Kenang v Kasper [1984] PGNC 34; [1984] PNGLR 102; N458(M) (2 May 1984)

N458(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

TAI KENANG

V

SIMON KASPER

Mount Hagen
Bredmeyer J

18 April 1984
2 May 1984

CRIMINAL LAW - Particular offences - Break enter and steal - Alternative verdict - Conviction for stealing available as alternative - Criminal Code (Ch. No. 262), ss 395, 528.

Held

On a charge of breaking entering and stealing under s. 395 of the Criminal Code (Ch. No. 262) an accused may be convicted under s. 538 of the Code of the lesser alternative charge of stealing simpliciter, because break, enter and stealing is an aggravated form of stealing.

Cases Cited

R. v. Daugamani-Adamanika [1965-66] P.& N.G.L.R. 80.
R. v. Iona Griffin [1974] P.N.G.L.R. 72.
R. v. Short and Ors [1928] Q.S.R. 246.
R. v. Young [1905] WALawRp 32; (1905) 7 W.A.L.R. 256.

Appeal

This was an appeal from a decision of a grade V magistrate convicting the appellant of stealing on a charge of break enter and steal.

Counsel

J Bolata, for the appellant.
G. Salika, for the respondent.
Cur. adv. vult.

2 May 1984

BREDMEYER J: This is an appeal from a decision of a grade V magistrate Mr J. Toroken sitting at Minj. The defendant was charged with breaking and entering the coffee factory of Kizabah Plantation and therein stealing a quantity of coffee beans valued at K300, the property of Kizabah Plantation. At the end of the prosecution case, defence counsel made a no case submission and the learned magistrate accepted that submission in relation to the break and enter part of the charge. He ruled that trial should proceed on the charge of stealing and later, after the trial concluded, convicted the defendant of stealing. The appellant has appealed against conviction only, and the sole point of the appeal is that having ruled no case to answer, it was not open to the magistrate to rule that the trial proceed on the lesser charge of stealing.

In this case the problem arose at the time of the ruling on the no case submission. But the same problem could arise later. Can a court find a defendant guilty of stealing simpliciter on a charge of break, enter and stealing? There has been some divergence of judicial opinion in Papua New Guinea pre-Independence, and elsewhere, on the answer to this question. The most relevant section is s. 538 of the Criminal Code (Ch. No. 262) which provides:

"538. Offences involving circumstances of aggravation

Subject to this Division, on an indictment charging a person with an offence committed with circumstances of aggravation, he may be convicted of any offence that is:

(a) established by the evidence; and

(b) constituted by any act or omission that is an element of the offence charged,

with or without any of the circumstances of aggravation charged in the indictment."

In R. v. Young [1905] WALawRp 32; (1905) 7 W.A.L.R. 256 the Court of Criminal Appeal by a majority of two judges to one, held that a charge of receiving cannot be joined with a charge of breaking, entering and stealing. The decision turned on an interpretation of the Western Australian section equivalent to our Papua New Guinean, s. 532(5), which says that charges of stealing and receiving may be joined in the same indictment. The majority held that a charge of stealing within the meaning of that section means the charge must substantially be of stealing and that the charge of breaking, entering and stealing is primarily about burglary although it incidentally requires the Crown to prove the stealing of certain articles. I do not regard this case as an authority that in some other context, e.g. the context of s. 538, that breaking, entering and stealing cannot be regarded as an aggravated form of stealing.

In R. v. Short [1928] St. R. Qd. 246 the accused were convicted of breaking, entering and stealing. The evidence against them was circumstantial. They were seen in a blue car near the scene of the offence. Later they were found a long way from the scene in the same car in possession of a jemmy, which fitted certain marks on the door that had been forced, and a torch and a marked bottle of lemon butter both identified as having been taken from the store. The trial judge directed the jury solely on the offence of breaking, entering and stealing and they were convicted. He did not direct the jury on any other alternative verdicts. On appeal the Court of Criminal Appeal held that the trial judge should have directed the jury on the lesser alternative verdict of stealing as well as burglary. The reason was that the presumption raised by the doctrine of recent possession in cases of burglary is not nearly so strong as in cases of stealing or receiving. And if that doctrine and the alternative verdict had been properly explained to the jury they may have convicted the accused of stealing simpliciter.

The Court of Criminal Appeal in Short’s case cited no authorities for its view but obviously its reasoning produces a fairness to both prosecution and defence.

In Short’s case the court was concerned about fairness to the accused; if the alternative lesser charge of stealing had been explained to the jury, the accused may have been convicted of that lesser offence. In other cases, as in the instant one, where the elements of breaking and entering were not proved, it produces a fairness to the State. The reasoning of Short’s case has been applied in other contexts. Since Short’s case it has been settled law in Queensland that upon a charge of breaking and entering a dwelling house with intent to commit a crime therein (s. 395 of our Code), the lesser verdict of entering a dwelling house with intent to commit a crime therein (s. 397 of our Code) may be returned because the element of breaking contained in s. 395 is a circumstance of aggravation under the equivalent of our s. 538. The Court of Criminal Appeal in R. v. Peacock [1980] Qd R. 353 said that point has been settled law in Queensland since Short’s case.

In R. v. Daugamani-Adamanika [1965-66] P. & N.G.L.R. 80 the question was considered by Mann C.J. In obiter dicta at 89 he thought that Young was an unsatisfactory authority and that Short was to be preferred. He thus thought that for the proposes of the Code, s. 575, (which was the then equivalent to s. 538 quoted above) break enter and stealing was an aggravated form of stealing. On the other hand, Prentice C.J. in R. v. Iona Griffin [1974] P.N.G.L.R. 72 at 77, again in obiter dicta, come to a contrary view. He thought Short a somewhat dubious authority for the proposition that stealing is an alternative verdict for break, enter and stealing.

I have no doubt in my mind that break, enter and stealing is an aggravated form of stealing in the same way that break, enter and stealing is an aggravated form of break and enter. I consider that the Criminal Code, s. 538, applies and that the magistrate did not err in his decision. I consider that the defendant suffered no injustice. When the prosecution evidence on break, enter and stealing was led, defence counsel knew that stealing was an element of the charge that the prosecution sought to prove, and was thus able to direct what cross-examination he could to that element. When the magistrate ruled the trial proceed on the charge of stealing simpliciter, the defence counsel had the opportunity to call evidence to answer or cast doubt on that prosecution evidence. I consider that the course the magistrate took was open to him, the defendant suffered no miscarriage of justice, let alone "substantial miscarriage of justice" which alone can enable an appeal to succeed under District Courts Act 1963, s. 236(2). It seems to me that to argue to the contrary, to say that the defendant should have been acquitted because there was no separate charge of stealing on the indictment, is overly technical and would produce a substantial miscarriage of justice to the State. I dismiss the appeal.

Appeal dismissed.

______________________________

Solicitor for the appellant: Public Solicitor.
Solicitor for the respondent: Public Prosecutor.