Bile v Yaurin [2008] PGDC 42; DC724 (25 February 2008)

DC724

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

GFCr 54 of 2007

BETWEEN

DOUGLAS BILE
Informant

AND

DOMINIC YAURIN
Defendant

Goroka: M Gauli, PM
2008: February 11, 12, 14, 25

CRIMINAL - Particular offence – Obtaining money by false pretence – Pretending that the money is obtained on behalf of other intended borrowers.

Cases Cited:
1. Albert Alexander Age –v- The State [1979] PNGLR 589
2. The State –v- Paulus Takesi N1468

References:
Nil

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

25 February 2008

DECISION OF THE COURT

M Gauli, PM: The defendant stands trial before this Court on a charge of obtaining money by false pretence with intent to defraud. It was alleged that on the 28 of April 2005 at the ANZ Bank, the defendant by falsely pretending to one George Wamba that he Dominic, Berry and others to borrow K4, 000.00 in cash to pay for their children’s school fees and for other purposes and have agreed to repay the money by each giving a bag of coffee weighing 50 kg per month until the amount is fully repaid, did obtain the said sum of money from George Wamba with intent to defraud, thereby contravening Section 404 (1) of the Criminal Code Act, Chapter 262. This 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. The Undisputed Facts

There is no dispute that the defendant did obtain K4, 000.00 from George Wamba. The defendant produced a statutory declaration signed by those intended borrowers that they will repay the money by providing 50 kg bag of coffee each month from each borrower until the total amount is repaid. The list of borrowers totalling to about fifteen and the signed declaration form was shown to George Wamba however the defendant decided to retain those records to himself. No copies were given to George Wamba. Both the defendant and George have known each other over many years since 1997 when defendant was a salesman for Wamp Nga Motors in Goroka. And that in December 2004 when George was facing some problems with his business, he engaged the defendant to do some consulting work for him. The defendant has only repaid K550.00.

3. On 02 of March 2006 the defendant and George entered into an agreement by signing a statutory declaration (EXHIBIT ‘B’) for the defendant to repay the outstanding balance of K3, 500.00 by instalment over a period of 12 months with unspecified amount.

4. Disputed Facts

That defendant only benefited K40.00 out of the K4, 000.00 after been distributed to the intended borrowers. That he did not obtain the money by false pretence or with intent to defraud.

5. Issues

There are three issues to consider and these are:-

i. Did defendant use that money to himself?

ii. Did defendant obtain the money by false pretence?

iii. Did the defendant intend to defraud George Wamba?

6. The Elements of the Charge

The burden is on the prosecution to prove every element of the charge against the defendant. This is allowed by Section 37 (4) of the Constitution of Papua New Guinea and also under the common law. This provision allows the person charged with an offence to be innocent until he is proven guilty. Thus this places upon the prosecution the burden to prove every element of the offence upon which a person is being charged with. In the present case before this Court the elements to be proven by the prosecution for a charge of obtaining goods by false pretence under Section 404 (1) (a) of the Criminal Code Act are:

(a) identification of a person

(b) proof of obtaining chattel or money

(c) by false pretence

(d) with intent to defraud

7. The elements of identification of a person namely the defendant Dominic Yaurin and the obtaining of money in the amount of K4, 000.00 is not in dispute. I find no difficulties in proving these elements. The only issues to be considered are whether or not defendant obtained the money by means of false pretence and or with intent to defraud and whether he used the money for himself. I now discuss these issues.

8. Issue No. 1: “Did the defendant use the money to himself?”

The prosecution’s key witness George Wamba gave evidence that on the 28 April 2005 the defendant approached him with a signed statutory declaration that he was looking for someone to borrow money from and that he was to repay the money by giving bags of coffee each month until the full amount is repaid. As George and the defendants are known to each other, George went to the ANZ bank in Goroka and withdrew K4, 000.00 and handed the money over to the defendant personally. The money was intended to pay for the school fees for the children of a number of people. The defendant also showed the names of those people to whom the money will be distributed to. However the copy of that statutory declaration and the list of the names of the people were never given to George instead the defendant kept them for his own records. Since the money was borrowed the defendant only repaid K550.00 while K3, 450.00 remains outstanding to this day. That on the 02 of November 2006 the defendant again signed a statutory declaration in which he declared to repay the outstanding on monthly instalment, with an unspecified amount, within a period of 12 months (see EXHIBIT ‘B’). This was never fulfilled by the defendant. This could amount to making a false declaration.

9. During the cross-examination by the defendant, George Wamba admitted that in December 2004 he engaged the defendant to be his consultant as George was having problems with his vehicles. However George denied signing any agreement with the defendant to pay him for his consultancy work. A Memorandum of Agreement (Marked MFI – 1) was tendered by the defendant, indicating that George had agreed to pay K10, 000.00 to the defendant. This agreement was dated 10 December 2004. The defendant put to George for his reasons for withholding the remaining balance of the money, as indicated in the following questions and answers:

“Q25: The reason why I withhold the remaining balance of the money was because you failed to honour your agreement of the 10 December 2004 for you to pay me for my consultation job I carried out for you, true?

Ans: For that consultation work you did for me I paid you K1, 400.00 already.

Q26: And you did not tell me that you gave me that money for the work I did for you?

Ans: You yourself approached me and asked me to pay you that money for the work you did for me so I gave you K1, 400.00 personally to you.”

10. The defendant also put to George during cross-examination (refer to Questions 27 – 28) that he withheld the money because he, the defendant repossessed George’s vehicle from Kama Wrecker’s Workshop by engaging youths from the village as the workshop owner refused to release the vehicle to George for none payment of workshop bills. In denying this allegation, George said that the vehicle was released to him after he spoke to his lawyer and an order was issued. When the vehicle was released to him (George), he took the vehicle to defendant’s residence for safe keeping. George kept the ignition key. While the vehicle was in defendant’s residence, the defendant’s boys broke the side windscreen and started the engine somehow and took it to Unggai without George’s consent or knowledge. Later he engaged Pilisa Lawyers and the vehicle was returned to George.

11. From the evidence of the prosecution’s key witness George Wamba and his answers to the questions put to him by the defendant in cross-examination it is clear that defendant withheld the balance of the money because he was not been paid for his consultancy services he provided to George. However George denies the defendant’s claims and he said that he had already paid the defendant for the consultancy work defendant had provided him.

12. Prosecutor called the arresting officer Constable Douglas Bile and the corroborator Robert Bari. Their evidence states that the defendant admitted that he (defendant) acted and negotiated on behalf of others and Berry and received K4, 000.00 from George Wamba. That defendant only repaid K550.00 and the balance of K3, 500.00 remains outstanding. In the Record of Interview (EXHIBIT ‘D-1’ AND ‘D-2’) the defendant denied signing a statutory declaration to repay the money by providing 50 kg bag of coffee monthly until the total amount is repaid.

13. The defendant in his defence gave unsworn statement. He said that George was facing problems with his business and so in December 2004, George engaged him on consultancy work. And defendant accepted to perform that at no costs or at defendant’s own costs. Then in February the defendant was approached by his own people from Unggai District that they want to borrow money to pay for their children’s school fees. Defendant told them to sign a statutory declaration stating the amount they intend to borrow. They did this and the defendant produced the statutory declaration, with a list of 15 intended borrowers, to George Wamba, and defendant received K4, 000.00 in cash from George in the presence of one Berry, the SDA church elder and three other intended borrowers.

14. Defendant met all the intended borrowers at the Raun Raun Theatre and he distributed the money to those borrowers. Defendant only used K40.00 of what was left from the K4, 000.00. During the coffee season the borrowers gave defendant bags of coffee. Defendant approached George on three occasions to collect the bags of coffee but he gave lots of excuses that he failed to pick up the bags of coffee from Unggai. Later defendant only gave K500.00 to George but he could not collect any more from the borrowers since they were told by George not to give the money to him.

15. Defendant called two other witnesses, namely Albert John Tove and Jacob Kafare. Their evidences are very brief. The witness Albert Tove gave evidence of the signing of an agreement at the Peace Park between George Wamba and the defendant. He said he was present but he did not know the content of that agreement. I am not convinced that this witness is a witness of truth. He is not aware of the K4, 000.00 borrowed from George Wamba.

16. The witness Jacob Kafare gave evidence that he was one of those who intended to borrow money. And they sought the assistance of the defendant. He said the defendant then distributed the money to those intended borrowers at the National Park but Jacob Kafare did not receive any since the money was not enough to go around everyone. And only K40.00 was left which the defendant used it himself. This witness said the distribution of the money took place at the National Park while the defendant said the distribution was made at the Raun Raun Theatre. They gave contradictory evidence. And I find this witness not a witness of truth.

17. The defendant did not call any of those people who benefited from the distribution of the money, whom he claimed were his own people. The defendant also contradicted himself. In his unsworn evidence he claims that he only collected K500.00 from those who borrowed the money which money he handed over to George Wamba. He could not make further collection because, he said, George had stopped them from handing the money to the defendant. However in the record of interview and while cross-examining George Wamba, the defendant seems to claim that he withheld the monies he collected from those who borrowed because George had not paid him for the consultancy work he performed for George. From the evidence as it stands, I find that the defendant used the money he received from George. The money was never distributed in George’s presence nor was he given the copy of the list of those who borrowed the money nor the copy of the statutory declaration. Those who received the money have not been called by defendant to testify in court.

18. Issue No. 2: “Did defendant obtain the money by false pretence?”

The defendant is charged that he by falsely pretending to George Wamba he did obtain a sum of K4, 000.00 from him. The term “false pretence” is defined in Section 403 (1) of the Criminal Code Act which states that: “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.”

19. Where a person is charged for obtaining money or goods by false pretence, the prosecution must establish that that person has acted or made a representation towards the other person to make that other person believe that what he was doing is true when infact it is not true. The cases in Albert Alexander Age –v- The State [1979] PNGLR 589 and The State –v- Paulus Takesi N1468 clearly show what false pretence is. In the former case the appellant Age wanted to buy a vehicle for himself. He was a bank employee. He used another person namely Patu who made a loan application and the cheque was raised under Patu’s name but the cheque was deposited in Age’s account. Age was charged and convicted of obtaining money by false pretence.

20. In the later case, the defendant Paulus Takesi, a lawyer in the State Solicitor’s office with the Department of Attorney General assisted Iaia and Kiki by submitting their claims to the Workers Compensation Office. The cheques were raised for the two claimants under their own names. When the cheques were ready the defendant went and collected the cheques saying that he was authorized by the two claimants to collect the cheques when he was not authorized. He cashed the cheques at the TST Supermarket by using an ID card bearing his own photo but having the name of the claimants. He was convicted of false pretence.

21. In the present case the defendant presented a statutory declaration to George Wamba wit a list of 15 intended borrowers that the borrowers will repay the money by each giving 50 kg of coffee per month until the money is fully repaid. The defendant been known to him, and having trusted him, George then withdrew K4, 000.00 from the bank and gave it to the defendant. The defendant failed to give a copy of that statutory declaration and the list of those intended borrowers. To date only K550.00 was repaid.

22. Defendant in his unsworn evidence stated that during the coffee season from April to July, the borrowers gave bags of coffee to the defendant each month. Since George had a vehicle, he told George to pick up the bags of coffee from a remote area in Unggai District but George failed to do so as he was giving a lot of excuses. In response to this, in Question 13 during the Cross-Examination, George did attend to this request from the defendant in the first occasion but at that time the defendant, while under influence of liquor, threatened George and so he refused to collect the bags of coffee. The defendant had not even called some of those who borrowed the money to testify in Court that to prove that such a borrower had in fact had given the defendant a bag of coffee to repay what he took from George Wamba. There is no evidence to satisfy this Court that there were bags of coffee made available for collection by George Wamba. If this was so then why would defendant have to threaten George and prevent him from collecting them.

23. I find that defendant’s failure to call any of those persons who received the distribution of the K4, 000.00 and who have contributed 50 kg bag of coffee, cast doubts as to the truthfulness of the defendant’s unsworn evidence. I am satisfied beyond doubt that the defendant did obtain the money from George by false pretence. He did not obtain that money and distribute it to those listed as intended borrowers but he took the money for himself.

24. Issue No. 3: “Did the defendant intend to defraud George Wamba?”

Defendant claimed that he did some consultancy work for George and George had agreed to pay him but he failed to pay him. However there is evidence that George did pay him in the sum of K1, 400.00 for that consultancy work. The defendant alleged that the agreement for that consultancy work was for K10, 000.00 to which George denied such a claim. Defendant tendered a “Memorandum of Agreement” through the prosecution witness George Wamba, which is marked for identification as ‘MFI-1’. However defendant failed to tender this document as evidence in Court. Therefore the document marked ‘MFI-1’ is no evidence at all.

25. I am of the view that defendant relied on this ‘Memorandum of Agreement’ and he was of the understanding that he was not properly paid for the consultancy work he did for George that he decided to obtain such payment from George by producing a statutory declaration to George to release K4, 000.00 to him to be distributed to some intended borrowers. This in my view was only a cover up by the defendant. I find that defendant intended to defraud George Wamba in the manner he did while completely having a different motive that the defendant was getting the money for himself instead for those intended borrowers.

26. From the evidence as given before this Court, I find beyond any doubt that the defendant obtained the money from George Wamba by false pretence. He falsely pretended that he was sourcing out financial assistance on behalf of others for their children’s school fees. And I find defendant guilty as charged for obtaining money by false pretence.

27. Sentence

The penalty for obtaining goods, or chattel or money by means of false pretence carries a term of imprisonment of five years. I consider Section 19 (1) (e) of the Criminal Code Act and the Section 132 of the District Courts Act. Under the Criminal Code Act, this Court can enter a conviction but without imposing a sentence, the prisoner can be discharged on entering into a recognizance with or without sureties to keep the peace and be of good behaviour. While under the provision in the District Court Act, the Court could discharge the prisoner conditionally and place him on his own recognizance without proceeding to conviction. This Court has that power to impose non-custodial sentence as the circumstances of the case allows it. In order to apply either one of these provision for more custodial sentence, the Court need to consider the mitigating factors of the prisoner.

28. The defendant is unemployed. He is married with two children. He has never had encountered with the law before. He is a Ward Three Counsellor. He holds the position of a deputy chairman of the Kamaliki Vocational Center and a chairman of the Roger Elementary School. He is also the president of the junior rugby league in Goroka and he has made preparations to affiliate that with the National Rugby League in March 2008. I do take his commitment to the community where he belongs. If he is sent to jail some of the good things he is doing for the community might be jeopardised. Having taken his mitigating factors into account, I consider that I need to apply Section 19 (1) (e) of the Criminal Code.

29. According I convict the defendant but I defer the sentence and I discharged him on his own recognizance with a surety of K200.00 to keep the peace and be of good behaviour for a period of twelve months with condition that he repays K3, 450.00 to the complainant George Wamba within the said period. If he fails to repay the money he will be recalled for sentencing. The Court bail of K200.00 to be retained as his sureties.

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