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Regina v Kepo [1972] PGLawRp 40; [1975] PNGLR 226 (21 April 1972)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 226 - Regina v Kerry Kepo

[1975] PNGLR 226

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

KERRY KEPO

Port Moresby

Prentice J

21 April 1972

CRIMINAL LAW - Particular offences - Breaking and entering - �Without lawful excuse� - Meaning of - Criminal Code (Queensland adopted) s. 419a

Section 419a of the Criminal Code (Queensland adopted) provides that �Any person who without lawful excuse, proof of which lies upon him, breaks and enters the dwelling house of another is guilty of a crime and is liable to imprisonment with hard labour for three years�.

Held

N1>(1)����� For the purposes of s. 419a of the Criminal Code, the onus of establishing lawful purpose, on the balance of probabilities only, lies on the accused.

N1>(2)����� The lawfulness should be looked for in the circumstances surrounding the break and entry and not merely in the subjective belief of the house-breaker, though the latter could be an element for consideration.

Per curiam: I find the utmost difficulty in accepting that mere belief in the presence inside the house of another of goods owned by a person would permit that person (would constitute lawful purpose for that person) to break and enter the property to effect recovery of the goods. If one were to hold such a belief to justify the breach of an outer door by breaking the lock or hasp; why should it not also justify the smashing of an inner glass door and perhaps the blowing of a safe in which the goods were stored.

N1>(3)����� That a belief by an accused that liquor inside the house of another belonged to him and that he was entitled to get it back, did not constitute lawful purpose within the meaning of the section.

Trial

The accused was charged on indictment with two offences: firstly that he broke and entered a certain house and stole therefrom a quantity of liquor and a bag; and secondly, that he broke and entered the premises without lawful purpose. The accused was acquitted on the first count on the basis that the Crown had not negatived the existence of an honest claim of right to the liquor.

Counsel

R. E. Williams, for the Crown.

W. J Neill, for the accused.

Cur. adv. vult.

21 April 1972

PRENTICE J: The accused has been arraigned on two charges: firstly, that he broke and entered a certain house and stole therefrom a quantity of liquor and a red bag; secondly, that he broke and entered the said premises without lawful purpose, � both charges arising from the one incident on 1st January, 1972.

The indictment was twice amended and again at the close of the Crown case, so as to aver a different ownership of the house alleged to have been entered. The house is a servant�s quarters occupied by one Raymond and his family. The accused apparently went to this house on three occasions, on the first of these occasions he met Raymond. This occasion was Christmas Day, 1971 � the accused went there with two people who gave evidence, friends of Raymond. The accused took a bottle of Bacardi to the premises in a red travel bag which belonged to one of these two witnesses, and was apparently similar to a red bag owned by Raymond, that referred to in the first count. On the accused�s second visit he took to the premises several bottles of liquor. He drank some of the contents with Raymond and is said to have presented the remainder as a gift to Raymond, to have stayed the night and left the next morning. The accused is said to have returned again, that is the third occasion, that night, when the alleged offences occurred. It seems that each time the accused attended Raymond�s house, he was to some, perhaps a considerable, degree under the influence of alcohol.

The evidence, as to the gift of liquor involved in the case, is sketchy. The accused is said via Raymond to have indicated the liquor saying �It�s yours� (Dispela bilong yu) or some such. At the time of the alleged gift it is clear the accused was in a state of considerable insobriety. I find myself left with a reasonable doubt as to whether property in the liquor was intended to and did pass to the complainant Raymond.

The evidence establishes beyond reasonable doubt that on the accused�s last return to the premises no one was at home and the accused took an axe and/or possibly an iron bar and broke the lock or hasp on the door � thereby forcing it, made an entry and took away the liquor the subject of the charge and a red bag the property of Raymond. The accused stated that he did so in the belief that the liquor was his and he was entitled to take it (that there had been no gift to Raymond); and that the red bag was the one in which he had previously taken liquor to the premises from which he inferred a right to use the bag to carry this liquor away. He had no intention of stealing anything.

I am of the opinion that the Crown has not negatived the existence of an honest claim of right to the liquor. Certain different considerations apply as to the bag � but again I consider that the defendant could have had an honest, if mistaken, belief in his right to use the bag for the purpose of carriage of liquor � that again the Crown has not negatived the existence of an honest claim of right.

Accordingly, I acquit the accused of the first count of break, enter and steal.

The second count has caused me no little difficulty. My decision must involve an interpretation of s. 419a (introduced by the Ordinance No. 30 of 1964), a section, I am informed, which is yet without the benefit or complication of an interpretation by this court.

The defence contends that because of the accused�s belief as to his retention of ownership of the liquor, the �break and enter� achieved by him was lawfully purposed. The section places the onus of establishing lawful purpose upon him. This, I understand, to be required to be proved to a civil onus only.

To justify the break and entry � to constitute �lawful purpose� � the accused points to no more than his belief that the liquor inside the house belonged to him and that he was entitled to recapture it. (In his statement to Constable Jameney, he merely excused himself on the ground of drunkenness.) There is no suggestion that the accused made attempts to contact the complainant to arrange for its return. The complainant denies that any such request had been made to him. No emergency is shown nor is direct evidence available of any belief in a right to break and enter.

I find the utmost difficulty in accepting that mere belief in the presence inside the house of another, of goods owned by a person, would permit that person (would constitute lawful purpose for that person) to break and enter the property to effect recovery of the goods. If one were to hold such a belief to justify the breach of an outer door by breaking the lock or hasp; why should it not also justify the smashing of an inner glass door and perhaps the blowing of a safe in which the goods were stored. I apprehend that lawfulness should be looked for in the circumstances surrounding the break and entry and not merely in the subjective belief of the house-breaker, though the latter could be an element in the circumstances to be considered.

The cases of Carter v. Reaper[cclxxvi]¹, Wills v. Williams[cclxxvii]²�and Tiki-Nori v. Thackeray[cclxxviii]³�are submitted to me as authorities touching on the point. Each was a decision on the meaning and effect of �Police Offences� Act sections dealing with unauthorized presence on property. The phrases being construed and the onuses were somewhat different. In particular the words of Hood J � �A wife under the belief that her husband was committing adultery may well have had such an opinion ...� (that is, an honest belief in her right to be present) �and a finding of ... breaking open of doors is not inconsistent with such a belief�, were urged upon me as illustrating the width of interpretation that might extend to a phrase such as �lawful excuse�, and should be extended to the phrase in our s. 419a, �lawful purpose�. In Carter�s case (supra) it had been contended that, in deciding whether a person had been found on premises without lawful excuse, the category of �lawful excuse� should be restricted to cases of legal right and honest belief in the existence of such a right. In declining to accept this proposition Hood J used the words quoted above.

I find I am troubled in following the argument suggesting the application of these particular words. It is clear that the decisions cited to me, and those gathered by my brother Frost in Tiki-Nori�s case[cclxxix]⁴, exhibited the concern of the courts, their astuteness, that the �stigma of vagrancy� should not attach unnecessarily and harshly to conduct undeserving of it � that persons without a real criminal intent should not be categorized as �rogues and vagabonds�, from mere attendance on property without legal right.

I consider different considerations should apply to an offence of which an ingredient is interference with the integrity of (for example, the breaking of the closure of) another�s property. I consider no lawful purpose has been demonstrated, even to the extent of the civil onus, for the break and entry of Behnke�s property � that occupied by Raymond Tokiyap. I find the offence of break and enter without lawful purpose established. I convict the accused on the second count. (The accused was subsequently sentenced to the rising of the Court.)

Verdict accordingly.

Solicitor for the Crown: P. J Clay, Crown Solicitor.

Solicitor for the accused: W. A. Lalor, Public Solicitor.