State v Robinson [1992] PGLawRp 590; [1992] PNGLR 205 (20 May 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 205 - The State v Floyd Robinson 

[1992] PNGLR 205

N1062

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

FLOYD ROBINSON

Waigani

Los J

18 May 1992

20 May 1992

CRIMINAL LAW - Bigamy - Offence under Criminal Code Act Ch 262 - Sentences - No standard sentences - Non-custodial sentence necessary unless contrary circumstances exist.

CUSTOMARY LAW - Polygamy - A woman's status under customary law at variance with Constitution.

MATRIMONIAL CAUSES - Church solemnized marriage - Dissolution of marriage - Local Court has no jurisdiction.

Facts

Accused, having entered into a church-solemnized marriage with JA, left the matrimonial home and applied and obtained a Certificate of Dissolution of Marriage from Local Court in Port Moresby.

He then organized a new marriage by way of a civil ceremony at the Registrar General's Office in Waigani after making a false declaration of his marriage status.

Held

N1>1.       The dissolution of marriage in the Local Court of a statutory marriage is null and void as the Local Court had no jurisdiction.

N1>2.       Accused has a legal wife and two children and a de facto wife with one child.

N1>3.       Accused must be held responsible for the problems he has created.

N1>4.       Accused is given a two years suspended sentence on the charge of bigamy and a fine of K300 for false declaration, to be paid within 21 days.

Cases Cited

Papua New Guinea cases cited

Nou v Vagi [1986] PNGLR 1.

R v Baker [1971-72] PNGLR 202.

State v Gugu [1981] PNGLR 5.

State v Kamang (1975) unreported N12.

Other case cited

R v Mortimer (1919) 13 Cr App R 146.

Counsel

P Mogish with J Arni, for the State.

B Takin, for the accused.

20 May 1992

LOS J: Floyd Robinson (Robinson for convenience) pleaded guilty on a charge of bigamy. He also pleaded guilty on a charge of making a false declaration. The charge of bigamy was laid under s 360(1) of the Criminal Code. The section says:

"Subject to this section, a person who is married who goes through a form or ceremony of marriage with another person is guilty of an indictable offence.

Penalty: Imprisonment for a term not exceeding five years."

And the charge of false declaration was laid under s 475 of the Criminal Code. The section says:

"A person who knowingly, and with intent to procure it to be inserted in a register of births, deaths or marriages, makes a false statement concerning a matter required by law to be registered in any such register is guilty of a misdemeanor.

Penalty: Imprisonment for a term not exceeding three years."

There has been very limited number of reported or numbered cases in the past on bigamy. In fact, of the cases referred to by the counsel, none can be described as recent. And only one is relevant in so far as sentence is concerned, a decision by Saldahna J delivered less than a month after Independence. The case is The State v Kamang (1975) N12. The other two are R v Baker [1971-72] PNGLR 202, and The State v Boas Gugu [1981] PNGLR 5.

Robinson formed a de facto relationship with a girl, Joan Atta (JA), in 1985 at Port Moresby and both lived with that status until they went to Kerema in 1987. They had one child (male) from that relationship. Then they both decided to get married in church, and on 19 March 1987 their marriage was celebrated according to the rites of the Catholic Church at Kerema.

They then transferred to Kimbe. While at Kimbe, around July, another lady came into the life of Robinson, and the marriage ran into trouble. Robinson and JA had a form of separation with the help of the welfare officers at Kimbe. JA and the child came to Port Moresby while this new woman, Ruth Ova (RO), moved in with Robinson. During the separation, Robinson came to see JA and the child whenever he liked, but he was not so generous with any financial help. Eventually, he decided to join them. In March 1988, their second child was born. Soon after, they all went to Rabaul, where Robinson comes from. Robinson left them there and came back to Port Moresby and stayed with RO. JA and the children were not happy at Rabaul and, after repeated requests, Robinson took them back to Port Moresby and they lived at Gerehu. But Robinson's frequent absences from the house led to many confrontations by JA, either with him or RO. As a result, Robinson left the house in September 1988 and resided with RO.

Soon after leaving and in the same month, Robinson applied and obtained a Certificate of the Dissolution of Marriage from the Local Court in Port Moresby. Subsequently, at JA's complaint, the order to issue the certificate was set aside because the Local Court had no jurisdiction over a church or statutory marriage. Hence, the basis of the first charge.

In the meantime, Robinson organised a civil marriage ceremony between himself and RO. Their marriage was solemnized on 2 December 1988 at the Registrar General's Office at Waigani.

In October 1989, and it is not clear what caused such a move, Robinson came to the Registrar General's Office with the Certificate of Dissolution of Marriage from Port Moresby Local Court and requested that the information he gave before the marriage be amended by deleting "bachelor" and instead inserting "previously divorced". The request was refused; hence the basis of the second charge.

What is there that the Parliament intended to protect by making polygamous relations an offence under both the Criminal Code and the Marriage Act. In Kamang's case, Saldahna J said at page 6:

"This country, now independent, is committed by its Constitution to the rule of law, and, to treat the law as if it were a matter of no consequence by passing derisory sentences is only to bring the law into contempt. If the purpose of the Marriage Act is to protect the sanctity of the Christian marriage, I see nothing wrong with that. A large part of the population of this country is Christian. The Marriage Act does no violence to custom. It makes full provision for the recognition of marriage by native customary law. But I can well envisage that persons with strong religious beliefs would not want to marry except in Church and I can well imagine that sophisticated and educated young girls of today - and I am referring to Papua New Guineans - like teachers and nurses would not be prepared to marry a man unless they had the support of religious sanctions or the protection of the law. In my view the Marriage Act is far from being without value."

I think that apart from the moral question there are wider considerations, there is no marriage without responsibilities: children are bound to be born. They have to be fed, housed, clothed and educated. The State cannot be put to expense by irresponsible and uncommitted parents. Other provisions of the code and other legislation discourage irresponsible acts by the parents. For example, the act of desertion of children has been made an offence by s 362 of the code, and under the Deserted Wives and Children Act Ch 277, fathers are ordered to maintain their children if they leave them without means of support.

There are three types of relationship these days. Christian marriage or a civil marriage, customary marriage, and de facto relationship. Saldahna J in Kamang's case at page 6 said:

"There is nothing to prevent a man and a woman from living together without getting married, or in sin, as they say. A lot of people do this. It may be immoral but it is not illegal. There is nothing to prevent Papua New Guineans from marrying by native custom and a lot of them do this. But one cannot have it both ways. It is not irrelevant to point out that far from being victimised by the Marriage Act, as defence counsel seems to suggest, Papua New Guineans have an advantage - only they can marry by native custom in addition to other forms of marriage."

Like Robinson, many persons in the first category of relationship get caught when attracted by the polygamous-cum-free relations in the second and third category. But in the wider context, I don't think there is a world of carefree relationship under the customary marriage. A big prestigious man no longer has that unique position to marry any number of wives he likes. The status of a woman under the Constitution over-rides her position under any custom in PNG because custom as part of the underlying law comes on the lower scale than the Constitution which is the supreme law of the land: s 9 of the Constitution. The National Goals and Directive Principles No 2(12) calls for recognition and raising of the status of a woman as a wife:

"recognition of the principles that a complete relationship in marriage rests on equality of rights and duties of the partners, and that responsible parenthood is based on that equality."

When one reads this preamble together with s 55(1) of the Constitution, the call for recognition of equality of rights of the parties to a marriage is no longer a voice in the wind but there is a constitutional principle that a woman has the same rights as a man. Section 55(1) reads:

"Subject to this Constitution, all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex."

Throughout the Constitution a woman is described by the same word or phrase as a man, that is "every person", "a person", "every citizen".

In fact, many women no longer consider themselves as properties to be manipulated. One has only to look at the Summary of Sentences by the National Court. Many killings result from unequal treatments handed out by the husband to the second or third wife. Either the second wife kills the first, or the first wife kills the second or third as she demands that she, as the first wife, deserves a better treatment both in love and affection and the share of the family properties. Or the husband ends up being the victim himself. Obviously, Papua New Guinea is no longer a land of plenty - one has to sweat to see the results. Even then, there may not be enough to throw around.

So where does Robinson fall in. There can be no standard sentence for bigamy, R v Mortimer (1919) 13 Cr App R 146. In 1984, a person convicted of bigamy was released on two years good behaviour bond by Woods J. Only a passing reference is made in Nou v Vagi [1986] PNGLR 1 at 3. But the Summary of Sentences indicates that His Honour thought that the prisoner had enough problems and a custodial sentence was not appropriate. In December the same year, according to the Summary of Sentences, Kidu CJ imposed a K200 fine on a policeman for bigamy. The reasons were that the employers did not think it necessary to dismiss him. Also, he thought that his customary marriage had ceased so he married again under the Marriage Act. In sentences, the notes indicate the reasons to be the same. Let the prisoner fix up his own problems. His going to prison will only multiply the problems for the "wives" and the children.

Obviously Robinson thought he had found a life-time partner, so both of them decided to solemnize their marriage in church. Soon after that, the relationship deteriorated. The main cause seems to be the existence of the relationship with another woman, RO. The defence counsel seemed to put much blame on the wife, JA. It seems to me that Robinson started it off by forming a new relationship with RO. Out of jealousy, and she was entitled to be so, JA became interruptive, inquisitive and destructive. He could not bear it any more. He tried to get out of the relationship by going to the Local Court. The Local Court did not have any jurisdiction. But it shows that Robinson tried to do things correctly. There is no evidence he knew that the Local Court had no jurisdiction. He did obtain a Certificate of Dissolution of Marriage. There is no evidence he learnt subsequently, and before the marriage, that the Local Court had set aside the order to issue a certificate of the dissolution of marriage when it was realized that it was a statutory marriage.

On the strength of the certificate, he filed a declaration required by the Registrar General. And on the strength of that, he and RO went through the civil marriage ceremony. The truth he now realizes is that he got himself into a mess. He now has a legal wife with two children and a de facto wife with one child. He is, indeed, master of his own misfortune. He alone can fix the mess he has created. That is a gigantic task: he has to face financial and physical and emotional problems. And this is almost a life long task.

Together with those problems is the fact that he pleaded guilty, thereby saving almost one and half days of Court's time. He is also a first offender. To give him a custodial sentence is to give him a haven from the problems he has created. Let him bear the responsibilities of fixing the problems. To do that he must be left outside the prison.

Considering all those factors that I have been able to, I impose a sentence of two years imprisonment on the first count and I impose a fine of K300 on the second count, payable within 21 days. I order that the sentence of two years be suspended and I require him to be of good behaviour for two and half years.

Lawyer for the State: Public Prosecutor.

Lawyer for the accused: Public Solicitor.