The State v Malachi Mathias and John Giamalu (2011) N4670

• Jurisdiction: Papua New Guinea
• Date: 09 September 2011
• Citation: (2011) N4670
• Docket Number: CR NOs. 846 & 847 of 2008
• Court: National Court
• Year: 2011

Full Title: CR NOs. 846 & 847 of 2008; The State v Malachi Mathias and John Giamalu (2011) N4670

National Court: Gabi J

Judgment Delivered: 9 September 2011

CRIMINAL LAW—Sentence—Criminal Code s300—murder—killing of alleged sorcerers where no threat to offenders—types of sorcery killing—sentences of 18 years and 16 years IHL

Facts:

After a trial the offenders were found guilty of murdering three (3) persons suspected of sorcery by assisting in the beating and torturing of the deceased. The deceased were dragged out of a police station and a policeman’s house. One of the deceased was a ward councillor. The three (3) offenders were part of a group of about forty (40) people who took part in the murders and are the only offenders from the group who have been brought to justice.

Held;

1. Removing a deceased from the safety of a police station to attack him is an aggravating factor, at [20];

2. Attacking politicians, community representatives or leaders is an aggravating factor, at [20];

3. There are three categories of sorcery killing:

a. Because a close family member or friend has died;

b. The offender believes the sorcerer will kill him in the near future;

c. Where the offender has a general belief that the victim is a sorcerer, although there is no threat to the offender, this is a more serious category, at [21];

4. Malachi Mathias sentenced to eighteen (18) years imprisonment in hard labour on each count and John Giamalu to sixteen (16) years imprisonment in hard labour on each count, at [37].

Cases Cited:

Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510; Avia Aihi v The State (No 3) [1982] PNGLR 92; Gimble v The State [1988–89] PNGLR 271; Irai Thomas v The State (2007) SC867; John Baipu v The State (2005) SC796; Kwayawako v The State [1990] PNGLR 6; Paulus Mandatitop & Another v The State [1978] PNGLR 126; Public Prosecutor v Apava Keru and Aia Moroi [1985] PNGLR 78; Roger Jumbo v The State [1998] PNGLR 197; Secretary for Law v Ulao Amantasi [1975] PNGLR 134; The State v Aiaka Karavea (1984) N452(M); The State v Aiaka Karavea (1984) N452(M); The State v Baika Martin (2008) N3312; The State v Boat Yokum (2002) N2337; The State v Jude Gena (2004) N2649; The State v John Siume [2006] PGNC 112 CR No's 384 & 385 of 2003; The State v Maraka Jackson (2006) N3237; The State v Sambura (2002) N2219; The State v Sedoki Lota (2007) N3183; The State v Siune Arnold (1997) N1658; The State v Urari Siviri (2004) N2747; The State v Wilfred Opu Yamande N'danabet (2004) N2728

SENTENCE

1. GABI, J: Introduction: Malachi Mathias and John Giamalu, the prisoners, have been found guilty of murder of Chris Wandap, Dominic Wandap and Sani Wandap contrary to s300 of the Criminal Code. This offence attracts a maximum penalty of life imprisonment.

Facts

2. It is alleged that members of Wandap family practiced sorcery or witchcraft and were accused of causing a number of deaths in Zenag village. The State conceded right from the beginning of the trial that the killings of Chris Wandap, Dominic Wandap and Sani Wandap were sorcery related.

3. At about 7.00 am on Friday 23rd November 2007, the deceased persons together with Gou Wandap and Vincent Bawe sent their mother Sabina Wandap on a Public Motor Vehicle (PMV) to Lae. On their return to the village, they noticed youths and village leaders, numbering approximately forty, gathering near the Police Station. The youths and village leaders were painted in black charcoal as if they were on the war path. Sensing trouble the deceased persons together with Gou Wandap and Vincent Bawe sought refuge at the Police Station. Chris Wandap and Sani Wandap went to the Police Station while Dominic Wandap, Gou Wandap and Vincent Bawe went to Sergeant Lahana’s house, which is approximately 75 meters from the Police Station.

4. The prisoners were amongst the group of people that were gathered near the Police Station. The group then dashed into the Police Station and after overpowering the Policemen on duty, dragged Chris Wandap and Sani Wandap out of the Police Station and started assaulting them. Later on they went to Sergeant Lahana’s house, forced open the door and dragged out Dominic Wandap and Gou Wandap and started to beat them outside the Police Station. Vincent Bawe, who managed to hide in one of the bed rooms, was able to escape the punishment. This indicates to me that the anger and attack was directed at the members of Wandap family and no other.

5. The prisoners and their accomplices continued to torture and beat the deceased persons and Gou Wandap from the Police Station all the way to Zenag village. At the village, they questioned them about their sorcery material and power and when the deceased persons and Gou Wandap denied their involvement in sorcery the beatings and torture continued and became more intense. The beatings and torture continued into the night and in the early hours of Saturday 24th November 2007 they attempted to escape. Gou Wandap was able to escape while the deceased persons were caught. They were then beaten and tortured and dragged away to the village cemetery where they were alleged to have been murdered and buried at an unidentified location. It appears that it was a slow death. The deceased persons were literally tortured to death.

Antecedent Report

6. The antecedent report shows that the prisoners have no prior convictions.

Allocutus

7. The prisoners...