Unreported National Court Decisions
N6
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
JOHN WOBI
Port Moresby
Prentice DCJ
8-9 October 1975
13 October 1975
PRENTICE DCJ:  This is the type of wrangle which is likely to bring the offices of Public Prosecutor and Public Solicitor, the Law and the Courts into contempt, not only in the eyes of criminals but of the public generally. I deprecate that it should have arisen.
At the end The State’s case, motion has been made that all charges against the accused be dismissed. The accused stood charged originally with three counts. Firstly, with an offence under s.419 of the Criminal Code - breaking and entering a dwelling house (Bill Nebo’s) with intent to commit a crime. Secondly, with an offence under s.419a - breaking and entering a dwelling house (Bill Nebo’s) without lawful excuse. Thirdly, with breaking and entering a motor vehicle and stealing a door handle.
On arraignment the accused pleaded guilty to the second charge. His Counsel then asked leave under s.601A to substitute for that plea, one of not guilty. I allowed this to be done. But now that I am aware of the point being taken, I have formed the opinion that the application ought not to have been made. On any view of the facts, the accused has committed a number of offences, among which could be included causing wilful damage to property and being unlawfully adjacent to premises: the former carrying a penalty up to two years, the latter carrying a penalty of twelve months’ imprisonment. In a setting of a town in which public sentiment has reached boiling point over the hundreds of house-breaking incidents each week, and where judicial pronouncements about heavy increases in penalties have been made; I see no warrant for interfering with a man’s right to plead guilty to a lesser offence to avoid the possibility of having more severe punishment visited on him on a greater offence. For Counsel to do so, on a mere “technical defence” (as the public would no doubt describe it) may amount to a serious invasion of the accused’s rights as a citizen of Papua New Guinea. I have adverted to this kind of consideration with Counsel from the Public Solicitor’s office on many occasions.
Mr. McWalters firstly moved that no case had been made out as to the motor vehicle charge. The prosecutor quickly concurred with the defence submission and the accused has been acquitted on that charge. At the outset I questioned the credibility of a man’s “stealing” the door handle of a car. (It proved to be an ancient Peugeot car). This indictment went to the Court over the signature of the Public Prosecutor himself. One cannot understand how it was not immediately apparent to him from a perusal of the depositions, (and I take it one can assume that any prosecutor signing an indictment reads the depositions), that a charge under s.421 “breaking into a vehicle and stealing” was most unlikely to be sustained, whereas one under s.422 would quite probably have succeeded. (In saying that, I have not lost sight of the possibility that the evidence forthcoming here was not quite up to that given in the District Court). No charge was sought to be laid under the latter Section. The accused has been acquitted accordingly on the third count.
I go next to the submission of Mr. McWalters made in relation to counts one and two, that the evidence does not establish that the premises entered were a “dwelling house”. The prosecution thus faces the situation that if this submission succeeds there is no charge remaining against the accused - even of malicious damage. The defence submission rests on two contentions, the first being that the flat actually entered was not suitable for human habitation, and was on that account “not a dwelling house”. Council Regulations would not, it is said, have allowed the flat to have been let or lived in, because the verandah had no guard railing, the hot water service was not connected, and the electricity was a temporary connection. The flats with which the Court is concerned form part of a block being built by Mr. Johns for the purpose of letting as individual flats. I assume, as no point was taken on it, that the flat numbered D2 was serviced with sewerage.
The millions of Papua New Guineans who by their autochthonous Constitution have vested their judicial authority in the “National Judicial System” (paragraph 158 of the Constitution), would in their mountain and coastal villages living very snugly without benefit of electricity, piped water (hot or cold) and banises to their verandahs, I think, regard this submission with merriment if not derision. So do I. Considered even as a special sort of dwelling house (different from the hundreds of thousands of simple dwellings throughout the country) viz. an urban flat; that this and other flats in the block are habitable as houses, seems demonstrated to me by the facts alone that they were built as rentable housing, were almost complete and furnished, and were in fact being lived in at least by Mr. Nebo, with all normal necessities for living available therein to him. That such a use for habitation may have been illegal under Council Regulations, cannot I consider render the flats not “a dwelling house”.
It is next said that flat D2, the one admittedly entered by the accused in circumstances that on the prosecution evidence, amount to breaking, is not a “dwelling house” as defined in s.1 of the Criminal Code. That definition as relevant, reads as follows:
“The term ‘dwelling house’ includes any ... part of a building or structure, which is for the time being kept by the occupier for the residence therein of himself, ... It is immaterial that it from time to time is uninhabited;”
The facts as revealed for purpose of a present adjudication, show that one Bill Nebo was left in general occupation of a partially-completed block of flats when the owner/builder went to Australia for some months. Nebo thereafter worked elsewhere in the day-time, but at night-time kept a general watch over the flats in return for the right to live therein. Apart from the first two months of his night watchman duties, he was not paid for these services. Flat D2 was large furnished but contained no bed. It had a small three cubic foot refrigerator, a table and one or two chairs. It had all kitchen fittings, a stove and cupboard, all bedroom fittings, a shower recess and toilet and vanity basin though no washing machine; all the cupboards were fitted in the bedroom. Nebo told this Court that he slept each night in flat D4 which had a bed. He “stayed in” flat D2 immediately below D4. He ate in D2 and kept his food in its refrigerator - a lot of food. He kept his clothes in the bedroom of D2. It is not clear where he had his evening shower on returning from work. It is contended in effect that a man does not “keep a place for residence” - that he does not “reside in it”, unless he sleeps in it. The Oxford English Dictionary includes among its descriptions of “residence” - “to make one’s abode”, “being or staying regularly at some place for the discharge of special duties”. To my mind, use for “residence” connotes many distinct usages, the preparation of food, partaking of rest, recreation, study, work, eating, transaction of family affairs, upbringing of children, entertaining of friends, keeping of household utensils, weapons, clothes, treasures, animals. If a man, though he built a house and kept his wife, children, work-tools and pigs in it; stored his headdress, specially-prized traditional objects, his concoctions and essences, his drums, ceremonial weapons and money in its rafters; nevertheless took his emergency weapons to, and slept in, a communal men’s house each night; is it to be said he does not “reside in” the house which he built and owns - that it is not his dwelling house?
In my opinion the correct view of the facts is that Mr. Nebo was making use of each of flat D2 and D4 for purposes which amounted to residence - that he could be viewed properly as “resident” in each of them. If this be so, there is no difficulty in coming to the conclusion that each flat in the building so being used, was a “dwelling house”. I do not find the ancient decision of Rex v. James Martin and John Taylor[mxix]1 in which the twelve Judges of England in the Court of Crown cases reserved (Ellenborough, C.J. dissenting) found that the dining and entertaining in one house and sleeping elsewhere (in his mother’s house) were not sufficient cause to make the first house “a man’s dwelling house”, of practical utility in considering the Criminal Code (if resort may be had to the decision at all - The Governor and Company of the Bank of England v. Vagliano Brothers[mxx]2) in its application to Papua New Guinea. A significant feature indeed of Martin & Taylor’s case[mxxi]3 (supra) was that the building concerned was a shop and dwelling being used essentially as a shop was, in 1806.
Over the years there has been much public criticism of, and considerable judicial dismay at, the sometimes lack of realism and practicality, the insistence on the exploration of “fancy” points of prosecution and “technical defences” sometimes evinced by officers appearing for the Crown on the one hand and for the Public Solicitor on the other. Our country’s Constitution has now placed great responsibility on the Constitutional offices (those of the Law officers) - the Public Prosecutor and Public Solicitor. I hope that a new approach will now develop. That proper supervision and assistance will be given to officers conducting cases in Court, to ensure that prosecutions are neither over, or under, but accurately, indicted; and that far-fetched and inordinately harrassing defences are not run. It should be unnecessary to remind Counsel that the Law is itself on trial continually in this society of many sociological difficulties, inadequacies of training and performance of its law enforcement officers, and lack of respect for the Rule of Law.
Such argument as they were instructed (or allowed) to present - was put before me with complete competence by the Counsel actually appearing and I thank them for it. But I think in reality it should not have been necessary. I expect the Court to receive more realistic and expert assistance in the form of supervision and guidance of Counsel by the two Law officers in future, so that the time of the Court will not be taken up with points which have no merit in the administration of the Papua New Guinean people’s justice.
May I with respect, suggest that it be immediately referred to the Law Reform Commission to advise if they see fit, such alteration to the Code, if any be necessary to ensure that any buildings, structures and vehicles not be invaded by persons unauthorised so to do by the owner, occupier, or bailee thereof, without the invader incurring criminal liability of a high order. (I understand the prosecution to feel same difficulty in regard to the Code’s not covering possibly an unlet “dwelling house”). I am satisfied that the evidence does disclose the case of a dwelling house being broken and entered, the dwelling house being that of Bill Nebo, within the meaning of s.1 of the Criminal Code; and that there is therefore a case to answer both on the first and second counts of the indictment.
Solicitor for the State: B.W. Kidu, Crown Solicitor.
Counsel for the State: B.J. Cassells. B.T.J. Sharp.
Solicitor for the Accused: N.H. Pratt, A/Public Solicitor.
Counsel for the Accused: I. McWalters.

[mxix]168 E.R. 708
[mxx](1891) A.C. 107, 120
[mxxi]168 E.R. 708