N355(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 50 OF 1980

BETWEEN:

WANIRE MIANA
APPELLANT

AND:

SIMON SUAP
RESPONDENT

Waigani: Kidu CJ
13 April 1982

KIDU CJ: Today (13th April, 1981) I quashed the conviction and sentence of the Local Court sitting at Sogeri, in the Central Province. The conviction and sentence were dated 17th of February, 1982. On that date the Court convicted the Appellant of the breach of Section 17(1) of the Native Regulation (Papua). This provision reads:

"17. Adultery

(1) A married person who is subject to this Regulation who has sexual intercourse with another such person of the opposite sex (other than his or her wife or husband) is guilty of an offence.

Penalty: A fine not exceeding K6.00 or imprisonment for a term not exceeding six months, or both."

I allowed the appeal and quashed the conviction and sentence of two (2) months imprisonment because the Appellant had been charged and prosecuted by the Police contrary to what Section 17(3) of the Regulation says:

"(3) A complaint may be brought under subsections (1) and (2) only:

(a) by the husband or wife (being a person who is subject to this Regulation) of the woman or man with whom the offence was alleged to have been committed; or

(b) in the absence of the husband or wife, as the case may be, by his or her nearest available relative."

The Statement of Facts shows that the Appellant was interviewed by the Police "told of his rights, cautioned and charged and placed in the cell." The Respondent, Simon Suap of Sogeri Police was the Informant. There is no evidence that he was the husband of the woman with whom the Appellant had sexual intercourse. There is no evidence that he is a "nearest available relative" of the woman’s husband. The Statement of Facts says, inter alia, as follows:

"At about 4.30 p.m. on the 7th day of February, 1982, the group of Councillors approached the police station with the defendant now before the court Mr. Wanire Miana and they told the police that, this man had previously did sexual intercourse with the other two women namely (1) Mrs. Inai Tau and Mrs. Ia Ina the both are married women. But now he went and had sexual with this woman namely Mrs. Deune Waga also a married woman.

In regarding the matter, police questioned this defendant and he admitted the offence and said, "Yes, I did have sexual intercourse with her because she also agreed to do so."

Magistrates must follow the law. It is the law which gives them jurisdiction. The law on adultery says who can bring a complaint in adultery cases - it does not include the Police.

Solicitor for Appellant: The Public Solicitor.
Counsel: D. Koeget.
No Appearance by Respondent