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Ketapi, Regina v [1971-72] PNGLR 44 (17 March 1971)

[1971-72] PNGLR 44

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V.

IU KETAPI AND ANOTHER

Goroka
Clarkson J

15-17 March 1971

CRIMINAL LAW - Murder - Sentence - “Pay back” killing - Principles to be applied - The Criminal Code, s. 305[xxix]1 .

Th

The ignorance of the accused, their upbringing and the strong tribal tions in the society in whic which they have lived and in obedience to which their crime of murder was committed, may constitute extenuating circumstances which would make the imposition of a sentence of death unjust within the meaning of s. 305(3) of The Criminal Code.

The accused were charged with the murder of E. E. had previously been acquitted of the manslaughter of a member of the accused’s village but was in custody in respect of a threat which he had made against another member of the accused’s village when the accused attacked him and inflicted the fatal wounds. The accused were convicted of murder. The accused’s killing of E. was in accordance with the custom of “pay back” in the area in which both the accused’s village and the victim’s village were situated. The killing was executed after a decision that the victim must die as a “pay back” for the killing of the member of the accused’s village in respect of which the victim had been acquitted.

Held:

In the circumstances, that it would not be just to impose the penalty of death and that the appropriate sentence was that the accused be sentenced to life imprisonment.

Sentence.

Iu Ketapi and Uamei Wraiora (the accused) were convicted of the wilful murder of Esaki Yoi Yoi at Kainantu on 16th November, 1970.
All the relevant facts relating to the sentences imposed upon the accused appear in the judgment.

Counsel:

Harrison, for the Crown.
Stevenson, for the accused.

17 March 1971

CLARKSON J: Th accusedcused have been convicted of the wilful murder of Esaki Yoi Yoi at Kainantu on 16th Nove 1970.

The starting point is in April, 1970. Aiamontina and Unantu are two villages close to each other and both close to Kainantu. I am told the clans of these two villages have not displayed hostility towards each other before that time. In April, 1970, Tarami, a villager from Aiamontina, was detected by Sipisi, a villager of Unantu, stealing from the gardens of the latter village. He was taken to Unantu and before a number of men, the leader of whom was Councillor Piaki who indicated his intention of handing Tarami to the police. It is sufficient to say that Tarami died as a result of a misdirected punch by Sipisi which ruptured his spleen. Sipisi and Esaki were committed for trial for the killing of Tarami. Sipisi was convicted of manslaughter and sentenced to nine months’ imprisonment. The Crown called no evidence against Esaki who was acquitted.

Under the savage custom of pay back accepted in that area, it was to be expected in both villages that some move would be made by Tarami’s village to revenge his death.

From Inspector Curtis’ inquiries, it appears that the price of Tarami’s death set by the villagers of Aiamontina was the death of those thought jointly responsible for Tarami’s death, namely Esaki, Irau and Councillor Piaki. Sipisi who struck the fatal blow has, so far at least, been disregarded because he went to gaol.

The events with which this trial has been concerned occurred in November, 1970. Shortly prior to 16th November, probably on 15th, Esaki “marked”—that is, made a threatening gesture towards—Councillor Tasume of Aiamontina. Apparently as a result of a complaint by the Councillor, Esaki was taken into custody and was to appear before a magistrate on 16th November. Councillor Tasume recounted these events to his fellow villagers, the two accused who thereupon decided that Esaki, although in police custody, must die as a pay back for the death of Tarami.

They planned to attack Esaki as he was being taken to court. They travelled to Kainantu. Iu stabbed Esaki while he was being escorted to the court and Uamei stabbed him as he was being put in an ambulance.

It was cold premeditated murder, which showed at least a complete disregard if not contempt for the processes of the law which had acquitted Esaki of responsibility for Tarami’s death and by which Esaki was being brought to court because of his threat to Councillor Tasume.

The present assessment of the situation as made by Inspector Curtis is that Councillor Piaki and Irau live in fear of their lives and that the villagers of Unantu, shocked by the killing of Esaki, a young man in the prime of his life, await the opportunity to revenge his death. The unintentional killing of one man has resulted in the death of another and in the lives of at least three others being placed in jeopardy.

The conduct of the prisoners was a challenge to the administration of justice in the Territory.

Any person who commits the crime of wilful murder is liable to the punishment of death but, by an amendment in 1965 to s. 305 of The Criminal Code, where a court finds a person guilty of wilful murder two matters for consideration immediately arise. These are, firstly, a consideration whether there are extenuating circumstances which would make the infliction of the death penalty not just and, secondly, if such circumstances exist what sentence of imprisonment, being for life or some lesser term, the court thinks just to impose in place of the death penalty.

The section gives no guide as to the matters to be taken into account in these inquiries except that sub-s. (5) provides that the question of whether extenuating circumstances exist and if so what weight is to be given to them are questions “to be decided in the light of the facts of and the circumstances of and surrounding each individual case”.

Prior to the 1965 amendment where a verdict of guilty of wilful murder had been returned the practice had developed of the trial judge, in most cases, recording the mandatory death sentence and preparing a report for the Administrator which included, where appropriate, a recommendation that the death sentence be commuted to a specified term of imprisonment. This report formed the basis of a recommendation by the Administrator to the Governor-General. Very rarely was the trial judge’s recommendation not followed. A perusal of these reports shows that the judges of the court were influenced in their recommendations not only by such things as the immediate circumstances in which the crime was committed, but also by more general considerations such as the state of sophistication of the offender and the state of development of the community in which he lived. As appropriate, the prisoner’s knowledge of the ways of the government, the degree of accessibility to and protection afforded by government agencies in his area and the nature and force of native custom were all taken into account, and clearly when the 1965 amendment was passed it was drawn in terms wide enough to enable the trial judge, when sentencing, still to consider these and similar matters which would not ordinarily arise for consideration when imposing punishment in sophisticated societies.

In the present case I am satisfied that the ignorance of the accused, their upbringing and the strong tribal traditions which bind them in the society in which they live and in obedience to which the killing was committed, constitute extenuating circumstances for the purpose of s. 305(3) of the Code.

I do not shrink from the problem which this view apparently creates for it can be argued that the more primitive the society the more it is protected from the only irrevocable sanction which it understands; death.

But I think it wrong to assume that social enlightenment in primitive communities is achieved, or even achieved more quickly, by the imposition of death sentences. The practice of pay back killings shows no sign of destroying itself. Further, I am not prepared to assume that imprisonment, a novel form of punishment to the real primitive, is ineffective. Advancement is aided by the efforts of a great number of people in a great variety of callings. The court plays its part in this process.

In this context the function of the court is not merely to inflict punishment but to encourage acceptance of the general law as a step towards a more orderly, humane and unified society. The aim set will be understood by many in the community and should not be compromised because others do not at present understand it.

I should make it quite clear that these remarks are not concerned with the merits or otherwise of the death sentence as a punishment for wilful murder generally. I seek only to explain my reasons for applying s. 305 of the Code in the way I have in this case. Death remains as a penalty for wilful murder in appropriate cases but in a primitive community where daily life is controlled not by the general law but by powerful communal customs and antipathies what may appear as a judicial pay back does not seem to me to be an advance towards the desired object.

Nor do I think this view to be a novel one. It appears to have been accepted by the Executive and by members of this Court both before and after the 1965 amendment to The Criminal Code and it accords with the views of Gore J., a very experienced member of this Court, expressed over forty years ago (Territory of Papua Annual Report 1928/9, p. 20).
However, having found that it would not be just to impose the penalty of death, I can see little that can be said in the accused’s favour.

I can see no reason, even considering their cases separately, as I am obliged to do, to differentiate between them. Substantially they are of the same age and have had little education. They are both adult men who have spent some short time away from their village. The murder of Esaki was carefully planned in advance and the plan was ruthlessly and cleverly executed in circumstances which indicate, as I have said, at least a complete disregard if not contempt for the ordinary processes of the law.

I intend that the punishment I now impose will be not only a just punishment to the accused but a deterrent against the pay back killings which are at present expected.

[His Honour addressed certain remarks to the accused and imposed the sentence of life imprisonment.]

Sentence of imprisonment with hard labour for life.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.
Solicitor for the accused: W. A. Lalor, Public Solicitor.

[xxix]The relevant provisions of s. 305 appear in the judgment.