Police v Toua [2020] PGDC 44; DC5032 (25 August 2020)

DC5032

Papua New Guinea

In the District Court

Held at Waigani

Sitting in its Committal Jurisdiction

Comm. Nos. 1932 of 2020

BETWEEN:
THE POLICE
Informant

AND:
GAVARA TOUA
Defendant

Port Moresby: T. Ganaii
2020: 17^th of March; 25^th August

COMMITTAL PROCEEDINGS – Charge - One count of False Pretence contrary to section 404 (1) (a) of the Criminal Code Act

COMMITTAL PROCEEDINGS - Is Police evidence prima facie sufficient to commit the defendant to stand trial in the National Court - Legal requirements for prima facie case - Presence of the elements of the charge – After assessment of evidence – Insufficient evidence on element of false pretence
Cases cited:
Akia v Francis PGNC 335; N6555
Maladina v Principal District Magistrate Posain Poloh [2004] PGNC 208
R-v- McEachern [1967-68] PNGLR 48
St v Kepo [2019] PGNC 74, N7807,( 23^rd APRIL 2019)
Yarume v Euga [1996] PGNC 24; N1476

Overseas Case
Balcombe v De Simmi [1972] 129 CLR 576 at 572
Barca v The Queen [12] [1975] HCA 42; [1975] 50 ALJR 108 at p.117
Green v R [1949] HCA 55 (1949) 79 CLR 353
R v. Bancroft (1909) 26 LTR 10 3Cr App R 16

References

Legislation
Criminal Code Act Chapter 262
District Court Act, Chapter 40

Counsel
Police Prosecutor: Snr Constable Peter Samghy For the Informant
Defence Counsel: Mr. Rarura Puka, Henao Lawyers For the defendant

RULING ON SUFFICIENCY OF EVIDENCE

17^th March, 25^th August 2020

Introduction

Ganaii, SM: This is a Ruling on whether a prima facie case is made out within the meaning of Section 95 (1) of the District Courts Act where all the evidence of the Prosecution is received in the form of a Police Hand Up Brief and the Court is required to consider whether it is sufficient to put the defendant on trial. Defence Submission is also considered in this Ruling.

Charge

2. The defendant is charged with one count False Pretence under section 404 (1) (a) of the Criminal Code Act.

Facts

3. On the 06^th of August 2019 the defendant met the complainant at Boroko Food world where they had a conversation on road works. The complainant had won a contract to provide road resealing services and required a sealing truck. The defendant convinced the complainant that he can arrange for a sealing truck which was in good working condition. He promised to deliver the sealing truck and parted with an amount of K25, 000 in cash for the hire of the sealing truck. Days later the sealing truck was defunct and the defendant went into hiding and deliberately ignored the complainant’s call. After matter was reported and investigated, a stakeout was carried out and the defendant was eventually arrested.

Issue

4. The issue before this court is whether a prima facie case is made out and that is whether the evidence received from the Prosecution is sufficient to warrant the committal of the defendant to stand trial at the National Court.

5. The Sub-issue is whether there is sufficient evidence on each element of the offence of False Pretence.

The Law

The Law on Committal Proceedings

6. Part VI of the District Courts Act provides the legal basis for committal proceedings specifically under Section 94 to Section 100 of the District Courts Act.

7. The Committal Process whilst requires the Court to make a finding on the evidence presented by the Police, this process is very administrative in that the Court need only to form an opinion that there is a bona fide prima facie case against the Defendant; as per Akia v Francis PGNC 335; N6555 and R-v- McEachern [1967-68] PNGLR 48.

8. In the matter of Maladina v Principal District Magistrate Posain Poloh [2004] PGNC 208 His Honour Injia DCJ (as he then was); expressed in his opinion that the Committal process involves two phases, the first is when the Committing Magistrate makes a finding on whether or not there is sufficient evidence and whether a prima facie case is made out under Section 95 of the District Courts Act and the second being when a further finding is made under Section 100 of the District Courts Act on whether to discharge or commit the Defendant only after the Court administers an examination of a Defendant under Section 96 where the defendant is asked whether he desires to give evidence.

9. Furthermore, in the case of Yarume v Euga [1996] PGNC 24; N1476 the National Court said in respect to committal hearings that the process of committal requires proper and reasonable assessment of the evidence with a view to see whether all the elements or ingredients of the offence is present before he can commit the accused; Section 94B, 94C, 95 and 100 to be read together.

The law on the offending provision

The Law:

Criminal Code Act

403. FALSE PRETENCE: WILFULLY FALSE PROMISE.

(1) 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.

(2) A promise made by words or otherwise to do or omit to do anything by a person who at the time of making the promise–

(a) does not intend to perform it; or

(b) does not believe he will be able to perform it,

is a wilfully false promise.

404. OBTAINING GOODS OR CREDIT BY FALSE PRETENCE OR WILFULLY FALSE PROMISE.
     

(1) A person who by a 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.

Elements of the Offence

10. In the case of Greene v R [1949] HCA 55; (1949) 79 CLR 353 (6 December 1949), the High Court of Australia said the offence of obtaining property by false pretences involves four elements which are: that there must be a false pretence; that the defendant must know that the pretence was false; that the property must be obtained by means of the pretence; and that there must be an intent to defraud.
11. In the PNG case of State v Kepo [2019] PGNC 74; N7807 (23 April 2019) the court stated the following to be the elements of charge of False pretence and Wilfully false promise under section 404 of the CCA to be: that the accused; by false pretence or wilfully false promise, obtained property from the complainant; and with intent to defraud.

Prosecution Case

12. To prove its case, the Prosecution produced a total of six (06) witness statements from:

(1) Alice Ibo – who is the complainant. Her statement is that she met the defendant at Food world and gave him K25, 000 for the hire of a sealing machine. The complainant said she later learnt that the truck was sitting in the yard and not in good running condition. She lost business as a result.

(2) Emmanuel Deib Mou – is a relative of the complainant who witnesses the complainant giving the monies to the defendant.

(3) Vele Mou - is a driver for the complainant who witnesses her giving the monies to the defendant

(4) Uhau Marava – is a relative of the complainant. Her evidence is as above.

(5) Constable Ongi Wek – is a police officer involved in the conduct of the interview as a corroborator.

(6) Constable Joshua Kraip – is the Police Arresting Officer.

Documentary Evidence:

13. The documentary evidence are as follows:

1. The Police Record of Interview (English)
2. Major Incident Brief

100. Operations Message Card and the

4. Antecedent Report (not considered now)
   

Defence Submission

14. The defence made the following submissions:

1. There is no evidence in the Police File to suggest that the defendant had by false pretence or willfully false promise, or partly by a false pretence and partly by a false promise, and with the intention to defraud obtained monies from the complainant;
   
2. The only evidence relied on is the statement of the complainant giving K25 000 to the defendant which is not denied. However, the money was for the defendant to secure a road sealer machine. The sealer machine was provided but it broke down. The complainant had sought the assistance of the defendant to provide the sealer machine;
   

100. There is no evidence in the Police file that the defendant had taken the money and fled and failed to provide a road sealing machine;
     

4. The contract between the complainant and the Department of Works (Down) was for three months from the date it was awarded (11^th January 2019). The contract lapsed on the 11^th of April 2019. The complainant sought the assistance of the defendant to provide a road sealer almost four months after contract lapsed. The only logical inference is that the complainant did not have the capacity in the first place to enter into a contract with Down to seal the pot holes from Bautama to Gabagaba junction in the central province;
   
5. The payment of the K25 000 by the complainant to the defendant was a business transaction. In order to fulfill or accomplish her part of the contract with the Down the complainant required a road sealing machine and had sought the assistance of the defendant to hire one at a cheap price. The defendant approached the HR Holdings on behalf of the complainant. The defendant was not aware that HR Holdings road sealer was defective;
   
6. The defendant had hired a road sealer from HR Holdings on behalf of the complainant. The complainant and her company were engaged by the NDoW to seal pot holes between Bautama and Gabagaba turnoff in the Central Province despite the fact that it did not have the capacity to carry out the task.
   

15. Defence also relied on affidavit statement which was not proper to do at this stage but can be presented during administration of section 96 of the DCA.

16. The crux of the affidavit was relating to the defendant’s qualification and background as an engineer (civil I gather); how he knew the complainant; the contractual nature of the arrangement between himself and complainant; what he did and expanded to obtain the sealer machine and assist with road works; the sealing didn’t occur due to heavy rains; termination of complainant’s contact with Down. In my view, these are matters for s 96 or trial proper if matter is committed to trial. For now, the defendant only has to respond to sufficiency of evidence provided by the Police in the PHUB.

Prosecutions Submission:

17. The prosecutor submitted as follows:

1. There is sufficient evidence based on all witness statements, and especially that of the complainant’s on the charge;
   
2. Defendant had full knowledge that the sealing truck was sitting idle for some years with mechanical problems and yet having such knowledge went ahead make a false pretence by telling the complainant that the sealing truck was in good running condition and that he will provide a sealing machine to complete the job.
   

100. The defendant did not give any receipts for the payment of the hire of the sealing truck as asked by the complainant and never answered her phone calls, went into hiding until his apprehension and arrest.

Analysis of the evidence in the light of Defence Submissions

Element of Identification:

18. There is no issue on identification as the defendant does not denying receiving the monies to provide such service.
    

Element of false pretence:

19. The undisputed facts are that the defendant promised to provide a sealing truck; that he did provide a sealing truck and the sealing truck had broken down.
    
20. The issue is whether at the time of his making of the representation at Boroko Food world , the defendant knew that the sealer machine he referred to was in fact broken down and mal-functional. The test therefore is on the presence of knowledge and intent of the defendant at the time of representation. The representation he relied on to convince the complainant so that she parted with her property, monies in the sum of K25, 000 was in fact false and he knew that it was false and he was not able to perform according to the promise he made.
    
21. Due to the defendant’s omission to perform his part of the deal to provide the services of a sealing machine and therefore demonstrating an act or omission that may compris the ‘physical’ elements of a crime or the actus reus of the crime, Justice Kaumi in the case of State v Kepo [2019] PGNC 74; N7807 (23 April 2019) held that:

“ For a successful conviction on a charge of false pretence it must not only be proven that the accused by false pretence or willfully false promise obtained property from the complainant (which is the actus rea of the crime) but that he did so with an intention to defraud”.

22. Kaumi J further held that:

“Acts of fraud and dishonesty go to a person’s state of mind. Fraudulent or dishonest intent supply the mens rea (common law doctrine [of criminal intent] ) required to support a criminal conviction for a criminal offence. Prosecutor’s Request No.4 (1975) PNGLR 365”

23. What this case is saying is that in order for this offence of false pretence to be complete, there must not only be evidence of obtaining property, ie the taking of a security (actus reus) by false pretence but also there must be evidence from police witnesses showing that the defendant had knowledge of some falsity (mens rea) which is the required element of criminal intent. The principle in the case Balcombe v De Simmi [1972] 129 CLR 576 at 592 was applied.
    
24. In the present case, all of the police witnesses except the complainant do not say that at the time of the representation made by the defendant, he knew that that sealer truck he was referring to was in fact broken down and that he didn’t have the ability nor the resource to provide sealing services but yet he went ahead to make that false representation on the past existing facts. This is the pre-requisite of the offence found in section 403 (1) (a) and (b) of the CCA. These requirements are that there must be a representation made by words or otherwise of a matter of fact, past or present that which is false in fact; and the person making it knows to be false or does not believe to be true. And for False promise to be made out, a promise made by words or otherwise to do or omit to do any thing by a person who at the time of making the promise does not intend to perform it; or does not believe he will be able to perform it is a wilfully false promise.
    
25. All that the police witnesses except the complainant say is that the defendant was given monies and promised to provide the sealing machine. None of all these witnesses say anything about the condition of the truck at the time the defendant made the representation. Evidence which shows that at the time defendant made the representation he knew that truck was not functional would make out the element of falsity in knowledge held by the defendant.
    
26. The only police witness who said anything about the sealer truck not in running condition was the complainant. However, her evidence in my respectful view is not sufficient to make out the element of falsity of knowledge. Parts of her evidence at page 2 of her statement is as follows:
    
    • - “The sealing truck was not good for hire but they went ahead and got our money;
      
    • - Now our contract is terminated because of the sealing truck so Gavara with the HR Holding are responsible for the loss of business for knowingly and putting the defected sealing truck on hire”.
      
27. What this statement does not say is where or whom did the complainant get this story from. It is clear that this fact was not known to the complainant at the time of the representation by the defendant. The Police does not say that such conclusion can be inferred from the statement of facts. I have found that in many submissions on sufficiency of evidence, where Police relied on inference to be drawn from circumstantial evidence, in order to make out their case, they fail to say so either in the Statement of Facts or more so in their submissions. The courts cannot assume that to be case because that will be guessing. The police must expressly state so in their submissions or in the statements of facts. In cases such as this where no direct evidence is present to establish criminal intent at the time of the representation, prosecutors must assist the courts properly in their submissions on the type of evidence they rely on or what really their case is. They must also assist the court on what facts from the evidence they rely on to ask the court to make inferences from.
    
28. In my view, the crucial evidence in the circumstances of this case is for the police witnesses to show that the defendant knew he was lying when he made the statement. I do not think the complainant knew about this fact at the time the defendant made the statement. If she did, i.e. that if she knew that the defendant was relying on a malfunctioning sealer machine, she would not have given her monies to him. How is it that she can now say that the machine was defunct. This raises the need for the Police to provide sufficient evidence from another witness who may have related these facts to the complainant or directly from these witnesses who could show that defendant knew that the machine he spoke of was malfunctioning and that he was not going to deliver the machine. Examples of such evidence would be: someone who had observed the truck being idle for years at the defendant’s yard, or someone’s yard etc and the defendant was present at the yard and saw that the machine was idle.
    
29. In R. v. Bancroft (1909) 26 TLR 10; 3 Cr App R 16 the Court of Criminal Appeal held that a promise to do something in the future may imply a representation as to an existing fact which, if false, may be a false pretence to sustain an indictment. The existing fact in the case in question was a bona fide intention of the accused to publish a book. But the current of authority is to the contrary effect. (at p357). In that case, the defendant did not have the lawful authority to publish the book when he represented that he would publish a book. That fact that he didn’t have lawful authority to publish that book was known to him to be false yet he went ahead to make that representation.
    
30. In this instance, when the defendant had promised to provide a sealing truck, police evidence does not show that at that time he knew that the truck he would be using was defect. It is not enough to say he had the intent just because the sealer machine broke down. It is a necessary ingredient for the charge of false pretence that the police evidence must show that the defendant told a lie about his ability to provide that service. Police do not say their case relies solely on circumstantial evidence so that the court can draw inferences to establish criminal intent. Police case does not say what facts can the court rely on to safely draw inferences from to reach the conclusion that there is a prima facie case. What is clear though is that there is no direct evidence and no strong case of circumstantial evidence that the court finds to exist to make out a prima facie case against the defendant.
    
31. In the words of Dixon J, (Greene v R) it is my humble view that this is a case of broken promise to pay which remedy is to file for civil claim of damages for breach of promise to deliver. It is not a case of false promise with criminal intent. Dixon J stated:
    

“In spite of all that has been said above about the state of mind being a state of fact, it is not often a state of fact about which anyone can be sure, even the defendant himself, and, if the law were otherwise, the risk would be great of men being convicted of false pretences because juries failed to distinguish between false promises and broken promises. This is a very clear indication of a case of breach of promise to pay which is a “broken promise and not a false promise”.

Determination and Findings:

32. In considering all of above discussions, court finds that there is insufficient prima facie case against the defendant on one count False Pretence under section 403 and 404 (1) (a) of the CCA. The essential element of falsity of knowledge held by the defendant at the time of making of the representation is not supported by sufficient evidence to make out a prima facie case. Evidence that the machine failed to work is not alone sufficient.

Conclusion

33. I have made an assessment of the evidence of the Police File and considered the Defence Submission on Sufficiency and I find there to be a insufficient evidence to make out a prima facie case to put the Defendant on Trial for the charge of False Pretence under section 403 and 404 of the Criminal Code Act.

Order:

I make the following orders:

1. Find insufficient evidence to make out a prima facie case against the defendant to ommit him to stand trial on the element of knowingly making a false representation ;
   
2. The defendant case is dismissed for insufficient evidence;
   
3. Defendant is discharged of bail obligations; and
   
4. Bail monies in the sum of K1000 to be refunded forthwith.
   

Police Prosecutor: For the Informant
Henao Lawyers For the Defendant