SC2813
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV NO 53 OF 2023

BETWEEN:
THOMAS SARAHURU
Applicant

AND:
THE STATE
Respondent

WEWAK: KARIKO J, POLUME-KIELE J, NAROKOBI J
25, 26 NOVEMBER 2025

REVIEW AGAINST CONVICTION – Identification Evidence - Rape, s 347, Criminal Code, Conviction After Trial – Whether errors were made in identification - Whether conviction was safe. 

REVIEW AGAINST CONVICTION – Aiding and Abetting, s 7(1)(c), Criminal Code  – Role of Watchman -Whether aiding and abetting established - Whether conviction was safe. 

The basic facts upon which the applicant was convicted on two counts of rape were that between 6.00pm and 7.00pm on 9 November 2017, the applicant and five men went to the house of one of the victims. The applicant stood watch at the door, while the two victims were raped. The applicant was convicted for aiding and abetting under s 7(1)(c) of the Criminal Code. He had obtained leave to review his conviction under s 155(2)(b) of the Constitution, and his review grounds raise the issues of whether errors were made in his identification and whether he aided and abetted the commission of the offences.

Held:
(1)	Having considered all the evidence before the trial judge, no error is found in the assessment of the evidence against the established principles of identification evidence leading to the conclusion that the applicant was clearly identified by the State witness, especially the evidence that the applicant is known to the witness and he was observed over a long period of time at the time of the commission of the offence.

(2)	Belated alibi evidence found to be false has the effect of corroborating the State’s evidence (John Jaminan v The State [1983] PNGLR 318; Nare v The State (2022) SC2294). The trial judge correctly rejected the alibi evidence as it was not put to the State witness in cross-examination and due to the material inconsistencies between the applicant’s evidence and his two alibi witnesses, it was determined to be false.

(3)	The applicant encouraged the commission of the offence by his actions. He acted as the watchman, standing outside the house with a muscat in his hand while his accomplices went into the house and raped the two victims. The trial judge correctly found that it was established beyond reasonable doubt that the applicant aided and abetted the commission of the offence by his actions thereby satisfying the requirements of s 7(1)(c) of the Criminal Code.

(4)	Consequently, the application for review is dismissed and the applicant’s conviction is affirmed.

Cases cited
Agiru Aieni v Paul Tohian [1987] PNGLR 37
Application by Ludwig Patrick Shulze; Review Pursuant to Constitution s155(2)(b) (1998) SC572
Avia Aihi v The State (No. 2) [1982] PNGLR 44
Biwa Geta v The State [1988-89] PNGLR 153
Browne v Dunne (1983) 6R 67 HL
David Kandakson v The State [1998] SC558
Jimmy Ono v The State (2002) SC698 
John Beng v The State [1977] PNGLR 155
John Jaminan v The State [1983] PNGLR 318
Kakivi v The State (2023) SC2539
Nare v The State (2022) SC2294
Porewa Wani v The State [1979] PNGLR 593
R v. Coney [1882] UKLawRpKQB 30; (1882) 8 QBD 534

Counsel
Mr A Kana, for the applicant
Ms L Jack, for the respondent

JUDGEMENT

1.	BY THE COURT: The applicant seeks to review his conviction under s 155(2)(b) of the Constitution after leave to review was granted by a single judge of the Supreme Court. He was convicted in the National Court on two counts of rape pursuant to s 347(1) of the Criminal Code Act.

Background

2.	The basic facts upon which the applicant was convicted were that between 6.00pm and 7.00pm on 9 November 2017, the applicant and five men came to the house of one of the victims Regina Nombi, where another victim, Dominica Malon had come to visit. While the applicant stood watch at the door, Regina Nombi and Dominica Malon were raped. The five men then killed Regina Nombi and took Dominica Malon with them. The applicant was convicted for aiding and abetting under s 7(1) of the Criminal Code, the rape of Regina Nombi and Dominica Malon.

Grounds of Review

3.	The applicant raises three grounds of review:

•	The learned trial judge erred in his finding that there was sufficient evidence to convict the applicant of being the watchman whilst the two counts of rape were carried out.
•	The trial judge erred in his finding that there was sufficient evidence to convict the applicant pursuant to s 7 of the Criminal Code.
•	The trial judge erred in his finding that the applicant had aided and abetted two counts of rape.

4.	As this is a review under s 155(2)(b) of the Constitution the consideration before a review can be allowed was settled in Avia Aihi v The State (No. 2) [1982] PNGLR 44, that is that an applicant must show convincing reasons before the Court will exercise its jurisdiction to review.

5.	The practical effect of this was explained in Application by Ludwig Patrick Shulze; Review Pursuant to Constitution s155(2)(b) (1998) SC572, where the Court (Kapi DCJ, Sheehan J, Injia J) stated:

The nature of a review is different from the right of appeal that may be invoked under the provisions of the Supreme Court Act. The grounds upon which the right of appeal may be exercised are much wider in that a person may appeal on virtually any ground including appeal against findings of fact only. On the other hand, the grounds upon which a judicial review may be brought are limited by the criteria set out in Avia Aihi v The State (No 2)... [and] conveniently set out in PNG v Colbert [1988] PNGLR 138 where the Court concluded that the discretionary power of the Court should be exercised only where:

(a) it is in the interest of justice;
(b) there are cogent and convincing reasons and exceptional circumstances, when some substantial injustice is manifest or the case is of special gravity; and
(c) there are clear legal grounds meriting a review of the decision.
Issues

6.	When considering an appeal against conviction, the Supreme Court must be satisfied that in all the circumstances there is a reasonable doubt as to the safeness of the verdict (s 23, Supreme Court Act, John Beng v The State [1977] PNGLR 155).

7.	The three review grounds can be reduced into two issues for the court to consider. They are:

•	Whether the identification evidence was safe and reasonable in all the circumstances?
•	Whether the trial judge erred in finding that the applicant aided and abetted the commission of the two counts of rape? 

8.	Before addressing the two issues we turn to the findings of the trial judge on the aspect of conviction.

Evidence in the National Court

9.	The State called one witness, the victim, Dominica Malon, who gave following evidence identifying the applicant:

•	The applicant is related to Regina Nombi, and is also a distant relative of hers.
•	She had met the applicant on one occasion before, when he came to see Regina Nombi for a customary ceremony.
•	The time of the incident was between 6pm and 7pm and the lighting was reasonably good.
•	Just before she was raped, she was elbowed, and fell to the floor of the house. Looking up, she saw the applicant standing outside, with a musket and he was not masked like the other men who came to attack them at Regina Nombi’s house.
•	The men who came to attack them, killed Regina Nombi, but were prevented from doing that to her by the applicant.
•	After that incident she was led away by the applicant.

10.	When Dominica Malon was cross-examined, it was not put to her that the applicant was somewhere else at the time of the incident. She was not cross examined on the alibi evidence placing the applicant quite some distance from the crime scene. 
 
11.	The applicant gave evidence, that he was panning for gold at Yohung Creek that week commencing Monday 6 November to Friday 10 November, and that the place where the deaths occurred is quite far from where he resides. He also produced two alibi witnesses – the applicant’s wife Susan Wangihau Sarahuru and the other from her brother, Pastor Terry Wangihau.

Findings of the National Court

12.	The trial judge compared the evidence of the sole State witness and the applicant and he preferred that of the State. Identification of the applicant was made, following observance of the principles of identification in John Beng v The State. The State witness, Dominica Malon evidence was clear, identifying the applicant, who was not wearing a mask, and further the applicant was known to him. She made no hesitation in identifying him on court. The applicant’s evidence, and that of his two alibi were inconsistent, referring to details the applicant did not refer to, thereby making them unreliable. The alibi evidence was not put to the State witness, failing to observe the rule in Browne v Dunne (1983) 6R 67 HL.

13.	The trial judge then referred to the English case of R v. Coney [1882] UKLawRpKQB 30; (1882) 8 Q.B.D. 534, the judgment of Hawkins J to establish that the applicant aided and abetted the commission of the two counts of rape by his actions.

14.	For those reasons, the trial judge found the State had proven its case against the applicant in the National Court beyond reasonable doubt, and he was guilty of the two counts of rape. 

Submissions

15.	The applicant made the following submissions in his review against his conviction:

•	The trial judge’s findings that the incident occurred at 7.00pm in the night made it difficult to identity the applicant.
•	There was no evidence of common intention to carry out the offence, and that it was illogical that the applicant would attack his own relative.

16.	In response, the respondent submitted that the trial judge made no error, submitting:

•	The identification was strong and reliable and there was no error by the trial judge in the circumstances. He properly applied the principles on identification in John Beng v The State before reaching his conclusion.
•	The alibi evidence was a recent invention and could not stand up to the evidence of Dominica Malon. 
•	Although the applicant was standing outside, he was not an innocent bystander, he was armed with a gun and kept watch while the crime was being committed.

Considerations

17.	Before coming to his findings, the learned trial judge canvassed the principles on identification in John Beng v The State. He also referred to relevant authorities relating to aiding and abetting such as Agiru Aieni v Paul Tohian [1987] PNGLR 37.

18.	The cases of John Beng v The State, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698 provide the accepted principles a Court must be alert to when it considers the evidence of a witness identifying an accused who denies involvement. These considerations are:

•	There must be issued an appropriate self-caution.
•	There must be a careful assessment of the identification evidence.
•	An honest witness may be a mistaken one.
•	An identification witness must be honest and accurate.
•	Whether the evidence is corroborated.
•	Whether the person to be identified is a stranger or is known to the witness.
•	The length of time the witness observed the accused.
•	The emotional state of the witness.
•	The prevailing conditions.
•	The line of sight.
•	An accused is presumed innocent and sufficient weight is given to the accused defence evidence.
•	Accused right to remain silent is enforced.
•	Elements of the offence are accurately set out and applied.

19.	We have considered all the evidence before the trial judge and find no error in his Honour’s assessment of the identification evidence against the established principles leading to his conclusion that the applicant was clearly identified by Dominica Malon, especially the evidence that the applicant is known to the witness and he was observed over a long period of time. He was present at the crime scene as the watchman while his accomplices raped Dominica Malon and the other victim, Regina Nombi. The witness had seen him recently. He was observed not only at the crime scene because he did not wear a mask, but also for a duration of some three hours where he accompanied Dominica Malon as a hostage, walking in front of her before he surreptitiously allowed her to flee before his accomplices could see her escaping.

20.	In our view the trial judge correctly rejected the alibi evidence of the applicant as false. Firstly, its weight would have been considerably reduced as the alibi evidence was not put to the State witness to elicit her response, offending the well-established principles in Browne v Dunne. Secondly, his Honour carefully assessed the evidence and found that there were material inconsistencies in the version of evidence offered in the applicant’s belated alibi from his wife Susan Wangihau Sarahuru and her brother, Pastor Terry Wangihau. The applicant said he was panning for gold at a creek with his wives (in his evidence he has five wives) between Monday 6 November to Friday 10 November 2017, and his brother-in-law from one of his wife (Susan Wangihau Sarahuru) joined them. Pastor Terry gave evidence that he joined them at Yohang creek on Wednesday 8 November 2017. His wife said the applicant was with her and their children at the creek, and there was no one else with them at the time in question.

21.	Belated alibi evidence found to be false has the effect of corroborating the State’s evidence (John Jaminan v The State [1983] PNGLR 318; Nare v The State (2022) SC2294). After considering all the evidence, we confirm that the trial judge correctly rejected the alibi evidence as it was not put to the State witness and due to the inconsistencies between the applicant’s evidence and his two witnesses.

22.	Although the trial judge may have put the time of identification as 7.00pm, which would be dark, his acceptance of the whole of the evidence of Dominica Malon who observed the applicant over a long period of time, does not turn the appeal on this point alone. We conclude that there was no error by the trial judge in his finding that: 

•	The applicant is related to Regina Nombi, and is a distant relative of Dominica Malon.
•	Dominica Malon had met the applicant on one occasion before, when he came to see Regina Nombi for a customary ceremony.
•	The time of the incident was between 6.00pm and 7.00pm and the lighting was reasonably good.
•	Just before Dominica Malon was raped, she was elbowed, and fell to the floor of the house. Looking up, she saw the applicant standing outside, with a musket in hand and he was not masked.
•	The men who came to attack them, killed Regina Nombi, but were prevented from doing that to her by the applicant.
•	After that incident Dominica Malon was led away by the applicant.
•	There was no motive for Dominica Malon to lie.

23.	The fact that there was no motive for Dominica Malon to lie negates the applicant’s assertion that it would defy common sense and logic that he would not have been involved in the rape and killing of his relative Regina Nombi.

24.	On the second issue, we agree that mere presence does not amount to aiding and abetting, eliciting a common intention (Kakivi v The State (2023) SC2539). In this instance, the following circumstances demonstrate that the applicant’s involvement was not mere presence:

•	He was standing outside the house, holding a gun, acting as a watchman.
•	After the killing of Regina Nombi by his accomplices, he prevented them from killing Dominica Malon after she was raped.
•	Dominica Malon was held hostage for some three (3) hours before he assisted her to escape, and he was with her during this time. 

25.	We endorse the learned trial judge’s discussion of the principles on aiding and abetting from the cases of Porewa Wani v The State [1979] PNGLR 593, Aigiru Aieni v Paul Tohian [1987] PNGLR 37 and David Kandakson v The State [1998] SC558. The trial judge went on to discuss the case of R v. Coney. This English case was cited with approval in the Supreme Court in Kakivi v The State (at [58]). Hawkins J stated at p 557:

In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not.

26.	 From the findings of facts, we conclude that the applicant encouraged the commission of the offence by his actions. He acted as the watchman, standing outside the house with a muscat in his hand while his accomplices went in and raped Dominica Malon and Regina Nombi. In our view the trial judge correctly found that it was established beyond reasonable doubt that the applicant aided and abetted the commission of the offence by his actions meeting the requirements of s 7(1)(c) of the Criminal Code.

Conclusion

27.	Given our conclusion on the two issues raised by the applicant we find against the review grounds, that there is no reasonable doubt as to the safeness or satisfactoriness of the conviction, and consequently the application for review is refused as:
(a) it is not in the interest of justice;
(b) there are no cogent and convincing reasons and exceptional circumstances, manifesting some substantial injustice nor is it a case of special gravity; and
(c) there are no clear legal grounds meriting a review of the decision.

Order

28.	We would order that the review is dismissed and the conviction by the trial judge is confirmed.
________________________________________________________________
Lawyer for the applicant: Public Solicitor
Lawyer for the respondent: Acting Public Prosecutor