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Simbane, Regina v [1975] PNGLR 254 (12 September 1973)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 254 - Regina v Gahoso Simbane

[1975] PNGLR 254

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

GAHOSO SIMBANE

Goroka

Raine J

5 September 1973

9 September 1973

12 September 1973

CRIMINAL LAW - Particular offences - Breaking and entering with intent to commit a crime - Elements of offence - Alternative verdict - Breaking and entering without lawful excuse - Criminal Code (Queensland adopted), s. 419[ccci]¹, s. 419a[cccii]².

CRIMINAL LAW - Particular offences - Stealing - Stealing from a dwelling house - Intention to steal - Original possession within dwelling house tortious only - Alternative verdict - Criminal code (Queensland adopted), ss. 419, 419a.

The accused was charged with breaking and entering a dwelling house with intent to commit a crime (s. 419 of the Criminal Code (Queensland adopted)) and with stealing a money box (worth more than $10.00) from a dwelling house (s. 398(2) of the Criminal Code). The evidence showed that the accused broke and entered the dwelling with intent to vent his spite upon one of the occupants and took therefrom a suitcase of clothing which he broke open, threw the contents about and seeing the money took it.

Held

(1)      There being no intent to commit a crime at the time of entry there should be a verdict of not guilty of the charge under s. 419(1) of the Criminal Code.

(2)      The offence of breaking and entering without lawful excuse under s. 419a of the Criminal Code becomes an available alternative offence by reason of the second paragraph of s. 579 of the Code.

(3)      There being no possible lawful excuse for the break and enter, and the accused not having discharged the civil onus cast upon him by the section of establishing such lawful excuse, there should be a verdict of breaking and entering without lawful excuse under s. 419a of the Criminal Code.

R. v. Kerry Kepo [1975] P.N.G.L.R. 226 referred to.

(4)      The Crown having failed to establish an intention to steal whilst in the dwelling house there should be a verdict of not guilty on the charge under s. 398(2) of the Criminal Code, and there should therefore be a verdict of guilty of stealing a money box containing $21.50 from a suitcase the property of one A.T.

R. v. Riley [1853] EngR 23; (1853) Dears. C.C. 149; and R. v. Kindon (1957) 41 Cr. App. R. 208 referred to.

Trial

The accused was charged with two offences under the Criminal Code (Queensland adopted) the first being breaking and entering a dwelling house with intent (s. 419) and the second with stealing from a dwelling house (s. 398(2)).

Counsel

G. L. Georgeson, for the prosecution.

K. R. Roddenby, for the accused.

Cur. adv. vult.

12 September 1973

RAINE J: The accused pleaded not guilty to two charges, the first being breaking and entering a dwelling house with intent, the second stealing therefrom. As to the second charge, when arraigned the accused said, “I did”, but his counsel was given leave under s. 601a of the Code to plead not guilty for him.

The facts are not in dispute, the problem that arises is what the accused had in mind. On 25th July, 1973 Arumu Tawo, the owner of the dwelling house in question, left her home at 7 p.m. to visit her father. She locked up. She went to her father, and later to her sister, returning next morning at about 6 a.m. On her return she found the door open and a suitcase containing a deal of clothing, other material and a practically full money-box was missing.

In fact the door had been forced open, and the suitcase taken some distance away, where it too was forced, the money-box only being taken. It had, a subsequent count has shown, the sum of $21.50 in it.

Arumu’s brother came down and, following footprints, found the suitcase over a quarter of a mile away. His sister’s clothes had been pulled out and were strewn around. Neroparo stated, without objection, that he recognized the footprints as those of the accused.

The accused admitted to Constable Inger Sagum that he broke into the house and took the suitcase. He said to Inger that he only took the money-box, and the constable went to his house, where the accused got the money-box from beneath the bed. It had been tampered with, the slot on the top had been forced, but not successfully, and the tongue beneath was apparently preventing the coins, mostly ten cent pieces, from falling out. The accused said he got no money out, although he told Constable Inger that he had tried. I accept that everything taken has been recovered.

In his s. 103 statement to the committing magistrate the accused admitted that he had broken into Arumu’s house. He said that, in effect, he did this because his “brother”, as he calls him, but in fact it is clear it was Neroparo, his brother-in-law, had sent his wife away from the village and told her to marry another man. Neroparo confirms this, and gave reasons for doing so, and I recalled him, and he said he gave this advice to the accused’s wife before the accused broke into Arumu’s house. Arumu confirms that the accused’s wife left after Neroparo gave her permission to go. She was upset by some previous conduct of the accused.

The accused made an unsworn statement when the Crown case closed. He said:

“True I broke the house, I did not think of making a trouble in the house, I did not think of stealing. I got angry because of my brother sending my wife away, that’s why I broke the house and took the suitcase. I did not think of taking anything from inside. I thought of breaking and throwing it away. That’s why I broke the suitcase. I threw everything about — I saw the money and took it. That’s all.”

The crown prosecutor, I hasten to say that he put the submission with respect, suggested that I would be naive were I to accept the accused’s version. This is a burden I will have to carry throughout life as uncomplainingly as possible, because, while not persuaded that the accused’s reasons for his actions are truthful, I am in doubt, looking at the whole of the evidence, that they are not.

Mr. Roddenby argued that if I had a reasonable doubt about the accused’s version, or went as far as accepting it, then:—

AS TO THE FIRST COUNT

That the accused should be acquitted, there being no more than a tortious act committed, a trespass. He submits that there was no intent to commit a crime, and that it is all or nothing, the Code not permitting an alternative finding under s. 419a.

AS TO THE SECOND COUNT

Counsel submits that when the suitcase was removed from the dwelling house that the accused had not taken it, or anything in it, with “an intent to permanently deprive the owner (of the suitcase) of it”. He submits that the intention to “permanently deprive the owner (of the money-box) of it” was only formed out in the garden, many yards away from the dwelling house.

Of course this is significant. For stealing “simpliciter” the punishment is only three years, s. 398(1). But there are provisions in s. 398(2) for punishment in special cases, and in the case of stealing a thing worth in excess of $10.00 from a dwelling house, the offender is liable to imprisonment for seven years. See s. 398 (2) (IV).

FIRST COUNT

Being not satisfied beyond reasonable doubt that the accused, initially, did anything more than vent his spite on Neroparo’s sister, I find him not guilty of the charge under s. 419 (1) as laid in the first count of the indictment.

Can the accused be found guilty of an offence under s. 419a of the Code? This was inserted in 1964. It reads:

“419a. Any person who without lawful excuse, proof of which lies upon him, breaks and enters the dwelling house of another is guilty of a crime and is liable to imprisonment with hard labour for three years.”

It will be noted that it is not, in terms, made an alternative to s. 419, and, so it appears, can only be so by reason of s. 579. The first paragraph of the section is clearly not applicable to the facts here. Is the second?

In my opinion the second paragraph is applicable. The paragraph commences, “Upon an indictment charging a person with an offence of which an intent to cause some specific result is an element ...” We have such a charge here. But it concludes, “He may be convicted of any offence which is established by the evidence and of which the unlawful causing of that result (here, the result following the intention to steal, namely, the result of the suitcase being taken) is an element.”

I confess my mind has changed as to this. However, applying the facts here, one can read the second paragraph in this way, “This accused was charged with break and enter with intent to steal. The ‘intent to steal’ element failed. Had it succeeded a result of the intent to steal would have been the removal of (inter alia) the suitcase. The accused admits, and it is clear, that this result was achieved, if not with an intent to steal the suitcase, at least unlawfully. This is an offence under s. 419a.” See R. v. Kerry Kepo[ccciii]³.

Of course, in saying “this is an offence under s. 419a” I only have to point out that the door of the dwelling was forced, in the absence of the owner, the woman Arumu, and that she gave no permission for this to be done. It is a stronger case than Kerry Kepo [ccciv]⁴, there is no possible excuse for what was done, the accused has not discharged the civil burden cast upon him by the section.

Thus I acquit the accused of the charge laid in the indictment but find that he is guilty of breaking and entering the dwelling house of Arumu Tawo without lawful excuse, this being in New Guinea on or about 25th July, 1973.

With great respect to Prentice J in Kerry Kepo[cccv]⁵ I do not agree that s. 575 of the Code applies. I also find that I disagree with what fell from Mann C.J in R. v. Daugamani-Adamanika[cccvi]⁶ and Hart J in R. v. Phillips and Lawrence[cccvii]⁷ where his Honour said:

“(7)    Ground 2b

OFFENCE IN SECTION 8 MEANS ROBBERY SIMPLICITER

Mr. Nolan’s point here was that the word ‘offence’ each time it occurs in s. 8, when it is applied to the robbery charges in this case, means the offence of robbery simpliciter without the circumstances of aggravation, in company with personal violence. The offence of robbery is defined in s. 409 as stealing with violence. Section 411 fixes the penalty for robbery as imprisonment with hard labour for fourteen years, then adds further penalties for certain circumstances of aggravation one of which is being in company and another of which is using personal violence. If the offender is found guilty of either of these circumstances of aggravation he is liable to imprisonment with hard labour for life. He says therefore the offence referred to in s. 8 is robbery and this does not include the circumstances of aggravation. I do not agree with this argument. Section 2 is as follows — ‘An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.’ Robbery in company makes a person liable to punishment, robbery in company with personal violence makes him liable to another punishment. I think therefore that each of these is an offence. I also think that s. 575 contemplates that an offence with a circumstance of aggravation may be an offence itself.” (The underlining is mine).

The view I take is that too little regard has been paid to the definition of “circumstances of aggravation”, the key words in s. 575. In s. 1 they are defined as follows:

“The term ‘circumstances of aggravation’ means and includes any circumstance by reason whereof 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.”

To my mind this does not mean that the offence charged is made a different offence at all. Thus it is still only stealing to allege that a man stole a piece of paper on the one hand or a testamentary document on the other, but in the latter case he can be imprisoned for life. But the offence is the same. And s. 398 (1) reads:

“398(1)         Any person who steals anything capable of being stolen is guilty of a crime, and is liable, if no other punishment is provided, to imprisonment with hard labour for three years.” (The emphasis is mine, and I think the words emphasised, in combination with the definition of “circumstances of aggravation”, are significant, and support the view I hold).

Similarly, under s. 419 (2), if the pleader alleges, in the charge, that a housebreaking was committed “in the night”, then the person accused is liable to a more serious penalty. But as I see it, the charge is still housebreaking, not housebreaking in the night. Thus, as an example, I would not agree that “circumstances of aggravation” appear in a charge under s. 419 (1) of breaking and entering the dwelling house of another with intent to commit a crime therein. To me, that is the complete offence, it is a serious one, it has its own penalty. But if one inserts “in the night” in the body of the charge, and this is not proved, then s. 575 comes into play, and the accused can be convicted of housebreaking with intent “simpliciter”.

SECOND COUNT

Of course, the significance of this submission is that a thing worth more than $10.00 and stolen from a dwelling house attracts a higher sentence than stealing simpliciter, cf. s. 398 (1) and s. 398 (2) IV (2).

In view of my finding under the first count, or rather, in view of the doubts held by me, it will be appreciated that the Crown has failed to establish that the accused intended to steal while in the dwelling house of Arumu.

What is the situation if the accused only took the suitcase outside out of spite, not with an intent to steal, breaking it open and scattering the clothing in it, but only taking the full money-box when he saw it in the broken case, and was tempted to steal it? Mr. Roddenby does not suggest for a moment, that at the very least, this was not larceny, but he submits that it only became larceny in the garden and he says that the money-box was not “stolen in a dwelling house”.

One thing is clear. As I am not satisfied that the accused broke and entered with intent to steal, then, except in the s. 419a sense, his action was merely tortious. But for this, and s. 391 (4), it seems clear that that there would be no stealing. R. v. Riley [cccviii]⁸, R. v. O’Brien [cccix]⁹. Thus, in Riley’s case[cccx]¹⁰ Pollock C.B. said, “If the original possession be rightful, subsequent misappropriation does not make it a felony; but if the original possession be wrongful, although not felonious, and then a man disposes of the chattel ‘animo furandi’, it is larceny.” And see R. v. Sullivan [cccxi]¹¹. See also R. v. Kindon [cccxii]¹². This case, the facts in which bear on the problem I have to decide, seems to suggest that there is no relation back so far as the complete crime is concerned, but only as to the physical taking of the money or chattel. Kindon[cccxiii]¹³ was a case where the appellant was found by a jury to have taken £1,100 from a desk in a dwelling house at a time when she had taken drink and drugs to such an extent that she was incapable of forming a felonious intent. It is not clear from the report whether there was only one charge in the indictment, on balance this seems to be the case. At any rate, the trial judge left to the jury (see p. 211) “the question whether they were satisfied beyond reasonable doubt that although she had not stolen the £1,000, she had stolen the £150;” which was what she received from the larger sum when, at a later stage, when she was in better shape, it was divided up between herself and others. The appellant was convicted of larceny of the £150, and, in applying Riley [cccxiv]¹⁴, Byrne J with whom Goddard L.C.J and Devlin J (as he then was) agreed, said, “Applying those observations to this case, it becomes plain that the taking of the money from the desk in the dwelling house, although not felonious was tortious, and the subsequent conversion of it became larceny.”

Implicit in this is that there is no total relation back, although his Lordship does not specifically deal with the point.

Thus, it seems to me, if this is correct, the accused here can only be convicted of stealing the money-box, and, although “taken” from the dwelling house, that it was not stolen from the dwelling house.

I have already mentioned the possible effect of s. 391 (4) of the Code. I have been troubled whether this affects the relation back matter that I have discussed above. One thing is certain. The sub-section does not destroy the principle laid down by Pollock C.B. in Riley[cccxv]¹⁵ and results in the accused being found guilty, at the least, of larceny of the money-box.

So far as relation back is concerned I am hampered by the fact that I am hearing this case in Goroka, a pretty town in itself, blessed with much, but not blessed with a very distinguished law library. It does contain Crawford’s Proof in Criminal Cases, 3rd ed., and at p. 131 this work seems to support the relation back proposition with its reference to Ruse v. Read [cccxvi]¹⁶, as does an old edition of Anson.

However, on reading Ruse v. Read [cccxvii]¹⁷, which is available, I am not persuaded that everything relates back, that is, the actual taking and the “animus furandi”.

Doing the best I can with the limited library here, and, as ever, pressed for time on a very heavy circuit, I find the accused only guilty of stealing a money-box containing the sum of $21.50 from a suitcase the property of one Arumu Tawo, and this in New Guinea on or about 25th July, 1973. I do not find that it was stolen from a dwelling house.

Accused found guilty of breaking and entering without lawful excuse and stealing a money-box containing the sum of $21.50 from a suitcase.

Solicitor for the Crown: P. J Clay, Crown Solicitor.

Solicitor for the accused: G. R. Keenan, Acting Public Solicitor.

ence>[ccci]Section 419 of the Criminal Code (Queensland adopted) provides that “any person who — (1) breaks and enters the dwelling house of another with intent to commit a crime therein; . . . is guilty of a crime . . .”

[cccii]Infra p. 257.

[ccciii][1975] P.N.G.L.R. 226.

[ccciv][1975] P.N.G.L.R. 226.

[cccv][1975] P.N.G.L.R. 226.

[cccvi][1965-66] P. & N.G.L.R. 80, at p. 89.

[cccvii] [1967] Qd. R. 237, at pp. 284, 285.

[cccviii](1853) Dears. C.C. 149.

[cccix](1921) 21 S.R. (N.S.W.) 136; 38 W.N. 10.

[cccx](1853) Dears. C.C. 149.

[cccxi] [1965] Tas. S.R. 272 (N.C. 5).

[cccxii](1957) 41 Cr. App. R. 208.

[cccxiii](1957) 41 Cr. App. R. 208.

[cccxiv](1853) Dears. C.C. 149.

[cccxv](1853) Dears. C.C. 149.

[cccxvi][1949] 1 K.B. 377; (1949) 33 Cr. App. R. 67.

[cccxvii] [1949] 1 K.B. 377; (1949) 33 Cr. App. R. 67.