N9394
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 147 OF 2021

STATE

V

KAMBE POKOLA

Waigani: Wawun-Kuvi, AJ
2022:   10th, 11th,12th,14th & 18th January

CRIMINAL LAW-TRIAL-Obtaining Money by False Pretense, section 404(1)(a) Criminal Code-Whether accused falsely pretended to the complainant that he was a representative of the Mahuru Clan of Mahuru, Kirakira Village?

The accused was charged with False Pretense under Section 304 (1)(a) of the Criminal Code. The accused informed the complainant that he was a representative of the customary landowners for land located at Vadavada. He approached the accused. Land was identified and the agreed purchase price was K20, 000.00. Complainant gave the accused K17, 000.00 for the purchase of the subject land. The complainant withheld K3000.00 with the view that once he was given the land ownership documents he would settle the balance. Accused says that he gave the K17, 000.00 to the matriarch of his adopted clan. That the land documents were not forthcoming because the complainant failed to pay the balance of K3000.00. 

Held:

1.	The offence of false pretense involves four elements: (1) there must be a false pretence, (2) the accused must know that the pretence is false, (3) property must be obtained by means of the pretence and (4) there must be an intent to defraud, Green v The King [1949] HCA 55; (1949) 79 CLR 353 and Balcombe v De Simon [1972] HCA 9; [1972] 126 CLR 576 per Gibbs J.

2.	There is no dispute that the complainant has not been disturbed by any customary landowner nor has he been threatened with eviction since 2015. 

3.	There is no dispute that an agreement was signed by the accused and the complainant over the sale of customary land. 

4.	There is no dispute that the land documents have not been forthcoming.

5.	The agreement was tendered by consent. The legislative basis for the tendering of statements lies within section 589 of the Criminal Code. The effect of tendering the agreement by consent is that the State agrees that the materials contained therein are established facts: see Davinga v The State [1995] PGSC 11; [1995] PNGLR 263.

6.	The agreement was for the sale of customary land. The agreement states that the accused is the owner of the land. That he bought the land from the customary landowners. The accused would sell the land but later obtain a consent deed from the customary landowners. 

7.	Clause 3 of the agreement stipulates that the balance of K3000 shall be paid within 4 months from the date of the agreement.

8.	The complainant has defaulted in his own agreement by not making final payments within 4 months.

9.	In any circumstantial case, the State must prove that there is no other reasonable inference other than the guilt of the accused: Paulus Pawa v The State [1981] PNGLR 498. That “Where there are a number of competing inferences it is a question of fact for the court to decide which inferences should be drawn, which rejected, which are reasonable, which are mere conjecture, and which party, if any, they favour.”: State v Tom Morris [1981] PNGLR 493 per Miles J.

10.	The more rational inference is that the accused is a representative of the clan. The reason being that the complainant has built a two-story house in plain view that was not subject to any objection either from State authorities or customary landowners. That since 2015 he was not threatened with eviction and has not been disturbed. The agreement compels the complainant to pay K3000.00 within 4 months from the date of the agreement. He has not done so.
 
11.	The law is that the false pretence must be one of material existing fact. A mere promise to do some act in the future is not sufficient: Green v The King [1949] HCA 55; (1949) 79 CLR 353.
12.	The present state of our law includes part pretence and part promise. To sustain the indictment, the State must establish false statements as to past or present things along with a promise to perform a future act: per Dixon J in Green v The King [1949] HCA 55; (1949) 79 CLR 353.

13.	To determine what is presently false or was false, the relevant questions to ask are (1) What caused the complainant to part with his money and (2) Was that stated reason false? 

14.	There is no evidence that the accused was not a representative of the landowners.

15.	I cannot therefore be satisfied that at the time the accused made the agreement with the complainant he was not authorized to do so and that he did not have ability to obtain such documents from the customary landowners and, he knew it. 

16.	A false representation does not necessarily mean that a person has an intent to defraud. It must be a false representation with an intent to cause the other person to give over money or property. Whether or not the person uses it for the intended purpose is immaterial: Balcombe v De Simon [1972] HCA 9; [1972] 126 CLR 576.

17.	The State has not establish that the representation was false and so I find that there was no intent to defraud.

18.	A Verdict of Not Guilty is returned

Cases Cited:
Papua New Guinea Cases

Nara v State [2007] PGSC 54; SC1314
Davinga v The State [1995] PNGLR 263 
State v Tom Morris [1981] PNGLR 493
Paulus Pawa v The State [1981] PNGLR 498

Overseas Cases

Balcombe v De Simon [1972] 126 CLR 576
Green v The King [1949] HCA 55; (1949) 79 CLR 353
R v Thorland (1894) 5 LR (NSW) 412

Reference

Criminal Code

Counsel
Ms Samantha Mosoro, for the State
Mr Jeffery Kolowe, for the Defence

VERDICT

18th January, 2022

1.	WAWUN-KUVI, AJ:  Kambe Pokola (accused) and George Paki (complainant) are from Southern Highlands Province. They entered into an agreement for the purchase of land located at Taurama, National Capital District. The men say that the land is customary land.

The Allegations

2.	The State alleges that on an unknown date in 2015, the accused informed the complainant that he was a representative of the Mahuru Clan of Mahuru Village, National Capital District; And that he had authority to sell or lease land on behalf of the customary landowners. 

3.	It is the State’s position that the accused is not a representative nor does he have any authority to deal with any customary land. That when he made the representation, he knew that it was false.

4.	The State further alleged that based on the false representation, the accused entered into a written agreement with the complainant. The agreed purchase price was K20, 000.00. The accused promised the complainant that the land ownership documents would be given once the payment was completed.

5.	 On 8 January 2015 at about 9 pm, the accused and his wife then went to the complainant’s home and received K7000.00 as a first installment. Then, on 13 January 2015, the complainant gave the accused K10, 000.00 as the second installment.
6.	The complainant held onto K3000.00 with the view that once he received the land purchase documents, he would settle the balance.

7.	The Complainant did not receive any land purchase documents. He also did not receive any receipts for the payment of the K17, 000.00 from the customary landowners.

The Defence

8.	He gave the K17, 000.00 to the customary landowner. That the landowner did not release the paperwork because the complainant had not paid the balance of K3000.00. The complainant has built a house and he is presently living on the land without disturbance.

The Charge

9.	The State has charged the accused for Obtaining money by False Pretence under section 404 (1) (a) of the Criminal Code. The indictment reads:

“KAMBE POKOLA OF UMA VILLAGE, KAGUA, SOUTHERN HIGHLANDS PROVINCE stands charged that he between the 1st day of January 2015 and 31st day of January 2015 at Port Moresby, National Capital District in Papua New Guinea falsely pretended to GEORGE PAKI that he was the representative for the Mahuru Clan, Mahuru Kirakira Village, Moresby South, customary landowners at Vadavada Taurama, Port Moresby and obtained from GEORGE PAKI cash monies in the sum of Seventeen Thousand Kina (K17, 000) with intent to defraud.”

The Elements

10.	The offence of false pretense involves four elements: (1) there must be a false pretence, (2) the accused must know that the pretence is false, (3) property must be obtained by means of the pretence and (4) there must be an intent to defraud, Green v The King [1949] HCA 55; (1949) 79 CLR 353 and Balcombe v De Simon [1972] HCA 9; [1972] 126 CLR 576.

The State’s case

11.	The State called only the complainant. 

12.	He gave evidence on how he met the accused and what led to the exchange of the money. That the accused represented to him that he was a middleman for the landowners. He prepared the agreement. They signed it to recognize that money was exchanged. The accused promised to obtain the land documents from the landowners.

13.	 He confirms that he has built his house on the land and resides in his home.

14.	He reported the accused to the police because the land documents were not forthcoming since 2015.

The Defence case

15.	The Defence called two witnesses. The accused and his wife Marlin Kambe.

16.	The accused says that he was adopted by the clan. He acts as a representative. After he received the money, he and his wife took it to matriarch of the clan one Age Geita. She was suffering from breast cancer at the time. Age Geita gave him K1000.00 and his wife K700.00.

17.	He informed the complainant to pay the balance of K3000. That upon that payment the landowners would then issue the land documents. The complainant delayed payment until the death of Age Geita.

18.	Marlin Pokola states that she was present when the complainant gave the money on both occasions. She put the K17, 000.00 in her bilum. She went with her husband to see Age Geita. Her husband removed the K17, 000.00 from her bilum and gave it to Age Geita.  Age Geita gave her K700.00. Her husband was given K1000.00.

Issue

19.	 Whether the accused falsely pretended that he was a representative of the Mahuru Clan?

Assessment

20.	There is no dispute that the complainant has not been disturbed by any customary landowner nor has he been threatened with eviction since 2015. 

21.	There is no dispute that an agreement was signed by the accused and the complainant. The agreement was tendered into evidence by consent and exhibited as “S3”. 

22.	There is no dispute that land documents were not forthcoming.

23.	The legislative basis for the tendering of statements lies within section 589 of the Criminal Code. The effecting of tendering the agreement by consent is that the State agrees that the materials contained therein are established facts: see Davinga v The State [1995] PGSC 11; [1995] PNGLR 263. The Supreme Court ruled:

" There is no doubt that it is open to both prosecution and defence to agree on the admission of certain facts, and this is often done where there is no doubt or no challenge to the facts.”

24.	The agreement was prepared by the complainant. He is an accountant by profession. He says that he prepared the agreement as a document to recognize the exchange of the money. He agrees that he does not appreciate the legal consequences of the agreement.

25.	 It is clear from the agreement that the complainant does not appreciate the complexities surrounding customary land ownership more so that neither he and nor the accused have any ownership rights.

26.	The agreement is for the sale of customary land. Contrary to the State’s allegations, the agreement shows that the payments were made on 2 January 2015 and 8 January 2015.  Further contrary to the State’s allegations, the agreement demonstrates that it is the accused that is the owner of the land and that he purchased the land from the customary landowners. That he would sell the land but later obtain a consent deed from the customary landowners.

27.	 As to the K3000.00, clause 3 of the agreement stipulates that that amount shall be paid within 4 months from the date of the agreement.

28.	 There is no mention in the agreement that the K3000 shall be paid upon the accused obtaining the land documents from the customary landowners.
 
29.	The complainant has defaulted in his own agreement by not making final payments within 4 months.

30.	The State is inviting the Court to make an inference that because the accused did not provide the land documents, the reasonable conclusion is that he did not have authority to represent the landowners. 

31.	In any circumstantial case, the State must prove that there is no other reasonable inference other than the guilt of the accused: Paulus Pawa v The State [1981] PNGLR 498. In State v Tom Morris [1981] PNGLR 493 Miles J held that “Where there are a number of competing inferences it is a question of fact for the court to decide which inferences should be drawn, which rejected, which are reasonable, which are mere conjecture, and which party, if any, they favour.”

32.	 As I see it, there are two inferences (1) that the accused was not the representative of the landowners, he used the money for his own purposes and as a result, he did not provide the land documents or (2) he gave the money to the landowner but because the complainant did not pay the balance, the land documents have not been forthcoming.

33.	However, it is difficult to accept the inference that the accused was not the representative because the State did not call any evidence to verify whether the subject land was customary land or State Land. And if the land was customary land, as both men are from Southern Highlands, the State did not establish who were the indigenous or traditional landowners. The State did not call any member of the Mahuru Clan to establish whether the accused was adopted and was given authority to sell or lease the subject land.

34.	The more rational inference is that the accused is a representative of the clan. The reason being that the complainant has built a two-story house in plain view that was not subject to any objection either from State authorities or customary landowners. That since 2015 he was not threatened with eviction or has not been disturbed. The agreement compels him to pay K3000.00 within 4 months from the date of the agreement. He has not done so.

35.	The State was attempting to establish it’s case through cross-examination of the accused. In the Supreme Court case of Nara v State [2007] PGSC 54; SC1314, Kandakasi J (as he then was), held that: 

“Consequently no party can put to their opponent's witnesses any case or suggestion they will not follow through and eventually establish in their evidence. A failure to observe these principles ordinarily results in adverse consequences against the offending party. For instance, where a party calls evidence for which no foundation was laid in cross-examination of his or her opponent's witnesses, such evidence may attract little or no weight at all and therefore loses credibility.” [Emphasis mine]

36.	His Honor’s illustration is based on the rule in Brown v Dunn, later amplified in Kitawal v State [2007] PGSC 44; SC927. That little or no weight can be applied to introduce evidence where there has been failure to cross examine state witnesses. It may amount to recent invention.

37.	However, the principle is relevant in the conduct of any case, whether prosecution or defence. Parties must not go on what is termed as ‘fishing expeditions’ for want of a better description to prove their case. There must be proper evidentiary basis and the party asserting must call evidence to support its position. In this case, the State did not establish that the accused was not a representative of the Mahuru Clan but sought to discredit the accused in cross examination. 

38.	 The State further argued that the failure of the accused to meet his promise to provide the documents is sufficient to establish false pretence. There is a difference between a false promise and a broken promise. The consequences of the later would require civil remedies. 

39.	The law is that the false pretence must be one of material existing fact. A mere promise to do some act in the future is not sufficient: Green v The King [1949] HCA 55; (1949) 79 CLR 353. However, I adopt the view by Dixon J in Green v King. This is because the present state of our law includes part pretence and part promise. To sustain the indictment, the State must establish false statements as to past or present things along with a promise to perform a future act. To determine what is presently false or was false, the relevant questions to be asked are (1) What caused the complainant to part with his money and (2) Was that given reason false? 
40.	In R v Thorland (1894) 5 LR (NSW) 412, the accused told the complainant that he owed another person money. That if the complainant gave him the money, he would pay his debt and then repay the money. The evidence established that the accused did not have a debt. The conviction was upheld on appeal. 

41.	Green v The King (supra) is distinguished in that sense. The prosecution did not establish that the accused did not have the ability to obtain materials or even if he obtain the materials, he could not supply the blinds. The accused had obtained money from the complainant on agreement that he would supply blinds. He asked for a deposit which the complainant paid. The blinds were not supplied.  The accused explanation was that he was having difficulty obtaining the materials. No evidence was offered to the contrary. The majority quashed the conviction and acquitted the accused. 

42.	This is where State’s case fell short again.

43.	The State did not charge the accused for part false pretence and partly false promise. It was that he pretended that he was a representative of the landowners and obtained the money. The written agreement drawn up by the complainant demonstrates that there was agreement that the accused was the owner of the land. That he had acquired the land from the customary landowners. That the complainant was purchasing the land from the accused who would later obtain consent documents from the customary landowners. 

44.	There is no evidence that the accused was not a representative of the landowners.

45.	I cannot therefore be satisfied that at the time the accused made the agreement with the complainant he was not authorized to do so and that he did not have ability to obtain such documents from the customary landowners and, he knew it. 

46.	Finally, a false representation does not necessarily mean that a person has an intent to defraud. It must be a false representation with an intent to cause the other person to give over money or property. Whether or not the person uses it for the intended purpose is immaterial: In Balcombe v De Simon [1972]. In present matter however, the State has not establish that the representation was false and so I find that there was no intent to defraud.

47.	 A Verdict of Not Guilty 

Orders

48.	The Orders of the Court are:

1.	A Verdict of Not Guilty is Returned.
2.	The Accused is acquitted
3.	The Accused is discharged of the Indictment dated 10 January 2022.
4.	Bail is refunded
________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Defence