N5189

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 438 OF 2009

THE STATE

V

RODNEY IEWAGO

Popondetta: Toliken, AJ
2012: 24th October

Cases Cited

Paul Kunde Rape –v- The State [1976] PNGLR 96
The State –v- Dickson Mirilok (2007) N3466

Counsel

Mr David Kuvi, for the State
Mr David Sopane, for the accused

RULING ON NO CASE SUBMISSION

24th October, 2012

1.	TOLIKEN, AJ: The accused is charged that –

"Between the 1st of April 2008 and 31st June 2008, [he] with intent to defraud falsely pretended to rubber growers within Oro Province to be a representative /agent of PNG Primary Industries Limited and a genuine rubber buyer, purchased 82 bags of cup lump rubber valued at K12,730.00 from the said rubber growers within the Oro Province."

2.	This is an offence under Section 404 of the Criminal Code Act, Chapter 262. 

3.	The accused entered a plea of Not Guilty.

4.	After the close of the State's case yesterday, the Defence made a no case submission.

5.	The law on no case submissions is well settled in this jurisdiction per the principle laid down in the case of Paul Kundi Rape –v- The State.

6.	The principle is saddled on the premises that (1) if the State has not established any of the essential elements of the charge or (2) even if it did establish the elements but the evidence had been so discredited by cross-examination or so lacking in weight, the accused should not be called upon to answer the charge.

7.	Essentially then, the State must at this stage establish a prima facie case. The State –v- Dickson Miritok (2007) N3466.

8.	The question here is not whether the accused ought to be convicted on the evidence as it now stands but whether he can be lawfully convicted if the trial continues to the end.

FALSE PRETENCE: THE ELEMENTS

9.	The offence of false pretence is provided by Section 404 of the Criminal Code as follows:

404. OBTAINING GOODS BY FALSE PRETENCE OR WILFULLY FALSE PROMISE

(I)	A person who by false pretence or wilful false promise or partly by a false pretence and partly by a false promise and with intent to defraud –

(a)	Obtains from any other person any chattel, money or valuable security;
(b)	.....

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 5 years.

10.	"False Pretence" itself is defined by Section 403 of the Code to mean "a representation made by words or otherwise of a matter of fact, past or present that as:-

(a)	False in fact; and

(b)	The person making it knows to be false or does not believe it to be true". The representation may be by word of mouth, by conduct or in writing.

11.	Now the elements of the offence are:-

1.	The accused,
2.	With intent to defraud,
3.	Falsely represented a past or existing fact,.
4.	Obtains a chattel, money or valuable security.

THE EVIDENCE

12.	At this stage, the question for me is – has the State established a prima facie case? In other words does the evidence establish all the necessary elements of the charge?

13.	Now the accused pleaded to the elements alleged in the indictment which basically alleged that between the dates in question he falsely represented himself to rubber growers within Oro Province as a representative/agent of PNG Primary Industries Limited and as a genuine rubber buyer, with intend to defraud and obtained K12,750.00 worth of rubber cup lump from the said growers.

14.	These were the facts that were put to the accused. Hence, essentially, the evidence ought to have established (prima facie of course) the following:-

1.	The accused.
2.	With intent to defraud.
3.	False represented himself as a representative/agent of the PNG Primary Industries Limited and thus a genuine rubber to rubber growers in Oro Province.
4.	Obtained K1,250.00 worth of rubber cup lump from the said growers.

15.	I find that the evidence in fact established on prima facie basis that the accused and his business associate did purchase K12,780.00 worth of rubber cup lump from the various villagers in the province.

16.	However, does the evidence establish that the accused, by word of mouth or conduct, represented himself or held himself out to be a representative of the PNG Primary Industries Limited and as a genuine rubber buyer?

17.	The answer to this is No. The sum of the evidence from State witnesses do not establish that the accused held himself out to be a representative or as agent of the PNG Primary Industries.

18.	The State concedes this but says that by his very act of buying rubber which he knew PNG Primary Industries Limited had an interest over, the accused represented himself as a genuine rubber buyer.

19.	What the State is doing here is to sever its allegations that the accused represented himself both as a representative or an agent of the company and also as a genuine buyer.

20.	It is important to note that this allegation of allegedly material existing facts is not stated in the alternative in the indictment. Rather, these alleged facts are conjoined by the conjunctive "and" not "or".

21.	Hence, the evidence must establish the accused represented himself both as a representative or agent of the company and as a genuine rubber buyer.

22.	Unfortunately, the evidence does not establish that. If anything, the evidence shows clearly that the accused simply went to the villages and bought cup lump rubber from villagers, which, unfortunately, were properties that PNG Primary Industries Ltd had substantial interests in.

23.	In conclusion, there was no false representation of the material facts alleged in the information. In other words, the evidence has not established false pretence.

24.	At this juncture I must say that the accused is not charged with statutory breaches of the Rubber Act, the Companies Act or other related legislation. If he did breach any of the legislation or laws that regulated the rubber industry including the purchase and export of rubber then he ought to have been appropriate charged under the relevant Legislation.

25.	Now it is trite law that in a criminal trial, the prosecution must at this point establish all the essential elements of the charge for the matter to proceed further. If it fails to establish one of these elements the trial must be stopped.

26.	In this matter, the evidence as it stands has not established the element of false pretence. Hence, the trial cannot proceed. Therefore, I do not have to consider whether the remaining element of the charge i.e. the intention to defraud has been established.

27.	I, therefore rule that the accused has no case to answer. I acquit him of the charge and order that he be discharged forthwith and further that his bail be refunded.

Orders accordingly.

____________________________________________________________
Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the accused