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Kupu v Doria [1988] PGNC 51; [1988-89] PNGLR 2; N727 (20 May 1988)

N727

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

REX KUPU

V

DEMAS DORIA

Rabaul
Bredmeyer J
13 May 1988
20 May 1988

SUMMARY OFFENCES - Unlawfully on premises - Without "lawful excuse" - Includes civil as well as criminal excuses - Visitor directed to leave labourer’s only plantation accommodation - No lawful excuse - Summary Offences Act (Ch No 240), s 20.

The Summary Offences Act (Ch No 240), s 20, provides: "A person who without lawful excuse, is in, on or adjacent to any premises is guilty of an offence."

Held

(1) For the purposes of s 20 of the Summary Offences Act, "lawful excuse" means an excuse allowed or permitted by the civil or criminal law or any combination of the two: lawful excuse under the civil law includes the express or implied licence or permission of the occupier or owner to be there; lawful excuse under the criminal law includes any excuse open under the Criminal Code (Ch No 262) such as bona fide claim of right or mistake of fact.

Tiki-Nori v Thackeray [1967-68] PNGLR 37; Gari Gari v Ben Anton [1984] PNGLR 1; Anskar v Yansuan [1985] PNGLR 1 and Loho v Hambindua [1985] PNGLR 286, not followed.

(2) Accordingly, a visitor to a plantation was on the plantation premises without lawful excuse, where it was plantation policy not to permit visitors to live in labour accommodation and where he had been directed to leave the premises by a security officer but continued to reside with a relative.

Cases Cited

Anskar v Yansuan [1985] PNGLR 1.
Carter v Reaper [1920] VicLawRp 57; [1920] VLR 337.
Crafter v O’Reilly [1934] SAStRp 4; [1934] SASR 20.
Gari Gari v Ben Anton [1984] PNGLR 1.
Haisman v Smelcher [1953] VicLawRp 62; [1953] VLR 625.
Hancock v Birsa [1972] WAR 177.
Loho v Hambindua [1985] PNGLR 286.
Poznanski v Stosic [1953] SASR 132.
Roffey v Wennerbom [1965] Qd R 42.
Tiki-Nori v Thackeray [1967-68] PNGLR 37.
Wilkins v Condell [1940] SAStRp 20; [1940] SASR 139.

Appeal

This was an appeal against conviction on a charge of being on premises without lawful excuse contrary to s 20 of the Summary Offences Act (Ch No 240).

Counsel

A Robinson, for the appellant.
N Miviri, for the respondent.
Cur adv vult

20 May 1988

BREDMEYER J: Rex Kupu was convicted of being unlawfully on premises. The offence under s 20 of the Summary Offences Act (Ch No 240) is, "A person who without lawful excuse, is in, on or adjacent to any premises is guilty of an offence". The penalty is a fine not exceeding K400 or imprisonment for a term not exceeding two years. Kupu pleaded guilty to that offence. The facts which he admitted are as follows: Kupu comes from the Southern Highlands Province; he was unemployed and was living in the labour quarters at New Massawa Plantation in the East New Britain Province; it is company policy that any person living in company accommodation who is not employed there will be prosecuted; the company’s security officer ordered him to leave; three weeks later he was still there and was arrested by the police; on arrest he said he was staying with his uncle who was employed there and waiting for his uncle to send him home. As I have said, Kupu pleaded guilty, admitted the facts and was convicted, cautioned and discharged.

The Supervising Magistrate in Rabaul thought the defendant was wrongly convicted and referred the case to the Deputy Public Solicitor for possible appeal. The leading Papua New Guinea case is Tiki-Nori v Thackeray [1967-68] PNGLR 37 where Frost J reviewed and followed a number of Australian authorities, namely, Carter v Reaper [1920] VicLawRp 57; [1920] VLR 337, Wilkins v Condell [1940] SAStRp 20; [1940] SASR 139, Haisman v Smelcher [1953] VicLawRp 62; [1953] VLR 625, Poznanski v Stosic [1953] SASR 132, and Roffey v Wennerbom [1965] Qd R 42. Tiki-Nori’s case has been followed in recent times by Kidu CJ in Gari Gari v Ben Anton [1984] PNGLR 1, by Los AJ in Anskar v Yansuan [1985] PNGLR 1, and by Pratt J in Loho v Hambindua [1985] PNGLR 286. I believe that we should no longer slavishly follow the Australian authorities because there have been some alterations and improvements in the Australian law since 1967 when Tiki-Nori was decided, and our section has changed and now is significantly different from the Australian sections and from the section that was before Frost J.

Frost J in Tiki-Nori followed the view of the Full Court of Victoria in Haisman v Smelcher [1953] VicLawRp 62; [1953] VLR 625 where the conviction of a Peeping Tom was upheld on appeal. Peeping through a window is not a criminal offence, thus the defendant was not at the house for a criminal purpose. The Full Court (at 628) agreed with Hood J that the section, being a criminal section was:

"not directed at behaviour that may, because of an infringement of some civil right, give rise merely to a civil remedy; it is designed to make punishable conduct that is preparatory to or in furtherance of, some criminal purpose, or which, by reason of its violating recognized standards of decency, tranquillity and decorum and the accepted usages of the community, is likely to put occupants in fear or apprehension and thus justify a binding over order".

It would seem that this case establishes a two-pronged test but the court pointed out that that was not meant to be exhaustive and hinted that there may be other lawful excuses. Immediately after the passage just quoted, the court said (at 628): "For obvious reasons, we do not attempt to indicate the range of what may be lawful excuses within s 72 ...".

It is that view which was accepted by Frost J in Tiki-Nori and which now, I believe, calls for re-interpretation. That view is not universally held in Australia. The South Australian view differs from the Victorian view. Frost J in Tiki-Nori (at 43) quoted with approval from the judgment of Napier J in Wilkins v Condell at 152, as follows:

"I agree that it is difficult, and perhaps, impossible, to define ‘lawful excuse’ in this context. The expression bears some resemblance, in that respect, to ‘reasonable doubt’ and ‘criminal negligence’. But I think that the question for the court is whether the defendant’s presence upon the premises is excusable, in all the circumstances of the case, bearing in mind that the defendant is charged with an offence punishable by imprisonment and, therefore, that his conduct may well be innocent or excusable for this purpose, although otherwise indefensible. I think that Parliament has left it to the Courts to distinguish between a wrongful act for which compensation is an adequate remedy, and conduct which goes beyond a mere matter of compensation, and should be treated accordingly, i.e., as a crime deserving of punishment.

I can see nothing startling or unreasonable in this view of the enactment. If the inquiry is indefinite, it is no more so than upon a charge of manslaughter by negligence."

Frost J did not quote Crafter v O’Reilly [1934] SAStRp 4; [1934] SASR 20, which I find helpful. O’Reilly had lawfully been evicted from a house for non-payment of rent, but later, sympathetic neighbours broke the locks and he re-occupied the house with the encouragement of his neighbours. Chief Justice Murray’s elaboration of the phrase (at 23-24) appeals to me:

"What then will constitute a ‘lawful excuse?’ An exhaustive ... definition is impossible, but some illustrations may be given ... if the defendant had the leave and licence, express or implied, of the occupier ... if the defendant entered under superior authority, as, for instance, under a lawfully issued search warrant or a warrant of execution ... if the defendant is able to prove ... he had no mens rea ... or that he entered the house in the honest and reasonable belief that the house was his own dwelling."

The appellant had argued that he had an honest right to be there but the Chief Justice held that it was impossible to call such a belief reasonable and honest when the appellant knew that he had been lawfully evicted and that his friends had no right to break in so that he could return.

Since Haisman v Smelcher and since Tiki-Nori, a similar section came before the Western Australian Supreme Court in Hancock v Birsa [1972] WAR 177. All three judges favoured the test propounded by Napier J in Wilkins v Condell and quoted above. Burt J (at 181) said that "without lawful excuse" is not the same as for an unlawful purpose, and that the conduct may fail to satisfy Napier J’s test although the court is unable to say that its purpose was to commit some criminal offence or to render the defendant liable to be bound over to keep the peace. Wickham J (at 183) said that the conduct need not necessarily be a crime or offence, but merely that the tribunal of fact consider that it should be deserving of punishment. He said that this was a question of fact in every case:

"That there was a criminal purpose may be relevant but not conclusive, e.g. the proposed criminal purpose may be trivial, such as a man going into the front garden of a house to ‘steal’ a drink of water from the tap; similarly, that there is no criminal purpose may be relevant but not conclusive; and again it may be relevant for the purpose of beginning to form a judgment, although not conclusive, that the conduct is such as would justify binding over."

He went on to say that the question for the tribunal of fact will be (at 183):

"In all the circumstances of the case, has the prosecutor shown beyond reasonable doubt that the conduct of the defendant is such that it deserves the application of the penal law and, therefore, ought not to be excused? The answer to this question is one of fact and of judgment and will depend upon all the circumstances of the particular case and is one for the tribunal which tries the case."

Thus the Victorian view differs from the Western Australian view. The Victorian view, in short, is that the conduct must be in furtherance of, or in preparation for a criminal purpose, or, it must violate recognised standards etc. so as to justify a binding-over order. The Western Australian test comes very close to being a test of unreasonableness: is the defendant’s presence on the premises, in all the circumstances of the case, so unreasonable that it ought not to be excused?

I consider that both these tests are vague and unsatisfactory. The content of the criminal law should be clearer than that. Both courts are trying to avoid a definition which says that every act of civil trespass is an offence under the section because they want to avoid calling civil trespassers vagrants and civil trespassers can be "punished" by civil remedies. The difference between the Victorian and Western Australian tests and that of the South Australian cases, and the deficiencies of all, are discussed by Dr A Dickey in "Being on Premises ‘Without Lawful Excuse’ — A Study in Judicial Interpretation" in (1973) 47 ALJ 382.

Mr Robinson, for the appellant, in lengthy and well-argued oral and written submissions urged me not to depart from tests laid down in Carter v Reaper and Wilkins v Condell and to follow the line of single judge Papua New Guinea authorities already mentioned. He pointed out that, on the Wilkins v Condell test, the conduct should be clearly deserving of criminal punishment, and that on the facts of the present case clearly the magistrate did not think so because he convicted, cautioned and discharged.

There are three important differences between the section considered in Tiki-Nori’s case and the Australian sections considered in the Australian cases which preceded Tiki-Nori, and s 20 of the Summary Offences Act. Section 70 of the Police Offences Ordinance (1925-1965) (New Guinea) which was before Frost J in Tiki-Nori read:

"Part VI Vagrancy and Kindred Offences

...

...

Section 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 ... or at the place adjacent to any dwelling house ... shall be guilty of an offence.

Penalty: Imprisonment for one year ...

(3) Any person convicted of an offence against this section shall be deemed to be a rogue and vagabond."

The old section relates to a dwelling house, the new one to any premises. Normally in criminal law an offence relating to a dwelling house is more serious than an offence relating to other premises, for example, an office. Then the old section only permitted a gaol term; our new section permits of a fine or a gaol term meaning that, in a less serious case, a fine is appropriate. Thirdly, our new section is not a vagrancy offence and does not deem the convict a rogue and a vagabond. The onus of proof on the defendant in the old section remains the same in the new section because s 2 must be read with s 20. The three differences I have mentioned are of consequence. For example, Frost J in Tiki-Nori (at 45) said: "It is certainly not the law that every man trespassing or found adjacent to premises is a rogue and vagabond." In saying that, he was following Hood J, in Carter v Reaper [1920] VicLawRp 57; [1920] VLR 337 at 341, who said that a person may be found in another’s house without any right, or honest belief in the existence of such a right, yet it would be "shocking" to hold such a person to be a rogue and a vagabond. In that case a wife and some private detectives raided a house of another woman hoping to find evidence of her husband’s adultery. Hood J thought it shocking that these civil trespassers should be branded as vagrants and hence said that if they can show that they were not there for a criminal purpose then their trespass should be excused.

Our section has changed and we should no longer follow that old interpretation. In Tiki-Nori, and in all the Australian cases cited, the judges were greatly concerned not to brand someone with the great shame of vagrancy merely for a civil trespass. As Frost J said (at 39), the English section on which the Australian sections and the colonial Papua New Guinea section were copied, was directed to a major political problem arising from "hordes of unemployed persons, many of them addicted to crime, then wandering over the face of the country". Vagrants, according to the Oxford Dictionary (Roffey at 56) are "a class of persons who have no settled home or regular work and who wander from place to place and maintain themselves by begging or in some disreputable or dishonest way". A history of the offence is given by Kennedy Allen in Police Offences of Queensland (2nd ed), published in 1951 and quoted by Hart J in Roffey v Wennerbom (at 55-56):

"The English Vagrancy Statute has a very long history ... ‘First came serfdom, next came the Statute of Labourers which practically confined the labouring population to stated places of abode, and required them to work at specified rates of wages. Wandering or vagrancy thus became a crime’. The punishments for vagrancy have at times included death and what practically amounted to slavery."

After reviewing the history of the offence, Kennedy Allen commented (at 56) that, "The stigma of vagrancy and the severe punishment provided by the sub-section should make courts of Petty Sessions hesitate to multiply offenders".

I bear in mind, too, that these old sections deemed a person who was not really a vagrant (for example, one who had a job and settled place of abode) to be a vagrant on one act of trespass. In Roffey’s case, cited above, two employed men aged 25 and 26 were found in the wrong part of nurses’ quarters at 10.30 pm. They were convicted but acquitted on appeal. Hart J in the Appeal Court, said (at 56) that the word "vagrant" in the statute "carries a strong stigma which to these young men would be a severe handicap for the rest of their lives" (emphasis added), especially as it is a deeming provision and their actual lives in no way satisfied the definition.

Our cultural situation is different from the England of centuries ago and from Australia. Here the vast majority of adults are not in paid employment but they are not vagrants or rogues and vagabonds and, in any event, that terminology does not appear in the Summary Offences Act passed in 1977 and now contained in Ch No 240 of the Revised Laws. Our Parliament has abolished the stigma of vagrancy and rogues and vagabonds from this offence and it has reduced the penalty at the lower end of the scale to a fine, and it is time for us to develop a simpler definition of the phrase "without lawful excuse". I consider "lawful excuse" means an excuse allowed or permitted by the civil or criminal law, or any combination of the two. "Lawful" cannot be limited in meaning to "lawful under the criminal law". A defendant who has a lawful excuse under the civil law, or under the criminal law, or a combination of the two, in my view is not guilty of the offence. Conversely, a person who has no lawful excuse under the civil or criminal law is guilty of the offence.

Without purporting to be exhaustive, a lawful excuse under the civil law is where the defendant has the express or implied licence or permission of the occupier or owner to be there. Examples under the civil law abound: persons entering premises to solicit donations, to sell things, or to ask for work are licencees so long as they come at a reasonable hour and confine themselves to that part of the premises which provides the usual access to the premises and unless they are forbidden to do so by a notice, a locked gate, or an express prohibition. If such licencees stray from the usual access they become trespassers: see Clerk and Lindsell on Torts (13th ed), par 1017. Magistrates have plenty of scope to use their common sense in implying a licence if the circumstances reasonably justify it. A youngster who climbs a back fence to retrieve a ball, for example, would readily be found to have an implied licence. On the other hand, where a trespasser moves into a vacant government house without any permission from the authorities, no licence should be implied; he is on the premises without lawful excuse.

What is lawful excuse under the criminal law is easier to define. It includes any excuse open to a defendant under the Criminal Code (Ch No 262), for example, bona fide claim of right, mistake of fact, extraordinary emergency, immature age, or compulsion.

All the old cases can be explained and, in my view, more rationally explained, on this interpretation of the section. Thus in Roffey’s case, where the two men were in the nurses’ quarters, it was crystal clear that the defendants had a licence or an implied licence to enter the premises at that time. As Frost J said (at 43 of Tiki-Nori’s case), all the judges on appeal in Roffey found that it was only by a perverse disregard of the evidence that the magistrate failed to find that the defendants had leave and licence to enter the premises at that time. In Tiki-Nori’s case, the acquittal granted by Frost J could have been achieved by saying that the prosecution had not negatived the mistake of fact defence under s 25 of the Criminal Code, that is, the defendant had an honest, but as it turned out mistaken, belief that the woman might accept his advances, and hence had an implied licence to be on the premises. In Gari Gari’s case, the defendant was one of five people who came to the complainant’s house at 8 pm and asked for the whereabouts of a Kairuku man. They came openly, they were not armed, they were not abusive, they did not scale a fence. They were looking for a lift and had made similar inquiries from other houses as to where the Kairuku man with the Suzuki lived which indicated their sincerity. They could have been acquitted on the basis that they had an implied licence to be there to make their inquiries.

Turning to the facts of the case under appeal, I consider that the appellant was rightly convicted. I cannot find an implied licence under the civil law. The company did not permit visitors to live in the labour accommodation. The appellant had been warned to leave by the security guards. Although he may well have had the permission of his employed uncle to stay, that was not the relevant permission. In view of the security guards telling him to leave, he could not claim an honest and reasonable, albeit mistaken, belief that he was allowed to stay. If the company had not enforced its "labourers only" policy, and had not told him to leave, the court could have implied a licence and/or the defendant should have been given the benefit of an honest and reasonable belief that his uncle’s consent to stay was all that was needed.

For these reasons I dismiss the appeal.

Appeal dismissed

_______________

Lawyer for the appellant: E Kariko, Public Solicitor.
Lawyer for the respondent: K Bona, Acting Public Prosecutor.