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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 48 OF 2006
THE STATE
v.
WARU PARARA
Madang: Cannings J
2007: 16, 17 October;
2008: 19 February
CRIMINAL LAW – sorcery offences – threatened use of powers of a sorcerer – Sorcery Act, Section 6(3) – trial – elements of offence – whether the accused threatened to use powers of a sorcerer.
The accused, a reputed sorcerer, was charged under Section 6(3) of the Sorcery Act with influencing the acts of another person by threatened use of the powers of a sorcerer. He is alleged to have told the complainant, in whose family there had been a number of deaths, including the recent death of his son, that if the complainant gave him a chicken, he could put a stop to the deaths in his family; thereby issuing a threat that if the complainant did not comply, there would be further deaths. The State alleged that the complainant attempted to comply with the accused's demands by providing the accused with a pig; and because his actions were influenced in that way by the accused's threat, the accused should be convicted of the offence, which carries a maximum sentence of two years imprisonment.
Held:
(1) There are three elements of the offence under Section 6(3): (a) the accused used or threatened to use; (b) the powers or services of a sorcerer; (c) thereby influencing or attempting to influence the acts of another person.
(2) It is a defence to a charge under Section 6(3) that the sorcery involved was innocent sorcery (defined by Sorcery Act, Schedule 1), the burden of proof of which rests with the accused (The State v Balu Mau'u [1973] PNGLR 64 followed).
(3) The complainant was a convincing witness, more so than the accused whose evidence of lack of belief in sorcery and lack of knowledge of the complainant's son's name was difficult to believe. The State proved that the accused used the words attributed to him by the complainant and in all the circumstances those words were a veiled threat that if his request was not met he would use his powers as a sorcerer. The sorcery involved was not innocent sorcery.
(4) The State accordingly proved the three elements of the offence, the defence of innocent sorcery was not available and the accused was convicted.
Cases cited
The following case is cited in the judgment:
The State v Balu Mau'u [1973] PNGLR 64
Glossary
People
Badu Kon – friend of the accused; villager; State witness No 2
Dipolo – the complainant's sister (deceased)
Elizabeth – the complainant's daughter (deceased)
Gabula Marea – the complainant; State witness No 1
Jim Namora – Police Station Commander, Madang
Jonah Gabula – the complainant's son (deceased)
Mokou – elderly village woman (deceased)
Poru Saunar – the owner of the pig
Sowea Parara – the accused's son
Sula Sagum – community leader, Uya village; defence witness No 3
Waru Parara – the accused; defence witness No 1
Yaubi Morio – the accused's in-law; defence witness No 2
Places
Bauri – Yaubi Morio's village
Diduwala – accused's main village; village at which offence allegedly committed
Suvalu – hamlet near Diduwala, where the accused lives
Usino – area in Madang Province
Uya – village in which the accused lived from 2004
TRIAL
This was the trial of an accused charged with influencing the acts of another person by threatened use of the powers of a sorcerer.
Counsel
M Ruarri, for the State
E Hampalekie, for the accused
19th February, 2008
1. CANNINGS J: The accused, Waru Parara, is a 55-year-old man from Diduwala village, Madang Province. He is charged under Section 6(3) of the Sorcery Act with influencing the acts of another person by threatened use of his powers as a sorcerer.
2. The State says that he is reputed to be a sorcerer in the local community and that some people hold him responsible for a number of deaths that have occurred over the years around Diduwala. One of those deaths was of a young man called Jonah Gabula. The State says that a week after Jonah died the accused approached his (Jonah) father, Gabula Marea, (the complainant) and issued a threat that unless he were given a chicken, more deaths would follow. The complainant attempted to comply with the accused's demands by providing the accused with a pig. The State says that because the complainant's actions were influenced in that way by the accused's threat, the accused should be convicted.
3. The accused denies issuing any threat to the complainant and says he is not a sorcerer and does not hold himself out as being a sorcerer. He does not believe in sorcery, he says.
ELEMENTS OF THE OFFENCE
4. Section 6(3) of the Sorcery Act states:
A person who influences or attempts to influence the acts of another person by the use or threatened use of the powers or services of a sorcerer as such is guilty of an offence.
5. There are three elements of the offence:
(a) the accused used or threatened to use;
(b) the powers or services of a sorcerer;
(c) thereby influencing or attempting to influence the acts of another person.
6. It is a defence to a charge under Section 6(3) that the sorcery involved was innocent sorcery (defined by Sorcery Act, Schedule 1). However, the burden of proving that innocent sorcery was involved rests with the accused; so the requirement that it was not innocent sorcery is not an element of the offence (The State v Balu Mau'u [1973] PNGLR 64).
THE KEY ISSUES
7. It is not in dispute that the complainant provided the accused with a pig and that he did that following a conversation with the accused. The complainant's actions were thus influenced by the accused. So the third element of the offence has been proven. As to the first and second elements, the State does not allege that the accused actually used his powers as a sorcerer or that the sorcerer was anyone other than the accused. So the key issues in dispute are:
1 Did the accused issue any threat to the complainant?
2 Did the accused threaten to use his powers as a sorcerer?
8. If the State proves both those elements, the next issue (the burden of proof of which lies on the accused) will be:
3 Was innocent sorcery involved?
9. If the State fails to prove both (1) and (2), the prosecution will fail and it will be unnecessary to address issue (3).
10. Before addressing the issues, I have to consider all the evidence. The State presented two witnesses, the complainant and another villager. For the defence, there were three witnesses: the accused and his in-law, who said he was present when the accused conversed with the complainant, and another villager.
EVIDENCE OF THE STATE WITNESSES
11. Gabula Marea is the complainant. He is married to the accused's sister, so he is his brother-in-law. He said that his son, Jonah Gabula, died on 15 February 2005. A week later, on 22 February 2005, the accused sent word through his other brother-in-law, Yaubi Morio, for him to go and see him. He went to Yaubi's house about 8.00 am by himself and stayed there till 3.00 pm. Yaubi was present but he was busy cooking while he and Waru were talking. Waru told him that he knew all about the death of his son and that if he could supply him with some chickens, he could stop the deaths in his family. Waru referred to previous disputes between their fathers. Waru said that as he and Gabula were related, they should put a stop to the deaths. Gabula regarded Waru's words as a threat so he started to look for things to give him. He wanted to comply with his demands so he looked for a pig to give him. Even though Waru had asked for a chicken he thought that giving him a pig would be better. However, when Waru heard that he was going to give him a pig, Waru ran away from him. Gabula was surprised by this as he thought that if he had given Waru a chicken it would not satisfy him. He thought that, by custom, a pig would be a better way of stopping the deaths. He got the pig from Poru Saunar's family. As Waru refused to receive the pig he gave it back to its owner. Gabula felt that if he did not satisfy Waru there would be more deaths and sickness in his family. Waru ran away as he knew that he would be in trouble if Gabula were to reveal his threats to the community. Waru indicated to Gabula that he would be able to stop the deaths by making an offer to his god. He would pour pig's blood or chicken's blood at the base of the tanget tree. The local people are scared of the tanget tree. When blood is poured at the base of it, this causes deaths. The tanget is Waru Parara's god. He has special powers which enable him to use the tanget to kill people. Waru is well-known as the kind of person who does these things. He kills people by using the tanget. The local people have reported it to the police, in particular to Police Station Commander Jim Namora. Mr Namora has tried to get Waru to change his ways. He has come to the village and removed some tanget but still the deaths have occurred. At one stage Jim Namora shot Waru in the leg. This was because of the tanget. Gabula believes that Waru has killed a number of people by the use of the tanget, including:
12. Gabula said that he has been to school and was educated to grade 6 in 1980, but has not been formally employed. He can read and write and he is a member of the Lutheran Church. Gabula denied that there were conflicts between Waru's sisters and brothers over land.
13. Badu Kon was the second State witness. He is an elder in the Lutheran Church and lives at Ato which is close to Diduwala. He knows Waru Parara very well and regards Waru as his father. Badu believes in sorcery. There have been many deaths in the local area which have been attributed to sorcery. The main implement of sorcery is the tanget and Waru is a well-known tanget user. Waru has planted tanget and people have died due to his use of it. Waru himself told him that he had planted tanget and that it kills people. He told him that about ten years ago. Jim Namora had shot Waru in the leg because Waru had been planting more tanget. A number of people had reported Waru to the police over his activities.
DEFENCE WITNESSES
14. The accused, Waru Parara said that he lives at Suvalu which is about 1.5 km from the main village at Diduwala. Yaubi Morio is married to his first born sister. He knows the complainant Gabula Marea very well. Gabula is married to his last born sister. Gabula arrived in Diduwala in 1976 and he looked after him. In March 2004 Waru left the village and stayed at Uya village. 22 February 2005 was a Tuesday. On that day Gabula came to see him, saying that his wife (Waru's sister) had sent him to check with him about the death of their son. He told Gabula that he didn't know anything about the death of their son. Gabula said that he was going to go and look for a pig which they could all eat and maybe this would solve the problems that Waru had caused in the family. He told Gabula that he had been spreading lies and that is why Jim Namora had shot him (Waru). Yaubi Morio was with them when they were talking on 22 February 2005. Other people were twisting stories about him and the story that Gabula told the court about him asking for a chicken was a new story that he was hearing. All of these problems in the family have been caused by arguments over land. Other people have been making up stories about him using tanget. He has never planted any tanget. There was tanget around where he lives but it was all planted by Yaubi Morio's family when they came from Usino. The tanget is planted close to his house as Yaubi lives close to him. They planted tanget as it makes the pigs safe. It prevents them from roaming and getting into trouble.
15. Asked in cross-examination whether he is a sorcerer who kills people, Waru replied that he does not believe in that rubbish. He admitted that many people in the village regard him as a sorcerer. They are always telling lies about him and spoiling his good name. The State witnesses were lying to the Court. He has been blamed without good reason for a number of deaths in the village. People might fear him in their own minds but that is their problem. He denied asking Gabula for a chicken or a pig or anything like that. He does not know if the tanget has the power to heal people or kill people. He has no knowledge of any story about him telling Gabula that if he gave him a chicken there would be no deaths in his family. He did not even know the name of Gabula's son.
16. Yaubi Morio, the second defence witness, said that he recalls Tuesday 22 February 2005. After Gabula's son had been buried Waru came to his (Yaubi's) house. He told Waru about the death of Gabula's son and Waru cried and asked him to go and get Gabula so they could talk about things. Gabula eventually came and he and Waru sat down and were telling stories. They were good stories and nothing bad was said by either of them. He (Yaubi) was with them all the time. He could hear what they were saying. He was cooking some food close to them and after they had the food Gabula went back to his village, Bauri. They were talking mainly about family matters and the prospect of getting Waru's sisters to come and stay with him (Yaubi). There was tanget growing around their place which is where Waru also lives but it had been planted by himself and his wife. This was to prevent the pigs from roaming around. Jim Namora shot Waru as people were thinking that Waru was using the tanget to kill people. He does not believe that Waru is a sorcerer.
17. In cross-examination he said that he did not know anything about Waru saying to Gabula that he should give him a chicken to stop all the deaths. It was true that Gabula wanted to give Waru a pig but Waru refused to receive it.
18. Sula Sagum, the third and last defence witness, said that he knows Waru Parara very well. Waru is a leader in the village. He has had some problems over the years but he is a good person. Waru is married to his (Sula's) sister.
DID THE ACCUSED ISSUE A THREAT TO THE COMPLAINANT?
19. The court has been presented with two competing versions of the conversation of 22 February 2005 between Gabula and Waru. Gabula says that Waru told him that he knew all about the death of his son and that if he could supply him with some chickens, he could stop the deaths in his family. Waru denies asking for chicken and says that he heard that story for the first time when Gabula gave his evidence in court. Yaubi Morio says he was present and does not know anything about Waru saying to Gabula that he should give him a chicken to stop all the deaths.
20. I found Gabula to be a more convincing witness than Waru and Yaubi. Gabula seemed genuine in his response to questions. Waru appeared to be not telling the truth. His statement that he does not believe in sorcery was not believable. He admitted that some people regard him as a sorcerer and that he had actually been shot by the police on suspicion of being involved in sorcery. He also admits having tanget growing near his house. Why would he attract that attention if he, in fact, was a sorcery-sceptic? I find it much more likely that Waru, in fact, believes in sorcery and that his saying he does not believe in it was evidence of convenience – something he said in court to try to distance himself from the allegations. I also found it difficult to believe that he did not know his own nephew's name. In a village environment the bond between an uncle and his nephew is usually a very strong one. It seems quite extraordinary that Waru would not know the name of his deceased nephew; so extraordinary as to make this part of Waru's evidence not believable. Coupled with a less than convincing demeanour in the witness box, I was led to conclude that Waru was not a reliable witness. 21. Yaubi Morio falls into the same category. His story about the tanget around his house being restricted in its use to keeping the pigs in check – given the reputation that his neighbour, Waru, has as being a sorcerer and the widespread belief that tanget is an implement of sorcery – is not believable. Furthermore, Gabula and Waru were together for about seven hours. It is hard to accept that Yaubi was with them all that time and heard everything that was said.
22. I conclude that Waru did, in fact, use the words attributed to him by Gabula. Did those words amount to a threat? Yes, I am satisfied beyond reasonable doubt that they amounted to a veiled threat. Waru was letting Gabula know, in a subtle but effective way, that he had the power to stop the deaths in Gabula's family; and the inference to draw from this is that he also had the power to cause more deaths.
DID THE ACCUSED THREATEN TO USE HIS POWERS AS A SORCERER?
23. Yes. Waru was indicating that he had the power to stop the deaths and, by necessary inference, that he had the power to cause more deaths. Waru had a reputation as a sorcerer, he was suspected by the police of being involved in sorcery and he had a well known implement of sorcery growing in the vicinity of his house. The only reasonable inference to draw from the evidence is, therefore, that he was threatening to use his powers as a sorcerer.
WAS INNOCENT SORCERY INVOLVED?
24. Innocent sorcery is defined by Schedule 1.1 of the Sorcery Act, as sorcery that:
(a) is protective or curative only, or is not intended to produce, and does not purport to be calculated or able or adapted to produce, any harmful or unlawful result, or to exert any harmful unlawful or undue influence on any person; and
(b) is generally regarded in the social groups of which—
(i) the accused person; and
(ii) the person at whom the act was directed; and
(iii) the person whose conduct was intended to be influenced,
are respectively members as being, by custom, legitimate or harmless and not offensive in all the circumstances of the case.
25. The accused's counsel, Mr Hampalekie, submitted that if the court concluded that the State had proven the elements of the offence, the accused should nonetheless be acquitted as he has the defence of innocent sorcery available to him under Section 6(1), which states:
This section does not apply in cases where the sorcery involved is innocent sorcery only.
26. Mr Hampalekie submitted that the accused, if he used the words attributed to him by Gabula, was indicating that he could be involved in protective sorcery, ie he could use his powers as a sorcerer to protect people against any more deaths. I am not convinced by this argument. It avoids the 'other side of the coin': Waru was indicating that he could not only protect people, but kill them. This was not innocent sorcery. Waru, I find, had a sinister motive, which involved forbidden sorcery.
CONCLUSION
27. I am satisfied beyond reasonable doubt that the State has proven the three elements of the offence. The defence of innocent sorcery is not available. An offence under Section 6(3) of the Sorcery Act has been committed.
VERDICT
28. The accused is guilty of the offence of influencing the acts of another person by threatened use of the powers of a sorcerer.
Verdict accordingly.
________________________________________________
Public Prosecutor: Lawyer for the State
Narokobi Lawyers: Lawyers for the Accused
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