questions going to the consumption of alcohol that day which did not materially add to the evidence.

The case for Liu Nandui

59.	Liu Nandui said he lives with his family at DPI station and that, in the morning of 29 January 2025, he was working in a gold-buying business.  His evidence was that he left that place on that day at about 4pm, claiming there was a curfew that, at that time, started between 5pm and 6pm.  He claimed he arrived home about 4.20pm or 4.30pm, having bought a packet of rice, chicken and some vegetables.

60.	He said he stayed at his house with family members and named those present at that time as Buka Kerain, Newman Saka, Rayleen Nandiu, Angelyn Paul.  He claimed he was at home between 5pm and 6pm, that they were telling stories and then slept there together.  When asked how far his house is from the station, after a lengthy answer, he said 300m.  He said he did not go out that night because of the curfew, that his wife cooked the food, and that they ate around 7pm or 8pm.  He denied being involved in the attack on the victim and suggested the victim is his friend, not his enemy.

61.	It was not until cross-examination that this accused mentioned that he met Gitas Uphas on the day of the attack.  When asked, he said: “Yes, we were together”.  He claimed he gave K100 to Gitas Uphas so he could buy cooking utensils. 

62.	There was no re-examination of this witness.

63.	Buka Kerain said he is from Tsak Valley but he is currently living at DPI station, where he said he lives with Liu Nandui and others, who he named as Newman, Angelyn and Rayleen.  When asked how long he has been living in Porgera, he said: “I sometimes go to my village and then come back”.  When first asked if this was his first time to be in Porgera, he gave a non-responsive answer.  When that question was asked a second time, he answered: “In February this year”.

64.	This witness then went in to say that on 29 January 2025 he was in Porgera and the gave evidence of going to the same station as Liu Nandui and then returning home at around 4pm, claiming there was a curfew that starts at 5pm.  He said that Angelyn and Rayleen were there when he arrived, but he said he could not recall when Liu Nandui arrived home.  However, when that question was repeated, he then suggested Liu Nanduoi arrived 15 minutes after him.  He claimed that they were in the house together between 5pm and 6pm, that they ate rice, chicken and cabbage, that had been provided by Liu Nandui.

65.	The brief cross-examination of this witness is set out in full below:

Q	You told the court that from time to time you go between Porgera and Sapos?
A	Yes.
Q	I put that in January 2025 you were not here in Porgera, you were in your village?
A	I was here.
Q	You told court you came here in February 25?
A	 Yes.
Q	How were you here to witness something that happened in January?
A	I heard that Liu Nandui was one of those alleged to have killed so I had to make my way up here to testify in court.
Q	You came here in February 2025 and that was well after the attack? 
A	I usually go to my village back and forth.
Q	You came here in February, so you were not here?
A 	In January I stayed in my village and came here in February. 

66.	Re-examination sought to explain away those answers.  When asked if he was familiar with the months of the year, the answer was not responsive. It was not until that question was repeated that the witness said: “I am not clear”.  

67.	The fourth question and answer are set out below:

Q	Why tell court you came here in February which is the second month?
A	The incident took place here.  I do not know about it.  I came on my own.

68.	In answer to the final question, this witness suggested that his evidence that he was with Liu Nandui on 29 January 2025 was true.

69.	Newman Saka said he lived in the DPI camp and that he was in Porgera in January 2025.  He said he lives with Liu Nandui.  His evidence was that he was with Liu Nandui on 29 January 2025 at a place where gold is traded.  It was said that Liu was inside a building and he was outside.  He said he went home at 4.15pm, claiming that it was still daylight and he could tell the time. When asked who was in the house he said: “Angelyn, Rayleen and Liu”.  He said he went home and stayed home and that Liu Nandui was in the same house as him between 5pm and 6pm that day.  He claimed he did not go out that evening, because of the curfew, and that he slept in that house.

70.	When cross-examined, he said he went to the gold trading place where Liu Nandui was at 7am and stayed with him all day.  He claimed that Liu Nandui went home first and that he followed him.  The questions and answers which mentioned Buka Kerain were as follows:

Q	You went home, Liu Nandui was there and Buka Kerain also lived there?
A	Yes, we were together.
Q	Bua Kerain was not there that afternoon?
A	No, we were together at home.

71.	Next, it was suggested that he saw Liu Nandui at the home at 4pm, saying it was still daylight and there was sun.  When asked to point to where the sun was at that time, the witness point directly up to the ceiling, as if the sun was directly overhead.

72.	In re-examination, it was said to this witness that, when asked where the sun was, he pointed up.  His reply was: “No.  The sun was about to be setting.” 

73.	Angelyn Paul was listed as a witness on the Notice of Alibi for Liu Nandui but was not called to give evidence.

74.	Rayleen Nandiu was said to have been with this accused at the time of the attack but was not named in the Notice of Alibi and was not called to give evidence.

75.	Following the completion of the evidence the Court adjourned until the next morning, to provide time for the preparation of closing submissions.

Submissions for the accused

76.	After noting that the documentary evidence included an autopsy report and photos, Notices of Alibi, and witness statements, oral submissions were made under two headings, namely the identification evidence and the alibi defences.

77.	The points made in relation to the identification evidence may be summarised as follows, numbering them to facilitate subsequent reference to them:

(1)	There was a large crowd of more than 30 people, on a highway.
(2)	The period of the attack was said to be between 20 and 30 minutes.
(3)	The incident was being observed from the middle of the road.
(4)	It should not be accepted that there were no passing vehicles.
(5)	The distance of the witnesses from the attack was as much as 19 metres.
(6)	The State’s witness did not properly identify the accused.
(7)	Since witnesses escaped, for fear of their lives, they were unable to observe.
(8)	The State’s witnesses were selective because they only called three by name.
(9)	They planned to name these three accused because they were their enemies.
(10)	Despite being local, the State’s witnesses could not identify other participants.
(11)	They picked these three accused due to tribal warfare.
(12)	As the accused were not present, they could not have been correctly identified.
(13)	The circumstances of the light and the highway precluded identification.
(14)	The statements of the State witnesses impeached their credibility.
(15)	As their evidence was unreliable, other independent witnesses were needed.
(16)	There was a discrepancy as to which part of the body was struck.
(17)	Ruben Kinz was advised by police and influenced by the deceased’s relatives.
(18)	It was suggested he was a dishonest witness.
(19)	No weight should be given to Rex Kaiko’s evidence, due to his statement.
(20)	One witness said it was Oki who used timber and another said Nick Leme.
(21)	Each witness gave evidence they were scared when they saw the attack.
(22)	That was flawed because the victim said he was not the attacker’s enemy.
(23)	As there was no enemy, there was no basis for the witnesses to be scared.
(24)	The State witnesses were unable to give evidence of what the rest did.

78.	It was contended that the State witnesses made up their evidence and that no weight should be given to it.

79.	The alibi defence of Gitas Uphas was said to be that he returned home early, because of a curfew, that he gave a detailed account of what he did on the afternoon of 29 January 2025, and that he had two supporting witnesses.

80.	The alibi defence of Prais Yangambo was said to be that he met with Wilson Angalo (aka Wilson James) and that, while there may be minor inconsistencies as to the amount of alcohol they drank, they were drunk.  It was said that this accused’s supporting witness was not related and this had no reason to lie.  The evidence in support of this alibi was said to be “straightforward and clear”.

81.	The alibi defence of Liu Nandui was said to be that he went to his place then Newman Saka arrived and Buka Kerain.  It was suggested that Buka Kerain was mixed up in relation to the months, that Liu Nandui arrived home around 4pm, and that the evidence of Newman Saka, who had no watch, was that Liu Nanduoi arrived home around 4pm.  It was suggested that it was commonsense that people would go home early and stay inside, because they were afraid of the police and army and should not wait until the stary of the curfew to go home.

82.	In conclusion, it was submitted that the accused gave a true account of what happened, unlike the State witnesses.  It was contended that the State had failed to prove its case beyond reasonable doubt and had failed to rebut the alibi defences.  Further, that the accused should not be found guilty of any lesser charge.  As a result, it was suggested the accused should be acquitted.

Submissions for the State

83.	It was noted that the documentary evidence included a medical report, records of interview and a sketch of the scene.  

84.	The medical report was said to show that the victim died from excessive internal bleeding and a head wound, which was said to be consistent with multiple beatings, involving kicks and punches from many people.  That was said to warrant a finding that those who inflicted those wounds intended to cause grievous bodily harm to the victim who, after being attacked on 29 January 2025, died on 3 February 2025.  The issue in this case was said to be who was responsible for those injuries and it was noted that the State’s witnesses identified each of the accused as having participated in that attack.  It was noted that those witnesses named a number of people, including these three accused.

85.	A submission was made that, as there were a lot of people present at the time, it was impossible to call everybody who saw the attack and that there was no point in calling people who could not identify individuals.

86.	Reference was made to the evidence of each of the State’s witness and consistencies between their evidence were noted.  It was conceded there were some differences between the oral evidence, given on oath, and the statement provided to the police.  However, it was submitted that it was sufficient for the State to establish that each of the accused was present and played a role in the attack on the victim.  It was said that the attack involved punches, the use of wood and stones, plus the use of a bush knife by Oki, to strike the victim on the head.  A submission was made that the State’s evidence was consistent with what was said to be the main story.

87.	Any inconsistencies were said to not be surprising when three witness were looking from different angles and not necessarily at the same time.  It was said that minor inconsistencies were to be expected in any situation such as this.  Further, that the statements made to the police, once tendered, were available to be used in their entirety.  Those statements were said to be taken by the police, were not sworn evidence, and that departures from those statements should be expected when evidence is obtained in the form of questions and answers.  It was submitted that the Court should not expect witnesses to give evidence that matches their statement to the police word for word.  In summary, it was said that the evidence of the State’s witnesses, combined with the medical report, provided a strong case against each of the three accused.

88.	Moving to the alibi defences, submissions were first made in relation to the case for Gitas Uphas.  It was said that his evidence put him in the place where the attack occurred on the day of the attack and it was submitted that they were not independent, being teachers at the same school who know each other and live in the same community.  To the extent that the evidence of this accused and his two witnesses matched, it was said to be too good to be true.  It was noted that Markio Topkoli was standing outside the courtroom, observing and hearing the evidence of Gitas Uphas.  Reliance was also placed on neither of the two supporting witnesses going to the police to say that this accused was with them at the time of the attack.

89.	The alibi defence of Prais Yangambao was said to be impacted by his denials in relation to Oki, who was the person who chopped the victim with a bush knife.  What he said in his record of interview was said to contradict his oral evidence.  The evidence of the supporting witness, Wilson Angalo, was said to contradict the evidence of this accused as to the presence and conduct of Oki.

90.	The alibi evidence of Liu Nandui was said to have not mentioned Newman Saka who said he was present.  Nor did he mention, in evidence-in-chief that he met Gitas Uphas on the day of the attack.  It was submitted that the evidence of Buka Kerain clearly revealed that he was not in Porgera on 29 January 2025.

91.	In conclusion, it was said that the Court should reject the alibi defences and could safely rely on the evidence of the State witnesses.

Submissions in reply

92.	Reference was made to the answer of Markio Topkoli, who said he did not hear the evidence of Gitas Uphas.  It was suggested that Prais Yangambao tried to explain that Oki used a bush knife and reference was made to answer 17 in his record of interview.  It was said that Ruben Kinz gave different answers of chest and belly in relation to where he claimed Gitas Uphas punched the victim and tried to give a different answer by saying it was on his shirt.  That was said to render him an unreliable witness.

Relevant law

93.	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 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?

94.	As 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.  False evidence led in support of an alibi defence weighs against its acceptance.
95.	Further, lies told by an accused consciously to avoid guilt have been held to amount to corroboration of the State account (John Jaminan v The State [1983] PNGLR 318). 

96.	So far as is relevant in this case, s 7 of the CCA says:

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

97.	In the CCA, s 8 provides as follows:

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.

98.	While it has been said that s 8 does not apply where each accused took part directly in the assault of the deceased (R v Kiandri [1967-1968] PNGLR 31), if either s 7 or s 8 of the CCA applies, the effect is the same: the accused is deemed to be guilty as if he were the person who killed the victim.  The reality is that those sections may overlap.  It would appear the position is that it is not necessary to refer to s 8 whenever s 7 applies.  

Issues

99.	The issues requiring determination, for each of these three accused, are:

(1)	Does the evidence led in support of the alibi defence raised by each of these three accused create a reasonable doubt?
(2)	Does the identification evidence establish the presence of any or all accused beyond reasonable doubt?
(3)	What role, if any, did each accused play in the attack which resulted in the death of the victim? 
(4)	For any accused who played a role, is he guilty of the charge of murder?

Assessment of witnesses

100.	Ruben Kinz gave oral evidence and his statement to the police became part of the evidence.  The matters raised with him during cross-examination were, first, that he was told Jacky Tanda’s name by relatives of the deceased.  It is noted that he freely disclosed that, after indicating that he told the police what he saw people do and told them the names of those he knew.  While a lawyer and a police officer should know that should not be done, that cannot be said of a lay witness who was only trying to give an account of who did what.  It is noted that Jacky Tanda is not an accused in these proceedings and that the provision of that name does not alter what the witness claimed he saw.  

101.	Secondly, as to the distinction between the belly and the chest, it is noted that the statement said belly and the oral evidence said shirt.  It was only when belly was put in a question during cross-examination that oral evidence of chest was given, noting that his evidence was being translated from Engan to English and that, when Rex Kaiko gave evidence, the interpreted word was belly, but the witness pointed to his chest.  This distinction is not considered significant, moreso when the evidence of this witness was that two blows were struck, one with a fist and one with a stone, and only the blow with the stone was pursued in cross-examination.  The chest-belly distinction which the defence sought to emphasise, is a matter of semantics rather than substance.

102.	Thirdly, it was suggested that this witness said Liu Nandui struck the victim with a stone in his statement and with wood in oral evidence.  However, a close consideration of the statement of the witness reveals that his sequence was actions of Gitas Uphas then “others rushed to attacked with wood and stones” (emphasis added) before saying that Prais Yangambao struck with victim with a stone.  That sequence, which was not fully explored in cross-examination, is not sufficiently clear to render the evidence of this witness unreliable on the crucial issue of whether the accused were present.

103.	Fourthly, there was the suggestion of a difference in what Yangambao did or said which attracted a response that he spoke when he attacked.  Again, that does not go to whether that accused was present.

104.	Finally, it was said this witness said that Uphas and Nandui did not say anything while his statement alleged that Uphas said: “kill that man”.  To that criticism, this witness correctly responded that he only answered the questions he was asked.  He was asked, in chief, what each of the accused did, not what they said.

105.	The evidence of this witness, in re-examination included confirmation that what he told the police was true and, as to his oral evidence, that he truthfully answered the questions he was asked.

106.	Those matters do not warrant a rejection of the evidence of this witness: they do not alter his evidence of the presence of each accused; they only go to the role they each played.  The role played is an issue that only requires considered once the issue of whether an accused was present has been determined.

107.	Tony Muli provided oral evidence and his statement to the police was tendered.  In cross-examination, three differences between oral and written evidence were suggested.  It is not necessary to go through them as they only went to the role played and not the presence.  Again, the criticisms of the evidence of this witness do not warrant rejecting his evidence. 

108.	Rex Kiako was another witness whose evidence was both oral and written.  Again, suggested differences between the oral and written evidence were suggested during cross-examination.  The criticisms carry less weight when the oral evidence is carefully considered:

Q	Gitas [Uphas], how did he attack him?
A	First he came and punched him on the belly (pointing to his chest) and then he picked up a stone and hit him on the chest.
Q	Punch or stone or both?
A	Punched then stone.
Q	Same spot or different?
A	First punch then stone.
Q 	Stone on the same spot or different?
A	Same part of the body.  

109.	As with the earlier witnesses, the criticisms made during cross-examination do not warrant a rejection of the evidence of this witness.  The status of his evidence going to the separate issues of (1) identification each accused, and (2) the role played by any identified accused, are considered below. 

110.	Gitas Uphas cannot be considered a credible witness.  He claimed that (1) the reason the police gave for arresting him was that Prais Yamgambao drank beer in a public place, (2) they told him he would be release when Prais Yambangao came in, and (3) he did not know why they continued to detain him.  Those claims are fanciful and implausible.  His suggestion that he told the police that he was with Markio Topkoli and Noah Kasan at the time of the offence, an answer which took a repeated question to obtain, is contradicted by his record of interview.  As this accused chose to forego his right to silence and answered questions as to his whereabouts at the time of the attack, it is telling that he did not refer to either Markio Topkoli or Noah Kasan in his record interview.  His suggestion that: “They [ie Markio Topkoli and Noah Kasan] came and protested to the police” was not supported by either of those witnesses.  The evidence of this witness cannot be reasonably be accepted.

111.	Markio Topkoli gave evidence which must be rejected.  He not only disobeyed a direction of the Court to go outside and not stay near the courtroom: he stood adjacent to window, after attempting to disguise himself by putting on a hat, and had his face only a few centimetres from an open louvre window while Gitas Uphas gave evidence.  That is not the conduct of an honest witness.  He contradicted Gitas Uphas by saying that he did not give his story to the police.

112.	Noah Kasan was not a reliable witness.  He tried to suggest he did not know why Gitas Uphas was arrested but, when the question was repeated, he gave the correct reason.  His evidence that Gitas Uphas was given the reason for his arrest when he was arrested contradicts rather than corroborates the evidence of Gitas Uphas.  Given his evidence that he knew the policeman who arrested Gitas Uphas, his excuses for not telling the police that he was with Gitas Uphas at the time when the attack occurred cannot be accepted.

113.	It is convenient to here note that the combination of (1) not accepting the evidence of Gitas Uphas, (2) rejecting the evidence of Markio Topkoli, and (3) determining that Noah Kasan was not a reliable witness, has the necessary consequence that the alibi defence of Gitas Uphas does not create a reasonable doubt.

114.	Prais Yangambao.  Overlooking minor inconsistencies between his evidence and that of Wilson Anagalo, and the multiple occasions when he gave non-responsive answers, the major impediment to accepting the evidence of this accused is his denial that he saw Oki Barabas on the day of the attack.  That was contrary to what he said in answer to questions 16, 17 and 18 in his record of interview.  Further, this accused gave evidence, on oath, that he did not tell the police what appears in those answers.  Also, having abandoned his right to silence, he did not make any reference to Wilson Angalo as being a person who could support his alibi.  He also gave evidence, on oath, that he told the police he was with Wilson Angalo.  Shortly after that, he agreed that he did not tell the police he was with Wilson Angalo.  His later suggestion that the police never gave him an opportunity to mention his name is rejected.  It is sufficient to record that this accused cannot be considered a truthful witness.

115.	Wilson Angalo gave evidence of the conduct of Oki Barabas which contradicted the evidence of Prais Yangambao.  Although he said he was not related to Praise Yangambao, this witness indicated that Prais Yangambao is his best friend.  Given that the evidence establishes that the victim was attacked on 29 January 2025 and died on 3 February 2025, the evidence of this witness that he learned “the next day”, ie 30 January 2025, that Prais Yangambao had been charged with murder, cannot be correct.  The evidence of this witness served to contradict the evidence of this accused.

116.	As this accused did not give truthful evidence, and as his evidence is contradicted by evidence from his best friend, who gave an answer that cannot be correct, the alibi defence of this accused does not create any reasonable doubt.

117.	Liu Nandui said that, at the time of the attack he was in his house with others who he said included Buka Kerain. Given the clear admissions of Buka Kerain that he was not in Porgera at that time, the evidence of this witness cannot be considered truthful.

118.	Buka Kerain made a crucial admission when he said:

I heard that Liu Nandui was one of those alleged to have killed so I had to make my way up here to testify in court.

119.	That was subsequently confirmed when he said:

The incident took place here.  I do not know about it.  I came on my own.

120.	The attempt to explain away those clear admissions was unsuccessful.  It is clear the evidence given by this witness which attempted to support the alibi defence of Liu Nandui, was false. 

121.	Newman Saka tried to assert that Buka Kerain was present with him and Liu Nandui at the time when the attack occurred.  That evidence alone provides a sufficient basis to reject the evidence of this witness.

122.	 The admissions of Buka Kerain that he was not present not only fails to corroborate the evidence of Liu Nandui and Newman Saka but also renders their evidence false.  The alibi defence is Liu Nandui must be rejected.

Consideration

123.	For the sake of completeness, and to put this case in context, it needs to be noted that there were six accused who were committed for trial on a charge of wilful murder in relation to the attack on thus victim: (1) Gitas Uphas, (2) Prais Yangambao, (3) Liu Nandui, (4) Oki Barabas, (5) Nick Leme, and (6) Tauwan Kaka. Earlier this week, the Court heard evidence that Oki Barabas had died.  As Nick Leme and Tauwan Kaka escaped from custody, Bench Warrants have been issued for their arrest.

124.	It is necessary to consider each of the three live issues in these proceedings.

125.	First, the identification evidence.   The Court responds to each of the 24 points made on behalf of the accused in relation to that evidence:

(1)	There was a large crowd of more than 30 people, on a highway.  It was not made clear whether this submission was intended to refer to those carrying out the attack or those watching the attack. 
(2)	The period of the attack was said to be between 20 and 30 minutes.  It is not clear how this is said to favour rejection of the identification evidence.  The duration of the attack served to provide ample opportunity for identification.
(3)	The incident was being observed from the middle of the road.  This submission is inaccurate as no witness gave evidence of being in the middle of the road.
(4)	It should not be accepted that there were no passing vehicles.  This issue was not raised with Ruben Kinz.  When this issue was raised with Tony Muli and Rex Kaiko, they each said there were no passing vehicles as they had stopped.  It accords with commonsense that drivers of vehicles would not proceed through an area while a fight involving as many as 30 people was underway. 
(5)	The distance of the witnesses from the attack was as much as 19 metres. The greatest distance of the three State witnesses was 19 metres but the closest was 6 metres.
(6)	The State’s witness did not properly identify the accused.  This submission is also inaccurate since each of the State witnesses named each accused in both their oral evidence and their witness statement.  All three witnesses correctly identified each of the three accused during the hearing.
(7)	Since witnesses escaped, for fear of their lives, they were unable to observe.  The evidence of each witness was of what they observed before they left the scene of the attack.  This issue was not put to Ruben Kinz who said he only left because of the time.  Tommy Muli said he observed the attack for 20 minutes before he left, because he feared for his safety because it was his brother who had been attacked.  Rex Kaiko cannot be said to have escaped as his evidence was that he went inside a building and continued to observe the attack.
(8)	The State’s witnesses were selective because they only called three by name.   This is another inaccurate submission: Ruben Kinz named the three accused and Oki Barabas; Tony Muli named the three accused and Jacky Tanda in his oral evidence and, additionally Nick Leme in his statement; and Rex Kaiko named all three accused in oral evidence.  He also named Oki Barabas and Nick Leme in his statement.
(9)	They planned to name these three accused because they were their enemies.  As this proposition does not appear to have been put in that form to each State witness, it does not carry any weight: Browne v Dunn (1893) 6 ER 67; Awoda v The State [1984] PNGLR 165.
(10)	Despite being local, the State’s witnesses could not identify other participants.  The suggestion that, because a person lives locally, they should be able to identify the other participants, when there are clearly thousands of people living in Porgera, only has to be stated to be rejected.
(11)	They picked these three accused due to tribal warfare.  Being a restatement of (9) above, this submission is rejected.
(12)	As the accused were not present, they could not have been correctly identified.  This submission assumes acceptance of the alibi defences.  For the reasons set out above, those defences were rejected.  As a result, this submission fails.
(13)	The circumstances of the light and the highway precluded identification.  The evidence does not support this submission.
(14)	The statements of the State witnesses impeached their credibility.  While there were some differences between the oral and written evidence of the State’s witnesses, for the reasons indicated above, those differences do not warrant rejecting their evidence that each of the three accused was present at the time of the attack and participated in that attack.
(15)	As their evidence was unreliable, other independent witnesses were needed.  The evidence of the State witnesses was not unreliable as to the presence of the accused.  As they were independent witnesses, the evidence of each witness was corroborated by the evidence of the other two witnesses.  Such differences as there were only go to the question of the role played by each accused in the attack.
(16)	There was a discrepancy as to which part of the body was struck.  The chest-belly distinction was minor and is insufficient to warrant a rejection of the identification evidence.
(17)	Ruben Kinz was advised by police and influenced by the deceased’s relatives.  This has been considered above.  There is nothing to suggest he knew that should not have been done, he only added a name to the conduct of a person he saw, and that person is not one of the accused.
(18)	It was suggested he was a dishonest witness.  Having closely considered the oral and written evidence of the accused, this submission is rejected.  Differences between oral and written evidence are not surprising (a) when there is a nine-month gap between that evidence, (b) when oral evidence is the result of questions and answers, (c) when the topic is an attacked involving as many as 30 people over a period of 20 to 30 minutes, and (d) where that evidence involves translations of evidence between two languages.
(19)	No weight should be given to Rex Kaiko’s evidence, due to his statement.  This broad claim, made without supporting reasons, cannot be accepted.  The evidence of Rax Kaiko, considered above, was clear on the issue of identification.  Any differences only went to the role played by each accused and do not warrant giving no weight to his evidence, having regard to the four matters listed in (18) above.
(20)	One witness said it was Oki who used timber and another said Nick Leme.  In the context of an attack involving as many as 30 people over a period of 20 to 30 minutes, it would be surprising if there were no differences.  It is noted that this matter does not go to the conduct of any of the three accused.
(21)	Each witness gave evidence they were scared when they saw the attack.  This not surprising.  It was not explained how this detracts from the identification evidence.  Ruben Kinz said he left because of the time.  Tony Muli left because his brother was attacked.  Rex Kaiko only went inside a building.  They each gave evidence of what they saw while they watched the attack.
(22)	That was flawed because the victim said he was not the attacker’s enemy.  This submission appears to contradict (9) and (11) above.  Further, this submission is flawed because (a) Tony Muli was entitled to be scared when the victim was his brother, and (b) any witness to an attack could fear that he or she would be attacked by reason of being a witness to that attack. 
(23)	As there was no enemy, there was no basis for the witnesses to be scared.  This submission is rejected as anyone watching an attack by as many as 30 people that lasted for 20 to 30 minutes would have a basis to be scared.  Further, Tony Muli had a reason to be scared: the victim was his brother.
(24)	The State witnesses were unable to give evidence of what the rest did.  This submission ignores both the evidence and the reality of an attack such as the attach now being considered.  As to the oral evidence, the three State witnesses were only able to give evidence in response to the questions that were asked and it is not surprising that the focus of those questions was the conduct of these three accused.  In relation to the written statements, which became Exhibits 1, 2 and 3, they only have to be read to see that they do contain references to what was done by others.  It is clear those statements were prepared for the purpose of the case against these accused.  Further, each of their accounts suggests these three accused participated in the early stage of the attack.  This submission is another instance of a topic that was not explored in cross-examination.  Moving to the reality of the situation, it is unrealistic to expect any eyewitness to give anything more than general evidence of what the rest of the 30 or so attackers did.  Also, it is difficult for a witness to give evidence of the conduct of a numerous people who they do not recognise and cannot identify.

126.	Those matters do not warrant rejection of the identification evidence.  The preferable course is to go through the seven factors which the reported decisions referred to above require to be considered:

(1)	How long was the period of observation?  The duration of the attack was said to be between 20 and 30 minutes.
(2)	In what light was it made?  The evidence established that the attack occurred between 5pm and 6pm and that there was still good daylight at that time.
(3)	Form what distance was it made?  A sketch map, admitted without objection, indicated that the three State witnesses were 6 metres, 17 metres and 19 metres away from the attack.  The oral evidence was to the same effect.
(4)	Was there anything about the person observed which would have impressed itself upon the witness?  This topic that was not addressed during the evidence.  It is noted that the witnesses were identifying people they knew by name and not strangers.
(5)	Was there any special reason for remembering the person observed?  The nature of the attack may be expected to have created a significant impression in the minds of the three State witnesses who gave identification evidence. 
(6)	How long afterwards was the witness asked about the person concerned?  While this was not explored with the three relevant witnesses, the statement provided to the police by each of those witnesses having been tendered, it is noted that two of them were dated 3 and 4 February 2025, less than a week after the attack.  The third was dated 18 January 2025, obviously an incorrect date as the attack occurred on 29 January 2025.
(7)	How did the description then given by the witness compare with the appearance of the accused?  No description evidence was sought.  The identification of each witness was based on recognising the faces of the three accused and identifying them by name.

127.	Other relevant considerations are that the identification evidence was recognition evidence, since these accused were known to the witnesses, who recognised them by their faces.  In other words, they were not identifying a stranger:  a person they were seeing for the first time.  Further, the rejection of the alibi defences provides support for the presence of the accused.  Moreover, the lies told in support of false alibis were clearly told consciously, to avoid guilt, with the consequence that they provide corroboration of the State account. 

128.	 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.  In addition, there was no suggestion that the witnesses were related to each other and there was no suggestion of collaboration between the three State witnesses.  

129.	For those reasons, the Court is satisfied that each of these three accused was accurately identified as being present at the time when the victim was attacked.  What the evidence establishes as to the role each of them played is considered below.

130.	Secondly, the alibi defences.  For the reasons set out above, each of the alibi defences is rejected. 

131.	Thirdly, did the role that was played by any of the accused warrant a finding of guilt on a charge of murder?  

132.	As the evidence satisfies the Court that each of the accused played a role in the attack, they each aided the attack with the consequence that s 7(1)(c) operates to render each of them liable as if they were each the principal offender. 

133.	Further, the evidence warrants a finding that there was a common purpose of attacking the victim and that each of these three accused participated in the attack.  Accordingly, s 8 of the CCA applies to each accused.

134.	While there was a single indictment, and a joint trial, the case against each accused must be considered separately.  Just as what is said by one accused in his record of interview is not evidence against any other accused, so the oral evidence of any accused is only relevant to the case against that accused.  

135.	Accordingly, it is necessary to consider the State’s case against each accused separately, together with the case of that accused in response to the State’s case, and to then determine the role they each played in the incident which is the subject of these proceedings.  That requires a separate consideration of the State’s evidence against each accused and the evidence led by that accused in response.

136.	Given that there were inconsistencies in the evidence of the State’s witnesses as to which accused did what, the Court only makes findings against an accused when the evidence of any one of the three State witnesses is corroborated.  

137.	The role of Gitas Uphas. Having considered the oral and written evidence of all three State witnesses, the Court finds that this accused was the first to strike the victim and that he struck the victim on his upper body (ie above the waist and below the neck) by both punching him and then using a stone.  He also called out “kill that man”, thereby encouraging others to continue the attack.  His leading the attack is consistent with the evidence that he is a leader in his village.

138.	The role of Prais Yangambao.  Based on the evidence of all three State witnesses, the Court finds that this accused also struck the victim.  The better view is that this accused used a stone, based on the written evidence of Ruben Kinz, the written and oral evidence of Tony Muli, and the written evidence of Rex Kaiko.  However, it is not necessary to make a finding as to what weapon was used as it was clearly established that this accused was present and participating in an attack during which stones and wood were used and he is rendered criminally liable for each of those blows, by s 7 of the CCA or, alternatively, s 8.

139.	The role of Liu Nandui.  The evidence of those three witnesses supports a finding that this accused also struck the victim.  The better view is that this accused struck the victim with a piece of wood, based on the oral evidence of each of the three State witnesses.  As with the previous accused, the State has proved beyond reasonable doubt that this accused was present and participating in an attack during which stones and wood were used and he is criminally liable for each of those blow as if he struck each of them himself.

140.	As the medical report suggests the death of the victim was caused by the ruptured spleen, the blows to the body of the deceased contributed to his death.  It is neither necessary nor possible to attribute the death of the victim to any individual blow.  The combined effect of the inflicted blows caused the victim’s death.

141.	Finally, it is noted that the questions and answers quoted above are based on notes taken during the hearing, not the official transcript.  As a result, the actual words used were either the words set out above or other words to the same effect.

Findings of fact

142.	Based on the evidence, and having regard to the submissions made by the lawyers, the Court makes the following findings of fact:

(1)	Between 5pm and 6pm on 29 January 2025 a group of as many as 30 people attacked the victim.
(2)	Those people had a common purpose of attacking that victim.
(3)	After an initial attack, the victim unsuccessfully tried to escape.
(4)	However, the attack not only continued, but also continued when the victim fell to the ground.
(5)	During the attack, the victim was punched and hit with stones, wood and a bush knife.
(6)	Oki Barabas struck the victim on the head with a bush knife.
(7)	In contrast, the victim was unarmed.
(8)	Each of the three accused was present and participated in that attack.
(9)	Each of the three accused thereby aided that attack.
(10) 	As a result of that attack, the victim sustained wounds to his head and body.
(10)	The wound to the victim’s head was a crescent-shaped laceration that was 7cm long and 4cm wide, with a depth down to the skull.
(11)	The wounds to the body included bruises to the head, chest, back and abdomen, especially to the left flank.
(12)	Those wounds to the body of the victim ruptured his spleen.
(13)	On 3 February 2025, the victim died from blood loss resulting from those wounds.
(14)	From the (a) number of people present, (b) the number of blows inflicted, (c) the use of stones, wood and a bush knife, and (d) the nature of the injuries, it is a reasonable inference that there was an intention to inflict grievous bodily harm on the victim.
(15)	Gitas Uphas participated in that attack by being the first to strike the accused, on his upper body, by both punching him and then using a stone, after which he called out “kill that man”, thereby encouraging others to continue the attack.
(16) 	By reasons of those words used by Gitas Uphas, there was an intention to kill the victim.
(17)	Prais Yangambao participated in that attack, in which stones and wood were used, by striking the victim.
(18)	The role of Liu Nandui participated in that attack, in which stones and wood were used, by striking the victim.
(19)	By their conduct, each of the three accused (Gitas Uphas, Prais Yangambao and Liu Nandui) contributed to the death of the victim.
Conclusion

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

(1)	these three accused, with others, had a common purpose to attack the victim,
(2)	each of these three accused was present and participated in such an attack,
(3)	that attack was intended to inflict grievous bodily harm on the victim,
(4)	the victim’s death was caused by the injuries sustained in that attack, and
(5)	each of the three accused aided the commission of that crime.

144.	Accordingly, the Court returns a verdict of guilty of murder on the indictment against each of the three accused who will be remanded to await sentence.

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