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

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

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

N4670

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOs. 846 & 847 OF 2008

THE STATE

V

MALACHI MATHIAS

&

JOHN GIAMALU

Lae: Gabi, J

2011: 9th September

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 vs. Uname Aumane & Others [1980] PNGLR 510

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

Gimble vs. The State [1988-89] PNGLR 271

Irai Thomas vs. The State (2007) SC867

John Baipu vs. The State (2005) SC796

Kwayawako vs. The State [1990] PNGLR 6

Paulus Mandatitop & Another vs. The State [1978] PNGLR 126

Public Prosecutor vs. Apava Keru and Aia Morio [1985] PNGLR 78

Roger Jumbo vs. The State [1988] PNGLR 197

Secretary for Law vs. Ulao Amantasi [1975] PNGLR 134

The State vs. Aiaka Karavea & Anor (1983) N452

The State vs. Aiaka Karavea (1984) N452 (M)

The State vs. Baipu Martin & Ors (2008) N3312

The State vs. Boat Yokum & Ors (2002) N2337

The State vs. Gena & 4 Others (2004) N2649

The State vs. John Kanua Siune & Kenneth Kunda Siune [2006] PGNC 112

The State vs. Maraka Jackson (2006) N3237

The State vs. Nick Sambra & Another (2002) N2219

The State vs. Sedoki Lota and Fred Abenko (2007) N3183

The State vs. Siune Arnola (1997) N1658

The State vs. Urari Siviri (2004) N2747

The State vs. Wilfred Opu Yamande N’danabet (2004) N2728

Counsel:

N. Lipai, for the State

R. Yayabu, for the prisoner

SENTENCE

9th September, 2011

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 section 300 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 were given the opportunity to address the Court on sentence. Both said they accept the guilty verdict but denied any involvement in the killings. They asked for mercy, leniency and light sentences. Malachi Mathias is the only one who expressed remorse and said the killings were done by the community.

Pre – Sentence Report

8. A pre-sentence report was compiled and presented to me.

9. Malachi Mathias is twenty-nine (29) years of age and married with three (3) children. Both of his parents are alive and there are five (5) of them in the family. He has grade 8 education and obtained a certificate in motor mechanic from Bulolo Vocational Centre. He was a PMV driver before his arrest and detention. He is in good health.

10. John Giamalu is sixty (60) years of age and married with four (4) children; they are all adults now and have moved out and live on their own. He has grade 6 education and obtained a certificate in building and joinery from Finschhafen Vocational School in 1977. He is a member of Four Square Church and is asthmatic.

11. Mathias Lucas, the father of Malachi Mathias, was asked about the killings as well. He admitted that nearly everyone from Zenag village were involved and implicated in the killings.

12. Tarasa Wandap and his relatives, Joseph Baroa, Jimmy Amua and Koita Titovia, were also interviewed during the preparation of the pre-sentence report. They expressed their anger and frustrations in that the suspects, whose names have been given to Bulolo Police, continue to roam free and are at large in Zenag village and no attempts appear to have been made by Police to have them arrested and brought before the courts.

Sentence

13. In this case, the prisoners are the only persons, out of about forty (40) people that took part in the brutal killings of the three (3) Wandap brothers, who have been arrested and charged for this heinous crime. It is said that the rest of the offenders are known to Police and are moving freely in the community but no attempts have been made to bring them before the Courts to be dealt with according to law. If this is the best the Police Force of this country can do, then it is a very disturbing and sad state of affairs. It certainly sends a wrong signal to the public that alleged sorcerers can be brutally killed and Police will turn a blind eye to it. This has the potential to lead to the relatives of the deceased persons to take the law into their own hands. In view of the nature and the seriousness of the matter, it is strongly recommended that the Public Prosecutor refers this matter to the Police Commissioner for further deliberations and/or action. In sentencing the prisoners, I remind myself not to make them a scapegoat for a crime committed by numerous others, including Policemen, who might never be brought to justice.

Sorcery to be established

14. To rely on sorcery, evidence must be called to establish the belief and there must be reasonable basis for the belief (see The State vs. Gena & 4 Others (2004) N2649; Public Prosecutor vs. Apava Keru and Aia Moroi ...