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State v Burin [1994] PGLawRp 606; [1994] PNGLR 15 (25 March 1994)

PNG Law Reports 1994

[1994] PNGLR 15 - State v Peter Burin�

[1994] PNGLR 15

N1243

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

PETER BURIN

Buka

Doherty J

23-25 March 1994

CRIMINAL LAW - Particular offences - Incest with "sister" - Sister includes "cousin sister" if custom considers a "cousin sister" a "sister".

WORDS AND PHRASES - "Sister" can include "cousin sister" for the crime of incest, Criminal Code s 223(1)(b).

Facts

The accused was indicted and pleaded guilty to having sexual intercourse with his cousin sister, ie the daughter of his father's brother. It was established that under customary law she was the accused's sister, and sexual intercourse was not permitted. Before the sentence was imposed, the Court invited both counsel to address it as to whether the cousin sister who is regarded as a sister under the customary law would come within the provisions of s 223(1)(b) of the Criminal Code, which makes carnal knowledge of "his sister" a crime.

Held

N1>1.������ The customary law of the prosecutrix and the accused's area regarded them as brother and sister, hence prohibited sexual intercourse.

N1>2.������ In this case, "sister" in s 223(1)(b) of the Criminal Code includes a cousin sister .

Cases Cited

Aisa v Hoala [1981] PNGLR 199.

Re Lavaki (1981) unreported N324(M).

State v Aidou [1985] PNGLR 292.

State v Kais [1978] PNGLR 241.

Wauta v State [1978] PNGLR 326.

Counsel

N Miviri, for the State.

T Tamusio, for the defendant.

25 March 1994

DOHERTY J:� The defendant was indicted and pleaded guilty to one count of unlawful carnal knowledge of his sister, which is the offence of incest. The plea was confirmed by counsel. There was no application to vacate the plea in accordance with s 563 of the Criminal Code.

The depositions were tendered and, on reading these, it was apparent that the accused and the prosecutrix did not share a common mother and father or a common natural father, but the prosecutrix was a daughter of a brother of the accused's father. They were, therefore, sister and brother in the customary sense accepted in most, possibly all, societies in Papua New Guinea, which we frequently hear interpreted as "cousin sister" or "cousin brother". In the light of this, I did not return a verdict of guilty. I invited counsel to address on the interpretation of s 223(1)(b) of the Criminal Code and whether a "cousin sister", that is a granddaughter of a common ancestor or grandparent, is a sister within the meaning of s 223(1)(b).

The counsel for the State says there is a direct common link between them. They have two common grandparents and, therefore, are within the section's definition of "lineal decendant".

The provisions of s 223 of the Criminal Code have been derived from overseas. The section is narrower than many other jurisdictions, which have a wider meaning of what constitutes an incestuous relationship. Why it has adopted this narrow provision is a matter for the legislature, and its reasons are not known. The provision has been subject to criticism in the past, as it does not reflect society's traditional feeling of what constitutes the family and the concept of trust and the duty within the family, both immediate and extended.

The evidence, which is not in dispute, shows that sexual intercourse took place between the accused with two of his cousin sisters. One states that it was rape. The other refers to other forms of sexual activity unacceptable to her and to some pressure.

The accused is clearly a menace to some of his female relatives and has failed to take proper regard of traditional morals, but the Court must consider whether that, in itself, is a criminal offence provided by s 223 of the Criminal Code.

In considering whether a cousin sister is within the provisions of s 223, I have considered precedents of State v Aidou [1985] PNGLR 292, Wauta v The State [1978] PNGLR 326, State v Kais [1978] PNGLR 241, and Re Lavaki, unreported judgment N324(M) of 1981. The case law of Wauta and Kais deals with the provision for a "daughter or other lineal decendant". It was held in those cases, after reviewing the case law and the legislation of other jurisdictions, that lineal meant "of the blood". Therefore, it did not include an adopted child, as the legislature did not make any provision for the status of adopted children in the Criminal Code or other laws. Hence, a stepdaughter or an adopted daughter were not of the blood and, therefore, not within lineal decent and not within s 223(1)(a). In Lavaki's case, a niece was also considered, and the expression lineal decendant was considered to be in line of descent and not lateral, that is to the side, as in a brother.

The instant case does not deal with lineal descent. The words "lineal" and "descendant" are not used with "sister" in s 223(1)(b) of the Code. A sister is not defined in the Criminal Code. It is quite clear that the Constitution requires, at s 37(2), that a person can only be convicted of a criminal offence if it is part of the written law. The Court must decide, therefore, what is a "sister". In State v Aidou, the Court considered the provisions of custom and held, there being no definition of sister provided in the Criminal Code, the Court should interpret the word. Barnett J said at p 293:

"There being no definition of 'sister' provided in the Criminal Code, I first take account of the evidence that carnal knowledge of a half-sister is considered a serious wrong by the customs of Siassi Island. The principles of common law applicable as at 16 September 1975 must also be considered. They were set out by the Queensland Court of Criminal Appeal in R v Thompson [1933] QJPR 93, which, when interpreting an identical section in the Queensland Criminal Code, held that 'sister' included a half-sister who was from the same mother as the accused but of a different father."

Barnett J considered the custom of Siassi forbidding sexual intercourse between a half-brother and a half-sister was not inconsistent with the constitutional law or statutes nor repugnant to the principles of humanity. He found that the inclusion of a half-sister within the term "sister" was part of the principles of common law, saying:

"This principle is neither inconsistent with Constitutional Law, statute nor inapplicable to the circumstances of the country. It is not inconsistent with custom and it should apply in this matter."

He, therefore, adopted the customary attitude that a half-sister was a sister for the purpose of determining incest.

The law in the Criminal Code may have been adopted from Queensland, but it is now Papua New Guinea law, and it is to be interpreted by the Papua New Guinea courts in the light of Papua New Guinea rulings and legislation. In adopting the wording of another country's law, the courts are not bound by the interpretation of that country's law. An example of where the interpretation of criminal laws adopted in Papua New Guinea has differed from their overseas counterparts is in the interpretation of "living on immoral earnings", the laws relating to prostitution in the Summary Offences Act.

Counsel for the State in the case before me says that the fact that the matter was reported and the accused was charged by his family and village leaders, in itself, indicates community feeling about this situation. However, whilst that may be community feeling, the law is not that simple. Section 37(2) of the Constitution applies, and the law requires evidence of the alleged fact that a sister means and includes a cousin sister.

The Customs Recognition Act Ch 19 and the case of Aisa v Hoala [1981] PNGLR 199 provide that the Court must have evidence of the custom, and custom is to be proved.

As a result, evidence from a chief and a leader from the area were called in this case. They gave evidence of the custom and were cross-examined. The first witness, when asked what was the attitude to a brother's son and another brother's daughter having a sexual relationship, said, "It is forbidden, and custom forbids this". When asked the consequences, he said anyone who defied or broke this custom was killed or was made to compensate by killing pigs. This was the initial evidence, but in cross-examination of this witness, further detail emerged.

The society in question is a matrilineal one, and a distinction is drawn between daughters and sons born from brothers. In evidence, it was said that any relationship with a sister's family is forbidden, but there is not the same strong restriction on relationships between a male and his brother's family. However, that lack of restriction does not appear to extend to marriage or sexual relationship with a brother's children if they are within the same clan. It was said, in relation to a son of a brother having sex with the daughter of another brother, "The custom does not allow this because this, would cause disharmony and fight and custom requires pigs". However, if the brothers' wives are from different clans, then their children may inter-marry despite being first cousins. The terms "brother" and "sister" are applied to the relationship between children born to a brother and children born to a sister, but there is "a slight difference" in the word used for a brother and a sister of the same mother and father and the children of uncles and aunts.

The emphasis on the relationship between the respective mothers rather than the fathers' relationship was brought out more strongly by the second witness. He said that, in custom, if two brothers have a daughter and a son, respectively, and the wives are from different clans, then the children could marry. He also said, when asked to explain, "If I am married to your sister, and you are married, our children cannot marry, and their children's children cannot marry, and after the third lot. However, if two of us are married to sisters, it is "tambu" for our children to marry, but if two of us marry girls from different clans, it is not forbidden for our children to marry". He also used the term "brother and sister".

Hence, from the facts before me, the term sister is not limited to a child of common parents but may extend to a child of a brother or a sister. Whether, in this custom, that relationship with the sister forbids sexual relationship depends partly on the relationship of their mothers rather than of their fathers. The accused's father and the prosecutrix's father are brothers. The accused's mother and the victim's mother are from different clans, but the accused and the prosecutrix are regarded as sister and brother and the custom does not allow him to have sex with the daughter of the victim's father. This was stated as follows: "custom does not allow this".

Hence, it is apparent that differences may occur, if the relationship is on the mother's side or on the father's side. In the final evidence, a sister includes a cousin sister, and I find from this situation it depends on custom whether a first cousin has the status of a sister within the meaning of the Criminal Code s 223(1)(b).

I find on the evidence of the facts of the situation before me, a cousin sister is considered a sister. Accordingly, I uphold this plea of guilty. I do not vacate it on the evidence before me, and I return the verdict in accordance with the plea.

It may appear incongruous that a cousin sister relationship could be incestuous whilst a niece is not, but that is the way the law has been framed and, as I have said, it is subject to criticism.

The point is a point of law, and this Court may, if so requested, refer it to the Supreme Court for interpretation, as it is an important point with far-reaching consequences.

In the instant case, I return a verdict of guilty in accordance with the plea entered. I leave it for counsel to make whatever application they consider appropriate in the circumstances.

Lawyer for the State: Public Prosecutor.

Lawyer for the defendant: Public Solicitor.