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Gubag v State [2026] PGSC 8; SC2849 (5 February 2026)


SC2849

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]


SCRA NO 18 0F 2024


BETWEEN
KOMENG GUBAG
Appellant


AND
THE STATE
Respondent


WAIGANI: SALIKA CJ, MOGISH J, NAROKOBI J
28 MAY 2025; 5 FEBRUARY 2026



APPEALS – Whether the verdict was safe and satisfactory in the circumstances.

The appellant was convicted by the National Court of murder and wilful murder of two men, by shooting them with a pistol. The appellant denied shooting the two men. The trial judge sentenced him on the first count to 25 years and for the second count, 30 years, and ordered that they be served concurrently. He is appealing his conviction.

Held:

(1) The conviction of the Appellant of one count of wilful murder and one count of murder from the evidence of a single witness who gave evidence that he saw the Appellant shoot the two deceased, when considered against the totality of all the evidence led was unsafe and unsatisfactory in the circumstances and the appeal should be allowed and the conviction of wilful murder and murder quashed and a verdict of not guilty is returned on both counts.


Cases cited

The following cases are cited in the judgment:

John Jaminan v. The State (No 2) [1983] PNGLR 318
Regina v Daure [1967-68] PNGLR 19
The State v John Beng [1976] PNGLR 471
SCR No. 1 of 1980: Re s.22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28
Woolmington v. Director of Public Prosecutions [1935] A.C. 462


Counsel

F Kuvi, for the appellant
C Langtry, for the respondent

  1. BY THE COURT: The Appellant appeals against his conviction by the National Court, convicting him of double homicide – on one count of murder and another count of wilful murder. He was sentenced to 25 years for murder and 30 years for wilful murder, with both counts to be served concurrently. He does not challenge his sentence.

The Evidence Before the National Court


  1. The Appellant pleaded not guilty to his charges of wilful murder. In the ensuing trial, the State called several witnesses who gave oral testimony and tendered documentary evidence. Significantly, the weapon that the Appellant was alleged to have used, was not tendered as an exhibit in the trial. The Appellant exercised his right to give an unsworn oral statement from the dock.
  2. The offence occurred on 23 October 2021 at a place in Port Moresby known as Garden Hills. The brief basic facts that the State sought to prove against the Appellant, an off-duty police officer, was that there was an incident with the Appellant and the occupants of the Garden Hill settlement earlier in the afternoon, when he drove by the market used by the Garden Hills settlers to sell their products. Unhappy about how he was treated when driving past, he returned later at about 7pm, with a pistol, and fought with the settlers. He was alleged to have said, “Today I will kill someone.” Several shots were fired – by the Appellant from a pistol, and the police who attended the scene of the fracas. Tear gas was also used. The Appellant shot the two deceased during this time. One was shot in the chest – Ivan Neson, and the other, Laki Yamo, in the face. Both died from the gun shot wounds. Essentially this was the case the State sought to prove against the Appellant.
  3. The State called three witnesses to give direct evidence that they saw the Appellant shoot the deceased – Jack Amos, Jeremy Laminapo and Kori Buka. The evidence of Jack Amos was determined to be unreliable as it was inconsistent with the other evidence, and it contradicted what he said in his statement to the police. Kori Buka’s evidence too, was determined to be unreliable, as she readily admitted to not seeing the Appellant shoot the deceased.
  4. The primary judge relied heavily on the testimony of Jeremy Laminapo. Jeremy Laminapo, was found to be a credible and reliable witness. He knew the accused well, recognizing him, and observed the events under sufficient lighting conditions at a relatively close distance. His account stated that the Appellant shot Ivan Neson, and then Laki Yamo as he tried to intervene. In the trial judge’s view, Laminapo's testimony about the sequence of events and the identity of the shooter remained consistent despite cross-examination and contradictions with other witnesses. The court noted his composure and careful responses during questioning, and the fact that he was not related to the deceased, further bolstered his credibility.
  5. Sergeant Danny Simon, Commander of Fox Unit, Zone One, who works with the Boroko Police station, stated that he attended to Garden Hills on 23 October 2021 at about 11.00pm when he was called there. He says there was a barricade erected. When he came, he saw the Appellant with a K1A1 rifle. He proceeded to disarm him, and a tussle resulted. The Appellant punched him and got onto a vehicle and drove off. He did not discharge his officially issued pistol in the tussle with the Appellant. He agreed during cross-examination that a serious law and order situation had unfolded.
  6. Police officer Meke’s statement was tendered by consent. He accompanied Sergeant Danny Simon to Garden Hills. His evidence was determined as hearsay, but the aspect where he observed that angry crowd had erected a barricade was accepted.
  7. The next witness was Dr Stephanie Kialo-Davis, a pathologist at the Port Moresby General Hospital. Her evidence related to the autopsy she conducted on the two deceased – Ivan Neson and Laki Yamo. For Ivan Neson she determined a 1cm x1cm entry wound on the left side of the chest, with a corresponding exit wound on the right side of the back, collapsing the right lung from a gun shot wound. The second deceased Lako Yamo’s autopsy, also showed a 1cm x 1cm wound on the right cheek, a fractured skull and three pellet fragments found in the brain tissue, again supporting a finding of death from gun shot. Despite the delay in conducting the autopsy which saw the onset of decomposition, she was able to determine the cause of death. Her evidence as to the cause of death was accepted.
  8. After Dr Kialo-Davis, Superintendent Michael Tilae gave his evidence. He was the Director of the of the Dog Unit up at Bomana during the time the Appellant was attached with them as an Administrative Clerk in the National Capital District (NCD) Dog Squad. He was directed by the Police Commissioner to apprehend the Appellant. As an administrative clerk, he said the Appellant was entitled to a pistol.
  9. Although no weapon was recovered, the court relied on the assumption that the Appellant had access to a pistol, from the evidence of the Appellant’s supervisor, at the Dog Unit, Sargeant Tillae that the Appellant had a police pistol issued to him. There was discussion in the evidence that at the time the Appellant was suspended but the court again inferred that there is no evidence that his pistol was confiscated.
  10. Chief Sergeant Maxwell Barai was the next witness. He did the crime scene investigation at Garden Hills. A Police officer with 31 years of experience, and the Officer-in-Charge of the Crime Scene Investigation Unit at the National Forensic Science Centre, his background includes training in firearms examination. His detailed examination of the alleged crime scene was documented in his statement (Exhibit P1), which was admitted by consent. While his photographs and physical descriptions of the scene from his own observations were admissible, much of the other information in his statement, such as the positions of individuals during the alleged shooting and related measurements from unnamed persons, was considered hearsay.
  11. Significantly, two different bullet casings were retrieved. Three 9mm fired casings, and seven 5.56mm fired casings were reportedly found at or near the crime scene. In his oral testimony, Maxwell Barai explained that 9mm casings originate from handguns (pistols), while 5.56mm casings are discharged from rifles like M16, AR15, and K1. He could not compare the casings found at the scene with any weapons as none were provided for examination. Despite this, he believed the wounds on both deceased were consistent with a 9mm bullet. He stated that 5.56mm rifle wounds would have much smaller entry wounds and larger exit wounds than those observed on the bodies, ruling out rifles as the cause.
  12. Under cross-examination, he maintained that 9mm bullets likely caused the wounds. He agreed that gunshot residue would typically be present at close ranges (less than 10 meters, significant at 5-7 meters), and noted some residue in the photo of Ivan Neson (P2-2). He disagreed that the bullet did not exit Laki due to a long-distance shot, asserting it was possible from a close distance. While acknowledging the possibility of two different weapons causing the injuries, he could not definitively state whether the wounds were from 9mm or 5.56mm bullets. He insisted that the bullet fragment from Laki's brain was too large to be a 5.56mm jacketing. In re-examination, Maxwell Barai pointed to gunshot residue on Laki's face in photograph P2-8, indicating a shot within 1 to 10 meters. He noted that blood soaking could have destroyed residue on Ivan's shirt.
  13. Chief Sargeant Barai’s evidence that the wounds were caused by the same gun was accepted due to his experience and expertise despite his concession during cross-examination that two guns may have been used.
  14. Johnny Passingan, the Chief Operations Officer, Tactical Solutions International (TSI), evidence came through an affidavit admitted by consent. He states that TSI provides security services. They carry only 9 mm handguns and 12 gauge shot guns. TSI’s armed division, the Tactical Armed Group, responded on the date of the alleged incident but observed only and did not discharge any firearm. Under TSI standard operating procedures, any shots fired would have been a warning shot only, fired into the air. Johnny Pasingan then provides a timeline of significant events around the period of the alleged offence. He says that at 2116 hours, police discharged warning shots and a civilian was hit in the process. Two deaths were reported at 0149. After that, at 0239 the mob moved to private residential areas. Police response at 0240 hours brought the situation under control. The trial judge took the view that his evidence was self-serving and did not rely on it.
  15. The final State witness was the investigating officer, Inspector Apollos Terry, the in-charge officer at Police Internal Affairs. He arrested and charged the Appellant and administratively suspended him. No weapon was recovered from the Appellant. At the time of the investigation there were streetlights, one opposite the settlement at Moni Plus and one on the other side of the road where the incident took place. There were also lights at the settlers’ houses. He did not cordon off the crime scene because he was not there at the time. He attended the following day and compiled witness statements. He relied on the forensic team to collect bullets. Responding to questions in cross-examination he says that the investigations were not rushed and he had nothing personal against the Appellant.
  16. The Appellant chose to give an unsworn statement from the dock. He states that there was a commotion on 22 October 2022 that arose from his cousin’s boom box being stolen. He went and destroyed the Garden Hills settler’s market between 6pm and 7pm. The next day he was stoned while driving by. The situation turned rowdy, and the police were called. Upon arrival the police fired several shots to arrest the situation. He denies shooting the two deceased. He turned himself in to the police to de-escalate the situation as there were attempts to burn his parent’s house.

Findings of the National Court

  1. In summary the trial judge found Jeremy Laminapo’s evidence was strong enough to convict the Appellant of the double homicide. His story of how the two deceased were shot, was independently verified by the physical environment of the place. The deceased were at an elevated position when the Appellant shot them, shooting Ivan Neson in the chest - the bullet travelled upwards exiting from his upper back. Laki Yamo was shot in the face, and the bullet penetrate his skull. Despite his prior inconsistent statement, about the time of the incident, his evidence was accepted. His evidence of the distance between the deceased and the Appellant was corroborated by Sargeant Barai’s evidence that gun shot residue was visible in the photographs he took and this can only be possible if the deceased were shot from an estimated distance of 10m. Sargeant Barai’s evidence that the entry wounds of the bullet was consistent with that of a 9mm caliber pistol supported Jeremy Laminapo’s evidence. In-addition the Appellant’s then supervisor at the Dog Unit gave evidence that the Appellant, as an administrative clerk, had access to a pistol. There was no evidence that he had returned the pistol.
  2. The trial judge further found that this was a case of recognition evidence and not of identity. The Appellant is known to the witness Jeremy Laminapo, and he was able to positively identify him.
  3. From the evidence, the Appellant was then convicted of one count of murder of Ivan Neson as the court could only establish intention to cause grievous bodily harm and another count of guilty of wilful murder of Laki Yamo. Laki Yamo was shot in the face, and this was enough to establish the requisite intention to kill.

Appeal Grounds


  1. The Appellant raised 10 appeal grounds, some of which were abandoned but we reproduce all of them below:
    1. The learned trial judge erred in law and in fact in convicting the Appellant on the unreliable and inconsistent testimonies of only two State “eye witnesses”;
    2. That the learned trial judge erred in law and in fact in convicting the Appellant on the identification evidence of the two “eye witnesses” when such “identification” was made under difficult circumstances and especially when she discounted the evidence of one of those “eye witnesses” and relied on the evidence of only one of those “eye witnesses”;
    3. That the learned trial judge erred in law and in fact when she explicitly found that the only “eye witness” that she found to be truthful and to base her conviction on his evidence alone was later found to be untruthful and a liar;
    4. That the learned trial judge erred in law and in fact when she failed to adequately address the fact that lots of shots were fired by different persons, including other members of the police force and security personnel, that night and that any one of those shots could have caused the fatal death of the two deceased persons;
    5. That the learned trial judge erred in law and in fact when she failed to consider the evidence from the ballistic expert that the fragments of the bullet found in one of the deceased body was from another firearm other than a pistol;
    6. That the learned trial judge erred in law and in fact when she found that the Appellant was armed with a pistol when he supposedly shot the two deceased when evidence clearly showed that he the appellant was holding onto a rifle that night;
    7. The learned trial judge erred in law and in fact when she convicted the appellant of the charges of murder and willful murder when there was absolutely no evidence of intention to cause grievous bodily harm or an intention to kill the deceased or to kill any other person at all;
    8. That the learned trial judge erred in law and in fact when she ignored evidence that there were other police units and private security forces that night that discharged their weapons towards the Garden Hill settlement and that any such bullet so discharge could have killed the deceased;
    9. That the learned trial judge erred in law and in fact when she convicted the Appellant on both direct and circumstantial evidence when in relation to circumstantial evidence her findings were the only reasonable and rational inference she could draw, when there are many other rational inferences that could have been drawn under the circumstances;
    10. That the learned trial judge erred in law and in fact when she considered matters that she could not have considered and failed to consider matters that she should have considered in her conviction of the Appellant.
  2. In our view, the appeal grounds raise five main issues for us to consider:
  3. We have gone through the transcripts and considered the Appeal Book and heard and read the submissions of Counsels in our deliberations.

Issue

  1. On an appeal against conviction, pursuant to s 22(1)(a) of the Supreme Court Act 1975, the Supreme Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal will be allowed (John Beng v The State [1977] PNGLR 115).
  2. This is the underlying consideration when we consider the five issues we have identified, which we consider together.

Considerations


  1. On the civil standard of proof, that is, on the balance of probability, it is probable that the Appellant shot the two men. The Appellant was at the scene of the crime. No alibi evidence was relied on. A fight had resulted. A witness who knew the Appellant from previous encounters saw him shoot the deceased.
  2. However, the real question here, is whether proof on the criminal standard has been met, that is whether there is a “reasonable doubt,’ in all the circumstances such that the verdict was unsafe or unsatisfactory as the finding of guilt did not meet the criminal standard of proof beyond reasonable doubt.
  3. The State bears the responsibility of proving the charge(s) against the accused, and it must be proven beyond reasonable doubt (SCR No. 1 of 1980: Re s.22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28; Woolmington v. Director of Public Prosecutions [1935] A.C. 462).
  4. The Supreme Court in John Jaminan v. The State (No 2) [1983] PNGLR 318 at p 323 said (Pratt J):

At the end of the day the position is as always, namely: has the prosecution proved its case beyond reasonable doubt? If during the evidence of either the prosecution witnesses and/or the defence witnesses a chink has been made in the prosecution armour, be it through a doubt concerning identification, or the claim of alibi for example, then a verdict must be returned for the accused.


  1. Following from this, it is also necessary that the State must also exclude any possible defence that is available to the accused. Again, this is on the criminal standard of proof beyond reasonable doubt (Regina v Daure [1967-68] PNGLR 19).
  2. In our view, when considering the whole of the circumstances from the evidence before the primary judge, a reasonable doubt is raised as to the safeness and satisfactoriness of the verdict from a single witness. In our view this is a case of whether an honest witness can be mistaken given the peculiar circumstances at the time of the offence. The trial judge found that this was not so much a case of identification evidence as it was one of recognition. In John Beng v The State, the court held:

In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.


When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.


  1. In our view, several considerations raise reasonable doubts against the guilt of the Appellant. When put together, these considerations have led us to the opinion that placing much weight on the testimony of a single witness, Jeremy Liminapo, to secure the Appellant’s conviction was not safe. These considerations arise from the following circumstances:
  2. The conduct of the police investigation left much to be desired. The crime scene was not secured after the killing. Bullets retrieved supposedly from the crime scene did not come from the police investigation (p 195 Appeal Book). In circumstances where several shots were fired, the location of where spent casings are found would be important. The evidence of where the bullets were retrieved were determined to be inadmissible as it was attempted to be introduced through Chief Sargeant Barai and therefore considered hearsay.
  3. The autopsy report was not done soon after the death of the two deceased, in fact two months later. Although the delay was due to the Covid-19 pandemic, the onset of decomposition of the two deceased affected the quality of the findings, for example gunshot residue could not be extracted and examined. There is evidence of two different firearms involved because there were several spent 9mm calibre casings and 5.56mm calibre casings at the crime scene (p 160 Appeal Book). The Appellant was also positively identified with a rifle, and not a pistol, that he discharged when he was attempted to be apprehended, a KIA 1 rifle (Appeal Book, p 421). Although we accept the trial Judge’s statement of the law that it is not a perquisite of gun-related offences to be proven from a ballistic report, there was nothing preventing the police to conclusively rule out the use of that rifle (KIA 1) through the production of a ballistic report. In the absence of the pistol being tendered as an exhibit, the evidence on the type of weapon was largely circumstantial and came solely from Jeremy Laminapo. Police did not provide details of the pistol that was supposed to have been issued to the Appellant from the records kept by the Dog Unit.
  4. The report of Chief Sergeant Maxwell Barai was inconclusive on the specific gun used, as is evident from his cross-examination. Transcripts at p 174 of the Appeal Book provide the following exchanges at the trial between Chief Sergeant Maxwell Barai and the Counsel for the Appellant during cross-examination:

Q: So, would it be correct if I put it to you that these two injuries could have come from two different weapons, is it reasonable to suggest that?


A: It could be because there were also 5.56 casings that were collected at the scene too so.


  1. Then at p 175 of the Appeal Book the following exchanges comes out from the cross-examination of Chief Sergent Barai, when he answered yes to the question that they could not do a ballistic report because no firearm was secured as an exhibit:

Q: So we cannot say nor prove to the court what bullet came out of what weapon?


A: Thats correct


  1. The court asked Superintendent Michael Tilae the officer in charge of the police dog unit about the type of arms issued to the police dog handlers (Appeal Book, p 155):

Q: All right. Can you tell me the caliber that is fired from a pistol?


A: You have a 9mm caliber from a pistol depending on the type of the pistol.


Q: All right.


A: We have a 50grain 9 mm. We have a 105...grain 9 mm and we have 118 grain 9mm caliber.


  1. The obvious follow-up questions that should have been asked by the State was – what was the grain and caliber of the bullets of the pistol issued to the Appellant as a dog handler and what was the grain of the 9mm casings found at the scene of the crime? The failure to confirm this aspect of the evidence made it difficult to rely solely on the evidence of Jeremy Laminapo. This then introduces a reasonable hypothesis other than the inference by the trial judge that the two deceased were shot by the Appellant from his police issued pistol.
  2. What about the evidence of Jeremy Liminapo? His evidence must be considered against the whole of the circumstances alluded to above, because an honest witness, can also be a mistaken one (John Beng v The State). The trial judge found that the killing occurred at about 9.00pm in the night, despite Jeremy Laminapo’s prior inconsistent statement that it was between 6pm and 7pm. His evidence at cross examination correcting his prior inconsistent statement was accepted as it was consistent with the time he said he picked up his wife after she was dropped off from work. The trial Judge correctly stated the law on this aspect of evidence being accepted despite a prior inconsistent statement (see para 50 of the written judgment). However, a careful analysis of Jeremy Laminapo’s evidence militated against the observance of this rule in the peculiar circumstances of this case.
  3. Given this finding of the time of the shooting late at night, lighting would then be critical. Several shots were fired from different types of firearms. This is not disputed. Several persons were present who had firearms. This is also not disputed. In fact, Jeremy Laminapo came after he heard the tear gas fired. In our view what was necessary was a crime scene sketch (it was not produced, see para 64 of the written judgment) which would have showed the following:
  4. Jeremy Laminapo was shown a photograph of the crime scene, but he could not show where he was standing from the photograph (p 86 of the Appeal Book).
  5. The sketch map would have been done by the investigating officer, after interviewing the witnesses to provide a clear picture of the physical environment surrounding the shooting. For example, if the lighting was good, was there a tree that stood in the area, that may have affected the line of sight or cast a shadow over the perimeter of the crime scene. This would then have corroborated the evidence of Jeremy Laminapo that from where he was standing there was no obstruction to what he saw.
  6. In the preparation of the sketch map, the investigating officer should have visited the crime scene at night to verify the quality of lighting where Jeremy Laminapo saw the Appellant.
  7. During examination in chief of Jeremy Laminapo the following questions and his answers came out [pg 95 of the Appeal Book]:

Q: And prior to Komeng shooting or killing Laki and Ivan were there any police personal around?


A: Yes


Q: How many?


A:I saw it with my eyes; I saw one at the front, at the back there were two TSI security.


  1. This raises two issues. Firstly, there were people who had firearms at the scene of the crime before the two deceased were shot. Secondly, the preponderance of evidence that came later, was that TSI came after the killing had occurred (see the evidence of Johnny Passingan). This aspect of his evidence questions Jeremy Laminapo’s recollection of events. It is also in evidence that he did not correctly recollect the time of the shooting.
  2. The finding of murder on the first charge and wilful murder on the second charge, demonstrates that there was lack of evidence surrounding the circumstances of the killing, for the trial judge to elicit the necessary intention. The learned trial judge excluded all possible legal defences (para 83 of the written judgment). Jeremy Laminapo may have been a truthful witness, but did he provide a full disclosure of the incident? There is no evidence that the Appellant had any specific concerns with the two deceased. Jeremy Laminapo told the court that Laki and Ivan had no issues with the Appellant (pg 96, Appeal Book). If the Appellant was there to shoot anyone who came across his path, he would have also shot Jeremy Laminapo who according to Jeremy Laminapo himself was standing not too far from the Appellant. Was it because these two men had come armed, and the Appellant reacted in self-defence? The lack of evidence leading to two different homicide convictions on an event which was alleged to have happened in quick succession raises this doubt.
  3. What all these lends itself to is that it would not be safe to rely on a single witness, who may have been honest, but whose evidence was not corroborated to rule out the hypothesis that he may have been mistaken, to convict the Appellant.

Conclusion and Orders


  1. Taking all these considerations into mind, we conclude that in all the circumstances, the two verdicts against the Appellant for wilful murder and murder are not safe, and the appeal should be allowed and the Appellant acquitted. We make the following orders:
    1. The appeal is allowed.
    2. The conviction of wilful murder is quashed.
    3. The conviction of murder is quashed.
    4. A verdict of not guilty of wilful murder is entered.
    5. A verdict of not guilty of murder is entered.
    6. The sentence of 30 years and 25 years imprisonment, respectively are quashed.
    7. The warrant of commitment to custody issued by the National Court is revoked and the Appellant is discharged from custody forthwith.

Judgment accordingly.

_______________________________________________________________
Lawyers for the appellant: Francis Kuvi and Associate Lawyers
Lawyer for the State: Acting Public Prosecutor

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