Turumb v Ulka [2008] PGDC 48; DC746 (31 March 2008)

DC746

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE [SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 1317 of 2007

BETWEEN

DOKTA TURUMB
Informant

AND

PAUL ULKA
Defendant

Kundiawa: M. Gauli, PM
2008: March, 31st,

CRIMINAL – Charged for breaking entering and stealing from a dwelling house under s.396 of the PNG Criminal Code Act – Offence under s. 396 is only for breaking and entering a dwelling house without lawful excuse - Prosecutor only apply for withdrawal of the case.

Cases Cited:
1. Chia Hejia -V- Huan Ming Xia & Gisa Komagin [1998] PNGLR 75
2. John Worufond -V- Patrick Wallace [1984] PNGLR 144

References:
Nil

Counsel:
For the Prosecution - First Constable Clement
For the Defendant - In person

31 March 2008

DECISION OF THE COURT

M. Gauli, PM: Defendant Paul Ulka is charged that on 23rd August 2007 at Kerowagi town he without lawful excuse did break and enter a dwelling house of one Ande Dinga and therein stole various properties to a value of K1,391.00, thereby contravening s.396 of the PNG Criminal Code Act.

This provision states and I quote:

“A person who without lawful excuse (proof of which is on him) breaks and enters the dwelling house of another is guilty of a crime.”

1. This provision does not include the act of committing a crime of stealing in the dwelling house after having broke and entered the dwelling house. Stealing is not an element of the charge under s.396 of the Criminal Code Act. A person who breaks and enters a dwelling house and commits a crime therein, such as stealing, assault, rape, threatening etc, such charge must be laid under s.395 of the Criminal Code Act. The prosecutor then applied to have the information withdrawn instead of amending the information to delete s.396 and insert s.395. And I granted the prosecutor’s application.

2. Had the prosecutor applied to amend the information by deleting s.396 and inserting s.395 of the Criminal Code Act I would have allowed the amendment. It was held in the case of Chia He Jia -v- Huhong Ming Xian & Gisa Komagin [1998] PNGLR 75 at 82 by Jalina J as then he was, and in the case of John Worofong -V-Patrick Willace [1984] PNGLR 144 at 145 by Bredmyer J, that it is not the section of the Act that should be looked at or that it is not the section that discloses the offence but the words of the information because the defendant pleads to the words and not the section of the Act he is charged under.

3. It is the prosecution’s case and where the prosecution applies to with draw the information instead of amending the information then the Court may either grant or refuse to grant such application. That is a discretionary matter for the Court to make. In the present case I have considered to grant the prosecutor’s application for the withdrawal of the information. Accordingly I ordered the information withdrawn and discharged the defendant forthwith without taking the plea.

For the Prosecution: First Constable Clement
For the Defendant: In person