N522

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

ROBERT KUPARA

Lae
Kapi DCJ

7 November 1985

CRIMINAL LAW - Sentence - Relevant considerations - Customary compensation - Proof of - Relevance to penalty - Manslaughter charge - Proved custom not relative to penalty but to failure to provide brideprice - Customs Recognition Act (Ch No 19), s 4(e).

Held

(1) Where an accused seeks to have custom taken into account in determining sentence pursuant to the Customs Recognition Act s 4(e), he bears the onus of proving by proper evidence the relevant custom.

Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299, followed and applied.

(2) The effect of the Customs Recognition Act s 4(e) is that custom may, where so proved, be taken into account if it is relevant to any matter, consideration or circumstance which may form the whole of the circumstances in determining sentence in a particular case.

(3) Accordingly, on sentencing on a charge of manslaughter, that as the evidence of custom showed the payment of customary compensation towards unpaid brideprice it was not relevant to the question of penalty and could not be taken into account.
Discussion of circumstances in which custom may be taken into account.

Cases Cited

Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299.
Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510.
Mamarika v The Queen (1982) 63 FLR 202.
Public Prosecutor v Apava Keru and Aia Moroi [1985] PNGLR 78.

Sentence

The accused pleaded guilty to a charge of manslaughter involving the death of his wife from a ruptured spleen following an argument, and sought to have the payment of customary compensation of K4,362 taken into account on sentence.

Counsel

M Mosoro, for the State.
J Everingham, for the accused.

7 November 1985

KAPI DCJ: The accused pleaded guilty to a charge of manslaughter. It appears from the depositions that the accused was upset over his wife playing cards with other people. He asked her to leave but she refused. He became angry over this and an argument started. The argument developed into a struggle. The accused then used a billum with some contents in it and hit the side of the body of his wife. This ruptured an enlarged spleen which eventually caused her death.

During submissions by counsel for the accused, reference was made to the payment of compensation (K4,362.20) by the accused and his relatives to the relatives of the deceased. I indicated that I would not take this into account unless proper evidence on customary compensation was called. In Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299, the Supreme Court held that if an accused relies on payment of compensation as a mitigating factor, he bears the onus of proving the existence of such custom. At 301, the Chief Justice said:

"... Those who rely on compensation payment as a mitigating factor have the duty to prove, as a matter of fact, the existence of such custom in a proper manner. Evidence from the bar table is not the proper manner. I would myself, in future, refuse to accept such evidence. I say this because it is not every society in Papua New Guinea that requires payment of compensation in cases of homicide or death."

At 302, I stated:

"The question of customary compensation to be taken into account on sentence must be clearly identified in each case. The general statement in mitigation that compensation was paid is of itself not necessarily of any assistance in a particular case. The concept of customary payment must be clearly proven and its relationship to the concept of penalty. In the Highlands, the concept of compensation is connected with the fear of payback killing. Is that connected with the concept of customary penalty? There must be a proper evidentiary basis upon which the court can develop the law. This is significant in this country where there are many different customs. General statements by counsel can no longer be considered sufficient."

At 305, Pratt J stated:

"However, I do not wish to be regarded as accepting in principle that compensation payment in homicide cases is necessarily a factor of mitigation. I agree that many judges have done so over the years and outside of compensation paid for homicide, the area does not present any insuperable problems provided evidence of custom is properly adduced. I have often wondered whether the grafting of customary compensation onto the introduced requirement of sentencing to imprisonment for a term of years in homicide cases may not contain an inherent incompatibility of concepts which can never be really resolved. The assumption that compensation is a mitigating factor was clearly made both in counsel’s submissions during the present case and by each of us sitting as the members of the court. It is an assumption however which has never been the subject of proper investigation and detailed submission. Broad general propositions have been put forward without any attempt to analyse the underlined concepts and the objects to be attained. The area would certainly present difficulty of presentation and the amount of research prior to argument would be quite considerable. Nevertheless, the issue is an extremely important one. There are a number of anthropologists available within the country to give evidence, and there is a steadily mounting collection of written material upon which to draw. At present a considerable amount of data is being collected by the Law Reform Commission for the purpose of drafting a bill to govern the amount to be paid for compensation in homicide cases. It is perhaps significant to note that no compensation is to be paid under the proposal on death resulting from payback, tribal fights or road accidents."

I adjourned the case to enable counsel to call proper evidence on customary compensation.

Counsel for the accused called two witnesses. He called a Peter Ginie from Kundiawa to give evidence of customary compensation in that area. The deceased comes from Chimbu.

The second witness was a Benny Wamaxasi from Maprik in the East Sepik Province. The accused comes from that area. This witness gave evidence of the payment of K4,362.20 on behalf of the accused.

The relevance of custom on sentence is a matter of legislation in this jurisdiction. Under the Customs Recognition Act (Ch No 19), s 4(e), custom may be taken into account in determining sentence. The effect of this provision is that custom may be taken into account if it is relevant to any matter, consideration or circumstance which may form the whole of the circumstances in determining sentence in a particular case. Let me illustrate some of the circumstances in which custom may be taken into account.

1. Custom may have an influence on the way the accused behaves in commission of an offence. An example of this is the customary belief of the power of sorcery which may cause an accused to kill a sorcerer in defence of his own safety or those of his relatives: see Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510.

2. If there is any customary penalty or sanction imposed, that would be relevant as far as sentence is concerned. The same principle has been adopted by the Federal Court of Australia in sentencing an Australian Aborigine. In Mamarika v The Queen (1982) 63 FLR 202, an Aboriginal man was charged with the murder of one of his own community. After the killing, there was a payback attempt on his life. Several men who were relatives of the deceased, armed with spears inflicted a number of injuries upon him. It was conceded by all counsel that this attack was in accordance with tribal custom. The Court (at 206) said:

"It is of course a fact, and one that cannot and should not be disregarded, that the appellant did suffer serious injuries at the hands of other members of the community. But, if it is to be asserted that conduct of this sort should be seen as a reflection of the customary law of an Aboriginal community or tribal group, we are of the opinion that there should be evidence before the court to show that this was indeed the case and that what happened was not simply the angry reaction of friends of the deceased, particularly when the killing of the deceased and the injuring of the appellant occurred at the time when some, if not all, of those participating had been drinking.

In the circumstances we are of the opinion that this Court should approach the matter on the basis that, by reason of his action, the appellant brought on himself the anger of members of the community and that as a result he received severe injuries from which he fortunately made a good recovery. So seen, it is a matter properly to be taken into account in determining appropriate sentence, without given any sanction to what occurred."

3. Custom may be taken into account to explain the reasonableness or unreasonableness of the conduct of the accused in a particular community.

It can be seen from the circumstances I have discussed that the provision directs that a court may take into account custom in so far as it may give full explanation of the circumstances of the accused. As to what circumstances are relevant on sentence are determined by the practice and principles developed by courts in sentencing.

As to whether or not custom is taken into account, it is limited by its relevance to these circumstances. This is altogether a different matter from recognising, enforcing or adopting custom as part of the underlying law under the Constitution. Custom may be taken into account on sentence without enforcing it as part of the underlying law. I discussed this in Acting Public Prosecutor v Uname Aumane at 540-543. It follows from this reasoning that the Customs Recognition Act, s 3, and the Constitution, sch 2.1 cannot be applicable. They are applicable where custom as such is adopted as part of the underlying law. This conclusion appears to be contrary to the reasoning of the Supreme Court in a recent decision, Public Prosecutor v Apava Keru and Aia Moroi [1985] PNGLR 78. The court there was considering the influence on an accused person to act in accordance with the custom of payback. Of course, I would be bound by that decision on custom of payback. However, I am here concerned with customary compensation.

Applying the principles I have discussed, customary compensation in this case can only be taken into account if it is relevant to the question of penalty, that is to say, the compensation paid was a customary form of punishment. The evidence given by the two witnesses does not prove this. The significance of the evidence of Peter Ginie appears in the following question and answer.

Q. "Tell the court what you know about this compensation?
A. My sister was not paid brideprice. That is why we claim for the money.

Q. If brideprice was paid you would not have claimed compensation?
A. Yes.

Q. If brideprice was not paid could compensation be demanded upon death?
A. If no brideprice compensation is demanded.

Q. Why was compensation demanded?
A. Sister was not paid brideprice that is why we demanded payment."

Evidence of Benny Wamaxasi cannot be of much assistance because his evidence was that they followed the custom of the deceased.

It is clear from this evidence that the compensation that was paid was paid as payment towards brideprice rather than as customary punishment. I therefore conclude from this that the customary compensation is not relevant to the question of sentence. I will therefore not take this into account on sentence.

[His Honour then proceeded to sentence the accused.]

______________________

Lawyer for the State: E Kariko, Acting Public Prosecutor.
Lawyer for the accused: Public Solicitor.

[1985] PNGLR 316 - Robert James Reynolds v Kevin Walcott, Dogoatao Pty Ltd and Bernard Maladina