Mark v Yangare [2021] PGDC 151; DC7006 (27 October 2021)

DC7006

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION

COM NO 394 OF 2021
CB NO 906 OF 2021

BETWEEN:

ROBERT MARK
[Informant]

AND:

PAUL YANGARE
[Defendant]

Waigani: Paul Puri Nii

25th October 2021

COMMITTAL PROCEEDINGS: Charge-Dishonestly Applied-Section 283A(1)(a) –Criminal Code Act. Eyewitness statements- Police Hand-up-brief- establishes on prima facie evidence - elements of the offending charge –Evidence is satisfactory- Defendant committed.

PRACTICE AND PROCEDURE: Observation under Section 95(1) of the District Court Act. Calculation of evidence to confirm its competence.

PNG Cases cited:

Law v State (2015) SC1450
Wartovo v State [2019] PGSC 55

Overseas cases cited:

NIL

REFERENCE

Legislation
Criminal Code Act 1974, [Chapter 262]
District Court Act 1963, Chapter 40

Counsel
Police Prosecutor: Peter Samghy For the Informant
Public Solicitor: Mange For the Defendant

RULING

27^th October 2021

INTRODUCTION

NII, P.Paul Magistrate. My conclusion under Section 95(1) of the District Court Act. The Decision is in answer to the Police case and submission remonstrating to the competence of Police evidence tendered on 12^th April 2021.

CHARGES

1. Defendant is charged under Section 383A (1)(a) of the Criminal Code Act. The specifics of the charge and wording are revealed below:

383A. Misappropriation of property.

(1) A person who dishonestly applies to his own use or to the use of another person–

(a) property belonging to another is guilty of the crime of misappropriation of property.

BRIEF FACTS

1. The Complainant was a former servant of Steamships shipping corporation but got retrenched in 1993. On 31^st May 1993, Complainant bought a property at Section 121, Allotment 05, Matirogo Street at Sabama in NCD. He bought the property from Mr Utu with K7,440 and subsequently title was transferred to the Complainant’s son by the name of Stanley Leo.
   
2. Evidence shows Mr Yangare is a relative of the complainant who was taken care of by the Complainant back in 1997 when he had no way to reside until in 2008 he decided to sell the property when the Complainant was away in his village attending to a funeral. Police allege that in 2018, Defendant sold the property to Nason Menjep who then sold the same property to a woman called Janet Dickson which she went and changed the title name with Lands department.
   
3. Police allege that at the time when the alleged offence purportedly took place, the Defendant had no title to the property. The Property had the name Stanley Leo on the title.
   

ISSUE

4. Whether or not there is adequate evidence to commit the Defendant.
   

THE LAW

5. My jurisdiction to rule on this is under Section 95 of the District Court Act
   

95(1). 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

Police evidence

6. Police indication in terms of evidence is delivered by witness declarations in the police file. There are overall five (5) State witness giving evidence against the Defendant, their descriptions are:
   
   1. Leo Make- he is the Complainant and his evidence contains what he saw.
      
   2. Catherine Leo-She is the Complainant’s wife and her evidence contains what she saw.
      
   100. Stanley Leo-The Complainant’s son whose name is now on the title copy.
        
   4. Kila Tali- Police corroborator who was with the arresting officer at ROI.
      
   5. Robert Mark- Police arresting officer who conducted the ROI
      

ELEMENTS OF THE CHARGES.

7. Elements of Misappropriation of Property
   

a) A person

b) who dishonestly applies

c) to his own use or to the use

d) of another person property belonging to another

Defense case

8. Defendant says land title was obtained in 2013 and thus argued in 1994, Compliant had no title to the property. Defense submits it is inappropriate to charge the Defendant for misappropriation in 2010 when the alleged property was not under Stanley Leo’s name.
   
9. Defense argues the land was bought off form the complainant with K600 in 1994. Defendant says he lived in the property for 13 years. However, the Complainant refused to transfer the title to the Defendant.
   
10. Defense submits in the case of Law v State (2015) SC1450 and Wartovo v State [2019] PGSC 55 that police evidence should satisfy the element of dishonesty, otherwise evidence is insufficient to commit the Defendant.
    

DELIBERATION OF EVIDENCE

11. I have considered the evidence and am satisfied that Defendant does not own nor had occupied the property before 1997. Evidence shows property was bought by the Complainant from a person named Uturu for K6,500, in 1993. Evidence shows Defendant was invited by the Complainant to stay with him when Defendant had no place to stay in 1997. Evidence shows in 2002, Complainant went to Wabag for his elder brother’s funeral. Complainant was away in Wabag for 8 years and in 2010 he enquired about his property. Defendant allegedly sold the property to a Mason Manjep form Southern Highlands Province in 2008.
    
12. I do not know why the Complainant was away for 8 years and started claiming the property in 2010, but for the 8 years there was no change on the title until 2013 when title was transferred to the Complainant. Evidence before me shows although there was no proper title the possession and custody of the property was shifted from Paul Yangare to Nason Menjep and later to Janet Dickson while the legal ownership was with the Complainant. Defendant may have equitable interest on the property for the reason that he had developed the same, there is no evidence that he acquired the title.
    
13. Evidence shows Paul Yangare was living on the Complainant’s property. Defendant’s Lawyer submits Defendant bought the property form the Complainant in 1994 for K600. This piece of argument is contradicting because Defendant was invited to come and stay with the Complainant in 1997 and that was the time he moved in, how come he paid K600 in 1994 and moved in with the Compliant in 1997? Did the Defendant wait for 3 years to move in? Moreover, the value of property bought by the Defendant in 1994 was K6,500 and not K600. I do not know why K600 was given to the complainant by the Defendant, was it a contribution by the Defendant to the Complainant to purchase the property or actual amount by the Defendant to buy the property, evidence is not clear.
    
14. Even though title was given to the Complainant in 2013, prior to 1997, Complainant was living in the property and thus the property was in his custody and procession of the Complainant. Defendant only became a caretaker after Complainant went to Wabag in 2002. Defendant was asked by the Complainant to come and stay with him when he had no way to reside while in NCD. I am interested in who was occupying the property before the Defendant and my evidence suggests it was the Complainant. Moreover, it was the NHC and lands recognized the Complainant as the rightful occupier of the property which was evidenced in issuing of the land title, not the Defendant. The first in time occupied prevails and thus evidence is such that Defendant has a case to be tried.
    

RULING

15. I have assessed police evidence with Defense submission and concluded evidence is sufficient to commit the Defendant for the offence of Misappropriation or dishonestly apply under Section 383A (1)(a) of the Criminal Code Act. Therefore, Defendant untruthfully relates to his own use of the victim's property.
    

ORDERS

16. My formal orders:
    

A) Evidence is sufficient to commit the Defendant for the charges of Misappropriation under Section 383(1)(a) of the Criminal Code Act.

B) Defendant is committed to stand trial

Public Solicitor For the defendant
Police Prosecutor For the State