Gari v Anton [1984] PGNC 25; [1984] PNGLR 1; N450(M) (11 January 1984)

N450(M)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

GARI GARI

V

BEN ANTON

Lae
Kidu CJ

11 January 1984

POLICE OFFENCES - Unlawfully on premises - "Without lawful excuse" - Element of criminality required - Lack of invitation irrelevant - Summary Offences Act 1977 s. 20.
Section 20 of the Summary Offences Act 1977, provides: "A person who, without lawful excuse, is in, on or adjacent to any premises is guilty of an offence."

Held:

(1) To satisfy the element of without lawful excuse in s. 20 the prosecutor must prove that there was present in the behaviour of the person concerned some element of criminality; the want of an invitation onto the premises will not suffice.

Tiki-Nori v. Thackeray [1967-68] P. & N.G.L.R. 37, referred to.

(2) Persons who were on premises for the undisputed purpose of locating the whereabouts of another person were not on premises without lawful excuse.

Appeal

This was an appeal against conviction on a charge of being on premises without lawful excuse contrary to s. 20 of the Summary Offences Act 1977.

Counsel:

P. Kopunye, for the appellant.
M. Unagui, for the respondent.

Cur. adv. vult.

11 January 1984

KIDU CJ: I entertained this appeal at Lae on 11 January 1984, allowed the appeal, quashed the conviction and ordered that the appellant be released immediately from custody. The appeal was conceded by counsel for the respondent. I now furnish reasons for the orders I made at Lae.

The appellant was convicted of being unlawfully on premises and imprisoned for one year, the minimum sentence now applicable for the offence under s. 20 of the Summary Offences Act 1977.

It was alleged in the information laid on 13 December 1983 in the Lae District Court that on 10 December 1983 the appellant "was without lawful excuse found on a private premises of one namely Peter Hun Jefri".

Section 20 of the Summary Offences Act provides as follows:

"A person who, without lawful excuse, is in, on or adjacent to any premises is guilty of an offence (Emphasis added)."

Therefore to prove the offence in s. 20 set out above the prosecution must prove that:

(1) The defendant was:

(a) in premises; or

(b) on premises; or

(c) adjacent to premises; and

(2) He or she had no lawful excuse being there.

It must be emphatically pointed out that the mere fact that the person is found in, or on, or adjacent to, premises of another person does not constitute itself an offence under s. 20 of the Summary Offences Act. In order to justify a charge under this section there must be present in the behaviour of the person concerned some element of criminality. A person who is found in, on, or adjacent to, the premises of another is not guilty of an offence under s. 20 of the Summary Offences Act simply because he was not invited to be on those premises: see Tiki-Nori v. Thackeray [1967-68] P. & N.G.L.R. 37.

The prosecution evidence was given by four witnesses — Popoy Hun Jefri (wife of the owner of the premises), Sol Soa a security officer, Winterford Yaula and Constable Anton Ben the respondent.

Popoy Hun Jefri’s evidence was briefly that she left her house about 6.00 p.m. on the day in question and returned about 8.00 p.m. in a taxi. And I quote from her evidence:

"They went and asked the other person who was in that house (house next door) and they came back and I asked them as to whom they were looking for and they told me that they were looking for someone from Kairuku. I told them there is no Kairuku man at that area. There Sepiks and Marshal Lagoons. They went back to the place where they were coming from. They then went at the back of my place where (it) was dark and I told them that there was no road through that place but they didn’t listen to me and they went. I did not know where they ended up."

Winterford Yaula said he was outside his uncle’s house next door when the appellant and his friends arrived at the house and I quote from his evidence.

"They came to me and was asking me for their friend’s house. They were asking me if I could show them the house of one of their friends who got a yellow suzuki. I don’t know that man but I showed them a house of a policeman who were there at that area which I knew. They then went across to that person’s area."

Sol Soa’s evidence was merely that he was on duty on the day in question and was walking down the road when he saw the defendants coming up from the road and he went down to check and he saw them go into the premises of a police officer and he returned back to where he came from because he thought the appellant and his friends had gone in to visit their friend’s house. He also said in his evidence that he had seen the appellant and his friends come through a hibiscus fence and that there had been no other person present on the premises at that time.

The fourth witness for the prosecution was Anton Ben the respondent and his evidence was to the effect that he was, around about 9.30 p.m., on duty and was with other policemen patrolling the area of the premises in question. Whilst they were in the area the complainant Mrs Hun Jefri stopped them and told them that five people were on her premises. She had taken a taxi back to her house and these five people saw her and ran to the road. This is of course quite different from Mrs Hun Jefri’s evidence on oath. The policemen, Anton Ben and his colleagues then went and met the appellant and his friends on the road and arrested them. I quote from his evidence:

"When I asked them as to why they went into there, there was no owner of the house or the place and there was no answer from the defendants to that question. I also asked them as to why they were coming at the back of the house and there was no answer to that question. I asked them as to why they ran away when the owner of the house came into the house with the axe there was no answer to the question. They only told me that they were looking for a police officer with a yellow suzuki who is believed to be residing at that area. I then arrested them, charged them and placed them in the cell."

The policeman was examined and he was asked the following questions and the following answers were also recorded (sic):

"Q. When you asked them as to why the defendants were that time. What did they tell you on that time?

A. They told me that they were looking for an officer with a yellow suzuki.

Q. How many police officers were there at that place?

A. Yes, there was an officer who got that car, he is the husband of the complainant. It is a suzuki bus.

Q. What name did the defendants gave you that time saying they were looking for that time?

A. They said they were looking for someone by the name Mathew.

Q. Is there someone by that name at that area?

A. Police officers no, there was no police officer by that name."

The appellant then gave sworn evidence and his evidence was to the effect that on the day in question some friends of his had come to his house. These friends had intended to go to a graduation dance at Angau Hospital and as it started raining they decided to return to their houses and they asked the appellant for transport. The appellant told them that he knew a policeman with a white suzuki and that they would go and ask him to take them back to their houses. They went there and in the process of looking for this man they were reported to the police and later arrested and charged.

It is quite clear from the evidence of the prosecution witnesses that when the appellant and his friends went into Mr and Mrs Hun Jefri’s premises they had no intention whatever of committing any crime. In fact they told their story to three different people — Mrs Hun Jefri, Mr Winterford Yaula and the respondent Anton Ben. However, the police decided to charge them simply because a complaint had been laid by Mrs Hun Jefri. In my view the police had failed to prove that the appellant and his friends had been in the premises of the Hun Jefri family without lawful excuse. The appellant and his friends should never have been convicted by the Lae District Court.

Appeal allowed.

____________________________

Lawyer for the appellant: N. Kirriwom, Public Solicitor.
Lawyer for the respondent: L. Gavara-Nanu, Public Prosecutor.