WESTERN CRIMINAL LAW IN NEW GUINEA

• NCJ Number: 43822
• Journal: Australian and New Zealand Journal of Criminology Volume: 7 Issue: 1 Dated: (MARCH 1974) Pages: 5-16
• Author(s): R S O'REGAN
• Date Published: 1974
• Length: 12 pages
• Corporate Author: Southdown Press
• Publication Format: Article
• Language: English
• Country: Australia
• Note: BASED ON A PAPER PRESENTED AT THE TWENTY-FIFTH ANNIVERSARY CONGRESS OF THE WORLD FEDERATION FOR MENTAL HEALTH IN SYDNEY, NEW SOUTH WALES, ON OCTOBER 11, 1973, ON THE THEME 'CULTURES IN COLLISION'

Annotation

PROBLEMS IN CORRELATING THE CONCEPT OF CRIMINAL RESPONSIBILITY AS DEFINED UNDER AUSTRALIAN LAW WITH THE CONCEPT OF MORAL CULPABILITY HELD BY THE PEOPLE OF NEW GUINEA ARE DISCUSSED.

Abstract

AT THE TIME THE ARTICLE WAS PRESENTED, AUSTRALIA WAS SOON TO LEAVE AN INDEPENDENT NEW GUINEA WITH A SYSTEM OF CRIMINAL JUSTICE PREDOMINANTLY WESTERN IN ORIGIN, STYLE, AND CONTENT, BUT MODIFIED TO SUIT MELANESIAN CONDITIONS. SIGNIFICANT DIFFERENCES BETWEEN THE IMPORTED AND INDIGENOUS CRIMINAL LAWS INCLUDE THE FOLLOWING: (1) THE FORMER IS CONCERNED PRIMARILY WITH PUNISHMENT, THE LATTER WITH RESTITUTION AND RESTORATION OF THE SOCIAL EQUILIBRIUM; (2) ENGLISH LAW IS CONCERNED WITH INDIVIDUAL GUILT, WHEREAS MELANESIAN LAW MAY CONSIDER ALL MEMBERS OF AN OFFENDER'S CLAN TO BE EQUALLY GUILTY; (3) AUSTRALIAN CRIMINAL LAW IS DESIGNED FOR A HOMOGENOUS SOCIETY, WHEREAS NEW GUINEA IS A HIGHLY FRAGMENTED SOCIETY IN WHICH HEINOUS CONDUCT IN ONE COMMUNITY IS MORALLY BLAMELESS ELSEWHERE; AND (4) AUSTRALIAN LAW RIGIDLY DEFINES OFFENSES IN TERMS OF THE ACT DONE AND THE INTENT, WHEREAS IN NEW GUINEA THE SAME INTENTIONAL CONDUCT MAY BE A SERIOUS OFFENSE IN ONE SOCIAL CONTEXT BUT NOT IN ANOTHER. ONE APPROACH TAKEN BY THE (ALL AUSTRALIAN) JUDGES OF THE SUPREME COURT HAS BEEN TO TAKE INTO ACCOUNT LOCAL CUSTOMS IN SENTENCING BUT NOT IN DETERMINATION OF GUILT. MORE RECENTLY, THE COURT, AIDED IN SOME CASES BY LEGISLATIVE INITIATIVES, HAS TAKEN LOCAL CUSTOM INTO ACCOUNT IN ITS DECISIONS REGARDING CRIMINAL RESPONSIBILITY. EXAMPLES OF COURT DECISIONS RELATING TO PROVOCATION, NUBILITY AND THE AGE OF CONSENT, IMMATURE AGE, CANNIBALISM, AND SORCERY ARE PRESENTED. IT IS NOTED THAT THE COURT'S FAILURE IN SOME CASES TO CONSIDER LOCAL CUSTOM MAY PROMPT THE LAWMAKERS OF INDEPENDENT NEW GUINEA TO ABANDON THE IMPORTED CODE ALTOGETHER, MODIFICATION OF THE EXISTING CODE IS RECOMMENDED AS AN ALTERNATIVE.