Sikive v Michael [2021] PGDC 84; DC6041 (7 July 2021)

DC 6041

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]

COM 94 of 2021
BETWEEN

CONSTABLE JACKO SIKIVE

Informant

AND

MONICA MICHAEL
Defendant

Lae: L Wawun-Kuvi

2021: 10 February, 10 May, 14, 30 June, 7 July

CRIMINAL LAW-CRIMINAL PRACTICE AND PROCEDURE- COMMITTAL PROCEEDINGS- Evidence discloses breach of Contract- Whether there was criminality on part of defendant?

Cases Cited
Justelius [1973] 1 NSWLR 471

References
Criminal Code Act

Counsel

Police Prosecutor Sergeant Carol Gule

Lawyer for the Defendant, Mr Thomas Cook

7 July 2021

RULING

L Wawun-Kuvi, Magistrate:

1. In Megaraka v Duma^[1], I described land as follows:

“Land is more than a place. For our people in the village who live in harmony with the land and who toil the land for survival, it is so much more. It is more than a rock, a tree, a mountain, a river, or a sea. It is our ancestor, it is our future, it is our identity, our family and our culture. It is who we are. The spirits of our ancestors become it, are it and guard it. Blood continues to be shed as we sit here today applying colonist laws of land ownership. Without land we dissipate to nothing; with land but seeing it as nothing more than a money making opportunity, we become nothing more than a pack of stray mongrels shedding blood over a bone.

For people who have no cultural ties to land it is nothing more than commodity which is bought and sold. An asset to make profit from, a way to make a living off or simply a home. They have no relationship to it. This is what land acquisition has done to the indigenous people of the land.”

2. Unfortunately over the years indigenous people or ‘papa ground’ have shifted their perception of land and now abandoned cultural ties in favour of greed. Land has lost its value and it is easily given up for a few hundred or thousand kina. This is done foregoing all cultural ties and without sense that tomorrow’s generation will be beggars on their own birth right.
3. This is case is another of many that have progressed their way into the criminal courts because complainant’s feel that they have been wronged criminally. Because they keep paying money to different so land owners without enjoying the benefits of their money.
4. I find myself asking more to often whether these cases are criminal or civil. I proceed to looking at this case and making such a determination?

Submissions

5. Mr Cook other than submitting that the statement of one Masa Kanzok is inadmissible for not containing the certification clause, submits that this case is a civil case. His client does not dispute that money was received. She says in her interview with police that the money was for rentals. The defendant had already done improvements to the land.
6. Sergeant Gule concedes with Mr Cook and says that the case is a civil case of breach of agreement.

The Law

7. The Defendant is charged as follows:

Did by means of fraudulent trick namely promising to let Jack Yawing buy a block of land from her, obtained K5000.00 from Jack Yawing.

Thereby contravening section 406(1)(a) of the Criminal Code Act, Ch 262.

8. Section 406 reads:

“(1) A person who, by means of any fraudulent trick or device–

(a) obtains from any other person anything capable of being stolen; or...”

9. The leading case in the common law jurisdiction on this provision is the case of Justelius [1973] 1 NSWLR 471. In that case the defendant signed an agreement for an advanced subscription of books. The agreement was that he would keep the books for seven days following which he would either return the books or pay for them. The defendant failed to return the books and kept them. The Court acquitted of the charge of theft by trick because the complainant had intended to transfer both ownership and possession and that theft by trick only covered situations where only possession was intended to be transferred.
10. In other words if the owner intention is too only give up possession then the defendant cannot be guilty of the offence. In the cases where the owner intended to give up both possession and ownership the appropriate charge would be obtaining by false pretence.

The law as it applies to the present case

11. In this case, the complainant says that the money was given for payment of a parcel of customary land. He had entered into an oral agreement with the complainant for the purchase.
12. This is obviously not a case of obtaining property by means of a trick because the complainant intended to give both possession and ownership of the money to the Defendant. As said this would be more a case of obtaining by false pretence under section 404 (1) of the Code.
13. The elements of obtaining by fraudulent trick have not been established.

Is this a civil case or criminal case?

14. The K5000.00 was paid to the complainant on 25 June 2015. This is not disputed.
15. The evidence of the complainant states that he already moved onto the land after making payments and proceeded to build a permanent fencing and drive way.
16. It was on 4 January 2021 that he saw the defendant’s sons attempting to sell or lease the land to a third party. He took the defendant to the Malahang Village Court. As a result of the failure of the defendant to refund his money and costs he decided to make a criminal complaint.
17. The defendant in her interview with police says that the defendant owes her land rentals totalling around K15, 000.00 for five years. She waited and he made no attempts over the years so she told her sons to take back possession of the land.
18. The evidence as provided by police clearly indicates that this is a civil dispute. There was some oral agreement between the parties which caused money to be exchanged. The Complainant appears to be aware that the payment was to take exclusive occupancy with the conditions to pay some form of rentals. The complainant took occupancy in 2015 after money exchanged hands.
19. Whether or not the defendant has a right to cancel that occupancy or whether the complainant is entitled to damages is not a matter for this court to determine.
20. There is insufficient evidence to establish criminality on the part of the defendant.

Orders

21. The Orders of the Court are as follows:
    1. The Information is dismissed for insufficiency.
    2. The Defendant is discharged.
    3. The Defendant’s bail is refunded.

Lawyer for the Informant, Police Prosecution

Lawyer for the Defendant, Cook & Co Lawyers

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^[1] [2020] PGDC 15