Kraip v Kile [2022] PGDC 74; DC8077 (11 May 2022)

DC8077

Papua New Guinea

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

NCC NO 963 OF 2021

BETWEEN:

JOSHUA KRAIP
[Informant]

AND:

JOE KILE
[Defendants]

Waigani: Paul Puri Nii

11th May 2022

COMMITTAL PROCEEDINGS: Charge-False Pretense-Section 404 of the Criminal Code Act. Witness declarations- State indication- appropriate development of prima facie evidence - elements of the charge persistent –Confirmation is equal- Defendant committed to stand trial.

PRACTISE AND PROCEDURE: Calculation of evidence under Section 95 of the District Court Act. Defendant admitted having an arrangement with the Complainant in which he got a car and some money but denied that his action was to deceive the Complainant-elements of intention and premeditation. Evidence of false pretense. Elements of the offense sustained.

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
Public Solicitor: Otto Dekas For the Defendant

COMMITTAL RULING

11^th May 2022

INTRODUCTION

NII, P. Paul Magistrate. Decisions on committal under Section 95 of the District Court Act after arguments from parties are considered. Accused’s Lawyer argued evidence is lacking to commit the defendant while the police prosecutor says evidence is sufficient and hence is my ruling on the parties’ arguments regarding the weight of file evidence. Defense says it’s a case of breach of agreement while prosecutor says defendant’s action had attracted the offence of False pretense.

CHARGE

1. The alleged Offender is charged under Section 404(1) of the Criminal Code Act. The specifics of the charge are exposed 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.

BRIEF PARTICULARS

2. Police says Defendant is aged 46 years and of Giu village of the Sinesince district of Simbu provide who was on 18^th March 2019 me the Complainant who was the owner of a hire car and hired her vehicle to the Defendant for a period of three months. Police says the amount accrued for the period of hire was K17,900 but the defendant did not pay his dues and instead went into hiding.
   
3. Police allege that the defendant was taken to the police station several times for the Complainant’s outstanding to be paid but the defendant kept on making empty promises until he was arrested and charged under Section 404(1) of the Criminal Code Act for obtaining a service provided by the Complainant though false pretense.
   

ISSUE

4. The question of evidence is impressive here and that is whether or not there is suitable evidence to commit the Defendant for the emphasis allegation.
   

THE LAW

5. The court will trust on Section 95 of the District Court Act and make a ruling on police evidence. The focus law is petitioned 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

b. who by a false pretence or 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 chattel,

g. money or valuable security.

EVIDENCE

Police case

6. Police evidence is in the police file served on 15^th December 2021. It encompasses victim and witness statements including the ROI and other exhibits and evidence.
   
7. List of police evidence:
   

No	Name	Particulars	statements
1	Carol Pora	Complainant	She claims the defendant owes her a total of K17, 299.00 for the hire car and Lending of K17, 900. Witness says she was introduced to the defendant by another woman from Sepik who works with the defendant in the same department on the 18th of March 2019. Witness says on the date the defendant borrowed her K1,500 cash and hired her Toyota camry. Witness says after some time the defendant did not repay the money and the arrears accrued to K17,900. However, witness says the total outstanding defendant repaid was K5,000 and thus he agreed that the balance would be written off. Witness says her only concern is about the hire car debt, although the defendant paid K2,0000, he still has an outstanding of K17,299 which he has been lying and going into hiding leaving the hire car balance unpaid. Witness says her concern is about the unpaid hire care money. Witness says Defendant had been continuously lying and giving reasons by not paying up the debits until he was arrested by police.
2	Agnes Morris	Witness	This witness says the defendant is her colleague whom they were employed under the same department. She says she was the one who introduced him to the Complainant and subsequently Complainant borrowed some money and hired the Complainant’s car.
3	Joshua Kraip	Arresting officer	Witness says he is the arresting officer who arrested the victim for the initial offence of False Pretense.
4	Stanley Billy	Policeman/ corroborator	Police witness who corroborated the ROI.
5	Ashley Waula	Policeman-	Witness says he is a policeman and he had witnessed an undertaking signed by the defendant and the Complainant at the Police station on the 23rd June 2020 whereby the defendant promised to repay the debt he owed to the Complainant.

Defense case

8. Defendant through his Lawyer submits that it was an agreement signed between two people for one to provide service and other receiving party to pay for the provided services. Defendant submits that he had no intention to steal and the deal was civil agreement between him and the Complainant which the Complainant then turned it into a criminal allegation.
   
9. Defendant had also argued that the fact that that defendant had repaid some of the money to the defendant shows it was a genuine contractual agreement between him and the Complainant and thus there was no element of the crime of false pretense. Funded on the above, defendant argued that the information containing the charge was defective and thus it does not make a prima facie case against the Defendant and thus asked that the charge be dismissed.
   

DELIBERATION OF EVIDENCE

10. There is no issue about an agreement to provide service by the Complainant and the service was to be consumed by the defendant. Evidence shows on 18^th March 2019, the above arrangement was effected and thus defendant was given a car by the complainant together with K1,500 for monies he borrowed from the Complainant.
    
11. Evidence shows an invoice was submitted to the Defendant to settle or pay for the services provided by the Complainant and Defendant thus paid K5,000 for the money he borrowed and K2,000 for the hire car. The Complainant says she would not pursue her interest on the money but wanted the defendant to pay for the service provided by the hire car at an amount of K17, 299.
    

RULING

12. This is an agreement between the defendant and the Complainant in which the defendant used service provided by the Complainant and later the Complainant would be remunerated by the Defendant. Under what circumstances would a matter which is civil in nature could attract the criminal burden of proof? In order to explain the circumstance, I will define what the offence of false pretense is. The Oxford law dictionary in short defines “False Pretense” as any behavior intended to deceive others. Having this definition at hand, the next question is did the defendant in any way expressed behaviors that intended to deceive the Complaint when the Complaint asked him to repay her money?
    
13. On 23^rd June 2020, there was an undertaking made by the Defendant that he would pay for the money he owed to the defendant at an amount of K17, 299. Paragraph 7 of the Complainant’s statement to police dated 30^th June 2021 says Defendant’s cheque was cleared on 14^th January 2021, perhaps after 7 months of undertaking to repay the debt but defendant instead flew to his village without repaying the debt. Evidence shows when the victim called the defendant he did not pick up her call, however, evidence shows the defendant replied to the Complainant’s text that he would repay her money after he returns to NCD but that did not happen.
    
14. Given this, did the defendant’s action attract the offence of false pretense in which the defendant had shown behavior intended to deceive the Complaint? Not honoring the undertaking of 23^rd June 2020, not picking up the phone and not repaying the debit after coming to Port Moresby by the defendant displays Defendant had purposely uttered conducts to mislead the Complainant and thus the answer is ‘yes’. Evidence displays defendant has a case to answer for the charge of false pretense hence police evidence is satisfying the elements of the charge under consideration.
    

CONCLUSION

15. Consequently, under Section 95(1) of the District Court Act, I rule that police evidence is satisfactory to make a prima facie case against the Defendant for the charge of False Pretense under Section 404(1)(a) of the Criminal Code Act.
    

ORDERS

16. My Orders:

1. Evidence is sufficient to commit Defendant Joe Kile for the charge of False Pretense under Section 404(1)(a) of the Criminal Code Act.
   

b) Defendant is committed to stand trial.

c) Defendant’s bail is extended.

Public Solicitor For the defendant
Police Prosecutor For the State