Loho v Hambindua [1985] PGNC 19; [1985] PNGLR 286; N515(M) (11 September 1985)

N515(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

STEVEN LOHO

V

MICHAEL HAMBINDUA

Lae
Pratt J

11 September 1985

SUMMARY OFFENCES - Unlawfully on premises - "Without lawful excuse" - Conduct preparatory to or in furtherance of criminal purpose required - Intent to commit offence of adultery - Intent at time of entry relevant - Complaint not required - Burden of proof - Summary Offences Act (Ch No 264), ss 2, 20 - Native Administration (TNG) Act (Ch No 315).

SUMMARY OFFENCES - Unlawfully on premises - Without lawful excuse - Burden of proof - Summary Offences Act (Ch No 264), ss 2, 20.

INFERIOR COURTS - District Courts - Practice and procedure - Prosecution - Duty to elicit all facts - Where defendant unrepresented - Where statutory onus on defendant - Where defendant gives evidence - Failure causing miscarriage of justice.

CRIMINAL LAW - Practice and procedure - Course of trial - Prosecution - Duty to elicit all facts - Where defendant unrepresented - Where statutory onus on defendant - Where defendant gives evidence - Failure causing miscarriage of justice.

Section 20 of the Summary Offences Act (Ch No 264) provides that "(a) person who, without lawful excuse, is in, on, or adjacent to any premises is guilty of an offence" for which the minimum penalty is twelve months imprisonment. Section 2 of the Act places the burden of proving that the relevant act was done with lawful excuse on the person charged with the offence.

On appeal against conviction and sentence for the offence of being unlawfully on premises contrary to the Summary Offences Act (Ch No 264), s 20, where the unlawful purpose alleged was intention to procure sexual intercourse with a married woman contrary to the Native Administration (TNG) Act (Ch No 315);

Held

(1) If the person charged with an offence contrary to the Summary Offences Act (Ch No 264), s 20, is guilty of conduct preparatory to or in furtherance of some criminal purpose he is guilty of the offence.

Anskar v Yansuan [1985] PNGLR 1 and Tiki Nori v Thackeray [1967-68] P & NGLR 37 at 45-46, considered and followed.

(2) Accordingly, a person who is on premises with the purpose or intention of procuring or attempting sexual intercourse with a married woman contrary to the Native Administration (TNG) Act (Ch No 315) may be guilty of the offence.

Anskar v Yansuan [1985] PNGLR 1, followed.

(3) It is the purpose or intention of the person charged at the time of entry which is relevant, and not whether any complaint in relation to the offence (of adultery) has been made.

(4) Where it is sought to rely on the offence of adultery as the unlawful purpose, the prosecution must prove conclusively that the woman occupant is a married woman.

(5) The burden of proving lawful excuse requires the person charged to prove on the balance of probabilities that he believed the woman occupant to be single at the time he entered the premises.

Tiki Nori v Thackeray [1967-68] P & NGLR 37 at 44, followed.

(6) (Per incuriam) Although there is no rule of practice which requires a prosecutor or a court to assist a defendant to present his case, there is however a duty on the prosecutor to bring out all the facts whether they be in favour of or against the prosecution case and especially where:

(a) the defendant is unrepresented;

(b) the legislation casts a specific onus on the defendant; and

(c) the defendant gives evidence on oath.

The failure to perform the duty may lead to a substantial miscarriage of justice.

Cases Cited

Anskar v Yansuan [1985] PNGLR 1.
Asi Burunge v John Kaupa (Unreported Supreme Court judgment SC258 dated 26 August 1983).
Boas Tito v Konzib [1965-66] P & NGLR 279.
Gari Gari v Ben Anton [1984] PNGLR 1.
R v Kaim Kaim (1957) (Unreported Supreme Court judgment No N108).
Tiki Nori v Thackeray [1967-68] P & NGLR 37.

Appeal

This was an appeal against conviction and sentence for the offence of being unlawfully on premises contrary to the Summary Offences Act (Ch No 264), s 20.

Counsel

R J Everingham, for the appellant.
M N W Mosoro, for the respondent.

11 September 1985

PRATT J: This is the appeal of Steven Loho of Karema No 1 in Malalua against Michael Hambindua. The appellant is a police constable who was convicted at the Finschhafen District Court in June this year that on 3 June 1985 he was without lawful excuse on premises, namely, the dwelling house of one Mathew Bole, thereby contravening the Summary Offences Act (Ch No 264), s 20. By s 2 of that Act:

"Where under the provisions of this Act any act, if done without lawful excuse or lawful cause is an offence, the burden of proof that the act was done with lawful excuse or lawful cause, as the case may be, is on the person charged with the offence."

I am somewhat disadvantaged by not having any reasons for decision from the magistrate. The appeal was served on the Clerk of Court, Finschhafen, sometime in June 1985 as disclosed by the District Court stamp appearing on the notice of appeal. By inference, however, the verdict of guilty means that the learned magistrate rejected the defence evidence in favour of the prosecution. Indeed there was not a great deal of conflict on the central issue of presence. However, in giving his evidence to the court, the defendant-appellant failed to advert to one very important aspect, namely, his state of knowledge as to the marital condition of the young woman Berenine (sic).

I believe it is also correct to infer that the prosecution case relied on the appellant’s intention to ask this young lady to participate in sexual intercourse as being the major aspect contributing to the unlawfulness of his presence. The time was apparently about "2 am". Certainly everyone was in bed fast asleep. Mrs Mathew was awakened by knocking at the back of the house. Berenine and another occupant, Mr John Malimbe were also awakened. There is no evidence that Berenine spoke to the appellant or he to her. Mrs Mathew asked the appellant "why he was there" and he replied "to see her sister in law". Apparently, Mrs Mathew was under no misapprehension as to his intentions for she immediately pointed out that her sister in law was a married woman and when he, the appellant, then in effect said "well you’ll do for sex", she reminded him that likewise she was a married woman. This was not denied in cross examination. He then left the premises but it may be not before he had denied to Mr Malimbe that he was a policeman.

The facts before me are not unfamiliar in the law reports of Papua New Guinea. As long ago as 1957 in R v Kaim Kaim, a decision by Mann CJ in the pre-independence Supreme Court No 108 referred to by his Honour in a later judgment Boas Tito v Konzib [1965-66] P & NGLR 279 it was settled law that mere civil trespass was insufficient to constitute the offence of being unlawfully on premises. This view has been reiterated on a number of occasions and was again published by Kidu CJ in the case Gari Gari v Ben Anton [1984] PNGLR 1. As recently as January 1985, Los AJ has reviewed some of the more recent authorities in Anskar v Yansuan [1985] PNGLR 1, but whilst agreeing with the general proposition above has elected not to follow Frost J (as he then was) in Tiki Nori v Thackeray [1967-68] P & NGLR 37. Los AJ was not prepared to agree with the proposition that to come uninvited onto premises with the intent of asking a married woman to commit the crime of adultery was so minor an offence as to escape punishment. In the final upshot it appears Los AJ has ruled that the criminal motivation in the trespasser before him was sufficient to take the matter out of civil trespass and constituted the offence of unlawfully on premises under the Summary Offences Act (Ch No 264), s 20.

The policeman in Boas Tito was not proved to have any dishonourable intention towards the girl he sought to find on the premises and certainly there was no suggestion of adultery. In John Anskar, as in the case before me, there was a direct conflict between the parties as to whether the lady in question had impliedly or explicitly issued an invitation to attend at the premises. There are, however, two very important distinguishing facts in the case under present appeal. First, the young girl in question was herself only a short time guest at the premises and it is questionable whether she had any power or authority to grant permission for the appellant to be on the premises — at least in the very early hours of the morning. The second, involves the knowledge in the mind of the appellant. It has been agreed by counsel, and my own examination of the depositions does not reveal anything to the contrary, that at no stage has evidence been adduced to prove the appellant knew the girl Berenine was married before he entered the enclosed yard of the Elcom compound in Finschhafen. The only material on this point discloses communication of Berenine’s marital status after the appellant had aroused the household.

There is a suggestion put by the appellant to Berenine in cross examination that they had participated in the sexual act on a number of previous occasions. This was denied. Berenine did admit that she knew the young man when he was attached to the 3-Mile Police Station in Lae. What is left completely up in the air however is whether on any of these occasions (a) Berenine was in fact married and (b) whether the appellant knew she was married.

The onus of explaining his conduct is on the defendant, in common with many jurisdictions where Parliament has enacted this particular offence. I accept the law as stated by Frost J in Tiki Nori, that the section places "the bruden of proof of lawful excuse fully upon the defendant" on the balance of probabilities (at 44). In the circumstances of this case it was up to him to convince the court that he believed the young girl to be single at the time he entered the premises. It was not a matter to be proved by the prosecution. Premises, however, is defined much more broadly now than it was in the Tiki Nori case. At that time it was essential to prove specifically that the miscreant was either on the premises, or adjacent to the premises, or within an enclosed yard, garden or area. In the new Act by definition "premises" includes the whole lot and more. In any case this appeal was not argued before me on the aspect of whether or not he was on the premises or near the premises or merely in an enclosed yard. And in the absence of the prosecution being forced to rely on particulars furnished at the request of the defence and in view of the extended definition of premises in the new Act, I do not intend to say anything further on the matter.

The case bears much resemblance to the facts before Los AJ in John Anskar. I have found nothing contained in the Supreme Court decision Asi Burunge v John Kaupa (Unreported Supreme Court judgment SC258 dated 26 August 1983) to furnish guidance on the points raised before Los AJ or before me. I had thought during submissions that there was a conflict between Los AJ and Frost J but on re-reading the whole of the latter’s judgment in Tiki Nori (which also contains a useful summary of the arguments submitted in support of the appeal), it is patently clear that at no time was the appeal argued on the ground that the defendant’s conduct was unlawful because he intended to engage in an act of adultery and thus contravene the offence set down in the Native Administration Regulations punishable by fine or six months imprisonment. That offence still exists in the revised laws by virtue of the Native Administration (TNG) Act (Ch No 315), s 14. The whole appeal in Tiki Nori appears to revolve around whether or not the defendant’s act was such as to put the occupants in fear and thus lead to a breach of the peace. I quote from the judgment of Frost J (at 45-46) as follows:

"... For the purpose of deciding the present case, in my opinion, if the defendant shows that his conduct falls outside the limits of conduct referred to in Haisman v Smelcher ([1953] VLR 625) he shows, for the purpose of the ordinance, a lawful excuse. That is to say, if the defendant shows that he is not guilty of conduct that is preparatory to or in furtherance of some criminal purpose, or which by reason of its violating recognised standards of decency, tranquillity and decorum and the accepted usages of the community, is likely to put occupants in fear or apprehension and thus lead to a breach of the peace, on the facts of this case, he has shown lawful excuse within the meaning of the ordinance. It will be seen that this construction is different from the construction placed by Hart J in Roffey v Wennerbom ([1965] Qd R 42) upon the Queensland section, but I would add his Honour’s qualification that criminal purpose must be understood to relate to offences other than those of a minor nature."

Two important features emerge from this citation from the judgment of Frost J:

(1) If the defendant is guilty of conduct preparatory to or in furtherance of some criminal purpose, he is guilty of an offence under the Summary Offences Act, s 20.

(2) Despite the allusion to criminal conduct his Honour made no reference here or anywhere else in the judgment to the fact that adultery was (and still is) a criminal offence under the laws of Papua New Guinea if the participants are persons "subject to the regulation".

If such reference was not made because both counsel and his Honour in Tiki Nori were of the view that as no complaint had been filed by a person authorised to lay such complaint under the regulations, and thus no offence could therefore said to have been proved, I cannot agree. Whilst it is true that the charge cannot be brought just by anyone, let alone a police informer, I do not believe this aspect was relevant to the appeal in Tiki Nori. It is the purpose at the time of entry which counts, not whether a complaint for counselling and procuring or attempting adultery has been made. The crime is adultery. The standing of the informer is purely procedural though essential nonetheless.

In my view therefore there is nothing contained in the judgment of Tiki Nori which is in conflict with the closely reasoned judgment and decision of Los AJ in John Anskar. Having read that judgment carefully I find nothing which would cause me to break with the essential requirement of observing judicial comity so essential to a proper working of our system of justice, especially in areas where the magistrate’s courts are the ones most deeply involved. I do not believe that the magistrates are faced with one decision of the National Court being in conflict with another, and thus being quite unable to say what the law is.

In the present case I consider the magistrate convicted because the facts supported his conclusion that the appellant was on the premises preparatory to "or in furtherance of some purpose violating the provisions of the criminal law" (Tiki Nori at 44). He was there for the purpose of counselling and procuring an act of adultery. That is enough. I would say one word of warning however. If the prosecutor intends to rely on adultery as the unlawful purpose the evidence should be stronger in my view than merely a bald statement "I am a married woman". The place, date (where possible) and nature (that is customary or otherwise) of the marriage should be deposed to and where possible, production of the marriage certificate. The required degree of proof I think would ideally be placed at no less than what the prosecution must face in an adultery case itself. I think that this is particularly important, especially in a magistrate’s court, because of a tendency these days for women in particular to claim that they are married either by custom or by statute or by church when in fact such is not the case. In my opinion it is clearly a part of the prosecution case to prove quite conclusively that the occupant is married for the unlawful purpose is to commit the crime of adultery. If the sole occupant were a single girl then the intended act may involve sex but that is not a crime of itself. The matter might be otherwise if rape, or indirect assault, or indecent dealing were proved, and had gone further than mere preparation.

This does not end the matter however. We are dealing with a criminal offence carrying a minimum sentence of twelve months imprisonment. There is certainly no rule of practice which requires a prosecutor or a court to assist the defendant to present his case. Indeed there can be dangers in such a course being followed by the bench. However, the appellant was not legally represented. True he is a policeman but in our Papua New Guinea context at present I do not believe too much weight should be given to that aspect when ascertaining the degree of knowledge of the criminal law. I believe there is a duty however on the prosecutor to bring out all the facts be they in favour or against the prosecution case. This is especially so where (1) the defence is unrepresented; (2) the legislation casts a specific onus on the defendant; and (3) the defendant gives evidence on oath. I cannot overcome the feeling that to confirm the conviction in this case where the prosecutor or perhaps the presiding magistrate has left unanswered the matter of the defendant’s state of knowledge at the time of entry on to the premises would be to perpetuate an injustice. I admit to some hesitation about this especially as it was not the subject of any submissions. In the circumstances however I believe that the omission has led to a substantial miscarriage of justice. The only obvious way to clarify the point is to send the matter back for re-hearing. Fortunately, the situation is not complicated by the appellant remaining in custody. He has been on bail since the date of his conviction.

Even if I am wrong on this aspect there is no indication in the deposition that the learned magistrate gave any consideration to the application of the District Courts Act 1963, s 132. Consistent with other decisions of this Court in the circumstances of this case such an omission is also fatal. I would have remitted the case for a consideration of that point alone especially in the light of Los AJ’s ruling in John Anskar v Yansuan.

I therefore uphold the appeal and remit the information back to the District Court for re-hearing before another magistrate. The appellant’s bail is extended. He will remain on the bail that he has already entered into.

Appeal allowed

Re-hearing ordered

________________________

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

[1985] PNGLR 292 - The State v Luke Aidou