Age v The State [1979] PGSC 29; [1979] PNGLR 589 (26 November 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 589 - Albert Alexander Age v The State 

[1979] PNGLR 589

SC169

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ALBERT ALEXANDER AGE

V

THE STATE

Waigani

Prentice CJ Wilson Greville Smith JJ

31 October 1979

26 November 1979

CRIMINAL LAW - Particular offences - False pretences - The false pretence - As to material existing facts - Inducement Intent to defraud - No need to show economic loss to representee - Criminal Code, s. 416(1)[dccii]1.

The appellant, a bank employee who had reached the limit of his eligibility for loans as prescribed by his employer, and wishing to acquire a motor vehicle, sought the assistance of one Patu who on his behalf, completed a loan application to the bank in his (Patu’s) name for the sum of K2054.96 for the “purpose” of assisting in the purchase of a new Datsun utility, indicating therein that part of the purchase monies would be provided by the trade-in for K1900 of a vehicle then owned by Patu. The loan monies were paid to Patu, who signed a cheque “to cash” which was paid into the appellants account. The appellant was charged with false pretences under s. 416 of the Criminal Code and so convicted.

On appeal against conviction on the grounds that there was no false representation or pretence by the appellant, that the bank had not been “induced” to advance monies by such representations as were made and that there was no intent to defraud,

Held

N1>(1)      Such representation as was made was not a representation as to an intention to do something in the future; it was a representation as to alleged existing facts, and was false, namely, that Patu desired to purchase a vehicle, that he was making an application on his own behalf for loan monies for that purpose, that he required those monies, and that part of the purchase price was to be in the form of a trade-in.

Greene v. The King [1949] HCA 55; (1949), 79 C.L.R. 353, distinguished.

N1>(2)      Such representations as were made with Patu’s permission and on the face of it in his name, were made by the appellant.

N1>(3)      The bank was induced to deliver the money by way of personal loan to Patu by the loan application and loan inquiry documents, and the deliberate non-disclosure by the appellant of the fact that he was in reality the one to get the money, deceived the bank into granting the loan.

N1>(4)      The intent to defraud necessary to constitute the offence was present in the intention to induce the bank to do what it would not otherwise have done, and thereby act to its detriment.

N1>(5)      It is not essential in establishing the offence to show that economic loss to the representee (bank) would have resulted.

Balcombe v. De Simoni [1972] HCA 9; (1972), 126 C.L.R. 576, at pp. 583-584; and

Prosecutor’s Request No. 4 of 1974, [1975] P.N.G.L.R. 365, referred to.

N1>(6)      The conviction should be confirmed.

Appeal

This was an appeal against conviction and sentence on a charge of false pretences under s. 416 of the Criminal Code.

Counsel

M. Kapi and B. P. Dilon, for the appellant.

G. G. Poole, for the respondent.

Cur. adv. vult.

26 November 1979

PRENTICE CJ WILSON GREVILLE SMITH JJ: The appellant contends that his conviction in the National Court under s. 416 of the Criminal Code should be vacated. His conviction was for the crime of false pretences particulars of which were in the month of February 1978,

“by falsely pretending to the P.N.G. Banking Corporation that a personal loan application number 2238 dated the fourth day of February 1978 in the name of Patrick Patu was a true and valid application for funds to be made available to Patrick Patu to enable the said Patrick Patu to purchase a Datsun utility, induced the said (corporation) to deliver to the said Patrick Patu the sum of K2054.96,”

with intent then to defraud.

There is no doubt in our minds that the evidence supported the learned trial judge’s conclusions that the transaction in question was a bogus one, the real object of which was to have loan monies made available by the bank to the appellant so that he himself could buy a vehicle — there being a bar in bank regulations against the appellant borrowing more money than he already had done.

Nevertheless, it was argued most forcibly by the appellant’s counsel that there was no false representation or pretence by the appellant, that in any event the bank was not “induced” to advance monies by such representations as were made, and that there was no intent to defraud.

THE FALSE PRETENCE

The main principal argument with regard to the representation was on the one hand that there can be no pretence within the meaning of the section when the representation is as to an intention to do something in the future; and on the other, that such representations as were made were not those of the appellant but of Patrick Patu with whom the bank entered into a genuine loan agreement.

As to the first limb, reliance was placed upon the decision in the High Court of Australia, Greene v. The King[dcciii]², which is of persuasive authority in this Court. That case was authority for the proposition that, under the New South Wales Crimes Act as it then stood, a representation of the existence of a present intention to perform a promise is not a representation of an existing fact. In coming to that decision it was recognized that the decision was in line with many authorities but was completely illogical. The New South Wales section was amended in 1951 to include the words “or by any wilfully false promise”.

The loan proposal form in the instant case was made out by the appellant and signed by him. Under the heading “purpose” he, in filling in the form, inserted the words “assist purchase new Datsun utility”. And it was indicated on the reverse side of the form that part of the purchase monies would be provided by the trade-in for K1900 of a vehicle then owned by Patu. Now all this was untrue. The loan was not required for Patu’s purposes. Patu did not intend to purchase a new Datsun utility and did not intend to trade-in a vehicle he already owned. He did not intend to use the loan monies himself. Indeed he signed a cheque “to cash”, to enable the appellant to pay those monies into his (the appellant’s) account.

We consider that Greene’s case[dcciv]³ can be distinguished. This was not the case of 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. It was a representation as to alleged existing facts, viz. that Patu desired to purchase another vehicle that he was making an application on his own behalf for loan monies for that purpose, that he required those monies, and that part of the purchase price was to be in the form of a trade-in. Those representations we consider to be representations as to material existing facts — representations which were false.

It is not we think to the point to argue that, inasmuch as the loan proposal was presented apparently with Patu’s connivance and in his name (and the resulting civil legal obligation was by Patu to the bank for the loan monies), the representations were those of Patu and not of the appellant. The plain facts as proved in the National Court and as evidenced by admissions and the documents are that the representations (though made with Patu’s permission and on the face of it in his name) were made by the appellant.

THE INDUCEMENT

The reason why the appellant adopted the course he did was that the bank had a policy of allowing its employees loans only up to a certain multiplication of their salaries. He had reached that limit and was not eligible for further loans. The inference is obvious that the bank would not have lent him the monies which he required, and would not have lent the monies to Patu, if it had known that those monies were to be thereafter at the disposal of the appellant and were to be expended by him for his own purposes. One must assume as a matter of common-sense that, in requiring information as to the purpose of the loan, the assets and credit-worthiness of the apparent borrower, the bank is not requiring valueless information, but material which it will use in deciding whether a loan will be granted. In fact, when a vehicle is to be bought, the bank’s cheque normally issues in favour of the dealer. We cannot cavil at his Honour’s finding that the bank was induced to deliver the money by way of personal loan to Patu by the loan application and loan enquiry documents, and that the deliberate non-disclosure by the accused of the fact that in reality he was the one to get the money and the one bound to repay it (as far as Patu was concerned) quite obviously deceived the bank into granting this loan, which, if the truth had been known, would never have been granted at all. This appears from the documents, the evidence of Mr. Clifton, the then bank manager, and as a matter of compelling logical inference.

THE INTENT TO DEFRAUD

There can be no doubt on the evidence that not only was there a false pretence made by the appellant which induced the bank to grant the loan concerned but also there was the intent to defraud necessary to constitute the offence. 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[dccv]⁴; Prosecutor’s Request No. 4 of 1974[dccvi]⁵).

We agree with the learned trial judge that all elements of the charge were made out beyond reasonable doubt. The appeal is dismissed and the conviction and sentence of the trial judge confirmed.

Appeal dismissed. Conviction and sentence confirmed.

Solicitor for the appellant: M. Kapi, Public Solicitor.

Solicitor for the respondent: K. B. Egan, Public Prosecutor.

R>

[dccii]ccii] Section 416(1) of the Criminal Code provides:

(1) Any person who by any false pretence or wilfully false promise or partly by a false pretence and partly by a wilfully false promise and with intent to defraud obtains from any other person any chattel, money or valuable security or induces any other person to deliver to any person any chattel, money or valuable security is guilty of a crime and is liable to imprisonment with hard labour for five years. 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 a false pretence and partly by a wilfully false promise as the case may be.

[dcciii] (1949) 79 C.L.R. 353.

[dcciv] (1949) 79 C.L.R. 353.

[dccv] [1972] HCA 9; (1972) 126 C.L.R. 576, at pp. 583-584.

[dccvi] [1975] P.N.G.L.R. 365.