N7943
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 402- 417 & 432 -439 of 2016

THE STATE

V

REX UMA
DAVID LOIA
STEVEN KENA
JOSEPH KAULE JIMMY
JOHN KANDE PIPI PULMAN
ALEX NOU JIMMY
MORRIS LUKAS

Lihir:  Susame, AJ
2019:  11, 13, 17 & 18 June

CRIMINAL LAW – Offence Of Attempt Murder – S 304 Criminal Code – Intention Essential Element- State Has Not Proved Intention To Kill – Guilty Verdict Returned For Lesser Charge Of Grievous Bodily Harm With Intent - S.318 – Principal Offenders- S 7 Considered  

Cases Cited:

Paulus Pawa v The State [1981] PNGLR 498

Counsels:

Mr. L. Ragan, for the State
Mr. A. Tunuma, for the Accused 

DECISION ON VERDICT

18 June, 2019

1.      SUSAME, AJ:  Three women namely Anna Markus, Helen Soi and Priscilla George were suspected of practicing witchcraft at Landolam Settlement Lihir Island New Ireland Province.    They were accused of removing Joseph Kaule’s daughter and Steven Kena’s hearts through sorcery.  A meeting was arranged and the women were brought for questioning on 22 July 2015.  They were made to sit up on a readymade platform with their hands tied up before a large fire few metres in front.  The women were interrogated and tortured with hot iron rods and other metal objects heated in the fire.  

2.	State alleges that by their actions the accused persons were involved in the attempted murder of the 03 women.  Each of them are charged with three counts of attempted murder. State is also pursuing an alternative charge of grievous bodily harm with intent. 

3.	Let me make a preliminary point before I continue my discussion. Case against accused person Morris Lukas has not been decided even though he had been indicted. He is on bench warrant. The indictment presented before me on 11 June 2019 is still alive and valid. His case will be heard before another Judge as and when he is arrested and brought to court.   

Offence

4.	Offence of attempted murder is provided in s 304 of the Criminal Code. For each of the accused person to be found guilty of the Offence State is required to prove beyond doubt that: 

•	each of the accused persons had the prerequisite intention of killing the 03 women
•	each of the accused persons put their intention into execution  by means to achieve the desired result.  
•	each of the accused persons manifested their intention to kill the person  by some overt act.

5.	Attempted murder is only the planning of murder. Accused person acts towards achieving it but no death occurs. That makes the offence very difficult for the State to prove because it must intention to kill. That is a question of fact. It is therefore necessary to examine accused person’s conduct prior to, at the time and after the act was committed but falling short of death. Court cannot and will not enter a conviction for attempted murder if no safe interference can be drawn from the facts established by evidence. It may however, enter conviction of a lesser charge preferred by the State on the indictment. 

Evidence 

6.	The case hinges purely on State’s evidence.  This include different records of interviews, other documentary evidence, photographs taken of the victims showing injuries sustained oral sworn testimonies of 05 witnesses.  Accused persons opted against calling evidence and elected to remain silent. That is their right. 

7.	The law places no obligation on an accused person to give evidence. He has the option to give evidence or not. Where an accused person decides not to call evidence or call witnesses to support his case the court may draw inference which properly flow from the State’s evidence and reach a verdict. His silence and lack of evidence cannot be taken as admission of guilt and inference of guilt drawn. But, failure to testify may tell against the accused person in that it may strengthen the State’s case by leaving it unexplained and contradicted on vital facts. (Paulus Pawa v The State [1981] PNGLR 498.)

Issues

•	Whether each of the accused persons were the accused persons were positively identified?
•	If so whether the accused persons were merely bystanders, if not how were they involved in the torture? 
•	Whether the accused persons had intention to kill the 03 suspected sorcerers?  
•	
8.	All these issues are issues of fact. 

Established Facts

9.	The following are the facts well founded on evidence heard.  There was general belief in the community at Landolam settlement Lihir the 03 women Anna Markus, Helen Soi and Priscilla George had been practicing ‘sanguma’ (pidgin word for witchcraft). Two other women Lynette and Billy Jacob who had fled in fear of their lives were also accused. 

10.	Steven Kena also called by the name Steven Eskay was alleged to have been the victim of the alleged sorcery practice. It so happened that Joseph’s Kaule’s daughter Lavinia Kaule felt a strange sensation in her heart on or about 22 July 2015 at Landolam Settlement.  A prayer session was held by few members of the Revival Church with Lavinia. It was during the prayer session the names of the 03 women were revealed and provided to Joseph Kaule.  

10.	The general belief was the 03 women had removed Lavinia and Steven’s hearts. The three suspected sorcerers were summoned to appear at a public meeting that was organized for interrogation and for them to explain. The meeting was held in front of Kaule’s house early in the evening on 22 July 2015.  The meeting attracted a very large crowd of well over 100 people. A platform was put up using bamboo poles placed together on two 44 gallon drums. The 03 women had their hands tied up and were made to sit up on the platform. Of the 03 women Helen Soi and Priscilla George were pregnant women.  

11.	Just few meters in front of them a fire was lit. Iron rods and other metal objects were placed in the fire to make them hot with a kettle of water place over the fire. From 7pm to about 11pm or 12 midnight the women were subject to accusations and persistent interrogation by the leaders and other members of the community who had gathered. The women were tortured with hot water poured over them and their bodies burnt and pierced with metal objects.  

12.	Police Officer Adrian Bohani who was called arrived at the scene and rescued the women. Priscilla and Helen receive first degree burns to their body while Anna sustained 1st, 2nd and 3rd degree burns. That is evidenced by separated medical reports tendered into evidence.  

Issue:	Whether each of the accused persons were positively identified? 
Arguments 

13.	Mr. Tunuma’s argument in a nutshell was this. In respect of identification and involvement of the accused persons evidence from prosecution witnesses is of general character and not specific. He argued none of the witnesses gave evidence of accused persons in the act of torturing the 03 women. As regards charge of attempt murder of Anna Markus Mr. Tunuma’s argument as I understood is this. Anna (victim) was the principle witness in that case Prosecution failed to call her as a witness. Her evidence was crucial. That evidence is missing and the charge must fail. That all accused persons should be found not guilty for that count. On the remaining charges Mr. Tunuma argued there is no evidence of attempted murder but there is evidence of the alternative charge of grievous bodily harm with intent.  Mr. Rangan’s argument has also been considered. 

14.	Consideration of evidence is necessary against each of the accused persons. The meeting was held around 7:00pm or 8:00pm. The women were interrogated and tortured from then on until about 11:00pm or 12 midnight when they were rescued by police and taken to the hospital. The meeting was held directly in front of Joseph Kaule’s house. The place was illuminated by the light coming from the large flames of the fire that was made, a florescent light source placed up on the branch of a mango tree just over the meeting place and another coming from Kaule’s house. The 03 women and the accused persons where within the illuminated area. 

15.	A large crowd well over 100 people had gathered around to witness the event that night as it was a matter of community interest.  The accused persons were standing about 7-8 meters from where the 03 women sat up on the platform directly in front on the other side of the fire. The women could easily identify the accused persons. Prior to the meeting Joseph Kaule, John Kande Pipi Pulman, Steven Kena (Eskay) went about questioning Priscilla and her husband of the sorcery allegations.  

16.	The accused persons are no strangers to the 03 women. They all live in the same settlement and are well known to each other.  In court they had no difficulty identifying the accused persons.

17.	I am mindful mistakes are made in difficult and trying conditions in identifying accused persons, resulting in wrong persons convicted. This is not such a case.  Accused persons are known to the witnesses. This was not a case witnesses had a flitting glance. Rather they had clearly and positively identified each of the accused persons before and when the meeting commenced.

Issue: Whether the accused persons were merely bystanders? If not how did each one of them get involved?

18.	This requires examination of evidence of conduct each accused persons exhibited.  I have had careful examination of evidence of witnesses Helen Soi Priscilla George and George Esmap.    

REX UMA

19.	In the record of interview Rex denied any involvement. Helen said leader Kaule, Rex & Alex questioned them if they were sorcerers. Then Rex John Kande Pipi and Basten threatened to make fire and burn them. They told the boys to burn them. Priscilla said Rex Uma threatened them to admit or hot water would be poured on them if they do not bring back Kaule daughter’s heart. Rex was the one who questioned Anna to admit how she performed her sorcery practice. He also threatened to burn them George sated Rex & and Kande said “one bed & one plate if he knew any information about his wife he should say it out.  None of the witnesses gave evidence Rex was involved in the act of actual torture of any of the 03 women.   However, from the evidence I conclude Rex Uma by his conduct encouraged and abetted the youths to torture the 03 women.  

DAVID LOIA

20.	David also denied being involved in the record of interview. Helen makes no mention of what David in her evidence. Evidence came from Priscilla and George. Priscilla stated David was the one who gathered the wood. He held a match and started the fire. Then metal objects were shoved into the fire. George also confirm it was David who started the fire. None of the witnesses gave evidence of David being involved in the act of torturing the women. I find that by his conduct David abetted and encouraged others in the torture of the 03 women.  

STEVEN KENA

21.	Steven denied being involved in the record of interview. Priscilla stated Steven was one of the alleged victim of the alleged sorcery. It was claimed his heart had also been removed. Steven was heard saying in Kimbe they built fires and burn suspected sorcerers with hot metal objects and pour hot water on their bodies and make them admit. Similar method will be used to make the women admit.  Her evidence was supported by Helen and George.  I find that by his conduct Steven abetted and encouraged the youths to torture the women. 

JOSEPH KAULE JIMMY

22.	With respect to Joseph evidence from the three witness of his involvement is overwhelming. He was the principle instigator who initiated the meeting.  He provided names of the 03 women provided by the prayer group as the sorcery suspects. Word was then sent for the women to attend a public meeting which was being arranged for questioning.  Joseph took active part in the interrogation of the women about their alleged sorcery practices and whether they had removed his daughter’s heart and have it restored.  He issued threats for them to admit or they will be burnt.  However, evidence is lacking he used objects to torture the women.  I find by his conduct Joseph abetted and encourage other youths to torture the women. 

JOHN KANDE PIPI PULMAN

23.	John denied active participation in torturing the women in the record of interview. Although John denied State’s evidence is overwhelming against him.   John also played a leading role in the whole affair. Priscilla, Helen and George gave evidence of what he did and said prior to the meeting and at the meeting. He went around questioning the suspected sorcerers prior to the meeting. At the meeting he did a lot of questioning and accused the women of the alleged sorcery practices and kept on probing for the women to admit. He issued threats to make them confess. When they denied the youths burnt them with hot metal objects and hot water was poured over them.  By his conduct John Kande abetted, encouraged and stirred up the youths to torture the women with hot iron objects and with hot water. 

ALEX NOU JIMMY

24.	Alex is the younger biological brother of Joseph Kaule. In the record of interview Alex denied being involved. Priscilla, Helen and George gave evidence of how Alex was involved. He helped to set up the platform at the crime scene. He actually poured hot water on the women. 

25.	From the evidence Alex was an active participant with other youths in the torture of the women. 
26.	As it emanates clearly from the evidence the accused persons were not mere bystanders. By their words and deeds each of them encouraged and abetted the torture of the 03 women. That basically the answer the issue posed.   

27.	Now to Mr. Tunuma’s argument on Anna Markus not giving evidence.  That argument does not hold water.  Even though prosecution failed to call her, evidence adduced and discussed above had convincingly covered the case involving her. Had she been called she would have given additional evidence for the prosecution.  

Issue: Whether the accused persons had intention to kill the 03 suspected sorcerers?  

28.	Court has heard evidence shouting came from the crowd to kill the 03 women. However, evidence is lacking from the State any of the accused persons issued such instructions. 

29.	There is no iota of evidence the accused had discussions and colluded, plotted or planned to use the occasion to kill the suspected sorcerers. Nor is there evidence they issued specific directions at the meeting for killing of the women.  

30.	The intent and purpose of the meeting was for interrogation of the suspected sorcerers. To force them to admit and also to make them restore Lavinia’s heart that she may live. 

31.	Evidence is such that no inference can be safely drawn that the accused had the prerequisite intention to kill the 03 women in the course undertaken. Accused persons are therefore given the benefit of doubt.  

32.	Accordingly they cannot be criminally liable for the offence of attempted murder.  Alternatively, I find evidence is convincing to support a conviction of a lesser charge of grievous bodily harm with intent under s 315. By the conduct each of the accused persons exhibited they are held as Principal offenders by operation of s 7. 

33.	State has proved its case beyond all reasonable doubt. Accused persons; Rex Uma, David Loia, Steven Kena, Joseph Kaule Jimmy, John Kande Pipi Pulman and Alex Nou Jimmy are guilt of 03 counts each of grievous bodily harm with intent.  I order their bail is set aside and they are taken into custody to receive their sentence.
_______________________________________________________________
Public Prosecutor:		Lawyer for the State	
Public Solicitor:		Lawyer for the Prisoner