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State v Evara [1979] PGNC 10; N201 (10 September 1979)

Unreported National Court Decisions

N201

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
JOSEPH EVARA

Waigani

Prentice CJ
10 September 1979

PRENTICE CJ: Accused is charith breakineaking and entering, and stealing from the Ferris’s dwelling house in Musgrave Street on the evening of 14th June. There can be no doubt that he broke and entered and took jewellery and other articles from that house that night. The domestic servant of the house and two of his wantoks, returned from exercising the employer’s dog on Ela Beach somewhere about 9 pm; and actually observed the accused in the act of decamping with the swag, which included a pair of shoes and a box. Two of them chased him to the Papua Hotel and he was confronted there not only by these men, but the Ferris’s servant, the Hotel Manager Mr. Newman, and later on it seems, the Ferris’s. The house was observed to have been broken into by removal of security wire and louvres, and articles were found to have been missing. The shoes and the box containing valuables were apparently recovered from the accused’s possession at the hotel.

Mr. Neil for the defence concedes that the accused broke into, entered the house and took therefrom the articles detailed in the indictment (of value some K900). But he claims that the accused was so drunk at the time that he was incapable of forming the specific intention of stealing. He refers me to Director of Public Prosecutions v. MajewskiN201.html#_edn167" title="">[clxvii]¹. And the Prosecution refers me to my own decision Regina v. Allan Evi of BereinaN201.html#_edn168" title="">[clxviii]² on the subject unkenness inss in relation to sections 27 and 28 of the Criminal Code. Mr. Neil submits that I should bring in a verdict of guilty to breaking and entering simper (s.408), rather than that available under s.407(c) - pre- presumably on the basis that stealing can be regarded as “circumstances of aggravation” to breaking and entering (s.550 of the Criminal Code). Similar submissions were dealt with in Regina v. Kerry KepoN201.html#_edn169" title="">[clxix]³; Regina v. Joseph MaiN201.html#_edn170" title="">[clxx]⁴ and (contra) Regina v. Gahoso SimbaneN201.html#_edn171" title="">[clxxi]⁵.

Once defence of drunks was raised, it became incumbent upon the Prosecution in this case, to prove beyond reasoneasonable doubt that the accused had the relevant intent (that of stealing), taking into account the accused’s condition in relation to alcohol.

The accused stated from the dock that on the evening in question he drank at the Travelodge Bar until closing. He spent a fair amount of money drinking. He added that he was not sure that he made a mistake of “going into and breaking a house” in his Record of Interview he said, among other things, “that after leaving the bar and the theatre he was lying on the concrete ...” and “later might have gone and broke the house”; and “because I would not know whether I broke a house or not”. Later asked “what made you break into the house of Mr. John Ferris” he replied “I don’t know this is my first time because I was drunk and I broke into this house”. And again “I knew I left my friend in Papuan Theatre and then I went up myself” (i.e., presumably to the house). Asked “Is it true that you actually broke into Mr. John Ferris’s house”, he answered “yes”. Asked to demonstrate the house however - he said “I do not know the house because I was drunk at the time”.

The house servant Sonny Keduma, and two wantoks who lived with him gave evidence. Sonny said that he asked the accused was he the person who went and broke the house and was told “I am not the rascal”. When the witness said “I can recognise the colour of your shirt”, the accused said “I did not break the house”. Witness stood close to the accused whose breath smelt of beer but who “was not drunk”. Accused spoke normally and stood steady. Accused’s Pidgin was very clear. He denied that the accused spoke like a drunken man, he walked “smoothly”.

Kure Erapo the first wantok, reported seeing the accused jump over a fence and running away. Witness ran after him ... into the Papua Hotel (where it appears the accused was employed as receptionist). Accused was then when confronted in the Hotel, holding the shoes and the box. He threw the box on the floor whereupon it fell open and revealed jewellery chains. Witness swore that the accused said “when I went and broke the house of the master I did not steal anything”. Accused walked “smoothly”, he spoke “fluently” and was not drunk. He was not swaying. Witness did not smell anything on the accused.

Aua Malu was the other wantok - a young boy. He saw the accused run away fast from the house. He followed, himself running up the hill to the Papua Hotel. The accused seemed to him “normal”.

The accused’s employer Mr. Newman became concerned with the confrontation in the lobby of his hotel. He noticed the accused’s clothes were dusty and dirty. The accused told him that after going to the pictures (next-door), he slept behind the hotel kitchen. He got the impression the accused had been drinking. Asked was the accused drunk, he said “no, he was standing on his feet - he may have been swaying a little - he was standing o.k.” He later said that accused may have been stammering but not at this particular time - he quite understood what the accused was saying.

All the witnesses called by the State impressed me as honest and clear in their recollections. I accept their evidence. I reject the statement of the accused and his assertion of lack of recollection as being improbable and not in keeping with his behaviour as observed by Prosecution witnesses. It is clear that he had no difficulty with speech, stance or walking. He jumped a fence and ran from the Ferris’s house while carrying a box and a pair of shoes. His purloining of goods was selective and studied - there was a careful choice of valuable objects and a careful minimum of disturbance inside the house. I am sure that had his understanding of his actions been lacking, his employer would have noticed the extent of affection by drink of this important employee of his. I am satisfied beyond reasonable doubt that the accused though probably affected by drink, knew very well what he was doing, and not only broke and entered the unoccupied house, but carefully selected and stole the most valuable objects therein. And I am satisfied to that standard that he had the intention of stealing necessary to support this charge. I convict him as charged.

Solicitor for the State: K.B. Egan, Public Prosecutor

Counsel: J.E. Byrne

Solicitor for the Accused: M. Kapi, Public Solicitor

Counsel: W. Neil

<67">N201.html#_ednref167" title="">[clxvii]^{[1976] UKHL 2; (1976) 2 All ER 142 at pp. 148 and 172}

N201.htmnref168" title="">[clxviii]^{(1975) P.N.G.L.R. 30}

N201.html#_ednref169" title="">[clxix]^{(1975) P.N.G.L.R. 226}

N201.html#_ednref170" title="">[clxx]^{(1975) P.N.G.L.R. 230}

N201.html#_ednref171" title="">[clxxi]^{(1975) P.N.G.L.R. 254}