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State v Torres [2011] PGNC 99; N4365 (6 August 2011)

N4365

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 745 OF 2010

THE STATE

v

GIBU TORRES

Daru: Kariko J
2011: 4-6 August

CRIMINAL LAW – Particular offence – Incest – Meaning of "close blood relative"

The accused was charged with incest whereby the State alleged that he had sexual intercourse with his niece.

Held:

In section 223 Criminal Code:

1. "close blood relative" refers to relationships that are "close" as opposed to "extended", and "connected by blood".
   
2. "niece" refers to the biological daughter of a sibling of the accused.
   

Cases cited:

Wauta v The State [1978] PNGLR 326
The State v Kais [1978] PNGLR 241
The State v Aidou [1985] PNGLR 292
Re Emmanuel Lavaki (1981) N324(M)
The State v Peter Burin [1994] PNGLR 15

Counsels:

D Mark, for the State
P Palek, for the Accused

6 August, 2011

1. KARIKO J: The accused has been charged with sexual penetration of a close blood relative (more popularly called "incest") an offence found in section 223 of the Criminal Code. The State's case is based on the allegation that the accused had sexual intercourse with a niece, one Kaune Saranga starting in June 2006 and resulting in the birth of a female child.
   
2. Section 223 reads:
   

223. Incest.

(1) A person who engages in an act of sexual penetration with a close blood relative is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2) For the purposes of this section, a close blood relative means a parent, son, daughter, sibling (including a half-brother or half-sister), grandparent, grandchild, aunt, uncle, niece, nephew or first cousin, being such a family member from birth and not from marriage or adoption. (My emphasis)

3. The alleged act of sexual penetration has not been denied meaning the only issue on trial is whether Kaune Saranga is a "close blood relative" of the accused within the definition in section 223(2).
   
4. The State's case relies on certain admissions made by the accused during the record of interview, more particularly his answers to Questions 16, 26 and 27. I set these out:
   

Q16: What is your tie (sic) with Kaune Sarang?Ans: She is my brother's daughter. His father is first and my (sic) is second.

Q26: Is it tru (sic) Kaune Sarng is one of your close blood relative?

Ans: Yes, in the eye of God she is one of my close family member. ...

Q27: Is it true you well knew that Kaune is your daughter your brother's daughter?

Ans: I am (sic) told you yes she is my brother's daughter

5. In his defence, the accused denied giving the answers and suggested they were fabricated by the police investigator who did not read the interview over to him before asking him to sign. I reject this claim. There is no reason why the interviewing officer would manufacture the answers, and indeed the tender of the record of interview into evidence was not challenged. There was also a submission to disallow the record of interview on the basis that constitutional rights of the accused were breached but I also reject this submission as without proper foundation.
   
6. I am satisfied that the accused gave the answers to questions 16, 26 and 27 of the record of interview as recorded and did say that he and Kaune Saranga's father are brothers. If they are brothers (siblings), then this would make Kaune a niece of the accused, and the accused would be caught by section 223.
   
7. Incest or applying the simple definition "sex with a close family member" is and has been one of the main sexual taboos in most societies of the world. It is considered by society to be a disgusting and offensive act. In Papua New Guinea this view has been based on customary law and supported by the introduction of Christian principles which teach that incest is immoral and a sin. This taboo has been recognized and reflected in the criminal law with the creation of the offence of incest, whereby sex between certain family relationships is prohibited.
   
8. The previous section 223 of the Criminal Code relevantly read:
   

223. Incest by man

(1) A person who carnally knows a woman or girl who is, to his knowledge -

(a) his daughter or lineal descendant; or

(b) his sister; or

(c) his mother,

is guilty of a crime.

9. The relationships referred to in that section were discussed in several published cases:
   
   • In Wauta v The State [1978] PNGLR 326 and State v Kais [1978] PNGLR 241, the courts dealt with the phrase "daughter or other lineal descendant" and held that lineal meant "of the blood", and did not include an adopted child or a stepdaughter as they were not of the blood or within lineal decent.
     
   • In the State v Aidou [1985] PNGLR 292, it was held that "sister" included "half-sister".
     
   • In Re Emmanuel Lavaki (1981) N324(M), the court found that incest cannot be committed with a niece (a brother's or sister's daughter) as it is a lateral rather than a lineal relationship.
     
   • In the State v Peter Burin [1994] PNGLR 15 it was decided that sister included a cousin sister (that is a brother's or sister's daughter). This relationship in this country is normally described as first-cousin.
     
10. The list of relationships found in the present section 223 appear to have incorporated and applied the decisions in the case authorities I highlighted, particularly Wauta v The State, The State v Kais and The State v Peter Burin. It seems that it was also though necessary to "correct" the law as decided in Re Emmanuel Lavaki and include sex with a niece as incest. The relationships under the former section 223 were expanded when that section was amended by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The amendment enacted one provision for the offence of incest. Previously there was a section 224 (Incest by adult female) which was repealed.
    
11. In my view, the prohibited relationships now described as "a close blood relative" refers to relationships that are "close" as opposed to "extended", and "connected by blood". The relationships listed in section 223 must be accorded their plain and ordinary meaning. In my opinion, section 223 prohibits a person having sex with:
    
    • a parent (the biological mother or biological father)
    • a son (a biological male child of the person)
    • a daughter ( a biological female child of the person)
    • a sibling (a brother or sister where at least one of the parents is a common biological parent to both the accused and the sibling, and therefore includes a half-brother or half-sister)
    • a grandparent (a parent of a parent)
    • a grandchild (a biological child of the person's son/daughter)
    • an aunt (a parent's female sibling)
    • an uncle (a parent's male sibling)
    • a niece (a sibling's biological daughter)
    • a nephew (a sibling's biological son)
    • a first-cousin (an uncle/aunt's biological child)
      
12. The State offered no other evidence to illustrate how the accused and Kaune Saranga's father are "brothers". The State merely submits that I accept the answers in the record of interview on their face-value. I am reluctant to do so for the main reason that in Papua New Guinea, it is very common for persons to refer to relationships such as father, mother, brother, sister, uncle and aunt in a totally different way than in the Western world. In PNG the relationships have an extended or wider meaning and may be based on a reference to a belonging to the same clan, same village, same district, and same language group or even a common ancestor.
    
13. The only explanation of the relationship between the accused and the alleged victim and therefore her father (Saranga) came from the testimony of the accused. According to him, both he and the victim's father have a common ancestor. From that common ancestry, and five generations and five separate and corresponding lineages later, both the accused and Saranga were respectively born. The accused to a man called Torres Mana and Saranga to a man called Tuk Wia. The accused and Saranga are not siblings and therefore Kaune Saranga is not a niece as contemplated under section 223.
    
14. As I stated earlier, I am satisfied that the accused told the police that he and Kaune's father are "brothers" but I think he described this relationship basing it on their common ancestry. I believe that in court the accused denied the admissions in the record of interview to distance and remove himself from any liability after realising the implications of the answers, no doubt following legal advice.
    
15. The State has not proved its case beyond reasonable doubt, and I therefore find the accused not guilty of incest as indicted.
    

_______________________________________________________________

Acting Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused