The State v John Baipu (2003) N2451

• Jurisdiction: Papua New Guinea
• Judge: Jalina J
• Judgment Date: 30 July 2003
• Citation: (2003) N2451
• Court: National Court
• Year: 2003
• Judgement Number: N2451

Full Title: The State v John Baipu (2003) N2451

National Court: Jalina J

Judgment Delivered: 30 July 2003

N2451

PAPUA NEW GUINEA

[In the National Court of Justice]

CR 733 of 2003

THE STATE

-V-

JOHN BAIPU

Mt. Hagen: Jalina J

2003: 9 & 30 July

Criminal Law – Murder – Sentence – Plea of Guilty – First Offender – Attack on deceased uncle with bushknife – Deceased and others believed by prisoner to have been responsible for the death of his father and his wife by sorcery – evidence of prisoner torturing one suspect to death – prisoner taking the law into his own hands when matter already before Village Court – prisoner attacking suspects in breach of undertaking to Village Court officials not to attack suspects – whether belief in sorcery is a mitigating factor in the circumstances – Criminal Code s. 300.

Cases cited:

Simbe –v- The State, [1994] PNGLR 38,

The State –v- Peter Plesman and Paul Moaina, an Unreported National Court Judgment No. N1657 dated 30th October 1997

The State –v- Haihavu Kori Kaiks, an Unreported National Court decision dated 21st April 1998,

Jeffrey Harold Malepo –v- The State, an Unreported Supreme Court Judgment dated 13th December 2000,

Sap James Kumbapen –v- The State, (SCRA 14 of 2001), an Unreported Supreme Court judgment dated 26th April 2001,

The State –v- Kore Ase, an Unreported National Court judgment N2220 and dated 22nd June 2001,

Acting Public Solicitor –v- Uname Aumane [1980] PNGLR 510, Kwayawako & Five Ors –v- The State [1990] PNGLR. 6

Counsel:

J. Waine for the State

M. Kupil for the Prisoner

30 July 2003

JALINA J: This prisoner has pleaded guilty to a charge that he on 9th October 2002 at Fiwaga Village in the Pimaga area of the Southern Highlands Province, murdered one Hahu Hafinibu.

From the facts put to the court for purposes of arraignment as well the evidence as contained in the Statement of Village Court Chairman Buri Mea which is supported by Statements from Ward Councillor Nelson Tami and Councillor Mark Ganewabo, show that this prisoner had accused the deceased who was his real uncle and others of killing his father and his wife by sorcery between May and June 2001. He reported the matter to Village Court Chairman Buri Mea who in turn informed police at Pimaga and also set up a mediation team comprising himself, the two Councillors I have mentioned above and others.

The suspected sorcerers appeared at the mediation and witnesses were called when they denied being involved. Witnesses were called from areas as far as Kikori in the Gulf Province. There was no real proof against the suspects but the mediators nevertheless ordered the suspects to pay compensation to the prisoner but the prisoner refused to accept the compensation and demanded that he would only do so upon production of the implements of sorcery by the suspects. Such demands forced the mediators to adjourn and carry out investigation into a wider area including Foe in the Gulf Province. In the meantime the prisoner accused Buri Mea of taking sides with the suspects. So he assaulted one of the mediators namely Sabua Kaiyabe. He also got hold of suspects Buiabi Age, Siamo Hauwano and tortured them until Biabi Age died while Siamo escaped. He also apprehended an older man Mana Bundu and tortured him but police intervened and rescued him.

The committee’s attempt to complete the mediation was disrupted by the 2002 National Elections. After the elections the Committee decided to resume the mediation. Included in the mediation team was the newly elected Councillor for Pimaga Ward, Councillor Albert Sesemena. Councillor Sesemena sought an undertaking from the prisoner that he would not attack the suspects if they attend the mediation or threaten the mediation Committee which the prisoner did undertake.

Following the undertaking by the prisoner, Buri Mea and two others went into where the suspect Siamo Huwano was hiding and interviewed him leaving the deceased Hahu Hafinibu at his hiding place. Later the deceased was interviewed. The mediation was scheduled to commence on 11th October but to his surprise, Buri Mea learnt that the deceased was murdered by the prisoner on 8th October 2002 which was in breach of the undertaking the prisoner had given to the mediators who were leaders of the people in the area.

The Medical Report on the deceased who was aged about 70 years shows that he had a deep laceration to the left foreman with an amputated ulna and radius bone. The radial artery and tendon were also severed. There was also a deep laceration to the left knee with a fractured patella. The cause of death was due to severe hemorrhage secondary to severed artery and amputation of the left forearm and laceration to left knee.

The offence of murder is serious as it involves loss of human life. Such seriousness is reflected in the penalty of life imprisonment which the legislature has prescribed under s.300 of the Criminal Code subject to the court’s discretion to impose a lesser sentence under s. 19 of the Code. In recognition of such seriousness, both the National and Supreme Courts have imposed fairly stiff sentences. For instance in Simbe –v- The State, [1994] PNGLR 38, the 14 years imposed on the appellant who killed the deceased with a bush knife instantly when he saw the deceased enticing his wife into having sex with him was found by the Supreme Court not to be excessive.

In The State –v- Peter Plesman and Paul Moaina, an Unreported National Court Judgment No. N1657 dated 30th October 1997 Batari, AJ. (as he then was) sentenced the prisoners to 25 years imprisonment for the murder of brothers Ephraim Makis and Albert Uming inside their residential area. Ephraim Makis was shot at point blank range and Albert Uming was stabbed in the back several times.

In The State –v- Haihavu Kori Kaiks, an Unreported National Court decision dated 21st April 1998, Los, J. imposed 23 years imprisonment on the prisoner who scaled the walls to the fourth floor of the Lodge Apartment, Hunter Street in Port Moresby and stabbed a geologist to death in the presence of his wife inside their apartment. In imposing the sentence the trial judge stressed that the offence was committed after invasion of the deceased’s private home or dwelling which was in effect done in breach of the deceased’s right to privacy of his home which was guaranteed under the Constitution.

In Jeffrey Harold Malepo –v- The State, an Unreported Supreme Court Judgment dated...