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Nyangri v Omakan [1965-66] PNGLR 8 (25 March 1964)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 8 - Mas Nyangri v Omakan

[1965-66] PNGLR 8

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

MAS NYANGRI

V

OMAKAN

Port Moresby

Minogue J

19 March 1964

25 March 1964

CRIMINAL LAW - Unlawful sexual intercourse - Whether charge disclosed an offence - Appeal from Court of Native Affairs - Native Administration Regulations 1924-1962, reg. 85.

Regulation 85 reads as follows:

�Any native who induces or compels or does anything with the object of inducing or compelling any female to have sexual intercourse with a male person who is not her husband shall be guilty of an offence.�

The appellant had been convicted of offering a sum of money to a female with the object of inducing her to have sexual intercourse with a male person who was not her husband, to wit, himself, contrary to reg. 85 of the Native Administration Regulations 1924-1962. The appellant contended that the charge disclosed no offence as reg. 85 was not directed at and did not extend to a case of a native inducing or compelling a female to have sexual intercourse with himself but was applicable only to cases where a native induces or compels a female to have sexual intercourse with a male person other than himself.

Held:

That the regulation applies to all male persons who do not fall within the description of �husband�.

Appeal from Court of Native Affairs.

The facts are sufficiently stated in the judgment.

Counsel:

Lalor, for the appellant.

Dabb, for the respondent.

25 March 1964

MINOGUE J.: This is an appeal by the appellant Mas against a conviction by a magistrate in the Court for Native Affairs at Amboin. Mas was charged that on the 23rd November, 1963, at Sikai�um, Angaram, he did something, to wit, offered a sum of money to Numbor Mengarang, a female native of Sikai�um, with the object of inducing her to have sexual intercourse with a male person who was not her husband, to wit, himself, contrary to reg. 85 of the Native Administration Regulations 1924-1962. To that charge he pleaded not guilty but was convicted at a hearing on the 7th January, 1964.

Pursuant to the Rules of the Central Court regulating appeals from Courts for Native Affairs, I was furnished with a copy of the notes of evidence taken at the hearing. From a perusal of these notes it is clear from the appellant�s own statement that he gave money to the girl Numbor in consideration for sexual intercourse with her and there was ample evidence from which the magistrate could have concluded that he offered her that money with the object of inducing her to have sexual intercourse with him.

But the appeal was taken on the primary ground that the charge disclosed no offence and the short point argued by Mr. Lalor, for the appellant, was that reg. 85 was not directed at and did not extend to a case of a native inducing or compelling a female to have sexual intercourse with himself but was applicable only to cases where a native induces or compels a female to have sexual intercourse with a male person other than himself.

Mr. Dabb, for the respondent, on the other hand, argued that the conviction should stand because having regard to the plain meaning of the regulation the appellant fell within its terms.

Looking at the words of the regulation, unless there is any authority which compels me otherwise, it seems to me that their plain meaning is as Mr. Dabb contends. The prohibition is against inducing or compelling sexual intercourse with a male person who is not the husband of the female concerned. These words in my judgment must include all male persons who do not fall within the description of �husband�.

Mr. Lalor urged upon me that looking at the regulations as a whole they show an avoidance of technical terms and a lack of precise language, that the object of the regulation-making power was to put in simple language for the understanding of native people, those laws for the breach of which it was desired to give summary jurisdiction and expeditious hearing. This seems to be true enough but in the case of this regulation, although the language is simple enough, I cannot see anything imprecise or ambiguous in it.

Is there then any authority which compels me to read the regulation in a way other than what appears to me to be its plain meaning? Mr. Lalor referred me to Circular Instruction No. 46, issued by the Lieutenant-Governor, Sir Hubert Murray, in December, 1924. This instruction dealt with the Papuan Regulation which is substantially the same as the one under consideration. That instruction reads:

�I find that Native Regulation No. 82 (5) is being construed . . . as punishing all sexual intercourse between persons who are not married. Thus if A, a man, induces B, a woman and not his wife, to have connection with him he is considered guilty of an offence under the regulation, for, it is argued, A has done something with the object of inducing B to have sexual intercourse with a male person; i.e., himself A.

Of course the regulation only applies to cases where something is done with the object of inducing the woman to have connection with a third person - not A, but some other man.

Please warn Resident Magistrates against putting this construction upon the regulation.�

Although so far as I know Sir Hubert Murray was responsible for the drafting of the Papuan Regulations and the New Guinea Regulations were in large measure taken or copied from these regulations, I am afraid that if his intention in drafting the regulation was expressed in the instruction the appropriate words were not used and I cannot regard the instruction as authority for the construction of the words used. I was referred in argument to a number of cases, particularly the case of R. v. McKelvey[ii]¹. In that case the person was charged under s. 218 (2) of The Criminal Code (Queensland) with having procured a woman to have unlawful carnal connection with him by certain false pretences. The section reads:

�Any person who:

(2)����� By any false pretence procures a woman or girl, who is not a common prostitute or of known immoral character, to have unlawful carnal connection with a man, either in Queensland or elsewhere ... is guilty of a misdemeanour ...�

It was argued that the section could not apply where the carnal connection procured was with the person procuring. The Full Court of Queensland held the section in such case applicable.

Mr. Lalor sought to distinguish this case because it dealt with procuring by false pretences. However, that distinction does not seem to me material in the present argument. Mr. Dabb referred me to R. v. Jones[iii]²; R. v. Williams[iv]³; R. v. C.[v]⁴. Whilst each of these cases deals with offences against legislation differently expressed to the regulation under review, they tend to support Mr. Dabb�s argument. No other authority was cited to me and in the end nothing has been said to alter my view that the language is not only plain but admits of but one meaning. The rule of construction is �to intend the Legislature to have meant what they have actually expressed�. See Park J. in R. v. Banbury[vi]⁵. As was said by Lord Ratcliffe in I.R.C. v. Dowdall O�Mahoney[vii]⁶, �the beliefs or assumptions of those who frame Acts of Parliament cannot make law�. I am of the clear opinion that reg. 85 was applicable to Mas and, consequently, this ground of appeal fails and the conviction must stand.

The appellant also appealed against the severity of the sentence. On the face of it the sentence does appear to be quite a severe one. Indeed, from a perusal of the notes of evidence it would appear that Mengarang, the father of Numbor, may well have been far more deserving of punishment than Mas. But, on the other hand, I have had no further material placed before me as to the circumstances in the area and I must assume that the learned magistrate had some reason for imposing the penalty he did. The Rules do not require the magistrate to forward his reasons and I have no other material before me which would show these reasons open to challenge. The penalty of three months� imprisonment seems to me a very harsh one but, in the absence of any such material, I do not feel able to say that it is excessive. Accordingly the sentence must stand.

I should add that reg. 85 seems to have a far wider effect than was intended and it may well merit attention by the regulation-making authority.

Appeal dismissed.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.

Solicitor for the respondent: S. H. Johnson, Crown Solicitor.

[ii](1913) 8 Q.J.P.R. 15; [1914] Q.S.R. 42.

[iii][1896] 1 Q.B.D. 5.

[iv](1898) 62 J.P. 310.

[v] (1910) 74 J.P. 208.

[vi][1834] EngR 675; (1834) 1 A. & E. 136, 142; 110 E.R. 1159, 1161.

[vii] [1952] A.C. 401.