Respondent Submission Essay Writing LSSLR

ACTING PUBLIC PROSECUTPOR v AUMANE, BOKU, WAPULAE and KONE

[1980] PNGLR 510 (19 December 1980)

S.C.A No. 14 of 1980, Waigani

Respondent Submission.

The respondents, Uname Aumane, Aluma Boku, Luku Wapulae and Piope Kone come from

an isolated area of Hewa behind Porgera in the Enga Province.1 These four men tried to bring

Utomo Polio, an old woman believed to be a sorceress from their village to the Kiap at

Porgera Station which is a five days walk. Two attempts were made on taking her to the

Government Station and on the second attempt, she tried to escape and was shot with arrows.

They all were found guilty of wilful murder upon s. 304 of the Criminal Code Act 1974 and

were sentenced to three months imprisonment with hard labour at the National Court in

Wabag on the 4th of June, 1980 and were each ordered to pay compensation payments of 5

pig each to the deceased’s younger son according to s. 7e of the Native Customs

(Recognition) Act 1963 after serving time in prison.

The appellant (the Acting Public Prosecutor) found the terms of the sentences imposed as to

be “inadequately gross” and appealed to the Supreme Court 42 days after the judgment was

passed. According to r. 32 of the Supreme Court Rules 1977, the appellant should have filed

an appellation within 40 days immediately after the decision or judgment appealed from

provided for under r. 23 of the Supreme Court Act. The Acting Public Prosecutor provided s.

12 of the Interpretation Act on the basis of the objection of notice of appeal having been

submitted 42 days after the decision of the judge, which provides for provisions where no

time is prescribed. The Supreme Court held that the time limitation was only for the

1
State v Wapulae (1980) PGNC 9; N233, 2 (1980)

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Respondent Submission Essay Writing LSSLR

convicted person and not for the Public Prosecutor and that r. 32 of the Supreme Court Rules

was inconsistent with s. 23 of the Supreme Court Act 1977 in which s. 186 of the

Constitution provides that whenever there is an inconsistency between the provisions of an

Act of Parliament and the rules of the court, the Act takes precedence over the rules made by

the courts. The court further emphasised on the objection of the appellant regarding his

competency to appeal based on s. 12 of the Interpretation Act 1975 that it is applied only to

provisions where no time is prescribed such as s. 23 of the Supreme Court 1977.. Providing

that the court had the jurisdiction to hear the appeal, it further ruled in favour of the appellant

on the inadequacy of the sentence of 3 months imprisonment with hard labour and increased

each case to five years and five months including the three months already served and four

months awaiting trial which is a total of 6 years according to sentence measures of s. 304 of

the Criminal Code. The court also stated that the order of the payment as compensation as to

the deceased’s son was made without jurisdiction and thus set aside.

The grounds of appeal of the appellant were as follows. Firstly, whether the compensation

payment as to the deceased’s son under Customary Law was relevant to the matter in

question. Secondly, whether the sentence of 3 months and 5 months awaiting trial with hard

labour was sufficiently adequate as to the wilful murder of the believed sorcerer by the

convicted persons.

The relevant laws that apply to the case are s. 7e of the Native Customs (Recognition) Act

(No 28 of 1963) which states the customary form of punishment that can be imposed,

provided that it is not prohibited under s. 6 (1). The second issue in question concerned with

the taking of a person’s life is provided for under s. 309 of The Criminal Code Act (No. 78 of

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Respondent Submission Essay Writing LSSLR

1974). The Criminal Code however does not state the exact measure of sentence to be

imposed but rather, describes the maximum punishment to be of life imprisonment.

Sorcery works in the realms of belief and people who believe in it, knows that it works, 2

although there is no physical force that can be seen with the natural eye that enables the

person to perform or achieve something against normal behaviour of mankind. For instance,

as a Christian country, we believe that God exists, and people who believe in such, tell of the

wonders God does. Rather than a person who has no faith and belief would see or experience

nothing at all. Such is the work of sorcery, or magic that is rooted deep in the rural societies

of Papua New Guinea. It is proven to exist only to the people who believe in it.3 A similar

remark is found in the initial case by Narokobi, AJ in the initial case and I quote,” What one

mind 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” (Narokobi, AJ).4 The question I ask is, why create an Act against

sorcery if we as a modern PNG society believe that sorceries existence is nothing but a mere

puff as stated by the Public Prosecutor in the case as only beliefs which cannot be punished.

Laws are created because people do things that are unethical to the conducts of man. These

laws are to guide and regulate the way we as citizens react to the environment and the people

around us and ourselves. We believe that law breakers should be punished and so there is law

to govern us. Then that means the creation of the Sorcery Act to prevent and punish sorcery is

a depiction of the belief that sorcery exists within the realms of our community and evil

practices if sorcery and other similar practices is punishable according to the law, which is

the Act, The Sorcery Act 1971.

2
available at http://www.thenational.com.pg/sanguma-look-like/
3
State v Wapulae PGNC 9; N233, 3 (1980).
4
Ibid

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Respondent Submission Essay Writing LSSLR

As argued by the appellant over the application of the customary law and the inadequacy of

the sentences imposed, to begin with, all four respondents come from the same remote area in

Enga. Their usages of custom and its laws is common to them. Their primitive society proves

the existence of the tultuls and luluais, although its use is seen to be abolished in other

centres.5 They applied the laws to the crime they sought to be punishable and attempted to

bring the woman they believed to be the cause of deaths in their village to the Kiap. Lesser

crimes committed by the people in the remote villages are provided remedy through the use

of compensation payments. They did not have facilities to punish such acts that was beyond

natural behaviour. Hence, they sought other measures to judge the accused, preventing

killings. Killings especially in the highlands region of Papua New Guinea always involves a

payback killing if its neither about land, woman or pigs which they highly consider.6 I as a

Melanesian believe that most such sorcery killings of such in the rural areas go unpunished in

the past. Look at the recent killing of an accused woman in Mount Hagen7 who was believed

to be a sanguma (witchcraft) that went unpunished. Likewise, they could have killed the

woman and probably bury the body someplace no one would know but in fact, they

themselves went to the village elders and the police to report such matter that they had killed

the sorcerer upon her escape.8 Her escape was of course unexpected, in which the men

obviously acted in a way related to the prevention of the issue they were trying to contain.

Why would she run away if she knew she was not guilty of practising sorcery? I believe she

was guilty of performing sorcery practices and in fear of being caught and punished, she tried

to run away, which left those men in a state of confusion in fear of their lives if she escapes

5
Law Report Commission Rep. No. 2, (1975).
6
available at https://www.lowyinstitute.org/the-interpreter/png-highlands-conflict-not-limited-election-
season
7
available at http://newsfeed.time.com/2013/02/07/woman-burned-alive-for-witchcraft-in-papua-new-
guinea/
8
State v Wapulae PGNC 9; N233, 11 (1980).

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Respondent Submission Essay Writing LSSLR

or never to be able to catch her again and so one way or the other, their aim was to prevent

the sorcerer from killing an so they killed the woman. His son went with them. If their

intentions were to kill her on the way and they took her, then they would be gravely

convicted of murder measureable as to the case of Secretary for Law v Umao Amantasi &

Ors9. Those men’s very intention was to prevent more deaths from occurring through sorcery

and even killing the woman without the courts knowing they committed such crime. They

volunteered to pay compensation to the deceased’s relatives.10 They were applying their law

to the crime they knew they committed which was the customary laws of their society. These

men deserve better. I’m not saying that what the four men did was right, but what they did

was based on an unexpected event which was against their sole intention of bringing the

suspect to the Kiap. Their intentions were for the good of the community and themselves as a

whole and so they acted upon good conscience. They deserve minimum sentence as opposed

to the intentions of the convicted murderers in the case of Secretary for Law v Umao

Amantasi & Ors who performed a payback killing.11 The killing was planned in which 10 of

the convicted persons, accused and murdered the victim.12 It was upon their intention to kill

and they did not hesitate to kill nor did they consider the law when committing the crime of

wilful murder. They deserved the substitute sentence after appeal of seven years imposed if

that is to be the maximum penalty prescribed for matters concerning sorcery killing.

In conclusion, I strongly believe that the initial sentence imposed was adequate to the matter

in question as the court made a fair ruling based on the type of society these men and woman

come from and that the substitute sentence for a maximum penalty of six years of the four

men was excessive based upon their good conscience as to taking account of the law.
9
Secretary for Law v Ulao Amantasi & Ors (1975), PGSC 29; (1975), PNGLR 134.
10
State v Wapulae PGNC 9; N233, 9 (1980).
11
Secretary for Law v Ulao Amantasi & Ors (1975), PGSC 29; (1975), PNGLR 134.
12
State v Wapulae PGNC 9; N233, 11 (1980).

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Respondent Submission Essay Writing LSSLR

BIBLIOGRAPHY
Acts:
 Sorcery Act 1971
 Supreme Court Act 1975
 Supreme Court Rules 1977
 The Natives Custom (Recognition) Act (No 28 of 1963)
 The Criminal Code Act (No. 78 of 1974)
 The Interpretation Act 1975

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Respondent Submission Essay Writing LSSLR

Articles:
 Waites, D. (2017, May 29). PNG Highlands Conflict Not Limited to Election Season.
The Interpreter. Retrieved from http://www.lowyinstitute.org
Cases:
 Acting Public Prosecutor v Aumane, Boku, Wapulae and Kone [1980] PNGLR 510
(19 December 1980)
 Secretary for Law v Ulao Amantasi & Ors [1975], PGSC 29; [1975] PNGLR 134
 State v Wapulae [1980] PGNC 9; N233 (4 June 1980)
Reports:
 Law Report Commission, Rep. No 2, (1975)
Websites:
 Pollak,S. (2013,February 7). Woman Burne Alive For Witchcraft in Papua New
Guinea. Time. Retrieved from http://newsfeed.time.com
 Nalu,M. (2017, 0ctober 6). What does Sanguma Look Like. The National, p1-4.
Retrieved from http://www.thenational.com.pg

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