N11602

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 1735, 1736, 1737, 1738, 1739 & 1740 OF 2022

THE STATE

v

NOAH KOSMAS,
JOSHUA KAMBIA,
JACK WASE,
JONAH TIMUN,
JACKSON TUPULYA &
JOB PULI
 (NO. 1)

WABAG: ELLIS J
1, 30 OCTOBER, 21 NOVEMBER 2025

CRIMINAL LAW – WILFUL MURDER – s 299(1) CCA – Trial of six accused – identification evidence accepted – alibi defences rejected – each accused found guilty of wilful murder – role played by each accused considered – remanded for sentence 

PRACTICE AND PROCEDURE – s 535 CCA – Request to amend date in indictment by one day allowed – not material to merits of case – no prejudice to the accused

Facts
After an incident between the victim and one of the accused the night before, these six accused (and two others) went to premises armed with bush knives and an axe.  The unarmed victim, who was surrounded by some of the accused, to prevent him from escaping and to stop others from assisting him, died from the injuries inflicted. 

Held
(1)	Alibi defences rejected and identification evidence accepted.
(2)	Each accused aided the attack (s 7).
(3)	Each accused participated in a common purpose (s 8).
(4)	The evidence established an intention to kill. 
(5)	Request to amend indictment allowed after closing submissions for accused.
(6)	Exception to general rule in the circumstances of the case.

Cases cited 
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 (No 2) [1983] PNGLR 318 
Kara v The State [1984] PNGLR 254
Ono v The State (2002) SC698
State v Robert Wer [1988-89] PNGLR 444
The State v Gene [1991] PNGLR 33
The State v Koivaku [1986] PNGLR 2
The State v Merriam [1994] PNGLR 104
The State v Simon Ganga [1994] PNGLR 323
The State v Tanedo [1975] PNGLR 395

Counsel
P. Tengdui, for the State
L. Toke, for the defendant
		
VERDICT

1.	ELLIS J: 	Seven men were charged that, on the 27th May 2024 at Waires village in Wapenamanda, they wilfully murdered Elly Frank (the victim).  One of those men entered a plea of guilty and has already been sentenced.  The remaining six men pleaded not guilty and proceeded to trial.

2.	This trial was allocated three consecutive days and should have taken only two of those days, in which case it would have commenced on 29 September and concluded later that week.  Instead, witnesses were not available on Monday 29 September and, when one of the seven men entered a plea of guilty on 30 September (which should have been known beforehand), it was necessary to conduct a hearing before sentencing him.  

3.	As a result, after the indictment was presented, (1) the State’s evidence and the evidence of the first accused was heard on 1 October, (2) the evidence of the remaining accused could not be heard until 30 October, which hearing was conducted at Baisu to avoid the difficulties of transporting the accused to and from Wabag, and (3) after closing submissions were delivered on that day, a decision had to be reserved until 21 November 2025, following the completion of a circuit in Porgera.

4.	These six accused were each 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”.

The State’s case

5.	The record of interview for each of the six accused was tendered and was admitted, without objection, in the case against that accused only. A list of the documents tendered, each admitted without objection, is set out below:

Exhibit A	Record of interview of Noah Kosmas
Exhibit B	Record of interview of Joshua Kambia
Exhibit C	Record of interview of Jack Wase
Exhibit D	Record of interview of Jonah Timun
Exhibit E	Record of interview of Jackson Tupulya
Exhibit F	Record of interview of Job Puli
Exhibit G	First photo of crime scene
Exhibit H	Second photo of crime scene
Exhibit J	Statement of Kutchy Gang
Exhibit K	Statement of James Sali
Exhibit L	Statement of Winnie Lale
Exhibit M	Statement of Kun Dan
Exhibit N	Statement of Belen Takias
Exhibit O	Statement of Solo Anton
Exhibit P	Medical report

6.	Documents marked for identification during the hearing are listed below:

MFI 1		Medical report				became Exhibit P
MFI 2-3	Statements of Cathy Timothy and Joan Padiok
MFI 4		Statement of Kun Dan			became Exhibit M
MFI 5		Statement of Belen Takias		became Exhibit N
MFI 6		Page removed from medical report
MFI 7		Statement of Solo Anton			became Exhibit O

7.	Kun Dan gave eye-witness evidence of when Elly Frank (the victim) was attacked.  He said there were eight men who entered the residence of Miki Kaeok and he identified each of the six accused, saying two of them were not in court.  Of the six accused, he identified Job Puli (Puli) by name.  He named Philip Minimao (Minimao) as a seventh member of that group.  His evidence was that Minimao cut the victim on the leg with a bush knife, that Puli cut the victim on the hand.  He said the men came armed with bush knives and an axe and that he saw “one cut then two or three cuts by others”.  Further, his evidence was that members of the group were holding the victim’s hands while he was being attacked.  

8.	This witness said he tried to lock the gate, but Puli tried to attack him, so he opened the gate.  When asked if he heard the men say anything, his answer was that he heard the words “cut his hands and his legs”.  Of the six accused, he was five were from the Yangakun clan and that Jack Wase (Wase) was from Yambokin.  There was also evidence from this witness that he spoke to Wase after the attack, asking him the reason for the attack, and was told by him that the victim had been drinking beer the previous night when there had been a fight.

9.	Cross examination was confined to the question of whether the date of the attack was 27 or 28 May 2024 and suggested differences between his oral evidence and his statement (which was initially marked for identification as MFI 4 and later became Exhibit M).  It was suggested that this witness did not tell the Police that the victim was cut on his legs and his hands but there is reference to both in his statement and in the investigator’s addendum to that statement that records the witness speaking of cuts to both the legs and hands.  Importantly, the identification evidence of this witness was not challenged at all.

10.	The statement which this witness made to the Police was dated 4 June 2024, about a week after the attack.  It contained a reference to an eighth person, namely Kunjo Kanden (Kanden).  In that statement, this witness said Wase “was at the road providing surveillance when the others came inside the premises …” and that Wase lied to him when he claimed he was not with the group who attacked the victim.  The statement also indicated that this witness told Police that it was Jonah Timun (Timun) who first chopped the victim on the arm, that others grabbed hold of the victim, Minimao chopped off the victim’s left arm, and that Kanden chopped the victim on the leg.

11.	Belen Takias said the victim was attacked on a Tuesday and it is noted that 28 May 2024 was a Tuesday.  He said he heard men say: “cut his legs and his arms” and that eight men, who he recognised, carrying bush knives and an axe when they came to the residence of Miki Kaeok.  His evidence was that six of those eight men were in court and he identified each of the six accused as being members of that group of eight men.  

12.	This witness gave specific evidence that Jackson Tupulya (Tupulya) was “armed with a bush knife and was monitoring all the movements” and that Timun did the same thing.  It was said that they were “observing us so we could not assist or help” the victim.  Wase was said to be standing in the middle of the main highway.  Joshua Kambia (Kambia) was said to have come inside and tried to attack the witness.  The evidence of this witness was that Kosmas was in the group “making sure no-one was coming around”.  The two who were not present were both said to have cut the victim, both cutting him on the hand.

13.	It was said that the victim was unarmed.  The recollection of this witness was that what was said during the attack was that the victim should be cut on his hands and legs.  This witness said he later heard that there had been a fight with the victim the previous night, while beer was being consumed.  After the attack, the victim was said to have died while being taken to hospital.

14.	When cross-examined, this witness said he was outside the court while the first witness gave evidence, but that he could not hear what was said.  He said he knew the names of two men who cut the victim: Kunjo and Philip, being the first names of Kanden and Minimao.  His oral evidence was that it was the victim’s right hand that was cut, but he agreed that he told the Police it was the victim’s left side.  It was during cross-examination that the statement of this witness was tendered (Exhibit N).  It is convenient to here note that, by reason of the defence tendering the witness statement of this witness and the previous witness, the contents of both those statements become part of the evidence.

15.	When it was suggested that Noah was not present, the witness replied that he was not sure about Kosmas.  However, when it was put that Kambia was not present, he said he did not know the names of the men, but he knows their faces.  He re-asserted that Wase, Timun, Tupulya and Puli were present.  When it was put to this witness that he was giving evidence against the accused was that the victim was his friend, he disagreed and repeated that he saw them.

16.	Solo Anton also gave eye-witness evidence of what he saw on Tuesday 28 May 2024.  He also said there was eight men, six of whom were in court.  He provided in-court identification and named Wase.  He said those men were carrying bush knives and an axe.  His evidence was that Phiip (Minimao), who was not in court, cut the victim first.  He said that Puli was standing behind Minimao and that the others were surrounding Minimao and another, identified as Tupulya.  Timun, Kambia, and Kosmas were said to be surrounding the victim so he could not escape.  Wase was said to be on the main road.  This witness said he was unarmed.  He claimed that Minimao cut the victim twice, on the left hand and left leg, followed by Tupuyla, who was said to be Minimao’s brother-in-law. It was the evidence of this witness that, after the victim was attacked, he went out and Wase was asked why the victim was attacked, and that he replied that there had been a fight the previous night between Tupuyla and the victim.

17.	When cross-examined, this witness restated that he was present and that Wase was there, saying that he may have been inside the premises but that he saw him standing on the main road.  As with the earlier two State witnesses, the statement of this witness was tendered by the defence (Exhibit O).  When it was put to this witness that each of the other five accused was not present, he repeated his evidence that they were.  He said they share the same common market, and that he recognises their faces but does not know their names.  This witness was resolute in his evidence that the six accused came and attacked the victim.

18.	Dr Marcphee Simon Konae, who prepared an Autopsy Report (Exhibit P), was required to attend for cross-examination.  As it was clear that a page in his report related to another person, that page (MFI 6) was replaced in Exhibit P.  That report revealed injuries, notably that the left elbow was chopped to the point that the arm was almost severed.

19.	When cross-examined this witness explained that the incorrect page was the result of an office error.  He agreed that the victim’s injuries were on the elbow and the leg.  Re-examination revealed that the report did not list all the injuries, only the main ones and it is understandable that an autopsy report might only refer to injuries that caused the death of the victim.

20.	The State also tendered three witness statements, being those of three Police officers: (1) Senior Constable Kutchy Gang, the investing officer, (2) Sargeant James Sali, and (3) Reserve police officer Winnie Lale.

21.	Kutchy Gang signed a statement that became Exhibit J.  In it, he indicated that he was the investigating officer for this case.  His statement set out what he did in that role.  It is noted that, as he was not required for cross-examination, his evidence was not challenged.  James Sali also provided a statement (Exhibit K) which indicated that he was requested to be a corroborator for the record of interview with each of the accused.  Winnie Lale is a reserve Police officer whose statement (Exhibit L) revealed that she was the interpreter for each of those six records of interview.

The case for Noah Kosmas

22.	Noah Kosmas gave evidence, and he was the sole witness in his case.  His evidence-in-chief was that he took bananas to Wabag on Tuesday 28 May 2024 to sell them.  It is noted that no Alibi Notice was provided. He said he left his village at about 7.00am, arrived at Wabag at about 8.30am, did not go anywhere else, and left at about 3.30pm.  He said he returned home with one bunch of the three bunches of bananas he took to the markets that day, that he heard about some trouble, and he went to see.   His evidence was that when he arrived at what he termed the common market, he saw Jonah (Timun), Jackson (Tupulya) and Philip (Minimao).  He claimed the entire community was there and that it was said that Minimao killed the victim and that Tupulya and Timun were with Minimao at that time.  According to this accused, Minimao was already at the Police station, and that Timun and Tupulya plus four others went to the Police station to find out.  

23.	When asked why they all went to the Police station, Kosmas replied: “We are peace-loving people and when we heard they were involved in the fight, we wanted to hand those two over to the Police”.  When asked what happened at the Police station, he suggested: “The Police station at Wabag does not have proper fencing”.  

24.	When that question was repeated, Kosmas said: “The Police assured us they would drop those people at Wabag Police station, so we had to get on that vehicle as well.”  

25.	When that question was asked a third time, this accused said: “Late in the afternoon, they said we all had to spend the night in the Police cells and two would have to remain but the rest of you can go back the next day.”  He went on to say that the next day, the relatives of the victim came the Police station and, knowing them all to be in the Police cells, they submitted their names to the Police.  When asked if the Police arrested him, this accused gave a non-responsive answer and then said “yes”.  He claimed he told the Police he was at Wabag when the victim was attacked.  He denied being present when that attack occurred.  When asked why he went to Wapenamanda Police station, this accused replied: “We heard those two boys were involved, so we had to hand them into the Police.”

26.	When asked in cross-examination how he knew it was 3.30pm when he left Wabag, this accused said: “I was seeing that the day was almost up”.  He replied “yes” to a question that “You were driven to Wapenamanda in a Police vehicle”.  When asked why he had to travel in that vehicle, the accused gave another non-responsive answer (having given two such answers before then).  When asked what time he went in that vehicle to Wapenamanda Police station, he suggested “around 5pm”.  In answer to the remaining questions, the accused repeated his denials of involvement in the attack and tried to explain why he got in the Police vehicle, including a claim that “we had to go to leave those two boys at the Police station”.

The case for Joshua Kambia

27.	Joshua Kambia gave evidence in support of his alibi defence, also despite no Notice of Alibi having been provided.  His evidence was that, on the day the victim was killed, he was at home, weaving blinds between 12 noon and 3pm.  He claimed to have no knowledge of what happened to the victim that day.  When asked how he ended up in the police station of Wapenamanda, he said he was told by leaders that he was with Jackson (Tupulya) the time when the victim was killed and, when his name was called, he did not want to get into trouble, so he surrendered.  He claimed he did not know any of the State’s witness.

28.	When cross-examined, this accused claimed not only that he was alone in his house but also that he was alone in his village.  There was a question “You are making that up to distance yourself from the killing of Elly Frank” which was then rephrased to suggest this accused was trying to distance himself from the killing of the victim to which this accused replied: “Yes”.  However, he then suggested the State’s eyewitnesses were not telling the truth.  Joshua Kambia admitted he knew each of the five other accused men, saying that they are from the same village and that they are his cousins and that Philip Minimao is married to one of his sisters.

29.	In re-examination, this accused said there are only two people living in his house, he and his small brother who was said to have been at school.

The case for Jack Wase

30.	Jack Wase did not give any evidence-in-chief as to where he was at the time when the victim was attacked and killed.

31.	This accused said he went from his home to the Kumbas market at between 7.30am and 8am on the morning the victim was killed.  When asked where that market was located, this accused gave a non-responsive answer and, when the question was repeated, he said it was within Wapenamanda.  He asserted that he went to that market to buy salt and cooking oil and then left to go home between 11.30am and 12 noon.  When asked if anything happened on the way home he said: “No”.   He denied that either Kun Dan or Solo Anton saw him that day but admitted that he went past Waires on his way home and said he arrived home around 12.30pm.

32.	This witness said that, when he arrived home, at the common market, people were discussing that Philip Minimao had killed Elly Frank, and that Jackson Tupulya and Jonah Timun were involved.  When asked what happened at Wapenamanda police station, he said that relatives of the victim also came there, that there was a police vehicle there, and “they asked us to get on that vehicle and took us to Wabag”.  He claimed that, because the relatives of the deceased were coming to the police station, the police wanted him to go to Wabag police station.  After this accused said he told the police he did not participate in the killing of the victim, he was asked what the police said.  When he did not reply to that question, it had to be asked again.  When asked to respond to the allegation that he and the other five accused participated in the killing of the victim, Jack Wase replied: “I was not there”. 

33.	In cross-examination, Jack Wase said no-one was with him when he went to the market, and that he did not see anyone he knew at the market on that occasion.  He claimed he went past Miki Kaeok’s residence, at about 12 noon, but that “nobody saw me”.  He suggested he heard about the killing of the victim at around 4pm that day, saying he arrived home around 1pm.  His evidence was that when he arrived home, he was alone as all members of his family were out gardening, and that he never saw anyone between 1pm and 4pm.

34.	When it was put to this witness that he was giving a story to try to distance himself from the killing of the victim, there was a long pause without an answer.  When that question was repeated, he claimed he did not know anything about that killing.  When asked how he got to Wapenamanda police station, this accused gave a non-responsive answer.  The answer he gave, when that question was repeated, was: “We drove in my vehicle”.  

35.	When that answer was explored, it was then said that it was the vehicle of Pastor Paiyo and that he and the other five accused were in that vehicle, claiming that it was their intention to put Jonah Timun and Jackson Tupulya in the hands of the police.

36.	This witness suggested that “we thought we were going to come back after leaving those two fellows, but they took us to Wanaf and locked us up”.  When asked if he was questioned by the police, Jack Wase said: “no, they never asked any questions”.  However, in answer to the next question, he accepted that there a recorded interview was conducted.  When the accused’s attention was directed to his answer to question 27, where he said: “The two of them were brought by Pastor Jonah Piyo to the Police Station and some of us walked to the Police Station”, he denied saying that.

37.	When it was noted that the answers to leading questions asked in re-examination have little weight (because a leading question suggests to the witness what the answer should be), it was put to the witness that he reached his village at 1pm, he replied: “Between 1 and 2”, thereby seeking  to push back the time he had said earlier in his evidence.

The case for Jonah Timun

38.	Jonah Timun claimed he was home alone on the day in question.  In response to a leading question, he agreed he went along the main highway that day.  He said he met Jackson Tupulya on the way, at about 3pm, and that they went to Kumbas market.  Further, that he met Philip, whose other name he claimed to not know, at Wanepokos and, as he was also going to Kumbas, the three of them went together.  

39.	His evidence was that, when they got to Waires, Philip and the victim went inside the residence of Miki Kaeok.  He claimed he did not know what they argued about and that, when they went inside that residence, he was standing on the road and could not see what happened inside that residence.  This witness denied that he assisted Philip to cut the victim.  As what he did when Philip and the victim went inside, this accused, after giving his second non-responsive answer (saying that Philip ran away) he said he was standing on the road.  His evidence was that he then went back to his village, fearing he was going to be attacked because it had been suggested he was involved.  He repeated his claim that, while standing on the highway, he did not see anything that was happening inside.

40.	Cross-examination of this accused resulted in further non-responsive answers.
Tellingly, when asked: “You had a plan to attack Elly Frank” this accused replied: “Yes”.  However, he denied being inside the residence and denied he helped to prevent the victim from escaping.

41.	When it was put to this accused that he told the Police he saw Philip chop the victim, that was denied.  He admitted signing his record of interview and claimed he told the Police what he was telling the Court.

The case for Jackson Tupulya

42.	Jackson Tupulya claimed he was at home on the day when the victim was killed.  He said he went to the river to have a bath, came home and prepared to go to the market, and that he met Jonah Timun on the way, at about 1pm.   He said that, while they were walking towards the main road, they met Philip Minimao.  When they were outside the house of Miki Kaeok, his evidence was that he saw the victim and that Philip Minimao ran towards the victim and tried to attack the victim, which this accused claimed surprised him.  He said he had no idea why Philip Minimao did that.  The evidence of Jackson Tupulya was that: “they had a fight, and they were inside the gate”.  Further, that he went back to his village as “I knew they would also blame me for coming near”.  He claimed he did not see what happened inside. 

43.	 Later that day, when he was back in his village. He said his name was called as a suspect, and that community members wanted him and Jonah Timun to go to the police station to “clear our side”.  He said and the other five accused went to the police station with Pastor Paiyo.  After being asked a second time what happened at the police station, it was suggested that “The police had to rescue us, so they took us to Wabag police station.”  This witness claimed that Philip Minimao killed the victim and that “all those others are innocent”.  He claimed that it was falsely alleged that he assisted Philip Minimao to kill the victim and said he had no idea why the victim’s relatives were blaming him.

44.	When cross-examination commenced, Jackson Tupulya said that Philip Minimao is married to his sister and that he had stayed in the accused’s village for almost seven months.  Upon being taken to the answer he gave to question 26 in his record of interview, where he claimed to have no ties to Philip Minimao, this accused said he told the police that he knew Philip Minimao.  He agreed that he had a problem with the victim the previous night but claimed that he never told Philip Minimao about that problem.  He went on to claim that he never went inside, and that he stayed outside, on the main road.  Further, he suggested he did not see Philip Minimao attack the victim.  When it was put to him that the told the police he saw that attack, this witness claimed he never said that to the police.  It was put to this accused that he got Philip Minimao and the others involved to take revenge for what the victim had done the night before.  His response was that the previous incident was a minor and the attack on the victim “may be related to some other problem”.

45.	In re-examination, this accused was taken to his answer to question 30 in his record of interview, in which he contradicted his earlier answer by saying that Philip Minimao is his brother-in-law.  The Court notes that was an answer which included the following words:

... myself and Jonah TIMUN we wanted to go to Kumbas market and inform our boys and later we will all go to the Yangokun boys in Member’s residence and ask them why they assaulted me in the night.

The case for Job Puli

46.	This was another accused who advanced an alibi defence without providing the required Alibi Notice.  His claim was that, on the day when the victim was killed, he went down to the Tale River, with his wife and two children, to do laundry work, leaving around 10am and returning around 3pm.  That location was said to be between 100 and 200 metres from his village.  He denied knowing anything about the killing of the victim and he said knew of no reason why the victim’s relatives would blame him for being involved in the death of the victim.  When asked how came to be at Wapenamanda Police station on that day, he said Jonah Timun and Jackson Tupulya were with Philip Minimao so, not wanting further trouble, he went to that police station.  His evidence was that, when he saw the victim’s relatives come to that police station, he got in the police vehicle of his own accord, claiming he went to Wabag police station for his safety, thinking he would only spend the night there.  His evidence was that he went from the river back to his village around 4pm on the day in question.  The final question is evidence-in-chief served to reveal that his wife was in court.  If that was intended to suggest support for his alibi defence, it was misconceived as it only showed that she could have been called but was not called to give evidence to support the alibi defence of her husband.

47.	During cross-examination, this accused maintained that had had told his lawyer about his alibi.  When asked if he gave notice to the State that he was in another place when the victim died, he said “Yes”.  However, when asked what kind of notice was given, he suggested he was confused.  He claimed that he was not involved in the killing of the victim and that his story about doing laundry on the day in question was made up, with the aim of taking him away from the scene of that crime. 

48.	In re-examination, answer to 26 in his record of interview was referred to.  That was an answer in which he made the same claim as in his oral evidence.

Submissions for the accused

49.	After referring to the three eyewitnesses called by the State, it was noted that the State did not call anyone who was working inside the residence on the day in question.  Reference was made to suggested differences in the evidence of the State’s witnesses as to the injuries, and to the medical report.  It was noted that the police did not conduct an identification parade and that the eyewitnesses did not name the accused but said they recognised the accused by their faces.  

50.	A submission was made that the indictment said 27 May 2024 while the witnesses said 28 May 2024.  That was said to be a fatal flaw in the State’s case because the accused were arraigned on the basis that the incident occurred on 27 May 2024.  A submission was made that the typed date of 27 May 2024 in the records of interview had been changed to 28 May by using a pen to write 8 over the printed 7.  It was suggested that was done after the records of interview had been conducted.  However, the statements of the relevant police officers were admitted, without objection, and they were not required for cross-examination.

51.	The defences for the accused were summarised as follows:

(1)	Noah Kosmas said he was in Wabag,
(2)	Joshua Kambia said he was in his village, on his own,
(3)	Jack Wase said he was in the market and then went home,
(4)	Jonah Timun was said to be present, but not participating,
(5)	Jackson Tupulya was also said to be present but not participating, and
(6)	Job Puli said he was doing laundry at the time of the offence.

52.	The Court was reminded that the accused were to be considered innocent until proven guilty.  It was said the accused had explained their whereabouts in their records of interview with the contended result that they were not recent invention.  Further, that there was a fight at the crime scene many people were inside, and that there was a generator running.  It was suggested that the three eyewitnesses called by the State did not say what each person was doing and only referred to Philip Minimao by name and only identified but did not name these six accused.  It was contended that none of the six accused participated in the killing of the victim and that their alibi, which the State must negative, should produce the result that each accused be found not guilty of either wilful murder or any less charge.

Submissions for the State

53.	The evidence of the accused was said to be matter for the Court to consider.  Reliance was placed on s 7 and s 8 of the CCA.  It was submitted that there was an incident the previous night when Jackson Tupulya, the brother-in-law of Philio Minimao, was attacked which was said to have caused Tupulya to gather others, as revealed in the records of interview of Timun and Puli, to form an intention to confront the victim.  As to the identification evidence, it was said that the State’s witnesses recognised the accused, even though they did not name them, and that there was uncontroverted evidence that the injuries inflicted during the attack killed the victim.  It was noted that the State’s evidence was that the victim was surrounded by some of the accused while others caried out the attack, to prevent the attack from being stopped.  A submission was made that there was a clear intention to kill.  Reliance was placed on the oral evidence and the documents admitted by consent which were said to support a conclusion that this was a brutal attack which resulted in injuries to which the victim succumbed.

54.	The State’s case was said to be that each of the six accused participated, and it was noted the four of them raised alibi defences but did not provide a Notice of Alibi, as they were required to do.  After referring to the defence of each accused, it was reiterated that the State’s case was that each of the six accused was present and participating and that there was no room for doubt that the killing of the accused was intended.

55.	After noting that each of the State’s eyewitnesses gave evidence that the incident occurred on 28 May 2024, an application was made to amend the indictment.  That was opposed on the basis that the accused were arraigned on the basis that the murder occurred on 27 May, not 28 May, that they pleaded not guilty to a charge based on 27 May, and that no amendment should be allowed because the accused would be prejudiced.  However, there was no indication of what that prejudice was.

Relevant law

56.	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?

57.	Since the prosecution must prove the charge beyond reasonable doubt, it follows that an alibi defence will be an answer to the charge if it creates a reasonable doubt.  

58.	Order 8 rule 3 of the Criminal Practice Rules 2022 requires notice to be given by the accused to the prosecution of the evidence of the alibi upon which the accused intends to rely.  The required form for that notice (Form 26) includes not only where the accused was but also who he was with and what he was doing.  Leave is required to lead alibi evidence if the required notice is not given.  The relevant considerations when deciding whether to grant leave were considered in State v Robert Wer [1988-89] PNGLR 444.  No such leave was sought in this case.

59.	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;
…

60.	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.

61.	If either s 7 or s 8 of the CCA applies, then the effect is that the accused is deemed to be guilty as if he were the person who killed the victim. 

62.	It is also necessary to note that cases such as Browne v Dunn (1893) 6 ER 67, Jaminan v The State (No 2) [1993] PNGR 318, The State v Merriam [1994] PNGLR 104, and The State v Simon Ganga [1994] PNGLR 323 establish that (1) failure to cross-examine amounts to acceptance of that evidence with the consequence that it cannot then be impugned in a closing address, (2) an accused whose case it not put to any State witness has his or her credibility damaged, (3) failure to put the alibi defence to the State witness and a delayed or belated alibi will reduce the weight of be given to that defence.

Issues

63.	The issues requiring determination, for each of the six accused, are:

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

Assessment of witnesses

64.	Kun Dan was the first State witness.  His identification evidence was not challenged at all during cross-examination with the consequence that it cannot be impugned in closing submissions.  The alibis of the accused were also not put to this witness.  There was no effective challenge to the evidence of this witness that he spoke to Jack Wase.

65.	Belen Takias was firm in his identification evidence.  The only discrepancy that was suggested was as to which arm of the victim was chopped.  In evidence-in-chief, when asked which of the victim’s hands was cut, left or right, he replied right, but in answer to the very next question said it was the left hand, consistent with what he said in his statement to the Police.  In cross-examination, he did suggest the victim’s right hand was cut but his evidence was that one of the accused cut the deceased’s arm first and then Philip Minimao cut the victim on the left arm.  That criticism of the evidence of this witness lacks clarity as it was not properly explored in cross-examination, as the plausible explanation of an initial right-side cut by one of the six accused then a left-side cut by Philip Minimao was not explored.  As a result, there was no effective challenge during the brief cross-examination of this witness.

66.	Solo Anton was cross-examined.  During that cross-examination it was put to him that Kun Dan had said that Philip Minimao and Kunju cut the victim but that was neither the oral nor written evidence of Kun Dan.  As with the cross-examination of Belen Takias, there only a single question suggestion that each of the accused was not there when the victim was attacked.  Further, as with Belen Takias, the challenge to the identification evidence was minimal and lacked any probative force.

67.	It is noted that when different witnesses observe the same event, it is unrealistic to expect there will be no differences in their evidence when they are standing in different places and not looking in the same direction at the same time.

68.	In those circumstances, there is no valid basis for rejecting the evidence of any of those three witnesses for the State.  It is noted that, after those three witnesses had given evidence, the prosecutor said he was not going to call any further eyewitnesses saying their evidence would only be “more of the same” and the lawyer for the accused did not require any of those further witnesses to be called. 

69.	Dr Konae was required to attend for cross-examination, but he was only asked two questions.  First, he explained the need to replace a page in his report which obviously related to another case, due to what was plainly an administrative error.  Secondly, it was noted that his report only referred to injuries on an elbow and the leg.  

70.	Re-examination established the obvious, namely that his report only referred to the crucial injuries which is understandable since the document he prepared was an autopsy report, the only purpose of which is to explain the cause of death.  That document is not a witness statement and did not purport to list all the victim’s injuries.  There is no reason why the medical evidence of this witness should not be accepted.

71.	Noah Kosmas gave evidence in support of his alibi defence.  However, (1) there was no alibi notice, (2) no leave was sought to rely on an alibi defence without having provided an alibi notice, and (3) that alibi defence was not put to two of the three State witnesses (the third State witness was only asked one question).  Those are the first three reasons against accepting that such a defence created any reasonable doubt.  Fourthly, his evidence that Philip Minimao was already at the police station when he arrived there was plainly false, because the evidence was that Philip Minimao fled and was captured in Mount Hagen about three months after the incident. Fifthly, this accused falsely suggested he was taken to Wapanemanda police station in a police vehicle.  Sixthly, his suggestion that he went from Wapenamanda Police Station to Wabag Police station voluntarily lacks credibility.  Seventhly, he gave multiple non-responsive answers to significant questions, which also reflected adversely on his credibility. Eighthly, in his record of interview, when first asked where he was when the victim was attacked, this accused said: “I don’t know, I was at my house”.  It was only when further questions were asked that the claim he went to Wabag that day to sell bananas was suggested.

72.	Joshua Kambia gave evidence.  He too relied on an alibi defence.  Again, (1) there was no alibi notice, (2) no leave was sought to rely on an alibi defence, and (3) the alibi defence was not put to two State witnesses with only a single question put to the third State witnesses.  Had the suggestion this witness was making up his story to distance himself from the killing of the victim not been rephrased, it would have been a telling admission.  However, as that question was rephrased to suggest he was telling his story to distance himself from that killing, it carries less weight.  The answer of “Yes” could be used against the accused, but the Court does not do so since the rephrased question omitted the allegation that the story was being made up. Even disregarding that answer, the alibi defence did not create any reasonable doubt.  The suggestion of this accused that there was no-one else in his village while he was weaving blinds, despite there being numerous houses close to his, defies credibility.  Those reasons, especially the failure to properly challenge that identification evidence (no questions of two witness and a single question “Joshua Kambia was not there” was asked of the third witness), coupled with the strength of the State’s identification evidence,  warrant a conclusion that the alibi defence of this accused did not create a reasonable doubt. 

73.	Jack Wase gave evidence.  Inexplicably, his evidence-in-chief did not contain any indication of where he said he was at the time when the victim was attacked.  That evidence indicated where he claimed he was in the morning of the day in question.  He admitted that he went past the location where the victim was attacked, asserting he left the market between 11.30am and 12 noon and having arrived home around 12.30pm.  

74.	When asked how he got from home to Wapenamanda police station, the initial answer of this accused was “We drove in my vehicle.”  The evidence reveals that answer to have been false.  When that topic was explored, a replacement answer of travelling in the vehicle of Pastor Paiyo was given.  The suggestion of this witness that the Police never asked him any questions cannot be accepted, noting that in answer to the very next question he accepted that a record of interview was conducted.  His answer to question 27, which suggested “some of us walked to the police station”, is a third explanation for how that trip occurred.  

75.	Leading questions asked in re-examination carry little weight because that involves the lawyer giving the desired evidence so that the witness only has to say yes.  However, in this case, when the accused’s lawyer attempted to put back the time this accused reached his village from 12.30pm to 1pm, the accused took the hint and tried to put the time back even further, by replying “Between 1 and 2”.  

76.	This accused was not a credible witness.  Again, there was no notice of alibi, no leave to rely on alibi evidence was sought.  While questions were asked of each of the three State witnesses on the issue of identification, the effect of those questions does not assist this accused.  It was put to Kun Dan that Jack Wase told him he was not aware of the incident, but the evidence of Jack Wase was that he never saw Kun Dan.  In a contradictory approach, it was put to Belen Takias that Jack Wase was not present, but that was convincingly denied.  The cross-examination of Solo Anton put the question “He (Jack Wase) told you that he was coming back from Kumbas market”.  The inconsistency of the case for this accused weighs heavily against accepting his version of events.  Both the evidence of Jack Wase and his alibi defence were so unreliable that they must be rejected.

77.	Jonah Timun gave evidence.  Even if his non-responsive answers are overlooked, his answer “Yes” when it was put to him: “You had a plan to attack Elly Frank” is considered an admission that there was a common purpose involving him.  Further, his oral evidence that he did not see the victim being chopped was contradicted by what he said in answer to question 24 in his record of interview.  Plainly, if the oral evidence of this accused was truthful, he would not have been able to provide that answer to the police when he was interviewed.  The claims of this accused, given during cross-examination, that he told the police in his record of interview what he told the court, and that he did not tell the police what appears in answer to question 24, are answers which are considered false.

78.	In this case, there were three police officers present when the record of interview with this accused was conducted and the claim of this accused, on oath, that he did not say what appears in that record of interview, is the kind of evidence that warrants consideration of a charge of perjury.

79.	However, for present purposes, it is sufficient to record that the evidence of this accused, and his alibi defence, are rejected.

80.	Jackson Tupulya gave evidence. His suggestion, during evidence-in-chief, that he did not know why the victim was attacked is contradicted by the answer he gave to question 30 on his record of interview, quoted above.  The claim of this accused, that he did not see what happened inside the premises, when the victim was attacked, is also contradicted by the answers he gave in his record of interview, notably in answer to question 24.  His initial claim, in answer to question 26, that he had no ties to Philip Minimao, was contradicted by his subsequent answer to question 30.  This witness also suggested that he did not say what appears in his record of interview.  However, that was never put to any of the police officers who conducted that record of interview: their witness statements were tendered, admitted without objection, and they were not required for cross-examination.  In view of those matters, his accused cannot be considered to have been a truthful witness. 

81.	Job Puli gave evidence.  He too raised an alibi defence, despite no Notice of Alibi having been provided and no leave to adduce alibi evidence having been sought.  The identification evidence of Kun Dan was not challenged and there was only a single question of the other two State witnesses.  As a result, there was an inadequate rebuttal of the State’s identification evidence against this accused.  The claim of this witness, that he was doing laundry while the victim was attacked, is implausible.  

82.	It is noted that, during cross-examination, this accused claimed to have given notice of his alibi defence to his lawyer but, as soon as that topic was explored further, he suddenly said he was confused.  Since the State bears the onus of proof, there cannot be any obligation on the part of an accused to call a witness.  However, evidence was deliberately led in chief that his wife, who the accused claimed was with him when he was doing the laundry, was present in court.  If the accused’s alibi defence was credible, such evidence would not have been necessary.  The fact that such a question was asked demonstrates that the accused and/or his lawyer felt that his alibi defence needed the support that question attempted to give.  The Court does not consider this alibi defence to be credible.

Consideration

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

84.	First, the alibi defences.  For the reasons set out above, each of the alibi defences is rejected. 

85.	Secondly, the identification evidence.   Going through the factors listed above, despite the lack of evidence on some of them, primarily due to insufficient cross-examination:

(1)	How long was the period of observation?  The duration of the attack appears to have been a matter of minutes, with the result that this was not a case of a fleeting glance.
(2)	In what light was it made?  Daylight.
(3)	Form what distance was it made?  While this was not explored with any of the State witnesses, the photos which were admitted as Exhibits G and H suggests the distance was less than ten metres.
(4)	Was there anything about the person observed which would have impressed itself upon the witness?  This is another topic that was not addressed during the evidence.
(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?  Again, this was not explored with any of the three relevant witnesses.  However, the statement of each of those witnesses having been tendered, it is noted they are each dated one week after the incident. 
(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 accused.  Kun Dan referred to Philip Minimao by name, but his identification evidence was not challenged at all.  Belen Takias did not refer to any accused by name.  Solo Anton was able to identify Philip Minimao and Jack Wase by name.

86.	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.  

87.	 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 of collaboration between the three State witnesses.  

88.	For those reasons, the Court is satisfied that each of these six 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.

89.	Thirdly, did the role played by any of the six accused render that accused guilty of either wilful murder or a lesser charge?  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. 

90.	Further, the evidence clearly warrants a finding that there was a common purpose of attacking the victim and that each of these six accused, together with two others (Philip Minimao and Kunjo Kanden), participated in this attack.  Accordingly, s 8 of the CCA applies with the same effect: each of these six accused are liable as if they were each the principal offender.

91.	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, the oral evidence of any accused is only relevant to the case against that accused.  

92.	Accordingly, it is necessary to consider the evidence against each accused separately and to thereby determine the role they each played in the incident which is the subject of these proceedings.  That requires a consideration of the evidence given by each of the three State witnesses against an individual accused, either orally or in their witness statement that was tendered by the lawyer for the accused.

93.	The role of Noah Kosmas.  Belen Takias said Noah Kosmas was in the group, “making sure on-one was coming around”.  Solo Anton said this accused surrounded the victim so he could not escape.  The position in relation to this accused is clear.

94.	The role of Joshua Kambia.  Belen Takias said this accused “tried to attack us as well”.  Solo Anton said this accused surrounded the victim so he could not escape.  The position in relation to this accused is clear.

95.	The role of Jack Wase.  Kun Dan said that Jack Wase told him the reason for the attack, on the highway, after the attack.  While Belen Takias said, during his evidence-in-chief, that he saw Jack Wase was standing on the road, outside the residence, during cross-examination he saw Jack Wase was inside and was with the others.  In his statement, Belen Takias said he saw Jack Wase on the road, acting as a lookout.  Solo Anton also saw Jack Wase standing on the main road.  He corroborated the evidence of Kun Dan that Jack Wase gave the reason for the attack.

96.	Although there is limited evidence for Jack Wase being inside the premises during the attack, there is clear evidence that (1) he arrived with the other accused, and (2) that he was standing on the road, outside the premises, acting as a lookout.

97.	The role of Jonah Timun.  The statement of Kun Dan contains hearsay evidence that Jonah Timun was the first to strike the victim, and that he chopped the victim on his arm.  Belen Takias said Jackson Tupulya was monitoring all the movements. Solo Anton said this accused surrounded the victim so he could not escape.  There is insufficient evidence that this accused struck the victim.  However, there is corroborating evidence that he was one of those surrounding the victim.

98.	The role of Jackson Tupulya.  Belen Takias said Jackson Tupulya was monitoring all the movements.

99.	The role of Job Puli.  Kun Dan said that Job Puli cut the victim on his hand and that, when he tried to lock a gate, Job Puli tried to attack him.  Belen Takias also said that Job Puli cut the victim on his hand.

100.	As the Court is satisfied that each of these six accused was involved in the attack, it is necessary to consider what was the intention in this attack.  From the number of people present, the weapons they carried, and the nature of the injuries, it is a reasonable inference that these offenders had an intention to kill.

Findings of fact

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

(1)	There was a fight on the night of 27 May 2024 between Jackson Tupulya and the victim in which the influence of liquor played a role.
(2)	On the next day, ie 28 May 2024, each of these six accused, with Philip Minimao and Kunjo Kanden, went to the residence of a local Member of Parliament.
(3)	They went to those premises with the intention of attacking the victim.
(4)	That was the common purpose of each of these six accused.
(5)	One of those eight persons took an axe while the others carried a bush knife.
(6)	After gaining entry to those premises, the unarmed victim was surrounded and was struck by those weapons.
(7)	The words “cut his arms and legs”, or other words in the Engan language to the same effect, were said by at least one of the attackers.
(8)	The arms of the victim were held while he was attacked.
(9)	Those accused who did not strike the victim, aided the attack by preventing the victim from escaping and/or preventing anyone from assisting the victim.
(10) 	The victim suffered wounds to his left leg and his left arm.
(11)	The victim died of blood loss while being taken to hospital. 
(12)	From the number of people present, the weapons they carried, and the nature of the injuries, it has been established that the offenders had an intention to kill.
(13)	The role of Noah Kosmas, during the attack, was to surround the victim so that he could not escape and so that no-one could assist him.
(14)	The role of Joshua Kambia, during the attack, was to surround the victim so that he could not escape and so that no-one could assist him.
(15)	The role of Jack Wase, during the attack, was to act as a lookout for the purpose of enabling the attack to proceed without interruption.
(16)	The role of Jonah Timun, during the attack, was to surround the victim so that he could not escape and so that no-one could assist him.
(17)	The role of Jackson Tupulya during the attack, was to surround the victim so that he could not escape and so that no-one could assist him.
(18)	The role of Job Puli was to cut the victim once, and to prevent others from assisting the victim.

Amendment of the indictment
102.	The indictment that was presented, at the outset of the trial, specified a date of 27 May 2024.  However, Kun Dan clearly indicated, in his oral evidence, that the incident occurred on 28 May 2024.  Belen Takias was also clear in his evidence that the incident occurred on 28 May 2024.  The evidence-in-chief of Solo Anton was also that the victim was attacked on 28 May 2024.  

103.	The witness statement of each of those three witnesses bore a typed date of 27 May 2024 that was corrected, in handwritten blue ink, to 28 May 2024 by writing the number 8 over the number 7.  Were those changes made before or after those witness statements were signed?  That issue was not raised with any of those witnesses in cross-examination.

104.	A similar change was evident in the record of interview of each accused (Exhibits A to F).  Were those changes made before or after those records of interview were signed?  During closing submissions, the lawyer for the accused suggested that those changes were made after the records of interview had been conducted.  However, to suggest that a record of interview was altered after it was signed is a serious allegation and the lawyer for the accused was not entitled to put that submission when it was not put to any of the three police officers involved in those records of interview.  

105.	As the statements of those three officers were tendered and admitted by consent, without any objection whatsoever, a submission that the records of interview were changed after they were signed cannot be accepted.  It is also noted that the unchallenged evidence of the investigating officer, which became Exhibit J, was that the incident occurred on 28 May 2024.

106.	When the first accused, Noah Kosmas, was called to give evidence on 1 October 2025 in Wabag, he was asked if he recalled 28 May 2024.  While each of the other six accused, when called to give evidence on 30 October 2025 in Baisu, was asked to recall 27 May 2024, the questions and answers clearly related to the day when the victim was attacked and killed.

107.	Thus, save for one question of each of five accused referring to 27 May 2024, the entire case referred to 28 May 2024, and all the evidence related to the day the victim was attacked, save for reference to the incident that occurred the night before.

108.	It was not until closing submissions for the accused that the disparity between the indictment saying 27 May 2024 and the evidence saying 28 May 2024 was raised.  The response, for the State, was to seek leave to amend the date shown in the indictment from 27 to 28 May 2024.  When that amendment was sought, the lawyer for the accused suggested that (1) such an amendment could not be made, (2) the accused were arraigned based on a date of 27 May 2024, and (3) there would be prejudice if such am amendment were to be allowed.  However, there was no indication of what that asserted prejudice was and there was no reference to any statutory provision or reported decisions on this issue.

109.	The question of amending an indictment is governed by s 535 of the CCA which is set out in full below:

(1)	If on the trial of a person charged with an indictable offence –
(a)	there appears to be a variance between the indictment and the evidence; or
(b)	…
the court may if it thinks that - 
(c)	the variance, omission or insertion is not material to the merits of the case; and
(d)	the accused person will not be prejudiced in his defence on the merits
order the indictment to be amended, so far as it is necessary, on such terms (if any) as to postponing the trial as the court thinks reasonable.
(2)	When an indictment has been amended, the trial shall proceed at the appointed time, on the amended indictment, and the same consequences shall ensue in all respects and as to all persons as if the indictment had been originally in its amended form.
(3)	If it becomes necessary to draw up a formal record in any case in which an amendment to an indictment has been made, the record shall be drawn up setting out the indictment, as amended, and without taking any notice of the fact of the amendment having been made.

110.	There are reported decisions that have considered the question of amending an indictment.  

111.	First, The State v Tanedo [1975] PNGLR 395 was a case where a change of the date in the indictment was permitted because that would not affect the merits of the case and would not prejudice the accused.  That is also the position in this case.

112.	In The State v Gene [1991] PNGLR 33, the requested amendment was refused because the variance between the indictment and the evidence was material to the merits of the case, being a request to vary the identity of the owner of the property in a misappropriation case.  In that case, it was considered that there would be prejudice to the accused if the amendment were to be allowed.

113.	Kara v The State [1984] PNGLR 254 was a Supreme Court decision in a matter which involved what was described as a completely different charge, which explains why the requested amendment was refused.  Kidu CJ said that “as a general rule, that I will not allow an indictment to be amended after the counsel for the defence has addressed the jury” (emphasis added).  Amet J (as he then was) agreed with Kidu CJ but did not say thing on what was said to be a general rule, and Bredmeyer J dissented.

114.	The State v Koivaku [1986] PNGLR 217 was a National Court decision in which Kidu CJ said (emphasis added):

Although the Criminal Code, s 535, permits amendment of an indictment before verdict, amendments should not as a general rule be made after counsel for the accused has addressed the court.

115.	Hence, the amendment of an indictment after counsel for the accused has made closing submissions is not precluded and that must be the case because to suggest otherwise would be to impose a limitation not contained within the wording of s 535 of the CCA.

116.	Having considered (1) the conduct of this case, (2) the evidence that was led, (3) the submissions made, (4) s 535 of the CCA, and (5) the case law, the Court considers the amendment of the indictment constitutes an exception to the general rule and should be allowed, despite the request to amend being made after closing submissions from the lawyer for the accused for the following reasons:

117.	First, as the State’s evidence consistently referred to 28 May 2024, it was clear that was the case the accused had to answer.  Secondly, the only references to 27 May 2024 were in initial questions which the lawyer for the accused asked the last five accused and the evidence of all six accused was clearly directed to the day the victim was attacked.  Thirdly, the charge of wilful murder remains unchanged.  Fourthly, the change of one day, from 27 to 28 May 2024, is not material to the merits of the case, that case being whether any or all the accused participated in the events that caused the murder of the victim. Fifthly, no prejudice was identified by the lawyer for the accused, and the Court is unable to discern any such evidence.

118.	As this is a case falling within s 535(1)(a) and paragraphs (c) and (d) of s 535(1) are satisfied, the Court may allow the indictment.  While there is a general rule that an amendment to an indictment should not be allowed after the closing submissions of the lawyer for the accused, this case appears to be an exceptional one where the requested change is minor and does not create any need for either additional evidence or submissions. The charge is the same, the victim is the same, and the evidence is unaffected.  It is difficult to think of a more minor change.  

119.	It should be recorded that the Court did observe, both when documents were tendered by consent and when the first witness was called to give evidence for the State, that there was a discrepancy between the date shown in the indictment and the date suggested by the evidence.  Using the analogy of a football match, the role of a trial judge is akin to that of a referee and not the coach of one of the teams.  For that reason, the Court did not raise the question of whether the State wished to amend the indictment as that could be considered to constitute the Court “taking sides”.

Conclusion

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

(1)	these six accused, and two others, went to the premises which are the subject of these proceedings with a common purpose to attack the victim,
(2)	each accused was present at the premises when the victim was attacked,
(3)	there was an intention to kill the victim, and
(4)	each of the six accused aided the commission of that crime.

121.	Accordingly, the Court returns a verdict of guilty of wilful murder against each of the six accused who will be remanded to await sentence.

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