Unreported National Court Decisions
N2
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
APPEAL 86 OF 1974 (P)
MAHURU SEAKA
V
EAVA RAU
Port Moresby
Prentice DCJ
1 October 1975
3 October 1975
PRENTICE DCJ:  The Notice of Appeal herein challenges the legality of the conviction of the appellant by the Local Court at Port Moresby, on a charge of adultery under the Native Regulation Act 1939. The ground relied on before me, which was agreed to lie, by Mr. Brunton appearing for the Crown (or the state - whichever may be the correct designation), was that a denial of natural justice had occurred in the hearing.
As appears from the affidavit of Mr. Lay who appeared for the appellant in the Local Court, an application was made at the close of the appellant’s evidence therein, to call the respondent husband’s wife. But the learned magistrate apparently refused to allow this witness to be called. Plainly the woman if believed, could have been an important witness on the issue of whether she was married to the respondent and as to whether intercourse had taken place (i.e. as to whether adultery had occurred). As Counsel very properly submits and concedes, respectively, a denial of natural justice has plainly occurred. It is difficult to imagine circumstances in which a qualified practitioner could properly be denied the right to call on behalf of his client, a witness whose evidence he considered necessary to the issues.
The appeal therefore is by consent, allowed. However in case the magistrate who deals with the necessary re-hearing of the complaint might be misled, I think I should go on to say a word about the learned magistrate’s expressed reasons for conviction.
Apparently these reasons were not reduced to writing or even the form of notes at the time. According to the note made by the appellant’s Counsel and sworn to by affidavit, the magistrate considered as factors justifying a conviction, that:
(1)      The respondent is a pastor at Kila Kila village,
(2)      The appellant’s conduct with the pastor’s wife is a shameful thing for Christians and it has affected the people of Kila Kila village and Tubiserea village,
(3)      That the appellant had previously absconded with other people’s wives,
(4)      That if the appellant were acquitted there would be trouble in the village.
The factor numbered (3) could possibly be considered relevant if proved in evidence, and found admissible under the similar facts rule; if the issue of sexual intercourse were disputed. But the other factors (1), (2) and (4), are matters clearly irrelevant to the consideration of whether the offence charged had been made out. They can no doubt be regarded as relevant if, the charge having otherwise been made out, the Court were required to come to the question of sentence.
I allow the appeal, a substantial miscarriage of justice within the meaning of s.43(3) Local Courts Act having been shown. I quash the conviction. I order that complaint number 859 be remitted to the Local Court at Port Moresby to be re-heard by a magistrate other than Mr. O. Mairue who presided at the original hearing.
Solicitor for the Appellant: N.H. Pratt, A/Public Solicitor.
Counsel for the Appellant: A.J. Alpine.
Solicitor for the Respondent: B.W. Kidu, Crown Solicitor.
Counsel for the Respondent: B.D. Brunton.