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[1965-66] PNGLR 152 - Labian-Saiuwen v Yerei-Yautan
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
LABIAN-SAIUWEN
V.
YEREI-YAUTAN
Port Moresby
Frost J
30 August 1965
3 September 1965
CRIMINAL LAW - Adultery - Matters to be proved - Direct and inferential evidence - Regulation 84 of Native Administration Regulations 1924 - Meaning of the words �nearest relative� - Section 3 of Native Administration Ordinance Regulations, 1924 - Meaning of �substantial injustice and hardship�.
Regulation 84 of the Native Administration Regulations, 1924, provides, inter alia: �84.(1) ... (2.) Any native man or woman who commits adultery and any native man or woman who has sexual intercourse with a married native of the opposite sex knowing that native to be married shall be guilty of an offence. Penalty: Three pounds or imprisonment for six months, or both. (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. (4.) ... (5.) A court may order that any native convicted of any offence against sub-regulation (2.) of this regulation shall pay a sum not exceeding One pound, by way of compensation, to the aggrieved husband or wife, as the case may be, in lieu of any other punishment which may be lawfully awarded for that offence.�
The appellant had been convicted of adultery with a married woman on an information laid, in the absence of the woman�s husband, by the husband�s �nearest male relative�. He appealed.
Held:
N1>(1)����� under reg. 84 of the Native Administration Regulations two offences are created, one �adultery� by a married person having sexual intercourse with another married person, and the other in which a native person has intercourse with a married native person whom the person charged knew to be married;
N1>(2)����� the actual marriage of the parties must be proved in evidence in proceedings under reg. 84. The proceedings are of a penal nature and mere proof of co-habitation is not sufficient. The magistrate should require evidence, both as to the custom prevailing in the tribe establishing the elements of a valid marriage, and as to whether in the case before him those elements were complied with so that there was a valid marriage;
N1>(3)����� there should have been proof that the respondent fell within the class of �nearest relative�. This gap in the evidence resulted in the appellant losing his chance of having the complaint dismissed which amounted to a �substantial injustice and hardship�.
Meaning of �nearest relative� discussed.
Semble:
Knowledge on the part of the appellant that a woman with whom he has sexual intercourse is married may be inferred from the fact that the appellant lives in the same village as the woman.
Cases cited:
Abson v. Abson, [1952] P. 55; Aiolas Gaudaida v. Mori Damanapu, [1964] P. & N.G.L.R. 253; Piers v. Piers [1849] EngR 416; (1849), 2 H.L. Cas. 331, 9 E.R. 1118; Re Taylor decd., [1961] 1 W.L.R. 9; Birt v. Barlow (1779), 1 Doug. 171, 99 E.R. 113; Mraz v. The Queen [1955] HCA 59; (1955), 93 C.L.R. 493; Swift v. Campbell [1815] EngR 885; (1815), 19 Ves. Jun. 400, 34 E.R. 566; Scott v. Scott (1855), 2 Macq. 281.
Appeal from Court for Native Affairs.
The facts appear sufficiently from the judgment.
Counsel:
Ley, for the appellant.
Chaney, for the respondent.
9 September 1965
FROST J:� This is an appeal brought under the Native Administration Ordinance, 1921-1963, s. 3, of the Territory of New Guinea, against the appellant�s conviction by a Court for Native Affairs on the 25th June, 1965, at Laingim No. 1 in the Lumi Sub-District of the Sepik District, whereby the appellant was convicted of the offence of committing adultery and was sentenced to four months� imprisonment.
The case came before the Court for Native Affairs on the information of one, Yerei Yautan, who said that on or about the 12th March, 1965, at Naingim No. 1 in the Territory of New Guinea the appellant, also of Laingim No. 1, did commit adultery with Waingi-Kuwam, wife of Kiseni-Itikil, also of Laingim No. 1, contrary to the provisions of the Native Administration Regulations 1924, reg. 84 (2). In the husband�s absence, the charge was laid by Yerei, who was stated to be Kiseni�s nearest male relative.
The appellant pleaded not guilty. The original ground of appeal was merely that the sentence was excessive but there being no objection by Mr. Chaney, who appeared for the respondent, on the application of Mr. Ley, who appeared for the appellant, I granted leave to amend the notice by adding further grounds, as follows:
N2>(1)����� That having regard to the nature of the offence charged, the magistrate had no evidence before him as to local custom on marriage and divorce sufficient to allow him to proceed on the complaint.
N2>(2)����� That having regard to reg. 84 (3) the magistrate did not make any enquiry to determine, nor did he in fact determine, whether the complainant was properly qualified to bring the charge.
N2>(3)����� There was no evidence before the magistrate to show that the appellant was married and therefore guilty of adultery as charged.
N2>(4)����� There was no evidence that the appellant knew that Waingi was married at the date of the offence.
N2>(5)����� The sentence imposed was excessive.
The facts of the case were set out in the depositions attached to the minute of the conviction. Two witnesses were apparently called on behalf of the complainant, one Kaio, deposing that on two occasions he had seen the appellant having intercourse with Waingi �the wife of Kiseni� and the other, Wai�in, deposing to Labian and Waingi engaging in flirting and playing, which was corroborative evidence indicating a relationship of familiarity between them. Kaio also gave evidence that in April, after he had seen the acts of intercourse deposed to, he had written a letter to Kiseni in Wewak, so that there was evidence of Kiseni�s absence from the village.
On the evidence it was plainly open to the magistrate to find, if he believed the complainant�s witnesses, that the appellant had had intercourse with Waingi, and Mr. Ley did not contend to the contrary. Before considering the grounds of appeal I propose to consider the proper meaning of reg. 84 (2).
At common law the matrimonial offence of adultery is committed when a married person has intercourse with another person of the opposite sex, irrespective of whether that person is or is not married. See Abson v. Abson[cxxxiv]1. In the case of intercourse between a married and a single person, although that single person could not be defiling or dishonouring her or his own marriage bed because as a single person he or she had no marriage bed, yet that single person was committing adultery because he or she was defiling or dishonouring the marriage bed of the married person; ibid., p. 64.
However, from the words used by the legislation in reg. 84 (2), it would appear that �adultery� has a more limited meaning than at common law and means only an act of intercourse between two persons both of whom are married.
This matter has been considered by the Supreme Court in the case of Aiolas Gaudaida v. Mori Damanapu[cxxxv]2, a decision of Selby A.J. delivered on 28th September, 1961. In that case, his Honour held, upon the proper meaning of reg. 84 (3), that a complaint could not be made against an adulteress by her own husband. In the course of his reasons for judgment his Honour said as follows: �The wording of reg. 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, reg. 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 reg. 84 (2) unless that person knew the other party to be married.�
I would agree in his Honour�s interpretation of reg. 84. Thus under this Regulation two offences are created, the first the offence of adultery, as it may be called, which is committed by a married person having intercourse with another married person, and the other in which a native man or woman has intercourse with a married native of the opposite sex, but in the latter case the complainant must show beyond reasonable doubt that the person charged knew that native of the opposite sex to be married.
Now the appellant in this case was charged with adultery, but having regard to the non-technical language in which the Native Administration Regulations are drawn, the offence �adultery� may well be taken to include either of the two offences constituted under reg. 84 (2). However, as there was no evidence as to whether the appellant was married or not, in fact he could have been found guilty only of an offence under the second limb of reg. 84 (2). Thus it was necessary for the complainant to establish beyond reasonable doubt the following facts:
N2>(i)������ The appellant had had sexual intercourse with Waingi;
N2>(ii)����� that Waingi was married; and
N2>(iii)���� that the appellant knew at the time of the offence that Waingi was married.
It was also necessary for the complainant to prove, beyond reasonable doubt, the following:
N2>(iv)���� That Kiseni was absent; and
N2>(v)����� that Yerei was Kiseni�s nearest relative.
Now let me turn to the grounds of appeal:
N1>(1)����� Mr. Ley first submitted that there was no proper proof that Waingi was married having regard to the provisions of reg. 65, which provides that every marriage between natives which is in accordance with the custom prevailing in the tribe or group of natives to which the parties to the marriage or either of them belong or belongs shall be a valid marriage.
Mr. Ley contended that there was no evidence of the custom prevailing amongst the people from the particular village, from which the magistrate could infer that Waingi was validly married.
Mr. Chaney argued that in the absence of any evidence to the contrary, Kaio�s evidence that Waingi was the wife of Kiseni was sufficient prima facie evidence of a valid marriage. At the hearing of this appeal I was inclined to uphold Mr. Chaney�s submission, but further consideration has led me to revise my views. However, as the authorities I shall refer to were not argued before me, I express no final opinion, but I indicate what seems to me the proper view.
The general rule is that where a man and woman are proved to have lived together as man and wife, the law presumes, unless the contrary is clearly proved, that they are validly married; Piers v. Piers[cxxxvi]3; Re Taylor decd[cxxxvii]4. in proceedings of a penal nature, however, such as criminal prosecution for bigamy, and in suits for divorce, proof of cohabitation and reputation is not sufficient, and an actual marriage must be proved in evidence. See also Birt v. Barlow[cxxxviii]5�(a case of criminal conversation, i.e., a civil action for damages for adultery).
Now these proceedings under the Native Administration Regulations are certainly of a penal nature so that proof of an actual marriage would seem to be required. How is this rule of the common law to be applied to the conditions of the Territory? I consider that under this rule the magistrate should require evidence, both as to the custom prevailing in the tribe establishing the elements of a valid marriage, and as to whether in the case before him those elements were complied with so that there was a valid marriage. It may be that proceedings are thus made more technical, but this regulation provides for a substantial punishment so that the offence should be strictly proved.
N1>(2)����� Mr. Ley next argued that there was no evidence before the court that Yerei was Kiseni�s nearest relative. The words on the information �nearest male relative� indicate that the nearest relative may possibly have been a female. He did not argue that there was no evidence of Kiseni�s absence in view of Kaio�s evidence that Kiseni was in Wewak.
In fact in the notes of evidence taken by the court (see Rules of the Central Court regulating appeals from Courts for Native Affairs) there is no evidence as to the relationship of the complainant to Kiseni.
Mr. Chaney argued that this was a minor departure only and could be overlooked in view of the provisions of reg. 16, which require the magistrate to first make himself thoroughly acquainted with the complaint and to consider whether the matter was one which the court had power to deal with. However, the Regulations provide for proceedings at the hearing to be conducted in the ordinary manner by the court receiving the evidence of the complainant and his witnesses, and then for the defendant to give evidence if he wishes, and to call witnesses.
Thus technically the complainant should have given evidence of his relationship to Kiseni, and indeed if it appeared that he was not the nearest relative, the appellant would have been entitled to have the complaint dismissed. If no such evidence were led, I consider that the conviction could have been upheld if it appeared from the information that the complainant was the nearest relative. It would have been a convincing argument that in the circumstances of this Territory, in the village of Laingim No. 1, all parties concerned must have been aware of the relationship and it was unquestioned.
But in this case an irregularity appears on the face of the record, in that the complainant is described as �the nearest male relative�; and accordingly, it is not shown that the provisions of reg. 84 (3) were complied with. Thus this ground for appeal is made out, but under the Native Administration Ordinance, s. 3 (3), the appellant must go further and show that �some substantial injustice and hardship� would otherwise be caused to the appellant. I consider that the words �substantial injustice and hardship� have the same meaning as the similar phrase in statutes providing for appeals in the case of �a substantial miscarriage of justice�. This phrase was considered by Fullagar J. in Mraz v. The Queen[cxxxix]6. The learned judge said: �It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law.�
I consider that there is �some substantial injustice and hardship� within the meaning of the Ordinance if there is a gap in the proof, as in this case, so that the appellant has lost his chance of dismissal of the complaint.
It follows that this ground of appeal succeeds.
Before leaving this ground, it may be of assistance if I indicate my views on the words �nearest relative�. The words �nearest relative� is not a term of art at common law. However, the words �nearest relations�, which is the same thing, have been considered by courts concerned with the interpretation of wills. See Swift v. Campbell[cxl]7; Scott v. Scott[cxli]8. The words have been taken to mean next of kin. Thus in the first degree of kindred are a man�s parents and children; the second degree of kindred are a man�s brothers and sisters, grandchildren and grandparents, and then in the next degree of kindred are the man�s nephews, nieces, uncles, aunts and great-grandparents, and great-grandchildren. For the purposes of the English law of succession, children were preferred to parents and brothers and sisters to grandparents, but the same considerations are not applicable to the Native Administration Regulations. See Mortimer on Probate, 2nd Edition, pp. 297-8. Thus it will be seen that in the circumstances of any particular case, it is certainly possible that a man may have one nearest relative; thus he may have no children or grandchildren and only one parent may be alive. But this may well be the exception, for in most cases a man�s nearest relative will be any one of a number of relatives of the first degree of kindred, or there being no relatives of the first degree, then any one of a number of relatives of the second degree of kindred, and so on.
N1>(3) and (4)��� Although not necessary for my decision, I propose to refer to both these grounds. Mr. Ley argued that as there was no evidence that the appellant was married, he could only be found guilty of an offence under reg. 84 (2) if it was shown he knew that Waingi was married, and he argued that there was no evidence of any such knowledge.
Mr. Chaney�s answer to this argument was that having regard to the fact that the appellant lived in the same village as Waingi, it was open to the magistrate to infer that the appellant had the knowledge required. We are not dealing with people in a modern metropolis; I consider that in the circumstances of this case it would be unreal not to draw such an inference, so this ground fails.
N1>(5)����� It is thus unnecessary for me to advert to Mr. Ley�s final argument that the sentence was excessive.
For the reasons which I have given the appeal is allowed and the conviction must be set aside. It may be thought that the standards of evidence which I have found that the magistrate should have required are difficult of application, having regard to the manner in which the magistrates must hear proceedings in the remote parts of the Territory. But for a man to be sent to gaol for the periods provided for in the Native Administration Regulations amounts to a serious interference with his liberty, and as Mr. Justice Fullagar pointed out in the passage I have referred to in Mraz v. The Queen[cxlii]9, accused persons are entitled titled to a trial in which the rules of procedure and evidence are strictly followed and the appellant is entitled to justice according to law.
Appeal allowed.
Solicitor for the appellant: W. A. Lalor, Public Solicitor.
Solicitor for the respondent: S. H. Johnson, Crown Solicitor.
[cxxxiv]
[cxxxv][1964] P. & N.G.L.R. 253.
[cxxxvi](1849) 2 H.L. Cas. 331; 9 E.R. 1118.
[cxxxvii][1961] 1 W.L.R. 9.
[cxxxviii](1779) 1 Doug. 171; 99 E.R. 113.
[cxxxix][1955] HCA 59; (1955) 93 C.L.R. 493, at p. 514.
[cxl](1815) 19 Ves. Jun. 400; 34 E.R. 566.
[cxli](1855) 2 Macq. 281.
[cxlii][1955] HCA 59; (1955) 93 C.L.R. 493, at p. 514.
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