State v Willyman [2016] PGNC 82; N6298 (20 April 2016)

N6298

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. (FC) 110 OF 2014

THE STATE

V

CHRISTINE WILLYMAN

Kokopo: Lenalia, J

2016: 10^th, 11^th, 14^th, 15^th 24^th March&20^th April

CRIMINAL LAW – False pretense– Plea of not guilty –Criminal Code Sections 404 .262.

CRIMINAL LAW – False pretense – Evidence – Evidence by prosecution consists wholly of documentary evidence – Finding of facts.

CRIMINAL LAW – Defence evidence – Whose evidence should the Court accepts? – Accused found not guilty – Case dismissed defendant discharged.

Cases cited
Albert Alexander Age v The State [1979] PNGLR 589
John Kasaipwalova v The State [1977] PNGLR 257
Wellington Belawa v the State [1988-89] PNGLR496

Counsel:

Mr. L. Rangan, for the State
Ms. J. M. Ainui, for the Accused

20^th April 2016

1. LENALIA, J: The accused is charged with one count of false pretense or willfully false promise contrary to s.404 of the Criminal Code, Ch.No.262. After the charge was put to the accused, she entered a plea of not guilty.

2. Mr. Rangan began the prosecution case by addressing the Court on the evidence that the State wanted to put before the Court. Counsel submitted that the State’s case would substantially consist of documentary evidence that would be tendered by consent.

3. The court inquired with Ms. Ainui if she did not object to the tender of the documents intended to be tendered by the prosecution. Counsel indicated that, there was no objection by the defence.

Prosecution Evidence

4. The following documents were tendered with the consent of the defence counsel:

Ex. “1” & “2” the letter dated 14^th March 2014 from Pacific Duty Free Ltd,
Ex. “3” copy of authorization letter,
Ex. “4” letter of 19^th March 2014,
Ex. “5”, statement by Anton Kaupa,
Ex. “6” statement by Esther Alman dated 19.3.14,
Ex. “7a” – “7g”,
Ex. “8a” “8b”, record of interview Pidgin and English,
Ex. “9” statement by P/C Paul Bonio-interviewing officer, and
Ex. “10” Const. Jeffery Lanja-corroborator.

5. The court has read all documentary evidence tendered by consent. From the prosecution evidence, there are two documents that the court wishes to refer to. The court has read the statements of bank teller, Mr. Anton Taupa and the Team Leader Esther Alman of BSP Rabaul Branch. (See Exhibits. “5” & “6”). Anton in his statement dated 18^th March 2014, explained how the defendant presented the cheque to him to be cashed and he did various checks like confirmation of the account balance on the cheque, its number and according to Anton there was sufficient funds in the account balance.

6. He checked the signature of the person name on the bank account. He called the telephone number written on the reverse side of the cheque leaf. The cheque bore the signature of J. Johnson and the same signature was of J. Johnson. The teller called the telephone number written on the back of the cheque leaf and talked to Johnson but the caller heard a voice not like a person from PNG but like an Australian, sounded to the caller as that of an old person.

7. In case of the statement by the Team Leader, Ms. Esther Alman, her version is that, on Monday afternoon about 2.59 pm, she was busy with her customers when the bank teller Anton Taupa approached her with a cheque labeled ‘pay cash’ for her to authorize in order for it to be cashed.

8. According to the Team Leader, there was urgency notice in the letter so such money could be given to Christine Willyman to distribute to the Baining land owners.

9. The Team Leader checked through the authorization letter and checked the account balance and she found that the authorization letter was fine and there was balance to conduct or commit to the transaction. She also reveals that, she asked Anton if he had checked with the company and the person who had signed and authorized the letter. The teller informed her that, he had checked everything before bringing the cheque to her. She said, in the last paragraph of her statement that, she rushed to authorize cash payment relying on the bank teller’s information so the cheque was cashed. Unknown to her, she did not have any knowledge about the cheque which was fraudulently drafted.

10. After all the documents were tendered Mr. Rangan submitted the prosecution case was closed.

Defence Evidence

11. The court inquired with the accused if she wanted to give evidence and call any witnesses. The accused said, she wanted to give evidence. This was confirmed by Ms. Ainui and the accused came across from the defendants’ dock to the witness stand where she was sworn in and she gave her evidence in English.

12. The accused gave evidence that, on 17^thMarch 2014, she received a call from her school mate Victor Nininga. She attended Port Moresby International School together with Victor some years back. This person called her via her mobile phone and asked her if she could do him a favour by doing banking for him because he was too busy. She inquired what she was going to do and the caller said, if she could cash him the second cheque of K4, 500.00. Victor told her that, he was to arrange with another work colleague who would come to deliver the cheque to her containing an authorization letter (Ex. “3”) and all she was to do is present the cheque at BSP bank in Rabaul and cash it and give the cash to the man.

13. The accused said, as soon as she got to the bank, she entered but no one met her so she walked in and out from the bank several times. As soon as she was coming out, a gentleman met her and asked her if her name is Christine. She replied that she was and the man handed her a brown envelope. She tore the envelope open and when she saw it, it was the cheque that the person by the name of Victor Nininga had called her about asking her to cash it.

14. According to the accused she did not bother to find out if the cheque had been properly authorized or not. She took it and proceeded to the counter and cashed the cheque. She came back outside and waited for the man who had passed the cheque to her. She waited for some time and called Victor again. Victor Nininga informed the defendant that, the young man would soon call in and collect the money. When the man came, she gave the money to him. She also revealed in her evidence that, she had never met the man by the name of John Johnson previously in her life.

15. A day after the transaction was done, she received a called from the bank teller, Mr. Taupa to come to the bank and sort out something about the cheque that was chased the day before. After talking, she advised Anton that she was minding her sick child and after she got someone to mind the child, she would come to the bank. After getting a baby sitter, as she was ready to go to the bank, Anton Taupa (the bank teller) and bank security personnel came to her house. They escorted her to the bank. She said, she did not wish to run away or even hide because she did not have anything to hide since she did not know the status of the cheque she cashed whether it was a genuine one or it was fraudulent.

16. She was interviewed by the bank staff and according to the witness, a senior staff of the bank, a woman growled at her and she told the story of how the cheque came into her possession.

17. The witness was vigorously cross-examined. She was asked if she knew the person who signed the authorization letter and if she had ever come into contact with her before the date she cashed the cheque? The witness said, she had never met the man before. She was asked how or why was it that she decided to cash the cheque when she did not know who authorized the payment of such fraudulent cheque? The witness said, she was contacted by Victor Nininga to do banking for him because he was too busy that day.

18. Asked if she had done the banking for the same company previously. She answered that, the cheque she cashed on 17^th March 2014 was the second one. Previously, she had cashed another cheque for the same person. Asked if she knows Victor Nininga. She said; she knows him because they attended the Port Moresby International High School together.

19. She was asked why she decided to cash the cheque when she knew that, she did not know John Johnson the person who wrote the authorization letter. The accused said, what bothered her was the call by Victor who asked her to do the banking and when she was told that a work colleague of Victor Nininga was to give her the cheque to cash, she had reasonable believe that, the document was a genuine one because previously, she had done the same transaction for the company and she had cashed a cheque for them.

20. She was asked if she noted the signature on the back of the cheque leaf after opening the envelop. She said, she did not really see it but she noticed the name John Johnson on the letter of authorization. Mr. Rangan asked the witness if she had the intention of defrauding the bank when she did not know who John Johnson was. The witness said, because Victor Nininga called her, she knew Victor and trusted that the cheque she presented to the bank teller was a genuine one.

Submission on Verdict

21. The defence counsel Ms. Ainui’s submission is that, in order for the prosecution to establish a case against the accused, the prosecution must proof beyond reasonable doubt that the accused had the intention to defraud the bank. She referred to the accuser’s evidence saying that, the accused did what she did with honest and reasonable belief that, the cheque was a genuine one. Counsel submitted that, the prosecution had not established essential elements of any intention to defraud.

22. For the prosecution, Mr. Rangan argued that, there is a case against the accused. Counsel read s.403 of the Criminal Code which deals with the definition of false pretence and willful false promise or cheating. He referred to the defence evidence which suggest that, the offender did not have any knowledge of whether the cheque she represented at BSP in Rabaul was a fraudulent one. He argued that, here was the case where the accused right from the time Victor Nininga made the call to her to do the banking for him, she should have formed opinion that such dealing could have created problem. Counsel asked the court to find that, the accused had the intention to defraud the bank and the court should find her guilty.

Application of Law

23. The charge is laid pursuant to s.404 (1) (2) of the Code. The definition of ‘false pretence and willfully false promise’ is given in s.403 (1) (a) (b) and (2) (a) (b) of the Criminal Code. The gist of this section is that, where a presentation is made by a person in relation to a matter of fact either past or present, is false, or the person making such representation knows it to be false and does not believe it to be true, it is false pretence.

24. The Supreme Court case of John Kasaipwalova v The State [1977] PNGLR 257 establishes that criminal responsibility would have to be proved under the section charged that is s.404of the Criminal Code for the offence of obtaining goods by false pretence or willfully false promise with the intention to defraud. Pursuant to another Supreme Court case of Albert Alexander Age v The State [1979] PNGLR 589, the false presentation must be made in relation to material existing facts which as was in the instant case, would enable the bank to decide if the cheque presented by the accused was a bogus one or otherwise. (See the discussion on Wellington Belawa v The State [1988-89] PNGLR496).

25. On the current case, there is evidence by both the prosecution and defence that, the accused presented the cheque and in fact cashed it for the person who called her giving her instruction to cash the cheque. As to what business connections were there between the accused and the man who called her by her mobile, there is no evidence. The prosecution must prove that the accused had the intention to defraud the bank. Looking at the evidence of the accused, she acted on the information given her by her school mate, Victor Nininga.

26. All that, the accused knew and had information on at the time the transaction was executed was for her to cash the cheque and give the cash to Victor’s work mate. As a matter of common-sense, enquiring about the credit worthiness of the cheque had been attended to by the bank teller and the Team Leader of the B.S. P, Rabaul branch.

27. I reach the conclusion that in order for the prosecution to establish a case under s.404 (1) & (2) of the Criminal Code, the prosecution must prove beyond reasonable doubt that, the ‘false pretense’ or ‘willfully false promise’ ought to have been committed with the ‘intent to defraud’. According to the accused’s evidence and her statement that was tendered, Ex. “7A-G”, the accused got the cheque from the person who met her and she checked the authorization letter, she saw the name and signature of the person who authorized the letter was John Johnson.

28. In her evidence, because she knew the man she referred to as Victor Nininga well since they were together in their school days, in the court’s opinion, she thought everything was fine and she went ahead to cash the cheque. If there was any evil intention for purposes of falsely pretending to present the cheque, such essential elements of the charge under the section charged ought to be established by the prosecution evidence.

29. The court finds from all the evidence both by the prosecution and the defence that, the accused on the instant case did not have any evil intention to defraud anyone as she merely acted on the advice by her colleague school mate. If there was any allegations about fraud beyond what the police had suspected the accused of, it could have been better for the informant to investigate, the person who authorized the cheque leaf and the one who signed the authorization letter and even the person referred to as Victor Nininga.

30. Having said, this, I find the accused not guilty. The case be dismissed and the accused is discharged with orders that her bail moneys shall be refunded to her.

______________________________________________________________
The Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused