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Queen v Kausigor [1969] PGSC 48 (7 November 1969)

IN THE FULL COURT OF
THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

Coram: Minogue, A.C.J.
Frost, J.
O'loghlen, A.J.

QUEEN v. CLEMENCE MANDOMA KAUSIGOR

QUEEN v. PIKI PILIU

APPEAL

1969: Oct. 27, 28, Nov. 7

PORT MORESBY

REASONS FOR JUDGMENT

On 17th February, 1969 each of the appellants was presented at the Criminal Sittings of the Court at Wewak on a charge that he had carnal knowledge of the other against the order of nature. By Sec. 208 of the Criminal Code of New Guinea (Queensland, adopted) the maximum penalty for this offence is imprisonment for fourteen years. Each pleaded guilty to the charge. From the depositions it appears that the two appellants met at or about midday at a tavern at Boram near Wewak, that an arrangement for intercourse was made and they thereupon walked some 400 yards into the bush where intercourse took place. The appellant Clemence then handed a small sum of money to the appellant Piki. One Yambum followed the pair and observed what had taken place and before Piki left the scene Yambum told him that he was going to report the matter to his (Piki's) brother. In this way the offence came to the attention of the police and prosecutions were duly launched. From Clemence's version at a subsequent police interview it appeared that he was solicited by Piki but it would seem that no thing was made of this when the offenders were presented before the Court. In addition to the depositions the learned trial Judge had before him in respect of each appellant a document known as an antecedent report which it is customary to present to the Court upon conviction or upon a plea of guilty being taken. In the case of Piki the report disclosed that he was about 19 years of age, that he was brought up in a village environment in the Vanimo area, that he had had two years of schooling but had not progressed beyond Class 1 and that he was employed by the Public Works Department at Wewak. The report further stated that the crime charged was completely against local custom (presumbably in the Wewak area) and that there were no circumstances either of extenuation or aggravation known to the Sub-inspector who prepared the report. In the case of Clemence the antecedent report showed that he was aged approximately 26 years and came from a village in the Wewak Sub District. He had never attended school. It appeared also that he had not been in any gainful employment and lived the life of a villager. In his case also the crime charged was stated to be completely against local custom and no circumstances of aggravation or extenuation were known. Neither appellant had any prior convictions. Clemence was crippled in the lower legs. Neither appellant had anything to say in extenuation of the offence and all that was urged upon the learned trial Judge by counsel were Piki's youth and in the case of Clemence the fact that he was crippled in the lower legs. On this account so it was said it was difficult for him to form a relationship with women in his community and in consequence he was still unmarried at the age of 26 years. Each appellant was sentenced to imprisonment with hard labour for three years and it is from these sentences that appeal is now brought.

The appeals came on for hearing on 26th June last and were fully argued and the Court reserved its decision. Unfortunately, the Chief Justice became grievously ill and in consequence was unable to indicate what his decision would be and it was directed that the appeals be reheard. At the hearing in June a good deal of new material was put before the Court. This material consisted of affidavits by Father Heinemans, a Roman Catholic priest with long experience in the Sepik area and affidavits tendered by the Crown which were said to contradict or at any rate to greatly modify the views expressed by Father Heinemans. The Court also allowed crossexamination of the latter upon his affidavits and at the hearing before us by consent of the parties these affidavits were allowed to be given in evidence as was also the transcript of the earlier crossexamination. Father Heinemans after speaking of his 16 years experience in the Sepik area expressed the view that before European contact homosexual behaviour between males may have been contrary to the customs of the people of the Sepik District. However, since the introduction of the contract labour system which involves men moving away from their wives and families for long periods and the housing of them together in large dormitories with no organised recreation nor recreation facilities this type of behaviour has become very common and widespread in areas where there are large labour lines. Sepik men returning to their villages at the end of their contracts of employment on plantations have introduced homosexual behaviour into the villages with the result that such behaviour has become quite common. It is not approved by those who do not indulge in it and in his opinion the people think it deserving of punishment but would consider it amply punished by sentences of two to three months imprisonment. He went on to opine that the Sepik people regard such behaviour between consenting males to be less serious than sexual intercourse between unmarried girls and men. The latter behaviour is disapproved as it interferes with bride price and exchange arrangements and prior arrangements made in relation to the girl's marriage and with other family interests involved in the customary methods of negotiating marriages. Homosexual behaviour between males is not seen as a serious offence because the people do not see it as a threat to their society and its traditions. He regarded the practice as harmful partly because of the likelihood of spreading venereal disease and partly because being against the order of nature it tends to bring unhappiness or to create a mentality of unhappiness in the village. Doubt was cast upon the generality of Father Heinemans' statements by Mr. Dickinson, an experienced District Officer, and by Superintendent Beattie of the Royal Papua and New Guinea Constabulary. From the affidavit sworn by one Jimu Kunare, a young police constable who was born in Clemence's village, it appeared that the offence was against the custom of his people and was regarded as "a big shame". However, the crossexamination of Father Heinemans in my view showed that his opinions were well founded and we have come to the conclusion that there is fairly widespread homosexuality in the Sepik area, that there is no tribal or village custom which allows or condones this type of behaviour, that it brings opprobrium to those deviates who are found out, but that it is not regarded as seriously as fornication (which as often as not merits no criminal sanction). Unfortunately, as appears from the affidavit of counsel who appeared for the appellants at Wewak the exigencies of his circuit in February did not allow him to procure or present any of the material which was before the Court in June and at this hearing. Mr. Broadley for the appellants was able to give the Court some information con-cerning penalties for this type of offence although it seems from his researches that at any rate in the last four years there have been very few such cases before the Court. This of course may well be due to the fact that generally this type of behaviour is indulged in by consenting parties in private and it is only when some element of compulsion or of flagrant conduct which outrages the public conscience exists that recourse to criminal sanction is sought. Be that as it may in the six known instances before the Court a sentence of the order imposed in this case was only imposed when there was some special element present, e.g. the element of corruption, the youth of the victim or the relation of guardian and ward.

It is undoubted that in a criminal appeal the Appellate Court is both able and ready to receive new material which was not before the sentencing Judge. See for example Holder v. R. (^[1]), R. v. Oberthur (^[2]) and R. v. Bates (^[3]). The Appeal Court has felt at liberty to take the additional material into account and to impose such sentence as it feels appropriate or as it has sometimes said the sentence which it feels the Judge would have imposed had he had the advantage of the additional knowledge possessed by it.

It has been strongly urged upon us by the learned Chief Crown Prosecutor that the maximum penalty of fourteen years shows that the legislature regards the offence of sodomy most seriously and that the sentence of three years shows that the learned Judge of first instance regarded this offence as being much less than of maximum gravity. We appreciate the force of this argument although we must confess to some difficulty in this sphere of human behaviour in this Territory in determining what are the "felt necessities of the time, the prevalent, moral and political theories" which Oliver Wendell Holmes Jr. speaks of as having a good deal more to do than the syllogism in determining the rules by which men should be governed. We refer to not dissimilar cases in England at a time when the maximum sentence provided by the legislature was imprisonment for life in which sentences of twelve and eighteen months respectively were imposed - Campbell and Skoyles (^[4]),Varlow (^[5]). There has been a similar trend in the States of Australia.

What then should be done in this case which is one of sexual intercourse between two adult consenting males - for all practical purposes in private. There is no question of corrupting or seducing youth and no element of force. We have accepted what is said about the attitude of the people. We take into account also that one of the parties was paid also for his services. We consider that the learned trial Judge was influenced by the statement in the antecedent report that the present offences were completely against local custom which in the context indicates an attitude approaching abhorrence and has given it special weight. The statement does not carry the implication, as the evidence now before us shows, that the force of local custom has become greatly weakened in the observance or that the offence was not regarded by the people as meriting a long term of imprisonment, In all the circumstances we think the sentences were substantially excessive and ones which we feel would not have been imposed if the learned trial Judge had had the advantage of the material put before this Court. As was said in Varlow (^[6]) (supra) we do not say that such sentences are inappropriate to this particular offence. Indeed there will be cases which will warrant a more severe sentence but in the circumstances we consider that sentences of eighteen months imprisonment are adequate and the sentences should be reduced accordingly. We grant leave to appeal, allow the appeals and substitute in each case a sentence of eighteen months.

In the light of what we have said we do not express our views on the submissions made by the learned Chief Crown prosecutor with respect to the general principles which should guide this Court in its consideration of an appeal against sentence.

These raise questions of some difficulty which merit fuller argument than we felt necessary for the determination of these appeals.

Solicitor for the appellants: W. A. Lalor, Public Solicitor
Solicitor for the Crown: P. J. Clay, Acting Crown Solicitor

^[1] (1911) 7. C.A.R. 59
^[2] (1930) 24 Q.J.P.R. 166
^[3] (1934) 28 Q.J.P.R. 86
^[4] (1923) 17 C.A.R. 187
^[5] (1931) 22 C.A.R. 189
^[6] [1925] CthArbRp 173; (1931) 22 C.A.R. 189