N324(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN RE: EMMANUEL LAVAKI

Waigani: Quinlivan AJ
10 January 1981; 12 January 1981

CRIMINAL LAW "incest" with a niece is not, of itself, an offence known to the law.

- although the magistrate was wrong in committing applicant for trial, the principle of Separation of Functions requires that this Court, on a bail application, do not intere because section 537 of the Criminal Code vests, in the Public Prosecutor the duty of deciding what charge, if any, shall be laid and other charges may be covered by the evidence.

QUINLIVAN AJ: This is an application for bail and it is made, in the normal way, by counsel for both the applicant and for the police attending together in Chambers. It does, however, have certain unusual aspects which should be brought to the attention of both Police and all Magistrates and, for this reason, this "judgment" is in a slightly expanded form.

The applicant, Emmanuel Lavaki, was charged with incest and it appears that a District Court magistrate has conducted his "preliminary inquiry" into that indictable offence and he had committed the applicant for trial on that charge. He also remanded him in custody until that trial could take place, and refused him bail, because of the seriousness with which he regarded the charge - hence this application for bail.

The fact is, however, that the alleged incest is said to have been committed by the applicant with his niece. And in law, there is no such thing as "incest" with one’s niece.

The Concise Oxford Dictionary (which is available in every court-house) defines NIECE as "brother’s or sister’s daughter." Other dictionaries define a NIECE by saying that she is on a "lateral" branch and this description explains the first part of what concerns us here because it points to the difference between lateral (that is "on either side") and lineal (that is "in the one line").

Whatever one may think the law ought to be, the fact is that section 37(2) of the Constitution says that only such conduct as is defined to be an offence by "a written law" can be the subject of a criminal charge and, according to the principle of Separation of Functions which is the very basis of our legal system, it is only Parliament (or, in regard to regulatory matters, some other body with lawful powers to legislate) which can decide what "conduct" shall be an offence. And Parliament has said, by section 226 of the Criminal Code that:

"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." (my underlining).

The conduct complained of may, of course, be defined to be an offence in some other part of the Criminal Code - it may for instance, be "statutory rape" - but the only point I wish to make here is that, as the law at present stands, sexual intercourse by a man with his niece cannot be "incest".

The fact that the one set of acts can be covered by several different pieces of legislation - and the fact that the principle of Separation of Powers is the essential foundation of our legal system does, however, bring me to another point. The magistrate has committed the appellant for trial so it is the function, and the duty, of the Public Prosecutor, under section 537 of the Criminal Code, to do all the preparatory and investigative work necessary so that "a charge of any offence that the evidence appears to him to warrant" shall be laid (or as I pointed out elsewhere, no charge) and, since this is only an application for bail, it would be wrong for me to interfere in the exercise of his function.

Solicitor for Applicant: A. Amet Esquire Public Solicitor
Counsel: R. Koaru Esq.
Solicitor for State: L. Gavara-Nanu Esq. Public Prosecutor
Counsel: C. Bourke and M. Unagui.