DC6044

PAPUA NEW GUINEA
[IN THE WAIGANI DISTRICT OURT OF JUSTICE
SITTING IN ITS COMMITAL JURISDICTION]
Committal No. 145 of 2020
BETWEEN
POLICE
Informant
AND
FREDDY JARUKA
Defendant
NCD: T. Ganaii, SM
2021: 13th May, 21st June
COMMITTAL PROCEEDINGS – Practice and Procedure - Committal Ruling pursuant to Section 95 of the DCA - Phase One of the Committal process – One count each False Pretence contrary to section 404 of the CCA - Legal requirements for prima facie case - Presence of the elements of the charge - Admissibility of statements and exhibits – Among others Circumstantial Evidence is sufficient to show knowledge of prior existing fact which is false.- Evidence is sufficient to commit to trial 
COMMITTAL PROCEEDINGS – Practice and Procedure - Committal Ruling pursuant to 100 of the DCA – Phase Two of the Committal Process - Section 96 administered – Defence filed two section 96 statements – Defendant maintains the defence of General Denial – Which is a matter for trial proper – Ruling on Sufficiency of Evidence under section 95 is intact – Defendant is committed to stand trial in the National Court on one count of False Pretence contrary to section 404 of the CCA  
Cases cited
Akia v Francis PGNC 335
Francis Potape v The State (2015) SC1613
Maladina v Principle District Magistrate [2004] (25/06/04) Injia DCJ
Paulus Pawa v The State [1981] PNGLR 498
Re Prosecutors Request No 4 of 1974  [1975] PGSC 46 (28th November 1975)
Regina vs. McEachern [1967-68] PNGLR 48 
St v Hillary Talopa Kepo (2019) N7807
St v Kepo [2019] PGNC 74, N7807 (23rd April 2019)
Yarume v Euga [1996] PGNC 24

References
Law Shelf, Education Media, A project of National Paralegal College
Legislation
Criminal Code Act, Chapter 262 
District Court Act, Chapter 40

Counsel
Police Prosecutor, Peter Samghy			 For the Informant
Mr. D. Kayok, Lawyer, Public Solicitor		For the Defendant	

Ruling on Sufficiency of Evidence pursuant to Section 95 of the DCA 
and Final Ruling on Committal pursuant to Section 100 of the DCA 
13th May, 21st June 2021
Introduction
Ganaii, SM.		This is a ruling on whether there is a prima facie case made out within the meaning of s.95 (1) of the District Courts Act (DCA), after the receipt of all the evidence offered by the police prosecution in the form of the Police Hand-up Brief. The court is tasked to determine whether on the evidence as it stands at this stage of the proceedings, there is a prima facie case sufficient to commit the defendant to stand trial in the National Court.

Charge
2. The defendant Freddy Jaruka is charged with one count of False Pretence contravening section 404 (1) (a) of the CCA.  The charge reads:

“…That on the 0612th day of June 2012 at Gordons, NCD, the defendant

Did by false pretence with intent to defraud obtain from Simon Kepas property monies in the amount of K6, 0000 in cash by receiving the cash without issuing a receipt or legal documents upon payment and with intent thereby then to defraud the said Simon Kepas

Contravening section 404 (1) (a) of the CCA.  
Statement of Facts
3. 	Police allege on the 06th of June the defendant received K6 000 from the complainant Simon Kepas for a portion of land sold through a courier by the name of Eddy Jofu.  

Kepas, who is the main complainant and his wife were interested to purchase a portion of land . In June 2012, they both approached Kepas’s aunt who lived at Air Transport Squadron (ATS), Second Block, NCD and expressed their interest. She then connected them to the courier named Eddy Jofu. Eddy worked with an Association called the Oro Community Association who usually was responsible for organizing legal documents for sale of land portions of land at ATS. The Association was also responsible for producing receipts to buyers who purchased land. 

4.	Kepas was informed by Eddy that the portion of land was owned by the defendant. Kepas was led by Eddy to see the caretaker of the land who is Freddy’s aunt called Shallotte. Police say a meeting and discussion was held between the owner who is the defendant Freddy Jaruka and his aunt Shallotte who was the care taker of the land and they agreed to sell the land at K6, 000. Kepas then took the monies; i.e. K6, 000 as agreed to the owner, defendant Freddy Jaruka. 

5.	The monies were paid by Kepas in person to the defendant in the presence of Eddy and Kepa’s wife and one other witness.   The defendant recounted the cash and confirmed that he had received K6, 000 from Kepas. He then gave K200 to Eddy as his commission. The defendant then told Eddy to prepare the legal documents for transfer of title to the complainant Kepas. 

6.	Immediately after that when Kepas and his wife went onto the land to clear it, they were told by neighbours that the land was a disputed land as other buyers had already paid for the same land. 

7.	Kepas and his wife informed Eddy and the defendant was called to settle this. The defendant assured Kepas that he would settle the dispute and give them title. He however, failed to settle this for some time and went into hiding for seven years. In 20017, Kepas was told that the defendant had sold the land to another buyer. 

8.	On the 6th of July 2019 the defendant was sighted and the complainant Kepas informed the police who then arrested him. Police say this case is based on circumstantial evidence on the element of knowledge of a prior existing fact that was in fact false. There is no issue on identification and that the defendant parted with some monies. 

9. 	Police say when Kepas entered into a discussion with the defendant to purchase the portion of land, the defendant had already known that he had already sold the land to a previous buyer. When the defendant agreed to sell the land at K6, 000 he had intended to falsely pretend to Kepas by saying the land was for sale with an intention to obtain the said monies from Kepas. When the defendant did take the monies and go into hiding, Police say his actions amounted to false pretence with intent to defraud., contravening section 404 of the CCA.  

Issue
10.	The main issue is whether a prima facie case is made out under the requirement of section 95 of the DCA. This requires the court to determine whether the evidence received from the Police Hand-up Brief is sufficient to establish the elements of the offence of false pretence to make out a case against the defendant so as to warrant a committal to the National Court for trial. 
11. The sub-issues are:
1)	whether there is sufficient prima facie evidence on the following elements:

a)	identification of the defendant; 
b)	false pretence and or
c)	false promise;
d)	Obtaining of property from complainant and
e)	With intent to defraud

and 

2)	whether the evidence (i.e. witness statements and documentary evidence) are admissible and reliable.  
The Law
The Law on Committal Proceedings

 12. 	Part VI of the District Courts Act (DCA) provides the legal basis for committal proceedings specifically under Section 94 to Section 100 of the DCA.

13. 	The Committal Process whilst requiring the Court to make a finding on the evidence presented by the Police, this process is very administrative in that the Court need only to form an opinion that there is a bona fide prima facie case against the Defendant; as per Akia v Francis and R v. McEachern.

14. 	In the matter of Maladina v. Principal District Magistrate Posain Polo  His Honour Injia DCJ (as he then was); expressed in his opinion that the Committal process involves two phases, the first is when the committing magistrate makes a finding on whether or not there is sufficient evidence and whether a prima facie case is made out under Section 95 of the DCA on whether to discharge or commit the defendant only after the Court administers an examination of a defendant under Section 96 where the defendant is asked whether he desires to give evidence.

15.	 Furthermore, in the case of Yarume v. Euga  the National Court said in respect to committal hearings that the process of committal requires proper and reasonable assessment of the evidence with a view to see whether all the elements or ingredients of the offence is present before he can commit the accused; Section 94B, 94C, 95 and 100 to be read together.

Evidence In Written Statement
16.	Section 94C requirements in the committal process must be fulfilled and is in the following terms:

 94C. 		Regard to Evidence, Etc.
(1) When conducting a committal hearing under this Part, the Court may, subject to Subsection    (2), have regard to–

(a) the evidence contained in a written statement; and
(b) documents and exhibits,
of which a copy has been served on the defendant under Section 94(1) or made available for inspection under Section 94(2).

(2) Before admitting a written statement, the Court shall be satisfied that the person who made the statement had read and understood it, or if unable to read, had had it read to him in a language that he understood.

17.	The case precedent on this principle of law in relation to written statements is in the case of The State v. Kai Wabu . In Kai Wabu (supra) the court held that the combined effect of ss 94 (1A) and 94C (2) of the District Courts Act is that the committal Court must conduct an enquiry to ensure that the makers of statements had full knowledge of the contents, correctness, and truth of written statements they are responsible for signing. This requirement is mandatory and requires strict compliance. This enquiry is an independent one, which the Court must conduct in the exercise of its judicial function. The court further stated that after having conducted the enquiry, the Court has discretion to admit or reject the written statement. The Court must then record the nature and extent of the enquiry conducted and records its findings. A failure to conduct such enquiry and record its finding may result in voiding the committal.
The Law on the Offending Provisions
18.	Section 403 of the CCA defines false pretence and willfully false promise in the following terms:
403.	False pretence: Wilfully false promise.
(1) A representation made by words or otherwise of a matter of fact, past or present that–
(a)	is false in fact; and
(b)	the person making it knows to be false or does not believe to be true,
is a false pretence.
(2) A promise made by words or otherwise to do or omit to do anything by a person who at the time of making the promise–
(a)	does not intend to perform it; or
(b)	does not believe he will be able to perform it,
is a wilfully false promise.

19. Section 404 provides for the offence of false pretence and wilfully false promise in the following way:
404.	Obtaining goods or credit by false pretence or wilfully false promise.
(1) A person who by a false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, and with intent to defraud–
(a)	obtains from any other person any chattel, money or valuable security; or
(b)	induces any other person to deliver to any person any chattel, money or valuable security,
is guilty of a crime.

Elements of the offence of False Pretence:
20. 	The case law of State v Kepo lists the elements of the offence as follows:
a)	a person;
b)	who by false pretence;
c)	or wilfully false promise;
d)	with intent to defraud (knowing it to be false);
e)	through means of such pretence or false promise obtains property from another person; and
f)	with intent to defraud

The Police case
21. 	The Police case comprise of five (5) witness statements whose evidence is summarised as follows:
1.	Simon Kepas – is the main complainant. He states of how he paid for the portion of land by giving K6, 000 to the defendant. He stated that he was promised to be given the title however no legal documents were given to him to show ownership. He began looking for the defendant to have him reimburse the monies when he found out that the land was a disputed land. The defendant had gone into hiding for seven years until he was sighted and finally apprehended and arrested. 

2.	Brenda Leramako – is the wife of Kepas. Her evidence is similar to Kepas’ statement. 

3.	Pauline Raphael - is a relative of Kepas and his wife. She conforms witnessing the payment of the K6, 000. 

4.	Mark Tolom –is the witness that directed Kepas to Eddy Jofu to enquire and buy the land. 

5.	 Eddy Jofu – is the witness that is responsible for being the courier who arranged the meeting and payment of K6000 for the land. He witnessed the payment of K6000 in cash at Gordons. The defendant took the monies.   

6.	Constable Ronald Paijo – is the Police officer involved in the initial investigations and apprehension of the defendant on the 06th of July 2019 at ATS.

7.	Constable Bakandu Wingawi – is the Police officer responsible for the apprehension of the defendant on the 06th of July 2019 at ATS. His evidence is similar to that of Ronald Paijo’s.

8.	Senior Constable Meven Mai – is the Police officer involved as the corroborator during the Police interview with the defendant. 

9.	Constable Robert Stuart - is a Police officer attached to the Forensic Science Centre responsible for examining the portion of land.   He is responsible for taking and producing a total of five photographs depicting the portion of land. 
Documentary Evidence
22. 	The Police rely on the following documentary evidence:
a)	 Record of Interview (ROI) - English version dated 09th July 2019. At Q&A 34; 37: 41; 45; the defendant admitted selling the land at K6, 000 but saying Eddy only gave him K3,000.   At Q&A 60 & 61 the defendant denied that the portion of land was disputed or being already sold and at Q&A 65, the defendant admitted to selling the land without organizing for the legal documents and receipts given to Kepas as promised. 

b)	Sketch map of the portion of land prepared by Constable Robert Stuart of Forensic Science Centre.

c)	Antecedent Report	 - The report is relevant for purposes of
confirming the defendant’s particulars. At this time prior records are not considered.
Defence Submission
23.	Defence made the following submissions:
1) 	there was no clear evidence of ownership of the land;
2)	Eddy Jofu arranged the meeting and took the monies;
3)	Eddy Jofu is supposed to prepare the legal documents and not the defendant;
Prosecution Submission
24.	Prosecutions made the following response and submissions:
1)	The issue is not about proving the ownership of land to the defendant. The issue is false pretence by the defendant resulting in the defendant parting ways with the complainant’s monies; 

2)	 The defendant presented himself as the rightful owner of the said land and offered the land for sale to Kepas at K6, 000. 

3)	The land was sold to other previous buyers and resold to Kepas; and 

4)	As a result, there is sufficient evidence on the elements of sufficient knowledge of a misrepresented fact which is that the land had been sold. 

25.	Police therefore submitted that there is sufficient evidence to make out all the elements of the charge of false pretence under the circumstance.  

26.	In response Mr. Kayok of counsel for the Defence submitted that Eddy Jofu was the main culprit and not the defendant. Eddy Jofu was never arrested and charged by the Police. 
Analysis of evidence and consideration of submissions on the element:
27. 	I accept that the witnesses’ statements have complied with the legal requirements under section 94C and the principles enunciated in Kai Wabu’s case

28.	The discussion below is on the application of the legal requirements on the necessary elements against the facts surrounding the circumstances of the case.

29.	On the element of ‘a person/identification’, there is no issue on identification as the defendant is known to the complainants and admits being the owner of the portion of land, and having received the cash of K6, 000. 
30.	On the element of ‘who by false pretence’,  by definition, section 403 says a false pretence or wilfully false pretence is representation made by words or otherwise of a matter of fact, past or present that is false in fact, and the  person making it knows it to be false or does not believe it to be true; or on the element of wilfully false promise, by definition, section 403 says is a promise made by words or otherwise to do or omit to do anything by a person who at the time of making the promise does not intend to perform it or does not believe he/she will be able to perform it. 

30.	For the elements of false pretence or willfully false promise to be present, it is this court’s view that the following evidence circumstantially established these elements:
1)	the defendant held himself out to be the legitimate owner of the land after he inherited it from his father;

2)	the defendant used a courier Eddy Jofu to represent him in the arrangement for the sale of the land; 

3)	the defendant offered to put up the portion of land for sale at a price agreed to between himself and Kepas (the buyer); 

4)	K6, 000 was paid to and received by the defendant; and 

5)	The defendant said legal documents will be raised and receipts will be produced.

31.	It was based on these evidence that the court finds that the defendant made a false representation and promise and parted with K6, 000 that belonged to the complainant Kepas.

32.	On the element of ‘with intent to defraud’,  Intent to defraud is defined to mean to “deprive a person dishonestly of something which is his or would be if not for the perpetration f fraud”. In Re Prosecutors Request No 4 of 1974  the court stated that:
“Mens rea refers to a statutory requirement for criminal intent. The literal translation from Latin is ‘guilty mind’. The common law doctrine is defined as the intention or knowledge of wrong-doing that constitutes part of a crime, as opposed to the action or conduct of the accused”.  

33. 	Establishing the mens rea of a defendant is usually necessary to prove guilt in a criminal trial. The prosecution typically must prove beyond reasonable doubt that the defendant committed the offence with a culpable state of mind. The mens rea requirement is premised upon the idea that one must possess a guilty state of mind and be aware of his or her misconduct; however, a defendant need not know that their conduct is illegal to be guilty of a crime. Rather, the defendant must be conscious of the facts that make his or her conduct fit the definition of the offence. 

34. 	In the case of Francis Potape v The State, the court stated:
“In criminal offences involving elements of fraud and dishonesty, it is the fraudulent or dishonest act that attaches criminal culpability or criminality to it that is punishable by a penal sanction. It is the criminality of the act that is the gist of an offence involving fraud or dishonesty. Acts of fraud and dishonesty go to a person's state of mind. Fraudulent or dishonest intent supply the mens rea (common law doctrine) required to support a criminal conviction for a criminal offence. Whilst it is suggested that the common law doctrine of mens rea is displaced by the criminal responsibility provisions found in Part V of the Criminal Code (see Thress Kumbamong v The State (2008) SC1017), it is nonetheless a basic doctrine that underpins every crime and one that is imputed by law. Mens rea is deeply rooted in the common law and adopted as part of the underlying law of this country: Dale v The Police (1992) NI103, per Sheehan J. The leading statement on mens rea is found in the judgment of Windmeyer J in Timbu Kolian v R [1967-68] PNGLR 320: 
 "In general, criminal responsibility is today attached to moral blame. And according to deeply rooted beliefs blame-worthiness does not depend simply on what a man did, or the results his action caused. It depends upon his knowledge and his intentions when he acted or upon - or upon his advertence to the possible consequences of what he was doing or about to do, or his careless ignoring of them. That of course is trite. The doctrine of mens rea in the common law and of dole in the law of Scotland express this element in guilt. I see no reason for thinking that s.23 (of the Code) demands any departure from this basic concept or that it all attenuates it".”

35. 	Categorising mental state of mind into crimes required general and specific intent. To assist in categorising, most states in the common law jurisdiction use the Model Penal Codes (MPC) four-tiered classification or the malice distinction. The MPC Mens Rea Chart organises and defines culpable state of mind into four hierarchical categories:

1.	acting purposely – the defendant had an underlying conscious object to act;
2.	acting knowingly – the defendant is practically certain that the conduct will cause a particular result;
3.	acting recklessly – the defendant consciously disregarded a substantial and unjustified risk; and
4.	acting negligently – the defendant was not aware of the risk but should have been aware of the risk:
36. 	Thus a crime committed purposely would have a more severe punishment then if the defendant acted knowingly; recklessly or negligently. The defendant had the guilty mind and this mens rea requirement is premised upon the idea that one must be aware of his or her misconduct.  However, a defendant need not know that their conduct is illegal to be guilty of a crime.

37. 	In this present case, the defendant must be conscious of the facts that according to his conduct he was acting purposely where he had an underlying conscious object to act; that he acted knowing full well that his actions will cause a particular result; that he acted intentionally and knowingly that the land was already sold to a previous buyer. The objective test applicable is on the facts surrounding the state of mind of the defendant. In the case of The State v Hillary Talopa Kepo, Kaumi AJ, stated that:

“Acts of fraud and dishonesty go to a person’s state of mind. Fraudulent or dishonest intent supply the mens rea (common law doctrine) required to support a criminal conviction for a criminal offence he cited the case of Prosecutor’s Request No.4 (1975) PNGLR 365”.

38. 	The circumstantial evidence from surrounding facts of case will help determine the element of having a criminal state of mind. For current case, this court accepts that there is sufficient evidence on the element of criminal intent which is inferred from the actions of the defendant to make out a case where the defendant acted dishonestly and parted with sums of monies. 

39.	On the element of ‘obtains property from another person’, the defendant offered the land for the price of K6, 000 and when the monies were paid to him he parted with it without organising any legal documents or receipts to confirm the payment being made. 

Determination/Findings
40.	 The relevant issue is whether or not the evidence presented in the Police Hand up Brief discloses sufficient evidence to make out a prima facie case against the defendant to put him to trial for the offence for which he has been charged with.
41.	On the basis of the above considerations, this court as a result of the performance of its committal function as an investigator into the strength of the case being mounted by prosecution and not as an adjudicator, has assessed the evidence in totality and makes the final finding that there is prima facie sufficient evidence on the essential elements of the charge of False Pretence under section 404 of the CCA.
Conclusion
42.	I find sufficient prima facie evidence that the defendant did commit the alleged offence of False Pretence. Consequently, I form a bona fide opinion against the defendant that there is sufficient evidence against him in order to commit him to stand trial on one cunt of False Pretence.
Administration of Section 96
43.	After the requirements of section 96 were explained to the defendant which he understood, he opted through his lawyer to write and file a written statement. The matter was adjourned for a section 96 statement to be filed which was then filed on the 15th of June 2021. In summary, the defendant stated as follows in his section 96 statement:

1)	General denial to possessing the intentional knowing of a false fact; i.e. that the land was sold previously to another buyer and

2)	That the main culprit is Eddy Jofu and not the defendant.

44.	After consideration of the defendant’s section 96 statement I consider that the defendant has not raised anything new in his statement that should affect the ruling on prima facie sufficiency of evidence. He only provided explanations of what Eddy Jofu did and why he should be the main culprit. He maintained the defence of general denial to false pretence.

Final Orders
45.	The court’s final orders after the defendant’s section 96 statement was filed are:
1.	There is sufficient prima facie evidence on the elements of the charge to  committed the defendant to stand trial in the National Court on one count of  False Pretence under section 404 (1) (a) of the CCA.

2.	The defendant is committed to stand trial in the National Court on one count of False Pretence under section 404 (1) (a) of the CCA.

3.	The defendant  is to appear at the Waigani National Court, Criminal Listings on 19th of July 2021 at 9:30 am; 

4.	The defendant’s District Court Bail is extended on the same conditions.

Police Prosecution 			For the Informant
Public Solicitors				For the Defendant