N385(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 86 OF 1982

BETWEEN:

THE DIRECTOR OF CHILD WELFARE
APPELLANT

AND:

EDU AND IBONIGU KAPIGENO
RESPONDENTS

Waigani: Kidu CJ
July 1982; 13 August 1982

KIDU CJ: The Director of Child Welfare ("the Director" hereon) has appealed against two decisions of the Port Moresby Children’s Court (the Court) dated 29th March, 1982. These two decisions are the dismissal of his application to have a child of the Respondents’ declared a neglected child and the order that he pay costs of the Respondents amounting to K2009.75.

GROUNDS OF APPEAL

The Director’s grounds for appeal are as follows:

1. 	The dismissal of the application was against the evidence and or the weight of the evidence.
2. 	The Magistrate erred in law in holding that the evidence of the child should not be accepted without corroboration.
3. 	The Magistrate had no jurisdiction to make an order as to costs against the applicant.
4. 	The amount of K2009.75 so ordered for costs was excessive or manifestly so.

Sometime in February this year a child of the Respondents ran away from home. On 4th March, 1982 the Director made an oral application to the court to have the child declared a neglected child under s.39(1) of the Child Welfare Act. The Application, subsequently reduced to writing in the form of a District Court Complaint, came before the court on 5th March, 1982 and as an interim custody order was made pending the determination of the application. It reads:

"The child to be kept under the Mrs. Cecelia Paiknus in Flat 83, Air Niugini Korobosea...

COURT ORDER

The Child has to be kept under the above address, and should not be revealed her whereabouts until further arrangements. Further order that if the father wants to have access to the child he has to consult the Welfare Officer to make arrangements for him to see the child in the presence of the Welfare Officer".

The matter was then adjourned to 1.30 p.m. on 10th March 1982. On that date the Children’s Court (Mr. A. Joseph, Principal Magistrate and Mr. Numa Songoro, Lay-Member) adjourned the matter to 1.30 p.m. on 11th March, 1982. It also ordered the child to remain in the custody of the Director.

On 11th March, 1982 the matter was once again adjourned and this time to 16th March, 1982. It was ordered that the child remain in the custody of the Director. The Court record before me contains nothing about what transpired on 16th March, 1982. But on 29th March, 1982 the Children’s Court dealt with the matter and made the Orders now under consideration.

DISMISSAL OF DIRECTOR'S APPLICATION

Section 39(1) of the Child Welfare Act (the Act) under which the application was made applies only in cases where the person making the application has the "actual care and control" of the child the subject of the application. It reads:

"(1) 	A person who has the actual care and control of a child may apply to a childrens’ court to have the child declared to be a destitute, neglected, incorrigible or uncontrollable child."

In this case, when the application was made on 4th March, 1982, the child was not in the actual care and control of the Director. The subsequent interim orders made on 5th, 10th, 11th March, 1982 did not cure this deficiency.

When an application is made under s.39(1) the provision presupposes a situation where the application has actual care and control of the child in question. There can be no valid application under s.39(1) without having under one’s actual care and control and child subject of the application. This point was not argued by counsel although I raised it during submissions.

The Director’s application for the reasons I have stated should not have been entertained by the Children’s Court.

I make the following observations on the reasons given by the Children’s Court for dismissing the Director’s application.

1. Corroboration

On pp. 1, 2 of the Reasons for Decision the Court stated the following:

"The two issues:

(1) Father having sexual intercourse against her will.
(2) Father responsible for her pregnancy which she was six weeks pregnant.

"First (1) this is actually a rape committed which a child has accused her own father. There was no corroboration of her evidence which would be shown on the balance of probabilities that sexual intercourse actually took place and against her will. Secondly (2), six weeks pregnant which father is responsible. This allegation must be proved on the same standard as set down in affiliation proceedings under Child Welfare Act, s.50. Even though there is no specific mention of corroboration of evidence. However, there are ample authorities on this practice that complainant produce in evidence on oath either oral or affidavit in corroboration of —- some material particular, (as held in Raukisa case) as to the parterity. There was no evidence at all to prove this issue. Therefore, the Applicant failed to prove these issues."

The Court was wrong in saying that in applications under Part VII of the Child Welfare Act a child’s allegation of sexual misconduct must be corroborated as in affiliation cases under Part IX of the Act. There is nothing in the Act to support that view. In fact the Legislature has laid down quite specifically in the Act (s.53) that in affiliation cases the women’s evidence must be corroborated. As nothing of the sort is said in Part VII of the Act the only conclusion I can come to is that the Legislature deliberately did not so provide. One reason corroboration is not required in cases under Part VII of the Act is that those provisions are there to protect children.

A child’s evidence alone if accepted should be sufficient for a successful application under Part VII of the Act. I think what a Children’s Court ought to guard against is the possibility of a child making unfounded allegations out of spite, anger, or influence by others.

The proper course for Children’s Courts to adopt in cases of this type is to be on guard and remind themselves of the dangers of acting on uncorroborated evidence of children. So long as that is done there is no reason why an application under Section 39(1) cannot succeed on the evidence of a child alone if after careful scrutinising the Court is convinced of its truthfulness. I refer Counsel and the Lower Courts to the case of Peter Townsend v. George Oika.

2. It seems from the Reasons for decision the Court really dismissed the Application because of its finding that the child could not be believed

The Court said,

"Finally, the child Geraldine Dorcas Kapigeno, the child, the court found was completely trapped by the Counsel for Respondent, She was contradicting herself when questioned as to when sexual intercourse took place. She cannot recall her school holidays term, she cannot remember her menstruation period when it stopped. She cannot recall when she was six weeks pregnant, when she went to see doctor about pregnant/test. She just made up her third sexual intercourse in Aroma to meet the six weeks pregnant period when she already told the Counsel for Applicant that father had twice sexual intercourse with her. This was clear liar to court. She admitted having boyfriends both in Alotau and at Gerehu. She had admitted that her step-mother was good and she loves her but not the father. Step-mother was very friendly to her. The court found out that father was aware of his daughter having boyfriends at her age that made her perform poorly in school and also made the father transfer her around to and fro three separate schools. Gordons, Alotau and back to Badihagwa. Because of her disobedient that fahter belted her up which she admitted that he had right in belting her. However, there was no evidence of father exceedingly belting her. The question of holding her breasts by the father. She was lying because the court found she was giving sweeping answers and making sweeping statements without explaining in it. However I could believe her at the act of sexual intercourse as alleged proved on standard stated above and this I would have inferred on it. There was nothing I could do here. Therefore there was not enough evidence adduced by Applicant and ruled on that Respondent has no case to answer and the application was dismissed".

It seems clear that the Court did not believe the Child’s story. The Children’s Court’s assessment of the child’s credibility cannot be disturbed by this Court sitting as an Appellate tribunal. It had the advantage of assessing her while she gave evidence.
If the Application had been properly before the Court this would have been proper reason for dismissing it.

There has been no miscarriage of justice and I dismiss the appeal against the court’s dismissing the Appellant’s Application.

3. Appeal against order for costs

Section 31 of the Child Welfare Act says:

"In relation of any matter under this Act, a Children’s Court shall for all purposes, be deemed to be a District Court"

There is no doubt that this provision empowered Children’s Courts to make orders for costs in cases such as the present. District Courts have such power under s.267 of the District Courts have such power under s.267 of the District Courts Act:

"(1) 	The power of a court to award costs and the award of costs by a court are subject to the following provisions:

(a) 	where the court makes a conviction or order in favour of the complainant, it may in its discretion award and order that the defendant shall pay to the informant or complainant such costs as it thinks just and reasonable;

(b) 	where the court dismisses the information or complaint, or make an order in favour of the defendant, it may in its discretion award and order that the informant or the complainant shall put to the defendant such costs as it thinks just and reasonable.

(c) 	the sums allowed for costs under either of the last two preceding paragraphs shall be specified in the conviction or order of dismissal.

(d) 	a sum awarded or ordered to be paid, whether to a complainant or to a defendant, for costs (other than costs to the informant) is recoverable (without the direction of the court making the order) by execution under the provisions of Division 2 of Part IX of this Ordinance.

(e) 	where a case is adjourned the court may in its discretion order that the costs of and occasioned by the adjournment be paid by a party to another party;

(f) 	the costs of persons present to give evidence or produce documents whether they have been examined or not or have or have not produced documents, shall unless otherwise ordered by the court, be allowed to them whether or not they have been summoned but their allowance for attendance shall not exceed the highest rate of allowance prescribed;

(g) 	the amount of costs to be paid by one party to another whether for the attendance or persons referred to in the last preceding paragraph or otherwise, shall in all cases be fixed by the court; and

(h) 	where the court convicts a defendant and orders the payment of costs to the informant, the payment of costs shall be enforced in accordance with s.174 of this Ordinance.

2. 	Costs awarded under this section upon proceedings upon a complaint shall not exceed the prescribed amounts."

Counsel for the Director submitted that s.267 does not apply because an application under s.39(1) of the Child Welfare Act is not a "Complaint".

Section 5 of the District Court Act says a "Complaint" means "a complaint other than a complaint for an offence and includes an application and notice of set-off". It was submitted than the words "... an application and notice of set-off. It was submitted than the words "... an application and notice of set-off" meant "an application and notice" relating to set-offs.

This in my opinion, an incorrect construction of the definition of "Complaint". One does not make an "application for set-offs". Section 159 of the District Courts says:

"(1) 	The defendant in a complaint for a debt recoverable before a court shall not without the permission of the court:

(a) 	set-off a debt or demand claimed or recoverable by him from the complainant; or

(b) 	set up by way of defence and claim and have the benefit of illegality, infancy, coverture, or a statute of Limitations or of his discharge under a law in force in the Territory or a part of the Territory relating to bankrupt or insolvent debtors,

	unless, a reasonable time before the hearing of the complaint, notice in writing of his intention as to set-off so to set-off or to set-off or to set up that defence, as the case may be, has been given to the complainant personally or by post or by causing it to be delivered at his usual or last-known place or obode or business or at his address for service out in the summons upon the complaint.

(2) 	The defendant shall produce on the hearing a copy of the notice given under the last preceding subsection and, unless it is admitted, shall prove that it was given in accordance with that sub-section and in defence referred to in that subsection shall be set up except by consent.

This supports my views that the word "application" in the definition of "Complaint" in the District Courts Act has nothing to do with set-offs.

The Application by the Director had to be made by way of a Complaint. Section 36 of the District Courts Act says:

"Proceedings before a Court shall be commenced by an information or complaint...."

I rule that Children’s Courts have the power to order costs under s.267 of the District Courts Act.

There is no doubt that the order for costs cannot be allowed to stand. Section 267 provides:

"Costs awarded under this section upon proceeding upon a complaint shall not exceed the prescribed amounts."

I refer Counsel and Magistrates to the observation made by Mr. Justice Pratt in Dennis McEnroe v. Felix Mou at p.6.

"in the case of civil matters the costs awarded must be just and reasonable and must not exceed the amounts set forth in the schedule."

Section 270 of the District Court Acts also provides:

"An Attorney or agent is not entitled to receive more by way of fees for the work done by him than the presceibed sums"

Schedule 3 (new Schedule 3 which came into operation on 26 November 1982 and headed "lawyers" and Agents costs) prescribes the costs that may be allowed by District Courts and by Children’s Courts. The Schedule does not include most of the items included in the Respondent’s lawyer’s Bill of Costs.

I allow the appeal against the Order for costs and order that Bill or Costs be taxed by the Registrar.

Solicitor for Appellant: Mr. O.B. Emos, State Solicitor.
Counsel: Alphonse Wohuinangu
Solicitor for Respondent: Mr. A. Amet, Public Solicitor
Counsel: Mr. C. Marlowe