Sisimulu v Timini [2007] PGDC 31; DC531 (8 May 2007)

DC531

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

GFCr 01 of 2007

BETWEEN

AMBROSE SISIMULU
Informant

AND

JOHN DAME TAME TIMINI
Defendant

Goroka: M Gauli, PM
2007: April 25; May 08

CRIMINAL- Particular offence – obtained goods by false pretence – Insufficient evidence.

Cases Cited
Nil

References
Criminal Code Act, Ch. 262 ss. 404, 403

Counsel
For the Prosecution – Sergeant Bonke, Goroka Police Station
For the Defendant – In Person

08 May 2007

DECISION OF THE COURT

M Gauli, PM: The defendant John Dame Tame Timini stands trial before this Court on one count of obtaining goods by false pretence, pursuant to Section 404 (1) of the Criminal Code Act, Ch. 262. This provision states and I quote:

“(2) A person who by false pretence or wilfully false promise, or partly by false pretence and partly by 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. The brief facts are these. The defendant John Dame Tame Timini was employed at the Miti Merchants Limited as a sales representative by Mr. Milo Timini, the Managing Director. The defendant is the son of the brother of Mr. Milo Timini. In the course of his employment, defendant John Dame usually sells bales of rice at the Goroka Town’s Main Market for the Miti Merchant’s Ltd. On the 05th of December 2005 the stores Manager Mr. Paul Piapo gave 20 bales of 20 x 1 kg Trukai rice to the defendant to sell at the Goroka town market at a price of K45.00 per bail. The defendant sold all the bales of rice. At the end of the day he handed over to the store manager Mr. Paul Piapo a total sale of K180.00 the sales value of four bales of rice. The defendant sold the 16 bales of rice on credit to a man from Asaro to the value of K720.00. A week after these sales were made the defendant left his employment without returning the sales value of the 16 bales of rice.

3. The issue for this Court to determine is whether or not the defendant obtained the goods by false pretence.

4. The prosecution called two witnesses namely Mr. Milo Timini the managing director of the Miti Merchant Ltd and the police investigation officer Mr. Ambross Sisimulu. Mr. Milo Timini gave evidence that on the 05 of December 2005, he dropped off the defendant with 20 bales of 20 x 1kg Trukai rice to sell at Goroka town main market. At the end of the day the defendant handed over K180.00 from the sales to the store manager Mr. Paul Piapo. The defendant told Mr. Piapo that 16 bales of rice were sold on credit to a man from Asaro and those payments will be made within the next three days. These sale proceeds were never received and the defendant left his employment a week later.

5. The witness Mr. Ambross Sisimulu gave evidence of his investigations in the matter. In the Record of Interview (EXHIBIT ‘B’) in Questions 12 – 16 the defendant admitted 20 bales of 20 x 1kg Trukai rice of which 16 bales were sold on credit to a man from Asaro.

6. From the evidence for the prosecution there is no dispute that defendant John Dame was employed by Miti Merchants Ltd as a sales representative. As his duties, he was given 20 bales of rice by the manager Mr. Paul Piapo to sell at the Goroka Town Market, which he did. There is no evidence that John Dame pretended to be a sales representative for the Miti Merchants Ltd nor did he pretended that he was sent by the managing director Mr. Milo Timini to pick up the 20 bales of rice from the stores to sell at the market. John Dame being the sales person for the Miti Merchant Ltd was given the goods in the usual operation of the said business to sell the good at the market. I find that the prosecution failed to establish that defendant John Dame received or obtained the goods by false pretence.

7. The term “false pretence” is defined in Section 404 (1) of the Criminal Code Act which states that and I quote:

“A representation made by words or otherwise of a matter of fact, past or present that –

(a) is false in fact; and

(b) the person making it knows to be false or does not believe to be true, is a false pretence".

8. There is no evidence that John Dame had made any representation by words or otherwise which words were false in order for him to obtain the goods complained of. There is no dispute that the defendant had received the said goods which he was expected to sell. The defendant however failed to deliver the proceeds of the sales to his employer. The fact that the failure of the defendant to deliver the proceeds of the sales does not in anyway prove that he obtained the goods by means of false pretence. This is insufficient to establish that the defendant has a case to answer. And so I make the orders that the case be dismissed and the defendant discharged fortwith.

For the Prosecution - Sergeant Bonke of Goroka Police Station
For the Defendant - In Person