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State v Damanin (No. 1) [2018] PGNC 615; N9242 (11 September 2018)

N9242

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 424 OF 2015

THE STATE

V

JOEL DAMANIN
(NO 1)

CR NO. 425 OF 2015

THE STATE

V

CECIL KINGSFORD
(NO 1)

Alotau: Toliken J
2018: 7^th, 8^th June, 13^th July,11^th September

CRIMINAL LAW – Wilful Murder on account of accusation of sorcery – Trial - Two accused persons – Deceased a reputed sorcerer - Whether each accused intentionally killed the deceased – Whether the killing was on account of accusation of sorcery - Criminal Code Ch. 262, s 299A

Facts:

The deceased is a reputed sorcerer and is alleged to have caused illness and the deaths of several people in the village. The latest accusation was that he was responsible for the illness of accused Joel Damanin’s wife and of being seen around Damanin’s house on three consecutive nights prior to his killing. Both accused are related to the deceased and were concerned about the deceased’s alleged activities. On the morning of the killing accused Cecil Kingsford went up to the deceased’s hamlet and confronted the deceased. The deceased attacked him spearing him on his thigh with a spear and missed him with another. The deceased then ran back into his house and locked himself in. He then cut a hole in the wall to escape and as he stepped out the hole, Joel Damanin cut his leg with a bush knife and then immediately left the scene. The deceased crawled away from the house to escape. Cecil Kingsford followed him and speared him twice with two spears. The deceased died as a result.

Held:

1. The accused Cecil Kingsford initially intended to take the deceased down to the Government Station to sort out the latest sorcery accusations against him. However, when attacked and injured by the deceased he became angry and pursued the deceased with two spears as he was crawling away after he was cut by accused Joel Damanin. He then speared the deceased on the chest and neck leaving the spears in situ. He then got a stone and smashed it on the deceased’s head.
   
2. A killing may be pre-planned in which case the intention will be consummated later or followed by the physical act of killing. However, the intention to kill may be formed instantaneously and immediately acted upon.
   
3. Judging from the manner in which Cecil Kingsford attacked the deceased, and the nature and location of spear wounds, Cecil Kingsford definitely intended nothing less than to end the deceased's life. It matters not that he did not initially set out to kill him. What matters is his mental state at that critical moment and how he put his intention into motion or executed it. I find that the State has proved beyond reasonable doubt that Cecil Kingsford intended to kill the deceased.
   
4. When confronting the deceased Cecil Kingsford told him that he (deceased) had been responsible for the deaths of her aunties and an uncle and that it was his time to die. So while he may have been angered by his injury, it would be reasonable to infer that he may have been also motivated to a significant extent by his belief that the deceased had been responsible for the deaths of his relatives through sorcery. I am satisfied on the required standard that a further and significant reason Cecil Kingsford killed the deceased was because of his alleged acts of sorcery.
   
5. I return a verdict of guilty against Cecil Kingsford for wilful murder on account of accusation of sorcery.
   
6. In respect of accused Joel Damanin, I am not satisfied that he intended to kill the deceased. I find that he merely intended to cause him grievous bodily harm and I therefore return an alternative verdict of murder pursuant to Section 539 of the Code.

Cases Cited:

Nil

Counsel:

A Kupmain, for the State
P. Palek, for the Prisoners

VERDICT

11^th September, 2018

1. TOLIKEN J: The accused Joel Damanin (Joel) and Cecil Kingsford (Cecil) were indicted for one count of wilful murder on account of accusation of sorcery pursuant to Section 299A of the Criminal Code Ch. 262.
   
2. They were charged that:

“... on the 08^th day of October 2013, at Nawandowan village, Rabaraba in Papua New Guinea they wilfully murdered one Norman Buka on account that the said Norman Buka was practising sorcery.”

3. The State alleged that on 08^th October 2013 at Nawandowan village, Rabaraba, the accused suspected the deceased Norman Buka of practising sorcery and therefore went to the deceased house at Bondiri village. The accused Cecil was armed with a home-made gun and a bush knife while Joel was armed with a bush knife. On arrival they started shouting and throwing stones at the deceased’s house. The deceased speared Cecil on his thigh with a spear. He then made a hole through the wall and tried to escape when Joel cut his leg with a bush knife rendering it difficult for the deceased to get away. Cecil then speared the deceased twice, first on the stomach and then on his neck. He then picked up a stone and hit the deceased on the head. The deceased died instantly as a result of the injuries he received.
   
4. The State alleged that the accused intended to kill the deceased because they suspected him of practicing sorcery.
   
5. Both accused denied the charge saying that they did not intend to kill the deceased.
   
6. The offence of wilful murder of a person on account of accusation of sorcery is a new offence, introduced to the Code by Criminal Code (Amendment) Act 2013, No.6, s 1. It states:

SECTION 299A. WILLFUL MURDER OF A PERSON ON ACCOUNT OF ACCUSATION OF SORCERY.

(1) Any person who intentionally kills another person on account of accusation that the person is practicing sorcery, is guilty of wilful murder and shall be sentenced to death.

(2) For purposes of Subsection (1), "sorcery" includes (without being exhaustive and exclusive) what is known, in various languages and parts of the country, as witchcraft, magic, enchantment, puripuri, mura mura dikana, vada, mea mea, sanguma, or malira, whether or not connected with or related to the supernatural.

7. This new offence essentially introduces a new element to the offence of wilful murder. It is, however, not a simple form of aggravated wilful murder, but a completely new offence which Parliament enacted in direct response to the spate of sorcery related killings in the country which have attracted attention and condemnation, both domestically and internationally.
   
8. The elements of the offence are therefore as follows:
   
   1. The accused
   2. Intended to kill a person
   3. Killed the person
   4. The killing was unlawful
   5. The killing was on account of accusation of sorcery
      
9. The State bears the onus of proving each element of the offence beyond a reasonable doubt unless an element is admitted by the accused.
   
10. In this case there is no dispute that both accused had assaulted and occasioned bodily injuries on the deceased from which he died.
    
11. The main issues for trial then are:
    
    1. Whether the accused intended to kill the deceased.
    2. Whether it was on account of accusation of sorcery
    3. Whether the killing was unlawful
       
12. The State called three witnesses namely:
    
    1. Robertson Tautabin
    2. James Awaya Gani
    3. Winta Daweni
       
13. The State also tendered the following documents by consent:
    
    1. The Record of Interview of Cecil Kingsford (Original pidgin and English translation – marked A and A1)
    2. The Record of Interview of Joel Damanin (Original pidgin and English translation – marked B and B1)
    3. Affidavit of Dr. Titus Pakop (annexing the Autopsy Report – marked C)
       
14. Both accused persons gave sworn testimonies but called no witnesses.
    
15. The following facts are not disputed. The deceased Norman Buka was a reputed sorcerer and was alleged to have been casting spells on people in the community and killing others by means of sorcery. Because of that he had been brought to the Government Station at Kumani on several occasions.
    
16. It so happened that Joel’s wife had been ill for about three months prior to the killing, and that a “glasman” or diviner from Kumani by the name of Silas had pronounced that the deceased was responsible for her illness. Word then got around that on three consecutive nights prior to the day of the killing the deceased was seen around Joel’s house. This concerned the villagers and prompted the events that then followed and transpired on the date in question.
    
17. It is not disputed that on the morning of the day in question Cecil had gone up to Bondiri village. There he confronted the deceased in his house. The deceased went into his house and came out with a hunting spear and speared Cecil on his right thigh. He threw another spear at Cecil but missed him and then ran back into the house and shut the door. The deceased then tried to escape by cutting a hole through the wall but as he stepped out of the hole, Joel cut him on the legs thus impeding his progress. After wounding the deceased Joel left the scene and returned to his hamlet. On the way he met Robertson and James Awaya on the main road and informed them that he had already cut the deceased.
    
18. In the meantime, back at Bondiri, with the spear still lodged on his thigh Cecil called over to Winta Daweni who had been watching things unfold from his house about 10 steps from the deceased’s, to come and remove the spear. As soon as Winta removed the spear, Cecil, who was by now admittedly very angry, got the spear and picked up the other spear which the deceased had missed him with, and went after the deceased as he was crawling to the bushes to get away. He speared the deceased firstly through the chest and with the other spear speared him through the neck. He left the spears lodged on the deceased body.
    
19. Soon after that Robertson and James Awaya arrived. Robertson instructed the villagers to bury the deceased and then took Cecil down to the Health Centre.
    
20. Winta and two others (Leon and Napoleon) removed the spears from the deceased’s body. The body was then wrapped in mosquito netting, blanket, transparent plastic and finally a pandanus mat over the top and buried.
    
21. A post mortem was conducted exactly a year and a day after the killing on 9^th October 2014. The body was exhumed and examined on location by Dr. Pakop Titus.
    
22. Dr. Titus found the multiple layers over the body provided a tight seal which slowed down the process of decomposition and the warmth provided by the four different layers over the body effectively transformed the body into a mummy.
    
23. Examination revealed no skull fractures and no obvious entry wounds to the chest and abdomen. The legs were not dissected because they were in an advanced state of decomposition hence no comments were made regarding any fracture(s).
    
24. The direct causes of death were airway obstruction, tension pneumothorax, haemopneumothorax and penetrating injury to the heart and major vessels.
    
25. So did the accused Cecil Kingsford and Joel Damanin intend to kill the deceased, and did they do so on account of accusation of sorcery?
    
26. I will consider these two issues together. The pertinent evidence in regard to these issues is this.
    
27. Robertson Tautabin testified that Cecil had arrived early that morning at his house and told him he wanted to kill the deceased because he had killed his aunty. Robertson said Cecil told him four times that he will go up and kill the deceased to which Robert said he told him not to and when he insisted the 5^th time Robert did not say anything. Cecil then soon left for Bondiri.
    
28. After Cecil left James Awaya came and they followed but they could not catch up with him. They went to the Station to see the Village Chief, but he had gone to his garden. They went on to the Ward Member and the Village Magistrate, but both were not at home as well so they left for Bondiri following the main road. It was around 1.00p.m by then when they met Joel. Joel told them that he had cut Norman’s leg and left Cecil behind as he had been speared by the deceased. Robert and James continued on to Bondiri. They arrived to find the deceased already dead. Cecil was speared on his thigh and bleeding from his head as well.
    
29. James Awaya essentially corroborated Robertson’s evidence that they followed Cecil to Bondari, of having to check the Village Authorities at the Station, of meeting Joel on the road as he was returning from Bondiri and of Joel confessing to cutting the deceased on the leg and then finally of arriving at Bondiri after the killing and assisting Cecil to the Health Centre. He also confirmed that Joel’s wife had been sick and the “glasman” Silas had announced that the deceased was responsible for her illness. He agreed though when it was put to him, that on the day in question, Cecil had gone up to Bondiri to bring the deceased down to the Station to sort out the allegations involving Joel’s wife.
    
30. Winta Daweni is a nephew of the deceased. On the morning of 08^th October 2013 he was in his house which was about 10 steps from the deceased’s. At about 6.00a.m Cecil arrived at Bondiri armed with a bush knife and a home-made gun. He confronted the deceased at his house and blocked him from escaping. The deceased went into his house and closed the door. Cecil then repeatedly shouted at the deceased that he was the one who was responsible for the deaths of his aunties and his uncle. And that it was his time to die that day. He then started to pelt the deceased’s house with stones.
    
31. At this point the deceased somehow managed to spear Cecil on his thigh and then immediately retreated into the house again closing the door behind him. He could then hear the deceased cutting the wall of his house to get out. And he managed to come out, but at that very moment Joel arrived at the scene and cut the deceased on the leg with his bush knife. After cutting the deceased Joel immediately left for his village as the deceased was crawling away from his house to the bushes nearby to escape.
    
32. In the meantime, Cecil, with the spear still lodged in his thigh, called out to Winta to come and remove the spear. As soon as Winta removed the spear Cecil got the spear and picked up another from the ground and went after the deceased. He speared the deceased as he was crawling away from him, firstly through the chest with the first spear and through the neck with the second spear. He then got a stone and put it under the deceased's head, got another stone and smashed the deceased's head with it.
    
33. Cecil on the other hand testified that Robertson had sent a boy named Luke to fetch him that morning. When he arrived at Robertson’s house, Robertson told him that the deceased had been seen around Joel’s house on three consecutive nights (Saturday, Sunday and Monday) with the intention of performing sorcery on Joel’s wife. Robertson then told Cecil they will have to go up that day and kill the deceased. Cecil protested, saying that he could not kill him as he was his uncle, but he will go up and bring him down instead so that they sort out the problem. He then left for Bondiri.
    
34. When he arrived, he told the deceased that Robertson had seen him on three nights around Joel's house. The deceased, however, threw two spears at him, the first pierced his thighs and the second one missed his leg. Joel arrived at this time and upon seeing the deceased trying to escape cut him on the leg. Cecil then called over to Winta to come and remove the spear from his thigh. And when Winta did, Cecil said he got the same spears which the deceased had used on him and followed the deceased. He then said he took the law into his own hands.
    
35. When asked in-chief what his intentions were for going up to Bondiri Cecil said he had wanted to take the deceased to the Station. And when asked why he went after the deceased after Winta pulled out the spear from his thigh Cecil said he was angry after he had been speared.
    
36. In cross examination Cecil maintained that he had gone up to take the deceased down to the Station and denied that he had told Robertson that he would go up and kill the deceased. He denied that the deceased was crawling away but rather walking away after Joel had cut him. He said he took the law into his own hands because the deceased had speared him when all he intended to do was to take him down to the Station. When it was put to him that he also smashed the deceased's head with a stone Cecil said he did so because the deceased had speared him.
    
37. He denied being armed with a home-made gun also, but I believe the evidence of State witness Robertson Tautabin, James Awaya Gani and Winta Daweni that he in fact was.
    
38. Joel Damanin testified that he was also advised by one of Robertson’s sons, James, that his father and James had gone up to Bondiri. He then proceeded to Bondiri. He arrived in time to see the deceased spear Cecil on his right thigh and missed him with another spear and of immediately going into the house and closing the door after him. He saw the deceased cut a hole through the wall of his house and exited through the hole. Concerned that the deceased might attack Cecil again, he cut the deceased on the leg. He then immediately left the scene and returned to his hamlet. On the way he met Robertson and James Awaya Gani and told them that he had cut the deceased’s leg and that the deceased had speared Cecil on his thigh. Joel did not witness what happened after he left the scene. He, however, confirms that the deceased was a reputed sorcerer and that he was said to have caused his wife’s illness. He denied that he and Cecil went up to intentionally kill the deceased. Joel is a cousin of Cecil and the deceased was their paternal uncle.
    
39. State witnesses Robert Tautabin and James Awaya Gani did not see what actually happened at Bondiri as they arrived well after the deceased was killed. They, however, arrived to find Cecil also injured and Robertson therefore had to take him away to the local Health Centre, but not before instructing other villagers to bury the deceased. The relevant evidence at the critical moment therefore was from Winta Daweni, and the accused persons.
    
40. As we have seen it is not disputed that the deceased went into his house when confronted angrily by Cecil. Winta Daweni who witnessed things unfold from his house, some 10 steps way from the deceased’s testified that as soon as Cecil arrived, he confronted the deceased, blocking him from escaping. The deceased went into his house and locked the door. Cecil then started shouting at him, telling him that he was responsible for the deaths of his aunties and his uncle and that it was his time to die. He then started pelting the deceased’s house with stones. Cecil however, denied that saying instead that he told the deceased that he had come up to take him down to the Station and telling him that he did not come to cause him harm as he was his uncle.
    
41. It is not disputed that at this point the deceased threw two spears at Cecil from inside the house. The first one caught Cecil on the right upper thigh. The second one missed him. Joel had by then arrived at the scene to see this happening. After spearing Cecil, the deceased jumped out of the house and was approaching Cecil when Joel, fearing that he might pick up the spear and spear Cecil again, ran towards him. Seeing Joel, the deceased ran back into the house and closed the door. Joel told the deceased that they were not his enemies but were there to take him down to the Station. The deceased did not answer but proceeded to cut a hole through the wall to get away. And as he was stepping out through the hole Joel rushed over and cut the deceased’s leg with his bush knife. After cutting the deceased Joel left and returned to his hamlet. On the way he met Robertson and James Awaya Gani and told them that he had cut the deceased.
    
42. In the meantime Cecil, with the spear still lodged on his thigh called over to Winta Daweni to come and remove the spear from his thigh. Winta came and removed the spear from Cecil’s thigh. By this time the deceased, unable to walk because of the cut to his leg was trying to crawl away to the bushes new his house. As soon as Winta removed the spear from Cecil’s thigh, Cecil got the spear and picked up the second spear and followed the deceased as he was crawling away. Cecil
    
43. Cecil’s reason for going up to Bondiri was disputed, so for what reason did he go to Bondiri? Did he go up to take him to the Station or to kill him?
    
44. The pertinent evidence on this point is that of Robert and Cecil. What exactly transpired and what was said between the two of them? It is indeed a question of who to believe as both counsel agreed.
    
45. The following facts are pertinent to the question; (1) the deceased was a reputed sorcerer, (2) he had been taken down to the Kumani Station on several occasions previously on accusations of practising sorcery, (3) the “glasman” Silas had informed villagers that the deceased was responsible for Joel’s wife’s illness, and (4) the deceased had been seen around Joel’s house on three consecutive nights immediately preceding the date of the killing.
    
46. Given those facts, people in the community would definitely have been concerned and therefore would have wanted these recent allegations of sorcery sorted out.
    
47. Two things could have happen happened. First, Cecil could have taken it upon himself to kill the deceased as alleged by the State. Second, the community and those involved in the matter, simply wanted the deceased to be brought down to the Station for the matter to be sorted as claimed by Cecil. Both of these likely scenarios are plausible.
    
48. Having observed Robertson and Cecil on the stand, Robertson appeared to me to be too eager to distance himself from the crime. He was spontaneous with his answers not even taking time to consider the questions put to him thus displaying the attitude of someone who wanted a specific outcome whatever it takes.
    
49. None of the other witnesses were present during the exchange between Robert and Cecil, hence it is reasonable to infer that Robert may have indeed been complicit in the murder of deceased. He was the one who said he had seen the deceased around Joel's house, and I believe that he had summoned both Cecil and Joel to his place that morning. He obviously would have been upset if not angry about the deceased's activities and it is not unreasonable to think or hold that he would have wanted something drastic to be done to him.
    
50. It is worth remarking that everyone involved in this case, and particularly those who have given evidence are somehow related to the deceased Norman Buka and to each other. Robertson is the maternal uncle of Cecil, and Norman Buka was Cecil’s and Joel’s paternal uncle. Joel Damanin is a paternal nephew of Robertson, James Awaya Gani was a cousin brother to Norman Buka and Winta Dawani was Norman Buka’s paternal nephew.
    
51. Cecil Kingsford maintained that he had gone up to Bondiri with the intention of taking the deceased down to the Station at Kumani for the matter to be sorted out. I was impressed with his evidence and I am therefore led to believe that that was indeed his original intention. However, when he was speared by the deceased, he became very angry as he admitted - who would not in such a situation? And as he said he took the law into his own hands. After Winta removed the spear from his thigh he went after the deceased, who, by then was either crawling or limping away to escape into the nearby bushes and speared him, first through the chest with the first spear and then through the neck with the second spear.
    
52. Did Cecil have the intention of killing the deceased?
    
53. Mr. Palek submitted that he did not because his original intention was to bring the deceased down to the Station. That may have been the case, and it is true to say that a killing may be pre-planned. In such a case the intention will be consummated later or followed by the physical act of killing. However, the intention to kill may be formed instantaneously and immediately acted upon as was in this case.
    
54. Cecil Kingsford may have set out initially to bring his uncle to the authorities, but when he was injured by the deceased, he got very angry, and blinded by his anger he went after the deceased with the intention of taking his life. He speared him on the chest and neck leaving the spears in situ. He then got a stone and smashed it on the deceased head. It is obvious, however, that the stone did not fracture the deceased's skull as confirmed by the autopsy report.
    
55. However, it is abundantly clear to me that from the manner in which he attacked the deceased and the nature and location of spear wounds, that Cecil definitely intended nothing less than to end the deceased's life. And as I said, it matters not that he did not initially set out to kill him. What matters is his mental state at that the critical moment and how he put his intention into motion or executed it. I find that the State has proved beyond reasonable doubt that Cecil Kingsford intended to kill the deceased.
    
56. But did he kill him on account of accusation of sorcery?
    
57. The deceased was widely believed to be a sorcerer who had been casting evil spells on villagers and had been lately accused of causing Joel's wife's illness. While the Cecil testified that he simply told the deceased that he was seen on three nights by Robertson around Joel's house, I am more compelled to believe Winta Daweni's evidence that Cecil also in fact told the deceased that he had been responsible the deaths of his aunties and an uncle and that it was his time to die. So while he may have been angered by his injury, it would be reasonable to infer that he may have been also motivated to a significant extent by his belief that the deceased had been responsible for the deaths of his relatives though sorcery.
    
58. I am satisfied on the required standard that a further and significant reason Cecil Kingsford killed the deceased was because of his alleged acts of sorcery.
    
59. The last element of the offence - that the killing was unlawful is a foregone conclusion. The killing was not authorized by law.
    
60. In conclusion in respect of the accused Cecil Kingsford I return a verdict of GUILTY of wilful murder on account of accusation of sorcery.
    
61. Now, what about the accused Joel Damanin?
    
62. In respect of this accused, I am not satisfied beyond a reasonable doubt that he intended to kill the deceased. There is no evidence of pre-concert or prior planning with Cecil Kingsford. He simply followed Cecil up to Bondiri after he was informed by Robertson's son James that Cecil had gone up there. He arrived at the scene in time to see the deceased spear Cecil on the thigh and missed him with a second spear. He reacted spontaneously by cutting the deceased as he jumped out of the hole he had cut through the wall of his house.
    
63. Joel said that he feared the deceased would again attack Cecil and therefore cut him. He, however, does not say how close Cecil was from where the deceased had jumped out and whether the deceased did in fact try to attack Cecil.
    
64. I am led to infer that Joel attacked the deceased simply to retaliate against his attack on Cecil. He cut the deceased on the leg and this obviously partially incapacitated the deceased rendering it difficult for him to make a quick getaway. Winta said the deceased crawled away towards the bushes while Cecil said he had in fact walked. Whatever the case, the deceased was not in a position to make a quick escape because he was grievously wounded by Joel.
    
65. But having said that I am not satisfied that Joel intended to kill the deceased. The State did not invoke Section 7 of the Code, but if it had, there was no evidence of pre-concert with Cecil as I have said. He immediately decamped after he cut the deceased and hence did not know what Cecil did after that, nor was he around to encourage Cecil in what he subsequently did. All that the State had shown and proved beyond reasonable doubt is that Joel intended to cause grievous bodily harm on the deceased, which harm contributed to his death.
    
66. I therefore return an alternative verdict for murder against Joel Damanin pursuant to Section 539 of the Code.
    
67. Those are my verdicts against the two accused persons, and I order accordingly.

________________________________________________________________
P. Kaluwin, Public Prosecutor: Lawyer for State
L.B. Mamu, Public Solicitor: Lawyer for the Accused