Police v Meria [2021] PGDC 174; DC7014 (15 September 2021)

DC7014

PAPUA NEW GUINEA

[IN THE CRIMINAL JURISDICTION OF THE DISTRICT COURT]

Case No. of 711 of 2020

BETWEEN:
THE POLICE
[Informant]

AND:

MEK MERIA & MARK SEL
[Defendant]

Waigani: Jacinta Yoshida Doa

2021: 15^th September

CHARGE: - Uttering false documents and counterfeit seals -s463(2) of the Criminal Code Act 1974-Has the Police delivered a prima facie reasonable evidence to commit Defendants to stand trial in the National Court.

PNG Cases cited:
[2010] PGDC 28; DC 1038 (8^th April 2010)

Overseas cases cited:
Nil
Legislations:
Criminal code Act 1974 Chapter 262
District Court Act, Chapter 40

Counsel
Police Prosecutor: Sgt Regina Kilip For the Informant

Defendants in Person.

RULING ON SUFFICIENCY OF EVIDENCE.

1. INTRODUCTION
This is a ruling on sufficiency of Evidence after Police Hand up Brief has been completed and served on Defendants.

2. CHARGE

The Defendants are charged individually as “A person who knowingly and fraudulently utters a false document or writing or a counterfeit seal is guilty of an offence of the same kind and is liable to the same punishment as he had forged thing in question” under s 463(2) of the Criminal Code Act 1974 of Papua New Guinea.

3. The Information contains the charge as “Did Knowingly and Fraudulently Utter False Documents to??? With IPA Extract, IPA Certificate, Statutory Declaration For Purposes Of Making Changes On The Investment Promotion Authority; I consider these as elements instituting the charge.

4. FACTS
These are allegation that Defendants Mek Meria and Mark Sel did knowingly and fraudulently uttered and lodged falsified documents with IPA resulting in changes in the original IPA documents. Following the changes resulted in an article printed on the 29^th June 2020 at page 20 of Post Courier announcing the New Chairman of Kewapa Landowners Association Inc. The Complaint learnt of the changes upon reading the said article and proceeded to compile an information laid on the 24^th July 2020.The accused and co-accused were subsequently arrested and charged. They are on Bail.

5. ISSUE
The issue now is whether a prima facie case is proven thus whether police evidence in the Police Hand Up Brief is agreeable to commit the Defendants?

6. THE LAW
The Law on Committal Proceedings
Committal Court is a court of controlled jurisdiction where it’s reigning powers are derived from enabling legislations the District Courts Act s94-100 sets out the basis for committal proceedings.

7. The case of Maela vs Yahamani provided the foundation for committal hearings

“This Court may act as a cleaning process where it filters evidence to ensure there is a case on merit that would warrant a trail proper. At this stage the court will measure the strength and weakness of charges. If the charges are not proper and if the evidence does not support the elements of the charge, then the court may strike out the charge. On the other hand, if charges are supported with evidence then matter will be committed or sent to the National Court.”
8. THE OFFENDING CHARGE -

Criminal Code Act s463(2) “A person who knowingly and fraudulently utters a false document or writing or a counterfeit seal is guilty of an offence of the same kind and is liable to the same punishment as he had forged thing in question”

PROSECUTION CASE
9. The Police Hand Up Brief was served on the 11^th September 2020. This File is made up of the Police File.

WITNESS STATEMENTSs

10. Mr Albert Tundu – witness is the Complaint who is said to be Chairman of Kewapa Association and He will testify about how uttering has been committed and changes of his position under Kewapa Land Association Inc and steps he took to address the issue.

11. Mr Albert Tundu Filed an Affidavit on the 5^th May 2021-Complaint relies on documents in relation to formation of the association, his appointment, constitution, copies of Court Orders and affidavits from the National Court dated 8^th May 2018 ordering Defendant to be a party to a case involving Hides PDL7 landowners-OS 1101 of 2017. A additional Order dated 28^th June 2018 then dismisses OS 1101 of 2017 and that order is registered as OS 1011 of 2018.

POLICE STATEMENTS

12. Senior Constable Ninji Nisia (Investigator)- He is investigating Officer and state witness will testify on the conduct of the Record of Interview, Arrest and Identify the Accused.

13. Constable Albert Muikin - State witness who will corroborate and testify on the conduct of record of Interview.

14. Prosecution case is made up in the Police Hand Up Brief which consists Complaint’s statement, copy of original IPA of Kewapa Landowners Association Inc. page 16,
Documents lodged at IPA by Defendants to effect changes to original IPA document to replace Complaint at pages 17-28 & pages 31-34 of, Letters of advice alerting relevant government agencies (DPE & IPA) by Complaint (pages 29 & 30) of the Police File and Record of Interview. This Police File which supports the prosecution case against the Defendants.

15. Under the District Courts Act the law requires the court to assess the evidence after it was served on the court. The Court will proceed to make a ruling on the sufficiency of evidence on whether to commit defendant or not. The Defendant is also given an opportunity to respond on the evidence on the Police File.

16. The Defendant has filed a Submission on Insufficiency of Evidence filed on the 8^th December 2020 and Affidavit of Mek Meria on 11^th November 2020 which now forms the Defence case. The submission comprises of the analysis of Complaints statements, Evidentiary Documents at pages 16-34 of the Police File and record (ROI) of interview in the Police Hand Up Brief.

17. DEFENCE CASE
The Defence raised two (2) grounds

(a) The Defence submits that Complaint statement and documents lacked evidence that there was NO intention to utter/use false documents to make changes at IPA

(b) The Police File lacked sufficient evidence to establish elements of the Charge under Section 463(2) of the Criminal Code Act.

18. In brief the Defendants strongly submit that Police evidence in the Hand Up Brief be dismissed for being insufficient to make a case against the Defendants.

19. CONSIDERATION OF THE DEFENCE CASE

I respond to Defence submission follows;

(a) Defence raised two (2) grounds that all evidence enclosed in the Police file be dismissed due to lack of evidence to prove intent to utter and insufficiency of evidence that documents used to effect changes at IPA are false or fraudulently obtained.

(b) The Court had read all evidence in the police file comprising the information covering charge. The Defendant is charged under s463 (2) Criminal Code Act Intention to utter false documents.

(c) The Courts’ duty is to make an assessment on the issue of whether the witness statement and evidence in Police File substantiate the elements of the Charge. All witness statements should give effect to the allegations and to be proven in court by material evidence. The Defence submit that the evidence is insufficient;

(d) The wording of charge is misleading when it appears to indicate the Defendants had false IPA extract and Certificate when these documents are produced by IPA.

(e) Documents used to change IPA records are Meeting Minutes and Statutory Declarations that stated Albert Tundu was voted out as Public Officer by members of Kewapa Association members.

(f) Albert Tundu is not the Chairman of Kewapa Landowners Association due to passing of Minute Resolutions passed by members to replace him due to his absence or nonperformance.

(g) Changes done purposely to maintain uniformity in the Name of Association recognized DPE in addition previous Chairman’s like Michael Papaya and Peter Homai used the same name in deposed to Mek Meria’s Affidavit dated and filed 11^th October 2020.

(h) There was no criminal intent on the part of the Defendants, they submitted Complaint laid charges because He saw the Media making announcement of a K32.4 Million to be paid out to the Defendants,

20. I have considered these submissions and now have to access and weigh the evidence in the Police File.

21. EXAMINATION OF EVIDENCE IN POLICE FILE
I have read through the Police File consisting of Records of Interviews (ROI), Complaint’s Statement and evidentiary Documents and Police Witnesses Statements for both Defendants.
I have noted the following important issues regarding the weight and sufficiency of evidence of the Police File;

(a) The charge includes that IPA documents were falsified among other documents for purposes of making changes. There is no indication by witness statements or documents from relevant government officials or other relevant legal sources giving weight and supporting the charge.

(b) The Complaint is said to be a Chairman of Kewapa Landowners Association Inc. Being an Association all important agendas are addressed collectively and in agreement which is in contrast to the operation of a private company. There are No Statements from members of the Association apart from Himself or any meeting resolutions which would contain some indication or reference to the charge.

© The Defendants have given their reasons for the changes during the record of interview and later filed an Affidavit in court maintaining their position that the changes were made collectively and in agreement with members of the Kewapa Land Association Inc.

(d) The Complaint has failed to provide sufficient evidence that the Defendants have falsified the Documents in the Charge and made changes without the approval of Kewapa Landowners’ Association members.

(e) There is NO Evidence on the Police File to establish criminal intent. Thus there is insufficient evidence to commit this matter.

22. EVALUATION OF EVIDENCE OF BOTH PROSECUTION & DEFENCE CASE
I have considered the Defence case in detail and concluded that the evidence in the Police File is insufficient to support the Charge as a result failed to establish criminal intent.

23. CONCLUSION

I have considered the Defence case and Prosecution file on the issue of evidence and assessed both of them in accordance to the prevailing laws. Therefore, there is insufficient evidence for the charge of UTTER OF FALSE DOCUMENTS under s 463 (2) of the Criminal Code Act 1974.
24. ORDERS

There is insufficient evidence to commit Defendants and the matters be struck out and bail moneys be refunded.