Boas-Tito v Konzib [1965] PGSC 7; [1965-66] PNGLR 279 (17 May 1966)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 279 - Boas-Tito v Konzib

[1965-66] PNGLR 279

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BOAS-TITO

V

KONZIB

Rabaul and Port Moresby

Mann CJ

30 March 1966

17 May 1966

CRIMINAL LAW - Being in dwelling-house without lawful excuse - Plea of guilty entered but defendant later making statement inconsistent with plea - Duty of court to enter plea of not guilty - Defendant in dwelling house in breach of administrative order - Lawful excuse - Police Offences Ordinance (New Guinea) 1926-1963.

Section 70 (1)(m) of the Police Offences Ordinance (New Guinea) 1926-1963 provides, in so far as it is material to cite it here, as follows:

N2>“70(1) Any person who:

(m)     is without lawful excuse (the onus of proof of which excuse shall lie upon the person) in or upon any dwelling-house, . . . shall be guilty of an offence.

Penalty: Imprisonment for one year.”

The defendant, a police constable, was charged in the District Court with being in a dwelling-house without lawful excuse contrary to the above section. When the charge was read to him he made an answer which the presiding justice of the peace accepted as a plea of guilty. After the evidence on behalf of the informant had been adduced, the defendant elected to make a statement in which he said that on the evening in question he had gone to a mission to obtain certain information from two females there (one of whom was a relative) but had lost his way in the dark. He further stated that he had entered a mission building by the wrong door and hit his leg on a bucket, apparently disturbing the occupants, three female employees of the mission. The defendant’s statement accorded with the evidence of these three persons, who also testified that when the defendant discovered that the girls to whom he wished to speak were in the room next door he left quickly and did not molest them in any way. The defendant then spoke to his relative from outside the window of the next room and when told by her to go he promptly did so. The justice of the peace was, however, satisfied that the defendant was aware of an administrative order that no Administration personnel were to visit female quarters at the mission during the hours of darkness. Accordingly he convicted the defendant and sentenced him to a term of imprisonment with hard labour. The defendant appealed to the Supreme Court.

Held

N1>(1)      After the defendant had made his statement the plea of guilty previously entered should have been changed to a plea of not guilty because he had given an explanation inconsistent with his plea on questions of fact which should then have been regarded as being in issue.

N1>(2)      As the evidence adduced on behalf of the informant fully supported the defendant’s statement the case would be disposed of on appeal and not remitted to the District Court for rehearing.

N1>(3)      It was not necessary for the defendant to establish that he had an affirmative invitation to go to the female quarters at the mission on this particular occasion. In going there he was in breach of an administrative order but his excuse did not involve anything unlawful or any conduct for which he might be bound over to keep the peace and be of good behaviour.

Haisman v. Smelcher[1953] VicLawRp 62; , [1953] V.L.R. 625 considered and R. v. Kaim-Kaim (unreported) referred to.

Decision of the District Court at Kandrian reversed.

Appeal from District Court

The facts appear sufficiently from the judgment.

Counsel

Munro and Broadley, for the appellant.

Pratt and Croft, for the respondent.

Cur. adv. vult.

17 May 1966

MANN CJ:  This appeal was heard before me during my last circuit in Rabaul on 30th March last. I intimated that I proposed to make an order setting aside the conviction and sentence and reserved the question of whether the case should be sent back to the District Court for re-hearing and stated that I would decide this question when I had the opportunity to give my detailed reasons.

The appellant was convicted of being without lawful excuse in a dwelling house occupied by the females Maria Mindan, Tekla Sakieng and Susana Wanpoun.

The offence is constituted by s. 70 (1)(m) of the Police Offences Ordinance (New Guinea), 1926-1963. This section replaces s. 7 of the Criminal Code Amendment Ordinance (New Guinea), 1923-1939, the effect of which was considered by this court in R. v. Kaim Kaim[cclviii]¹. The new section introduces into the Territory the substance of the Victorian statutory provision referred to in Kaim’s case[cclix]² and analyzed in some detail by the Victorian Full Court in the case of Haisman v. Smelcher[cclx]³.

When the charge was read to the defendant, the appellant, he made an answer which the presiding justice of the peace accepted as a plea of guilty. The police witnesses were then called and they gave evidence. Upon the accused being asked if he wished to call evidence or make a statement, he stated that he would make a statement. This was taken down by the justice, who then recorded a finding that the appellant was guilty of the offence charged and sentenced him to imprisonment, with hard labour, for two months.

In his statement the appellant explained his movements during the evening that the alleged offence was committed and said that he was on duty as a police guard until midnight. After coming off duty he set off to go to a party, but changed his mind and instead went to the mission station at Turuk to visit two females and obtain some information from them. He mistook his way in the dark, entered a building by the wrong door and hit his leg on a bucket. This apparently disturbed the occupants of that part of the building, who were three females employed at the mission. A mission sister came and spoke to the girls. After she had gone the appellant, who had previously left, returned to the building and spoke to two other females, who lived in another part of the same building. One of them told the appellant to go and he left the place.

I think that it is clear that upon this statement the plea of guilty previously entered should have been changed to a plea of not guilty, because, so far as the statement of the accused is concerned, he had given an explanation inconsistent with his plea on questions of fact which ought then to be regarded as being in issue. It has been held in this court on a number of occasions that it is the duty of the court to enter a plea of not guilty in such circumstances. I do not think that in the present case this is a question of any importance, for the police witnesses had already been called and altering the plea at that late stage would involve re-hearing the case and giving the prosecution the opportunity to contradict the facts alleged by the accused. Hence my uncertainty when the case was heard as to whether I should deal with the whole case at once or whether I should send it back for re-hearing. On further consideration, I think that the evidence for the prosecution fully supports what the accused said and, there being no substantial issue of fact raised, I think it better now to dispose of the whole case.

The evidence of the female witnesses makes it clear that the accused apparently had made a mistake by entering the wrong part of the building in the dark. He called out the names of the girls to whom he wished to speak and they were in fact in the room next door. When his mistake was discovered the accused left quickly. He did not molest the girls in any way. He was apparently embarrassed by having disturbed them. When the alarm had quietened down the accused went to a position outside the window of the girls to whom he wished to speak and one of them, Leksia, a school teacher at the mission, confirms not only the version of the accused of what took place, but also the fact that the accused is a relative of Leksia.

The history of this legislation as explained in Haisman v. Smelcher[cclxi]⁴ is that it was part of the developing common law concerned with rogues and vagabonds and idle and disorderly persons. It is clear that the common law rules, and the subsequent statutory provisions were not intended to cover cases where some civil wrong only might be established, or cases where the conduct might be harmless, or less than something with some degree of criminality involved. It is clear that conduct involving or inducing a breach of the peace comes within the scope of the section and in Haisman v. Smelcher[cclxii]⁵ a “peeping tom” was held to have been rightly convicted upon the ground that this kind of behaviour renders a person liable to be bound over to keep the peace and to be of good behaviour. This is sufficient for the purposes of the section, but something of the kind which would concern the criminal law is a necessary ingredient.

In his reasons for judgment the justice indicates that he was satisfied that the appellant was aware that he was offending, and that he was aware of an administrative order that no station personnel were to visit female quarters at the mission station during the hours of darkness.

In such cases it is not safe to place any reliance upon the sense of guilt of a person who may have committed some breach of an administrative duty, or failed to obey some administrative instruction. His understanding of the law is not likely to enable him to appreciate that some element of disorderliness or behaviour involving the outrage of a proper sense of decency or morality or public mischief is required. It is not sufficient merely to establish a breach of administrative orders to attract the sanction of the criminal law. It would be a most dangerous situation if this were sufficient to render either a public servant, or a policeman, or perhaps even a private citizen, liable to imprisonment for disobeying such an order.

The excuse given by the accused that he was visiting a female relative for the purpose of obtaining information is quite consistent with the prosecution case, and his behaviour, apart from the accidental disturbances which he caused, was quite orderly throughout. He left as soon as Leksia told him to go and did not persist any further.

It was not necessary for the appellant to establish that he had an affirmative invitation to go there on this particular occasion. It seems to me that is the wrong approach to the question. His excuse involves nothing unlawful within the meaning of the section as explained by Haisman v. Smelcher[cclxiii]⁶, nor does it involve any conduct for which he might be bound over.

The conviction will be set aside. I do not think that any useful purpose will be served by sending the case back for rehearing.

I find the accused not guilty of the charge and order that he be released from his recognizance.

Appeal allowed and conviction set aside.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.

Solicitor for the respondent: S. H. Johnson, Crown Solicitor.

R>

[cclviii]New Guinea No. 108.

[cclix]New Guinea No. 108.

[cclx][1953] V.L.R. 625.

[cclxi][1953] V.L.R. 625.

[cclxii][1953] V.L.R. 625.

[cclxiii][1953] VicLawRp 62; [1953] V.L.R. 625.