State v Kais [1978] PGLawRp 537; [1978] PNGLR 241 (6 July 1978)

	Home \| Databases \| WorldLII \| Search \| Feedback Papua New Guinea Law Reports

CRIMINAL LAW - Particular offences - Incest - Whether applies to father and adopted daughter - No clear rule of law applicable - Consideration of law in other jurisdictions - “Lineal descendant” means “of the blood” - Adoption of Children Act 1968, s. 27[cdxxxii]¹ - Customary Adoption Act 1969, s. 5[cdxxxiii]² - Criminal Code s. 226[cdxxxiv]³.

N1>CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Application of Sch. 2.3 where no clear rule of law applicable - Consideration of law in other jurisdictions.

N1>WORDS AND PHRASES - “Lineal descendant” - Means “of the blood” - Criminal law - Incest - Criminal Code, s. 226.

Section 226 of the Criminal Code provides: “Any person who carnally knows a woman or girl who is, to his knowledge, his daughter or other lineal descendant ... is guilty of a crime and is liable to imprisonment with hard labour for life.

Section 27(1) of the Adoption of Children Act 1968, provides that “for the purposes of the laws of the Territory, but subject to this Act and to the provisions of any law of the Territory that expressly distinguishes in any way between adopted children and children other than adopted children, upon the making of an adoption order—

N2>(a) the adopted child becomes a child of the adopters, and the adopters become the parents of the child, as if the child had been born to the adopters in lawful wedlock” ... and “the relationship to one another of all persons (including the adopted child and an adoptive parent or former parent of the adopted child) shall be determined on the basis of the preceding provisions of this subsection so far as they are relevant”.

Section 5(1) of the Adoption of Children (Customary Adoption Act) 1969 provides for recognition of adoption in accordance with native custom, according to the Adoption of Children Act 1968.

On the trial of an accused on a charge of incest contrary to s. 226 of the Criminal Code, it appeared that the prosecutrix was not the blood daughter of the accused but an alleged adopted daughter.

N1>(1) There being no clear rule of law applicable to whether incest between parent and adopted child is an offence known to the law of Papua New Guinea, Sch. 2.3 of the Constitution should be applied.

N1>(2) The words “lineal descendant” in s. 226 of the Criminal Code must be given their ordinary meaning which connotes a relationship “of the blood” and cannot be extended to include an adopted child.

N1>(3) The use of the words “or other lineal descendant” in s. 226 of the Criminal Code, distinguishes for the purposes of the offences created by the section between adopted children and children other than adopted children, and accordingly the provisions of s. 27(1) of the Adoption of Children Act 1968 (which is expressed to be subject to the provisions of any law etc. that “expressly distinguishes in any way between adopted children and children other than adopted children”), do not have the effect of creating an offence of incest vis-à-vis a father and his adopted daughter.

This was the trial of an accused on a charge of unlawful carnal knowledge (incest) contrary to the provisions of s. 226 of the Criminal Code. At the close of the opening address for the State, counsel for the accused submitted there was no case to answer on the ground that the prosecutrix was the adopted daughter of the accused.

ANDREW J: The accused is charged that he, on a date unknown between the 1st July, 1977 and the 31st July, 1977 in Papua New Guinea, carnally knew one Gampus Nuki who was his daughter as he then well knew.

Upon arraignment the accused pleaded guilty to the charge, but Mr. Lalor who appears as counsel for the accused made application pursuant to s. 575 of the Criminal Code of Papua New Guinea to enter a plea of not guilty on behalf of his client. The grounds of the application were that instructions showed that the prosecutrix in this case was not the daughter of the accused and whilst it might be alleged that she is an adopted daughter of the accused this does not amount to an offence known to the law of Papua New Guinea.

Mr. King of counsel for the State has outlined in his opening address to the court that the allegation is that the prosecutrix is the adopted daughter of the accused. Mr. Lalor then submitted that the accused did not have a case to answer on the same grounds as outlined. There is no doubt that a submission of no case may be made at any stage of a trial. See The State v. Paul Kundi Rape[cdxxxv]⁴. In my view the effect of this submission would be the same as both demurring or pleading and demurring to the indictment on the ground that it does not disclose any offence cognizable by the court. See s. 572 of the Criminal Code.

N1>This offence is commonly known as incest. The relevant section of the Criminal Code is as follows:

N2>“226. Any person who carnally knows a woman or girl who is, to his knowledge, his daughter or other lineal descendant, or his sister, or his mother, is guilty of a crime, and is liable to imprisonment with hard labour for life.”

In deciding whether or not this offence includes an act of intercourse with an adopted child it is in my view necessary to consider the provisions of the Adoption of Children (Customary Adoption) Act 1969 and the Adoption of Children Act 1968.

N2>5(1) ... where a child is or has at any time been in the custody of and is being or has been brought up, maintained and educated by any person or by two spouses jointly as his, her or their own child under any adoption in accordance with native custom, then for the purposes of any law of the Territory the child shall be deemed to have been adopted by that person or by those spouses jointly, as the case may be.”

Section 5(1) is dependent upon there being first an adoption in accordance with native custom.

Section 6(1), inter alia, empowers a local court upon being satisfied the adoption has been made in accordance with native custom, to grant a certificate that the adoption has been so made.

N2>“27(1) For the purposes of the laws of the Territory, but subject to this Act and to the provisions of any law of the Territory that expressly distinguishes in any way between adopted children and children other than adopted children, upon the making of an adoption order:

(a) the adopted child becomes a child of the adopters, and the adopters become the parents of the child, as if the child had been born to the adopters in lawful wedlock;

(b) the adopted child ceases to be a child of any person who was a parent (whether natural or adoptive) of the child before the making of the adoption order, and any such person ceases to be a parent of the child;

(c) the relationship to one another of all persons (including the adopted child and an adoptive parent or former parent of the adopted child) shall be determined on the basis of the preceding provisions of this sub-section so far as they are relevant;

N2>(2) Notwithstanding the provisions of Subsection (1) of this section, for the purposes of any law of the Territory relating to a sexual offence, being a law for the purposes of which the relationship between persons is relevant, an adoption order, or the discharge of an adoption order, does not cause the cessation of any relationship that would have existed if the adoption order, or the discharging order, as the case may be, had not been made, and any such relationship shall be deemed to exist in addition to any relationship that exists by virtue of the application of that subsection in relation to that adoption order or by virtue of the discharge of that adoption order.”

N2>“594. On the trial of a person charged with an offence of which carnal knowledge ... of a woman or girl, is an element, and of which blood relationship is also an element:

(a) it is sufficient to prove that the woman or girl on whose person ... the offence is alleged to have been committed is reputed to be the daughter or other lineal descendant, or sister, of the person charged ... and it is not necessary to prove that such woman or girl ... was born in lawful wedlock.”

Section 594 relates to legitimacy and means that the daughter for example of the accused need not be his legitimate daughter.

The question of whether the offence of incest may be committed between parent and adopted child has been the subject of one previous decision of this Court. In The State v. Birua Sessay [cdxxxvi]⁵, his Honour Mr. Acting Justice O’Meally held that a father who had intercourse with an adopted daughter was guilty of incest. The decision was on the authority of Rex. v. Stanley [cdxxxvii]⁶.

In my view however, that case was based on the law of New Zealand at the time. There thus appears no clear rule of law that is applicable and appropriate to the circumstances of the country and for that reason Sch. 2.3 of the Constitution must be considered.

N2>(1) If in any particular matter before a court there appears to be no rule of law that is applicable and appropriate to the circumstances of the country, it is the duty of the National Judicial System, and in particular of the Supreme Court and the National Court, to formulate an appropriate rule as part of the underlying law having regard:

(a) in particular, to the National Goals and Directive Principles and the Basic Social Obligations; and

(d) to the legislation of, and to relevant decisions of the courts of, any country that in the opinion of the court has a legal system similar to that of Papua New Guinea; and

(e) to relevant decisions of courts exercising jurisdiction in or in respect of all or any part of the country at any time,

N2>(2) If in any court other than the Supreme Court a question arises that would involve the performance of the duty imposed by Subsection (1), then, unless the question is trivial, vexatious or irrelevant:

(b) in the case of any other court (not being a village court) — the court shall,

refer the matter for decision to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.”

I therefore propose to examine the law and the relevant legislation in other jurisdictions which is in similar terms to our own and to then consider what the law is and should be in the circumstances of Papua New Guinea. However I should first indicate that the expression “lineal descendant” indicates prima facie a direct line of descent from father to son. (Stroud 4th ed.)

In the Concise Oxford Dictionary “lineal” is defined as meaning “in direct line of descent or ancestry”. Lineal descent originally meant the descent of an estate from ancestor to heir in a right line. A “right” line meant descent as grandfather, father, son and grandson. In my view the ordinary meaning of the words connotes a relationship “of the blood” and cannot be extended to include an adopted child.

Incest was made a statutory offence in New Zealand by the Criminal Code Act 1893 Amendment Act 1900. (See Adams Criminal Law and Practice in New Zealand par. 994.)

Section 2 of the Act of 1900 limits the crime of incest to carnal knowledge between father and daughter, mother and son, brother and sister (whether of the whole or half blood), and grandfather and granddaughter.

(b) Brother and sister, whether of the whole or of the half blood, and whether the relationship is traced through lawful wedlock or not; or

N2>(3) In this section the term ‘child’ includes an illegitimate child; and ‘grandchild’ has a corresponding meaning.”

Subsection (1)(b) relating to ‘lawful wedlock’ is in my opinion the equivalent to s. 594 Papua New Guinea Criminal Code.

“Upon an adoption order being made, the following paragraphs of this subsection shall have effect for all purposes, whether civil, criminal, or otherwise, but subject to the provisions of any enactment which distinguishes in any way between adopted children and children other than adopted children, namely:

(a) The adopted child shall be deemed to become the child of the adoptive parent, and the adoptive parent shall be deemed to become the parent of the child, as if the child had been born to that parent in lawful wedlock.”

In Rex. v. Stanley[cdxxxviii]⁷ the court was dealing with an earlier Act than the 1955 Act viz. the Adoption of Children Act 1881, which in ss. 5 and 6 provided as follows:

“When such an order (i.e. an order for adoption) has been made, the adopted child shall for all purposes, civil and criminal, and all advantages and benefits and other legal consequences of the natural relation of parent and child, be deemed in law to be the child born in lawful wedlock of its adopting parent.”

“When such an order has been made, the adopting parent shall for all purposes, civil, criminal, and otherwise howsoever, be deemed in law to be the parent of such adopted child, and subject to all liabilities affecting such child as if such child had been born to such adopting parent in lawful wedlock.”

The Court of Appeal in effect held that as a result of these provisions the adoptive parent of an adopted female child could be convicted of incest. At p. 1102 Edwards J, delivering the judgment of the court, said:

“The words of the 5th and 6th sections are unequivocal, and the intention of the statute is plain that for all purposes, both civil and criminal, the adopting parent is to stand in the same position as the natural parent. The prisoner therefore was rightfully convicted.”

Apart from the case of an adoptive father and an adopted girl which relationship is by statute (ss. 5 and 6 referred to above) included in the relationships specified in s. 2 of the Act of 1900, that section is confined to “carnal intercourse between blood relations” of the degrees specified, i.e. to cases where there is a “natural tie of blood”. It is “limited to blood relationships”. See Rex v. Minnis[cdxxxix]⁸ and Rex v. Geddeson [cdxl]⁹.

In Wilkinson v. The King[cdxli]¹⁰ the appellant appealed against his conviction (on grounds not relevant to this judgment) for committing incest with his adopted daughter. No issue was taken and it was accepted by the Court of Appeal that an adoptive father could commit incest with his adopted daughter.

“For the purposes of the laws of Queensland but subject to this Act and to the provisions of any other Act that expressly distinguishes in any way between adopted children and children other than adopted children, upon the making of an adoption order:

(a) the adopted child becomes a child of the adopter or adopters and the adopter becomes the parent or parents of the child, as if the child had been born to the adopter or adopters in lawful wedlock.”

In relation to this provision Carter Criminal Law of Queensland, 4th ed. p. 190 says:

“Semble, under the provisions of the Adoption of Children Act 1964-72, s. 28, an adoptive parent can commit incest with an adopted child,”

and refers to the cases of Rex v. Stanley[cdxlii]¹¹, Wilkinson v. The King[cdxliii]¹² and Regina v. Campbell[cdxliv]¹³.

“Subject to this Act when an adoption order is made thereupon by virtue of such order:

(a) the adopted child shall for all purposes civil and criminal and as regards all legal and equitable liabilities benefits privileges and consequences of the normal relations of parent or child be deemed to be a child born to the adopter or adopters in lawful wedlock and not the child of any other person;

(b) the adopter or adopters shall for all such purposes be deemed to be the father or mother (as the case may be) of such child as if such child had been born to such adopter or adopters in lawful wedlock.”

“Sections 52 and 53 of the Crimes Act 1958 shall apply to and in relation to an adopted child in respect of relatives both by adoption and by blood.”

Sections 52 and 53 relate to charges of incest and permitting incest and provide (inter alia) as follows:

“Whosoever unlawfully and carnally knows a woman or girl of or above the age of ten years such girl being to his knowledge his daughter or other lineal descendant or his stepdaughter shall be guilty of felony ...”

“The provisions of ... the last preceding section shall apply whether the relationship between the person charged with an offence ... and the person with whom the offence is alleged to have been committed is or is not traced through lawful wedlock.”

Section 53(6) is in my opinion the equivalent of s. 594 of the Papua New Guinea Criminal Code.

See also Bourke Criminal Law — Victoria 2nd ed. p. 171. It is interesting to note here that in Victoria it was apparently thought necessary to have a specific provision (s. 8(3)) over and above the general deeming provisions (s. 8(1) (a) and (b)) applying the statutory provisions as to incest to an adopted relationship. I shall return to this aspect later in this judgment.

“For the purposes of the laws of New South Wales but subject to this Act and to the provisions of any law of New South Wales that expressly distinguishes in any way between adopted children and children other than adopted children, upon the making of an adoption order:

(a) the adopted child becomes a child of the adopter or adopters, and the adopter or adopters become the parent or parents of the child, as if the child had been born to the adopter or adopters in lawful wedlock.”

As to this provision and in relation to a charge of incest, Watson and Purnell Criminal Law in New South Wales vol. 1, par. 329, p. 117, says:

“Section 35 ... equates the relationship arising from an adoption order to that of parent and child arising out of lawful wedlock.”

See also Rex v. Stanley[cdxlv]¹⁴ and Regina v. Campbell[cdxlvi]¹⁵.

“Incest. Whosoever, being a male, has carnal knowledge of his mother, sister, daughter or grand-daughter ... (whether ... the relationship is of full or half blood, or is or is not traced through lawful wedlock) shall be liable to penal servitude for seven years.”

The provision here relating to “lawful wedlock” is in my opinion equivalent to s. 594 of the Papua New Guinea Criminal Code.

N2>“(1) Any male person who has carnal knowledge of a female who is to his knowledge his grand-daughter, daughter, sister, or mother, is guilty of a crime.

N2>(4) ... the provisions of this section apply whether the relationship between the person charged with a crime under this section and the person with whom such crime is alleged to have been committed is or is not traced through lawful wedlock.”

Section 133(4) is in my opinion the equivalent provision to s. 594 of the Papua New Guinea Criminal Code.

N2>“(1) ... the adopted child shall for all purposes, civil and criminal, and as regards all legal and equitable liabilities, rights, benefits, privileges and consequences of the natural relationship of parent and child, be deemed in law to be the child born in lawful wedlock of the adopting patent ...

N2>(2) Where such order of adoption has been made, the adopting parent shall for all purposes, civil, criminal or otherwise, be deemed in law to be the parent of such adopted child and be subject to all liabilities affecting such child as if such child had been born to such adopting parent in lawful wedlock ...”

In Regina v. Campbell[cdxlvii]¹⁶ Burbury C.J held that upon the proper interpretation of s. 133 and s. 8, an adopted daughter of a man is his “daughter” within the meaning of s. 133, and if he has sexual intercourse with her he commits the crime of incest.

N1>The following passages from his Honour’s judgment are relevant to this judgment:

At p. 39 “In the case of a legitimate relationship, I find nothing in s. 133 to confine its application to a legitimate natural relationship. If, as a matter of law, a relationship referred to by the section exists, then in my view it is a crime for persons within that relationship created by law to have sexual intercourse. As I have said, s. 133 does not define the relationships to which it refers other than extending them both to legitimate and illegitimate relationships.”

At p. 40 “These provisions are unequivocal and are in unqualified terms. Their clear effect in my view is to equate for all purposes the relationship of adopting parent and child to the natural legal relationship of parent and child with all the legal incidents of that relationship as they may exist from time to time.”

“Strong persuasive support for the conclusion I have reached is to be found in the judgments of the Court of Criminal Appeal of New Zealand in R. v. Stanley (1904) 23 N.Z.L.R. 378. That was a decision of a court consisting of Stout C.J and four other judges. The legislation considered there is to my mind not distinguishable in substance from the provisions of s. 8 of the Adoption of Children Act 1920. This case was followed in Wilkinson v. The King [1947] N.Z.L.R. 412.” “I have reached the conclusion that an adopted daughter is a daughter for the purposes of s. 133 of the Code from what I conceive to be the plain meaning of s. 8 of the Adoption of Children Act 1920.”

At p. 41 “When a father as head of a family brings within the shelter of the family unit a child by adoption he stands in precisely the same legal relationship with that child as if the child had been born in lawful wedlock. To have sexual intercourse with the child is just as disruptive of their proper relationship within the family as if the child was his in lawful wedlock.”

At pp. 41-42 “In R. v. Geddeson (1906) 25 N.Z.L.R. 323 Cooper J treated consanguinity rather than affinity within the prohibited degrees of marriage as the test of incest. He regarded the case of the adopted child as a special statutory exception to this principle. The correctness of that decision is open to doubt. I refer to Harris v. Hicks (1693) 2 Salk. 548 where the ecclesiastical Court of Coventry held that the ecclesiastical offence of incest was committed by a man marrying his first wife’s sister, she being within the prohibited degrees of affinity, notwithstanding that there was no consanguinity. It is unnecessary for me to pursue this point because I am clearly of the opinion that upon the proper interpretation of the two statutes — that is to say, s. 133 of the Criminal Code and s. 8 of the Adoption of Children Act 1920 — an adopted daughter of a man is his ‘daughter’ within the meaning of s. 133 and if he has sexual intercourse with her he commits the crime of incest.”

Conclusion Effect of the Papua New Guinea legislation in the light of the authorities.

Section 27(1) of the Adoption of Children Act 1968 (Papua New Guinea), s. 16(2) of the Adoption Act 1955 (New Zealand), s. 28(1) of the Adoption of Children Act 1964 (Queensland) and s. 35(1) of the Adoption of Children Act 1965 (New South Wales) are all expressed to be subject to the provisions of any law, Act or enactment that “expressly distinguishes in any way between adopted children and children other than adopted children.”

There was no such statutory provision in New Zealand at the time that Stanley[cdxlviii]¹⁷ was decided. It appears though that in 1947 when Wilkinson[cdxlix]¹⁸ was decided the law relating to the adoption of children was contained in Pt. III of the Infants Act 1908 and that s. 16(2) of the Adoption Act 1955 may be the same as the former 1908 equivalent provision.

In Victoria there is a specific statutory provision (s. 8(3) Adoption of Children Act 1958) applying the law relating to incest to adopted relationships and there is also no provision equivalent to the Papua New Guinea, New Zealand, Queensland and New South Wales “subject to” provisions.

Section 226 of the Papua New Guinea Criminal Code, s. 222 of the Queensland Criminal Code and s. 52 of the Victoria Crimes Act 1958 expressly state (inter alia) “daughter or other lineal descendant”. There is no equivalent “limiting” words in the New Zealand equivalent, the New South Wales equivalent (s. 78a Crimes Act 1900-68) or the Tasmanian equivalent.

In my view by the use of the words “or other lineal descendant” in Papua New Guinea and Queensland the law has distinguished as far as the crime of incest is concerned between adopted children and children other than adopted children and thus for this reason the provisions in the Papua New Guinea and Queensland adoption laws do not have the effect of creating an offence of incest vis-…-vis a father and his adopted daughter.

The New Zealand, New South Wales and Tasmanian incest provisions could not be said to “expressly distinguish between adopted children and children other than adopted children”.

N2>1. The statements in Rex. v. Minnis[cdl]¹⁹ and Rex. v. Geddeson[cdli]²⁰ to the effect that the crime of incest is limited to blood relationships and that the case of an adopted child is a special statutory exception to this principle. This is so notwithstanding the obiter remarks by Burbury C.J in Regina v. Campbell[cdlii]²¹.

N1>2. The fact that in Victoria where the adoption law is not expressed to be subject to any law which distinguishes between adopted children and children other than adopted children but where the incest provisions relate to “daughter or other lineal descendant”, it was apparently considered necessary to enact a specific provision (s. 8(3)) applying the law relating to incest to adopted relationships.

N1>3. The fact that the New Zealand and Tasmanian decisions of Stanley[cdliii]²², Wilkinson[cdliv]²³ and Campbell[cdlv]²⁴ can be distinguished on the basis of different statutory provisions.

N2>4. The fact that if the adoption law in New Zealand at the time Wilkinson[cdlvi]²⁵ was decided did contain the same “subject to” provision as appears in the 1955 Act the point I have raised was not argued and at any rate the New Zealand provision creating the offence of incest is not limited by the words “daughter or other lineal descendant”.

N2>5. Section 27(2) of the Adoption of Children Act does nothing further than to preserve a pre-existing relationship for the purposes of the law relating to sexual offences. Thus the true father of a child may be guilty of incest if he committed intercourse with a daughter who had been adopted by someone else. In my view it does not operate in reverse to mean that the adoptive parent may be guilty of incest.

Where many people live in a communal society the circumstances are very different to those in the jurisdictions which I have discussed. Children are frequently raised by relatives who are not their true parents. In my view s. 226 of the Criminal Code cannot be read so as to include the offence of incest between adoptive parent and child. To extend the section to include this act would, in my opinion, having regard to the nature of a communal society, amount to this Court passing its own legislation and go beyond the scope envisaged by Sch. 2.3 of the Constitution. In my view, if it is felt that the section should be so widened this is properly a matter for legislative decision.

I therefore uphold the submission of defence counsel that there is no offence disclosed by the indictment that is cognizable by the court. I return a verdict of not guilty and the accused is discharged.

v>
R>

[cdxxxiii]Infra p. 243.

[cdxxxiv]Infra p. 243.

[cdxxxv][1976] P.N.G.L.R. 96.

[cdxxxvi](Unreported) Judgment heard at Daru on 7th June, 1977.

[cdxxxvii](1904) 23 N.Z.L.R. 378.

[cdxxxviii] (1904) 23 N.Z.L.R. 378, 1100 (Court of Appeal).

[cdxxxix](1903) 22 N.Z.L.R. 856.

[cdxl](1906) 25 N.Z.L.R. 323.

[cdxli][1947] N.Z.L.R. 412.

[cdxlii](1904) 23 N.Z.L.R. 378.

[cdxliii](1947] N.Z.L.R. 412.

[cdxliv][1968] Tas. S.R. 38.

[cdxlv](1904) 23 N.Z.L.R. 378.

[cdxlvi][1968] TASStRp 3; [1968] Tas. S.R. 38.

[cdxlvii][1968] Tas. S.R. 38.

[cdxlviii](1904) 23 N.Z.L.R. 378.

[cdxlix][1947] N.Z.L.R. 412.

[cdl](1903) 22 N.Z.L.R. 856.

[cdli](1906) 25 N.Z.L.R. 323.

[cdlii][1968] TASStRp 3; [1968] Tas. S.R. 38 at pp. 41-42.

[cdliii](1904) 23 N.Z.L.R. 378.

[cdliv][1947] N.Z.L.R. 412.

[cdlv][1968] Tas. S.R. 38.

[cdlvi][1947] N.Z.L.R. 412.

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGLawRp/1978/537.html

Papua New Guinea Law Reports

State v Kais [1978] PGLawRp 537; [1978] PNGLR 241 (6 July 1978)

Papua New Guinea Law Reports - 1978