State v Kamang [1975] PGNC 4; N12 (12 October 1975)

Unreported National Court Decisions

N12

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
PAUL NANGSI KAMANG

Kieta

Saldanha J
7-8 October 1975
10 October 1975
12 October 1975

JUDGMENT

SALDANHA J: Thesed, Paul Nangsi Kamangamang, is indicted on two counts. The first charges him with having committed bigamy contrary to s.63(1) of the Marriage Act and the second with having wilfully made a fstatement in a declaration tion contrary to s.65(1) of the Marriage Act. It is alleged by the State that while his first marriage was still subsisting the accused went through a ceremony of marriage with another woman, and, that, for the purposes of the second ceremony he made a false statement that he was a bachelor.

The accused is now employed by the Shell Company. Before that he was a police officer. Before he could be commissioned as a police officer the accused had to do a three-year course at the Police College in Bomana, Port Moresby. A part of the final-year course entailed training in the field, and, for this reason the accused was posted to Wewak - according to him at the beginning of May, 1971.

There he met Vicky Kutan who was a student-nurse at a hospital. He says he first met her in September, 1971, when he was in hospital with an injury sustained in playing football. Vicky says she met him earlier. He left Wewak for Port Moresby in November 1971, and after graduating with the rank of Sub-Inspector on 17th December, 1971, he went immediately on leave to his native village, Yabob, in the province of Madang.

Vicky came to Madang from Wewak in February, 1972, bringing with her her daughter Matin, who was born at Wewak on 17th January, 1972. Vicky says that Matin’s father is the accused. For a long time the accused acknowledged the child as his but now he denies paternity.

The accused and Vicky were married at the Registry Office in Madang by the District Commissioner, Clifton-Bassett, on 10th March, 1972, and, on the next day the accused left for Kieta, being the place to which he was posted. Vicky and Matin did not join the accused at Kieta. The accused says he asked Vicky repeatedly to do so and she refused. It is more likely that the accused never asked her to join him.

On 7th December, 1973, the accused went through a ceremony of marriage with a nursing sister called Mary Elizabeth Yalingu. He was married by Fr. Miltrup, a Roman Catholic priest, in the Roman Catholic Chapel at Arawa, first at a religious ceremony in accordance with the rite of the Roman Catholic Church followed by a civil ceremony.The police provided a guard of honour. At the time, his wife Vicky was still alive and the accused’s marriage to her had not been dissolved or annulled. At this ceremony the accused made a declaration before Fr. Miltrup stating inter alia that he was a bachelor.

The accused does not dispute that all the requirements of the law with respect to the solemnization of marriages had been complied with when he married Vicky nor does he deny that he went through a ceremony of marriage with Mary Elizabeth. His defence is, that, as there is some evidence that prior to her marriage to the accused Vicky had been married by native custom to another man there is a reasonable doubt whether the accused’s marriage to Vicky is valid. Alternatively, he maintains, relying on s.24 of the Criminal Code, that he held an honest and reasonable but mistaken belief that his marriage to Vicky was void. Both these defences he says are equally valid to the charge that he made a false statement in a declaration, because, if established, there would either arise a reasonable doubt that he was a married man or there would be revealed an honest and reasonable belief that he was a bachelor.

According to s.55(2) of the Marriage Act a native customary marriage is valid, and, if it were proved that Vicky had previously been married by native custom, or a reasonable doubt raised whether such a marriage might have taken place, the accused would have a complete defence to both charges. Accused sought to prove Vicky’s marriage, or raise doubt, in the following way.

He said that before his second marriage his mother telephoned him from Madang and informed him that Vicky had been previously married. He then rang the Welfare Officer at Wewak, by name Mrs. Damien, who told him that Vicky had had some trouble with her parents and former husband. He said that after his second marriage, Miss Peters, a Community Development Officer at Kieta, sent for him one day and informed him that a man called Banako had written to her claiming from the accused four hundred dollars, being the bride price he had paid when he married Vicky. But all these are vague allegations based on hearsay. If it were true that Vicky had been previously married the accused would have had ample time and opportunity to prove this. His position as a police officer would afford facilities and provide resources denied to others not so fortunately placed.

I find that it has not been established that Vicky was previously married. And not only is there not in my mind a reasonable doubt about Vicky’s previous marriage, but, on the contrary, having regard to Vicky’s denial that she was married to Banako coupled with her explanation as to who Banako is, I have no doubt that Vicky was not previously married.

The accused says that because Vicky had not replied to his letters, sometime in August 1972 he went to Madang to find out what was wrong. He says that until then his parents were not aware that he had married Vicky, and, when they heard about the marriage they were annoyed, because he was a minor and their consent had not been obtained. He says he learnt from his mother on this occasion that he was born on 11th November, 1952. His parents protested to Clifton-Bassett who agreed that the marriage was void and promised that he would write to the Registrar-General and “withdraw the marriage” or “withdraw the papers” - these being the expressions the accused has used. He contends that his belief that Vicky was previously married coupled with what Clifton-Bassett told him led him to entertain the honest and reasonable belief that his marriage to Vicky was void.

If the accused was born on 11th November, 1952 (taking in his favour the latest of the three dates of birth he has mentioned) at the date of his marriage to Vicky, namely, 10th March, 1972, he would be over nineteen years of age. He would be of marriageable age, which is eighteen years, and the marriage would be neither void nor voidable. Failure on the part of a minor to obtain the necessary consent does not invalidate the marriage (s.47(2) Marriage Act). Did the accused entertain an honest and reasonable belief, albeit mistakenly, that his marriage was void?

At the time when the accused married Vicky he was staying with his parents and Vicky lived with his parents after the marriage. In these circumstances it is scarcely likely that his parents would be ignorant of the marriage. I see no reason why Vicky should seek to keep the marriage a secret from the accused’s parents even if the accused sought to do so, which I very much doubt.

A District Commissioner would know that a marriage solemnized by him could only be dissolved or annulled by due process of law, and to suggest that the District Commissioner had told the accused he would be writing to the Registrar-General to “withdraw the marriage” is to strain belief.

The accused has given three different dates as being the dates of his birth. When he married Vicky he said he was born on 5th November, 1948. He said his mother told him he was born on 11th November, 1952, and when he married Mary Elizabeth he said he was born on 11th November 1950, and this, after his mother had allegedly told him that he was born on 11th November, 1952.

Before the accused married Mary Elizabeth he says he did not bother to enquire either from Clifton-Bassett or the Registrar-General or anyone else whether his marriage to Vicky had been declared void. He admits that he did not tell Fr. Miltrup that he had married Vicky because he knew that if he had done so Fr. Miltrup would not have performed the marriage. He admits that he kept his marriage to Vicky secret from Mary Elizabeth because he knew that had he not done so Mary Elizabeth would not have married him. In these circumstances his defence that he honestly and reasonably believed that his marriage to Vicky was void has a hollow ring.

If Vicky was pregnant with Matin at the time of her marriage the marriage would have been voidable if she had been pregnant by a person other than the husband (s.25(1) (d) Marriage Act). But as Matin was born before the parties got married the question of whether or not the accused is Matin’s father is irrelevant. But in view of the fact that a good part of the trial revolved round this question I can say with confidence that there is ample evidence that the accused is Matin’s father.

I pause here to remark that I found Vicky to be simple, and child-like, rather shy, timid and hesitant in manner, but utterly honest and truthful. In contrast the accused appears to be a hard man with a mean and cunning streak in his make-up. In the witness box he was evasive; he constantly prevaricated; he admitted having lied more than once; when cornered he gave answers that suited his defence no matter how improbable they were.

I find that the prosecution has proved beyond reasonable doubt that with full knowledge that his first marriage was subsisting the accused went through a second marriage ceremony, and, that in order to enable him to do this he wilfully made a false statement in a declaration under the Marriage Act that he was a bachelor. He is guilty on both counts and I convict him of the two offences with which he is charged.

REASONS FOR SENTENCE

The accused has made a lengthy statement. He is mostly wallowing in self-pity. I am prepared to accept however, that as a result of the charges having been brought against him he has suffered considerably. There is first of all the emotional strain he has undergone over a considerable period of time with this case like a Damocles sword hanging over his head. He was either retired or he resigned from police service and has since undergone financial hardship. As a police officer he must have rendered valuable service to the State. I shall give him credit for all these matters and take them into account in mitigation.

Accused’s counsel, states that the only mistake that the accused made was in getting married in Church, that the Marriage Act was enacted in order to protect the sanctity of Christian marriage and has no cultural value as far as the local inhabitants of this country are concerned. He says that the marriage certificate is only a piece of paper.

Bigamy is an indictable offence, and a serious one punishable with five years’ imprisonment. So is the offence of making a false statement in a declaration, which is punishable by four years’ imprisonment. I must enforce the law as I find it. If it has no value it is for the legislature to repeal it or amend it suitably.

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 in 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.

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.

The accused is an educated and fairly intelligent young man. He has been a police officer and cannot plead ignorance of the consequence of breach of the law. He has admitted that if his second wife knew that he had been married to his first, she would not have married him. That is why he kept his first marriage a secret and lied in saying that he was a bachelor.

The fact that his second wife is still living with him is not to the point. She has a child by him and for this and other reasons may find it difficult to leave him.

The two affidavits submitted are irrelevant. Whatever the position may be according to custom the accused knew that he could not marry a second time otherwise he would not have kept his first marriage a secret. Apart from that, it is monstrous to suggest that Vicky left him. It is the accused who cruelly rejected her and in spite of having a huge sum of money in savings refused to maintain her and his own child by her.

Finally there is the public interest which requires that the law must be enforced.

Taking all these matters into account I sentence the accused to six months’ imprisonment on each count, concurrent.

Solicitor for the State: L.W. Roberts-Smith, Public Prosecutor.

Counsel for the State: C. Maino-Aoae.

Solicitor for the Accused: N.H. Pratt, A/Public Solicitor.

Counsel for the Accused: K. Los.

Note: Unusually e published the the reasons for my sentence because there appears to be a feeling in some quarters that it is harsh and oppresso enforce the provisions of the Marriage Act too strictly against Papua New Guineans.