DC563

PAPUA NEW GUINEA
[District Court of Justice]

CASE NO. 203 OF 2005

MARGARET DULL
Complainant

v

LOUISA NAPTALI
First Defendant

LEVANA ROBO
Second Defendant

Tabubil: P. Monouluk
2005: 15th November

Adultery and Enticement – Sexual intercourse between two consenting adults one of whom is married to the complainant – Defendants are work colleagues – First defendant is secretary to second defendant – Allegation not denied – Appropriate penalty – Damages and restriction of movement.

Practice and Procedure – Application for additional penalty – Restriction of movement – Section 205B District Courts Act Chp. 40 – Important consideration – When considering punishment in any case a District Court must consider s. 205B as well – ‘Offence’ does cover an act of adultery – Circumstances of case warrants application of s. 205B.

Complainant in person.
Defendants in person.

15th November, 2005.

1. P. MONOULUK: This matter came before this court at ten o’clock this morning. Both defendants admitted having committed an act of adultery in the evening of Sunday 20th October, 2005 at defendant Naptali’s residence located at Carter Street, Tabubil, Western Province. It is not denied that the complainant Dull is married to defendant Robo while Naptali is also married with her husband living in Buka, North Solomons Province.

2. Having found the defendants each and severally liable for an act of adultery the complainant in turn made a verbal application to this court to have Naptali repatriated out of Tabubil. The reasons offered in support of her application are as follows:

(1)	That as a small township the chances of the complainant bumping into Naptali in Tabubil is high and may result in further violent confrontation; and
(2)	that as a small township the chances of Naptali bumping into Robo is high and may pose further suspicion of their conduct by the complainant, however innocent they may be; and
(3)	that Naptali works as a secretary inside the same office building that Robo works as an engineer. Such work environment will encourage a continuation of the relationship between them and is a ground for continued distrust between the complainant and her husband Robo and will jeopardize their attempt to rebuild their family.

3. In reply to the application Naptali says that she has nothing to say and will be happy with whatever decision this courts sees fit. Robo, on the other hand, says that he has no problem with his wife’s application however his only concern is that should this court grants his wife’s wishes then it may affect Naptali’s daughter. Unfortunately, Robo is not able to explain how Naptali’s daughter will be affected. In any case this court cannot understand why Robo is so concern about someone else’s child.

4. Having received the application and the responds this court was about to adjourn to the end of the week for a decision on damages and the application when the defendants raised in court that the complainant has been physically and verbally abusive towards each one of them. In respond the complainant explained that the unfaithfulness of her husband has greatly affected her in a big way. She says that words cannot express the pains and the heartaches she is going through. She says that it is very tormenting for her every time she sees her husband drives off to work knowing that he shares the same office with Naptali therefore she has been abusive particularly against her husband. Faced with this situation at hand, this court has no choice but to adjourn till the afternoon for a decision which I seek to deliver now.

5. This court is called upon to make a ruling on the amount in damages that should be awarded to the complainant and whether Naptali should leave Tabubil. In relation to the issue of damages we know that the Papua New Guinea society views acts of adultery as very serious which very often than not lead to ethnic violence. Although our society sees it as such it is unfortunate that the level of seriousness seen is not reflected in the law that deals with such a behaviour. Under the Adultery and Enticement Act 1988 the penalty for an act of adultery is a mere K500.00 compensation against each defendants (a total of K1,000.00). Such an amount in damages does not give prominence to the attitude by the society towards such misconduct – it downplays the seriousness the society places on such a behaviour. To award a maximum amount of K500.00 in damages alone against each defendant for an act of adultery cannot be seen as proportionate to the damage done to a marriage relationship and may not be sufficient to appease the tension amongst the parties, their extended family members, and very often may lead to further confrontation elsewhere.

6. On present indication such an amount in damages is in no way a meaningful deterrent to such behaviour in future. This is one way HIV/Aids is able to spread rapidly at an alarming rate into our society and very often innocent spouses and children are made to suffer not because of their doing but because their spouses and parents lack self control and the laws we have are not able to effectively deter or curtail certain conducts that helps the spread of such diseases. Despite briefly high-lighting a certain inadequacy of this law this court has no choice but to impose the maximum damages as is allowed by law. 

7. In relation to the issue of repatriation this court now brings its mind to the point that this application is made pursuant to Section 205B District Courts Act Chp. 40. This court is now called upon to impose an additional penalty on Naptali for her wrong. Section 205B says as follows:

"205B Restriction of movement.

(1)	Notwithstanding that restriction of movement is not specified as a punishment for an offence, a District Court may, in addition to any other punishment or punishment imposed, also impose restriction of movement in accordance with this section.
(2)	When a District Court is considering the punishment or punishments to be imposed in any case it shall also consider whether, in the circumstances of the case, restriction of movement is an appropriate punishment.
(3)	Where a person is convicted of an offence, the District Court that convicts him may, in addition to or instead of any other punishment that may be imposed, order him –
(a)	not to come or be within such part of the country as the District Court specifies, or
(b)	to be returned to his home, as specified by the District Court, during such period, not exceeding five years, as specified by the court.
(4)	…."

8. Subsection (2) makes it mandatory on all District Courts that when considering any penalty or punishment to impose in any case they must also consider whether restriction of movement penalty is also an appropriate alternative or additional penalty. It may be a ground for appeal by a complainant should a court fails to consider at all the appropriateness or the lack of it of such a penalty to any given case.

9. Having said that this court now wishes to consider a point which may raise a few questions and that is whether the term ‘offence’ under s. 205B, in addition to criminal offences, does cover misconducts under the Adultery and Enticement Act (supra). Although the term is not defined in the District Courts Act Chp. 40 help can be found under s. 3 Interpretation Act Chp. 2. Under this provision the term ‘offence’ is defined as follows:

"in relation to a law, includes a breach or a contravention of, or a failure to comply with the law."

10. This particular definition raises an inevitable question and that is ‘what is a law?’ For our purposes a‘law’ is defined under the same provision as the term ‘offence’ and it says as follows: 

"means a law of Papua New Guinea and includes (a) underlying law; and (b) subordinate enactments."

11. The laws of PNG referred to are those laws expressly spelt out under s. 9 Constitution as follows:

"9 The laws

The laws of Papua New Guinea consist of –

(a)	this Constitution; and
(b)	the Organic Laws; and
(c)	the Acts of Parliament; and
(d)	 Emergency Regulations; and
(da) the provincial laws; and
(e) laws made under or adopted by or under this Constitution or any of those laws, including subordinate legislative enactments made under this Constitution or any of those laws; and
(e)	the underlying law,

and none other."

12. In our case the Adultery and Enticement 1988 is a law enacted by the National Parliament in 1988 therefore is an Act of Parliament as stipulated under s. 9(c) Constitution hence a law of PNG. May this court say also that prior to the Independence an act of adultery was seen as a criminal offence under the separate Police Offences Acts of Papua and New Guinea. Immediately thereafter acts of adultery were decriminalized and enacted into a legislation of 1977 and subsequently to what we now know as the Adultery and Enticement Act 1988.

13. Despite the changes s. 18 of the Act still holds a remnant of its criminal past by imposing imprisonment for a defendant who fails to settle damages even though acts of adultery are seen today as civil matters. In answering the question if the term ‘offence’ under s. 205B District Courts Act does also cover misconduct under the Adultery and Enticement Act, this court says yes.

14. Having satisfied this aspect of the ruling this court must now ask itself whether the circumstances of the case before hand warrant an imposition of an order under s. 205B.

15. Looking at the various grounds raised by the complainant and the responds by the defendants one cannot help but say that Tabubil is indeed a small township and its habitants do have a fair idea as to who is who in the community. There is only one big supermarket in town and few small shops. The chances or the opportunities to bump into a friend or an enemy on a Friday or Saturday are high. The point raised by the complainant in that regard is true to an extent and may result in further confrontation every time the complainant meets Naptali or may be a cause for distrust and suspicion by the complainant over her husband Robo every time he unintentionally runs into Naptali in the local supermarket or the vegetable market.

16. Another important point of consideration is the fact that the defendants work together in the same office. Naptali is an office secretary to Robo. This court do not need to further explain the fear and the distrust the complainant has every time she sees her husband goes off to work and return in the evening. No one in his right mind would allow such to continue after all the relationship may have started there.

17. The court is also reminded of the fact that Naptali is a married woman herself. Her husband has left Tabubil for Buka. As husband and wife it is not the will of God for them to be called husband and wife yet live far apart like this. It is important that families or husbands and wives must live together so that situations like this can be avoided. It is never a better time than now for everyone including employers to encourage stronger family units in the light of the HIV/Aids epidemic. It is in the best interest of Naptali and her family that she be united with her husband in Buka in order to avoid a repetition of such an act.

18. This court is reminded that the defendants are both Ok Tedi Mining Limited employees (OTML). It is one company that places emphasis on safety both at work and at home and anything that compromises safety is viewed by it with great concerned. The fact that the defendants work together may be a degree of compromise of safety processes at their work place. Mixing business with pleasure can very often lead to disastrous results and such behaviour cannot be allowed to happen especially in a high risk area where both defendants work.

19. This court wishes to raise also the issue of deterrence. The present penalty for an act of adultery is a damages award of K500.00 from each defendant (a total of K1000.00). This court believes that such an amount is inadequate to deter a repetition or other-like minded. Not only that, but the amount cannot adequately compensate for the pain and suffering felt by an offended party. That is one reason we see aggrieved parties taking matters into their own hands instead of coming to court or does so immediately after court cases simply because the penalties handed out by the courts are insufficient as far as their hurts and pains are concerned.

20. Deterrence also matters greatly in the light of the increasing HIV/Aids epidemic in the country. Extra-marital affairs very often lead to the spread of this disease and innocent spouses and children often become victims of these reckless behaviors. It is important that tougher laws need to be enacted or the existing ones are further strengthened, for example, the penalty provision for an act of adultery of K500.00 for each defendant be increased to a maximum of K5000.00. In the absence of such then it is only appropriate that other penalty options allowed by law be imposed in addition to the existing penalties taking into consideration the demands of the case.

21. Finally, since the defendants are OTML employees their employer is now called upon as a responsible corporate citizen to in turn call into question the employees concerned and may it take all appropriate administrative and disciplinary actions that are necessary to deter other like-minded employees from thinking or even dreaming about doing the same thing. Such action will indicate clearly that OTML does not condone actions that may create disharmony in its work force and the community at large.

22. Based on these considerations this court is of the view that s. 205B is appropriate to this case – the circumstances of this case warrant its application. Despite the fact that Naptali is an OTML employee and her co-defendant Robo is equally responsible this court believes that she be the one to leave because as a secretary her departure will not greatly affect OTML operations. Besides it is in the best interest of her family that she is with them. As for Robo his family lives with him here in Tabubil thus he may remain here subject to OTML’s direction.

Orders accordingly.