Kamugaip, The State v [1985] PGSC 5; [1985] PNGLR 278 (30 August 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 278 - The State v Uniss Kamugaip 

[1985] PNGLR 278

SC302

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT RESERVATION NO 3 OF 1985

THE STATE

V

UNISS KAMUGAIP

Waigani

Kidu CJ Pratt Woods JJ

30 July 1985

30 August 1985

CRIMINAL LAW - Evidence - Witnesses - Spouses - Competence and compellability - Common law rules - Not inappropriate or inapplicable to circumstances of Papua New Guinea.

Held

The common law principle that a spouse is not a compellable witness when the other spouse is charged with a serious offence involving violence to a child under the age of sixteen years who is residing under their care in the matrimonial home, is not inapplicable or inappropriate to the circumstances of Papua New Guinea at this time.

Discussion of the competence and compellability of a spouse as a witness with respect to offences under the Criminal Code (Ch No 262).

Reservation of Question of Law

This was the hearing of three questions reserved during the course of a criminal trial for determination by the Supreme Court. The questions reserved are set out at the beginning of the judgment of Kidu CJ hereunder.

Counsel

E Kariko, for the State.

N Kirriwom, for the defendant.

Cur adv vult

30 August 1985

KIDU CJ: The questions reserved for this Court’s opinion are as follows:

N2>“1.      Is the common law principle that a spouse is not a compellable witness when the other spouse is charged with a serious offence involving violence to a child under the age of sixteen years, who is residing under their care in the matrimonial home, inapplicable or inappropriate to the circumstances of Papua New Guinea at this time?

N2>2.       Will the underlying law be different if the marriage is by native custom rather than a marriage performed by a registered celebrant under the Marriage Act?

N2>3.       If the principles and rules of common law on this question are found by the court to be inapplicable or inappropriate to the circumstances of the country, will the Supreme Court formulate an appropriate rule as part of the underlying law pursuant to the duty imposed by Schedule 2.3 of the Constitution?”

Uniss Kamugaip faces three charges in the National Court brought under the Criminal Code (Ch No 262): (1) attempted rape (s 348); (2) carnal knowledge against the order of nature (s 210(a)); and (3) unlawful and indecent assault (s 349). The alleged victim is a ten-year-old girl. The trial has been adjourned pending this Court’s opinion on the three questions (supra).

As part of its case the State sought to call Uniss Kamugaip’s wife and his counsel objected on the ground that Uniss Kamugaip had not consented to his wife giving evidence against him. The basis of the objection is the Evidence Act (Ch No 48), s 13(2)(a). Section 13 is in the following terms:

N2>“13.    Spouses 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 connexion with the offence.

(2)      Notwithstanding sub-section (1), the wife or husband of a person charged with an offence shall not be called as a witness in any legal proceedings in connexion 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.

(3)      Notwithstanding sub-sections (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.” [Emphasis mine.]

QUESTION 2

There was absolutely no need for the National Court to have reserved this question for consideration by this Court as the answer is contained in the Marriage Act (Ch No 280), s 3(2), which provides as follows:

“Subject to this Act, a customary marriage is valid and effectual for all purposes.”

QUESTION 1

The question is at the same time both general and also restrictive. It is general in that it relates to a serious offence involving violence to any child under the age of sixteen years but is restrictive in that it is confined to such a “child residing under the care of the spouses in their matrimonial home”.

It seems that when considering the matter the learned trial judge did not refer to certain provisions in the Criminal Code which specifically state that where a man/woman is charged with certain offences the spouse is not a compellable witness. With respect to two of the charges, attempted rape and unlawful and indecent assault, the Criminal Code, s 352, says:

“On a charge of an offence against any provision of this Division, the wife of the accused person is a competent but not a compellable witness.” [My emphasis.]

(Note that the Division referred to in s 352 is Div 7 of Pt IV of the Code and includes ss 347-352.) So in relation to the charges of attempted rape and indecent assault against Uniss Kamugaip his wife is not a compellable witness.

Other provisions in the Criminal Code which provide that a husband or wife is not a compellable witness where his or her spouse is charged are:

N2>(a)      s 213 — defilement of girls under 12

N2>(b)      s 214 — householder permitting defilement of young girls on his premises

N2>(c)      s 215 — attempts to abuse girls under ten

N2>(d)      s 216 — defilement of girls under sixteen and of idiots

N2>(e)      s 217 — indecent treatment of girls under sixteen

N2>(f)      s 220 — abduction of girl under eighteen with intent to have carnal knowledge

N2>(g)      s 221 — unlawful detention with intent to defile or in a brothel

N2>(h)      s 223 — incest by man

N2>(i)       s 224 — incest by adult female

N2>(j)      s 347 — rape

N2>(k)      s 348 — attempt to commit rape

N2>(l)       s 349 — indecent assault on females

N2>(m)     s 350 — abduction

N2>(n)      s 361 — child stealing

As to the charge of carnal knowledge against the order of nature, (s 210(1)(a) of the Code) whether or not the wife of Uniss Kamugaip is a compellable witness is not dealt with either by the Evidence Act or the Criminal Code or any other statute. The learned trial judge who reserved the questions assumed that the common law covers the situation but queried whether it was appropriate in Papua New Guinea. His Honour did not consider whether custom covers the situation. Under the Constitution, Sch 2.1, custom is adopted and must be applied and enforced as part of the underlying law unless it is inconsistent with a constitutional law or a statute, or repugnant to the general principles of humanity. Unfortunately, I am unable to make any meaningful determination on custom in this matter as no material was presented to the Court by counsel. Both counsel argued the matter on the basis that the common law was applicable and ignored custom. It must be emphasised that the common law does not apply here if it is inconsistent with a constitutional law or a statute or inapplicable or inappropriate to the circumstances of the country or inconsistent with custom as adopted: see Constitution, Sch 2.2(1).

The common law situation is, of course, that a spouse is not a compellable witness (not even a competent witness) unless he or she comes under one of the very few exceptions to the rule: for example, where he or she is the victim. Should this rule apply in Papua New Guinea? There is no evidence that it is inappropriate to the circumstances current in Papua New Guinea. In fact the fact that so many provisions in the Criminal Code already mentioned state that a spouse is not compellable to testify against his/her wife/husband supports the argument that the principle is not inappropriate in Papua New Guinea.

I would answer the questions reserved as follows:

N2>Question 1:    No it is not inapplicable or inappropriate.

N2>Question 2:    There was no necessity to reserve the question for this court as the matter is covered by the Marriage Act, s 3(2).

N2>Question 3: Not necessary to answer this question in view of the negative answer to Question 1.

PRATT J: I agree with the reasoning of the Chief Justice and with the answers which he gives. In those areas which are still covered by the common law the developments arose as a result of the interaction of many factors not least of which was the ecclesiastical law. I agree that no evidence has been adduced to demonstrate the inappropriateness of the rule to the circumstances of Papua New Guinea. Undoubtedly, the sanctity of marriage is an important element in the whole issue. Consequently, in a country whose constitution upholds the traditions and Christian principles of the people, any tampering with the area of evidence given by spouses against each other would be very much a matter of policy more appropriately and effectively left for debate from the parliamentary benches than the somewhat more restricted forum of the court room.

WOODS J: I agree with the reasons of the Chief Justice and have nothing further to add.

Questions answered accordingly

Lawyer for the State: E Kariko, Acting Public Prosecutor.

Lawyer for the defendant: N Kirriwom, Public Solicitor.