Regina v Griffen [1974] PGLawRp 361; [1974] PNGLR 72 (20 September 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 72 - Regina v Iona Griffen

[1974] PNGLR 72

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

IONA GRIFFIN

Port Moresby

Prentice J

18 September 1974

20 September 1974

CRIMINAL LAW - Offences against property - Breaking, entering and stealing - Doctrine of recent possession - Original explanation allegedly false - Criminal Code s. 575.

Under the doctrine of recent possession, where there has been a robbery and part of the stolen property is found soon after in the possession of a person not the owner, a presumption of fact may thereby be raised against that person to the effect that he stole the articles, where he does not give a reasonable account of how he got the property. If an explanation is given by that person and it appears to be a reasonable one, the tribunal should acquit, even if it does not positively accept the explanation. But when an accused “on being questioned has given an explanation of his possession which is admittedly untrue, ... the presumption of guilt does arise.” This is a presumption which may be rebutted and, if the subsequent explanation of the prisoner satisfies the jury, or raises a reasonable doubt, he is still entitled to an acquittal.

R. v. Caplin [1933] NSWStRp 49; (1933), 33 S.R. (N.S.W.) 514 approved.

The accused was found in possession of five crocodile skins the morning after some forty-nine were stolen from a warehouse in Badili. The accused was charged with breaking, entering and stealing the five skins found in his possession. On questioning by the police, in a record of interview and in the Lower Court, the accused stated that the skins were his and had been shot by him and others. At the trial, in a statement from the dock the accused stated that he had found the skins by the roadside and, being afraid that the police would not believe him, had told the story of shooting them himself.

Held

N1>(1)      In the circumstances, the presumption of recent possession applied.

N1>(2)      In all the circumstances the account given by the accused was not a reasonable account such as to raise a doubt as to guilt.

N1>(3)      The accused should be convicted of breaking, entering and stealing the skins.

Trial

The accused was charged with breaking, entering and stealing five crocodile skins from a warehouse at Badili on 5th June, 1974. Further relevant facts appear in the reasons for judgment.

Counsel

K. B. Egan, for the Crown.

B. S. Edwardes, for the accused.

Cur. adv. vult.

20 September 1974

PRENTICE J: The accused stands charged with breaking, entering and stealing five crocodile skins from a warehouse at Badili on 5th June, 1974.

In a statement from the dock, he said that he found a bag containing four crocodile skins lying in grass near Kaugere Clinic, and took it to a Badili warehouse to sell the skins to a trader. While he was there, his story goes, the police arrived; and to them he related these facts. A little later at Boroko Police Station, being afraid of the police and alarmed at the unlikelihood of their believing his version, he gave them an account of having himself shot the crocodiles.

Defence counsel submits that his client should be acquitted of the charge of break enter and steal, on the ground that an actual break and entry has not been established beyond reasonable doubt. If I should accept that submission, he says that it is not open to convict on the lesser charge of stealing—for the reason that that is not an alternative allowed by s. 575 of the Code. He cites Rex v. Young & Ryan[lxxxix]¹ (a decision of the Full Court of Western Australia) as an authority suggesting that break enter and steal is not stealing with circumstances of aggravation. He further submits that should I find a break and entry to have been established, that nevertheless the doctrine of recent possession (which is by way of a presumption of fact only) ought not to be held operative against the accused—who has given an account in this Court which I should find may reasonably be true, even if I am not convinced that it is true.

The crown prosecutor relies on the doctrine of recent possession; and submits that if not satisfied as to a breaking and entry on the evidence, I may yet convict the accused of larceny simpliciter. Reliance may be placed he says, on R. v. Short, Grealy & Plint[xc]² (a decision of the Queensland Criminal Court of Appeal) as establishing that possibility. He was able to cite no other authority holding that, in effect, a charge of break enter and steal is a charge of stealing “with circumstances of aggravation” (s. 575, Code).

From the nature of the defence raised it followed that most of the Crown evidence went unchallenged. Accordingly I accept generally the evidence of the prosecution witnesses. It is established that the skins the subject of the charge, were undoubtedly the property of Arshak C. Galstaun (N.G.) Pty. Ltd. and had been taken from its warehouse at Badili, on the night of 5th or 6th June, 1974. They were found in the possession of the accused on the morning of 6th June. On the afternoon of 5th June, about 2.30, a company employee Hare Opa whose duty it was to do so closed the window (sic) of the warehouse without locking it, and left the building. He was in some hurry. Next morning on his arrival he opened the door and the windows (there are four). Apparently when it was noticed that certain skins were missing a piece of timber was then found outside a window (which itself had been shut). These windows are of the type opening out on a hinge and propped open with a piece of timber.

The last person to leave the warehouse on 5th June, was another employee Eka Heve. He left about 4.00 p.m. locking the door. He saw a young man close the windows but did not himself check that they were locked. They were all shut. Next morning he found skins had been disturbed and some were missing.

The investigating constable, Nathan Nana observed that the wire which apparently closes an approximately two foot space between the top of a (galvanized iron) wall and the roof had been freshly disturbed. He found footprints (which were also seen by Hare Opa) outside the warehouse window. There were three barefoot prints, two facing towards the warehouse wall and one, a deeper one away from it. They were close to the window.

I am satisfied beyond reasonable doubt that skins were stolen from the warehouse on the night 5th or 6th June, and that the thief must have entered by a window and that in doing so he must have lifted up the closed, hinged window. It does not appear to me to be a reasonable possibility that someone other than the thief or his accomplice had opened the window, and that the thief merely took advantage of an open window and did not thereby effect a technical “breaking” of the close. That is I am satisfied that the evidence establishes a breaking and entering.

Under the doctrine of recent possession, where there has been a robbery and part of the stolen property is found soon after in the possession of a person not the owner, as was the case here, a presumption of fact may thereby be raised against that person to the effect that he stole the articles; where he does not give a reasonable account of how he got the property. If an explanation is given by that person and it appears to be a reasonable one, the tribunal should acquit, even if it does not positively accept the explanation. But when an accused “on being questioned has given an explanation of his possession which is admittedly untrue,... the presumption of guilt does arise. This is a presumption which may be rebutted and, if the subsequent explanation of the prisoner satisfies the jury, or raises a reasonable doubt, he is still entitled to an acquittal”. (R. v. Caplin [xci]³), per Halse Rogers J.

To Hare Opa the accused explained that he came from Baimuru. To the witness’ question “when did you kill them”, he replied “I came on Tuesday by boat”. He said he had shot the crocodiles from his village called Kairumai. There was no mention made to this witness of coming upon the skins by chance. To Hare the accused gave his name as Ipo Viea. This witness said the accused told the police in his presence that he got the skins from Papa village. That to the European officer the accused said he shot these crocodiles from Papa village with the old man.

To Eka Heve, on the other hand, at the warehouse when questioned the accused said he brought the skins from Marshall Lagoon.

Constable Nana averred that after speaking to the buyers at the warehouse, he spoke to the accused who told him that he shot the crocodiles at Papa—that he shot them with Tetei, one of the villagers down at Papa. It appears that Papa is some twenty-five miles from Port Moresby on the Idlers Bay road near Lei Lei. At the police station he told the police when shown the mark on the skins, “No that is my own crocodile skin”.

A villager Tetei was spoken to by the police during their questioning of the accused. In this Court, Tetei, a Hiri councillor, gave evidence that he lives at Papa, that the accused had never so lived there, that the accused was not seen in Papa by him during May, that he does not know the accused, that he Tetei, never went crocodile hunting with the accused in May this year.

In a record of interview, exhibit “B”, taken on 6th June, at Boroko police station, the record not being challenged; the accused reiterates that he had brought the skins from Papa village, on the Tuesday, the skins being Tetei’s, his sons and his own. He was present at the killing of the crocodile. He and Tetei cut the skin. The crocodile(s) was (were) caught last week, three were caught on Wednesday, another on Saturday night. He brought them to sell on Tuesday, 4th June, 1974. He himself sold them. He had sold skins before. All the crocodiles were caught in the (fresh) water not the sea. (The evidence is that three of the four are salt water crocodiles which very seldom go into fresh water).

The accused gave evidence in the District Court on committal, and there for the first time (as the prosecution states), gave the explanation of finding the skins at Kaugere. During this evidence he stated that he told the police when questioned at the warehouse that he brought the skins from Papa village and that they then took him to the truck and the police station. Cross-examined in the District Court, he again agreed that he told lies to the police, that he told them he shot the crocodiles and gave the statements contained in the record of interview which he said were untrue.

In his statement in this court he stated that he had told the police of finding the skins on the road. That they then took him to the police station where he three times more told them of finding the skins on the road. That, then being concerned that they would not believe him, he told them the story of shooting the crocodiles himself. This is of course at variance with the story he told the lower court.

The accused therefore not only asserts that he gave a completely untrue account in the record of interview, but is seen to have given conflicting accounts as to having given the other explanation, that of finding, an explanation which he repeated in this Court.

I am conscious that I must approach the evidence in this case with caution. If for no other reasons, the clearly inadequate nature of the police inquiries and the apparent fact that some forty-nine skins were seen to be missing (this charge being concerned only with five), would cause me to do so. Though it is clear that the doctrine of recent possession can become operative in a charge of break enter and steal (R. v. Loughlin[xcii]⁴ a very strong court consisting of Goddard L.C.J., Lynskey and Devlin JJ.); one bears in mind also that “the presumption raised by recent possession in cases of burglary is not nearly so strong as in cases of stealing or receiving” (MacNaughton, Webb & Woolcock JJ. in R. v. Short, Grealey & Plint [xciii]⁵). Nevertheless I find the presumption to arise in this case. I find myself unable to accept the accused as a truthful witness. I disbelieve his account given in this Court. I do not find it a reasonable account, in all the circumstances, such as would cause me a doubt as to guilt. I convict him of the offences of breaking, entering and stealing four crocodile skins, three salt water and one fresh water from the premises described in the indictment.

There has been a certain amount of disagreement amongst the present members of this Court as to what can constitute “circumstances of aggravation” within the meaning of the phrase in s. 575 of the Code. That has been as to the catena of break and enter offences in ss. 419, 419a, 420, 421, 422. The case of R. v. Short, Grealey & Plint[xciv]⁶ was one in which the Queensland Court of Criminal Appeal found a number of reasons for ruling that a trial judge’s charge to the jury was so insufficient as to warrant a new trial. With the greatest respect, in so far as it lays down that the court should have directed the jury that a conviction of stealing might be brought in on a charge of break enter and steal and does so without citation of authority, code section or reasoning; I would find it standing alone, somewhat dubious authority on which to have relied in this case that I could have convicted the accused of stealing. I am unable to understand why in such a case as this, an alternative count of stealing simpliciter was not added in the indictment. The Code does not appear to be specific on the point but I understand such a procedure to have been a long-standing one in the code states.

Verdict of guilty of breaking entering and stealing.

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

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

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

[xci][1933] NSWStRp 49; (1933) 33 S.R. (N.S.W.) 514, at p. 523; 50 W.N. (N.S.W.) 189.

[xcii](1951) 35 Cr.App.R. 69.

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

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

[xcv]Section 24 of the Criminal Code provides, inter alia, as follows:—

“A person who does or omits to do an act under an honest and reasonable, but mistaken belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.”