Pii v Huduru [2022] PGDC 52; DC8055 (28 March 2022)

DC8055

Papua New Guinea

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

COM NO 1373 OF 2021
COM 1345-1346 OF 2021
CB NO 2761 OF 2021

BETWEEN:

JOHN PII
[Informant]

AND:

FREDDY HUDURU
[Defendants]

Waigani: Paul Puri Nii

28th March 2022

COMMITTAL PROCEEDINGS: Charge-False Pretense-Section 404(1)(a) and Escape from Custody-Section 22(1)–Criminal Code Act. Witness statements- State evidence- suitable formation of prima facie evidence - elements of the charge persistent –Evidence is equal- Defendant committed to stand trial.

PRACTISE AND PROCEDURE: Calculation of evidence under Section 95 of the District Court Act. Defendant admitted to commission of the offence-elements of intention and premeditation. Evidence of false pretense. Defendant committed on the count of false pretense. Evidence of escaping from lawful custody missing-this information is dismissed.

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: Joseph Sangam For the Informant
In person: Defendant For the Defendant

COMMITTAL RULING

28^th March 2022

INTRODUCTION

NII, P. Paul Magistrate. Conclusion on committal under Section 95 of the District Court Act. On 21^st February 2022, the accused asked the court to go through the police file and make a ruling. The similar attitude was undertaken by police and thus is my decision on police evidence.

CHARGE

1. Defendant is charged under Section 404 (1)(a) of the Criminal Code Act and Section 22(1) of the Summary Offences Act for False pretence and Escape from Lawful custody. The fundamentals of the charges are 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.”

BRIEF PARTICULARS

2. Defendant is aged 23 years old and of Togoba village of Hagen in the Western Highlands Province.
   
3. Police allege on or about 6^th September 2021, the Complainant Douglas Taiyabu saw a post on FB authored by the Defendant that he was renting out a house at Telikom Housing compound at Waigani.
   
4. The Complainant called the Defendant on the number provided on FB that he was interested in the house so the Defendant asked the Complainant to make an upfront payment of K2, 400.00 and collect the keys in the afternoon at VC shopping mall. The Defendant gave the Complainant an account number and asked him to make the deposits.
   
5. Complainant subsequently made the deposit as told by the Defendant and later he went to VC in anticipation that he would receive the keys to the house. However, Defendant was never there to be found. Several calls and attempts had been made for the Defendant to bring the keys over but were all futile, Defendant deliberately ignored all the calls.
   
6. Defendant was later going into hiding and thus a report was lodged with police and he was tracked down and subsequently arrested on 22^nd September 2021 and he admitted getting the money from the victim and also says he did similar tricks on another two people on some other dates.
   
7. The accused was subsequently arrested and charged pursuant to Section 404(1)(a) of the Criminal Code Act.
   

ISSUE

8. The enquiry of evidence is imperative here and that is whether or not there is suitable evidence to commit the Defendant for the subject allegation.
   

THE LAW

9. The court will rely on Section 95 of the District Court Act and make a ruling on police evidence. The law is pleaded below:
   

“95 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.”

ELEMENTS OF THE OFFENCE

a) A person who by a false pretence or

b) wilfully false promise, or

c) partly by a false pretence and

d) partly by a wilfully false promise, and

e) with intent to defraud

f) obtains from any other person any

g) chattel, money or valuable security

EVIDENCE

Police case

10. Police evidence is in the police file tendered to the court on 12^th October 2021. The file encompasses witness statements including proceeds of Defendant’s ROI.
    
11. List of police evidence:
    

No	Name	Particulars	statements
1	Douglas Taiyabu	Complainant	Witness says he was looking for a place to rent and was searching for it until he found an advertisement on FB about a house which was on rent at Telikom Compound at Waigani. Complainant says he later called the Defendant on the number provided on FB to ascertain the status of the house and to his surprise his call was answered by the Defendant by introducing himself as an elder of SDA church and he was putting his house on rent. Witness says him and his wife were happy after having spoken with the Defendant. Defendant then asked them to make an upfront payment of K2, 400 in a BSP account under a woman named Cathy Dimulu and told them to come and pick up the keys at VC. Complainant says they made the payment and subsequently proceeded to VC in the afternoon as discussed but Defendant was not there and instead he went to hiding. Police says the matter was reported to police and police used an informant (a young lady) as a bait to lure the Defendant and thus he was eventually apprehended by police.
2	Christabella Kivia	Witness	Witness claims she is the Complainant’s wife and says she was with the Complainant at the time when the Defendant was contacted. Her statement corroborates the complainant’s statement.
3	Cathy Dimulu	Witness	This witness says the Defendant approached her and told her that he would get some money from BSP as back pay payment and thus requested for her account and she gave her account details to the Defendant. Witness says later Defendant went and withdrew all his money by using an ATM. Witness says he never knew the Defendant’s motives for asking her account number until she found out from BSP security guards that her account was used in a fraud. Witness says only then she found out and gave her statement to the BSP security.
4	Steven Aua	Police Corroborator	Police witness who corroborated the ROI.
5	John Pii	Arresting officer-	Police arresting officer who did the initial investigation including the ROI .

Defense case

12. Defendant did not argue on the police evidence but instead concurred with the Police Prosecutor for the court to go through the police file and come up with a ruling.
    

DELIBERATION OF EVIDENCE

13. I have gone through the Police evidence and found out that between 3^rd and 6^th September 2021, Defendant posted on FB that he was putting his house up for rent. Evidence shows the FB post attracted people who were searching for a house at the time and hence the Complainant and his wife. Evidence shows there was communication between the Defendant and the Complainant and eventually there is evidence of K2,400 being paid by the Complainant to the Defendant on 6^th September 2021 through Cathy Dimilus bank account.
    
14. There is also evidence of other allegations against the Defendant in the committal court where their evidence is yet to be assessed. These allegations are uniform to the current allegation against the Defendant. Evidence shows at or around the time when the FB post was on, there were some people who made contacts with the Defendant and Defendant thus asked them to deposit some money into another bank account nominated by the Defendant himself.
    
15. The ROI shows the defendant admitted to the allegation that he asked the Complainant to deposit K2, 400 into Cathy Dimulu’s account. Defendant however says he needed money for school fees and thus came up with the idea of deceiving people and getting money for his school fees.
    

RULING

16. I have measured the evidence and noted that the Complainant’s evidence corroborates the other state evidence and also the ROI. Defendant admitted the allegation because he needed school fees and thus got the money from the Complainant. Therefore, evidence is well corroborated to attract Section 95(1) of the District Court Act.
    
17. If you need money to do something valuable that will benefit your future, then you seek money in an honest way. You ask people for money, some may be willing to assist and others may not. Otherwise, go back to your land and tilt the land, money is in the land, do something worthwhile and get money in an honest way. Resorting to illegal ways to pay for school fees is evil and unethical and moreover the knowledge that you may get by using the stolen money will be cursed and not do good to your life and future.
    
18. One cannot do something illegal to justify their purpose. However, the purpose must be lawfully justified.
    
19. However, on the charge of escaping from lawful custody under Section 22(1) of the Summary Offences Act, the Summary court will deal with it.
    

CONCLUSION

20. Consequently, under Section 95(1) of the District Court Act, I rule that that police evidence is adequate to make a prima facie case against the Defendant for the charge of Stealing by false pretense under Section 404(1)(a) of the Criminal Code Act.
    

ORDERS

21. My Orders:

1. Evidence is sufficient to commit Defendant Freddy Huduru for the charge of False pretence under Section 404(1)(a) of the Criminal Code Act.
   
2. Defendant is committed to stand trial.
   

100. Warrant issued for the Defendant to be remanded.
     

Public Solicitor For the defendant
Police Prosecutor For the State