Vebubu v Maleva [1987] PGNC 67; [1987] PNGLR 87; N591 (21 May 1987)

N591

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

HURE VEBUBU

V

NELLY MALEVA

Waigani
Kidu CJ
19 May 1987
21 May 1987

INFERIOR COURTS - Local courts - Complaints - Duplicity in - Complaint may be bad for - Complaint of adultery - Alleged on two different dates - Complaint bad - Local Courts Act (Ch No 40).

JUSTICES - Local courts - Complaints - Duplicity in - Complaint may be bad for - Local Courts Act (Ch No 40).

CRIMINAL LAW - Practice and procedure - Informations and complaints - Duplicity - Complaint in local court may be bad for - Local Courts Act (Ch No 40).

Held

(1) A complaint in the Local Court should relate to one matter only; it should not contain two charges despite the absence in the Local Courts Act (Ch No 40) of any relevant provision in relation thereto.

Siwi Kurondo v Kevan Wylde [1973] PNGLR 110, adopted and applied.

(2) Accordingly, a complaint alleging adultery with a married man "on the 9 and 10 of May 1986" was bad for duplicity.

Cases Cited

R v Thompson [1913] UKLawRpKQB 236; [1914] 2 KB 99; (1913) 24 Cox CC 43.
Siwi Kurondo v Kevan Wylde [1973] PNGLR 110.

Appeal

This was an appeal against conviction for adultery and an order for payment of compensation made in the Local Court.

Counsel

D Sakumai, for the appellant.
T Rei, for the respondent.
Cur adv vult

21 May 1987

KIDU CJ: This is an appeal against a conviction for adultery and an order for payment of compensation of K100. The grounds of appeal are as follows:

(1) That there was an error in law on conviction in that the complaint was bad for duplicity.

(2) That there was an error in law on conviction in that it is not supported by the evidence.

(3) That the compensation is excessive in all the circumstances.

Nelly married Geva Maleva on 19 January 1984. The marriage was registered under the Marriage Act (Ch No 280). The marriage can therefore only be dissolved by the National Court.

Nelly, Geva and Hure (the appellant) come from Gaire Village in the Central Province. In May of 1986 Nelly and Geva were living at Hohola No 1 in the National Capital District while Hure was living at home in Gaire, but she was employed in Port Moresby.

From Nelly’s evidence Hure and Geva had an affair before, as in 1984, Hure took Geva to the District Court on a complaint for maintenance for one of her two children. But the case was dismissed due to lack of evidence. This evidence was not denied by Hure. In fact she did not give evidence or call any witnesses on her own behalf.

On 9 May 1986 Geva did not go home. So Nelly and Maleva (Geva’s father) looked for him and on 11 May they went to Rouna and found Geva and Hure in a house belonging to one of Geva’s relatives. They stayed on the verandah of the house but saw Geva and Hure inside with the occupants of the house.

There was only hearsay evidence that Geva and Hure had gone to this house by taxi on 9 May. Such evidence was allegedly from Geva. He did not give evidence. For all we know Hure and Geva could have gone up to Rouna on the 11th, the same day that Nelly and Maleva went up. Seeing the two together in the house at Rouna by itself does not prove anything. But I do not have to go into that because of what I am about to say on the first ground of appeal.

COMPLAINT BAD FOR DUPLICITY

The complaint is worded, inter alia, as follows:

"... You (Hure Vebubu did have sexual intercourse with Geva Maleva (a married man) knowing him to be a married man on the 9th and 10th of May 1986 at Rouna, Central Province."

It is explicit that the complaint contains allegations of two different acts of adultery - one on 9 May and the other on 10 May.

Mr Tau Rei for the respondent says that there is no provision in the Local Courts Act (Ch No 41) similar to s 29 of the District Courts Act (Ch No 40) — ie there is no statutory bar to having two charges in one complaint. Mr Sakumai for the appellant submits that no complaint, whether in the District Court or the Local Court, should contain two charges, especially two charges in the one count as is the case in the present appeal.

In the absence in the Local Courts Act of a provision similar to s 29 of the District Courts Act resort must be had to the underlying law and in this respect the pre-Independence case of Siwi Kurondo v Kevan Wylde [1973] PNGLR 110 is relevant. This was an appeal from the Local Court to the Supreme Court (now National Court) against conviction and sentence. The appeal against conviction was upheld as the complaint was bad for duplicity. The complainant charged the appellant with behaving in a riotous manner on 19 and 20 July 1972. Mr Justice Kelly (as he then was — he is now Senior Puisne Judge of the Supreme Court of Queensland), in applying the common law of England in relation to duplicity, said at 112-114:

"Section 22 of the Local Courts Ordinance which deals with complaints under that Ordinance does not by its terms require that a complaint shall be for one matter only and there is no other provision in the Ordinance to this effect. This is to be contrasted with the position under the District Courts Ordinance which by s 37 requires that with certain exceptions an information shall be for one matter only, a provision which has its genesis in Summary Jurisdiciton Act 1848 of the United Kingdom. I do not consider that any particular assistance is to be derived from provisions in the Local Courts Ordinance such as ss 15, 38 and 41 the effect of which is that in certain events a matter instituted in the Local Court may ultimately be heard in the District Court. I do not think that such provisions require a reading together of the two Ordinances (that is, the Local Courts Ordinance and the District Courts Ordinance) and in the event that a complaint alleging more than one offence and which had originated in the Local Court came to be heard in the District Court, that court, having regard to s 37 of the District Courts Ordinance, should once it was seized of the matter proceed to put the prosecutor to his election.

In my view it is pertinent to determine if there is any common law principle which is applicable. Regard is to be had to s 16 of the Laws Repeal and Adopting Ordinance 1921-1933 (NG) which provides that:

‘The principles and rules of common law and equity that were in force in England on 9th May 1921, shall be in force in the Territory so far as the same are applicable to the circumstances of the Territory, and are not repugnant to or inconsistent with the provisions of any Act, Ordinance, law, regulation, rule, order or proclamation having the force of the law that is expressed to extend to or applied to or made or promulgated in the Territory.’

When this section was considered by the High Court in Booth v Booth [1935] HCA 15; (1935) 53 CLR 1 at 30, Rich and Dixon JJ said that a very wide meaning should be given to the section, and added by way of obiter — ‘Probably the principles and rules of common law must be taken subject to and together with the statutory modifications in their application which had been made in England before 9 May 1921.’

In the case of indictments the common law rule prior to 1915 had been that whilst as a matter of law even two offences of felony could be charged in the same count, the practice was uniform and well established that several offences should not be charged in the same count and an indictment which did so was irregular (see R v Thompson [1913] UKLawRpKQB 236; (1913) 24 Cox CC 43 at 46). In 1915 in England the Indictment Rules were made under the Indictments Act of that year. Neither the Act nor the Rules are available to me here but the position as at 9 May 1921, may be regarded as being authoritatively stated in R v Molloy (1921) 15 Cr App R 170 at 171 by Avory J in a judgment in the Court of Criminal Appeal delivered on 11 April 1921, in which he said, ‘In this case it is clear on the authorities quoted that when two felonies are charged in the same count of an indictment, such indictment — unless it can be cured by the Indictments Act 1915 — is bad on the ground of duplicity’. That of course related to indictments and the position in relation to complaints before justices was dealt with by the Summary Jurisdiction Act 1848 and legislation which subsequently replaced it which was to the effect of s 37 of the District Courts Ordinance and specifically required that subject to certain exceptions which are not applicable here the complaint should be for one matter only. This might be thought to have given statutory effect to common law principle that a charge against an accused should relate to only one offence and that this should be so whatever the nature of the offence or the court in which the accused was tried.

Applying the dictum of Rich and Dixon JJ in Booth v Booth to which I have referred above, I would therefore consider that part of the common law of England introduced into New Guinea in 1921 was the rule that in general a charge against an accused person should relate to one offence only. There is nothing in the Local Courts Ordinance which would prevent such a rule continuing in force in relation to complaints under that Ordinance and it is certainly applicable to the circumstances of the Territory.

I would therefore consider that a complaint under the Local Courts Ordinance should in general relate to one matter only. It is not necessary for the present purpose to consider whether as part of the common law of England introduced into New Guinea there are qualifications to that rule along the lines of s 37 of the District Courts Ordinance as no such qualification would apply in this case. I may say that I have previously expressed a view on this matter to the contrary of that which I now hold, but that was without benefit of argument on the question and of the further consideration which I have now been able to give to it."

The basis of Kelly J’s adoption of the common law "tainted by statute" is now altered by Section Sch 2.2(3) of the Constitution, which provides as follows:

"The principles and rule of common law and equity are adopted as provided by Subsections (1) and (2) notwithstanding any revision of them by any statute of England that does not apply in the country by virtue of Section Sch 2.6 (adoption of Pre-Independence laws)."

As Kelly J said in Siwi Kurondo the common law principle on duplicity of charges, before statutory provisions were enacted, is stated by the Court of Criminal Appeal in R v Thompson [1913] UKLawRpKQB 236; (1913) 24 Cox CC 43 at 46:

"... We are of the opinion that, although very high authorities have, in the past, expressed the opinion that, as a matter of law, even two offences of felony could be charged in the same court (see Castro v The Queen (1881) 14 Cox CC 546) the practice is uniform and well established that several offences should not be charged in the same count and the indictment in this case was irregular for that reason."

I would accept this as applicable to the charges laid in the Local Court and the main reason I readily accept this rule of common law is that in relation to charges in the District Court (and the National Court, apart from some statutory exceptions) s 29 of the District Courts Act bars duplicity of charges. Both the District Courts and the Local Courts have concurrent jurisdiction in all defined summary offences, including adultery. In these circumstances it would be contrary to common sense to say that a person faced with a duplicity of charges in the District Court may challenge the information whilst the same duplicity of same charges in the Local Court cannot be challenged.

The complaint in this case was defective and the conviction on it was bad. It appears that the Local Court either convicted the appellant of two charges of adultery but only imposed one penalty or that the conviction was for only one of the offences. If the latter was the case, which of the offences was the subject of the conviction - the one which allegedly occurred on 9 May or the one which was alleged to have occurred on 10 May? I am not prepared to say that the conviction was for both offences alleged, because the fact that one penalty was imposed clearly shows that the appellant was convicted of one offence only.

In the circumstances I hold that the appellant was not afforded a proper trial albeit it follows that substantial miscarriage was done to her.

It was unnecessary for me to consider the other two grounds of appeal but I say this. If the charge had been properly laid there was no evidence of adultery. The fact that the appellant and the respondent’s husband were found in a relation’s house at Rouna with these relations in attendance without more does not support a finding of adultery.

ORDER

I quash the conviction, set aside the fine and order for compensation.

Orders accordingly

_____________________

Lawyer for the appellant: Public Solicitor.
Lawyer for the respondent: Rei Kudada & Associates.