SC2796
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV NO 91 & 93 OF 2023

MAXWELL WAIKAIDI AND ALEX WAIKAIDI
Applicants

V

THE STATE
Respondent

LAE: LIOSI J, DOWA J, WAWUN-KUVI J
29, 31 OCTOBER 2025

CRIMINAL APPEAL- CONVICTION- Murder, s 300(1)(a) Criminal Code-Involvement- Whether the applicants killed the deceased?

Cases cited
Kibeto v Soloma [2024] PGSC 47; SC2580
Tuna Canners Ltd v Sengi [2022] PGSC 49; SC2232
Gihiye v State [2016] PGSC 64; SC1546
Waranaka v Dusava [2009] PGSC 11; SC980
Olga v Wingti [2008] PGSC 24; SC938
Liri v State [2007] PGSC 3; SC883
Davinga v The State [1995] PNGLR 263
The State v Tom Morris [1981] PNGLR 493 
Paulus Pawa v The State [1981] PNGLR 498

Counsel
S Toggo for the applicants 
L Maru for the respondent

JUDGMENT

1.	BY THE COURT: The applicants were found guilty of murder under s 300(1)(a) of the Criminal Code on 14 June 2022.
 
2.	The applicants initially sought review of their conviction and sentence. During submissions, Mr Toggo abandoned the grounds for review of the sentences.

3.	It was alleged that on 5 June 2021, there was a ‘haus krai’ or wake for Gerard Waikadi at the Waikaidi residence at Wau. Gerard Waikaidi is the son of Alex Waikaidi and the brother of Maxwell Waikaidi.  Between 11 am and 12 pm, the deceased and his family arrived at the Haus Krai with their contributions. The deceased stood with his wife. The applicants were with others. They walked towards the deceased. Alex Waikaidi picked up a bush knife and questioned the deceased if he killed Gerard Waikaidi. He cut the deceased on his hand and his body. The group of men then attacked the deceased. Maxwell Waikaidi then took out a pistol and shot the deceased in the right leg. Another person in the group also shot the deceased in the leg. The deceased was then put in a blue Toyota Land Cruiser registration LBN 430. The deceased's body was taken to Lae and dumped in the Busu River.

Law on Appeal

4.	The Supreme Court can only interfere in the clearest of cases with the findings of fact of a trial judge. The reluctance stems from the recognition that the trial judge, when it comes to oral evidence, is in a better position to assess its veracity and credibility: Kibeto v Soloma [2024] PGSC 47; SC2580, Gihiye v State [2016] PGSC 64; SC1546, Olga v Wingti [2008] PGSC 24; SC938, Liri v State [2007] PGSC 3; SC883 and Waranaka v Dusava [2009] PGSC 11; SC980 followed.

5.	Further this Court in Tuna Canners Ltd v Sengi [2022] PGSC 49; SC2232 held:

“(2) A finding of fact by a trial judge based on the credibility of a witness may only be set aside on appeal where incontrovertible facts or uncontested testimony demonstrate that the judge's conclusions are erroneous or where the decision at the trial was glaringly improbable, contrary to compelling inferences, or palpably or manifestly wrong: Karo Gamoga v The State [1981] PNGLR 443; Peter Wawaru Waranaka v Gabriel Dusava (2008) SC 942; Beng v The State [1977] PNGLR 115; Michael Tenarum Balbal v The State (2007) SC860; Waranaka v Dusava [2009] PGSC 11; SC980; Fox v Percy (2003) CLR 118; Devries v Australian National Railways Commission (1992) 177 CLR 472.”

Review grounds

6.	The review grounds were:

1.	Michelin Benny Nondo gave evidence that she saw Alex Waikaidi swung a bush knife and cut the deceased on the ribs and hand.
2.	She also gave evidence that the deceased was found at Busu River, Lae Morobe Province and brought to Angau Memorial General Hospital three weeks after he was cut by Alex Waikaidi at Wau, Wau Waria, Morobe Province.
3.	Michelin Benny Nondo gave evidence that she identified the body by the barb wire on the wrist and eagle tattoo on the back.
4.	There was no evidence on who found the body at Busu River or who brought the body to Angau Memorial General Hospital and there was no photograph of the body at the time.
5.	The postmortem report shows that there was no cut on the hand and ribs and there were no tattoos found on the body.
6.	There was no evidence about how the body ended up at Busu River in Lae Morobe Province.

Submissions

7.	Mr Toggo’s submission is only one line. That the eyewitnesses’ account are inconsistent with the postmortem report.

8.	Ms Maru for the State respondent submits that the trial judge considered the totality of the evidence before convicting the applicants. There was no error.

Consideration
9.	The State called three witnesses and tendered by consent several documents, including the Records of Interviews of the applicants and the postmortem report. The issues at trial were involvement and whether the body found at the Busu River was the deceased.
10.	Both applicants exercised their right to remain silent.

11.	It is settled law that no inference of guilt should be drawn when an accused remains silent. It is the State’s burden alone to prove the elements of the offence. The effect of remaining silent is that the State’s case remains uncontradicted. However, this does not mean that the Court automatically accepts the State’s case and convicts the accused. The evidence by the State is still subjected to analysis with the application of relevant principles in law on the assessment of evidence: see The State v Tom Morris [1981] PNGLR 493 and Paulus Pawa v The State [1981] PNGLR 498.

12.	The applicants have not identified any error on the part of the trial judge. It is not the purpose of the review to retry the case. The trial judge considered all the evidence and correctly said:

“This is a case that does not require a long determination. The evidence against the accused is overwhelming and stands unchallenged by their election to remain silent. There is direct eyewitness evidence and corroborated in material form. It has not been discredited to create a reasonable doubt.”

13.	The Records of Interviews of both applicants were tendered by consent. Under s 589 of the Criminal Code, all matters are accepted without further proof being required: see Davinga v The State [1995] PNGLR 263. Both accused admitted to being present at the ‘Haus Krai’ and acknowledged that the deceased and his family made food contributions.

14.	Cross-examination did not discredit the witnesses’ evidence. It was established that they saw Alex Waikaidi cut the deceased with a bush knife and Maxwell Waikaidi with another person shoot the deceased on his legs. Others totalling around 10, were with the applicants. They also punched and hit the deceased with timber. It was 11 am in the morning. The witnesses live 100 meters from the applicants, and they are family friends. The deceased was last seen with the applicants.

15.	As to any contention that it was not the deceased body, it was established that he was identified by his wife, brother, and cousins. He was also identified by the arresting officer, who is the Police Station Commander of Wau police station. The evidence was not discredited.

16.	While the postmortem report did not specifically report that the deceased was cut in the hand, it was noted that the body was moderately decomposed. Consistent with eyewitnesses’ evidence, was that there were slash wounds to the forehead, shoulder, right and left chest, a gunshot entry on the left leg, and a gunshot wound on the right leg.

17.	In conclusion we are not persuaded that there are any identifiable errors to disturb the findings and conclusions reached by the trial Court. 

18.	For the foregoing reasons, the applications are dismissed.    

Orders 

19.	The Court Orders:
1.	The Applications for review against conviction are dismissed, and the convictions are affirmed.
2.	The sentences are affirmed.

Lawyers for the applicants: Toggo Lawyers
Lawyer for the respondent: Acting Public Prosecutor