Sangumu Wauta v The State

• Jurisdiction: Papua New Guinea
• Judge: Prentice CJ, Raine DCJ, Wilson J
• Judgment Date: 08 September 1978
• Court: Supreme Court
• Judgement Number: SC134

Supreme Court: Prentice CJ, Raine DCJ, Wilson J

Judgment Delivered: 8 September 1978

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SANGUMU WAUTA

V

THE STATE

Waigani

Prentice CJ Raine DCJ Wilson J

8 August 1978

8 September 1978

CRIMINAL LAW — Particular offences — Incest — Whether applies to father and daughter by customary adoption — "Lineal descendant" means "of the blood" — Daughters by adoption or customary adoption excluded — Adoption of Children Act 1968, s. 27Infra p. 330.1 — Adoption of Children (Customary Adoption Act) 1969, s. 5Infra p. 331.2 — Criminal Code s. 226.

WORDS AND PHRASES — "Lineal descendant" — Means "of the blood" — Incest — Criminal Code s. 226.

Section 226 of the Criminal Code provides: "Any person who carnally knows a woman or girl, who is, to his knowledge, his daughter or other lineal descendant ... is guilty of a crime and is liable to imprisonment with hard labour for life."

On appeal against conviction on a charge of incest under s. 226 of the Criminal Code, where the girl was the stepdaughter of the accused whom the trial judge found had become his "daughter" by customary adoption;

Held

(1) The words "lineal descendant" in s. 226 of the Criminal Code, must be given their ordinary meaning which connotes a relationship "of the blood" standing in direct line of descent from a common ancestor.

The State v. Misimb Kais [1978] P.N.G.L.R. 241 approved. Sydall v. Castings Ltd. [1967] 1 Q.B. 302 referred to.

(2) Section 27 (1) of the Adoption of Children Act 1969 which is expressed to be subject to the provisions, of any law that "expressly distinguishes in any way between adopted children and children other than adopted children" does not operate to vary or require a wider interpretation of s. 226 of the Criminal Code which would include an adopted daughter or a customarily adopted daughter.

(3) Accordingly the appeal should be allowed and the conviction and sentence quashed.

Appeal

This was an appeal against conviction (on a plea of guilty) on a charge of incest under s. 226 of the Criminal Code with a girl, being the stepdaughter of the accused who it was alleged had become his "daughter" by customary adoption.

Counsel

M. Kapi, for the appellant/accused.

J L. Cagney, for the respondent/State.

Cur. adv. vult.

8 September 1978

PRENTICE CJ: This appeal is brought against a conviction on a plea of guilty to incest, taken in the National Court at Wewak in July 1978. The sole ground of appeal is that acceptance of a plea of guilty amounted to an error in law.

The facts are scanty but largely undisputed. The appellant, a man over 40 years old, many years ago married Laha, the wife of a deceased tribal brother. At that time Laha had a small daughter (Landine) by her deceased husband. There is some suggestion that the girl's true father may have been the appellant's true brother, in which case the union between him and the girl's mother would have been a form of Levitical marriage, which is of course common to many, possibly most, areas of Papua New Guinea. In July-October 1977 the appellant began to indulge in sexual intercourse with the girl, Landine, who though described by defence counsel as "a mature woman", was noted by the trial judge to be a "rather simple, small village girl ...". At the time intercourse began, the girl's mother was dead. It would appear therefore that the appellant was the stepfather of the girl. But the basis on which his Honour convicted him of incest, was the finding that the girl had become his "daughter" by customary adoption. In estabishing such a customary relation of father/daughter, reliance was placed upon the fact that the appellant had entered the girl in the Dreikikir L.G.C. Roll Book as his daughter, and upon the affirmative answers apparently given by the appellant to his Honour's questions on arraignment. These questions covered the matters of "whether by custom of his people Landine was now regarded as if she had been his own natural born daughter; whether he regarded her as if she were his own true natural born daughter; whether he had regarded himself at the time as having sexual intercourse with his own true daughter".

The appellant admitted that in the particular village concerned, Warengama Numbawan, his relationship with Landine was forbidden. But no evidence was put before the District Court on committal, or before the National Court on arraignment, as to the relevant processes of customary adoption, or as to its consequences in the particular area — or generally. The judges of the National Court are only too familiar with incest cases. It may be said that they find the degree of village aversion to the practice, varies between (in some districts) utmost abhorrence, to (in others) a considerable degree of toleration of the practice and indeed of its offspring. They are aware that many of the communities of Papua New Guinea regard an offence as having been committed if a man has sexual intercourse with his stepdaughter or with a customarily-adopted daughter. Many committing magistrates regard such a union as calling for the application of the sanction of s. 226 of the Criminal Code.

It was not, it appears, argued before the trial judge; nor was it argued before us, that s. 226 would be applicable to the stepfather-stepdaughter situation. The State, as I understand it, supports the conviction on the footing that the section applies to the father/customarily-adopted daughter situation.

Section 226, Incest by Man, is in the following form:

"Any person who carnally knows a woman or girl who is, to his knowledge, his daughter or other lineal descendant, or his sister, or his mother, is guilty of a crime ..."

And s. 227, Incest by Adult Female, is as follows:

"Any woman or girl of or above the age of 18 years who permits her father or other lineal ancestor, or her brother, or her son to have carnal knowledge of her, knowing him to be her father or other lineal ancestor, or her brother, or her son, as the case may be, is guilty of a misdemeanour ..." (emphasis mine).

His Honour, the trial judge, was of the opinion that if the construction of the section did not require the word "other" to qualify "daughter", then the section would operate to make intercourse between a father and his adopted daughter, incest. And that it mattered not whether the adoption be under the Adoption of Children Act 1969, or a custom, as custom is declared to be part of the underlying law. He concluded that the word "daughter" included a customarily-adopted daughter; for the daughter must be a lineal descendant — in the customary setting "lineal descendant" must include in customary law, a customarily-adopted daughter. I pause to say, with respect, that it does not seem to me that there was any material before his Honour from which such a conclusion could be arrived at.

The researches of prosecution counsel were unable to find any other instance of an interpretation of s. 226 in this fashion; though it appears that O'Meally A.J would have been prepared so to rule (though without having heard argument on the point apparently), had the necessary evidence as to customary adoption been present: The State v. Birua Sessay Unreported, O'Meally, A.J 7th June, 1977.3. It would seem that other than in that case and in the instant case, prosecutors and judges accepted that "daughter" in s. 226 did not include a customarily-adopted daughter.

As it happened, only four days after the decision under appeal, Andrew J in Madang, without notice apparently of the decision now under appeal, formed an opposite conclusion as to the effect of the section (The State v. Misimb Kais) [1978] P.N.G.L.R. 241.4. In the last-mentioned case the comparable legislation of New Zealand and the various Australian States was usefully set forth and examined. No decisions on the point appear to have been given in Queensland under the section from which our s. 226, Criminal Code is derived.

Andrew J in the case before him, commenced his examination of the various overseas decisions with a reference to Sch. 2.3, the Constitution, and the National Court's duty to formulate appropriate rules for the underlying law. However, s. 37 (2) of the Constitution in the following terms —

"Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by ... a written law",

renders such an approach inapt, I consider, in regard to criminal law questions such as is raised in the instant appeal. My view is that the matter must be resolved as a problem of statutory construction — of the Criminal Code and the Adoption of Children Statutes.

"DAUGHTER OR OTHER LINEAL DESCENDANT"

In support of the conviction under appeal, it is argued that the word "lineal", as used in ss. 226 and 227, is used in a sense connected with inheritance of property. In the Common Law, and in common English usage, the word "lineal" has usually imported a meaning of "consisting of or being...