Peter v Kuna [2003] PGDC 45; DC682 (15 October 2003)

DC682

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS FAMILY COURT JURISDICTION]

FC 153 of 2003

BETWEEN

JOYCE PETER
(Complainant)

V.

MARK KUNA
(Defendant)

Tabubil: P. Monouluk, SM
2003: 30 July; 02 September; 15 October

MAINTENANCE – Affiliation proceedings – Child support application – Sexual intercourse not denied – Defendant denies paternity – Section 55(3) Child Welfare Act Chp. 277 – Evidence must be corroborated – Parties seek DNA test to ascertain paternity – Whether court has power to grant request – Child Welfare Act silent on the issue of DNA test – Section 9 District Courts Act Chp. 40 gives courts implied jurisdiction to act where law is silent.

Cases cited

1. Avia Aihi v. The State (No. 1) [1982] PNGLR 81
2. SCR No. 2 of 1981; Re s. 19(1)(f) Criminal Code (Ch 262) [1982] PNGLR 150
3. L v. M [1987] PNGLR 365
   

Reference

1. Child Welfare Act Chp. 277, Part IX (s. 55)
2. District Courts Act Chp. 40, s. 9
3. The Constitution of the Independent State of PNG, s. 155(4)
   

Counsel
Complainant in person
Defendant in person

15 October 2003.

1. P. Monouluk: This is an affiliation proceeding matter under the Child Welfare Act Chp. 277. The complainant on behalf of her male child is seeking child support from the defendant whom she claimed had fathered her son.

2. The matter initially commenced with a trial soon after the defendant had denied paternity. His denial stemmed from the fact that he was informed by a relative who has since left Tabubil, Western Province that the complainant whom he was having a sexual relationship with was also being ‘visited’ by another man.

3. After a half a day trial and calling of three witnesses including the litigants the defendant who steadfastly denied being the father made an appeal to the court at the end of his evidence with the consent of the complainant that the court should allow a blood test to be conducted on them which I understand to be a deoxyribonucleic acid paternity test (DNA test). The defendant added that this method was initially suggested by his employer to sort out the issue between the complainant and himself, however the former was uncooperative thus this case.

4. I must admit that this request by the defendant had indeed taken me aback because this is the first time I ever had a party before me making a request of such nature in such proceeding.

5. The question I must ask myself now is whether I have the power as a District Court to grant such a request and therefore adjourn the proceeding to allow a DNA test on the litigants and the child to help resolve the issue of paternity which we know can be difficulty to ascertain from circumstantial evidence alone.

6. I had the benefit to review the Child Welfare Act (supra) and the District Courts Act Chp. 40. Although I was not able to locate anything that may allow such request to be granted under the former, help still can be sought from the latter legislation and in particular Section 9. This provision says in this manner:

"9 Presumption of jurisdiction.

An act done or purporting to have been done by or before a magistrate shall be taken to have been done within his jurisdiction in the absence of proof to the contrary."

7. Essentially this would show that a District Court which acts in its capacity as such is deemed to act under its jurisdiction. This does not mean that a District Court is free to do whatever it pleases. The implication to be read into such a provision is that a District Court in doing so must act or exercise powers judicially and responsibly. Such exercise of power must necessarily be done to do justice in the absence of an opposing law. Apparently this law seems to give prerogative powers to the District Courts with effect similar to the inherent jurisdiction of the Supreme Court and the National Court under Section 155(4) Constitution of the Independent State of Papua New Guinea which says as follows:

"155. – The National Judicial System.

(1) ...
(2) ...
(3) ...

(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as a necessary to do justice in the circumstances of a particular case."

8. There has been varying views on the application of this law by the Higher Courts. However it is now generally accepted that its application is subjected to law. Where an issue is raised and there exist no law applicable then this provision of the law may be applied and therefore rectify the pressing issue. However, where there exists a law that adequately addresses the issue at hand then the application of s.155 (4) is unwarranted. In the case of Avia Aihi v. The State (No. 1) [1982] PNGLR 81 Andrew J said of the inherent power of the higher courts in this manner that "...it is clear enough that in general an inherent power must give way to any statutory provision with which it is in conflict". Section 155(4) does not give the Higher Courts an unlimited jurisdiction to override existing laws, its applicability is only necessary "... to ensure that persons’ rights or interests as determined by law are properly enforced and protected, if existing laws are deficient in their respond", Kidu CJ, SCR No. 2 of 1981; Re s. 19 (1)(f) Criminal Code (Ch 262) [1982] PNGLR 150.

9. I believe the availability of such a law for the Higher Courts allows flexibility for the courts to maneuver around rigid laws and in the end ensure justice for the parties. The same is true for the District Courts to make such other orders in circumstances that are necessary to do justice and at the same time protect the rights and interests of the litigants. And to do that I presume the legislators had allowed the District Courts similar powers by virtue of s.9 as a stop-gap provision for the District Courts to exercise flexibility in addressing pressing issues of law before it in the absence of an adequate law.

10. In my review of Part IX (ss. 49-63), Child Welfare Act (supra), there is no clear indication as to the type of evidence to be called to put to rest the issue of paternity. Section 55 (3) and other related provisions call for evidence largely circumstantial to make a reasonable assumption from that the defendant may or may not be the father, however it is vague in the type that may be called apart from its compliance with the requirements of the Evidence Act.

11. In the case of National Court appeal case of L v. M [1987] PNGLR 365 Justice Los (then was) was able to give some directions to the type of evidence to be called by stressing the importance of corroboration as expressed in s.55 (3)(a) Child Welfare Act (supra) came up with two manners of corroboration in which courts can use either of or both to ascertain paternity. In the first instance which is termed as ‘general corroboration’ the courts must look at the evidence of association and affection between the parties. In the second instance termed as ‘specific corroboration’ the courts must look at the opportunities where the parties may have had to have sexual intercourse which I believe can very often than not test the ability of both parties’ recollection of dates and may also prove fatal.

12. In the present case the parties by consent seek an order of the court to allow for a DNA test to ascertain the paternity of the child even though evidence was called. The defendant gave his explanation that he has no one else to corroborate his evidence and from the evidence by the complainant it would seem that he was the only person to have had sexual relationship with the complainant which he does not deny, however the fact that he heard rumours of the complainant being a two-timer he feels that in the interest of justice and fairness to himself and the complainant a test be carried out as a best and safest solution to put to rest all manner of confusions and doubts in him and their inquisitive relatives.

13. In my view that is a fair argument. The parties by consent have appealed for such to take place and in the absence of a law that expressly declare such to be unlawful I believe the application of s.9 District Courts Act (supra) by my court to ensure a DNA test is conducted is in the best interest of both parties and the circumstances of the case does warrant. Such test will not be detrimental or fatal to either of the party’s rights or interest. In fact its usage will greatly enhance the quality of evidence before the court in cases such as this where in the past the courts have relied heavily on circumstantial evidence which often can be easily fabricated or can be unreliable and we know also that sexual intercourse is rarely witnessed (garamut bai yu harim). Even so the chances of the defendant to be the father may significantly lessen where the mother has other existing sexual partners, and the defense of common prostitute which many defendants like to rely on to escape responsibility may be a thing of the past.

14. Despite these manners of corroboration there is still the real possibility of having a case dismissed or having a defendant held accountable based on evidence that may be fabricated or so unreliable and therefore result in injustice. I do bear in mind that the L v. M case was heard at the time when the opportunity for DNA paternity testing was not readily available in the country thus the measures taken by the Appeal Court.

15. In light of the availability of such test and the fact that there is no law that expressly declare such to be unlawful that I am aware of, I believe that the use of such scientific technology will be beneficial to all parties concern including the court bearing in mind the future implications on the litigants, the child and, of course, the extended family members as we understand of in our Papua New Guinean society.

16. On that basis and in the light of the absence of proof to the contrary, I hereby rule that the District Courts by virtue of s.9 of the District Courts Act (supra) do have the power to order DNA test to verify paternity in an affiliation proceeding such as this.

Orders accordingly.