Wat and Maraleu, The State v [1994] PNGLR 582 (14 March 1994)

PNG Law Reports 1994

[1994] PNGLR 582 - State v Sebulon Wat and Miskus Maraleu 

[1994] PNGLR 582

N1205

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

SEBULON WAT AND MISKUS MARALEU

Kavieng

Doherty J

13-14 January 1994

14 March 1994

CRIMINAL LAW - Conspiracy to pervert the course of justice - Agreement to conspire may be inferred from acts or behaviour.

Facts

Both accused were lawyers appearing for the plaintiff and defendant, respectively, in civil proceedings in Kavieng District Court. On 23 December 1991, Mr Wat unexpectedly withdrew the civil complaint. On the same day, Mr Maraleu rendered an account to his clients, stating the case was dismissed by a Grade 5 Magistrate. After 23 December 1991, both lawyers said they negotiated a settlement to pay Mr Wat K700; neither consulted his client; there was conflict if it was for damages and costs or costs only. It was not paid, and on 20 January 1992, the same summons was laid again and served despite Mr Wat's assessment that it was a "hopeless case". Soon thereafter, Mr Maraleu paid K300 cash to Mr Wat.

Held

1.       Conspiracy is an agreement between parties to carry out an unlawful purpose or a lawful purpose by unlawful means.

2.       Conspiracy could be inferred from the conduct of alleged conspirators.

3.       Evidence of a conspiracy by the two lawyers was not established beyond a reasonable doubt.

Cases Cited

Papua New Guinea cases cited

MVIT v Salem [1991] PNGLR 305.

State v Tanedo [1975] PNGLR 395.

Other case cited

Re Senat (1968) 52 Cr App R 282.

Counsel

F Kuvi, for the State.

E Jubilee, for the accuseds.

14 March 1994

DOHERTY J:  The accuseds were indicted on one joint count that they conspired to obstruct the course of justice contrary to s 128 of the Criminal Code. The accused Mr Maraleu was indicted on one additional count of, by false pretence, inducing Fred Allardyce, company secretary of Poliamba Pty Ltd, to deliver K2,400 to him.

The elements of the offence of conspiring to obstruct justice are that:

1.       a person has conspired with another; and

2.       they conspired to obstruct the course of justice.

There must have been a conspiracy, and it must be directed towards obstruction of the course of justice.

I consider that Mr Kuvi put the matter succinctly in submission when he said in this particular case the question is not only whether the actions of the accused were improper but whether they were so highly improper as to amount to a perversion of justice.

Most of the written documents, that is the court records and letters, were tendered by consent. There was oral evidence, subject to cross-examination and dispute, and written evidence, the subject of another ruling.

The events are as follows:

"John Samot was terminated from his employment by a company, Poliamba Pty Ltd in July 1991. He approached the accused, Sebulon Wat for legal assistance concerning his termination in December 1991. Sebulon Wat asked for K300 deposit which Samot could not pay and it was agreed he pay K100 at that time and K200 later.

A complaint was laid and the summons issued out of the Kavieng District Court - it has been tendered by consent through the affidavit of Levi Tabakase - which states "The complaint of John Samot of Kavieng, self employed made the 2nd of December 1991 before the undersigned ....................., a Magistrate of the District Court he says on the.......................day of ......................1991 at Lakuramau, in Papua New Guinea, Poliamba Pty Ltd and Martin Collins of Lakuramau Plantation has wrongfully terminated the employment of the complainant with Poliamba Pty Ltd. The complainant has suffered damages as result of the termination and therefore claim the sum of K4,800 being one year salary and further K2,500 being general damages totalling the sum of K7,300. (sic)"

It is given a CIV number 470/91. It is, incidentally, defective and should not have been accepted. The return date was 13 December 1991. Both accused appeared as lawyers, Sebulon Wat for the complainant and Miskus Maraleu for the defendant. They sought an adjournment which was granted to 18 December 1991 when Miskus Maraleu is noted as having sought to dismiss the complaint. This was not upheld, and Mr Sebulon Wat applied for an adjournment "due to having been given the complainant's personal files, and I have some things to sort out with the defence".

Grant of adjournment is not recorded, but it is not disputed that the matter was stood over to 20 December 1991, when the record shows both accused appeared in their capacity as lawyers and "jointly agreed for the matter stood over to Monday". (sic).

Mr Samot says in evidence that he was present that day. Mr Wat told him that it would be mentioned on 23 December 1991 and it "is okay, it is not necessary for me to turn up". Mr Samot was not required to be present on 23 December. Hence, he did not come to the Court on that date.

Mr Wat says in his sworn evidence that he was given a file with the Poliamba records by Mr Maraleu at the court hearing on 20 December. He needed to study the file and "told Samot not to bother coming up on the 23rd, as it was for mention".

The District Court record, tendered by consent shows "Mr Wat apply to have matter withdrawn due to certain matters ascertained after looking through complainant's employment file with the Company. Mr Maraleu has no objection and says withdrawal of matter without costs." (sic)

In evidence before the National Court, Mr Wat explained, "After having a look at the files, I withdraw the matter on the 23rd so that I could get him (Mr Samot) to come and decide if he still wanted to take the defendant to court in the light of their evidence by the defence. About the 13th or 14th of January, Mr Samot came up to my office and told me he had been told by company surveyor of Poliamba Pty Ltd the matter against Poliamba was dismissed. Perhaps I go back after the 23rd withdrawal. Perhaps I'll say what happened after the 23rd/24th. After I withdraw the matter on the 23 of December, a couple of days later, Mr Maraleu came up to me and we discussed the possibility of a settlement out of court. After having discussed the matter through, we put the figure at K700 as an out-of-court settlement. I then told Mr Maraleu, "You confirm that to my client for his comment and endorsements, or whatever it was." (sic)

On this evidence, Mr Wat says that his client, Mr Samot, came to him on the 13th or 14th of January 1992 to discuss the case. This fact was not put to Samot in cross-examination. Why was there a need to discuss the figure of K700 (or any other figure) when the matter was withdrawn and, as far as the defendant was concerned, there was no need to settle?

None of these matters was put to Mr Samot. He said in his evidence that he "met the accused Mr Wat on the 19th of February 1992 at a trade store and Wat asked to see me". He saw Mr Wat subsequently in the office, and there he was told that the case was to be mentioned on 20 February 1992. Mr Samot went to the court on that date, but Mr Wat was not present due to illness. Mr Samot had already been told by Mr Wat that he was sick, and he had asked if the matter could be adjourned.

When he duly went to court and the matter was called, he was asked to go into the Senior Magistrate's office, where Timothy Salem, Poliamba's personnel officer, was also present. Mr Samot was asked if he knew the matter had already been settled out of court. He replied, "No". He said that "having learnt to all that, I was so upset because the matter was settled outside of court without my intention and also I had wasted a lot of money and time trying to get this matter sorted out in Court". (sic)

Mr Samot insisted that there had not been any communication between him and his lawyer, Mr Wat, between 20 December 1991 and 19 February 1992, although he called into the office. Despite cross-examination that the matter was being handled under his instruction and to his benefit, Mr Samot said he was never informed, nor was he informed that this case was hopeless.

The discussion of 13 or 14 January was not put to Mr Samot and, given the record of the court proceedings, it certainly seems odd that settlement, unknown to the client, was being discussed after the matter was withdrawn.

In fact, the case called on 20 February was not CIV 470/91 but a newly laid summons and complaint, CIV 20/92. I will return to the details of that in due course. Mr Wat says he had discussions with Mr Maraleu and there was:

"no confirmation or offer from Maraleu since we last discussed it in December, so I came to the conclusion that the offer fell through. The proposed settlement fell through. I then proceeded to issue a fresh summons in January 1992, the second/third week. I cannot recall now. The summons was returnable on the 31st of January 1992. Mr Samot came to my office and checked the date on which this matter could be heard again. I told him to come on the 31st of January 1992."

Hence, he told Mr Samot the complaint was returnable on 31 January 1992. On the 29th, Mr Maraleu gave him an envelope containing K300 in cash. Mr Wat says that he was never asked by Mr Maraleu to settle out of court on 18 December (prior to the withdrawal), though in his own letter to Poliamba (Exhibit 5) he says differently. He said in evidence he had decided to withdraw the case after receiving the background file concerning his client's employment, as it was his "prerogative to withdraw the case if the case was hopeless". He said, when challenged in cross-examination concerning Mr Samot's evidence, that he did tell Mr Samot very clearly, "I told him it was hopeless". It was further put to him that he had not told Mr Samot, to which he replied "How would Mr Samot know to appear?".

The record of the court, tendered by consent, shows that CIV 20/92 was lodged in the District Court on 22 January 1992 and returnable on 31 January 1992, and the complainant appeared in person on 31 January 1992. The reply "How would he know to appear?" begs the question. It implies that Mr Wat told Samot but then so could have the Clerk of Court, or he could even have been passing and heard the matter called. I do not know.

Apart from his remarks and the fact that Mr Wat considered the case was hopeless, why then did he relay it in the District Court. As a lawyer, he has a duty to the Court, and he is now stating in sworn evidence that he was abusing the Court process to pursue "a hopeless case". I would remark that the complaint CV 20/92 was also defective and should have not been accepted.

On 29 January 1992, Mr Wat says that Mr Maraleu gave him K300 in K50 notes. It was in an envelope which he opened in the presence of Mr Vermot, an employee of Poliamba Pty Ltd. On 31 January, the matter was again adjourned in the District Court. According to Mr Vermot and the court record, this was in order to allow Poliamba to have legal representation. Mr Wat told Mr Samot and Mr Vermot about the K300 and said that he could not accept this amount of money because the settlement figure was K700. Oddly enough, in cross-examination it was never raised with Samot that an offer of K700 was being negotiated. It was put, "He was negotiating a settlement that would run in your favour", but he was never asked if K700 was discussed.

I find as a fact that Mr Samot was not consulted specifically on the K700 settlement. No figure was discussed with Mr Samot after negotiations allegedly occurred between the two accused.

I find from Mr Samot's answers in court that he gave general instructions to Mr Wat to the effect that Mr Wat should act for him about his termination and the dispute arising from that termination. I consider and I follow the words of Woods J in MVIT v Salem [1991] PNGLR 305 at 306:

"... solicitors and counsel have a general authority to effect a comprise in all matters connected with the suit in question and not merely collateral to it. And if they act within their apparent authority and the other party has no notice of any limitation on it the client will be bound thereby....

A client who induces his solicitor to believe he has authority to compromise an action upon certain terms is bound by such compromise if the solicitor in making it reasonably believes that he has authority to do so although the client did not in fact intend to authorise a compromise upon those terms and did not understand the terms upon which it was proposed that the compromise should be effective."

However, that power does not alleviate the lawyer from a duty to inform his client on any negotiations and the terms thereof and to inform the client prior to concluding a negotiated settlement. As Woods J has said, the authority to effect compromise is subject to the client giving the authority or inducing the client to believe he had authority.

The defendant in Mr Samot's lawsuit, Poliamba Pty Ltd, was represented by the second accused Miskus Maraleu in the District Court. Some correspondence between Mr Maraleu and Poliamba Pty Ltd was tendered by consent, and Mr Vermot gave evidence. The other State witness, Mr Allardyce, the company secretary, was not called. That is a matter of a separate ruling.

Mr Vermot was an employee at the time, and he was told by Mr Allardyce to go and see Mr Maraleu following receipt of the summons on 29 January 1992. Before referring to his evidence, I will turn to the second defendant's version of events prior to 19 January 1992. He said he had instructions and prepared the case for hearing in the District Court and had started to prepare a defence. He got the file from Poliamba and told Mr Wat of its contents. He thought this was around 18 December 1991. He said in evidence:

"I told (Mr Wat) I am prepared to let him look at (the file). I think it was sometime around the 18th, in the light of all this, we settle the matter outside of court. He accepted the file and told me he would seek instructions from his client and then let me know. I did not receive any advice from Mr Wat until the 23rd when he withdraw the matter. When on the 23rd he withdraw the matter, I was surprised. I was not aware he intend to withdraw the matter. After he withdrew the matter, I reminded him and I needed some response and his attitude. He told me he was still awaiting instructions from his client". (sic)

Hence, there was no reply to any suggestion of settlement, and on the 23rd (that is the next court date) Mr Wat withdrew the complaint to the surprise of Mr Maraleu. Despite that withdrawal, he says he still needed a response and settlement, which I find somewhat odd since there was no longer any case on foot (although the complaint could be laid again in accordance with s 147 of the District Courts Act). Mr Maraleu says in evidence that he suggested the K700 after 23 December 1991. I stress after the 23rd because, at that point, the evidence tendered by consent shows that an account or bill dated 23 December 1991 was rendered to Poliamba Pty Ltd and it makes no provision, reference, or any other allusion to the Poliamba's need to make an allowance for a possible settlement or costs.

Mr Maraleu apparently went on leave but had tried to get Mr Allardyce before hand. He spoke to others, and all of them said to him that Mr Allardyce was handling the matter so:

"he was not available so I relied on general instructions from the company after considering all the interest of my client, I took it upon myself to offer his client K700. I then awaited Mr Sebulon and his client to confer with me. When I did not hear anything, I presume that the offer was accepted and I pay K300 as a first instalment and I indicated this was the first payment. Sebulon did not say anything." (sic)

I note that Mr Wat says nothing about instalments in his evidence or offers prior to 23 December 1991. I will note here, although it was not alluded to by the lawyers, that this was not a trust account cheque. There is no mention of trust or client accounts, only to K300 in cash which had no receipt, acknowledgement, or any other type of record. I find it a most unusual way of dealing between lawyers in view of the fact that these were settlement monies which presumably would have to come from a client.

Mr Maraleu said in evidence he sent the account to Poliamba Pty Ltd "after the 23rd or around the 23rd". Evidence by consent shows that it was received by Poliamba on 23 December 1991 and paid on that day. Mr Maraleu says he faxed it at about 1.30 pm. I find as a fact that the bill was sent by facsimile machine on 23 December 1991. The items on the bill include fees for attending on the client, perusing, routine instructions, studying various files and documents, handling the defences, all of which totalled to K580, and "for trial of the matter," K2,400, a total of K2,980. Under "Court appearance" is 13, 18, 20-12-91 and 23-12-91. Added to it is the words "the claim against your Company was dismissed this morning by the Grade 5 Magistrate. I will collect my cheque at 8.30 tomorrow as I will be leaving Kavieng to Rabaul for vacation."

In cross-examination, Mr Maraleu says he prepared for a trial on the 23rd but he had no indication from Mr Wat that there would be a trial and the record shows that both accused agreed for the matter to be stood over to Monday. The 20th of December was a Friday and the 23rd was a Monday. There is nothing on the court record to show it was to be a trial, and if, indeed, he was prepared for a trial, this is in conflict with his letter to Poliamba explaining, "When the case came up for hearing, the vital witness was not available. I could not postpone the case, because the lawyer for John Samot wanted a hearing when he saw that there was no witness." (sic) This conflicts with the explanation given to Poliamba dated 10 February 1992.

Mr Maraleu insisted in cross-examination that he was prepared for a trial, although there is no indication in the evidence or suggestion that he brought his witnesses or prepared his evidence in readiness for a trial. If anything the opposite is the case, if the letter of 10 February is any indication.

In cross-examination, when asked why he offered K700, he said:

"I thought the matter was withdrawn to allow Mr Wat and myself to discuss settlement and it was that time I offered to settle. I think the court records will also indicate that a settlement was being discussed along those lines."

As I observed, the facts of the court records were tendered by consent and not called into dispute. Accordingly, I find that the court records show no trial of this matter was listed, no application to set for trial was heard, nor was a hearing date allocated to it. Mr Maraleu said he thought the magistrate was a Grade 5 Magistrate because "he was handling the case."

Both accused says K700 was the discussed figure. I find some conflict in Mr Maraleu's evidence that he was surprised at the withdrawal and then saying in evidence that "he thought" it was to allow for settlement.

Mr Vermot, who was the company representative in the hearing on the second matter, said he was contacted by his "boss after the second summons" and was asked to discuss what was happening with Mr Maraleu. He went to court on 31 January 1992 and asked for an adjournment, which was granted. About a week later, he saw Mr Wat with a letter from Mr Allardyce (the letters are referred to by both accused in their replies to Poliamba Pty Ltd) and "Wat then showed to me the envelope and the money". In his report, which was tendered to the Court, he informed his superior on 31 January 1992 that his understanding was that the K700 was an out-of-court legal fee of K700 for Mr Samot's lawyer, to be paid by Mr Maraleu, but not damages to Mr Samot. He confirms that Mr Samot was in court, that settlement was not mentioned, and he said that Mr Samot did not know what was going on. The facts show that the matter was withdrawn on 23 December 1991 to the "surprise of Miskus Maraleu". There was no withdrawal or technical defect in the pleadings to avoid a non-suit, but withdrawal was because Sebulon Wat considered that his client had a "hopeless case". It was not relaid thereafter to prompt the need to re-open possible negotiations that had been a condition of the withdrawal because there was no offer to settle prior to the withdrawal. It is clear from Mr Maraleu and Mr Wat's evidence that the K700 was not mentioned until well after 23 December 1991. Mr Wat says the K700 was for his client and for fees. Mr Vermot's report at the time refers to legal fees. Mr Vermot was not so sure in oral evidence as to whether it was for legal fees only and said, "It was some sort of court settlement or something like that". Mr Wat produced the envelope after Mr Vermot gave the letters from his superior. This letter, which subsequently prompted a reply from both accused, is referred to as the letter of 6 February 1992. That is a week or so after the hearing on 31 January 1992.

There was no trial listed for 23 December 1991, and I consider Mr Maraleu's excuse to Poliamba that the case came up for hearing and the vital witness was not available is a sham. On the evidence before me, there is no evidence to show that a settlement was discussed prior to the 23rd. There is no evidence to show that the matter could have been non-suited if it was not withdrawn. There is no evidence that withdrawal was a condition to a settlement or a possible settlement. Hence, on the evidence Mr Wat withdrew the complaint without prior consultation with his client and without having negotiated the settlement.

A settlement was first negotiated after withdrawal, but Mr Vermot understood then it was for fees. The settlement figure was not discussed with Mr Samot. The amount discussed was K700. It was not paid, and Mr Wat lodged the same complaint although he knew it was "a hopeless case". Mr Wat says that Mr Maraleu never asked to settle before 23 December 1991, which statement is belied in his own letter to Poliamba and what was conveyed to Mr Vermot, who impressed me as a cautious witness, careful not to go further than what he was very clear about.

Mr Wat never told Mr Samot of the offer to settle nor discussed a proposed quantum and settlement even after 23 December 1991.

Mr Maraleu says in different ways that he put forward a proposed settlement but had no response from Mr Wat, and he presumed it was accepted and paid a first instalment. What provision he used for that payment, if the bill paid on 23 December was only his fees, is not told to the court.

I cannot, on the facts, work out any need of settlement after 23 December 1991, when the matter was withdrawn. True, there is a possibility of relaying a complaint, but why relay a "hopeless case"? I do not, on the facts, believe that Mr Wat discussed the K700 with Mr Samot. Mr Vermot observed Mr Samot did not know what was happening, and Mr Samot says he did not know. It was not put in cross-examination to him that he did know.

Was the K700 only for legal fees as Mr Vermot says in his report? Mr Wat says not but then Mr Samot was not consulted and not asked.

As the State has said in submission, there is no direct evidence of an agreement and the accused are charged with conspiracy. Conspiracy has been defined in the case of The State v Tanedo [1975] PNGLR 395 at 418:

"If two or more persons agree together to do something contrary to law, ... or wrongful and harmful towards another person, ... or to use unlawful means in the carrying out of an object not otherwise unlawful, the persons who so agree commit the crime of conspiracy... So long as the design to do such an act rests on intention only it is not criminal, but as soon as two or more agree to carry it into effect, then their act becomes punishable."

This is a definition I apply to the facts before me. There is no direct evidence of agreement. Can an agreement to conspire be implied or inferred from acts or behaviour? I have not been referred to any case on this subject in Papua New Guinea reports, but I note that the English Court of Appeal in Re Senat (1968) 52 Cr App R 282 at 285 considered that conspiracy can be inferred from the facts.

The facts in Senat's case relate to evidence being taped by way of tapping telephones and by observation of invidivuals to support a divorce proceeding. In referring to the evidence in the lower court, the Court of Appeal said about the facts:

"It is unnecessary to refer to those in any detail, but it was said, and in the opinion of this Court rightly said, that the only true inference from those recordings was that Miss Brundle, Mr. Sin and Mr. Senat were conspiring together to lead the Court to believe that Miss Brundle was not living with Mr. Senat, but was living with Mr Sin."

The Court of Appeal also considered and approved at 289 the lower court judge's definition of conspiracy, when he directed the jury:

"...in most cases it was to be inferred from what somebody does and says. Of course, it can also be inferred from what they don't do and from what they don't say when, if they were innocent, you would expect them to do, or say something..."

The English Court of Appeal considered this a correct direction, and whilst such a definition is not binding or persuasive upon this court, I consider it is a definition that is applicable and can be safely adopted when considering a charge of conspiracy to pervert or obstruct the course of justice.

As the then Deputy Chief Justice Prentice said in The State v Tanedo, supra, at 418:

"The prosecution must in such a case prove not only an agreement between the alleged conspirators to carry out an unlawful purpose (or a lawful purpose by unlawful means) as signified by words or other means of communication between them, but also an intention in the mind of any alleged conspirator to carry out the purpose. Their agreement may be seen as an advancement of the intention which each has conceived in his mind, which then passes from a secret intention to the overt act of mutual consultation and agreement."

I apply those definitions and the fact that agreement can be inferred to the findings of fact I have made in the instant case.

It is clear to me that Mr Maraleu had made no provision in his bill for possible costs or damages, although he made the suggestion of settlement soon after he rendered an account, and the proposal was without notice to his client. It is clear that he was surprised that Mr Wat withdrew the complaint, and there is no legal necessity on the facts before me for Mr Wat to withdraw the original claim, eg because of the possibility of being non-suited on 23 December 1991. Having withdrawn it, why should he relay a "hopeless" summons.

Certainly, as Mr Kuvi said, the whole conduct of the case in the District Court was highly improper. It fell very short of the standard of duty to the Court and to the client that is expected of a lawyer. The State in its opening remarks said:

"that the conspiracy was based on the fact that Wat and Maraleu conspired to withdraw the summons on 23rd on a promise to Wat in the amount of K750 and when Wat was not paid, he resurrected the complaint by writing to the Clerk of Court to have it set down".

It is clear from the facts, as Mr Wat said in this record of interview to the police, that the original complaint was withdrawn but was never settled. Adopting the definitions that I have referred to in order to prove conspiracy, there must be events prior to proceedings that are to be perverted or to perverted results in a case or proceeding held after the conspiracy was concluded.

On the facts before me, I consider there was a disgraceful abuse of a court proceeding in withdrawing a hopeless case and then relaying the same hopeless case. I infer from the bill that was rendered immediately after the withdrawal, stating its dismissal but making no provision for damages or costs, that no damages were legally agreed. I consider that I am entitled to draw inferences from the facts before me. Whilst I consider the conduct of both accused in the handling of this case quite unprofessional, approaching an abuse of the court procedure and reprehensible, I cannot be certain on the facts that there was direct or inferred evidence of conspiracy prior to the 23rd of December, although I may think there was. I am unable beyond reasonable doubt to infer that there was such a conspiracy. I consider their conduct warrants severe censure and is such that it brings the profession into disrepute, but it is on the borderline of whether a court can conclusively infer conspiracy and, thus, a criminal offence. The court is to be satisfied beyond reasonable doubt. This is a borderline case, and the benefit of the little doubt I have goes to the accused. Accordingly, I am not satisfied that I can directly find or infer conspiracy prior to 23 December 1991 on the facts before me. Accordingly, I must return a verdict of not guilty on the count of conspiracy against both accused.

I now turn to the count that Miskus Maraleu falsely pretended to the company secretary of Poliamba Pty Ltd that a civil matter he had been defending had been dismissed before the court and so induced Mr Allardyce to deliver to him the sum of K2,400, with the intent thereby to defraud.

The facts relating to the account have been tendered by consent and referred to already. The bill shows the details I have recited. The handwritten notation is that the "claim against the Company was dismissed this morning by the Grade 5 Magistrate". That bill was paid, and Mr Maraleu acknowledges in court that the signature appearing on the cheque tendered by consent was that of Mr Allardyce, referred to in the indictment. His explanation was that the bill is not for the case being dismissed, but for work up to the date he incurred on 23 December. It was put to him why he wrote "dismissed", and he was silent for a while before replying, "It must have been a mistake or an oversight, but I repeat I did not bill the company for a dismiss case but work done for it." (sic)

Looking at the fact that Mr Maraleu is a lawyer of some 14 years standing, I find it impossible to accept that he did not know the difference between dismissal and a withdrawn case, between a trial leading up to a dismissal and the appearance for mention which, to his surprise, became a withdrawal.

I consider that the matter was costed out on the basis and was paid on the basis that the matter/case was dismissed. He contradicted himself in whether the witnesses were needed or not. I find there was no need for witnesses on that day, 23 December as he well knew. I consider he misled his client into believing that the case was dismissed after a Grade 5 Magistrate heard it, and his client, relying on that assertion and believing that it a fact paid him, inter alia, K2,400. I do not lose sight of the fact that the K2,400 also covered the appearances on the previous days, but the basis of the bill, it appears to me, was the dismissal recorded at the bottom, and it has, to me, the appearance of a final account rendered.

I am satisfied that he misled and pretended to Poliamba that the case was dismissed, and on that basis they accepted it and paid the account. I find as a fact this was a false pretence.

The State has proved the elements of this offence beyond reasonable doubt, and I find that there was a false pretence that it was dismissed and on the basis of that the money was paid. I find the accused Miskus Maraleu guilty as charged.

Lawyer for the State: Public Prosecutor.

Lawyer for the accused: Ephraim Jubilee & Lawyers.

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