Billy v Palme [2021] PGDC 157; DC7012 (17 November 2021)

DC7012

Papua New Guinea

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

COM NO 1357 OF 2019
CB NO 5832 OF 2019

BETWEEN:

STANLEY BILLY
[Informant]

AND:

KERRY PALME
[Defendant]

Waigani: Paul Puri Nii

17th November 2021

COMMITTAL PROCEEDINGS: -Charge- False Pretense -Section 404 (1)(a) of the Criminal Code Act 1974, Chapter No. 262. Assessment of evidence to establish a prima facie evidence meeting all elements of the allegation in which the Defendant is charged with to make a case against him.

PRACTICE AND PROCESS: Legal obligation for prima facie Case-Evidence base of the nitty-gritties of charge of Sexual Penetration–Police evidence and witness statement Defendant denied the allegation. Defendant argued that the allegation was framed up. Evidence is sufficient to commit the Defendant.

PNG Cases cited:

Police v Medako [2021] PGDC 54; DC6011 (31 May 2021)
Police v Koka [2021] PGDC 53; DC6010 (31 May 2021)
Police v Dunamis [2021] PGDC 121; DC6067
Police –v- Kauna [2021] PGDC 120; DC6075

Overseas cases cited:
Nil

References

Legislation

Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40

Counsel

Police Prosecutor: Joseph Sagam For the Informant
In person: Kerry Palme For the Defendant

RULING ON COMMITTAL

17^th November 2021

INTRODUCTION

NII, P. Paul Magistrate. My verdict is on the assessment of whether a prima facie case is correctly established inside the presentation of Section 95(1) of the District Court Act 1963. The assessment is done after the Police file and the Accused's opinions are sensibly considered. On 13^th September 2021, the accused submitted to the court evidence is insufficient to commit him. Police Prosecutor Joseph Sagam objected to the position taken by the accused and asked the court to commit the Defendant. I have attentively considered submissions from parties and now is my decision on committal.

FACTS

1. Police identified the Defendant as an adult male and a serving policeman in NCD who had a verbal agreement with the Complainant regarding a Toyota Camry Gracia which was left abandoned by the accused's relatives. Police say Complainant wanted to buy a car and thus Defendant asked her to buy the abandoned vehicle. Defendant then asked for some money for the spray paint on the car which was given as requested and spray faint was completed. However, police say transfer of registration was not done and when Complainant enquired about it she was falsely promised by the Defendant it should be done.
   
2. Police allege Complainant became suspicious of the Defendant’s actions and returned the vehicle to him and asked for her money to be refunded but Defendant did not return her money. Police further says Defendant deceitfully informed the Defendant that he would sell the car to her and obtained money in the sum of K1,000 and Complainant then spent almost K6,000 to fix the car only to be discovered it was a rip-off frolicked by Defendant to snip money. Complainant then reported the matter to Police and Defendant was subsequently arrested for False Pretense pursuant to Section 404(1)(a) of the Criminal Code Act.
   

CHARGE

3. Accused is charged under one count of False Pretence under Section 404(1)(a) of the Criminal Code Act 1974, Chapter No. 262. The charge is revealed below:

“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.

Penalty: Imprisonment for a term not exceeding five years.”
ISSUE

4. Whether or not evidence is sufficient to commit the Defendant for the allegation against him.
   

THE LAW

Jurisdiction of the court

5. I have the jurisdiction under Section 95 of the District Court Act. This provision is reinforced by Police –v- Dunamis [2021] PGDC 121; DC 6067 and Police –v- Kauna [2021] PGDC 120; DC 6075. I reaffirm my authority to hear this case below:
   

“ 95. Court to consider whether prima facie case.

(1)[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”.

ELEMENTS OF THE OFFENCE

6. The case of Police v Medako [2021] PGDC 54; DC6011, forms the foundation, that police evidence must satisfy the elements of the allegation of False Pretense.
   

Elements of false pretense under Section 404(1)(a) of the Criminal Code Act

a. A person

b. who by a false pretence or

c. wilfully false promise, or

d. partly by a false pretence and partly by a wilfully false promise,

e. and with intent to defraud

f. obtains from any other person

g. any chattel, money or valuable security

EVIDENCE

7. The allegation will only be proven through evidence as is the principle in Police v Koka [2021] PGDC 53; DC6010, and thus police evidence should satisfy the allegation against the Defendant. The court in the matter further went on to state that...(I quote) “An allegation will only be proven through evidence since it is the accessible body of facts or material designating whether the allegation against the Defendant is proper or made-up” ....(end of quote). Evidence in the police file tendered to court on 18^th August 2020, should corroborate the allegation, otherwise police evidence would be considered deficient to make a case against the Defendant.
   

PROSECUTION CASE

8. Police evidence is in the police file tendered to court on 18^th August 2021.
   

Police evidence in immediate:

No	Name	Particulars	Statements
1	Miriam Bob	victim	Her statement says she was informed of the car and she paid for the car. Witness says after discovering Defendant was lying she returned the vehicle and demanded for the money but Defendant did not and thus filed this allegation against him.
2	Sylvia Bob	witness	Witness says she was at home and witnessed Complainant planning to buy the car. Witnesses say she witnessed Complainant spent money to fix the car.
3	Sharon Jeff	Witness	Witness says she was told of the car after being brought from the Defendant. Witness says she also resides at the same location as the Defendant and witnessed the deal between the Defendant and victim.
4	SC.P. Otto	Corroborator	He is policeman was present with the arresting officer during the ROI
5	Stanley Billy	Arresting officer	Policeman who conducted the ROI and arrested and charged the Defendant

DEFENSE CASE

9. Defendant disputed the allegation saying the statement provided by Complainant is untrue. Defendant argues he had no evil intention when making the agreement with the Complainant. Defendant denies approaching the victim about the sale but says victim came and approached him and enquired about the car and so he says he had arranged for the Complainant to buy the car. Defendant apologized to the turn of events but argues he should not be held liable for the money when the argument was made with good intention and no element of criminal involvement.
   

CONSIDERATION OF EVIDENCE

10. Evidence of Complainant was that on 4^th June 2016, she was approached by the Defendant that he was selling a car which was a Toyota Camry. This witness says she was convinced by the Defendant and was thinking it was a genuine car for sale. Evidence shows the victim went and saw the Defendant’s wife about her interest to buy a car and this subsequently led to the agreement between Defendant and Complainant about the car.
    
11. Evidence then shows the victim went and obtained a bank loan of K17,000 with ANZ bank to buy the car and also the victim told the Defendant to inspect the property but did not happen as Defendant was busy. Evidence from the victim shows the car which Defendant claimed to be from his relative was in fact a stolen car which the victim had no knowledge of because of her interest to buy a car. Evidence also shows the car was owned by 2 people at the time of allegation and those were Defendant and Joshua Yawijah. Evidence also shows Joshua Yawijah was paid some money by the victim. Moreover, evidence shows the victim spent some money upon the Defendant’s directions on a mechanic and also spray paints for the vehicle.
    
12. Evidence shows the whole transaction between the parties was based on an agreement and thereafter the car was sold to the victim, however, upon her enquiry to change the registration, Defendant and Joshua Yawijah completely ignored her request. Why Defendant did not assist her in fixing the Registration? Defendant in his evidence says he has nothing to do in whatever arrangement the victim had with Joshua Yawijah. Evidence says the car was the Defendant’s relative’s car and also Defendant was paid his share by the Complainant. This shows Defendant has benefited from the car sales and therefore should have negotiated with his relatives whom he claimed as owners of the vehicle to have the title in the form of change of registration properly transferred to the victim.
    
13. Defendant is shifting the blame to Joshua Yawijah that he is not a party to whatever deals between him and the Complainant but evidence shows the car was left in the Defendant’s custody by one of his relatives and went to his village. This piece of evidence shows Defendant was involved in the deal involving the Complainant.
    

RULING

14. I am satisfied there was an agreement of sale of the car between the Defendant and Complainant in which a Joshua Yawijah later came to the scene. Based on the agreement, the Complainant paid some money to the Defendant and Joshua Yawijah. Complaint was authentic and honest to buy and own a car. The routine in which the Defendant approached the Complainant when she queried about the ownership and change of registration shows there is evidence of conduct projected to misrepresent the complainant. If the transaction was genuine, why would the Defendant shifting the blame to the victim that he had nothing to do? Registration of papers and owners follow immediately after a car is bought, not to delay or postpone. Defendant should have assisted the victim to effect change of ownership but this has not been done.
    
15. When the victim called the Defendant and Joshua Yawijan, both did not answer her calls nor explain anything about the car but went into hiding as if they knew nothing about the car and the victim in the first place. Defendant says he has no knowledge of the sale of the car as victim approached him about her interest to buy the car and not him went and told her, the issue is not about who approached who but about not responding to the change of ownership. Evidence shows Defendant and a Joshua Yawijan for reasons known to themselves have decided not to respond to the victim’s phone calls about the ownership of the car and money spent in the car. I am now satisfied to conclude Defendant knew what the car was like but did not disclose it to the victim for reasons known to himself and a Joshua Yawijah. Am also satisfied the condition of the car at the time of the agreement between the Defendant and Complainant was not communicated and explained appropriately to the victim for reasons known to the Defendant.
    

CONCLUSION

16. In the decision, it is evident the Defendant had a flawless familiarity about the existence of the Toyota Camry before the verbal agreement to effect sale was negotiated between him and the Complainant. Nevertheless, Complaint at the time was not informed of this and thus his actions amounts to behavior intended to deceive the Complaint. Therefore, evidence in the police file demonstrating a prima facie case meeting all the elements of the offence of False pretense that Defendant by false pretense and willfully false promise with intent to defraud obtained money in the value of K6,000 from the complainant.
    

ORDERS

17. My Final Orders
    

1. Evidence is sufficient to commit the Defendant

3. Defendant’s bail extended.

In person For the defendant
Police Prosecutor For the State

[1] Section 95(1) amended by No. 31 of 1980, s4.