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State v Wapulae [1980] PGNC 9; N233 (4 June 1980)

Unreported National Court Decisions

N233

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
STATE
V.
LUKU WAPULAE
UNAMA AUMANE
PIOPE KUNE
ALUMA BOKU
YAULIPA BULAIM

Wabag

Narokobi AJ
4 June 1980

FACTS

NAROKOBI AJ: The accused stand charged that on 23rd of November, 1979 at Porgera, they wilfully murdered a woman, Utomo Polio thereby contravening s.304 of the Schedu the Criminal Code Act (No. 78 of 1974).

By consent, all five were arraigned individdividually, but tried together. The facts of the case are quite simple. The accused believed a woman they identified as being the deceased, Utomo Polio was a sorceress who was responsible, through her evil sorcery for many deaths in their villages or localities to be more exact.

On the day in question, they took the woman on foot, to the Government Station at Porgera, apparently to report her to the Kiap to be dealt with by State law. On the way, near a river, the deceased tried to run away. She was immediately caught by Yaulipa Bulaim. Whilst she was being held by Yaulipa Bulaim, Luku Wapulae shot her the first time with an arrow from his bow. He struck her in the left side of her ribs. The next man to shoot her was Piope Kune who struck her with an arrow in the chest. She fell onto the ground and whilst on the ground, she was again shot by Unama Aumane, again in the left region of the chest.

Yaulipa Bulaim, the elder of the two sons of the deceased had gone with the other four men to take his mother to the Kiap. He was present when the accused killed his mother. In his record of interview, he admitted to telling the other men to kill his mother because he was ashamed of what the people said about his mother.

However, on a careful reading of his own record of interview and those of the other four accused, I formed an impression that an alternative view negativing homicidal intent was possible. I therefore declined to accept his plea even though defence counsel made no section 575 application and stood his case over to a later date. I have prepared a separate judgment on that aspect of the case.

The accused did not stay to see if the woman was dead. They ran away and told their tultul of the murder.

The accused pleaded guilty and their counsel made no 575 application. I accepted their pleas and heard forceful arguments from defence counsel on sentence.

ARGUMENTS ON SENTENCE

Following the administration of the allocutus, the defence counsel made submissions on appropriate sentencing approach to sorceress - sorcerer killing. The facts he relied upon were not contested by the State Prosecutor. Defence counsel’s submissions covered four areas.

THE BACKGROUND

The four prisoners come from a very remote part of the country, with minimal contact with outside world, let alone the white man. That area is under administration influence, only very recently. They still have tultuls and luluais, even though native regulations covering tultuls and luluais have been repealed. (L.R.C. Report No. 2 of October 1975). It was only as recently as December 1979, that a mission station was set up there, in fact after this killing.

For these men to come to Wabag, was a great shock to them. It was their first time to encounter modern life style. They adhere stricly to traditional life style and tradition. There are no roads, no other government services. The background of each of the accused can be stated simply.

Unama Aumane is about 17 years of age. He is not married, has one brother. His father died some years ago. He is the principal supporter of his mother. His brother is at Lake Kopiago. He has no education and has no church influence. Like others, his life consists of hunting, gardening and traditional village living.

Luku Wapulae is older and is the man who fired the first arrow. He is married; has had a number of children, only one is alive. He attributes death of his children to the work of evil sorcery of the deceased. He also had brothers and sisters all of whom are dead for what he believes is the work of the same sorceress. His father and mother are also dead. He too has no formal education and his life consists of hunting, gardening and traditional life style.

Piope Kune is about the same age as Luku. He was married only shortly before the trouble. His father is dead. His mother is alive.

Aluma Boku is perhaps the oldest. He is married and has one small child. Both of his parents are dead. He has no brothers or sisters and leads the normal traditional life style.

The prisoners come from different villages or localities close to each other and separated by a river. None of them speak or understand Melanesian pisin language.

The population of this area is quite sparse. People have been dying. The accused say as many as twenty (20) deaths are the result of the work of the deceased’s evil sorcery.

CUSTOMN233.html#_edn194" title="">[cxciv]¹

It is not uncommon not only in the situation of Enga, but throughout P.N.G. to kill sorcerers or sorceresses. Amongst the social mores of these people, it is an act of honour to kill sorcerers who are responsible for so many deaths. It is not a bad thing. Indeed, it shows from records of interview that these prisoners were quite happy now that the woman responsible for their deaths is dead.

Unfortunately, no evidence was brought about the nature of sorcery the deceased was reputed to have worked. However, it seems to me that is immaterial. What is crucial is that in the minds of the accused, the woman was a sorceress. She presented continuous threats to the survival of their societies and in their beliefs, she had to go.

As counsel and in my other capacities, I have heard of fear of sorcery throughout P.N.G. Even among those who have had contact with churches for as long as 100 years fear sorcery as a reality, (see for example 2 papers - Sorcery Among Sepiks by B.M. Narokobi and Sorcery Among the Tolais by W. Kaputin)N233.html#_edn195" title="">[cxcv]².

It is all too easy for those brought up in one sort of social and cultural background to deny the existence of the workings of the minds of those conditioned by quite a different background. The psychological domains of the human mind, in my view are still a deep mystery, in spite of the great work of Freud and others.

What one mind believes and sees as real can be nothing more than a mere illusion to others. The reality of the flying saucer for example, cannot be questioned by those who see it, but to those who merely hear about it, it is a fantasy.

I sit here as a Melanesian judge among Melanesians. I run a grave risk that I might put on Anglo-Australian cognitive lenses to see Melanesian situations and events. Fortunately, the Australian judges in the past have been mindful of this danger and have sought to give careful consideration in sentencing to the cultural setting of the offenders.

In imposing the sentence I have decided to impose, I have three foremost interests to balance. The first is the interests of the nation state with its Parliament, its courts, its codes, its constables and its executive arm of government. Collective living, within a nation state, demands that individuals and villages, tribes and communities have to give a little of their territorial and personal sovereignity. But the nation and its institutions will have no basis without the tribes, villages, and people with their idiosyncracies and virtues. Thus, the nation and its arms of the law, which include the courts must also take cognizance of the interests of the community to which the offenders belong. That then, is the second consideration. The impact of the penalty on the community to which the offender belongs must be a foremost consideration. I do not sit to judge a sophisticated accused in an urban centre where each person is an individualist, with minimal interdependence on his once clansmen or once fellow villagers.

The third consideration is the question of the four prisoners themselves. This consideration relates back to their community, but it also goes beyond it. No society can remain static. Sometimes, as it seems in the present case, tragedy brings new possibilities. The prisoners must eventually return to their communities. The contacts they make with other peoples in prison will no doubt offer them new horizons. Judges in this jurisdiction have often referred to this element as an educative element.

That may be so, but in my respectful view, criminal laws are not made so that if people break them, they will have to be educated. The purpose of criminal law is not to educate people, but to state very clearly that certain kinds of actions are forbidden by the law itself and are therefore made crimes or offences. And the reason is really quite simple: to announce to the society that these actions are not to be done and thus to ensure that fewer of them are done, (see H.C.A. Hart: Punishment and Responsibility (Oxford: Clarandon Press 1968) pp 4-13 - reprinted in “The Criminal in the Arms of the Law”- Edited by Leon Radzinowicz and Marvin E. Wolfgang Vol. 2 - at pp 22).

The crucial question here is - what society? In P.N.G., a “nation of a thousand tribes”, the proper consideration must be the tribe of the prisoner, within the national society. The nation “announces” to a village population that cannot read or hear government word that it is wrong to kill. The tribe also agrees, it is wrong to kill - but what do you do with those who are believed to be killing your people? The State is ill equipped to deal with evils that emerge from the inner domains of man. The nation declares war on germs that are responsible for sickness and disease. It sets up hospitals, and embarks on programmes to eradicate disease. If sorcerers are believed to be responsible for deaths, it is not difficult to see by analogy that society would want to rid itself of that menace. The problem is that the courts of law are ill equipped to deal with the domain of human psychology. The danger is always that anybody could be killed by a simple argument that he was a sorcerer. But that is a matter of judging the facts of that particular case, in all the circumstances.

The danger of justifying imprisonment of traditional wrong doers on the basis of education is that it leads to a serious challenge to the very reasons for having criminal law. If it is to educate offenders, then logically one would not oppose psychological indoctrination as might occur in China through the process of re-education. If that was to be the reason for imposing custodial sentences on tradition bound offenders, I doubt if that would be consistent with the spirit of freedom of conscience, thought and religion. In the alternative, it might be asked whether that form of education could not be inconsistent with constitutional guarantee to freedom from torture.

To me, education of wrong doers is quite different from reforming wrong doers. Although the processes are similar, the assumptions are different. In the education of the traditional people, the assumption is that the so called primitive people need to learn the civilized ways. Unfortunately the state of the world is such that the so called civilized ways are not all that civilized. I don’t think the so called civilized man can safely claim that the so called primitive man has to learn from the civilized world, the requisite virtues, if he wants to be a man and survive.

If that was indeed the purpose for incarcerating law breakers, it might well be argued that either people need to break the law before they can make claims to the virtues of civilization or that prisons are really the best places for educating the so called primitive man.

If to punish the so called primitive man is to educate him, then surely the best place to send him is not prison but an educational institution, or to a church. In that place he would be taught all the virtues of modern civilization and at the same time taught that his own ways are to be discarded.

In reforming an offender, the assumption is this. As a member of the community in whose virtues he has grown up, the offender has repeatedly deviated from these virtues and needs to be reformed. This principle would be applicable to a sophisticated Papua New Guinean who persists in deviant behaviour. Such a principle would not be relevant in the case of the so called primitive man, whose breach of the State law may be no more than an honourable adherance to the moral ethics of his community.

In my respectful view the proposition that the so called primitive man should be incarcerated within a period sufficiently long to enable him to learn the civilized man’s law is highly paternalistic and somewhat loaded with Eurocentric self righteousness.

Events in the world would tend to show that in the universe of moral order, no civilization can claim superiority over the other. All mankind is prone to evil tendencies just as he is capable of greatest moral achievement. No doubt criminal law is deeply embedded in the moral ethics of its society, and must be reflected in the Court’s treatment of offenders that come before the Courts.

In imposing my penalty, I have regard to a wide range of specific matters I set out below:

(a) ;&#16rsonal hist history chry character, age, habits, customs, social mores and the overall hereditary factors of each of the prisoners;

(b) &ـ Pl or dined intensntensity of the will toll to do e do evil gvil generally and particularly within the elements of the crime for which risonave been found guilty;

(c) Motive - what wast was the the motive of the prisoners - to make greater gains materially or in social standing, and the degree to which the motive is tolerable in view of factor (a) or as a mattehonouy bacp>

(d) < &160; #160; s; Wa offence committeditted under fear, shame, embarrassment, excitement, or a mob psychology, obligation to a group or a clan;

(e) Was the offence committedaby way of abusing a position of trust or leadership or guardianship;

(f) ҈ hes tfenoffence come committed in defiance of legitimate authorityhe coty;(g) &160; #1660 es, cechniques ques and wand ways used and employed to commit the offence - weapons or instruments used;

(60;&##160;;&#16tent nger, if any to the community is it far reaching, ing, is it s it limitlimited?

(i) Subseqevnt s tntthe ffencffence - repentence, restitution, restoration of human relations strained, payment of damages or csatio>

160;&ـ&#1egree of specific harm on the victims of s of the othe offencffence or e or the sthe survivurviving dependants or relatives of the victim; and prevalence, locally and nationally;

(k) &##160; Attitudtitudes of tce vi oims or their survivors towards the offence and in particular towards the offender;

(l) Extent of legal ints, iticulman rign rights, obligations and the national goal goals anls and directive principles of the Constitution affected i.e., the overallct onnatiospira; as st lospirationations;

>

(m)&#(m) &160; #160;ـ Direct impact pact of punishment on the family, the person and the community whether it be a line, a clan, a village or a corporate unit to which the offender might have been a constructivezen uhis bad day;

(n

(n) Rehabilitation on the one hand and retribution on the other hand, of the accused;

(o) Time awaitingltriacl inng ding custody time and time on bail and its condi if awaitiial;

(p)&#(p) &160; #1660;&##16; Degree tree to which the offender co-operated with the State authorities in settling the case in issue;

(60;&##160; Public opinion and professional opinion as expressed through ingh institustitutions such as National and Provincial Parliament’s motions, Local and Community Government motions, published reports of the Law Reform Commission and other professional bodies.

(r) ;&#16 the presenresent case case, I take so many factors as are relevant in determining the penalty I have to impose. Since this is one of my first major cases, I have set out the factors.

I intend now to determine the extent to which each factor mitigates against severity of sentence or aggravates the sentence.

(A) PERSONAT HIS CRY,ACTAR, HAR, HABITS, CUSTOM, SOCIAL MORES ETC.

I have had an opportunity to examine the prisoners close am sied tdherectly e social customs and mores of their societies and hand have cave commitommitted tted the ofhe offence in that context. It was their perceptions and belief of right and wrong which led them to take a life. Rightly or wrongly, it was their concern for preciousness of a life, believing the deceased had killed as many as 20 people through evil sorcery, that led them to kill her.

It is to be remembered that Sorcery Act 1971 opens with the preamble - “An Act to prevent and punish evil practices of sorcery.” It further acknowledges that “there is a widespread belief thoughout P.N.G. that there is such a thing as sorcery and that sorcerers have extra-ordinary powers which can be used ... more often for bad ones ... and many people are frightened or do things that otherwise they might not do ... and there is no reason why a person who uses...sorcery to do, or to try to do, evil things should not be punished just as if sorcery were real ... some people may act ... under the influence of sorcery to such an extent that their conduct may not be morally and (should not be legally) blameworthy ...” The Act finally cautions against making baseless accusations against the enemies by calling them sorcerers.

The four accused belong to “social groups which believe in powers of evil sorcery.” It is remarkable indeed that they tolerated up to 20 deaths attributed to the evil sorcery of one woman before they finally said “enough is enough”. Modern societies are not likely to tolerate one murder, let alone the shop lifting of a chewing gum, by a poor youth.

There is nothing to suggest these men were cold blooded murderers. Certainly there are no previous convictions of murder or any other offence against them. But for the Criminal Code, I would think they would be quite relieved now that they had removed the “cause” of their deaths. This is a factor of mitigation in their favour, I find.

(B) NEDANR DEOERMINED INTENSITYNSITY OF WILL TO DO EVIL ETC.

Here there is a marked absence of such a plan. Evidence shows that initially they set about ing tman tdealt by tap. On the way she she triedtried to r to run awun away anay and they killed her.

There is no determined will from the start to kill the deceased. As against that, there is the element of determination to kill the woman once she set about to free herself from the men. She was held by Aluma Boku while the other three shot her. No-one tried to prevent the killing. The killing is not the climax of a determined plan, but that of a surprise killing. (See factor (d)).

(C) &#160IVE

(P) ; P60LIC BPINION, ETC.<

In computing the sentence, I am mindful of a strong public opinion that capital punishmenintro for l murs. Ths currently a draft Bill before the Parliament on c on capitaapital punl punishmeishment, int, introduced by Sir John Guise, M.P. In my view, the facts of this case could negate any argument in favour of a general rule that all wilful murderers be hanged or gassed.

I am also mindful of the range of imprisonment, courts in this country have imposed on sorcerer killers.

In the decision of the trial judge in Ulao Amantasi and OthersN233.html#_edn197" title="">[cxcvii]⁴ case trial judge imposed a ed a sentence of 12 months imprisonment on each of the accused. On appeal by the Secretary for JusticeN233.html#_edn198" title="">[cxcviii]⁵, the Supreme Court by a majority of two to one, upheld that sentence. That was a case of sorcery killing.

Prentice S.P.J., as he then was, in my view was right when he said that “the punishment of sorcerer killers has always been comparatively light” (supra)N233.html#_edn199" title="">[cxcix]⁶ at p. 137 line 3.

In that case, the killing was planned, and involved 10 a accused who ambushed the deceased and killed him. In terms numbers of dead thcerers are responsible for, in the present case some 20 fell at the deceased’s hands,ands, while in Ulao Amantasi’s case, 11 fell.

In that case, His Honour the dissenting judge expressed sentiments that “imposition of light sentences tends to bring the law into contempt and may in some quarters encourage the view that they are a licence to kill.” (supra)N233.html#_edn200" title="">[cc]⁷ at 2.

With respect, ect, in my view such a sentiment underestimates the significance of motive for killing. To impose a general principle of punishment simpcause that is the way Parliament has stated the possible pule punishment, is to ignore the basic principle that every man who comes before the courts must feel he is being tried as an individual, not as a number.

Individuals who appear before the courts do not emerge from nowhere. They emerge from social setting in which they are related to other individuals. To punish without regard to consequences upon the communities to which individuals belong, is, in my view to allow ones judgment to be unduly swayed by generalised, and often frantic public outcry about law and order, and the ever swelling wave of crime. A limited study of the Law Reform Commission in 1976 reveals that convicted murderers rarely, if ever respect murder. In my view, this is a classic sorcerer killing envisaged by the Law Reform Commission in its recommendations for a new class of homicides to be called “diminished responsibility killings”.

COMPENSATION AS A FORM OF PUNISHMENT

I have had regard to the published opinions of Law Reform Commission to which I was the Chairman.

When I look at the Criminal Code Act, sections 18 and 19, present very little scope for imposing any other form of punishment than imprisonment. It is clear from s.18 of the Criminal Code Act’s Schedule that the punishments to be imposed do not include an order that the prisoners pay 20 pigs to the survivor of the deceased.

All that the Criminal Code Act is saying under s.18 is that imposing punishment under that Act would have to be any one of (a-f) provided. In my view, this does not stop a court from imposing punishment, following a conviction under Criminal Code Act, under the Native Customs (Recognition) Act section 7 (e).

By Section 7 (e), a customary form of punishment in my view may be imposed, provided it is not prohibited under Section 6 (1). I see nothing repugnant to the general principles of humanity, inconsistent with a written law, unjust, contrary to public interest or detrimental to the interests of a child in my awarding compensation. It is a clearly established custom in this case and in my view it is within the ambits of Section 7 (e).

By imposing a 3 months imprisonment with hard labour on top of the 4 months the prisoners already served, I am meeting the requirements of an “imposed law which in this aspect receives little or no approbation from primitive villagers, comparable to the relief which many of them would receive from the elimination by that law of the wayback” (per Prentice S.P.J. as he then was in Secretary for Law v. Ulao Amantasi and OthersN233.html#_edn201" title="">[cci]⁸ (supra).At the same time time, as a Melanesian judge, I would be less than myself if I fail to recognize the custom that exists and merely impose an imprisonment sentence, light though it would be. H found the existence of thaf that custom of paying pig compensation as a form of punishment, I proceed under Native Customs (Recognition) Act 57 (f) and make an order against each of the prisoners to pay 5 mature pigs upon release from prison to the son of the deceased, Awin. My view of the Native Customs (Recognition) Act is that it is of general application and may be used to support award of compensation, or damages in a criminal case.

If I am wrong in that regard then I would think that the combined effect of various provisions of the Constitution would support the imposition of such a punishment.

Section 20 of the Constitution provides that until an Act of Parliament provides otherwise, the underlying law of P.N.G. includes the common law and custom (Schedule 2). Schedule 2.1 says that custom is adopted and shall be applied and enforced, as part of the underlying law. Custom would be excluded if it is inconsistent with a Constitutional Law or a statute or is repugnant to the general principles of humanity. In imposing a punishment of 5 mature pigs to be paid by each of the prisoners, I consider I am acting within the schedule.

The National Court, is a court of justice, not of legality. By s.163(1) of the Constitution, it the National Court, is established and by Section 166 it has unlimited jurisdiction. By s.155(4) the Court has “inherent power to make, in such circumstances as seem to them proper .... orders as are necessary to do justice in the circumstances of a particular case”.

Section 158 (1) of the Constitution vests the judicial authority of the people in the National Judicial system of which the National Court is a part. The court in interpreting the law shall give paramount consideration to the dispensation of justice. It would be strange for me not to impose a penalty that was a part of criminal law of this country and that criminal law includes customary perceptions and beliefs about punishment.

LAW REFORM COMMISSION PROPOSALS CONSIDERED.

The Law Reform Commission proposed an amendment to the Code to add a Section 307A which would be that:

“a person who by an act or omission unlawfully kills another person in circumstances in which the killing would have been justifiable according to the customary law and traditional perceptions and belief of the customary social group to which he belongs is guilty of diminished responsibility killing”.

Under the Commission’s proposals diminished responsibility killing would be an alternative verdict upon an indictment for wilful murder. These proposals were designed deliberately to preserve sanctity of life (s.35 Constitution); to avoid excusing “pay-back” killings and to pay “homage to the memory of our ancestors - the source of our strength and the origin of our combined heritage”. Furthermore, the proposals were to give effect to our Constitutional directive for “a willingness to apply traditional ways dynamically and creatively for the tasks of development”. Development includes law development.

If I recall correctly, for such an offence, maximum punishment would be 3 years.

(Q) RELEVAN LAWUNN PMENSHS

I have referred to Sorcery Act, and Court’s practice in imposing sentences on sorcerer killers. It is important also to have regard to the general laer whourtsimpose punishmenthments. Ths. These iese include the following:

(a) Native Customs (Recognition) Act (No. 28 of 1963)

(b) The Criminal Code Aot (N o 78 of 1974)

(c) ;&#16he Ctutio Sn 5>Sn 5 ot Act says that thet the exis existencetence of a of a cust custom and its application is to be as contained as a matter of fact. To ascertain custom, the cou not by strict legal egal proceprocedure. Indeed the court may of its own motive call evidence to establish custom, or even to inform itself of the question of custom. In this case, having heard the address of counsel for the accused and upon reading the records of interview of the accused I am satisfied that custom exists about belief in sorcery and about payment in kind (pigs in this case) as a form of retribution or punishment.

Section 6 of that Act provides for custom to be recognized and enforced unless it is repugnant to general principles of humanity, or is inconsistent with a written law, or is not in the public interest or would result in injustice or would adversely affect the best interests of a child.

Section 7 however restricts the use of custom in criminal cases, except to ascertain the existence or non existence of a state of mind of a person, reasonableness or otherwise of an act by a person, or an excuse, determining whether to proceed to the conviction of a guilty party, in accordance with any other law, or in determining the penalty (if any) to be imposed on a guilty party.

The courts of this country have restricted the use of this legislation. This combined effect of sections 6 and 7 “have operated to limit the role accorded to custom in the criminal process”, (see Andrew, Chalmers and Weisbrot Criminal Law and Practice of Papua New Guinea at pages 7-8). In my view this is an unnecessary restriction of the scope of the Act. (See B.M. Narokobi Vol. 5 June, 1977 Melanesian Law Journal at p. 52).

Bearing in mind also the duty imposed on me by the Constitution to develop the underlying law, I would take the view that the circumstances of this country demand that compensation as a form of liability be recognized and applied, in criminal cases, wherever appropriate. I do so in this case.

If Schedule 2.1 and 2.4 together with Section 109(4) of the Constitution are not adequate, I would still develop an underlying law pursuant to schedule 2.3, together with Native Customs (Recognition) Act s.s. 5, 6 and 7(e) and s.109(4) of the Constitution.

The upshot of all my reasoning is that I impose a term of imprisonment of 3 months with hard labour on each of the prisoners and order each of them to pay 5 mature pigs to the deceased’s younger son immediately upon release.

Solicitor for the State: Public Prosecutor, C. Maino-Aoae

Counsel: J. Pollak

Solicitor for the Accused: A/Public Solicitor, D.J. McDermott

Counsel: K. Wilson A. Yer

<94">N233.html#_ednref194" title="">[cxciv]^{See R.B. Seidman 28 M.L.R. 46-61, discussing African situation in sorcerer killing.}

N233.html#_ednref195" title="">[cxcv]^{Law Reform Commission Papers Nos. 10 of ‘78 and 8 of ‘78 respectively.}

N233.html#_ednref196" title="">[cxcvi]^{Right to Life s.35 Constitution of the Independent State of Papua New Guinea}

N233.html#_ednref197" title="">[cxcvii]^{Unnumbered Unreported National Court Judgment}

N233.html#_ednref198" title="">[cxcviii]^{(1975) P.N.G.L.R. 134}

N233.html#_ednref199" title="">[cxcix]^{(1975) P.N.G.L.R. 134}

N233.html#_ednref200" title="">[cc]^{(1975) P.N.G.L.R. 134}

N233.html#_ednref201" title="">[cci]^{(1975) P.N.G.L.R. 134 at p. 137}