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Gabe v Griffin [1977] PGLawRp 567; [1977] PNGLR 492 (1 December 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 492 - Idau Gabe v Meriam Griffin�

[1977] PNGLR 492

N119

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IDAU GABE

V

MERIAM GRIFFIN

Waigani

Saldanha J

10 October 1977

1 December 1977

CRIMINAL LAW - Particular offences - Adultery - Principles of offence - Necessary to prove valid marriage - Marriage by native custom - Cohabitation for 10 years - Order for payment of compensation - Capacity to pay - Native Regulations 1939 (Papua) reg. 84(2)[dxxiii]¹, reg. 84(9)[dxxiv]².

The appellant, Idau Gabe was charged with and convicted of the offence of adultery with one Bob Griffin contrary to reg. 84(2) of the Native Regulations, 1939 (Papua), sentenced to three weeks� imprisonment and ordered to pay compensation of K150 to the respondent (complainant). There was no dispute that the respondent (complainant) and Bob Griffin were not married in accordance with the provisions of the Marriage Act 1963, and the evidence before the Local Court indicated that the parties had cohabited for 10 years and had 4 children. On appeal against conviction;

Held

N1>(1)����� For the offence of adultery under s. 84(2) of the Native Regulations 1939 (Papua) to be constituted, it must be proved by the complainant that the accused had sexual intercourse with a native person of the opposite sex and that the native person was a married native person.

N1>(2)����� Where there is no marriage in accordance with the provisions of the Marriage Act 1963, it will be necessary to prove that there is a valid marriage �in accordance with the custom prevailing in the tribe or group of Natives to which the parties to the marriage or either of them belongs,� in accordance with reg. 84(9) of the Native Regulations 1939 (Papua).

N1>(3)����� There being no direct evidence nor any available evidence that cohabitation over a period of time constituted in the circumstances, a valid marriage by native custom, the conviction, sentence and order for compensation should be set aside and the case remitted for rehearing before another magistrate.

N1>(4)����� Any order for compensation under the Native Regulations 1939 (Papua) should be within the capacity to pay of the accused.

R. v. Hewitt [1971] Crim. L.R. 492 and

R. v. Churchill (No. 2) [1966] 2 All E.R. 215 referred to.

Appeal

This was an appeal against conviction and sentence, on a charge of adultery contrary to reg. 84(2) of the Native Regulations, 1939 (Papua).

Counsel

B. M. Gillin, for the appellant.

J. L. Cagney, for the respondent.

Cur. adv. vult.

1 December 1977

SALDANHA J: The appellant appeared before a Local Court magistrate at Port Moresby charged with the offence of adultery contrary to reg. 84(2) of the Native Regulations, 1939 (Papua). The charge against her was that she being a native woman had sexual intercourse with William Robert Griffin (Bob) a married native man who was not her husband knowing him to be married. She was convicted and sentenced to three weeks� imprisonment with hard labour suspended for six months and ordered to pay compensation of K150.00 to the complainant Meriam Griffin, the respondent in this appeal, who claims to be Bob�s wife.

The short facts which led to her conviction were as follows. On the 21st December, 1976, at about 5.15 p.m., the complainant dropped Bob at the Kone Club. When she returned at about 11.00 p.m., being the time when she had arranged to collect him, he was not there. He did not come home that night nor during the next few days. On making enquiries she found that he was living with the appellant in a room at Ranuguri Hostel. The complainant went to the hostel accompanied by her brother and a cousin between 7.30 and 8.00 p.m. on the 24th December and found Bob with the appellant in a room with the lights switched off. The matter was reported to the police and resulted in the appellant being prosecuted for adultery.

At the trial the appellant denied having committed adultery with Bob but she admitted having occupied that room with him from 21st to 24th December. On this evidence the trial magistrate quite rightly came to the conclusion that sexual intercourse had taken place, and, Miss Gillin, who appeared for the appellant at the hearing of the appeal, made no attempt to deny this.

Regulation 84(2) provides as follows:

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

In addition to proving that the appellant had sexual intercourse with Bob it must have been proved by the prosecution that Bob was a married native man. I am informed that Bob is a person of mixed race and the appellant appeared to me to be a person of mixed race. There is no dispute, however, that both are natives within the meaning of the Native Regulations, 1939.

The appellant maintains that Bob was not validly married to the complainant. I doubt whether it would have occurred to the appellant to question the validity of Bob�s marriage to the complainant if she had not been asked by the magistrate: �You know that Mr. Griffin is married�. She replied: �He was not legally married�. The magistrate however made a finding that Bob was married to the complainant. He said in his judgment: �Taking into account of customary wise there is marriage with 4 children and 10 years period�. Miss Gillin maintains that cohabitation over no matter how long a period is not proof that there has been a valid marriage, and, that in the absence of such proof the appellant should have been acquitted.

This appeal boils down to the simple question: Is Bob married to the complainant within the meaning of the Native Regulations, 1939? It is not in dispute that they were not married in accordance with the provisions of the Marriage Act 1963. If they are married at all they can only have been married by native custom, in which case, reg. 84(9) of the Native Regulations would be relevant. This provides as follows:

�For the purposes of this Regulation 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 is a valid marriage�.

The complainant referred to Bob as her husband. She was not asked if she was married to him. She was asked how long she had lived with him and she said for ten years. It is possible that the complainant is married to Bob by native custom. On the other hand she may be calling him her husband merely because she has lived with him for a long time and borne him children. For all I know cohabitation over a period of time may well constitute a valid marriage by native custom, and, it is possible that the magistrate in making the finding he did was merely taking judicial notice of native custom.

I have not been able to find in the books what the custom is with regard to marriage in the group to which the parties belong and I have been informed by both counsel that there are no reported cases on this point.

In these circumstances I set aside the conviction, sentence and order for payment of compensation and remit the case to the Local Court for hearing before another magistrate.

The order for payment of compensation was made without enquiry as to the appellant�s ability to pay. I am informed by appellant�s counsel that the appellant is a divorcee with six children between the ages of 3 and 14 years and that she earns K42.00 per week. It seems to me that the compensation she was asked to pay is more than she can afford. It should have been within her capacity to pay: see R. v. Hewitt[dxxv]³�and R. v. Churchill and Others (No.[dxxvi]⁴). These two cases are concerned with the payment of fines but the principles stated therein apply with equal force to the payment of compensation.

In the event of the appellant being convicted at the re-trial and the trial magistrate wishing to make an order for payment of compensation he must first make an enquiry as to her capacity to pay.

Appeal allowed. Conviction, sentence and order for compensation set aside.

Solicitor for the appellant: W. J. Andrew, Acting Public Solicitor.

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

[dxxiii]Infra p. 493.

[dxxiv]Infra p. 494.

[dxxv][1971] Crim. L.R. 492.

[dxxvi] [1966] 2 All E.R. 215.