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Daugamani, Regina v [1965-66] PNGLR 80 (8 March 1965)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 80 - Regina v Daugamani-Adamanika

[1965-66] PNGLR 80

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

DAUGAMANI-ADAMANIKA

Port Moresby

Mann CJ

8 March 1965

CRIMINAL LAW - Burglary and housebreaking - The Criminal Code, ss. 418, 419, 420 - Meaning of “break” in the context of housebreaking - What mechanical device may be the subject of a “breaking” or an “opening” within s. 418 - Whether an alternative verdict lies under s. 420.

The court found that the accused entered a house and went to the refrigerator where he was apprehended. In the process of entering the house he pushed open two doors sufficiently to admit him. Each of these doors was unlocked and unlatched and it was contended for the defence that this did not constitute housebreaking.

Held:

(1)      On the authorities, the word “break” is used, in the context of housebreaking, prima facie in the sense of “actual fracture by the application of force”.

(2)      Authorities indicating that the operation of a latch, catch or lock constitutes an actual breaking should be considered with reference to the mechanical design of these devices which constitute functionally a complete bar to entry whilst in the set position, but incorporate in their design mechanical means for repeated release and re-setting of the mechanism. The mechanical device need not constitute a lock; it is sufficient if it has a latch which merely has to be lifted to release the door.

(3)      In the present case the doors were left partly open so that no question arose concerning the operation of any latch, lock or bar to gain entry through either doorway; nor were the doors held in a position by substantial weight or hinges of a kind which would require the application of substantial force, nor did they constitute an abnormal means of entry. Therefore, the opening of the two doors did not constitute a breaking of the house at common law and does not come within the first part of the statutory definition of burglary set out in s. 418 of the Criminal Code.

(4)      The word “opens” in the second part of the statutory definition means “opens something which theretofore was closed”, i.e., “fully closed”. The further opening of something already partly open does not come within s. 418.

(5)      On the facts, the accused was not guilty of breaking and entering a dwelling house in the night time with intent to commit a crime therein and not guilty of breaking and entering the said dwelling house. However, all the elements of the offence specified under s. 420 of the Code, viz: entering a dwelling house with intent to commit crime had been established and the court was required to return a verdict of guilty under this section.

Cases Referred To:

R. v. Smith[xxxix]¹; R. v. Robinson & Baccon[xl]²; R. v. Russell[xli]³; Callan’s Case[xlii]⁴; R. v. Haines & Harrison[xliii]⁵; R. v. Parry[xliv]⁶; Halley v. R.[xlv]⁷; R. v. Young[xlvi]⁸; R. v. Short[xlvii]⁹.

Trial on Indictment.

The facts are sufficiently stated in the judgment.

Counsel:

Smith, for the Crown.

Ley, for the accused.

8 March 1965

MANN CJ: The accused is charged with breaking and entering the dwelling-house of Peter Sidney Luxford in the night-time with intent to commit a crime therein and further he is charged with breaking and entering the same dwelling-house.

On the 28th January the occupant of the house, Mr. Luxford, left home for a few days. He returned on the following Tuesday, the 2nd February. When he was leaving, he left the key of the house with Michael Munsau, a domestic servant employed by him.

On Sunday, 31st January, 1965, Michael went to the house and according to his evidence found that some items were missing. The door of the refrigerator was open and some meat and beer had been removed from the refrigerator and some sheets were missing from the house. He says that the house was locked when he left it, but on the Sunday morning he found that the rear door leading to the kitchen was open and that some glass was broken. It appeared that somebody had broken into the house and taken the missing articles.

On the Sunday night Michael set in operation a scheme designed to catch the intruder, should he return. He left the doorway open to the same extent as it was when he found it on the Sunday morning, and concealed himself behind the stove in the kitchen with a shovel. It was necessary for anyone who entered the kitchen from the driveway to pass through two doorways. One was an outside fly-wire door, and the other was the inner door leading to the kitchen. Both of these doors were left slightly open. Michael’s evidence was not precisely clear on the point, but if I understood him correctly the wire door was open to the extent of about three inches and the inner door was open to such an extent that there was a gap of about an inch or less. Neither door was secured in that position in any way, and could be pushed fully open with very slight pressure.

Late on the Sunday night Michael heard footsteps on the driveway and realized that somebody was coming. He took the shovel and waited in a ready position. At this point occurs the only conflict in the evidence. According to Michael, he waited until the accused came in to the kitchen and went to the refrigerator door and commenced to open it. Michael immediately struck him on the wrist with the shovel, with the intention of marking him for the purpose of identification. The light was not on in the kitchen, and on being struck by the shovel the accused immediately shut the refrigerator door before the internal light of the refrigerator made any significant difference to the illumination in the room. There was a street light not far away, however, and Michael avers that he got a sufficient view of the features of the accused to be able to recognize him again.

According to the version given by the accused, he was coming along the drive, stumbling somewhat from the effect of drink. He thought that he was at a neighbouring house where he was employed and where the house and the garden were very similar in appearance. He placed his left hand on the handrail at the kitchen steps near the door. He says that Michael emerged from the house and immediately struck him on the hand with the shovel, inflicting a wound the existence of which is common ground.

According to both versions, the accused asked Michael immediately after he was struck, whether this was his house, and Michael replied that it was the house of his employer. Again according to both versions, the accused then walked away from the house, and going through the backyard, went a considerable distance to some servants’ quarters then unoccupied, went inside, fastened the door and went to sleep. Michael says he followed him and was able to see that the accused had gone to sleep, whereupon Michael sent for some friends who were nearby and who kept watch over the building whilst Michael went and fetched the police. The police found the accused with a fresh wound on his hand, asleep and in a condition suggesting that he had had a lot to drink. However, no goods were found either there or at the servants’ quarters where the accused was normally employed.

According to the evidence of the accused, he had been drinking throughout the day and had got through three large bottles of beer and a bottle of rum. Late in the evening he went out to meet a friend whom he expected to find drinking at the Boroko Hotel. There was no reason to suppose that the hotel would be open at that hour on Sunday evening, but it is possible that if his friend had been drinking heavily, he might be found somewhere in the vicinity of the hotel. The accused said that when he got there he could not find his friend. He says that he then left the hotel to seek out the laundry boy who had the key to the house where the accused was employed, so that the accused could open the house and feed the dogs which were kept there. The accused says that he had previously left the key with the laundry boy so that if he did not return in time, the laundry boy could feed the dogs. The employer of the accused was at the time away on leave.

Whilst proceeding on this mission, the accused says that he tried to smoke, but that this made his head spin, so he rested on the side of the main road. He was in the vicinity of Mr. Luxford’s house. Feeling very much the worse for drink and in a dizzy condition, he tried to find his way to his own servants’ quarters, but took the wrong road. Seeing a house of the same colour and with a similar driveway and garden, he thought he was at his own employer’s place, and went down the drive as far as the kitchen, where he paused and rested his hand on the rail, turning slightly towards the kitchen, when he was struck on the hand with the shovel. He was surprised and confused and asked whose house it was, and when told it was the house of Michael’s employer, he went off to a servants’ building nearby which he knew to be unoccupied, and decided to sleep there. He was asleep when the police came.

The substantial point of difference between the two versions of what took place is vital, for on it depends the question of whether the accused entered the house or not. Michael’s evidence appeared to me to be quite reliable, but requires critical examination, because it involves the danger that Michael, in his eagerness to catch the culprit who had broken into the house on the night before, might convince himself too readily that the first inebriated person to stumble down the drive was in fact the culprit. He was convinced that it was the culprit who was coming down the drive, and if the visitor’s approach were unduly delayed, it is not unlikely that Michael would be impelled by his own eagerness to go outside the door with the shovel and strike the accused, as the accused contended he did. Bearing in mind this risk, I have examined the evidence carefully and I am satisfied that Michael’s evidence is to be preferred on this point. He had made his plan carefully, and even though he might not fully appreciate the necessity for the visitor to enter the premises, this was an important part of the plan which gave Michael every advantage. A good deal of the evidence given by the accused shows that his recollection was very much blurred by drink, and his version of what happened at this point suffered from a glibness which did not strengthen his case. I am not prepared to believe him on this point.

I find that the accused did in fact enter the house on the Sunday night and go to the refrigerator where he was struck. In the process of going through the two doorways, he pushed each door open sufficiently to admit him.

I am not concerned to say whether the accused was the person who broke in to the house on the previous night. This issue is not before me, although a finding on this point might be of assistance to the Crown case. There is not sufficient evidence before me to support an inference as to the identity of the person who broke in on the night before.

The main question debated in argument was whether the action of the accused in pushing open two unlocked and unlatched doors to gain entrance to the kitchen constituted housebreaking. In argument an interesting proposition was discussed. It was to the effect that an open doorway implies an invitation to enter, whereas one which is closed is an intimation against entry. When the doorway is partly open, it is a question of degree and effect. A door standing ajar might be sufficiently open to constitute a substantial invitation to enter, whereas a door which is practically closed, leaving only a very slight gap through which somebody could not, might not.

I remanded the accused over the weekend, to give me an opportunity to look again at some of the older cases on this point. It now seems to me that I am not at liberty to approach the question of housebreaking in this way.

It has also occurred to me that in the Territory there is a particular danger of miscarriage of justice unless the nature of the required breaking is borne clearly in mind. Illustrating this very point was a question which arose in the course of the evidence in this case. The Pidgin expression, “em ibrokim banis”, was at first translated, “he broke the fence”, but in common usage in Pidgin the expression need not mean any more than might be conveyed by the expression, “em iwinim banis”, meaning “he gained, or passed, the fence”. The word “ibrokim” is frequently used merely to indicate that the person arrived from, appeared at, or burst into view, especially in expressions such as “ibrokim banis”, “ibrokim bus”, “ibrokim rot”, “ibrokim dor”, etc., where no question of damage is necessarily implied.

It seems to me in re-reading the older cases that the word “break” is used, in the context of housebreaking, prima facie in the sense of “actual fracture by the application of force”. In the normal case there is a special danger that when a housebreaking charge is being put to an accused through Pidgin-English, and the relevant part of the charge is interpreted as “Yu yet yu brokim haus”, the accused might justifiably understand this as meaning no more than that he entered the house.

It seems to me that the crime of burglary was developed as a premium offence carrying much heavier penalties than the larceny which is generally involved, because of the extremely dangerous situation created by intruders found in dwelling-houses at night time. The heavier penalty was not readily imposed in cases where the house was not securely locked, apparently in recognition of the obligation of the householder to make his premises secure against intruders.

Thus in R. v. Smith[xlviii]¹⁰, a window was observed to be fully shut at 8 or 9 o’clock in the morning. At noon it had been raised about a couple of inches and the prisoner was seen very near to the window at that time, but apparently the evidence was not sufficient to support a finding that he had opened it to that extent. However, the evidence did show, and the jury found on that evidence, that the accused later opened the window by raising the sash the second time to enable him to enter the house. The jury found that he had not opened the window the first time to a distance of a couple of inches or so. The judges met and held that there was no decision under which the additional opening involved in raising the window sash was regarded as an act of housebreaking, and they decided that he ought not to be convicted.

In contrast, in the case of R. v. Robinson and Bacon[xlix]¹¹, the prisoners were found guilty after all the judges, other than three, had met and discussed the case and had come to the unanimous conclusion that the prisoners had committed a sufficient act of breaking. In that case, a square of glass in the casement window had been previously broken by accident, and half of it was out of the frame. The aperture was sufficient to admit a hand but not sufficient to admit a person’s arm far enough to undo the fastening of the casement. One of the prisoners thrust his arm through the aperture, thereby breaking out the residue of the square of glass, and removed the fastening of the casement, which was then opened. The judges entertained some doubts whether the enlargement of an existing hole in a building constituted a breaking. This doubt did not need to be resolved in that case, for all the judges who were consulted were of the opinion that the unfastening and opening of the window constituted in itself a sufficient breaking.

This and the other cases indicating that the operation of a latch, catch or lock constitutes an actual breaking should be considered with reference to the mechanical design of these devices which constitute functionally a complete bar to entry whilst in the set position, but incorporate in their design mechanical means for repeated release and re-setting of the mechanism. It was decided in many early cases that the removal of such a mechanical bar constituted an actual breaking. Similarly in the case of breech-loading firearms, the expression “break the gun” is commonplace, and mechanically accurate.

Generally speaking, the lifting of a closure such as a flap which is not fitted with a lock or latch and was merely held down by its own slight weight, did not constitute housebreaking, but in cases where the closure was especially heavy, requiring substantial force to move it and was not a normal entrance, the occupier was apparently entitled to assume that law-abiding people would not choose this as a mode of entry, and the weight of the flap was in itself “a security” (Callan’s case[l]¹²). Thus in R. v. Russell[li]¹³, the prisoner raised a heavy trap-door gaining entrance to a cellar which was part of the house. The jury found that on this occasion the flap had not been nailed down, but nevertheless the judges thought that the lifting of the heavy flap was sufficient to constitute a breaking. This may be a border-line case, for in Callan’s case[lii]¹⁴, the judges had been divided in their opinion. in R. v. Haines and Harrison[liii]¹⁵, the act of pulling down an upper sash of a window which was not at the time in question fastened by any catcher or latch but was held in place by counter-weights operating through pulleys, was held to be a sufficient breaking in the circumstances. Evidently the window had been fully closed, and not partly open.

It is not necessary to examine all the earlier cases. It seems to me that the common law position was clarified by the decision of the New Zealand Court of Appeal in R. v. Parry[liv]¹⁶. This again was a case of unlatching a window fitted with a mechanical device which enabled the casement to be fixed in any of a series of positions. R. v. Smith[lv]¹⁷ was relied on for the proposition that merely to open further a window already partially opened did not constitute a breaking, but in Smith’s case[lvi]¹⁸ there had been no latch, and the New Zealand Court of Appeal had no difficulty in drawing this distinction.

It is clear from the cases cited by the Court of Appeal that the mechanical device need not constitute a lock; it is sufficient if it has a latch which merely has to be lifted to release the door. The illustration is given of the door of a ship’s cabin, which may be held in position by a hook so as to prevent entry. A person who merely lifts the hook in order to release the door to gain entry is performing an operation sufficient to constitute breaking of the cabin. But to constitute a breaking he must at least do this.

The decision in Halley v. R.[lvii]¹⁹ was also referred to me in argument. With respect, I adopt the view expressed by the Court of Appeal in R. v. Parry[lviii]²⁰, in relation to that case.

In the case at present before me there was no question of operating any latch, lock or bar to gain entry through either doorway. The doors were not held in a position by substantial weight or hinges of a kind which would require the application of substantial force, nor did they constitute an abnormal means of entry. The doors were left partly open, and it may be significant that Michael deliberately left them in this position in the hope that the previous intruder would return and see at once that the doors were not fastened, and that he could easily get into the kitchen. It would, of course, also serve as an indication that the occupants were still away from home.

I conclude therefore that on the occasion in question the opening of the two doors did not constitute a breaking of the house at common law, and therefore does not come within the first part of the statutory definition of burglary set out in s. 418 of the Code.

I must now consider whether the action in pushing the doors further open comes within the second part of that definition, which is governed by the phrase “or opens by unlocking, pulling, pushing, lifting or any other means whatever any door”, etc. It is clear that the accused either pushed or pulled (or both) each of the two doors, thereby increasing the opening, but if the doors were already partly open, what was the position? Did he then “open” the doors? On this point Halley v. R.[lix]²¹ is direct, even if unsatisfactory, authority. Omitting now the question of a latch or catch, which is not relevant to the case before me and was overlooked in Halley’s case[lx]²², and treating the case as if the further opening of the window had been the only question, it is clear that the Court of Criminal Appeal in Halley’s case[lxi]²³ was of the opinion that for this reason at common law this would not constitute a breaking. If we now substitute the word “open” for the word “break”, as has been done in s. 418, I think that Smith’s case[lxii]²⁴ still applies, and that the reasoning of Halley’s case[lxiii]²⁵ is also applicable.

I think that R. v. Robinson and Bacon[lxiv]²⁶ did not decide that the enlargement of a hole in a window could not constitute a breaking. The court found a more ready solution in the removal of the catch, and left the other question open.

In the light of this and the previous doubts expressed by the judges as to the enlargement of existing holes and openings, even by the application of force in cases of breaking, I think that the word “opens” as used in s. 418 of the Criminal Code should be understood to mean “opens something which theretofore was closed”, that is, “fully closed”, and not merely increasing, and by normal means, an existing opening.

It seems to me that the second definition in s. 418 clarifies cases of uncovering flaps and coverings which are not secured by bolts or catches, but it does not alter the requirement that the whole operation of opening the passageway would be performed by the accused.

I find therefore that the accused did enter the building, but that he did not actually break it or actually open the door within the meaning of the definition. It is not contended that the accused is guilty of constructive housebreaking, as defined later in the section.

I accordingly find the accused not guilty on each of the two counts before me.

The question arises whether on the finding at which I have arrived, the accused is liable to conviction under s. 420 of the Code, for entering a dwelling-house with intent to commit a crime.

I think that that intention was manifestly established by the actions of the accused in going to and opening the door of the refrigerator in which food and alcoholic drinks were kept. Under s. 575, the accused may be convicted of this latter offence, if the added ingredient of breaking required to constitute an offence under s. 419 may properly be regarded as a circumstance of aggravation. In R. v. Young[lxv]²⁷, the question was dealt with in its application to stealing as an alternative verdict. A similar question arose in R. v. Short[lxvi]²⁸. Young’s case[lxvii]²⁹ appears to me to be an unsatisfactory authority for the proposition that a charge of breaking and entering and stealing does not amount to a charge of stealing under aggravated circumstances. McMillan J. dissented from this opinion, which was expressed by Parker J. and agreed to by Burnside J. The view taken was based largely on the proposition that in the Western Australian Code the sections relating to burglary, housebreaking and like offences appeared in a chapter under that heading, whereas simple larcenies and stealing with circumstances of aggravation appeared in a different chapter.

If it is in order to arrive at such a conclusion without reference to the historical background of the development of these offences at common law, it seems to me that the reasoning still does not apply to the case at present before me, because under the Queensland Code as adopted, the first offence charged under s. 419 is labelled “house-breaking”, and the contemplated alternate offence defined in s. 420, which is labelled “entering a dwelling-house with intent to commit crime” is specified in identical language but omitting reference to the element of breaking.

On this question, R. v. Short, Grealey and Flint[lxviii]³⁰ is to be preferred. Although the point was not extensively canvassed in argument, the court appears to have been strongly of the view that it was open to the jury to convict the accused of stealing, by virtue of the provisions of s. 575 of The Criminal Code, and that the omission of a direction to the jury to that effect amounted to a miscarriage of justice. In this case, as in the case of R. v. Young[lxix]³¹, there was a problem in relation to receiving. In Short’s case[lxx]³², conviction for receiving was not open on the form of the indictment as it stood, but Macnaughton J. concluded that if the question had arisen, a simple amendment would have cured it by adding a count for receiving. Short’s case[lxxi]³³ supports the view that historically burglary is to be regarded as a highly aggravated form of stealing when looking at the substance of the offence. When looking at the form in which the two neighbouring offences are now expressed in ss. 419 and 420 of the Criminal Code, it seems to me to be clear that the legislature intended that these two offences should be regarded as similar in character and differing only in degree, depending on whether or not the aggravating ingredient of housebreaking was present.

Accordingly I think that all the elements of the offence charged under s. 419, with the exception of breaking, having been established on the facts, it is now open to the court, and indeed on my findings the court is required, to return a verdict of guilty of the offence specified in s. 420.

Verdict: Guilty of entering a dwelling-house with intent to commit a crime therein, to wit stealing, in the night.

Note: The prisoner, who had a substantial list of prior convictions relating to alcohol and being unlawfully on premises, was sentenced to two years’ imprisonment with hard labour.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

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

[xxxix](1828) 1 Mood. C.C. 178; 168 E.R. 1232.

[xl](1831) 1 Mood. C.C. 327; 168 E.R. 1290.

[xli](1833) 1 Mood. C.C. 377; 168 E.R. 1310.

[xlii](1809) Russ. & Ry. 157; 168 E.R. 736.

[xliii](1821) Russ. & Ry. 451; 168 E.R. 892.

[xliv][1957] N.Z.L.R. 846.

[xlv](1938) 40 W.A.L.R. 105.

[xlvi](1905) 7 W.A.L.R. 256.

[xlvii](1928) Q.S.R. 246.

[xlviii](1828) 1 Mood. C.C. 178; 168 E.R. 1232.

[xlix](1831) 1 Mood. C.C. 327; 168 E.R. 1290.

[l](1809) Russ. & Ry. 157; 168 E.R. 736.

[li](1833) 1 Mood. C.C. 377; 168 E.R. 1310.

[lii](1809) Russ. & Ry. 157; 168 E.R. 736.

[liii](1821) Russ. & Ry. 451; 168 E.R. 892.

[liv][1957] N.Z.L.R. 846.

[lv](1828) 1 Mood. C.C. 178; 168 E.R. 1232.

[lvi](1828) 1 Mood. C.C. 178; 168 E.R. 1232.

[lvii](1938) 40 W.A.L.R. 105.

[lviii][1957] N.Z.L.R. 846.

[lix](1938) 40 W.A.L.R. 105.

[lx](1938) 40 W.A.L.R. 105.

[lxi](1938) 40 W.A.L.R. 105.

[lxii](1828) 1 Mood. C.C. 178; 168 E.R. 1232.

[lxiii](1938) 40 W.A.L.R. 105.

[lxiv](1831) 1 Mood. C.C. 327; 168 E.R. 1290.

[lxv](1905) 7 W.A.L.R. 256.

[lxvi][1928] Q.S.R. 246.

[lxvii](1905) 7 W.A.L.R. 256.

[lxviii][1928] Q.S.R. 246.

[lxix](1905) 7 W.A.L.R. 256.

[lxx][1928] Q.S.R. 246.

[lxxi] [1928] Q.S.R. 246.