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Feama, Auri, Hagima, The State v [1978] PNGLR 301 (22 August 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 301 - The State v Aubafo Feama, Nama Auri, Kafidiri Kududebe Hagima

[1978] PNGLR 301

N165

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

AUBAFO FEAMA, NAMA AURI, AND KAFIDIRI KEDUDEBE HAGIMA

Daru

Wilson J

15-17 August 1978

22 August 1978

CRIMINAL LAW - Particular offences - Improperly interfering with dead body - Cannibalism - “Improperly interfering” - Tests to be applied - Objectivity - Standard of moderate Melanesian man - Change in community standards - Effect of Independence - Relevance of custom - Repugnancy to general principles of humanity - Whether contrary to intent of Constitution - “Lawful justification and excuse” - Long standing tribal practice not amounting to lawful justification or excuse - Criminal Code s. 241[div]¹.

WORDS AND PHRASES - “Improperly interfering” - Notions of propriety - Tests to be applied - Criminal Code s. 241[dv]².

CRIMINAL LAW - Sentence - Improperly interfering with dead body - Cannibalism - Cannibalism considered to be serious type of “improper interference” - Need to draw distinction between two types of cannibalism - Sentence to reflect community attitudes - Need to strike a balance - Notion of public protection to be viewed in context of a developing criminal justice system - General deterrence given priority - Lack of sophistication a mitigating factor - Time in custody taken into account - No precedent - Sentences of 15 months imprisonment imposed.

Three accused were jointly charged with improperly interfering with the dead body of a man, contrary to s. 241 of the Criminal Code Act 1974. The evidence established that the accused who lived in an extremely remote and primitive area of the Western Province of Papua New Guinea, where cannibalism was a practice and where it is still practised by those who are ignorant of its wrongfulness, had together cut off the leg and part of the flesh from a dead body (which was in the process of being buried) and had subsequently cooked and eaten the flesh.

Held

(1) What is “improper” within the meaning of s. 241 of the Criminal Code is to be measured against “the recognised standards of common propriety” the “current standards” and “contemporary community standards”.

R. v. Noboi-Bosai [1971-72] P.N.G.L.R. 271, Norley v. Malthouse [1924] SAStRp 38; [1924] S.A.S.R. 268 and Crowe v. Graham [1968] HCA 6; (1968) 121 C.L.R. 375 followed.

(2) The standards of propriety to be applied are those of the general community.

(3) Accordingly, the question to be asked in this case was whether the conduct complained of offended community standards of propriety in the circumstances when, and in the manner in which it was presented to the average contemporary Papua New Guinean.

Crowe v. Graham [1968] HCA 6; (1968) 121 C.L.R. 375 at p. 379 and p. 397 and The Government of Papua New Guinea v. Moini [1978] P.N.G.L.R. 184 referred to.

(4) The average contemporary Papua New Guinean will be one with average attitudes to matters of life and death and to matters relating to food which is good to eat. He will not be a man given to histrionics or extreme abhorrent reactions, but, on the other hand, he will not be lacking in some emotional feeling and he will have the ability to think. He will be affected by the traditions of his ancestors and he will be aware that he is living in a changing world. He will be a villager in heart and in practice — a moderate Melanesian man.

(5) However strong the evidence of custom might have been, such a custom, in so far as it condoned acts of cannibalism, could not be adopted and applied because it is repugnant to the general principles of humanity, (Constitution Sch. 2.1) and, if a custom must necessarily be unworthy and demeaning to the dignity of the individual (Preamble to the Constitution), and would certainly be contrary to the spirit and intent of the Constitution which acknowledges that all persons, as individuals, are entitled to certain fundamental human rights and freedoms.

(6) Accordingly, the cutting of a dead human body in the manner and circumstances of this case amounted to “improperly interfering” with a dead human body within the meaning of s. 241 of the Criminal Code.

(7) A long-standing practice merely because it is long standing is not “lawfully justified” or “lawfully excused”.

(8) The long standing practice of cannibalism of the people of the particular area over generations did not provide the accused with a defence of “lawful justification or excuse”.

(9) Accordingly the accused should be found guilty as charged.

(10) Taking into account that cannibalism is to be regarded as a serious type of “improper interference” under s. 241 of the Criminal Code, the need to distinguish between the two main categories of cannibalism (a) the killing with a view to eating and (b) the cutting and eating of a dead body, the need to reflect community attitudes, the lack of precedents in sentencing and the lack of sophistication of the accused as a mitigating circumstance, the appropriate penalty to impose was an effective sentence of 15 months imprisonment (the maximum sentence being two years).

Trial

This was a trial of three accused on charges of improperly interfering with the dead body of a man, contrary to the provisions of s. 241 of the Criminal Code Act 1974.

Counsel

M. Thompson, for the State.

A. Jackson, for the accused.

Cur. adv. vult.

21 August 1978

WILSON J: The facts as to what occurred on 6th August, 1977 are not in dispute. On that day the three accused men heard that two men had died at Deflemoso Village, so, wanting to eat some meat from those bodies, they went to that village where they found two men from that village, the witnesses Garumai Wamusa and Elai Mingu, in the process of burying the bodies of two of their relatives at a garden place on the outskirts of the village. The three accused interrupted the two witnesses and said “we are coming to cut this dead body; we want to take the meat with us”. Garumai and Elai were frightened and did not approve of what subsequently happened. The accused Aubafo Feama and Nama Auri thereupon cut the right leg off the body of the deceased, Hauwani Gafaio, with bamboo knives, whilst the accused Kafidiri Kududebe Hagima, who had helped his two companions to find the place where the dead bodies were and who wanted some flesh to be taken from the body of the deceased, was present and watched. After the right leg had been removed at the thigh, some flesh was cut off from the muscles of the left leg and also from the buttocks. The three accused then left that place taking the meat with them and went home to Waripi, the village where Aubafo and Nama lived. They intended to eat the meat. I find, on the evidence before me, that the three accused did subsequently cook and eat the meat; that is the only reasonable inference to draw from the undisputed evidence and it was not suggested otherwise. After the three accused had left the garden place from where they had taken the meat, the two witnesses buried what remained of the two bodies and then went home.

Each of the three accused were ignorant of the law known as “misconduct with regard to corpses”. (It is noted here that ignorance of the law affords no excuse in a case such as this — see s. 22 of the Criminal Code Act.)

The evidence that was produced at the trial established that the three accused, the first two State witnesses (Garumai Wamusa and Elai Mingu) and Mr. Obi Sisiba, the witness who gave expert evidence about a number of matters, all come from a remote part of the Nomad area within the Western Province. Their several villages are about one day’s walk apart. Although belonging to different tribes, they all belong to the Biasi people. The terrain is a mixture of flat and hilly country, but it is not mountainous. It is covered mostly by jungle. The major river in the area is the Strickland.

The staple diet of the people is taro, bananas, sago, yams, sweet potatoes, cabbages and sugar cane. Few fish are caught, and meat is hard to come by. Such hunting which is done is usually done prior to a feast; birds, pigs and cassowaries, if found, are shot with bows and arrows and in more recent times with guns. The people live in houses made of bush timber; they are built on posts and sago leaves are used for making the roofs. Most people wear grass skirts and occasionally tapa cloth, but some European clothes are now to be seen. Many of the villagers have only seen Europeans on a few occasions, and the influence of the administration and the missionaries in some areas has been minimal; as an illustration of this, the witness Garumai said he had only seen a kiap on five occasions in his life and he did not know what a missionary was; the witness Elai likewise did not know what a pastor does and his contact with the government appears to have been limited to seeing the police on occasional patrols. The lack of sophistication of the people was further illustrated when Elai acknowledged that he did not know how to mark the passing of time and explained that he does not know the name of the currency of this country, and when Garumai said that he had never seen a steel knife and was even unaware that there is a law prohibiting homicide.

There is widespread belief in sorcery in the region. The people are frightened of Sanguma men who are thought to be responsible for the high death-rate amongst young people. Sanguma men, it is thought, eat human flesh.

With reference to the customs of these people, there is no doubt that in the past the people used to eat dead human bodies for meat. Since the Government came to the area in 1962, that custom has gradually disappeared and the practice now is to bury dead bodies. As Garumai put it: “Since when the Government came, we are not eating people — we bury them”. In the course of the last 16 years the old custom has from time to time been practised, but by and large the people are aware that such practices are disapproved of by the government and unlawful. For a time, and even to this day, some villagers who want to eat human flesh in the manner of their forebears sneak off into the bush to do so “because they don’t want the kiaps to be cross”. Even Constable Ua, who was reluctant to admit that such practices still existed, acknowledged that Sanguma men kill people, “take their flesh out”, and sometimes eat it. Elai, although frightened to say very much about these things, admitted that “now Sanguma men eat human remains”. Those people in that area who now believe that dead bodies should be buried are as opposed to cannibalism as those who still practise it (like the three accused) are ignorant of its wrongfulness.

In reaching a conclusion as to the customs of the Nomad people, I have relied greatly upon the evidence of Mr. Obi Sisiba and to a lesser extent upon the evidence of Garumai Wamusa and Elai Mingu. Except to the extent that his evidence was corroborated by the other witnesses, I have been unable to rely upon the evidence of Constable Ua Ainau, who, although he is a sincere police officer who unquestionably has worked with dedication in that area for these past seven years, gave the impression of being somewhat naive and not a good assessor of custom and human behaviour.

THE CHARGE

The three accused are jointly charged that they did on 6th August, 1977 improperly interfere with the dead body of a man. The name of the deceased was Hauwani Gafaio. The three accused are charged under s. 241 of the Criminal Code Act 1974 which provides:

“241. MISCONDUCT WITH REGARD TO CORPSES

Any person who, without lawful justification or excuse, the proof of which lies on him:

(a) neglects to perform any duty imposed upon him by law undertaken by him, whether for reward or otherwise, touching the burial or other disposition of a human body or human remains; or

(b) improperly or indecently interferes with or offers any indignity to, any dead human body or human remains, whether buried or not,

is guilty of a misdemeanour, and is liable to imprisonment with hard labour for two years.”

No point was taken as to the identity of the three accused or as to the identity of the deceased; there is no dispute that the three accused were responsible for cutting off the right leg of the dead human body of the deceased and some flesh from his other leg and from his buttocks with the intention of subsequently cooking and eating the meat. The complicity of each of the three accused was admitted in the several records of interview, which were tendered and received in evidence, and established by the evidence of the State witnesses; the complicity of Aubafo Feama and Nama Auri arises by virtue of s. 7(a) of the Criminal Code Act, and Kafidiri Kududebe Hagima arises by virtue of s. 7(c).

The questions which arise for my consideration are:

1. whether the conduct of the two accused Aubafo Feama and Nama Auri, in cutting up the dead human body of the deceased in the manner and circumstances previously described, amounts to “improperly interfering” with a dead human body. What do the words “improperly interfering” mean?

2. whether, by virtue of any practice cognizable at law, such cutting up of the dead human body of the deceased may be said to be “lawful justification or excuse”. Does the long-standing practice of cannibalism provide these three accused with a defence of “lawful justification or excuse”?

WHAT DO THE WORDS “IMPROPERLY INTERFERING” MEAN?

It was not contended that the act of cutting did not amount to an interference, and it would be idle to suggest otherwise. It might have been contended that it did not involve impropriety, but, for reasons which I would not wish to question, no argument along these lines was addressed to me. I could therefore be pardoned for abandoning further consideration of the words “improperly interfering”. However, out of respect for the well-considered views of Prentice J (as he then was) in R. v. Noboi-Bosai[dvi]³ which may be the only relevant reported case on cannibalism in this country (and perhaps anywhere in the world) in this decade, I should embark upon some discussion of the meaning of the word “improperly”.

This is a question of fact to be decided by me as the tribunal of fact. It is to be answered by examining the conduct in the light of all the circumstances. Common-sense and a sense of propriety must supply the answer to this question.

I agree with Prentice J (as he then was) that the way to approach something in the nature of a definition of a word like “improper” is to measure the subject conduct against “the recognised standards of common propriety” (see Norley v. Malthouse[dvii]⁴) or the “current standards” and “contemporary community ... standards” (see Crowe v. Graham[dviii]⁵).

Walters J in Attorney-General v. Huber[dix]⁶ in a case in which consideration was given to the meaning of the word “indecent”, offered some consolation to those who have the sometimes unavoidable task of declaring community standards when he said:

“It may well be that there is room for some improvement in our laws concerning the concept of indecency and that we should not want to remain, as it were, in a state of “intellectual refrigeration”, unable to take account of changing situations and attitudes. Nevertheless, it may equally be said that because in certain quarters some things may be regarded as permissible, it does not necessarily follow that a court is obliged “to show its own judicial broadmindedness” and to give its approbation to what is plainly opposed to general standards of decency currently accepted in the community, or to condone what in reality amounts to an offence against the law. To apply the language of Wickham J in Mackinlay v. Wiley ([1971] W.A.R. at p. 24), the Court should take care “not to assume a pose of standing astride the generations by the apparent adoption of avant-garde views for the purpose of making a show of being ‘with it’ ”. It is true that the Court is not censor morum; that it does not presume to tell individual members of the community what their morals should be. Yet in a case such as that which is before us, the Court must attempt to judge the current standards of decency on the basis of what is known to be — as far as it can be known to the average person — the standards of modesty of ordinary men and women, unaffected in its reasoning, on the one hand, by the views of those who advocate an unrestricted licence for any particular section of the public to see, hear and experience what they wish to, and, on the other, by the views of those who attempt by their so-called garrulity to define traditional community standards. How far the provisions of the existing law may accord with some aspects of modern thinking, it is no part of the duty of this Court to inquire; the sole matter for consideration is whether the impugned behaviour will offend against requirements of the law as it now stands, the criteria being laid down in the tests which I have discussed.”

In the same case Wells J was less consoling when his Honour said (at p. 205):

“The form of the legislation leaves a court, in my opinion, with no alternative but to fix a standard conformable with the tenor of the legislation and the traditional methods and approaches of the law.”

At this time when I am called upon to decide the first post-Independence case concerning cannibalism, a case which has excited a good deal of public interest, and when my decision involves departing from the previous law in this country (see Noboi-Bosai’s case (supra)) I take heart from the words just quoted. I am in no doubt that the impugned behaviour of the three accused men has offended against the requirements of the law in Papua New Guinea at this time.

Wells J, in emphasizing the flexibility and changeability of community standards, pointed to the responsibility which the courts have. His Honour said (at p. 206):

“It is right to emphasise also that in endeavouring to arrive at a fair and just view as to what those notions and standards are, we ought scrupulously to guard against the assumption that, at some definite or indefinite time in the past, they petrified and are now inflexible and unchanging. Such an assumption would be obnoxious to those principles of our law whose operation turns on what is reasonable from the point of view of the community at large. It is the plain, sober and simple notions of today’s community to which we must have regard, not to the notions of the last century’s the last decade’s, or even last year’s, community. For example, revolutionary changes have taken place in attitudes towards what may properly be discussed in newspapers, on radio and on television. Things are analysed in or through those media today with an almost clinical precision that would have caused deep affront to generations of adults living, say, between World War I and World War II. But some standards remain, and we are charged with the duty of saying what they are. It is of no use seeking an analogy in the views of those who scrutinize the moral standards of today, and who affirm that the diversity of such standards is so great, and the absence of any standards amongst sections of the community so obvious, that it is impossible to postulate a standard of common morality. The legislature has, in effect, as I read the Act, said that ordinary standards of decency and decorum exist; they must be discovered and defined; and courts cannot wash their hands of the problem.”

It is implicit in my judgment that I consider that community standards have changed since cannibalism was a widespread practice in this country. I need not determine when that change occurred and it is unnecessary for me to state whether I consider that such a change occurred before or after Noboi-Bosai’s case (supra) was decided. I am charged with the duty of saying what those standards were in August 1977.

One of the controversial questions which arose following Noboi-Bosai’s case (supra) was the question of precisely what community should be looked at for the purposes of assessing community standards. Prentice J in that case looked to the particular primitive Gabusi community at the time of the cannibalistic happenings described in that case, viz. 26th July, 1971. I cannot agree, with all due respect to his Honour, that community standards are measured so subjectively or so narrowly. The section of the Code under consideration here makes it an offence throughout Papua New Guinea to indulge in conduct of a certain type, and the Code is, after all, “an Act to establish a Code of Criminal Law for Papua New Guinea”. In my view the standards of propriety to be applied are the standards of the general community. Windeyer J in Crowe v. Graham[dx]⁷ referred (at p. 399) to contemporary standards currently accepted by “the Australian courts”. By parity of reasoning the standards to be considered in this case are those accepted by the Papua New Guinea community, albeit applied in a primitive village setting. Wells J in Attorney-General v. Huber[dxi]⁸ said (at p. 205):

“It would be plainly impossible to fix any sort of relevant subjective standard, and it would follow that an objective standard must be chosen.”

Of course, conduct cannot be classified as improper in the abstract without regard to the surrounding circumstances. The question is whether it would offend community standards of propriety in the circumstances when, and the manner in which, it is presented to the average Papua New Guinean (Crowe v. Graham[dxii]⁹ per Barwick C.J at p. 384 and per Windeyer J at p. 396).

I am reinforced in reaching my conclusion in relation to this aspect of the case by reflecting upon those important political and constitutional events in Papua New Guinea which have occurred since Noboi-Bosai’s case (supra) was decided. I refer, in particular, to the obtaining of independence and the acceptance of a Constitution. It is to be remembered that the development of “the national community as a whole” is declared as one of the basic social obligations. Unlike Prentice J I find no difficulty in accepting that the legislature would have intended to impose “uniform blanket standards” of decency and propriety on all the peoples of the country, especially appertaining to conduct with regard to dead bodies. After all, in other legislation such, for example, as the Cemeteries Ordinance 1955 (as amended) the legislature intended to impose uniform blanket standards appertaining to cemeteries and the methods of disposing of dead bodies.

Even if I am wrong in concluding that the standards to be applied are the standards of the general community, and even if a reading of the cases referred to by Prentice J at p. 284 of his judgment should have persuaded me to hold otherwise, I am firmly of the opinion that the standards to be applied in this case are not confined to the standards of those Biasi people who, notwithstanding the degree of administrative influence since 1962, still adhere to the practices of their ancestors. Even Prentice J did not so confine them in Noboi-Bosai’s case (supra). If one measures the conduct indulged in by the three accused against the standards of the general Biasi community in August 1977 their conduct was still “improper”; it is to be remembered that the evidence established that the general practice now is to bury dead bodies. The disapproval of the conduct of the accused as shown and expressed by Garumai and Elai and the evidence of Mr. Obi Sisiba and Constable Ua to the effect that the reaction or general feeling of the people of Waripi, Agima and Deflemoso to the practice of men eating the flesh of dead bodies is “not good”. In this respect times and habits have changed since 1971 which was the material time when Noboi-Bosai’s case (supra) was decided.

Some assistance in determining how large a community should be considered for these purposes is to be found in determining issues of foreseeability. Even in the tort of negligence on the highway where questions of causation arise the measure is no narrower and no more subjective than “any reasonable driver of a motor vehicle in Papua New Guinea in the Highlands”— see The Government of Papua New Guinea v. Elizabeth Lauwasi Uguna Moini[dxiii]¹⁰. In so far as that case is of authority, the contemporary community standards of the ordinary Papua New Guinea villager are to be examined and not the narrower and more subjective standards of the particular primitive Biasi community at the time of the cannibalistic happenings described in this case. I am of the opinion that, in applying this test, it is the average contemporary Papua New Guinean standard which must be applied.

The average contemporary Papua New Guinean will be one with average attitudes to matters of life and death and to matters relating to food which is good to eat. He will not be a man given to histrionics or extreme abhorrent reactions, but, on the other hand, he will not be lacking in some emotional feeling and he will have the ability to think. He will be affected by the traditions of his ancestors and he will be aware that he is living in a changing world. He will be a villager in heart and in practice — a moderate Melanesian man. To adopt the words of Wickham J in Mackinlay v. Wiley[dxiv]¹¹:

“... in the relevant respects he will be neither conservative nor radical, intelligent nor stupid, naive nor cynical, prim nor libertine, imaginative nor dull, and in short whatever extremes may be mentioned he will be neither one side of the line nor the other, but right on it.”

It was argued by Mr. Thompson for the State that, in interpreting s. 241, I should look to the circumstances prevailing in 1974 when the Code was enacted, and it was argued by Mr. Jackson for the defence that, if it is appropriate to examine the intention of the legislature in interpreting that section, I should look at the circumstances prevailing when the offence of misconduct with regard to corpses was first created — the previous s. 236 had its origins in the Queensland Code of 1899 which was adopted into Papua by the Criminal Code Ordinance No. 7 of 1902. Notwithstanding the able arguments presented on both sides, I am not persuaded that with legislation of this type it is appropriate to look at the circumstances prevailing at either of the two points of time mentioned.

Although Mr. Jackson did not invite me to apply custom in regard to cannibalism in deciding the propriety or otherwise of the conduct, I should say something about custom, because it may, in certain circumstances, be considered to have application when deciding whether certain conduct is proper or not. Evidence of custom was admitted in Noboi-Bosai’s case (supra) and apparently used to assess the propriety of the behaviour. In that case s. 7(b) of the Native Customs (Recognition) Ordinance was considered. In the present case the recognition of custom is controlled by Sch. 2 of the Constitution which provides:

“Sch. 2.1. Recognition, etc., of custom

(1) Subject to Subsections (2) and (3), custom is adopted, and shall be applied and enforced, as part of the underlying law.

(2) Subsection (1) does not apply in respect of any custom that is, and to the extent that it is, inconsistent with a Constitutional law or a statute, or repugnant to the general principles of humanity.

(3) An Act of the Parliament may:

(a) provide for the proof and pleading of custom for any purpose; and

(b) regulate the manner in which, or the purposes for which, custom may be recognised, applied or enforced; and

As I suspect Mr. Jackson appreciated, however strong the evidence of custom might have been (and it must be noted that it was not strong here), such a custom, in so far as it condoned acts of cannibalism, could not be adopted and applied in this Court, because unquestionably it is repugnant to the general principles of humanity and, as this judgment so finds, it is unlawful. It is unnecessary to attempt to define or to attempt to specify what those general principles of humanity are. To answer the question of whether certain conduct is repugnant to the general principles of humanity all that one needs to do is to see if one can reconcile the concept that it is permissible for a person to cut up, for eating purposes, the dead body of a man with the notions contained in the Constitution. Undoubtedly there can be no reconciling of the two.

In the Preamble to the Constitution the “worthy customs” of the people “which have come down to us from generation to generation” are acknowledged. The word “worthy”, which I have emphasized, was quite obviously used in order to draw a distinction between worthy customs on the one hand and unworthy customs on the other. The latter are, by implication, rejected. Also in the Preamble the people assert that, “respect for the dignity of the individual” is a basic principle of society, and the need to guard the “national identity, integrity and self-respect” is recognised. Cannibalism, if a custom, must necessarily be unworthy and demeaning to the dignity of the individual; such a practice is hardly conducive to self-respect.

Without indulging in a detailed analysis of the precise words used in the Constitution, the practice of cannibalism would certainly seem to be contrary to the spirit and intent of that part of the Constitution which acknowledges that, all persons, as individuals, are entitled to certain fundamental human rights and freedoms.

In the course of this judgment I have referred to a number of cases which involved consideration of the meaning of the word “indecent” standing alone or in conjunction with some other word or words. In s. 241 the words used are “improperly” and “indecently”. Although the three accused are not charged with “indecently” interfering with a dead human body, the words “indecent” and “improper” convey one idea, viz. offending against the recognised standards of propriety, improper being at the lower and indecent at the upper end of the scale. Improper conduct is not necessarily indecent, whereas indecent conduct almost certainly is improper.

To adopt an approach similar to that adopted by Lord Sands in the Scottish case of McGowan v. Langmuir[dxv]¹² (approved by Lord Parker in R. v. Stanley[dxvi]¹³), I can say that I do not think that the words “improperly” and “indecently” are synonymous. The one may shade into the other, but there is a difference of meaning. It is easier to illustrate than define, and I illustrate thus: for a person to cut flesh from a dead body with a view to eating it would be improper, it may not necessarily be indecent. (I emphasize “may” because it is to be noted that Barwick C.J in Crowe v. Graham[dxvii]¹⁴ stated with approval:

“Brawling in church, maltreating corpses, grave-snatching have all been punished as indecent.”)

But, if he derived pleasure from handling the genitals of a dead male body, his conduct would certainly be indecent.

Accordingly, I have had little difficulty in reaching the conclusion that the cutting of a dead human body in the manner and circumstances previously described amounts to “improperly interfering” with a dead human body. Interpreting s. 241 according to the intent of Parliament, that intention is to be found by an examination of the language used in the Code as a whole. See The Amalgamated Society of Engineers v. The Adelaide Steamship Co. Ltd.[dxviii]¹⁵. Cannibalistic conduct involving the killing of human beings for the purpose of subsequently eating their flesh is covered in Chapter XXVIII of the Code which deals, inter alia, with homicide, and cannibalistic conduct involving the cutting of dead human bodies for the same purpose is clearly covered by s. 241 which deals with misconduct with regard to corpses. Unlike Prentice J in Noboi-Bosai’s case (supra) I am persuaded that s. 241 (which is in the precise terms of s. 236 of the Criminal Code (Queensland adopted)) does on its correct interpretation apply to acts of cannibalism. To describe cannibalism as misconduct may be to use a mild word, but it is no more inapt to describe it so than it is to use many other generic terms as a method of description as are found in legislation of this type. The absence of any mention in the Code of cannibalism is immaterial; not infrequently certain conduct is proscribed by the criminal law without the descriptive words in common usage which generally describe such conduct being used in the legislation. The mischiefs aimed at by the sub-section are many and varied. I do not intend to prepare a list of the various types of conduct intended to be caught by the sub-section; suffice it to say that the list set out by Prentice J in Noboi-Bosai’s case (supra) is by no means exhaustive.

Giving the words of s. 241 their ordinary and natural meaning I can think of nothing more flavoured with impropriety than to interfere with a dead human body by cutting it with a knife preparatory to eating meat from it. Professor J A. Griffin in an article in Vol. 1 No. 2 Melanesian Law Journal p. 79 said:

“It might be thought that one could hardly provide a clearer case of improperly interfering with a dead human body than by cooking and eating it.”

DOES THE LONG-STANDING PRACTICE OF CANNIBALISM PROVIDE THESE ACCUSED WITH A DEFENCE OF “LAWFUL JUSTIFICATION OR EXCUSE”?

Mr. Jackson argued that the practice of the people over generations could provide the three accused with a defence of “lawful justification or excuse”. I cannot see any substance in that argument at all, and I must find that the defence has not discharged the onus which rests upon it in this regard. Quite clearly the defence of “lawful justification or excuse” was provided in order to protect such people as pathologists required to conduct autopsies and coroners’ staff who are required to exhume a body. I know of no authority which says that a long-standing practice merely because it is long-standing is “lawfully justified” or “lawfully excused”. It is to be noted that the legislature did not include conduct of the kind occurring in this case when it enacted s. 31.

For these reasons I find that the three accused men improperly interfered with the dead human body of Hauwani Gafaio. The accused Aubafo Feama and Nama Auri cut the body; the accused Kafidiri Kududebe Hagima aided the others in committing the offence. I find that the three accused men had no lawful justification or excuse for what they did.

Accordingly, I find the three accused men guilty as charged.

REMARKS ON SENTENCE

These three men have been convicted of “misconduct with regard to a corpse”: s. 241 of the Criminal Code Act 1974. Their conduct was an act of cannibalism. They cut up the body of a dead man, which was about to be buried, and they subsequently cooked and ate flesh from it.

Although cannibalism is and should be viewed as misconduct of a serious kind, it must be emphasized that cannibalism falls into two main categories (1) the killing of a human being with a view to eating human flesh and (2) the cutting and eating of a dead body with a view to eating human flesh from it. In my considered opinion both types of cannibalism are unlawful in Papua New Guinea at this time. The former type is punishable by up to life imprisonment; the latter type, of which these three men are guilty, a less serious type of cannibalism, is punishable by a maximum penalty of two years imprisonment with hard labour. I must stress that the maximum penalty to which these men are liable is two years imprisonment with hard labour — they did not kill the man the flesh of whose dead body they cut and ate.

Section 241 of the Criminal Code Act 1974 contemplates that many types of misconduct might occur with regard to corpses ranging from the indiscreet disturbance of a buried body at one end of the scale to cannibalism at the other end. Any conduct which may be said to involve “improperly interfering” with a dead human body is unlawful.

There is a well recognised sentencing principle that the maximum penalty is to be reserved for the worst or most serious of cases. Being careful to avoid using extravagant language or having an hysterical reaction to conduct like this which must be abhorrent to an overwhelming majority of the population of Papua New Guinea, it must be said that cannibalistic practices of the kind which occurred in this case makes this case one of the most serious cases of misconduct. For that reason alone a heavy penalty (within the limits of punishment laid down by the legislature) is called for.

Any sentence I impose should reflect the community’s attitudes to misconduct of this kind. I must seek to achieve a balance between the public interests, which in no small measure condemns cannibalism, and the interests of these three accused.

My public duty requires me, in this almost unique case, to give emphasis to the need to achieve a measure of public protection when viewing this case not in isolation but in the context of an overall criminal justice system which is developing along with the very country itself. The notions of general deterrence and to a lesser extent retribution must take priority over the other notions that are important to any system of sentencing.

A very important factor, which I do take into account in favour of these accused in this case (and do so to a large extent), is the degree of unsophistication of these three men and their adherence to old traditional practices. They saw nothing wrong in what they did. They were ignorant of the introduced law which seeks to outlaw cannibalism. These three men are young men of about 17 or 18 years of age, they have never been in trouble before, they have had no formal education, and their contact with the government administration and the missionaries has been minimal and in some respects non-existent. The level of their moral blameworthiness, the extent of their culpability is considerably less than that of the more sophisticated urbanized man were he to commit such an offence. For these reasons, I should not be too harsh in the penalty I impose. I will impose a sentence less than the maximum.

I also take into account the matters mentioned by the three accused after the allocutus had been administered to them, and to the several matters emphasized by their counsel. I realise that these three men feel that the sense of grievance of the relatives of the deceased has been adjusted by the payment of traditional compensation. In their minds (in the customary context) the wrong has been righted. I must (and do) take into account the substantial time these three men have spent in prison awaiting trial — a period of 12 months.

The sentence I think is appropriate for each of these three accused is 15 months imprisonment with hard labour. That is the punishment this offence committed in these circumstances merits. I emphasize that an effective sentence of 15 months is the penalty which, in my view, adequately achieves some balance between the often complex and (as they are here) competing purposes of sentencing.

A problem I have had to face up to in this case is that there is no precedent for me to follow in determining the type of sentence in a cannibalism case. I have therefore had to fall back on first principles. To an extent I have adopted an approach similar to that adopted in Reg. v. Iki Lida[dxix]¹⁶ and Reg. v. Isauname Kilape and Abiya Palina[dxx]¹⁷.

Taking into account the time already served, the formal order I now make to give effect to my decision as to the effective sentence to follow the commission of this crime is that each of these three accused be imprisoned with hard labour for three months.

Verdict of guilty as charged.

Solicitor for the State: K. B. Egan, Public Prosecutor.

Solicitor for the accused: M. Kapi, Public Solicitor.

Infra p. 305.

[dv]Infra p. 305.

[dvi][1971-72] P.N.G.L.R. 271.

[dvii][1924] S.A.S.R. 268.

[dviii](1968) 121 C.L.R. 375.

[dix] [1971] 2 S.A.S.R. 142 at p. 184.

[dx](1968) 121 C.L.R. 375.

[dxi][1971] 2 S.A.S.R. 142.

[dxii](1968) 121 C.L.R. 375.