N11739

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR 434, 425 & 426 OF 2025

THE STATE

AND 

FRANCIS ASA, DAULODY KETAUWO & BRITNEY POSA
GOROKA: WAWUN-KUVI J
24-25 FEBRUARY, 5 MARCH 2026       
              
CRIMINAL PRACTICE AND PROCEDURE –TRIAL-ATTEMPTED MURDER, s 304 Criminal Code- Principal Offender, Aiders and Abetters, s 7(1)(a)(b) &(c) of the Criminal Code- Whether the accused persons formed a common intention to kill the deceased? Whether they aided and abetted each other?

Cases cited

Kakivi & Ors v State (2023) SC253
Gamu v The State (2023) SC2368
Kakivi & Ors v State (2023) SC253
Kitawal v State [2007] SC927 
Waranaka v Dusava [2009] SC980
Kitawal v State [2007] SC927
Bonu and Bonu v The State [1997] SC528
Pari and Kaupa v The State [1993] PNGLR 173
The State v James Pah [1985] PNGLR 188
Supreme Court Reservation No 4 of 1984
R v Bauoro-Dame [1965-66] PNGLR 201
State v Belami & Haro [2020] N8613
State v Namaliu [2020] N8284
Agiru Aieni and 12 Others v Paul Tahian [1978] PNGLR 37
Counsel
E Nema-Kale for the State
V Move for the accused
					
VERDICT
1.	WAWUN-KUVI J: The accused persons have been charged with one count of Attempted Murder under s 302 of the Criminal Code.
2.	 It was alleged that at about 12.30 am on 23 March 2024, the complainant, after consuming alcohol at Ace Club, left for his home at Piswara. He crossed the road to the Bird of Paradise Hotel and stopped to chew betel nut. While he was there, Francis Asa asked him for a cigarette lighter. He told Francis Asa that he did not have one. Francis Asa then left and returned with five or six of his friends. Daloudy Ketauwo and Britney Posa were among the group. When they arrived at where the complainant was, without warning, Francis Asa and Daloudy Ketauwo started assaulting him. Britney Posa stood and watched. Daloudy Ketauwo brutally beat him, while Francis Asa and Britney Posa stood by and did nothing to intervene. The complainant sustained a serious injury to his head and fell unconscious. He was rushed to the hospital. The accused persons were later arrested and charged. The State says that the actions of the accused persons demonstrated that they had intended to kill the complainant.
3.	The State invoked s 7(1)(a), (b) and (c) of the Criminal Code in that the accused persons all aided and abetted each other in the commission of the offence.
Elements of the Offence
4.	The State must prove that the accused persons:
1.	intended to kill another person; and
2.	put that intention into execution by some overt act: see Gamu v The State (2023) SC2368 following R v Bauoro-Dame [1965-66] PNGLR 201, Supreme Court Reservation No 4 of 1984 and The State v James Pah [1985] PNGLR 188.
Parties to an offence
5.	Section 7 sets out different ways in which a person can participate and be found guilty of an offence. S 7(1)(a)(b) and (c) of the Code reads:
7. Principal Offenders.
(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:
(a)every person who actually does the act or makes the omission that constitutes the offence;
(b) every person who does or omits to do any act for the purpose of enabling or aiding 
	(c) every person who aids another person in committing the offence; and
6.	For the purposes of ss 7(b) and (c) aiding or abetting must be doing something or omitting to do something for the purpose of assisting, enabling, or encouraging the principal offender.
7.	 However, doing an act alone does not attach criminal liability; the accused is only liable for the acts of his accomplices if he was fully aware of the plan and was involved.
8.	In State v Belami & Haro [2020] N8613 Berrigan J explained section 7(1)(c), which I find also relates to s 7(b) in this way:
“124. For the purposes of s 7(1)(c) the State must first establish by evidence that is admissible against the accused that a crime has been committed by another person:  R v Tovarula [1973] PNGLR 140. The words do not require that the principal offender must be convicted before another may be found liable as a party to an offence: see R v Lopuszynski [1971] QWN 33. It is enough that the commission of an offence by someone is established in the case against the alleged accessory: Borg v R [1972] WAR 194.
125.      The State must also establish for the purposes of s. 7(1)(c) that the accused knew the essential facts constituting or making up the offence that is being committed or about to be committed, including where relevant the state of mind of the principal offender, and acted with intention to aid him: R v Turan (1952) N211; Tovarula (supra).
126.      It is not possible to be an aider through an act which unwittingly provides some assistance to the offender: Coney (1882) 8 QBD 534. To aid means that the person charged as a principle in the second degree “is in some way linked in purpose with the person actually committing the crime and by his words or conduct does something to bring about, or render more likely, the commission of the offence”: R v Tovarula applying R v Russell [1933] VR 59.
127.      In addition to the intention to aid, there must be aiding in fact: R v Wendo [1963] PNGLR 217.”
9.	Additionally, it is settled that mere presence at the scene is not sufficient to attach criminal liability.
10.	As discussed in Agiru Aieni and 12 Others v Paul Tahian [1978] PNGLR 37 and affirmed in the Supreme Court in Kakivi & Ors v State (2023) SC253:
“Proof of mere presence at a place where a number of people are found will not constitute aiding and abetting, sufficient to support a conviction for breach of s. 8 of the Summary Offences Act, 1977, there needs to be some proof of promotion or encouragement of the principal offender.
It is not enough then, that the presence of the accused has, in fact, given encouragement. It must be proved that the accused intended to give encouragement; that he wilfully encouraged… there must be encouragement in fact.” [Emphasis mine].
11.	To prove that the accused aided or abetted the principal offender under ss 7(b) and (c), the State must prove: (1) an offence was committed; (2) the accused knew the principal offender's intent; and (3) the accused intentionally encouraged or assisted the principal offender.
Assessment of the Evidence
12.	There is no rule of law requiring acceptance or rejection of all a witness's evidence. I may give different weights to different parts and decide to believe none, some, or all of it: Pari and Kaupa v The State [1993] PNGLR 173 and State v Namaliu [2020] N8284.
13.	As required, I observed each witness, weighed their evidence, and considered whether it was logical and consistent or if inconsistencies affected credibility: Bonu and Bonu v The State [1997] SC528 and Waranaka v Dusava [2009] SC980.
14.	Having said this, it is incontrovertible that the deceased was punched, which caused him to fall to the ground, knocking his head on the cement pavement. The injury was sufficient to knock him unconscious. 
15.	The complainant did not see who punched him and only remembers waking up in hospital. He suffered a traumatic brain injury and was intoxicated, impairing his memory and cognition. The State did not dispute his intoxication indicating acquiescence, see Kitawal v State [2007] SC927. It is also contained in their allegations that the complainant was consuming alcohol. He stated that he could not recall what transpired after his fall and was only told by others. Considering his intoxication and brain injury I do not believe that he recalls anything of that evening. His account closely matches Carolyn Ken’s, indicating he is repeating her story. For these reasons, his evidence is unreliable and carries little weight.
16.	The State’s case relies on Carolyn Ken’s evidence, which I find untruthful and unreliable. She was evasive and selective, failing to explain inconsistencies between her police statement and court testimony. She contradicted herself about key facts, such as the presence of street boys and her actions to help the complainant. Her claim that the fight began over a lighter is illogical and unconvincing. She provided no evidence implicating Francis Asa or Britney Posa. Her statement that Dalody Ketauwo punched the complainant from behind without a word is unconvincing.
17.	I found the accused persons to be witnesses of truth. Each accused’s evidence was consistent, straightforward, and not shaken in cross-examination. Their Court versions matched each Record of Interview given in 2024. Francis Asa asked for a lighter. The drunk complainant yelled abusive words and said, “Before you reach your home, a coffin will be waiting for you.” Francis Asa was hurt, as his mother had just died. He and Britney Posa walked away, but the complainant kept yelling. Near St Mary’s, Francis Asa saw Daloudy Ketauwo, who was dating his sister. Britney Posa stayed at St Mary’s side while Francis Asa crossed the road. Daloudy Ketauwo, was engrossed on Facebook and although heard yelling paid no heed to the words. He then saw Francis Asa and observed that he was upset and asked what happened. They were about 10 to 12 meters away. Francis Asa told Daloudy Ketauwo, and they agreed to confront the complainant as to why he said those words. Britney Posa did not join them. Daloudy Ketauwo asked the complainant why he was picking on someone smaller. The agitated complainant smashed a beer bottle on Daloudy Ketauwo’s face and punched him. Daloudy Ketauwo responded. They exchanged a few punches before the complainant fell. Neither Francis Kasa nor Daloudy Ketauwo saw how he fell, because a group of boys converged on Daloudy Ketauwo. Francis Asa tried to stop them. Britney Posa was not near the initial confrontation and subsequent altercation.
18.	The defence evidence is credible and consistent with my observations. Considering that Dalody Ketauwo and Francis Asa are much younger, shorter, and smaller than the complainant. I find it improbable that they sought a fight; instead, the evidence points to their intent to confront the complainant about his words rather than to start a physical altercation.

Application of the law to the facts 

19.	The general evidence is that Britney Posa was not present during the initial confrontation and altercation. She said nothing, and her whereabouts were unknown to both Francis Asa and Daloudy Ketauwo. Accordingly, the evidence excludes Britney Posa from the scene.
20.	The general evidence demonstrates that although Francis Asa was present, he took no action and made no statements toward the complainant. Made no encouraging statement in support of Daloudy Ketauwo.
21.	There is no evidence that Francis Asa told Dalody Ketauwo to assault the complainant.
22.	 As said, Dalody Ketauwo was fending off the assault from the complainant and then others who had joined to aid the complainant. I have accepted his evidence that he only went to ask the complainant why he had said the words. I do not find that to be provocation.
23.	The relevant provision is therefore s 269 of the Criminal Code. It reads:
“SELF-DEFENCE AGAINST UNPROVOKED ASSAULT.
(1) When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm.
(2) If
(a) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and
(b) the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm,
it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm.”
24.	 The elements of section 269(1) were provided in Henry v State [2022] SC 2266 as follows:
Section 269(1) of the Criminal Code contains the following elements:
(a)      there was an unlawful assault on the accused;
(b)      which was not provoked by the accused
AND the force used by the accused was:
(c)      reasonably necessary to make an effectual defence against the assault;
(d)      not intended to cause; and
(e)      was not likely to cause, death or grievous bodily harm.
25.	The Supreme Court described the test on whether the force is reasonably necessary in s 269(1) as being objective. That is, whether any reasonable person observing the situation would conclude that the force used by the accused was necessary to defend himself and was not intended to cause or not likely to cause grievous bodily harm or death.
26.	The test of reasonably necessary force in s 269(1) was described as objective. That is, whether any reasonable person observing the situation would conclude that the force used by the accused was necessary to defend himself and was not intended to cause or not likely to cause grievous bodily harm or death.
27.	A distinction was drawn between s 269(1) and s 269(2). The Supreme Court said: 
“11. By comparison, none of the three conditions in s 269(1) as to force appear in s 269(2). As such where there is an unlawful and unprovoked assault only two conditions need to be satisfied for self-defence to be available under that subsection:
(a)      The nature of the assault must be such as to cause reasonable apprehension of death or grievous bodily harm; and
(b)      The accused must believe on reasonable grounds that he or she cannot otherwise preserve the person being defended from death or grievous bodily harm.”
28.	Given the facts that I have accepted, Daloudy Ketauwo has established a defence under s 269(1) of the Code.  He was acting in self-defence against an unprovoked assault. He was struck on his face with a bottle of beer and then punched. He did not provoke the assault. He then punched the complainant back. The complainant's fall was unintended. He was still defending himself from the group of boys.
29.	 In conclusion, there was no evidence that there was a plan to kill or cause grievous bodily harm. There was no evidence that any of the accused intended to kill or cause grievous bodily harm.
30.	For all the foregoing reasons, a verdict of Not Guilty is returned against all accused persons.
Orders
31.	The Orders of the Court are as follows:

1.	The accused persons having been charged with one count of Attempted Murder under s 302 of the Criminal Code are found Not Guilty.
2.	They are acquitted and discharged pursuant to s 591 of the Criminal Code.
3.	Their bail and any paid sureties are refunded.
4.	The CR files are closed.

Lawyer for the State: Acting Public Prosecutor
Lawyer for the accused: Public Solicitor