Professional Documents
Culture Documents
Sorcery Case
Sorcery Case
Sorcery Case
N233
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
STATE
V.
LUKU WAPULAE
UNAMA AUMANE
PIOPE KUNE
ALUMA BOKU
YAULIPA BULAIM
Wabag
Narokobi AJ
4 June 1980
FACTS
NAROKOBI AJ: The accused stand charged that on 23rd of November, 1979 at Porgera,
they wilfully murdered a woman, Utomo Polio thereby contravening s.304 of the Schedule to
the Criminal Code Act (No. 78 of 1974).
By consent, all five were arraigned individually, but tried together. The facts of the case are
quite simple. The accused believed a woman they identified as being the deceased, Utomo
Polio was a sorceress who was responsible, through her evil sorcery for many deaths in their
villages or localities to be more exact.
On the day in question, they took the woman on foot, to the Government Station at
Porgera, apparently to report her to the Kiap to be dealt with by State law. On the way,
near a river, the deceased tried to run away. She was immediately caught by Yaulipa
Bulaim. Whilst she was being held by Yaulipa Bulaim, Luku Wapulae shot her the first time
with an arrow from his bow. He struck her in the left side of her ribs. The next man to shoot
her was Piope Kune who struck her with an arrow in the chest. She fell onto the ground and
whilst on the ground, she was again shot by Unama Aumane, again in the left region of the
chest.
Yaulipa Bulaim, the elder of the two sons of the deceased had gone with the other four men
to take his mother to the Kiap. He was present when the accused killed his mother. In his
record of interview, he admitted to telling the other men to kill his mother because he was
ashamed of what the people said about his mother.
However, on a careful reading of his own record of interview and those of the other four
accused, I formed an impression that an alternative view negativing homicidal intent was
possible. I therefore declined to accept his plea even though defence counsel made no
section 575 application and stood his case over to a later date. I have prepared a separate
judgment on that aspect of the case.
The accused did not stay to see if the woman was dead. They ran away and told their tultul
of the murder.
The accused pleaded guilty and their counsel made no 575 application. I accepted their
pleas and heard forceful arguments from defence counsel on sentence.
ARGUMENTS ON SENTENCE
Following the administration of the allocutus, the defence counsel made submissions on
appropriate sentencing approach to sorceress - sorcerer killing. The facts he relied upon
were not contested by the State Prosecutor. Defence counsel’s submissions covered four
areas.
THE BACKGROUND
The four prisoners come from a very remote part of the country, with minimal contact with
outside world, let alone the white man. That area is under administration influence, only
very recently. They still have tultuls and luluais, even though native regulations covering
tultuls and luluais have been repealed. (L.R.C. Report No. 2 of October 1975). It was only
as recently as December 1979, that a mission station was set up there, in fact after this
killing.
For these men to come to Wabag, was a great shock to them. It was their first time to
encounter modern life style. They adhere stricly to traditional life style and tradition. There
are no roads, no other government services. The background of each of the accused can be
stated simply.
Unama Aumane is about 17 years of age. He is not married, has one brother. His father
died some years ago. He is the principal supporter of his mother. His brother is at Lake
Kopiago. He has no education and has no church influence. Like others, his life consists of
hunting, gardening and traditional village living.
Luku Wapulae is older and is the man who fired the first arrow. He is married; has had a
number of children, only one is alive. He attributes death of his children to the work of evil
sorcery of the deceased. He also had brothers and sisters all of whom are dead for what he
believes is the work of the same sorceress. His father and mother are also dead. He too has
no formal education and his life consists of hunting, gardening and traditional life style.
Piope Kune is about the same age as Luku. He was married only shortly before the trouble.
His father is dead. His mother is alive.
Aluma Boku is perhaps the oldest. He is married and has one small child. Both of his
parents are dead. He has no brothers or sisters and leads the normal traditional life style.
The prisoners come from different villages or localities close to each other and separated by
a river. None of them speak or understand Melanesian pisin language.
The population of this area is quite sparse. People have been dying. The accused say as
many as twenty (20) deaths are the result of the work of the deceased’s evil sorcery.
CUSTOM
It is not uncommon not only in the situation of Enga, but throughout P.N.G. to kill sorcerers
or sorceresses. Amongst the social mores of these people, it is an act of honour to kill
sorcerers who are responsible for so many deaths. It is not a bad thing. Indeed, it shows
from records of interview that these prisoners were quite happy now that the woman
responsible for their deaths is dead.
Unfortunately, no evidence was brought about the nature of sorcery the deceased was
reputed to have worked. However, it seems to me that is immaterial. What is crucial is that
in the minds of the accused, the woman was a sorceress. She presented continuous threats
to the survival of their societies and in their beliefs, she had to go.
As counsel and in my other capacities, I have heard of fear of sorcery throughout P.N.G.
Even among those who have had contact with churches for as long as 100 years fear
sorcery as a reality, (see for example 2 papers - Sorcery Among Sepiks by B.M. Narokobi
and Sorcery Among the Tolais by W. Kaputin).
It is all too easy for those brought up in one sort of social and cultural background to deny
the existence of the workings of the minds of those conditioned by quite a different
background. The psychological domains of the human mind, in my view are still a deep
mystery, in spite of the great work of Freud and others.
What one mind believes and sees as real can be nothing more than a mere illusion to
others. The reality of the flying saucer for example, cannot be questioned by those who see
it, but to those who merely hear about it, it is a fantasy.
I sit here as a Melanesian judge among Melanesians. I run a grave risk that I might put on
Anglo-Australian cognitive lenses to see Melanesian situations and events. Fortunately, the
Australian judges in the past have been mindful of this danger and have sought to give
careful consideration in sentencing to the cultural setting of the offenders.
In imposing the sentence I have decided to impose, I have three foremost interests to
balance. The first is the interests of the nation state with its Parliament, its courts, its codes,
its constables and its executive arm of government. Collective living, within a nation state,
demands that individuals and villages, tribes and communities have to give a little of their
territorial and personal sovereignity. But the nation and its institutions will have no basis
without the tribes, villages, and people with their idiosyncracies and virtues. Thus, the
nation and its arms of the law, which include the courts must also take cognizance of the
interests of the community to which the offenders belong. That then, is the second
consideration. The impact of the penalty on the community to which the offender belongs
must be a foremost consideration. I do not sit to judge a sophisticated accused in an urban
centre where each person is an individualist, with minimal interdependence on his once
clansmen or once fellow villagers.
The third consideration is the question of the four prisoners themselves. This consideration
relates back to their community, but it also goes beyond it. No society can remain static.
Sometimes, as it seems in the present case, tragedy brings new possibilities. The prisoners
must eventually return to their communities. The contacts they make with other peoples in
prison will no doubt offer them new horizons. Judges in this jurisdiction have often referred
to this element as an educative element.
That may be so, but in my respectful view, criminal laws are not made so that if people
break them, they will have to be educated. The purpose of criminal law is not to educate
people, but to state very clearly that certain kinds of actions are forbidden by the law itself
and are therefore made crimes or offences. And the reason is really quite simple: to
announce to the society that these actions are not to be done and thus to ensure that fewer
of them are done, (see H.C.A. Hart: Punishment and Responsibility (Oxford: Clarandon
Press 1968) pp 4-13 - reprinted in “The Criminal in the Arms of the Law”- Edited by Leon
Radzinowicz and Marvin E. Wolfgang Vol. 2 - at pp 22).
The crucial question here is - what society? In P.N.G., a “nation of a thousand tribes”, the
proper consideration must be the tribe of the prisoner, within the national society. The
nation “announces” to a village population that cannot read or hear government word that it
is wrong to kill. The tribe also agrees, it is wrong to kill - but what do you do with those who
are believed to be killing your people? The State is ill equipped to deal with evils that
emerge from the inner domains of man. The nation declares war on germs that are
responsible for sickness and disease. It sets up hospitals, and embarks on programmes to
eradicate disease. If sorcerers are believed to be responsible for deaths, it is not difficult to
see by analogy that society would want to rid itself of that menace. The problem is that the
courts of law are ill equipped to deal with the domain of human psychology. The danger is
always that anybody could be killed by a simple argument that he was a sorcerer. But that
is a matter of judging the facts of that particular case, in all the circumstances.
The danger of justifying imprisonment of traditional wrong doers on the basis of education is
that it leads to a serious challenge to the very reasons for having criminal law. If it is to
educate offenders, then logically one would not oppose psychological indoctrination as might
occur in China through the process of re-education. If that was to be the reason for
imposing custodial sentences on tradition bound offenders, I doubt if that would be
consistent with the spirit of freedom of conscience, thought and religion. In the alternative,
it might be asked whether that form of education could not be inconsistent with
constitutional guarantee to freedom from torture.
To me, education of wrong doers is quite different from reforming wrong doers. Although
the processes are similar, the assumptions are different. In the education of the traditional
people, the assumption is that the so called primitive people need to learn the civilized
ways. Unfortunately the state of the world is such that the so called civilized ways are not
all that civilized. I don’t think the so called civilized man can safely claim that the so called
primitive man has to learn from the civilized world, the requisite virtues, if he wants to be a
man and survive.
If that was indeed the purpose for incarcerating law breakers, it might well be argued that
either people need to break the law before they can make claims to the virtues of
civilization or that prisons are really the best places for educating the so called primitive
man.
If to punish the so called primitive man is to educate him, then surely the best place to send
him is not prison but an educational institution, or to a church. In that place he would be
taught all the virtues of modern civilization and at the same time taught that his own ways
are to be discarded.
In reforming an offender, the assumption is this. As a member of the community in whose
virtues he has grown up, the offender has repeatedly deviated from these virtues and needs
to be reformed. This principle would be applicable to a sophisticated Papua New Guinean
who persists in deviant behaviour. Such a principle would not be relevant in the case of the
so called primitive man, whose breach of the State law may be no more than an honourable
adherance to the moral ethics of his community.
In my respectful view the proposition that the so called primitive man should be
incarcerated within a period sufficiently long to enable him to learn the civilized man’s law is
highly paternalistic and somewhat loaded with Eurocentric self righteousness.
Events in the world would tend to show that in the universe of moral order, no civilization
can claim superiority over the other. All mankind is prone to evil tendencies just as he is
capable of greatest moral achievement. No doubt criminal law is deeply embedded in the
moral ethics of its society, and must be reflected in the Court’s treatment of offenders that
come before the Courts.
In imposing my penalty, I have regard to a wide range of specific matters I set out below:
(a) Personal history character, age, habits, customs, social mores and the overall
hereditary factors of each of the prisoners;
(b) Planned or determined intensity of the will to do evil generally and particularly
within the elements of the crime for which the prisoners have been found
guilty;
(c) Motive - what was the motive of the prisoners - to make greater gains
materially or in social standing, and the degree to which the motive is
tolerable in view of factor (a) or as a matter of honour (pay back).
(d) Was the offence committed under fear, shame, embarrassment, excitement,
or a mob psychology, obligation to a group or a clan;
(e) Was the offence committed by way of abusing a position of trust or leadership
or guardianship;
(f) Was the offence committed in defiance of legitimate authority in the
community;
(g) Devices, techniques and ways used and employed to commit the offence -
weapons or instruments used;
(h) Extent of danger, if any to the community is it far reaching, is it limited?
(i) Subsequent events to the offence - repentence, restitution, restoration of
human relations strained, payment of damages or compensation;
(j) Degree of specific harm on the victims of the offence or the surviving
dependants or relatives of the victim; and prevalence, locally and nationally;
(k) Attitudes of the victims or their survivors towards the offence and in
particular towards the offender;
(l) Extent of legal interests, in particular human rights, obligations and the
national goals and directive principles of the Constitution affected i.e., the
overall impact on the national aspirations; as against local aspirations;
(m) Direct impact of punishment on the family, the person and the community
whether it be a line, a clan, a village or a corporate unit to which the offender
might have been a constructive citizen until his bad day;
(n) Rehabilitation on the one hand and retribution on the other hand, of the
accused;
(o) Time awaiting trial, including custody time and time on bail and its conditions
if any, awaiting trial;
(p) Degree to which the offender co-operated with the State authorities in
settling the case in issue;
(q) Public opinion and professional opinion as expressed through institutions such
as National and Provincial Parliament’s motions, Local and Community
Government motions, published reports of the Law Reform Commission and
other professional bodies.
(r) In the present case, I take so many factors as are relevant in determining the
penalty I have to impose. Since this is one of my first major cases, I have set
out the factors.
I intend now to determine the extent to which each factor mitigates against severity of
sentence or aggravates the sentence.
[cxciv]See R.B. Seidman 28 M.L.R. 46-61, discussing African situation in sorcerer killing.
[cxcvi]Right to Life s.35 Constitution of the Independent State of Papua New Guinea