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State v Kua [2000] PGNC 111; [2000] PNGLR 249 (13 June 2000)

[2000] PNGLR 249

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

SUWAIRE MARY KUA

KUNDIAWA: KIRRIWOM J
13 June 2000

Facts

The prisoner, a young woman and a widow in her mid-late 30s pleaded guilty to a charge of concealing the birth of her child that died at delivery, contrary to s 313 of the Criminal Code. Prior to her appearance in court the prisoner had spent five (5) months in custody. After address in mitigation, the prisoner was sentenced promptly and it is considered that the period of five (5) months in custody was sufficient punishment.

In sentencing the court queried the meaning of ‘person’ in s 313 of the Criminal Code and the appropriateness of this charge. Both counsels submitted that the word ‘person’ included the mother. The court accepted this construction given by both counsels the meaning of ‘person’, but expressed the need to apply a more liberal and non-restrictive interpretation of the law.

Held

1. The prisoner is a first offender, she pleaded guilty and expressed remorse.
   
2. Five (5) months already spent in custody was sufficient punishment.
   

Papua New Guinea cases cited

State v Margaret Gara Torovel [1988-89] PNGLR 242.
State v Meli Heti [1977] PNGLR 173.

Counsel

F Kuvi, for the State.
M Apie’e, for the prisoner.

13 June 2000

KIRRIWOM J. This prisoner appeared before me on Tuesday 13 June 2000 and pleaded guilty to concealing the birth of her child that died at delivery, contrary to s 313 of the Criminal Code. The offence carries a maximum penalty of two years imprisonment. She had spent roughly five months in custody prior to her appearance in court. After address in mitigation I sentenced her promptly to the rising of the Court as, given the extenuating circumstances I addressed hereinafter, I considered that the period of five months she already spent in custody was sufficient punishment and reserved to give my detailed reasons today.

This prisoner is a young woman and a widow in her mid-late 30s. She is originally from Kurumugl village, Gembogl but at the material time of this trouble in January 2000 she was residing in Bumagl village, also in Gembogl, her late husband’s village and where she was raising her three children aged 9, 4 and 3 years respectively. She had no intention of leaving her husband’s village. She had a duty to raise her children there.

In expressing her remorse for breaking the law as she put it, she gave a long story as to how the alleged offence was committed. Her story goes to explain her state of mind, her perception of life and about people around her and as to how insecure she felt herself to be and finally as to why she considered inappropriate to tell anyone about her own misfortune and the freak accident happening during premature delivery. The deceased child, the subject of this charge was fathered by a relative of the prisoner’s late husband to whom she was forced into a subsequent second marriage against her wishes. The man also had a wife who was not happy to share her husband with the prisoner and fought her. As a result the prisoner refused to cohabit with the man and forced him away to his own wife and children. But she was already pregnant with his child, an event she vehemently detested. Women gossiped about her for showing no respect to her late husband by becoming pregnant in such a short time after the husband’s death. This gossiping worried her and she found it hard to cope with the embarrassment she forced upon herself due to pressure from one group of her in-laws. Of course she had every reason to be concerned and ashamed because such custom or belief is the norm in many parts of Papua New Guinea. It is a sign of respect to a loved one recently buried that until a certain period lapses and mourning is said to end, a widow or widower sees no other man or woman. But the prisoner’s concern was that it was the pressure from her late husband’s family that she had to marry one of his brothers and she did so just to appease them. In reality she said her mind and her heart was not with the marriage.

On 11 January 2000, the prisoner experienced severe labour pains when she was only seven months pregnant. She went into the bush without telling anyone and finding support against a tree and holding onto a tree branch she delivered the baby who she said ‘fell down and hit its head against the tree stump below’. She said she was weak and unable to prevent the child from falling and hurting itself.

When she discovered that the child was dead she proceeded to the cemetery where she dug a grave alone and buried the child herself unassisted. She saw no need to inform anyone or enlist assistance because they would be demanding compensation for the help, given their attitude towards her. The doctor who exhumed the body some eleven days later and examined it on site found that one side of the child's head was fractured and was consistent with trauma involving a solid object.

The prisoner is a first offender, she pleaded guilty and expressed remorse. She is a simple villager who believes and abides by the village norms as to what is expected of her. This is why she felt obligated to response to her in-laws demands only to find that it made her own life miserable. I have no doubt that she will never want to re-offend again.

Prior to handing down my reasons for sentence, I raised a query with both Counsels regarding the appropriateness of this charge under s 313 of the Criminal Code, which it seems to me from reported cases that no one had ever raised it before. The way the Section is drafted, it implies involvement of a second person besides the mother to be the offender envisaged therein under this section. This is so because s 313 reads:

"A person who, when a woman is delivered of a child, endeavours, by any secret disposition of the dead body of the child, to conceal the birth, is guilty of a misdemeanour whether the child died before, at or after its birth."

Mr Kuvi for the State, and supported by Mr Apie’e for the accused, both submitted that the word ‘person’ included the mother. There are only two reported cases cited in Andrew and Weisbrot on this section but they do not raise this issue. They are The State v Meli Heti [1977] PNGLR 173 and The State v Margaret Gara Torovel [1988-89] PNGLR 242. I note that both cases involved the mother concealing the birth of her dead child after delivery. This question was never raised and the case proceeded undeterred. I also noted that s 312 - Killing unborn child - is similarly worded and even the Queensland Criminal Code equivalent to s 313 which is s 314 is likewise similarly worded. It seems therefore that I must accept the definition of a ‘person’ as including the mother as submitted by both counsels. In accepting the construction as adopted by the lawyers, I am mindful of the need to apply a more liberal and non-restrictive interpretation to the law. But I believe that the section could be better phrased to avoid that ambiguous construction on literal reading of it.

Lawyer for the State: Public Prosecutor.
Lawyer for the Prisoner: Public Solicitor.