State v McNamara [2021] PGNC 233; N8914 (9 July 2021)

N8914

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 124 OF 2018

BETWEEN:
THE STATE

AND:
CHARLIE McNAMARA

Mt Hagen: Salika CJ
2021: 17^th, 18^th February; 8^th, 9^th July

CRIMINAL LAW – Practice and Procedure – Charge of obtaining goods by False Pretense – Intention to defraud – Meaning of intent – Meaning of defraud. Section 404 (1) (a) of the Criminal Code.

CRIMINAL LAW – Practice and Procedure – Section 7 of Criminal Code – Effect of Section 7 and its meaning.

Cases Cited:
The State v Gabriel Ramoi [1993] PNGLR 390
The State v Raphael Kuanande [1994] PNGLR 512
The State v Jimmy Kendi (2006) N3200

Counsel:

Mr F Popeu, for the State.

Ms E Wurr with Mr D Pepson, for the Accused.

1. SALIKA CJ: INTRODUCTION: The accused was arraigned on a charge that he on 6 April 2017 in Mt Hagen by falsely pretending to one Paul Philip that a Pelgens Limited Westpac cheque no. 066016 dated 03.04.17 valued at K96,480.00 was genuine, obtained from the said Paul Philip with intent to defraud 12 cartons of Cambridge cigarettes valued at K96, 480.00 the property of Pusamo Trading Limited. The charge was brought under Section 404 (1) (a) of the Criminal Code Act. Section 404 (1) (a) provides:
   

404 Obtaining Goods or Credit by False Pretence or Willfully False Promise

1) A person who by a false pretence or willfully false promise, or partly by a false pretence and partly by a willfully false promise, and with intent to defraud –

a) obtains from any other person any chattel, money or valuable security; or

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

is guilty of a crime

Penalty: Imprisonment for a team not exceeding five years.

Facts

2. The following facts were put to the accused on arraignment:

On the 10^th day of March 2017, the Accused Charlie McNamara used another person, a Jim Lapi to obtain a quote for 12 cartons of Cambridge cigarettes from Pusamo Trading Limited in Mt Hagen.

Mr. Jim Lapi was given a quotation for an amount of K96, 480.00 and left.

On the 6^th of April 2017, the Accused gave a Pelgens Limited cheque for an amount of K96,480.00 to the same Jim Lapi, who fronted up at Pusamo Trading Limited and handed over the Westpac Bank Cheque # 066016 dated the 3^rd of April 2017 for K96,480.00 in the name of Pusamo Trading Limited.

He was told to wait 5 days for the cheque to be cleared and he could pick up his order.

On the 13^th day of April 2017, Westpac informed Pusamo Trading Limited their cheque had been cleared and Jim Lapi was informed and picked up his order from Pusamo Trading Limited.

On the 23^rd of May 2017, the Westpac Bank Manager, Mt Hagen called the Manager Pusamo Trading Limited and told him the cheque no. 066016 for K96, 480.00 was fraudulent and their account had been reverse charged accordingly to cater for this.

Then on the 18^th day of August 2017, the Accused Charlie McNamara again used Jim Lapi to call the Manager of Pusamo Trading Limited to get a quote for a further 8 cartons of Cambridge cigarettes. This was issued and on the 19^th of August 2017, Jim Lapi presented an ANZ Express Freight Management cheque in the sum of K64, 320.00 to Pusamo Trading Limited for 8 cartons of Cambridge cigarettes.

The Manager recognized Jim Lapi and told him to come back at another time to collect his orders after the ANZ cheque was cleared.

On the 28^th day of August 2017, the Accused sent Jim Lapi to pick up the order from Pusamo Trading. In the meantime, the Manager of Pusamo Trading had arranged with the police to pick Jim Lapi up when he came. Jim Lapi came and the police picked him up at Pusamo Trading. Jim Lapi told the police the owner of the cheques was at Kaiwe market.

The police went in Jim Lapi’s vehicle to Kaiwe market and the Accused Charlie McNamara on seeing them and thinking his cigarettes had arrived, went to the vehicle to pick up his order of 8 cartons of Cambridge Cigarettes but was arrested by police instead.
He is now charged with obtaining 12 cartons of cigarettes valued at K96, 480.00 from Pusamo Trading Limited by false pretense and with intent to defraud pursuant to section 404 (1) (a) of the CCA although he himself did not go with Jim Lapi to Pusamo Trading on that day. The Accused denied the charge and a trial ensued.

Issues

3. The issues to be ascertained from the facts are whether the Accused obtained the 12 cartons of Cambridge cigarettes by false pretense and whether he intended to defraud Pusamo Trading Limited.
   

Evidence

4. All the evidence relied on by the State in relation to the charge against the Accused were tendered into evidence by consent. In fact the statement of all witnessed named on the indictment were tendered with evidence by consent. The record of interview was also tendered into evidence by consent. The record of interview contains admissions by the Accused on his part in the commission of the offence. All invoices, quotations and the Westpac Bank cheque that was falsified were all tendered into evidence by consent. The only oral evidence was given by the investigating officer Detective Sergeant Gabriel Hans.
   
5. The Accused exercised his rights not to give evidence in his own behalf.
   
6. The States’ evidence is therefore not contradicted by the Defence.
   

Section 7 of Criminal Code Act

7. On arraignment the Accused told the Court that he only got K5, 000.00 from this enterprise. I note from the evidence that he himself did not go with Jim Lapi to Pusamo Trading with the fraudulent Westpac Bank cheque of K96, 480.00. However, the State’s case is that his alleged involvement with Jim Lapi and others is caught under S7 of the Criminal Code Act. The defense counsel submitted that the State did not invoke S7 of the Criminal Code Act. The State did invoke S7 of CCA. I checked with the recording by the Court Reporter and my own notes to confirm this. When S7 is invoked it means that the Accused is held accountable and responsible for what Jim Lapi did and Jim Lapi is similarly held accountable and responsible for the actions of the Accused. In other words, each participant in the commission of a crime or offence is responsible for the act of the other. The State in this case alleged that Charlie McNamara is equally responsible for the acts of Jim Lapi and invoked S7 of the CCA to charge him.

8. In order for the benefit and understanding of the Accused and other readers I reproduce S7 of the CCA:

7 Principal Offenders.

1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it: -

1. every person who actually does the act or makes the omission that constitutes the offence; and
2. every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

100. every person who aids another person in committing the offence; and

4. any person who counsels or procures any other person to commit the offence.

2) In Subsection (1)(d), the person may be charged with -

a) committing the offence; or

b) counselling or procuring its commission.

9. In this case the Accused on 6 April 2017 gave the Westpac cheque to Jim Lapi to take to Pusamo Trading in Mt Hagen and Jim Lapi did take the subject cheque to Pusamo Trading. Later 12 cartons of Cambridge cigarettes were collected by Jim Lapi. The evidence from the Record of Interview and the other evidence tendered into court shows that both the Accused and Jim Lapi were working together to pull off this crime. The Accused was doing some things while Jim Lapi was doing some. They had a common interest and goal. When the Accused gave the subject Westpac Bank cheque to Jim Lapi to take to Pusamo Trading he is caught under S7 (1) (a) (b) and (c) of the Criminal Code Act. The law as developed by the courts, is that where two or more persons participate in the commission of a crime or offence each is responsible for the act of the other. See Awap Omowo and Warsa Yirihin v The State (1976) PNGLR 188 and The State v John Badi Woli and Pengas Rakam (1978) PNGLR 51.
10. By that principle of Law the Accused and Jim Lapi participated in the commission of the offence in obtaining 12 cartons of Cambridge cigarettes with intent to defraud Pusamo Trading. When the Accused in his record of interview said he only received K5,000.00 for his part in the crime, he in fact proves beyond reasonable doubt his involvement in the commission of the crime. He knew all along what their plan was and now the plan was to be executed and he knew all along that he would get something out of this.

Decision

11. As indicated earlier all the evidence in this case including all documentary evidence necessary to prove the false pretense was tendered into evidence by the consent of the lawyers. It is deemed that the defense counsel got her instructions from the Accused to tender the evidence without any objection.

12. The most damning evidence is contained in the record of interview and the witnesses’ statements. Indeed the accused was caught "red handed" so to speak. He gave the Westpac Bank cheque to a Jim Lapi. Jim Lapi took the cheque to Pusamo Trading and ordered the 12 cartons of Cambridge cigarettes. The Westpac Bank cheque was initially cleared and the twelve cartons of Cambridge cigarettes were delivered to Jim Lapi. It was subsequently discovered that the Westpac Bank cheque was a fraudulent one. Jim Lapi and the Accused tried their luck the second time, this time with an ANZ EXPRESS FREIGHT MANAGEMENT cheque in the amount of K64, 320.00 for 8 cartons of Cambridge cigarettes from the same company Pusamo Trading. Jim Lapi called Pusamo Trading and told them he was the same person who bought the 12 cartons of Cambridge cigarettes earlier. Jim Lapi did go to Pusamo Trading. He was caught by the police at Pusamo Trading. Jim Lapi then led police in his car to the Accused Charlie McNamara. The Accused thinking that his 8 cartons of Cambridge cigarettes had arrived went to greet Jim Lapi to collect his new order. Instead he got arrested by police.

13. This time they were caught "red handed" and both admitted their wrongdoings, but they also said there were two others in Lae who were the real offenders. They tried to pass the blame on the two men referred to as Wesley and Alfie in Lae.

14. There is overwhelming evidence of the involvement of the Accused in the commission of the crime. He admitted that in his record of interview with the police. The States other evidence supports the accused’s deceitful participation in the crime. The law is that the State or the Prosecution must prove its case beyond reasonable doubt. In this case the State has proven its case beyond reasonable doubt with all the evidence that has been tendered into court.

15. The words "intend to defraud" is not defined in the Criminal Code nor is it defined under the Interpretation Act. Intention is a matter of the mind. An offender intending to defraud is not going to broadcast his or her intention to defraud the person he or she is going to defraud. It is a matter kept within his or her own mind. The intention in the mind to defraud is dishonest and the mind is fraught with deceit, trickery and lies. No one can go inside a mind of a person to know what is in the mind of the trickster before the event until after the event has occurred as in this case. The Oxford Dictionary and Thesaurus – South Asia Edition defines defraud as: "illegally obtaining money from someone by deception." Defraud is synonymous with "swindle, cheat, rob, deceive, dupe, hoodwink, double cross, trick." The same dictionary defines deceit as "behavior intended to make someone believe something that is not true. Simply put, it is dishonest behavior toward someone. See The State v Gabriel Ramoi (1993) PNGLR 390 and The State v Raphael Kuanande (1994) PNGLR 512, The State v Jimmy Kendi (2006) N3200 for comparision.

16. In this case the Accused with the help of Jim Lapi deceitfully presented to Pusamo Trading a fraudulent cheque which was acted upon by Pusamo Trading as a genuine cheque for the payment of the 12 cartons of Cambridge cigarettes. As the evidence shows the 12 cartons of Cambridge cigarettes were received by the accused and Jim Lapi. They obtained the 12 cartons of Cambridge cigarettes by trickery using the cheque which they knew to be fraudulent. Pusamo Trading parted with its 12 cartons of Cambridge cigarettes not knowing the cheque was a fraudulent one. Thus, the offence was completed. The intent of Jim Lapi and the Accused to defraud Pusamo trading was executed to their will and liking. The result intended was achieved. The state of mind of Jim Lapi and the Accused was not known to Pusamo Trading until later when the Westpac Bank rang them to break the news that the Westpac Bank cheque no. 066016 they presented to the bank to be processed was a fraud. In light of that revelation Pusamo Trading Manager was able to by inference work out and tell the state of mind of Jim Lapi and Charlie McNamara and knew he had been duped.

17. Accordingly, I find the accused guilty as charged.
_____________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused