Unreported National Court Decisions
N240
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
APPEAL NO. 111 OF 1980
BETWEEN
TABO SIPO
APPELLANT
AND
MURAKA MELI
RESPONDENT
Waigani
Narokobi AJ
23 May 1980
NAROKOBI AJ:  Having read the Local Court record of proceedings, and having read the learned magistrate’s undated reasons for judgment and having read Mr. S. Gabi Counsel for the plaintiff and Mr. N. Kila Counsel for the respondent’s submissions; this Court:
HEREBY ORDERS that the conviction be confirmed but that the sentence be set aside and instead of it, a term of two weeks imprisonment with light labour be substituted and expiring on 11th day of April, 1980 and further that the said appellant Tabo Sipo pay a sum of ten kina (K10) compensation to the respondent, Mukara Meli.
REASONS FOR DECISION
FACTS
The appellant Tabo Sipo is a female cadet journalist at the University of Papua New Guinea. She was convicted by the Port Moresby Local Court of having sexual intercourse with a married native (an indigenous Melanesian automatic citizen), knowing him to be married. She was sentenced to two months imprisonment with light labour. The offence for which she was convicted is commonly called adultery. It is prescribed as an offence under Native Regulations - regulation number 84(2) Papua. The complaint was brought in the Local Court by Mukara Meli the wife of one Lapasang Meli. The complainant (respondent in the appeal) was married to Lapasang Meli on 15/11/1969 in Rabaul under Marriage Act through a church ceremony. Both the appellant and Meli Lapasang came from New Ireland Province, but from different villages. Lapasang’s elder brother was married to the respondent’s younger sister. Thus the two were related by marriage in what some Melanesian societies regard as “enemy or birua” relationship. This is a relationship which permits rather than prohibits marriage or sexual relations.
I make this comment as a matter of Melanesian interest and place no weight on it whatsoever. This was a point which did not emerge from depositions, but counsel for the appellant conceded the relationship and its customary implications. Upon return from leave from her home province Morobe, the respondent found the matrimonial home locked. She waited outside the house and was met eventually by her husband and the appellant about midnight. The two came in a car, on their own. Later that night in the house and in her presence, Meli Lapisang was seen to hold the respondent very close to her - hugging her. The respondent slept in one bedroom, while the appellant and Meli Lapisang went to sleep together in the main bedroom. The respondent stated in evidence that she “saw them sleeping together”. They had two small beds so that (Tabo and Meli) were sleeping together in one, under one bed cover. The respondent apparently stood up all night. All this happened on the 11/1/1980. This evidence was not shaken on cross examination in the Local Court. On the occasion of the 12th of January, 1980 the two again slept together in the main bedroom. This time, the door was locked. On the first occasion the door was not locked. This evidence was not refuted. On the 13th of January, the respondent asked the appellant what plans she had in mind with Meli and was told they planned to get a baby sitter to look after the children so that she, the respondent would go home. I accept these as facts.
There was evidence too of blood-stained under-pants belonging to the respondent. This evidence was volunteered by counsel for the respondent on cross examination. The significance of this piece of evidence is not clear. However, counsel for the respondent argued that blood stained pants were evidence of a monthly periods menstruation. The significance of this as he put it was that any “reasonable men/ women would not have sexual intercourse when a woman is having a period”. I find as a fact that there were blood stained pants, but reach no conclusion as to whether the stains were due to natural cycle in the respondent’s make up or whether it was caused by sexual intercourse. Consequently, I reach no conclusion on its implications. The pants were in fact found on the day Meli left for New Ireland.
In the morning following their sharing of one bed under one bed cover, the two left for town leaving the respondent and the children in the house. The appellant, it seems from the facts, had taken over the house. She shopped, prepared breakfast, prepared the mumu, entertained the guests and cleaned up the place after the mumu. When Meli Lapisang left for New Ireland, Tabo went with him to the airport and saw him off.. The children and their mother, stayed back. Since Meli returned from New Ireland he was seen with the appellant on one Sunday morning. They went to give food to the respondent and the children, who by this time were living away from Meli. On another occasion, the two took the children to the pictures, and again were seen together at the softball grounds, and leaving the games together. In these circumstances, I am satisfied the learned Magistrate has properly found that an act of sexual intercourse had taken place. But of course, deciding that sexual intercourse had taken place among Melanesian citizens (and natives) at least one of whom is a married person, is not enough to establish adultery.
KNOWLEDGE OF MARRIAGE IN EXISTENCE
Counsel for the appellant correctly argued that even if an act of intercourse did take place, the appellant did not know or have the knowledge that the respondent and Meli were married. (See Idau Gabe v. Meriam Griffin[ccxi]1. It may well be that the appellant was never told that Meli and Mukara the respondent, were married. Be that as it may, the question whether or not the appellant had knowledge of marital status of Meli must be gathered from the facts as they appear in the depositions. It seems to me highly improbable from depositions that the appellant did not know Meli was married. She is related by marriage to Meli. Meli had, prior to the time in issue introduced the appellant to the respondent. They had tea together, at the family house. The appellant’s sister was in fact married to Meli’s brother. If she did not know that Meli was married to the respondent under Marriage Act, according to a religious ceremony I have no doubt she would have been aware of a marriage between the two. On the night the respondent arrived with the children. That night they shared the same bed under one bed sheet. In the circumstances, I am satisfied the learned magistrate had acted properly in finding that the appellant had knowledge of marriage existing between the respondent and Meli.
QUESTIONS OF LAW
I now turn to some questions of law the appellant raised through her counsel in the notice of appeal. These questions were raised by way of grounds of appeal. The first ground was that the evidence was insufficient to prove the elements of the crime of which the defendant was convicted. As earlier indicated, I have gone through the evidence and reached the conclusion that the magistrate had properly entered a plea of guilty. Courts have to make the best they can from prior and subsequent events to be satisfied beyond reasonable doubt that adultery had occurred. No arithmetical proof can be shown of adultery. The second ground of appeal is that the sentence is manifestly excessive. This is an alternate ground to the first ground. If in the event that conviction is upheld, the argument is that two months imprisonment with light labour is manifestly excessive in the circumstances of the accused (appellant). I will return to this ground later.
The third ground of appeal is that the defendant was denied her rights under section 37(10) of the Constitution. The appellant’s argument through her counsel, is that the magistrate imputed guilt upon the appellant merely because she chose to remain silent as she is entitled to do under Section 37(10) of the Constitution. I cannot see much validity in this argument. If an accused person decides to remain silent, and not call witnesses, that is her constitutional right. But the court is entitled to proceed to verdict on the basis of prosecution evidence. In this case, the appellant freely chose not to call evidence or to give evidence. She cannot turn around and say “it is unjust. You did not hear me. You implied guilt on me because I did not speak.” In my view the court can’t impute guilt from silence. It would be wrong to comment that “because you stood silent, I think you are guilty”. It is no corroboration. (See The King v. William Littleboy)(2). No doubt as humans go, silence may have a bearing. But in this case, no mention of it was made and I am satisfied the learned Magistrate had not been influenced by the silence of the appellant at the Local Court. The accused has to exercise Section 37(10) Right with care, insight and discretion. Once that is done and the Magistrate imputes guilt, in my view the magistrate would be in error. In the immediate case, I see nothing which suggests that the magistrate had implied guilt through silence. He reached his decision on the basis of prosecution evidence which was not broken. It is assumed that counsel for the appellant acted on instructions in the Local Court when he said “I will not make any no case submission, and I will not call any defence witnesses. Even the defendant won’t give any evidence. What I will do is make the final submission”. It is clear therefore that the accused was fully aware that if she gave no evidence, the magistrate could still proceed to decide on guilt or innocence on the evidence before him. In his reasons for judgment, the magistrate makes no reference whatsoever to the fact that the defendant chose to remain silent. I therefore dismiss this ground as having no merits at all.
The fourth ground of appeal is that the conviction of the defendant under section 84(2) Native Regulations Act of Papua New Guinea denied her the constitutional right to equality before the law, guaranteed under Section 55(1). This is a cogent argument. However, its cogency is less stark in this particular case in which both parties to adultery are natives, and Melanesian citizens of P.N.G. It would have been very different had the adulterous husband been a non Native or a naturalized citizen. Sub-Section (1) of Section 55 of the Constitution guarantees “all citizens the same rights, privileges, obligations and duties...” That subsection is immediately qualified by subsection[ccxii]2 which permits positive discrimination in favour of special groups or categories of people such as children, youth, under privileged or less privileged or less advanced groups or residents of less advanced areas. Further sub-section (3) of Section 55 specifically preserves the operation of pre-Independence law. On the face of the Constitution Section 55(3) the adultery law is saved by the Constitution itself and discriminating in the ways outlined by Law Reform Commission. The Constitution itself carefully defines various rights. Some of the rights are exclusive to citizens of Papua New Guinea, while others are universal in the sense that they apply to citizens and non-citizens in the country. This distinction is achieved by guaranteeing rights and freedoms in one case to “citizens” and in the other to “persons”. The latter is universal while the former is particular. Fundamental rights and freedoms that is to say Right to Life (s.35), Freedom from Inhuman Treatment (s.36), Right to Protection of the Law (s.37), Right to Freedom (s.32), Right to Liberty (s.42), Freedom from Forced Labour (s.43), Freedom from Arbitrary Search and Entry (s.44), Freedom of Conscience, Thought and Religion (s.45), Freedom of Expression (s.46), Freedom of Assembly and Association (s.47), Freedom of Employment (s.48), and Right to Privacy (s.49), are rights and freedoms guaranteed to all persons, citizens and non citizens alike. Special rights are limited to citizens. These include Right to Vote and Stand for Public Office (s.50), Right to Freedom of Information (s.51), Right to Freedom of Movement (s.52), Limited Freedom from Unjust Deprivation of Property (s.53), Equality of Citizens (s.55), Right to Acquire Freehold Interests in Land (s.56), and other rights and privileges legislation may restrict to citizens, of the restricted rights to citizens, the Right to Acquire Freehold Interests is again further narrowed to automatic citizens under combined effect of sections 56 and 68(3) and 68(4). These exceptions to the principle of citizens’ equality will continue, in the case of freehold interests, for a period of ten years after Independence or sooner removed by an Act of Parliament, and in the case of section 53 Protection from Unjust Deprivation of Property, 5 years from Independence Day.
Thus, it is quite clear from an analysis of the appropriate provisions of the Constitution that the equality provision is in fact couched among other provisions which maintain the status quo in law. In practical terms the inequalities and differences in law are preserved under the Constitution. The adultery regulations are among the laws the former administration enacted specifically to cater for indigenous needs. Although times have changed this law has not been reformed to keep up with times. This is unfortunate. In the course of argument, counsel for the appellant invited the court to make a Constitutional Reference to the Supreme Court on the question of whether the continued existence of Adultery Regulations violate the Constitution, and particularly section 55.
Since I completed my first draft of this judgment, I have had a chance to read over what I wrote and ask myself whether section 55 can be read at different levels. I ask myself whether the very nature, character, and the practical application of adultery regulations do in fact violate the Constitution. The question I ask myself is this. True enough s.55(3) of the Constitution presents the pre Independence status quo law. In that respect therefore, the legitimation of the adultery regulations, does no more than this. It says leave things as they are for the time being. But to find out if a particular pre Independence law is in the scheme of the new constitutional universe created by the Constitution itself, one must look at the nature and character of the law in the light of the Constitution.
The Constitution did intend a new start in life. Its goals and directive principles make it quite clear that a new vision for the nation was intended. If Independence meant nothing more than maintaining unequal laws, it would not have been worth attaining. If the Constitution did not set out highest ideals and standards for the Legislature, the Executive and the Judiciary, the whole process of creating a home grown Constitution would have been worthless.
Looking as I must at the scope and practical implications of the Native Regulations on adultery in the context of the present case, several unpleasant features emerge. To my mind they present a scheme of events which invites the Supreme Court to express its opinion on. In this case, it will be remembered, the appellant was a single woman. She had an affair with a married man. Under the regulations, the wife cannot lay a complaint against her husband. All she could do is to lay a complaint against the woman. Now, since the appellant was single, there was nobody who could lay a complaint against Meli. In this respect, Meli goes scot free. As the common saying goes, “it takes two willing parties to commit adultery”. Why therefore should one willing party be immune from liability simply because the law lacks procedure to bring to trial a party to the offence. It is quite right therefore, in my view, for a citizen to invoke the Constitution and say “if we are all equal before the law, irrespective of race ... or sex,” then why is it that I am being punished and not the other co-offender who happens to be a man? The appellant may well have recourse to s.39 of the Constitution (Reasonably Justifiable in a Democratic Society) and argue that this adultery law is not reasonably justifiable in a democratic society, having a proper regard for the rights and dignity of mankind.
The same arguments could indeed be presented by a single man who has sexual intercourse with a married woman or commits adultery with a married woman. The woman’s husband could take the man to court, but the adulterous woman would go scot free. The following questions to my mind remain to be resolved by the Supreme Court at some stage:
1.       Are the Papua New Guinea Native Regulations - Reg. 84, in its entirety or in 84(2) invalid as being unconstitutional in that by its nature and character it violates s.55 of the Constitution?
2.       Are the PNG Native Regulations in their entirety or in s.84(2) not reasonably justifiable in a democratic society, in its practical applications and thereby violating s.39 of the Constitution?
3.       Do the regulations in their entirety or in particular, regulation 84(2) apply equally to automatic citizens under s.65, as well as naturalized citizens under s.67 of the Constitution, or are they applicable only to citizens under s.65 of the Constitution? If the latter is the answer, does this not violate s.55 of the Constitution?
Now, at one level I agree that there is no constitutional question to refer to the Supreme Court. However, a Constitutional question arises when a court or tribunal, in its discretion reaches the view that several interpretations of the Constitution are possible to the issue before it. Although the adultery regulations are preserved by the Constitution, it is arguable that if characterised in practical applications, they do violate the Constitution.
ADULTERY - WHAT TO DO WITH IT
I now turn to the offence of adultery and what to do with it. Adultery presupposes sexual intercourse. Adultery under the regulations is therefore sexual intercourse between parties the regulations prohibit. This in itself begs the question as to what constitutes sexual intercourse. Is sexual intercourse to be taken when the male and female organs actually touch? Could fore play be regarded as sexual intercourse? What of other intimate forms of contact of sexual nature, short of intercourse and short of sexual intimacy; and short of least penetration?
Adultery, in most, if not all Melanesian societies, strikes at the root of the society. In P.N.G, the strength of a family unit is reinforced in various places in the Constitution. In directive number (5) of the first fundamental goal of integral human development, it is stated:
“the family unit to be recognized as the fundamental basis of our society, and for every step to be taken to promote the moral, cultural, economic and social standing of the Melanesian family;”
Sub goal (12) of goal number 2. Equality and Participation emphasises that:
“recognition of the principles that a complete relationship in marriage rests on equality of rights and duties of the partners, and that responsible parenthood is based on that equality”.
In Constitutional goal 3. National Sovereignty and Self-Reliance directive number (1) enjoins “leaders to be committed to these National Goals and Directive Principles to ensure that their freedom to make decisions is not restricted by obligations to or relationship with others”. In the Basic Social Obligations, it is stated in (f) that all persons are “to respect the rights and freedoms of others”, and again in (h) it is stated that “parents, to support, assist and educate their children (whether born in or out of wedlock), and in particular to give them a true understanding of their basic rights and obligations and of the National Goals and Directive Principles”, “in the case of children, to respect their parents” (i). The law of adultery is intended to protect the institution of marriage by preserving rights and privileges of sexual intimacy to the spouses, to the exclusion of others. When others encroach upon those rights, tensions emerge, which may lead to eventual family break up. The result of this can, in many instances be quite serious. Children can be alienated from their parents. Enmity and even bitterness among once loving relatives can emerge as well. In the event that children are alienated, they become a strain on the society in that unless they are absorbed by the relatives, they grow up without the benefit of full parental care. In the end, the spirit of the Constitution the vision of our nation becomes obscured.
As it so happened, in the present case, the husband comes from New Ireland while the wife comes from Morobe. Marriage between parties of different provinces and tribes promotes national unity. When one of these parties deliberately engages in affairs with a woman or a man of his own home province, it leads towards social conflict between provinces and groups. When a man or a woman from one province chooses to marry someone from another province, he or she is making a bold move in the face of tradition which would confine him or her to the clan.
It is too late later to say, I made a mistake, or that it is too difficult. Every effort should be made to make sure that initial contract is honoured, throughout. No advantages should be taken by a spouse against the other, with a party of the opposite sex from the same province or clan. If marriages fail, they should be dissolved so that new relationships may be developed. In P.N.G., marriage is more than a mere contract between two parties. It is, as the Law Reform Commission reflected - “not only a matter of two willing parties entering into an exclusive life long partnership, but also a coming together of or a cementing of the woman’s group with the man’s group”. The Law Reform Commission continued to observe that because of this dual aspect of marriage “adultery can and does cause social discord and sometimes violence in our societies”. Exercise of exclusive sexual rights emerge from that contract and are honoured by the society.
Indeed, in the immediate case, the respondent became angry at what she saw and did inflict violence upon the appellant. She said in her evidence - “I could not control myself so I hit her”. This happened when she saw the appellant and her husband come together in a car, on their own, late at night. The present law on adultery is quite anomalous. For a start, there are differences in the wording of the regulations in the Papuan and in the New Guinean regulations. This, in my view should not be allowed to continue. Secondly, and most importantly, this law does not affect non-indigenous persons. It is not clear whether P.N.G. Citizens of non-Melanesian or non-indigenous stock would also be bound by this law. It is arguable that, if they are not “natives”, then they would not be affected, even if they are citizens by naturalization. Because adultery law is designed to protect marriage - P.N.G. context in which marriage involves groups, one would hope that adultery law should be framed in a form which involves the community as well as marriage parties. To a limited extent, this is achieved in the present regulations by enabling relatives to initiate complaints. More is needed. A wide formulation was in fact attempted by Dr. M. Strathern in her report to the law. She suggested, that there should be a “community offence arising from infringement or usurpation of the prior rights of others in sexual matters”. This formulation anticipates two offences. In the first part of the formulation an offence is committed when sexual intercourse takes place. In the second, an offence is committed even if no sexual intercourse has taken place. According to Marilyn Strathern, such community offences would be actionable at the initiative of relatives and the police would be excluded. A criticism of her formulation argues that it is a truism to say, that “it is an offence to usurp someone’s rights”, or that it is a statement of procedure to say that the police or the court should not take notice of any usurpation of rights of their own accord, creates the critics formulation, several civil offences, except where force is used, in which case that would become an assault. This is what the critic said - “In so far as a marriage, whether with or without public ceremony and whether with or without passage of considerations, has vested rights in one spouse over the services (sexual, domestic, economic or procreative ...”)
LAW REFORM COMMISSION WORKING PAPER ON ADULTERY OCTOBER 1975
The Law Reform Commission conducted a nation wide survey on attitudes towards adultery and associated offences. In its Report No. 5 of February, 1977 the Commission recommended that the present law relating to adultery be repealed and replaced by Adultery and Enticement Bill. If there is any body in this country which would feel what the people feel, it would be the LRC on adultery. In its formulation, the Law Reform Commission covered three alternative definitions of adultery - completed acts of intercourse between a married person and another not his/her spouse, an attempted sexual intercourse, and any act of a sexual nature.
The Commission stated its view as follows: (P. 5 L.R.C. Report No. 5):
“Essentially, a magistrate has to be satisfied of the following elements before he or she can be satisfied adultery has been committed. First, that penetration, ...”
The Commission’s recommendations include creation of an offence of enticement and drafted a Bill along with drafts for other recommendations. The Report also sets out a number of defences to actions for enticement and adultery. Briefly, these are consent or connivance by the complainant, immature age, below the age of puberty, forgiveness following knowledge of the act and consent to sexual intercourse pursuant to a threat of sorcery, analogous to s.19 Sorcery Act, 1971, defence.
In my opinion, an alternative formulation along the lines recommended by the Law Reform Commission is long overdue. As time goes on, the continued existence of Native Regulations is becoming an anachronism and an insult to the national sovereignty and integrity, especially when in its application, the law is restricted to one class of citizens only. It is easy to understand positive discrimination in favour of less privileged. It is difficult to justify criminal law whilst it penalises one class of people only.
SENTENCE MANIFESTLY EXCESSIVE
I now return to the second ground of appeal alleging that the learned magistrate imposed a sentence that was in the circumstances of the offender, manifestly excessive. Native Regulations (Papua) 84(2), prescribes a penalty of K6.00 fine or 6 months imprisonment or both s.84(2), or instead of that penalty, award compensation of K2.00 to the aggrieved spouse. The appellant was sentenced to two months imprisonment with light labour. It is the general practice of the courts in this country to impose a light labour custodial sentence on female offenders, so I make no special reference to whether this aspect of punishment was not manifestly excessive. The real issue therefore turns on whether two months custodial sentence was in the appellant’s situation, excessive. In my view, the sum of K2.00 compensation is ridiculously out of date for most urban dwellers and a significant number of rural dwellers as well in P.N.G. today. The principles under which an appellate court may disturb the sentence of the trial court have been well enunciated and upheld in various decisions of the National and Supreme Courts. See Andrew J. in Kali Mari v. The State[ccxiii]3, citing with approval Wanosa & Ors. v. The Queen[ccxiv]4. I will refer to these later.
An appeal to the National Court from the Local Court lies under s.43 of the Local Court. Subsection (5)(d) of s.43 states that the National Court may “substitute for the decision any decision, including an order for variance, which might have been given, on the evidence before the National Court, by the Local Court or by a District Court, if the justice of the case so requires”; and “decision” includes an order or a sentence s.43(6).
An appeal from a decision of the Local Court lies as of right to the National Court. The appeal is against the conviction and the sentence. The excellent analysis of law by Clarkson J. with respect, in Wanosa & Ors. v. The Queen (supra)[ccxv]5 at pages 96-106, relates to an appeal from the National Court, formerly known as the Supreme Court Supreme Court, formerly known as the Full Court. The relevant provisions, sections 28(4) and 29(1) of the Supreme Court (Full Court) Ordinance 1968, relate to an appeal against sentence and not conviction. In other respects too, the provisions have differences in their meaning. In the case of an appeal from the Local Court, the National Court pursuant to Local Courts Act may substitute for the Local Court decision a decision the National Court might have given on the evidence before it, the National Court, that being the evidence before the Local Court. In other words, the National Court may place itself in the shoes of the Local Court and say - on the evidence before me, this being the evidence before the Local Court, I would have given such and such a decision - whether on conviction, or sentence or on both.
In my view, the wording of section 28(4) is quite different to the wording of s.43(5), and the cases decided on the basis of s.28(4) can be distinguished from the cases decided on appeal from s.43(5). In my opinion, the appellate court under s.43(5) has much wider discretion than the Supreme Court hearing an appeal against sentence under s.28(4). In my view the entire system of sentencing adulterers in this jurisdiction is badly in need of reform. It would be dangerous, if not judicially irresponsible, if I were to accept as law that cannot be questioned, decisions of pre-Independence courts in the face of a system of justice we have inherited, without the finer elements of probation and parole that have been developed in similar jurisdictions. I take this view, having regard to the highest standards the Constitution prescribes for the State, its citizens and all the institutions. In so far as it is relevant, the Constitution states in s.37(15) that “Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law”. In this case, a review includes an appeal.
I am well aware of the views of Barton A.C.J. in Skinner’s case[ccxvi]6. I am also mindful of the New South Wales decision of R. v. Gosper[ccxvii]7 where s.6(3) of Criminal Appeal Act was interpreted. In that section, the words “as it thinks fit”, appear (see Wanosa v. The Queen at p.99) (supra) (3). Section 28(4) has no such words. In the case of s.43(5) (d) Local Courts Act, the operative words are “any decision, including an order for variance”, and the words, “if the justice of the case so requires”. It is not necessary for me to consider different positions taken by different jurisdictions in Australia, for two reasons. First, from Independence Day P.N.G. adopted the common law of England and not the common law of Australia. This decision was made not because P.N.G. did not wish to follow what can be more enlightened developments in common law in Australia. It is simply that Australia has several jurisdictions, folded into one federal jurisdiction and to find what the common law is in Australia can be a difficult task - see for example the problems Kaporonovski’s case[ccxviii]8 have presented. Secondly, as the United Kingdom has single jurisdiction subject to the variants in Scotland and Ireland, it is more logical that P.N.G. adopt the common law of that country. The best course is to develop Papua New Guinea’s own common law. If I had quashed the sentence of the learned magistrate on the basis of an unfettered discretion of the appellate judge, I consider that the views I have expressed would have justified my decision. Local Court magistrates are on the whole, not trained in law. They have no assistance in principles and policy for sentencing, nor is the National Court better assisted by legislation on sentencing. However, in my view, within the scope of s.43(5)(d) the appellate court can look at the facts as were presented before the Local Court and ask itself - what would I have done on these facts - first on verdict, and secondly on sentence. True enough the appellate court sits in a rarified atmosphere. But it can be removed from emotion which in adultery cases does develop and administer sentences more suitable to the competing clans on sentencing. Each prisoner faces the court and all the State machinery as an individual and should be assessed as an individual, not as a number to be placed in the legislative or judicial scale of determinations. This view is consistent with general guidelines and range in sentences imposed by previous judges and courts. I consider it an unnecessary practice to adopt a general rule on approach to sentencing. Every appellant is unique as no doubt his personality and the facts surrounding him are unique. Sentencing, on the whole in my view, tends to be non rational. It is not necessarily irrational. Sentencers rarely engage in considering effect of a custodial as against a non custodial sentence on the one hand and personalised as against generalised sentencing on the other. Sentencing can vary according to race, sex or according to geographic locality. This is an area in which law is applied with some discretionary discrimination. Such discrimination may be positive or negative, depending on one’s view point. Appellate judges may impose heavier or lighter sentences in almost identical factual situations in courts of first instance. For these reasons I would hold the view that on appeal under s.43(5), the appellate court should have unfettered discretion in dealing with sentencing subject to legislative guidelines, and guidelines of prior court decisions.
As I indicated, I would upset the learned Magistrate’s sentence on the view I take not on the view I take of s.43(5), but that he had erred in not giving sufficient weight to the following factors and no weight at all to others:
(1)      The appellant had been assaulted by the respondent - a punishment which in itself is illegal prima facie and has no doubt caused serious stress to her; no weight was given to this fact.
(2)      No prior convictions. No weight was given to this fact at all.
(3)      Insufficient weight was given to the fact that the appellant had a three year old child she had to support financially.
(4)      No weight was given to the fact that in an offence of this nature, involving Melanesian citizens, imprisonment was not always the best solution and that award of compensation or damages may well be more appropriate. (See Reg 84(5) s.19 Local Courts Act).
In my view, no principle is laid down here that a prisoner might choose to be sentenced by the National Court or the Supreme Court. As I have pointed out, a prisoner is entitled by the Supreme Law of this land to seek redress by way of an appeal to a higher tribunal. That tribunal is at liberty, within the bounds of judicial discretion to grant or refuse an appeal. Before I finish on the subject of sentencing adulterers, I would like to refer to the proposals of the Law Reform Commission. In my respectful view, the approach of the Commission meets the needs and objectives of competing demands. One view holds that adultery should no longer be an offence, whether civilly or criminally. The other view is that adultery continues to be a serious offence which should be punished severely.
The Commission’s approach is that in the first instance, the parties should be encouraged to settle the matter by way of compensation. An order for compensation can be enforced with custodial sentence, should it be breached. It seems to me that the nature of adultery regulations are such that one could correctly state that adultery regulations are such that one could correctly state that adultery is both a civil as well as a criminal offence or wrong. This sort of analysis seems to me to be more appropriate and suitable for P.N.G. circumstances. A wrong is a wrong whether it is actionable by the State or by the party feeling aggrieved or his or her near relative. On this analysis, in an adultery charge I would think that it would be quite proper for a Local Court magistrate to proceed under divisions 2 and 3. Under this approach, the court could adopt criminal standards of proof beyond reasonable doubt for the purposes of determining guilt and then consider possible penalties for awarding damages, or compensation as well as considering custodial sentences and fines. In any case, the court clearly has the power under s.19(1) of Local Courts Act to make orders for compensation. It seems to me that in this case, the learned magistrate did not consider this possibility. Courts run the risk of contributing to much greater social tension, if upon finding of guilt, they proceed immediately to custodial sentences. In the case of the appellant, she would have lost her job. Her son would have suffered, and there is no guarantee that this would strengthen the constitutional ideals that “family units be strengthened”, or that children be brought up to understand the Constitution.
These sentences must not cloud the fact that adultery is still regarded as a serious offence in P.N.G. In my view a custodial sentence was called for, but it was clearly excessive in the context of the appellant. There is the danger too that an aggrieved party would use the courts not as a forum for obtaining lasting solutions to serious personal problems, but as an institution for attacking those whose evil ways lead them to break the law, or those who on being tempted, succumb to the desires of the flesh. The divine command that adultery should not be committed should be faced in the light in which the Constitution clearly states that Christian principles and wisdoms of our ancestors are dual pillars of the State. (See preamble). In meeting the common prostitute Jesus asked the lawyers to cast the first stone. No one was willing to do so, and the offender was let loose with an order that she refrain from such conduct in future.
The customary law, like the Jewish law was quite strict on adultery. There are good reasons for this. However, sentencing, for the exposition I have already indicated, must be individualised, having regard to conflicting claims, especially deterrence and protection of the family.
In the circumstances, I confirm the conviction, quash the sentence and order that the sentence be substituted with two weeks imprisonment with light labour and order the appellant to pay compensation of K10.00 to the respondent. The prisoner is sentenced to the rising of the court.
Solicitor for the Appellant: University Legal Aid Service
Counsel: S. Gabi
Solicitor for the Respondent: N. Kila

[ccxi](1977) P.N.G.L.R. 492
[ccxii](1934) 2 K.B. 408
[ccxiii]Unreported Judgment SC174 May 1980
[ccxiv](1971-72) PNGLR 90
[ccxv](1971-72) PNGLR 90
[ccxvi]16 CLR 336
[ccxvii]28 S.R. (N.S.W.) 568, 45 W.N. (N.S.W.) 165
[ccxviii](1973) 47 ALJR 472