The State v Urari Siviri (2004) N2747

• Jurisdiction: Papua New Guinea
• Judge: Batari J
• Judgment Date: 30 August 2004
• Citation: (2004) N2747
• Court: National Court
• Year: 2004
• Judgement Number: N2747

Full Title: The State v Urari Siviri (2004) N2747

National Court: Batari J

Judgment Delivered: 30 August 2004

N2747

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. NO. 485 OF 2003

THE STATE

V.

URARI SIVIRI

GOROKA: BATARI,J

2004: August 30

Criminal Law – Sentence – Wilful Murder - Sorcery killing - Belief in sorcery - Proof of – Reduction in seriousness of offence - Reduction from the death penalty.

Criminal Law – Sentence – Wilful Murder - Sorcery killing - Prevalence of - Victim beaten to death on precincts of church grounds in an area well permeated by government and mission influence - Community involvement – Prisoner as main perpetrator.

Criminal Law – Sentence - Wilful Murder – Sorcery killing - Mitigation – Extent of - Sentencing guide - Consideration of – Need to increase sentence - 18 years appropriate.

Cases Cited:

Avia Aihi v The State (No.3) [1982] PNGLR 92

State v Aiaka Karavea & Anor (Unreported National Court Judgment, 1983) N452(M)

The State v Boat Yokum & Ors (Unreported National Court Judgment - 2002) No. N2337

Acting Public Prosecutor v Uname Aumane & Others [1980] PNGLR 510

The State v Kwayawako [1988] PNGLR 174

Public Prosecutor v Apava Keru and Aia Moroi [1985] PNGLR 78

Lawrence Simbe v The State [1994] PNGLR 38

Agoara Kelo & Anor v The State (Unreported Supreme Court Judgment - 1981) SC 198

Kwayawako v The State [1990] PNGLR, 6

Counsel

J. Kesan for the State

M. Apie’e for the Accused

SENTENCE

30 August 2004

Batari J: The prisoner has been found guilty and convicted of wilful murder under s. 299 of the Criminal Code. His offence carries the ultimate death penalty. A brief summary of the facts of the case are as follows.

The prisoner is the only one arrested and charged with a killing that was ‘sanctioned’ by the community in the belief that the deceased had caused the sudden death of his wife by sorcery. According to the prisoner’s oral testimony, his wife had complaint of stomach-ache during the day of or about 10th December, 2002 and upon admission to the hospital, she died on the same night. He testified that, before her death, she named the deceased woman, Komano Paul as the person responsible for her illness. The prisoner believed what his wife had told him because he then immediately told others in the village. In a public meeting held for that purpose, the killing of Paul so that she would be buried with the prisoner’s wife, was decided. The meeting was held on 13th December, 2002 on which day, burial of the prisoner’s wife had been delayed for some 3 days, I think purposely to await the out-come of the public meeting on the future of the deceased.

Whether Paul was in fact a sorcerer and whether she killed the prisoner’s wife or not, we’ll never know because she was never given the opportunity to defend herself in courts of law. She is not here today to do that. She is dead. But one thing is clear about the allegations against the deceased and it is that, the prisoner believed what his wife had told him and he believed that the deceased was responsible for his wife’s death through sorcery.

Immediately following the community consensus to eliminate the deceased, the prisoner, his two sons and other young men from the village set out in search of her. They located the deceased and dragged her to a Four Square Church pastor’s house where they tied her hands and feet to an avocado tree and literally beat her to death with coffee sticks in the presence of others. The medical report described her injuries as follows:

“HEAD/NECK: Depressed fracture of the temporal bone of the skull, fracture of the nose bone, striated marks around the neck.

CHEST: Bruising generally

ABDOMEN: Normal

LIMBS: (i) hands striated around wrist joints. (ii) fracture of the right leg.”

These medical findings were contained in a report compiled by Dr. Thomas Kubu, Senior Medical Officer In-charge of the Accident & Emergency Unit of Goroka Base Hospital. In his opinion, the deceased died from fractured skull and brain damage due to a blunt blow to the head.

It was a brutal killing carried out with great determination and in the most barbaric manner. The evidence also showed that her death was precipitated by shame and humiliation. Her captors first took her around the village, assaulting her at the same time before she was fastened to a tree and beaten to her death. The striated marks around her neck further suggested that, a rope was tied around her neck at some stage before she died. From the whole of the evidence, it is open to inference that, Paul was first secured to the tree and then beaten on various parts of her body with coffee sticks before the final and fatal blow to her head. I have witnessed pigs killed unceremoniously with a single blow to the head in that manner in this region, including my own and I think the blow to her head was intended to have that effect. There can be no doubt; she died from a very painful, slow death. The deceased was literally tortured and dehumanized before life was snuffed out of her by that single blow to the head.

It may have been part of the initial plan to take Paul to the pastor’s house for interrogation in his presence. But then what followed next resulted in the killing of the deceased in the presence of a church pastor who appeared unconcerned about the unholy event taking place on purported sacred and neutral location. The killing on church premises is a very serious matter for two basic reasons. First, it is generally accepted that, church grounds are sanctified holy and sacred places for worship and must be treated with respect and held in reverence for that purpose. It is in my view tantamount to sacrilegious to use church facility for unholy events as in this case, let alone breaking God’s first Commandment, “Thou shalt not kill”.

Second, the church grounds and the presence of church clergy did not stop Paul from being brutally murdered in the manner described because it is generally accepted that, church grounds and God’s servants would provide safe havens for the faithful and unfaithful alike. The clergy did nothing to prevent the brutal attack on the deceased and this also raises a serious question about his own impartiality. The evidence is that he was present at his house at the time of the killing. He has not availed himself the opportunity to explain his role when he was named as a witness but failed to give evidence. Did he have a hand in the killing of Paul? And if a person cannot be safe in village church grounds or in the hands of the clergy, then where else can they seek protection? A similar sentiment which I adopt and apply was expressed in connection with killings in the presence the courts in the case of Avia Aihi –v- The State (No.3) [1982] PNGLR 92 where the Supreme Court stated that, persons who are in the custody of the court should feel safe. That proposition was extended to killings in the custody of the police in the case of, State v. Aiaka Karavea & Anor. (Unreported National Court Judgment, 1983) No. N452(M) where Kidu CJ stated:

“When people who are accused of crimes seek the protection and custody of the police, it is one place where they should feel safe and be confident that they will have a proper trial in the courts of law”.

I would extend that proposition to village settings where there is presence of missions and government agents in the form of Local Level Government members and committees and village court officials. These local authorities are intermediatories charged with responsibilities to deal with immediate law and order and other social issues in the villages. The people who are suspected of offences have the right to trust and feel confident in those in church and government leadership positions in the village when they are brought to them that, they are not only safe, but that they will also be safely delivered to police custody for proper trials in courts of law.

In this case, the public execution of the deceased was done in deliberate contempt of the established system. The prisoner and his accomplices took the law into their own hands. They became the accuser, the police, the courts and the executioner, ignoring the presence of the clergy, government representatives and many others around. The facts of this case quite clearly, fall into the most brutal category of wilful murder and consequently, the ‘worst type of wilful murder case’ deserving the ultimate death sentence.

I have however found on the evidence that the accused and his fellow villagers and those in the general area believe in sorcery and sorcery killings. The prisoner believed the death of his wife resulted directly from sorcery. It is the existence of this sorcery factor that will save the prisoner from the death sentence. It is a mitigating factor that I must take into account.

The extent of believe sorcery in Papua New Guinea is well summarized in State v. Aiaka Karavea & Anor. (supra) where Kidu...