Otto v Busi [2022] PGDC 80; DC9016 (22 September 2022)

DC9016

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS COMMITTAL JURISDICTION]

COM NO 1526-1527 of 2022
BETWEEN

PHILIP OTTO
Informant

AND

KAYLIN BUSI
Defendant

Waigani: O Ore Magistrate

2022: 22^nd September
      

COMMITTAL PROCEEDINGS – Conspiracy to Defraud – Section 407 (1 (b)) – False Pretence – Section 404 (1) Criminal Code Act Chapter 262- elements of offence – whether evidence is sufficient to commit defendant to stand trial in the National Court – Evidence Insufficient for Conspiracy to Defraud – Evidence sufficient for stealing by false pretence

PNG Cases Cited
Regina v McEachern [1967-68] PNGLR 48

Overseas Cases

References

Legislation
Criminal Code Act Chapter 262
District Court Act 1963

Counsel

Sangam J, for the Informant

Defendant in Person

RULING ON SUFFICIENCY OF EVIDENCE

22^nd September 2022

1. O Ore, Magistrate: Kaylin Busi (Defendant) now before this Court stands charged with one count of Conspiracy to Defraud under Section 407 (1) (b) of the Criminal Code Act Chapter 262 and one count of False Pretence under section 404 (1) (b) of the Criminal Code Act Chapter 262.
   
2. This is my decision on sufficiency of evidence after submissions were heard from both parties.
   

BACKGROUND

3. The incidents which occurred that gave rise to the charge took place between 01^st October to 31^st December 2020 and 01^st to 31^st January 2021. At that time the Defendant was working as a Migration Officer within the PNG Immigration and Citizenship Authority at Waigani.
   
4. It is alleged by Police that the Defendant conspired with another employee of the PNG Immigration and Citizenship Authority (PNGICA) one Dino Mas by submitting fraudulent documentation for payment of allowances and received a total of K14,800. The Police also further allege that the Defendant also by false pretence obtained a property namely money in the sum of K14,800 the property of PNGCIA.
   

Information

5. Two separate information’s were laid against the Defendant. The first information is for Conspiracy to Defraud under Section 407 (1) (b) of the Criminal Code Act Chapter 262 and contained the following charge:
   

“..Did conspire with DINO MAS to defraud PNG Immigration & Citizenship authority by submitting fraudulent documentation for payment of allowances for Bomana Immigration Centre (BIC) Operation in the month of October, November and December and January 2021 and hence obtaining a total of K14,800.00 through the said department.”

6. The second information is for the charge of False Pretence under section 404(1) (b) of the Criminal Code Act Chapter 262. This information contained the following charge:
   

“..Did by false pretence and with the intent to defraud obtain from PNG Immigration Citizenship Authority property namely money in the sim of K14,800.00 whilst on the pretext of being engaged in the Bomana Immigration Centre (BIC) Operations for several days within the month of October to December 2020 and January 2021 and with intent thereby then to defraud the said PNG Immigration & Citizenship Authority and Independent State of Papua New Guinea.”

ISSUE

7. Whether, the evidence in the Police Hand-up Brief is sufficient to commit the Defendant to stand trial in the National Court, for the commission of the alleged offences.
   

RELEVANT LAW

Section 95 of the District Court Act

8. The power of this Court to consider whether a prima facie case exists or not after a review of the evidence provided by the Police in the Hand Up Brief is provided for under Section 95 of the District Courts Act. Section 95 of the DCA states:
   

“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.”

9. In Regina v McEachern [1967-68] PNGLR 48, the standard of proof required is one below reasonable doubt. Elements of an offence need not be proven beyond reasonable doubt but rather checked to see if they are visible enough on first glance to warrant a committal to trial at the National Court.
   

Offending Provisions

10. The Defendant has been charged for Conspiracy to Defraud and False pretence under section 407 (1) (b) and 404 (1) (b) of the Criminal Code Act Chapter 262. Both these sections read as follows:
    

“407. Conspiracy to defraud.

(1) A person who conspires with another person—

(a) ..................; or

(b) to defraud the public, or any person (whether or not a particular person); or

(c) .....................,

is guilty of a crime.”

“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) .....................; or

(b) induces any other person to deliver to any person any chattel, money or valuable security,

is guilty of a crime.”

11. The evidence contained in the Police Hand Up Brief must show prima facie that the elements of both offences exist.
    

EVIDENCE

12. The evidence contained in the PHUB comprises of:
    
    1. Court Procedural Formats
    2. Statement of 11 Witnesses
    100. Record of Interview Conducted in English
    4. Documentary Exhibits
       

Witness Statements

1. Stanis Hulahau
   

13. Chief Migration Officer who is the Complainant in this case. He laid the Complaint.
    
    2. John Bria
       
14. OIC Task Force and Internal Investigator. He will testify on his investigation into the allegation.
    
    100. Bernadette Leahy
         
15. Legal Officer of the Department. She will testify on the search warrant served to the Department by the Police which she took carriage of.
    
    4. Patrick Repo
       
16. Accountant of the Department. He will testify on how he discovered the double payments made to Kaylin Busi and how he raised the matter to OIC Task Force/Internal Investigator to conduct investigation.
    
    5. Ivan Salonica
       
17. General Manager of Immigration Office at Jacksons International Airport. He oversees the operation of the Migration Officers at the Airport. He will testify in regards to Kaylin Busi at her work station at the airport from 01^st to 31^st January 2021.
    
    6. Alison Vahau
       
18. Senior Migration Officer attached at the Jacksons International Airport. He will testify about the overtime sheet Kaylin Busi submitted for overtime for the mont of November 2020 which he signed.
    
    7. Maryann Kai
       
19. She is a Senior Migration Officer based at the Jacksons International Airport. She will testify about Kaylin Busi been at work at the airport in the month of December 2020 and her overtime sheet been checked and signed by her.
    
    8. Thomas Auko
       
20. He is a salary officer within the Department. He will testify on the overtime sheets submitted by Kayleen Busi for the months of November and December 2020 and January 2021 which he did calculations for payments.
    
    5. Molly Korere
       
21. She is a salary officer within the Department. She will testify on the overtime sheets submitted by Kayleen Busi and he allowances paid for those overtimes.
    
    6. Nigel Gerson
       
22. He is the Acting Manager Field Operations in the Compliance and Enforcement Division in the Department. He will testify on Kayleen Busi never been engaged and listed for operations conducted at the Bomana Immigration Centre for the months of October, November and December 2020 and January 2021.
    
    7. Clarence Parisau
       
23. He is the former Deputy Chief Migration Officer Border Division. He will testify on Kaylin Busi working under him and at the Borders Division and never one time worked at BIC. Furthermore, he will testify on the overtime claims submitted by KAYLIN Busi which he checked and signed.
    
    8. Ongi Wek
       
24. He is the Police Officer who corroborated the Record of Interview conducted on Kaylin Busi. He will testify to that effect.
    
    1. Philip Otto
       
25. He is the Police man who conducted the investigation into the Complaint that as laid. He will testify on the investigation and eventual arrest and charge of the accused.
    

PROSECUTIONS CASE

26. The Prosecution’s case is that the evidence gathered by the Police through their investigations of which details are contained in the Police Hand Up Brief is sufficient to warrant her committal to the National Court to stand Trial.
    

DEFENDANT’S CASE

27. The Defendant asked the Court to look at her submission and decide. She said that the evidence by the Police is not sufficient to warrant her committal to stand trial at the National Court.
    

CONSIDERATION OF EVIDENCE

28. Prosecutor Sangam in his brief submission asked the Court to focus on the statement by witness Clarence Parisau especially paragraph four (4). He submitted that that paragraph of the statement by this witness shows that approval was not given for the Defendant to be part of the operations. I have gone through this statement and find nothing of such.
    
29. However, such a statement does exist and it does so in the statement made by Nigel Gerson who is the Acting Manager filed operations. He indicates at paragraph 4 and 5 of his statement that the Defendant’s name was not on the official operations list. I am therefore inclined to believe that Prosecutor Sangam in his brief submission may have mixed up names and statements and that Nigel Gerson was the one who made such a statement.
    
30. The Defendant on the other hand had filed two submissions which she relied on. One was made by herself and the other was a thick and lengthy submission prepared by a lawyer who has since ceased to represent her. I must say from the outset that both submissions are very thick and introduces some documentary evidence which she intended to rely on as part of the Defence. However, I refuse the have a look at those documents provided and if I did so I will place no probative value on them. My reason is simply that this is a Committal hearing and I am bound by law to asses the evidence before me which rightfully so is the evidence by the Police. To assess her evidence would be one akin to running a trial which I remind myself to stay clear of.
    
31. Nevertheless, as is always the case with Defendants in committal matters, the gist of their arguments remains the same and that is that the evidence provided by the Police is insufficient to have them committed to stand trial at the National Court. The same applies to the Defendant in this case.
    

FINDINGS

32. An examination of the PHUB indicates that it is in order. The administrative process under sections 94, 94A, 94 and 94C of the District Court Act have been properly administered.
    
33. Upon review of the PHUB, I find the following in relation to the charge of Conspiracy to Defraud and False Pretence.
    
34. For the charge of Conspiracy to Defraud, I find that the evidence is prima facie insufficient. Just by looking at the evidence, I cannot see any connection between her and her alleged co-conspirator Dino Mas. There are letters in the Police Hand Up Brief which alleged to indicate or infer an agreement of some sort between the Defendant and Dino Mas to conspire against the PNGICA. However, it is in my view that these letters or memos do not represent any form of agreement prima facie. Given the above, my finding that the evidence is insufficient for this charge.
    
35. In so far as the second charge of stealing by false pretence is concerned, I find that the evidence is sufficient. Prima facie, it would seem that the Defendant was involved in double dipping. Her claims for overtime working at Jacksons International Airport seems to be in order. However, it is the claims for additional allowances for working at the BIC operations that I find questionable and dubious. I am therefore convinced that this should be referred to the National Court for trial. The Defendant can then raise her Defence there.
    

COURT ORDERS

36. I make the following orders;
    
    1. There is insufficient evidence to commit the Defendant to the National Court for one count of Conspiracy to Defraud under Section 407 (1) (b) of the Criminal Code Act Chapter 262.
       
    2. This charge against the Defendant is dismissed and the Defendant is discharged forthwith.
       
    100. There is sufficient evidence warranting the committal of the Defendant to stand trial at the National Court for one count of Stealing by False Pretence under Section 404 (1) (b) of the Criminal Code Act Chapter 262.
         

Lawyer for the Informant: Police Prosecutions
Lawyer for the Defendant: In person