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Police v Sombe [2001] PGDC 31; DC316 (14 September 2001)

DC316

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE No 41 of 2001

Police
Complainant

V

Arnold Sombe
Defendant

Mount. Hagen: M. M. Pupaka, PM.
2001: 15th & 17th August, 14th September

Criminal Law – Particular offence – Breaking & entering – Evidence of attempted break in only – Other similar break-ins prior to current instance – No real connection between current attempt and previous break-ins

Particular offence – Break & Enter – Elements of offence – Criminal Code – Sections 394 & 395 – Offence complete upon penetration of any part of the burglar’s body or any instrument being used into any part of the building

Counsel
Sergeant Piaku for the Prosecution
The Accused in person

28th September 01

M. M. Pupaka: The accused Arnold Sombe was charged that he on the 27th of February 2001 "did break and entered the dwelling house of Billy Kombel situated at Ela Police Barracks, Mt. Hagen with intend to commit a crime therein". The offence is contrary to section 395-(1) (a) of the Papua New Guinea Criminal Code Act Chapter No. 262, (the Code).

For reasons that would become much clearer further on at the appropriate junctures, it is necessary to set out in full the pertinent provisions of the Code. These are Sections 394 & 395 and they read:

394. Breaking: Breaking and entering

(1) A person who –

(a) breaks any part, external or internal, of a building, or

(b) opens by unlocking, pulling, pushing, lifting, or any other means, any door, window, shutter, cellar, flap or other thing, intended to close or cover an opening in a building, or an opening giving passage from one part of a building to another,

shall be deemed to break the building.

(2) A person is said to enter a building as soon as any part of his body or any part of any instrument used by him is within the building.

(3) A person who –

(a) obtains entrance into a building by means of –

(i) any threat or artifice used for that purpose; or

(ii) collusion with any person in the building; or

(b) enters any chimney or other aperture of the building permanently left open for any necessary purpose, but not intended to be ordinarily used as means of entrance,

shall be deemed to have broken and entered the building.

395. Housebreaking: Burglary

(1)A person who –

(a) breaks and enters the dwelling house of another with intent to commit a crime in it; or

(b) having –

(i) entered the dwelling house of another with intent to commit a crime in it; or

(ii) committed a crime in the dwelling house of another,

(c) breaks out of the dwelling house; or

breaks and enters the dwelling house of another and commits a crime in it,

is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If the offence is committed in the night, the offender is liable, subject to Section 19, to imprisonment for life.

The accused entered a plea of not guilty and the matter proceeded by way of a full trial. The prosecution called four witnesses and closed its case. The accused, having elected to be sworn, testified on his own behalf. He called no other witnesses and closed his case.

Due to a lot of controversy over the distances between the material locations, especially the distance between houses relative to the complainant’s house, it was resolved that the Court visit the scene of the crime. That was done in the presence of the complainant, the accused and the prosecutor on the 19/09/01. In the brief visit to the scene, the distances between the different localities and their positions, as alluded to in the evidence, were noted as part of the body of evidence in this trial.

The State Case

The prosecution evidence relative to the activities at the complainant’s house is not disputed. That part of the evidence is this:

On the 27th of February 2001, during the early hours of that morning, there was an attempt made to break-in into police officer Inspector Billy Kombel’s house at the Ela Police Barracks in Mt. Hagen. The house owner and other occupants were alerted and they gave chase. At least two suspect burglars ran into the surrounding settlement area. The house owner saw another suspect angling towards the main Barracks road so he gave chase. He caught him between the next two houses from his own, which is only within striding distance. The three houses are located fairly close together. The suspect, who is the accused, struggled free of the complainant’s grasp. The complainant had a pistol on him, so he fired off a warning shot and the accused responded by stopping. By then the complainant’s other relatives had arrived and they then firmly apprehended the accused.

The other aspect of the State case, also not in dispute, is that whoever attempted to break into the complainant’s house partly tore open and lifted the fly wire on at least two bedroom windows of the house. The evidence is that the louvre blades on the windows were shut tight preventing full entry through those windows.

I have no hesitation in concluding that whoever attempted to enter the complainant’s house that night completed his or her acts of breaking and entering the house, in the context of Section 394 (2). [See the bold and underlined part – Section 394 (2) above]. Ripping open the flywire of a window in a building, unless otherwise argued, completes the act of entering the building. Section 394 (2) defines entry to mean "...as soon as any part of his body or any part of any instrument used by him is within the building". I am of the view, for the purposes of these proceedings, that the act of breaking and entering was completed.

The Defence Case

The accused gave a detailed account of his whereabouts from 8.00PM the previous evening to the time he was ‘caught’ at the vicinity of the scene of the crime by the complainant. His account of where he had been prior to being ‘caught’ at the scene is of no consequence at all here, except perhaps as it relates to what he had been up to for the rest of the night.

What is relevant is the part that relates to why the accused was there at the scene of the crime at the material point in time. The Accused says he was on his way home. His home is his brother’s house. Where exactly is his brother’s house is not certain. However it is clear enough that his brother’s house is not within the Ela Police Barracks. There was some reference to the accused wanting to take a short cut to Ela Motors Yard so I take it that the accused’s brother’s house is within the adjoining Ela Motors Yard.

The accused clearly admitted under cross-examination that there is no access to the Ela Motors Yard through the Ela Police Barracks so just how he intended to cut across is uncertain. The accused said something about not wanting the night guards to question him when he entered through the front entrance so I take it the place where his brother’s house is, is a enclosure, most likely securely fenced in and guarded at night.

The accused was ‘caught’ in the open space between the two houses of police officers Rambaliku and Patrick Chee. The accused conceded to that. As to whether the accused was running away is controversial. Nonetheless I accept that he struggled free of the complainant’s grasp after he was first caught but he was finally restrained after a warning pistol shot was fired, urging him to stop.

It is the accused’s contention that he was caught, after being at the wrong place at the wrong time, a case of bad timing and tragic coincidence.

Discussion of the Evidence

The ‘catching’ of the accused at the scene of the crime can only have been as a result of one of two likely scenarios. Either the accused was involved in the commission of the offence and he was caught after a chase as the prosecution witnesses say, or that he could have been caught innocently but quite tragically as he says.

So is the accused an innocent man caught in the wrong place at the wrong time? What is wrong with the accused’s story?

1. The accused’s assertion that he was taking a short cut to his brother’s house through the Ela Police Barracks is not a credible story in all the circumstances of this case.

2. First of all the there is no short cut route across the Ela Police Barracks, particularly through the path he followed, between Rambaliku and Patrick Chee’s houses, pass the complainant’s house.

3. The prosecutor put to the accused during cross-examination, that there was some sort of track used by the public to access the Ela Motors Yard, which is between Ela Motors Compound and a Mr. Sombu’s house. The accused agreed that there was one such track there. As to just where that track is, relative to the three policemen’s (Messrs Chee, Rambaliku & Kombel’s) houses, is not clear to me. Wherever the track is, I suspect it is not near or close enough to the three policemen’s houses.

4. The access of sorts leading into the area where the three policemen’s houses are, is a sort of cul de sac, which extends to and terminates at Mr. Kombel’s house, which is the last house. The place is a bit of an enclosed area. Anyone entering that area could only be going to one of the three houses referred to. Persons going to other houses at the Ela Police Barracks or wanting to follow the main Barracks Road would not be entering that area between these three policemen’s houses.

5. Then there is the struggle of the accused. He had no reason to fear anyone. If he was an innocent person as he maintains, why did he resist the complainant, why did he struggle free?

6. The accused’s assertion that he came from his girlfriend’s house in town, after having spent most of the night with her stands alone and uncorroborated. It would not have been so difficult to call the girlfriend to confirm this but she was not called.

Conclusion

I have no doubts that this accused with others attempted to break and enter police officer Inspector Kombel’s house at the Ela Police Barracks, in the early hours of the 27th of February 2001. He was caught fleeing from the scene. He was caught inside an area, an enclosure, where he had no good reason to be in at that time of the night. His given reasons, for being at the scene lack credibility and in the face of the totality of the body of evidence, stand out more as nonsense than the truth.

There is one other aspect I should make mention here. It was never specifically said or suggested to the accused that he was also responsible for a string of previous break-ins at the same house. However the prosecution clearly led evidence and left is open for that conclusion to be reached by the Court. On the evidence available I am unable to draw that conclusion. As to whether this accused was responsible for those previous break-ins would have been easy to prove. For instance, latent fingerprints that may have been obtained after any of the previous break-ins would have been matched with this accused’s fingerprints, to prove that the accused was involved in those previous break-ins as well. That was never done. In the end I think it is unfair and dangerous to speculate the possibility and I decline to do so.

Nevertheless in all the circumstances of this case, I find the accused, Arnold Sombe, guilty as charged, of the offence of breaking and entering a dwelling house with intent to commit a crime.

Sergeant Piaku: Complainant
In Person: Defendant