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Mai, Regina v [1975] PGSC 21; [1975] PNGLR 230 (3 November 1972)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 230 - Regina v Mai

[1975] PNGLR 230

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

JOSEPH MAI

Rabaul

Prentice J

2-3 November 1972

CRIMINAL LAW - Particular offences - Breaking and entering with intent to commit a crime - Elements of offence - Breaking and entering without lawful excuse an element of the offence - Criminal Code (Queensland adopted), ss. 419, 419a[cclxxx]¹.

Section 419 of the Criminal Code (Queensland adopted) provides that �any person who � (1) breaks and enters the dwelling-house of another with intent to commit a crime therein; ... is guilty of a crime and is liable to imprisonment with hard labour for fourteen years�.

Held

N1>(1)����� The crime of break and enter with intent to commit a crime, provided for by s. 419 of the Criminal Code (Queensland adopted), necessarily contains as an element of it �a break and entry without lawful excuse� provided for by s. 419a of the Criminal Code: the element of �intention to commit a crime� after a break and entry is a �circumstance of aggravation�, as defined in s. 1 of the Code and as used in s. 575 thereof: the offence created by s. 419 which carries a fourteen year penalty is that provided for by s. 419a (which carries a three year penalty) with the addition of the circumstance of aggravation of �intent to commit a crime�.

N1>(2)����� That where an accused broke and entered a dwelling and took there from a watch, acting under a grievance (that he had not been adequately paid) that he could honestly have entertained, it could not be said that an honest claim of right had been positively excluded, and the element of �intent to commit a crime� as distinct from the break and entry had not been established.

N1>(3)����� The accused should be convicted of the offence of breaking and entering without lawful excuse under s. 419a of the Criminal Code.

Reg. v. Kerry Kepo [1975] P.N.G.L.R. 226 referred to.

Trial

The accused was charged pursuant to s. 419 of the Criminal Code (Queensland adopted) with breaking and entering a dwelling house with intent to commit a crime. The facts are set out in the judgment hereunder.

Counsel

B. W. Kidu, for the Crown.

J R. Baulch, for the accused.

Cur. adv. vult.

3 November 1972

PRENTICE J: The accused is charged with breaking and entering a dwelling house with intent to commit a crime. On or about 6th September, 1972 he returned at night time to premises where he had been employed, interfered with flywire on sliding screens and forced entry through the screens into the premises from which he took a watch. The sole defence is that of a claim of right. The accused had been employed by a Mr. Pike for a period of two weeks, or a few days less, during the absence of a domestic servant. Mr. Pike gave evidence that during that period he was paid successively � on a Saturday $5.00, after three days� work; on the next Saturday $8.00 representing a week�s wages; the following Tuesday $1.00 (in response to a request for a loan); some days� later $2.00 � amounting to $16.00 altogether. The accused in his record of interview said he took the watch because Pike in the final settlement should have given him $4.00, not $2.00. He offered a similar explanation in the District Court. In a statement from the dock in this court he said he was paid $4.50 in the first week, then $8.00, then $2.00 (that is, $14.50 in all); and that he thought he was underpaid. He explained that he had had previously a similar kind of what he considered �underpayment� from another European and had been unable to get redress.

The watch which was taken was apparently not of great value. There is no evidence as to the accused�s understanding of this. It is clear from his statements that he was �cross�, that he had a sense of grievance. I think the proper inference from his statement � �I thought about this and I thought I should go and take something from him because he underpaid me ...� is that he determined to pay back Mr. Pike for what he in his miscalculation (I am satisfied he did miscalculate) considered unfair treatment and that he determined to steal some (any) object from Pike. However, I think the accused was acting under a grievance that he could honestly have entertained; and I am prepared to give him the benefit of the doubt and to hold that the Crown has not excluded positively that he might have been acting, in taking the watch, under an honestly held claim that he had a right to recoup himself in this fashion. In other words, that the element of �intent to commit a crime�, distinct from the break and entry, has not been established. In setting up a claim of right it has apparently been held sufficient to eliminate one element only of the offence (R. v. Skivington [cclxxxi]²). In this case, at any rate, it has not been argued to the contrary.

Nevertheless, I am satisfied that the evidence establishes that the accused did commit an offence under s. 419a of breaking and entering a dwelling house without lawful excuse. The facts in this case are somewhat similar to those in Kerry Kepo�s case[cclxxxii]³�in which I held that a break and entry of this kind under such a sense of grievance, in an attempt at self-help, was not done with lawful excuse (the onus of establishing excuse being on the accused).

I am of the opinion that the element of �intention to commit a crime� after a break and entry is a �circumstance of aggravation�, as defined in s. 1 of the Code and as used in s. 575 thereof. The offence created under s. 419 which carries a fourteen year penalty is, in my opinion, that provided for by s. 419a (which carries a three year penalty), with the addition of the circumstance of aggravation of �intent to commit a crime�. In other words, the crime of break and enter with intent to commit a crime necessarily contains as an element of it �a break and entry without lawful excuse�.

I am satisfied beyond reasonable doubt that I should, having acquitted the accused of the charge in the indictment, nonetheless convict him of on or about 6th September, 1972, breaking and entering without lawful excuse, the dwelling house of Stanley George Pike. I so convict the accused.

Accused convicted of breaking and entering without lawful excuse.

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

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