N526(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 354 OF 1985

BETWEEN:

ANTHONY WILLIE
APPELLANT

AND:

ROGER TARO
RESPONDENT

Wewak: Amet J
19-20 November 1985

SECTION 7(B) SUMMARY OFFENCES ACT - Provoking a breach of peace – Using threatening words - Mere use of insufficient.

Onus on prosecution to prove the defendant had immediate capacity to provoke a breach of the peace or to do an overt act whereby a breach of the peace is likely to take place.

EVIDENCE - Need for objectivity.

SECTION 20 SUMMARY OFFENCES ACT - Unlawfully on premises - Initial lawful presence - Subsequent criminal intent to assault - Converts lawful presence into unlawful purpose.

WHEN THE RESPONDENT CONCEDES THAT THE USE OF THREATENING WORDS TO ASSAULT DOES NOT AMOUNT TO AN OFFENCE UNDER S.6(B) - Quaere - Lawful presence thus not unlawful.

Legislation
Summary Offences Act Ch. 264 - ss.6,7 & 20

Cases Cited
Tiki Nori v. Thackeray [1967-68] PNGLR 37
Gari Gari v. Ben Anton Unreported National Court Judgment N450(M) dated 11th January 1984.

Counsel
Mr. Jerowai for the Appellant
Mr. Bona for the Respondent

AMET J: The appellant Anthony Willie was at the time of his conviction and sentence the Senior Magistrate at Maprik. He was charged by Maprik Police with 2 charges (1) Using threatening words - to wit - "Bai Mi Paitim Yu" whereby a breach of peace was likely to take place, contrary to s.7(b) of the Summary Offences Act. (2) Being without lawful excuse on premises, contrary to s.20 of the Summary Offences Act.

He pleaded not guilty. Evidence was called for the prosecution, principally the two women complainants, the occupants of the premises the appellant was allegedly upon without lawful excuse, plus one of their principles of the Greater Maprik Local Government Council, for whom all three worked and fourthly a policeman, who received the complaints and charged the appellant.

The appellant gave evidence and conducted his own defence.

The Court found the appellant guilty of both charges, proceeded to convictions and then seemingly imposed only one sentence, the minimum penalty of 12 months for unlawfully being on premises as is evidenced by the Warrant of Commitment. The s.7(b) conviction carries a minimum penalty of 3 months so it may not have made any difference if it were properly imposed it would have been concurrent. However, it is a manifest error of law nevertheless.

The appellant has appealed against both convictions and sentences.

At the outset Mr. Bona for the respondent has not contested the appeal against the conviction for the use of threatening words whereby a breach of the peace was likely to take place, and quite properly so.

The law on the proper elements and the evidence necessary to sustain a conviction under s.7(a) (b) & (c) is now quite settled in this jurisdiction, and sufficiently published and circulated for the benefit of magistrates and police prosecutors. Yet the lower courts continue to convict people wrongly. Mere use and proof of use of threatening, abusive, insulting words, behaviour or gestures is not sufficient, it must be objectively by proper evidence proven that one intended to provoke a breach of peach or whereby a breach of peace was likely to take place. This evidence has to be objective, that is, to others looking on, that the person speaking those words or making gestures or behaviour firstly had the immediate capacity to be able to do an overt act to effect his intention or such as was likely to lead to a breach of the peace; that he was shaping up and moving toward the person at the receiving end with clenched fists or stick or raised hands or picking up sticks or stones - any such overt action to manifest intentions or by which it can be inferred that a breach was likely to take place. Where clearly words are just uttered in the heat of argument with nothing more and shortly thereafter the person using the words walks away - again subjective apprehension is not necessarily sufficient - then clearly no breach was ever likely to take place.

The appeal against this conviction is therefore upheld and the conviction is quashed. There being no sentence technically so there is none to set aside.

Now the second conviction for unlawfully on premises is not quite so easy.

The appellant’s contention simply is that the learned trial magistrate erred in his findings, in that they were against the weight of the evidence, that there was no evidence to suggest that he, the appellant, was on the premises in pursuance of a criminal purpose, but rather he had sufficiently discharged the evidentiary onus of showing lawful excuse of his presence. It follows from that, that the appellant did not deny he went into the yard of the two women, but that he had a perfectly legitimate purpose and excuse for going there, which evidence he placed before the court.

The events transpired something like this, as I am able to determine them from the depositions. The appellant was a married man. His wife had gone home to their village. He wanted to see a woman, one Rebecca, who had previously stayed with the complainants. The appellant suggested she, Rebecca, had asked him to visit her at the home of the complainants. She did not reside there - it is not certain when she last stayed there, it would seem quite some time ago. In the evening of the day in question the appellant, it would seem, sent along a young boy to the house of the complainants to find out if Rebecca was there. The boy told the women he was Kenneth, it would appear Kenneth was known to the women, and so this made the women open the door whereupon they discovered he was not Kenneth at all. He told the women that Kenneth and Anthony, the appellant, had sent him to find out if Rebecca was with them. They told the boy to tell Kenneth and Anthony that Rebecca was not with them. The appellant then decided to enquire himself; he came on the premises from the side or behind of where one of the women, Janet was. He was bare topped and only wore a pair of shorts.

Janet Pranis said when she asked the appellant why he came, because they had told the boy earlier that Rebecca was not in the house, she said the appellant said "who asked to see Rebecca", and that he came to see them. Janet asked again why he came and what he wanted to see them about, he answered he wanted to stay with them. Janet then asked him to leave, and that he was not a single man, that because his wife had gone home it did not give him excuse to do what he was doing and that she would tell his wife when she returned. She again asked him to leave and that if he didn’t she would go and tell her boss. It would seem at this stage Janet was getting upset and impatient with the appellant, and quite understandably so - as she asked him to leave and he persisted in remaining. She was thus raising her voice to force him to leave and so the appellant told Janet to speak quietly or he would hit her. She said he threatened her with these words three times. She must have continued to speak loudly demanding he leave their premises for him to have threatened her three times. Janet said she thought to herself why should he hit me, this is my place, and again told him to leave their premises and that she was tired of talking. The appellant then prolonged his presence by asking for his Bible. She said she knew nothing about the Bible and said in any case it was the wrong time to be asking about his Bible. She again told him to leave or she would go and tell them. The appellant then turned and left.

Quite clearly the woman Janet did not welcome the appellant’s presence at such an odd hour, coming from an unexpected direction and quite improperly attired. She made her intentions known in no uncertain terms that she wanted him to leave immediately. She became apprehensive because they had already told the boy that Rebecca was not there, that she had only visited once before, that the appellant had not gone there before, and because he was a married man. One can appreciate the apprehension going through the woman’s mind. She became even more apprehensive I imagine when the appellant said words to the effect I did not ask for Rebecca, I came to see you - I want to stay with you.

There are several ways to view this evidence. If at the highest the court had not accepted the appellant’s evidence, it must nevertheless be satisfied beyond reasonable doubt that the persons presence there on the premises was unlawful. There is now sufficient body of case authority which have laid down the principle that, "there must be present in the behaviour of the person concerned some element of criminality" - see Gari Gari v. Ben Anton N450(M) per Kidu, C.J. - Lae 11th January 1984. In Andrew Chalmers and Weisbrot on ‘Criminal Law and Practice of Papua New Guinea’ at p.302, the following excerpt is found in relation to the section:

"It is plain that this section is not directed at behaviour that may give rise merely to a civil remedy; it is designed to make punishable conduct that is preparatory to or in furtherance of some criminal purpose, or which by reason of its violating recognised standards of decency, tranquility and decorum and the accepted usages of the community, is likely to put occupants in fear or apprehension and thus lead to a breach of the peace."

At its highest, rejecting the appellant’s evidence, what criminal purpose can he be said to have been on the premises preparatory to or in furtherance of. Is his wanting to see them or stay with them criminal; I do not think so. I think if he said he wanted to have sexual intercourse with Janet, then that would clearly be an intent to commit adultery if he were married or rape if he wanted to force himself upon her, and that would amount to sufficient criminal purpose.

Do his words "Bai mi paitim yu" attract the necessary criminal purpose.
On the evidence, quite clearly he did not go out to the premises preparatory to assaulting the complainants or in furtherance of intent to assault. The words "bai mi paitim yu" were uttered, only after Janet raised her voice. The appellant’s original presence, if one accepts his account, had no criminal purpose behind it. Flirtation is not a criminal conduct or preparatory to or in furtherance of criminal purpose.
Can it be said that his subsequent conduct of threatening to assault Janet obtained a criminal character to his otherwise not unlawful presence.

This poses some difficulty.

I am of the opinion, that a person’s presence, though initially lawful, may by subsequent conduct become unlawful, if he manifests an intention to perpetrate an unlawful act, he is from that time deemed to be present preparatory to and in furtherance of that unlawful intent.

The respondent submits that the appellant’s subsequent threats to assault the woman Janet sufficiently converted his presence, though it may initially have been lawful, into it being unlawful, because he has expressly threatened to assault one of the occupants of the premises, Janet. The appellant was charged with threatening words whereby a breach of peace is likely to take place under s.7(b) of the Summary Offences Act. As I have already ruled, the respondent conceded that the conviction was wrong. If it conceded that fact, how can it now say, nevertheless, the appellant intended to commit an offence, sufficient to attract a criminal purpose for the purpose of the offence pursuant to ts.20 of the Summary Offences Act.

The respondent cannot have it both ways.

Notwithstanding this difficulty it is possible in my view to attract a criminal element if it could be sufficiently demonstrated on the facts as disclosed that some other offence known to the criminal law could be sustained on the facts. The obvious one is assault under s.6 of the same Act; whether what the appellant said and did could be upheld as amounting to assault, to attract the criminal purpose. Could the appellant have been charged with and convicted of assault. I think not. It is not possible to show more than the mere utterance of words as the definitions of assault requires s.6(3). Also see Tiki Nori v. Thackeray [1967-68] PNGLR 37 at pp.41,42.

In all the circumstances of this case the strong impression one gets is that the appellant was out to engage in coquetry while his wife was away from him. It is conduct most unbecoming of a senior judicial officer in the area. It is a serious breach of discipline.

In the end result, however immoral, improper or reprehensible a conduct may be, if it falls short of having that criminality or criminal purpose about it then it does not become an unlawful purpose attracting criminal sanction.

It was therefore not established on the evidence before the court below that the appellant’s conduct, though as I am satisfied was quite reprehensible and unbecoming of a judicial officer, had that element of criminality to amount to the offence of unlawfully on premises.

Accordingly the appeal is upheld, the conviction quashed and sentence set aside and appellant be discharged from custody.

Lawyer for the Appellant - Mr. Jerowai
Lawyer for the Respondent - Public Prosecutor
Counsel - Mr. K. Bona.