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Madaku v Wau [1973] PNGLR 124 (13 December 1972)

[1973] PNGLR 124

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

MICHAEL MADAKU

V

PATRICK WAU

Kieta & Port Moresby
Minogue CJ

13 September 1972
21 November 1972
13 December 1972

CRIMINAL LAW - Local Court - Jurisdiction - Breach of custom - Whether certificate under s. 15 of the Local Courts Ordinance necessary - Native Customs (Recognition) Ordinance 1963, s. 8[cxix]1 - Local Courts Ordinance 1963, ss. 13 (c)[cxx]2, 15[cxxi]3.

P. W. the respondent and the father of a girl named Gula made complaint that M. M. the appellant “did have sexual intercourse with one Gula (the daughter of P. W.) who is his ‘clan sister’ (the girl’s mother and M’s mother are sisters) thereby breaching an extremely strict traditional custom,” and claimed $200.00 damages. A Local Court magistrate, after hearing evidence (which was not recorded) from a village elder as to certain aspects of the alleged custom, from M. M. the accused, from the girl Gula, from one N. O. and from the girl’s mother in that order, awarded an amount of $100 to the respondent which he described as damages.

On appeal

Held

(1)      The complaint was one brought for breach of traditional custom, and as such the breach alleged did not fall within any of the specific subject matters set out in s. 8 of the Native Customs (Recognition) Ordinance, 1963; accordingly a court could only assume jurisdiction pursuant to s. 8 if it considered “that by not taking the custom into account injustice will or may be done to a person”.

(2)      The Local Court had and has jurisdiction in respect of the breach alleged by virtue of s. 13 (c) of theLocal Courts Ordinance 1963 by which the Local Court has jurisdiction over “all matters arising out of and regulated by native custom, other than such matters as are within the exclusive jurisdiction of the Lands Titles Commission.”

(3)      As breach of the custom alleged could be justiciable by virtue of s. 8 of the Native Customs (Recognition) Ordinance 1963 in a Local Court or District Court and in the Supreme Court, the most that a Local Court magistrate could say was that jurisdiction may be vested in a District Court, and it was not necessary in the circumstances for the magistrate to certify pursuant to s. 15 of the Local Courts Ordinance 1963-1966, that it was expedient for the matter to be heard and determined by the Local Court.

Penaja Iapnava v. Severnas Moyas [1971-72] P. & N.G.L.R. 266 referred to.

(4)      In the circumstances there had been a substantial miscarriage of justice within the meaning of s. 43 (3) of the Local Courts Ordinance; the appeal should be allowed and the matter remitted for rehearing by another Local Court magistrate.

Observations made generally on the conduct of proceedings in Local Courts and the desirability of furnishing appellate courts with particulars of any substantial miscarriage of justice alleged by an appellant.

Appeal

This was an appeal from the judgment of a Local Court magistrate at Kieta awarding an amount of $100 described as damages in respect of a complaint made by the respondent, Patrick Wau, the father of a girl named Gula, that the appellant Michael Madaku “did have sexual intercourse with one Gula (the daughter of Patrick Wau) who is his ‘clan sister’ (the girl’s mother and Michael’s mother are sisters) thereby breaching an extremely strict traditional custom”. Further relevant matters appear in the reasons for judgment.

Counsel

G. Keenan, for the appellant.
B. Benson, for the respondent (Crown).

Cur. adv. vult.

APPEAL FROM LOCAL COURT

13 December 1972

MINOGUE CJ: This is an appeal from the Local Court at Kieta. The matter was first brought on before me at Kieta in July last and adjourned to Port Moresby for further and fuller argument.

On 8th February, 1972, the respondent, who is the father of a girl named Gula, made a complaint that the appellant on or about 8th July, 1971, at Rorovana “did have sexual intercourse with one Gula (the daughter of Patrick Wau) who is his ‘clan sister’ (the girl’s mother and Michael’s mother are sisters) thereby breaching an extremely strict traditional custom.” The respondent claimed damages in the amount of $200 from the appellant.

The matter came on for hearing before a Local Court magistrate on 10th February, last and the magistrate awarded an amount of $100 to the respondent which he described as damages. From the Court record the proceedings seem to have taken a somewhat haphazard course. The first witness was an ex-Councillor and village elder who testified that in a matrilineal society such as that to which the appellant and the girl Gula belonged they were members of the same clan and were known as “clan sisters”. Marriage and sexual relations between clan sisters are strictly forbidden as are sexual relations between a married man such as was the appellant as the witness stated, and a single girl. He went on to say that in times of old if a man was found to have had sexual relations with his “clan sister” the punishment was death. The witness was not recorded as telling of any current custom. He was followed into the witness box by the appellant who denied intercourse and asserted that he was in some way acting on behalf of the girl in connection with an allegation of intercourse between her and one Noel Omi. After he had given evidence the girl Gula testified as to the intercourse between herself and the appellant, which she alleged was had under duress. Next came the man Noel Omi who admitted intercourse with the girl but further stated that she named the appellant as being the father of a child which she apparently had had or was about to have. The record does not state whether this nomination was made in the presence or hearing of the appellant and there is no note of his reaction (if any) to her assertion. Finally, evidence was given by the mother of the girl who, inter alia, swore that the appellant was well known as a liar and that she wished to see him banished from their village.

A document headed “Reasons for Judgment” was forwarded to this Court as part of the Local Court record. I have some doubt whether this document is a record of the reasons given at the time that the magistrate pronounced his decision, but I do not think this of significance. The reasons set out in the document are as follows:

“Having heard the complaint of Patrick Wau I then determined what the law according to native custom was. By questioning several village elders I found that sexual relations and marriage between first cousins of the same clan is strictly forbidden and that previous to the introduction of Western law, the penalty for a breach of this customary law was death. This penalty has now been changed to conform with introduced law, and compensation in the form of cash and/or kind is now paid.

On taking the depositions of Michael Madaku, Gula and Noel Omi, it became apparent to me from both the depositions and the answers given to questions (which were unfortunately not recorded), put by myself to the defendant and Gula, that the defendant was guilty.”

From a perusal of the record the Court does not seem to have followed the procedure laid down in s. 34 of the Local Courts Ordinance 1963-1966 in that it did not first hear the evidence of the complainant followed by his witnesses before proceeding to hear the evidence of the defendant, nor does it appear that the parties were advised of their right to cross-examine. Furthermore the magistrate does not seem to have adequately carried out the provisions of s. 48 whereby he is required to take minutes of evidence given. According to his reasons for judgment he determined what the law according to native custom was by questioning several village elders. Apart from the evidence of the first witness, Wau Gioni, there is no record of any evidence of native custom— which in the view I take is the foundation of the court’s jurisdiction in this matter. Wau Gioni is not recorded as having said anything in relation to the custom of payment of compensation. Again, the magistrate refers to questioning by himself of the appellant and of the girl but these questions were as he himself said “unfortunately not recorded”. However, in a letter forwarded to the Registrar of this Court on 13th September last the magistrate stated that all subsections of s. 34 were complied with with the exception of sub-s. (d). That subsection provides that if the defendant does not admit the complaint the Court shall first hear the evidence of the complainant followed by his witnesses and may then proceed to hear the evidence of the defendant followed by his witnesses. The magistrate went on to state in his letter that with the progress of the hearing of a case such as this in the Local Court new witnesses for the complainant may come to light while evidence for the defence is being given and that it is therefore difficult to adhere strictly to the requirements of the subsection.

As the evidence before me does not show a basis for the claim for compensation or damages it was submitted that the appeal be allowed and the decision of the magistrate reversed. Whilst it is clear that he heard some evidence which he appears to have accepted and upon which he in part based his decision, the matter comes before this Court in such an unsatisfactory state that I would be inclined if that course be allowed to send it back for rehearing.

However, there was a ground taken on the appeal which if upheld could render a rehearing nugatory. That ground is that the magistrate had no jurisdiction to hear and determine the complaint. Mr. Keenan, for the appellant, sought to justify this ground on the basis that the complaint was really founded on the old common law cause of action of seduction. It was, so he submitted, a complaint by a father based on an act of sexual intercourse between his daughter and the appellant. Section 13 (1) (b) of the Local Courts Ordinance 1963-1966 gives jurisdiction to a Local Court over all civil actions at law or in equity. If this section stood alone a Local Court would clearly have jurisdiction to try an action for seduction but, the argument ran, s. 15 imposes a prerequisite to jurisdiction. By that section it is enacted that:

“15.    Subject to the provisions of Part V of this Ordinance, if jurisdiction in respect of a matter, whether civil or criminal, is vested in a Local Court and also in some other Court, proceedings in respect of that matter may be commenced in and heard and determined by the Local Court where that Court certifies that it is expedient that the matter should be so heard and determined.”

It was submitted that there must be a certification that it is expedient that the matter be heard and determined in a Local Court rather than in some other court in which jurisdiction is vested before a Local Court magistrate can enter upon a hearing. In this case there was no such certification. Where jurisdiction is vested also in the District Court my brother Frost in Penaja Iapnava v. Severnas Moyas[cxxii]4, decided at Rabaul on 26th July, 1971, came to the conclusion that s. 15 does raise a point of jurisdiction and he applied the dictum of Lord Goddard C.J. in Stefani v. John[cxxiii]5: “Summary jurisdiction is entirely a matter of statute. The justices have power to deal with cases summarily only if they are given power by statute to do so, and if some provision in the statute is not complied with it follows that they have no jurisdiction to hear and determine.” Frost S.P.J. held that as there was jurisdiction in the District Court and as the Local Court had not certified it to be expedient that it should hear and determine the matter it had no jurisdiction. He was able to reach his conclusion with the aid of s. 14 (1) (b) and s. 38 (c) of the Local Courts Ordinance.

Jurisdiction in an action for seduction is specifically withdrawn from the District Court (see District Courts Ordinance 1963-1970, s. 29 (4) (c)). Thus neither s. 14 (1) (b) nor s. 38 (c) of the Local Courts Ordinance can be prayed in aid in this case. However whilst I am not to be taken as so deciding I am inclined to think that the certificate of expediency required by s. 15 goes generally to jurisdiction and that if this were an action of seduction Mr. Keenan’s argument might well succeed as there clearly would be jurisdiction in the Supreme Court. I would not think that there must be a formal certificate. I think that the section would be satisfied whenever it is made clear that the magistrate has adverted to the section and decided on proper grounds that it is expedient that he should hear and determine the matter.

Whilst I am of opinion that on the facts disclosed on the material before me an action of seduction would lie I am equally of opinion that the complaint brought before the magistrate is not to be characterized as such. It is a complaint brought for the breach of a traditional custom and the essence of it is the forbidden act of intercourse within a particular clan relationship. Although by s. 7 of the Law Reform (Miscellaneous Provisions) Ordinance 1962 the loss of service to the plaintiff and the relationship of master and servant between the plaintiff and the woman or girl seduced are conclusively presumed, those matters are still of the gist of the action. There appears to be no necessity for such a relationship in the action brought in this case. But it is still necessary to consider whether and whence the Local Court magistrate had jurisdiction and whether a certification of expediency was required under s. 15 of the Local Courts Ordinance before he could assume jurisdiction. The answer to the latter question depends upon whether the District Court and for that matter the Supreme Court also has jurisdiction.

By s. 13 of the Local Courts Ordinance the Local Court is given jurisdiction (subject to a monetary limit) over “(c) all matters arising out of and regulated by native custom, other than such matters as are within the exclusive jurisdiction of the Lands Titles Commission” and it is to that jurisdiction obviously that the complainant in this case sought recourse. Before considering this section it is necessary to consider relevant provisions of the Native Customs (Recognition) Ordinance 1963. Section 6 (1) of that Ordinance is as follows:

“6(1)   Subject to this Ordinance, native custom shall be recognized and enforced by, and may be pleaded in, all courts, except in so far, as in a particular case or in a particular context:

(a)      it is repugnant to the general principles of humanity;

(b)      it is inconsistent with an Act, Ordinance or subordinate enactment in force in the Territory or a part of the Territory;

(c)      its recognition or enforcement would result, in the opinion of the court, in injustice or would not be in the public interest; or

(d)      in a case affecting the welfare of a child under the age of sixteen years, its recognition or enforcement would not, in the opinion of the court, be in the best interests of the child.”

As will be seen the section is mandatory in its terms and directs all courts to recognize and enforce native custom. Native custom is defined by s. 4 as being “the custom or usage of the aboriginal inhabitants of the Territory obtaining in relation to the matter in question at the time when and the place in relation to which that question arises, regardless of whether or not that custom or usage has obtained from time immemorial.” The section has a dual function—to provide for both recognition and enforcement of native custom. The command for recognition I think is intended to enable a court to take native custom into account in a number of situations not necessarily involving direct enforcement; for example, concluding as to a state of mind or as to the reasonableness of conduct. Enforcement on the other hand relates to the imposition of sanctions either civil or criminal in respect of conduct which breaches the customary norm. Section 7 of the Ordinance restricts the ambit of both recognition and enforcement in criminal cases, and s. 8 in civil cases. I am somewhat puzzled by the change of language in these latter sections which direct that native custom shall not be taken into account except for the purpose of and in relation to certain matters, but I am of the view that each of these sections is attempting compendiously to say in what circumstances native custom shall be either recognized or enforced. A perusal of s. 10 of the Ordinance convinces me that it is the clear intention of the legislature that the courts shall in appropriate cases apply and give effect to native custom.

I return to s. 8 to consider whether an action for breach of the custom here in question is justiciable in all courts. The section reads as follows:

“8.      Subject to this Ordinance, native custom shall not be taken into account in a case other than a criminal case, except in relation to:

(a)      the ownership by native custom of or of rights in, over or in connexion with native land or any thing therein or thereon or the produce thereof, including rights of hunting or gathering;

(b)      the ownership by native custom of or of rights in, over or in connexion with the sea or a reef, or in or on the bed of the sea or of a river or lake, including rights of fishing;

(c)      the ownership by native custom of or of rights in, over or to water;

(d)      the devolution of native land or of rights in, over or in connexion with native land, whether on the death or on the birth of a person, or on the happening of a certain event;

(e)      trespass by animals;

(f)      marriage, divorce or the right to the custody or guardianship of infants, in a case arising out of or in connexion with a marriage entered into in accordance with native custom;

(g)      a transaction which the parties intended should be, or which justice requires should be, regulated wholly or partly by native custom and not by law;

(h)      the reasonableness or otherwise of an act, default or omission by a person; or

(i)       the existence of a state of mind of a person,

or where the Court considers that by not taking the custom into account injustice will or may be done to a person.”

Clearly the breach alleged does not fall within any of the specific subject matters set out in the section and a court can only assume jurisdiction if it considers that by not taking the custom into account injustice will or may be done to a person. This is a consideration which must be given to each custom and set of circumstances as they come before a court. In this case the record does not disclose the scope or ambit of the custom nor how injustice would arise if it were not enforced. I should have thought that persistence of the former custom of punishment by death would clearly cause injustice although now the likelihood of the exaction of such a punishment in the face of the Criminal Code may be small. But it is conceivable that there are many ways in which injustice could be done to a person or persons in the community concerned if a custom which is designed to preserve the social fabric of the community be not enforced. On the evidence recorded in this particular case I am unable to pronounce whether this particular custom should be enforced; that is a matter for a tribunal of first instance to investigate. However, it seems to me that breach of this custom could be justiciable by virtue of s. 8 in a Local Court or District Court and in the Supreme Court.

At the time of the enactment of the Native Customs (Recognition) Ordinance (No. 28 of 1963) Local Courts were not in existence. The Local Courts Ordinance (No. 65 of 1963) was assented to on 24th October, 1963, (which I note was the date of coming into operation of the Native Customs (Recognition) Ordinance) but not brought into operation until 4th January, 1966. It was by this Ordinance that specific jurisdiction with respect to native custom was conferred by s. 13 (1) (c) (supra). I have found difficulty in determining the relationship between the two Ordinances. The Local Courts Ordinance is not in terms subject to the Native Customs (Recognition) Ordinance nor does it in terms purport to repeal any of the provisions of the latter. Yet it seems to me to be the intention of the legislature to give the Local Courts the widest possible jurisdiction on matters arising out of native custom with the specific saving or exclusion of matters within the jurisdiction of the Lands Titles Commission. In my opinion the courts should strive to give as full effect as possible to both Ordinances.

As I see it the jurisdiction conferred by the Local Courts Ordinance is at once wider and narrower than that conferred on a Local Court by the Recognition Ordinance. Jurisdiction over all matters arising out of and regulated by native custom would seem to absolve a Local Court from the consideration of potential injustice required by s. 8 of the Recognition Ordinance for the assumption of jurisdiction. The curious result does seem to follow that a Local Court could still be required to consider this matter in deciding whether jurisdiction is vested in a District Court so that it has to make the explanation of a defendant’s entitlement to have the matter dealt with by a District Court commanded by s. 34 (c). It is narrower in that the specific exclusions of such matters as are within the exclusive jurisdiction of the Lands Titles Commission deprives a Local Court of its power to enforce native custom in cases where the subject matters set out in s. 8 of the Recognition Ordinance in at least sub-ss. (a), (b) and (c), are involved. It seems to me to be asking altogether too much of a magistrate of a Local Court to decide whether jurisdiction in respect of a matter before him is vested in some other court where that vesting is dependent upon an opinion to be formed by that other court. In my view the most that a Local Court magistrate can say in a case such as the present is that jurisdiction may be vested in the District or Supreme Court.

I have come to the conclusion that the Local Court had jurisdiction in this case by virtue of s. 13 (c) of the Local Courts Ordinance. I cannot see that it must have been concluded by the magistrate that jurisdiction is vested in another court so as to require him to certify that it is expedient that the matter should be heard and determined by him, and accordingly I would hold that he had and has jurisdiction in this case.

There remains for consideration what course this Court should follow. The appeal was grounded, inter alia, on the magistrate’s failure to observe proper procedure in the way I have set out earlier and also on his decision being against the evidence and the weight of the evidence. During the course of argument it became apparent to me that the appellant’s real grievance is that the magistrate’s decision worked injustice against him because he had not committed what was in effect a heinous offence in his society. The magistrate’s failure to carry out the procedural requirements as I have already said leaves the matter in an unsatisfactory state. It could be (although here the imperfect record compels me to speculate) that ultimately the case depended solely on the credibility of the girl vis-a-vis that of the appellant. The breach of custom obviously was a serious matter. The action appears in its nature to be punitive and to be capable of leading to serious consequences for the appellant. On the analogy of the courts’ approach to a finding of adultery in matrimonial causes the proof should be clear and cogent and corroboration although not essential should be sought. The magistrate does not appear to have directed his mind to considerations of this kind. I am fully conscious of the great weight which should be given by an appeal court to the finding of the court from which an appeal is brought when such a finding depends upon the credibility of witnesses. This may be such a case. The failure to record all the evidence does not enable me properly to consider the final ground of appeal and, further, neither the record of evidence nor the magistrate’s reasons show the precise ambit of the custom relied upon—for example, there is nothing to show who can claim the compensation nor to whom it should be paid. Section 43 (3) of the Local Courts Ordinance provides that an appeal shall be allowed only if it appears to the Supreme Court that there has been a substantial miscarriage of justice. In this case there appears to have been a miscarriage in that the appellant does not appear to have had the kind of hearing to which he is entitled. I am unable to say that the magistrate was wrong in the conclusion which he reached but I am equally unable to say that he could reasonably have come to the conclusion which he did. In my opinion the hearing appears to have miscarried to such an extent that a rehearing is desirable. In all the circumstances I think that the proper order is for the matter to be reheard by another Local Court magistrate and I so order.

Whilst it forms no part of my order I think it desirable to add a few observations as to the hearing of cases such as this. I do not think it to be expected that proceedings in the Local Court should be conducted with the same formality as is observed in a superior court, but the carrying out of the procedure set out in s. 34, albeit with some degree of informality, does serve to ensure that justice is seen to be done. I can understand that in a case of this nature in which there would no doubt be intense local feeling among people who wish to have their say a magistrate might well have difficulty in conducting the proceedings in an orderly and progressive fashion, particularly where he is seeking guidance on local custom, and may well be having advice given to him from several quarters at the same time. I note that s. 5 of the Native Customs (Recognition) Ordinance enables him to inform himself in a quite informal manner. But at the same time I think he should take care to minute as accurately as he can the advice which he does receive, the books, treatises or other material which he may have consulted and to state the evidence (from whatever source it may have come) upon which he places reliance. In a case such as the present the recording of the custom which is alleged in as much detail as possible is important not only for the benefit of an appeal court but also for the community in which the custom is in operation.

Finally, I think it desirable generally in appeals from Local Courts that the appellate court be furnished with some particulars of the substantial miscarriage of justice alleged by the appellant. The fact that the procedure prescribed is not rigidly followed is not necessarily enough. It is for the appellant to satisfy the appeal tribunal that the failure to follow the procedure has resulted in substantial prejudice to him—for example, in his ability to present his case or in the Court’s resultant failure to properly consider the real issue or issues before it.

Appeal allowed. Remitted for rehearing before another Local Court Magistrate.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.
Solicitor for the respondent: P. J. Clay, Crown Solicitor.

[cxix]Infra p. 130.
[cxx]Infra p. 129.
[cxxi]Infra p. 128.
[cxxii] [1971-72] PNGLR. 266.
[cxxiii][1948] 1 KB. 158, at p. 161; [1947] 2 All ER. 615, at p. 617.