N11620
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR No 37 OF 2015
CR No 12 OF 2015

BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:
ENOS AWARE
JEFFERY RONNY
Accused

RAMU AND MADANG: NAROKOBI J
17 JULY, 13 AUGUST, 2 DECEMBER 2025

CRIMINAL LAW – Wilful Murder, s 299(1), Criminal Code –Effect of decision appealed on evidence before the court - Identification Evidence - Whether the accused were positively identified killing the deceased - Whether the State has proven beyond reasonable doubt the charge of wilful murder.

Enos Aware and Jeffrey Ronny were each charged with seven counts of wilful murder, contrary to s 299(1) of the Criminal Code. Six of the seven (7) counts were dismissed on a successful no case to answer application. They each face trial for the remaining counts – Enos Aware for the wilful murder of Nathan Aki and Jeffrey Ronny for the wilful murder of Yambang Nawoye. Nathan Aki, a child, was alleged to have been slashed with a knife while in the arms of his mother and Yambang Nawoya, repeatedly cut with knives in a garden. The deaths came about from a sorcery motivated mob attack and the deceased were killed while escaping from the attackers.    

Held:

(1)	As this was a re-trial on a successful appeal by way of a review under s 155(2)(b) of the Constitution, the present court is mindful not to traverse the findings of the Supreme Court (Schedule 2.9(1), Constitution).
 
(2)	The evidence of aiding and abetting and prosecuting a common purpose was found in Kakivi v The State (2023) SC2539 to have not been made out. As the State relies on the same evidence in the re-trial, applying the Supreme Court decision to the present circumstances, would result in the same finding of the Supreme Court. The State has therefore not made out the elements of aiding and abetting and prosecuting a common purpose.

(3)	The identification of the accused by the State witnesses was unreliable as they referred to the accused by names other than the names describing the accused on the indictment and in the circumstances, to ensure a safe conviction their evidence was required to be corroborated.

(4)	Since the identification of the accused was not corroborated, the court finds that the State has not proven beyond reasonable doubt that the accused committed the offence of wilful murder and Enos Aware and Jeffrey Ronny should be acquitted of the charge of wilful murder. 

Cases cited
Beng v The State [1977] PNGLR 115
Geta v The State [1988-89] PNGLR 153
State v Aware (2025) N11422
Kakivi v The State (2023) SC2539
State v Kakiwi (2018) N7067
State v Paul Kundi Rape [1976] PNGLR 96

Counsel
Mr J Kasse, for the State
Mr C Momoi, for the accused 

DECISION 

1.	NAROKOBI J: This is a decision on verdict on the accused Enos Aware and Jeffrey Ronny, who were each charged with seven counts of wilful murder, contrary to s 299(1) of the Criminal Code, to which they pleaded not guilty. They were discharged of six of the seven counts on a successful no case to answer application on the first limb of State v Paul Kundi Rape [1976] PNGLR 96 (see State v Aware (2025) N11422).

2.	My summary of the evidence draws largely from my assessment of the evidence in the no case to answer application in State v Aware, because both accused have exercised their right to remain silent, and there is no new evidence for the Court to assess.

The Charge 

3.	The seven counts of wilful murder they were charged for the killing of seven deceased occurred on 14 April 2014. The date is not disputed. The seven deceased were:

•	Count 1 – Sike Wamne.
•	Count 2 – Nick Uria.
•	Count 3 – Yambung Nawoya.
•	Count 4 – Beramo Tipupu.
•	Count 5 – Baupa Dangingayo.
•	Count 6 – Nathan Aki.
•	Count 7 – Anao Gunumi.

4.	The State also allege aiding and abetting under s 7(1)(a), (b) and (c) of the Criminal Code. In addition, the State says they committed the offence, carrying out a common purpose under s 8 of the Criminal Code.

5.	After the partially successful no case to answer application (State v Aware) the trial proceeds for the accused Enos Aware for count 6 only, for the killing of Yambung Nawoya and for Jeffrey Ronny, he will answer for count 3, for the killing of Nathan Aki.

Elements of the Offence and the Issue 

6.	The State bears the onus of proving beyond reasonable doubt the following elements of the offence of wilful murder:

•	The accused killed the deceased.
•	The killing was unlawful or unjustified.
•	The killing was intentional.

7.	The two main issues after considering all the circumstances of the case are:

•	What are the implications of Kakivi v The State (2023) SC2539 on the legal and evidentiary issues before the court?;
•	Whether the accused killed the deceased or was it someone else that was involved?

8.	The first issue arises because the Supreme Court had overturned the conviction and took certain position on the evidence before the National Court and therefore the necessity to approach the case bearing this in mind. 
  
Previous Conviction in the National Court

9.	Enos Aware and Jeffrey Ronny were part of a group of males numbering 97 who were previously found guilty by the National Court on all 7 counts. From the 97, only two accused have remained in custody for the retrial. The others have either escaped from custody or died. Enos Aware and Jeffrey Ronny were given the death penalty, the maximum punishment for wilful murder at the time. This punishment has since been abolished in 2022. Their conviction is reported in State v Kakiwi (2018) N7067. Amongst the findings of the National Court, the following was held:

The State proved beyond reasonable doubt that each of the deceased was unlawfully killed by persons who intended to cause their death. The offence of wilful murder under Section 299(1) of the Criminal Code was committed in relation to each of the deceased in the manner contended for by the State. The State proved (and it was not contested) that an incident, as alleged, actually occurred, ie that a group of about 189 males (120 adults and 69 juveniles) marched together along public roads for at least 10 kilometres, armed and with painted warlike faces, in the direction of the village, with the intention of seeking out and killing alleged sorcerers who were residing in that village and on their way to the village some members of the group attacked and killed a bystander (the deceased the subject of count 1) intending to cause his death, and the group then proceeded to the village and raided it, destroying property including houses and food gardens, and threatening and chasing away many residents and at the village some members of the group attacked and killed six residents, who are the deceased the subject of counts 2 to 7 on the indictment, in each case intending to cause death.

10.	The court also held that for the first count, they had formed a common intention, under s 8 of the Criminal Code and it held:

(4) Further, the State, having proved beyond reasonable doubt that each of the accused was a member of the group that marched along the public roads in the manner alleged and raided the village and that certain members of the group committed the seven offences of wilful murder the subject of the indictment, and the only reasonable inference to draw from the evidence being that none of the accused left the group or engaged in any conduct that would suggest that he was an unwilling participant in all the group’s activities including killing the bystander on the way to the village, raiding the village, destroying property, threatening and chasing residents and killing six village residents, and further having proved that the members of that group had formed a common intention to prosecute an unlawful purpose (to raid the village believed to be harbouring sorcerers and to attack residents of the village and to kill sorcerers or persons connected with or harbouring them) and in the prosecution of that purpose, seven offences were committed that were of such a nature (involving death) that commission of those offences was a probable consequence of the prosecution of that unlawful purpose, it followed that the State had established beyond reasonable doubt the elements of criminal liability under Section 8 of the Criminal Code. Therefore, each of the accused was deemed to have committed seven counts of wilful murder, as charged.

(5) For the avoidance of doubt, it was stated that the findings of guilt under Sections 7 and 8 of the Criminal Code are made in respect of each of the accused and made independently of each of those provisions (Sections 7(1) and 8) and independently of the findings of direct guilt under Section 299(1) in respect of eight of the accused.

The Appeal 

11.	The accused successfully appealed their conviction and sentence by way of a review under s 155(2)(b) of the Constitution, before Justices Gavara-Nanu, Batari, David, Kassman and Geita. The Supreme Court ordered a re-trial, see Kakivi v The State (2023) SC2539.

12.	Schedule 2.9(1) of the Constitution provides that decisions of law by the Supreme Court is binding on all other courts except itself.

13.	Having said that, upon careful reading of the judgment, there appears to have been a minority decision. Justice Kassman actually confirmed the conviction of the accused Enos Aware for count three (3) (at [123]) and for Jeffrey Ronny for count seven (7) [at 125] and commuted their sentence to life imprisonment. In my view, the majority agreed with Gavara-Nanu J that there should be a re-trial on all seven (7) counts and this is what has transpired now in the National Court. Part of the reason why Gavara-Nanu J said there should be a re-trial was because the arraignment was conducted contrary to s 557 of the Criminal Code (at [80]).

14.	There were two parts of the appeal against conviction. The first part considered whether the elements of aiding and abetting under s 7(1) of the Criminal Code and prosecuting a common purpose under s 8 of the Criminal Code were made out and the second part was on non-compliance with the Juvenile Justice Act 2014 in the conduct of the trial. I will only focus on the aspect of the appeal dealt with by Justice Gavara-Nanu because the judgment on juveniles does not apply to Enos Aware and Jeffrey Ronny.  

15.	In the leading judgment of Gavara-Nanu J the Supreme Court held that there was no evidence of aiding and abetting, as mere presence does not amount to aiding and abetting (at [75]).

16.	These were the facts Gavara-Nanu J stated that the trial court took into account to determine the issue of aiding and abetting at [61]:

To my mind, there cannot be any doubt that the learned primary judge found the applicants guilty of all seven counts of wilful murder under ss. 7 (1) (b) and (c ) and 8 of the Criminal Code on the basis of his findings; that all the applicants were members of hausman group, that they all marched together from Ranara village to Sakiko village via Ramu township with their faces painted in warlike way and raided Sakiko village, destroyed properties belonging to Sakiko villagers, including houses which were set on fire and the six Sakiko villagers being killed by some of them, (although some of them had escaped at Sakiko village). The rest were assembled at a sports field at Sakiko village and transported to Ramu police station together, still armed with weapons. They all handed their weapons to the police at Ramu police station, where they all slept. (The weapons were not labelled, and their owners were not identified before being handed over). They were all charged under the Summary Offences Act, and their cases heard en-masse by a Magistrate from Madang at the Ramu Police station in which they all pleaded guilty and in consequence, all the adult men were each sentenced to six months imprisonment and all the juvenile males were each fined K200.00 and set free upon payment of their fines. None of the applicants withdrew from the group, and they were all willing participants in all of group’s activities in relation to the seven deaths, the subject of seven counts of wilful murder on the indictment. Thus, the applicants aided and abetted the seven wilful murders and had a common intention to prosecute an unlawful purpose which was to raid Sakiko village and find the sorcerers who migrated from Gomumu and neighbouring villagers who were residing at Sakiko village and kill them. As part of the unlawful purpose the applicants also intended to kill Sakiko villagers who were harbouring any of the sorcerers. The seven killings were the probable consequences of the prosecution of the unlawful purpose of raiding Sakiko village.

17.	As to whether there was common intention under s 8 of the Criminal Code, his honour said, the deaths were caused by criminal opportunists, and the State had conceded this point. The painting of the faces in warlike manner, was not indicative of a common intention (at [84]).

18.	At [63] and [64], the Supreme Court, per Gavara-Nanu, J held:

63.With respect, such factors as found by the primary judge in my considered opinion were contrary to the relevant established principles relating to ss. 299 (1), 7 and 8 of the Criminal Code and failed to satisfy each of the elements pertinent to these provisions.

64.Thus, these factors on their own were in my opinion not enough to satisfy the primary judge beyond reasonable doubt that the applicants aided and abetted the seven wilful murders pursuant to s. 7 (1) (b) and (c) of the Criminal Code. Nor could these factors establish and prove beyond reasonable doubt that applicants had a common intention under s. 8 of the Criminal Code to raid Sakiko village let alone destroy properties belonging to Sakiko villagers and kill six Sakiko villagers.

19.	This therefore means that conviction must be secured from the direct identification evidence of the involvement of the accused in the commission of the offence. In this case the Supreme Court found that there was direct evidence of the involvement of Enos Aware for the death of Yambung Nawayo, and for Jeffrey Ronny for the death of Anao Gunumi and there should be a retrial.   

The Allegation

20.	Facts of the case the State sought to prove against the accused in summary were as follows. This was a sorcery related killing. The deaths occurred at a village called Sakiko, outside of the Ramu township. Some of the inhabitants of the village were migrants from an inland village, Gomumu. They fled to Sakiko, for fear of attacks from villagers there, as they were accused of sorcery sometimes before the date of the alleged offence on 14 April 2014. Unknown to the villagers of Sakiko, vengeance for what the villagers of Gomumu believed were deaths caused by sorcerers who now reside in Sakiko simmered to the point where a group numbering 200 to 300 men, women and children, formed a group call “Haus Man,” and descended upon Sakiko. They came armed with weapons – homemade guns, bows and arrows, axes, bush knives, hunting spears, wire catapults and kitchen knives. They marched along the Bruce Jephcott national highway, going past the Ramu township and turned off the highway onto a dirt road leading to Sakiko Village.

21.	As soon as they entered the road, their first victim was an employee of Ramu Agri Industries Ltd, Sike Wamne, from Jiwaka Province, who was shot with arrows from a bow, and struck with axes. Upon entering the village, Nick Uria was the next victim. They proceeded then to attacking the rest of the village, burning houses, chasing people, and killing another five people – Yambung Nawoya, Beramo Tipupu, and Bauopa Dainginayo, adults and two children – Anao Gunumi, 5 years old and Nathan Aki, 3 years old.

22.	A total of seven people were killed in their death march from Gomumu to Sakiko, as payback for what they thought were deaths caused by sorcery.
   
23.	The State alleges that the persons were killed contrary to s 299(1) of the Criminal Code, that is wilful murder, and the State alleged that they each individually and collectively formed a common intention to carry out the offence pursuant to s 8 of the Criminal Code.

24.	The State further alleges that the accused aided and abetted each other to wilfully murder each of the six deceased at Sakiko Village, within the meaning of s 7(1), (a), (b) and (c) of the Criminal Code.

25.	For Sika Wamne the State alleges that he fell victim to a larger group that had formed the common intention to kill, and that his death was a probable consequence of the execution of that common intent.

The State’s Evidence

26.	The State’s evidence consisted of both documentary and oral testimony. The list of documentary evidence admitted into evidence without objection from the Defence has been usefully summarised by the State, which I adopt hereunder.

•	Medical and forensic evidence by Dr. Sanoh Tahon, including affidavits and post-mortem reports for several deceased persons.

•	Photographic evidence by Detective Senior Sergeant Loloea Allan includes photos of deceased victims and crime scenes.

•	Statements and records of interview of the accused, Enos Aware and Jeffrey Ronny.

•	Photographs of weapons and items seized in the investigation.

•	Photographs documenting the crime scene showing the destruction and persons allegedly involved rounded up after the killing of the deceased.

•	A tabulated police statement of exhibits summarizing the evidence was also admitted by consent.

27.	I now turn to the oral testimony. Five witnesses were called. Their evidence is summarised in the following manner.

28.	Inspector Peter Gorek was the first state witness, giving sworn evidence. He said that on 14 April 2014 he was the police station commander of Ramu at the time of the mass murder, and they arrested 192 persons. Between 5:30am and 6:00am he was praying when he was interrupted by a phone call from policeman Kenneth Huya. He told him that on his way to Madang, he sighted a group of men with black painted faces at Sankian bridge, and they were armed with bush knives, guns, bow and arrow and catapult. The group of men were walking to Ramu Sugar. After hearing this, the witness went to pick up two policemen and briefed them on what had transpired. The three went to the police station to pick up arms, but there were no guns in the armory.

29.	At 5.50am he drove on to the main road and met a group of men and turned on the police blue lights. He saw more than 200 armed men. He talked to them to stop but he was outnumbered. The group headed to what is commonly referred to as the Southgate of the Ramu Sugar Estate and continued on. The witness drove behind them. He met another police car and gave instructions for them to get other policemen. The group was heading to Sakiko and Sanira villages. The witness told the other policemen to alert the villages at Sakiko and Sanira to flee from the village.

30.	The witness picked up four officers and followed the group. He said these men live in a “house man,” and fasted to execute their plan. He followed the group for some distance and some company people in the fence were shouting that police had failed because one person was already killed. The deceased was from Jiwaka province and a company employee (Ramu Sugar Industries Ltd). He sighted the body bag on his left side and continued following the group with a siren and blue lights.

31.	The group of men split into two groups. The witness accelerated ahead to Sakiko village to warn them of the impending attack. There was a young man at second bus stop who tried to fight against the attackers. After passing the young man, he went to the edge of the village, next to Bumbu river and stopped at the escape route.

32.	The witness received instructions from the Acting Commissioner of Police, and the Provincial Police Commander not to make arrest as they were outnumbered and they should wait for reinforcement. At about 10:00am there was calm. He instructed the policemen to conduct a small search. Houses were burnt and people were screaming and running for their lives. When they were conducting search, reinforcement arrived from Madang, and they had a short briefing. They thoroughly searched the whole area. During the search he saw murdered people with heads cut, and brains removed. One of the deceased was an old man, killed and burnt in a house. He was told the man’s name was Dangingayo. At the Sakiko bus stop, he spotted the “hausman,” group, hiding amongst the cassava crops and told them to surrender. Although they were fully armed, they surrendered. He saw similar weapons to what he saw earlier.

33.	 The witness was not able to recognize them. The group was escorted to Sakiko field and put into 10 village groups and told to follow his instructions. They walked from the field to the main Bruce Jephcott Highway. It was getting late when they loaded them on to trucks to Ramu police station and contained them in the fence. He bought three biscuits cartoons and fed them. The police said units from Goroka and Ramu guarded them until the next day.

34.	In cross examination, he said there were no other suspects brought in by other policemen. All of the suspects were hiding in the cassava crops. The perimeter of their search was 1km. It was still light when they found them.

35.	From questions and answers from the bench, he said he could see fire, and someone trying to burn a house. He saw only three deceased. All of the attackers had painted faces. He could only remember Gomumu village and two other villages when he was asked where the suspects were from.  An identification parade was conducted as it was getting dark, and they all cooperated. There was a total of 7 deaths.

36.	The second witness was Kanda Popusewe. She gave sworn evidence. She moved with her family from Gomumu village to Sakiko village because a lady was killed and they were suspected of causing her death. She came to court because her child was killed. She was holding her child, Nathan Aku, who was three years old at the time. On Monday 2014 the “Hausman” came and killed her child. She said one of the persons who killed her son is in the courtroom and the other one was released because he was a student. She said it was Goyoyu, Duma, and Ruma who cut his head with knives at Sakiko. She identified Goyoyu in the courtroom as the second person from the left.

37.	In cross examination, she said their faces were painted with black paint. Even though their faces were painted, she recognized them because they were from the same village. From questions and answers from the bench she said Duma and Goyoyu swung the knives at her child. They are from the same village.

38.	The third state witness was Susan Yambung. She gave sworn evidence and said they moved from Gomumu to Sakiko when the hausman group was formed, after the death of a woman in Gomumu Village. She was on her way to the market when policemen came and warned them of the coming of Hausman. She informed her husband, and a boy assisted them to carry her father, to escape from the oncoming attack. The boy was speared on his leg, and he left her father and ran away. Her father was left near a banana tree and she went and stood about 3m away and watched them.

39.	They came and cut him to pieces. She left that area and ran to the mountain. The body was taken to Lae. Her father's name was Yambung. The hausman came from Gomumu. The faces of the hausman attackers were painted black and they could not recognize them. They came with bows and arrow. She did courtroom identification and said the person with the green shirt attacked her father.

40.	In cross examination, she said the name of the person with green shirt is Gusom. She did not mention the name Gusom in her statement to the police and it was put to her that she created the name Gusom in court.

41.	From questions and answers from the bench, she said she saw Aware Muru and others. The person in the green shirt in the company of others cut his father. The person in green shirt is Aware Muru.

42.	The fourth state witness was Yukui Sango. He gave sworn evidence and said he moved from Damainde to Sakiko because of accessibility of government and company services. He was in court because his grandfather, Baupa Dakinaiyo, was killed. On 14 April 2014 at 6:00am, he was asleep with his grandfather when policemen from Ramu arrived, woke them and told them to flee up to the mountain and river because “hausman,” have arrived. His grandfather was from Damainde Village and Gomumu village. He was surprised.

43.	The first fight took place at Sakiko bus stop. The fight came up to where they resided at the end of the village near the mountains. He told his grandfather to flee with him. His grandfather told him to leave him and go as he was an old man. He repeatedly asked his grandfather 5 or 6 times to come with him, but his reply was the same. He said these people are his grandsons, and his life will be in their hands. His grandfather also told him he was a young man and had a long life to live and they should not both die together.

44.	He left his grandfather and came out. The attackers were already close to the door of the house. Their faces were painted, and they were armed with guns, knives, wire catapults and bows and arrows. The sweat had washed some paint from their faces, and he recognized three of them, two of them have been released and one has escaped and is in the village now. The attackers were from Sonokai village, and they joined Gomumu hausman that day. The hausman group was formed after the death of a mother and they formed a group to look for sorcerers.

45.	He jumped down three (3) meters from the house, avoided a spear and he ran up the hill. He went uphill for about 12m to 15m and looked back to where he left his grandfather and he heard his grandfather call his name when they cut him. He watched as they set fire to the house. He followed the hill and ran away and came to the Ramu Agri Industries Ltd management area and met the Police.

46.	From question and answers from the bench, he said he was 34 years old and married with three children at the time of the incident. His family went with the police to his grandfather.

47.	The fifth state witness was Pastor Waha Foisa. The witness gave evidence and said he is from Jayapura and married to Sakiko village. He is a PNG citizen. He was present when the incident happened. He removed his parents before the attack. The group attacking them used guns, bows and arrows, and bush knives. He saw a young man shot as they were fighting. He escaped with his family. The fight continued as they exchanged spears. An elderly man was killed, but he did not see how he was killed. They found two dead bodies, one of a baby in the bush. There was an old man found near bananas. At the same time one of the attackers was shot with a gun so he assisted him. The attackers were young men, about 300. After the fight he counted a total of six deaths.

48.	From question and answers from the bench, he said he came as a missionary and went to pastor the local school and he married a lady from that area. The current fight now started in 2011. There were two children who were killed - one was five years old, and the other was older.

The Accused’s Evidence

49.	The Accused closed their case by offering no evidence. They exercised their right to remain silent. I will determine conviction solely on the evidence brought by the State.

Crime Scene Visitation

50.	The court did a crime scene visit of the area where the killing was said to have taken place. The court party travelled by car to the locations covered by the oral testimony of the witnesses. The court party consisted of the two lawyers – for the State and the accused, the witnesses Inspector Peter Gorek, Kanda Popusewe, Susan Yambang, and the two accused.

51.	The alleged incident took place at Sakiko Village. The village is accessible by an unsealed road, off the Madang/Lae national highway, described as the Bruce Jephcott highway. On a slow drive, it takes roughly 20min to reach the end of the village. It is a large village. Several houses occupy both sides of the road leading into the village. The end of the village lies at the foot of a hill. There is also a Church in the village.

52.	 About 60m into the road to Sakiko Village, the court was shown the area where the deceased body of the former employee of Ramu Agri Industries Ltd, from Jiwaka was retrieved. He was alleged to have been killed by the “haus man” gang. 

53.	Arriving at the village, the Court was shown two specific locations within the village by the witnesses Kanda Popusewe (mother of deceased child, Nathan Aki) and Susan Yambung (daughter of deceased man, Yambung Nawoya). Kanda Popusewe took us to the side of the mountain some 5 to 10 min walk from the houses. She had fled there and this was where her child Nathan Aki was snatched from her hand and cut with a knife. Another 20min walk from that location, was the house of Susan Yambung. Her father was shot with an arrow while fleeing the house. She saw her father being attacked about 10m away. There was no obstruction to the view of both witnesses.

The State’s Submissions

54.	The State submits that based on common sense, logic and rational inference both accused, through their active participation, armed involvement, and collective assault over an extended pursuit, unlawfully and intentionally caused the death of the victims in Count 3 and Count 6. 

55.	The State further submits that the case against Enos Aware and Jeffrey Ronny is simple and clear. They were part of a large group ("Hausman") that planned and carried out the killings of alleged sorcerers in Sakiko village. This shows they shared a common and unlawful goal to commit these murders. Witnesses clearly identified the accused, despite face paint, based on familiarity and careful observation. Forensic reports, photographs of victims, weapons, and crime scenes back up the witnesses' accounts. The accused's weapons and presence prove their active role in the violence. The State further states that even if they did not kill every victim directly, they helped and supported the group’s attacks, making them legally responsible. Witnesses consistently told the same detailed story, which matches the forensic evidence, leaving no doubt about the accused’s guilt. Local beliefs about sorcery explain the motive behind the killings. The accused’s silence means the court relies fully on the strong evidence presented by the prosecution. Altogether, the evidence proves beyond reasonable doubt that the accused committed the offence they were charged for.

56.	 The State then contends that in Kakivi v The State, the following are applicable to the present case:

•	Generally the State proved beyond reasonable doubt that there was wilful murder at Sakiko village.
•	The applicants, including the accused were part of the Hausman group that attacked the Sakiko Village with a Common unlawful purpose.
•	Direct perpetrators were identified, others were linked by participation.
•	Each applicant was guilty as an Aider or abetter.
•	Paragraph 12 provided the background to this case.
•	Paragraphs 18 and 21 provided confirmation of the deaths of victims (Yambung Nawoya and Nathan Aki) and the circumstances surrounding their deaths.
•	In Paragraphs 24, 25, 26 and 27 Gavara- Nanu J in his reasoning, in simple, said the accused persons in this matter are guilty.
•	In Paragraphs 105 and 110 Batari J spoke about aiding and abetting and how these accused persons can be held criminally liable.
•	Finally, in Paragraphs 123 and 125 respectively, David J further confirmed the convictions of Enos Aware and Jeffrey Ronny respectively.  

57.	Based on these submissions the State submits that Enos Aware and Jeffrey Ronny are guilty of wilful murder as charged on the indictment.

Accused’s Submissions

58.	The Defence submits, that the primary issue is the identification of the two (2) accused. There is evidence before the Court the witnesses identified the accused, however, the names of the accused that the witnesses identified them with, do not match the names charged in the indictment.

59.	This issue of positive identification, the Defence submits, arose in the previous trial in the National Court and was in contention in the appeal (Kakivi v The State at [96] and [97]). The State has not rectified this issue in the re-trial.

60.	According to the Defence, the State witness, Susan Yambung, identified Enos Aware in the courtroom as the person with the green shirt and said his name was Gusom. However, in cross-examination she agreed that she did not mention the name Gusom in her statement to the police and she created the name Gusom in Court. From questions and answers from the Bench, she said the person’s name was Aware Muru.

61.	The Defence further submits that the State witness, Kanda Popusewe, identified Jeffrey Ronny in the courtroom as the second person from the left and his name was Goyoyu. The name Goyoyu is different from the name charged in the Indictment.

62.	The Defence takes the position that this court should apply the principle enunciated in Kakivi v The State, (at [97]) that Enos Aware was not positively identified. The Defence submits that the State did not establish from the witness whether the person named Gusom or Aware Muru is the same person named as Enos Aware in the indictment. The State failed to positively identify Enos Aware from the beginning of the trial to the end of the trial to accord the accused a fair trial.

63.	Similarly for Jeffrey Ronny, applying the principle at [97] in Kakivi v The State, the State failed to positively identify him. The State did not establish from the witness whether the person named Goyoyu is the same person named as Jeffrey Ronny in the Indictment. The State failed to positively identify Jeffrey Ronny from the beginning of the trial to the end of the trial to accord the accused a fair trial.

64.	Further to the issue of positive identification, the Defence submits that the witness Susan Yambung’s identification evidence against Enos Aware is unreliable because of the inconsistencies in her identification evidence. She kept changing the name of the accused and making up names in her testimony. The State did not establish why the witness was changing the name of the accused.

65.	The Defence contends, the State has not proved beyond reasonable doubt the first element of Wilful Murder- that is the accused killed the deceased for both accused.

66.	As a result, Enos Aware should be found not guilty and acquitted from Count 3 of the Indictment and Jeffrey Ronny should be acquitted from Count 6 of the Indictment.

The Law on Identification

67.	It appears not disputed that the main factual issue before the court is one of identification of the accused killing the two deceased.

68.	Beng v The State [1977] PNGLR 115 is the often-cited case on identification evidence where the Supreme Court held:

•	In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.

•	When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.

69.	Applying this principles enunciated in Beng v The State, I warn myself of the inherent dangers of identification, and the need for caution before I can proceed to convict based on any identification evidence before the court.

Consideration

70.	If the State relies on the same evidence, Kakivi v The State has not given much room for the State to improve its case on the issue of aiding and abetting and prosecuting a common purpose. The most relevant evidence that is before the court is that of eyewitnesses identifying the accused participating in the killing of the two deceased at two different locations. On aiding and abetting no new evidence has been brought by the State. To rely on the present evidence to establish aiding and abetting and prosecution of a common purpose would run contrary to the Supreme Court’s decision. I will therefore determine guilt against each accused individually.

71.	Ordinarily the two accused are meant to be tried separately. But the circumstances are that they were tried on aiding and abetting and prosecuting a common purpose. I therefore deal with both matters as a joint trial.

72.	Geta v The State [1988-89] PNGLR 153 provides a handy list of questions to interrogate the evidence to confirm the identification of the accused. Justice Bredmeyer sets out these questions which I repeat hereunder:

I remind myself of the need to examine closely the circumstances of the identification made by each witness. For example, how long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the accused before, and if so, how often? If only occasionally, had he any special reason for remembering the accused? How long had elapsed between the original identification and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by him and his actual appearance?

73.	What I am conscious of in this case, is that since this is a case involving multiples co-accused, and now that there are only two left, they can be easily mistaken for the other accused, or worse still assume the blame for what other members of their village did. This fear or doubt I have about the identity of the accused comes about from them being identified with names other than the name that they were identified with in the indictment. In circumstances like this, the doubt that I have regarding their identity would have been put to rest if additional evidence was called to confirm the other names of the accused.

74.	One of the causes of these doubts that I have comes from the initial case in the National Court. The witness Kanda Popusewe did not identify Jeffrey Ronny as one of the persons involved in cutting her child. Her statement also does not have Jeffrey Ronny’s name. Jeffrey Ronny’s involvement in the death of Nathan Aki is now raised for the first time.  

75.	I accept that the lighting was good, and the distance in the observation for both witnesses was less than 10m. There was no impediment in their observation. However, their faces were painted. This makes positive identification difficult. This would mean that recognition would play a big role to confirm their identity. I would therefore require evidence of how well and how long the witness knew the accused to confirm their identity. This aspect of the evidence did not come out clearly from both witnesses.

76.	This difficulty is compounded by the fact that Enos Aware was identified as “Gusom,” and Jeffrey Ronny was called “Goyuyu.” Why do they both have a different names now? Is Gusom actually a person that looks like Jeffrey Ronny, and similarly, is Goyuyu actually a person, that looks like Jeffrey Ronny. An honest witness can be a mistaken one. 
 
77.	My doubts would have been put to rest, if additional witnesses were called, to confirm that Enos Aware also goes by the name Gusom and Jeffrey Ronny, Goyuyu.

78.	As I said above, additional evidence eliciting whether the witness had seen the accused before, and how often would have bolstered the reliability of their testimony.

79.	My conclusion is that the State has not proven its case beyond reasonable doubt against that the two accused, Enos Aware and Jeffrey Ronny that they committed the offence of wilful murder.  

Closing Remarks

80.	I want to say this in closing. Despite the fact that Papua New Guinea professes to be a Christian country and one that has “Codes, Courts and Constables,” cases such as this suggest that traditional beliefs and resort to violence, still persist in our society. After the commission of a crime in a village setting, bringing witnesses to court to testify is not an easy task.

81.	This case also looks at how the modern criminal law premised on individual responsibility can effectively attribute group criminal responsibility to offences committed by offenders who are tied together by social customary norms. Justice Batari in Kakivi v The State made comments alluding to this when he observed at [105]:

It is a notorious fact in the circumstances of this country and the cultural influences in communities, that in a group enterprise, irrespective of good or evil, the individual finds solace, comfort, and security in the group closely knitted by kinship and social obligations. So, when the occasion presents itself for cooperative participation, the individual rights to freedoms becomes secondary, it is quickly lost to group bonding and peer pressure. Hence, the individual is more susceptible to merely follow others or even volunteer responsibility in sacrificial acts to save others, particularly, elders and those with status.

82.	These observations are made to acknowledge the difficult circumstances present in the country in upholding the rule of law – not just financial but the conflict of modern law with customary law.

83.	It may mean that the legislative and constitutional reform have to be considered to ensure the rule of law is maintained in a village communal setting. As to what form legislative intervention will take will depend on Parliament’s wisdom to make laws for the peace, order and good government of Papua New Guinea and the welfare of the people (s 109, Constitution). 

Orders

84.	The formal orders of the court are as follows:

1.	The accused Enos Aware’s is found not guilty of the charge of wilful murder and is to be released forthwith from custody.
2.	The accused Jeffrey Ronny is found not guilty of the charge of wilful murder and is to be released forthwith from custody.

85.	Judgment and orders accordingly.
________________________________________________________________
Lawyer for the State:  Acting Public Prosecutor
Lawyer for the accused:  Public Solicitor