Magou, The State v [1981] PNGLR 1 (31 January 1981)

1981

Papua New Guinea Law Reports - 1981

[1981] PNGLR 1 - The State v Noah Magou 

[1981] PNGLR 1

N280

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

NOAH MAGOU

Alotau

Narokobi AJ

30-31 January 1981

CRIMINAL LAW - Particular offences - Sorcery - Consequences of act of sorcery - Relevance - Not relevant on sentencing - Sorcery Act 1971, s. 11.

In sentencing on a charge of doing a forbidden act of sorcery contrary to s. 11 of the Sorcery Act 1971, the consequences of the forbidden sorcery, for example, the death of any victim, may not be taken into account.

Trial.

This was the trial on a charge of undertaking forbidden sorcery, contrary to s. 11 of the Sorcery Act 1971.

Counsel:

G. Salika, for the State.

N. Kirriwom and R. Koaru, for the accused.

31 January 1981

NAROKOBI AJ

THE FACTS

The facts of this case are quite straightforward. The accused was going to stage a feast with several other men of his village, in the village. To do this, pigs have to be raised and fattened. He was assigned the duty of raising the pigs. Just why the feast was to be held and why he, and not someone else had the duty to raise the pigs, has not come out in the evidence.

The accused worked by himself. Other men did not help him. The pigs kept breaking out of their yards and ate village gardens. The pigs’ spoils also included Anglican mission gardens. For the damage, he alone was held personally responsible. This made him angry and bitter towards those he was in partnership with, in the preparation of the feast.

THE ACT OF FORBIDDEN SORCERY

Much more than what the court has been told of was involved in the actual act of sorcery. But the accused pleaded to an act of sorcery in an indictment which alleged that he, “Noah Magou of Mainawa on the 4th day of May, 1980, in Papua New Guinea did an act of forbidden sorcery”. This is clearly an allegation of an act of sorcery, on a given date. The State Prosecutor, Mr. Gibbs Salika, in the opening speech referred to a single act of sorcery. Depositions suggest two acts of sorcery on two different occasions. However, I cannot accept the second act of forbidden sorcery, directed against a different person, in my consideration of the charge in issue.

What was involved in the actual forbidden sorcery is contained in a s. 103 statement of the accused. Among other things, the accused said:

“On May 4th I got this puri puri early in the morning about 5.00 a.m. I got the vines and pricked it with a needle and put it in my house until evening. Then I called the person’s name. I knot the vines, after eight days up the person dies.”

The name of the vines used is murimuriewa, in Mainawa language. In doing what the accused did, he believed the vines were powerful enough to produce intended evil. The accused called the victim’s name, as he knotted the vines; and at the same time uttered some puri puri words, in his own language.

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.

THE LAW

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.

An act of sorcery is defined to mean any act which is intended to bring or which purports to be able or adopted to bring powers of sorcery into action to make them possible or carry them into effect.

Forbidden sorcery is defined negatively to mean sorcery which is not innocent sorcery. Innocent sorcery is described in the first schedule to the Act. Basically, it is protective or curative sorcery, and is generally regarded by the accused and his customary group as being harmless, legitimate or not offensive.

This particular puri puri is not an innocent sorcery. By its character and by the way it was regarded by the accused and the social group of the accused, it is not innocent sorcery. It is actually evil sorcery, a forbidden sorcery.

Having read the depositions of the District Court, I am satisfied that the accused did undertake an act of forbidden sorcery.

Section 11 of the Sorcery Act provides punishment for forbidden sorcery makers. It simply says that anyone who does a forbidden act of sorcery is liable to imprisonment for a term of five years following a conviction upon indictment.

The Act does not specify different punishments, depending on the outcome. Thus, it is not an element of the offence under s. 11 to consider whether the victim of forbidden sorcery had died or taken ill. However, s. 4 which provides the definition of sorcery envisages all possibilities, including bringing powers of sorcery into action, or making powers of sorcery possible, or carrying them into effect.

Generally speaking, sorcery is a word of generic import. In Papua New Guinea, it is known in various languages, and is practised by various social groups, as “mea mea”, “puri puri”, “mura mura”, “dikana”, “vada mea mea”, “posin”, “ouruh”, “sanguma”, “malira”, “pupulu”, “ingiat” and so on.

The accused is charged with having done an act of sorcery under s. 11. He is not charged with having done two acts of sorcery. If the State had chosen that course, they would have charged him either with two counts of doing acts of sorcery on two different occasions, or presented two indictments. If the indictment was defective, it is too late now for me to amend it, as the State did not apply for an amendment of the indictment.

Mr. Salika asked that I take into account the fact that the two victims the accused directed his forbidden sorcery towards have died within the times he nominated. This I cannot do, even though I would have liked to.

Section 11 of the Sorcery Act does not afford me such an opportunity. If the Legislature had wanted it that way, it would have made it explicit in the same way the Inter-Group Fighting Act 1979 has done, where the result of an inter-group fight is that a death has resulted, and no-one can be identified as the murderer.

The State may consider amending the Sorcery Act to provide for different consequences of sorcery where the victim may be ill only or where the victim has become insane, or where the victim has died or where a consequence of that act of sorcery is damage to or destruction of property the sorcery is intended or directed at.

If I were to admit evidence on deaths, I would in effect be punishing the accused for an offence which is not defined under the Sorcery Act. I would be punishing him for wilful murder, murder or manslaughter, under the Criminal Code.

The real difficulty with the Sorcery Act is that it was enacted by Australians who are not aware of the real and factual effects of sorcery. In s. 9, the Act imagines that sorcery really exists, but it does not recognize sorcery as a reality, the existence or effectiveness of powers of sorcery in any factual sense. The Act itself provides for much relaxed procedure and onus of proof in Sch. 2.

In the result, and on his own plea of guilty to the charge, I convict the accused of having done an act of forbidden sorcery on 4th May, 1980.

The accused is, in my estimation, aged between forty to fifty. He has always been a single man. With the exception of two years of employment with the Commonwealth Department of Works some years ago, he is basically a villager. Although a member of the Anglican Church, it is fair to say the church has no influence on his life.

[His Honour then sentenced the accused to imprisonment with hard labour for one and a half years, and taking into account some ten weeks in custody awaiting trial, ordered him to serve a further fifteen months and two weeks.]

Verdict and sentence accordingly.

Solicitor for the State: L. Gavara-Nanu, Acting Public Prosecutor.

Solicitor for the accused: A. Amet, Public Solicitor.