Unreported National Court Decisions
N233
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
STATE
V.
LUKU WAPULAE
UNAMA AUMANE
PIOPE KUNE
ALUMA BOKU
YAULIPA BULAIM
Wabag
Narokobi AJ
4 June 1980
FACTS
NAROKOBI AJ:  The accused stand charged that on 23rd of November, 1979 at Porgera, they wilfully murdered a woman, Utomo Polio thereby contravening s.304 of the Schedule to the Criminal Code Act (No. 78 of 1974).
By consent, all five were arraigned individually, but tried together. The facts of the case are quite simple. The accused believed a woman they identified as being the deceased, Utomo Polio was a sorceress who was responsible, through her evil sorcery for many deaths in their villages or localities to be more exact.
On the day in question, they took the woman on foot, to the Government Station at Porgera, apparently to report her to the Kiap to be dealt with by State law. On the way, near a river, the deceased tried to run away. She was immediately caught by Yaulipa Bulaim. Whilst she was being held by Yaulipa Bulaim, Luku Wapulae shot her the first time with an arrow from his bow. He struck her in the left side of her ribs. The next man to shoot her was Piope Kune who struck her with an arrow in the chest. She fell onto the ground and whilst on the ground, she was again shot by Unama Aumane, again in the left region of the chest.
Yaulipa Bulaim, the elder of the two sons of the deceased had gone with the other four men to take his mother to the Kiap. He was present when the accused killed his mother. In his record of interview, he admitted to telling the other men to kill his mother because he was ashamed of what the people said about his mother.
However, on a careful reading of his own record of interview and those of the other four accused, I formed an impression that an alternative view negativing homicidal intent was possible. I therefore declined to accept his plea even though defence counsel made no section 575 application and stood his case over to a later date. I have prepared a separate judgment on that aspect of the case.
The accused did not stay to see if the woman was dead. They ran away and told their tultul of the murder.
The accused pleaded guilty and their counsel made no 575 application. I accepted their pleas and heard forceful arguments from defence counsel on sentence.
ARGUMENTS ON SENTENCE
Following the administration of the allocutus, the defence counsel made submissions on appropriate sentencing approach to sorceress - sorcerer killing. The facts he relied upon were not contested by the State Prosecutor. Defence counsel’s submissions covered four areas.
THE BACKGROUND
The four prisoners come from a very remote part of the country, with minimal contact with outside world, let alone the white man. That area is under administration influence, only very recently. They still have tultuls and luluais, even though native regulations covering tultuls and luluais have been repealed. (L.R.C. Report No. 2 of October 1975). It was only as recently as December 1979, that a mission station was set up there, in fact after this killing.
For these men to come to Wabag, was a great shock to them. It was their first time to encounter modern life style. They adhere stricly to traditional life style and tradition. There are no roads, no other government services. The background of each of the accused can be stated simply.
Unama Aumane is about 17 years of age. He is not married, has one brother. His father died some years ago. He is the principal supporter of his mother. His brother is at Lake Kopiago. He has no education and has no church influence. Like others, his life consists of hunting, gardening and traditional village living.
Luku Wapulae is older and is the man who fired the first arrow. He is married; has had a number of children, only one is alive. He attributes death of his children to the work of evil sorcery of the deceased. He also had brothers and sisters all of whom are dead for what he believes is the work of the same sorceress. His father and mother are also dead. He too has no formal education and his life consists of hunting, gardening and traditional life style.
Piope Kune is about the same age as Luku. He was married only shortly before the trouble. His father is dead. His mother is alive.
Aluma Boku is perhaps the oldest. He is married and has one small child. Both of his parents are dead. He has no brothers or sisters and leads the normal traditional life style.
The prisoners come from different villages or localities close to each other and separated by a river. None of them speak or understand Melanesian pisin language.
The population of this area is quite sparse. People have been dying. The accused say as many as twenty (20) deaths are the result of the work of the deceased’s evil sorcery.
CUSTOM[cxciv]1
It is not uncommon not only in the situation of Enga, but throughout P.N.G. to kill sorcerers or sorceresses. Amongst the social mores of these people, it is an act of honour to kill sorcerers who are responsible for so many deaths. It is not a bad thing. Indeed, it shows from records of interview that these prisoners were quite happy now that the woman responsible for their deaths is dead.
Unfortunately, no evidence was brought about the nature of sorcery the deceased was reputed to have worked. However, it seems to me that is immaterial. What is crucial is that in the minds of the accused, the woman was a sorceress. She presented continuous threats to the survival of their societies and in their beliefs, she had to go.
As counsel and in my other capacities, I have heard of fear of sorcery throughout P.N.G. Even among those who have had contact with churches for as long as 100 years fear sorcery as a reality, (see for example 2 papers - Sorcery Among Sepiks by B.M. Narokobi and Sorcery Among the Tolais by W. Kaputin)[cxcv]2.
It is all too easy for those brought up in one sort of social and cultural background to deny the existence of the workings of the minds of those conditioned by quite a different background. The psychological domains of the human mind, in my view are still a deep mystery, in spite of the great work of Freud and others.
What one mind believes and sees as real can be nothing more than a mere illusion to others. The reality of the flying saucer for example, cannot be questioned by those who see it, but to those who merely hear about it, it is a fantasy.
I sit here as a Melanesian judge among Melanesians. I run a grave risk that I might put on Anglo-Australian cognitive lenses to see Melanesian situations and events. Fortunately, the Australian judges in the past have been mindful of this danger and have sought to give careful consideration in sentencing to the cultural setting of the offenders.
In imposing the sentence I have decided to impose, I have three foremost interests to balance. The first is the interests of the nation state with its Parliament, its courts, its codes, its constables and its executive arm of government. Collective living, within a nation state, demands that individuals and villages, tribes and communities have to give a little of their territorial and personal sovereignity. But the nation and its institutions will have no basis without the tribes, villages, and people with their idiosyncracies and virtues. Thus, the nation and its arms of the law, which include the courts must also take cognizance of the interests of the community to which the offenders belong. That then, is the second consideration. The impact of the penalty on the community to which the offender belongs must be a foremost consideration. I do not sit to judge a sophisticated accused in an urban centre where each person is an individualist, with minimal interdependence on his once clansmen or once fellow villagers.
The third consideration is the question of the four prisoners themselves. This consideration relates back to their community, but it also goes beyond it. No society can remain static. Sometimes, as it seems in the present case, tragedy brings new possibilities. The prisoners must eventually return to their communities. The contacts they make with other peoples in prison will no doubt offer them new horizons. Judges in this jurisdiction have often referred to this element as an educative element.
That may be so, but in my respectful view, criminal laws are not made so that if people break them, they will have to be educated. The purpose of criminal law is not to educate people, but to state very clearly that certain kinds of actions are forbidden by the law itself and are therefore made crimes or offences. And the reason is really quite simple: to announce to the society that these actions are not to be done and thus to ensure that fewer of them are done, (see H.C.A. Hart: Punishment and Responsibility (Oxford: Clarandon Press 1968) pp 4-13 - reprinted in “The Criminal in the Arms of the Law”- Edited by Leon Radzinowicz and Marvin E. Wolfgang Vol. 2 - at pp 22).
The crucial question here is - what society? In P.N.G., a “nation of a thousand tribes”, the proper consideration must be the tribe of the prisoner, within the national society. The nation “announces” to a village population that cannot read or hear government word that it is wrong to kill. The tribe also agrees, it is wrong to kill - but what do you do with those who are believed to be killing your people? The State is ill equipped to deal with evils that emerge from the inner domains of man. The nation declares war on germs that are responsible for sickness and disease. It sets up hospitals, and embarks on programmes to eradicate disease. If sorcerers are believed to be responsible for deaths, it is not difficult to see by analogy that society would want to rid itself of that menace. The problem is that the courts of law are ill equipped to deal with the domain of human psychology. The danger is always that anybody could be killed by a simple argument that he was a sorcerer. But that is a matter of judging the facts of that particular case, in all the circumstances.
The danger of justifying imprisonment of traditional wrong doers on the basis of education is that it leads to a serious challenge to the very reasons for having criminal law. If it is to educate offenders, then logically one would not oppose psychological indoctrination as might occur in China through the process of re-education. If that was to be the reason for imposing custodial sentences on tradition bound offenders, I doubt if that would be consistent with the spirit of freedom of conscience, thought and religion. In the alternative, it might be asked whether that form of education could not be inconsistent with constitutional guarantee to freedom from torture.
To me, education of wrong doers is quite different from reforming wrong doers. Although the processes are similar, the assumptions are different. In the education of the traditional people, the assumption is that the so called primitive people need to learn the civilized ways. Unfortunately the state of the world is such that the so called civilized ways are not all that civilized. I don’t think the so called civilized man can safely claim that the so called primitive man has to learn from the civilized world, the requisite virtues, if he wants to be a man and survive.
If that was indeed the purpose for incarcerating law breakers, it might well be argued that either people need to break the law before they can make claims to the virtues of civilization or that prisons are really the best places for educating the so called primitive man.
If to punish the so called primitive man is to educate him, then surely the best place to send him is not prison but an educational institution, or to a church. In that place he would be taught all the virtues of modern civilization and at the same time taught that his own ways are to be discarded.
In reforming an offender, the assumption is this. As a member of the community in whose virtues he has grown up, the offender has repeatedly deviated from these virtues and needs to be reformed. This principle would be applicable to a sophisticated Papua New Guinean who persists in deviant behaviour. Such a principle would not be relevant in the case of the so called primitive man, whose breach of the State law may be no more than an honourable adherance to the moral ethics of his community.
In my respectful view the proposition that the so called primitive man should be incarcerated within a period sufficiently long to enable him to learn the civilized man’s law is highly paternalistic and somewhat loaded with Eurocentric self righteousness.
Events in the world would tend to show that in the universe of moral order, no civilization can claim superiority over the other. All mankind is prone to evil tendencies just as he is capable of greatest moral achievement. No doubt criminal law is deeply embedded in the moral ethics of its society, and must be reflected in the Court’s treatment of offenders that come before the Courts.
In imposing my penalty, I have regard to a wide range of specific matters I set out below:
(a)      Personal history character, age, habits, customs, social mores and the overall hereditary factors of each of the prisoners;
(b)      Planned or determined intensity of the will to do evil generally and particularly within the elements of the crime for which the prisoners have been found guilty;
(c)      Motive - what was the motive of the prisoners - to make greater gains materially or in social standing, and the degree to which the motive is tolerable in view of factor (a) or as a matter of honour (pay back).
(d)      Was the offence committed under fear, shame, embarrassment, excitement, or a mob psychology, obligation to a group or a clan;
(e)      Was the offence committed by way of abusing a position of trust or leadership or guardianship;
(f)      Was the offence committed in defiance of legitimate authority in the community;
(g)      Devices, techniques and ways used and employed to commit the offence - weapons or instruments used;
(h)      Extent of danger, if any to the community is it far reaching, is it limited?
(i)       Subsequent events to the offence - repentence, restitution, restoration of human relations strained, payment of damages or compensation;
(j)      Degree of specific harm on the victims of the offence or the surviving dependants or relatives of the victim; and prevalence, locally and nationally;
(k)      Attitudes of the victims or their survivors towards the offence and in particular towards the offender;
(l)       Extent of legal interests, in particular human rights, obligations and the national goals and directive principles of the Constitution affected i.e., the overall impact on the national aspirations; as against local aspirations;
(m)     Direct impact of punishment on the family, the person and the community whether it be a line, a clan, a village or a corporate unit to which the offender might have been a constructive citizen until his bad day;
(n)      Rehabilitation on the one hand and retribution on the other hand, of the accused;
(o)      Time awaiting trial, including custody time and time on bail and its conditions if any, awaiting trial;
(p)      Degree to which the offender co-operated with the State authorities in settling the case in issue;
(q)      Public opinion and professional opinion as expressed through institutions such as National and Provincial Parliament’s motions, Local and Community Government motions, published reports of the Law Reform Commission and other professional bodies.
(r)      In the present case, I take so many factors as are relevant in determining the penalty I have to impose. Since this is one of my first major cases, I have set out the factors.
I intend now to determine the extent to which each factor mitigates against severity of sentence or aggravates the sentence.
(A)      PERSONAL HISTORY, CHARACTER, HABITS, CUSTOM, SOCIAL MORES ETC.
I have had an opportunity to examine the prisoners closely. I am satisfied they adhere strictly to the social customs and mores of their societies and have committed the offence in that context. It was their perceptions and belief of right and wrong which led them to take a life. Rightly or wrongly, it was their concern for preciousness of a life, believing the deceased had killed as many as 20 people through evil sorcery, that led them to kill her.
It is to be remembered that Sorcery Act 1971 opens with the preamble - “An Act to prevent and punish evil practices of sorcery.” It further acknowledges that “there is a widespread belief thoughout P.N.G. that there is such a thing as sorcery and that sorcerers have extra-ordinary powers which can be used ... more often for bad ones ... and many people are frightened or do things that otherwise they might not do ... and there is no reason why a person who uses...sorcery to do, or to try to do, evil things should not be punished just as if sorcery were real ... some people may act ... under the influence of sorcery to such an extent that their conduct may not be morally and (should not be legally) blameworthy ...” The Act finally cautions against making baseless accusations against the enemies by calling them sorcerers.
The four accused belong to “social groups which believe in powers of evil sorcery.” It is remarkable indeed that they tolerated up to 20 deaths attributed to the evil sorcery of one woman before they finally said “enough is enough”. Modern societies are not likely to tolerate one murder, let alone the shop lifting of a chewing gum, by a poor youth.
There is nothing to suggest these men were cold blooded murderers. Certainly there are no previous convictions of murder or any other offence against them. But for the Criminal Code, I would think they would be quite relieved now that they had removed the “cause” of their deaths. This is a factor of mitigation in their favour, I find.
(B)      PLANNED OR DETERMINED INTENSITY OF WILL TO DO EVIL ETC.
Here there is a marked absence of such a plan. Evidence shows that initially they set about to bring the woman to be dealt with by the Kiap. On the way she tried to run away and they killed her.
There is no determined will from the start to kill the deceased. As against that, there is the element of determination to kill the woman once she set about to free herself from the men. She was held by Aluma Boku while the other three shot her. No-one tried to prevent the killing. The killing is not the climax of a determined plan, but that of a surprise killing. (See factor (d)).
(C)      MOTIVE
In this case the motive of the accused falls squarly within the opening remarks of the Sorcery Act - “some people may act under the influence of sorcery to such an extent that their conduct may not be morally (and should not be legally) blameworthy”.
It is clear from defence counsel’s submissions that the motive for killing is honourable, indeed - to save the social group from imminent extermination. In this regard, I recall the Entebe operation in which the heroic Jews liberated their captives from the evil arms of Amin by killing Ugandan soldiers. The abortive mission to rescue American hostages would have been proclaimed a great victory had the hostages been released at the cost of some Iranee students. Killings would have been perfectly justified.
In this case there was no motive whatsoever to make any gain whether socially or materially. The murder was necessary to preserve the society. The killing of the sorceress is tolerable in the societies of the prisoners. In the context of factor (a) I am of the opinion that their acts would not only be tolerable in their communities, but also in other communities, at the very least.
(D)      COMMISSION OF THE OFFENCE UNDER FEAR, THREATS, EMBARRASSMENT, SHAME, MASS PSYCHOLOGY.
Under this factor, it can be safely stated that the prisoners did act under general fear of sorcery. It seems that general fear turned into excitement and mass psychology when the deceased tried to run away. No sooner had the deceased run away when Yaulipa Bulaim grabbed her and it seemed the other 3 men showered her with arrows from their bows.
The fear of sorcery would have been heightened by the escape. The excitement led them to do something which was quite dramatic. This is borne out again by the fact that as soon as the woman fell down they left her there and ran away home and told their tultul. They made no effort to conceal her body, nor did they stop to pull out their arrows from the body or to confirm that she was dead. In the circumstances, this factor would mitigate against severity in my view.
(E)      WAS THE OFFENCE COMMITTED BY WAY OF ABUSE OF AUTHORITY, TRUST, LEADERSHIP OR GUARDIANSHIP?
These men were not in any position of ascendance to the woman. None of them were ‘big men.’ Their ages range from about 17 to 25. The youngest was Unama Aumane whose age I take to be about 17. He fired the first arrow.
However, these men had undertaken to take the woman to be dealt with by the law. In that respect she was their hostage and I am of the opinion that they had abused a position of trust. But as against this aggravating element, I take into account (d), acting in fear and mass psychology. The two factors seem to balance out.
(F)       WAS THE OFFENCE COMMITTED IN DEFIANCE TO LEGITIMATE AUTHORITY?
This is not so in this case although it would seem from the tultul after the event that he would not have approved of such a killing. It does not show from facts either, if the luluai or the tultul had indicated anything about how to deal with the sorcerers. This factor is therefore neutral and irrelevant to this case.
(G)      DEVICES, TECHNIQUES EMPLOYED - WHETHER CRAFTY, CALCULATING, CRUEL OR CUNNING.
In this case the prisoners had no more than their traditional weapons which in the Highlands of Enga Province today is no more than their traditional attire. They go hunting, gardening, gathering and feasting carrying these weapons. No crafty ways were used to kill the deceased. She ran away, one man held her and the others shot her with arrows from their bows. It would have been different if they had employed steel pointed arrows, shot guns or if they had employed steel pointed arrows, shot guns or if they had tied her up and beat her slowly to death.
(H)      THE EXTENT OF DANGER TO THEIR COMMUNITY - LIMITED OR FAR REACHING.
No doubt, they believe their actions will put a halt to their dwindling number among their social groups. To this extent, they see their actions as far from extending danger, rather it is to put a halt to the already felt danger. Nevertheless, in an organized nation state the national standards must not be forgotten. Men, women and children in every tribe must come to know the vision of their nation and strive to attain it. No matter how often they fall short of attaining it, the State, in its criminal law, must assist, rather than discourage their chance to attain that vision of liberty, equality and respect for life and wise use of human and material resources. The killing of a son or a daughter of the flag of the nation without trial, without a right of the deceased to answer, is still a travesty of justice - every suspect must be given a chance to answer his charge, in any forum to which he or she belongs and to which disputes are resolved.
Be that as it may, I am faced with the fact that the prisoners do not know of the flag of the nation and know no more superior sovereign than the sovereignty of their conscience and community mores. I find that the extent of danger of their acts to the state are largely offset by their cultural environment. Any civilized nation like P.N.G., in my view must be mature enough to accept a multiplicity of norms in its national legal universe.
If this seems a distasteful principle of law in the Western jurisprudence, then it must be a unique Melanesian concept of justice as it springs from our ethnic and cultural diversity within a nation state.
(I)        EVENTS SUBSEQUENT TO THE OFFENCE - INCLUDING REPENTENCE RESTITUTION OF HUMAN RELATIONS ETC.
There is no evidence to suggest serious rupture of violence, temper or deterioration of human relations, in this case. The men have freely admitted their acts and have each informed the police and their counsel that they are prepared to pay in kind in pigs to the other of the surviving sons of the deceased.
In their records of interview, each of the four prisoners said they wanted to pay compensation. The man who shot the deceased first, Luki Wapulae offered 10 pigs, the second arrow man, Piope Kune offered 4 pigs, the third arrow man Unama Aumane offered 2 pigs and Aluma Boku who held her, offered 5 pigs. It seems that even among themselves, they had distributed responsibility more or less according to the degree of participation in the criminal act.
I take this factor in its context as a matter of mitigation of sentence. Although they believe what they have done is right according to their perceptions and beliefs, to they are prepared to come half way to meet the State and its standards by an offer of a payment of the most important form of wealth they have, the pig. Whilst this might sound abhorrent to some legal minds, it is not too far from liability whether strict or based on culpability in running down cases. The only difference is that in one case, cash and cars are involved while in this case, bows and arrows and pigs are involved. The intent is the same, to compensate for pain and suffering and the value to be upheld is also the same, the sanctity of human life.
(J)        DEGREE OF HARM ON THE VICTIM OR HIS OR HER SURVIVING DEPENDANTS AND RELATIVES.
No doubt the two sons will bear the loss of their mother. In the case of Awin, he did not go with the prisoners and would be more affected. At the same time, judging from his brother Yaulipa Bulaim’s expression of shame brought about by continuous accusations of their mother as a sorceress, they may well be relieved of that burden. There is some evidence to suggest that the younger brother Awin was in grief when he was told they would take his mother on the long 5 days walk to Porgera to have her dealt with by the Court.
The two sons are grown up men and whilst they would have lost their mother, they would probably feel at least they have not got to accept any more shame. There is no evidence about their father whether he is alive or dead. If he was alive, there is no mention of him at all in the records of interview.
(K)      LEGAL INTEREST, HUMAN RIGHTS SOCIAL OBLIGATIONS AND CONSTITUTIONAL GOALS AFFECTED.
The fundamental obligation of all man is to work towards freedom. That is the call of the first Constitutional goal on integral human development - liberation and fulfilment. Requirements of social justice according to law must come to grips with oppressed human conditions where man, like the sorceress and the murderers are neither free, liberated nor equal. Whilst they are free in their social order, they are at one and the same time oppressed by fear, evil sorcery, ignorance and illiteracy. Evil sorcery is a negation of the fundamental goal - the total development of the human person. The taking away of the life of the oppressed/oppressor sorcerer is a negation of universal charity hinted to by those immortal words - “father forgive, they know not what they do!”
The struggle to bring about a nation in which all man will give and receive through co-operation and human solidarity must be faced by the courts of law. We must ask the fundamental question. Do justices contribute toward justice in cases such as this, by placing people behind bars for long periods, according to law?
The voice of justice according to law, must hearken human hearts to unfold towards love and mercy, if it is to be dynamic and enduring. Otherwise, it will do no more than to echo the sounds of ghosts and bare bones of sorcerers’ and sorceresses’ souls, long gone from this desert earth.
I look at these prisoners and weep. What a pity! These men need to be loved by some people who can offer them their horizons, their vision and challenge them to the greatest challenge, to work for the improvement of their human lot. True enough, these men have violated the Constitutional rights - to life, to liberty, to die a natural death and so on. But what will the nation gain by imprisoning them for life or even for 5 years? And yet, somehow, every man, whether a prisoner or not, must be challenged by the nation’s highest ideals to be more than what he or she is so as to give more.
(L)       DIRECT IMPACT OF PUNISHMENT ON THE OFFENDING FAMILY, THE COMMUNITY OR THE SOCIAL GROUP.
In this case, the evidence is that the prisoners come from a very sparsely populated area. The evidence suggests that over the years the population has been dwindling. The local theory which the prisoners believed was that the deceased Utomo Polio was responsible for these deaths.
Undoubtedly, incarceration of the prisoners for any length of time will seriously affect the dwindling population of their societies. Wives will tire waiting and re-marry, thus creating fertile ground for greater evil. Those with children will lose contact with their children.
This factor is balanced against deterrence (m), upholding the universal national norms under the Constitution[cxcvi]3 and other factors. In itself, on the facts of this case, it mitigates against severity.
(M)     DETERRENCE AND REHABILITATION.
Obviously, in unlawful killing of a human life, punishment of the offender must have regard to the element of deterrence. That element must be weighed immediately against prospects of rehabilitation, if relevant. In this case, the offenders are not persistent law breakers requiring rehabilitation. In the facts of this case, the ordeal the prisoners must have gone through in being dealt with by the police, then in the District Court and later by Correctional Officers and now by lawyers and the National Court, must be of a very deep psychological order, best known to themselves.
A degree of custodial sentence with hard labour would be well called for. But taking the tariff, courts in this country would be prepared to hand down, and the minimum, a punishment somewhere in between is in order.
The essence of incarcerating these prisoners is not only to tell them that sorcerers and sorceresses should not be killed, but also to inform the prisoners that sorceresses should be taken to and tried before law courts. It is also to tell the members of their immediate communities who will feel their absence, that these actions are not to be done.
It will be noticed that I have taken a more limited view of the application of deterrence factor in the facts of this case. In my view, it is largely meaningless to punish a sorcerer killer with any length of time and expect all the people of this nation to know. Court judgments are never read by village people. Cases are conducted in a legal culture which inhibits wide evidence and the overall result is that punishment as a deterrent upon the society as a whole is no more than a wish in this type of case.
(N)      TIME AND CONDITIONS PREVAILING ON AWAITING TRIAL ETC.
In this case, the prisoners have been in custody for 4 months. As far as they are concerned, they have been in prison. I must have regard to that time spent in imposing a custodial sentence.
For persons disciplined in working to clocks and working to the directions of supervisors, it is small punishment being confined and required to live according to the orders of the warders. But for the villager accustomed to freedom to wander at leisure, confinement within 4 walls of barbed wire, is a traumatic experience.
For prisoners such as the ones in this case, it is a deep loss of freedom to hunt, to garden, to swim in running streams and to be one’s own master. I take these matters as an element of punishment already undergone in the circumstances of these prisoners.
(O)      CO-OPERATING WITH AUTHORITIES.
In this case, the prisoners reported the killing immediately to the tultul and also to the younger son of the deceased. They went voluntarily with the tultul to the Government Station and later to the police. They readily admitted to their individual parts in the killing. They have also pleaded guilty in the National Court. This factor is in their favour in sentencing. In their own way therefore, they have helped the State to uphold the ideals of the Constitution, in respecting the sanctity of life. They went further and offered pigs to redeem themselves, as a form of compensation.
(P)       PUBLIC OPINION, ETC.
In computing the sentence, I am mindful of a strong public opinion that capital punishment be introduced for wilful murderers. There is currently a draft Bill before the Parliament on capital punishment, introduced by Sir John Guise, M.P. In my view, the facts of this case could negate any argument in favour of a general rule that all wilful murderers be hanged or gassed.
I am also mindful of the range of imprisonment, courts in this country have imposed on sorcerer killers.
In the decision of the trial judge in Ulao Amantasi and Others[cxcvii]4 case, the trial judge imposed a sentence of 12 months imprisonment on each of the accused. On appeal by the Secretary for Justice[cxcviii]5, the Supreme Court by a majority of two to one, upheld that sentence. That was a case of sorcery killing.
Prentice S.P.J., as he then was, in my view was right when he said that “the punishment of sorcerer killers has always been comparatively light” (supra)[cxcix]6 at p. 137 line 3.
In that case, the killing was planned, and involved 10 a accused who ambushed the deceased and killed him. In terms numbers of dead the sorcerers are responsible for, in the present case some 20 fell at the deceased’s hands, while in Ulao Amantasi’s case, 11 fell.
In that case, His Honour the dissenting judge expressed sentiments that “imposition of light sentences tends to bring the law into contempt and may in some quarters encourage the view that they are a licence to kill.” (supra)[cc]7 at p. 142.
With respect, in my view such a sentiment underestimates the significance of motive for killing. To impose a general principle of punishment simply because that is the way Parliament has stated the possible punishment, is to ignore the basic principle that every man who comes before the courts must feel he is being tried as an individual, not as a number.
Individuals who appear before the courts do not emerge from nowhere. They emerge from social setting in which they are related to other individuals. To punish without regard to consequences upon the communities to which individuals belong, is, in my view to allow ones judgment to be unduly swayed by generalised, and often frantic public outcry about law and order, and the ever swelling wave of crime. A limited study of the Law Reform Commission in 1976 reveals that convicted murderers rarely, if ever respect murder. In my view, this is a classic sorcerer killing envisaged by the Law Reform Commission in its recommendations for a new class of homicides to be called “diminished responsibility killings”.
COMPENSATION AS A FORM OF PUNISHMENT
I have had regard to the published opinions of Law Reform Commission to which I was the Chairman.
When I look at the Criminal Code Act, sections 18 and 19, present very little scope for imposing any other form of punishment than imprisonment. It is clear from s.18 of the Criminal Code Act’s Schedule that the punishments to be imposed do not include an order that the prisoners pay 20 pigs to the survivor of the deceased.
All that the Criminal Code Act is saying under s.18 is that imposing punishment under that Act would have to be any one of (a-f) provided. In my view, this does not stop a court from imposing punishment, following a conviction under Criminal Code Act, under the Native Customs (Recognition) Act section 7 (e).
By Section 7 (e), a customary form of punishment in my view may be imposed, provided it is not prohibited under Section 6 (1). I see nothing repugnant to the general principles of humanity, inconsistent with a written law, unjust, contrary to public interest or detrimental to the interests of a child in my awarding compensation. It is a clearly established custom in this case and in my view it is within the ambits of Section 7 (e).
By imposing a 3 months imprisonment with hard labour on top of the 4 months the prisoners already served, I am meeting the requirements of an “imposed law which in this aspect receives little or no approbation from primitive villagers, comparable to the relief which many of them would receive from the elimination by that law of the wayback” (per Prentice S.P.J. as he then was in Secretary for Law v. Ulao Amantasi and Others[cci]8 (supra).
At the same time, as a Melanesian judge, I would be less than myself if I fail to recognize the custom that exists and merely impose an imprisonment sentence, light though it would be. Having found the existence of that custom of paying pig compensation as a form of punishment, I proceed under Native Customs (Recognition) Act 57 (f) and make an order against each of the prisoners to pay 5 mature pigs upon release from prison to the son of the deceased, Awin. My view of the Native Customs (Recognition) Act is that it is of general application and may be used to support award of compensation, or damages in a criminal case.
If I am wrong in that regard then I would think that the combined effect of various provisions of the Constitution would support the imposition of such a punishment.
Section 20 of the Constitution provides that until an Act of Parliament provides otherwise, the underlying law of P.N.G. includes the common law and custom (Schedule 2). Schedule 2.1 says that custom is adopted and shall be applied and enforced, as part of the underlying law. Custom would be excluded if it is inconsistent with a Constitutional Law or a statute or is repugnant to the general principles of humanity. In imposing a punishment of 5 mature pigs to be paid by each of the prisoners, I consider I am acting within the schedule.
The National Court, is a court of justice, not of legality. By s.163(1) of the Constitution, it the National Court, is established and by Section 166 it has unlimited jurisdiction. By s.155(4) the Court has “inherent power to make, in such circumstances as seem to them proper .... orders as are necessary to do justice in the circumstances of a particular case”.
Section 158 (1) of the Constitution vests the judicial authority of the people in the National Judicial system of which the National Court is a part. The court in interpreting the law shall give paramount consideration to the dispensation of justice. It would be strange for me not to impose a penalty that was a part of criminal law of this country and that criminal law includes customary perceptions and beliefs about punishment.
LAW REFORM COMMISSION PROPOSALS CONSIDERED.
The Law Reform Commission proposed an amendment to the Code to add a Section 307A which would be that:
“a person who by an act or omission unlawfully kills another person in circumstances in which the killing would have been justifiable according to the customary law and traditional perceptions and belief of the customary social group to which he belongs is guilty of diminished responsibility killing”.
Under the Commission’s proposals diminished responsibility killing would be an alternative verdict upon an indictment for wilful murder. These proposals were designed deliberately to preserve sanctity of life (s.35 Constitution); to avoid excusing “pay-back” killings and to pay “homage to the memory of our ancestors - the source of our strength and the origin of our combined heritage”. Furthermore, the proposals were to give effect to our Constitutional directive for “a willingness to apply traditional ways dynamically and creatively for the tasks of development”. Development includes law development.
If I recall correctly, for such an offence, maximum punishment would be 3 years.
(Q)      RELEVANT LAW ON PUNISHMENTS
I have referred to Sorcery Act, and Court’s practice in imposing sentences on sorcerer killers. It is important also to have regard to the general law under which courts may impose punishments. These include the following:
(a)      Native Customs (Recognition) Act (No. 28 of 1963)
(b)      The Criminal Code Act (No. 78 of 1974)
(c)      The Constitution
Section 5 of that Act says that the existence of a custom and its application is to be as contained as a matter of fact. To ascertain custom, the court is not bound by strict legal procedure. Indeed the court may of its own motive call evidence to establish custom, or even to inform itself of the question of custom. In this case, having heard the address of counsel for the accused and upon reading the records of interview of the accused I am satisfied that custom exists about belief in sorcery and about payment in kind (pigs in this case) as a form of retribution or punishment.
Section 6 of that Act provides for custom to be recognized and enforced unless it is repugnant to general principles of humanity, or is inconsistent with a written law, or is not in the public interest or would result in injustice or would adversely affect the best interests of a child.
Section 7 however restricts the use of custom in criminal cases, except to ascertain the existence or non existence of a state of mind of a person, reasonableness or otherwise of an act by a person, or an excuse, determining whether to proceed to the conviction of a guilty party, in accordance with any other law, or in determining the penalty (if any) to be imposed on a guilty party.
The courts of this country have restricted the use of this legislation. This combined effect of sections 6 and 7 “have operated to limit the role accorded to custom in the criminal process”, (see Andrew, Chalmers and Weisbrot Criminal Law and Practice of Papua New Guinea at pages 7-8). In my view this is an unnecessary restriction of the scope of the Act. (See B.M. Narokobi Vol. 5 June, 1977 Melanesian Law Journal at p. 52).
Bearing in mind also the duty imposed on me by the Constitution to develop the underlying law, I would take the view that the circumstances of this country demand that compensation as a form of liability be recognized and applied, in criminal cases, wherever appropriate. I do so in this case.
If Schedule 2.1 and 2.4 together with Section 109(4) of the Constitution are not adequate, I would still develop an underlying law pursuant to schedule 2.3, together with Native Customs (Recognition) Act s.s. 5, 6 and 7(e) and s.109(4) of the Constitution.
The upshot of all my reasoning is that I impose a term of imprisonment of 3 months with hard labour on each of the prisoners and order each of them to pay 5 mature pigs to the deceased’s younger son immediately upon release.
Solicitor for the State: Public Prosecutor, C. Maino-Aoae
Counsel: J. Pollak
Solicitor for the Accused: A/Public Solicitor, D.J. McDermott
Counsel: K. Wilson A. Yer

[cxciv]See R.B. Seidman 28 M.L.R. 46-61, discussing African situation in sorcerer killing.
[cxcv]Law Reform Commission Papers Nos. 10 of ‘78 and 8 of ‘78 respectively.
[cxcvi]Right to Life s.35 Constitution of the Independent State of Papua New Guinea
[cxcvii]Unnumbered Unreported National Court Judgment
[cxcviii](1975) P.N.G.L.R. 134
[cxcix](1975) P.N.G.L.R. 134
[cc](1975) P.N.G.L.R. 134
[cci](1975) P.N.G.L.R. 134 at p. 137