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Police v James [2021] PGDC 97; DC6051 (22 July 2021)

DC6051

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]

B. No. 2185 of 2020

CB No. 3612 of 2020
BETWEEN

THE POLICE
Informant


AND

SARAH JAMES
Defendant


Boroko: Seth Tanei


2021: 22nd of July
      

SUMMARY OFFENCE – Unlawfully On Premises – s 20 Summary Offences Act 1977.


PRACTICE AND PROCEDURE- Trial- Whether the Defendant was Unlawfully on Premises – Elements of the offence discussed –Elements proven –- Defendant found guilty as charged.


Cases Cited


Police –v- Timothy [2009] PGDC 99; DC953


References


Legislation
Summary Offences Act 1977


Counsel

Sergeant Wilson Golina, for the Informant

Sarah James, the Defendant In Person

RULING ON VERDICT

22nd July 2021


S Tanei: The Defendant was charged for being unlawfully on Premises contrary to section 20 of the Summary Offences Act 1977. She pleaded not guilty.

  1. The matter went for trial. Trial was concluded on 2nd June 2021.
  2. Submissions on verdict were made on 8 July 2021.
  3. This is my ruling on verdict.

CHARGE:


  1. The Police allege that on 8th October 2020 at Kesi Settlement, Manu, NCD, the Defendant without lawful excuse, resided on a premises namely a residential house situated at Kesi Settlement, Manu, National Capital District, the property of another person namely Thomas Ango, a National Male.

ISSUES:


  1. The Court is faced with the following issues;
    1. Whether the Defendant was unlawfully in, on or adjacent to the premises.

THE LAW


  1. Section 20 of the Summary Offences Act 1977 provides that;

“A person who, without lawful excuse, is in, on or adjacent to any premises is guilty of an offence”


  1. The law is that the Prosecution must prove its case beyond reasonable doubt.
  2. The Prosecution must call evidence and the evidence must meet all the elements of the offence.
  3. The elements of this offence are derived from section 20 of the Summary Offences Act 1977.

EVIDENCE


  1. Prosecution called three (3) witnesses;
    1. Thomas Ango

He is the Complainant in this matter. He testified that he bought that block of land at Kesi Settlement and built a house. In 2017 he and his wife invited the Defendant to come live on their property and put it on rent and they went to their home province. He said when he was in Hagen, the Defendant put the house on rent but did not send any of the rental proceeds to him and his wife. He then came back to Port Moresby in June 2020 and told the Defendant to leave but the Defendant continued to stay on the property. He then gathered elders at Kesi and told them of his intention to remove the Defendant from his house on 16th June 2020. Despite this, the Defendant still continued to stay on. He then had the Defendant arrested and charged for being unlawfully on premises on 8th October 2020.

During Cross examination, the witness maintained that he did not allow the Defendant to stay on the property.


  1. Jeffery Kara

This witness testified that he is the complainant’s nephew. On 8th October 2020, the Complainant brought the Defendant to the Police Station and the Police gave her 3 days to vacate the property. He said he witnessed prior discussions where the Complainant told her to leave the property. At the Station, the Defendant was told leave after 3 days but she did not leave. He said he saw people renting the property but he did not know why the Defendant did not send money to the Complainant. He also testified that the Complainant, Thomas Ango is the owner of the premises and that he was with him when he bought the property in 2011.

During Cross examination, he maintained that he was at the gathering where the Complainant expressed his desire to remove the Defendant from his property.


  1. Petrus Wari

He testified that Thomas Ango owns the property at Kesi. On 16th June 2020, the Complainant held a meeting at Kesi with the elders and there and told them of his intention to remove the Defendant from his house and property because the Defendant collects rent from the property but does not send the proceeds to him and his wife. The Defendant did not move. On 8th August 2020, the Defendant was arrested.

During cross examination it was put to the witness that no one told the Defendant to leave but the witness maintained that she was told at the meeting with the elders on 16th June 2020 to leave Thomas Ango’s property.


  1. The Defence had 2 witnesses.
    1. Sarah James

She is the Defendant in this matter. She testified that she was invited by the complainant’s wife to look after the property in 2016. She stated that she developed the area and brought in tenants. However, she could not send money to the complainant and his wife because the house was not always tenanted. She was told to leave the property in 2016 and she left. However, when the Complainant and his wife could not find anyone else to look after the property they told her to come back in 2018. On 16th June 2020, the Complainant called a meeting with the elders of Kesi Community when he came down from Hagen. At the meeting he told everyone that he wanted the Defendant to leave his property. On 16th August 2020 the Complainant and another person came and attacked her and damaged her house and she ran away. She was arrested on 4th September 2020. She then laid a complaint at the Kipo Village Court. While the court was in session on 8th October 2020, the Complainant came with policemen and arrested the Defendant.

During Cross examination the Defendant confirmed that the property belonged to the Complainant. However, she said she needed to be compensated for the improvements she did to the block.


  1. Catherine Nalo

She testified that she is the Complainant’s cousin sister. She witnessed the Complainant and his wife bringing the Defendant in to look after their block in 2016. She also testified that she assisted the Defendant to improve the property and pull in power and water. She said when the Complainant came to Port Moresby in June 2020 she expected him to say thank you and compensate the Defendant but he did not. Instead he was angry and he told the Defendant to leave the property. He gathered the Community leaders and told them that he wanted the Defendant out of his property. When the Defendant did not move out the Complainant placed a report with the Police and the Police attended at the scene and arrested the Defendant and locked her up.

During Cross examination, this witness confirmed that the property belonged to the Complainant.


ANALYSIS OF EVIDENCE

  1. The Prosecution’s story is that the Defendant was on the Complainant’s property without the consent or lawful authority of the owner of the Complainant.
  2. The Prosecution’s three witnesses gave evidence in a coherent manner. Their stories corroborate each other. They confirm the Prosecution’s case in that the property at Kesi belongs to the Complainant and the complainant withdrew his license to the Defendant to remain on his property prior to arresting her. They also confirm that the Defendant continued to remain on the property even after the Complainant expressed his intention to remove her from the block.
  3. The Defendant’s case is that she did not force her way onto the property. She was invited by the Complainant and his wife to be on the property, care for it, put it on rent and develop it. She said it would only be proper if she was compensated for what she did to the property before being removed from the property. The Defendant’s only witness gave evidence along this line.

UNDISPUTED FACTS


  1. From the evidence, the following facts turn out to be undisputed;
    1. The Complainant is the owner of the block at Kesi, Manu, NCD
    2. The Complainant and his wife invited the Defendant to care for the block in 2016.
    1. The Defendant helped improved the property.
    1. The Defendant built another house on the property without the consent of the Complainant
    2. The Defendant put the house on rent
    3. The Complainant was angry because of the proceeds from the rentals
    4. The Complainant called a meeting and told the Community leaders of his intention to remove the Defendant from his block.
    5. The Defendant did not move out
    6. The Complainant laid a complaint with the Police and the Police arrested the Defendant

DISPUTED FACTS


  1. The Defendant sent proceeds from the rentals to the Complainant and his wife.

EXHIBITS

  1. Exhibit “D1 –D3” – Pictures of the destruction to the Defendant’s house.
  2. Exhibit “D4” – Village Court Summons summoning the Complainant to compensate the Defendant

FINDINGS

  1. In Order for the Court to find the Defendant guilty of the offence of being Unlawfully on Premises, the prosecution’s evidence must satisfy all the elements of the offence. They are;
    1. A person – that person must be the defendant
    2. Is in, on or adjacent to the premises – the Defendant must be actually in, on or adjacent to the premises.
    1. Without lawful excuse - the Defendant must not have a lawful excuse to be on the premises.
  2. I apply the principles used by Magistrate John Kaumi (as he then was) in the case of Police –v- Timothy [2009]PGDC 99; DC953.
  3. From the elements of the offence, the following questions must be answered by the evidence;
    1. Is the person the Defendant?
    2. Is the Defendant in, on or adjacent to the premises?
    1. Was there any lawful excuse to be on the premises?
  1. Is the person the Defendant?
  1. Yes. The evidence points to the Defendant and identified the defendant as the perpetrator in this case.
  1. Is the Defendant in, on or adjacent to the premises?
  1. Yes. The evidence shows that the Defendant was actually on the Complainant’s property.
  1. Was there any lawful excuse for the Defendant to be on the premises?
  1. This question begs another question that is whether the owner of the property allowed the Defendant to be on the property.
  2. The evidence from both the Defence and the Prosecution shows that initially the Defendant was allowed to be on the premises from 2016 to 2020. However, that license was removed by the complainant when he publicly expressed his desire to remove the Defendant from his block in June 2020.
  3. I find that the Defendant was lawfully on the premises from 2016 to June 2020. That is because the Complainant and his wife allowed her to stay on the property up to June 2020.
  4. However, I find that the Defendant was unlawfully on the Complainant’s property after June 2020. This is because on 16th June 2020, the Complainant publicly expressed his desire to remove the Defendant form his property. That effectively means that there is no longer any license for the Defendant to remain on the property.
  5. I therefore find that there is no lawful excuse or license for the Defendant to remain on the property of the Complainant at Kesi, Manu, NCD.
  6. In relation to the Defendant’s claim for compensation from the Complainant, it is up to the Defendant to file a civil claim for damages to her property if she thinks she has a claim.

CONCLUSION

  1. In conclusion, I find that the Prosecution has proven its case beyond reasonable doubt. They have successfully satisfied all the elements of the offence of unlawfully on premises.
  2. I find that the Defendant was unlawfully on the Complainant’s premises at Kesi Settlement, Manu, National Capital District.

VERDICT


  1. The following are the formal orders of the Court;
    1. Sarah James is found guilty of the charge of being Unlawfully on Premises contrary to section 20 of the Summary Offences Act 1977.
    2. The matter shall proceed to submissions on sentence.

Lawyer for the Informant Police Prosecutions

Lawyer for the Offender: In person

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