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Appendix 3. Review of Homosexuality Cases

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Appendix 3. Review of
Homosexuality Cases
For which written judgements are available
This review is compiled from that commenced in the early 1990s by Justice
Woods, and continued in the Law Faculty, UPNG, until digitised case reporting
commenced with the publication of PNGinlaw in the latter part of that decade.
I have added some subsequent updates.
1957
Barker v. R [1967-68] PNGLR 204, appeal to High Court of Australia
from Supreme Court No. 92 18/8/56.
Lae: Expatriate convicted of ‘unlawfully and indecently dealing’ (by handling
private parts) an expatriate boy aged under 14 (one of several) in a swimming
pool changing room.
1961
R v. John Bomai [1964] PNGLR 278
JB, from Chimbu, was convicted before a Court of Native Affairs of sodomy
while in Lufa gaol on another sentence. He strenuously denied this act and
claimed the charge was highly insulting to Chimbu people. It led him to murder
his accuser, but on a defence of provocation, this was reduced to manslaughter.
1962
R v. Bates (Unreported) Supreme Court No. 255 9/10/62
Rabaul. Drunken expatriate attempted to procure two ‘natives’ for ‘acts of gross
indecency’, offered a £1 note.
313
Name, Shame and Blame: Criminalising Consensual Sex in Papua New Guinea
1969
R v. Kausigor, R v. Piliu (Unreported) FC3 7/11/69
Wewak. Kausigor (26, from Wewak Sub-District) and Piliu (19, from village near
Vanimo) met at a tavern around midday, went to nearby bushes for sex. K. then
gave P. a small sum of money. K claimed to have been solicited by P. An observer
threatened to tell Piliu’s brother.
Antecedent reports claimed that the crime was against ‘local’ (presumably
Wewak) custom. New evidence at appeal rehearing, from a Catholic priest and
contradicting, from the prosecution. Fr. Heinemans has 16 years’ experience
in ‘the Sepik area’ and considered that before European contact, homosexual
behaviour may have been contrary to Sepik customs. But since the introduction
of contract labour and plantation dormitory housing, homosexuality was ‘very
common and widespread where there are large labour lines. (See also Reed 1943,
p. 220: where there is no normal sexual outlet in the labour lines, homosexual
practices are the easiest adjustment—very common and increasing. ‘The natives
have a growing awareness of the extreme revulsion with which Europeans view
such behaviour, and they know of the harsh prison sentences that are frequently
imposed for it. In the aboriginal cultures, however, there existed no such severe
sanctions on this form of conduct, and thus the native will try to get away with it
when he can.’) It has been introduced back to villages by returning labourers so
that it was now ‘quite common,’ but not approved by those who do not indulge
in it, though regarded as less serious than sex between men and unmarried girls,
which interferes with bride price and exchange arrangements, and other family
interests involved in negotiating marriages. Homosexual behaviour is not seen
as serious because it is not a threat to society and traditions. A District Officer
prosecution witness cast doubt on these assertions but the court believed the
priest. A reference to ‘six known instances before the Court.’
Appeal Minogue ACJ, Frost J, O'Loghlen AJ (Unreported) FC 3
Sentences reduced from three years to 18 months.
1970
R v. Byrne [1971-72] PNGLR 1
Accused was arrested and charged with carnal knowledge against the order of
nature, committing an act of gross indecency with a male person and unlawful
and indecent assault. Released on bail on his own recognisance. Disappeared.
314
Appendix 3. Review of Homosexuality Cases
1971
R v. Stanley Sydenham Oxenham & Hendrick Lapanga Patau
Prentice J. Kieta, Bougainville, 2nd Dec 1971
Papua New Guinea National Archives Acc 454 Box 4605 File 5-9087 (Crown
Prosecutions file).
1972
R v. Mama Kamzo (Unreported, Unnumbered) No.671, 17 Feb 1972
Frost SPJ Port Moresby 17 Feb 1972
Criminal law—carnal knowledge. Not guilty; homosexual act; judge defined
permitting carnal knowledge as an act of free will; he ruled accused only
submitted to act; reversed in R v M.K.
R v. M.K. [1973] PNGLR 204
Appeal: Rubber plantation labourer permitted his bosboi to have sex with him
under the threat that he would be reported for dereliction of duty. The trial
judge acquitted on the grounds that free will permission must be proved, but
referred the matter to the Full Court, which overturned the qualification.
Prentice J. quotes from Howard 176: many sex offences are designed to protect
the victim. Others however, those prohibiting buggery, other deviant sexual
practices between humans, and sexual contact with animals ‘are not designed so
much for private protection as for the enforcement of officially received opinions
on particular aspects of sexual morality.’ Buggery is ‘traditionally hedged about
with pejorative adverbs and adjectives in statutes, and in indictments…. The
State until recent times has asserted an interest against its occurrence, to the
extent of constituting it an assault despite its being a consensual act.’ ‘[L]ong
continuance of legislative abhorrence for this class of deed, apparently intended
to be carried on into the Criminal Code…’
R v. Leni Gone of Tawat and Joseph Oura of Kumuki
Prentice J Kieta, Bougainville, 10 May 1972
Papua New Guinea National Archives Acc 454 Box 14619 File 5-9351
315
Name, Shame and Blame: Criminalising Consensual Sex in Papua New Guinea
1972
R v. Siune Wel Acc 454 Box 14625 Files 5-9471
R v. Hugh William Sitai
5-9468
R v. Yawi Huaimbore
5-9474
Frost SPJ Kundiawa, Chimbu, June 1972
1972
R v. Christopher Leech
Supreme Court Archives Box 2038 SCRA Prentice J. Notebooks 37-38 1972
Indictment of 5 May 1972
s.208 permitted Peter Yakai to have carnal knowledge 7 Feb 1972. Plea: not guilty.
Reliable witness ultimately arrested for wilful murder of another European.
1973
R v. Joseph Mambiam and Raphael Warasurin
Acc 454 Box 14,654 File 10058
Wewak, Committal hearing 1/10/73, discharged. Prisoners in Boram. Evidence
of another prisoner. RM R.Tovue
1975
Secretary for Law v. Dewake [1975] PNGLR 100
Man 20 from Morehead, Western Province, holidaying in Port Moresby, took a
small child about 3 from the same area to the beach and minimally penetrated
his anus. The people of PNG hold strong concern that young children should
not be exposed to such sexual treatment as this, and the sentence should reflect
this.
316
Appendix 3. Review of Homosexuality Cases
1990
State v. Bui (Unreported) N944 14/12/90
Brunton J Goroka
Eastern Highlands Province. While imprisoned for rape, the accused forced
sex on another detainee. He told the Court that homosexual acts were not
uncommon in prison, and usually did not get punished. Judge (Brunton) said
that homosexuality is a personal disposition, not a medical condition or a
social affliction. Allowed remissions because to keep him in prison would only
exacerbate the situation.
1991
State v. Pos [1991] PNGLR 208
Jalina J
Man 20 from Morobe who migrated to East New Britain as a plantation labourer
but is not employed. While in prison, he with others threatened another man
into submitting to sex from at least 4. Judge (Jalina) considered it the behaviour
of animals, awarded deterrent punishment, referred Dewake.
1993
State v. Kuengu [1993] PNGLR 124
Doherty J
Man 29 forced sex on 16-year old remandee in prison in Rabaul. Judge (Doherty)
considered it analogous to rape ‘an act of forced sexual connection without the
consent of the victim.’ Because of Constitution S.55, the same factors should be
considered in sentencing. Community attitudes differ with regard to sodomy.
Very few communities where it is totally acceptable, but in some it is more
tolerated than others, in some it invokes a high degree of abhorrence. But aware
of no community in which forced connection of this kind is acceptable.
317
Name, Shame and Blame: Criminalising Consensual Sex in Papua New Guinea
1993
State v. Merriam [1994] PNGLR 104
Accused was American founder and director of a mission in Eastern Highlands
Province, alleged had sex with a 7–8 year-old boy whom he and his wife took
in and treated like a son. Court considered it a typical child sexual abuse case
(stated that nearly all victims of paedophiles were boys).
Court notes that Sections 213(4) defilement of girls under 12, 216(3) defilement
of girls under 16 and of idiots, 218(2) procuring a girl or woman and 219(2)
procuring a girl or woman by drugs all require corroborative evidence, but
S.210 among others in the Division does not. Rape requires recent complaint.
1997
State v. Johnny Mala (Unreported, Unnumbered) CR96 of 1997, 26
February 1997
Pitpit AJ, Tabubil, Western Province
Premeditated and consensual sexual intercourse between two male adults. Plea
of guilty. Carnal knowledge per anum, need for deterrent sentence.
318
This text taken from Name, Shame and Blame: Criminalising consensual sex in
Papua New Guinea, by Christine Stewart, published 2014 by ANU Press,
The Australian National University, Canberra, Australia.
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