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Tiki-Nori v Thackeray [1967-68] PNGLR 37 (16 May 1967)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 37 - Tiki-Nori v Thackeray

[1967-68] PNGLR 37

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

TIKI-NORI

V.

THACKERAY

Goroka & Port Moresby

Frost J

20 March 1967

6 April 1967

16 May 1967

CRIMINAL LAW - Being at place adjacent to dwelling house without lawful excuse - Lawful excuse - Onus of proof - Police Offences Ordinance 1925-1965, s. 70(1)(m).

Section 70(1)(m)[xlviii]¹ of the Police Offences Ordinance 1925-1965 places the persuasive burden of proof of lawful excuse upon the defendant and such burden may be discharged by evidence satisfying the court merely of the probability that the defendant’s entry upon the dwelling house or place adjacent to it was with lawful excuse.

R. v. Ward, [1915] 3 K.B. 696 and Clark v. The Queen [1884] UKLawRpKQB 215; (1884), 14 Q.B.D. 92, referred to. R. v. Carr-Briant, [1943] K.B. 607, applied.

In the early hours of the morning the defendant had been adjacent to a dwelling house occupied by the informant, a police corporal’s wife, and their family. When she saw the defendant, a policeman well known to her, she inquired why he was there. He replied “Meri, Meri” (meaning “woman, woman”) and went away in the direction of his own house.

Held:

(1)      On these facts the defendant has shown lawful excuse if he shows that he is not guilty of conduct that is preparatory to or in furtherance of some purpose relating to offences other than those of a minor nature or of conduct which by reason of its violating recognized standards of decency, tranquillity 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.

Hayes v. Stevenson (1860), 3 L.T. 296; Carter v. Reaper[1920] VicLawRp 57; , [1920] V.L.R. 337; Ledwith v. Roberts, [1937] 1 K.B. 232, at p. 270 et seq.; Wilkins v. Condell[1940] SAStRp 20; , [1940] S.A.S.R. 139; R. v. The County of London Quarter Sessions Appeals Committee, [1948] 1 K.B. 670; Everett v. Ribbands, [1952] 2 Q.B. 198; Haisman v. Smelcher[1953] VicLawRp 62; , [1953] V.L.R. 625; Poznanski v. Stosic, [1953] S.A.S.R. 132; Roffey v. Wennerbom; Ex p. Wennerbom, [1965] Qd.R. 42 and Boas Tito v. Konzib (unreported, S.Ct., P. & N.G., 30th Mar. 1966, Mann C.J.), referred to.

(2)      That the only inference which these facts could fairly support was that the defendant had come to see the informant to engage in coquetry of an exploratory nature, but not to take the matter any further if he received no encouragement; this inference was sufficient to show “lawful excuse” within the meaning of s. 70(1)(m).

Decision of District Court at Goroka reversed.

Appeal.

On 28th November, 1966, Tiki-Nori was convicted by the District Court at Goroka of an offence under s. 70(1)(m) of the Police Offences Ordinance 1925-1965 and was sentenced to be imprisoned for three months. His appeal to the Supreme Court was on the grounds that the conviction was wrong in law, and that the sentence was excessive. The facts appear hereafter in the reasons for judgment.

Counsel:

Broadley, for the appellant.

Croft, for the respondent.

Cur. adv. vult.

16 May 1967

FROST J:  This is an appeal brought by one Tiki-Nori against his conviction on 28th November, 1966, by the District Court at Goroka of the offence of being without lawful excuse adjacent to a dwelling house contrary to the Police Offences Ordinance 1925-1965, s. 70 (1)(m), whereby he was sentenced to be imprisoned for three months. The grounds of the appeal are that the conviction was wrong in law, and that the sentence was excessive.

Evidence was called by the informant that the appellant was at night time, in the early hours of 26th November, 1966, outside the house occupied by the family of one Corporal Pip in the police married quarters at Goroka. The corporal’s wife, Mita-Maim, who laid the information, swore that on the night in question, viz. 26th November, 1966, she was in the house with her son Kupti and daughter, her husband being away on patrol in the Bena. Early on the Saturday morning she was awakened by sounds at her window and at the back of the house. She got up and put on the outside light. Kupti went out first and she followed him. She saw the appellant, who was also a policeman, and whom she knew very well, at the back of the house. She asked him, “What do you want?” He did not answer the question but said, “Mary, Mary”, and then went away in the direction of his house. (I have given the account in the depositions, but I take it that the appellant was using the pidgin word “meri” meaning “woman”.) She had not asked Tiki to come to her house. Except for his boots he was not in police uniform.

Kupti also gave evidence that he was awakened by noises outside the house, that someone was knocking, and when he went outside he saw Tiki at his mother’s bedroom window. When his mother came out, the appellant ran away.

The appellant’s defence was that of a complete denial of the evidence of Mita-Maim and Kupti. His evidence was that on the night in question, he slept in the single quarters at the police barracks. He said that the evidence of the woman and her son was all lies. The learned magistrate accepted the evidence of Mita-Maim and Kupti, disbelieved the appellant, and convicted him.

It is now necessary to turn to the Ordinance. It provides as follows:

“Part VI.—Vagrancy and Kindred Offences.

Section 68 . . . .

Section 69 . . . .

Section 70

(1)      Any person who . . .

(m)     is without lawful excuse (the onus of proof of which excuse shall lie upon the person) in or upon any dwelling house etc. . . . or at a place adjacent to any dwelling house . . .

shall be guilty of an offence.

Penalty: Imprisonment for one year ...

(3)      Any person convicted of an offence against this section shall be deemed to be a rogue and vagabond.”

This part of the Police Offences Ordinance is derived from the English vagrancy laws which were first introduced in mediaeval times. The long history of this legislation is set out in the judgment of Scott L. J. in Ledwith v. Roberts[xlix]². The legislation was directed to the major political problem over four or five centuries arising from “the hordes of unemployed persons, many of them addicted to crime, then wandering over the face of the country”, ibid. p. 271. The present division of offenders under the Territory Ordinance into the three classes of idle and disorderly persons, rogues and vagabonds, and incorrigible rogues, dates from the English Vagrancy Act of 1824. The scheme of the legislation is to define a series of offences on conviction of any of which an offender is to be deemed “an idle and disorderly person”, “a rogue or vagabond”, or “an incorrigible rogue”, as the case may be. Members of these classes are liable to drastic powers of search and arrest being exercised upon them: Police Offences Ordinance, ss. 77 and 78. Under s. 70 of the Ordinance the offences which lead to conviction as a rogue and vagabond are set out. They relate, generally, to dishonesty, gaming or conduct of a criminal nature.

Mr. Broadley’s main submission was that having regard to the nature of these offences, and the maximum sentence provided, viz. imprisonment for one year, s. 70(1)(m) (supra), is concerned with conduct in which there is an element of criminality, and he went on to argue that on the present facts it had been shown on the informant’s evidence that this essential ingredient was missing. He relied on Hayes v. Stevenson[l]³; Carter v. Reaper[li]⁴; Haisman v. Smelcher[lii]⁵; Roffey v. Wennerbom, Ex p. Wennerbom[liii]⁶; Boas Tito v. Konzib[liv]⁷.

Hayes v. Stevenson[lv]⁸ was decided under the corresponding section of the English Vagrancy Act 1851, which is notably different from the Territory section. It provides that, inter alia, every person being in or upon any dwelling house, etc. for any unlawful purpose, shall be deemed a rogue and vagabond. The Court held that an immoral purpose was not within the meaning of the Act and accordingly the appellant, who had entered the premises for the purposes of fornication, was entitled to an acquittal. The section was directed to purposes which were a breach of the criminal law (ibid).

When this legislation was introduced into Australia material changes were made which have led to difficulties of construction and application. In South Australia the onus of proof was unchanged, but the provision was widened, the offence being committed by any person who is found on the premises referred to “for any unlawful purpose, or without lawful excuse”: Police Act 1936, s. 86 (1).

Under the Queensland Vagrancy Act of 1931, s. 4, which is in similar terms to the Victorian legislation (now the Police Offences Act 1958, s. 72(1)(m)), the words “for any unlawful purpose” have been omitted and the words “without lawful excuse (the proof of which shall be upon him)”, have been substituted. The Territory section substantially follows this State legislation, and its application is extended to the presence of the defendant at a place adjacent to the enumerated premises.

The Victoria and Queensland decisions are thus directly in point. In Carter v. Reaper[lvi]⁹ the defendant entered, together with several detectives, the dwelling house of the informant for the purpose of seeing if her husband was committing adultery (which she suspected) with the wife of the informant. It was held that the defendant was not found in the dwelling house without lawful excuse within the meaning of that section.

It was argued that the words “lawful excuse” are confined to cases either of entry on legal right or with an honest belief in the existence of such a right. The Court held that:

“the words ‘lawful excuse’ cannot be limited in the way suggested . . . a person may be found in another’s house without any right, or honest belief in the existence of such a right, while it would be shocking to hold that such person should be deemed to be a rogue and vagabond. Looking at the legislation, I think the meaning to be perfectly clear. It is a criminal section, and in this subsection the burden of proof is placed upon any person found on the premises; that person must show that his presence was not for any criminal purpose. If he does that, his trespass is excused, not merely because he had any right or any belief in any right, though that would be sufficient, but simply by the absence of any wrong intention” (per Hood J.[lvii]¹⁰).

Applying this test, Hood J. held that the defendant had acted honestly and as most wives in such circumstances would act, and there being no criminality in her conduct, she had shown a lawful excuse.

The section came before the Full Court of Victoria in Haisman v. Smelcher[lviii]¹¹, where the conviction of a Peeping Tom was upheld. The appellant’s submission before the Full Court was that his admitted purpose of being on the premises did not constitute a breach of the criminal law, and it was not an act preparatory to a criminal offence, so that his explanation for his presence amounted to a lawful excuse. The Full Court rejected this argument. The Court had regard to the Statute of 1361 (34 Edward III, c.1), which is in force in Victoria, which gives justices of the peace the power to bind persons over to keep the peace or be of good behaviour. The Court held that the appellant’s conduct was such that he could have been bound over, and thus could not constitute a lawful excuse.

“. . . That kind of behaviour proceeds from prurient and indecent curiosity, and common experience shows that if it occurs once, it is very likely to be repeated. Moreover, if the person who exhibits it is discovered in the act by the occupants of the dwelling, the discovery is likely to produce fear and apprehension, and commonly a display of impulsive violence by any male occupant.

“From what we have said it will be seen that we consider that the decision of Hood J. in Carter v. Reaper[lix]¹² represents a sound interpretation of the provision. When that learned Judge spoke . . . of the section being “a criminal section”, and expressed the opinion that the person charged “must show that his presence was not for any criminal purpose”, he was stressing the nature of the conduct at which the section is aimed. It is not directed at behaviour that may, because of an infringement of some civil right, 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 recognized standards of decency, tranquillity and decorum and the accepted usages of the community, is likely to put occupants in fear or apprehension and thus justify a binding over order.

“For obvious reasons, we do not attempt to indicate the range of what may be lawful excuses within s. 72(1)(m), but we do point out that an explanation which involves an admission of conduct that violates the prohibitions of the criminal law, or which could result, by the appropriate proceedings, in an order binding the accused over to keep the peace, cannot constitute such an excuse” (per Barry J. who gave the judgment of the Court[lx]¹³).

The Queensland section was considered by the Full Court in Queensland in Roffey v. Wennerbom[lxi]¹⁴. In that case the appellants were found in the nurses’ quarters of a hospital. They gave evidence that they were there at the invitation of two of the nursing sisters. All the judges found that only by a perverse disregard of the evidence could the magistrate have failed to find that the defendants had leave and licence to enter the premises at the time, and accordingly, the convictions could not stand. Wanstall and Stable JJ. plainly expressed the opinion that the section does not make a vagrant of every civil trespasser found in the places referred to. Stable J. applied[lxii]¹⁵ the construction which had been placed upon the words “without lawful excuse” in the South Australian statute by the Full Court of South Australia:

“I agree that it is difficult, and perhaps, impossible, to define ‘lawful excuse’ in this context. The expression bears some resemblance, in that respect, to ‘reasonable doubt’ and ‘criminal negligence’. But I think that the question for the court is whether the defendant’s presence upon the premises is excusable, in all the circumstances of the case, bearing in mind that the defendant is charged with an offence punishable by imprisonment and, therefore, that his conduct may well be innocent or excusable for this purpose, although otherwise indefensible. I think that Parliament has left it to the courts to distinguish between a wrongful act for which compensation is an adequate remedy, and conduct which goes beyond a mere matter of compensation, and should be treated accordingly, i.e., as a crime deserving of punishment.

“I can see nothing startling or unreasonable in this view of the enactment. If the inquiry is indefinite, it is no more so than upon a charge of manslaughter by negligence.” (Wilkins v. Condell[lxiii]¹⁶ per Napier J.[lxiv]¹⁷; see also Angas Parsons J.[lxv]¹⁸, and Poznanski v. Stosic[lxvi]¹⁹)

Hart J. in Roffey v. Wennerbom[lxvii]²⁰ reached, as he said, approximately but by no means exactly the same conclusion as the Full Court of Victoria in Haisman v. Smelcher[lxviii]²¹, but by a different route:

“What then is lawful excuse? The answer is that if proof is given that the person found is not guilty of any conduct which is deserving of the stigma of vagrancy lawful excuse has been established. If it is shown that he is not guilty of any conduct that is in preparation for or in furtherance of any criminal purpose or which violates recognized standards of decency, tranquillity or decorum or the accepted usages of the community, or is not sinister or vicious or otherwise deserving of the stigma of vagrancy then lawful excuse has been established. Criminal purpose here is to be understood to be used in connexion with some offence which is not a mere breach of the Inclosed Lands Act or some other offence of an equally minor nature”[lxix]²².

I propose now to turn back to the Territory section. Mr. Broadley submitted that it should be read as shifting the onus of proof only as relating to the evidential burden of proving a prima facie excuse, leaving the final persuasive burden unchanged: R. v. Ward[lxx]²³; The Criminal Law, Glanville Williams, s. 292. But it seems to me that it is not possible to read the words of the section otherwise than as placing the burden of proof of lawful excuse fully upon the defendant. This burden of proof is less than that required of the prosecution in proving a case beyond reasonable doubt; it may be discharged by evidence satisfying the Court merely of the probability that the defendant’s entry on the land was with lawful excuse: R. v. Carr-Briant[lxxi]²⁴. If the defendant shows that he was on or at a place adjacent to the premises in question by right, or with leave or licence, or in an honest and reasonable belief in the existence of such right, or leave or licence, he has lawful excuse to be there. If he gives no explanation, and in the rare case where it is not possible to infer from the facts any explanation for the defendant’s presence, he is liable to conviction. (Of course, where a person is discovered in a building or close to it, particularly at night, the necessary inference, in the absence of explanation, would be that the purpose was unlawful: Clark v. The Queen[lxxii]²⁵.) If the defendant relies on conduct which is preparatory to or in furtherance of some purpose violating the provisions of the criminal law, he does not prove reasonable excuse. Similarly, if that is the inference to be drawn from the facts accepted by the Court.

At this point in the reasoning the Full Court of Victoria in Haisman v. Smelcher[lxxiii]²⁶ was able naturally to extend the test as stated by Hood J. in Carter v. Reaper[lxxiv]²⁷, that all the defendant had to do was to show that his presence was not for any criminal purpose. The Full Court decided that conduct for which the defendant could be bound over to keep the peace or be of good behaviour could not constitute lawful excuse. The basis of that decision, it seems to me, was that such proceedings were analogous to criminal proceedings: Everett v. Ribbands[lxxv]²⁸. In Victoria under the 1861 statute, a binding over order may be made when the offender’s conduct was such as to endanger the peace and to give just ground for apprehension that the peace might be endangered in the future: R. v. The County of London Quarter Sessions Appeals Committee[lxxvi]²⁹. But in the Territory the power conferred to require a defendant to find sureties to keep the peace under the District Courts Ordinance 1963-1965, s. 215, is more limited. (See also the Queensland Justices Act, s. 198.) However, in my opinion, the rule laid down by the Full Court of Victoria can be sustained as the true construction of the Territory section, by reference to the common-law concept of a breach of the peace, which underlies that rule and which is recognized under The Criminal Code (Queensland, adopted). For example, it is lawful for any person who witnesses a breach of the peace to interfere to prevent the continuance or renewal of it, and to use such force as is reasonably necessary for such prevention, etc. ibid. s. 260.

It is unnecessary for me to define the range of lawful excuse. It is certainly not the law that every man trespassing or found adjacent to premises is a rogue and a vagabond (per Hood J. Carter v. Reaper[lxxvii]³⁰). For the purpose of deciding the present case, in my opinion, if the defendant shows that his conduct falls outside the limits of conduct referred to in Haisman v. Smelcher[lxxviii]³¹, he shows, for the purposes of the Ordinance, a lawful excuse. That is to say, if the defendant shows that he is not guilty of conduct that is preparatory to or in furtherance of some criminal purpose, or which by reason of its violating recognized standards of decency, tranquillity 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, on the facts of this case, he has shown lawful excuse within the meaning of the Ordinance. It will be seen that this construction is different from the construction placed by Hart J. in Roffey v. Wennerbom[lxxix]³², upon the Queensland section, but I would add his Honour’s qualification that criminal purpose must be understood to relate to offences other than those of a minor nature.

It is inevitable that there will be difficulties in the application of this construction. Indeed there have already been marked differences of judicial opinion in Australia. Thus it was held in Carter v. Reaper[lxxx]³³ that a search for evidence of adultery can provide lawful excuse for forcibly entering premises without consent, but the Full Court of South Australia took a contrary view upon facts certainly of some aggravation. (See Poznanski v. Stosic[lxxxi]³⁴ per Ligertwood J.[lxxxii]³⁵)

Now let me turn to the facts of the present case. As Mr. Broadley rightly submitted it was not the end of the case when the magistrate rejected the evidence of the defendant. He then had to go on and consider whether on the facts adduced by the informant, and which he accepted, it had been shown that the probable inference therefrom was that the defendant had lawful excuse for being at a place adjacent to Corporal Pip’s house. It seems to me that the learned magistrate did not address his mind to this question, and at first I considered that I should remit the case for further hearing so that the learned magistrate could decide it.

But on further reflection I have decided against this course, as it seems to me that it would be dangerous on the present facts accepted by the learned magistrate for him to decide that lawful excuse had not been shown. There is, of course, no foundation for any excuse based on the appellant having any right, leave or licence to be in or adjacent to the house or any honest or reasonable belief therein. So far as any criminal purpose is concerned, the provisions of The Criminal Code (Queensland, adopted), s. 227, would seem to be relevant. This section provides as follows:

“Any person who

(1)      . . . .

(2)      Wilfully does any indecent act in any place with intent to insult or offend any person or whereby any person is reasonably insulted or offended, is guilty of a misdemeanour, and is liable to imprisonment with hard labour for two years.

(2)      (sic) For the purposes of the last preceding subsection, the uttering of indecent words or the making of an indecent suggestion shall be deemed to be an indecent act.”

Has the appellant shown on the probabilities that the purpose for which he was adjacent to the house was outside the elements of this provision? Mr. Broadley submitted that at the worst the facts show that the appellant was there to engage in some coquetry. Now this is a case of very special facts. On the one hand the incident took place in the middle of the night, and the appellant’s purpose was obviously of some sexual nature. On the other hand, there is his open approach, the equivocal words spoken, the fact that he was well known to the informant and of the same race, and his quick departure without causing trouble when he received no encouragement from the informant.

In my view the only inference that these facts can fairly support is that the appellant came to see the informant to engage at first, to use Mr. Broadley’s words, in coquetry of some exploratory nature, but not to take the matter any further if he received no encouragement. This inference from the facts involves an explanation for his presence which does not fall within the elements of s. 227 (supra), and also in my opinion shows that if his conduct was indecorous, it was not, in the circumstances, likely to put the occupants in fear or apprehension and thus lead to a breach of the peace. This is not a case of the approach by a strange man at night, wheedling or importunate, to a woman in a house which could only cause her fear or apprehension. He has thus shown lawful excuse for the purposes of the vagrancy legislation.

Accordingly, the appeal will be allowed and the conviction set aside.

Appeal allowed. Conviction set aside.

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

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

[xlviii]Section 70(1) of the Police Offences Ordinance 1925-1965 provides: “Any person who . . . (m) is without lawful excuse (the onus of proof of which excuse shall lie upon the person) in or upon any dwelling house . . . or at a place adjacent to any dwelling house . . . shall be guilty of an offence.”

[xlix] [1937] 1 K.B. 232, at p. 270 et seq.

[l](1860) 3 L.T. 296.

[li][1920] V.L.R. 337.

[lii][1953] V.L.R. 625.

[liii][1965] Qd. R. 42.

[liv]S.Ct., P. & N.G., 30th Mar. 1966, unreported (Mann C.J.).

[lv](1860) 3 L.T. 296.

[lvi][1920] V.L.R. 337.

[lvii][1920] V.L.R., at p. 341.

[lviii][1953] V.L.R. 625.

[lix][1920] V.L.R. 337.

[lx][1953] V.L.R., at p. 628.

[lxi][1965] Qd.R. 42.

[lxii][1965] Qd.R., at pp. 53, 54.

[lxiii][1940] SAStRp 20; [1940] S.A.S.R. 139, at p. 152.

[lxiv][1940] S.A.S.R., at p. 152.

[lxv][1940] S.A.S.R., at p. 148.

[lxvi][1953] S.A.S.R. 132.

[lxvii][1965] Qd.R. 42.

[lxviii][1953] V.L.R. 625.

[lxix][1965] Qd.R., at pp. 58, 59.

[lxx][1915] 3 K.B. 696.

[lxxi][1943] K.B. 607.

[lxxii][1884] UKLawRpKQB 215; (1884) 14 Q.B.D. 92, at p. 96.

[lxxiii][1953] V.L.R. 625.

[lxxiv][1920] V.L.R. 337.

[lxxv][1952] 2 Q.B. 198.

[lxxvi][1948] 1 K.B. 670.

[lxxvii][1920] V.L.R. 337.

[lxxviii][1953] V.L.R. 625.

[lxxix][1965] Qd.R. 42.

[lxxx][1920] V.L.R. 337.

[lxxxi][1953] S.A.S.R. 132.

[lxxxii][1953] S.A.S.R., at p. 140.