Ao v Vagi [1982] PGNC 2; N357(M) (15 April 1982)

N357(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 305 OF 1981

BETWEEN:

AO AO
APPELLANT

AND:

VAGI VAGI
RESPONDENT

Waigani: Kidu CJ
15 April 1982

KIDU CJ: The Appellant was convicted by the Port Moresby Local Court on 22nd October 1981 of the offence of adultery and sentenced to three months imprisonment with hard labour. He appeals against both his conviction and sentence. His grounds of appeal stated in the Notice of Appeal are:

"(a) that the conviction was wrong in law, in that the testimony of the partner to the adultery was uncorroborated.

(b) that the sentence was and is in the circumstances manifestly excessive."

The charge was laid under what is now section 17(2) of the Native Regulation (Papua) - formerly Regulation 84(2). This provision reads:

"A person who is subject to this Regulation who, knowing her or him to be married, has sexual intercourse with a married person (other than his or her wife or husband) who is subject to this Regulation and who is of the opposite sex is guilty of an offence.

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

The Appellant was an unmarried man at the time of the alleged offence - 10th July, 1981. The woman he was alleged to have had sexual intercourse with was the wife of the Respondent. Her name is Taita Aitsi.

I heard the appeal on 13 April, 1981. Mr. Koeget appeared for the Appellant. The Respondent did not appear nor was he represented by Counsel; he did not appear today either.

The Appellant had lived with the Respondent and his wife since some time in 1980. He is a cousin of the Respondent. On the night of the alleged offence (10th July, 1981) the Appellant, the Respondent and two others had been drinking beer outside the Respondent’s house. (The evidence does not disclose how long they had drank beer). About 11 p.m. the Appellant went to the toilet. (There is no indication as to where the toilet was - i.e. whether it was outside or inside the house - and how far it was from the place where the beer-drinking took place). According to the witness Naime Ao, the Respondent’s wife, Taita Aitsi, followed the Appellant into the toilet. Naime Ao (sister of the Appellant) said in her testimony:

"...I saw Ao went to the toilet, and later the said Taita Aitsi went into the toilet by pushing the door...."

The Respondent did not know what happened. He was informed by Naime Ao "...please tell your wife not to do this again". The Respondent’s wife’s testimony on this was as follows:

"... and that on the 10th of July to both the defendant and myself were in the toilet and they found out. We ... and the defendant’s sister found us there and she said both of us were in trouble..."

The testimony of the Appellant reads:

"Also on the 10th of July 1981, the time my sister found us, the house was full and we were drinking outside and I remember Vagi was not drinking much as myself and others. All I know was I went to the toilet and came back. I didn’t know what had happened. That’s all."

The testimonies of the Respondent, his wife Taita Aitsi, Naime Ao and Ao Ao are deficient in one important respect - i.e. there is not direct evidence that that night the Appellant and the Respondent’s wife (Taita Aitsi) had sexual intercourse in the toilet.

If sexual intercourse did take place the learned Magistrate must have inferred it from the evidence before him. Naime Ao’s testimony is pertinent here. She was asked by the Appellant:

"Q. When you found us what were we doing there?

A. Nothing, but as you were not married I didn’t want her to touch you or something like that."

I really do not know how the learned Magistrate concluded from the evidence before him that the Appellant and the Respondent’s wife had had sexual intercourse in the toilet on the night of 10th July, 1981.

The evidence seems quite clear. Ao Ao went to the toilet; Respondent’s wife Taita Aitsi followed him into the toilet; the Appellant’s sister saw them and went and told them they were in trouble; when she "found" them they were doing "nothing". Taita Aitsi did not say she and the Appellant had sexual intercourse in the toilet. The Appellant admitted nothing of the sort. There was no evidence as to how long the Appellant and Taita Aitsi had been in the toilet before Naimo Ao "found" them. She saw Taita Aitsi followed the Appellant into the toilet. She did not say whether she went to the toilet and "found" them or that she told the Respondent first before she "found" them.

I have, before me, the same "evidence" on which the learned Magistrate convicted the Appellant. With the greatest respect of his Worship, I cannot see how he could have legally convicted the Appellant.

The Constitution of Papua New Guinea says that a person charged with a criminal offence must be presumed innocent until proven guilty according to law. (Section 37(4) of the Constitution.) The Supreme Court of Justice of Papua New Guinea has ruled that this means that those who prosecutor must prove beyond a reasonable doubt that a person charged with any criminal offence is guilty.

For instance, in S.C.R. No. 2 of 1980^[1], Kearney D.C.J. said, at p. 2:

"The main thrust of Constitution s.37(4) is to place upon a prosecutor the burden of proving the guilt of a person charged with an offence. In my opinion the phrase ‘according to law’ refers to the whole body of law in the country, as exhaustively defined in Constitution s. 9; it includes the statute law and the underlying law. By the underlying law that burden on the prosecutor is discharged only when he proves beyond a reasonable doubt that the defendant is guilty; that is, that the defendant is criminally responsible for the offence charged."

The law has not changed since 1981. It is still required of prosecutors to prove beyond a reasonable doubt that a person accused of committing a criminal offence did so. In this case no court could be satisfied beyond a reasonable doubt that on the night of 10th of July, 1981 the Appellant and the Respondent’s wife had sexual intercourse in the toilet. In my view there has been a miscarriage of justice.

I allow the appeal and quash the conviction and sentence.

It is not necessary for me to consider the grounds of appeal. However, I make the following comments. If the Respondent’s wife’s testimony has contained an "admission" that she had sexual intercourse with the Appellant there would have been corroboration of that from Naime Ao and the Appellant himself.

Adultery is, of course, a criminal offence of a sexual nature and the law in this country is that in such cases corroboration is desirable. For authorities see In the Matter of an Appeal by Stanislaus Toboromilate^[2] and Peter Townsend v. George Oika^[3].

Solicitor for Appellant: The Public Prosecutor
Counsel: D. Doeget.
No appearance by Respondent.

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^[1] Unreported Supreme Court Judgment No. S.C. 192 of 6th March, 1981.
^[2] Unreported Judgment No. 46 of 24th November, 1953 of Phillip C.J.
^[3] Unreported Supreme Court Judgment S.C. 193 of 6th March.