Queen v Ori [1953] PGSC 5 (27 May 1953)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

THE QUEEN

against

ORI, son of AIS'E

The Supreme Court, (Bignold J.) in its Criminal jurisdiction at Port Moresby, 27 May 1953.

Accused, a man, was seen by a householder (a woman) to come into her house at four o'clock in the morning. The method of entry was by opening a closed door. The intruder did not do anything. He was identified by the householder but set up an alibi which was not supported by the people he said he was with.

HELD: Since the Crown cannot prove beyond reasonable doubt that Accused intended committing a crime demonstrably within the Criminal, Code he must be acquitted.

Editor's Note:

(i) R. v. COKAR (1960) 2 All E.R. 175, (where a West African climbed into a house in London after midnight and was found asleep in a chair in front of the fire, wrapped in the occupant's overcoat) did not deal with this point but a similar case (with the addition that the Accused "made friends" with the dog set on him by the householder) is R. v. Pearson (1910) 4 Cr. App. R.40; 74 U.P. 175, where the Court of Criminal Appeal held that "the gist is felonious intention. There is really nothing in evidence.....to prove that appellant had any felonious intention..... The conviction must be quashed". Kenny: "Outline of Criminal Law" 17th Ed. 1958 P. 235 refers to an unreported case in 1899 where a boy had broken into a house and merely wound up all the clocks.

(ii) Russell on Crime 11th Ed. 1958 Vol. 2 p.937 says that in England "the felony really intended must be laid in the indictment and proved as laid" but Butterworth: "Annotated Criminal Code" in the "Queensland Statutes" 1936, at p.834, and Carter:

"Criminal Law of Queensland" 1958 p. 206 cites R. v. Borland (1907) to N.Z G.L.R. 241 (not available in New Guinea) as authority for the proposition that it is not necessary to avert the specific crime which the accused intended to commit. Presumably Borland cannot get over the necessity to allege before the close of the Crown Case the particular crime intended because the section refers to intent.

Paul Quinlivan, C.P., for the Crown.

James Humphries, Assistant District Officer, by leave for defence.

JUDGMENT

BIGNOLD J.

This is rather unusual case - on the night in question the wife of the householder was unable to sleep well. It was a moonlight night and at 4 a.m. she was sitting in the lounge-room of the house looking through the windows out to sea. The room is approximately 25 feet long and at one end the kitchen opens into the lounge-room. The kitchen has a back door but although the kitchen opens into the lounge-room, there is no actual door separating the two rooms.

As Mrs. Read sat there in the lounge-room, she heard the back door opening. She had had occasion to go out through that kitchen door some time previously (for the purpose of emptying cigarette ash) and she knew that she had closed the door well, because she met with some little difficulty in closing it. It was an ordinary kitchen door; it was not locked but was well latched.

Well she heard the noise, she looked in that direction - she thought it may have been her husband who had, unknown to her, gone outside. As she watched, she saw a figure in a crouching position, the figure had his hand on the lintel and one hand on a small table – he bent forward and as he did so, the moonlight came through the window and illuminated his face. Mrs. Read said she is sure that the accused is the person whom she saw illuminated by the moonlight in the kitchen doorway that early morning. The accused had, a week previously, been employed by her but had ceased to be employed.

To the Police, the accused gave a false account of where he was that night, and whilst this may be grounds for suspicion, I do not think that it adds to the proof at all: I have to see whether the Crown has proved beyond reasonable doubt every element of the offence with which the accused is charged. Whilst I feel hesitant about the identification, I have no doubt of the veracity of Mrs. Read, and I feel sure that when she said it was the accused who was at the doorway that early morning, she felt sure of that fact. There is a possibility, however, that somebody seeing a person at a distance of 20 feet and that person being only illuminated by the moonlight, taking into account the similarity of Natives, could be mistaken; there is a great danger of mistake in identification unless there be some real corroboration that he, in fact, was the Native who was there.

In my view, the Crown has been quite unable to establish the intent of the accused to commit a crime; it might be said, in popular language, that the accused was there for no good purpose and that he must have been there with the intention of committing a crime. I consider, however, that the accused is entitled to have the Crown prove beyond a reasonable doubt the intention of committing a crime - a crime demonstrably under one of the Sections of the Code. He was at the doorway but he did not manifest his intention by any overt act.

I think it a great pity that there exists no section in the Code making it an offence for a person to be on the property of another at some unconscionable hour in the morning.

Assuming it was the accused who was there (and I leave that matter quite open), on the view I take, then I could not have found the accused guilty. At the outset of the trial the Crown was obviously embarrassed. The Crown Prosecutor wished to be relieved of binding himself to proving the intent of any particular crime, hoping that the evidence as it unfolded would establish the particular crime intended to be committed - the evidence has not done so.

I find the accused Not Guilty - he is discharged.

(End)