Police v Kalop [1999] PGDC 5; DC51 (12 April 1999)

Unreported District Court Decisions

[1999] PNGDC 23 - POLICE V ROBIN KALOP

[1999] PNGDC 23

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 414 OF 1999

POLICE (Informant)

v

ROBIN KALIOP (Defendant)

Kimbe

S Lenalia PM

1 April 1999

12 April 1999

CRIMINAL LAW—Unlawfully on premises—"Without lawful excuse"—Criminal element required—Intent to commit an assault—Conduct preparatory to or in furtherance of some criminal purpose—John Anskar v Jacob Yansuan [1985] PNGLR 1 followed—submission of "No case to answer"—Criminal intent proved—Case to answer.

Cases referred to

John Anskar v Jacob Yansuan [1985] PNGLR 1

The State v Paul Kundi Rope [1976] PNGLR 96

In the matter of The State v Roka Pep (No. 2) and In the matter of the Reservation of Points of law under s21 of the Supreme Court Act (Ch37) [1983] PNGLR 287

Hainsman v Smelcher [1953] VicLawRp 62; [1953] VLR 625

Roffey v Wennerbom Ex parte Wennerbom; Roffey v Stacey Ex parte Stacey [1965] Qd R 42

Legislation

Summary Offences Act 1947 s20

Representation:

Counsel/Representative:

Informant: Sgt Sukena

Defendant: J Unido

Lawyers/Representative:

Informant: Sgt Sukena

Defendant: Kevin Latu Lawyers

12 April 1999

S LENALIA PM:

N1>[1]      This is my ruling on the "no case to answer" submission made by the defence counsel on Wednesday 31 March and Thursday 1 April 1999. The defendant is charged with an offence of being unlawfully upon premises namely Block Number 156 at Lavilelo, Hoskins on 6 March this year. I heard evidence from three (3) witnesses after the defendant pleaded not guilty. All evidence adduced by the prosecution established that on the date of the offence at around 10.00 am, the defendant and an unnumbered group of men walked into Block Number 156 located at Lavilelo which block is jointly owned by the wife of the complainant, her sisters and their brothers and therein assaulted Joseph Pio and Exson Bob. The evidence also established that the block title is still under the name of Dominic Tiona, now deceased and all his sons and daughters now grown up and have married to various spouses all live together in the block previously mentioned.

N1>[2]      At the end of the prosecution case, the defence made a "no case to answer" submission. The basis of the defence submission is actually that their client's presence in the block was lawful in that the defendant had gone to the block to enquire with Exson Bob why Bob had sworn at him on 26 February some one week prior to the date of the instant charge. I have considered the two authorities cited by the defence in support of their argument. I have also considered the two authorities referred tot he Court by the prosecutor. The prosecution submission is basically that so long as the prosecution can prove if the conduct of the defendant amounted to a criminal conduct is sufficient to prove that there is a case to answer on the charge of unlawfully on premises.

N1>[3]      For this proposition, the prosecution relies on authority of John Anskar v Jacob Yansuan [1985] PNGLR 1 on which Los AJ (as he then was) held that for the purposes of s20 of the Summary Offences Act 1947, the presence of a person on premises is unlawful if his behaviour gives rise to a wrong that may be sanctioned by a Criminal Law.

N1>[4]      The issue for the Court to decide at this stage of the proceedings where the prosecution have closed their case and where there is a submission of no case to answer is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted: The State v Paul Kundi Rope [1976] PNGLR 96, see also the case of the State v Roka Pep (No. 2) [1983] PNGLR 287. Discussing the offence of unlawfully on premises, the Victorian High Court held in Hainsman v Smelcher [1953] VicLawRp 62; [1953] VLR 625 at 628 that:

"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."

N1>[5]      In another Australian case of Roffey v Wennerbom Ex parte Wennerbom [1965] Qd R 42, the Court there said;

"For obvious reasons, we do not attempt to indicate the range of what may be lawful excuses . . ., 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."

N1>[6]      It is my view in the instant case that, the criminal intent or as put by the judge in John Anskar case (supra) the element of criminality ought to be established has been established. There is evidence that the defendant and his men converged upon the block and assaulted the three witness. I am further of the view that, the defendant's conduct was criminal and was preparatory to or in furtherance of the criminal offence sanctioned by criminal law in that the defendant purposely got into the block to pursue Exson Bob and actually assaulted Exson Bob. For purposes of s20 of the Summary Offences Act, I hold that there is a case for the defendant to answer and I must call on the defence to give their evidence.