1985

Papua New Guinea Law Reports - 1985

[1985] PNGLR 1 - John Anskar v Jacob Yansuan 

[1985] PNGLR 1

N495

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JOHN ANSKAR

V

JACOB YANSUAN

Mount Hagen

Los AJ

23 November 1984

8 January 1985

SUMMARY OFFENCES - Unlawfully on premises - “Without lawful excuse” - Element of criminality required - Intent to commit adultery sufficient - Adultery minor offence - Penalty - Summary Offences Act 1977, s 20.

Section 20 of the Summary Offences Act 1977 provides: “A person who, without lawful excuse, is in, on or adjacent to any premises is guilty of an offence.” The minimum penalty provided is twelve months imprisonment.

Held

N1>(1)      For the purposes of s 20 the presence of a person on premises is unlawful if his behaviour gives rise to a wrong that may be sanctioned by a criminal law.

Roffey v Wennerbom [1965] QR 42 at 55-56 and Tiki-Nori v Thackeray [1967-68] P&NGLR 37 at 45, considered and applied.

N1>(2)      Sexual intercourse with a married woman contrary to the provisions of the Native Administration (TNG) Act (Ch No 315) is an offence punishable under that Act.

N1>(3)      Accordingly, a person who is on premises with the intention of having sexual intercourse with a married woman is on premises without lawful excuse within the meaning of s 20 and is guilty of an offence thereunder.

Cases Cited

Asi Burunge v John Kaupa (Unreported Supreme Court judgment, No SC 258).

Gari Gari v Ben Anton [1984] PNGLR 1.

Ito Memairi v Nelson Guia [1984] PNGLR 66.

R v Silver [1956] 1 WLR 281.

Roffey v Wennerbom [1965] Qd R 42.

Shaw v Director of Public Prosecutions [1961] UKHL 1; [1962] AC 220.

State, The v Mathew Peters [1984] PNGLR 387.

Supreme Court Reference No 1 of 1984 [1984] PNGLR 418.

Swann v Simon Sul (Unreported National Court judgment, No N454(M) Pratt J dated 5 March 1984).

Tiki-Nori v Thackeray [1967-68] P&NGLR 37.

Appeal

This was an appeal against conviction and sentence for an offence contrary to s 20 of the Summary Offences Act 1977.

Counsel

A Yer, for the appellant.

F Kuvi, for the State.

Cur adv vult

8 January 1985

LOS AJ: The appellant was convicted of unlawfully being on premises and was sentenced to twelve months imprisonment on 31 August 1984. It was said that the appellant, a policeman, went to a dwelling house of Joel Niaka, also a policeman, who was out on patrol. Mrs Niaka and two other ladies were in the house. It appears from the depositions that the appellant knocked at the door early in the evening and when all three women saw him, he ran away. He then came back later. In the intervening period, Mrs Niaka through the police communication system contacted her husband. He came and was in the house when the appellant came back. It appears that when the appellant knocked, Mrs Niaka opened the door and the appellant quickly came inside the house. When he was inside the house, the husband held his hands and the light was switched on and shouting followed whereupon nearby people came to see what was going on.

The appellant’s version is that he was invited by Mrs Niaka. He was told that when the light went off, he should come and knock nearest to the main bedroom. The appellant’s counsel argued that the appellant was there with a lawful excuse and unless there was an element of criminality involved he could not be guilty. For this statement he relied upon Roffey v Wennerbom [1965] Qd R 42. He also argued that the appellant was on an exploratory expedition and unless he gained consent he could not proceed any further and in saying so he relied upon the case of Tiki-Nori v Thackeray [1967-68] P&NGLR 37. It was argued that if there was consent and if the appellant proceeded further it would have amounted to adultery which was offensive to morality and which did not require penal sanction. Counsel also relied upon Asi Burunge v John Kaupa (Unreported judgment No SC 258 of 26 August 1983), to support his argument.

On the second ground of appeal it was argued that, even if the appellant was guilty, the learned magistrate should have treated him under s 138 of the District Courts Act 1963. The appellant, it was said, was a first offender, a hard working man and was highly regarded by his superiors with the traffic section at Mt Hagen police station.

Mr Kuvi for the State argued that the two major elements of the offence under s 20 of the Summary Offences Act 1977 were clearly made out against the appellant. The appellant was on somebody else’s premises and he had no lawful excuse to be on the premises. The intention of the appellant was clear, he stated it himself in his evidence at the hearing that he was there for sex. The counsel said sexual intercourse with a married woman was a crime under our law. I believed Mr Kuvi was referring to the Native Administration (TNG) Act (Ch No 315).

As to the discretion, the counsel argued that the magistrate had no choice because it was not a trivial matter. The appellant was convicted of an offence under the Summary Offences Act 1977, that is, s 20 of the Act. This offence used to be under the Police Offences Act and it was provided under the general heading of “Vagrancy and Kindred Offences”. The history and the object of this kind of offence have been well discussed both in Papua New Guinea and in many Australian States. I think a part of the judgment in Roffey v Wennerbom at 55-56 explains it:

“In Hayes v Stephenson (1860) 9 WR 53 Cockburn CJ is reported as saying of the corresponding part of s 4 of the English Vagrancy Act of 1824: ‘The question for the opinion of the Court is whether the purpose for which the appellant was in the respondent’s garden was an unlawful purpose within the meaning of the 4th section of the Vagrant Act. I am of the opinion that an immoral purpose is not within the meaning of the act; and the appellant therefore was improperly convicted. The construction the justices put upon this section would bring every trespasser within the meaning of the act. An unlawful purpose is a purpose to do something forbidden by the statute or common law’ ... In that case the appellant had entered the garden for the purposes of fornication and had been convicted by the justices.”

So the presence of a person on a premise is unlawful if his behaviour gives rise to a wrong that may be sanctioned by a criminal law. It may be a civil wrong or a moral wrong but s 20 of the Summary Offences Act 1977 is not directed at them. It seems to me the motive or the intention of the person becomes important. In Tiki-Nori v Thackeray at 45-46, the facts of that case are very similar to the appellant’s case, it was said that:

“... if the defendant shows that he is not guilty of conduct that is preparatory to or in furtherance of some criminal purpose, or which by reason of its violating recognized standards of decency, tranquillity and decorum, and the accepted usages of the community, is likely to put occupants in fear or apprehension and thus lead to a breach of the peace, on the facts of this case, he has shown lawful excuse within the meaning of the Ordinance ....”

This point is further discussed by Kidu CJ in Gari Gari v Ben Anton [1984] PNGLR 1. Obviously or at least it appears that the Queensland case, Roffey’s case and the English case that was referred to in the judgment were decided in the places where adultery was not a wrong punishable by a fine or imprisonment. Thus, it was said that unlawful purpose could not include an intent of a sexual nature. Tiki-Nori’s case is a Papua New Guinea case where adultery is sanctioned by fine or imprisonment. In that case Frost J (as he then was) at 46 added a qualification, that is, “... that criminal purpose must be understood to relate to offences other than those of a minor nature”.

Mr Kuvi’s submission, though it does not answer the question, is right on the point. He said having sexual intercourse with a married woman is against our law and therefore the appellant had no lawful excuse to be there.

Is adultery an offence? Section 2 of the Criminal Code Act (Ch No 262) defines an offence as “an act or omission that makes the person doing or making it liable to punishment is called an offence”. Adultery is punishable under the Native Administration (TNG) Act (Ch No 315). It is an offence. The tenor of the decision in Asi Burunge v John Kaupa seems to be that it is not a serious offence. It takes two to commit adultery as pointed out by McDermott J (at 13) in that case. On a purely moral question both parties would be wrong. But it seems the Act was meant to keep peace and good order as it is often heard that fights break out because someone else “steals” another man’s wife. Andrew J (at 11) suggests that the Village Courts Act (Ch No 44) is sufficiently geared to regulate peace and good order in the village so the Native Administration (TNG) Act is not necessary. While it is true that the majority of the people live in the villages, it is also true that many people live in and around the cities and towns. There are always fights at compounds and markets or sports fields or streets because somebody else’s spouse was “stolen”.

The main purpose of an act of adultery being an offence seems to be to prevent a breach of the peace which is still necessary. If it was to protect morality alone it might be attacked on the ground that it was unfair in that it applied only to one partner (against whom a complaint was made) and that it applied only to one section of the community. This seems to be contrary to the principle of equality under the law. It ought to apply to all or it ought not to apply at all. It would not be totally correct to say however that the courts should not enforce moral rules at all. There is a question of over reach by courts but it is a question of degree. Not all sin is crime nor all crime is sin. Maude J’s exclamation that “we are not a court of morals” should not be exaggerated: R v Silver [1956] 1 WLR 281. Nor a dogmatic statement such as “it does not belong unto the magistrate to make use of his sword in punishing everything, indifferently that he takes to be a sin against God” should be taken as without limits: Crime and Immorality (1969) 32 Mod LR 648 at 650. Some moral principles are enforced vigorously by law. For example, the principle like the union of one man and one woman to the exclusion of all others which emanates from the Christian principles is enforced by the Marriage Act (Ch No 280) and by the Criminal Code (Ch No 262). Any breach of this principle is a serious offence punishable for a term not exceeding five years: s 57 of the Marriage Act and s 360 of the Criminal Code. It was well done in the House of Lords in Shaw v Director of Public Prosecutions [1961] UKHL 1; [1962] AC 220 where all the Lord Justices left the question of morality to the jury men and women to decide whether the immoral act complained of was punishable.

In Papua New Guinea we have no jury system and such a question cannot be left to the members of the community. But the people’s representatives in the Parliament since Independence have not abolished or amended the offence of adultery under the Native Administration (TNG) Act. The law makers may or may not have considered the question. Perhaps it wasn’t worth the time. But the law is still in the book.

As to the general question of whether or not the succession of “visits” were made because of an early invitation by the occupant, I had a look at the court depositions. Mrs Niaka gave inconsistent evidence. In support of her statement that she never talked to the appellant earlier in the evening she said she never knew the appellant before. Subsequently she said the appellant came twice before and her husband chased him away. Was she hiding anything? Even the appellant changed his testimony. First he said Mrs Niaka invited him. Later when faced by the husband, he said he went for the two girls that were with Mrs Niaka.

As a judge of an appellate court I am removed from the witnesses. Apparently the learned magistrate did not believe the appellant. The learned magistrate had an advantage in that he was able to hear the witnesses as well as he was able to observe their demeanour. Any doubts in his mind might have been removed by the witnesses and the appellant’s demeanour in court. In the final analysis I cannot see anything that the learned magistrate had done in relation to guilt or innocence that may cause me to believe and find that there was a miscarriage of justice.

In so far as the punishment is concerned, I pay heed to what I said in relation to the punishment for an act which is against morality. The appellant’s intention was clear. If he was accepted it would have led to committing an offence of adultery. By running away earlier he showed that he was not prepared for a serious crime such as a rape or break, enter and stealing. An act of adultery, though punishable, is not a serious offence. The learned magistrate of course was caught by the dictate of the Parliament as held in Supreme Court decision in Supreme Court Reference No 1 of 1984 [1984] PNGLR 418 and The State v Mathew Peters [1984] PNGLR 387. These were decided after the learned magistrate’s decision but they confirmed what courts are required to do. The Parliament has not however taken away the discretions in s 138 of the District Courts Act. How these discretions may be exercised have been well discussed by different judges at different times since the minimum penalties legislation was introduced. Suffice is to refer to two decisions of Pratt J in Ito Memairi v Nelson Guia [1984] PNGLR 66 and Swann v Simon Sul (Unreported National Court judgment N 454(M) of 5 March 1984). The appellant had an unblemished record and his superiors speak highly of him. Indeed it appeared to me it was their instigations that led to this appeal. The special feature of this case was that the only element of criminality present which would make the appellant’s presence near or at the Niaka’s house unlawful or without lawful excuse would have been his intent to have sexual intercourse with a married woman. Adultery is not a serious offence such as rape, attempted rape or break, enter and stealing. The punishment for adultery provided by s 14(2) of the Native Administration (TNG) Act is a fine not exceeding K6 or imprisonment for a term not exceeding six months or both. The minimum punishment for unlawfully being on premises is twelve months. In these circumstances I think the learned magistrate erred in not exercising the discretion under s 138 thus I find that there was miscarriage of justice.

I order that the conviction be quashed and that the appellant be released on probation. I order that the appellant appear before the senior magistrate in Mt Hagen and enter into a recognizance in the sum of K100 and be of good behaviour for eighteen months.

Orders accordingly

Lawyer for the appellant: N Kirriwom, Public Solicitor.

Lawyer for the State: L Gavara-Nanu, Public Prosecutor.