N362(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 158 OF 1981

BETWEEN:

SUSAN MORU
APPELLANT

AND:

TIKELING SAKIN
RESPONDENT

Lae: Pratt J
14 December 1981

ADULTERY - requirements of proof - nature of evidence

INFORMATION - time limit under Local Courts Act and District Courts Act - necessity of magistrate to ensure information laid within proper time.

GROUNDS OF APPEAL - inadequacy - necessity to give particulars and avoid generality - discretion of appeal court.

NATIVE REGULATIONS 84 (G).

Cases Referred To
Idau Gabe v. Meriam Griffin [1977] PNGLR 492
Labian Saiuwen v. Yerei-Yautan [1965-66] PNGLR 152

PRATT J: This appeal deals with a conviction of the appellant on the 30th April 1981 at the District Court in Lae, on a charge that during November of 1979 she had sexual intercourse with John Monda knowing him to be married. The complainant was allegedly the wife of the man John Monda. Following conviction the appellant was sentenced to a period of three weeks imprisonment. The offence of course is established under Regulation 84(2) of the Native Administration Regulations (NG). The appellant was represented by Mr. Lupulrea of the Public Solicitor's Office in Lae. There was no representation for the respondent. Her name was called three times outside the Court but she did not appear. As counsel for the appellant points out there are three essential elements requiring proof when a charge is brought under this particular regulation - firstly that sexual intercourse took place, secondly that the intercourse took place between a married person and another person who may or may not be married (that is the defendant) and thirdly that the defendant at the time intercourse took place knew that the person with whom he or she was committing the act of intercourse was a married person.

Counsel has drawn my attention to two cases in the Reports which I shall deal with more fully in a moment. Going to the depositions, it is quite clear there is no evidence to establish that sexual intercourse did occur between the defendant and John Monda. The only suggestion of anything of a sexual nature having occurred between them is a bald statement on oath by the respondent, then the complainant, that "the defendant has already had sexual intercourse with my husband". Whether that bald statement is a mere supposition by the complainant, whether it is a result of something she was told or something which she in fact observed, is completely obscure. It is certainly not evidence that intercourse did take place. The appeal must therefore be upheld on that ground if no other.

Going to the other grounds of appeal, there is again firstly no evidence at all, or no direct evidence, that the appellant knew that the man John Monda was married at the time intercourse took place. There is some evidence which may suggest that she might have known but mere suggestion or suspicion is not sufficient to establish a charge. If the evidence does not establish the charge, then the magistrate's sworn duty is to dismiss. Again I appreciate that where a magistrate is acting in performance of his duty without the assistance of counsel, it may be necessary for him to ask questions which will assist the parties to get their respective cases properly before him. There is however no suggestion that that was done in this case. So far as that ground of appeal is concerned then, it is once again clear that no evidence was led to support the charge.

Thirdly, there is no evidence that there was in fact a marriage between the man John Monda and Tikeling Sakin. In one or two places the complainant does refer to 'my husband' but the matter is not taken any further than that. She was not even asked, nor did she give any evidence as to whether the marriage was a statutory marriage or a customary marriage and if it was a customary marriage, where it took place and when it took place. As Mr. Justice Saldanha pointed out in the case of Idau Gabe v. Meriam Griffin:

"The complainant referred to Bob as her husband. She was not asked if she was married to him. She was asked how long she had lived with him and she said for ten years. It is possible that the complainant is married to Bob by native custom. On the other hand she may be calling him her husband merely because she has lived with him for a long time and borne him children. For all I know cohabitation over a period of time may well constitute a valid marriage by native custom, and, it is possible that the magistrate in making the finding he did was merely taking judicial notice of native custom."

Just adding to what His Honour said there, if the magistrate was attempting to take judicial notice of a marriage this is not mentioned, nor is any basis set down for such a conclusion. In the present case there's not even a suggestion by the complainant of any lengthy period of cohabitation.

Regulation 84(9) provides as follows:

"(9) For the purposes of this Regulation every marriage between natives which is in accordance with the custom prevailing in the tribe or group of natives to which the parties to the marriage or either of them belong or belongs is a valid marriage."

These Regulations were drafted many years ago and there is no doubt that the purpose behind this sub-regulation in Regulation 84 dealing with adultery was to make it quite clear that customary marriage was to be recognized by the courts.

As regards proof of customary marriage, the other case referred to me by counsel is that of Labian-Saiuwen v. Yerei-Yautan. At p. 157 of the Report Mr. Justice Frost (as he then was) says:

"Now these proceedings under the Native Administrative Regulations are certainly of a penal nature so that proof of an actual marriage would seem to be required. How is this rule of the common law to be applied to the conditions of the Territory? I consider that under this rule the magistrate should require evidence, both as to the custom prevailing in the tribe establishing the elements of a valid marriage, and as to whether in the case before him those elements were complied with so that there was a valid marriage. It may be that proceedings are thus made more technical, but this regulation provides for a substantial punishment so that the offence should be strictly proved."

The closing words of His Honour's statement of the law are something which we would all do well to bear in mind. The maximum penalty is six months, and in many instances the persons who will be involved under this charge in this day and age, are far removed from the circumstances and conditions which prevailed in the country generally at the time the Regulations were originally drafted.

In addition to what His Honour said about proof of customary marriage, he also emphasises the two other elements requiring of proof. At p. 155 he says:

"... the complainant must show beyond reasonable doubt that the person charged knew that native of the opposite sex to be married."

Also, at the bottom of p. 156, His Honour says in leading up to the requirement of proof of customary marriage, the following:

"In proceedings of a penal nature, however, such as criminal prosecution for bigamy, and in suits for divorce, proof of cohabitation and reputation is not sufficient, and an actual marriage must be proved in evidence."

Being a criminal case, it is trite law to say that each element of the offence must be strictly proved. That was certainly not the case in the present matter and indeed all three areas of proof are found lacking.

A fourth ground of appeal may well have been added. The record discloses an information dated 25th March 1981 in the following terms: "that in the month of November 1979 at Mendi you Susan Moru being a native woman did commit adultery, etc. etc." The complaint was taken out under the Local Courts Act which by s. 21 says that a local court has no jurisdiction over offence which took place more than three months before the complaint was made unless it is of the opinion that the complainant had no reasonable opportunity to make the complaint in that period. There is no suggestion in this case that any material dealing with lack of "reasonable opportunity" was put before the magistrate or that he exercised his discretion in respect of an application to extend the time. However, it is not absolutely clear whether the matter was subsequently dealt with in the Local Court or the District Court. The papers would seem to indicate the latter because the word 'District' is underlined and the word 'Local' is crossed out. Leaving aside the problem of whether or not one can increase the time limit by changing at the last moment from the Local Court to the District Court, the magistrate was still faced with a limitation period as set forth in the District Courts Act. Under the District Courts Act, by s. 44, the limitation period is six months. So whether the proceedings were under the Local Courts Act or the District Courts Act, the matter was well out of time. Once again, one would expect the magistrate to know such basic law.

What saddens me is how any magistrate could convict a person on such evidence. I am very much aware that often our magistrates do not have the assistance of argument by counsel and therefore there is a heavy load on their shoulders. But after all, the charge of adultery has been around this country for a long time and it is not an infrequent charge to come before the Local Courts and the District Courts. The magistrate of course not only carries a heavy load but he also has a heavy responsibility. It is his duty to see that charges are made out and to have some appreciation of the law involved behind the charges that come before him. It is not that this particular regulation is without clear authority in the Law Reports. I am therefore very concerned to find there are still magistrates who deal with matters but make no attempt whatsoever to ascertain the law. Indeed I am so concerned by the lack of any attempt to see that the charge was properly established in this particular case that I propose to refer it to the Chief Magistrate. It is not a question of the trial magistrate having to resolve a factual situation of any difficulty or to struggle with difficult principles of law. It is simply a matter of him knowing what the law is in quite a simple area before he proceeds to deal with another persons' liberty in respect of an alleged breach of that law.

Finally, there is one other matter I would refer to for the benefit of counsel. In a recent sittings of the Supreme Court the learned Chief Justice saw fit to make some strong criticisms on the format of notices of appeal then coming before the Court. Even in that august jurisdiction, notices of appeal were coming before the Court which stated nothing more than that the appeal was against the evidence and the weight of the evidence. The same criticism applies to an appeal before any other court. In this matter there are two grounds of appeal: one that the decision is against the weight of the evidence and two, that the sentence was and is manifestly excessive. I cannot of course speak for other judges but I can indicate that I am fast arriving at the stage where I will refuse to hear appeals framed in such meaningless terms. The facts of this case seem to bear a great deal in common with Labian-Saiuwen's case before Mr. Justice Frost (as he then was), and at p. 153 to 154 of the Report we find a set of grounds of appeal which could be regarded in my view as worthy of repetition by other practitioners. The grounds of appeal were as follows:

"(1) 	That having regard to the nature of the offence charged, the magistrate had no evidence before him as to local custom on marriage and divorce sufficient to allow him to proceed on the complaint.

(2) 	That having regard to reg.84(3) the magistrate did not make any enquiry to determine, nor did he in fact determine, whether the complainant was properly qualified to bring the charge.

(3) 	There was no evidence before the magistrate to show that the appellant was married and therefore guilty of adultery as charged.

(4) 	There was no evidence that the appellant knew that Waingi was married at the date of the offence.

(5) 	The sentence imposed was excessive."

When the grounds of appeal are framed with some particularity, not only does the counsel for the opposing party know exactly what it is that's being complained of but the Court is immediately apprised of those matters which are under attack. This has the double benefit of firstly confining, and rightly confining, an appellant to the matters with which he is aggrieved at the time he lodges the appeal, and secondly to allow the Court and counsel for the opposing side to examine the issues before they come into court. Obviously this is very necessary from the point of view of the opposing counsel. Unlike the Court, he does not have the benefit of going away and thinking about it all after the arguments have been presented. Thirdly as has been pointed out on a number of occasions during 1981 by Quinlivan AJ, magistrates are required to furnish reports and reasons when such have not been given. It is quite unreasonable to expect them to waste time and energy "covering the field" simply because the appellant will not frame his complaints about conviction with some degree of particularity.

Having said all this, it is quite obvious then that the appeal must be upheld and I so order.

Solicitor for the Appellant: A. Amet Public Solicitor
Counsel: S. Lupulrea
No appearance for the Respondent