Gaudaida v Damanapu [1964] PNGLR 253 (28 September 1961)

Papua New Guinea Law Reports - 1964

[1964] PNGLR 253 - Aiolas Gaudaida v Mori Damanapu

[1964] PNGLR 253

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

AIOLAS GAUDAIDA

V

MORI DAMANAPU

Port Moresby

Selby AJ

28 September 1961

STATUTE - Native Administration Regulations 1924 - r. 84 - Adultery - Complaint in name of husband of adulteress - Whether valid and whether Court for Native Affairs had jurisdiction.

The appellant was convicted by the Court for Native Affairs of committing adultery contrary to Regulation 84 (2) of the Native Administration Regulations 1924 and sentenced to imprisonment with hard labour for a period of two months. The complaint was brought by the respondent who was the appellant’s husband. The appellant admitted the offence but appealed on the ground that the Court for Native Affairs had no jurisdiction to hear the complaint. The substance of this claim was that the appellant’s husband was not, by reason of the wording of Regulation 84 (3) of the Native Administration Regulations, a person competent to lay a charge of adultery against his wife.

Regulation 84 (3):

“No complaint shall be brought against any native under the last two preceding sub-regulations except by the native husband or wife of the woman or man with whom the offence was committed, or in the absence of such husband or wife, as the case may be, by his or her nearest relative.”

Held:

(1)      Sexual intercourse by an unmarried person with a married person does not constitute the offence of adultery on the part of an unmarried person contrary to the provisions of Regulation 84 (2) unless that person knew the other party to be married.

(1)      The husband or wife of a person who has committed adultery is not competent to bring a charge under Regulation 84 (2) against his or her guilty spouse, and accordingly, in the present case, a valid plea in bar was available.

Counsel:

O’Regan, for the appellant.

McLoughlin, for the respondent.

SELBY AJ:  (After stating the facts and ground of appeal) delivered the following judgment: Mr. O’Regan argued that, in the circumstances of this case, the appellant having committed adultery with a man named Wega, the only person against whom her husband, the respondent, could bring a complaint in respect of the offence was Wega, since the respondent is the husband of the woman with whom the offence, namely Wega’s adultery, was committed. To permit the respondent to bring a complaint against his own wife would be to read the relevant words of Regulation 84 (3) as “the husband of the woman by whom the offence was committed”.

Counsel agreed that this could involve an absurdity since, if Wega were unmarried, there would be no person who could bring a complaint against the appellant in respect of her admitted offence of adultery, unless Wega’s “nearest relative” could bring such complaint. It was submitted that, if, in fact, Wega were unmarried then his wife was “absent” within the meaning of Regulation 84 (3) and his nearest relative would be competent to bring a complaint. However, Counsel argues that even if a literal interpretation of the words of Regulation 84 (3) should lead to an absurdity, the Court should not strain the language to avoid this result: R. v. Forde[ccvii]¹. Since the lack of jurisdiction appears on the record, the conviction should be quashed, for a defendant cannot, by admitting a charge, confer jurisdiction where none exists.

For the respondent, Mr. McLoughlin submitted that the intention of the Legislature was to entitle an aggrieved spouse to bring a complaint against either of the participants in an act of adultery, and if an unmarried man commits adultery with a married woman, the only aggrieved spouse is that woman’s husband, who can bring a complaint against his wife or against the man concerned. When a statute creates a new obligation or makes unlawful that which was previously lawful, a corresponding right is thereby impliedly given, either to the public or to the individual injured by the breach of the enactment: Maxwell, Interpretation of Statutes, 10th Ed., p. 393. If the aggrieved spouse cannot take proceedings, his or her nearest relatives may. Counsel cited section 7 of the Criminal Code as to parties to an offence. Since an act of adultery is a single offence committed by two parties, each party commits the offence with the other, and the words of Regulation 84 (3) “with whom the offence was committed” should be read “involved in the offence”.

I should say at the outset that I doubt whether, if the contention of Counsel for the appellant is sustained, the result would be that the Court for Native Affairs acted without jurisdiction. It would appear to be more proper to hold that a valid plea in bar existed, but since the result would be the same whichever ground was upheld, I propose to ignore the form in which the ground of appeal was framed. I consider that this is the right course to take, particularly in view of the fact that the appellant was not represented in the Court below.

The wording of Regulation 84 (2) suggests that its draughtsman did not consider that sexual intercourse by an unmarried person with a married person of the opposite sex constitutes adultery, or, in any event, that such intercourse was not originally considered to be an offence as defined in the Regulation. In its earlier form Regulation 84 (2) read - “Any native man or woman who commits adultery shall be guilty of an offence”. The words, “and any native man or woman who has sexual intercourse with a married native of the opposite sex knowing that native to be married” were added by subsequent amendment. It is impossible to determine whether this amendment was intended to create a new offence or was merely inserted for more abundant caution, but the requirement of knowledge of the marriage of the other party strengthens the suggestion that sexual intercourse by an unmarried person with a married person was not considered to constitute adultery. Such intercourse does not constitute the offence of adultery on the part of an unmarried person contrary to the provisions of Regulation 84 (2) unless that person knew the other party to be married.

If the appellant’s argument is upheld, it would follow that there would be no-one who could bring a charge against a married woman who had committed adultery with an unmarried man, unless the nearest relative of such man could bring such charge. Counsel for the respondent pointed out that such relative would not be an aggrieved person and in any event would seldom, if ever, have any reason for bringing a charge. I agree with this remark and, moreover, I do not consider that the words “in the absence of such husband or wife” as they appear in Regulation 84 (3), (having been added by amendment in 1925) apply in the case of an unmarried adulterer. I consider that the word “absence” in this content is not intended to refer to the case where the adulterer has no husband or wife but rather to the case where the adulterer is married but his spouse is physically absent.

Reading Regulation 84 as a whole, I have come to the conclusion that it was not the intention of the Legislature that the husband or wife of a person who has committed adultery should be entitled to bring a charge against his or her spouse. It will be noticed that the restriction imposed by Regulation 84 (3) on the class of person who may bring a charge of adultery applies also to charges of abduction or enticement contrary to the provisions of Regulation 84 (1), and obviously no charge could be brought against his wife by the husband of a woman abducted or enticed. No offence would be committed by such wife.

It is significant, also, that Regulation 84 (5) provides for compensation to the injured spouse in lieu of punishment. It is unlikely that the Legislature contemplated the payment of compensation by an adulterous husband or wife to his or her spouse, this provision being more analogous to the common provision for payment of damages by a co-respondent or woman charged to the aggrieved spouse.

Whilst I appreciate that adultery cannot be a unilateral act and each guilty party commits the offence with the other, I consider that the meticulous wording of Regulation 84 (2) in defining the offence makes it unjustifiable to strain the wording of Regulation 84 (3) 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”. The passage cited from Maxwell by Mr. McLoughlin has no application in the case where the enactment creating an offence specifically limits the class of person entitled to bring a complaint.

I have come to the conclusion that the husband or wife of a person who has committed adultery is not competent to bring a charge under Regulation 84 (2) against his or her guilty spouse, and accordingly in the present case, a valid plea in bar was available.

I therefore allow the appeal and quash the conviction.

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

Solicitor for the Respondent: S. H. Johnson, Crown Solicitor.

[ccvii] 17 C.A.R. 99, per Avory J. at 103.