Roger Jumbo and Aidan Awatan v The State [1998] PNGLR 197

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ, Salika J
• Judgment Date: 26 March 1997
• Year: 1998
• Court: Supreme Court
• Citation: [1998] PNGLR 197
• Judgement Number: SC516

Supreme Court: Amet CJ and Salika J

Judgment Delivered: 26 March 1997

SC516

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA 162 of 1993

BETWEEN

ROGER JUMBO and AIDAN AWATAN

Appellants

AND

THE STATE

Respondent

Waigani : Amet, CJ & Salika J

1997 : 26 March

Mitigating factor — Belief in sorcery as settled law — Response to cultural phenomenon — If opposed court is required to enable accused opportunity to lead evidence.

Principles in favour of accused — within bounds of reasonable probability.

Evidence — Failure to enable and rejection of evidence is error — Miscarriage of exercise of discretion.

Sentence — Manifestly excessive in the circumstances.

Held: Appeal allowed — Sentence quashed and a lesser term imposed.

Cases Cited:

The following cases are cited in the judgment:

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

Kwayawako v The State [1990] PNGLR 6.

F Pitpit, for the appellant.

V Noka, for the respondent.

26 March 1997

THE COURT: This is an application for leave to appeal and the appeal by the Appellants against sentences of 15 years imprisonment with hard labour imposed on each of them by the National Court. They pleaded guilty upon indictment charging them with one count of wilful murder.

The ground for the application for leave and the appeal is that the sentences imposed were and are in the circumstances manifestly excessive, in that the learned trial judge made certain identifiable errors that affected the exercise of his discretion on sentence.

THE FACTS

When the State presented the indictment and the brief facts for the purposes of arraignment, it was conceded that the motive for the killing was their belief in sorcery. It was conceded as an assumption of fact that the Appellant Awatan's older brother was killed by the deceased who was believed to be a sorcerer.

On address in mitigation, Counsel for the Appellants also submitted that the killing by the two Appellants was on the basis of honest belief that the deceased was a sorcerer and that he was responsible for an indeterminant number of deaths in the village. It was submitted that the village community elders had agreed and supported the killing of the deceased by the Appellants.

This submission was amply supported by the answers given by the two Appellants in their respective Records of Interview conducted with them by the Investigating Police, which were tendered as part of the deposition unsworn evidence for the purposes of the pleas of guilty

Counsel for the State before the National Court, however submitted that the pleas and submissions by the Appellants as to their belief in sorcery should not be given any merit or be accepted simply by their assertion by Counsel from the bar table. It was contended that evidence was necessary to be led to support the belief and submissions being made of that belief.

The learned trial judge adopted the submissions of Counsel for the State as reflecting the law, and proceeded to sentence the Appellants accordingly.

APPELLANTS SUBMISSION

It was submitted for the Appellants that the trial judge erred in failing to accept the unsworn and unsubstantiated claim and submissions by the Appellants of their belief in sorcery. The trial judge erred further in failing to give the Appellants the opportunity to...