N11152

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CIA NO. 27 OF 2022

BETWEEN
JACK WENGXING
Appellant

AND
BRITNEY MURUNA
Respondent

BUKA (decision delivered in Waigani): COATES J
7 FEBRUARY 2025 

DISTRICT COURT APPEAL – Child maintenance – maintenance awarded against appellant - appellant claims magistrate considered irrelevant material – claim magistrate miscalculated gestation period for child – no challenge at trial to new evidence given by mother – grounds not made out – magistrate’s decision upheld.

Counsel

Mr T. Tamusio for the applicant
Mr F. Lugabai for the respondent

DECISION 

1.	COATES J: This is an appeal against the decision of a magistrate of the District Court at Buka which ordered the appellant to pay K300.00 a fortnight in maintenance to the mother for the child Jacky Muruna, and that he pays K2,500.00 confinement fee.

2.	The appeal is brought pursuant to s.219 of the District Courts Act 1963.

3.	The grounds of appeal are:

a)	That the learned magistrate erred in fact and law by not confining his findings to the actual complaint;
b)	That the learned magistrate erred in fact and law as the defendant was unlikely to be the father as the complainant was deemed a common prostitute and according to the gestation method, the defendant could not have been the father;
c)	That the learned magistrate erred in fact and law as the complainant’s evidence was not proven in material particulars especially because of the different dates she gave in evidence;
d)	That the learned magistrate erred in fact and law by putting too much weight on additional dates given by the complainant in evidence which were never pleaded at the commencement of the proceedings; and
e)	Any additional grounds which may arise on perusal of the learned magistrate’s reasons.

4.	The decision being appealed was delivered 6 December 2022 at Buka after a hearing.

5.	The maintenance orders were made pursuant to s.106 of the Lukautim Pikinini Act and were to commence on 9 December 2022.

6.	The section allows for maintenance when a child is without means of support.

BACKGROUND

7.	The complainant comes from Eltupan Village, Buka island.

8.	The respondent comes from Fujian Province in China and is now married to a woman from South Bougainville and a resident of Bougainville.

9.	The magistrate found that the appellant and respondent met each other at a business function hosted by the Chinese business community on Buka and engaged in sexual intercourse on numerous occasions. 

10.	The mother admitted having sexual relations with three Chinese men, including the appellant, the appellant’s case being that the evidence did not show the child was his. 

11.	She fell pregnant and gave birth on 20 February 2022. 

12.	She said the appellant did not contact her after she gave birth or support the child. 

THE EVIDENCE CONSIDERED

13.	The learned magistrate identified in his reasons the evidence of when the complainant had sexual relations, and he used these dates to apply conception calculations given in a gestation chart. 

14.	The accuracy of the calculations in the gestation chart were not challenged in this appeal, but dates of sexual intercourse were challenged.

15.	The magistrate did state that a DNA test would have resolved the issue, but the parties did not take one and he was left to make the determination on the evidence given.

16.	The evidence was that the mother had sexual relations on the following relevant dates – 20 February 2021 with a Chinese man named Kevin, on 21 February 2021 with a Chinese man named Georgie, on 25 April 2021 with the appellant, on 1 May 2021 with the appellant, on 8 May 2021 with the appellant and on the 15 May 2021 with the appellant.

17.	The appellant stated that Georgie had sexual relations with the mother on 20 March 2021 and with Kevin on 13 March 2021 and he only had sexual relations with her on 27 March 2021 and 3 April 2021. He said he did not have relations on 11 April as claimed because the mother was in her menstrual cycle.

18.	That he was away from home on 27 March 2021 and 3 April 2021was confirmed by his wife in evidence, but it is clear that such dates are irrelevant to the nine-month gestation period, the child being born in February 2022.

19.	The learned magistrate rejected the appellant’s evidence of only having sexual relations on two occasions, finding as a fact that he had intercourse on four occasions.

20.	In considering the times in the gestation chart, the learned magistrate concluded that the encounters with Kevin and Georgie would mean that the child was born almost 12 months after their encounters, so the child could not belong to either of them as the gestation period is (about) nine-months.

21.	The learned magistrate then considered, as he is required to do under the Act, whether there was evidence that the child would be without support, a conclusion he came to after hearing the evidence.

22.	He also considered that the Act allowed him to take into account confinement costs.

THE COMPETITING SUBMISSIONS

23.	Regarding appeal ground No.1 and appeal ground No.2 – that the learned magistrate did not confine his reasons to the actual complaint laid and according to the gestation method the child could not be the appellant’s child.

24.	It is convenient to combine these two grounds as the submissions crossed over. 

25.	These are the major ground of appeal, because the complainant changed her evidence during the hearing to include two extra dates in May when she had sexual relations with the appellant, being the 8 and 15 May 2021 – so as to bring the child’s birth date within the nine-month period.

26.	It was submitted that the new dates were not supported by evidence and too much weight was put on the new dates. 

27.	That seems to miss the point.

28.	The magistrate clearly stated that there was a range of dates during the gestation period in which the child could be conceived until birth.

29.	That the complainant may have added extra dates to ensure she was brought within the period may reflect her state of mind, however, there is a date which was in her original material when she had sexual relations with the appellant, which was 1 May 2021.

30.	As the magistrate stated, a child could be conceived after one encounter, so even without the additional dates, there was the 1 May date which was still clearly a date which would account for the child’s birth in February the following year.

31.	The appellant argued that s.106 of the Lukautim Pikini Act required materials to be in writing and on oath and stated in a prescribed form under the District Courts Act as well as an application or amended application to introduce new material. 

32.	As the respondent mother’s counsel argued, there was no objection to the introduction of the new evidence and without objection it is difficult to argue that there was some type of miscarriage later.

33.	The appellant has tried then unsuccessfully to challenge factual findings, findings the magistrate was entitled to make on the evidence.

34.	Challenging factual findings on appeal is a very difficult undertaking, requiring an error to be identified and requires much more than simply disagreeing with the findings.

35.	No such error was apparent in the appellant’s arguments, so on that basis the grounds cannot be made out.

36.	Regarding appeal ground No. 3 – no particulars given for the new dates the respondent introduced in evidence.

37.	The appellant claims that all evidence given by the respondent must be “corroborated meticulously with some good independent evidence”.

38.	Very few questions of fact are required to be corroborated, and counsel did not identify in the Lukautim Pikinini Act what evidence must be corroborated.

39.	Corroborating evidence is independent evidence which strengthens or confirms a fact-in-issue, but it is not a necessity in this case unless stated in legislation.

40.	The course of a trial is that the available evidence is given and the fact finder, be that magistrate or judge, determines whether there is enough cogent admissible evidence to come to a conclusion on the particular question, applying the test in civil proceedings, being on the balance of probability. 

41.	If the evidence is not cogent, then it is not accepted.

42.	The learned magistrate stated and was aware of the limitations of his enquiry under the gestation method and noted that there was flexibility in the estimates within reason.

43.	On that basis this ground cannot be made out in the appellant’s favour.

44.	As to appeal ground No.4 – too much weight placed on the new dates given by the respondent and such were not pleaded.

45.	This is reiterating appeal grounds No.1 and No.2 addressed above.

46.	In submission counsel for the appellant stated that the gestation method means the child must have been conceived either on 7 May or 16 May, the new dates given, but as I observed above, the learned magistrate was aware of differences in periods applicable to different mothers and the 1 May date had been pleaded.

47.	Further, the ground also sought a DNA test which the appellant had been seeking.

48.	As I understood the evidence, such testing is not readily available in the Bougainville region, if at all, and any order made for such may become an unenforceable order, something the court will not make.

49.	This ground cannot be made out in the appellant’s favour.

50.	As to appeal ground No.5 – any additional ground which may become available.

51.	It is not the court’s role to conduct the case for either party.

52.	If from the evidence such a ground could be identified, then it up to the party to put such before the court.

53.	This ground cannot be made out in the appellant’s favour.

54.	Finally, I will comment on one of the grounds of appeal being that the respondent is a common prostitute.

55.	I noted that this quite rightly was not pursued with counsel recognising his legal duty not to put such material forward.

56.	Even if there was such evidence of the mother’s disposition, and there was not, such material should never have been stated in the appeal documents as it was just scandalous and irrelevant.

57.	The Lukautim Pikinini Act is a best interest Act for the support of children and one which protects their rights and well-being whatever their parental circumstances. 

58.	The best interests of all children are provided for under the Act. 

59.	By order, the appeal filed by the appellant is dismissed and the orders of the learned magistrate are those which will govern maintenance and confinement arrangements for the mother and child.

ORDER

60.	The appeal filed on 16 December 2022 is dismissed and the orders made 6 December 2022 in the District Court are those which govern the maintenance and confinement arrangements for the mother and child.

Judgement accordingly 
________________________________________________________________
Lawyers for applicant: Tamusio & Associates Lawyers
Lawyers for respondent: Public Solicitor’s Office