Regina v Lu'umbat [1966] PGSC 14 (10 November 1966)

IN THE SUPREME COURT OF
THE TERRITORY OF PAPUA
AND NEW GUINEA

REGINA v. IGLIS LU'UMBAT of KULWANGO.

Coram: Mann C.J.

Kandrian.
November, 8^th, 9^th, and 10^th
1966

REASONS FOR JUDGMENT

On the 19th October, 1965, there was a ceremonial festival at Ipuk village to celebrate the taro harvest. The people of Ipuk had invited their neighbours the Kulwango and the Giring to participate. Others were also invited but the incidents that occurred concerned only the three named groups, so that the others may be ignored.

The ceremony was to be held at night, and when the moon was rising above the mountains the Kulwango party arrived. In addition to the moonlight the celebrants had the benefit of Hurricane lamps and pressure lamps conveniently set up.

The arrival of a new party was the occasion for a preliminary ceremony, the form of which is basically similar to corresponding ceremonies in widely separated parts of Melanesia, and no doubt elsewhere throughout the world. It is evident that the ceremony is symbolic of war or conflict followed by peace and plenty. The arrival of an armed party of 'strangers" leads to a massing of "defenders", already armed; an advance by the invaders; a mock fight; a retreat, and peaceful overtures leading to disarmament and a feast with distribution of presents in the form of food, all to celebrate the harvesting of the new crop.

There are many characteristics of this ceremony that suggest its great antiquity. The ceremony is restricted to taro, (probably the most ancient harvest), and to pigs (probably by adoption and probably the most valued food). The ritual is practised between groups who have similar weapons and customs, (including binding of infants' heads), although some of them speak different languages or dialects to-day and do not intermarry. The decorations on their weapons are in ancient colours: red, black and white and of a style having much in common with those of distant places, e.g. New Ireland and the Gulf District of Papua.

The shields used in the ceremony belong in design to days of high refinement of technique. They are generally known as "Plankmen's shields". They and their bearers were greatly respected and feared.

Each shield is constructed from three sapling poles about five feet long, bound together by four equally spaced bands of rattan cane. Each pole is trimmed into a more-or-less half-round shape. The edges are carefully straightened and matched and fitted to allow some adjustment of the convexity of the shield, whilst preserving a tight "seal" between the planks.

The three finished planks are tightly bound together with lashings of split rattan of great strength. When the necessary tension of the bands of cane and the desired convexity of the shield are achieved, additional bindings of cane are sewn right through each plank to fix the whole into a rigid and firmly sprung shield.

The timber used is of a light, porous, but highly fibrous nature, and is common in the Territory. The shields are highly resistant to penetration by spears in spite of their apparent softness, since the fibres grip tightly upon the point of a spear of the type used in this area. The shield is a highly specialised instrument of defence.

The spears commonly used in these ceremonies are about nine feet long and are made of heavy, hard black palm timber. They are not like the common throwing spears, but they do look like heavy javelins. If thrown they would have a very high penetrating power due to their sectional density. They have no barbs, and were apparently used a good deal as lances for hand to hand fighting with the shields described. The lower ends bear decorations and clan or totem designs carved into the surface and some of these designs correspond with those appearing on the shield. The points of the spears are long and tapering, and highly polished. They have a sharp but heavy point for strength.

On the night when the deceased NGORING was wounded, the usual welcome was extended by the Giring group, who had arrived before them. As long slack vine had been strung between posts to mark a position line, and the Girings formed up into a line parallel to, and some distance from, this line. The Kulwango, approaching, formed another parallel line on the other side, facing the Girings. The Girings commenced a chant, or "sing-sing", "shuffling and singing but not advancing. This was a signal for the Kulwango to advance in a dancing, shuffling movement to make a mock attack with appropriate gestures, with shields and spears at the ready.

Leaders of both groups stood at the sides between the two parties and exercised a strict supervision over behaviour.

As the advancing party of Kulwangos approached the cane line, they were still some distance from the Girings and were not expected to come into contact with them. The leaders were calling out to them, telling them not to attack the Girings and that they must not fight. Their next move was to retreat to their original position, which would terminate that sequence.

It would then be the Kulwango's turn to chant and sing and shuffle, but maintain their own position whilst the Girings made a similar advance and mock attack in the reciprocal direction. Thus the actions might continue to alternate so long as the last "attacker" cared to initiate a further round by chanting and singing.

The leaders of the groups participating exercise strict control, and have, at least in recent times, strongly forbidden the opposing groups from meeting or exchanging blows of any kind. The witnesses were not very informative about the reason for this control but whilst denying that an encounter might be regarded as a challenge to fight, did admit that if any individual did start fighting, a general fight would probably break out. They averred that this ceremony is peaceful and friendly and has nothing to do with any past conflicts between the groups. Tribal fighting has, of course, been prohibited by successive governments for many years, although this prohibition may not always have been effectively enforced.

The ceremony just described had progressed to the stage at which the Kulwangos had just completed one advance and mock attack and were at the point of turning and retreating when NGORING, a member of the Giring clan, rushed forward and struck the shield of the Kulwango, KEKENO with a heavy thrust of his spear. He broke the line to do this, and his action was the subject of strong disapproval by witnesses on both sides.

The point of NGORIN's spear penetrated the shield and reached KEKENO's forearm where it caused a superficial wound. The scar is still visible but very small, and no medical treatment was needed. KEKENO stood where he was and called out. The accused IGLIS was the first cousin of KEKENO, but since their fathers were brothers, the two men are by native custom in the group regarded as brothers and address each other as such. By their custom IGLIS would be under an obligation to defend and support KEKENO in a situation of danger, I find that IGLIS and KEKENO were within a filial relationship within the meaning of Section 263 of the Criminal Code by virtue of the local native custom.

IGLIS' reaction was immediate. He was standing next to KEKENO in the line. He struck at NGORIN's shield with his spear. It was a very strong blow, with the spear held in the hand and not thrown. He point pierced the central and thickest piece of the shield, but about 1" from one edge. The point pierced the plank straight inwards for a distance of about an inch, at which point the edge of the timber splintered away, pushing part of the edge through on the other side, whilst the forward splinter was pushed aside. This left a gap of about ¼" between the edges of the undamaged timber between the boards. At the same time the central board must have been driven back sufficiently to disengage the matching edges and so "spring" the planks and slacken the tension of the cane bindings.

Under these conditions the point of the spear penetrated between the planks and penetrated some unknown distance into the face of NGORING, in the region of the left eye, and either immediately above or below the eyeball, as variously described.

IGLIS immediately withdrew the spear, and this may have caused further damage to the shield. The impression of the witnesses was that the point penetrated through the shield a distance of about one foot, but I am satisfied that this is not reliable. Having carefully examined and tested the spear and the shield, I am satisfied that even in the present sprung condition of the shield, described by native witnesses as damaged beyond repair and unsafe, it takes enormous force to push the spear point more than 3" through the existing damaged timber.

My reconstruction is that the strong thrust penetrated part way and drove the shield back, at the same time turning it in NGORING''s hand, (he having only a small, central hand grip). Such a movement caused the flaking off of a large splinter, most probably assisted by misalignment of the plank edges due to slight slackness in the bindings. This loft a gap through which the point of the spear was able to wedge or lever itself through to an extent of up to three, or possibly four, inches. The massive point of the spear was strong enough to withstand the side-stresses probably involved. I think that the single hand-grip placed more than one foot below the point of entry would not have enabled NGORIN to hold the light shield against the spear thrust, and that the upper part of the shield must have been borne back, striking him on the head, so that by merest chance the spear point entered his eye. NGORIN was a much shorter man than IGLIS.

When NGORIN struck KEKENO's shield with his spear, not only did IGLIS go to the aid of his brother, but many other Kulwangos moved forward at the same instant to carry out the same action against shields borne by other Girings and the Girings came forward to do the same to the Kulwangos. This is a convincing indication of an earlier practice of regarding the mock encounters as a test of self-control, to ascertain whether the visitors could be trusted to behave peacefully at the anticipated feast to follow, but having regard to the evidence of the witnesses as to the present day righteousness of the whole proceeding, and their disapproval of NGORIN's breach of etiquette, I am unable to gain any further assistance from customary practice.

What actually happened was that NGORIN struck once only at KEKENO's shield, but was immediately incapacitated, by IGLIS, who struck only one blow at NGORING's shield. At once: all the incipient fighting stopped and the group leaders ordered their groups to return home, which they did after collecting the presents of taro laid out by their hosts. There was no further suggestion of violence, and the invited guests returned home with their presents and their injured, but without their feast.

My impression is that they all regret this melancholy anticlimax. The people themselves have settled any outstanding disputes by compensation.

NGORIN was taken home and after a few days was taken to the Aid Post at Wasum, where he was given two injections of penicillin by the native Orderly, and then treated for suspected Malaria, which is known in the area to produce a f ever. NGORIN died within a week after showing signs of loss of bodily functions and other possible mental malfunction, such as attempts to climb up the wall of the Aid Post.

The Aid Post Orderly could not be put forward as an expert medical witness and no expert examination or treatment was undertaken. The Orderly could only describe the wound as "closed" and "dirty" and "inflamed',' so I have no means of deciding whether NGORIN died of something ranging from damage to the central nervous system caused by a deeply penetrating spear, to a supervening infection of a relatively superficial wound. Since he did die, there is no possibility of ascertaining why NGORIN ran forward, breaking the established rules, and introduced the first hostile note into what was to be a joyful and friendly occasion.

That such an occasion is of great social importance to all the people is amply proved by the care taken by the leaders to keep it free from conflict; and this wisdom is indicated by the speed with which a group will fight when such an established convention is breached.

In substance, I accept the analysis of the facts submitted by the Defence. I set out my findings on the evidence as follows:

(1) NGORIN's actions were a clear breach of strict rules of behaviour, clearly understood and observed by the people.

(2) Such a breach would produce an extremely dangerous situation in which the armed men on each side would immediately fight with lethal weapons, each group fighting as a single unit.

(3) NGORIN's actions were described as those of a "big head and I am far from satisfied that they fell short of a direct challenge to fight. They were such as to be most likely to precipitate a general fight unless the leaders could re-establish immediate control.

(4) These actions constituted a sufficient provocation to IGLIS to stand his ground and respond in kind in aid of his brother. As an aggressive and overbearing gesture NGORIN's actions were equally an insult and a challenge to the whole Kulwango group and especially to IGLIS, who was in a position to act immediately, and the brother of KEKENO.

(5) According to the established rules of conduct, I think that the provocation would not justify an intended fatal blow, with a weapon because there was at this point no lethal attack by NGORIN, but only a gesture and most likely a challenge. Within seconds, however, a situation might have arisen in which KEKENO, IGLIS, and indeed the whole group, would have to defend themselves from lethal attack.

(6) IGLIS, in striking at the shield of NGORIN with his own spear, was in a sense committing a similar breach of conduct, but in striking at the shield and not at the man, was behaving with restraint and within a general pattern of behaviour which would be clearly observed and understood. His action would be understood as indicating a readiness to meet force with force, and as maintaining the proper status and dignity of his group. It was not in any sense an attack on the person of NGORIN, or against his group.

(7) Although IGLIS used very considerable force, it was not forseeable that the shield would fail to withstand the spear. These remarkable instruments are well known and understood by the people. There is no evidence to suggest that by some deft manoeuvre it is possible to penetrate a shield with a spear, and such a device would import an intent clearly inconsistent with IGLIS' behaviour. The actual penetration was small and by merest chance caused the injury.

(8) In these circumstances I think that IGLIS was justified in using force to demonstrate his strength in rebuffing aggression and was justified in thinking that it was quite safe to do so. His actions, therefore, were not such as to be likely to cause injury or bodily harm and were not disproportionate to the provocation offered by NGQRIN. It was, therefore, not an unlawful blow.

(9) As a matter of negligence, the spear is undoubtedly a lethal weapon, although not necessarily more so than, for example, a golf ball driven from a tee. This is a matter of taking proper care to see that others do not suffer forseeable injury and in these circumstances, under the strict rules observed, there was no element of reckless disregard of others, at least whilst the rules of behaviour were still observed to the extent to which IGLIS observed them.

(10) The evidence does not satisfy me that IGLIS did know, or ought to have known, that it was possible for a spear to penetrate a shield, or to anticipate that the shield might be in any way defective.

(11) I am satisfied that IGLIS had no intent to cause injury or death. I think that I should infer that the injury did cause death, although the evidence does not indicate how. I draw the inference from the progressive course from strength and health to death over the course of several days after the injury. Death from Malaria any particular instant is unlikely, and seems most probable that a rising infection of this subject be desired, and explains realise that a Jury might quite readily, and quite properly, reject this evidence.

(12) I find it unnecessary to deal with the points raised in Tsagaroan case, Wabag, May 1965, under Section 23 of the Code, but I find that it was no part of IGLIS' plan, purpose or will to injure NGORIN, and that the injury would not have occurred had not the shield had a latent defect not discoverable on inspection.

VERDICT: Not Guilty.

Prisoner discharged.