Kwayawako v The State [1990] PGSC 15; [1990] PNGLR 6 (30 November 1989)

Papua New Guinea Law Reports - 1990

[1990] PNGLR 6 - Kwayawako v The State 

[1990] PNGLR 6

SC392

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

KWAYAWAKO AND FIVE OTHERS

V

THE STATE

Waigani

Amet Los Hinchliffe JJ

30 November 1989

CRIMINAL LAW - Sentence - Relevant considerations - Belief in power of sorcery - My be taken into account in mitigation - Sorcery Act (Ch No 274), s 5.

The Sorcery Act (Ch No 274), s 5, provides:

“Even though this Act may speak as if powers of sorcery really exist (which is necessary if the law is to deal adequately with all the legal problems of sorcery and the traditional belief in the power of sorcerers), nevertheless nothing in this Act recognises the existence or effectiveness of powers of sorcery in any factual sense except only for the purpose of, and of proceedings under or by virtue of this Act, or denies the existence or effectiveness of such powers ...”

Held

N1>(1)      Whilst the provisions of s 5 of the Sorcery Act express not to recognise the existence or effectiveness of powers of sorcery in any factual sense, they do not deny and nor do other provisions of the Act, the existence of a belief in the power of sorcery.

N1>(2)      Accordingly, it is permissible to take into account as a mitigating factor on sentence customary belief in the power of sorcery.

The State v Kwayawako [1988] PNGLR 174, revised.

Cases Cited

Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510.

Gimble v The State [1988-89] PNGLR 271.

Secretary for Law v Ulao Amantasi [1975] PNGLR 134.

Appeals

These were appeals against sentences imposed on pleas of guilty to wilful murder of a person believed to be a sorcerer: see The State v Kwayawako [1988] PNGLR 174.

Counsel

E Kariko and W Boi, for the appellants.

V Noka and J Kesan, for the respondent.

Cur adv vult

30 November 1989

AMET LOS HINCHLIFFE JJ: This is an appeal by the appellants against the severity of their sentences. They were convicted on their pleas of guilty to a charge of wilful murder of a reputed sorcerer, and were sentenced to terms of imprisonment ranging from 12 to 15 years: see The State v Kwayawako [1988] PNGLR 174.

The Court unanimously upheld the appeal following submissions and varied all the sentences to 10 years with reasons to be published at a later date. We now publish our reasons.

The short undisputed facts in this matter are that prior to the killing of the deceased person the village people had a general belief that he [the deceased] was a sorcerer. They believed that he was responsible for an unspecified number of deaths. The last death in the village for which he was blamed was the village councillor. All of the appellants admit they planned to kill the deceased. They did so as a payback and more importantly in their belief to prevent further deaths in the village in the future.

The only ground relied upon against the severity of sentences was that the learned trial judge erred in law in his interpretation of s 5 of the Sorcery Act (Ch No 274) that it did not permit the Court to take into account belief in the power of sorcery as a mitigating factor on sentence. The learned trial judge held that belief in the power of sorcery is contrary to s 5 of the Sorcery Act and to take that customary belief in the power of sorcery into account in sentencing as a mitigating factor is contrary to the provisions of the Act. Section 5 of the Sorcery Act is in the following terms:

“Even though this Act may speak as if powers of sorcery really exist (which is necessary if the law is to deal adequately with all the legal problems of sorcery and the traditional belief in the power of sorcerers), nevertheless nothing in this Act recognizes the existence or effectiveness of powers of sorcery in any factual sense except only for the purpose of, and of proceedings under or by virtue of this Act, or denies the existence or effectiveness of such powers ...”

The Sorcery Act is said to be “An Act to prevent and punish evil practices of sorcery and other similar evil practices, and for the purposes relating to such practices”. The preamble to the Act states that:

“There is a widespread belief throughout the country that there is such a thing as sorcery and that sorcerers have extraordinary powers that can be used sometimes for good purposes but more often bad ones, and because of this belief many evil things can be done and many people are frightened or do things that otherwise they might not do ...”

Section 3 of the Act also provides that:

“Notwithstanding anything in any other law or rule of statutory construction, in the interpretation and application of this Act the provisions of the preamble shall be taken fully into account in all cases, and each provision of this Act shall be read and construed as being intended to give effect to those provisions ...”

After setting out the preamble and s 3 and s 5, the trial judge proceeded to say (at 176):

“It is clear from this Act that certain offences have been created to prevent those who claim to be sorcerers from performing various acts of sorcery: ss 7, 8, 9, 10 and 11 of the Act. This is done to prevent sorcerers from frightening people and causing them to do ‘things that otherwise they might not do’.

Section 5 of the Act was enacted to ensure that no room is given to any person who may make baseless or malicious accusations against enemies as sorcerers and used this as an excuse and get them into trouble. According to the preamble to the Act, this is the thing that the law should prevent. I conclude from the provisions of the Act that the law does not permit nor encourage the customary belief in the power of sorcery.”

With respect we consider that the learned trial judge erred in his interpretation of s 5. As the sub-heading to s 5 suggests, it relates to the “existence and effectiveness of powers of sorcery”. Section 5 states in part that, “even though this Act may speak as if powers of sorcery really exist ... nevertheless nothing in this Act recognizes the existence or effectiveness of powers of sorcery in any factual sense”. The section quite clearly does not have any relevance to the question of the customary belief in the power of sorcery. It relates to the “existence and effectiveness of powers of sorcery”. It says that even though the Act may speak as if powers of sorcery really exist, nevertheless the Act does not recognise the existence or effectiveness of powers of sorcery in any factual sense. But it does not deny the existence of the widespread belief throughout the country in the power of sorcery. They are quite different matters altogether. The Act may, in s 5, say it does not recognise the existence or the effectiveness of powers of sorcery in any factual sense, but with respect, it does not say that it does not recognise the existence of the belief in the power of sorcery. They are quite distinct matters.

Indeed, the first paragraph of the preamble recognises quite categorically that, “there is a widespread belief throughout the country that there is such a thing as sorcery and that sorcerers have extraordinary powers”. With respect we consider that the learned trial judge grossly erred in the construction he gave to the effect of the preamble to the Act. The preamble quite unequivocally recognises as an almost universal fact the widespread belief throughout the country in the power of sorcery and s 5 deals with the questions of the existence of of the effectiveness of such powers. Because s 5 states that the Act does not recognise the existence or effectiveness of powers of sorcery in any factual sense, it does not follow therefore that there cannot be the genuine belief in the existence of powers of sorcery. It is the fact of the genuine belief in the power of sorcery which is the issue and not the existence and/or the effectiveness of such powers. It may well be that sorcery does not exist or that if such practice does exist, that it has no power or that it is not effective; but it would not necessarily follow that there is no genuine belief in its existence.

It is true that over the years the National Court and the Supreme Court have treated killings of reputed sorcerers as a special class of homicides for the purposes of sentencing. The courts have also assumed as a matter of undisputed fact the widespread belief, throughout the country, in the power of sorcery. Again, the preamble to the Act recognises this widespread belief unequivocally. The issue as to whether or not belief in the power of sorcery is real or recognised by the Act does not arise because the Act quite specifically recognises its existence. And because the Act does not deal with the question of validity or otherwise of the belief in the power of sorcery, the construction that the learned trial judge has placed upon s 5 is quite simply not open on the grammatical content of the section. We repeat, it has no relevance nor does it deal with the issue of the belief in the power of sorcery. The issue does not arise under the Act. The Act simply recognises that as a fact, as indeed have the Courts up to now.

It is strange therefore, that both counsel in the trial before the learned Deputy Chief Justice agreed that belief in the power of sorcery should not be taken into account in sentencing. The courts have assumed that customary belief in the power of sorcery was a relevant consideration in sentence. In Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510, for instance, the Chief Justice said (at 513) in relation to the conclusions of the trial judge appealed from, that:

“His Honour then, it seems to me, went into great lengths about the effect of sorcery or belief in it in the minds of believers. I agree, with respect, that in many communities in Papua New Guinea belief in sorcery and its powers is very strong and we cannot brush it aside. My own people believe it and great fear is caused by such belief ...

His Honour, with the greatest respect, over emphasised the belief in sorcery”.

Andrew J said (at 528):

“... I find that I am in agreement with the learned trial judge when he says that it is the genuine belief by the accused that the victim was a sorceress and was responsible for numerous deaths which makes the task of sentencing in these circumstance so difficult.”

Andrew J continued (at 529):

“There is no doubt that the respondents genuinely believed that the deceased was a sorceress. They all come from the isolated area of Hewa behind Porgera in the Enga Province. These are and have always been strong mitigating factors ...”

In Secretary for Law v Ulao Amantasi [1975] PNGLR 134, Prentice SPJ said (at 136-137):

“It seems that in all Papua New Guinea societies the killing of an acknowledged sorcerer who has repeatedly been responsible for or has boasted of causing deaths, has been regarded as a benefit to society (unlike the payback which rebounds not on the offender personally but with cruel uncertainty, possibly on some innocent member of his line). The punishment of sorcerer killers has always been comparatively light. The judges imposing it have no doubt been conscious they were administering an imposed law which in this aspect receives little or no approbation from primitive villagers, comparable to the belief which many of them would receive from the elimination by that law of the payback.”

The learned trial judge in this appeal in the final paragraph appeared to find support from a decision of the then Narokobi AJ. He said this (at 176):

“Acting Justice Narokobi came to the same conclusion when he refused to take into account in sentencing the victims of sorcery. The State v Noah Magou [1981] PNGLR 1 at 3-5. The law does not recognise the power of sorcery and it follows from this that the law cannot recognise the belief in the power of sorcery as a relevant consideration.”

With the greatest respect we cannot agree with the learned trial judge. In fact, quite to the contrary, the then Acting Justice Narokobi quite unequivocally recognised the widespread existence of the belief in the power of sorcery. For instance Narokobi AJ said (at p 2 of that judgment):

“There is no doubt that sorcery is widespread in Papua New Guinea. Forbidden sorcery is practised or is believed to be practised throughout Papua New Guinea. I have heard of its prevalence in Rabaul, in North Solomons, in Sepik, in Madang, in Enga, in Southern Highlands, in Gulf and Western Provinces, in Central Province and now in Milne Bay.

Sorcery is dealt with as a subject peculiar to Papua New Guinea, under the Sorcery Act 1971. There is a comprehensive preamble to the Act which emphasizes the prevalence of sorcery fear, and distinguishes innocent from evil sorcery.”

Narokobi AJ continued (at 4) in which he affirmed again his unequivocal view that belief in sorcery in fact existed. He said:

“The real difficulty with the Sorcery Act is that it was enacted by Australians who are not aware of the real actual effects of sorcery. In s 9, the Act imagines that sorcery really exists, but it does not recognise sorcery as a reality, the existence or effectiveness of powers of sorcery in any factual sense.”

We, too, share the sentiments expressed by Narokobi AJ as he then was. We consider that the Act was poorly drafted. For instance, the opening statement on the purposes of the Act stipulates the Act as being one to prevent and punish evil practices of sorcery and other similar evil practices. Then in the preamble it unequivocally states that:

“There is a widespread belief throughout the country that there is such thing as sorcery and that sorcerers have extraordinary powers that can be used sometimes for good purposes but more often for bad one.”

Whilst the rest of the body of the Act in Pt III deals with offences relating to sorcery, s 5 then suggests that “even though this Act may speak as if powers of sorcery really exist ..., nevertheless nothing in this Act recognizes the existence or the effectiveness of powers or sorcery in any factual sense”. We find this to be inconsistent with the purposes of the Act stipulated in the preamble and the general body of the Act which deal with offences and various practices of sorcery. We do not consider that belief in a practice, which is recognised almost universally in Papua New Guinea as existing, can so simply be declared to be non-existent by the Act. It is totally unrealistic to suggest that by a mere stroke of a pen such a widespread belief in the existence and effectiveness of the powers of sorcery can be done away with or declared non-existent. With the greatest respect, this would be the effect of the construction given to s 5 and the whole of the Act, by the learned trial judge.

In the end result we are of the firm opinion that the learned trial judge erred in his construction of s 5 and the preamble to the Act. He therefore erred in not taking into account as a mitigating factor the belief, on the part of the appellants, in the power of sorcery.

We are also of the view that the trial judge erred in sentencing Graham Robin to a lesser term of imprisonment than the others. His Honour said (at 174):

“... I sentenced each of the accused to 15 years with hard labour, with the exception of one accused (who did not participate in the actual killing) he was sentenced to 12 years with hard labour.”

We are satisfied that even though Graham Robin did not participate in the actual killing, his role in the lead up to the killing was equal to those who actually took part in the physical attack on the victim. His Honour seems to be of the mind that because Graham Robin did not take part in the actual physical attach he is deserving of a lesser sentence. That is not necessarily so. In Gimble v The State [1988-89] PNGLR 271 at 272-273:

“Mr Gene next argued that the trial judge did not distinguish the accused’s lesser role; did not give proper weight to the fact that the accused was a watchman and not one of those who went inside and committed the assault. Again we do not think that the trial judge erred on this. The general rule is that all active participants in the crime should be sentenced on the same basis. The court does not normally stop to consider whether a particular prisoner actually held up the victim or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his full part the crime could not be perpetrated.”

Graham Robin should have been treated equally with the others.

We therefore uphold the appeal and vary the sentences to 10 years in respect of each of the appellants.

Appeals allowed Sentences varied

Lawyer for the appellant: Public Solicitor.

Lawyer for the respondent: Public Prosecutor.