N11318
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) 93 OF 2024

THE STATE

V

AVE USONI

WAIGANI: BERRIGAN J
5 JUNE 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – OBTAIN BY FALSE PRETENCE – Section 404(1)(a) of the Criminal Code – Elements of Offence – Accused must obtain title not merely possession – Not guilty. 

CRIMINAL LAW – PRACTICE AND PROCEDURE – Section 544 of the Criminal Code – Not applicable.  

Cases cited
State v Ima (2020) N8676
Prosecutor’s Request No 4 of 1974 [1975] PNGLR 365
Age v The State [1979] PNGLR 589
Roland Tom v The State (2019) SC1833
Amaiu v The State [1979] PNGLR 576
Opai Kunangel v The State [1985] PNGLR 144
Embahe v The State [1988] SC351

Counsel
Mr A Kaipu for the State 
Mr D Kaiyok for the accused  

DECISION ON VERDICT

1.	BERRIGAN J:  The accused is charged with one count of obtaining property by false pretence with intent to defraud, contrary to s 404(1)(a), Criminal Code.

2.	The State alleged that between 8 and 9 pm on 5 March 2023 at Games Village Police Barracks in Port Moresby a fight erupted between Joseph Eka, the son of Senior Constable Stephen Eka, and a policeman over a missing mobile phone. During the fight Joseph Eka went to his father’s house and retrieved his father’s glock pistol, serial number G12006328, and fired a warning shot to scare away the other police officer who was drunk. A couple of hours later, the accused, Constable Ave Usoni drove to SC Eka’s residence and asked him to surrender the pistol for the purposes of an investigation into the shots fired. SC Eka surrendered the pistol to him. At the time the accused was unattached and was not assigned to investigate the case. Further investigation revealed that he sold the pistol for K10,000. 

Elements of the Offence 

3.	To establish the offence contrary to s 404(1)(a) of the Criminal Code the State must prove beyond reasonable doubt that the accused:

a.	by a false pretence (or a wilfully false promise, or partly by a false pretence and partly by a wilfully false promise);
b.	obtained from another person;
c.	any chattel, money or valuable security;
d.	with intent to defraud.

State v Ima (2020) N8676 at [29]. 

4.	The State must establish that the accused obtained the property by reason of or as a result of the false pretence: Ima at [32] applying R v Roebuck (1856) 25 LJMC 101. 

5.	The State must also prove an intention to defraud as a separate element of the offence. Whilst an obtaining by false pretence will usually provide evidence upon which an intention to defraud may be inferred, it will always be a question of fact to be determined in the circumstances of any particular case: Prosecutor’s Request No 4 of 1974 [1975] PNGLR 365; Age v The State [1979] PNGLR 589. 

Consideration
6.	The State’s case was flawed from the start. To establish the offence of obtaining by false pretence for the purposes of s 404(1)(a), Criminal Code the accused must obtain ownership and not merely possession: Amaiu v The State [1979] PNGLR 576.

7.	In that case the appellant, a Member of Parliament, was charged with stealing money in the sum of K10,120, the property of Wagop Kanawai.  The appellant, aware that certain payments by the Government for timber royalties had become available to certain clan groups and members, gained possession of a cheque payable to Wagop, by falsely representing two persons to the bank as Wagop and his son and thus securing authorization of payment of the funds into his own bank account, none of which was ever recovered. On the appeal against conviction it was argued that there was no evidence that any property in the cheque had ever passed to Wagop and therefore it could not be stolen from him.

8.	In dismissing the appeal the Supreme Court held that the appellant was correctly charged with the offence of stealing for when he was handed the cheque there was no intention that any property in it should pass to him but he was merely given possession of it to physically convey it to the owner.  As Andrew J explained (emphasis mine):

“The distinction between larceny and the statutory offence of obtaining property by false pretences is that if a person being the owner of a chattel, or having authority from the owner to alienate it, is induced by the fraud of another person to part with it to him, and the latter at the time of taking it intends to misappropriate it as his own, then, if the former intended to part with property in the chattel to the taker as well as possession, the offence is not larceny but false pretences; but if he intended to part only with possession of the chattel to the taker, the offence is larceny. See R. v. Ward.”

9.	Returning to the present case, SC Eka did not have title in the weapon. It was not his weapon. Even if lawfully issued with it, he did not have title in it. But in this case it was an exhibit in a homicide case and he should never have been in possession of it in the first place. Nor as suggested by counsel did the State have title to the weapon by virtue of the fact it was an exhibit. Critically, it was not alleged and nor was it established that the accused obtained title. He merely obtained possession. That is really the end of the matter. 

10.	Upon being reminded of these principles the State made a last minute attempt towards the end of its submissions to invoke s 544, Criminal Code, having regard to my comments in State v Ima (2020) N8676 at [54] to [59]. It did so in very general terms, stating merely that the Court could convict the accused of stealing or misappropriation on the evidence. It referred to no principles nor authorities applying nor the evidence in question upon which it relied.

11.	It is a novel application in my experience. On my review, s 544, Criminal Code has been discussed in very few reported decisions and then usually only in passing (S v Wesley Bakit (2016) N6614; S v Tom Kakawi (2002) N2229; Ima, supra and Reference by the Principal Legal Adviser Pursuant to Section 26 of the Supreme Court Act, Re Section 539 of the Criminal Code (2020) SC1999 and Ima, supra) although it has been applied twice by the Supreme Court on appeal: Opai Kunangel v The State [1985] PNGLR 144 and Embahe v The State [1988] SC351.

12.	In Kunangel the trial judge, Amet J, invoked s 544, Criminal Code to convict the appellant of false pretence instead of the misappropriation initially charged.    

13.	The issues on that appeal are not directly relevant here and nor is it necessary to consider the principles applying under s 544 in any detail for present purposes other than to observe that that the offence of false pretence of which the appellant was convicted in Kunangel was “intimately linked” with the misappropriation alleged and the evidence led to establish it. Per Pratt J:

“… at that time, that is the date on which the misappropriation took place, he was also guilty of committing the crime of false pretences, such crime having been committed before the date upon which the misappropriation matter became an offence and continuing until the day of misappropriation and intimately linked with such misappropriation”. 

14.	In the present case the accused was charged with obtaining the gun by false pretence on 5 March 2023.  Whilst not articulated, it appears that the State is seeking to have the Court find that the accused stole the gun on that day contrary to s 372(1), Criminal Code, upon having obtained possession of it, such that he took the gun with intention to permanently deprive the owner of it (noting that “owner” means “any person having possession or control” pursuant to s 365, Criminal Code for that purpose), or that he dishonestly applied the gun belonging to SC Eka, contrary to s 383A(1)(a), Criminal Code (noting that owner is defined for that offence as meaning “any person who, immediately before the offender’s application of the property, had control of it”: s 383A(3)(d)), such that at the moment he took the item “in an unauthorised way from the person to whom it belongs and carried it [away] to implement his plan he had applied it to his own use”:  per Macrossan CJ in R v Easton [1994] 1 Qd R 532, adopted and applied for instance in State v Paraka (2023) N10273 at [314] and other cases applying.

15.	SC Eka said that there was a fight between his son and the son of another police officer, Tony Mangi, during which the gun discharged. They sorted things out with those they were fighting and some time later two men came in a white ten-seater, dressed in civilian clothes. One of them he knew well, Solomon. The other identified himself as Ave Usoni, a police officer, who asked for the gun. He said there was a complaint that Tony Mangi’s son was shot in the leg. SC Eka gave him the gun and they exchanged phone numbers. After two or three weeks the accused had not returned to take their statements. SC Eka called the accused and told him that if he wanted his statement to come and get it. He did come but it appears that nothing eventuated. SC Eka told the accused if he cannot do anything to return the firearm. SC Eka was worried about his job so he informed his OIC and 2IC about what happened at his house. He asked his 2IC to write a letter requesting the return of the gun. About a month after the incident he and his new OIC, Sgt Tovo Yarana, spoke to the accused at Bagita Police Barracks and asked for the gun back but the accused refused to hand it over. SC Eka denied offering to pay the accused to give the gun back.

16.	The accused does not dispute obtaining possession of the gun. He says that he was with Solomon Yali at around 11 pm to midnight when he received a call from Ottil Mangi reporting that he had been shot on his leg and was on his way to hospital. He asked the accused to go to the barracks as his relatives and neighbours were retaliating against the boy who shot him and the situation was escalating. He asked them to go and sort out the situation because the accused was well known to youths in the barracks. When he and Solomon arrived the crowd had blocked the road and was preparing to attack SC Eka’s residence. He asked the crowd to let them in and because Solomon knew SC Eka he approached him first and then the accused said that to settle the situation down he had to hand in the firearm. They managed to calm things down and left. After a few weeks he handed over the firearm to his senior officer, Douglas Moses for investigation. He does not know what happened to the firearm. He heard that SC Eka’s son and Ottil made peace and compensation. SC Eka did follow up on the firearm a couple of times and came to see him at Bagita but he did not agree with the manner in which he asked him for it and so he gave it to Douglas Moses. He told SC Eka that the firearm was safe and that what happened with the gun would come out. He never received any request from SC Eka’s OIC or 2IC. He did not use the gun to pay for bail. He did tell CI Terry that he assisted Lawrence Sausau make arrangements to apply for bail but he never said he paid for bail. He did not sell the weapon. 

17.	The facts of this case are wholly unacceptable. It goes without saying that any exhibit but particularly a dangerous weapon must be kept by and registered with the appropriate officer at the exhibit room at Boroko or other appropriate station and the accused should not have been holding on to the gun. Ultimately, however, the State’s case to establish that the accused held the requisite intention at the time he obtained possession of the gun turns on SC Eka. 

18.	SC Eka was an unimpressive witness. His principal concern appeared to be protecting himself from the consequences of holding and then losing an exhibit, allegedly used by his son in the shooting of another person, matters for which he now faces disciplinary action. After giving evidence in great detail about the very aggressive and relentless attack by Mangi his evidence that following the discharge of the weapon everyone suddenly made up and went home was unconvincing. Even accepting SC Eka’s evidence, the accused exchanged telephone numbers, took his calls, and subsequently met with him. On its face that is not consistent with someone who held either of the requisite intentions at the time he obtained possession of the weapon albeit, of course, he could simply have been covering his tracks in advance. 

19.	No records were produced from the RPNGC and nor was the accused’s supervising officer called to establish that that he was unattached in the sense he had not been turning up for work. Nor was his supervisor called to exclude the possibility that he was made aware of the seizure or that the gun was subsequently given to him.

20.	The State did not call officer Solomon who was listed on the indictment and who was present at the time the accused obtained possession. The State did not call Eka’s OIC or 2IC and nor was any correspondence from either of them produced.

21.	The State called one other witness, Chief Inspector Apollos Terry, the OIC of the Internal Affairs Unit, who oversaw the apprehension of the accused on 25 May 2023. He was an impressive witness. I appreciate that he would have been across certain details of the investigation but some of his evidence was hearsay. 

22.	CI Terry gave evidence that the accused admitted selling the gun to assist a fellow officer obtain bail. The State did not lead any other evidence about this officer and if, when and how that person was released on bail. Putting that aside, the fact that an admission is made outside an interview does not of itself make it inadmissible nor unreliable. But it appears from cross-examination that the admission was made to CI Terry during interview. If so, that interview was not tendered. Nor was it referred to in the interview which was admitted, such that the accused was not asked if he made such an admission, and for some reason the investigating officer, who conducted the interview and was available, was not called to explain the omission. 

23.	In conclusion, the charge of false pretence charged in the indictment was defective. 

24.	Section 544, Criminal Code may be appropriate in certain cases. It will depend on the case, the particulars provided and any questions of prejudice. Ultimately for the purposes of this case, however, it is not possible for me to be satisfied beyond reasonable doubt that at the time the accused took the gun he held the intention(s) required to find on an alternative under s 544, Criminal Code.

25.	Accordingly, the accused must be acquitted.

Verdict accordingly. 
___________________________________________________________
Lawyer for the State: Public Prosecutor 			
Lawyer for the accused:  Public Solicitor