Police v Daun [2004] PGDC 63; DC298 (29 December 2004)

DC298

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 619, 622 OF 2004

Police
Complainant

v

Casper Daun
Defendant

Mt. Hagen: M. M. Pupaka
2004: 24th, 25th, & 26th November

Criminal Law – Particular offence – Obtaining by false pretence – Prosecution evidence indicate accused collected deposits for apparent sale of a vehicle – Accused gave no indication to anyone at anytime that a fraud was being perpetuated wherein he was a unwilling participant – Accused kept giving false and misleading ‘excuses’ for months when depositors raised queries – Deposits were never refunded.

Criminal Law – Particular offence – Obtaining by false pretence – Defence of being unwilling participant due to threats – No evidence of threats – Evidence of alleged threats not sufficient to constitute real danger and or alleged ‘threats’ inconsequential in the circumstances – Assumption of greater risks by accused through participation in the fraud more dangerous than perceived threats – Evidence suggest accused acted under no other compulsion than avarice – Verdict is guilty as charged on all counts

Counsel
Senior Constable Giwoso for the Prosecution
The Accused in person

29th December 2004

M. PUPAKA, PM: The accused Casper Daun, aged 47 of Torembi Village, Ambunti, ESP, is charged with 4 separate counts of obtaining by false pretence contrary to Section 404(1)(a) of the Criminal Code (the Code). At all material times the accused was the Regional Manager of Telikom PNG, based at Mt. Hagen in the Western Highlands Province.

The facts which gave rise to these 4 charges are: Between January and March 2003 the accused collected K4500.00, K3000.00, K2500.00, & K1000.00 respectively from Messrs Dickson Ai, James Kauboi, Solomon Kare & John Masonge. There were 5 different receipts. Dickson Ai paid twice – he initially paid K2500.00 cash and he later gave a BSP bank cheque for K2000.00 in the name of the accused. The other 3 men made one off payments – Messrs Kauboi & Kare in cash and Mr. Masonge paid a cheque for K1000.00. All payments were made to the accused inside his office located in the Komkui Building in Mt. Hagen, except the bank cheque from Dickson Ai, which was delivered at the accused’s home. The actual payments and the receipt of all of them by the accused are not disputed.

The Prosecution Case

The prosecution witnesses were the 4 complainants and one Jim Koka. Witness Jim Koka’s evidence is quite crucial in this trial but the Prosecution’s case cannot stand or fall on Jim Koka’s evidence alone. The prosecution would also have built a tight case against the accused with the evidence of the 4 complainants. However Jim Koka’s story and indeed his conduct at the relevant times were pivotal and his evidence puts matters in the right perspective.

Jim Koka started his testimony by saying he first met the accused socially at the Bowling Club, where they occasionally had drinks together and shout each other. They had been friends for some time prior to the events that led to the accused being charged. This witness specifically mentioned an event that really endeared him to the accused and brought them closer together. He told of a threatening phone call made to the accused by a rascal. He told of the part he played in the subsequent arrest of that rascal.

The witness said one day he and the accused met on their way to work. The accused told him he was selling a Mazda bravo dual cab vehicle, which was at the Telikom PNG yard. The accused told the witness he would like him to buy it for K5, 000.00 as he had helped him before. Jim Koka recalled telling him he had no money and that he would be talking to his friends about it. He said he inspected the vehicle on the same day. It was a relatively new vehicle. However he had no money so he decided to tell his friends to buy it.

The witness first brought Dickson Ai to the accused. Dickson Ai paid the accused K2500.00 cash. The accused told Mr. Ai to bring the balance (K2500.00) and he would do up the paper works and release the vehicle.

Some days later at the Bowling Club the accused told Jim Koka to find more people who may want to buy the vehicle. The accused told him he would get K500.00 Commission for his troubles. Consequently Jim Koka also brought the other three men to the accused and they too paid in deposits as said.

The 4 complainants’ evidence is similar in all material respects. They gave evidence of being approached by Jim Koka who told them that the accused was selling a vehicle for K5, 000.00. Jim Koka could not afford it. They recalled agreeing to buy the vehicle. They recalled going to the accused’s office, each accompanied by Jim Koka every time. They all recalled being advised by the accused to complete the balance and then he would prepare the necessary paper work and give them the vehicle. None of them was aware of each other’s interests at the material times and they thought they each were alone until much later, when it was all too late.

The Defence Case

For the most part during the trial it was never clear what the accused’s defence was and even now I cannot make out why the accused thinks he is completely innocent.

The accused said Telikom PNG property manager, Kege Morafe, introduced Jim Koka to him only after the threatening phone calls. Before that he never knew him.

The accused concedes that the monies were paid in by the 4 complainants in the way they themselves said they did. The accused does not agree with the exact amounts where cash was paid. He simply said he received the monies when paid in and put them in his drawer without counting them and Jim Koka would come in later and take it without counting them. The accused said John Masonge did write out a cheque as alleged but John Masonge and Jim Koka cashed it and he was given cash only. The accused says he converted the bank cheque from Dickson Ai and gave the cash to Jim Koka later. In fact the accused says every time he received money he would hand them to Jim Koka relatively soon after money was paid in.

The scheme was that Jim Koka would accompany the depositors into the accused’s office. They would pay in the money in the presence of Jim Koka, which the accused would accept and put in his drawer. The complainants would leave, with Jim Koka of course, and after a while the later would come back and take the money from the accused.

The accused’s passionate plea in defence is that he never benefited from any of the monies paid in. He said Jim Koka used the excuse of the damaged Telikom PNG vehicle as a cover only to get people who owed him money to pay him. He said he just "played along" with Jim Koka’s "game" because he perceived Jim Koka to be a serious threat.

Under cross-examination, which at times was quite exasperating as the accused could see absolutely no fault with his own conduct at any time, he said due to what he loosely referred to as "practical experiences" he played or participated in Jim Koka’s game. When pressed to expound on what he meant by "practical experiences" the accused said he was referring to the "threats, assaults, and employment situation". Again when advised to clarify further he said he saw Jim Koka as a threat to himself. The Court then directed the accused to explain if Jim Koka threatened him at any time and if so how. The accused then said he thought Jim Koka was a threat. He was further directed to give details of any threats or assaults, as he clearly wasn’t forthcoming with evidence voluntarily. He referred to the phone calls that he and his property manger received. He never said what "employment situation" he would have had if he did not play Jim Koka’s game.

Findings on the Evidence

First of all there is insufficient evidence to find conclusively that Jim Koka used threats of intimidation or actual coercion to force this accused to help him defraud his friends, if indeed that is what happened as the accused says. There must be more compelling evidence than what is now before this Court to establish fraudulent intent by Jim Koka. On the contrary there is evidence that dispels any notion of fraud by him.

Firstly the complainants are Jim Koka’s friends or acquaintances. One of them is said to be a relative of sorts. None of the complainants owed him anything. There is evidence that does not fit in with the scheme of things, if indeed Jim Koka was perpetuating an act of deception. For instance Dickson Ai said he took Jim Koka to Tari on 10th February 2003, the day Dickson Ai paid in cash money to the accused. Then after they returned from Tari, on 20th February 2003, Dickson Ai made his second payment. Dickson Ai’s evidence is that he and Jim Koka walked out of the accused’s office and went straight to Tari without parting company even briefly. Yet the accused says Jim Koka came back 15 minutes later and took Dickson Ai’s cash deposit, which cannot be possible, if Dickson Ai is to be believed. I am more inclined to accept Dickson Ai’s story as I think he would say so if he thought Jim Koka cheated him in anyway.

Secondly I cannot with any degree of certainty say if the accused and Jim Koka hatched a plan to defraud the latter’s friends. The only evidence that there may have been something irregular is in Jim Koka’s conduct in not telling any one of these 4 complainants the interests of the other 3. Jim Koka could easily have told any one of them that there are others also interested in the vehicle and indeed have paid in similar deposits. He kept silent for no apparent reason. He said in Court though that he was interested in his promised K500.00 commission, which is why he brought in more than one person to pay deposits. I am not sure if this assertion is an acceptable explanation at all for the nondisclosure.

However a finding as to whether there was a conspiracy to defraud cannot affect the outcome in this trial. This accused is to be judged on the bases of his own conduct, even if he was in league with Jim Koka so a lack of a clear finding of conspiracy is inconsequential for the current purposes.

Thirdly I have quite seriously weighed the available evidence and the logics of the accused’s assertion that he was apprehensive of eminent danger from Jim Koka and unknown others. I have assessed the reasonableness of his alleged apprehension and fears. In the end I must say there were no credible threats upon the accused, as disclosed by the current evidence. The two phone calls received by the accused and his property manager had nothing to do with this fraudulent scheme. The accused said the threats were in relation to unpaid "property" or in relation to an outstanding Telikom customer account. I find no correlation between phone calls received by the accused and Jim Koka’s alleged activities. Consequently I find no bases whatsoever to accept that the accused had reasonable grounds to fear Jim Koka.

Further Jim Koka’s assertion that he assisted police to apprehend a rascal, who threatened this accused and his property manager, because the accused was his friend, is evidence not rebutted so I must accept that it happened just as he says. Moreover Samuel Kare’s evidence that he met the accused through Jim Koka at the Bowling Club is not rebutted. In the end I think Jim Koka and the accused knew each other better than the accused would have this Court believe. If it is any indication of their relationship, Jim Koka also had unchecked access to the accused’s office at the relevant times.

Finally, and more significantly, I find the accused’s conduct at the relevant times; if indeed what he says has any ounce of truth in it, to be nothing short of completely bizarre.

How can a person of obvious intellect and ability, the Regional Manager of Telikom PNG no less, simply "play along" with a harebrained scheme of a relatively insignificant individual who levied no clear and measurable or ascertainable threat upon him? How can he not afford to tell the police of such threats, if there was any? I think this accused is intelligent enough to have realized the eminent danger he was putting himself into to "play along", though I dare say it does not require someone with a higher IQ rating to figure that one out. It was always easier and far safer for him to report to the police any threat and move out of Hagen if need be. Yet he chose not to. He also told no one about his apprehensions and fears.

I think the accused was under no threat, which is why he never reported to the police or moved out of Hagen. I think he ‘played along’ in a game of deception as a matter of free choice.

The accused looked the 4 complainants in the eye in his office and took their money and not Jim Koka. He told each of them they would be given the vehicle after full payment. In the circumstances, even if the deal sounded too good to be true, none of the complainants, or anyone else for that matter, could ever doubt the sincerity and integrity of the dignified looking Regional Manager of Telikom PNG. Further still, when the complainants queried with him after many months had passed, the accused continued to deceive them. He did not come clean and tell them the truth, if indeed there is any truth in what he now says, and seek police protection. He instead continued to tell them to wait, as he was too "busy".

The accused never disclosed the real ‘truth’ to anyone, if Jim Koka was indeed behind all this, until he ambiguously referred to some so called "practical experiences" in Court, which caused him to be an accomplice. Even then he did so only under intense cross-examination and certainly not voluntarily.

I simply cannot believe this accused in anything he has said. That is not to say the prosecution evidence is not clear and straightforward. I think the accused’s steadfast refusal to accept blame despite evidence to the contrary is pathetic. He even thinks there was a conspiracy between the 4 complainants and people in Telikom PNG who had an interest in having him framed just to take his job. I think the accused has gone into deep denial, which has prevented him from owning up and accept the crime he so callously committed.

Needless to say I have no doubts at all of the accused’s guilt. I find him guilty as charged on each and every one of the 4 counts of the offence of obtaining by false pretence contrary to section 404 (1) (a) of the Criminal Code.

Senior Constable Giwoso: Complainant
In Person: Defendant