Doni Kakivi & 88 Others v The Independent State of Papua New Guinea
| Jurisdiction | Papua New Guinea |
| Judge | Gavara-Nanu J,Batari J,David J,Kassman J,Geita J |
| Judgment Date | 30 August 2023 |
| Neutral Citation | SC2539 |
| Citation | SC2539, 2023-08-30 |
| Counsel | L. Mamu, for the Applicants,P. Kaluwin with D Ambuk, for the Respondent |
| Docket Number | SCREV. NO. 84 OF 2018,SCREV. NOS. 109 TO 196 OF 2018,SCREV. NOS. 28, 29, 31 & 33 OF 2020 |
| Hearing Date | 25 July 2022,30 August 2023 |
| Court | Supreme Court |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCREV. NO. 84 OF 2018
SCREV. NOS. 109 TO 196 OF 2018
SCREV. NOS. 28, 29, 31 & 33 OF 2020
Between
Doni Kakivi & 88 Others
Applicants
v.
The Independent State of Papua New Guinea
Respondent
Madang: Gavara-Nanu J; Batari J; David J; Kassman J and Geita J
2022: 25th July
2023: 30th August
JUDICIAL REVIEW — Application for review — convictions — Constitution; s. 155 (2) (b) — Multiple Charges — Multiple offenders — Offence — Wilful murder — Criminal Code; ss. 299, 7 and 8 — Principal offenders — Aiding and abetting — Common intention — Common purpose — Offenders in a large group — Raid of a village — Offenders with faces painted — Probable consequence — Identification — convictions after trial — Whether convictions safe.
JUDICIAL REVIEW — Application for review — Sentences — Constitution; s. 155 (2) (b) — — Life imprisonment — Cumulative and concurrent sentences — Exercise of sentencing discretion — Whether sentences fair and proper — Whether sentences manifestly excessive.
JUDICIAL REVIEW — Application for review — Constitution; s. 155 (2) (b) — Juvenile offenders — Multiple charges — Multiple offenders — Offences — Wilful murder — Convictions after trial — Sentences — Life imprisonment — Juvenile offenders; Juvenile Justice Act, 2014; s. 85 — Sentencing discretion — Power of the Court — Whether exercise of sentencing discretion proper — Whether convictions and sentences proper.
Cases Cited:
Papua New Guinean Cases
Agiru Aieni and Ors v. Paul Tahian [1978] PNGLR 37; [1978] PGNC 13
Anderson Agiru v. The Electoral Commission (2002) SC687
Application by Michael Aika and Ors (2004) SC753
Author Gilbert Smedley v. The State [1980] PNGLR 379
Avia Aihi v. The State [1981] PNGLR 81
Breckwoldt & Co. (NG) Pty Ltd v. Gnoyke [1974] PNGLR 106
Curton Bros. (PNG) Ltd & Anor v. University of Papua New Guinea (2005) SC788
Jimmy Mostata Maladina v. The State (2016) SC1495
Kawaso Ltd v. Oil Search PNG Ltd (2012) SC1218
Les Curlewis & Ors v. David Yuapa (2013) SC1274
Michael Newell Wilson v. Clement Kuburam and Ors (2016) SC1489
Porewa Wani v. The State [1979] PNGLR 593; [1979] PGSC 30
Regina v. Gregory Ino Genai and Ors [1974] PNGLR 1; [1974] PGSC 10
Regina v. Umarum [1969–70] PNGLR 190; [1969] PGSC 43
Reg. v. Witrasep Binengim [1975] PNGLR 95
Saonu v. Dadae (2004) SC763
The State v. Herman Kagl Diawo (1980) N255
The State v. Nataemo Wanu [1977] PNGLR 152
The State v. Peter Painke (No.2) [1977] PNLR 141
The State v. Tony Emmanuel and Edward Yau [2012] PGNC 368; N4599
Willy Kelly Goya v. The State [1987] PNGLR 51; [1987] PGSC 8
Overseas Cases
Air Marshall McCormack and Another v. Vance [2008] ACTA 16
Australian Coal and Shale employees v. The Commonwealth (1966) 94 CLR 621
House v. King [1936] H.C.A 40; (1936) 55 C.L.R. 499
Johns v. R (1980) 28 A.L.R 155
Micallef v. ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274
Reg. v. Clarkson, Carroll and Dodd [1971] 3 All E.R. 344; (1971) 55 Cr. App. R. 445
Reg. v. Coney (1882) 8 Q.B.D 534
Reg. v. Solomon [1957] Qd. R. 123
Counsel:
L. Mamu, for the Applicants
P. Kaluwin with D Ambuk, for the Respondent
Public Solicitor: Lawyers for the Applicants
Public Prosecutor: Lawyers for the Respondent
30th August 2023
1. Gavara-Nanu J: Initially, 89 applicants sought review of their convictions after a trial on seven counts of wilful murder under s. 299 (1) of the Criminal Code as aiders and abettors under s. 7 (1) (b) and (c) of the Criminal Code, by the primary judge on 12th January, 2018 and their sentences of life imprisonment given on 24th July, 2018.
2. The primary judge also found that applicants had a common intention under s. 8 of the Criminal Code to prosecute an unlawful purpose, which was to raid Sakiko village near Ramu township in Madang Province which resulted in seven deaths. His Honour held that seven deaths were probable consequences of the prosecution of unlawful purpose.
3. It should be noted at the outset that eight co-accused of the applicants who were convicted of six wilful murders at Sakiko village were found to be directly responsible for those deaths and were sentenced to death. They have made a separate application to review their convictions and sentences. My judgment on their application is consolidated with this judgment, and it appears towards the end of the judgment.
4. From the 89 applicants, 69 were said to be juveniles. Notably, only 47 of the original 89 applicants prosecuted this application after 42 have either escaped or passed on.
5. As to the 42 applicants, pursuant to Order 5 Rule 37 (a) of the Supreme Court Rules 2012, those who have either escaped or passed on before prosecuting their applications for review, have their applications stand dismissed for want of prosecution. Those who are alive have the liberty to file fresh applications for review of their convictions and sentences with leave.
6. As to the applicants who have passed on after prosecuting their applications, their applications are by law still on foot. The decision of this Court will therefore apply equally to them like those applicants who have prosecuted their applications for review and are going to receive the decision of the Court.
7. Regarding the 47 applicants who prosecuted their applications, an updated list was provided to the Court by the Public Solicitor Mr Leslie Mamu of counsel for the applicants. The list shows one had passed on and six have escaped. Because those seven applicants, including the one that passed on have prosecuted their applications, the decision of the Court will apply equally to them as those who will be receiving the decision of the Court.
8. I strongly recommend to the police and the CS that those applicants who have escaped from gaol be pursued and arrested as soon as possible. They should be charged for escaping from lawful custody and dealt with accordingly.
9. The applicants raise one pertinent issue regarding their convictions on seven counts of wilful murder viz; whether their convictions were safe having regard to the special facts and circumstances of the case. As to their sentences of life imprisonment, the pertinent issue they raise is whether the sentences are manifestly excessive, which then raises the question of whether the primary judge exercised his sentencing discretion properly.
10. It is convenient to note at this juncture that should the applicants succeed in their review against their convictions, that should be the end of the matter because it would then be unnecessary for the Court to consider and make determinations on their sentences.
11. The issue of leave to review does not arise because leave was granted on 7th November, 2018.
The undisputed facts as found by the primary judge
12. The learned primary judge found the following facts as undisputed and relied on them in his decisions on verdict and sentence. In early morning of Monday 14th April, 2014 at about 5.30am a large group of armed men started marching from Ranara village to Sankiang bridge along Bruce Jephcott Highway in the Madang Province, several kilometres from the western end of Ramu township. The group was armed with assorted weapons, including bush knives and homemade guns. The members of the group painted their faces with black charcoal in warlike way. The group was allegedly known as the “hausman” which was comprised of both adult and young men who were said to be from villages in the mountains west of Ramu township, including Gomumu village. The hausman was said to have been formed following concerns about deaths occurring in those villages. The deaths were blamed on sorcery. As a result, some of the suspected sorcerers who were living in Gomumu village migrated with their families and relatives and took up residence at Sakiko village which is not far from the Ramu township. A bit later in the morning of Monday 14th April, 2014, Ramu Police Station Commander was alerted that members of hausman were approaching Ramu township from Bruce Jephcott Highway en route to Sakiko village in search of the suspected sorcerers residing in that village, to kill them. The Ramu Police Station Commander subsequently met the group and tried to stop it from going to Sakiko village but to no avail. At about 6.00am, as the group arrived at Ramu Sugar mill, they met several Ramu Agri Industries Ltd (“RAIL”) employees who worked and lived in that area. They were walking to work. Some members of the hausman attacked them and killed a man named Sike Wamne, a highlander from Jiwaka Province. This killing is subject of count 1 on the indictment on the charge of wilful murder. The Commander of Ramu Police Station upon realising that the group would not listen to his advice, drove ahead of the group to Sakiko village to warn the villagers that members of hausman were marching to the village to attack them. The members of hausman marched to Sakiko village and raided it destroying properties belonging to the villagers, including food gardens and houses which were set on fire. The group threatened the villagers and attacked them and chased them into the nearby bushes. Some members of the group attacked and killed six villagers including two children. Those killings are subject of the other six counts of wilful murder on the indictment. Sometime after the killings, police reinforcements arrived at Sakiko village, they included several senior police officers. The police told the members of hausman who were still at Sakiko village and still armed, to congregate at a sports field in the middle of the village. The group did as they were told, but not before some of the group members had escaped. That group consisted of 120 adult men and 69 young men who were said to be juveniles, thus total of 189 men from the original reported 200 to 250 men. They were escorted by police to the highway, where they were transported on an open back truck in several loads to Ramu police station. They co-operated with...
To continue reading
Request your trial