State v Godfrey [2024] PGNC 371; N11036 (14 October 2024)

N11036

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 202 OF 2023

THE STATE

V

WILLIE GODFREY

Mt Hagen: Berrigan J
2024: 12^th, 26^th July and 14^th October

CRIMINAL LAW – PRACTICE AND PROCEDURE – OBTAIN BY FALSE PRETENCE – Section 404(1)(a) of the Criminal Code – Elements of Offence - Whether representation was false at the time it was made – Whether at the time the monies were obtained the accused held intention to defraud - Not guilty.

Cases Cited
State v Ima (2020) N8676
Age v The State [1979] PNGLR 589
Roland Tom v The State (2019) SC1833

References Cited
Section 404(1)(a), Criminal Code

Counsel
Ms M Tamate, for the State
Mr F Timbu, for the Accused

DECISION ON VERDICT

26^th July 2024

1. BERRIGAN J: The accused, Willie Godfrey, is charged with obtaining K20,000 by falsely pretending to Pes Mondo that a piece of land he owned at Reibiamul in Mt Hagen was available for sale, with intent to defraud, contrary to s 404(1)(a), Criminal Code.
   

State Case

2. The State called three witnesses, Pes Mondo, Edwin Mondo and Felix Tim.
   
3. In summary their evidence was that the complainant, a retired police officer from Southern Highlands Province, wanted to purchase a property in Mt Hagen, where he had been living. On Sunday, 9 October 2022 he, his wife, his son, Edwin, who flew in from Port Moresby to help him, together with a relative, Felix Tim, met with Robin Konk. Robin took them to look at two pieces of land, but neither were suitable. Robin told them that one of his tambus had land at Reibiamul and so they went there and met the accused. The accused told them he was selling the land for K50,000 but after discussions a price of K30,000 was agreed. They then drove back to town and parked near the Highlander Hotel. Edwin, who was carrying K20,000 in an envelope in his bilum, took it out and handed it to the accused who signed a receipt for the sum of K20,000. Edwin asked the accused if he wanted to get into the vehicle and count the money, but the accused said something to the effect of “we are not kids, we are adults”. He put the money into his jacket without counting it. At his request they dropped the accused at the hospital so that he could visit one of his relatives. Edwin then collected his bag from the house and flew out. It was agreed that K20,000 would be paid upfront and K10,000 over time after they built a fence.
   
4. On Tuesday, Pes got some boys and went with the accused to the land to build a fence. They returned on Wednesday to work when two men and a young man came and stopped them. The men told them that the land belonged to the young boy and that they had to stop work. Pes told the accused that there is an issue now and to sort it out with his people. When he spoke to him two weeks later the accused told him that he had distributed the money to family members, and he needed time to collect it and bring it back. The complainant went to find him in the village, but relatives told him that the accused was attending a death and so after a month he reported the matter to police.
   

Defence Case

5. The accused denied that he ever received K20,000. He claims that he told the complainant that the land was for sale for K50,000. At his request they dropped him at the hospital to visit his brother. Edwin gave him K50 and told him they would settle the deal on Monday. But ten minutes later he received a phone call from Pes saying that he should come immediately to the hospital gate to finalise the deal. In the vehicle he refused to accept K30,000. They went back to see the land and then came back into town again. Pes said he wanted to give him K20,000 towards the deal and to find some witnesses. They searched for Mek Nou who was with them earlier, but they could not find him. He suggested getting a witness from the village, but they said it was too far. He told them he wanted to have it witnessed at the police station, but they did not agree to that either. They found their own witness, Michael Pikus, Mek Nou’s brother. He objected to him as not being of good character. Outside the Highlander Pes told him to sign the receipt. He did so because he thought Pes would then count the money and give it to him. Edwin gave him the envelope. The accused said “let’s count it” but Edwin said time was running, he had to go to the market and check in, and when he wanted to break open the envelope, Edwin fired up the car and so he jumped on the vehicle. They dropped him near a phone booth on the way to the market. He opened the envelope and saw there were only K20s in the envelope, adding up to K3000. He called Pes and told him there was K3000 instead of K20,000. Pes told him it was drink money, and they would finalise the deal when they bring in leaders and do a proper transaction of settlement. On 11, 12 October they cleaned the site, but the work then came to a stop. His younger brother stopped them. His younger brother had heard that he received K20,000 and did not believe he only received K3000. So, they stopped and waited for them to finalise the deal and do a proper state dec with the leaders. But Pes got him arrested instead. The land is customary land. There is no title. The land is his. It was his parents, and it is his now.
   

Obtaining monies by false pretence

6. To establish the offence the State must prove beyond reasonable doubt that the accused:
   
   1. by a false pretence (or a wilfully false promise, or partly by a false pretence and partly by a wilfully false promise);
   2. obtained from another person;
   100. any chattel, money or valuable security;
   4. with intent to defraud.
      

State v Ima (2020) N8676 at [29]. See Age v The State [1979] PNGLR 589 for application of principles.

7. The State must establish that the accused obtained the monies by reason of or as a result of a false pretence: Ima at [32] applying R v Roebuck (1856) 25 LJMC 101. The State must further prove that the accused possessed an intention to defraud and that he possessed the intention at the time the monies were obtained: Age v The State, supra.
   

Consideration

8. I am satisfied beyond reasonable doubt that the accused received K20,000 from the complainant on 9 October 2022. The State’s evidence about that was clear and supported by a receipt which the accused admitted signing. The State’s witnesses impressed me as witnesses of truth and reliability.
   
9. The accused’s evidence is implausible on that point for various reasons. It is implausible that he did not insist on counting the money inside the vehicle if he was worried about it and even more implausible that he then proceeded to count the money – K3000 in K20 notes - in public, out on the street, on his own, as soon as he got out of the vehicle. There is also a photograph of the accused holding the envelope containing the cash soon after he received it and there is nothing in that photograph that suggests that he is any way rushed or uncomfortable about arrangements. He looks very happy in fact.
   
10. It is further implausible that the accused was prepared to proceed with the sale of the land at all when he says that he did not agree to K30,000 and moreover, on his evidence that he had been lied to, tricked into signing a false receipt, and given a measly K3000. His evidence that he allowed, let alone assisted, the complainant to start clearing the property ready to occupy it in those circumstances beggars’ belief.
    
11. The State has, however, failed to prove beyond reasonable doubt the essential issue in this case and that is whether the accused falsely pretended that the land was his or that he was authorised to sell it at the time he obtained the monies.
    
12. The State led no evidence to establish the status of the land and the accused’s entitlement to sell it or otherwise. No-one from the village was called.
    
13. It appears that the land is customary land but there was no evidence as to the arrangements governing it.
    
14. The complainant himself said that it appeared to him that there was no dispute about the land at the time he inspected it, at which time there were at least two people from the village present with the accused.
    
15. Is it possible that the accused planned with those other persons present to trick the complainant into believing that the land was his to sell? It is possible but the State has not established that to the requisite standard.
    
16. On the State’s evidence the complainant’s first visit to the land does not seem to have been planned. And if the accused had no authority to sell the property he was always going to be caught out by, and face repercussions from, both the complainant and those who did own the land, from the area in which he lives.
    
17. Furthermore, the State has not excluded the possibility, which seems much more likely to me, that the dispute arose because, as the accused himself says, the young man who came and stopped the complainant was the accused’s younger brother who had heard that the accused had received K20,000 and was not happy because the accused had told him that he only received K3000. As the landowner or the person authorised to sell, the accused may still have been required or expected to share the proceeds with his family.
    
18. In all the circumstances the State has failed to establish its case against the accused beyond reasonable.
    
19. It appears that the accused owes the complainant a civil debt but that is not a matter for this Court to decide.
    
20. Accordingly, the accused must be acquitted.
    

Verdict accordingly.
___________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused