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State v Miritok [2007] PGNC 164; N3466 (4 October 2007)

N3466

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 185, 187, 189, 190 & 191 of 2004

THE STATE

V

DICKSON MIRITOK, TIMOTHY JOHN, JOHN OKNDIMENG,
MIRITOK MATFOKEON, LUKE MAFU, CHARLIE MAFU & GODFREY SIPIK

Tabubil: Kandakasi, J.
2006: 14th and 16th November
2007: th October

RULING ON NO CASE SUBMISSION

CRIMINAL LAW—PRACTICE AND PROCEDURE—No case submission—Charge defective – Offence charged in the indictment not defined by written law - Conflict in evidence called by the prosecution on essential elements of offence —Effect of—Accused has no case to answer.

CRIMINAL LAW—PRACTICE AND PROCEDURE—Charge under Section 7 of the Sorcery Act – Accused can only be charged for committing a forbidden sorcery – No statutory basis to charge accused with committing murder by sorcery – Prosecution evidence showing cause of deceased death through a known medical condition – Effect of – State failing to establish essential element of charge proffered against the accused – No case to answer submission upheld – Section 7 Sorcery Act.

Cases Cited

Papua New Guinea Cases Cited:
The State v. Lina Mutuarin Wairo (2004) N2685.
The State v. Paul Kundi Rape [1976] PNGLR 76.
The State v. Roka Pep No 2 [1983] PNGLR 287.
The State v. Ani Obande (1983) N444.
The State v. Noah Magou [1981] PNGLR 1.
Re Moresby North East Parliamentary Election (No.1): Goasa Damena v. Patterson Lowa [1977] PNGLR 424.
SCR No. 1 of 1982: Re Philip Bouraga [1982] PNGLR 178.
The State v. Saul Ogerem (2004) N2780.
The State v. James Gurave Guba (1999) N2020.
Kwayawako and Five Others v. The State [1990] PNGLR 6.
The State v. Marety Ame Gaidi (01/08/02) N2256.
Jimmy Ono v. The State (04/10/02) SC698.
Richard Liri v. The State (2007), SC883
The State v. Maraka Jackson, CR NO. 1433 of 2004, decision delivered in Kerema on 24th October 2006.
John Baipu v. The State SCR 71 of 2003 unreported and unnumbered judgment (2005).

Overseas Cases Cited:
Blackburn v. Flavelle (1881) 6 App.Cas. 628, 634.

Books & Articles Cited:
Craies on Statute Law, 7th ed., pp. 259-260.
"The Power of Amendment in the District Courts Act Under Section 32 of the District Courts Act (Chp.40)", Melanesian Law Journal, Vol. 16, 1988, p.115.

Counsel:
D. Mark, for the State.
A. Baniyamai, for the Accused.

4 October, 2007

1. KANDAKASI J:You seven men stand charged before this Court with one charge each for doing an act of forbidden sorcery, namely causing the death of one, Patrick Pitalok, contrary to s. 7 of the Sorcery Act, Chapter No. 262.

2. At the end of the prosecution case in November last year, you through your lawyer made a no case submission. After hearing your lawyer, I directed both him and the State prosecutor to file written submissions covering each of the points they raised before me in Court. The submissions have been filed. The Court considered the submissions and the evidence before it and came to a decision much earlier but was not able to have it delivered due to no circuit runs to Tabubil until now.

Law on No Case Submission

3. Turning to the case before me, I am of the view that, before considering the submissions that have been made and filed; I consider it appropriate that I should remind myself of the principles governing a no case submission. A no case submission can be made, which the Court can hear and determine at the close of the prosecution’s case. Such an application is a procedural reinforcement of the presumption of innocence under s. 37 (4) and the right to remain silent of an accused person under s. 37 (10) of the Constitution. Given these, the general principle is that, the prosecution must make out its case by the evidence it adduces. If there are any serious flaws in the evidence it calls, it can neither expect, nor can it make it good through a cross-examination of the accused or the accused witnesses.[1] Hence, the right vested in an accused person to make a no case submission, if in his or her view, the prosecution has failed to establish a prima facie case for him or her to answer.

4. The decision in The State v. Paul Kundi Rape[2] enunciated the relevant principles. Those principles were adopted and applied by the decision in The State v. Roka Pep No 2.[3] There, the Supreme Court summarized the principles in this way:

"Where in criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the question is for the judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence.

Where the tribunal decides there is no case to answer the accused is acquitted and that is the end of the matter.

Where the tribunal decides there is a case to answer, it nevertheless has a discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it."

5. As can be apparent from this, where an accused makes a no case submission, the Court should make a finding of no case to answer where (a) there is no evidence to establish an element of the offence charged; or (b) there is some evidence covering the elements of the offence charged but it is so tenuous or incredible or discredited that it amounts to only a scintilla, and thus could not be accepted as persuasive by any reasonable person. If the Court makes neither of these findings, it should find there is a case to answer. As the Court in Paul Kundi Rape held, the test is not whether on the evidence as it stands, the defendant ought to be convicted, but whether on the evidence as it stands, can the accused be lawfully convicted?

The Charge and Submissions

6. In your case, the State charged you under s.7 of the Sorcery Act. The charge reads:

"Dickson Miritok, Timothy John, John Okdimeng, Miritok Matfokoem, Luke Mafu, Charlie Diangim and Godfrie Sipik of Wangbin, Tabubil, Western Province stand charged that they on the 25th of February 2004 at Wangbin in Papua New Guinea did an act of forbidden sorcery namely causing death of one Patrick Pitalok."

7. You argued through your lawyer that, sorcery in itself is not an offence, unless an act of sorcery is not an "innocent sorcery" or is a "forbidden sorcery". In so submitting, you rely on the provisions of s.7 and the definition provisions of s.1 and schedule 1.1 of the Act. You then argued that in order to succeed on a charge under s.7 the prosecution must establish by appropriate evidence; (1) an act of sorcery; (2) that the act of sorcery is a forbidden one or is not an "innocent sorcery". You referred the Court to the decisions of the National Court in The State v. Ani Obande[4] and The State v. Noah Magou.[5] In those cases, the Court had evidence of the respective acts of sorcery and the defendants admitted to committing the acts of sorcery which were forbidden. Finally, you submitted that the evidence called by the State has failed to establish an act of "forbidden sorcery" and hence the charge against you.

8. The State’s submission is that, it has established the charge against each of you. In so submitting, the State argues that, the Court should ignore the medical evidence because the eventual outcome of the act of sorcery alleged against you is irrelevant as it is not an essential element of the charge against you. Otherwise the State agrees in effect with your submissions on the law. Proceeding on the basis of its submission, the State argues for a rejection of your no case to answer submission.

Consideration of the Submissions

9. Section 7 of the Sorcery Act, under which you were charged, reads as follows:

"A person who—

(a) does any act of forbidden sorcery; or

(b) aids, abets, counsels or procures, or by act or omission is in any way knowingly concerned in or party to, the doing of any such act,

is guilty of an offence.

Penalty: On conviction on indictment—imprisonment for a term not exceeding five years.

On summary conviction—imprisonment for a term not exceeding one year."

10. I accept your lawyer’s submission that, this provision standing alone does not help us to easily work out what are the essential elements of this offence. This is principally because the provision does not identify what constitutes an "act of forbidden sorcery." In my view, it is necessary to determine what constitutes an act of sorcery and the kinds of acts of sorcery that are forbidden in order to work out the essential elements of the offence.

11. Section 1 (1) of the Act defines an "act of sorcery" in these terms:

"‘act of sorcery’ means any act (including a traditional ceremony or ritual) that is intended to bring, or that purports to be able or to be adapted to bring, powers of sorcery into action, or to make them possible or carry them into effect"

12. The same provision defines the phrase "forbidden sorcery" or "acts of sorcery (including a traditional ceremony or ritual) that is intended to bring, or that purports to be able or to be adapted to bring, powers of sorcery into action, or to make them possible or carry them into effect" to mean "sorcery other than innocent sorcery". But what amounts to a "forbidden sorcery" is not immediately clear. The answer is provided by schedule 1.1 of the Act which identifies what amounts to "innocent sorcery" in the following terms:

"For the purposes of this Act, innocent sorcery is sorcery that—

(a) is protective or curative only, or is not intended to produce, and does not purport to be calculated or able or adapted to produce, any harmful or unlawful result, or to exert any harmful unlawful or undue influence on any person; and

(b) is generally regarded in the social groups of which—

(i) the accused person; and

(ii) the person at whom the act was directed; and

(iii) the person whose conduct was intended to be influenced,

are respectively members as being, by custom, legitimate or harmless and not offensive in all the circumstances of the case."

13. In my view, it is clear that, what amounts to an act of sorcery, is dependant on the custom of the alleged offender and the victims in any given case. Also, it is clear that, all acts of sorcery that does not fall within the confines of this provision would be forbidden sorcery. The principle encapsulated in the Latin maxim "expressio unius est exclusio alterius" that is to say, "the express mention of one thing causes the exclusion of the other,"[6] applies here.

14. In The State v. Ani Obande,[7] the Court speaking of the definition of the phrase "act of sorcery" said:

"This definition appears to contemplate that an act may constitute an act of sorcery for the purposes of the Act, even though it may only be as it were a step in the process of carrying powers of sorcery."

15. Counsel for the accused in that case, argued for acquittal of his client because he submitted that, the State failed to establish that his client performed all the stages of sorcery. But the Court found that the allegation was of a particular act of sorcery and that, it was capable of causing its victim to get sick and die and so therefore it was not an innocent sorcery. The Court felt comfortable to convict the accused because in addition to the evidence produced by the State, the accused admitted to committing the alleged act of sorcery.

16. Earlier on, in The State v. Noah Magou,[8] Narokobi AJ again speaking about the definition of sorcery said:

"Generally speaking, sorcery is a word of generic import. In Papua New Guinea, it is known in various languages, and is practiced by various social groups, as ‘mea mea’, ‘puri puri’, ‘mura mura’, ‘dikana’, ‘vada mea mea’, ‘posin’, ‘oruh’, ‘sanguma’, ‘malira’, ‘pupulu’, ‘ingiat’ and so on."

17. The prosecution asked the Court to find that the accused had committed murder through sorcery. The Court decided against any such finding saying, it was not necessary because, the legislature did not provide for the consequence of sorcery. The Court took the view that, if it took into account the consequence of the alleged sorcery, which was death in that case, it would be finding the accused guilty of a crime not defined by written law. It further expressed the view that, it was up to the legislature to provide for the consequences of an act of sorcery and not for the courts.

Present Case

(a) Constitutional Challenge

18. Considering the foregoing, it is important to note just what constitutes an offence under s. 7 and what must be pleaded in an indictment presented under that provision for a proper charge against an accused. This is necessary because of the dictates of the Constitution under s.37, which provides in clear terms that, a person can only be convicted of an offence that is defined by a written law. The notable exceptions are contempt of court and where an Act of Parliament provides to the contrary. In practical terms, this means the indictment charging an accused person must disclose facts that constitutes the proscribe act in order to meet the requirement that the offence must be defined by a written law.[9] This is critical because, an accused person pleads to the facts and not necessarily the law creating the offence.[10] What this means, in the case before me is that, the indictment must plead facts disclosing an act of sorcery and that, that act is a forbidden act of sorcery as defined by the Sorcery Act.

19. Your lawyer argues that s.7 of the Sorcery Act contains an offence that is undefined by written law and as such, it is thus in conflict with s. 37(2) of the Constitution. This, he submits is the case because, what is an "innocent" or "forbidden sorcery" is left to be defined by custom which is not a written law. To the extend that the Sorcery Act does not specify what acts of sorcery are innocent and what acts are forbidden, that argument may be valid. However, given that customary practice of sorcery and indeed custom itself varies, it is difficult for Parliament and indeed any other person to specify in writing what they are. The Constitution under schedule 2.1 specifically adopts and allow for the application of custom as part of the underlying law. In the case of sorcery, the Sorcery Act deals with the customary practice of sorcery. The Act specifically prohibits what it describes as "forbidden sorcery". Hence, it is not as if there is hardly any written legislation on the definition of sorcery. I am therefore, not sufficiently persuaded by your lawyer’s submission on this point. Accordingly, I reject that submission.

(b) The Indictment

20. So the question then is, has the State properly had you charged and tried under s.7 of the Sorcery Act? A close examination of the indictment in the present case fails to disclose two important things. First, the indictment fails to disclose an act of sorcery as defined in s.1(1) of the Sorcery Act. Secondly, the indictment fails to disclose or make it clear that, the act of sorcery is not an act of sorcery coming within the provisions of schedule 1.1 and therefore a forbidden act of sorcery. What the indictment does is that, it alleges that you seven men "did an act of forbidden sorcery namely causing the death of one Patrick Pitalok" without first specifying or describing the act of sorcery that caused the death of the deceased. The brief facts in support merely make reference to a magic spell without specifying what it was that constituted the magic spell.

21. Further, the indictment pleads the consequence which is not defined by a written law as was noted by the decision in Noah Magou’s case. In that regard, it could be argued quite correctly that, you have been charged with an offence not defined by written law. Although not argued for, I do not consider this is something that could be cured by an amendment as being mere superfluous. In an article I had published in the Melanesian Law Journal in 1988,[11] I spoke of the law on this point in the context of information laid before the District Courts in the following terms:

"In many cases informations contain words or phrases which are not necessary for the purpose of the charges or offences contained therein. These words or phrases are referred to as mere superfluous which could be easily amended by striking them out before or at the beginning of the hearing to ensure that the defendant is informed precisely of the allegation against him.

A good illustration of this is provided by an Australian case, Turner Jones v McDonald [1933]St.R.Qld 99. In that case a complaint was made under the Australian Fire Brigades Acts 1920 – 1931, alleging that certain firemen with certain plant and equipment attended and extinguished a fire occurring in a motor vehicle, owned by the defendant, who became liable for the expenses and charges of the operation as the motor vehicle was uninsured.

The Full Court of Australia unanimously held that the words ‘and extinguished’ were nothing but mere superfluous because the relevant Act only required that the Fire Brigade attend to the fire. The inclusion or exclusion of the words ‘and extinguished’ did not have any major effect on the information (complaint). Thus the complaint could be easily amended by striking out the words ‘and extinguished’".

22. In this case, the inclusion of the effect of the unspecified act of forbidden sorcery may be superfluous and inappropriate and therefore may be corrected by a strike out of that part of the indictment. Nevertheless, if we were to have them struck out as mere superfluous, the indictment will remain with a mere allegation that you men committed a forbidden act of sorcery without specifying it and what bad outcome was intended. Considering all of the foregoing, I am of the view that, the indictment is bad and cannot be cured by any amendment and that, it fails to properly charge you with an offence under s.7 of the Sorcery Act.

23. I can understand the State’s difficulty in terms of appropriately and or correctly wording the indictment for the purposes of a valid charge against you. As the Supreme Court noted in Kwayawako and Five Others v. The State,[12] this Act was poorly drafted. In the context of the offence of forbidden sorcery, the legislature should have specified what kinds of acts of sorcery are forbidden in the same section creating the offence, rather than cause us to look for the answers in other provisions of the Act, in the way we have done here. However, this is of no consolation to the State. The State is under an obligation to clearly charge an accused person with an offence defined by written law except as noted. However difficult the law creating the offence is, the State is still under an obligation to ensure that a charge it presents against an accused person is under a written law and the facts giving rise to and constituting the offence charged are clearly set out. I find that the State failed to discharge that obligation in the present case.

(c) Establishment of the Charge

(i) The Essential Elements

24. In the unlikely event that I was mistaken in the above view, the next question is, has the State established all of the essential elements of the offence? To answer that question, we need to ascertain what are the essential elements of an offence under s.7 of the Act? I accept your lawyer’s submission that, it is difficult to work out the essential elements of the offence. However, doing the best we can, I consider the following are the essential elements of the offence:

(1) A person;

(2) Who according to the customs of those involved;

(3) Does an act of sorcery (specified) or aids, abets, counsels or procures, or by act or omission (specified) is in any way knowingly concerned in or party to, the doing of any such act; and

(4) The act of sorcery is intended to produce and is purported to be calculated or able or adapted to produce, any harmful or unlawful result, or to exert any harmful, unlawful or undue influence on any person.

25. Without deviating from the observations I have already made in relation to the validity of the indictment, I need to consider the submissions of the State as well as your submissions and the evidence before me and decide if the State established a prima facie case against you, in terms of establishing each of the elements of the offence, I have just outlined. To properly do that, I need to consider firstly the evidence before me.

(ii) Witnesses and Evidence

26. The State called a number of witnesses and admitted into evidence with your consent a number of statements, a medical certificate of death and photographs. These were the statements of John Boyeng (exhibit A); Dayak Okimeng (exhibit B); Mary Anne Patrick (exhibit C); Mireng Okdimeng (exhibit D); Borok Pitalok (exhibit E) and Kapai Pitalok (exhibit F). The medical Certificate of Death is exhibit G and the photographs taken by Borok Pitolok constitute exhibit H. In addition to these evidences, the State called a Mitiwen Diangim, Dakatuk Lupi, Constable Patterson Embetaya, Pauline David, Dr Inina and Hon. Borok Pitolok, the President of the Star Mountains Local Level Government and the brother of late Patrick Pitolok, who gave oral testimonies in Court.

27. The evidence of Mitiwen Diangim attempted to identify all of you but her testimony was riddled with inconsistencies, evasions, and lack of explanation of certain aspects of her evidence. For example, at first, she said she had seen all of you in the night of the alleged offence. However, on cross examination, she stated that, only Dickson Miritok, Timothy John and John Okdimeng were at the deceased house at about 3.00 am on 25 February, 2005.

28. This witness said, there was no or little light around Patrick Pitolok’s house at the time of the alleged offence. She did not recall the colour of the clothes, Dickson Miritok, Timothy John and John Okdimeng were wearing. When pressed upon for more details, she became evasive and kept referring to a statement she gave to the police earlier but was not tendered into evidence. Further she said, she was assaulted or threatened by the police. Yet, she was not prepared to discuss that aspect. Furthermore, this witness said, when Dakatuk Lupi woke her up, she did not say anything but followed her to late Patrick Pitolok’s house. This is odd for a human being. No human being would just wake up at about 3.00 am and follow another person without first establishing who is waking him or her up and the reasons for the other person waking them up, unless, there has been some earlier planning and agreement on these aspects.

29. The other witness, Dakatuk Lupi said she was threatened and assaulted by the police and caused her to make up a story to secure her release. She said that on the night of 25 February, 2004, she was asleep throughout the night and only woke up the next day when the sun was up. She further stated that, the whole story she gave to police was a false story.

30. Constable Embetaya and Pauline David were called in a bid to corroborate each other and rebut Dakatuk Lupi’s testimony. Mr Embetaya confirmed that, at some stage in the investigation, he was assisted by Borok Pitolok in boarding at the Cloudlands Hotel. Pauline David testified that, Dakaduk gave her statement free of any intimidation, threat or assault of her by the police.

31. Doctor Inina, was called on the Court’s direction. He is an experienced doctor of twenty years. He confirmed the contents of the medical death certificate. He testified that the deceased, Patrick Pitolok died from a medical condition called Cerebral Haemorrhage, a condition caused by Chronic Myeloid Leukaemia or bleeding in the brain tissue due to trauma following cancer of the white blood cells in the body.

32. Borok Pitolok, the deceased brother, was the last witness called by the State. He testified that, he had laid the complaint with the police leading to your arrests following the death of Patrick Pitolok. He confirmed the medical evidence that, the deceased was ill for over a year and he attended to various medical treatments here in Tabubil and Port Moresby and that the deceased was on treatment at the time of his death. The cause of the deceased death was the subject of a medical post mortem. That post mortem confirmed that the deceased died of the condition described by the medical evidence. Despite that, the witness said, he still suspected you men of causing the death of the deceased through sorcery. He did not however, state in clear terms that you committed an act of sorcery against the deceased or that he had a basis for holding any such belief. He also did not state in any clear terms that, you are reputed or known sorcerers in your area, in order to give rise to his suspicion.

(iii) Did the State Establish a Prima Facie Case?

33. Having considered the evidence, I now proceed to deal with the question of, did the State establish a prima facie case against each of you? The key witness for the State on the first element you being the persons that allegedly committed the alleged offence or the issue of identification was Mitiwen Diangim. As noted, in the earlier part of her evidence, she testified of all of you being involved in the commission of the alleged offence. However, later under cross examination, she identified only Dickson Miritok, Timothy John and John Okdimeng. So there is no evidence clearly identifying the rest of you, being at the scene of the alleged offence and committing it. None of the other witnesses gave any evidence that improved on her testimony. I would thus, uphold the no case submission by Miritok Matfokoem, Luke Mafu, Charlie Mafu and Godfrey Sipik. There is, however, an additional reason to uphold your submission as well as that of Dickson Miritok, Timothy John and John Okdimeng.

34. The reason is this. I am not satisfied that the evidence on your identification is satisfactory or good. The law requires me as the trial judge to warn myself of the dangers of accepting identification evidence and acting on them for the reasons, I set out in the case of The State v. Marety Ame Gaidi,[13] as follows:

"In summary, the principles are these:

1. It has been long recognized that, there are dangers inherent in eye-witness identification evidence;

2. A trial judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example:

(a). a convincing witness may be mistaken; or

(b). a number of witnesses could be mistaken;

3. Provided such a warning is given, no particular form of word need be used;

4. There should be a specific direction to closely examine the circumstances in which the identification was made;

5. Identification by recognition may be reliable but one need to be cautious because there can be mistakes in trying to identify close relatives and friends;

6. All these go to the quality of evidence – if the quality of evidence is good, the identification may be reliable. If however, the quality of evidence is bad, the identification will be bad;

7. The quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions; and

8. There should be an acquittal if the quality of the evidence is bad."

35. The Supreme Court in Jimmy Ono v. The State [14] and more recently in the case of Richard Liri v. The State (2007) endorsed this summation of the principles.

36. Applying these principles, I reminded myself that, there are dangers inherent in eye-witness identification evidence even in clear light or settings. Accordingly, I have warned myself of the fact that, even a convincing witness could be mistaken or that a number of witnesses could be mistaken. Given that risk, it is necessary to closely examine the particular circumstances in which your identification was purportedly made. I therefore closely examined the particular circumstances in which your identification was purportedly made. I find that the purported identification of you seven men was in the dark and in poor lighting. The witness who claimed to identify you was not certain and unclear in her purported identification. She was not even able to say in clear terms, what part each of you played to bring about the death of the deceased in the way the prosecution has alleged. She demonstrated to me as an unreliable witness not sure of anything. She did not even describe in any convincing way how all or anyone of you killed the deceased. I find that, her evidence is less than convincing and in any case, not good for me to legally act upon because, the circumstances in which she claimed she saw you are very poor and there is room for much error on her part. In the end result, I find that the State has failed to produce evidence clearly establishing your identity as the offenders.

37. The other elements the State was obliged to establish by appropriate evidence was the relevant customs of you and the deceased people concerning the custom or practice of sorcery. These required evidence in three respects. First, the evidence had to establish the kinds of acts of sorcery known and practiced in your area, that is, in the Min area of this Province. Secondly, the State was required to establish by appropriate evidence that, you men performed one of the known and identified acts of sorcery. Finally, the State was required to establish by appropriate evidence that, the kind of sorcery you performed is forbidden. Before the calling of evidence, the State was as earlier noted, required to plead in full in the indictment or in the brief facts given in support, the particular facts constituting an alleged act of sorcery according to yours and the deceased custom and that the pleaded act of sorcery was a forbidden act of sorcery.

38. The only evidence on point is the statement of John Boyeng - exhibit A, and thus is relevant. Mr Boyeng basically states that, sorcery is prevalent within the Min area. He does not however, give any specifics of that practice and fails for example to state the kinds of sorcery or acts of sorcery that are known and performed in the area. Not only that, this witness does not speak of the kinds of sorcery existing and practiced in the Min area and the kinds of good or innocent and bad or forbidden acts of sorcery in the Min area. Further and more importantly, this witness fails to make any statement in terms of what is alleged in the brief facts given in support of the indictment or at all. None of the other witnesses who were in a position to give evidence on these aspects such as the deceased own brother, did not give any useful evidence.

39. All there is what the witness Mitiwen Diangim said. She stated that she and others went to the deceased house. Then one of you men went up to the deceased house and brought him out. After taking the deceased out of the house, one of you had a shotgun and used it to kill the deceased in his chest area. But the witness said, she did not hear any gunshots being fired. She went on to say that, after the deceased was shot, you men laid him on the ground. Then four of you proceeded to operate on the deceased body and removed his internal organs. Thereafter, John took some cuscus fur and some other objects and put them on the deceased body and woke him up and then took him back into his house. The witness and another lady were asked to clean the mess on the ground, which they did and then you all left the scene.

40. There is no evidence of how you men were able to get the deceased out of his house without waking anybody else then in the house. Also, there is no evidence as to why there was no gunshot heard either by the witness or any other person in the village at the time. This could explain her evidence under cross-examination, where she said, she saw no gun. There is also no evidence of the deceased body having sustained a gunshot wound. Further and more importantly, there is no evidence of what you men are alleged to have done against the deceased which directly led to his death. Rather, the evidence is that, the deceased was alive when he went back into his house. The evidence also demonstrates that the deceased became ill in the morning of the next day and was taken to the Tabubil Hospital where he died.

41. The evidence before me shows beyond any argument that the deceased died of a medical condition. Dr Inina who carried out the necessary medical examination and post mortem report confirmed that the deceased died of internal bleeding of the brain tissue caused by a known medical condition. The Doctor explained that the deceased was ill for sometime which eventually led to his death. The deceased brother, Borok Pitolok, confirmed in his evidence that, the deceased had been sick and had sought and received medical treatment both here in Tabubil and private and or specialist doctors in Port Moresby.

42. The State submits that, the medical evidence is immaterial and that this Court should ignore it. This is an argument that can be dismissed immediately for the simple reason that, the way in which the indictment is worded, the cause of the deceased death is an essential element. The evidence on this aspect is therefore directly relevant and material, which the Court must consider in order to do justice. The evidence before the Court clearly establishes that the deceased died of a medical condition and not by any act of sorcery or an illegal activity by anyone of you.

43. As I noted already, the indictment does not describe the alleged act of sorcery that brought about the death of the deceased. The evidence called by the State fails to establish a particular customary act of sorcery that is known and practiced in the Min area of this Province or at all. All there is, is the incomplete evidence of Mitiwen Diangim who tries to describe something being done by John to the body of the deceased after which he was restored to life. There is no evidence that, what John or any of you men did to the deceased resulted in his death. The evidence also shows that the death of the deceased became a big issue for your people. However, the evidence fails to show if the meeting of the people in the village established each of you men as the ones who brought about the death of the deceased. In short, the State has failed to produce evidence of a customary practice used to identify sorcerers and that practice or process being applied to identify you men as those responsible for the death of the deceased.

44. The law is clear that, sorcery is only a belief and not a fact. The Sorcery Act makes this clear in its preamble and s.5 of the Act.[15] It is also settled law that in order for a claim in sorcery to succeed, the person making the claim must establish the basis of that claim. Then if the Court finds that, that which is established by appropriate evidence has giving rise to a reasonable basis to hold a belief in an act of sorcery, the claim can be sustained.[16] It follows therefore that, if the evidence adduced to establish the basis for the belief in sorcery fails to provide a reasonable basis for holding a claim or belief in sorcery, that claim must fail. Hence, in my view, in order for the State to establish a charge under s. 7 of the Sorcery Act, the evidence must first establish the custom relating to sorcery in the relevant area and the kinds of acts of sorcery practiced in the area. Next, the evidence must establish one of the identified acts or kinds of sorcery in the area being applied or used and is likely to bring about a forbidden act, such as death, if alleged as in this case and that, there is no intervening cause that has resulted in a bad outcome or forbidden act of sorcery and none other. These are in addition to identifying the alleged sorcerer.

Decision

45. In the present case, I remind myself that, the indictment and the brief facts given in support does not clearly specify an act of sorcery according to the custom in your area. Also, it does not state that, the act of sorcery complained of, is a forbidden act of sorcery. Apart from that, and more importantly, the indictment does not specify and the evidence called by the State does not establish what is the custom in your area in relation to sorcery, the particular kinds of sorcery practiced in your area, which of such practices are good or "innocent sorcery" and which of them are not good or "forbidden sorcery". Similarly, the indictment does not specify and the evidence called by the State fails to establish a particular act of forbidden sorcery, which brought about the death of the deceased as alleged. Further, the State has not produced in evidence, the implements allegedly used to perform the sorcery against the deceased. The evidence instead demonstrates beyond any argument that, the deceased died of a medical condition and not because of a forbidden act of sorcery you performed against the deceased.

46. In these circumstances, I find that the State has failed to properly plead each of the elements of the offence you have been charged with and then establish each and every one of the elements of the offence for the charge against each and every one of you. Accordingly, I find that, all of you do not have any case to answer. Hence, I uphold your no case submissions. In the consequence, I order that the charges against each and every one of you be dismissed. I further order that all of you be acquitted forthwith of each of the charges against you. Furthermore, I order a reimbursement of each of your bail monies on the provision of your respective bail certificates and the original of your bail receipts.

__________________________________________

Public Prosecutor:Lawyers for the State.
Allan Legal Services: Lawyers for the Accused.

^[1] See for a case on point The State v. Lina Mutuarin Wairo (2004) N2685.
^[2] [1976] PNGLR 76.
^[3] [1983] PNGLR 287.
^[4] (1983) N444.
^[5] [1981] PNGLR 1.
^[6] See Blackburn v. Flavelle (1881) 6 App.Cas. 628, 634, Craies on Statute Law, 7th ed., pp. 259-260 in Re Moresby North East Parliamentary Election (No.1): Goasa Damena v. Patterson Lowa [1977] PNGLR 424 and SCR No. 1 of 1982: Re Philip Bouraga [1982] PNGLR 178,
^[7] Opt Cit note 4.
^[8] Opt Cit note 5.
^[9] The State v. Saul Ogerem (2004) N2780.
^[10] The State v. James Gurave Guba (1999) N2020.
^[11] The Power of Amendment in the District Courts Act Under Section 32 of the District Courts Act (Chp.40)”, Melanesian Law Journal, Vol. 16, 1988, p.115 at 129.
^[12] [1990] PNGLR 6.
^[13] (01/08/02) N2256.
^[14] (04/10/02) SC698.
^[15] Discussed in detail in The State v. Maraka Jackson CR NO. 1433 of 2004, decision delivered in Kerema on 24^th October 2006.
^[16] Recently, the Supreme Court decision in John Baipu v. The State SCR 71 of 2003 unreported and unnumbered judgment (2005) brought out this principle in quite clearly.