Otto v Mas [2022] PGDC 81; DC9017 (22 September 2022)

DC9017

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS COMMITTAL JURISDICTION]

COM NO 1573-1574 of 2022
BETWEEN

PHILIP OTTO
Informant

AND

DINO MAS
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 Insufficient for stealing by false pretence – Defendant discharged accordingly

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: Dino Mas (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 Acting Deputy Chief Migration Officer/Compliance and Enforcement Division 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 Kayin Busi by submitting fraudulent documentation for payment of allowances whereby Kaylin Busi received a total of K14,800. The Police also further allege that the Defendant also by false pretence wrote several letters for payment of allowances to Kaylin Busi resulting in money in the sum of K14,800 being paid to her under the pretext of being engaged in the Bomana Immigration Centre (BIC).The money received was 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 KAYLIN BUSI to defraud PNG Immigration & Citizenship authority by submitting fraudulent documentation for payment of allowances for Bomana Immigration Centre (BIC) Operation for several days in the month of October, November, December 2020 and January 2021 and hence a total of K14,800.00 was expended 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 wrote several letters for payment of allowances fir Kaylin Busi hence resulting in PNG Immigration Citizenship Authority expending its property namely money in the sum of K14,800.00 to said Kaylin Busi whilst on the pretext of being engaged in the Bomana Immigration Centre (BIC) Operations for several days within the months 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 month 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 the Defendant’s committal to the National Court to stand Trial.
    

DEFENDANT’S CASE

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

CONSIDERATION OF EVIDENCE

28. The evidence in the PHUB is the same as that of the Defendant’s alleged co-conspirator Kaylin Busi. All witnesses’ statements and exhibits are basically the same word for word. A simpler way to deal with this matter would have been to have them both dealt with under the same information rather than separate ones. Nevertheless, Prosecutor Samghy submitted that this Defendant’s case should be dealt with the same as his alleged co-conspirator Kaylin Busi. However, I beg to differ in so far as each Defendants role in the commissioning of the alleged offences is concerned, I will assess the evidence accordingly.
    
29. The Defendant has filed two lengthy submissions. One by himself and one by his lawyer who has now ceased to appear on his behalf. Both submissions seek to tender in certain new documentary evidence which I refuse to entertain and if I had a look at will not give probative value. I must remind myself that at this stage, I will only assess the evidence by the Police in the PHUB.
    

FINDINGS

30. An examination of the PHUB indicates that it is in order. The administrative process under sections 94, 94A, 94B and 94C of the District Court Act have been properly administered.
    
31. Upon review of the PHUB, I find the following in relation to the charge of Conspiracy to Defraud and False Pretence.
    
32. For the charge of Conspiracy to Defraud, I find that the evidence is insufficient. Just by looking at the evidence, I cannot see any connection with his alleged co-conspirator Kaylin Busi. There are letters in the Police Hand Up Brief which alleged to indicate or infer an agreement of some sort between the Defendant and Kaylin Busi 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. It must be shown that an agreement between two persons planning or conspiring to defraud exist in such cases. Here, the evidence does not show that. Thus, my finding that the evidence is insufficient prima facie.
    
33. In so far as the second charge of stealing by false pretence is concerned, I find that the evidence is also insufficient prima facie. One of the key requirements of the offence is missing. Nothing in the Police file shows how the Defendant benefitted from the commission of this offence. There is nil evidence showing that he recived the money and if he did so how he used it. Therein lies the key requirement. A person has to receive the money and then uses it for his own benefit. This is not shown anywhere in the Police file thus my conclusion.
    

COURT ORDERS

34. I now 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. There is insufficient evidence to commit 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.
       
    100. Both charges against the Defendant are dismissed and the Defendant is discharged forthwith.
         
    4. The Defendant’s bail money is to be refunded to him immediately.
       

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