Papua New Guinea Law Reports - 1963
[1963] PNGLR 113
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
REGINA
V.
DABAT AND OTHERS
Wewak
Mann CJ
21 May 1960
ADMISSIBILITY OF EVIDENCE - rule in Russell v. Russell.
Upon a charge of wilful murder, the Crown, for the purpose of fixing the date of the alleged offence, sought to lead evidence from the widow of a victim to show that her child, who appeared to be about ten months old, was born after her abduction, which had occurred contemporaneously with the alleged murder of her husband.
It was objected by counsel for the Accused persons that the evidence was inadmissible as tending to prove the illegitimacy of her child in breach of the rule in Russell v. Russell[cxliii]1.
Held:
That the rule did not apply to natives in the Territory unless it were proved that the parties concerned were subject to loss of inheritance of property or to rules of marriage and legitimacy, which would support the application of the rule to them as a matter of public policy.
Position of children of natives generally living in uncontrolled areas in relation to biological paternity and proof of a local native custom mentioned.
Counsel:
Cervetto: for Crown.
O’Regan: for the Accused Persons.
MANN CJ:  The Accused were charged with the wilful murder of one Wabuo. The trial was held at Wewak from the 16th to the 21st May, 1960.
During the course of the hearing the Crown had elicited evidence from a native witness to the effect that the alleged offence took place three months previously. This was an obvious error but when the witness was invited to fix the time of other events from which a computation might be made, she stated that each of the events also occurred three months ago or at intervals of three months, and demonstrated that she was unable to give any accurate estimate of time.
The Crown then sought to fix the date by reference to the child of the witness which appeared to be about ten months old and was present in Court. It was proposed to ask the witness whether the child was born before or after her alleged abduction by the Accused persons and to ask her who was the father of the child. Objection by the defence on the ground that this evidence might show the child to be illegitimate, or at least to show that it was probably so. The witness’ husband, Wabuo, had been allegedly killed by the Accused in a raid, whereupon she was, according to the Crown case, abducted by one of the raiders, who had since died, and since that time she had been living with her own people. The legitimacy of the child might depend on whether the abduction of the witness was to be regarded as constituting a valid marriage, and what was the marital status of the witness when the child was conceived. It was not clear what circumstances might establish the child’s illegitimacy.
RULING AFTER ARGUMENT:
The principle commonly referred to as the rule in Russell and Russell[cxliv]2 does not apply to natives in the Territory unless it is proved that the parties concerned are subject to loss of inheritance of property or to rules of marriage and legitimacy which would support the application of the rule to them as a matter of public policy.
The general rule based on the experience of this Court is that children of natives living in uncontrolled areas are not subject to loss or disgrace by reason of any question of biological paternity. Before the rule could be applied to anyone of them it would be necessary to establish that there was a native custom relating to that child which satisfied the proper legal tests of a local custom, and which recognized a concept of illegitimacy or subjected the illegitimate person to a status that would justify the application of the rule as a matter of public policy.
The defence contended that the onus on this issue rested on the Crown. This point was not argued or decided.
The Crown intimated that it was not in a position to call evidence to establish whether the child was affected by any circumstances which would subject it to any stigma associated with any concept of illegitimacy. The proposed question was abandoned and an application was made to amend the indictment to allege the date of the offence as in or about the year 1959. No objection was made and the amendment was granted.
Solicitor for the Crown: S. H. Johnson, Crown Solicitor.
Solicitor for the Defence: W. A. Lalor, Public Solicitor.
Note: In relation to the Divorce and Matrimonial Causes Ordinance 1934-1951 of the Territory of New Guinea, Section 44; and the Matrimonial Causes Ordinance 1941-1958 of the Territory of Papua, Section 46.

[cxliii]1924 A.C. 687.
[cxliv]924 A.C. 687.