National Court of Papua New Guinea

(b) ҈& Where tere the huse husband or the wife is chargth be party to an offe offence ance against the other.

(3) & Notwithtwithstanding sub-sections (d (2) wife or husband band of a of a person charged with bigamy may be called as witness for the prosecution or for the defense without thsent e acc”

9. Aftb>After heer hearingaring counsels, I ruled that the proposed State witness Wariam Nang the estranged wife of the accused for all purpose and intent a competent witness (s.13 (1)), however, shall not be called as a witness unless the consent of the accused spouse is given (s.13 (2)). The accused husband had not consented to her to give evidence for the State against him, and that none of the exceptions in s. 13 (2) (a) (b) and (3) apply so that she could come within the range of being compel to give evidence.

10. I will digress at this point to look at other factors that may have some bearing on the subject of competence and compellability of the spouse of the accused as a witness in Criminal Proceedings. Briefly the focus of this will be on the position of de facto partners, customary marriages, separated and former spouses and becoming the spouse before the trial. Much of these had been documented by A J Regan in his Article “Competence and Compellability of the Spouse of the Accused as a Witness in Criminal Proceedings in Papua New Guinea [1997] MLJ 5; [1997] 25 MLJ 87 (1 January 1997)”

“De Facto Partners

11. The position of de facto partners in Papua New Guinea is that they are not spouses at law, and so the rules about competence and compellability of spouses do not apply to them. That position has been changed by statute in some other jurisdictions. The broader legal position of de facto partners in Papua New Guinea has been explored by Owen Jessep, in “De Facto Relationships and the Law in Papua New Guinea”, (1992) 41 International and Comparative Law Quarterly 460-72. It is beyond the scope of this article to explore the major practical issue of the difficulty sometimes involved in distinguishing a valid customary marriage from a de facto relationship.

Customary Marriages

12. As observed by the Supreme Court in Kamugaip [1985] PNGLR 278, a marriage by custom is normally a valid marriage, and so the rules about competence and compellability of spouse witnesses apply to unions the result of such marriages as much as to unions resulting from marriages performed by registered marriage celebrants (sometimes referred to as “statutory marriages”). For customary marriage of a spouse to be relied upon to render the benefit of a s. 13 (2) of the Evidence Act some proof is required to show that a valid customary marriage still exist. It must not be taken for granted that a spouse withholding consent is married to the spouse who is called as a witness given the unpredictability of the nature of customary laws in Papua New Guinea. In the present case this was not done as counsels did not take issue on the status of the spouses. Thus the court is satisfied that a valid customary marriage still exist between the accused and the witness.

Separated and Former Spouses

13. At common law, a spouse was incompetent to give evidence of matters occurring after a separation (Moss v Moss [1963] 2 QB 799).

14. It seems likely that a divorced spouse is incompetent to give evidence as to matters occurring during the marriage (See R v Algar [1954] 1 QB 279.

15. There seems no good reason why s 13 (or any other Papua New Guinea statute) should be interpreted as intending to change these rules. A Ligertwood, Australian Evidence, 2nd ed (Sydney, Butterworths 1993), p 275.

Becoming the Spouse before the Trial

16. The position of a witness who marries the accused after the alleged crime but before the trial was the focus of the decision in Hoskyn [1979] AC 474, where although the new spouse was ruled compellable at trial, that decision was ultimately overruled on appeal. While the application to Papua New Guinea of the ruling on compellability remains in doubt (see above), the ruling on the application of the rules to a witness who becomes the spouse of the accused after commission of the offence but prior to trial seems less doubtful, especially in the light of the policy concerns emphasized by the Supreme Court in Kamugaip [1985] PNGLR 278.

17. In Papua New Guinea the rules about the competence of spouse witnesses are found mainly in s 13 of the Evidence Act (Ch 48). While the spouse of the accused in criminal proceedings (the spouse witness) is competent to give evidence, in general the consent of the accused is required except in certain exceptional cases. That consent is frequently withheld, usually with the result that the most crucial prosecution witness is unavailable".

18. Returning to the case at hand the crucial prosecution witness is the wife of the accused. The husband through his counsel applied to have her withdrawn from giving evidence for the State as he declined to grant consent pursuant to s. 13 (2) of the Evidence Act. The State concedes to this submission. Thus the court ruled in favour of the accused, that the proposed witness for the State was to be excluded from giving evidence for the prosecution. At this juncture the State informed the Court that this concludes the case for the prosecution and formally closed its case.

19. The 3 State witnesses proposed to be called are Wariam Nang, Annifer Kandato and Isaac Kopyala. The first witness Wariam Nang is the wife of the accused and for reason of her exclusion under s.13 (2) Evidence Act had not given any evidence. Isaac Kopyala was not available and was not called to give evidence when State closed its case. The only witness examined was Annifer Kandato the daughter of the accused. In her evidence she did not disclose the person who owns the house that was burnt.

20. Accused is charged with the offence of arson under s.436 of the Criminal Code. The prosecution must not only prove beyond reasonable doubt that the accused willfully and unlawfully burnt the house; it must also prove that the house belong to a named person. I find that the state had failed to prove the element of ownership and therefore find that the prosecution had not proven its case beyond reasonable doubt.

21. There is one issue that needs to be considered in the prosecution of cases involving spouses either as accused or witness in the context of s. 13 (2) of the Evidence Act. In such cases where the claim to a marriage by custom, there must be some evidence to show that such marriage still existed. It must not be taken for granted that a spouse withholding consent is married to the spouse who is called as a witness given the unpredictability of the nature of customary laws in Papua New Guinea.

22. In the present case counsels did not address this issue notwithstanding the fact that the witness/wife is no longer residing with the accused/husband. The accused is now living with another woman elsewhere.

23. Thus in the absence of any evidence to the contrary, the court is satisfied that the relationship of the witness and accused is one of husband and wife.

24. I therefore rule that the witness/wife is not a competent and compellable witness and should not be called as witness for the prosecution.

25. The prosecution had not proven its case beyond reasonable doubt.

Accused is found not guilty and discharged, bail to be refunded.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused