State v Karavea [1983] PGNC 12; N452(M) (20 September 1983)

N452(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V.

AIAKA KARAVEA & LELEHUA KARAVEA

Kerema Gulf Province: Kidu CJ
20 September 1983

SENTENCE

KIDU CJ: In this case the two prisoners have pleaded guilty and have been convicted of separate offences (and I think that’s one thing that Mr Injia did not mention, the fact that there were two distinct offences committed). Aiaka’s offence carries the maximum of life imprisonment whereas the conspiracy to kill, the offence to which Lelehua has pleaded guilty, carries the maximum of fourteen years imprisonment (s.307 of the Criminal Code). I will have to bear in mind that distinction between the two prisoners.

On 27th February, 1983, the sister of the two prisoners (Hiripa Karavea - their real sister) died while she was giving birth. The child died too. Perhaps that added to the feeling of grief on the part of the prisoners and their young brother who, it seems, was not charged with any offence. In fact, the evidence shows that he did arm himself and went along (i.e. the young Karavea brother). He should have been charged too; anyway the State saw it fit not to charge him.

It seems (it’s supported by the evidence I heard yesterday from these two men Karavea and Lelehua) that when she was dying, she told them that the cause of her sickness had been the deceased Oira Haiae and I think they believed that. Whether this was true or not, we’ll never know because Oira was never given the opportunity to come to the courts and defend himself. He is not alive today to do that. But two things can be said about this allegation against Oira - one is that the prisoners believed it. They believed that he had caused their sister’s death and the death of some other people, some of them, their relatives before by sorcery. The second thing to be said about it, is that the deceased had found out that he had been accused of causing the death of this young woman by sorcery and went to Ihu Police Station to report it. It might have been that one of the reasons why he went to Ihu Police Station was to seek protection from the police. I think it is reasonable to assume that because he feared for his life at the hands of the two prisoners and their relatives, he fled to the Ihu Police Station. It seems also on the evidence that the murder took place on the evening the sister of the two prisoners died - that was the evening of 27th February, 1983. I think the time of the death of the sister was somewhere between two o’clock and about half-past three in the afternoon.

As soon as the prisoners found out that the deceased was accused of causing the death of their sister by sorcery, they went straight to the house of Oira and found that he wasn’t there. In the process, it seems (and I think it’s a reasonable assumption supported by the fact that Lelehua has pleaded guilty to conspiracy) that they planned to go and kill him. It is a fact that whichever of the brothers found him first would have killed him. Lelehua says in his record of interview that if he had found him first, he would have killed him too. It just so happened that the younger brother preceded him and did the killing. Oira in fact preceded them and was in Constable Kivai’s house when Aiaka Karavea arrived. He had gone ahead of his brother Lelehua and reached Constable Kivai’s place first.

He went and literally axed the deceased to death. The deceased was sitting near the door of Kivai’s house. He inflicted three wounds described by the Health Extension Officer Ove Ipai as follows:

"There was a cut below on the left shoulder blade which was 11 cms long and about 2 cms deep and just below that, there was a second cut - it was a deep cut too - he says about 10 cm in length and about 4 cms deep. Then around the neck was another deep cut (on the right side of the neck) which cut the muscles of the neck and one of the main arteries (the aorta) was cut".

Mr Ipai said that the cause of death was bleeding (haemorrhaging). Oira died from bleeding after he had been attacked by Aika. He bled to death. It seems from the estimation of this Health Extension Officer, that the deceased had lost about 2,000 mls of blood, which is quite a bit of blood. If a person looses a lot of blood, of course it’s usual to die from that unless medical attention is obtained.

It was a brutal killing as far as the evidence shows. It was a brutal murder. It was a very bad murder carried out with great determination and without warning, as the evidence of Aiaka himself shows. In his record of interview this is what he says:

"I and my elder brother Lelehua we planned ourselves with the other brother Meave Karavea and we went out armed and searched for him to kill him.

I went straight to the front (of Ipai’s house) and opened the door by myself, put my left leg inside stand and make balance myself and made a full swing with my both hands and cut him on the left side of the neck between the shoulder and the head."

Then when the deceased fell he then cut him twice. This was a sudden killing too, apart from the brutality of it. Constable Ipai said "my daughter couldn’t alarm me".

I think what he meant was that his daughter couldn’t warn him, because she was outside doing something when Aiata arrived. The man who was standing on the east side of the door, (Aiata) opened the door and stepped inside.

"I saw him holding a long handle axe in his hand. At the time there was no warning, he swung the axe at the deceased present. I saw the axe swung by this man, who is not before the court, cut through the left side of the deceased’s neck. The deceased fell on the floor after that first blow to his side. The second blow he cut him on the back as the deceased was lying on his side. At the time I was trying to stop this man who is now before the court, but he was swinging his axe madly."

Seems like some wild action on the part of the prisoner Aiata. So he got scared and says:

"So I jumped out of the house to avoid the axe swung by this man."

He had to protect his own life. I think his wife, he also says, was sick sleeping in the house.

"She got scared too and ran out of the house".

Going to the police did not stop Oira from being brutally murdered as described. In my view, police custody should have ensured his safety, but it did not. If a person cannot be safe in the hands of the police or the courts, then where can they seek protection? We have already said in the case of Avia Aihi in the Supreme Court that persons who are in the custody of the court should feel safe. I would extend that proposition to the custody of the police. When people who are accused of crimes seek the protection and custody of the police, it is one place where they should feel safe and be confident that they will have a proper trial in the courts of law. In this case, the prisoner Aiata and his brother decided to ignore the police and take the law into their own hands. In my view, the circumstances of this case show quite clearly that this is one of the most brutal murders that I have come across. In my view, it fits into the category of the ‘worst type of wilful murder case’, but for one aspect of the case which Mr Injia has urged on me, and that is the aspect of sorcery. If the sorcery factor had not entered into this case, I would have found Aiata guilty of wilful murder in the first degree (as I would say) and give him the life sentence. But he is fortunate in that the mitigation factor of sorcery enters into this case.

There is no doubt that in this country the belief in sorcery is widespread and nobody really has to prove to the court that it exists. Belief in sorcery exists amongst some of the most backward of our people up in the mountains of every province and also in the urban areas, including Port Moresby. Very well-educated people believe that sorcery exists and that there is power in people who practice evil sorcery to cause the death of other persons. I know people, including some pastors I know in the United Church, even though they believe in God and preach about all sorts of things in the Bible, they still believe in the power of sorcery. Sorcery is of course one aspect, especially in murder trials, that the courts have decided and stated to be taken into account in mitigation and I do so in this case.

There are, of course, different circumstances, different types of sorcery cases; some Mr Injia has mentioned like Wanosa’s case. But the circumstances of particular cases must be considered. In most cases of sorcery, usually there is a real conflict between the effect of the belief in sorcery and the introduced law. For instance, I refer to a case at Kiunga earlier this year, heard by Mr Justice Ramage. In that case the people involved were from a very remote area of Western Province. There had been hardly any contact between these people and the outside world. They never believed in anything else. I think the evidence was that they didn’t believe in God, christianity or had really never heard of any other laws, except their own. Now this case is a little different. These people believe in christianity. The evidence shows that. In fact the evidence is that they are aware that the Bible says that they should not kill. And I’m sure that they are also aware of the fact that the law says, the written law, the Criminal Code says, that you cannot kill other people. And their knowledge of these things operate against them. There is also another factor in my view which should be balanced against their belief in sorcery and that is the Constitution of Papua New Guinea. The Constitution, which is the highest law in Papua New Guinea, guarantees every man, woman and child in this country, whether he is primitive, educated or whatever, the right to live and the right to live is an important right for everybody. Sorcerers included. And this sorcerer, Oira, even if he in fact was, nevertheless he was entitled to have his life and was entitled under the law to be tried by the courts of law. Parliament of this country in 1971 was so concerned about sorcery and the practice thereof, it made this law called The Sorcery Act. Now this law had two intentions. One was to punish those who practise evil sorcery, that is people who make sorcery to kill or make other people sick. Secondly, the other intention of that law was to ensure that people did not take the law into their own hands, but to take sorcerers or those who are believed or reputed to be sorcerers before the courts of this country and be tried according to the law. Our people must be encouraged not to take the law into their own hands like these people did. They must be encouraged, especially in areas like Kerema, not to take the law into their own hands, but take people who practise sorcery to the courts.

It was an unfair thing to Oira to be killed without a trial. He is not here to say whether he was a sorcerer or not. What if these people are wrong? What if they were merely guessing that he was a sorcerer and therefore had to be killed? What if they killed an innocent man? And that is why I say that our people must be encouraged to take such people to court for proper trials to take place and for proper proof to be made against them before they are punished instead of what amounts to summary executions in the village; because that is exactly what happened in this case. Oira Haia was executed because people believed that he was a sorcerer and no person in Papua New Guinea has the power to take somebody else’s life. In fact the law in this country has only three offences which carry the death penalty - only three. One is what we call treason (that is killing the Head of State etc.) (s.37 of the Code). The other two are piracy and attempted piracy with violence (ss.81 & 82 of the Code). I don’t know why that is so.

In the case of killings, rapes and other most important offences in the Criminal Code the maximum penalty is life imprisonment, not death. So even in killing cases, even the courts have no power to impose any death penalties. And this prisoner had no right under the law to execute Oira Haia. That’s what he did. I take into account what has been said in their favour, and balance them against the interests of the State (the courts usually do that to come to a proper sentence). Sorcery by itself is not a major mitigating factor; but only one of the mitigating factors which the courts take into account in arriving at a proper sentence in particular cases and in this case, I have balanced the interest of the State in ensuring that those who offend against the laws of this country are punished and on the other hand taking into account the particular circumstances of these particular prisoners. In this case, in relation to Lelehua I remind myself that he has pleaded guilty and has been convicted of a crime which carries the maximum penalty of 14 years and not life imprisonment.

In my view, taking into account all I have said, the appropriate penalty for Aiata Karavea is imprisonment with hard labour for 12 years, taking into account further the fact that he has been in custody since 27th February this year, that is nearly 7 months, his sentence will be 11 years 5 months in hard labour.

In the case of Lelehua Karavea the maximum penalty for conspiracy to kill is 14 years. My view is taking into account the interest of the State and also his personal circumstances, the proper sentence is 6 years in hard labour. Taking into account the fact that he has been in custody for 7 months, his sentence will be 5 years 5 months in hard labour.

Lawyer for the State: Public Prosecutor, L. Gavara-Nanu
Counsel: G. Salika
Lawyer for the Accused: Public Solicitor, N. Kirriwom
Counsel: S. Injia