SC2820
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCRA NO. 5 OF 2024

ELVIS SOLO SIKAI
Appellant

AND:
THE STATE
Respondent

WAIGANI: TOLIKEN J, KOSTOPOULOS J, KHAN J
29 OCTOBER, 26 NOVEMBER 2025

APPEAL– CRIMINAL LAW–  Arraignment – Indictment containing several counts – appellant called upon to plead to all charges together instead of separately – verdict failed to specify which count appellant was found guilty of – verdict set aside for miscarriage of justice.

The appellant was charged with one count of sexual touching and two counts of rape.  The trial judge’s finding was that he believed the appellant and returned a verdict of not guilty of sexual touching and guilty of rape without specifying which count.  The trial judge’s commission expired before he could sentence the appellant.  The sentencing judge sentenced the appellant on count one on which he was found not guilty and imposed a total sentence of 46 years imprisonment and reduced it by 16 years to take into consideration the totality principle. He appealled that the trial was irregular in that the pleas were not taken individually for the charges in the indictment and that the trial judge failed to specify which count of rape he was found guilty of. That appeal was opposed.

Held:
1. 	The trial was irregular when the trial judge failed to take the pleas separately in respect of the numerous charges contained in the indictment. 
2. 	The trial judge erred in failing to specify which count of rape the appellant was found guilty of.
3. 	The trial judge’s verdict was miscarriage of justice and was set aside. 
4. 	The appeal was upheld.
5.	The conviction and sentence was set aside and quashed. 
6.	A retrial was ordered.

Cases cited
Brown v Statt [2003] 1 AC 601 at 719
Dietrich v the Queen (1992) 177 CLR 292
Francis Potape v State [2015] SC1613
John Beng v The State [1977] PNGLR 115 
Kara v the State [1984] PNGLR 254
State v Levo [2015] PGNC 23; N5902
William Norris v the State

Counsel
N Hukula for the appellant
R Luman for the respondent

1.	BY THE COURT: The Appellant was charged with the following offences:

                                                               COUNT 1

ELVIS SOLO SIKAI OF KERAPI VILLAGE, IALIBU, SOUTHERN HIGHLANDS PROVINCE, stands charged that on the 3rd day of June 2020 at Hohola 3, National Capital District in Papua New Guinea he sexually touched the breast of SHARMAINE SIKAI without her consent, contrary to the section 349 (1) (a) (4) of the Criminal Code. 

IN CIRCUMSTANCES OF AGGRAVATION the accused is member of the same family as the complaintant in that he is the biological brother of the complainant, contrary to section 349A (f) of the Criminal Code. 

                                                          COUNT 2

ELVIS SOLO SIKAI OF KERAPI VILLAGE, IALIBU, SOUTHERN HIGHLANDS PROVINCE, stands charges that on the 7th day of June 2020 at Hohola 3, National Capital District in Papua New Guinea sexually penetrated SHARMINE SIKAI by inserting his fingers into her vagina without her consent, contrary to Section 347 (1) (2) of the Criminal Code. 

IN THE CIRCUMSTANCES OF AGGRAVATION, the accused is a member of the same family as the complaintant in that he is the biological brother of the complainant, contrary to Section 349A (f) of the Criminal Code. 

COUNT 3:

ELVIS SOLO SIKAI OF KERAPI VILLAGE, IALIBU, SOUTHERN HIGHLANDS PROVINCE, stands charged that on the 7th day of June 2020 at Hohola 3, National Capital District in Papua New Guinea sexually penetrated SHARMAINE SIKAI by inserting his penis into her vagina without her consent, contrary to Section 341(1)(2) of the Criminal Code. 

IN THE CIRCUMSTANCES OF AGGRAVATION, the accused is a member of the same family as the complaintant in that he is the biological brother of the complainant, contrary to Section 349A (f) of the Criminal Code.

2.	The appellant pleaded not guilty to the above charges and a trial ensued and a verdict was delivered by the trial judge wherein his Honour made the following orders: 

i)	Guilty of rape 
ii)	Not guilty of sexual assault. 

BACKGROUND 

3.	The appellant is the eldest biological brother of the complainant. They were residing in a one-bedroom house in Hohola together with the appellant’s two uncles who were sleeping in the living area.  The appellant his wife and child and the complainant slept in the bedroom. On the day of the incident referred to in the charges the appellant’s wife had to her village. 
 
4.	After the verdict was delivered the trial judge was unable to sentence the appellant as his commission expired. The appellant was sentenced by another judge (the sentencing judge). A sentence of 46 years imprisonment was imposed – 6 years for count 1 and 20 years each for counts 2 and 3 to be served cumulatively. A period of 16 years was deducted from the total sentence to take in consideration the totality principles. The final sentence was 30 years imprisonment. 

THE APPEAL 

5.	The appellant appealed against the conviction and sentence. The grounds of the appeal against conviction are:

a)	The trial judge erred in law when he proceeded to the application of the state’s evidence to the issue before assessing the defence evidence and the entire evidence as a whole. 

b)	The trail judge erred in law when he ruled in Paragraph 42 of his judgement on verdict that “defence went to the great length to illicit evidence of the complainants past behaviour and to paint a picture of troublesome girl prone to lying and that these are irrelevant evidentiary materials” when these materials are relevant as they go to the issue of the credibility of the complainant. 

c)	The trial judge erred in fact and law when he did not consider defence submission on the dangers of applying the demeanour test. 

d)	The trial judge erred in fact and law when he ignored defence submission on the authenticity of the affidavit of doctor Aiyaka and the attached medical report dated 9th May 2020 and accepting it as corroborating evidence.

e)	The trial judge erred in fact and law when he failed to consider submissions on the application of logic and common sense to the evidence. 

f)	The trial judge erred in law when he failed to specify which count of Rape, he found the appellant guilty of. 

6.	The grounds of appeal against sentence are.

a)	The sentencing judge erred in law when he sentenced the appellant without an application by the state or defence lawyer for him to preside over the sentencing aspect of the matter contrary to section 575 (3) of the Criminal Code. 

b)	The sentencing judge erred in law when he sentenced the appellant to six years for sexual touching when the appellant was never charged nor convicted for sexual touching.

c)	The sentencing judge erred in law when he sentenced the appellant cumulatively for count 2 and 3 of the indictment when the evidence showed that both counts happened in a single transaction and should be a concurrent sentence.  

7.	Both the appeal against the conviction and sentence were heard together. 

8.	At the hearing of the appeal the appellants counsel abandoned grounds (a) to (e). 

He only relied on ground (f) which states:

(f)    The trial judge erred in law when he failed to specify which count of rape, he found the appellant guilty of. 

THE LAW ON APPEAL

9.	Pursuant to s23. (1) of the Supreme Court Act 1975 the Supreme Court shall allow an appeal against conviction if the appellant establishes that:

•	the verdict is unsafe and unsatisfactory; or
•	the conviction was made on a wrong decision on question of law;or
•	there was material irregularity in the course of the trial.

10.	 This Court must consider as to whether a miscarriage of justice occurred in course of the trial:  John Beng v The State [1977] PNGLR 115.

11.	Likewise, on sentence the Supreme Court must be persuaded that: 

“The appellant has discharged the onus of showing to this Court that the learned trial judge has made an error in law or fact, which has the effect of vitiating the trial judge’s discretion on sentence” : William Norris v the State [1979] PNGLR 605 at 612

GROUND OF APPEAL 

12.	The trail judge erred in law when he failed to specify which count of rape he found the appellant guilty of at the trial.

13.	In the abstract of submissions filed on 24 October 2025 the appellant’s counsel also raised the issues of irregularities in the way the trial was conducted by the trial judge.

14.	Mr. Hukula submitted that there were material irregularities in the initial stages of the trial when the trial judge failed to take the pleas individually in respect of each count and entered a plea of not guilty on all counts after all the charges were read out. He relied on the case of Kara v the State [1984] PNGLR 254 were Supreme Court stated that: 

“…when the indictment contains more than one count, each count should be put to the prisoner separately, and he should be asked to plead to each count.” 

15.	On the same night, 7th June 2020 Count 2 of the indictment stated that digital vaginal penetration of the victim took place whilst Count 3 related to penile penetration. 

16.	When the charges were read out to the appellant by the trial judge it was put to him that on both counts that he penetrated the complainant’s vagina digitally. After the charges were read out, the accused was asked as to his plea, and he entered pleas of not guilty. The trial judge later clarified as to whether the pleas was in respect of all three charges to which the appellants agreed that it was. 

17.	The appellants main contention is that the trial judge in failing to identify the rape count that he was found guilty of has caused procedural unfairness to him and it amounts to miscarriage of justice. 

15.	Mr. Luman concedes that there were procedural errors by the trial judge when the plea to the three charges were taken together, but he submits that nothwitstanding that there is no miscarriage of justice. 

16.	He also conceded that the trial judge erred when he failed to state as to which count of rape the appellant was found guilty of and again notwithstanding that error he submitted that it was not material. 

17.	When asked by the court  to explain  as to which count of rape the appellant was found guilty of Mr Luman submitted that the evidence supported findings of guilty on count 3 and not count 2 as there was no evidence of insertion  of finger in the vagina. 

18.	The finding of guilt against the accused in a convoluted manner by the trial judge requires circumspection by the Supreme Court whether or not the procedures in the administration of criminal justice were observed with and followed, by the trial judge.

CONSIDERATION 

19.	The whole basis of the trial judge’s findings was that the complainant was an honest witness, and the appellant was not. What we are concerned about that is if that was the case then why did the trial judge make a finding of not guilty on count 1 as there appeared to be overwhelming evidence that the trial judge believed and accepted  the account given by the complainant at the trial.

20.	The trial judge relied on the case of the State v Levo [2015] PGNC 23: N5902 were Canning J stated at [11] as follows: 

“[11]	This is the critical issue, and I approach it by taking two important principles into account. First, as I pointed out in The State v James Yali (2005) N2988, in a rape case it is not a simple matter of deciding who to believe. The accused cannot be convicted only on the basis of suspicion or belief on the part of the court that the accused sexually penetrated the complainant without consent. Likewise, the court is not to decide guilt or innocence simply on the basis of whether the complainant's evidence is believed. The court's task is, rather, to determine, having weighed all the evidence and considered whether there are reasonable grounds for believing that there was no consent and whose evidence is to be believed, whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that each element of the offence exists. If there is a reasonable doubt as to an element, the court is obliged to acquit the accused. In this case, the question to ask is whether the prosecution has proven beyond reasonable doubt that the complainant did not consent.”

21.	The trail judge failed to address himself at the commencement of his reasoning on the burden and standard of proof as it is conventional to do so. He only made a very brief reference to the burden of proof at [59] of the verdict where he stated:

 “The State has proved beyond reasonable doubt that the complainant did not freely and voluntarily agree to be sexually penetrated.” 

22.	In Francis Potape v State [2015] SC1613 the Supreme Court stated at [41] that:

“[41]  There is another error on an important point of law that is apparent on the face of the judgment that vitiates the joint trial. Although the trial judge reminded himself at the commencement of his reasoning of the burden and standard of proof on the prosecution to prove this and other elements of the offence beyond reasonable doubt, the trial judge did not make any finding or conclusion that the prosecution had actually discharged that burden to the required standard. Although we know of no statutory imperative or case authority that require a trial judge to make express pronouncement of his finding or conclusion that the test whether the offence has been "proved beyond reasonable doubt" has been satisfied, the test described as "a time- honoured formula" for determining guilt (Dawson v R (1961) 106 CLR 1 at 18) is firmly established in the common law and adopted and applied by the Courts in this country as part of the underlying law in every criminal case tried by the Courts. The test is also founded on the Constitutional protection on presumption of innocence in criminal cases. Its present wording is considered clear and simple enough and Courts have resisted attempts to substitute the test with other expressions that may change its meaning: John Beng v The State [1977 PNGLR 115. The test is formulated in those words for very good reasons, given the seriousness of a criminal offence, constitutional protection of presumption of innocence and the deprivation of personal liberty that flows from the conclusion. In every criminal case, it is highly desirable that the test should not only be expressly stated but a clear a determination is made that the test has been actually satisfied by the prosecution. It is imperative that such determination should be pronounced in the judgment to avoid ambiguity and confusion, given the seriousness of the offence and the deprivation of liberty that flows from that determination.” (Emphasis added)

DISPOSITION

23.	The trial below was lacking in the following procedural directions breaching section 59 of the Constitution as set out below:

i.	the indictments read separately by the trial judge to the accused.
ii.	the court accepting his plea of guilty or not guilty, the latter requiring the criminal proceedings to be heard at trial.
iii.	a clear verdict of guilty or not guilty relevant on each of the three counts clearly read out separately to the accused by the National Court judge.
iv.	the burden of proof and the right to be presumed innocent until a judge or jury finds the accused guilty of the offense or offenses so charged by the prosecutor or the states against the accused.

24.	The right to a fair trial in the Commonwealth has been in authorities such as Dietrich v the Queen (1992) 177 CLR 292 at 298 and Brown v Statt [2003] 1 AC 601 at 719 described as:

i.	a central pillar of the criminal justice system.
ii.	fundamental and absolute
iii.	a cardinal requirement of the rule of law
iv.	extending to the whole course of the criminal process.
v.	the golden thread in the duty of the prosecution to prove the prisoner's guilt beyond reasonable doubt.
vi.	the accused should be informed of the precise nature and case of the charge or charges against him or her promptly, in detail, separately where there is more than one charge, and in a language that the accused understands.

25.	Unlike the Australian Constitution which does not expressly provide that a criminal trial must be fair, nor does it set out the elements of a fair trial, the Constitution of PNG sets out the fundamental fairness of criminal trials pursuant to Section 37 ‘Protection of the Law’ rights of the citizens of this Nation, Section 42 “Liberty of the Person” and importantly Section 59 “The Principles of Natural Justice” which guarantees the right to a fair trial as prescribed below:-

“(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.”

26.	The trial judge failed to comply with the clear directions issued in Francis Potape v State and made findings which are ambiguous and has created confusion. In our respectful opinion this has caused miscarriage of justice resulting in the verdict being unsafe and unsatisfactory. 

27.	The procedure followed by the trial judge were clumsy: therefore, deficient for the judgment leading to the conviction of the accused to stand. 

28.	The verdict must therefore be set aside and quashed.

29.	This case relates to very close family members, and we decline to make any comments on the evidence to avoid prejudice as we intend to make orders for re-trial. 

30.	We have considered this matter carefully and are persuaded that the dictate of justice requires that this matter should be re-tried before another judge of the National Court.

31.	Even though the appellant has succeeded in this appeal we are of the view that he should be remanded in custody until his next appearance in the National Court as there is evidence from the complainant we have read that forms the basis of reasonable and probable cause that prima facie an offence or offences have been committed and the matter should proceed to have the trial reheard.

32.	As a result of our findings on the conviction of the accused, the sentence naturally must also be set aside. 

33.	Had the appeal on sentence proceeded, the conviction and the sentence that followed was also incompetent as the sentencing judge sentenced the appellant  to a 6-year sentence of imprisonment  on count 1 when the trial judge found that he was not guilty. 

34.	We do not wish to make any comments on the sentence except that both prosecution and the defence counsels should have assisted the sentencing judge that an application was necessary under the provisions of as s576 (3) of the Criminal Code to allow him to become seized of the matter for the purposes of sentencing and also that the appellant was found not guilty of count 1. 

ORDERS

35.      In light of the reasons given above we make the following orders

1.	The conviction and sentence are both set aside and quashed. 
2. 	The appellant is to be re-tried before another judge of the National Court
3. 	The appellant will remain on remand until his appearance in the National Court. 
4. 	The matter is to be referred to the Registrar for case-management of the trial and referred to the trial judge for trial as soon as practicable for directions. 
________________________________________________________________
Lawyer for appellant:    Public Solicitor 
Lawyer for respondent:  Public Prosecutor