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State v Aidou [1985] PGNC 37; [1985] PNGLR 292; N518 (20 September 1985)

N518

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

LUKE AIDOU

Rabaul
Barnett AJ

20 September 1985

CRIMINAL LAW - Particular offences - Incest - With "sister" - "Sister" includes "half-sister" - Criminal Code (Ch No 262), s 223.

Held:

For the purposes of the crime of incest by a man with his "sister" contrary to the Criminal Code (Ch No 262), s 223, "sister" includes a half-sister.

Cases Cited

The following case is cited in the judgment:

R v Thompson [1933] QJPR 93 and on appeal (1934) 52 CLR 750.

Trial

This was the trial of an accused on charges of unlawful carnal knowledge and incest contrary to the Criminal Code (Ch No 262), s 216 and s 223.

Counsel:

M Pita, for the State.
G Gendua, for the defendant.
Cur adv vult

20 September 1985

BARNETT AJ.: The accused in this case was originally indicted on one count only of having unlawful carnal knowledge of a girl under the age of sixteen years contrary to the Criminal Code (Ch No 262), s 216. He pleaded not guilty.

In his opening the prosecutor informed the court that, although the accused had originally been committed for trial for incest he had reduced the count on the indictment to unlawful carnal knowledge as the young woman concerned was only the half-sister of the accused, they having been born of the same father but from different mothers.

The court then directed that a second count of incest under s 223 be added to the indictment. The accused was then also arraigned on the incest count and he again pleaded not guilty. The trial then proceeded on both counts; unlawful carnal knowledge of a girl under the age of sixteen years and having carnal knowledge of his sister.

The girl’s father gave evidence that the accused was his son by direct lineal descent from his first wife and that the girl was his daughter by direct lineal descent from his second wife. Both wives having subsequently died. The accused gave sworn evidence in which he admitted the girl and himself were children of the same father and that he knew this at the time the offence was alleged to have been committed.

Evidence of native custom was given by the father and another witness that it was forbidden for half-brother and half-sister to have sexual intercourse and that it was treated as a serious wrong according to the customs of Siassi Island, their home area.

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. This decision obtained the status of a decision of the High Court of Australia when that court refused leave to appeal on this point of law (R v Thompson (1934) 52 CLR 750).

In applying Sch 2 of the Constitution, I find that the custom of Siassi Island forbidding sexual intercourse between half-brother and half-sister is not "inconsistent" with a constitutional law or a statute, or repugnant to the general principles of humanity and so is not constrained by Sch 2.1(2). I further find that the inclusion of "half-sister" within the term "sister" was part of the principles of common law and equity existing immediately prior to Independence Day. This principle is neither inconsistent with constitutional law or statute nor inapplicable or inappropriate to the circumstances of the country from time to time nor inconsistent with custom as it should apply in this particular matter. This particular principle should therefore be applied pursuant to Sch 2.2 of the Constitution, free of any of the constraints set out at Sch 2.2(1)(a), (b) and (c).

The accused is guilty of both unlawful carnal knowledge of a female under the age of sixteen years as well as incest with his half-sister. He is convicted only on the incest count as this more serious offence subsumes the lesser offence.

The accused is twenty-eight years old and was acting in the position of guardian to his half-sister who was aged somewhere between the ages of eleven and thirteen years. He had no previous convictions.

Sentenced to five years imprisonment with hard labour.

Verdict and sentence accordingly

_______________________

Lawyer for the State: State Prosecutor.
Lawyer for the Defence: Public Solicitor.