Wauta v The State [1978] PNGLR 326 (8 September 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 326 - Sangumu Wauta v The State 

[1978] PNGLR 326

SC134

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SANGUMU WAUTA

V

THE STATE

Waigani

Prentice CJ Raine DCJ Wilson J

8 August 1978

8 September 1978

CRIMINAL LAW - Particular offences - Incest - Whether applies to father and daughter by customary adoption - “Lineal descendant” means “of the blood” - Daughters by adoption or customary adoption excluded - Adoption of Children Act 1968, s. 27[dxl]¹ - Adoption of Children (Customary Adoption Act) 1969, s. 5[dxli]² - Criminal Code s. 226.

WORDS AND PHRASES - “Lineal descendant” - Means “of the blood” - Incest - Criminal Code s. 226.

Section 226 of the Criminal Code provides: “Any person who carnally knows a woman or girl, who is, to his knowledge, his daughter or other lineal descendant ... is guilty of a crime and is liable to imprisonment with hard labour for life.”

On appeal against conviction on a charge of incest under s. 226 of the Criminal Code, where the girl was the stepdaughter of the accused whom the trial judge found had become his “daughter” by customary adoption;

Held

(1)      The words “lineal descendant” in s. 226 of the Criminal Code, must be given their ordinary meaning which connotes a relationship “of the blood” standing in direct line of descent from a common ancestor.

The State v. Misimb Kais [1978] P.N.G.L.R. 241 approved. Sydall v. Castings Ltd. [1967] 1 Q.B. 302 referred to.

(2)      Section 27(1) of the Adoption of Children Act 1969 which is expressed to be subject to the provisions, of any law that “expressly distinguishes in any way between adopted children and children other than adopted children” does not operate to vary or require a wider interpretation of s. 226 of the Criminal Code which would include an adopted daughter or a customarily adopted daughter.

(3)      Accordingly the appeal should be allowed and the conviction and sentence quashed.

Appeal

This was an appeal against conviction (on a plea of guilty) on a charge of incest under s. 226 of the Criminal Code with a girl, being the stepdaughter of the accused who it was alleged had become his “daughter” by customary adoption.

Counsel

M. Kapi, for the appellant/accused.

J L. Cagney, for the respondent/State.

Cur. adv. vult.

8 September 1978

PRENTICE CJ: This appeal is brought against a conviction on a plea of guilty to incest, taken in the National Court at Wewak in July 1978. The sole ground of appeal is that acceptance of a plea of guilty amounted to an error in law.

The facts are scanty but largely undisputed. The appellant, a man over 40 years old, many years ago married Laha, the wife of a deceased tribal brother. At that time Laha had a small daughter (Landine) by her deceased husband. There is some suggestion that the girl’s true father may have been the appellant’s true brother, in which case the union between him and the girl’s mother would have been a form of Levitical marriage, which is of course common to many, possibly most, areas of Papua New Guinea. In July-October 1977 the appellant began to indulge in sexual intercourse with the girl, Landine, who though described by defence counsel as “a mature woman”, was noted by the trial judge to be a “rather simple, small village girl ...”. At the time intercourse began, the girl’s mother was dead. It would appear therefore that the appellant was the stepfather of the girl. But the basis on which his Honour convicted him of incest, was the finding that the girl had become his “daughter” by customary adoption. In establishing such a customary relation of father/daughter, reliance was placed upon the fact that the appellant had entered the girl in the Dreikikir L.G.C. Roll Book as his daughter, and upon the affirmative answers apparently given by the appellant to his Honour’s questions on arraignment. These questions covered the matters of “whether by custom of his people Landine was now regarded as if she had been his own natural born daughter; whether he regarded her as if she were his own true natural born daughter; whether he had regarded himself at the time as having sexual intercourse with his own true daughter”.

The appellant admitted that in the particular village concerned, Warengama Numbawan, his relationship with Landine was forbidden. But no evidence was put before the District Court on committal, or before the National Court on arraignment, as to the relevant processes of customary adoption, or as to its consequences in the particular area — or generally. The judges of the National Court are only too familiar with incest cases. It may be said that they find the degree of village aversion to the practice, varies between (in some districts) utmost abhorrence, to (in others) a considerable degree of toleration of the practice and indeed of its offspring. They are aware that many of the communities of Papua New Guinea regard an offence as having been committed if a man has sexual intercourse with his stepdaughter or with a customarily-adopted daughter. Many committing magistrates regard such a union as calling for the application of the sanction of s. 226 of the Criminal Code.

It was not, it appears, argued before the trial judge; nor was it argued before us, that s. 226 would be applicable to the stepfather-stepdaughter situation. The State, as I understand it, supports the conviction on the footing that the section applies to the father/customarily-adopted daughter situation.

Section 226, Incest by Man, is in the following form:

“Any person who carnally knows a woman or girl who is, to his knowledge, his daughter or other lineal descendant, or his sister, or his mother, is guilty of a crime ...”

And s. 227, Incest by Adult Female, is as follows:

“Any woman or girl of or above the age of 18 years who permits her father or other lineal ancestor, or her brother, or her son to have carnal knowledge of her, knowing him to be her father or other lineal ancestor, or her brother, or her son, as the case may be, is guilty of a misdemeanour ...” (emphasis mine).

His Honour, the trial judge, was of the opinion that if the construction of the section did not require the word “other” to qualify “daughter”, then the section would operate to make intercourse between a father and his adopted daughter, incest. And that it mattered not whether the adoption be under the Adoption of Children Act 1969, or a custom, as custom is declared to be part of the underlying law. He concluded that the word “daughter” included a customarily-adopted daughter; for the daughter must be a lineal descendant — in the customary setting “lineal descendant” must include in customary law, a customarily-adopted daughter. I pause to say, with respect, that it does not seem to me that there was any material before his Honour from which such a conclusion could be arrived at.

The researches of prosecution counsel were unable to find any other instance of an interpretation of s. 226 in this fashion; though it appears that O’Meally A.J would have been prepared so to rule (though without having heard argument on the point apparently), had the necessary evidence as to customary adoption been present: The State v. Birua Sessay[dxlii]³. It would seem that other than in that case and in the instant case, prosecutors and judges accepted that “daughter” in s. 226 did not include a customarily-adopted daughter.

As it happened, only four days after the decision under appeal, Andrew J in Madang, without notice apparently of the decision now under appeal, formed an opposite conclusion as to the effect of the section (The State v. Misimb Kais)[dxliii]⁴. In the last-mentioned case the comparable legislation of New Zealand and the various Australian States was usefully set forth and examined. No decisions on the point appear to have been given in Queensland under the section from which our s. 226, Criminal Code is derived.

Andrew J in the case before him, commenced his examination of the various overseas decisions with a reference to Sch. 2.3, the Constitution, and the National Court’s duty to formulate appropriate rules for the underlying law. However, s. 37(2) of the Constitution in the following terms —

“Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by ... a written law”,

renders such an approach inapt, I consider, in regard to criminal law questions such as is raised in the instant appeal. My view is that the matter must be resolved as a problem of statutory construction — of the Criminal Code and the Adoption of Children Statutes.

“DAUGHTER OR OTHER LINEAL DESCENDANT”

In support of the conviction under appeal, it is argued that the word “lineal”, as used in ss. 226 and 227, is used in a sense connected with inheritance of property. In the Common Law, and in common English usage, the word “lineal” has usually imported a meaning of “consisting of or being in a direct line of ancestry or descendants (as) opposed to collaterals” (Webster; and see Concise Oxford Dictionary). In Boys v. Bradley[dxliv]⁵ Knight Bruce L.J was said to have extended its meaning to cover collaterals “only with difficulty” (Stroud 4th ed.). The natural meaning of the word to my mind, imports consanguinity (a descendant “of the blood”). To view it as relating to inheritance, might produce extraordinary results in societies organised on other than patralineal descent of property. Support for the view that it is used to mean “of the blood”, can I consider be found in the evidentiary section of the Code, s. 594, which is headed “Evidence of Relationship on Charge of Incest” and enacts that certain forms of proof shall be sufficient in relation to an offence “of which carnal knowledge ... of a woman or girl, is an element, and of which blood relationship is also an element”, a description which is applicable only to the offence of incest. I am of the opinion that the word has been used in and must be construed according to, its common understanding and acceptation (Maxwell on the Interpretation of Statutes 12th ed. 81) — that is as meaning “of the blood”. The juxtaposition of “daughter” and “other lineal descendant”, imports naturally and conclusively, I consider, a qualification, other statutory constraint lacking, of the “daughter” the potential subject of incest, restricting the word to the meaning a “daughter of the blood”.

The only statutes cited to us which include the phrase —”daughter or other lineal descendant” are the Criminal Code of Queensland (s. 222) and the Crimes Act 1958 of Victoria (s. 251).

THE ADOPTION OF CHILDREN ACT 1968 (NO. 8 OF 1969)

Though the effects of Act No. 8 of 1969 are confined to cases where “adoption orders” (under the Act) have been made, it is necessary to go to it, because of the use which counsel for the respondent sought to make of it, as I understood his argument, by way of analogy. He contended that this Act had the effect of enlarging the definition of “daughter” in s. 226 of the Criminal Code (if such term was held prima facie restricted to “daughter of the blood”); which would allow the Adoption of Children (Customary Adoption) Act No. 38 of 1969, to work a similar enlargement of that definition to include a customarily-adopted daughter.

Section 27 of Act No. 8 of 1969 is as follows:

“27(1) For the purposes of the laws of Papua New Guinea, but subject to this Act and to the provisions of any law of Papua New Guinea that expressly distinguishes in any way between adopted children and children other than adopted children, upon the making of an adoption order:

(a)      the adopted child becomes a child of the adopters, and the adopters become the parents of the child, as if the child had been born to the adopters in lawful wedlock;

(b)      the adopted child ceases to be a child of any person who was a parent (whether natural or adoptive) of the child before the making of the adoption order, and any such person ceases to be a parent of the child;

(c)      the relationship to one another of all persons (including the adopted child and an adoptive parent or former parent of the adopted child) shall be determined on the basis of the preceding provisions of this subsection so far as they are relevant;

(d)      any existing appointment of a person, by will or deed, as guardian of the adopted child ceases to have effect; and

(e)      any previous adoption of the child (whether effected under the law of Papua New Guinea or otherwise) ceases to have effect.

(2)      Notwithstanding the provisions of Subsection (1) of this section, for the purposes of any law of Papua New Guinea relating to a sexual offence, being a law for the purposes of which the relationship between persons is relevant, an adoption order, or the discharge of an adoption order, does not cause the cessation of any relationship that would have existed if the adoption order, or the discharging order, as the case may be, had not been made, and any such relationship shall be deemed to exist in addition to any relationship that exists by virtue of the application of that subsection in relation to that adoption order or by virtue of the discharge of that adoption order.”

It was contended that sub-s. (2), by providing that for the purposes of the law relating to a sexual offence the discharge of an adoption order should not cause the cessation of a relationship (upon which such a charge might be founded), was intending to enact that the provisions of sub-s. (1) relating to express statutory distinction between adopted child and child of the blood were not to apply to incest. This would be a surprising way for a draftsman and the legislature to seek to produce such an effect. The provisions of sub-s. (2) as to the deemed continuance of relationship after discharge of an adoption order, have room to operate on the brother/sister relationship, without requiring it to affect also, in such a tortuous way, what I regard as the plain effect of s. 226 of the Code. I do not understand sub-s. (2) to require the non-operation of the “express statutory distinction” provision of sub-s. (1). The New Zealand Adoption Act 1955, s. 16(2) contains provisions similar to s. 27 of our No. 8 of 1969, and it has been held in New Zealand that an adopting parent can be guilty of incest with an adopted child (R. v. Stanley)[dxlv]⁶; but the Crimes Act 1961 of New Zealand defines incest simply as “sexual intercourse between parent and child”. The New Zealand decision therefore seems to me quite distinguishable from the position in Papua New Guinea.

I am of the opinion that s. 226, Criminal Code of Papua New Guinea expressly distinguishes between adopted children and children other than adopted children, in this matter of incest; and that the provisions of s. 27(1)(a) and (c) of Act No. 8 of 1969, do not therefore widen the definition of incest by inference. Reference to the provision of s. 27 does not by analogy or incorporation therefore (in my opinion), assist construction of s. 5 of Act No. 38 of 1969 to which I now turn.

THE ADOPTION OF CHILDREN (CUSTOMARY ADOPTION) ACT NO. 38 OF 1969

This Act provides (ss. 3 and 4) that it shall be incorporated and read as one with Act No. 8 of 1969, and is not to derogate from the provisions of the Native Customs (Recognition) Act 1963. Section 5 is as follows:

“5(1)   Notwithstanding the provisions of any other law of Papua New Guinea but subject to the succeeding provisions of this section, where a child is or has at any time been in the custody of and is being or has been brought up, maintained and educated by any persons or by two spouses jointly as his, her or their own child under any adoption in accordance with native custom, then for the purposes of any law of Papua New Guinea the child shall be deemed to have been adopted by that person or by those spouses jointly, as the case may be.

(2)      An adoption to which Subsection (1) of this section applies takes effect in accordance with the native custom that is applicable and is subject to any provisions of that custom as to limitations and conditions, including limitations and conditions as to the period of the adoption, rights of access and return and property rights or obligations.”

As was pointed out by O’Meally A.J in The State v. Birua Sessay[dxlvi]⁷, proof of custody, bringing up, maintenance and education is not of itself proof of adoption by custom. The Statute provides where those features exist “under any adoption in accordance with native custom”, an adoption in accordance with law is to be deemed to have been made. It would seem that the actual custom must be proved as though a matter of fact, under the Native Customs (Recognition) Act.

In the instant case, with respect, the record discloses no evidence of the custom involved (sub-s. (1)), nor as to how that custom takes that effect (sub-s. (2)), though some admission on the appellant’s part of recognition of responsibility and of fault. That lack would I consider, be sufficient to dispose of this appeal. However the matter is of such importance, that I consider this Court should continue on to decide the question of whether Act No. 38 of 1969 effectuates, as I consider s. 27 of Act No. 8 of 1969 does not provide an amplification of the relationship upon which s. 226 Criminal Code operates.

Such an amplification, which would destroy the distinction made by s. 226 of the Code between children of the blood and children of adoption, could be sought to be made only by the demonstration of the details of the customary adoption process and the details of how such an adoption took effect in the particular society concerned.

Is such an enquiry open? Is the Criminal Code’s provision as to incest to take effect in the different societies and villages differentially according to what may be proved as the particular adoption process and its particular local effect in each particular case? Such a possibility would render the operation of the Statutory Criminal Law and its administration quite uncertain. Findings of guilt in each case, would depend not upon the terms of the Statute, but upon the evidence as to the particular “law” in each case. Availability of witnesses as to such “law”, and the variable enthusiasm of prosecuting counsel and of police, in procuring their attendance, would surely prove an unsatisfactory basis for finding the law. Such a process would possibly militate strongly against the development of “a coherent system” of underlying law (Sch. 2.4 of the Constitution).

But such an enquiry, or endless series of enquiries, would I think be contrary to the spirit and indeed the letter of s. 37(2), of the Constitution that a person may not be convicted of an offence that is not defined by ... a written law. There would result anything but “definition”. I do not conceive that “crimes”, as understood by the Constitution and the Criminal Code, can be constructed by the incrustation of unwritten (variable) custom upon the pillars of the Criminal Code.

Custom is to be adopted, applied and enforced as part of the underlying law (Sch. 2.1) — but not where it is inconsistent with ... a Statute ... (Sch. 2.2). A custom that could be shown to regard sexual intercourse between customary-adopting father and adopted daughter as equivalent to “incest” as defined, would be inconsistent with the provisions of s. 226, and could not be allowed to vary it by imposing criminal liability under the code where none otherwise lay.

A further consideration that would prevent the use of evidence of custom to extend the categories of children protected by s. 226 to include children adopted under custom, lies in the terms of s. 7 of the Native Customs (Recognition) Act No. 28 of 1963. Section 7 of that Act is in the following terms:

“7.      Subject to this Act, native custom shall not be taken into account in a criminal case, except for the purpose of:

(a)      ascertaining the existence or otherwise of a state of mind of a person;

(b)      deciding the reasonableness or otherwise of an act, default or omission by a person;

(c)      deciding the reasonableness or otherwise of an excuse;

(d)      deciding, in accordance with any other law in force in Papua New Guinea or a part of Papua New Guinea whether to proceed to the conviction of a guilty party; or

(e)      determining the penalty (if any) to be imposed on a guilty party, or where the court considers that by not taking the custom into account injustice will or may be done to a person.”

It will be observed that the section is made “Subject to this Act”, not to any other statute, in its provisions. Sub-paragraphs (a) (b) and (c) are not relevant to this matter; but sub-par. (d) is relevant. The particular exception therein contained to the bar against reception of evidence of custom in a criminal case, goes not to the establishment of guilt; but towards assisting a decision by the Court whether to proceed to conviction after guilt had been determined. Reliance could not therefore be placed upon its exception, it would seem, to bring into account evidence of custom so as to make use of s. 5 of Act No. 38 of 1969, and thereby to extend the categories of children to which s. 226 Criminal Code refers. It was not argued by the respondent in this appeal that s. 7 of the Native Customs (Recognition) Act has been abrogated or entrenched upon by any of the provisions of the Constitution.

THE DESIRABILITY OF AMENDMENT

One is conscious that in many village communities, and among the magistracy, strong feelings are entertained that sexual intercourse between stepfather and stepdaughter, and between adopting father and customarily-adopted daughter, should bring condign punishment.

Kearney J in The State v. M.K.B.[dxlvii]⁸ has discussed the foundation for the laws against incest, which are to be found in almost all societies in all ages. Cultural and moral traditions and beliefs, obviously have played a large part. The necessity for the protection of the young is no doubt a major consideration. But the dangers of in-breeding also appear to be well recognised, and the subject of taboos against marriage within certain sublines or “sides” of a clan, in almost all the societies of Papua New Guinea. I believe that what Kearney J referred to as the “eugenic reason” would be ingrained in the cultural and social consciousness throughout most of the country.

On the other hand adoption is a most widespread and popular custom. Children acquire a plenitude of fathers, who each in village custom, stand in the shoes of a father in some very real sense. It is well understood, as Mr. Kapi agreed in argument, that in some areas, a man for instance may adopt and “grow” a young girl with a view to later marriage with her. It is known that a man will adopt a girl with a view to her being married to one of his sons. How would an amplification of the relationships in the definition of the crime of incest, affect such family ties and social ramifications? If a man adopts in custom a number of sons from different clans or even tribes, does each become his son and become brother to the others, for purposes of the law of incest? Is each such to be barred from contracting a marriage with the blood sisters of his brother by adoption?

If it were open to this Court to extend the provisions of s. 226 as seems to be desired in certain quarters, how could it do so without having a full knowledge of the manner in which such an extension might react on the numerous complicated class structures? Surely such a path should be explored by the legislature after research, rather than by this Court on possibly inadequate guidance.

I am of the opinion that the appeal should be allowed and the conviction and sentence quashed.

RAINE DCJ: I agree with the orders proposed by the Chief Justice, and I very largely agree with the reasons his Honour gives for them.

I find it hard to conceive that the words “his daughter or other lineal descendant” in section 226 or “her father or other lineal ancestor” in s. 227 allow us to stray outside the true blood group in interpreting the sections. This despite the 1968 and 1969 Acts dealing with the adoption of children, as referred to by the Chief Justice in his judgment.

Reverting to ss. 226 and 227, it would have been so very easy for the legislature to cast its net over other classes of “parents” or “ancestors”, not of the same true blood as the child. But this was not done. Parliament might well have thought that in most cases the girls involved would be under the age of sixteen and that a carnal knowledge charge would fill the bill.

There is one final matter I need mention. My brother the Chief Justice has suggested that the Parliament might feel it desirable to amend the law. Like his Honour, in my ninth year here as a judge, I think there are good reasons for doing so. Of course, this is not our affair, but if something is proposed to be done then I respectfully suggest that the present sections should not be fiddled with, and that a completely new section be constituted, dealing solely with girls who have been legally adopted, or adopted in the customary sense.

WILSON J: This appeal raises for determination the question of whether a man may be convicted of incest with a girl who is his adopted daughter and not his true daughter.

The relevant part of s. 226 of the Criminal Code 1975 is as follows:

“226.   Any person who carnally knows a woman or girl who is, to his knowledge, his daughter or other lineal descendant, or his sister, or his mother, is guilty of a crime, and is liable to imprisonment with hard labour for life.” (the emphasis is mine)

To answer the question raised for determination in this appeal the words emphasized above need to be interpreted. Does the word “daughter” mean true daughter, or may it mean adopted daughter as well? To what extent do the words “or other lineal descendant” assist in the interpretation of the word “daughter”?

The expression “lineal descendant” seems clear enough. It cannot refer to statutory descendants such as children or grandchildren adopted pursuant to adoption legislation, or illegitimate children whose rights have been given statutory recognition, or foster children or the like. The expression cannot refer to customary descendants such as children or grandchildren adopted according to customary practices, or relatives by kinship within the notion of the extended family. Its prima facie meaning indicates blood relationship. (See Sydall v. Castings Ltd.[dxlviii]⁹.) In my opinion the expression “lineal descendant” describes the relationship existing between two or more relatives in blood who stand in direct line of descent from a common ancestor: see in this context (as well as in others) the helpful judgment of Andrew J in The State v. Misimb Kais[dxlix]¹⁰.

The expression “daughter” in the context of s. 226 and in the light of the words “or other lineal descendant”, which means, as I have held, “or other relative in blood by direct line of descent”, is, in my view, limited to a true daughter or one related by blood. It follows that an adopted daughter is excluded.

In Sydall v. Castings Ltd.[dl]¹¹ Lord Denning M.R. held (at p. 312) that adopted children and step-children would not ordinarily be called “relations”; a fortiori an adopted daughter would not in the present context be called a “daughter or other lineal descendant”. Russell L.J in that case (at p. 320) was satisfied that the word “descendant” was descriptive of blood relationship. In the present context I consider it beyond doubt that “daughter or other lineal descendant” is likewise so descriptive.

I am not persuaded that the adoption legislation in Papua New Guinea is such as to require a wider interpretation of the words of s. 226 which are under consideration in this appeal.

I am therefore of the opinion that a man may not be convicted of incest with a girl who is his adopted daughter and not his true daughter. I agree with the Chief Justice that this appeal should be allowed and the conviction quashed.

Appeal allowed.

Sentence and conviction quashed.

Solicitor for the appellant: M. Kapi, Public Solicitor.

Solicitor for the respondent: K. B. Egan, Public Prosecutor.

[dxl]Infra p. 330.

[dxli]Infra p. 331.

[dxlii]Unreported, O’Meally, A.J 7th June, 1977.

[dxliii][1978] P.N.G.L.R. 241.

[dxliv](1853) 22 L.J Ch. 617.

[dxlv](1903) 23 N.Z.L.R. 1100.

[dxlvi]Unreported judgment 7th June, 1977.

[dxlvii][1976] P.N.G.L.R. 197.

[dxlviii][1967] 1 Q.B. 302.

[dxlix][1978] P.N.G.L.R. 241.

[dl] [1967] 1 Q.B. 302.