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State v Kule [1991] PGNC 58; [1991] PNGLR 404; N1034 (3 December 1991)

N1034

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

KULE

Wewak
Doherty J

3 December 1991

CRIMINAL LAW - Sentence - Mitigation - Customary obligation - Proof of - Murder - Giving of child in reparation - Contrary to law - Against welfare of child - Similar to slavery - Constitution, s 253 - Customs Recognition Act (Ch No 19).

Held

(1) Whilst compliance with customary obligations is a matter to be taken into account on sentence, the particular custom must be proved by evidence in accordance with s 2 of the Customs Recognition Act (Ch No 19).

(2) (Obiter) A custom which (if proved) obliged one who had murdered to hand over one of his daughters to the family of his victim should not be recognised and enforced under the Customs Recognition Act because:

(a) recognition would be contrary to the welfare of the child and contrary to the public interest; and

(b) it would be a practice or institution similar to slavery and contrary to s 253 of the Constitution.

Cases Cited

Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299.
Aisi v Malaita Hoala [1981] PNGLR 199.

Sentence

The defendant pleaded guilty and was convicted of unlawful killing. In mitigation of sentence it was submitted that he had complied with custom and would have to comply with a further custom of giving one of his daughters to the relative of his deceased victim. The following judgment was delivered on sentence.

Counsel

J Wala, for the State.
M Gene, for the defendant.

3 December 1991

DOHERTY J: The defendant has been indicted and pleaded guilty to the unlawful killing of his cousin’s sister. The facts presented by the State show that the deceased and some other women were sitting talking about the theft of peanuts from a garden. The defendant, was in a house some distance away, thought that they were talking about him and came up to the deceased carrying a large piece of wood and struck her, she fell to the ground where he kicked her several times breaking three ribs which penetrated the spleen and caused death.

On arraignment, he explained that: "I felt they used bad language they swear at me and I hit the woman." There is no indication from the State witnesses that the defendant was being accused of the theft and all indications are that he only thought they were talking about him.

On allocutus, he explained that his two brothers had died and he, as the only remaining relative, had to care for their nine children, their two wives together with his own wife and three surviving children. He also said that the Sepik River is high for six months of the year when it is difficult to plant and find food. His counsel has stressed the provocative action on the part of the women and submitted, inter alia, that he has complied with certain customary rights and obligations but still has to comply with the customary obligation to give one of his daughters to the uncle apparently the father or other relative of the deceased.

I accept that he himself thought he was being accused although there is no evidence before me to show that he was in fact mentioned. He himself said "they only suspect me, she was talking bad language about me" and "they were suspecting me" [sic]. It is not clear if he was named.

It would seem from his allocutus that it is very difficult to survive in the area from which he comes so theft of food, such as peanuts, would be worse than in a more fertile area where food is more abundant.

It did occur to me that the care of nine children plus two women plus his own wife plus his own children plus two old parents is an incredible burden on any person living in a poor agricultural area and that this must have led to very great stress on the defendant. I would imagine that such stress could account for his reaction to a fairly petty matter in an irrational and disproportionate way.

I consider one of the worst elements in this case is the force used which I consider completely disproportionate to the actions of the deceased. If it was gossiping among several women why pick only her? It is clear from the medical reports that the force used was enough to break three ribs which in turn pierced the spleen. It is clear from the evidence that violence was directed at only one woman and not the other three and that he used wood as a weapon. Given an apparently poor diet in the area it may have been that her ribs were not too strong but there is no medical evidence to support this. He says she tried to get a bush knife — but that was after he hit her and he was kicking her.

Clearly he had a good record and lifestyle and I consider there was an excessive responsibility upon him in looking after so many children and in-laws and parents. However, I wish to refer to the aspect of compliance with customary obligation where he has paid compensation but in particular an obligation to hand over one of his daughters to the deceased’s family.

There is no evidence before the Court about such a custom other than a statement in submissions by counsel for the defence that the defendant "must give one of his daughters to the uncle". Customary compliance is a matter that can be considered in mitigation: see Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299 at 301, 305 but it is not sufficient to say "this is a custom and we are going to comply with it". As stated in Aisi v Malaita Hoala [1981] PNGLR 199 at 203: "customs must be proved as a fact, that is by sworn evidence or affidavit evidence." The Court went on to say that the provisions of the Customs Recognition Act (Ch No 19) (as it now is) gave the court wide powers in hearing evidence to ascertain what a custom was. This included calling witnesses itself, hearing hearsay and opinion evidence, referring to books and asking questions of complainants and defendants and their witnesses and ruled that failure to hear such evidence before ascertaining and ruling on the custom is an error in law.

I am aware of this custom in that part of the Sepik from other cases but I consider in the case before me where a submission by counsel only is put forward it is insufficient evidence that a custom exists, what the custom exactly is and whether the defendant has complied with it.

Even if there was clear evidence that the defendant had complied with the custom I am not prepared to recognise it in accordance with s 2 of the Customs Recognition Act (Ch No 19) and enforce it under s 3 unless there is evidence to convince me that this is a custom which is not contrary to the welfare of a child under sixteen years and that it would not be contrary to the public interest to recognise and reduce a sentence where it was shown that a child or young person or even an adult was handed over by one group of people to another family or group in payment of obligations of some member of the child’s clan or customary group.

I consider that not only does the Customs Recognition Act give power to this Court to refuse to recognise the custom but that it is contrary to the constitutional provisions relating to slavery. Section 253 of the Constitution states: "Slavery, and the slave trade in all its forms, and all similar institutions and practices, are strictly prohibited."

I am unable to trace any case law in our jurisdiction on the interpretation of this section and the word "Slavery" is not defined in our legislation, either in the Constitution itself or in case law. The International Convention on the abolition of Slavery and the Slave trade (Geneva 1926) article one refers to slavery as "the status or condition of a person over whom all or any other powers attaching to the right of ownership are exercised". The 1956 Supplementary Convention resolved to extend abolition to "institutions similar to slavery" and these were considered to include debt bondage, serfdom, bride price and exploitation of child labour.

Section 253 of the Constitution not only strictly forbids slavery and the slave trade but "all similar institutions and practices". It appears to me that the handing over of a child, or an adult, to another family or group in payment or recompense for the misdeeds of a third person where that child or adult had no say or ability to dispute the handing over is an institution or practice similar to slavery as the child concerned has no say in its transfer. The Constitution, Sch 1.5(2), provides that a constitutional law shall be given a fair and liberal meaning and in applying this to similar institutions and practices to "Slavery" I consider the handing over of a child in reparation for the misdeeds of another is similar and thereby prohibited by s 253 of the Constitution.

For the reasons:

1. I have no evidence under s 2 of the Customs Recognition Act (Ch No 19);

2. I consider it contrary to the welfare of a child and under s 3(1)(b) of the Customs Recognition Act (Ch No 19); and

3. I consider the handing over of the child as an institution or practice similar to slavery and so prohibited by s 253 of the Constitution;

I refuse to recognise the custom of handing over one of the defendant’s daughters to the relative of the deceased as a custom that may be considered in mitigation of punishment.

[After considering other case law and facts in mitigation the defendant was sentenced to four and a half years in hard labour less a period of three months in remand.]

Sentenced accordingly

______________

Lawyer for the State: Public Prosecutor.
Lawyer for the defendant: Public Solicitor.