Unreported National Court Decisions
N918
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR. 510/90
THE STATE
V
MUARE KIAGE AND 3 OTHERS
Kundiawa
Brunton J
26 September 1990
BAIL - Bail Act ss4, 6 - Murder Criminal Code s300 - alleged murder and torture of a “witch” - Bail Act s9(1)(c)(i) considered - particular circumstances in the Simbu Province.
Order:
Bail refused.
Cases Considered:
The State -v- Mene Mamaino unreported judgement. Doherty AJ 14 May 1990
Counsel:
Mr F Terra: for the applicants
Mr J Kesan: for the State
REASONS FOR DECISION
BRUNTON J:  The applicants applied for bail under the terms of section 4 and 6 of the Bail Act. All the applicants had been arrested on either the 16th or 17th of April, 1990. They were each committed by the Kundiawa District Court on a single count of murder (Criminal Code s 300(1)) on the 5th of June 1990 first and were remanded in custody. They first appeared in the National Court, before me, on the 3rd of July, 1990. The committal papers were not available in the National Court on the 9th of July 1990 and the matter was stood over to the next sittings. Their trial had been set down for the 5th of March, 1991.
Although I was not aware at the time, the applicants were anxious to apply for bail during the July sittings. They were unable to give instructions to the Public Solicitor and no bail application was made at that sittings. The applicants, I gather at their own insistence, were kept at the Kundiawa Police-cells from the end of July to the last week in September when they made it clear to me they wished to apply for bail.
Because of the delay in having the bail application heard, the requirements for notice and other formalities were waived. With respect, I agree with law as set by Doherty AJ, as she then was, in The State -v- Mere Mamaino Unreported judgement of 14 May 1990.
THE APPLICANTS
With the exception of Peter Dum Wemin, the applicants are middle-aged men with faimilies and children. They all are members of one extended family. Muare Kiage is 29 years old, he has one child. Winol Kiage is 36 years and has four children. Kom Kiage is married with five children. Peter Dom Wemin, is a younger man, 18 years old. He is single and has been adopted into the family. They are all subsistence farmers and come from the Kamtai area of the Simbu Province.
THE APPLICATION:
The application was pressed on the basis that persons charged with murder (s300 of the Criminal Code) have a constitutional (Constitution s42(6)) and statutory right (Bail Act s6) to bail, and that even if matters arise which are caught within s9 of the Bail Act, the Court still has a discretion to grant bail.
Section 9 of the Bail Act says:-
1)       Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations:-
(a)      that the person in custody is unlikely to appear at his trial if granted bail; or
(b)      that the offence with which the person has been charged was committed whilst the person was on bail; or
(c)      that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consist of:-
(i)       a serious assault; or
(ii)      a threat of violence to another person; or
(iii)     having or possessing a firearm, imitation firearm, other offensive weapon or explosive; or
(d)      that the person is likely to commit an indictable offence if he is not in custody; or
(e)      it is necessary for the person’s own protection for him to be in custody; or
(f)      that the person is likely to interfere with witnesses or the persons who instituted the proceedings; or
(g)      that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property.
(h)      that there are, in process or pending, extradition proceedings made under the Extradition Act (Chap.49) against the person in custody; and
(i)       that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal, medical use under prescription only of the person in custody.
Mr Tera addressed the application in terms of s9(a), (c)i and (f) of the Bail Act.
S9(A) OF THE BAIL ACT.
It was submitted that three of the applicants were married men with families and were unlikely to run away. Peter Dum Wemin would be under the care of his adopted father Kom Kiage. It was unlikely that the applicants would fail to appear for their trial. These facts were not in dispute and were accepted by the Court.
S9(C)I OF THE BAIL ACT.
Counsel submitted that although the offence involved a serious assault, all the applicants denied the offence alleged. Counsel had to concede that the applicant Muare Kiage had admitted in his “confessional” statement to being involved in a group of men that assaulted a woman.
S9(F) OF THE BAIL ACT.
Counsel for the applicants submitted that there was no likelihood that the applicants would interfer with the State witnesses. If there was any interference then the relevant authorities would hear about it. There was no evidence before the Court which would indicate that interference was a matter of concern.
THE ALLEGED OFFENCES
Although the application for bail was made on behalf of all four applicants the Notices of Committal alleged two distinct offences. Muare Kiage, Kom Kiage and Winol Kiage were committed on a charge of the murder of Agesua Aure. Peter Dom Wemen was committed on a charge of the murder of Kwambai Gola. The two distinct offences, which will most likely have to be tried separately, arose out of a witch-hunt. The case against the accused Muare Kiage, Kom Kiage and Winol Kiage was outlined in the Summary of Facts, which was on the reverse of the Information before the committing magistrate:-
SUMMARY OF FACTS
“It is alleged that on Wednesday 11th April 1990 at about 10.00pm at Ninal village, the five defendants now before this honourable court namely (1) Muari Kiage (2) Kom Kiage, (3) Winol Kiage, (4) Yuke Kaore and (5) Dom Kaula did each lawfully murdered one Agesua - Aure an adult national female. [charges against Yuke Kaore and Dom Kaula were withdrawn, because of lack of evidence by the police.]
After four male persons from Ninal village had died within only one month the deceased Agesua Aure and some other old women from Ninal village were accused of sorcery (sanguma) which resulted to the men’s death.
The defendants over reacted and went to where the deceased was sleeping in a house. Defendant Muare Kiage went and kicked opened the door to the deceased house and went inside and dragged her to the ground. While Muare Kiage went into the house his four accomplices were waiting outside the house. The deceased was then assaulted and taken to another house nearby and was being questioned about praticisng sorcery resulting into the men’s death.
The deceased Agesua Aure denied to the allegations and was assaulted and burned with hot metal and fire on her body. This was done so that the deceased must say yes to their allegation regarding sorcery (sanguma).
When the deceased did not admit she was then stranggled by the defendants and also tied to a banana tree. After the deceased had died she was then taken away from the village and dumped into a bush toilet-pit in a coffee garden which was about one kilometer away.
About a week of restless searching Agesua Aure’s body was found in the pit-hole and the body was removed and a Doctor conducted a post mortem.
The defendants were then identified and then arrested cautioned and charged, informed of their rights under section 42(2) of the constitution and detained in the cells”
From the depositions there was evidence of eye-witnesses which implicated the three accused in an assault on the deceased Asesua Aure. The applicant Muare Kiage admitted in his confessional statement assaulting a woman Mongai Wi who he believed to be a witch. He admitted being present when other women were tortured.
In respect of the applicant Peter Dom Wemen the Statement of Facts on the reverse of the Information was in the following terms:-
“That on Wednesday 11th April 1990 at about 10.00pm at NInal village, Kamtai district the defendant now before this court namely PETER DOM WEMEN did unlawfully murdered one KWAMBAI GOLA an adult female.
The deceased Kwambai Gola and her daughter Wemin Gola had been suspected of practising sorcery (Sanguma) together with some other old females from Ninal village. This followed the death of four men from their village in only one month.
The defendant along with another two men namely DAWA GELA and GAIMA GOLA went looking for the deceased and her daughter at Steven Kom Gola’s house. They shouted outside Steven’s house and only Steven was there, and he informed them that his mother (deceased) was not with him, and that she was probably in her own house.
The defendant (Peter Dom Wemen) then with his two accomplices and some other villagers went to the deceased’s house and dragged her out while she was fast asleep, with her daughter.
The deceased was questioned about sorcery and she denied, so the defendant then got a hot metal and put it on her body, while Dawa Gela and Gaima Gola punched her and burnt her with fire. The deceased was repeatedly questioned about sorcery but as she did not say ‘yes’ the defendant and his two accomplices continued to burn her. As a result of the act the deceased received a lot of burn wounds on her body including her private parts.
Steven Gola the son of the deceased heard his mother screaming with pain and went to the defendants and stopped them. He then took his severed mother to her house and later transported her to Kundiawa hospital where she later died from her injuries she had suffered.
The defendant was apprehended and taken to the police station along with some other suspects and questioned. The defendant told Police that the deceased was a sorcerer and that was why she was burned, so her witch-power can disappear from her.
However the defendant was arrested cautioned and charged, informed of his rights of section 42(2) of the Constitution and detained in the cell.”
There was eye-witness evidence on the depositions which implicated the applicant in these allegations, although he had denied them in his statements to the police. The medical report indicated that the deceased had died from “septecaemia from extensive burns to the body”.
From the deposition of Constable Patrick Maitt, it may be that up to thirteen other women were tortured, in what was alleged to be a witch-hunt.
It is also clear from the deposition that the police have had great difficulty in investigating this offence, and the other associated offences that appear to be alleged on the depositions.
Witch-hunts, the torturing and killing of women are still practiced in the Simbu Province see The State -v- Daniel Aigal and Gui Robert Kauna [1990] Unreported Judgement N891, Brunton, J.
These killings are distinct from other types of killing in that the community closes up and does not co-operate with the investigating authorities. With domestic killings, killings in fights, or killing arising in the course of other offences such as armed robbery, there is generally some aggrieved survivor, or line, that are prepared to open up and co-operate with the authorities. But in the Simbu Province, in the case of the alleged killing of witches, little co-operation can be anticipated. In my view the attitude of the people indicates an acceptance of these types of assault and killings.
A bail authority may refuse bail if the offence alleged against the applicant involves a serious assault.
It is the practice to grant bail, even in some wilful murder cases, which involve serious assaults, when the view can be formed that the applicant will answer bail, and the time the applicants have to wait on remand is long.
The offence for which bail is being sought is particularly horrific. There is evidence on the depositions which identifies each of the accused as being implicated in the alleged murder. The offence alleged involves a serious assault. I remind myself that this is an application for bail, and the guilt or innocence of the applicants is not under consideration.
The Bail Act says that bail shall not be refused unless the Court is satisfied on reasonable grounds that the alleged acts constituting the offence in respect of which the applicants are in custody consist of a serious assault.
This exception has been met on the material before me. The alleged offence is qualitatively one in which it is not appropriate to release the applicants on bail, even though they may appear at their trial in answer to bail, if bail was granted with appropriate sureties.
The applicants will have to spend just short of a year on remand if their application is refused. While this is a comparitively long-xime - in the circumstances of the offence - it is not oppressively so.
The applications for bail are refused for these reasons.
Lawyer for the applicants: the Public Solicitor
Lowers for the State: the Public Prosecutor