Unreported Supreme Court Decisions
SC516
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCA 162 OF 1993
BETWEEN
ROGER JUMBO AND AIDAN AWATAN - APPELLANTS
AND
THE STATE - RESPONDENT
Waigani
Amet CJ Salika J
26 March 1997
MITIGATING FACTOR - Belief in sorcery as settled law - Response to cultural phenomenon - If opposed court is required to enable accused opportunity to lead evidence.
PRINCIPLES IN FAVOUR OF ACCUSED - within bounds of reasonable probability.
EVIDENCE - Failure to enable and rejection of evidence is error - Miscarriage of exercise of discretion.
SENTENCE - Manifestly excessive in the circumstances.
Held
Appeal allowed - Sentence quashed and a lesser term imposed.
Cases Cited
Acting Public Prosecutor v Uname Auname [1980] PNGLR 510
Kwayawako v The State [1990] PNGLR 6
Counsel
F Pitpit for the appellant
V Noka for the respondent
26 March 1997
AMET CJ SALIKA J: This is an application for leave to appeal and the appeal by the Appellants against sentences of 15 years imprisonment with hard labour imposed on each of them by the National Court.  They pleaded guilty upon indictment charging them with one count of wilful murder.
The ground for the application for leave and the appeal is that the sentences imposed were and are in the circumstances manifestly excessive, in that the learned trial judge made certain identifiable errors that affected the exercise of his discretion on sentence.
THE FACTS
When the State presented the indictment and the brief facts for the purposes of arraignment, it was conceded that the motive for the killing was their belief in sorcery.  It was conceded as an assumption of fact that the Appellant Awatan’s older brother was killed by the deceased who was believed to be a sorcerer.
On address in mitigation, Counsel for the Appellants also submitted that the killing by the two Appellants was on the basis of honest belief that the deceased was a sorcerer and that he was responsible for an indeterminant number of deaths in the village.  It was submitted that the village community elders had agreed and supported the killing of the deceased by the Appellants.
This submission was amply supported by the answers given by the two Appellants in their respective Records of Interview conducted with them by the Investigating Police, which were tendered as part of the deposition unsworn evidence for the purposes of the pleas of guilty.
Counsel for the State before the National Court, however submitted that the pleas and submissions by the Appellants as to their belief in sorcery should not be given any merit or be accepted simply by their assertion by Counsel from the bar table.  It was contended that evidence was necessary to be led to support the belief and submissions being made of that belief.
The learned trial judge adopted the submissions of Counsel for the State as reflecting the law, and proceeded to sentence the Appellants accordingly.
APPELLANTS SUBMISSION
It was submitted for the Appellants that the trial judge erred in failing to accept the unsworn and unsubstantiated claim and submissions by the Appellants of their belief in sorcery.  The trial judge erred further in failing to give the Appellants the opportunity to call and give sworn evidence to substantiate their beliefs that the deceased was a sorcerer, when the trial judge was minded to accept the submissions on behalf of the State.
RESPONDENT’S SUBMISSION
The Respondent State accepted the law as settled, that belief in sorcery is a mitigating factor, but affirmed the submission made in the National Court that the Court must require the accused parties to lead evidence of their belief in sorcery.  It was submitted that the Court should not merely assume this belief to exist in fact in a community without evidence to support it.
It was submitted that the trial judge accepted the submission by the State and sentenced the Appellants as if the beliefs did not prevail in their community.  The sentence of 15 years should therefore be confirmed as adequate in those circumstances.
THE LAW
The law in relation to sorcery and belief in sorcery, whether for good or ill, is a peculiarly Papua New Guinean law.  It was an attempt to respond to and deal with this cultural phenomenon, which is universally prevalent in the country.
The law as to the belief in the power of sorcery as a mitigating factor on sentence, where such belief was submitted to have been the cause for the offence, is now well settled: see Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510, and Kwayawako v The State [1990] PNGLR 6.
The latter case of Kwayawako v The State (Supra) dealt comprehensively with the relevant provisions of the Sorcery Act 1971.  It concluded that whilst in s. 5 of the Act the existence of and effectiveness of powers of sorcery in any factual sense is not recognised, yet belief which generates such emotion and passion leading to the commission of serious offences such as killing, is a universal fact recognised in Papua New Guinea.
In the circumstances given, the fact that the State, in its presentation of the alleged facts for the arraignment, acknowledged and conceded the motive as being belief in sorcery, as well as the fact that both Appellants had in their respective Records of Interview unequivocally stated the same and which were affirmed by Counsel in submission, it was not sufficient for the trial judge to simply dismiss it because of a submission to the contrary by Counsel for the State.  It having been raised as an important mitigating factor, the Court was duty bound to deal with it in the correct way.
The Court therefore erred in not giving the Appellants the opportunity to have this important mitigating factor properly presented to the Court to be taken into account in their favour.
Again the law in relation to how a trial court should deal with competing and conflicting circumstantial facts upon a plea of guilty by the accused is well settled in this jurisdiction.
On a plea of guilty, the plea admits no more than the essential ingredients of the offence.  The plea does not in itself admit any circumstances of aggravation which may be alleged by the prosecution; nor conversely does it in itself negative any circumstances of mitigation not amounting to exculpation which may be within the knowledge of the accused alone.
If an accused disputes circumstances of aggravation alleged, he must do so by sworn evidence from himself or someone else; if on the other hand the aggravating matter is not sworn to and is only alleged on the one hand, and denied on the other, in an unsworn form, then “it is the duty of the trial judge to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused”.
The right of the accused must be no less with regard to circumstances of mitigation such as those claimed in the present case.  The facts normally are within the knowledge of the accused alone.  Nevertheless the Court must “within the bounds of reasonable possibility” accept the accused’s version.  The Court can reject the explanation if it passes the bounds of reasonable possibility, but we do not think it ought to take this course without giving the accused an opportunity to support his assertion  by his oath and that of any other witnesses it wishes to call.
In the circumstances of this case, it is our view that the learned trial judge also erred in not enabling the Appellants the opportunity to call evidence in support of their submission as to their belief that the deceased was a reputed sorcerer and that the village elders had agreed and authorised them to do the killing.  It is not sufficient for the trial judge to simply reject this submission of the belief of the Appellants and to have accepted the contrary submission for the State.
In the circumstances we do not believe it is necessary to remit the matter to the National Court to enable the Appellants to lead such evidence.  It is unnecessary in our view.  We consider that the assertion, by the Appellants at the earliest opportunity, of their belief and the support by the elders of their village community to kill the deceased as a reputed sorcerer is sufficiently within the bounds of reasonable possibility for the learned trial judge to have accepted without necessarily requiring the Appellants to have led evidence of the fact of their belief.
In the end result the exercise of discretion in imposing the sentence of 15 years in hard labour miscarried and the sentence therefore is manifestly excessive.
We would allow the appeal, quash the sentences of 15 years and impose sentences of 10 years each in hard labour.
Lawyer for the Appellants: Public Solicitor
Lawyer for the Respondent: Public Prosecutor