Sine v Anthony [2021] PGDC 144; DC6099 (6 October 2021)

DC6099

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]

SITTING IN ITS COMMITTAL JURISDICTION

NCC NO 1933-1934 OF 2019

CB NO 9428 OF 2019

BETWEEN:

ANTHONY SINE

[Informant]

AND:

ROY ANTHONY

[Defendant]

Waigani: Paul Puri Nii

6th October 2021

COMMITTAL PROCEEDINGS: Charges- False Pretense –Section 404(1)(a)-False Pretense–Conspired to Defraud-Section 407(1)(b) of the Criminal Code Act 1974, Chapter No. 262. Valuation of police hand-up-brief must institute a prima facie evidence sustaining the elements of the two (2) allegations.

PRACTISE AND PROCEDURE: the progression of obtaining Sufficiency-Jurisdiction in Section 95 of the District Court Act-Assessment of Police file- establishing sufficient evidence-Defendant is committed.

PNG Cases cited:

Police v Kimisopa [2021] PGDC 76; DC6031

State v Kendi [2006] PGNC 139; N3200 (4 July 2006),

Police v Medako [2021] PGDC 54; DC6011

State v Tobena [2014] PGNC 307; N5601 (12 May 2014)

Police v Toua [2020] PGDC 44; DC5032

State v Pati [2018] PGNC 113; N7186 (14 March 2018)

Overseas cases cited:

Greene v R [1949] HCA 55; (1949) 79 CLR 353

R v Williams [1836] EngR 545; (1836) 173 E.R. 158

REFERENCE

Legislation

Criminal Code Act 1974, [Chapter 262]

District Court Act 1963, Chapter 40

Counsel

Police Prosecutor: Peter Samghy For the Informant

In person: N/A For the Defendant

RULING ON THE SUFFICIENCY OF EVIDENCE

06^th October 2021

INTRODUCTION

NII, P.Paul Magistrate. Court’s decision under the ability in Section 95 of the District Court Act 1963. The decision is the consequence of assessment of witness in police evidence served on 17^th March 2020.

CHARGE

1. Defendant now in court is charged under Section 404(1)(a) and Section 407(1)(b) of the Criminal Code Act 1974 [Chapter No. 262]. The restored and advance wordings of the offending charges are in the ensuing terms:

a) “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 is guilty of a crime.”

b) “ 407. Conspiracy to defraud.

(1) A person who conspires with another person—

(b) to defraud the public, or any person (whether or not a particular person) is guilty of a crime.”

BRIEF FACTS

2. Police assets Defendant is aged 38 years form Wabag in Enga Province and Complaint is Clement Paubali and works with Ombudsman Commission. It was alleged the Defendant in the Company of co accused Ronald Kapikam and other Nick Harrison had a meeting with the Complainant for the Complainant’s exclusive attentiveness to purchase a property. The purported property is pronounced as Section 46, Allotment 30 at Moru street in East Boroko, NCD and owned by the National Housing Corporation. After the purported meeting the Complainant made and offered of K600, 000 which was agreed upon by the purported owner who is now the Defendant and his co accused by producing a fake title to the Complainant.
   
3. The Complainant then applied for a bank loan with Kina Bank and an amount of K514, 896.23 through cheque No 068715 was approved for the purchase of property, which was then led to signing of the loan facility offer document by the purported title owner who is the co-accused in the presence of the Defendant and victim complainant. Contract of sale was signed on 26^th April 2019, the same date after the loan was approved. The money was then paid into a nominated account owned and operated by the Defendant.
   
4. However, on 24^th July 2019, the Complainant lodge an allegation against the Defendant and his co accused after ascertaining the produced title to the Complainant was not genuine, it was a counterfeit tile and police acting on the information, on 2^nd August 2019, arrested the Defendant and his co-accused. It was alleged the Defendant conspired with the co accused and got K600,000 from the Complainant.

ISSUE

5. Whether there is sufficient evidence to commit the Defendant for the offence of false pretense under Section 404(1)(a) and Conspired to Defraud under Section 407(1)(b) of the Criminal Code Act?
   

THE LAW

6. I do not have the supremacy to test police evidence but my jurisdiction is to evaluate evidence in the police file and determine whether the contents are sufficient to commit the Defendant. My authority is derived from Section 95 of the District Court Act. I will repeat the Law hereunder:

95. Court to consider whether prima facie case.

(1) Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.

(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division.

EVIDENCE

7. The Laws on the prominence of evidence is found in Police v Kimisopa [2021] PGDC 76; DC6031, that evidence should be applicable and timely by satisfying all the elements of the allegation. The same approach is adopted in the case of Police v Medako [2021] PGDC 54; DC6011 where the court says prosecution evidence must establish to the approval of the court that elements of the alleged offence are met.

ELEMENTS OF THE CHARGES

8. In Police v Toua [2020] PGDC 44; DC5032, the court adapted the high court of Australia’s decision in Greene v R [1949] HCA 55; (1949) 79 CLR 353 (6 December 1949), by recognizing the succeeding as the elements of the offence:

a) False Pretence - Section 404(1)(a):

a. that there must be a false pretence;

b. that the defendant must know that the pretence was false;

c. that the property must be obtained by means of the pretence;

d. and that there must be an intent to defraud.
In Police v Kimisopa [2021] PGDC 76; DC6031, the court classified the elements
of Conspired to Defraud as below:

a) Conspired to Defraud-Section 407(1)(b):

a) A person who,

b) Conspires,

c) with another person—

d) to defraud

e) the public,

f) or any person (whether or not a particular person)

Police file

9. Prosecution evidence is all netted in the police file in the form of documents from the Lands Department, banks and witness statements. I will momentarily enlighten Police witness statements as revealed in the police file as how it was presented here:
   

Dr Jacob Simet

10. This witness says the house which is the subject of this proceeding was previously occupied by an Englishman named Professor Andrew Strathen. Witness says in 1986, he moved in the houses when the previous occupant moved out and subsequently paid rentals to NHC as an occupant. Witness further says in 1986, the Government of PNG decided on the home ownership scheme and thus the property at Section 46, Allotment 30, Moru street at East Boroko in NCD was sold to him at an amount of K33,000, which was the market value at that time. This witness says, due to work commitment he did not follow up on the title but his ex-wife was living on the property until in June 2019, he was informed the property was bought off by another person. Witness confirms he has all the documents to prove he owns the property.

Antoinette Rumet

11. This witness says she was married to Dr Jacob Simet and lived in the property until 2003 where they separated. She says after separation with her husband she continued to live in the focus property until in 2005 she remarried a policeman and they continue to live in the property but rented out to Francis Marus a politician in 2008, and she went to live with her new husband until in 2019 she found out that Defendant had allegedly sold the property to the Complainant.

Florian Luvi

12. This witness says he is a policeman and on Saturday 22^nd June 2019, he followed his wife to Section 46, lot 30, Moru street in East Boroko, NCD and found out that a new tenant was staying in the property. Witness says when he enquired he was informed that he bought the property from the Defendant with K600,000. Witness says attempts to have the Defendant questioned on how he sold the property were futile as the Complainant could not identify the Defendant.
    

Clement Paubali

13. He is the Complainant and he was searching for a property to buy and on 12^th February 2019, he signed a contract of sale between the Defendant and Kina Bank for the purchase of property at Section 46, lot 30, Moru street in East Boroko, NCD. Witness says Defendant had purportedly presented him a tile copy of the property by deceiving him that he was the landlord. Witness then says after effecting the contact of sale and payment, he moved to the property with his family until to his surprise, he was comforted by two other witnesses that the property was deceptively sold to him by the Defendant.

Able Tol

14. He is the Acting Principal Legal Officer for NHC and his statement confirms the subject property is an unregistered lease granted to NHC under Gazette No G68/10/1989. Witness says Dr Jaob Simet completed the payment of the property through salary deductions under government sell off housing scheme with K32, 948.35, on 30/10/2016. Witness says the property has no title, however, on 16/01/2019, NHC transferred to property Joe Mur.
    

Robert Eleme

15. This witness is a freelance real-estate agent who was involved in the setting up of Defendant and victim to meet and negotiate for the property. Witness says he witnessed the transaction between the Defendant and Complainant which eventually led to the property being sold to the Complainant by the Defendant.
    

CONSIDERATION OF EVIDENCE

16. I have considered the evidence and found out that the property at Section 46, allotment 30, Moru street in East Boroko, NCD is a lease granted to NHC by state through Gazee No 19/10/1989. However, prior to thi in 1986, the Government of PNG decided on the home ownership scheme and thus the property at Section 46, Allotment 30, Moru street at East Boroko in NCD was sold to Dr Jacob Simet at an amount of K33,000. The amount was through his salary deduction. It is evidence that the sold amount was fully paid off by Dr Jacob Simet. However, although the payment was paid in full, title was not transferred by state to Dr Jacob Simet. I would accept the reason why title was not transferred because Dr Simet travelled a lot both internal and international due to his work commitments.
    
17. NHC document shows there is a new Gazee No G622 issued on 28^th September 2018 on the same property. NHC documents also display through form 1 of 98 on 16^th January 2019, that there was a new contract of sale with Joe Mur and transfer to Joe Mur.
    
18. My evidence suggests the said property was sold to Dr Jacob Simet by State and he devotedly paid off all the advance through salary deductions. This was done through an initial Contract of Sale in which the property was sold to him followed by a gazette No G68 OF 19/10/1989.
    
19. However, further evidence shows the Defendant and his other co accused had a meeting with the Complainant and signed off the settlement paper. Defendant and his co accused then directed the Complainant to have the sum of K514 896.23 paid to Marine Holdings Limited, a Company allegedly owned and operated by the Defendant and he is also a sole owner.
    
20. The transferring of title and other documentations are mere paperwork. However, at the time when the new contract of sale was signed by the Defendant and NCH, the property had no title. Evidence before me suggests, the property was bought off through a salary deduction by Dr Jacob Simet. Defendant should have enquired with NHC about the history of the property and known much about the property, nevertheless, if he did then he should have known who paid off he property. Mere possession of property is another thing but buying off the property value is another thing. The former could be considered in terms of equitable interest and later is in legal interest. My evidence suggests. My evidence concludes, the original tenant in which the title should have been awarded is Dr Jacob Simet, he has all equitable interest and rights while it’s a work in progress to only transfer the title.
    
21. A property that has no title in places like Port Moresby may not be free, there could be issues why title was not issued or perhaps they are slowly progressing to acquiring one. Otherwise these properties are occupied by people. My evidence shows the manner in which a new Gazette No G622 of 28/09/2019 issued by NHC on the existing Gazette No G68 of 19/10/1989, is fishy and raises a lot of query as to the rectitude and transparent by NHC in dealing with property and property owners.

Consideration of the elements of the offence of False Pretense

22. An allegation of creating a premeditated declaration with determination to deceive the victim by obtaining title to the particular property which was owned by the victim. The court’s attitude in State v Kendi [2006] PGNC 139; N3200 (4 July 2006), is Prosecution needs to demonstrate with evidence Defendant obtained the title of the allegation in the indictment by false pretence with the objective to deceive the property owner. Moreover, in R v Williams [1836] EngR 545; (1836) 173 E.R. 158, the court says the accused should perceptively obtain the property that his actions are dishonest. While applying the principle in State v Kende[i] and R v Williams[ii] in the current case, there is evidence that the Defendant while attaining Gazette No G622 of 28/08/2018, knew that there was an old Gazette of G68 of 19/09/1989, in which the Dr Jacob Simet was paying rentals.
    
23. The court must satisfy Defendant with intent to defraud the victim by obtaining the property as is reliable with State v Tobena [2014] PGNC 307; N5601 (12 May 2014). The attitude in State v Pati [2018] PGNC 113; N7186 (14 March 2018) is there must be a pre-meditated crafty blueprint of deception which was magnificently accomplished occasioning in the loss of property. Therefore, I am satisfied the evidence presented is satisfying the elements of False Pretense.

Consideration of the Offence of Conspired to Defraud

24. Police v Kimisopa [iii] court made it clear the evidence must be direct that Defendant had conspired with his co accused to have the property stolen. The principle in this case also extends to photo exhibits showing Defendant and his co-accused were together and planned to steal from the victim.
    
25. Evidence shows, on 26^th April 2019, the Defendant and his co accused were together and signed the settlement deed. On the same date a Kina bank cheque of K514,896.23 was raised and made payable to a company allegedly owned by the Defendant. However, K40,000 of the money was withdrawn as advance payment and it was later shared between the Defendant and his co-accused. There is evidence Defendant Conspired with his co-accused and defrauded money belonging to the victim in the sum of K514,869.23. Therefore, the elements of the offence of conspiring to Defraud is sustained.
    

RULING

26. The evidence before me designates there is an allegation of False Pretence purportedly caused by the Defendant when he deliberately changed the title under his name when knowing very well the property was paid off by Dr Jacob Simet. I have evidence to fulfill myself that there is a premeditated plan by the Defendant which resulted in the change of title and eventually ended by selling the property to the Complainant which later turned out to be a fraud. Therefore, there is evidence Defendant obtained by false pretense property of the Complainant money in the total sum of K514,869.23.
    
27. Moreover, there is sufficient evidence Defendant conspired with another and sole form the victim.

CONCLUSION

28. There is enough evidence against the Defendant which are sustaining the elements of the offence of False pretense under Section 404(1)(a) and Conspired to Defraud under Section 407(1)(b) of the Criminal Code Act.
    

ORDERS

29. I consequently make the ensuing closing orders:
    
    1. Evidence is sufficient to commit the Defendant for the charge of False Pretence under Section Section 404(1)(a) and Conspired to Defraud under Section 407(1)(b) of the Criminal Code Act.
       

Public Solicitor For the defendant

Police Prosecutor For the State

[i] [2006] PGNC 139; N3200 (4

[ii] R v Williams [1836] EngR 545; (1836) 173 E.R. 158

[iii] [2021] PGDC 76; DC6031