Aluy v Arua [2009] PGDC 78; DC1006 (14 January 2009)

DC1006

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF CRIMINAL JURISDICTION

Case Number Comm. 270 of 2007

BETWEEN:

MICHAEL ALUY
(Informant)

AND:

JOSEPH ARUA
(Defendant)

MADANG: M SELEFKARIU, PM
2007: 12- 28 December
2008: 16 January- 14 April
2009: 7- 14 January

CRIMINAL: Committal proceeding- Hand up brief- Defence no case to answer submission under consideration- Defendant is charged with obtaining property by cheating, pursuant to s. 406 (1) of Criminal Code Act (Code).

CASES CITED:

The State v Paul Kundi Rape [1976] PNGLR96.
Buckley Yanrume v Sylvester Euga (1996) (unreported) N1476.
Regina v McEachern [1967-68] PNGLR 48.

TEXT:

Hill E. R. & Powles G., Magistrates Manual of Papua New Guinea, Lawbook Co. (2001), Sydney, NSW 2009.

Counsel:

First Constable M Ansini of Police Prosecution for State
Mr. J Kolkia for Defendant

JUDGEMENT ON DEFENCE NO CASE TO ANSWER SUBMISSION

14 January 2009

SELEFKARIU, PM: Police alleged that the defendant by means of fraud tricked Casper Manzor, a gold buyer who transferred K25, 000.00 from his bank account to the defendant’s account to purchase one kilogram of alluvial gold for which the defendant used the money for his personal use and the use of other persons thereby contravening s. 406 (1) of Code.

Casper was indirectly introduced to the defendant by his friend Morea Konia a resident of Madang Town, Madang Province.

Morea described the defendant as someone who has a good network in the business of purchasing alluvial gold.

Based on the information supplied to the defendant, he contacted the victim and they arranged to meet in Lae which they did on 19 January 2005 at a place called Star Gate Haus Kai.

Casper introduced himself to the defendant and said he was only a small buyer and seller of gold.

The defendant introduced himself and presented his ideas to Casper of his proposal to set up a smelting laboratory for which he was seeking financial assistance to set it up.

He said he has contacts in Ramu area of Madang Province where a good deposit of gold is located.

He said once the laboratory was up and running all the alluvial gold coming out of Ramu will be smelted there.

He said he had many years experience working with Highlands Pacific Limited and saw how the gold was processed as a field officer then.

He showed Casper some documents purported to be a quotation which he obtained from a company named as Phil bord labs situated outside eleven miles may be of Lae City at the cost of K35, 000.00.

Casper told the defendant that one way of raising that amount is to buy small quantities of gold and sell at the available markets to realise it.

The defendant suggested that he can use his network and they could start purchasing alluvial gold.

Casper told the defendant to tell his contacts to bring the alluvial gold to them for them to buy.

The defendant said the people would not believe them and the best way is to bring the money in cash into the area and purchase the gold.

Casper thought the defendant’s presentation was good and he did it professionally so he could not suspect what he had in mind then.

Casper said he needed to check again on the defendant to be convinced so he called his friend Morea in Madang who assured him that the defendant has his confidence and he endorses his ideas.

Casper and the defendant again met in Lae City in February at Eriku Haus Kai.

Casper said the defendant brought over some documents and showed them to him.

The documents were project proposals of a company bound in a book form containing landowners’ profiles. According to Casper the documents were shown to him to convince him that the project was genuine and viable.

He said the defendant showed him some documents and told him about his adoption into the landowners’ clans a ritual which authorises him to act on behalf of the landowners.

Casper appears not convinced to what the defendant told him and travelled to Madang to see his friend Morea during Easter weekend of 2005.

One afternoon when Casper was sitting under the rain trees the defendant came along with a group of men and saw him.

Casper said the defendant introduced a person amongst the group to him as the spokesman for the landowners and told the others that Casper will make the initial contribution.

According to Casper everyone present acknowledged that and expressed that his contribution of K25, 000.00 will be exchanged for one kilogram of alluvial gold and assured him that it will be no problem to them to find the gold.

Casper said he would make available the K25, 000.00 to the defendant and the landowners after Easter holidays. In private and away from the hearing of the defendant Casper expressed to the landowners’ spokesman to have some of them accompany the defendant to Lae City to receive the money.

Casper said the defendant insisted that the money be paid into his private bank account for which he protested but the defendant told him the company did not have a bank account then to operate from. Casper said the landowners assured him his money will be properly used and accounted for.

On 30 March 2005 the defendant including four others met him in Lae City.

They all entered the Bank of South Pacific Limited (BSP Ltd) of its Branch Office at the Lae City market area to do the transaction. Casper filled out a bank deposit slip and showed it to the representatives of the landowners before handing it to the bank teller to transfer K25, 000.00 from his account into the defendant’s account held at the same Bank at its Madang Branch.

Casper said when the transaction was completed the defendant assured him that upon reaching Madang Town the whole group will proceed to the village and processed one kilogram of alluvial gold as promised.

After a week Casper contacted Morea in Madang to find out if the defendant and the group have left for the village and was informed that the group was still in Madang Town.

Casper travelled to Madang Town and requested that the defendant transfer his money into his account for safe keeping and until the group was ready to travel to the village he can then hand the money to them in cash.

Casper said the defendant used the support of others in the group to reassure him not to doubt the deal.

Casper then told them that part of his life was in their hands and he expected one kilogram of alluvial gold a week from the time the group leaves Madang Town to travel to the village.

Casper said after that he never saw or heard from the defendant and for him to try and locate the defendant was a real headache. He said even the defendant’s family could not give information of his whereabouts and he believed the family members were coached not to disclose the defendant’s location.

Casper had to search for the defendant for more than two years and said from his own inquiries he learned about similar cases the defendant engaged into in taking money and valuables from other persons under the pretext of Ramu Gold Project of which the defendant said was is in charge of its operation.

Casper said he realised then the defendant had cheated him and taken away his K25, 000.00. He said the defendant has destroyed him and he wishes the defendant including his family and the landowners’ group be put behind bars.

From the record of interview the defendant admits to receiving K25, 000.00 from Casper through a bank transfer.

This is confirmed through the evidence of Mathias Manowo the Manager of the Madang Branch of BSP Ltd.

The defendant said the money wasn’t used to buy gold but used for other purposes. He said the money was not spent for his own use but spent to develop the new gold project.

In one of the questions he admits to cheating Casper and obtaining K25, 000.00 from him when he promised to buy and give him gold but has not done so for more than two years.

According to the defence submissions they submitted that one of the elements of the offence for which the defendant is charged for is the element of intention. They submitted that on the evidence contained in the hand up brief it is insufficient because it does not show that the defendant intended to deceive or trick Casper when he obtained K25, 000.00 from him.

In my view, the issue as regards the sufficiency of evidence, is watered down to the single element of intention, that is to say, whether the evidence contained in the hand up brief, which proves other elements of the offence, sufficiently proves the element of intention as well.

In other words, at the time of receiving the money did the defendant have the intention to trick or cheat Casper then?

This stands as the main issue and will undoubtedly receives almost all the attention of court because this is where the point of contest lies.

In their submissions the defence submitted a sub issue that the principle of law as regards no case to answer submission is settled as in the case of The State v Paul Kundi Rape [1976] PNGLR96.

With respect to the defence I think this submission is ill conceived because the principle in Kundi Rape concerns a real trial situation where at the end of the prosecution’s case the defence has the right to make a no case to answer submission to test the prosecution’s evidence. The court then is asked to determine whether the defendant could lawfully be convicted at the end of the trial.

This process is distinguished from the no case to answer submission in the committal proceeding because the Committal Court is not a trial court and even though having no jurisdiction over the case before it is only doing its judicial duty in assessing the evidence put before it in the hand up brief to find if the evidence is sufficient to commit the defendant to trial. See Buckley Yanrume v Sylvester Euga (1996) (unreported) N1476.

This sub issue concerns standard of proof for which in a committal proceeding is lesser than the criminal standard of ‘proof beyond reasonable doubt’ but higher than the civil standard of ‘proof on the balance of probability’.

In my view the standard of proof in the committal proceeding is slightly lesser than the standard of proof in the process of a no case to answer submission at a proper trial where at the close of the prosecution’s evidence and the court is asked to determine whether it could lawfully convict the defendant on the evidence as it stands.

In the case of Regina v McEachern [1967-68] PNGLR 48 it was held that,

"To decide that the evidence offered by the prosecution in committal proceedings ‘is sufficient to put the defendant upon his trial’ ---The Court has only to form a bona fide opinion that there is a sufficient prima facie case against the defendant."

With reference to the above case I think this is really the duty imposed on the Committal Court, pursuant to s. 96 of the District Courts Act where the court has only to form an opinion in good faith, as to whether the evidence is sufficient to commit the defendant but not to adjudicate on the case.

According to Hill & Powles, in their book, Magistrates Manual of Papua New Guinea, Lawbook Co, (2001), Sydney NSW2009 at paragraph 11. 2. 3 they say:

"A committal proceeding is an investigation into the strength of the case being mounted by the prosecution, and it is not an act of adjudication." (Emphasis mine)

I find on the evidence that Casper wants the defendant to use his network in the Ramu area to buy alluvial gold and how much the K25, 000.00 could purchase the defendant will deliver one kilogram of it to Casper as consideration for his money a week from the time the defendant and the landowners’ group reached the village.

In the record of interview the defendant said after the group reached the site things did not work out as planned because there was no commitment.

The defendant also said the money was apportioned amongst members of nine clans for which he could not confirm the real amount because his papers were somewhere in Lae or Madang and it appears the clans were to go out and dig for gold and return 900 grams each which did not work out.

The defendant admits that this arrangement is contrary to the terms of the agreement he made with Casper.

In relation to the evidence of Mathias Manowo and in relation to the bank statement supplied for the defendant’s account, without explanation to the contrary I find the manner of drawing the money in terms of the amounts (mostly small amounts) and their frequencies shows clearly the money was used for the defendant’s personal use and the use of others and not for the intended purpose, that is to buy gold.

I find the drawing of K500.00 on the same day when the money was just transferred quite disturbing because the defendant had 71 toea only in his account then. I have no doubt in my mind the money was used largely for the defendant’s personal use and the use of others.

The defendant did not say when he and the members of the landowners’ group went to the village, if he ever did at all, but from the bank statement provided the only significant amount drawn was K7, 700.00. The defendant did not give proper explanation when questioned by police but alleged that the money was shared amongst the nine clans. I wonder how much each clan received from the K7, 700.00 because this seems to be the only amount significant whereas the other amounts I conclude to be commonly for personal use than anything.

By the end of April 2005, almost K24, 000.00 of the money had been drawn and used by the defendant then and if he said he distributed them amongst the members of the nine clans one month was sufficient for the members to return 900 grams of gold from each clan as alleged and that would have avoided police intervention culminating to this proceeding now before court.

As evidence unfolds it is indeed quite embarrassing to see the lies the defendant told to Casper that he had the network and the authority over the people who listen to him.

I wonder if the people can still listen to the defendant after more than two years if he actually distributed the money amongst the clans.

In my opinion the evidence points to the conclusion that the defendant used the money for his own personal use and for the use of his family mostly a case of cheating and misappropriation.

This is why he had to go into hiding and with the assistance of members of his family concealed his whereabouts and from being detected by Casper who in my view was pursuing him mainly to recover his money more than other interests including police investigations.

The defendant through his counsel submitted the defendant had no intention to trick or cheat but on the present evidence it is quite obvious the defendant’s conduct says it all and furthermore he already admitted to police under interrogation.

Should the defendant think that I consider the other proposition that the money was used to develop the gold project, I find that there is no evidence that the smelter has been bought or a reputable financier has made financial commitment because of the viability of the project.

I also wonder if the Papua Niugini Sample Prep Limited has been incorporated including Madang Metal Smelters Limited companies which have been revealed in the evidence.

In the hand up brief of the police evidence I see two copies of statutory declarations marked as exhibits CM3 and CM4.

According to Exhibit CM4 which was declared on 29 March 2005 its contents reads that the board of directors of a company called Madang Metal Smelters resolved on 27 March 2005 that Casper will be a director and shareholder of the said company upon completion of all the formal transaction.

Just what the formal transaction entails was not explained.

I wonder if Casper was made aware of this in their February meeting at Eriku, Lae and if not, and then in Madang at Easter weekend in March 2005.

In my view Casper has no knowledge about it and the defendant had planned this thing to look natural and thwart any suspicion.

Then in Exhibit CM3 the defendant made another declaration dated 21 December 2006 that he acted on behalf of another company called Mamb Resource Limited and declared that on Monday 23 October 2006 Papua Niugini Sample Prep Ltd, yet another company as management company to Mamb Resource Limited a resource landowner company has the obligation to repay Casper his capital investment of K25, 000.00 which was used to establish Mamb Resource Project.

The declaration failed to give a fix date as to settlement for repayment of K25, 000.00 with interest at 100% on top of the principal investment sum.

Contrasting these two exhibits I find it rather difficult to comprehend on the basis that if Casper was made a director of Madang Metal Smelters Ltd which he is also declared a shareholder of why should his money be used to promote another company to his own detriment without his consent.

I conclude that this is the work of someone with skills in this type of business who is good in tricking, cheating and influencing people and benefits from the money and valuables obtained as a result.

Taking account of all the above I conclude that the evidence in the hand up brief is sufficient proving the charge against the defendant and that he must be put to trial.

In doing so and with respect to the defence I reject their submissions.

As a matter of cause I now proceed to the administration of s. 96 of the District Courts Act.

____________________________________
Police Prosecution for the State
Lawyers for the defendant: Paul Paraka Lawyers