Burunge v Kaupa [1983] PGSC 5; SC258 (25 July 1983)

Unreported Supreme Court Decisions

SC258

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

S.C.A. NO. 46 OF 1982
BETWEEN: ASI BURUNGE
APPELLANT
AND: JOHN KAUPA
RESPONDENT

Waigani

Kidu CJ Andrew McDermott JJ
25 July 1983

APPEAL - Native Regulations Act 1908 (Papua) (Non Native Regulation (Papua) Chapter No. 316) Adultery Regulations Appeal against sentence - Need for caution in such matters where customs can vary greatly

Appropriateness of Native Regulations and Adultery Provisions discussed

Cases Referred

Acting Public Prosecutor v. Joe Kovea Mailai (1981) P.N.G.L.R. 258

The Public Prosecutor v. Willy Moke Soki (1977) P.N.G.L.R. 165

R v. Liekefett; Ex Parte Attorney-General (1973) Qd. R. 355

Order of the Court

Conviction confirmed. Appeal against sentence allowed. Sentence reduced to the period of imprisonment already served.

JUDGMENT

KIDU CJ: The Notice of Appeal and Application for Leave to Appeal were filed on 3rd December, 1982. During the hearing the Grounds of Appeal were amended and they now read:

“13. That the sentence was and is in all the circumstances manifestly excessive, in particular, in that:

(a) His Honour failed to sufficiently take into account the surrounding circumstances pertaining to the delay in bringing the appeal on for hearing; and

(b) His Honour failed to give due weight to the fact that the appellant was out on bail pending the hearing of his appeal for 11 months.

(c) His Honour erred in finding that a custodial sentence was the only penalty open to him at the District Court.”

The Appellant was, on 4th November, 1981, convicted of adultery with the Respondent’s wife. He pleaded guilty to the charge. The charge was entertained by the Port Moresby Local Court. This Court’s order says:

“Defendant convicted and sentenced to Bomana C.I.S. for four (4) months in hard labour.

Further order defendant to keep away from Complainant’s wife when he comes from prison”.

An Appeal to the National Court was lodged on 2nd November, 1981. (App. No. 331 of 1981) Partly as the result of the failure be the Registrar to serve the respondent with the Notice of Appeal as required by s.6 of the Local Court Rules of Appeal, the appellant did not have his appeal determined by the National Court until 3rd November, 1982. The appeal was allowed but the sentence was reduced from 4 months to 3 months. It is this decision that the appellant has challenged in this Court.

I set out hereunder 3 documents, in their entirety, because they show the errors made by both the Local Court and the National Court. They are in pp. 6-7, 11-13 of the Appeal Book:

“1. Statement of Facts

My wife is from my area, and I didn’t know that she had made friend with the defendant while she was single, So I got married to my wife, namely SIRI KUA 10 years ago and we have three (3) children. The defendant know very well that she is my wife, But when I am in work he used to give money at every corner and in August my wife was taken away by the defendant and they went around having sexual intercourse, I went to all the police station in Port Moresby (NCD) and finally I found them at or Konedobu near the Lawes Road, they were in a house during the day so I locked the door and I came to get the police at town Police. When I arrived at the house with Police they broke the window and went out, and they are still at large in the city and it is very hard for me to contact them. Because of this, I am really suffering so as my three children who are now separated from family. The first one is with me, the second one with my sister, and the last one who is 6 months old is at ISU PLANTATION with my brother who’s wife is looking after him.

The defendant know very well that my wife had three children so I thought he would let her come back, but he kept on going with my wife, and I want this Court to take positive action against the man or defendant and that my wife will come back to me and look after the family.

I promise the court that I will not get upset or crossed for what she had done since August to now, I am really worried about my children and my wife being separated because of his relationship with her.

That’s all.

Bench:

Q. How did you get married to your wife?

A. By our custom and I paid, K800.00 cash plus a big pig valued K500.00 as bride price.”

“STATEMENT OF DEFENDANT

CT.

Q.1. Have you heard the facts?

A. Yes.

Q.2. Do you understand the facts?

A. Yes.

Q.3. Are the facts correct?

A. Yes.

Q.4. Do you wish to say anything in your defence?

A. Yes.

When the said SIRI KUA was single she was with her father and my father were at Goroka, at OPETU Village at ASARO, and that time the woman was sort of pointed or mark for me in 1972. In 1973, I left home and went to POPONDETTA and I was there for six years and in 1979 I came to Port Moresby. In July of this year, the woman meet me at Koki market, and I asked her if she was married or not, and she said she was married, I said okey, you married already, and second time we met again, then 3rd time the complainant belt her up and burned her clothes so she came and now she lived together with me.

Thats all.”

3. Magistrate’s Reasons

‘This is an adultery case where the appellant appear before me on Summons on 4th November, 1981. I convicted the appellant and sentenced him to four (4) months imprisonment with hard labour on the appellant, plea of guilty.

The reasons for the conviction and sentence are all clearly stated in the evidence of the respondent in his statements of facts and appellant’s evidence in reply to the respondent’s statements of facts. (please see the attached statement of facts and defendant’s statements).

The reasons for impsoing a four (4) months in hard labour was done after considering the followings:

(1) Because of the defendant’s (appellant) relationship with the respondent’s wife there was already a huge damage of the respondent’s marriage with the woman in question, and now that she is living with the appellant.

(2) Because of the defendant’s relationship with the woman the respondent found it hard to look after their 3 children of their marriage, whom were at the time of conviction were all over the place, such as ISU Plantation, I gave special consideration that the three (3) children of this marriage will not be looked after and maintain probably any more because the childrens’ mother had left them and the reasons for forgetting her children was caused due to her going around having sexual intercourse with the appellant, for this reason I decided to impose a sentence of 4 months in hard labour.’

4. Notes of Decision

‘The following are notes of my oral decision.

This case came on for hearing before me at Waigani and Mr. C. Marlow appeared for the appellant and there was no appearance by or for the respondent.

This case has been well argued; the appellant’s lawyer has said all that can be said for the appellant. The wording of Regulation 84 of the Native Regulations is peculiar. It allows a maximum fine of K6.00 or imprisonment for up to six months. The Regulation dates from the pre-war days when the monthly wage for a plantation labourer was ten shillings in Papua and five shillings in New Guinea. Because the maximum fine is K6.00 which is insufficient punishment for adultery in practical terms a Magistrate has to choose a jail sentence of up to six months. It was up in addition I consider that a Local Court Magistrate may award compensation of up to K200.00 under Section 19 of the Local Courts Act which I consider overrides Regulation 84. I consider that the District Court has no such power to award compensation.

How serious was the adultery in this case? It was very serious because it began in August and continued until the date of hearing in November 1981 - about 3 months. It caused hardship to the husband and his children.

I consider that the following general principles are relevant in considering what punishment should be imposed for adultery.

1. I consider that a single act of adultery deserves a short jail term and that the longer the adultery continues the greater the punishment that should be imposed.

2. Where the wife leaves the husband and the matrimonial home to live with the defendant then that makes the offence more serious than when she just goes out for the night to commit adultery.

3. I consider that where she leaves the husband and the children to live with the defendant that is more serious than if she simply left the husband.

4. Another aggravating fact is if the wife becomes pregnant by the defendant. I consider that on the facts of this case the adultery is very serious because it is persisted for 3 months, the wife left the husband to live with the defendant and also left her 3 children with the complainant. However I consider that 4 months is excessive for a first offence and the best I can do is a substitute a sentence of 3 months. The defendant has already served one month I therefore order him to serve 2 months and will issue a Warrant of Commitment for that period. I order his K50.00 cash bail to be refunded.’

It is at once clear from the reasons by the National Court that an error of law was made:

“Because the maximum fine is K6.00 which is insufficient punishment for adultery in practical terms a Magistrate has to choose a jail sentence of up to six months.”

The law does not say this at all. Until Section 17 of the Native Regulations is amended the penalty for adultery is up to K6.00 fine or up to 6 months imprisonment. It was also said by the National Court that “... a single act of adultery deserves a short jail term and that the longer the adultery continues the greater the punishment that should be imposed”. It is not the law that “a single act of adultery deserves a short jail term”. What about a small fine? Magistrate is given a discretion to decide whether there should be a fine or custodial sentence in adultery cases. The law does not say that adultery deserves a custodial sentence.

LOCAL COURT DECISION

The Local Court imposed a sentence of 4 months I.H.L. because of the following:

“(1) Because of the defendant’s (appellant’s) relationship with the respondent’s wife there was already a huge damage of the respondent’s marriage with the woman in question, and now she is living with the appellant.

(2) Because of the defendant’s relationship with the woman the respondent found it hard to look after their 3 children of their marriage, whom were at the time of conviction were all over the place, such as ISU Plantation, I gave special consideration that the three (3) children of this marriage will not be looked after and maintain probably any more because the children’s mother had left them and the reasons for forgetting her children was caused due to her going around having sexual intercourse with the appellant, for this reason I decided to impose a sentence of 4 months in hard labour.”

The damage to the respondent’s marriage was not the fault of the appellant. Evidence before the Local Court shows that the respondent’s wife left him because “... the complainant belted her up and burned her clothes so she came and now she lived together with me”. (Statement by Appellant). This was not refuted by the respondent in Court and the Magistrate did not say that he disbelieved this story.

The respondent was responsible for his wife leaving him - he belted her up and burnt her clothes. Why should a woman put up with that kind of ill-treatment from her husband? She left him in August. There is no evidence that there was adultery between her and the appellant before that. The evidence of prior contact between the appellant and the respondent’s wife:

(a) Respondent

“But when I am in work he used to give money at every corner and in August my wife was taken away by the defendant ...”.

(b) Appellant

“... and in 1979 I came to Port Moresby. In July this year, the woman met me at Koki market, and I asked her if she was married or not, and she said she was married, I said okey, you married already, and second time we met again, then 3rd time the complainant belt her up and burnt her clothes so she came and now she lived together with me.”

The appellant and the respondent’s wife met at Koki Market in July, 1981. She left the respondent early in August. The appellant is, before she left her husband, supposed to have given her money “... a every corner”. This is generalisation (or could be hearsay). Assuming it was a month between the first meeting at Koki Market in July and when the woman left her husband in August and assuming there are at least 28-30 “corners” in Port Moresby, then the appellant must have given money to the woman every day. Port Moresby is a big city and there are actually hundreds of “corners”. There would not have been enough days between July and August for the appellant to have given money “at every corner” to be respondent’s wife!

The National Court perpetuated the Local Court’s attitude that the appellant broke up the marriage between the respondent and his wife. I have already pointed out that this was not so - the woman ran away from her husband because he had belted her up and burnt her clothes.

It then considered the seriousness of the offence.

“How serious was the adultery in this case? It was very serious because it began in August and continued until the date of hearing in November 1981 - about three months. It caused hardship to the husband and his children.”

The Statement of facts (of the Respondent) was read to the appellant (see p.3 of this Judgment). The appellant was asked if these facts were correct and he said “Yes.” So he must have agreed that he and the woman, in August, “... went around having sexual intercourse”. But the appellant was charged with one offence only. The complainant says that he “... during the month of August, 1981, at Port Moresby .... being a native man had sexual intercourse with another native of the opposite sex other than his wife, knowing Siri Kua is married.”

There is no record that he agreed that other instances of adultery be taken into account in sentencing him.

The respondent’s wife ran away after being belted up by him and refused to return as evidenced by the following story told by the respondent:

“... I went to all the police station in Port Moresby (NCD) and finally I found them at Konedobu near the Lawes Road, they were in a house during the day so I locked the door and I came to get the police at town Police (Station 2). When I arrived at the house with the Police they broke the window and went out, and they are still at large in the city and it is very hard for me to contact them.”

In some area of this country when a man beats his wife and she leaves him and goes with another man she is deemed to have divorced the husband. For instance, in the Goodenough Island, Milne Bay Province:

“Just as a woman is considered married or leaving her hamlet and taking up residence with her affines, she is also regarded as divorced, violili, by carrying out the same process in reverse”.

(Law Reform Commission Occasional Paper No. 5 of October, 1975 entitled “CUSTOMARY MARRIAGE AND DIVORCE IN SELECTED AREAS OF PAPUA NEW GUINEA” at p.35)

The appellant, the respondent and his wife come from Asaro, Eastern Highlands Province. It could be that according to their custom, when the woman left the respondent and went to live with the appellant, she had divorced the respondent. The Court ought to have inquired about the customary divorce situation. If the appellant had sexual intercourse with the woman after she had customarily divorced the respondent, then no adultery charges should have been laid against the appellant. From all I have said it is clear that the Appeal must be allowed and the decisions of the National Court and the Local Court set aside.

The hearing of the appeal in the National Court was delayed for nearly a year because failure of the Registrar to serve the Notice of Appeal on the respondent. The appellant was convicted by the Local Court on 4th November, 1981 and he was released on bail pending the hearing of his appeal on 2nd December, 1981. His appeal was heard on 3rd November, 1982. Such a lengthy period awaiting the hearing of the appeal and reasons for such a long delay were not considered by the National Court. In Acting Public Prosecutor v. Joe Kovea Mailai (1981) P.N.G.L.R. 258 Andrew & Pratt, JJ. said at p.261:

“In the circumstances the gravity of the offence was such that it clearly called for a custodial sentence of the order of twelve months and above. But a long period has elapsed in bringing on the appeal. It is now nine months since the respondent was allowed to go free. We do not go into the reasons for the delay but suffice to say it was through no fault of the respondent. We are in agreement with what was said in The Public Prosecutor v. Willy Moke Soki (1977) P.N.G.L.R. 165 at p.167.

The aphorism ‘Justice delayed is justice denied’ is applicable equally in the criminal as in the civil fields of law. Where appeal has been brought, it is obviously in the interest of a convicted person as it is in that of the State, that finality of decision be reached promptly. Justice demands it.”

Delay both in the lodging and hearing of the appeal must always be a relevant factor. See R. v. Liekefett; Ex Parte Attorney-General (1973) Qd. R. 355 at p.366. But for the delay which has occurred we would therefore have increased the sentence and we consider, especially in view of the respondent’s age, that it would not be just to send him to prison some ine months his conviction.

We would allow the appeal but make no further order as to sentence.”

No practical purpose would be served sending the appellant back to jail. He has been in custody just over 2 months and had waited for nearly a year to have his appeal entertained by the National Court and 8 months for us to hear this Appeal.

I would substitute the period he has already served as his sentence. He is free to go about his business.

ANDREW J: I have had the advantage of reading the draft judgment of the Chief Justice with which I agree. I would add only the following general comments.

That the Native Regulations and the provisions in relation to adultery are an anachronism may be seen by the fact that it applies to an aboriginal native of any island in the Pacific Ocean, any of the East Indian Islands or Malaysia who, while in the area to which the Regulation applies, lives in the manner in which aboriginal natives of the Island of New Guinea or the islands adjacent to the Island of New Guinea live.

The legislature is concerned with conduct which involves moral questions and regardless of what one thinks of such conduct, it should not, in my judgment, involve penal sanctions.

The only justification for such legislation that I can see would be for the maintenance of peace and good order in the village in which case it would be more appropriately dealt with under the Village Courts Act.

MCDERMOTT J: The facts are set out by the Chief Justice in his judgment with which I also agree.

The appellant was convicted of an offence pursuant to Reg.84(2) of the Native Regulations (Papua) made under The Native Regulation Act 1908 of the former Territory of Papua, designed ‘to provide for the better regulation of Native matters’. Section 5 gave wide power to make regulations with respect to marriage and divorce, matters arising on the death of a native, courts for native affairs, property rights, native customs and the cultivation of the soil. The subject regulation arose under the further power to make regulations ‘bearing upon or affecting the good government and well being of the natives’. All but regulations concerning Succession to Property and Offences (adultery, inducing a female to have sexual intercourse with a male not her husband and abandoned and dissolute females) were repealed, see Statutory Instrument No. 63 of 1975 operative 4 March 1976. Regulation 84(2) deals with adultery by females. This offence is obviously under Reg.84(1) which reads:

“Any native who on complaint of the husband is proved guilty of committing adultery with the wife of such husband shall on conviction be liable to a fine not exceeding Three pounds or in default of payment to imprisonment for any period not exceeding six months; or to imprisonment in the first instance for any period not exceeding six months”.

That this is a colonial hangover is evident from the definition of ‘native’ now in the Revised Laws Ch.316 euphemistically called ‘a person who is subject to this regulation’ - and this can include a citizen of neighbouring countries. The regulation was adopted at Independence by virtue of Constitution, Sch.2.6(2) (Adoption of Pre-Independence Laws), however, along with Marriage and Matrimonial Causes generally it is an area yet to be dealt with comprehensively by the post-Independence legislature.

I find it difficult to reconcile the Constitution’s preamble that:

“We, the People of Papua New Guinea ... pledge ourselves to guard and pass on to those who come after us our noble traditions and the Christian principles that are ours now”,

with the savagery, as exemplified in vindictive self-righteousness, by which this legislation is availed of and enforced. If the aims of the legislation was to control native people and expediently deal with matrimonial squabbles, then it appears today quite out of place in an independent and democratic country whose Constitution gives the same basic rights to men and women, without discrimination of cold

Courts are placed in an invidious position when asked to enforce legislation which is more ‘moral’ (and I use that term advisedly) than social. Times have changed. The rapid development of the country has brought in its train changes in society, the full implications of which are yet to be appreciated and analysed. These changes compound the difficulties for the magistracy.

The Chief Justice has raised the issue of ‘fault’ and the need for the exercise of caution by courts in coming to definite conclusion in these matters where customs can vary so much. From my own experience in the National Court, it is apparent that the last consideration is the continuing viability of or the amicable termination of a marriage whilst the first is to get even - no matter what!

I fail to see how the National Goal and Directive Principle of integral human development is in any way aided by divisive legislation of this vintage.

Therefore, is it not timely for the courts of this country to remember when asked to find blame and inflict punishment arising from intimate adult relationships, the words of the old song, ‘It takes Two to Tango’ and perhaps more appropriately remember the story of the woman caught in adultery - John 8:1-11, both of which appear to me consistent with the constitutional beliefs and goals mentioned?

I would allow the appeal, confirm the conviction and vary sentence to the period of imprisonment already served.

Lawyer for the Appellant: Public Solicitor

Counsel: S. Lupalrea

No appearance by the Respondent

Amicus Curiae: S. Kaipu