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State v Manipe [1979] PGNC 8; N196 (1 June 1979)

Unreported National Court Decisions

N196

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
MOLE MANIPE
JINA MOLO
SAM MOLO
YAKIM SOPONGA
WAME LUKAS

Waigani

Wilson J
14-18 May 1979
21-25 May 1979
29-30 May 1979
1 June 1979

CRIMINAL LAW - wilful murder - manslaughter - provocation as a defence - killing of an alleged sorcerer - time for passion to cool considered - whether villager entitled to be shown ‘special indulgence’ in provocation - Sorcery Act, 1971 s.20 - Criminal Code Act, 1974, ss. 24, 271 and 308.

CRIMINAL LAW - practice and procedure - the assessment of the witness who tells lies - methods of making such an assessment considered - the need for care before accepting in Papua New Guinea the uncorroborated testimony of one member of one line against the testimony of a member of another competing line.

REASONS FOR VERDICT

WILSON J: These five accused came from Lambutina Village within the Sio community in that part of the Morobe Province which is near the Wasu Patrol Post. They are accused of the wilful murder of Advent Nero, a man about 62 years oldthe early hours of the morn morning of 1st January, 1979. It was alleged by the State that the killing took place on the beach of a lagoon near the accuseds’ village, at a spot called Goli; whilst the last four accused held the deceased, the first accused struck him over the head with a hoe; the deceased received a severe wound to his head from which he died. It was alleged by the State at first that the motive for the killing stemmed from a dispute over land, i.e. a dispute between the deceased’s line on the one hand and the accuseds’ line on the other. Subsequently, after the evidence had been adduced on both sides, it was conceded that belief in sorcery was a contributing factor which led to this killing.

Evidence was led as part of the State’s case that, following a gathering of men in Mole Manipe’s house earlier that night, when a bottle of Bacardi had been consumed, Mole Manipe and Jina Molo went to Advent Nero’s house and tried to break in, presumably to fight with Advent Nero or to kill him, and, not having succeeded in doing so, broke doors, chairs, tables and buckets. When Advent Nero ran out of the house and fled heading in the direction of Baskalo, a neighbouring village, which is on the opposite side of the lagoon from Goli beach, Mole Manipe and the others who were there, (i.e. Jina Molo and the other three accused) pursued him.

It is difficult to summarize in a few words the defence case or, as would be more accurate, the several defence cases, but doing my best to illustrate the major areas of dispute between the State and the defence, I can say that, as far as Mole Manipe is concerned, there was no dispute that he killed the deceased by striking him a blow on the head with a hoe. It was argued (although, as will appear, not successfully) that Mole Manipe was acting in self-defence and that, in any event, the State had not negatived that defence. Mole Manipe said that the deceased came at him with a bush-knife and that he, to defend himself, struck the deceased on the head with the hoe. If the State were not to negative the defence of self-defence, the accused would be entitled to an acquittal. The main ground of Mole Manipe’s defence was provocation, which, if successful, would reduce the crime from wilful murder to manslaughter. It was forcefully argued that, by virtue of the operation of ss.24, 271 and 308 of the Criminal Code Act 1974 and s.20 of the Sorcery Act, 1971, Mole Manipe had a defence of provocation and that, in any event, the State had not negatived such a defence. The defence relied on evidence that the deceased was reputedly a sorcerer, that about two weeks before the killing two traditional doctors had come to Lambutina from Kabwum and had removed some ginger and other poison material from the bodies of Mole Manipe and Jina Molo and some others at a time when there was concern about a number of recent deaths in the district, and that they had told Mole Manipe that the deceased, Advent Nero, and another man, Momole Doa, were responsible for the poison in them. All these events created in the mind of Mole Manipe a fear of sorcery and a fear of the deceased; he honestly and reasonably believed, whether rightly or wrongly, that the deceased was a sorcerer, who had committed an act of evil sorcery directed at him of such a nature judged by reference to the traditional beliefs of the Lambutina society as was likely to deprive him of his power of self-control and induce him to assault the deceased; all these events led, so it was argued, to Mole Manipe doing the act which caused the death of the deceased “in the heat of passion caused by that belief” suddenly “and before there was time for his passion to cool”.

Other grounds of defence which I have considered are the defence of intoxication and the absence of an intention to kill. There was some evidence that the accused Mole Manipe only intended to do grievous bodily harm to the deceased.

As far as Jina Molo and the other three accused are concerned, the main ground of their defence was that they were not on Goli beach at all and did not hold or punch the deceased before he was struck by Mole Manipe. It was contended on behalf of all four men that the principal prosecution witness, Jim Sam, who said he saw what happened on the beach and who purported to identify each of the four men who were “holding the deceased”, was telling lies, or at the very least, there was a reasonable doubt as to whether Jim Sam was telling the truth or not.

The State’s case against the accused, Jina Molo, was stronger than against the accused, Sam Molo, Yakim Soponga and Wame Lukas, on account of the evidence that earlier in the night Jina Molo had gone with Mole Manipe to Advent Nero’s house either to kill him or to fight him and, whilst at the house, had wilfully damaged it and some items of property. There was some evidence that Jina Molo assaulted the deceased by kicking him in the stomach. At any rate the deceased ran away. It was not disputed that Mole Manipe pursued him, and eventually confronted the deceased on Goli beach which the deceased had reached on foot and which Mole Manipe had reached by canoe.

It was argued on behalf of the State that, even if I could not be satisfied to the requisite extent that the four accused men other than Mole Manipe were on the beach holding the deceased when he was killed by Mole Manipe, then I should be satisfied that Jina Molo was guilty of either wilful murder, murder or manslaughter, on account of the principles contained in ss. 7 and 8 of the Criminal Code Act relating to the criminal responsibility of the person who aids a principal offender in committing an offence (previously called “the principal in the second degree”) - see s.7(c) - and the person who, with another, forms a common intention to prosecute an unlawful purpose and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose (by virtue of “the doctrine of common purpose”) - see s.8.

It was argued on behalf of Jina Molo by Mr. Kirriwom (whom, I observe, discharged his professional duty in his first criminal trial where he has appeared on his own with a refreshing amount of dedication, industry and thoroughness) that there were two separate incidents, one at the deceased’s house and one later on at Goli beach, the latter incident not being part of the earlier incident nor being in furtherance of, or in the prosecution of, the purpose which they had in mind when they went to Advent Nero’s house.

In the alternative, it was argued that the accused Jina Molo, by returning to Lambutina village after the incident at Advent Nero’s house whether to go to sleep or to participate in dancing and other New Year’s activities or otherwise, whilst Mole Manipe went to Goli beach (which was some half mile away) and unbeknown to him killed the deceased, had withdrawn from the position that would make him guilty of any crime committed by Mole Manipe. On the assumption that Jina Molo had helped Mole Manipe in the conduct which occurred at Advent Nero’s home which subsequently led to a crime being committed on the beach but had stopped aiding before Mole Manipe actually committed the homicide on the beach, it was argued that Jina Molo could not be guilty of any crime of which Mole Manipe might be guilty.

There were a number of other grounds of defence to be considered at this trial, including a defence of intoxication by Jina Molo, and one of mistaken identity in the case of Wame Lukas. For reasons that will soon become apparent I need not canvass each of these other grounds of defence in these Reasons for Verdict.

The evidence for the State consisted of a post mortem report, the hoe allegedly used to kill the deceased with, the bush-knife allegedly carried by Mole Manipe on his canoe, a map of the area, several Records of Interview, a s.103 statement, and the oral evidence of nine witnesses. (The trial Judge then proceeded to consider the evidence given by each of the nine witnesses for the State, by each of the five accused, and by each of the six witnesses for the defence. The trial Judge then announced his findings of fact in relation to the case against Mole Manipe.)

I am satisfied that two weeks before the day of this trouble two traditional doctors had come from Kabwum to Lambutina after there had been some deaths in the village and examined the bodies of some villagers, including the body of Mole Manipe, and thereupon told those that had been examined that their bodies were being “destroyed with bones and leaves”. For this I rely upon Mole Manipe’s Record of Interview (Ex. “F”). The accused Mole Manipe believed (and honestly and reasonably so, but nevertheless mistakenly) that Advent Nero had committed an act of evil sorcery directed at him (and others) judged by reference to the traditional beliefs of the Sio No.2 Community, i.e. his community. For this I rely on Mole Manipe’s own evidence and the evidence of those witnesses who testified as to the beliefs in and fear of sorcery in that area. In his evidence on oath, Mole Manipe explained how the two men from Kabwum “got rid of something”, i.e. poisons from his body and the bodies of other men. Later he explained that what was removed was a “bone of a pig, a bottle and ginger”. He said that the two men told him that the “poison had come from Nero and Momole Doa”. He was afraid of dying and angry.

Drawing inferences from the proved facts, I infer that the acts of evil sorcery which Mole Manipe believed Advent Nero had directed against him were such as led him to agree to kill in retaliation for the deaths he believed had already been caused by Advent Nero. Those acts of sorcery, although capable of depriving a man of the power of self-control, were not what induced him, some two weeks after his initial belief was established and two weeks after the meeting was held at which the plans were made, to assault Advent Nero. As Mole Manipe said in his Record of Interview and in his evidence, he went with Jina Molo in a planned and controlled manner and started to knock on the doors and cause damage to the house and furniture. When Advent Nero ran away, Mole Manipe followed him by canoe carrying with him a hoe and a bush-knife. On Goli beach Mole Manipe came ashore, still under control, and struck the deceased a blow on the head with the hoe. The deceased fell down dead. The act which caused the death, viz. the blow on the head with the hoe, was not done by Mole Manipe in the heat of passion. The act which caused the death was not done suddenly, or “on the sudden”, because the evidence is that the plan was made some two weeks before and it was part of the plan that there would be a delay until the New Year. It cannot be said that the act which caused the death was done before there was time for his “passion” to cool, because ex hypothesi the crime of “passion” was not, to be committed for two weeks, i.e. until the Old Year had finished, i.e. a period of time ample for his passion to cool or, for that matter, new plans (if he chose to make them) to be made.

Realizing, of course, that the onus is on the State in relation to each of these issues, I find that the State has negatived the defence of provocation and has done so beyond reasonable doubt. The accused Mole Manipe is not entitled to an acquittal of wilful murder and in lieu thereof to be convicted of manslaughter upon the basis of the decision in Regina v. K.J. and AnotherN196.html#_edn163" title="">[clxiii]¹.

Reverting to a consideration of the act which caused the death, I am satisfied that at the time Mole Manipe unlawfully killed the deceased he intended to cause his death. I rely on his evidence on oath when he said:

“We said we would kill both of them (referring to Advent Nero and Momole Doa)”.

I disbelieve him when he said he only “wanted to break one of his hands or one of his legs” and that he “only wanted to break part of his body”, and that he “wanted to cut his arm or his leg”. I do not accept the truth of what he said in his Record of Interview:

“I was intented (sic) to give him body (sic) harm but accidently (sic) it struck his ear and head”.

Having regard to the evidence of the weapon itself (a heavy and large grubbing hoe), the single blow that was struck, and the nature of the injury to the head, when viewed in conjunction with the plan two weeks before and the reason for it, the only reasonable inference to be drawn is that Mole Manipe intended to do what he apparently so easily did, viz. kill him.

I accept the truth of what he said in his Record of Interview when he said:

“We all planned to kill these two (2) men because they had killed many people with soccesary (sic)”

and later when he said:

“So the people from village planned to kill these two old men, so I killed that old man”.

In his evidence Mole Manipe was asked, “At the meeting did you decide to fight Nero and the other sorcerer?” to which he replied, “We said we would kill both of them”. His evidence also was that he said to Committee Dewa after the event, “On behalf of the people in the village complaining too much of the poisoning, I have already killed Advent Nero” and to Councillor Ola “Because of the complaints made by the people of Lambutina against Advent Nero and Momole Doa, I have now killed Advent Nero”. This evidence is all suggestive of a retaliatory homicide. He introduced the further reason of anger when he said, in answer to the question, “Was there any other reason?”, “These two men from Kabwum came down and got rid of the poison from our body- and they told us that these two men were making poisons in our village - that made us angry, and I killed Nero”.

It is significant that in his s.103 statement, Mole Manipe made no reference to an intention only to hurt or injure the deceased. If the actual death was unintentional, it is not unreasonable to have expected him to have said so in the District Court.

The prosecution has negatived the defence of intoxication. Although there was some evidence of drink having been consumed, there was no evidence that Mole Manipe was drunk at the relevant time, except Mole Manipe’s own evidence which I do believe on this point.

The prosecution has also negatived the defence of self-defence. I find that that suggestion was made by Mole Manipe in an attempt to avoid responsibility for what he had done. Had it been self-defence, one would have expected the knife allegedly used by Advent Nero to have been found; none was found. Furthermore, Mole Manipe’s suggestion of self-defence does not match-up with the stated intention to kill in retaliation for sorcery killings. It savours of Mole Manipe, in his naive and unsophisticated way, trying to have it all ways - he suggested to the police in his Record of Interview that it was a case of homicide in self-defence, then that it was a case of homicide under duress, i.e. that it was not his idea but was done for “the sake of” (or at the direction of) the people of Lambutina, then that it was only a case of murder and not wilful murder, i.e. he intended only to do grievous bodily harm (“I was intented (sic) to give him body (sic) harm but accidently (sic) it struck his ear and head”), and then that it was homicide as the consequence of a conspiracy to kill in retaliation for sorcery. I was not impressed by Mole Manipe’s demeanour. I thought he showed himself to be a clever rogue who was constantly trying, and perhaps sometimes succeeding to out-smart those in authority.

It is significant also that in his s.103 statement Mole Manipe made no reference to this being a case of homicide in self-defence. Because this is the second time I have made reference to the s.103 statement I should quote it. It reads as follows:

“I want to say something about stopping the long time of this Court, which is trying to find out who killed the old man. The Court has only heard the top of the story and the trouble, it has wasted some people’s time. The Government has lost money in this.

I told the people, the leaders and the police and now I am telling the Court on my oath before God that I killed Nero Advent and the trouble is about the old man’s death from sorcery. No discussion about land should come into the matter.

Plenty of times trouble is used by the Police and C.I.B. to gain promotion. That is all.

(Signed) Mole Manipe

(Witness) P.A. Briggs.

22/1/79.”

As I have said, no mention of self-defence, no mention of an intention only to do grievous bodily harm, no mention of intoxication, and no mention of his losing his power of self-control. There is no hint of this being a crime of passion committed suddenly and before there was time for cooling down.

It is also significant that, in his evidence regarding what he said to Committee Dewa and Councillor Ola back at Lambutina after the killing, he made no reference to self-defence, no reference to him only having intended to hurt the deceased, and no reference to him losing his power of self-control.

In rejecting Miss Taylor’s interesting argument on the subject of provocation I have borne in mind what the warning of Windeyer, J. in Parker v. The QueenN196.html#_edn164" title="">[clxiv]² at 2-663. His Honour was reas referring to the question of how close (in point of time) to the act which causes the death it needs to be shown that the passion was aroused. His Honour said:

To my mind the existence of a predetermined plan agreed upon some two weeks previously and subsequently carried into effect and the absence of “an onset of ungovernable passion”, as well as the other circumstances of this case, operate to distinguish this case from the provocation cases. This is not, I consider, a case in which this accused should be shown “special indulgence” of the kind Professor R.S. O’Regan was referring to in an article entitled “Provocation and Homicide in Papua New Guinea” in University of Western Australian Law Review Vol. 10 No. 1 (June 1971) p.1 at p.17 where the learned author said:

“In regionalising the ‘ordinary person’ for the purposes of section 268 (now s.271) the Supreme Court has taken account of the temperament and degree of sophistication of members of the accused’s own community. If such people are mercurial or inclined to violence then these temperamental characteristics are relevant in applying the section. The point has not been judicially considered but by parity of reasoning it would seem that if people of the accused’s community, though apparently phlegmatic, tend to lose self-control after a period of slow-burning anger then the accused should be shown special indulgence in deciding whether there has been “time for his passion to cool” within the meaning of section 304. This has been the practice of courts when applying the corresponding aspect of the common law doctrine of provocation to aborigines and Samoans.”

In reaching the conclusion that this was a case of killing in retaliation for the deaths Mole Manipe believed had already been caused by the deceased and that this was not a case of provocation, I have relied on the whole of the evidence which indicates that the accused was not deprived of his power of self-control; he did not retaliate “in the heat of passion”; the evidence has led me to the conclusion that he retaliated by way of revenge.

For these reasons I find the accused Mole Manipe guilty of the wilful murder of Advent Nero.

(The trial Judge then proceeded to consider the case against each of the other four accused and then dealt inter alia with the evidence of the alleged eye-witness, Jim Sam.)

For the prosecution to prove that each of those four men aided Mole Manipe in the killing of Advent Nero, I would need to be satisfied beyond reasonable doubt that Jim Sam was telling the truth. Jim Sam is from Lambutina Village. He was the principal witness for the State. He testified inter alia that he at daybreak (at about 6.00am) saw all that happened on Goli beach with his own eyes from a concealed position about twenty feet away in the bushes. He said that he saw Sam Molo, Yakim Soponga and Wame Lukas respectively holding the deceased’s left hand, his right hand and from behind covering his mouth, and Jina Molo punching him in the chest. He said that, as Mole Manipe alighted from his canoe, he carried a hoe, he left a bushknife in the canoe, he approached the deceased, Jina Molo “gave him space”, and Mole Manipe then lifted the hoe above his head and struck the deceased one blow on the head with the hoe. He said that Mole Manipe and Wame Lukas then ran off in the direction of Lambutina and the other three ran into the mangroves.

Quite obviously either Jim Sam was lying or the four accused men, as well as the accused Mole Manipe, were lying. I have had the difficult task of trying to reach a decision as to who was lying and who was telling the truth. Of course, if I cannot decide, I should give the benefit of the doubt to the accused.

In the cases of State v. Manasseh VoetoN196.html#_edn165" title="">[clxv]³ and Sv. Jimmy BellammN196.html#_edn166" title="">[clxvi]⁴ I had reason to cor how a jw a judge performs his judicial task in a criminall. In this case also I have have had regard to the principles referred to in those two decisions; I need not repeat them here. All I e to do at this stage in thin this trial is to draw attention to the discussions in those two cases on the subject of liars and to add that, in addition to the methods described in these cases for assessing whether a witness may be lying or not, one may usefully examine (as Mr. Roddenby urged me to do in this case regarding the witness, Jim Sam):

(a) herethe story told by the wthe witness is inherently probable or not;

(b) ҈ how it w it fits in wie p oion c/p> <ـ it fi with the dthe defencefencefence case case; ane; and

(

(d) how ts en th ance w isp> is approach may be y be partiparticularly useful (as here) where the dehe demeanomeanour ofur of the witness, Jim Sam, was apparentlysfactI saweasonlst Jm was giving evidenvidence, tce, to supo suppose pose that that he was not an honest witness. He was cross-examined strongly and not shaken. For the reasons stated by Mr. Roddenby in his address, which I noted in the sixth of the six note-books which I have used for transcript purposes in this thirteen day trial, I agree that there are aspects of Jim Sam’s evidence which are inherently quite improbable; Jim Sam’s story does not fit in well with Councillor Ola’s for the State and the police evidence regarding when it was that Jim Sam first informed the police, albeit belatedly, of what he claimed to have seen. Jim Sam’s evidence cannot stand on one point. He said that after the killing Mole Manipe and Wame Lukas both ran together along the track in the direction of Lambutina while the other three ran into the mangroves. On the other hand Simangoi had stated (and I accept him) that he saw Mole Manipe paddling towards Baskalo after the killing must have taken place and then turn back; when the canoe got to the shore, Mole Manipe then ran off by himself. Mole Manipe in his evidence supports Simangoi on this point.

<63">N196.html#_ednref163" title="">[clxiii]^{(1973) P.N.G.L.R. 93}

N196.html#_ednref164" title="">[clxiv]^{[1963] HCA 14; 111 C.L.R. 610}

N196.html#_ednref165" title="">[clxv]^{April 1978, National Court Judgment, N 134}

N196.html#_ednref166" title="">[clxvi]^{April 1979, National Court Judgment, N 192}