State v Wakai [2006] PGNC 164; N3359 (24 August 2006)

N3359

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 525 of 2005

THE STATE

-v-

THOMAS WAKAI
JOHN FRED
MICHAEL HARIEHA
&
ALBERT INE’E

Waigani: Sevua, J
2006: , 9 & 24 August

CRIMINAL LAW – Trial – Unlawful use of motor vehicle – Vehicle not used for purpose it was given – Person in lawful possession consented to accused using vehicle for a specific purpose – Accused picked up other accuseds and they used vehicle for different purpose – Instead of visiting relatives at hospital, accused used vehicle to confiscate horse race machines without any lawful authority – Offence of unlawful use of motor vehicle made out.

CRIMINAL LAW – False Pretence – Trial – Accuseds dressed in police field uniforms – Confiscated two horse race machines – Representative said they were authorized to remove "illegal horse race machines" – No evidence of any lawful authority – False pretence made out.

CRIMINAL LAW – Intention to defraud – No definition in Code – Removal under purported authority of National Capital District Commission and Gaming Board – Machines not delivered to premises of National Capital District Commission or Gaming Board – Machines removed to second accused’s residence at a settlement – Intend to defraud inferred from facts - intent made out.

Cases cited in judgment.

Public Prosecutor’s Report No. 4 of 1974 [1975] PNGLR 365
London and Globe Finance Corporation Ltd [1903] UKLawRpCh 47; [1903] 1 Ch 728 at pp. 732-733

Counsel

Ms. S. Luben, for State
Mr. G. Kaore, for Accuseds

VERDICT

24 August, 2006

1. SEVUA, J: On 8 August 2006, the State presented an indictment against the four accuseds charging them with one count of unlawful use of motor vehicle contrary to s.383, and two counts of false pretence contrary to s.404, Criminal Code.

2. The allegations against the accuseds are these. On 24 August 2004 at about 5.30 pm the accused Michael Harieha who was employed as a Supervisor with the Church of Jesus Christ of the Latter Day Saints asked one Jacob Omae, who was also a Supervisor with the same Church, and who at that time, had lawful possession of the church owned motor vehicle, a white Toyota Landcruiser bearing registration BBJ 993, to use the vehicle to pick up his wife so they could visit sick relatives at the Port Moresby General Hospital. Jacob Omae handed the vehicle to the accused Michael Harieha with specific instructions to return the vehicle at 8 pm the same evening. The accused did not return the vehicle as instructed.

3. Instead, the accused picked up the first named co-accused, Thomas Wakai, and the other co-accuseds John Fred, and Albert Ine’e, an off duty policeman at the material time. The co-accuseds, Thomas Wakai, John Fred and Michael Harieha were not policemen that time.

4. The accuseds then changed the vehicle registration plate with plate number BAZ 154, and dressed in police field uniforms with Constable Albert Ine’e armed with a HK Semi Automatic police issued rifle. They then drove to Hanuabada village where they stopped at the premises of one Igo Mase and his wife then pretending to be policemen involved in confiscating "illegal horse race machines", told Igo Mase that they were removing illegal horse race machines. Igo Mase believed them and allowed them to remove the horse race machine from his premises.

5. After removing the machine from Igo Mase’s premises at Hanuabada village, the accuseds drove to Hohola where they stopped at the premises of one Mark Kebean where they told him that they were removing illegal horse race machines and therefore removed one horse race machine from his premises after telling him that they were there to remove illegal horse race machines.

6. The two horse race machines were then taken to the accused, John Fred’s residence at Kaugere Settlement. Following these two incidents, police were alerted and a unit with an officer intercepted the accuseds at China Town in East Boroko and took them to the Boroko Police Station where the accuseds were arrested.

7. In respect of Count 1, the State alleges that in the circumstances in which the vehicle was used by the accuseds, they used it without the authority of Jacob Omae who had lawful possession of the vehicle at the material time. In relation to Counts 2 and 3, the State says that the accuseds pretended to Igo Mase and Mark Kebean that they (accuseds) were duty policemen, and in the execution of their duty, they were therefore authorized to confiscate illegal horse race machines in pursuance of a Court Order.

8. Finally, the State invokes the application of s.7 of the Criminal Code, and say that each accused is a principal offender.

9. Each accused denied the charges and so the State called its first witness, Jacob Omae, whose evidence relates only to the first count involving the use of the Toyota Land Cruiser, which he had custody of, prior to giving it to the accused, Michael Harieha.

10. His evidence is quite brief and succinct. He was employed as a Supervisor, Records and Standards by the Church of Jesus Christ of the Latter Day Saints and has been so employed for 4 years now. On the evening of 24th August 2004, he had custody of the church vehicle, a white Toyota Land Cruiser registration BBJ 993, and went about dropping off other employees of the Church in that vehicle after work. At that time, the accused Michael Harieha asked if he (Harieha) could use the vehicle to take his wife to the Port Moresby General Hospital to visit some relatives. The witness gave the vehicle to the accused, Michael Harieha with specific instructions that the accused return the vehicle to the witness by 8 pm the same evening. The accused did not return the vehicle that evening. The witness did not authorise the accused, or consent to him, using the vehicle for any other purpose that night.

11. The witness was asked the next day to go to the Boroko Police Station to identify the same vehicle, to ascertain if it was the Church’s vehicle. Neither he nor his immediate superior gave any authority to the accused, Michael Harieha to use the vehicle for any other purpose. As the person who had immediate possession of the Church vehicle, Jacob Omae only gave the accused, Michael Harieha the authority to, and consented to the use of the vehicle to visit sick relatives at the hospital. The use of the Church vehicle in any police undercover operation would have to come from the top hierarchy of the Church if he (Omae) did not consent to such use.

12. Nothing of significance occurred in cross examination except that counsel for the accused was trying to establish that the accused Michael Harieha, as a Supervisor like Jacob Omae, had the authority to use the Church vehicle for the purpose he did that night, and also that the accused was a member of the Police Reserved Task Force based at Badili. The witness denied that the accused had authority to use the vehicle in the manner he did on the night of the 24 August, 2004, and that such authority needed to come from someone higher than the witness, if he (Omae) did not give such authority.

13. Igo Mase and Mark Kebean are the other two State witnesses who testified on oath. Their evidence is quite similar in character, hence the need to canvass it together rather than separately.

14. At about 8 or 8.30 pm on the evening of 24 August 2004, Igo Mase watched two boys playing the horse race machine at his wife’s verandah at Hanuabada village. He saw police arrive as the boys were still playing. The police told him they were there to remove illegal horse race machines. He asked them to allow the two boys to complete their games before the machine was taken away. He saw a policemen armed with a rifle amongst the three men who alighted from the white Land Cruiser they had come in. He saw all the men in police dark blue uniforms, and the one who said they had come to remove the machine did not give any reason for removing the machine, and he did not say where they were taking it to. He believed them to be policemen because of their uniforms so he did not argue with them. They did not produce a Court Order or any other document empowering them to confiscate the said machine.

15. The evidence of Mark Kebean is similar. He is a former soldier who resided at Hohola opposite the PNG Power Headquarters on Wards Road, Hohola. On the night of 24th August, 2004 at approximately 9.30 pm, he was in front of his tucker shop at Silkwood Street when he observed the arrival of a tinted windows Toyota Land Cruiser registration BAZ 154 at his premises. Three men came out, one armed with a rifle in police field uniform and jacket while the other two were in police shorts. The witness stood with the armed policeman whilst the other two men stood next to the horse race machine. One of the men asked who owned the horse race machine and the witness said an Asian. They did not show the witness any Court Order, they just told him, horse race machines were prohibited and they were authorized by the Gaming Board to remove them, however they did not produce any Court Order or any other document to substantiate their authority to remove the machine.

16. In cross examination, the witness said he recognized the second accused. He pointed to the accused, Albert Ine’e who sat on the dock second from left. The witness said he knew that accused as a member of the Mobile Force who wore police uniform that night.

17. The next State witness was Sgt. Alois Yakapu who was instructed by the Officer-In Charge of Criminal Investigation Division at Boroko Police Station to interview the accuseds who were apprehended for two counts of armed robbery. He identified each of the four accuseds by name, starting from John Fred at the far right in the dock, who was not a policemen, Michael Harieha, also who was not a policemen, but an employee of the Church of Christ of the Latter Day Saints, Albert Ine’e, third from the right, who was a member of the National Security Unit at McGregor Barracks, and the last accused on the left, Thomas Wakai from Koki, who also was not a policeman.

18. Sgt. Yakapu gave an account of him conducting records of interview with the accuseds, Albert Ine’e, John Fred and Michael Harieha.

19. In relation to the accused Albert Ine’e, he admitted to Sgt. Yakapu that he was picked up at McGregor Barracks by the other three accuseds, John Fred, Michael Harieha and Thomas Wakai in a whilte Toyota Land Cruiser. After he was picked up they drove to Pat Gabe’s residence also at McGregor Barracks where the accused Ine’e picked up an HK Semi Automatic rifle and they drove off to Hanuabada village and then to Hohola where two horse race machines were removed as per the evidence of Igo Mase and Mark Kebean.

20. The sergeant’s evidence in relation to the interview he conducted with the accuseds, John Fred and Michael Harieha are quite similar. The evidence of the witnesses and the records of interview he conducted support the testimonies of Igo Mase and Mark Kebean.

21. Another police officer, Jeffery Hobeg gave oral testimony in respect of the interview conducted with the accused, Thomas Wakai. He was the corroborator in that interview and said there was no threat or assault against the accused.

22. The records of interview with each accused contained admissions by the accuseds. The admissions are in respect of what they did on the night of 24 August 2004, not necessarily admissions to the commission of armed robbery or any other criminal offence. And such admissions are consistent with the State’s allegations. These records of interview are marked, Exhibits "D", "D1", "E", "E1", "F", "F1" and "G".

23. In respect of the records of interview, as they were being sought to be tendered by the State, counsel for the accuseds, Mr. Kaore objected to its admissibility on the grounds that the accuseds denied giving some of the answers in the records of interview, and there were allegations of threats and assaults against the accuseds. When asked by the Court if the State had been given notice of these allegations, Mr. Kaore said no. When further questioned why the State had not been given the opportunity to seek instructions from its witnesses regarding the allegations of impropriety, and why the Criminal Practice Rules were not complied with, Mr. Kaore withdrew his objection. I will make some observations in respect of this and other aspects of the trial, especially the competency or otherwise of both counsels later.

24. There are four photographs which were admitted by consent. Photograph NOs 10 and 11, Exhibits "C" and "C1" show the white Toyota Land Cruiser with the two different number plates, BBJ 993 and BAZ 154. Exhibits "C2" and "C3" (Photographs 13 & 14) show the HK Semi Automatic rifle carried by Constable Albert Ine’e on the night of 24th August, 2004.

25. The accuseds gave un-sworn statements from the dock following a procedure that I have never heard of before, both as a lawyer and a Judge. Mr. Kaore was trying to adduce evidence from the first accused from the dock when the Court intervened and asked what procedure that was. It appears to me that Mr. Kaore himself did not know what to do until I explained the three options available to the accuseds after the close of the State’s case, and then adjourned for a short time to allow the accuseds to decide what options out of the three, they would take. Following the short adjournment, Mr. Kaore advised the Court they would make un-sworn statements from the dock.

26. It is not necessary to refer to everything that each accused said in his un-sworn statement from the dock as they are on record. However, it is obvious that the accuseds seemed to say they were acting on authority from the Gaming Board and the National Capital District Commission. However surprisingly, there is no evidence at all, verbally or written, that these three accuseds Michael Harieha, John Fred and Thomas Wakai, who are not police officers, and Constable Albert Ine’e who was a serving member of the Police Force, had any authority to remove what they referred to as "illegal horse race machines".

27. There is no evidence of a Court Order or direction from the Police Commissioner to these accuseds authorising them to remove what they said were illegal horse race machines. So who authorised them to get involved in what appears to be a police "string operation"? There is no evidence of any lawful authority let alone, a Court Order. So how did they use a Church owned vehicle in this covet operation with no legal authority?

28. The evidence of Jacob Omae as to the authorized use of the Church vehicle is quite clear. He had the lawful possession of the white Toyota Land Cruiser, BBJ 993 owned by the Church of Jesus Christ of the Latter Day Saints, on 24 August 2004. The accused, Michael Harieha asked him (Omae) to use the vehicle for a specific purpose – to pick his wife so they could visit sick relatives at Port Moresby General Hospital, and Jacob Omae gave specific instructions to Michael Harieha to return the vehicle to him (Omae) at 8 pm that night. Michael Harieha did not comply and instead picked up the other three accuseds who went on an operation which had no lawful basis, without the expressed consent of Jacob Omae, who had lawful possession of the said vehicle that night.

29. The issue in relation to the first count of unlawful use of motor vehicle therefore is, did the accuseds use the vehicle with the consent of Jacob Omae on this operation? The evidence of Jacob Omae is undisputed. He did not give expressed or implied authority to Michael Harieha to use the Church vehicle in the manner the accuseds did that night. It must be reiterated that the accused Michael Harieha got the vehicle from Jacob Omae for the sole purpose of picking his wife to visit relatives at the hospital. Michael Harieha did not ask Omae to use the vehicle for the purpose the accuseds used it on the night in question, and Jacob Omae did not give the vehicle to Michael Harieha because that accused and the other three accuseds wanted to use it to confiscate horse race machines at Hanuabada and Hohola. The fact that the registration plate of the vehicle was changed from BBF 993 to BAZ 154 does not support the accuseds’ un-sworn statements. Why did they change the number plate?

30. There is no explanation at all by the accuseds as to why they changed the registration plate of the vehicle that night. There is no evidence at all that the accuseds, Thomas Wakai, Albert Ine’e and John Fred were lawfully entitled to use the Church vehicle for any purpose at all. If they were involved in an authorized or sanctioned operation, there is no evidence at all as to how they were selected amongst police officers, and so many residents of the National Capital District. And there is no evidence as to why they did not use a police vehicle.

31. In any event, if they were authorized to carry out an operation, which there is no evidence to support, why did they take the two horserace machines to the residence of John Fred at Kaugere Settlement? Why didn’t they take them to Boroko Police Station or the Gaming Board premises or the City Hall? Who is John Fred, and what has he to do with horse race machines? These matters have not been explained, therefore the Court has no idea at all as to how and why these four accuseds were involved in removing horse race machines.

32. Of particular interest is the involvement of Constable Albert Ine’e, a serving policeman attached to the National Security Unit at McGregor Barracks. Was the National Security Unit tasked to remove horse race machines? If so, by who? Why did he borrow the HK Semi Automatic weapon from his colleague Pat Gambe? If he was lawfully authorized, wasn’t he given a weapon to use in that operation? If not, why not? He has produced no written authority from the Director of Special Services Division at McGregor Barracks, or the Group Commander at McGregor Barracks, let alone the Police Commissioner. So how, and why, was he selected from the rest of the members of the Southern Mobile Force at McGregor Barracks to be involved in removing horse race machines? There are so many other questions that have not been explained by Constable Ine’e.

33. The accuseds could have opted to give sworn testimony and produce the Court Order which their counsel attempted to have tendered by consent, although the Court questioned how it was to be tendered by consent. If indeed they were lawfully authorized, and they acted in pursuance of a legitimate Court Order, why didn’t they give sworn evidence so that their evidence can be tested in cross-examination? Of course, the Court cannot infer anything adverse to them because they chose not to give sworn evidence. However, their failure to testify may go against them in that it may strengthen the State’s case by leaving it uncontradicted or unexplained on vital matters. In my view, they would have explained many things in relation to their activities at the material time. In any event, their un-sworn statements carry no weight.

34. I find that such removal of the two horse race machines were carried out illegally as there was no legitimate Court Order to remove those machines, and in doing so, I find that the constitutional rights of the owners of these premises were violated. I make these findings on the basis that there is no evidence whatsoever, of any lawful authority from either the Commissioner of Police, National Capital District Commission or Gaming Board, to remove these machines, despite the fact that these machines may have been declared illegal. At the material time, there was no evidence at all that these machines were illegal, and there is no evidence at all that the four accuseds were acting in a lawful authorized manner.

35. Finally, I find that the four accuseds did not have the lawful authority of Jacob Omae, or any of his superior officials of the Church of Jesus Christ of the Latter Day Saints to use the Church owned vehicle, the white Toyota Land Cruiser registration BBJ 993, in the illegal operation they carried out on the night of 24th August 2004. I find that the only authority Michael Harieha had that night was to use the vehicle to pick his wife so they would visit their sick relatives at the hospital. That authority lapsed at 8 pm the same evening when he failed to return the vehicle to Jacob Omae, who had lawful possession of the vehicle that time.

36. For these reasons, I find that the four accuseds, used the Church owned vehicle unlawfully, and I find them guilty of the offence of unlawful use of motor vehicle on the night of 24th August 2004. Accordingly, I convict each of them of that offence contrary to s.383 Criminal Code.

37. In respect of counts 2 and 3, of false pretence, I consider that the act of false pretence can be inferred from the conduct or behaviour of the accuseds that night. There is evidence that all the accuseds were in police field uniforms. Igo Mase testified to that, while Mark Kebean was able to say only Albert Ine’e was in full police field uniform, while the other three accuseds were in ordinary police uniforms. However, the accused Albert Ine’e, in answer to Q.25 in his record of interview, said he saw the other accuseds in "blue police field trousers and blue field jackets." I am satisfied that all the four accuseds were in police field uniforms on the night of 24th August 2004. He himself was dressed like that too, and he alluded to that in answer to Q.24.

38. In their un-sworn statements, the accuseds, Thomas Wakai and Michael Harieha denied wearing police uniforms. They said they did no tell police that they wore police uniforms. The accused, John Fred did not deny wearing police uniforms while Albert Ine’e said he wore police field uniforms and was carrying a police issued HK rifle. As I alluded to earlier, he said in his record of interview that the other three accuseds wore police field uniforms.

39. The un-sworn statements of the accuseds carry no weight, therefore I place no weight to all the accuseds statements from the dock. I am inclined to accept the evidence of Igo Mase, which is supported by Albert Ine’e’s answer to Q.25 in his record of interview. The Court is therefore satisfied that all the accuseds wore police field uniforms on the night of 24th August 2004 as they went to confiscate the two horserace machines at Hanuabada village and Hohola.

40. I consider that the fact that the accuseds were in police field uniforms and told Igo Mase and Mark Kebean that they were there to remove illegal horserace machines amounted to false pretence. The accuseds, Thomas Wakai, Michael Harieha and John Fred were not policemen. Why were they dressed in police field uniforms? I am of the view that the act of false pretence can be inferred by the fact that all the accuseds were in police field uniforms, and told Igo Mase and Mark Kabean that they were removing horse race machines. That, in my view gave the impression to the two operators of the machines that the accuseds were police officers executing their lawful duty to remove horse race machines which they claimed to be illegal. In my view, the commission of that offence can be drawn from those facts.

41. Mr. Kaore has referred to Prosecutor’s Report No. 4 of 1974 [1975] PNGLR 365 and submitted that, it is not open to the Court to find that the accuseds had intended to defraud anyone, therefore they could not be convicted of the offence of false pretence.

42. I have considered that submission and that decision of the Supreme Court, and I am of the view that the case does not support the accuseds and the proposition advanced by their counsel.

43. The phrase, "intend to defraud" is not defined in the Code, however I find some assistance in what Buckley, J said in In re London and Globe Finance Corporation Ltd [1903] UKLawRpCh 47; [1903] 1 Ch 728 at pp.732 – 733 -

"To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practicing the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action."

44. With respect, I adopt these statements of the law and apply it in the present case. I have already found as a fact that the four accuseds were dressed in police field uniforms at the material time. They or one of them told Igo Mase and Mark Kabean that they were removing "illegal horse race machines". The accuseds except for Albert Ine’e were not policemen. The fact that they wore police field uniforms in my view confirmed their dishonest intention or falsehood. They wore police uniforms in the removal of horse race machines so that the operation would appear legitimate.

45. In my view, the facts of this case speak for themselves. The accuseds acted as if they were lawfully authorized to remove horse race machines they said were illegal, without producing any authority to do so. Three of them are and were not policemen, but were dressed in police field uniforms. In my view, there can be no other inference or conclusion of fact that the accuseds were policemen acting in the execution of their lawful duty to confiscate horse race machines. I am therefore satisfied that their actions were sufficient to amount to both false pretence and intention to defraud, after all, the machines were removed to John Fred’s house in a settlement, not any authorized premises.

46. From the evidence before the Court, I find as a fact that, first, on the evening of 24th August 2004, Jacob Omae, a Supervisor with the Church of Jesus Christ of the Latter Day Saints had lawful possession of the Church owned vehicle, a white Toyota Land Cruiser, 10 Seater, Registration BBJ 993. Secondly, he gave the vehicle to the accused, Michael Harieha on the night of that incident, for the sole purpose of that accused picking his wife so they would visit their relatives at Port Moresby General Hospital. Thirdly, Jacob Omae instructed the accused, Michael Harieha, to return the vehicle to him (Omae) by 8 pm the same evening. Finally, Michael Harieha failed to return the vehicle to Jacob Omae at the specified time. Furthermore, Michael Harieha went and picked up the three other accuseds and they changed the number plate of the vehicle from BBJ 993 to BAZ 154 and went to Hanuabada village and Hohola and removed two horse race machines from the premises of Igo Mase at Hanuabada village, and Mark Kebean at Hohola.

47. It is my view that the evidence established the element of false pretence in s.404.
I also consider that intent to defraud can also be found from the facts. The accuseds claimed they were lawfully authorized to remove illegal horse race machines. However, they gave no evidence of any lawful authority they had, none from the Police Commissioner, none from the Gaming Board and none from National Capital District Commission.

48. Even if the accuseds had lawful authority to remove these machines, why did they drop off the two machines at the residence of the accused, John Fred? Who is John Fred and what has he to do with horserace machines? If they had authority from the Gaming Board and National Capital District Commission, as was being suggested in cross examination of State witnesses, why didn’t the lawful authority allow the accuseds to take the machines to its premises? The accused John Fred, had no authority to keep these machines, he was not the Chairman of the Gaming Board, nor was he the City Manager of National Capital District Commission, so why did they deliver the machines to his residence at Kaugere Settlement? That fact alone makes it all the more suspicious. In my view, if the accuseds had been authorized by the Gaming Board or National Capital District Commission, these institutions would have allowed them (accuseds) to deliver the machines to their premises, not to a settlement.

49. I am of the opinion that I can reasonably conclude that the fact that the machines were taken to John Fred’s residence at a settlement, and not a designated premises of any legal authority, amounted to an intent to defraud.

50. Accordingly, I find that the second element of this offence has been made out.

51. I therefore find that the State has proved the offence contrary to s.404, ie false pretence, beyond reasonable doubt, and I find all the accuseds guilty of this offence on counts 2 and 3 and convict them accordingly.

_________________________________________

Public Prosecutor: Lawyer for State
George Kaore: Lawyer for Accuseds