N2931

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 368 0F 2005

THE STATE

V

JAMES YALI

MADANG: 14, 15 NOVEMBER 2005
CANNINGS J

RULING ON EVIDENCE

Evidence – criminal proceedings – Evidence Act, Section 13 – competence and compellability of the wife of an accused person – whether a witness was "the wife" of a person charged with an offence – whether the accused consented to his wife giving evidence.

The accused is charged with four sexual offences. During the course of examination-in-chief of a State witness, defence counsel made an application under Section 13(2) of the Evidence Act that the witness’s evidence should no longer be heard and that her evidence, already given, be struck out on the ground that she is the wife of the accused and cannot in the circumstances of this case be called as a witness without the consent of the accused; and the accused did not consent. 

Held:

(1)	The term "wife" in Section 13 of the Evidence Act means a person to whom the accused is married in accordance with Part V of the Marriage Act or a person with whom the accused has entered into a customary marriage.

(2)	The material before the court suggested that the accused and the witness were, on the date of the alleged offence, in a de facto relationship or that the witness was a mistress of the accused.

(3)	The material suggested that, on the date that the witness was giving evidence, the witness had separated from the accused and that the relationship is now characterised as being an estrangement.

(4)	The witness cannot be regarded as "the wife" of the accused for the purposes of Section 13 of the Evidence Act.

(5)	Accordingly the application was refused; and there being no other objection to the witness she is a competent witness and may continue to give evidence.

Cases cited:
The following cases are cited in the ruling:

Application of Thesia Maip [1991] PNGLR 80
Bulage v Ben [1990] PNGLR 473
Otto Benal Magiten v Bernadette Beggie and Benedict Wahiginim Magiten (2005) N2908
RG v MG [1984] PNGLR 413
Supreme Court Reservation No 3 of 1985; The State v Uniss Kamugaip [1985] PNGLR 278
The State v Tu’uo Ibru (1999) N1940
The State v Ure Hane (1983) N442
Wemp Mapa and Others v The State [1979] PNGLR 135

RULING

This was a ruling on an application made in relation to a matter of evidence in a criminal trial.

Counsel:
N Miviri for the State
G J Sheppard and N Eliakim for the accused

CANNINGS J: 

INTRODUCTION

This is a ruling on an application under Section 13(2) of the Evidence Act that a witness’s evidence should no longer be heard and that her evidence already given be struck out on the ground that she is the wife of the accused and cannot in the circumstances of this case be called as a witness without the consent of the accused; and the accused did not consent. 

BACKGROUND

The accused, James Yali, is charged with four sexual offences. The charges were laid under the following provisions of the Criminal Code:

•	count 1 – Section 350(1)(a), abduction;

•	count 2 – Section 347, rape;

•	count 3 – Section 229E, abuse of trust, authority or dependency;

•	count 4 – Section 349, sexual assault.

On the fifth day of the trial, 14 November 2005, the defence counsel, Mr Sheppard, made the application under Section 13(2) of the Evidence Act during the course of examination-in-chief of the fifth State witness, Elizabeth Daniels.

Section 13 (spouse of accused as witness) states:

(1)	The wife or husband of a person charged with an offence is a competent witness in any legal proceedings in connexion with the offence.

(2)	Notwithstanding Subsection (1), the wife or husband of a person charged with an offence shall not be called as a witness in any legal proceedings in connexion with the offence without the consent of the person, except—

(a)	where the wife or husband, as the case may be, is compellable to give evidence; or
(b)	where the husband or the wife is charged with being a party to an offence against the other. 

(3)	Notwithstanding Subsections (1) and (2), the wife or husband of a person charged with bigamy may be called as witness for the prosecution or for the defence without the consent of the accused. [Emphasis added.]

Mr Sheppard contended that Elizabeth Daniels is the wife of the accused and he, the accused, does not consent to his wife giving evidence against him. Therefore she cannot be called as a witness. He produced an affidavit by Elizabeth Daniels sworn on 18 April 2005, in which she describes herself as "James Yali’s second wife", to support the contention that she is his wife. This document was marked for identification. 

The prosecutor, Mr Miviri, opposed the application. He submitted that it was not correct that Elizabeth Daniels was James Yali’s wife. They were not married under the Marriage Act. He also drew the Court’s attention to amended provisions of the Criminal Code, Sections 229I and 352, which address this issue.

I adjourned for about an hour, considered the issues, then delivered an oral ruling, rejecting the application for two reasons:

•	No 1 – I was not satisfied that Elizabeth Daniels is "the wife" of the accused, within the meaning of that term in Section 13(2). "Wife" means a statutory wife or a wife pursuant to a customary marriage. I have seen certain material that suggests that she is regarded in some respects as a second wife – a de facto – and maybe a mistress of the accused. She may be regarded in some circles as a "wife" but I think the word has to be given a restricted meaning. I noted that there has been a Supreme Court case that has touched on this issue: Supreme Court Reservation No 3 of 1985; The State v Uniss Kamugaip [1985] PNGLR 278, Supreme Court, Kidu CJ, Pratt J, Woods J. The dicta in that case support the narrow interpretation that I put on the term "wife".

•	No 2 – I said that if I were wrong on the first point and, in fact, Elizabeth Daniels falls within the definition of "wife", Sections 229I and 352 of the Criminal Code apply and she would, in any event, be a competent witness.

I confirmed with both counsel that the ruling was clear. Both indicated that it was, but Mr Sheppard immediately rose to ask me to reconsider the ruling, in light of further material he considered should be brought to the attention of the court. This included:

•	Excerpts from L K Kalinoe and E L Kwa’s Law of Evidence Lecture Notes and Reading Guides, UPNG Faculty of Law, which contains an extensive discussion of Section 13 of the Evidence Act;

•	Section 18(2) (communications during marriage) of the Evidence Act, which provides that a wife is not compellable in any legal proceedings to disclose a communication made to her by her husband during the marriage;

•	Section 37(1) (protection of the law) of the Constitution, which provides that a person charged with an offence must be given the full protection of the law – and this means that the accused must be given the benefit of the doubt when interpreting and applying provisions of the law pertaining to a trial;

•	Section 10 of the Constitution, which states that all provisions of written laws must be read and construed subject to the Constitution.

Mr Miviri objected to my giving any further consideration to the matter. He submitted that the court had made its ruling and that if the accused were aggrieved by it he should seek review by the Supreme Court.

I overruled Mr Miviri’s objection. I indicated that in view of the importance of the issue and the need to ensure that the accused be given the full protection of the law, I would reconsider the application and give another ruling after an overnight adjournment. This I do now.

RECONSIDERATION OF SECTION 13, EVIDENCE ACT

I endorse the sentiments of Dr Kalinoe and Mr Kwa at page 98 of their treatise when they point to the difficulties that arise in interpreting and applying Section 13. There is only a handful of reported cases in which Section 13 has been applied, eg Wemp Mapa and Others v The State [1979] PNGLR 135, Supreme Court, Raine DCJ, Pritchard J, Andrew J; Supreme Court Reservation No 3 of 1985; The State v Uniss Kamugaip [1985] PNGLR 278, Supreme Court, Kidu CJ, Pratt J, Woods J; The State v Tu’uo Ibru (1999) N1940, National Court, Kirriwom J. However, the difficulties are not insurmountable. The key provision is Section 13(2). Putting to one side cases where a person is charged with bigamy (dealt with in Section 13(3) and not relevant here), Section 13(2) says in plain language, for present purposes:

•	the wife of a person charged with an offence shall not be called as a witness in any legal proceedings in connexion with the offence, unless one of three provisos applies:

•	the person charged with the offence, ie the accused, her husband, gives his consent;

•	the wife is a compellable witness;

•	the wife is charged with being a party to the offence with which her husband is charged.

The argument was, and remains, that Elizabeth Daniels is the wife of James Yali. She cannot be called as a witness in his trial, as none of the three provisos applies. He does not give consent. She is not a compellable witness (a proposition supported by Section 18 of the Evidence Act). She is not charged with being a party to any of the four offences with which he is charged.

It is clear that the first and third provisos do not apply. As to the second – is she a compellable witness? – there are arguments both ways. But for the time being I presume that she is not a compellable witness.

Everything therefore turns on whether Elizabeth Daniels is "the wife" of James Yali. I have reconsidered this matter carefully. I have looked at the extensive dissertation on Section 13 by Dr Kalinoe and Mr Kwa, noting, however, that they devote little attention to the issue of ‘de facto spouses’ and what they do offer tends to support the ruling made yesterday (that such spouses fall outside Section 13). I have re-checked the authorities on the subject. I have taken account of everything put forward by Mr Sheppard, paying close attention to the need to give the accused the benefit of the doubt on matters of interpretation. As an accused person charged with serious criminal offences he must be given the full protection of the law. Of that there is no doubt. I have consulted the leading text, Principles of Family Law in Papua New Guinea, O Jessep and J Luluaki, 2nd edition, UPNG Press, 1994. I have considered whether it would be appropriate to make a reservation of this issue under Section 21 of the Supreme Court Act. I have decided, however, not to do that, as I am satisfied that the ruling I gave yesterday was the correct one. The term "wife" means a statutory wife or a wife pursuant to a customary marriage.

The term "wife" is not defined by the Evidence Act or the Interpretation Act, so to ascertain the meaning of the term the court has to consider the context and purpose of Section 13. The generic term "spouse" is used in the headnote to Section 13. However, the headnote does not form part of Section 13 (Interpretation Act, Section 26(3)).

The laws of Papua New Guinea draw a fairly sharp distinction between, on the one hand, statutory marriages and customary marriages, and, on the other hand, de facto relationships. This is borne out by the Marriage Act. On the one hand, Part V prescribes the formalities of a statutory marriage and Section 3(2) states "a customary marriage is valid and effectual for all purposes". On the other hand, de facto marriages are not recognised. In a number of cases the courts have observed that distinction, eg RG v MG [1984] PNGLR 413, National Court, McDermott J; Bulage v Ben [1990] PNGLR 473, National Court, Brunton J; Application of Thesia Maip [1991] PNGLR 80, National Court, Woods J.

The law does not say that entering a de facto relationship is unlawful, simply that it will not, as a matter of course, be regarded as giving rise to a marriage for all legal purposes. The position in Papua New Guinea is therefore similar to what it was in proximate jurisdictions, such as Australia, prior to legislative reforms enacted 20 to 30 years ago to give greater legal recognition and formality to de facto relationships.

A statutory marriage in PNG is very easy to identify. A customary marriage is less easy to identify. It is, however, a discernable state of affairs and the National Court is capable of determining whether such a marriage exists. In a recent case, based on the customs of the Dagua people of East Sepik Province, Otto Benal Magiten v Bernadette Beggie and Benedict Wahiginim Magiten (2005) N2908, I highlighted the importance of bride-price payments to the validity and enforceability of a customary marriage. Put simply, if there is no bride-price, there is no marriage. This is a rule of thumb that applies, I venture to suggest, in most customary law regimes in the country. (Also see The State v Ure Hane (1983) N442, National Court, Kaputin J.)

Section 13 of the Evidence Act is based on the general position under the common law: that a wife or husband is not a competent witness to testify in a court case involving their marital partner. This is often explained by saying that such laws ‘preserve the sanctity of marriage’, meaning that the institution of marriage is vital to the stability of a society; and to protect it, wives and husbands ought not to be encouraged to be witnesses against each other in court. (See Supreme Court Reservation No 3 of 1985; The State v Uniss Kamugaip [1985] PNGLR 278, per Pratt J at page 280.) If this is accepted as the policy basis of Section 13, it should be interpreted in such a way as to advance that purpose. Promoting the concept of sanctity of marriage would be enhanced by giving the term "wife" a meaning consistent with the ordinary and natural meaning given to it by other laws such as the Marriage Act.

I can see that there is an alternative interpretation available – that "wife" includes de facto wife – and that, as this is a criminal case, the accused should be given the benefit of the doubt on matters of interpretation. That does not, however, mean that whenever there is some uncertainty arising from an immediate reading of a statutory provision, the uncertainty should, as a matter of course, be resolved in favour of the accused. The court’s duty is to give a legislative provision its proper meaning, after carefully considering its purpose and context, and, in accordance with Section 158 of the Constitution, to give paramount consideration to the dispensation of justice.

I have taken account of all those matters in concluding that a de facto wife or mistress does not fall within the definition of "wife" in Section 13.

THE FACTS OF THE PRESENT CASE

Elizabeth Daniels describes herself in an affidavit as James Yali’s second wife. That does not necessarily mean that she is his "wife" for the purposes of Section 13. There is no evidence or other material before the court to show that she is his statutory wife or that she and the accused have entered into a customary marriage. It appears that no bride-price has been paid. Nor has any appropriate customary ceremony or other obligation been entered into.

An issue that was not addressed at yesterday’s hearing was where the onus of proof lies in the event of a dispute under Section 13. The defence counsel submitted that the witness was the wife of the accused. The prosecutor submitted the opposite. I enquired whether the court had sufficient material before it to make a determination and both counsel were content to let me make a ruling on the material before the court. I say now, having given the matter a little more thought, that the onus of proof does not rest on either party. The defence bears an evidential burden to bring something before the court. The court then has to be reasonably satisfied that a state of affairs exists that would warrant the conclusion that a witness is the wife of the accused. That is the way I have approached the issue.

I am not reasonably satisfied either that Elizabeth Daniels is the statutory wife of James Yali or that she has entered into a customary marriage with him. It appears that they were, on the date that the alleged offences were allegedly committed – 13 October 2004 – in a de facto relationship and that she was regarded as his ‘second wife’. She was not his wife for the purposes of Section 13 of the Evidence Act. At the time of the trial – November 2005 – the witness had separated from the accused and an estrangement in the de facto relationship appears to have occurred. That is what the evidence and other material before the court suggests. This supports the conclusion that she is not presently his wife.

Therefore Section 13 of the Evidence Act does not apply.

CRIMINAL CODE PROVISIONS

In yesterday’s oral ruling I said that if, in fact, Elizabeth Daniels falls within the definition of "wife", Sections 229I and 352 of the Criminal Code, which are equivalent provisions, would apply and she would, in any event, be a competent witness. 

Section 229I (rule of evidence) forms part of Division IV.2A (sexual offences against children) of the Criminal Code. It states:

On a charge of an offence against any provision of this Division, the spouse of the accused person is a competent and compellable witness.

Section 352 (rule of evidence) forms part of Division V.7 (sexual offences and abduction) of the Criminal Code. It states:

On a charge of an offence against any provision of this Division, the spouse of the accused person is a competent and a compellable witness.

The accused has been charged with three offences under Division V.7: counts 1, 2 and 4. He is charged with one offence (count 3) under Division IV.2A. In respect of all charges, his spouse would be a compellable witness. The exception in 13(2)(a) of the Evidence Act would apply. The consent of the accused would not be required.

REMARKS

I delivered a draft written ruling on the morning of 15 November 2005 in the same terms as this judgment except for the part dealing with the Criminal Code provisions. In the draft ruling I indicated that Section 352 states that the spouse of the accused is "not a compellable witness". That is not correct. I have confirmed that Section 352 provides that the spouse is a compellable witness. Section 352 used to state that the wife of an accused is not a compellable witness (see D R C Chalmers et al, Criminal Law and Practice of Papua New Guinea, Lawbook Co, 3rd edition, 2001, page 339.) It was amended by Section 21 of the Criminal Code (Sexual Offences and Crimes Against Children) Act No 27 of 2002. That Act was made by the National Parliament on 28 March 2002. It was certified by the Speaker on 25 June 2002. It commenced operation on 10 April 2003. (See Constitution, Section 110(2), the commencement clause of Act No 27 of 2002 and the notice of commencement in the National Gazette No G45 of 2003 at page 2.) 

The version of Section 352 on which I based my draft written ruling is in the current pngInLaw electronic database published by NiuMedia Pacific Pty Ltd (see http://www.niumedia.com). It states that a spouse is not a compellable witness. It is incorrect and needs to be rectified.

CONCLUSION

I confirm the oral ruling given on 14 November 2005 that Elizabeth Daniels is not the wife of the accused, James Yali, for the purposes of Section 13 of the Evidence Act. The application under Section 13(2) is refused. There being no other objection to the witness, she is a competent witness and may continue to give evidence.

Ruling accordingly.
____________________________________________________
Lawyer for the State		: 	Public Prosecutor
Lawyers for the accused	: 	Young & Williams