N11742

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 148 OF 2023

THE STATE

V

KINGSTON SAMBE

WEWAK: MURRAY J
17 & 20 FEBRUARY 2025; 10 MARCH 2026

CRIMINAL LAW – Wilful Murder – Plea of Not Guilty – Statements of admissions in record of interview – Whether safe to convict on uncorroborated statements of admission - need for corroboration – Unsafe to convict on uncorroborated statements of admissions.

Case cited

Onoma Andrew v The State (2009) SC997
State v Mausen (2005) N2870

Counsel

Ms. D. Ambuk, for the State
Mr. A. Kana, for the accused

DECISION ON VERDICT

1.	MURRAY J:   	The accused was charged with one (1) count of Wilful Murder, on offence prescribed under Section 299 (1) of the Criminal Code Act as amended. He pleaded not guilty, so a trial was conducted.

2.	At the start of the trial, State sought to tender into evidence the Record of Interview (ROI) of the accused but was objected to by the Defence. That resulted in a voir dire hearing. After hearing the evidence and submissions, I dismissed the objections and admitted the ROI into evidence as part of the State’s evidence marked as Exhibit “P4(a)” – Pidgin (original) version and Exhibit “P4(b)” – English Translated version.

3.	After that, State closed its case, and before the Defence opened its case, a no case submission was moved by the Defence counsel. After considering the submissions, I, in a brief ruling dismissed the no case submission and ordered the Defence to answer to the charge.

4.	The Defence called 2 witnesses. The accused himself and 1 other, namely Standford Tokol.

5.	The accused in his evidence, said, he was home with his parents when the death occurred. Their house is 2km from the crime scene. Those that killed the deceased were; John Tokol, Steward Tokol, Standford Tokol, Ferdinard Sambe and Nathaniel Wamahau. They admitted to the killing. He was not with them. The deceased is his cousin brother. His mum is his dad’s sister.

6.	In cross examination, he said, he knew the persons he named as those who killed the deceased because they told him. They were all taken to the police station, as suspects and John Tokol escaped but the others admitted to the killing. He denied being in the group that killed the deceased and maintained that he was with his parents at their house then. What is recorded in the Record of Interview are all not true.

7.	Most of his evidence is the same evidence he gave in the voir dire hearing, which was in relation to his admissions in the ROI, which I did not accept, rejected his objections and admitted the ROI.

8.	Other part of his evidence, in essence was his denial of being in the group that killed the deceased. He said he was at his parent’s house at the time the deceased was killed by those boys who have admitted and have been convicted. 

9.	This part of his evidence contradicts the admissions in the ROI and at the same time raised the defence of alibi.

10.	The Defence second witness is Standford Tokol. His evidence is that, at the said date and time, he, together with his father, John Tokol, Steward Tokol, Nathaniel Wamahau, and Ferdinard Sambe went to the main village, where the Deceased’s house was. There at the village, a fight broke out and except for his father, he and other boys, namely: John, Steward, Nathaniel, and Ferdinard. They were the ones who killed the deceased and have pleaded guilty and were convicted for wilfully killing the deceased. The accused was not with them at all.

11.	In cross examination, he maintained that the accused was not with them. It was just him, and the ones he named. They fought and killed the deceased because he (the deceased) cut his father first. The accused’s name was included in the list by the complainant for no reason. 

12.	In essence the evidence of this witness corroborates the evidence of the accused, in so far as it was in relation to the accused’s non – involvement in the killing of the deceased. He maintains, the accused was not with him and the other boys who killed the deceased.

13.	Relying on the said evidence, counsel for the accused, made the following submissions. Firstly, he submits, the State’s case is based on the ROI alone. It is circumstantial evidence which should not be given any weight. Secondly, he submitted, the accused called 2 witnesses. Both gave sworn evidence of which State did not destroy in cross examination. Both witnesses’ evidence remained intact and must be accepted. Lastly, he submits, in the accused’s evidence, he raised the defence of alibi. A formal notice was served prior to the trial. The evidence of the alibi by the accused was corroborated by Standford Tokol. State did not call any witnesses to contest the alibi evidence, leaving the defence of alibi to remain unchallenged.

14.	In all those circumstances, it was finally submitted that, in the absence of any independent evidence to support the essential elements of the charge of wilful murder, it would unsatisfactory and unsafe to rely on the circumstantial evidence alone and convict the accused. Accordingly, a verdict of not guilty should be returned. 

15.	Ms Ambuk for the State, in essence argued that firstly, whilst State did not call any witnesses, the Court should accept the ROI containing facts of the accused’s involvement in the killing of the deceased. The facts being he was there in the group that attacked and killed the deceased. This version was given soon after the incident. The version he gave in Court is a recent invention and should not be believed. 

16.	Secondly, it was argued that, the alibi raised by the accused in his defence should not be believed, because there is no evidence to support it. The evidence by Standford falls short of achieving that. He gives an account of the accused not being with them. This evidence should not be believed because, he was in the middle of a fight. It is not possible for him to be keeping note of who is there or not whilst in a fight.
17.	Ms Ambuk submits, for those reasons, the court should accept the admissions by the accused in the ROI and convict the accused as charged, or convict him on an alternative charge pursuant to Section 539 (4) of the Criminal Code.

Consideration and Decision

18.	The accused is charged with wilful murder, an offence prescribed under Section 299 (1) of the Criminal Code. In order for this Court to return a verdict of guilty, the State must prove beyond reasonable doubt all the elements of the offence of wilful murder. The elements are:

(1)	That the accused killed the deceased
(2)	That the killing was unlawful and
(3)	That the accused intended to cause the death of the deceased. 

19.	Those elements of the offence, give rise to 3 issues which I must determine. Those issues are:

(1)	Did the accused kill the deceased?
(2)	Was the killing unlawful and 
(3)	Did the Accused intend to cause the death of the deceased?

Issue No. 1: Did the accused kill the deceased?

20.	The State says that the accused did kill the deceased in that, he was part of the group that attacked and killed the deceased. To establish that, State relies on the ROI, Exhibit P4(a) and (b), which contains admissions by the accused that he was with the others who killed the deceased. 

21.	Before I consider whether the Sate has, based on Exhibit P4(a) and (b) proven beyond reasonable doubt that the accused killed the deceased, I must consider the defence raised by the accused.

Defence of alibi

22.	Pursuant to a Notice of Alibi filed and served on the State, the accused has in his oral evidence said he was not at the crime scene with the others who admitted to the killing. Instead, he was at home with his parents.

23.	Standford Tokol, who is one of the boys who has admitted to killing the deceased gave evidence in support of the accused. He said, he was with John Tokol, Stewart Tokol, Bradford Tokol, Nathaniel Wamahou and Ferdinard Sambe. They were the only ones who attacked and killed the deceased. The accused was not with them at all.

24.	In most dictionaries, an alibi is defined as a legal defence or claim that a person was in a different location or in latin, it means “elsewhere” when a crime was committed. 

25.	In the case of State vs. Mausen (2005) N2870, Justice Cannings summarised the main principles of an alibi defence as follows;

•	If an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence.

•	However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the judge.

•	How strong or convincing the alibi evidence must be, depends on the strength of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused.

•	Unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it.

•	An alibi is properly regarded as a defence but before it can be said to fairly arise there must be some evidence in support and not mere speculation.

•	An alibi is not one of the excusatory defences such as self-defence, provocation or mistake, which concede the presence of the accused and his or her involvement in a series of events that led to the final state of affairs and are like a confession and avoidance. An alibi entails a complete negation and puts every matter in issue. 

•	If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt.

•	An alibi that is determined to be false may, depending on the circumstances, amount to corroboration of the complainant’s evidence.

•	 Great caution should be exercised before drawing an inference adverse to an accused, as a result of the accused’s failure to call a witness that might reasonably be expected to support the accused’s alibi.

•	As a matter of practice, defence counsel should put questions about the alibi to the prosecution witnesses, to comply with the rule in Browne v Dunn (1893) The Reports 67.

•	A belated alibi, not revealed on any earlier occasion prior to trial, should be given less weight than an alibi consistently given over a long period, e.g. since the beginning of the police investigation, in a record of interview or in District Court committal proceedings.

•	Guilt should not be inferred from the accused not mentioning the alibi on an earlier occasion, as the accused has the right to remain silent at all times. However, as a matter of fact the lateness of an alibi reduces its weight.

•	The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail.

•	The court should assess the degree of logic and commonsense in the evidence of the alibi witnesses (the terminology used by Kandakasi J in Talangahin (No 1), Kondi (No 1) and Poni).

•	The court should also consider the demeanour of the alibi witnesses and whether there are any inconsistencies in their evidence.

26.	In this case, I agree with the Defence counsel that the accused’s alibi has not been challenged by State as no witnesses were called. However, I do find a problem with the accused’s alibi and that is, the evidence by Standford, in my view, falls short of being an alibi evidence. Alibi means elsewhere. Alibi evidence, if it is by a witness, must come from someone with the accused. The accused said he was at home with his parents. Standford was not with the accused. Hence his evidence is not an alibi evidence. The accused said he was with his parents. His parents would have been the ideal alibi witnesses to support his alibi. But they did not come forward. 

27.	One of the principles summarised above states:
“In practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the judge.”

28.	The accused in this case has not done that. Hence, I therefore reject the alibi outright.
 
29.	Having rejected the accused’s alibi, does not mean State has made out its case. Another consideration set out above is that, if an alibi is rejected, it does not necessary follow that a court should enter a conviction. The court must still be satisfied that the State has proven its case beyond reasonable doubt. Applying that to this case, I must still be satisfied that State has proven beyond reasonable doubt that, the accused was also one of those who killed the deceased. 

30.	I now turn to consider the issue at hand: Did the accused kill the deceased. 

31.	As it is, State relies on the ROI, which has been admitted into evidence following a voir dire hearing and it is marked as Exhibit P4 (a) and (b). The ROI contains admissions by the accused that he was with the others, including Standford Tokol and they killed the deceased.

32.	The question now is, can I safely convict on those admissions in the ROI?

33.	In Onoma Andrew v The State (2009) SC997, the appellant who was indicted and convicted on wilful murder appealed his conviction. On appeal one of the grounds was that it was unsafe to convict him on the basis of the uncorroborated confessions contained in the record of interview which conflicted with his Section 96 statement. On this aspect, the Supreme Court said at [38] – [41] said: 

38.	 “The principles in Koinbondi’s case have their genesis in the decision of the High Court of Australia in R vs. Mckay (1935) 54 CLR 1, which indicated that there is no rule of law that says a conviction cannot be based on an uncorroborated confession. However, its is equally clear that the trial judge must carefully examine the nature and extent of the confession and the circumstances in which it was made to exclude any reasonable doubt that is a false or unreliable confession. There principles have been applied in a number of other PNG cases: R vs. Mom and Debong [1995-1996] PNGLR 42, The State vs. Ungum Ovohe [1990] N 245: The State vs. Thomas Some (1982) N 366 and The State vs. Malepo (2) 1996 PNGLR 252. 

39.	The learned trial judge ruled that Koinbondi’s case did not apply as the facts could be distinguished in three aspects. First, the admission of the accused that he was present at the crime scene was corroborated by the evidence of the two state witnesses. Secondly, this case was fully investigated whereas in Koinbondi’s case there was no full investigation. Thirdly, in the appellant’s case the police investigator was not cross examined.

40.	As to those three points, we consider that His Honour made an error of law on the first one. The question that should have been asked was not whether there was corroboration of the appellant’s presence at the crime scene but whether there was corroboration of his admission that he killed the deceased. The answer to that question was clearly no. If the question had been raised and answered in that fashion, the danger of convicting on the basis of an uncorroborated confession would immediately have been apparent. It was particularly dangerous in this case as there was ample indication that the appellant wished to disown the confession. This indication come from the confessional statement and the Section 96 statement – both of which were admitted into evidence and the clumsy and the ill-fated attempt of the defence counsel to force the State to reopen its case so that it could cross examine the police investigator. 

41.	With respect, we consider that the learned trial judge was focusing unduly on identifying the points or facts of distinction within the present case and Koinbondi’s case when the preferral approaches was to apply the principles of law established by the case to the circumstances of the present case. If the principles had been applied in the manner required, we consider that it would not have been reasonable to convict the appellant. For this reason also, we have reached the conclusion that the conviction was unsafe and unsatisfactory.” (emphasis added)

34.	In the present case, bearing in mind, what the Supreme Court said, in the Onoma case, I ask the question, is there corroboration of the accused’s statements of admission that he was part of the group of men that included Standford who killed the deceased?

35.	As it is, the answer to that question is in the negative. There is no other evidence either by the State nor Defence to corroborate the statements of admission by the accused that he was there with the group that killed the deceased. On the contrary the evidence by Standford, that the accused was not with them when they killed the deceased conflicts with the accused’s statement in the ROI.

36.	In the circumstances, it would be unsafe to convict on the uncorroborated statements of admissions in the ROI.

37.	It follows therefore that, State has not proven beyond reasonable doubt that the accused was one of those who killed the deceased.

Conclusion

38.	 As I have found the State has not established the first element of wilful murder, it is not necessary to consider the other issues arising from the other elements of the offence. It is also not necessary to consider the argument by the State that, I should convict the accused on an alternative charge under Section 539 (4) of the Criminal Code if the charge of wilful murder is not made out, for the same reasons I have found State has not established the first element of the charge of wilful murder. 

39.	The accused is therefore found not guilty. 

________________________________________________________________

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