Papua New Guinea Law Reports - 1978
[1978] PNGLR 510
N150
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
ANTON WEBIM BUKA
V
JOHN LENNY
Lae
Wilson J
17 April 1978
21 April 1978
CRIMINAL LAW - Particular offences - Adultery - Complainant - Complaint brought by “nearest relative” in absence of aggrieved party - Meaning of “nearest relative” - Statutory provision regulating offence mandatory - Customary brother is neither “relative” nor is he “nearest relative” when true brother is alive - Native Administration Regulations 1924 (N.G.) sub-reg. 84(2).
WORDS AND PHRASES - “Nearest relative” - Adultery - Complaint brought by “nearest relative” - Must be related by blood - Customary brother is neither “relative” nor is he “nearest relative” when true brother is alive - Native Administration Regulations 1924 (N.G.) sub-reg. 84(2).
Sub-regulation 84(2) of the Native Administration Regulations 1924 (N.G.) which applies only to indigenous Papua New Guineans, provides for the offence of adultery. Sub-regulation 84(3) Provides that “no complaint shall be brought ... except by the native husband or wife” of the aggrieved party or his or her “nearest relative”.
On appeal against conviction and sentence on a charge of adultery under sub-reg. 84(2) where the complaint was brought by a customary brother of the aggrieved party:
Held
(1)      Sub-regulation 84(3) of the Native Administration Regulations 1924 (N.G.) limiting as it does so clearly and precisely the class of persons who may bring a complaint of adultery is mandatory, and goes to the substance of the complaint.
Public Prosecutor v. Oie Hee Koi [1968] A.C. 829 and Secretary for Defence v. Warn [1970] A.C. 394 referred to.
(2)      Where a complaint is brought by some person other than the aggrieved person, or, in his or her absence, by his or her “nearest relative”, it is not a complaint within sub-reg. 84(3) and the court has no jurisdiction to deal with it.
Joseph Asia v. Leo Eko (Unreported Supreme Court Judgment No. 708 of 16th October, 1972) and O’Sullivan v. Truth and Sportsman Ltd. [1955] S.A.S.R. 85 followed.
(3)      The word “relative” in the context of the Native Administration Regulations 1924 (N.G.), means a person related by blood, and accordingly a customary brother is not a “relative” within the meaning of sub-reg. 84(3) and is not competent to bring a complaint for adultery under the sub-regulation.
(4)      Accordingly there was no jurisdiction to deal with the complaint, and the conviction recorded thereon ought to be quashed.
Appeal
This was an appeal against conviction and sentence on a charge of adultery contrary to the provisions of sub-reg. 84(2) of the Native Administration Regulations 1924 (N.G.). The appeal is reported only on the aspect of interpretation of the Regulations.
Counsel
J B. Avery, for the appellant.
K. Bona, for the respondent.
Cur. adv. vult.
21 April 1978
WILSON J: This is an appeal against conviction and sentence recorded and ordered by the District Court in Lae on 7th February, 1978 whereby the appellant was convicted of adultery (a breach of sub-reg. 84(2) of the Native Administration Regulations 1924 (N.G.)) and was sentenced to 6 months imprisonment with hard labour. It had been alleged that the appellant, being a native man, did commit adultery with Mrs. Alina Wokoni, a native woman, in the month of November 1977.
Sub-regulation 84(2) provides:
“Any native man or woman who commits adultery and any native man or woman who has sexual intercourse with a married native of the opposite sex knowing that native to be married shall be guilty of an offence.
Penalty: Three pounds or imprisonment for 6 months or both.”
Sub-regulation 84(3) provides:
“No complaint shall be brought against any native under the last two preceding sub-regulations except by the native husband or wife of the woman or man with whom the offence was committed, or in the absence of such husband or wife, as the case may be, by his or her nearest relative.” (The emphasis is mine.)
In this case the complaint was not laid by, or brought against, the appellant by Paul Nuliou, the native husband of Alina Wokoni, the woman with whom the offence was alleged to have been committed. Instead, it was laid by, or brought against, the appellant by one John Lenny of the Housing Commission, Lae, who, according to the information before the magistrate who presided in the District Court, was the “brother” of Alina Wokoni.
The ground of appeal against conviction as relied upon in argument before me was that the District Court had no jurisdiction to hear the matter as the information was not laid by the husband of the native woman or by her “nearest relative”. It was contended by the appellant (and not disputed by the respondent during the hearing of this appeal) that John Lenny is not a true brother of Paul Nuliou and that Paul Nuliou has two true brothers, both of whom reside in Lae and either of whom could have brought the complaint. The respondent was obliged to concede that John Lenny, though called “brother”, was not a person related to Paul Nuliou by blood nor were they descended from a common ancestor.
A number of questions arise for consideration in this appeal against conviction.
Is sub-regulation 84(3), insofar as it purports to regulate the procedure to be followed and, in particular, insofar as it limits the persons who may bring a complaint of adultery, mandatory or directory?
It is a well established general rule of law that any person may take proceedings to prosecute a person alleged to be guilty of a criminal offence. However, that right depends upon the intention of the legislature as expressed in the statute creating the offence. The Native Administration Regulations 1924 (N.G.) provide that penalties shall be imposed for certain acts and, in particular, provides (in sub-reg. 84(2)) that a penalty shall be imposed for adultery, which, as a result, is made a criminal offence.
In order to prevent the application of the general rule, it must be shown that the statute in plain terms prevents anyone (except certain specified persons) from prosecuting for such an offence. See The Queen v. Stewart[dccxii]1.
The legislature in the situation under consideration here could hardly have used plainer words of exclusion to express its intention of limiting those who may bring a complaint of adultery. By sub-reg. 84(3) “no complaint shall be brought ... except by” one of two persons or classes of persons, viz:
(1)      “the native husband or wife of the woman or man with whom the offence was committed” whom, for convenience, I call the “aggrieved party”, or, in the absence of the aggrieved party,
(2)      his or her “nearest relative”.
All other persons save and except the aggrieved party or, in the absence of the aggrieved party, his or her nearest relative, are expressly excluded from bringing such a complaint.
It was argued by Mr. Bona, counsel for the respondent, that sub-reg. 84(3) is not mandatory but is only directory. It was explicit in Mr. Bona’s argument that compliance with sub-reg. 84(3) is not a condition precedent to a prosecution under sub-reg. 84(1) or (2).
Whilst I recognise that it is not always easy to decide whether a particular statutory provision is mandatory or directory, I have no doubt that the provision under consideration here, regulating, as it does, the procedure to be followed in court, is mandatory. Public Prosecutor v. Oie Hee Koi[dccxiii]2. Secretary of State for Defence v. Warn[dccxiv]3 cf. Jolly v. Yorketown District Council[dccxv]4; a fortiori where the words so clearly and precisely limit the classes of persons who may bring a complaint of adultery. Compliance with sub-reg. 84(3) is a condition precedent to a prosecution under sub-reg. 84(1) or (2).
WHAT IS THE MEANING OF THE WORDS “NEAREST RELATIVE”?
This is the question of difficulty in the present case. The question is the more difficult because I am called upon to construe such words in respect of a piece of legislation which applies only to indigenous Papua New Guineans. I attempt to do so in and for a country where the concepts of the nuclear family and blood relationship are not as important as in many western societies, and where social relations are primarily kinship relations, albeit varyingly recognised and variously expressed. Whilst, as will be seen, the word “relative” has meaning in this country, I am by no means convinced that it is the most appropriate basis for social differentiation. After all, Papua New Guineans so often conceptualise and express their relationships in kinship terms regardless of genealogical connection, and thereby adopt the notion of the extended family. No word so well highlights the problem to which I am referring than the word “brother” or “brata”.
The word “relative”, in my opinion, means in the context of the Native Administration Regulations 1924 (N.G.) a person related by blood (Mann J in In Re Griffiths[dccxvi]5) and descended from a common ancestor (In Re Winzar Dec’d[dccxvii]6).
The word “nearest” means here what it naturally and primarily means: closest by kinship. To illustrate the meaning of the word “nearest” as it applies to the concept of “nearest relative” a parent or child is in the first degree of kinship and is vis-à-vis all other relatives the “nearest relative”. A brother or a sister or a grandchild or a grand-parent, being in the second degree of kinship is vis-à-vis nephews, nieces, uncles, aunts, great-grandparents and great-grandchildren the “nearest relative”. (Labian-Saiuwen v. Yerei-Yautan[dccxviii]7).
WHEN TRUE BROTHERS ARE ALIVE, AS WELL AS A CUSTOMARY BROTHER, MAY THE LATTER BE SAID TO BE THE “NEAREST RELATIVE”?
Frost J (as he then was) pointed out in Labian-Saiuwen v. Yerei-Yautan[dccxix]8 that a person may have one nearest relative or more than one nearest relative. His Honour suggested that a person is not a “nearest relative” if there is any person in a higher “degree of kindred”. It was thought to be unnecessary to draw a distinction between persons in the same “degree of kindred”, each, held the former Chief Justice of the Supreme Court of Papua New Guinea, may be said to be a “nearest relative”.
Mahoney J in In the Will of D. A. Rogers (Dec’d)[dccxx]9 held that the word “nearest” has, in a sense, a double function; it denotes (in a case such as this) that the person to bring the complaint, in the absence of the aggrieved party, is the relative who is, according to the degrees of kinship, nearest to the aggrieved party; and that, if there be several such relatives who are equally near, the eldest relative of those several relatives.
It is not necessary for me in this case either to reconcile the various authorities on this subject or to decide between the views expressed by the former Chief Justice and by Mahoney J, because the question in issue here is not as between two persons in the same degree of kinship. I leave for decision at a later time the question of what may be the position if there is more than one person in the same degree of kinship and whether any of them, or only the eldest, may bring a complaint.
It is beyond question here that, according to the degrees of kinship and according to all widely recognised notions of kinship, a customary brother is further from the aggrieved person than a true brother. It is also right to conclude that a customary brother is not even a “relative” within the meaning of sub-reg. 84(3). To adapt the words of Grant M.R. in Smith v. Campbell[dccxxi]10 it is impossible to say that a customary brother is the nearest relative when there are true brothers.
If sub-regulation 84(3) is mandatory and if it appears that the complaint was brought by some person other than the aggrieved person or, in his or her absence, by his or her “nearest relative”, is the court which hears such a complaint and proceeds to a conviction without jurisdiction and is such a conviction a nullity?
In Joseph Asia v. Leo Eko[dccxxii]11 Prentice J (as he then was) held that a complaint under this same regulation which had not been brought by a “nearest relative” was not a complaint within the meaning of sub-reg. 84(3) and, on that account, quashed a conviction for adultery. In O’Sullivan v. Truth and Sportsman Ltd.[dccxxiii]12, Ross J held that, if a complaint for an offence is brought by somebody other than a specified person, the court has no jurisdiction to deal with the complaint.
In this case I conclude that, as the respondent was not a person specified by sub-reg. 84(3), he was not competent to bring the complaint against the appellant. The complaint not having been brought by a competent person (and this is a matter of substance, not a mere technicality), I find that the District Court had no jurisdiction to deal with the complaint. The conviction must be quashed and the appellant must be released from custody.
It may be thought that, bearing in mind the notion of kinship in Papua New Guinea at this time, the words “nearest relative” are too narrow for the purposes of enabling an absent Papua New Guinean to have his or her adulterous spouse prosecuted for adultery. The legislature may have thought so when it enacted the Native Administration Regulations of Papua, because it widened the phrase to “nearest available relative”. If it were thought appropriate to widen the phrase even further so as to permit a customary brother (as opposed to a true brother) to bring a complaint for adultery on behalf of his aggrieved brother or sister — and I prefer to make no comment as to how large the class of persons empowered to bring such a complaint should be — then the legislature should use clear and precise words in any amending legislation.
Appeal allowed, conviction quashed.
Solicitor for the appellant: M. Kapi, Public Solicitor.
Solicitor for the respondent: K. B. Egan, Public Prosecutor.

[dccxii][1896] 1 Q.B. 300.
[dccxiii][1968] A.C. 829.
[dccxiv][1970] A.C. 394.
[dccxv](1969) 119 C.L.R. 347.
[dccxvi][1926] V.L.R. 212.
[dccxvii][1953] 55 W.A.L.R. 35.
[dccxviii][1965-66] P. & N.G.L.R. 152.
[dccxix][1965-66] P. & N.G.L.R. 152 at 159.
[dccxx][1973] 2 N.S.W.L.R. 312.
[dccxxi](1815) 19 Ves. 400 at p. 404.
[dccxxii](Unreported Supreme Court Judgment No. 708 dated 16th October, 1972.)
[dccxxiii][1955] S.A.S.R. 85.