State v Kissam [2025] PGNC 70; N11205 (19 March 2025)

N11205

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NOS. 1071 & 1072 OF 2021

THE STATE

V

SULIN KISSAM & FRANCIS AKUS

WABAG: BERRIGAN J
12, 13 AND 19 MARCH 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – Section 407(1)(b) of the Criminal Code – Conspiracy to defraud – Elements of offences – Not Guilty.

Cases cited

Jimmy Ono v The State (2002) SC698
R v Ulel [1973] PNGLR 254
Peacock v The King [1911] HCA 66; (1911) 13 CLR 619
S v Felix Simon (2020) N8183
Roland Tom v The State (2019) SC1833
Potape v The State (2015) SC1613
State v Runny Dau (2021) N9253
The State v Iori Veraga (2005) N2849

Counsel

P Tengdui for the State
L Toke for both accused

DECISION ON VERDICT

1. BERRIGAN J: The State presented an indictment against the accused alleging that they conspired with one another and with Chris Lanza, Aret Lanza and others to defraud Kakas Kupako and Pipo Mekele of the right to claim compensation from Covec Ltd for the extraction of gravel from the Win Gravel Pit at Tipinini, Porgera by fraudulently obtaining and distributing a National Court Order No 890/2013 purportedly signed by Justice Goodwin Poole in the Mt Hagen National Court in their favour, contrary to s 407(1)(b) of the Criminal Code (Ch. 262) (Criminal Code).
   
2. It is alleged that Kakas Kupako and Pipo Mekele are joint owners of land at Tipinini Porgera on which the Win Gravel Pit is situated. They were recognised as the traditional owners of the Win Gravel Pit in 2004 by order of a District Land Court and were awarded 55% and 45% benefit sharing to be paid by the Porgera Joint Venture at the time. In 2012 another company, Covec Ltd, started to extract gravel from the Win Pit without the knowledge of Kakas Kupako. Unknown to the complainant, the accused, Francis Akus signed a contract with Covec Ltd to receive payments for the extracted gravel. At about the same time Francis Akus agreed in a statutory declaration to share proceeds from the Win Pit with Chris Lanza, Aret Lanza and others. The accused then produced to Covec Ltd a court order allegedly given in the hand of Justice Goodwin Poole dated 5 December 2013 which court order purportedly awarded 100% ownership of the land to Chris Lanza. Justice Poole denied signing any such order. The accused knew the order was false.
   

STATE CASE

3. Much of the documentary evidence was tendered by consent. Nevertheless, I approach it with some caution. Whilst I note the provisions of s 44 of the Evidence Act regarding the manner in which evidence of an order may be given, and the fact that no objection was taken to the tender, the documents have not been produced by any independent source and as will become clear the validity of at least some of the orders is very much in dispute.
   
4. I note that there are various spellings of names contained in the documents. I have reflected the spelling as it appears on the relevant document.
   
5. The complainant, Kakas Kupako, says that he and Pipo Mekele are the rightful owners of the gravel pit at Tipinini as members of the Napolan Clan of the Youmandak tribe. His subtribe is Wiya. Mekele is from Wandiyanda subclan. He says that the two accused, Chris Laiza and Aret Laiza are not part of the Wiya or Wandiyanda subclans of the Napolan clan of Tipinini. They are from Mulitaka.
   
6. According to a District Court order made in 2004 the complainant and Pipo Mekele agreed to settle a dispute between themselves over Huni gravel pit on the basis that payments would be made 55:45 to the Wiya and Wandiyanda Clans, respectively. I note here that this is not, as alleged on arraignment, an order from the District Land Court. It is a District Court order made in VCA No 143/2004 on an appeal from the Village Court. It is not clear on the face of the order what dispute it relates to. There is an accompanying letter which appears to be from Magistrate Deib to the PMC Porgera stating that the clans have resolved their claim over the “Huni” gravel pit at Tipinini. There was no evidence about whether the Huni pit is the same pit the subject of these proceedings but no issue was raised about that matter.
   
7. The complainant says that Porgera Joint Venture and Porgera Management Company paid the fees due to him until there was a large tribal fight in 2007 or 2008 from which he and all of his clan had to flee the area. When he heard in 2012 that a new company, Covec, was extracting gravel he came to claim payments pursuant to the order and was told that the company already had an agreement with the landowners. With assistance from police, Covec provided him with a copy of a statutory declaration purportedly made by “Chris Lanjia” and “Aret Lanjia” and witnessed by them and “Francis Kambiyu” on 12 March 2013 in which they agreed that royalties from the pit would be distributed to themselves 40%, to Francis Kambiyu 30% and to Markus Langer and his clan 30%.
   
8. The complainant took the matter to police. He says that in response “Chris Laija” obtained orders against him in the Village Court on or about 8 July 2013 whereby royalties were to be paid 80% in his favour and 20% in the favour of the complainant. The complainant also says that the orders were made at the police station under duress. Furthermore, that Francis Akus was present at the time.
   
9. It appears that this order was quashed on appeal to the District Court at Wabag in proceedings VCA No 123/2013, brought by the complainant and Chris Laiza, by way of order made and signed on 19 November 2013 by Magistrate Kawa. It is somewhat poorly expressed but that may be explained on the basis that it was prepared by a court clerk.
   
10. It appears that “Chris Lanjep” then brought proceedings DC 93/2013 in Wabag District Court against Pipo Mekele, the complainant and the Manager of Covex (PNG) Limited but his summons was dismissed by Magistrate Sakatao on 4 December 2013 on the basis that the matter was the subject of previous orders.
    
11. The complainant says that he took that order to Covec but the company told him that a National Court order had been obtained by Chris Lanza, Eric Lanza and Francis Akus. He obtained the assistance of police to go to the National Court at Mt Hagen and make enquiries.
    
12. The State produced a copy of the disputed court order. It was purportedly made in OC No 890 of 2013 between Chris Laiza and the complainant in the Mt Hagen National Court on 5 December 2013. The order does not purport to be signed by Justice Poole as alleged on arraignment but an unnamed Assistant Registrar.
    
13. The complainant says that he lodged a complaint with police against Chris Lanza, Eric Lanza and Francis Akus in Porgera in 2013.
    
14. The State produced warrants for arrest purportedly issued in respect of the accused and Chris Lanza on 10 July 2014 and 10 November 2015, respectively, according to the investigating officer, Emmanuel Yawaip, by Magistrate Aipee, on the basis that the accused had failed to appear.
    
15. I have some doubts about these warrants. They were sealed by the “Districk Court Pogera” in each case which spelling is incorrect. What is more, whilst I am no expert, the warrants are purportedly issued by the same Magistrate yet it does appear that one or other of the signatures is a poor attempt to copy the other. The original informations were not produced. Nevertheless, it appears from an affidavit of guarantor by the co-accused, Sulin Kissam, dated 22 April 2014 that Francis Akus was charged in or about early 2014. I accept that Francis Akus was subsequently arrested in relation to this matter on 6 October 2020 by the current investigating officer.
    
16. In the meantime, the complainant went to Waigani and commenced OS 612 of 2017 in the National Court, Kakas Kupako and Pipo Mekele against Covec (PNG) Limited.
    
17. There is no dispute that the accused jointly engaged a lawyer, Kandawalyn Lawyers, and sought to join the proceedings in the National Court in Waigani on the basis that they were the legitimate land owners.
    
18. Justice Shepherd refused the application for joinder on 21 June 2019 and ordered that the plaintiffs and the accused litigate their dispute regarding customary ownership of the pit with the Local Land Court at Wabag and further, that in the meantime the plaintiffs and applicants, their family and clan members, agents and whomsoever acting on their behalves restrain from harassing, intimidating or threatening each other.
    

State Submissions

19. The State submits that it can be inferred from the following circumstances that the accused conspired with others as charged.
    
20. The accused are related. Sulin Kissam was employed by Covec as a pitman and Francis signed an agreement with Covec as a landowner. Whilst Chris and Eric are not related to the accused there is evidence that they signed a statutory declaration with Francis Kambiyu in which they agreed to withdraw a District Court proceeding by Chris and Eric Laiza against Francis Kambiyu concerning the pit and agreed that they would share the proceeds. Francis Akus is Francis Kambiyu. The complainant says that Francis was always with Chris Laiza in court during the various proceedings and stood in support of him. He never objected to Chris’s claims. That was because there was an agreement under the statutory declaration that Chris was now the principal landowner and allowed to take the lead in court proceedings and Francis was always at his back. Francis signed the statutory declaration with Chris because they knew that the land was not theirs. Sulin failed to supervise Francis when he was on bail. When asked in the record of interview about the statutory declaration he said that it was false. That goes to show that he had knowledge of everything that had happened. They tried their best in the Village and District Courts in Wabag through Chris but when efforts failed they went to the National Court in Mt Hagen and obtained a false court order to deprive the rightful owners of their rights to the pit and the monies to be paid for the gravel and then presented it to Covec.
    

DEFENCE CASE

21. The accused have been charged as being of Puipaka village, Laiagam. Both refute this and claim to be from the Wiya subclan of the Napolan clan in the Yomandak tribe from Tipinini.
    
22. The accused say that the complainant is from the Pilisam tribe of Tipinini and has no entitlement to the land on which the pit is located. They claim that Chris Laiza is from Kundip tribe. He is married to Eric Laiza’s sister. He has no entitlement to the land either.
    
23. It was the Sulina Kissam’s evidence that he was not aware of the previous court proceedings. He had a contract with Barrick for many years and he was paid under the agreement. His house is next to the pit and he was approached by Covec in 2012 when it started extracting gravel. He was working for Covec at the time so the agreement with Covec was signed by Francis Akus, his father’s brother, and some of his relatives. He had nothing to do with the National Court order. He only became aware of it when it was shown to him by Covec. In response he and Francis initiated proceedings OS No 89 of 2014, Francis Akus against Chirs Laiza, Kakas Kupako and Covec PNG Ltd with the assistance of the Public Solicitor’s Office. In the summons which he produced he sought a declaration that he was the chief landowner of the gravel pit and to restrain the defendants from any dealings with one another.
    
24. Sulin says that the quarry has been operating for a long time, since 1986. They were receiving payments from 1986 from Barrick. He was never made aware of the court proceedings between the complainant and Pepe Mekele. Wiya is the sole owner of Win gravel pit and there is no reason to share with Wandiyanda. As for the village court order obtained by Chris Laiza, he was not made aware of it, and the matter should have been heard at Yomandak village court. As for the statutory declaration, it is false, Francis’s father surname is Kambiri not Kambiyu.
    
25. He was guarantor to Francis but they did not comply with the bail conditions because there was a big tribal fight in Porgera.
    
26. He attended the case at Waigani but he was not representing Chris or Eric Laiza. He was representing himself and Francis because they are the real landowners. Only he was able to attend because they did not have enough money for both of them to go.
    
27. Francis Akus gave an unsworn statement from the dock. I remind myself that no adverse inference is to be drawn by the Court as a consequence of an accused person deciding to give an unsworn statement: Jimmy Ono v The State (2002) SC698. I may take the unsworn statement into consideration as a possible version of the facts and consider it with the sworn evidence whilst giving it such weight as it appears to be entitled in comparison with the facts clearly established by the evidence: R v Ulel [1973] PNGLR 254 applying Peacock v The King [1911] HCA 66; (1911) 13 CLR 619: S v Felix Simon (2020) N8183 at [42] to [44].
    
28. He does not know how to read or write and he has been a villager all his life. The gravel pit in issue is an old one and two other companies started extracting gravel from that pit. They do make payments for extracting gravel and he did benefit. He never had a court case over that gravel pit with anybody and that gravel pit is located within his area just in front of his house. Later a new company came and started extracting gravel from the pit and that is PJV. They do payment straight to him. Later another new company came and that is Covec. They came and asked who owns the gravel and he entered an agreement with them. They submitted all the people who are owners. He had no issue with the company until they told him that there is a court order and he told them that Chris Laizer is trying to steal money from the company and not to pay him. He took the order to the public solicitor and brought proceedings against Chris Laiza, the complainant and Covec.
    
29. He was not aware of the other proceedings. No one ever issued him with a summons.
    
30. He never signed the statutory declaration. His father’s name is Kambiru not Kambiyu. That is not his signature.
    
31. Covec told hm that the complainant was trying to get that money and called him to come to Port Moresby. There was not enough money and so he gave the documents to Sulin. The complainant had him arrested when they were trying to have the matter dealt with at the local land court by the Wabag District Court.
    

Defence submissions

32. The defence submits that the accused already had an agreement in place with the mining company. They were not a party to any of the proceedings. They were not aware of them. They are the rightful landowners. They had no need to conspire with anyone because they already had an agreement in place. The State failed to produce any evidence to connect the accused to any agreement with any person to defraud the complainant. Noone from the Registry was called. Francis Akus denies that it is his signature on the statutory declaration. He did not sign it and it does not match his signature on his record of interview. The document has been produced by persons who have an interest in falsely claiming the monies from the pit.
    

CONSPIRACY TO DEFRAUD

33. To establish the offence of conspiracy to defraud contrary to s 407(1)(b) of the Criminal Code (Ch. 262) (the Criminal Code) the State must prove that the accused:
    
    • (a) conspired with one or other persons;
    • (b) to defraud the public or any person (whether or not a particular person).
      

To defraud means:

(a) 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;
(b) by using deceit, or fraudulent or dishonest means;
(c) knowing that he has no right to deprive that person of that property or to prejudice those rights or interests:

Roland Tom v The State (2019) SC1833; Scott v Metropolitan Police Commissioner [1974] UKHL 4; [1975] AC 819; Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 adopted and applied; Potape v The State (2015) SC1613 clarified.

34. In short, a conspiracy to defraud is an agreement between two or more persons to use dishonest means to deprive a person of property which is his or hers or to which he or she 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.
    
35. I note the following principles I was required to consider in State v Runny Dau (2021) N9253 at [100] to [115].
    
36. A conspiracy is established upon the entry into an agreement, express or implied, which need never be implemented. It is complete without the doing of any act save the act of agreement. In addition to the act of agreement, it requires an intention in the mind of the alleged conspirator to carry out the unlawful purpose. See Roland Tom v The State (2019) SC1833 for a discussion of principles.
    
37. There is no need to establish the existence of meetings, nor a formal, nor even express agreement: Roland Tom (supra) at [40]. Evidence of acts following the agreement (overt acts) may be, and often is, the only available proof that the agreement was made; but it is the agreement and not the evidence that constitutes the offence: Veraga (supra) applying R v Gudgeon [1995] QCA 506; (1995) 133 ALR 379 at 389.
    
38. Proof of the scope of a conspiracy may also consist in evidence of the separate acts and declarations of the alleged co-conspirators which point to their common or shared objective. When considered in combination, those separate acts and declarations may justify the tribunal of fact finding that there must have been a conspiracy of the kind alleged: Ahern v R [1988] HCA 39; [1988] 165 CLR 87, applying Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1; Tanedo (supra); State v Joseph Wai (2020) N8182.
    
39. The prosecution must prove, however, not only an agreement between the alleged conspirators to carry out an unlawful purpose (or a lawful purpose by unlawful means) but also an intention in the mind of any alleged conspirator to carry out the purpose: Tanedo (supra); R v Thomson (1965) 50 Cr App R 1.
    
40. A conspiracy to defraud lies in the agreement to deprive a person of something which is his or to which he is or would be or might be entitled: Scott supra.
    

CONSIDERATION

41. Both the complainant and the accused claim to be the rightful owners of the pit. Let me make it very clear from the outset that this Court is not here to determine who the rightful landowners of the Win Gravel Pit are and nothing I decide here today will determine that. That issue needs to be determined by the appropriate authority being a local land court.
    
42. The issue before this Court is whether the State have established beyond reasonable doubt that the accused agreed with Chris Lanza, Eric Lanza and others to use dishonest means, namely a false National Court order, to deprive the complainant and Pipo Mekele from claiming the royalites that they were or might have been entitled to from Covec for the extraction of gravel from the Wini gravel pit.
    
43. The first issue is whether the disputed National Court order No 890/2013 is a false document or forgery.
    
44. There is very limited material before me about the court order. No evidence was called from anyone at Mt Hagen National Court. There is no affidavit but a copy of a letter on National Court letterhead apparently written by Justice Poole to Magistrate Wialo Sakato dated 13 December 2013 stating that he did not sit on the date the order was purportedly made and expressing the view that it is a forgery. There was no evidence from Magistrate Sakato. (I note, although I am not sure if it is significant, that on the order of 13 December 2013, the magistrate’s name was spelt “Sakatao”.)
    
45. Having said that there are good reasons from which to infer that the order is false. It is very poorly drafted and formatted. It makes orders in most unusual terms and about ownership of the pit, which assuming it is on customary land, it had no power to make. It declares that Chris Laiza “is the legitimate principal landowner and thus have the privilege to accept ownership of the Gravel Pit”. It directs “COVEC”, without properly describing the company, to do certain things when it is not even named as a party. It also bears a stamp or seal purporting to be that not of the National Court but the “National Court Office” of Papua New Guinea, whatever that is.
    
46. Even assuming that the order is false, the State has failed to establish beyond reasonable doubt that either of the accused conspired with others to create that order or provide it to Covec (PNG) Limited.
    
47. The State did not call any evidence from Barrick or Covec (PNG) Limited, other than a couple of documents, tendered by consent, which I will refer to below. No evidence was produced to establish that the complainant had any agreement with Barrick or received any payments as claimed.
    
48. There is no evidence of direct participation by either accused in the creation or distribution of the order.
    
49. There is no clear evidence of the accused’s involvement in any of the proceedings prior to those lodged in 2014. Neither have been named in them nor benefit from them on their face.
    
50. A lot is made of the statutory declaration of 12 March 2013 which is purportedly signed by the accused Francis Akus, which he denies.
    
51. On the face of it, it does not bear his name. It is in the name of Francis Kambiyu. There is insufficient evidence to establish that Francis Kambiyu is the same person as Francis Akus or even that the name is the same as his father’s.
    
52. I am no handwriting expert and no such evidence was led by the State but on the face of it the purported signature of the accused is different from those on the four pages of his record of interview albeit there is some similarity. He is an older, illiterate man and he has a very simple signature but even then the one on the statutory declaration appears to be a poor attempt to imitate it.
    
53. There also appears to be no dispute that at that time Francis had in place a signed agreement with Covec (PNG) Limited, albeit that the copy of that tendered by the State is undated and incomplete. The agreement was made with Francis Akus (chief landowner and point of contact), Simon Wataboi, Muni Epelya, Steve Mekel, Win Wiaka and James Tuli on behalf of Yumondaka Napolan land owners of the Win Gravel Pit near Tipinini.
    
54. The statutory declaration states that Chris and Aret Lanjia agree to withdraw a District Court case. It is not clear what proceedings were on foot, if any, and who brought them. It also seems strange that given that there is no dispute that Francis had an agreement on foot with Covec (PNG) Limited at the time that he would agree to hand over 70% of the benefit to other clans and furthermore, allow Chris and Aret, as per the statutory declaration, to arrange and sign the agreement with Covec PNG Ltd and take responsibility for distribution of the monies due.
    
55. Moreover, there is no evidence showing that Chris and Aret Lanza entered into an agreement with Covec (PNG) Limited. The only agreement produced by the State is the one between Covec (PNG) Limited and Francis Akus and others named. In this regard the complainant did not produce any agreement between himself and any of the companies which have mined the pit.
    
56. With respect to the National Court order itself, it does not bear the name of either of the accused nor on its face benefit them. It names only Chris Laiza as the principal landowner and orders payment only to Chris Lazia for distribution amongst his clansmen. There is no evidence clearly establishing that Chris Laiza is from the same clan as the accused. The order did not refer to anyone else as a party other than the complainant, Kakas Kupako.
    
57. There is no evidence to show that either of the accused served National Court order OS No 890 of 2013 on Covec (PNG) Limited or was part of the conspiracy with Chris Laiza to do so.
    
58. On the contrary, in the State’s own exhibit, a letter from Covec (PNG) Limited to the National Court in Mt Hagen dated 6 January 2014, the company states that it has been dealing with Chris Laiza, Kakas Kupako and Franics Akus since 2013 and is unsure who is the true landowner. It pleads with the National Court to allow Francis Akus, who has been excluded from OS No 890 of 2013, to be joined in the proceedings at Mt Hagen so that the matter can be determined. It noted that Francis Akus was, with his group, threatening to disrupt work and had produced material tending to prove his ownership.
    
59. Why would Francis Akus disrupt work if the company was trying to comply with the very National Court order that the State says the accused contrived with Chris Laiza and others to have the company comply with? That makes no sense.
    
60. In addition, there is evidence in the form of Defence Exhibit D2, that not long after the date of the purported Mt Hagen National Court order, Francis Akus commenced proceedings OS No 89 of 2014 in the National Court at Wabag in February 2014 claiming that he was the chief landowner. He did so with assistance from the Public Solicitor and joined all those interested, namely Chris Laiza, the complainant and Covec as defendants. That was the proper thing to do even if the accused disputed their entitlement.
    
61. The above matters are also consistent with the accused becoming aware of the order from Covec.
    
62. Furthermore, it appears that not only did the accused try to join the proceedings in Waigani commenced by the complainant, OS No 612 of 2017 Kakas Kupako, Pipo Mekele against Covec (PNG) Limited, which unlike the accuseds’ proceedings, did not join the accused as interested parties as the complainant should have, knowing that they claimed an interest, whether he disputed it or not, but they jointly engaged private lawyers, Kandawalyn Lawyers to advise them.
    
63. Moreover, according to Kandawalyn Lawyer’s letter of 31 July 2019, which the State have failed to produce in full, their lawyers wrote to the Senior Provincial Magistrate, Regina Sagu, referring to the proceedings brought by the complainant, setting out Justice Shepherd orders of 21 June 2019, and whilst claiming that they were the true landowners, sought the establishment of a local land court to determine the matter in accordance with those orders. That was entirely appropriate. That is what should have happened a long time and it is not consistent with the conduct of a person who is seeking to benefit from a false order which grants land ownership to another person.
    
64. As for the fact that it was Sulin who went to Moresby. The State have argued that he attended instead of Francis because Francis was on the run. Whilst Sulin is only educated to Grade 6, he is nevertheless younger and has held formal employment, and it is reasonable to infer that there was limited money for Francis to go. Francis might not have been reporting to police, and I am not excusing that failure, but he was in and around Porgera. Yet he was not arrested until after he tried to join the complainant’s proceedings in Port Moresby and orders were made for the matter to be resolved by the local land court, although that may be just coincidence.
    
65. It is not clear whether or not a local land court has been established but it appears not. Certainly, there is no evidence to suggest that ownership of the pit has been resolved.
    
66. Let me reiterate. I am not able to determine who the rightful owner of the pit is. That matter must be determined and the only appropriate place for that is at the Local Land Court.
    
67. If indeed the complainant is the rightful land owner then he should be very anxious, like the accused, to have the land court established as soon as possible so that all interested parties can be heard. Those orders were made in the very proceedings that he brought almost 6 years ago. What has he done to comply with those orders?
    
68. In all the circumstances the State has failed to establish beyond reasonable doubt that either of the accused conspired with Chris Lanza, Eric Lanza or others to use dishonest means, namely obtaining and distributing a false National Court order No 890/2013 purportedly made by Justice Poole in the Mt Hagen National Court to deprive the complainant and Pipo Mekele from claiming the royalites that they were or might have been entitled to from Covec for the extraction of gravel from the Wini gravel pit.
    
69. The accused are found not guilty of conspiracy to defraud, contrary to s 407(1)(b) of the Criminal Code and shall be acquitted.
    
70. I have no power to make any orders about the establishment of a local land court but I will have a copy of Justice Shepherd’s orders together with this decision brought to the attention of the Chief Magistrate for appropriate action as he sees fit.
    

Verdicts accordingly.

___________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the accused: Public Solicitor