Police v Menjep [2021] PGDC 153; DC7008 (27 October 2021)

DC7008
Papua New Guinea

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

COM NO 1081 OF 2020
CB NO 3552 OF 2020

BETWEEN:

THE POLICE
[Informant]

AND:

NASON MENJEP
[Defendant]

Waigani: Paul Puri Nii

27th October 2021

COMMITTAL PROCEEDINGS: Charge-Dishonestly Applied-Section 283A(1)(a) –Criminal Code Act. Witness testimonials- Police file- establishes on prima facie evidence - elements of the offending charge –Evidence is sufficient- Defendant committed.

PRACTISE AND PROCEDURE: Contemplation under Section 95(10 of the District Court Act. Calculation of evidence to confirm its adequacy.

PNG Cases cited:

Nil

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
In person: Nason Menjep For the Defendant

RULING

27^th October 2021

INTRODUCTION

NII, P.Paul Magistrate. My decision under Section 95(1) of the District Court Act. The Conclusion is in respond to the Police case and submission protesting to the sufficiency of Police evidence filed dated 14^th April 2021.

CHARGES

1. Defendant is charged under Section 383A (1)(a) of the Criminal Code Act. The particulars of the charge and wording is shown 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

2. 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 the title was transferred to the Complainant’s son by the name of Stanley Leo.
   
3. Police allege on14th March 2012; the subject property was sold to the Defendant by Paul Yangare. 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 a funeral.
   
4. It is alleged in 2008, the Defendant bought the property from Paul Yangare and he later sold the same property to a woman called Janet Dickson which she went and changed the title name with Lands department.
   
5. Police allege that at the time when the alleged offence purportedly took place, the Defendant had no title to the property nor the alleged seller. The Property had the name Stanley Leo on the title.
   

ISSUE

6. Whether or not there is sufficient evidence to commit the Defendant.

THE LAW

7. 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

8. Police evidence is delivered by witness statements in the police file. There are overall five (5) State witness giving evidence against the Defendant, their designations 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- he is the Complainant’s son and his statement is about his ownership of the property where his father the complainant transferred the title to him and how he heard and saw the allegation.
        
   4. Henry Dabiri- He is a police corroborator who was with the police arresting officer and his evidence is about how the Defendant was interviewed by Police.
      
   5. Robert Mark-he is the police arresting officer and his statement is about how he arrested the Defendant and interviewed her and what the Defendant declared in her ROI.
      

ELEMENTS OF THE CHARGES.

9. 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

10. Defendant says he was wrongly arrested and charged for the offence of misappropriation of property. Defendant says Paul Yangare was the person who was initially given the property by the Complainant to look after and not Defendant.
    
11. Defense argued he had no knowledge that the land was owned by the Complainant until he found out after he was arrested. Defendant says he thought the land was customary land after he bought it off from Paul Yangare.
    
12. Defendant thus says he is not the person who fraudulently applied to his own use the victim’s property and thus asked the court to dismiss the allegation against him.
    

DELIBERATION OF EVIDENCE

13. There is evidence that Defendant bought the property from Paul Yangare with K14,000 and later sold it to Janet Dickson with K25,000. However, due to some rental arrears, the property was initially sold to Janet Dickson at K23,000. Defendant says he thought the property had no tile until he was informed by Leo Make after 4 -5 months when he bought off the property form Paul Yangare. Defendant before selling the property to Janet Dickson, he knew he had no title to the property. However, evidence suggests, due to criminal activities and water problems, he sold the property to Janet Dickson.
    
14. Defendant stated at question 25 of his record of interview that he communicated with the Defendant that he was trying to sell off the Property. Defendant knew very well the property was not his and at the same time Complainant had the title under his name but why sell it off to another person? The honorable thing the Defendant could have done was to give the property back to the Complainant and ask him to refund his money or asked Paul Yangare to refund his money after finding out that Paul Yangare had no title to the property.
    
15. Evidence shows Defendant informed the complainant that he was trying to sell the property. Although there was communication taking place, there is no evidence before me that shows the Complainant agreed or consented to the idea of having his property sold by a person who had to title to another woman.
    
16. 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.
    
17. I appreciate the Defendant’s position where he thought the property was customary land and also he had no idea that Complainant had the title, Defendant failed to negotiate with Paul Yangare about why he sold the property to him when he had no title after complainant told the Defendant he had the title. Defendant to my understanding had failed to stop the wave of passing procession from person to person.
    

RULING

18. Defendant admitted that he had no title to the property. However, evidence suggests Defendant had been identified by the Complainant as the person who deceitfully sold the property to Janet Dickson and he got the money for his own use even after Complainant told him that he is the owner and had the title under his name.
    
19. The criminal burden of liability to my assessment is not only limited to the purported initiator of any alleged wrong doing but extends to any associates, aids, advocates, interests and persons who are either directly or indirectly knowingly facilitating the transaction to effect the wrong doing. Here, I have evidence to satisfy myself, Defendant while being informed by the Complainant that he was the owner, went ahead and sold the property to Janet Dickson.
    
20. The Defendant thus facilitates and advocates in the crime of illegally selling a property to another in the presence of the owner. Why sell the property to another person while knowing very well when the Complainant/owner told him he was the owner? The Defendant to my knowledge has extended, advocates and facilitates the crime of misappropriating property to another person who is Janet Dickson.
    
21. Not knowing the Law and crime could perhaps be mitigating factors in sentencing but willful disobedience of the law is not an excuse. Evidence well before me showing Defendant sold the property even after being told by the Complaint he had the tile.
    

CONCLUSION

22. I have read the evidence in the police hand up brief and am satisfied the evidence is sufficient to commit the Defendant for the allegation of Misappropriation of property under Section 383A(1)(a) of the PNG Criminal Code Act. The Evidence meets the elements of the allegation that Defendant is the person who fraudulently applies money which he obtained from the proceeds of the victim property for his own use the property owned by the victim.
    

ORDERS

23. 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

C) Matter adjourned to 3^th November 2021 at 9.30 am for administration of statement under Section 96 of the District Court Act.

D) Defendant’s Bail extended.

In person For the defendant
Police Prosecutor For the State