Maumau v Maragili [1963] PNGLR 108 (21 February 1963)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 108 - Maumau v Maragili

[1963] PNGLR 108

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

MAUMAU

APPELLANT

AND

MARAGILI

RESPONDENT

Port Moresby

Minogue J

21 February 1963

The Supreme Court (Minogue, J.) in its Appellate Jurisdiction from the decision of the Court for native Matters.

ADULTERY - Competence of Spouse to lay complaint - Appeal where no Rules - Native Regulation Ordinance 1908-1962 Section 4 - Native Regulations, 1939, Regulation 84(1) and (3).

The Appellant was convicted by a Court for Native Matters on the complaint of his spouse of having sexual intercourse with another female native contrary to Regulation 84 (1) of the Native Regulations, 1939, and was sentenced to imprisonment with hard labour for a term of four months. On appeal to the Supreme Court,

Held:

(1)      A spouse is not competent to lay a complaint against his or her guilty spouse under Regulation 84 (3) and therefore the Court for Native Matters had no jurisdiction to adjudicate upon the complaint.

(2)      The appeal should be treated as an application for a Writ of Certiorari, the Writ should issue instanter and the conviction be quashed.

Semble:

In the absence of Rules of the Supreme Court regulating the right of appeal from the Court for Native Matters to the Supreme Court, no appeal lies.

Counsel:

Rissen: for the Appellant.

Croft: for the Respondent.

MINOGUE J:  This matter having come before me on a Notice of Appeal, I ordered that it be treated as an application for a Writ of Certiorari, that the Writ issue returnable instanter, that the record be brought up into the Supreme Court, and the conviction of Maumau be quashed. At the same time, I intimated that I would subsequently publish my reasons for so ordering.

Maumau was convicted by the Magistrate of the Court for Native Matters at Bwagaoia on the complaint of his wife Maragili of having had sexual intercourse with a female native, Akesa. At the conclusion of the hearing before me, I was informed that Akesa was a single girl aged about 16 or 17 years, and the step-daughter of Maumau. From the Minute of Complaint and the Record of Proceedings which were forwarded to the Court by the Court for Native Matters, it appeared that Maumau pleaded guilty, that intercourse took place by mutual consent of the parties, and that the offence was considered serious according to native custom. Maumau was ordered to be imprisoned for a term of four months.

The complaint was made under Regulation 84 of the Native Regulations, 1939, as amended to date, the relevant sub-regulations of which read:

“Adultery and Prostitution.

84(1)  A married native man or woman who has sexual intercourse with a native of the opposite sex other than his or her wife or husband is guilty of an offence.

Penalty: Three pounds or imprisonment for six months, or both.

(2)      A native man or woman who has sexual intercourse with a married native of the opposite sex other than his or her wife or husband, knowing that native to be married, is guilty of an offence.

Penalty: Three pounds or imprisonment for six months, or both.

(3)      A complaint may be brought against any native under either of the last two preceding subregulations only by the native husband or wife of the woman or man with whom the offence was alleged to have been committed or in the absence of the husband or wife, as the case may be, by his or her nearest available relative.”

Mr. Rissen for Maumau argued that, although his admission to the Magistrate clearly showed him to be guilty of an offence, on the proper construction of the regulation, Maragili was not competent to lay a complaint and, indeed, Akesa being a single girl, no person could lay a complaint against Maumau under that regulation. Clearly enough, he said, Maragili could have laid a complaint against Akesa under Regulation 84 (2) subject to the proof of knowledge in Akesa of Maumau’s married state which, in the circumstances of this case, should have been easy enough. But, he argued, although Maumau was guilty of the offence set out in Regulation 84 (1) and, in other words, had committed that offence, the only person who could lay a complaint against him was the husband of the woman Akesa with whom he had committed the offence and, there being no husband of Akesa, no complaint could be laid. This, he submitted, followed on the proper construction of Regulation 84 (3), and no other construction was possible.

Mr. Croft, who appeared to support the Magistrate’s order, in an interesting and closely reasoned argument, urged upon me the view that the Administrator in Council (the regulation making power) showed a clear intent to impose a sanction on adulterers and to prevent breaches of the peace by reason of adultery amongst native people, and to provide for the better regulation of native matters by making adultery an offence to be brought before the Court and not dealt with according to tribal custom. It appeared from the various anthropological works which he cited in argument that the tribal custom may result in the mutilation or death of the offenders. From such records as he was able to peruse, Mr. Croft was able to show me that as early as 1901 cases of adultery formed the greater proportion of cases dealt with in Courts for Native Matters in Papua and, indeed, by 1960, whilst not by any means the largest single offence dealt with, there was still a very large number of adultery cases heard in such Courts.

The Native Regulations were made under a power contained in the Native Regulation Ordinance 1908-1962. Section 5 of that Ordinance is as follows:

“5.      It shall be lawful for the Lieutenant-Governor in Council to make regulations affecting the affairs of natives with regard to:

(1)      marriage and divorce;

(2)      the succession to property in case of intestacy;

(3)      the testamentary disposition of property;

(4)      the disposal of the dead;

(5)      the jurisdiction powers and procedure of courts for native matters in civil and criminal matters;

(6)      the rights to real and personal property;

(7)      the observance of native customs;

(8)      the cultivation of the soil;

and with regard to matters other than those before set out but bearing upon or affecting the good government and well-being of the natives.

The Regulations may provide penalties for a breach thereof not exceeding in any case a fine of twenty-five pounds and in default of payment imprisonment with or without hard labour for any period not exceeding six months or imprisonment in the first instance with or without hard labour for any period not exceeding six months.

Provided that the Regulations may provide that the aforesaid fine for a breach thereof may be paid in kind or partly in kind.”

By Section 49 of the Ordinances Interpretation Ordinance 1949-1962, the expression Lieutenant-Governor in Council in Section 5 (supra) is to be read as a reference to the Administrator in Council of the Territory of Papua and New Guinea. I imagine, although no-one was able to refer me to any such, that Regulations must have been made shortly after the enactment of the Ordinance in 1908, and it does appear from a foot-note to Regulation 2 in the copy of the Regulations before me that Native Regulations were made in 1931 and amended from time to time until 1939 when the present Regulations were made and promulgated. Unfortunately, none of these earlier Regulations seem to have been available, so that it was impossible to discover in what way the offence of adultery presented itself originally to the Lieutenant-Governor in Council. But Mr. Croft argued that a perusal of the 1939 Regulations makes it clear that, despite the many instances therein of imprecision of language, they were intended, inter alia, to prevent breaches of the peace and to enable native persons directly affected by adultery to seek legal sanctions rather than to resort to private redress by violence. Regulation 84, he said, although not specifically authorized by Section 5 of the Ordinance, clearly came within the classification of a regulation bearing upon or affecting the good government and well-being of natives. Although I did not have the earlier Regulations before me, he pointed out by reference to the earlier Territory reports of prosecutions that adultery had long been a concern of the Administration. Mr. Croft further argued that I should seek to avoid a construction of the regulation which would result in the absurdity of a native being guilty of an offence which by reason of the penalty provided was clearly regarded as one of some gravity and yet for which he could not be prosecuted. He submitted that I should place upon the words “with whom the offence was alleged to have been committed” some such construction as “a party to or involved in the offence”.

I must confess that I find it well nigh impossible to discover what I may perhaps loosely describe as the social policy behind the regulation. In the 1939 Regulations, the relevant part of Regulation 84 originally appeared in the following terms:

“Adultery and prostitution.

84.(1) 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.

(2)      Any female who on complaint of her husband is found guilty of committing adultery with any man shall on conviction be liable to a fine not exceeding thirty shillings or in default of payment to imprisonment for any period not exceeding three months, or to imprisonment in the first instance for any period not exceeding three months.

(3)      No Magistrate or Village Constable is to act under this regulation unless upon the complaint of the husband himself. The husband may make a complaint against his wife or against the adulterer or against both. In the absence of the husband the complaint may be laid by his nearest relative.”

It is clear that the only right of complaint lay in the native husband. Indeed, the Magistrate, who is given general power by Regulation 23 to summon and try natives for offences, cannot initiate proceedings under this regulation. It is equally clear that the husband could lay a complaint both against the adulterous male and against his wife. It may be that, when the present regulation was substituted in 1955, the draftsman had the equality of the sexes in mind and intended somewhat elliptically to give to the wife the same rights as her husband had. On the other hand, it may be that he thought it desirable to make the Regulations of the Territory of Papua more nearly approximate those of New Guinea. I should add that, in New Guinea there are regulations purporting to deal with the same subject matter of Adultery and Prostitution, but these regulations, which were first enacted in 1924, were different in form and, to some extent, different in content, to those of Papua.

Despite Mr. Croft’s able submissions, I do not feel that I am able to gain much assistance from a perusal of the Regulations as a whole. They seem to have been originally drafted as both guides to native conduct and guides to Native Affairs’ officers in the field. They have a paternalistic ring about them which reads oddly in this time of emerging native society and world-wide clamour for more and more speedy development and democratization of native rights. Although Regulation 84 purports to deal with adultery and prostitution, curiously enough there does not seem to be any direct reference in it to prostitution. Truly enough there is imprecision of wording and indeed some ambiguity in other of the Regulations, and if I could find imprecision of wording and ambiguity in Regulation 84 (3) I may be justified in giving effect to the true intention of the regulation making authority - if I could find it. But, in the end, I have come to the conclusion that I must agree with Mr. Rissen’s submission that there is no ambiguity in the language used. He relied on what was said by Selby A. J. in Alolas Gaudaiba v. Mori Damanapu[cxli]¹ (Appeal No. 18 of 1961):

“I consider that the meticulous wording of Regulation 84 (2) in defining the offence makes it unjustifiable to strain the wording of Regulation 84 (2) so as to read the words ‘husband of the woman with whom the offence was committed’ as ‘husband of the woman involved in the offence’.”

Selby A. J. was there dealing with the New Guinea regulation and, although he was assisted in his construction of that regulation by matters which are not applicable to the Papuan regulation, I have come to the conclusion that the latter regulation, whatever may have been the intent of the draftsman, was equally meticulously worded. As was stated by Baily J. in Regina v. Ramsgate (Inhabitants)[cxlii]²:

“It is very desirable in all cases to adhere to the words of an Act of Parliament, giving to them that sense which is their only import in the order in which they are placed.”

From such a presumption it is not allowable to depart where the language admits of no other meaning, and it seems to me in considering this regulation that the language does not admit of any other meaning. Quite apart from the desirability, where possible, of giving the same general effect to the laws of the Territories of Papua and New Guinea, I have come to the conclusion that the proper construction of Regulation 84 (3) compels me to the view that Maragili is not competent to lay a complaint and that being so the Magistrate had no jurisdiction to adjudicate upon the complaint she purported to lay.

There finally remains for me to consider the form in which these proceedings were brought before the Court. Section 4 of the Native Regulation Ordinance makes it lawful for the Lieutenant-Governor in Council (now the Administrator in Council) to constitute the Central Court (now the Supreme Court-Section 49 (1) of the the Ordinances Interpretation Ordinance 1949-1962) a Court of Appeal from the Courts for Native Matters. The section goes on to provide that the cases in which an appeal may be brought, the grounds upon which it will lie, the practice and procedure in appeals and all other matter relating thereto, shall be as defined and prescribed by Rules of the Central Court. The Central Court was constituted a Court of Appeal from Courts for Native Matters by Order in Council dated 4th July, 1924, and published in the Gazette of 6th August, 1924, but no rules to deal with the cases in which an appeal may be brought and the other matters referred to in the section have ever been made. In the absence of any such rules, I am inclined to think that the procedure by way of appeal does not lie. However, no argument was addressed to me on the point, save that it was intimated to me by Mr. Rissen that Smithers J. in another case had recently left a similar difficulty. As the Appellant was in custody in the course of serving the sentence imposed, and as it appeared to me from the face of the Record of the Court for Native Matters which was before me, that the Magistrate had acted without jurisdiction, I was of the clear view that Certiorari would lie. Accordingly, I treated the application as one for a Writ of Certiorari and directed that the Writ be issued instanter and the record of the Magistrate’s Court being before me, in view of the conclusion which I had reached on the question of substance, I further directed that the Magistrate’s Order be quashed.

Ordered accordingly.

Solicitor for the Appellant: W. A. Lalor, Public Solicitor.

Solicitor for the Respondent: P. J. Clay, Acting Crown Solicitor.

<

[cxli]Unreported.

[cxlii]1827 6B. & C. 712.