Wapung v State [2017] PGNC 235; N6873 (7 September 2017)

N6873

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR 661 of 2014

MANUEL PAUL SEP WAPUNG

V

THE STATE

Kimbe: Miviri AJ
2017: 7^th September

CRIMINAL LAW- Trial - Wilful murder S299 CCA - definition of wife-competence &compellability evidence Act section 13-objection no consent by husband accused-wife to give evidence-interest of justice-protection of marriage according to law-ruling on objection.

Cases cited:

Nil
Counsel:

L. Rangan, for the State
B. Popeu, for the Defendant

RULING

8^th September, 2017

1. MIVIRI AJ: This is my ruling on an application by defence counsel yesterday objecting to the State calling the wife of the defendant to give evidence against him.
   

Background Facts

2. Manuel Paul Sep Wapung is charged with the wilful murder of Bun Nomas on the 26^th April 2013. He was allegedly seen in what he did to the deceased by his wife Nancy More. She is therefore a very important witness in the final outcome of the proceedings. But the defence has rightly objected under section 13 of the Evidence Act that she be estopped from giving evidence as she is the wife of the accused.
   
3. Section 13 of the Evidence Act is as follows: SPOUSE OF ACCUSED AS WITNESS.
   
   • (1) The wife or husband of a person charged with an offence is a competent witness in any legal proceedings in connection with the offence.
     
   • (2) Notwithstanding Subsection (1), the wife or husband of a person charged with an offence shall not be called as a witness in any legal proceedings in connection with the offence without the consent of the person, except–

(a) where the wife or husband, as the case may be, is compellable to give evidence; or

(b) where the husband or the wife is charged with being a party to an offence against the other.

(c) Notwithstanding Subsections (1) and (2), the wife or husband of a person charged with bigamy may be called as witness for the prosecution or for the defence without the consent of the accused.

4. The term wife to my mind is not loosely used in that it does not mean a female person living with a male without any process in law under the Marriage Act 1963 or vice versa. There are very good reasons in law for this in customary marriage which is recognized marriage under law a woman cannot be forced into the marriage because of custom. Marriage is free consenting union and not of duress or threats or intimidation based upon custom. It also means that the customary requirements of a marriage in accordance with that particular area must be shown to have been fulfilled for the marriage to be lawful. Also if it were by religion according to the rites of that religion for it to be recognized in law as a marriage. See sections 3, 4, 5 Marriage Act 1963. And of course marriage under Part IV and V of the Act. There is therefore a process in law for a wife to become in law and not without. That is the same in the case of a husband both so become in law and by law only.
   
5. This extension is made into the Evidence Act because as to how evidence is placed before court is by law not otherwise or without. So section 13 is in my view talking of a wife or husband whichever the case is of compliance to the law. That is the word wife or husband is not loosely used. The National court is a court of record and of law evidence that comes by and into it is by law not without. Therefore the wife of the accused must be such in law not without but within law. It would defeat law if the extension was made to include those who were living in defacto relationship as that would be against law. The Converse is of sexual penetration of minors and the like under the Criminal Code very clear. Any person can come to court and invoke a person to be a wife or husband whichever the case is and stop evidence lawfully available to do justice in a case to be prevented from so ensuring. Here the defendant on trial in practical terms will walk out of the courtroom without any strings of law on him because of this application of a loose definition of a wife or husband whichever is the case.
   
6. Preliminary evidence must be led for the basis to establish that the witness is a wife or husband in law for an application to be made for the discontinuity of that witness in law. Bare assertions upon which submission is made in law as here is not the way in law.
   

Facts

7. There is no evidence led that the witness Nancy More named witness number one is the legal or lawful wife of the defendant Manuel Paul Sep Wapung. Either a certificate of marriage or some other evidence to show in law that both are before the court lawful entwined by law as married. The opening statement of the Prosecutor is not in itself a basis to object to the evidence of this witness from giving evidence. Justice is according to law both for the State and the defendant. To deny this witness her evidence will be against the interest of justice considering that she is not even established in law as the wife of the defendant without evidence to sway the law to. I am convinced that justice will be best served for both defendant and the state if she is allowed to give evidence.
   
8. She is competent and her compellability will be by and in accordance with law of course with evidence led. I am not satisfied that that has been done here and I accordingly it is my ruling that the objection raised has not been made out. I rule that the State proceed to call the witness Nancy More to give her evidence.
   

Ruling accordingly
________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Defendant