Unreported National Court Decisions
N254
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V.
YALE GESIE
BUAMUWE GULUWE
Mendi
Narokobi AJ
12 July 1980
INTRODUCTION
NAROKOBI AJ:  The two accused come from the remote area of the headwaters of the Strickland River, in the border between the Gulf of Papua and the only highlands province of former crown possession of Papua now known as the Southern Highlands Province. Each stands charged that in the part he played, he wilfully murdered a woman, also a member of their community. The accused are tried together. In answer to their charge they said the part they played was not a homicidal one. Rather that it was to take the deceased to the State Court for trial on alleged evil sorcery acts believed to have resulted in the death of two of Yale Gesie’s children.
PRIMARY FACTS
The primary facts can easily be stated in terms the State presented in evidence. The two accused got together with two other men the police have not been able to arrest, and planned to kill a woman. In the early hours of the next day, amidst the sounds of the dawn birds, the four men entered a customary house. This customary house consisted of a single room, partitioned into two parts. One part was occupied exclusively by women and the other part was occupied exclusively by men. The four men entered the women’s section and went for the deceased. The two accused held the woman’s hands down while the other two men put a rope around the deceased’s neck and “sikirapim nek bilong em na em i dai” which I take to mean and strangled her to death. The accused then pulled her out by the rope into the burial bush.
FACTS AND METAPHYSICAL CIRCUMSTANCES LEADING TO THE KILLING
It all started when Yale Gesie was sleeping in his garden house one midday. In his sleep he had a dream. In that dream he saw the deceased come and carve out his son’s eye with a knife. Shortly afterwards, the son developed swelling of his eye and died as a result of that swelling Relatives and neighbours gathered to mourn according to good custom. It was during the mourning that the deceased came. Her purpose was also to mourn the dead child. Now something remarkable happened which was yet another key link in the chain of events which led to the killing. As the woman fate would have her dead entered the house where the dead child lay, the eyes of the child were seen to pop up and down. That was followed by emission of urine and finally excreta.
These strange events were given an interpretation by the accused. It was that the deceased was responsible for the death of the child through her evil sorcery. This interpretation was held by the village folk. To them, it was a divine revelation that the child was killed by the deceased with her evil sorcery.
Within a few days, Yale Gesie had a dream. In the second dream, he saw the deceased come in the form of a pig and take away his daughter. That daughter became ill and died. This dream was the last event which broke him. Yale then, as the primary facts show, got his brother in law, Buamuwe and in the early hours of the next day, they entered the women’s side of the house and held the woman down while the other two strangled her to death.
ELABORATION OF THE FACTS FROM EVIDENCE
The two accused made statements from the dock and were not subject to cross examination. It is clear from their own statements that they entered the house and held the woman’s hands down. Their explanation was that they wanted to take the woman to a government court. I find this to be a lie calculated to shift blame upon the two men who have not been apprehended. The secret nature of their entering the house, the breach of custom which forbids men from entering women’s dwellings, the real motive for killing, and the facts after the killing, all lead to only one plausible explanation. It is that they entered to kill and did participate actively in the killing. The accused’s presence in the house was illegal under the written law. It was also in breach of the custom.
There are inconsistencies in the State evidence, but these do not affect the general truthfulness of State evidence. In any case, the inconsistencies were inevitable as there were four different languages that had to be gone through - two local languages, Pisin and English.
The accused and all the witnesses had the greatest difficulty in handling time concepts. I was unable to decide whether the killing took place 2 months or 5-6 weeks after the death of the second child. There was evidence that it was a matter of one day from the death of the second child and two days from the first. I find that it was a matter of two days between the first death and the killing of the reputed sorceress.
The defence counsel argued that the inconsistencies were not minor. He argued that they were so significant that they do not establish homicidal intent. In particular he pointed to the evidence of witness Siowa Misato. This was a key witness of the State. She slept with the deceased in the same room when the men came in. She said she saw Yale cut the deceased’s neck with a knife. Another witness for the State gave evidence that he saw them use an axe.
Yale and Buamuwe may well have used such weapons. But that was not a part of the State case. I make no positive finding about the use of an axe and a knife. If a knife or an axe were used, then that would be using a lethal weapon and would be an aggravating factor in sentencing.
If this was a straight forward wilful murder case, the accused would be held responsible under section 7 or 8 of the Criminal Code as principal offenders. And of course they would be guilty of wilful murder.
The finding of facts I have made would in a normal wilful murder trial bring the accused within the Code. It would have made no difference if the State witnesses disagreed on time span and on weapons used. The crime would have been proven beyond a reasonable doubt, having regard to the following:
(a)      The motive for killing;
(b)      illegal entry upon the house;
(c)      the early hours of such entry;
(d)      absence of protests or prevention of the commission of the crime by the accused;
(e)      the actual act of holding the deceased down; and
(f)      the final dragging of the deceased out of the house and onto the burial bush by Yale.
The accused’s own statements made in the District Court as required by section 103 of the District Courts Act would have established beyond a reasonable doubt that the accused intended to kill and did kill the deceased.
But this is an extraordinary case. It is not very unusual in P.N.G. in my experience. The case has its sorcerous twists and turns, making it difficult for King Solomon with all his wisdom to decide. It is even more difficult for me to decide, even though I have been greatly assisted by the learned Papua New Guinean counsel. I am called upon to decide this case which arose exclusively within Melanesian legal order. And yet I am expected to judge these two men within the imposed legal system with its roots in the Austinean theory of jurisprudence.
I say with all humility that I sit to judge with great anxiety and trepidation. Again I run the risk of judging these two men from Austinian jurisprudential cognitive lenses. To do justice to all manner of men without fear, without favour, affection or ill-will, according to law, is an oath easy to make, but quite difficult to live up to in cases of this nature. If men obey the law which springs from the hearts of man and act in violation of other laws, we face the challenge of having to harmonise the fresh water of a river with the salt water of the sea.
THE STATE CASE
The State case is that the accused are guilty of wilful murder as principal offenders by sections 7 or 8 of the Criminal Code. The part they played was substantial and brought them under the Code. In the facts of this case as I have found them to be section 7 of the Code would have applied. It is unnecessary for me to consider the possible application of s. 8 (See Regina v. Kiandari & Others[cclxiii]1).
The culpability of the accused has to be determined according to law which includes the underlying law. Part of the underlying law is the customary law and the other part is the English rules of common law and equity and the Royal Prerogative.
CUSTOM
Custom is part of the nation’s law. Law itself is an aspect of the Melanesian total cosmic view of life. In that Melanesian universe of existence, metaphysics which include dreams and secret knowledge, are vital constituents of the society’s fabric. They are vital aspects of human totality here as elsewhere. (See Seidman R.B. Witch, Murder and Mens Rea: A Problem of Soceity Under Radical Social Change (1965) 28 M.L.R. p. 46)).
DREAMS AND KNOWLEDGE
Dreams in Melanesia are instruments through which the living spirits of ancestors reveal secret knowledge. Through dreams secrets of magic and ritual are revealed. Some of the best dances in Melanesia are revealed to the dreamers through dreams. Truths come from trial and error, from scientific investigation or from divine inspiration. In the context of Melanesia, the first and the last mentioned are most important. Thus it is not difficult for me to see that upon dreaming, the accused Yale took the contents of his dreams to be the truth.
Sacred Scripture frequently testify that God does speak to his people through dreams. In the Middle Ages, it was a common feature for Christians to search for norms in the discernment of dreams.
In crime detection, Melanesians rely quite extensively on devination techniques. Let me give three examples I know as illustrations. These examples come from the Sepik area, in particular among the Sausa and Bukip speakers. If a dying person baths a lot shortly before his death, it is said the cause of his death relates to a trouble in which his son or daughter was involved. By a reference to the past events, it may be deduced that a party involved in a trouble is involved through evil sorcery, in the imminent death of the sick person. Certain plants or trees are the totems or symbols of particular persons or villages. If such a plant is seen growing on the grave yard of a deceased, the conclusion is that his death is the sorcerous work of the owner of that plant or tree. If, during the mourning of a dead person, a bird is seen flying over the dead body, and that bird is a totem of a particular person or a group, that death will be attributed to the members of that group.
These things are quite different from cartomancy, astrology, reading of leaves, chiromancy, or the divining rod and the magic pendulum.
Belief in dreams and fear of sorcery are aspects of the life of the nation state at this time. My own experience shows that belief in the evil powers of sorcery are held by well educated Papua New Guineans. The realms of psychology and sorcery amongst Papua New Guineans transcend scientific and technological knowledge. Whilst these are difficult to quantify, their reality and continued existence leads men and women to do or refrain from doing certain things the written law might permit or prohibit.
I need say no more than refer to the work of Carl Jung in the modern sciences. The hypacivilized man may be so estranged that he may have no need for dreams. See however Letters from the Desert by Carlo Carreto at p. 7 where the Saint is haunted by his dream for a long time.
Even though the English common law and the written Queensland Criminal Code law have planted their roots in the Papua New Guinean soil, they have not uprooted the hearts of the Melanesian societies. In the field of law the co-existence of the two, is something law enforcement agencies including the courts are coming to terms with increasingly. The world of cosmology exists at a level where we mortals have, but a limited view. The psychic realm of Melanesians in close touch with nature may easily escape our minds, especially if we are used to clear cut scientific or jurisprudencial divisions between spirit and matter, or of facts and law.
The foundations of law and justice are rooted in the Divine or the metaphysics, among Papua New Guineans. Lord Goddard has referred to the ethical content of criminal law in Harding v. Price[cclxiv]2. In the Old Testament, we learn that the ten laws were given to Moses by God Himself. Among the Arapesh of East Sepik, the law is sanctioned by “sakihos” which is tradition, rooted in a mystical past. It is not a mere matter of spontaneity or taboos as Sidney Hartland would have us believe. (E. Sidney Hartland in Primitive Law p. 138; see B. Malinowski’s “criticism of Sidney in Crime and Custom in Savage Society” at p. 10).
It is common knowledge among Melanesians that the secrets of knowledge concerning power, hunting, gardening, singsings etcetera are initially revealed to mortals through dreams. Among Melanesians, knowledge is secret, and it is revealed only to friends and relatives. Dreams are an important source of access to secret knowledge.
THE LAW OF HOMICIDES[cclxv]3
The law of homicides has ancient beginnings. In Genesis, we read of Cain wilfully murdering his brother, Abel because Abel was the better of the two. Cain was condemned by God Himself. On the other hand, God commanded Abraham to sacrifice his only son, Isaac even though that would have been wilful murder by our Criminal Code.
In the past some Melanesian societies permitted mercy killing when old people were killed to relieve them of the agony of old age. In others, lepers were buried alive.
When a man killed another, whether through manipulation of super-natural powers in the form of evil sorcery, or through an arrow wound, the law was that a life shall be laid down for a life. And anyone with an interest could take a life for a life lost.
That was and still is the tradition of the Sacred Scripture, only the Son of Man placed a different emphasis on the whole cycle. His eight beatitudes promote mercy, peace-making and purity of heart in preference to a hard and cold blooded retribution.
That tradition is well emphasised by the Constitution which accepts “worthy values” and “Christian principles” as the guiding stars of our nation’s life.
The Romans had a law on this subject at the time they occupied English soil, but their law has had no impact on the English law on the subject.
English law in the past, treated homicides as stealing. This thinking is close to current Melanesian world view. When a young person dies in Melanesia, it is often said that the “thief has stolen our beloved son or daughter”. And in a land where deaths may be attributed to evil sorcery, it is not difficult to see people go after the “thief” who might be an actual or a reputed sorcerer and end his or her life.
By the laws of Æ thebirht, “bot” was to be paid for slaying of “in the Kings’ tun”, in an eol’s “tun”, at an open grave and the amounts to be paid varied for particular persons. Different amounts were to be paid for different kinds of homicides. Position in life of the deceased and the circumstances were important.
Alfred’s laws, which represent the law of Exodus xxi 12, 13, 14, were quite inadequate. However as Stephen points out, they roughly indicate a line to be drawn between intentional and unintentional homicide, and suggest premeditation or waylaying as a circumtance of aggravation.
What is important to remember is that in that scheme of law, which is closely paralleled in our Melanesian societies, even an unintentional killing raised a legitimate base - for a lawful killing of the slayer or one of his nearest relatives.
From the laws of Ine down to the times of William the Conqueror and Henry I, following a wrong we now call murder whether openly or secretly done, with or without intent, the kindred had an oppurtunity of revenging themselves. And this was approved by law.
As we know through our English legal history, this remarkable similarity to our clanic law, “murdrum” being a wrong against the survivors of the deceased, gradually transformed into the view that homicides like other crimes, were offences against the State.
It was Bracton who made attempts at definitions of crimes and the procedure for punishment. He made specific reference to homicides. He laid down various doctrines relating to homicides.
It is quaint to recall that in those early days, a distinction was made between Englishry and Frenchman. Thus, if the presumption that the person slain was a Frenchman was not removed, then the clan or the kindred was freed from the fine which was to be paid.
In Bracton’s time, murder meant secret killing, involving a fine on the community. If the presumption that the person killed was a Frenchman was not removed, the community would be freed of the fine.
Bracton laid down some leading distinctions between voluntary homicide and murder and largely took no notice of various shades and degrees of evil intent that goes with homicide. Murder, according to Bracton meant secret killing where the punishment is a fine on the township.
Homicide or manslaughter covered every sort of slaying and those that occurred by accident fell outside criminal law.
By the end of the 13th century and at the beginning of the 14th century, following various statutory changes, self defence and misadventure were not complete defences the King was bound to grant pardon upon the prisoners. The theory was that pure necessity was not inevitable and pure accident was not entirely blameless.
By the time Englishry was abolished the word “murder” was in common use, and was reserved for the worst kind of offence. Homicide was used to define blamable killing where pardon, forfeiture of goods and imprisonment before trial were involved and justifiable homicide entitled the accused to acquittal.
Many cases of homicide were left without any particular name. They were called capital felonies, but not murders.
“Malice aforethought” came to be the next idea in defining homicides. It came to be used to distinguish murder from other forms of homicide.
Pardons were of course abused and Commons petitioned against their abuse, and by statute the benefit of the clergy was excluded from murder.
In the 16th century, we find statutes using words such as “murder upon malice prepensed” or “wilful prepensed murders’, or “prepensely murder”. By this time, homicide was murder which was unlawful killing with malice aforethought and homicide in general which is unlawful killing without malice aforethought.
The form and substance of criminal law were altered by treaties, the first of which was Stanford’s Pleas of the Crown in the 17th Century.
The constant enmity between the Scotchman and the Englishman lead, in 1604, to the passing of the Statute of Stabbing to put an end to the stabbing and killing men on the sudden ... This Act had a limited contribution to development of law on homicides because the judges and text writers had sufficiently developed the law on “malice prepense”
When Lombard came to classify homicide, he too resorted to fiction. His classification included voluntary and involuntary homicide. Lombard borrowed from Bracton and took the words voluntary and involuntary to mean intentional and unintentional.
Lombard showed the unsatisfactory character of malice aforethought which he assumed meant pre-meditation.
Coke’s Third Institute classified homicide in an unsystematic and ill arranged form.
Although Coke made no new changes to law, his name gave weight to his work and made a great impact on the question of “malice propensed”. Up to Coke’s time, some modern distinctions in homicide were not known. For example, the modern concept that degree of bodily harm may distinguish murder from manslaughter was not yet known. Effect of provocation to reduce murder to manslaughter was not yet developed, although homicide by medley came close to it. But, it is obvious from Stephen that manslaughter by chance medley turn upon the details of fights with deadly weapons.
The law developed along these lines. If A and B fought and A attacks B with a weapon, B has to run away as far as he can. If A follows him and tries to kill him, B may attack and kill A, in self defense. B would not lose his life and land, only he would lose his goods and buy his pardon and to be imprisoned until he is tried. If B stands and they fight and either is killed, the offence is manslaughter. In this case the offence is a clergyable felony, punishable with forfeiture of goods, burning in the hand and imprisonment for a year.
Stephen makes an interesting observation that the contrast between the earlier and the later form of the law on this subject thus marks the gradual progress of a change in the national manner. (p. 60)
Hales Pleas of the Crown came next. According to Stephen, Hale makes brief reference only to homicide and says there are 3 kinds, purely voluntary, (murder and manslaughter) purely involuntary and mixed, partly voluntary and partly involuntary. Hale’s own analysis seems so obscure and internally contradictory, that it is of little value today. However, it is important in pointing out that the law on homicide as other heads of criminal law, are not as scientifically watertight as might be expected. It has been a gradual development in line with the changes in the nation’s manners and modes of living.
None of Hales’ elaborations of provocation cases bear any similarity to the subject matter of sorcery as a provocation. With the only exception of John Manning’s case in which Manning killed the adulterer in the act, all the cases relate to quarrelling and fighting causing provocation.
Hale’s treatment of taking away the life of a man in the course of law or in execution of “justice”, is very interesting indeed. What is the criminal responsibility of a man who executes justice in an irregular way or without lawful authority? Hale would call such slaying “a great misprison”, not murder.
Foster was the last important English writer to treat homicide. He deals with homicide thus:
“It is either occasioned by accident which human prudence could not foresee or prevent, or it is founded in justice or in necessity, or it is owing to a sudden transport of passion, which through the benignity of the law is imputed to human infirmity, or it is founded in malice.”
Foster explains “malice aforethought” as meaning that “the fact hath been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, malignant spirit”. According to him, “Most, if not all the cases, which in our books are ranged under the head of implied malice, will, if examined, be found to turn upon this single point, that the fact has been attended with such circumstances as carry in them the plain indications of a heart regardless of social duty and fatally bent upon mischief”.
Foster sought to make homicide law amiable and equitable. He had a keen sense of legal history and knew too well the gradual development of the law on homicide.
Blackstone’s commentaries add nothing new to what Foster contributed in the law of homicide. Writers like East, Russell, Archbold, Pascoe, Stephen and others in recent times have dealt with this subject. An Act of English Parliament altered punishment for manslaughter. In 1822, punishment for manslaughter was made to be transportation for life or for any less term an imprisonment for up to 3 years, or by fine. Subsequent amendment brought the maximum penalty to 2 years.
By a strange co-incidence, the English law that was transported to Queensland, but codified under a Statute, became the Criminal Law of Papua New Guinea.
The purpose of this historical survey which relies heavily on Stephen (A History of the Criminal Law of England, Vol. II) is to indicate that while the English law was allowed to travel its natural path, in keeping with the English nation state’s evolution, we were propelled straight into new developments neither our culture nor our temperament at this time in history would justify.
It is all too easy to say that killing is as wrong in Moscow as it is in Port Moresby; or in Chile as in the United Kingdom. What seems crucial to me is the social, economic and cultural context in which homicides take place. Whilst human life is still the most valuable gift in human history, man has been prepared to take life or lay down life for invisible values. Our nation’s commitment of combat troops to Vanuatu sings loud and clear of what I mean.
Even when we have adopted a comprehensive foreign code as our own, we are not yet finished of the need to develop the law on homicide. Already the enactment of s.20 of the Sorcery Act is a development of the Code.
The law of homicides under our statute on crime is divided into three categories - the wilful murder, murder and manslaughter. Since the abolition of capital punishment for wilful murder, the significance of this categorization in sentencing is not great. Under the Code, all three categories carry a maximum penalty of life imprisonment. It is my hope that murder might be taken to include wilful murder and manslaughter would be left for unintentional killings. Other categories of killing could be added, such as “diminished responsibility” killing or a “customarily induced killed”, or a “spleen killing”.
THE DEFENCE CASE:
MISTAKE
Defence Counsel argued that section 24 of the Code applies in this case. He also argued that s.20 of the Sorcery Act operates to provide a defence of provocation. Principles of law relating to s.20 are contained in The Queen v. Ferapo Meata[cclxvi]4 and in Regina v. K.J. and Another[cclxvii]5. There is no need for me to reiterate these principles.
I would however, like to express my views on the relevance of s.24 defence in relation to the defence of provocation as raised by the defence counsel.
In his Outlines of Criminal Law, Kenny says that mistake is a defence only where it is reasonable. And an unreasonable mistake is never a defence. The learned author says:
“No belief which has now come to be currently regarded as an obsolete superstition can be treated as a mistake sufficiently reasonable to excuse a crime ...”[cclxviii]6
The learned author makes reference to two cases in Ireland where honest beliefs were rejected as defences. In the first case, a woman placed her child on a hot shovel in 1880 in the honest belief that her child was a deformed fairy sent child. She believed that by placing the child over a fire, her human child would be substituted for the fairy child.
In 1895 again, some men caused a wife to die by holding her over a fire in the honest belief that that would drive out evil demons in her. In 1894 in the case of Reg. v. Machekequonabe[cclxix]7 an Indian was convicted in Canada. He had killed a man under the belief that the deceased was an evil spirit that would attack human beings.
In each of these cases the accused was convicted, but we are not told whether the prosecution is for murder or manslaughter. Glanville Williams argues that the proposition that unreasonable belief is no defence in criminal law, does not represent the law. He says it is a defence, even for murder or wilful murder.
With respect, I disagree with Kenny, but agree with Glanville Williams, that even an unreasonable mistake in a wilful murder case, can be a defence.
Kenny, op cit 117, refers to the famous Hamersmith Ghost (a person mistaken for it) where Hamersmith was shot on its nightly round and the killer was held guilty of murder.
Where a particular crime requires intent, as in a wilful murder case, a mistake that negatives intent must absolve the accused. If this is true, then there is no need to embark on the question of whether or not the belief is reasonable or not; or whether it is honestly held or not. If a belief is genuinely or honestly held, it is a belief in the personal conscience of the believer. And if a mistake is not genuine, it is not a mistake at all. It could be an afterthought. The concepts of reasonableness and honesty are concepts of credibility of witnesses to be determined on the basis of available evidence.
In the realm of personal liberty, individual conscience as it is formed and shaped by his environment, is the final arbiter, subject only to a collective will where that exists.
In a wilful murder, intent is an element. Thus, if the accused had killed the deceased, believing her to be a witch, we have a mistake all right. But it is a mistake as to identity, not as to an intention to terminate a human life, unless a witch is regarded as a ghost or a non human.
It is difficult to see the relevance of mistake in this case. It would not be difficult if the facts were that the accused saw bushes move and shoots and kills a man, thinking it was a cassowary. In this kind of mistake, the highest degree of culpability, in my view would be one of negligence, a shooting with reckless disregard for human life. But that would be a question of fact. One could I imagine in a case of negligent shooting embark upon considerations of reasonably or honestly held belief that are mistaken. To my mind, whether a mistake is reasonable or unreasonable does not add or subtract one iota from the question of intent which may be negatived by a mistake on proof of facts.
I next come to a consideration of acts or omissions that could be said to have been mistaken. Is it the act of holding the deceased down that was mistaken? I don’t think so. In this case, there is no suggestion whatever that when the deceased was held down, she was believed mistakenly, to be an animal. She was held down, precisely because she was believed to be a human being, with supernatural and evil powers over life and death.
Now, the real question is whether at the time the deceased was held down she was believed to be a witch or a member of a class of beings that cannot be given corporeal embodiment of human beings or animals like pigs or cassowaries.
If witches do exist, then the question is whether they exist as human beings or as ghosts or spirits. I do not think that the criminal law is designed to protect ghosts or spirits. Law against wilful murder is designed to protect human beings and who is a human being is a question for the court to decide. By the laws of nature a ghost cannot be a human being at the same time and these are different forms of existence.
If I were to say that the accused believed the deceased to be a witch, I would place the deceased in a category of beings that do not exist in the way human beings and animals exist. If the intention to kill is to kill a witch, an entity that Melanesians believe exists, but as a non material being, in my view that intention cannot be an intention to kill a human or a material being. Thus it is that if the accused intends to kill a witch, his intention is not an intention to kill a human being. Logically, mistake does not arise.
It is entirely different where the accused believed the deceased to be a pig or a cassowary. There he is mistaking the characteristics of an entity that has a body and has time and space dimensions to it. It is to the existent human entities that wilful murder law is direct, not to spirit entities.
I have another difficulty with the defence of mistake under s.24. If the accused says, I made a mistake, honestly and reasonably of course, then is he not thereby challenging his own belief? If he holds the belief that the deceased was a sorceress and that belief is widely held by his community, it seems to me that it is an error for me to hear him say “but I was mistaken”. As a matter of law I may well reach that conclusion. But, for me to get there I would need additional evidence to show me that the accused were in fact mistaken in their belief. There is no evidence before me in this case to reach the conclusion that the accused were mistaken in their beliefs.
Could it be said that the relevance of s.20 Sorcery Act, in relation to s.24 Criminal Code Act in so far as mistake is concerned is that the accused mistook the deceased’s possible involvement in sorcery which was believed to be the cause of the children’s death? The law is that when a mistake of fact is raised, it is for the prosecution to satisfy the court of its non-existence. (Anide v. Denehy[cclxx]8). For the reasoning I have set out above I find this argument inapplicable. If the accused argue they made a mistake about the performance of evil sorcery, they would not only be challenging their belief, but they need to adduce some primary facts to support their mistake before the State could demonstrate conclusively that the accused did not have such a belief, The Queen v. Yoka Kiok[cclxxi]9.
SORCERY AS PROVOCATION
By operation of s. 20 of Sorcery Act, an act of sorcery may amount to a wrongful act or insult within the meaning of s. 271 of the Criminal Code. Simply, s. 20 of the Sorcery Act says that performance of bad sorcery may be provocation in an appropriate case. Provocation is broadly defined in that section, but the actual application of that defence has been worked out through case law.
The material section on killing on provocation is s. 308. This section relates killing to the definition of provocation in section 271.
If the defence under s. 308 is raised within the terms of s. 271, and the State does not negative that defence, the accused would be guilty of manslaughter only. Whereas s. 272 would eliminate culpability, s.308 would merely reduce culpability, because of the fault of the provoker.
I am now left to consider whether by the combined effect of s. 20 Sorcery Act and s. 271 Criminal Code, the killing that would otherwise be regarded as unlawful, would reduce culpability from wilful murder to that of manslaughter.
Section 20 of the Sorcery Act envisages a situation where sorcery may provoke an ordinary Papua New Guinean to kill the provoker. On the facts as I have found them I find that in a general sense, the accused could be said to have been provoked. But the legal question is whether that is provocation that negatives intention to kill. Terms such as “heat of passion”, “deprivation of the power of self control”, and “sudden provocation” are vivid words, importing an idea of drama. Intensity of anger may linger for days, once it is ignited. It may wax and wane depending on the rise and fall of the moods of those provoked.
In a sorcery case, the suspicion of a sorcerer responsible for the imminent death, may develop on the death bed or shortly afterwards. It may precede death.
As days roll by and little by little, hidden facts become known, suspicion graduates into rage, or anger, quenches into tranquility.
It may be days, it may be weeks or even years, before passion is finally cooled and the loss of powers of self control are restored. Individual’s psychology and temperament is the final arbiter in this matter.
Within the facts of this case, I find that the planned killing negatives the argument that the accused had no general intention to kill. I find that when the accused did what they did, they were in full and controlled possession of their powers. But this is a matter of general control of faculties, sight, hearing, smell etcetera.
Section 271 speaks of deprivation of the power of self control and inducement. The induced assault upon the person who has done the provoking, must in the ordinary meaning of s. 271, be done whilst the power of self control is lost. And in the ordinary meaning of s. 308, the assault must be made in the “heat of passion” before there is time for passion to cool, to afford a defence.
These dramatic words must not cloud my mind as to whether the planned killing constitutes an intention consistent with wilful murder. The author of the Code himself would have hoped that it was “never necessary to have recourse to the old doctrine of mens rea ...” in Widgee Shire Council v. Bonney[cclxxii]10.
In my view, the double deaths of the accused Yale Gesie’s two children within a day, the deep fear in his mind created by the dreams and the strange behaviour of the dead body of one of his children, and the cruel torture the accused would have undergone in remorse would have been enough to sap and diminish his otherwise normal powers of responsibility. I find that the killing was in fact induced by a complex combination of sorrow, fear and anger or rage such as would have put him in a state of diminished or even clouded responsibility. Whether that is provocation is a matter of use of words, in my humble opinion. The fact is that the accused were tormented by their perceptions and beliefs I find to be widely held in their community.
It is a well known fact in this country that when a loved child dies, his parents may cut down plants, burn houses, put on mud or paint to mark the deep loss of their child. They may even chop off their toes or fingers.
In the context of s. 271, I must address my mind to the question whether the attack on the deceased in the context of s. 20 was induced by evil sorcery which deprived the accused of their power of self control and induced them to act before their passions could cool.
Whether 2 days would have cooled the accused’s passion is a matter of law to be decided on facts and circumstances of each accused.
In my view, it is logical to hold consistently that a man intended to kill. (That is a tentative intention). But that intention was induced by some other factors. In this case, I hold that although the accused intended to kill the deceased, that intention was induced by the intensity of fear and sorrow brought about by the double deaths of the two children, who the accused believed the deceased killed through her evil sorcery.
DIMINISHED RESPONSIBILITY KILLING
In this case, even if the so called “heat of passion” has “cooled off”, the anguish, the trauma, the sorrow, the fear and the sense of loss of the two children would have been enough to induce any one of the members of the accused’s community to be deprived of their faculties of responsibility.
The Act does not provide for an alternative verdict of diminished responsibility killing in cases of this type. Had there been a provision for diminished responsibility killing or a killing induced by a customary compulsion, I would return such a verdict.
In the absence of such an explicit provision, I must proceed under the Constitution, the present provisions of the Criminal Code Act and the Native Customs Recognition Act.
THE CONSTITUTION
The National Court, is a court of record and has inherent power to make such other orders as are necessary to do justice in the circumstances of a particular case (s. 155 (4) Constitution).
Section 20 of the Constitution states that until such time as an Act of Parliament provides otherwise, the underlying law of P.N.G. shall be as prescribed by Schedule 2. The purpose of Schedule 2 is to assist in the development of indigenous jurisprudence adapted to the changing circumstances of our country. I consider it my duty to interpret the Code in this spirit. (Schedule 2.4).
Schedule 2.1 adopts custom and it shall be applied and enforced as part of the underlying law. By Schedule 2.2, the English Common law is also adopted and enforced as part of the underlying law. Custom is regulated or restricted under the Constitution in much the same way as it is restricted under the provisions of Native Customs Recognition Act.
Putting aside the restraints on custom, it is part of the unwritten law of this country and has identical Constitutional status as the common law. The restrictions on custom are specifically elaborated in Schedule 2.1.
NATIVE CUSTOMS RECOGNITION ACT
Custom by this Act, shall be applied unless it is inconsistent with a written law or a Constitutional law, or under s. 6 (1) (c), the recognition or an enforcement of custom would result, in the opinion of the court, in injustice or would not be in the public interest.
In criminal cases subject to other provisions of Native Customs Recognition Act, but particularly s.6 custom may be taken into account in:
(a)      ascertaining the existence or otherwise of a state of mind of a person;
(b)      ...
(c)      deciding the reasonableness or otherwise of an excuse;
(d)      deciding in accordance with any other law in force in PNG, whether to proceed to the conviction of a guilty party; or
(e)      determining the penalty, (if any) to be imposed on a guilty party (s. 7).
In this case, I find that the accused did participate in a material way in the killing as envisaged by s. 7 of the Code. I also find that they did have the general intention to kill, but that that intention was greatly induced by a pre-existence of a state of mind brought about by fear of sorcery, sorrow and a general loss of responsibility.
By operation of s. 7 (a) of Native Customs Recognition Act I am entitled to ascertain the existence or otherwise of the state of mind of the accused. I find that the best way I can describe their state of mind is that they believed they were justified in what they did, by their traditional customs, perceptions and beliefs. These customs, perceptions and beliefs were widely held by the community to which they belonged. They acted under clear influences of those customs, perceptions and beliefs.
Though, on an objective standard of introduced law, I find that the accused planned the killing, on an inquiry into the existence of their state of minds, I find that in the community to which the accused belong, the objective intention is not coincident with the intent to kill, judged from the standard of the accused’s community.
Native Customs Recognition Act also provides by s. 7 (b) and (c) that custom may be taken into account in determining the reasonableness or otherwise of an act or an excuse. From the customary point of view, it is not unreasonable to believe in the power of witchcraft. Nor is it unreasonable to believe in what dreams tell. It is by custom, equally reasonable to kill reputed sorcerers. But, this is not to be encouraged as it is clearly repugnant to the general principles of humanity. Whilst on the one hand, the courts must resort to custom to ascertain the state of mind of the accused, we must not permit another Inquisition.
Section 7 (d) of the Native Custom Recognition Act permits the court to take custom into account in deciding in accordance with any other law in force in P.N.G. or a part of P.N.G., whether to proceed to the conviction of a guilty party. This sub section envisages the possibility of not even convicting an accused person once he is found guilty of breaching a law of the country.
Proceeding under the Criminal Code, I find for the reasons I have elaborated, the accused not guilty of wilful murder, but guilty of manslaughter which I would describe as a diminished responsibility killing brought about by a state of mind induced by customary perceptions and belief. These perceptions and beliefs were widely held by the community to which the prisoners were members at the time of the killing.
Glanville L. Williams[cclxxiii]11 would support such a view, but he would probably prefer to add an alternative verdict of diminished responsibility killing to manslaughter in a case of this nature.
LAW REFORM
Proposals for reform of the law to cater for the needs of this country have been well set out by the Law Reform Commission’s proposals. Under the Commission’s proposals, a person who “commits the crime of diminished responsibility killing is liable to imprisonment with hard labour for three years”. The only amendment I would now recommend to that proposal is that the maximum penalty be increased to 5 years. This would be in accord with what the courts have been prepared to impose in cases of this nature.
Having adopted the English common law, we must do our best to interpret our statutes in the context of our societies. In England, there is an alternative verdict of manslaughter, brought about by diminished responsibility. Some sort of mind abnormality is required for the English Act to apply[cclxxiv]12. But in P.N.G., normal people may be induced by fear of sorcery.
If the court in this jurisdiction was to treat the common law with inflexibility, we would not only be acting against legal history’s experience, but that we would run the risk of undermining the spirit of our home grown Constitution. Because the English jurisdiction is not a Code jurisdiction, there is all the more reason for us to interpret the words in the Code in the context of the peculiar human beings we find before our courts, with all their mores and beliefs. We must look to custom to interpret the Code. I have no doubt Lord Denning would support this view. (See Denning L.J. in Nyali Ltd. v. A.G.[cclxxv]13
It is my hope that necessary amendments are made to the Code. The fragile plant of Criminal Law cannot be treated as an English Oak that must be pruned, but a coconut that must take root in Melanesian soil, if it is to blossom and flower, otherwise it will become a withered ethical flower. See R.B. Seidman - Mens Rea and The Reasonable African: The Pre-Scientific World View and Mistake of Fact (Vol. 15 Int. & CLQ at p. 1145, 1159).
SENTENCE
On this type of a case, the penalty ranges between imprisonment to the rising of the court to 5 years. My views on sentencing have been well articulated in my recent judgment in State v. Luku Wapulae and 4 Others[cclxxvi]14. I need not repeat them here, but I am clearly guided by those views.
Each case must of course be judged on its own facts. I would merely add that imprisonment should be backed by customary forms of punishment that exist and is not contrary to fundamental rights of citizens enshrined in the Constitution.
In this case, the killing was a planned killing. The accused chose to go on trial while in The State v. Luku Wapulae and 4 Others (supra)[cclxxvii]15 they pleaded guilty. I form a particular impression of Yale as a cunning man. He was the principal offender, as was to be expected. Throughout the trial he persisted in trying to influence his co-accused, and the witnesses. I had to ask the two accused to sit sufficiently apart to prevent Yale influencing Buamuwe with his hands.
The two accused have been held in custody well over one year. This is contrary to the requirements of the Constitution. Yale has paid K32.00 compensation to the husband of the deceased. One hundred kina was laid down as the compensation he should pay. It is not known who laid down that sum.
I considered the possibility of sentencing them to the rising of the court or to the same term of imprisonment of 3 months. However, there is not the element of a small community that would suffer, and there are only two of them in this case.
In considering all the circumstances of this case, I sentence Yale Gesie to imprisonment with hard labour for 9 months. In addition, he is to pay to the husband of the deceased, a sum of K68.00 upon his release. I sentence Buamuwe to imprisonment with hard labour for 3 months.
Solicitor for the Accused: A/Public Solicitor, D.J. McDermott,
Counsel: P.C. Kopunye
Solicitor for the State: A/Public Prosecutor L. Gavara-Nanu
Counsel: V. Noka

[cclxiii](1967-68) P. & N.G.L.R. 31
[cclxiv](1948) 1 K.B. 695 at p. 700
[cclxv]This historical survey was not part of my original judgment
[cclxvi]Unreported National Court Judgment 419 of March 1967
[cclxvii](1973) P.N.G.L.R. 93 at pp 102, 103
[cclxviii]65 L.Q.R. at p. 491, a quote by G. Williams
[cclxix](1894) 28 Ontario 309
[cclxx](1973) P.N.G.L.R. 215 at pp 220-221
[cclxxi](Unreported) National Court Judgment 607 of December 1970 at p.5
[cclxxii](1907) 4 C.L.R. 977 at p. 981
[cclxxiii]65 L.Q.R. at p. 491
[cclxxiv]Homicide Act 1957 s.2
[cclxxv](1956) 1 Q.B. 1 at pp 16, 17
[cclxxvi](Unreported) National Court Judgment N233 of June 1980
[cclxxvii](Unreported) National Court Judgment N233 of June 1980