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State v Anthony [2023] PGNC 315; N10476 (21 September 2023)

N10476

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC) NO. 65 & 66 OF 2022


THE STATE


V


ROY ANTHONY & RONALD KAPIKAM


Waigani: Berrigan J
2023: 14th, 15th, 16th, 27th February, 10th March and 21st September


CRIMINAL LAW – S 404(1)(b), Criminal Code – Inducing delivery of monies by false pretence – Elements of offence.


Cases Cited:
Papua New Guinean Cases


Albert Alexander Age v The State [1979] PNGLR 589
Roland Tom v State (2019) SC1833
Prosecutor’s Request No. 4 of 1974 [1975] PNGLR 365
Banaso v The State (2022) SC2302
Wamela v The State [1982] PNGLR 269
Karani and Aimondi v The State [1997] SC540


Overseas Cases


Balcombe v. De Simoni [1972] HCA 9


References Cited


Sections 1, 7, 403, 404(1)(b) of the Criminal Code (Ch. 262)


Counsel


Ms T Aihi and Ms L Ilave, for the State
Mr K Makeu, for Roy Anthony
Mr D Kaiyok, for Ronald Kapikam


DECISION ON VERDICT


21st September 2023


  1. BERRIGAN J: The accused, Roy Anthony and Ronald Kapikam, are jointly charged with one count of obtaining goods or credit by false pretence contrary to s 404(1)(b) of the Criminal Code (Ch. 262) (Criminal Code), such that by falsely pretending to Clement Paubali that they had the lawful authority to sell the property located at Allotment 30, Section 46, Moru Street, Boroko, National Capital District they induced Clement Paubali to deliver to Marine Holdings Ltd monies in the sum of K514,896.23.
  2. The State alleged that the complainant applied for a Kina Bank Limited Home Loan for the purpose of buying a house. The loan was approved in March 2019 but in the meantime the property the complainant intended to buy was sold to another person. The complainant was advised by the Kina Bank Home Loan Manager to look for another property and so the complainant engaged Robert Elema a freelance real-estate agent for that purpose. Mr Elema consulted another freelance agent who informed him about Allotment 30, Section 46, Moru Street, Boroko, National Capital District (the property) which was also for sale for the price of K800,000. Roy Anthony introduced himself to the complainant as a Fraud Squad Police Officer attached to Boroko Police Station dealing with the property. Roy Anthony told him that the property was owned by one Joe Mur. Roy Anthony along with other persons showed him a copy of the purported title for the property which bore the name of Joe Mur. Relying on that representation the complainant signed a contract of sale for the sum of K600,000 for the property. On the date of settlement, the accused Ronald Kapikam falsely presented himself to the complainant as Joe Mur, the alleged title holder of the property. Of the sale amount K514,896.23 was paid by cheque which was deposited into the bank account of Marine Holdings Limited, a company belonging to Roy Anthony, who was the signatory of the account.

STATE CASE


  1. The key witness in this case is Clement Paubali. He gave evidence that he engaged Robert Erema, a freelance real estate agent, to find him a property to purchase. Robert found a property in respect of which Clement applied for and was approved a Kina Bank home loan. In the meantime, however, the property was sold to another person so Clement asked Robert to find him another property within the approved range. Robert subsequently found a property through another real estate agent, Nigel Kayun, who referred him to Roy Anthony. Clement met Roy in early February 2019 at the property for an inspection. Present were Robert Erema, Roy Anthony and another person Nick Harrison, whom Roy introduced as his wantok. Nick did not explain who he was. They did not go into the property. Clement was told they could not go inside because the tenants were inside. Roy told him that Francis Marus was living in the property. He did not meet Mr Marus on that occasion. He met him when the property was later inspected for valuation purposes by the bank. Roy Anthony told him that Francis Marus had been living there for 12 years.
  2. Roy told him that he owned the property and that he was a property detective and prosecutor at Boroko Police Station. The neighbours, Roy’s wantoks, confirmed that Clement was talking to the right person. Roy told him that he had the original title. He did not see whose name was on the title. He did not get a good look at it. Roy just pointed to it inside his ten-seater vehicle as he was driving out. Roy later told him that he was acting on behalf of Joe Mur. Clement met with Roy once or twice and was in communication with him via telephone. Clement gave his offer to purchase the property to Roy through his agent Robert Elema. He offered K600,000 because the property was run down. He addressed the offer to Joe Mur as per the title copy. Roy gave him the title with Joe Mur’s name on it when his offer was accepted. Clement prepared the contract of sale, Exhibit P1, using a standard form contract provided to him by the late Thomas Imang, a lawyer. Clement’s signature was witnessed by Robert. He did not sign at the same time as Joe Mur. Robert told him that it was not normal practice for the vendor and purchaser to come together to sign because the agent might lose their commission. Clement called Roy several times before that asking to meet Joe Mur but Roy always gave excuses. The loan was delayed because it had initially been approved for another property. Roy chased him for settlement and threatened to cancel the sale but when Clement told him to cancel said that he would give him more time.
  3. Settlement took place on or about 26 April 2021 at 9th floor Kina Bank Haus. Roy Anthony called him and said we are settling now. Present were Clement, Robert Elema, Nick Harrison, Joe Mur and his lawyer. This was the first time he met Joe Mur. After settlement Joe Mur asked Clement to give some time for the tenant, Francis Marus, to vacate.
  4. After more than two months Clement called Roy and said he wanted vacant possession as soon as possible. Roy said “we gave the money already to Francis Marus and why he is still living there and if he continues to do that I will remove him myself and so get ready with your boys to go and look after that place”. Clement continued to chase Roy for vacant possession because he was starting to pay the loan. He went to the property and asked those living there and they said they would move out soon. He left his number, and they called him on Friday, 21 June and told him they were moving out. He said it was late notice and told them to stay for the night. On Saturday, 22 June he took his wife and three children and Robert Elema to the property. He got the key and was cleaning up. Other neighbours asked what he was doing. A person, Louis Floren, arrived and said that he was the owner. He told them that he was the boss of Southern Division Command Mobile Squad. Clement calmed him down and told him that he was the new purchaser. Clement took the children away. When he returned the lock on the gate to the property had been changed. He conducted his own enquiries with the National Housing Commission (NHC) and reported the matter to Boroko Police Station. He tried calling Roy, but his phone was off. He told Robert to keep a look out. Robert called him and said that he saw Joe Mur at the betting shop at Boroko. He called Anthony Sine, the investigating officer.
  5. After Clement reported the matter to police, he instituted a civil suit against Kina Bank to get his equity back. An officer at Kina Bank told him that it would write off the loan if he gave it K50,000 but he refused and brought civil proceedings against the bank.
  6. On the day of settlement Clement met Roy outside the bank before going into the settlement room. Roy was sitting in his vehicle. The cheque was initially made payable to Joe Mur but whilst they were inside the room at settlement Nick Harrison got a call which he said was from Roy Anthony. Whilst who called Nick is hearsay, the payment was changed from Joe Mur to Marine Holdings. A separate cheque for K40,000 was cashed out and handed over to Joe Mur. It was part of the purchase price. They insisted on coins for the weekend. They drove to Maybank and Roy followed in his Landcruiser. Clement cashed the cheque and gave the money to Nick Harrison in front of Robert Elema. Nick got in the vehicle with Roy and they drove out.
  7. He did not conduct a title search because he assumed the bank would do its own due diligence and he paid fees for that purpose.
  8. The only time Clement met Ronald Kapikam prior to his arrest was on the day of settlement. The only time Ronald spoke was when he introduced himself as Joe Mur. Most of the speaking was done by Nick Harrison. After settlement Ronald asked Clement to give the tenants some time to move out.
  9. Robert Elema gave evidence that he found out about the property when he rang Nigel Kayun. He then met Nigel, Roy Anthony and an officer from NHC, Nick Harrison Yao, at the property. They showed him the title in the name of Joe Mur and told him the title was clear. He asked to meet Joe Mur and met him at the back of the Boroko Post Office. He showed a copy of the title to Clement and then he and Clement met with Roy, Joe Mur and Nick Harrison at the property for a site inspection. They were told that Francis Marus was the tenant by the boys there. They told Clement that Joe Mur had gone through the process of obtaining title from NHC. They went back for a second inspection when the tenant was there. Francis Marus told Clement and himself that Roy had helped Joe Mur obtain the title. Clement agreed to purchase the property for K600,000. He witnessed the contract of sale. Joe Mur and his witness signed the contract first. He understood that Kina Bank would do its own title searches and assumed they did because it took a long time to settle the property. Settlement took place at 9th Floor Kina Bank with Nick Harrison, Nigel Kayun, himself, an agent and Clement. Joe Mur was present but most of the talking was done by Nick Harrison. K40,000 was given to the agents involved via a cheque addressed to Clement. He received K7000. Roy and Joe Mur promised him and Nigel K20,000 when they were first engaged but it was difficult for him to press it. Clement subsequently told him he had been defrauded and could not get possession. He was contacted by police. He saw Joe Mur at a betting shop in Boroko and called the investigating officer Anthony Sine, who arrested him.
  10. He agreed in cross-examination that his statement only referred to the first inspection and the request for the price not the second inspection when they met Francis Marus. He said that he met Joe Mur at Boroko, then at the second and third inspections but most of the talking was done by Nick Harrison and Roy Anthony. After settlement Clement withdrew K40,000 and gave it to Nick Harrison who gave him K7000.
  11. The investigating officer Detective Constable Anthony Sine commenced investigations after a complaint by Antoinette Rumet into the property. He found out that Clement had purchased the property and asked him to come and lay a separate complaint. He arrested Joe Mur when called by Robert Elema to a betting shop in Boroko. He called Clement and asked him to identify someone he had inside whose name is Ronald Kapikam. Clement walked into the station and greeted Ronald Kapikam as Joe Mur. He has issued a warrant to arrest Nick Harrison but is yet to find him.

DEFENCE CASE


  1. Roy Anthony, from Wabag, Enga Province, has been a police officer attached to the Fraud Squad since passing out in 2010. He has been working in real estate since suspended in 2017. Nigel Kayun told him he had a property for sale. Roy met with Nick Harrison and Benjamin Rolu another freelance real estate agent and Nigel who introduced Nick as an employee of NHC and gave them the title in the name of Joe Mur. Nigel told him some weeks later that he had found a potential buyer and arranged an inspection with Benjamin. He went to the property and met Nick Harrison, Francis Marus, and a couple of families who lived there. Francis Marus told him that Joe Mur lives in the property and because Francis Marus was a senior politician and former speaker of the House who lived in the property, he accepted it. Nick Harrison gave him the original title. Nigel Kayun introduced Roy to Clement Paubali and Robert Elema who came to inspect, and he took them inside the property. Before that he gave a copy of the title to Nigel Kayun, and they came to the property with the title copy. It is not his property. He was the agent selling it. Clement verbally offered K600,000 which Nick Harrison accepted. Clement and Robert drove off and he went back inside the property to hand over the title to Nigel Kayun and Francis Marus and left.
  2. Two months later Nigel called him, and he picked up the offer, acceptance and contract from Nigel Kayun and Robert Elema at Five Mile. He delivered the documents to Francis Marus. Nick Harrison was not there. A day later he was called back to pick up the contract which was already signed by Joe Mur as vendor. Nick Harrison told him he had to witness the sale as the agent, so he signed the contract. He then delivered the contract, offer and acceptance to Nigel Kayun and Robert Elema.
  3. Nothing happened for a couple of months. He called Nigel who told him he had not received anything from Robert and so they waited. After three months Nick Harrison came to his house with a Kina Bank cheque with his company’s name on it. Nick was drunk and told him they had settled “so take your 10% and give us the money”. Prior to the initial agreement to sell the property he told Nick Harrison and Francis Marus that he owned a company, Marine Holdings. He is selling through the company and will take 10% commission. The next day he deposited the bank cheque. He told Nick to wait for three days and when it cleared, he withdrew K430,000 and took it to the property. Nick told him the figure because they already cashed some money, so it was K400,000 plus his GST. He took the cash to the property with his wife. Nick Harrison and Francis Marus were there, and he handed over the money on the verandah in three bags. He told them they have to give clear possession to the buyer in 14 days. After two months he received a call from Nigel saying that Francis had not moved out. He went to the property and argued with Marus, and he asked for one day. He was not happy, so he went and hired a truck from his brother and got some boys and told Francis Marus he had to move out which he did on a Thursday. He told Nigel Kayun on Friday. Clement came to the property but said he would come back the next day and the next day he placed him in the property. On Sunday afternoon Nigel called him saying that police were arresting Clement at the property. He went there and saw five SVUs. He did not want to cause a commotion with the police, so he drove away. He paid Robert and Nigel K10,000 each, not K7000.
  4. He signed the Transfer instrument, P 15. It came with the contract and goes to IRC. Clement’s lawyer handed it to him. He witnessed it and gave it to Nigel and Robert, and they gave it to Clement to go to the IRC. He signed because he trusted Francis Marus. He was not at all suspicious. He did not check the title given to him by Nick Harrison. He told Clement that he was a Fraud Squad police officer and that his company Marine Holdings is registered for real estate. He did not think it was strange that the money was paid through his account. He does not know why it was paid to him and not Joe Mur because he was not at settlement. He only met Clement twice, at inspection and then when he evicted Francis Marus. Communication with Clement was through Nigel Kayun, Nick Harrison and Robert Elema because they respected one another as freelancers and did not want to miss out on commission. He told Clement that the owner was Joe Mur. His name was on the title. He never met Joe Mur.
  5. Bridget Anthony, Roy’s wife, gave evidence that in May 2019 Roy told her that there was a payment for Robert Elema as part of his real estate business. They went and withdrew K430,000 and went to a house in East Boroko. She stayed in the car.
  6. Ronald Kapikam from Sori, New Ireland, is an admin driver for Pacific Garden Food. He is educated to Grade 7 at Rabaul High School. Nick Harrison came and picked him up from his home at Gerehu. He was unemployed at the time. Nick said that he was going to get some money, so he wanted him to escort him. He went with him to Deloitte Tower in town. He stood by himself on one side in the room and Nick spoke to the other men on the other side, whom he did not know. He did not speak to anyone, not even to say hello. He did not know them. He did not know what they were doing with the papers. Nick just asked him to follow him inside. He did not say he was Joe Mur. After that Nick dropped him off and left. He did not know what happened. Nick is a brother to him in the street where they live. Police arrested him and called a man whom he had seen at the building, but he did not know who he was. The man did not call him Joe Mur but shook his hand and left. He did not know and had never met Roy Anthony before the court proceedings.

SECTION 406(1)(b), CRIMINAL CODE


  1. Section 406(1)(b), Criminal Code creates the offence charged (emphasis mine):

(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) 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 term not exceeding five years.

(2) It is immaterial that the thing is obtained or its delivery is induced through the medium of a contract induced by the false pretence or the wilfully false promise, or partly by the false pretence and partly by the wilfully false promise, as the case may be.


  1. The State must prove beyond reasonable doubt that the accused:
    1. by a false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise;
    2. with intent to defraud;
    1. induced any other person;
    1. to deliver to any person;
    2. any chattel, money or valuable security.

FINDINGS OF FACT


  1. It is not in dispute, and I find that Roy Anthony represented to Clement Paubali that he was Joe Mur’s agent, that is that he was acting for Joe Mur in the sale of the property. Clement Paubali signed a contract of sale for the property between himself as purchaser and Joe Mur as vendor for the price of K600,000. The contract bears a signature for the vendor, Joe Mur. Roy Anthony signed as witness for the vendor attesting that the contract was “signed by the vendor” in his presence on 12 February 2019. On the same date, Roy Anthony also signed the transfer instrument for the property, again attesting that the transferor, Joe Mur, signed in his presence.
  2. Settlement of the purchase took place at Kina Bank on 26 April 2019. Present were Clement Paubali, Robert Elema, Nick Harrison, Ronald Kapikam, an unnamed lawyer and a bank officer. Following settlement, a Kina Bank, bank cheque dated 26 April 2019 in the sum of K514,896.26 was deposited to the bank account of Marine Holdings Limited by Roy Anthony on 29 April 2019. Marine Holdings Limited is a company wholly owned and operated by Roy Anthony. K430,000 in cash was withdrawn from the account by Roy Anthony on 2 May 2019.
  3. I further find that Clement Paubali was unable to take possession of the property. He conducted inquiries with the NHC following which he reported the matter to police. He put a stop to the loan with Kina Bank. He is in a dispute with Kina Bank and has brought civil proceedings against it.

CONSIDERATION


  1. The State did not call witnesses from either the Lands Department or the NHC. It tendered a number of documents by consent and whilst the provenance and authenticity of the documents was not challenged, I exercise caution in the circumstances. Nevertheless, it does appear that the ownership of the property is a matter of some dispute. On the affidavit and oral evidence of the investigating officer, who was not challenged, a Mr Jacob Simet, through his relative Ms Antoinette Rumet, has also lodged a complaint with both police and the NHC claiming that he purchased the property through the Government Sell of Scheme in 2016. There is a transfer instrument to this effect. There is some documentation, including a contract of sale and a transfer instrument dated 11 September 2017 that suggests that a person by the name of Joe Mur purchased the property from NHC. There is a Kina Bank document which contains a copy of the title showing transfer to Joe Mur on 16 January 2019. NHC maintains that the title is fake or has been fraudulently obtained. No officer or title search or other records were produced from the Lands Department to establish in whose name the title is registered. The title was not produced.
  2. In the circumstances it is not possible for me to make any finding about who in fact owns the property or in whose name it is registered but for the reasons below that is not necessary for my determination.
  3. I make the following findings having heard and observed the witnesses whilst giving evidence and having regard to their evidence by itself and in the context of the evidence in the case as a whole, together with logic and common sense, and bearing in mind that I may accept or reject any part of a witness’ evidence: Maraga v The State (2009) SC968; James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173.

By False Pretence


  1. Pursuant to s 403(1), Criminal Code, a false pretence is a representation made by words or otherwise of a matter of fact, past or present that is false in fact and the person making it knows to be false or does not believe to be true. A false representation goes to material existing facts (as opposed to a promise to do something in the future or a representation by the representor as to the existence of an intention to do something in the future): Albert Alexander Age v The State [1979] PNGLR 589 at 592.
  2. I am satisfied beyond reasonable doubt that Roy Anthony falsely represented to Clement Paubali that he had lawful authority to sell the property when he knew that was false or did not believe it to be true.
  3. There is no dispute that Roy Anthony represented that he was acting as the owner’s agent in the sale of the property. Roy Anthony represented to Clement Paubali that Joe Mur intended to sell the property and that he had instructed him to act in the sale. By his own admission several times in evidence and specifically in answer to my questions, he told Clement that he was acting for Joe Mur to sell the property. In addition, he signed the contract of sale and the transfer instrument in furtherance of the representation that he was lawfully authorised to sell the property.
  4. I am also satisfied beyond reasonable doubt that Roy Anthony knew that the representation was false or did not believe it to be true. Even assuming that there was a Joe Mur in whose name the property was registered, by his own admission Roy Anthony never obtained Joe Mur’s authority to sell the property. Roy Anthony never met him or obtained any written or other instruction from Joe Mur. Roy Anthony knew that the person whose name appeared on the title had not authorised him to sell the property.
  5. I reject his evidence that he relied on the vague oral assurance of Francis Marus for that purpose. He does not make clear what Francis Marus told him other than that Francis Marus and Nick Harrison purportedly assured him that Joe Mur lived with them so it would not be a problem and he could trust them both. I reject his evidence that he took that “as a guarantee from a statesman”.
  6. Any reasonable person would know that an assurance by a person other than the owner does not constitute authority from the owner. Tenants do not act on behalf of their landlords. Similarly, the provision of documents purportedly signed by the owner by a person who is not the owner does not constitute authority to sell. The documents could have been signed by anybody. Again, any reasonable person would know that. Roy Anthony, however, was a police officer of several years standing and moreover, a fraud investigator. He had also been acting as a real estate agent for some time. Of course, he knew that instructions from anyone other than the owner did not constitute lawful authority to act on behalf of the owner.
  7. In addition, Roy Anthony signed the contract of sale and the transfer instrument expressly and falsely attesting to the fact that he witnessed the signing of both documents by the owner, Joe Mur, when by his own admission that did not happen in either case.

Induce any person

To deliver to any person
Any chattel, money or valuable security


  1. I will deal with these elements together.
  2. The false pretence must induce the delivery of the chattel, money or valuable security. The term “induce” is not defined and should be given its ordinary meaning, to bring about or succeed in persuading or influencing: The New Oxford Dictionary of English, 1998. Similarly, unlike the word “obtain” in s 406(1)(a), which requires the obtaining of title, “delivery” should also be given its ordinary meaning, to deliver or give to another possession, care or control.
  3. I am satisfied beyond reasonable doubt that the false pretence that Roy Anthony had lawful authority to sell the property induced Clement Paubali to deliver money in the sum of K514,896.23 to Marine Holdings Ltd. Clement was induced to deliver the money by way of payment for the purchase of the property pursuant to the contract of sale which Roy Anthony represented had been agreed to by the owner and furthermore had been signed by the owner, together with the transfer instrument, in his presence. It is obvious that Clement would never have delivered money to Joe Mur or Marine Holdings Limited or any other person for that matter if he had known that Roy Anthony did not have lawful authority from the owner to sell the property in the first place and had not witnessed the signing of the sale contract and the transfer instrument by the owner as he attested.
  4. It is immaterial that the delivery was made through the bank pursuant to Clement’s home loan facility with it. It is immaterial that the monies were delivered by way of cheque payable to Marine Holdings Ltd and not Joe Mur. Clement allowed the delivery of the monies to Marine Holdings Ltd, which he understood was for Joe Mur’s benefit, in settlement of the contract with Joe Mur which he was induced to enter and settle by Roy Anthony’s ongoing false pretence. For similar reasons, it is immaterial that the appearance of Ronald Kapikam as Joe Mur at settlement may have strengthened or supported the ongoing false pretence.
  5. “Money” is defined in s 1, Criminal Code to include bank notes, bank drafts, cheques, and any other orders, warrants, authorities, or requests for the payment of money. I am satisfied beyond reasonable doubt that the cheque payable to Marine Holdings Ltd was money.
  6. I am further satisfied beyond reasonable doubt that Marine Holdings Ltd is a legal person.

With intention to defraud


  1. An intention to defraud is an intention to deprive a person of property which is his or to which he might be entitled, or to put the property of that other person at risk, or to imperil some lawful right, interest, opportunity or advantage of another person; by using deceit, or fraudulent or dishonest means; knowing that he has no right to deprive that person of that property or to prejudice those rights or interests: Roland Tom v State (2019) SC1833 applying Scott v Metropolitan Police Commissioner [1974] UKHL 4; [1975] AC 819 and Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493.
  2. It is not necessary that the accused cause or intend to cause a loss to the representee: Age v The State [1979] PNGLR 589. In that case the appellant was convicted of obtaining K2054.96 by falsely pretending to a bank that a personal loan application in the name of Patrick Patu was a true and valid application for funds to be made available to Patrick Patu to enable him to purchase a Datsun utility when in reality, the appellant had reached his credit limit with the bank and the monies were intended for him. In dismissing the appeal the Supreme Court found that the intent to defraud necessary to constitute the offence was present (emphasis mine):

“The intention was to induce the bank to do what it would not otherwise have done, if it had known the truth, and thereby to act to its detriment. The appellant was dishonestly seeking an advantage for himself; and it is not essential to have established that necessarily, economic loss to the representee would have resulted (Balcombe v. De Simoni [1972] HCA 9; (1972) 126 CLR. 576 at pp. 583-584; Prosecutor’s Request No. 4 of 1974 [1975] PNGLR 365)”.


  1. The discussion by Gibbs J in Balcombe v De Simoni, supra is also instructive (emphasis mine):

“Similarly, it is not necessary that an accused person should have intended to use the property for purposes different from those for which the victim of his deceit understood he would use it before he can be held to have had an intent to defraud. What is essential is that he should have intended to obtain the property by means of a deception. To say this is not to fail to give proper weight to the words "with intent to defraud". If those words did not appear in the section it would be enough if the accused made a statement which was false to his knowledge and if the person to whom the statement was made was induced to part with property by reason of such false pretence, and it would be immaterial whether the statement was intended to have that effect. What the inclusion of the words "with intent to defraud" makes necessary is that the accused should have made the false pretence with the intention of inducing another person to part with property. Therefore, if a beggar obtains money by pretending to be blind, and with the intention that the person to whom the pretence is made should be induced by that pretence to give him alms, the offence is committed notwithstanding that the money is used exactly as the person who gave it intended that it should be used, for the relief of the beggar. Similarly, if a man, by pretending to hold a certain position, or to possess certain assets, intentionally induces another to lend him money which he would not otherwise have lent, the former has an intent to defraud, notwithstanding that he intends to use the money for the very purpose for which he says he wants to borrow it.”


  1. I am satisfied beyond reasonable doubt that Roy Anthony’s intention was to induce Clement Paubali to do what he would not otherwise have done if he had known the truth and thereby act to his detriment. Clement would never have entered the contract with Joe Mur or delivered the monies to Marine Holdings Ltd in settlement of the contract had he known that Roy Anthony was not authorised by Joe Mur to sell the property. Or in other words, Roy put the property and rights of Clement at risk by using deceitful means, namely falsely representing that he had lawful authority to sell the property when he knew that he did not. It was not necessary for the State to prove that Clement Paubali would have suffered economic loss or that Roy Anthony believed that he would. Conversely, it was not necessary for the State to prove that the accused intended to use the proceeds of sale for a purpose different from that which Clement understood he would use them, that is for payment to Joe Mur.
  2. The totality of the evidence, however, establishes a much greater level of culpability on the accused’s part. The evidence establishes that:
  3. Roy Anthony might not have known whether Joe Mur ever held registered title, or whether he was dead or alive, but the only rational inference having regard to the above facts and circumstances is that Roy Anthony was working with Nick Harrison to sell the property without the knowledge of the registered title holder for their own benefit.
  4. In making this finding I reject the submission that Clement should not be believed because he said that Roy initially told him that he owned the property and later told him that he was the agent for the owner. Clement said that he was satisfied with Roy’s explanation that he was acting for the owner and that was consistent with the other evidence. I was initially of the view that Roy possibly meant that he “owned the property” and “had the title” in the sense that he was the agent in charge of it but in the totality of the evidence his initial statements are consistent with him representing that he owned the property and then realising that it was safer for him to represent that he was instead acting for the owner.
  5. It is the case that Clement did not mention in his statement the separate payment of K40,000 on settlement to the agents involved but Robert Elema confirms that there was a separate payment of K40,000 and Roy confirms that some money had already been cashed. I accept Clement’s evidence as to the circumstances in which that took place.
  6. Roy Anthony was an unimpressive witness. He was argumentative and defensive at times. I find much of his evidence implausible and contrary to logic and common sense. When asked if he understood the significance of verifying that the contract for sale and transfer instrument had been signed in his presence, he departed from his evidence that he was a fraud investigator and said that he was in charge of the cells.
  7. As above, I reject Roy’s evidence that he relied on representations by Francis Marus and Nick Harrison to sell the property. Whilst I find that Roy and Nick were working together it was Roy Anthony who made the false pretence that induced the delivery of the monies to his company’s bank account. The role of Francis Marus, if any, is not clear. On Clement’s evidence he only met him once inside the house but there is no evidence of what he said to Clement.
  8. It is unclear what happened to the balance of the monies after Roy withdrew them from his company’s account. He says he delivered them to Francis Marus and Nick Harrison, but his evidence is unreliable. His wife’s evidence about that was also vague and unconvincing. Critically, the evidence excludes any rational inference that he withdrew the monies with the intention of paying them to Joe Mur or to his benefit.
  9. In conclusion, the accused, Roy Anthony, is convicted of the offence charged in the indictment.

RONALD KAPIKAM


  1. I find that Ronald Kapikam was brought to the settlement by Nick Harrison, with the knowledge of Roy Anthony, to maintain and support the ruse that the sale was authorised by Joe Mur as the registered title holder.
  2. Ronald Kapikam admits that he was present at Kina Bank on the day that other evidence establishes that settlement took place. The evidence does not establish that Ronald played any other role in the events other than at settlement.
  3. I am unable to accept Robert Elema’s evidence that Ronald, posing as Joe Mur, was present at the time Clement first inspected the property. The evidence is inconsistent with Clement’s evidence, which I accept, and inconsistent with Robert’s own statement.
  4. Robert’s demeanour was poor, and he did not impress me as a witness. He said on two separate occasions during his evidence that he verified that the title was genuine but later said he did not conduct a search because he assumed the bank would do it. I reject his evidence that the contract for sale was already signed by the seller when Clement signed it. I accept Clement’s evidence which is not disputed by Roy Anthony that Clement signed first. In the circumstances, I exercise caution with respect to Robert’s evidence except where it is corroborated by other evidence.
  5. Ronald Kapikam denies that he spoke to anyone at settlement. I accept Clement’s evidence that Ronald introduced himself as Joe Mur. Clement’s evidence also establishes, however, that Nick Harrison did most of the talking during settlement.
  6. To establish liability pursuant to s 7(1)(c) of the Criminal Code the State must establish beyond reasonable doubt that: a) the offence was committed; b) the accused knew the essential facts constituting the offence, including where relevant the state of mind of the person who committed the offence; and c) the accused intentionally aided (assisted or encouraged) that person to commit the offence: Banaso v The State (2022) SC2302 at [97]. For the purpose of s 7(1)(b) is it necessary to establish a), b) and c) that the accused did or omitted to do any act for the purpose of, or with the intention of, enabling or aiding that person to commit the offence, even if those acts or omissions did not in fact assist: Banaso, supra at [109].
  7. It is not enough to show that the accused knew of the possibility that a crime was to be committed. But it is not necessary that the accused knew that the particular offence would be committed on a particular day at a particular place. The prosecution must show that the accused knew that an offence of the kind that was committed was intended, and with that knowledge did something to help the offender commit it: Banaso, supra applying Wamela v The State [1982] PNGLR 269; Karani and Aimondi v The State [1997] SC540.
  8. It is difficult to imagine that a person standing in a bank pretending to be someone they were not would not appreciate that they were aiding an offence against s 404, Criminal Code such that they were aiding a false pretence which was intended to induce the delivery of money which would not have been delivered had the truth been known, even if they did not know the details of the offence. It is highly likely that Ronald appreciated that too at the relevant time. There is, however, no evidence of prior involvement on his part. The evidence about what happened at settlement was also very limited. Evidence as to how large the room was, where those present were situated, how long the process took, and what was said during the process was lacking. Ronald did ask for some time for the tenants to move out after settlement, but it is not clear to me when or where or how long after settlement this occurred. If Ronald had been a more well educated or experienced person or if there was more evidence about what was said during the settlement process or that he benefited in some way I might well have found otherwise but I intend to give him the benefit of the doubt.
  9. Ronald Kapikam is acquitted of the charge contained in the indictment.

Verdicts accordingly.
________________________________________________________________
Public Prosecutor: Lawyers for the State
Makeu Legal Services: Lawyers for Roy Anthony
Public Solicitor: Lawyers for Ronald Kapikam

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