Sisimutu v Kukari [2007] PGDC 136; DC719 (7 January 2007)

DC719

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 16 of 2007

BETWEEN

AMBROSS SISIMUTU
Informant

AND

ARO KUKARI
Defendant

Goroka: M Gauli, PM
2007: January 07

CRIMINAL - Particular offence – Obtained money by false pretence – Voir dire – Improper conduct of record of interview – Insufficient evidence – No case to answer.

Cases Cited:
1. The State –v- Paul Kundi Rape [1976] PNGLR 96
2. The State –v- Tom Morris [1981] PNGLR 493

References:
Nil

Counsel:
For the Prosecution – Senior Sergeant Mark Yamuje, Goroka Police Station
For the Defendant – In Person

07 January 2008

DECISION OF THE COURT

M Gauli, PM: The defendant Aro Kukari, an adult male of Henagaru village, Okapa District in the Eastern Highlands Province, stands trial before this Court on a charge of obtaining money by false pretence with intent to defraud, thereby contravening Section 404 (1) of the Criminal Code Act, Chapter 262 of the Revised Laws of Papua New Guinea. That provision states and I quote:

“A person who by false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, and with intent to defraud –

(a) obtains from any other person any chattel, money or valuable security, or

(b) induces any other person to deliver to any person any chattel, money or valuable security,

is guilty of a crime.

2. Facts

It is alleged that between January 2001 and 12 October 2003 in Goroka the defendant Aro Kukari approached Mr. Horan Aguyanto at his office in the Henganofi Building in Goroka town. Defendant told him that he had Eight Million Kina sitting in the bank that came in from overseas somewhere. And that he needed financial assistance to pay for the bank fees and the lawyer assisting him for the bank to clear and released the money to him. And the defendant told him that when the bank released the money to him, he will reimburse Mr. Horan Aguyanto in several thousands of kina. Relying on that promise, Mr. H. Aguyanto then first gave him Five Thousand Kina (K5, 000.00) in the year 2001. Then he later gave the defendant varying amounts thereafter at various places and times which includes hotel accommodations and travel costs for both defendant Aro Kukari, Paul Kamap and Horan Aguyanto himself. The total of all the cash and those expenses in kind amount to K7, 338.00.

3. Issues

There are two issues to be considered and these are:

i. Did the defendant obtain a total cash of K7, 338.00 from Mr. H. Aguyanto in Goroka?

ii. Did the defendant obtain the money by false pretence?

4. There is no dispute that the defendant did sough for financial assistance and he did obtain some monies from Mr. H. Aguyanto to pay his lawyer and the bank fee for the clearance of the alleged K8, 000, 0000.00. However the defendant disputed the amount. He said that the amount of cash he received was much less than the amount alleged in the charge.

5. Prosecution’s Evidence

Prosecutor called three witnesses namely Horan Aguyanto the complainant, Constable Ambross Sisimutu the informant and Sergeant Eric Posa the corroborator. They all gave evidence on oath.

6. The witness Horan Aguyanto gave evidence that in the year 2001 the defendant approached him at his office and told him that defendant had K8, 000, 000.00 that came in from overseas somewhere and the money is in the bank. He needed financial assistance to pay for the bank fee and his lawyers fee for the release of the money by the bank. And defendant told him that he will give him his share as much in thousands, and that the defendant meant it. And so he gave K5, 000.00 to the defendant for a start. Then between July/ August 2003 defendant obtained K1, 200.00 and thereafter at varying amount as follows:

K170.00 on 10/09/03; K250.00 on 27/09/03; K200.00 on 02/10/03; K338.00 on 09/10/03; K300.00 on 13/10/03 and K50.00 on 11/10/03 for the same purpose. And the total amount was K7, 508.00.

7. During cross-examination by the defendant, Mr. H. Aguyanto admitted that in the year 2001 the amount of money he gave the defendant was K500.00 and not K5, 000.00. He said this was a typing error. And he further admitted that out of the K7, 508.00 some of the monies were received from him by one Paul Kamap and part of the monies includes the travel costs and accommodation cost both at Mt. Hagen and Lae for both defendant Aro Kukari, Paul Kamap and Horan Aguyanto. They were accommodated in Mt. Hagen at the Highlander Hotel and at the Salvation Army Lodge in Lae which were all paid for by Mr. H. Aguyanto.

8. The witness Ambross Sisimutu, the police informant gave evidence of his investigations and his conduct of the Record of Interview (R.O.I) on the defendant of this offence. He said he first gave the defendant his formal caution and his Constitutional rights before he started interviewing him. And that the defendant admitted committing the offence. At the end of the interview the defendant signed all the pages at the bottom centre of each pages, while the corroborator signed on the bottom left corner and Abmross Sisimutu signed on the bottom right corner of each page. He said that the corroborator Erick Posa was present during the interview and he was sitting about 2 to 3 metres away from the table where the interview was conducted.

9. During cross-examination the defendant denied being interviewed for this charge. He put to the witness that constable Sisimutu only gave him some blank pages and he told the defendant to just sign at the bottom of each pages as he (Ambross Sisimutu) will be using the same questions and answers for the other similar charge where he interviewed the defendant earlier that day (on 14 March 2007) in the morning. And so the defendant just signed the blank pages as instructed by the arresting officer (A. Sisimutu). The witness however denied this allegation and he said that the defendant signed the pages that were typed after the R.O.I was completed.

10. Voir Dire Trial

As a result of the allegations by the defendant of the manner in which the R.O.I was conducted, I conducted a Voir dire to ascertain that. Prosecutor then called the corroborator sergeant Erick Posa. His evidence only corroborated the evidence of Constable Ambross Sisimutu that defendant did not sign blank pages but the typed R.O.I. He also confirmed he was present throughout the R.O.I and he was sitting some 2 to 3 metres away from Ambross Sisimutu and the defendant.

11. The defendant gave evidence at the voir dire trial and said that he was never interviewed. He was just told to sign the blank pages so he did as directed by the arresting officer Constable A. Sisimutu.

12. The evidence before me at the conduct of the voir dire is that on 14 March 2007, Constable A. Sisimutu conducted two separate R.O.I on the defendant of the charges of the similar nature. He conducted the first R.O.I in the morning and this second R.O.I in the afternoon from 1:45 pm to about 3:00 pm that same day.

13. I had a good look at the defendant’s signatures on this R.O.I comprising of four pages. I observed that defendant’s signatures on the first two pages of this R.O.I are the same. And I noticed that his signatures on the last two pages of this R.O.I varied slightly from his signatures on the first two pages of the R.O.I. Such variation could mean one of many things but the most obvious one would be that the signatures on the last two pages may have been forged. There is a high possibility that those signatures were forged. Having come to conclude that there is a high possibility of the defendant’s signatures being forged on the last two pages of the R.O.I, I find the defendant’s evidence convincing that he was only told to sign the blank pages without the interview being conducted.

14. One further event that is evidentiary clear here is that the corroborator Eric Posa was seated some 2 to 3 metres away from the table where the defendant was being interviewed. Given that scenario I am of the view that Eric Posa was not effectively being involved as a corroborator in this interview. The corroborator need to be seated on the same table with the interviewing officer and the person being interviewed.

15. I find that there were discrepancies notable in this alleged R.O.I. And these discrepancies are sufficient enough for this Court to find the R.O.I was conducted in an improper manner. I therefore refused to accept the R.O.I from being tendered as evidence in Court.

16. No Case to Answer

At the close of voir dire hearing the prosecution has no further witnesses to call and he closed his evidence. I then decided whether the defendant has a case to answer pursuant to Section 95 of the District Courts Act. Although this provision apply to committal proceeding, this provision is widely applied and practiced in all criminal case proceedings in the District Courts. At the close of the prosecutions case the Court then decides, regardless of a no case submission being made, whether the defendant has a case to answer. I considering whether or not defendant has a case to answer, “The question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether or not on the evidence as it stands an accused could lawfully be convicted – May –v- O’sullivan [1995] HCA 38; (1955) 92. C.L.R. 654” – as quoted and applied in The State –v- Paul Kundi Rape [1976] PNGLR 96.

17. In the present case the defendant Aro Kukari is charged for obtaining money by false pretence with intent to defraud. He is charged for obtaining a total amount of K7, 338.00 all in hard cash in Goroka between January 2001 and October 2003. The burden is on the prosecution to prove every element of the charge. The evidence of witness Horan Aguyanto established that in the year 2001 the defendant obtained from him only K500.00 cash and not K5, 000.00. Then during the year 2003 between July and October the defendant obtained varying amounts ranging from K1, 200.00 to K50.00 and that some of those amounts included the payments for hotel accommodations both at Mt. Hagen and Lae for the defendant Aro Kukari, Paul Kamap and Mr. Horan Aguyanto himself where the three travelled together. The witness Mr. Aguyanto further alluded that some of the money included the monies he gave to Paul Kamap who was supportive of the defendant at the time.

18. Having considered the evidence of the witness Horan Aguyanto, it is very clear that the defendant never obtained from him a total sum of K7, 338.00 in hard cash. He may have obtained and also benefited both in cash and kind a sum of K2, 338.00 only during the period complained of. I find from the prosecutions key witness Mr. Aguyanto’s that his evidence is so inconsistent that tend to show that the defendant never obtained K7, 338.00 in cash from him. The information never charged the defendant that he obtained both in cash and kind.

The law is quite clearly established in the case of The State –v- Tom Morris [1981] PNGLR, 493 that if at the end of the prosecution’s case the evidence is so inconsistent the Court has the discretion to acquit the defendant. His Honor Justice Mile held and I quote:

“Where at the end of the prosecution’s case there are inferences inconsistent with the guilty of the accused, there is a discretion to acquit, but only when the overall view of the case leaves the Court with the conclusion that it would be unsafe and dangerous to convict”.

19. The defendant is charged for obtaining specific amount of cash by means of false pretence, nothing more and nothing less. The prosecutor made no application to amend the information by changing the amount of money actually obtained. I find that the prosecution evidence is so inconsistent and that it failed to establish that the defendant obtained the cash amount of K7, 338.00. I find that it is unsafe and quite dangerous to convict the defendant based on the evidence as it stands before this Court.

20. One further thing that may be clear is the evidence as presented is that the defendant may have obtained some amount of money by a wilful false promise to Mr. Horan Aguyanto. However I do not intend to venture further on that issue for the reasons that the exact amount of money defendant obtained has not been proven before this Court though there is evidence that defendant promised Mr. Horan Aguyanto that he will given him his share in as much in Thousands.

21. For the reasons I have explained above I find that the prosecution evidence is so inconsistent thus I find that the defendant has no case to answer. Accordingly I dismiss the case and I discharge the defendant forthwith. And I further ordered that his bail money be refunded.

For the Prosecution – Senior Sergeant Mark Yamuje, Goroka Police Station
For the Defendant – In Person