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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 1703 OF 2001
THE STATE
V
MESULAM IRIMA
Kokopo: Lay J
2006: 6, 7 & 20 April,
23 June
6 September
CRIMINAL LAW - Criminal Code - s.395, s.396 & s.398 - whether s396 alternate verdict to s395 if intent to commit a crime not proven - admissibility of evidence against co-accused in separate trial where accused not in jeopardy.
Facts
The accused was charged with two counts of breaking and entering a dwelling house with intent to commit a crime contrary to Section 395 of the Criminal Code, and one count of breaking and entering a store and committing a crime therein contrary to Section 398 of the Code. The State evidence was that the accused and another friend broke and the friend entered a dwelling house, in company of others. The accused and others then went on to break and enter and steal the goods from a store and use some of those goods as missiles to break another house, then enter it at which time the accused assaulted a female occupant therein. The accused gave an unsworn statement to the effect that he knew nothing about the matter. The Prosecutor asked the Court to have regard to the evidence in the trial of the accused's co-accused with a view to strengthening the evidence against the accused.
Held
Cases Cited:
Papua New Guinea Cases
John Beng v State [1977] PNGLR 115;
R v Tai Kenag v Simon Kasper [1984] PNGLR 102;
R v Dauamani-Adamanika [1965-66] PNGLR 80;
R v Bamai-Pesoi [1965-66] 210;
R v Gahosoa Simbane [1975] PNGLR 257;
R v Mai [1975] PNGLR 230;
R v Kepo [1975] PNGLR 275;
R v Griffin [1974] PNGLR 72;
R v Gahosoa Simbane [1975] PNGLR 257;
State v Kasaipwolova [1977] PNGLR 257;
Overseas Cases
R. v Tognolini [1983] 1 Qd. R. 99;
R. v Chan [2000] QCA 357;
R v Rehavi [1998] QCA 157;
R v Preston [1961] VicRp 115; [1961] VR 761;
Short Grealy and Plint (1928) St.R. Qd.246;
Text Books
Criminal Law and Practice of Papua New Guinea 3rd Ed.;
Phipson on Evidence 14th Ed.;
Legislation
Criminal Code ss 1, 7, 8, 395, 396, 444, 538., referred to.
Counsel
L. Rangan, for the State
P. Kaluwin, for the Defendant
1. LAY J.: The accused has been charged with two counts under Criminal Code section 395 (1) (c.), ("breaks and enters the dwelling house of another and commits a crime in it") and one count under 398 (a) (i), ("breaks and enters a... shop... and commits a crime in it;") to which he has pleaded not guilty.
2. The State alleges that on 15 July 2001 in the early hours of the morning about half past one the accused and others were at Rarongo block, Matupit. They were under the influence of liquor. They were there with the intention of terrorising the occupants of some residences. They went to the house of Lynn Nakikus and started hitting the house with sticks and stones. One of them chopped the wall of the house with a bush knife and damaged it. One went inside and damaged timbers, pots and cups. Next they went to the house of Nasain Nakikus. They broke open her trade store next to the house and stole trade store goods valued at K 5,000.00. They used some of the goods to throw at the residence of Nasain Nakikus. Next they broke down the main door of the residence of Nasain Nakikus and damaged personal property like pots and plates. Two females were assaulted. After doing damage to the three buildings they went home. They were angry because they had been named as suspects in a stealing of goods from the trade store of Nasain Nakikus.
3. The State called Lynn Nakikus. She said that on 7 July 2001 about midnight she was asleep in her house at Rarongo block, Matupit. She was woken by screaming and shouting and a big knife cutting the Colorbond Walling of the house. She carried her baby and tried to make her way out of the door. At that time she thought her husband was having a fight with the in-laws. She was surprised by a man named Dominic swinging a knife at her neck. She ducked down avoiding the knife and left the house through a hole in the floor where the house was incomplete. She stood in the flower bed under the banana leaves beside her house, about a meter from the house. From there she could clearly see Dominic, Henry, Kela, Mesulam the accused, and Lapi. The Moon was very bright and she clearly saw these boys. They were chopping her belongings which had been left outside like plates, pots, bowls and the walls of the house. The surname of these boys are: Dominic is Manuel, Henry's father is Henerik, Kela is the brother of Henry. Mesulam is Irima; "he is sitting right in front of me (witness pointed out the accused in the dock)". Lapi's surname she does not know. They are all neighbours of the witness at Rarongo block. She knows them well, Mesulam is the son of a priest from the United Church, a Pastor's College lecturer. Because of the father's status they all know the family. Mesulam is also a close friend of her husband. He comes to the house often. There is a track from the road to the college going past the witness's house. She shares betel nut with Mesulam and uses the same lime. She talks with him on the road.
4. That night Mesulam was screaming and swearing saying things like "kai kai kan". The witness indicated she was about ten (10) meters away. There was light from her fire as well as the moon. She saw him very clearly, he was outside destroying her property, he never entered the house. The house was badly damaged. The new colorbond wall was cut, the timbers were cut, they stole the radio, the lamps that were hanging and some roofing iron were damaged. Mesulam was holding a knife, he chopped her Colorbond wall, they even chopped the kettle. She heard him say "bai mepela kilim yupela". There was much abusive language, they continually shouted "Kai Kai kan". The witness observed the accused and his friends outside her house for a period of 15 to 20 minutes and then they went up to Nasain's house. She heard screaming from there but did not see what happened. On their way up to Nasain's house the accused and his friends passed her neighbour Robin Roboam's house and chopped the property that was outside, spending five to 10 minutes there.
5. Lynn did not speak to Mesulam that night, he and his friends were well-equipped with sticks and stones and knives. They were not like human beings, they were like animals. Although she was frightened, she stood between the two houses and saw the identity of these young men clearly. She did not run away because they would have seen her. The accused did not enter her house but Dominic entered her house.
6. About 3 a.m. in the morning after the accused and his friends had gone, the witness went to Nasain's house. The house was really destroyed and there were no goods left in the shop. There were goods from the shop, tables and chairs all over the lawn. She cried when she saw the damage to Nasain's house with all the louvres broken. The door to the store was wide open, the hinges were hanging from the door. There were no goods on the shelves of the shop. The door was gone from Nasain's house. Lynn did not go inside but she looked in and could see that all the things previously hanging were on the floor, there were broken frames.
7. At one point when the accused and his friends were there Lynn heard a voice calling out "kilim em ol wanpela nius reporta". Mesulam is United Church but the other three are Catholic. Aunty Nakikus went and saw one of the Catholic church members to report an incident at her shop and Lynn believes the message was passed to the accused and his friends.
8. Lynn could not say how Mesulam was dressed that night; she was not interested in his clothes, only his face. She was very frightened. Later in her statement to the police she generalized and did not mention Mesulam by name. The police said to be brief. If Mesulam says he was not involved, he is lying. The witness is sure she clearly saw Mesulam, she stood and was watching him for 15 to 20 minutes as they were all over the place, all in action chopping her property in front of her house.
9. The next witness for the State was Kavanamur Wartovo. She is from Rarongo. She lives at Rarongo and has done so for 10 years. In 2001 she had been living there for some time. On 15 July 2001, about 1 a.m. she was asleep in her house with her two children. Her husband was not there. She heard a big bang outside at Lynn Nakikus' house. She got up and went outside and saw something like lightning coming out from where people were cutting the roofing iron with a knife. She left her two children in the house and followed a drain up to Nasain Nakikus' house. When she was running up to the house "they" threw a stick at her legs. She was really frightened. She ran into Nasain's house. The men came up and started hitting the louvres, they cut the louvres then they threw sticks at the occupants of the house. They got things from the store and threw them at the occupants. The witness was in a bedroom of the house lying down because she was pregnant. Dominic came inside, he was the first person inside the house and it was Dominic who broke the door to the bedroom. He was doing something bad to Nasain Nakikus. The witness was sleeping on the floor close to the door of the room she was in, with her face to the wall. When Dominic was finished having sex with Nasain, Mesulam came into the bedroom and stood on Kavanamur's legs. Her legs were aching, she got up. Mesulam held her hand and pulled her up. She threw up her hand, her hand touched his penis and she saw he was naked. Her face was then only 4 or 5 cm from his, she recognized him and called his name. The witness is sure she is not mistaken in her identification. Though the louvres were curtained the moon shone into the house. There were no lights in the house. There were no other lights close to Nasain's house. There are mango and banana trees close by. She spoke in language and said "I am pregnant" to the accused. He said "liar" and touched her stomach. She looked away because she was afraid and he left her. Then he started pulling a woman who was with her two children in the same bedroom; she could hear her screaming but did not see because she was facing the wall. He was in the room for about five minutes.
10. Nasain's house is a permanent materials house on short steel posts. It has two bedrooms and a living room. The witness knows Mesulam Irima, she pointed him out in the dock. He usually comes to her in law's house, Lynn Nakikus. When he goes there she talks to him, he has asked her for betel nut. She thinks he did this thing to her because he had been drinking. When he talked to her she could smell it. After the young men had left she could see that all the louvres in the house had been damaged. Some of the canned goods from the store had been opened then thrown into the house, cordial, kerosene, and fish. Clothes that were hanging up were damaged by these goods. In the morning she looked into the store, the door was broken and there were no goods in the store. In the morning her legs were aching so she just sat down, later she saw the destruction outside Lynn's house but did not go inside.
11. The witness had only seen the accused once before at her in-laws house. Sometimes she saw him going to the store. She had also seen him at the Pastor's College and at Rarongo market in 1998. She is sure that she knows the accused and recognized him on that night.
12. That was the close of the State's case.
13. Counsel for the accused informed the court that the accused had been advised of the three choices he had, to remain silent, to give a statement from the dock or to give sworn evidence. These three choices were again put to the accused by the Court. In addition it was explained to him that he would not be subject to cross-examination if he gave an unsworn statement from the dock but that consequently less weight would usually be placed upon it.
14. The accused elected to give an unsworn statement from the dock. He said "the trouble, the incident, I do not have any knowledge of it. That is all."
15. The accused's police record of interview dated 12 September 2001 was tendered by consent. The relevant parts read as follows:
Q15: which person in particular did you visit?
Ans: I went up to check at Henry Hugo and Michael Keller's house and later went over to the other side.
Q16: did you get brus from Henry Hugo and Michael Keller's house?
Ans: no
Q17: I put it to you that on that night you went over to Michael Keller and Henry Hugo and then he went over to Matupit block, what would you say about that?
Ans: I am not sure.
Q18: After that you and the others Dominic, Michael Keller, Lapi and Henry Hugo went down Matupit block assaulted them, broke into their store and later damaged their properties, what would you say about that?
Ans: I'm not sure.
Q19: After throwing missiles into Nasain Nakikus's house you broke open the door and attempted to have sex with the women who were inside, what would you say about that?
Q20: I put it to you that on that night you and your friends went first to Lynn Nakikus house and threatened to cut her with Bush knife and also spoiled her house and cooking utensils, what would you say about that?
Ans: I do not know.
Q21: just after the incident police went to the residence of your father the principle of Rarongo Theological College, your parents informed you to wait for police but you escaped, what would you say about that?
Ans: that is true they told me to wait but I was scared police might beat me up that is why I ran away to the beach.
Q22: (not relevant)
Q23: I put it to you that during that time of the incident you all went inside the house when Dominic raped the owner of the house, what do you say about that?
Ans: I am not sure.
Q24: While inside the house you also attempted to rape a woman but realizing that she was pregnant you left her, what do you say?
Ans: I do not know.
16. The statement given to the police by witness Lynn Nakikus was also tendered by consent. It reads as follows:
"on the early hours of Sunday morning 15/7/2001 at about 1:30 AM, I Lynn Nakikus was fast asleep in my house. I got shocked to hear boys screaming and cutting plates, pots, walling and the iron roof. I was with my baby inside while my husband was with some visitors outside namely: Joe, Robin, and Nabase when these rascals namely:-Dominic, Keller, Henry and Mesulam with some others whom I did not recognized. They came up to my house, shooting us with stones, sticks and timber and when our boys ran away, they took advantage of damaging all my properties.
I screamed when I heard Dominic said " kaikai kan bai mi kilim dispela meri yia, em wanpela news reporter. He climbed up my house to chop me with a knife. But when he swings his knife I made my way out through a hole on the floor with my baby in my hand. Somehow he missed us leaving a big hole on my calibon wall. We ran out and hid beside my flowers, when I clearly saw these rascals. After damaging my properties they moved on to Robin's house, damaged some more of their properties and then they shouted down to Auntie Nasain's house and did the worst damage which took them about 30 minutes and over. They were screaming and saying ol suspect yia oli kam nau, Iawakaka yia, kaikai kan and many other dirty words. I was just there beside them watching and hearing them."
17. It then being Friday 4 p.m. the court adjourned to the week commencing 20/4/2006 to receive submissions.
Submissions
18. Counsel for the accused submitted that the issue is one of identification. In relation to the evidence of Lynn Nakikus, the court should note that in the witness's statement to the police Mesulam Irima was not mentioned by name, nor was it mentioned that he held a knife and cut the kettle. In her police statement Lynn Nakikus said it was Dominic who cried out "Kai Kai kunt". Lynn Nakikus could not identify the clothing of the accused, if she could identify his face then surely she could identify the clothes. She said she was frightened and that may have an effect on the quality of identification.
19. The State Prosecutor submitted that the defense opened with the statement that the accused was at the scene but took off before the crime was committed. He has failed to adduce evidence to that effect. There is evidence from witnesses who knew him and saw him at two different homes and the period of observation by Lynn Nakikus was quite long. The discrepancy between Lynn Nakikus's statement of 15 July 2001 and her evidence are quite minor. All of the conditions for the quality of identification evidence were present in the evidence. The witnesses were not under the influence of liquor and the evidence is that the accused was under the influence. The sworn evidence of the State witnesses has greater weight than the unsworn evidence of the accused. For a full appreciation of the facts and circumstances surrounding the case the court should read the judgment of Lenalia J. on the trial of the accused's co-accused.
20. At the time that this trial was originally set down for delivery of decision on verdict I raised with counsel and requested further assistance on the following issues with respect to count one:
1. How did the State say that the evidence demonstrated a crime was or was intended to be committed in the dwelling house;
2. Which of sections 7 and 8 did the State rely upon and how?;
3. If the court found that count one was not established by reason of there being no evidence to support the element of commission or intent to commit an offence in the dwelling house, what was counsel's submission on an alternate verdict, particularly considering the conflicting authorities which appear In Criminal Law and Practice of Papua New Guinea at page 374 where there are cases cited for the proposition that section 538 can be used to render an alternative verdict of guilty under section 396 and at page 457 cases to the opposite effect?
Counsel for the State submitted that he conceded there was no evidence of an intention to commit or the actual commission of an offence inside the dwelling house of Lynn Nakikus, the subject of count one. He submitted that pursuant to section 538 the allegation of committing a crime inside the dwelling house or the allegation breaking could be used as circumstances of aggravation for the purpose of convicting on an alternate charge. In connection with the application of section 8, on which the State relies, the States submission is that the common purpose of the accused and his friend can be inferred from their common behaviour of wilfully and maliciously destroying property contrary to the provisions of section 444 of the Criminal Code. He referred me to two decisions of Cannings J. The State v Sange N2805 and the State v Jacky Hutnamur N2848. Alternatively, the State relies upon section 7 and submits it can be inferred that the accused's behaviour empowered the group, each member was empowering the others and thus he was enabling or aiding another person to commit the offence (s7(1)(b) or aiding s.7(1)(c) .
21. Counsel for the accused submitted that section 538 refers to situations where the circumstances of aggravation are charged in the indictment. There was no allegation pursuant to section 395(2) (that the offence occurred at night). All of the facts referred to in section 395(1) are elements of the offence, section 395(1) (c) is an element not a circumstance of aggravation. The State should have inserted an alternate charge under section 397 into the indictment, the court should not be seen to be doing something that the State should have done. In relation to section 7 and 8, the State did not open with an indication that it was relying on those sections. In relation to section 8 there has to be a common plan and it has to be established that they went to the house with the intention to execute the plan. A conviction based on section 8 would not be safe as intention has not been established beyond reasonable doubt.
The Law
22. The main issue of some importance in this case is identification. I remind myself of the law on the issue and remind myself in those terms of the dangers of convicting on identification evidence. I recite the six factors set out in Chalmers, Weisbrot, Injia and Andrew, Criminal Law and Practice of Papua New Guinea, 3rd ed. (Law Book Co Ltd 2001) at page 638.
" The reliance to be placed on personal identification will depend upon a number of factors, including inter alia;
(1) the impression left by the eyewitness as to his reliability and accuracy;
(2) the existence of a motive for giving false testimony as to the identity of the offender(s);
(3) the circumstances in which the person to be identified has been observed;
(4) the circumstances in which the eyewitness finds himself when making the observation;
(5) the existence or otherwise of the evidence of other witnesses confirming or contradicting the evidence of the original eyewitness;
(6) the existence or otherwise of other evidence, direct or circumstantial, of facts or circumstances independently proved. R v Uno Tam and Marau U'U (1973) No. 766"
23. I also note the useful observation (applied in John Beng v State) by the Court of Criminal Appeal of Victoria in R v Preston [1961] VicRp 115; [1961] VR 761 at 762 by Lowe J while referring to the High Court decision in Raspor v R [1958] 346 where he said at p. 762:
"Appropriate warning...must depend upon the circumstances of the case before the Court. There is no rule of law that the evidence of one witness as to identification is insufficient, nor is there any rule of law that there must be a police parade for the purpose of identification, nor is there any rule of law that in every case a warning must be given; it all depends upon the circumstances of the case before the Court." (emphasis added).
24. As the State's case consists entirely of tested sworn evidence and the defense of an unsworn statement I remind myself, as the tribunal of fact, of how I should treat that unsworn statement by reference to the following passage:
"The jury should take the prisoners statement as a possible version of the facts and consider it with the sworn evidence giving it such weight as it appears to be entitled to in comparison with the facts clearly establish by the evidence": The State v Kasaipwalova [1977] PNGLR 257.
Section 8 of the Criminal Code provides:
Where-
(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and
(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,
each of them shall be deemed to have committed the offence.
25. In relation to the Accused's submissions that the State should give notice of its intention to rely on Sections 7 and 8 no authority was referred to and I have been unable to find any. I cannot think of any reason why the submission should be right. Section 7 and 8 of the Criminal Code are part of the general Criminal Law and every defense lawyer must be aware that where his client is charged with an offence in respect of which no evidence directly implicates the accused but implicates his associates, the accused may be found guilty by reason of the provisions of Sections 7 or 8. I reject the submissions that there is an obligation on the prosecution to give notice of intention to rely on those sections.
26. Moving on to the law applicable to the admission of facts found in a trial of the accused's co-accused in which the accused was not in jeopardy, Phipson On Evidence 14th edition, Sweet and Maxwell states the law as follows in paragraph 33-95:
"the bulk of the authorities comprises cases involving previous convictions as evidence in subsequent civil cases. However it is probably safe to say that, notwithstanding recent criticisms of the decision which have higher authority the rule in Hollington V. Hewthorn Ltd. [1943] K.B.587 still applies in all cases not covered by a common-law exception or the various statutory exceptions. Thus the conviction of A for theft would prior to the coming into force of the Police and Criminal Evidence Act 1984 have been inadmissible as against B where the latter was charged with handling the goods, the subject of the first case (see R V Turner (1832) 1 Moo.C.C. 347). "
27. It must follow, that if the conviction of an associate or a co-accused cannot be admitted into evidence, the facts found in the trial leading to the conviction also cannot be admitted into evidence in a separate trial of another co-accused for the purposing of tending to show the guilt of the latter.
28. In relation to the particular offences charged I note that s.394 of the Criminal Code provides that a person shall be deemed to break the building if they break any part, external or internal, of the building.
29. Turning now to the question of whether there is an alternative verdict available under section 396 (breaks and enters a dwelling house of another) if the element of committing or intending to commit an offence in the house under section 395 is not proven, I turn to section 538 of the Criminal Code which provides:
"Subject to this Division, on an indictment charging a person with an offence committed with circumstances of aggravation, he may be convicted of any offence that is-
(a) established by the evidence; and
(b) constituted by an act or omission that is an element of the offence charged,
with or without any of the circumstances of aggravation charged in the indictment."
30. The Criminal Code s. 1 defines "circumstances of aggravation" in the following terms:
"Circumstances of aggravation includes any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance;"
31. There are two views of the relationship between sections 395 and 396, one based on a liberal interpretation of the phrase "circumstances of aggravation" and the other on a strict and narrow analysis of the provisions of section 538 and what can constitute a circumstance of aggravation.
32. The first view is that to break, enter and commit a crime is an aggravated form of stealing. This was the view taken by the Queensland Court of Appeal in R v Short [1928]St R Qd 246 (Short, Grealey and Plint (1928) St R Qd 246,) and followed in R. v Mai (infra) and Tai Kenang v Simon Kasper [1984] PNGLR 102. Short remains the law in Queensland, and is authority for the proposition that on a charge of break and enter with intent to steal the jury should be told that they can convict of stealing only if the break and enter is not proven. See Tognolini [1983] 1 Qd R 99 applied and followed in R v Chan [2000] QCA 357.
33. It has also been held that the alternative verdict of unlawful entering with intent to commit a crime was available on a charge pursuant to section 419 (now 395) in the case of R v Daugamani-Adamanika [1965-1966] PNGLR 80 (Mann CJ) where breaking was not proved, because the legislative intention was that the two sections should only differ in degree but are of similar character, the aggravated ingredient of house breaking being the difference.
34. Although not always specifically enunciated all of these cases appear to proceed on the basis that the definition of "circumstance of aggravation" in s1 of the Code is inclusive, that is it is not limiting by what the section defines, it provides that the defined circumstances are included in the meaning of "circumstances of aggravation". From there the argument goes that where there are similar offences, differing in degree by the addition of a further element, that element can be treated as a "circumstance of aggravation" within the meaning of s.538. In Queensland this argument, on the authority of Short, has been extended to the offences of doing grievous bodily harm with intent and grievous bodily harm simpliciter. The Court of Appeal of Queensland has held the latter is an alternate verdict to the former if intent is not proven: See Rehavi [1998] QCA 157; [1999] 2 Qd R 640. Thatonsistent with tith the views expressed much earlier in this jurisdiction in R v Bawai-Pesoi [1965-1966] PNGLR 210 ( J) agh a reading of that judgment shows it to be principally founded on the applicatiication ofon of Section 542 of the Code which reads:
542. Charge involving specific result.
(1) On an indictment charging a person with an offence of which the causing of some specific result is an element, he may be convicted of any offence of which an intent to cause that result, or a result of a similar but less injurious nature, is an element.
(2) On an indictment charging a person with an offence of which an intent to cause some specific result is an element, he may be convicted of any offence that is established by the evidence and of which the unlawful causing of that result is an element.
35. In the text Criminal Law and Practice of Papua New Guinea; Chalmers, Weisbrot, Injia, & Andrew at page 374 (last paragraph) it is said:
"a conviction under this section (396) is possible rather than that available under s395(c), on the basis that stealing can be regarded as a "circumstance of aggravation" to breaking and entering under s538: The State v Joseph Evara (1979) N201".
36. The State v Joseph Evara was a decision of Prentice CJ and a careful reading of the decision shows that it does not stand for the proposition cited. His Honour was merely trying to state what he assumed to be the rationale behind counsel's submission. In that case his Honour makes no finding on the point although he noted that the case of R v Gahosoa Simbane [1975] PNGLR 257 (Raine J) was authority contrary to the proposition put by counsel. He also refers to the decisions in R v Mai (infra) and R v Kepo [1975] PNGLR 275 as "dealing with similar submissions", although an examination of that latter case shows the point there under consideration to be quite different.
37. In R v Mai [1975] PNGLR 230 (Prentice J. as he then was) it was held that in the offence of breaking into without lawful excuse with "intent to commit a crime" (then s. 419A), intention to commit a crime was a circumstance of aggravation. His Honour said:
"I am of the opinions that the element of 'intention to commit a crime' after a break and enter is a ' circumstance of aggravation', as defined in s1 of the Code and as used in s575 (now s538) thereof. The offence created under s419 which carries a 14 year penalty is, in my opinion, that provided for by s.419A (which carries a three year penalty), with the addition of the circumstances 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 in it of 'break and enter without lawful excuse'."
38. His Honour cites no authority for the interpretation. Interestingly his Honour does not cite his earlier obiter comments to the opposite effect in R v Griffin (infra) .
39. The alternative view is that regard must be had to the primary meaning of "circumstances of aggravation", that section 538 cannot come into play unless there is a "circumstance of aggravation" as defined (as distinct from included) by section 1 of the Code charged in the indictment. In section 395, the only circumstance with which the accused can be charged which increases the penalty to which he may be liable, is that the offence was committed in the night. None of breaking, entering or committing or intending to commit a crime is a circumstance of aggravation within the meaning of section 1 of the Code. They are just elements of the offence. This is the line of reasoning (obiter) followed in R v Griffin [1974] 72 (Prentice J as he then was), where he doubts the authority of the Short case, and in R v Gahosoa Simbane [1975] PNGLR 257 where Raine J also doubts the authority of Short's case.
40. It is clear from the definition of "circumstance of aggravation" in Section 1 of the Code that the definition does not close the categories of circumstances of aggravation. Section 528(3) contemplates that a previous conviction might be a circumstance of aggravation. Section 528 (3) & (4) provide:
(3) Where the circumstance of aggravation intended to be relied on is a previous conviction, the conviction shall not be charged in the indictment, but written notice of an intention to rely on it as circumstance of aggravation shall be served on the accused person or his lawyer, before the commencement of the trial.
(4) Where a written notice has been served in accordance with Subsection (3) and the accused person has been convicted—
(a) of the offence charged in the indictment; or
(b) of any other offence of which he might be convicted under the indictment,
the prosecution may, after the conviction of the accused person but before sentence is imposed, allege and prove the previous conviction.
(5) On proof of the previous conviction the court may—
(a) convict the accused person of the aggravated offence as if the previous conviction had been charged in the indictment; and
(b) substitute a conviction for the aggravated offence for the conviction already recorded in the trial,
and the accused person is liable to punishment accordingly.
41. The provisions are not addressed to the usual sentencing situation where a previous offence might be taken into account as a circumstance warranting a higher sentence within the range for the offence charged. The provision is directed to an offence which contains in the words of the offence a specific element of aggravation being a previous conviction and contemplates that the offence will prescribe a different punishment if that element of aggravation is proven. Those circumstances would fall within the definition in s1 of the Code. Section 528 is therefore of no assistance in providing from within the Code authority for an undefined "circumstance of aggravation".
42. There is obviously a lot of practical utility in the Short's Case approach because it avoids acquittal of a person clearly guilty of an offence, albeit one not as serious as that contained in the indictment but of a similar nature. And as was mentioned in Rehavi(supra) the availability of the lesser charge reduced the temptation to infer the intent when it has not been strictly proven. It also avoids the need to lay multiple alternate charges in an indictment.
43. Is there any unfairness to the accused in the application of the Short line of cases? So long as all of the elements of the offence, and any circumstances of aggravation, are set out in the indictment and the accused has the opportunity to challenge the evidence of any State witness and to call his own evidence in accordance with Constitution s.37 I see no unfairness to the accused. If there was no authority in Papua New Guinea following Short then the accused might be able to say it was unfair to follow that line of cases because the accused is entitled to believe that if one element of the offence is disproved then the prosecution fails. Therefore where the accused is certain of disproving one element there is no necessity of attempting to disprove the other elements because disproving one element is sufficient for an acquittal. I do not consider that argument can be made when there has been no appeal and no dissent from R v Mai & Tai Kenang v Simon Kasper (supra). When I say no dissent, I mean no dissent formed by the ratio decidendi of a case as distinct from obiter comments such as those contained in R. v. Griffin and R v Gahosoa Simbane (supra).
44. Section 542 does not assist because whether one relies upon ss(1) or (2) the specific result with which the accused is charged, in this case intent to commit a crime, must be proven. Once it is proven the accused may be convicted of any offence of which it is an element. But if the intention to cause a specific result is not proven s.542 is of no assistance.
45. I have decided that I will follow Short, R v Mai & Tai Kenang v Simon Kasper (supra) and the other Queensland cases cited and hold that where the State fails to prove the intention to commit a crime on a charge under s.395 an alternate verdict under s.396 is available. And I do so on the basis that the "circumstances of aggravation" as defined by the Code is not closed by that definition and "circumstances of aggravation" in s.538 may include an element of an offence. Section 395 is the basic charge contained in s.396 with the addition of the element "intent to commit a crime".
This Case
46. The first issue is whether I can be satisfied that it is safe to accept the identification of the accused by the two State witnesses. Lynn Nakikus established a prior acquaintance with the accused in some detail and I am satisfied that she is well acquainted with the accused. I am also satisfied that she had a relatively long period of time to observe the accused on a bright moonlit night.
47. I note that the accused was not named in relation to specific acts in Lynn Nakikus's police statement, but I do not regard that as of particular significance because (a) Dominic Kamrai clearly took the leading role and it would be natural to name him as the lead player in a statement, also, (b) because the witness prepared the statement herself and the police asked her to be brief. The witness would naturally be more focused, in giving her statement, on the activities of Dominic because he was the person who swung the knife at her. I do not consider that any of those facts detract from the evidence which the witness has given against the accused. Over all I consider that notwithstanding the lighting difficulties and her fear, the opportunity for observation by Lynn Nakikus was good and it was recognition rather than identification because the accused was a person with whom she was quite familiar. I find that Lynn Nakikus properly identified the accused.
48. The accused was identified in a group of young men intent upon creating mayhem, no doubt with a view to generally terrorizing the occupants of Lynn Nakikus's house. The only reasonable inference to draw from their behaviour is that their common purpose was to strike fear into the occupants of the house and the evidence of their intention to form that common purpose is derived from their common behaviour.
49. Therefore I am satisfied that the accused and his friends were prosecuting an unlawful common purpose for which the intention had been earlier formed by them. By acting jointly they were also aiding and abetting each other in the commission of an offence.
50. There are three essential elements to a charge under section 395 of the Code; the first is that there is a breaking. Section 394 provides that the breaking can be the breaking of any part external or internal. The evidence clearly shows that the external walls of Lynn Nakikus' house were broken or cut. Secondly there must be an entry. Lynn Nakikus's evidence is that Dominic entered the building. The accused did not enter the building.
51. The third element is that there must be a crime committed within the dwelling house, or it must be established that there was an intention to commit a crime in the dwelling house. The evidence adduced by the State does not establish that any offence was committed within the dwelling house, nor is there any evidence of the intention of Dominic in entering the house. I therefore find the accused not guilty of breaking and entering with intent to commit a crime pursuant to s.395 but guilty of breaking and entering pursuant to s.396.
52. Moving on to the second and third counts, it is clear from the evidence of Kavanamur Wartovo that she was much less familiar with the accused than Lynn Nakikus. He was however someone that she had met previously and spoken with some years before and whom she saw occasionally coming to the store adjacent Nasain Nakikus's house. The opportunity for observation was brief and the conditions were difficult because of the lack of light. The only light was from the moon light entering through the window which had a white curtain. The witness had been hurt by having her leg stood upon and was frightened. Nevertheless the opportunity to observe the accused's face was from a distance of 4 or 5 cm. Sometime had elapsed between the smashing of the lights, the entry of Dominic and raping of Nasain until the entry of the accused into the room occupied by the witness. Time I find for the witness to be come accustomed to the limited light.
53. Counsel for the accused has submitted that the fact that the accused touched the witness's stomach to confirm her pregnancy was an indication of how difficult the lighting was. Of course another explanation is that the accused was suffering from the unobservant state of the inebriated. I note there was obviously sufficient light for the person who came into the room to detect the witness in the room and for him to identify and grasp her hand to pull her to her feet. Later there was sufficient light for him to identify the presence of another woman in the room and to lay hold of her. These observations by the person who came into the room may have been only of general shapes, of prone bodies while he was standing. That is, there was sufficient light to detect these shapes from his standing position. To my mind then it is therefore very probable that there was sufficient light to give a clear identification of the accused from a distance of 4 or 5 cm.
54. The identification made by Kavanamur Wartovo is supported to some extent by Lynn Nakikus's identification of the accused a short while before hand in the same general area and behaving in a wild manner in the company of others. In those circumstances I consider it is safe to accept the identification that Kavanamur Wartovo has made.
55. There is no direct evidence against the accused in relation to the break enter and stealing at the store. The evidence is circumstantial, being that he was identified at the house of Lynn Nakikus, he was seen heading in the general direction of the store and the house of Nasain Nakikus. He was then seen in the house of Nasain Nakikus. It seems to me that it would be a completely irrational inference to draw, that the accused withdrew himself from the marauding party as it reached the store and rejoined in time to enter the house of Nasain Nakikus. To my mind the only rational inference to be drawn from the whole of the circumstances, is that the accused was a member of the marauding party throughout and was thus part of that party when it broke into and stole goods from the store.
56. I find therefore from the evidence of Lynn Nakikus and Kavanamur Wartovo that the accused was with the group of people who attacked Lynn Nakikus's and Robin Roboam's houses and then went on to break open the store adjacent Nasain Nakikus's house and plundered it, using some of the contents as missiles to attack Nasain Nakikus's house. Thereafter they broke down the door of Nasain Nakikus's house and Dominic and the accused entered the house and the accused assaulted Kavanamur Wartovo.
57. In terms then of count two the State has adduced evidence that the store was broken into, that members of the group entered the store and stole the goods in it (in that they moved those goods and converted them to their own use). So that in terms of section 398 there is evidence of a breaking of the store, there is evidence of entry to the store and of a crime of stealing having been committed within it. Therefore I am satisfied that all the elements of section 398 have been met by the case for the State. It is an inevitable inference, and the only logical one, from the flow of events that the accused was part of that group who broke and entered the store and he is guilty as charged by virtue of his presence and s.7 of the Code.
58. Moving on to count three, there is evidence of breaking of the house of Nasain Nakikus and of entry into the house by Dominic and the accused. There is evidence of an assault committed in the house by the accused upon the witness, Kavanamur Wartovo. I am therefore satisfied that in relation to count three all of the elements of section 395 have been met by the case for the State.
59. Against the detailed accounts of two witnesses identifying the accused at separate but relatively close places within a short timeframe, I cannot place any credence on the accused's unsworn statements that he knows nothing about the matters alleged in the indictment. I do not consider that the accused's answers in his record of interview assist him any more than his unsworn statement. Those answers are simply further assertions that he does not know or he is not sure. Even the partial explanation of his movements which he gives in the record of interview he does not repeat in the unsworn statement. The unsworn statement provides no alternative version of events for consideration of the court.
60. I am satisfied beyond reasonable doubt that the accused is guilty of the offences charged in count two and three of the indictment and I convict him of those two counts and of the alternative count to count one of breaking and entering contrary to s.396.
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