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Fofosiar v Kapal [2022] PGDC 59; DC8062 (19 April 2022)

DC8062

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION

NCC NO 211 OF 2021

BETWEEN:

EMMANUEL FOFOSIAR
[Informant]

AND:

JUDE KAPAL
[Defendants]

Waigani: Paul Puri Nii

19th April 2022

COMMITTAL PROCEEDINGS: Charge-False Pretense-Section 404(1)(a)–Criminal Code Act. Witness statements- State evidence- suitable formation of prima facie evidence - elements of the charge not persistent –Evidence is not equal- Defendant is not committed to stand trial.

PRACTISE AND PROCEDURE: Calculation of evidence under Section 95 of the District Court Act. Defendant entered into a contract with the Complainant-Money paid to the Defendant- Work not delivered-allegation of Defendant obtained money by false pretense -elements of objective and contemplation not contented. Evidence of False Pretense missing.

PNG Cases cited:

Akia v Francis [2016] PGNC 335;N6555
Kambae v Blacklock [2021] PGDC 185; DC 7040

Overseas cases cited:

NIL

REFERENCE

Legislation
Constitution
Criminal Code Act 1974, [Chapter 262]
District Court Act 1963, Chapter 40

Counsel
Police Prosecutor: Joseph Sangam For the Informant
Public Solicitor: David Kayok For the Defendant

DECISION ON COMMITTAL

19^th April 2022

INTRODUCTION

NII, P. Paul Magistrate. Decision in respect to the police evidence under Section 95 of the District Court Act. On 10^th March 2022, Defendant asked the court to go through his submission filed on 16^th December 2021 and the Police file and make a ruling. The comparable approach was engaged by police and consequently is my decision on the police evidence.

CHARGE

1. Accused is charged with one count of False Pretence under Section 404 (a) of the Criminal Code Act. The particulars of the charge are below:
   

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 is guilty of a crime. Penalty: Imprisonment for a term not exceeding five years.

BRIEF PARTICULARS

2. The accused now in court is identified by police as aged 41 years and from Kesenepo area of Imbongu in the Southern Highlands Province. Police allege that between 19^th November 2018 and 4^th March 2019 at Section 240, Allotment 1, Maika street, Gerehu stage 2, NCD, the accused and the deceased entered into an agreement. The agreement was for the accused to renovate the Complainant’s house and the complainant would pay the Defendant to execute the task.
   
3. Police further allege that after the date of agreement there were 5 different successive payments being made to the accused to start and finish off the renovation. There were a total of K132, 800 made payable to the accused but the accused did not complete the task. Police therefore allege that Defendant did by false pretense and with intent to defraud, obtained from Gibbi Piakon property namely the said amount and did not honour the agreement and thus defraud the Complainant. The accused was later arrested and charged pursuant to Section 404(1)(a) of the Criminal Code Act.
   

ISSUE

4. Whether or not there is acceptable evidence in the police file to make a prima facie case against the accused for the offence of False Pretense.
   

THE LAW

5. The courts in Akia v Francis [2016] PGNC 335;N6555 affirms the obligation of the committal court under Section 95 of the District Court. The court’s mandate is to assess police evidence and ascertain whether or not evidence is sufficient to make a case against the Defendant. The highlighting capability is obtainable beneath:
   

“95 Court to consider whether prima facie case.

(1) Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.

(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division.”

ELEMENTS OF THE OFFENCE

a) A person who by a false pretence or

b) wilfully false promise, or

c) partly by a false pretence and partly

d) by a wilfully false promise, and with intent to defraud

e) Obtains from any other person any

f) chattel, money or valuable security

EVIDENCE

Police case

6. State evidence is in the police file tendered to court on 27^th October 2021. The table below displays the list of people giving evidence for the state. The table is shown below:
   

Defense case

7. The accused argued that he did not steal the victim’s money by false pretense. He argued that much of the money was used for the intended purposes. Defendant says there was evidence of renovation and much of the money was used and thus he argued that he was wrongly arrested and charged for the offence of false pretense.
   

DELIBERATION OF EVIDENCE

8. Evidence shows the defendant and Complainant entered in an agreement. The agreement was for the Defendant to renovate the Complainant’s house. Evidence shows a total of K132, 800 was paid to the Defendant by the Complainant. Evidence also indicated that there was a total quotation of K183,900 but Defendant was paid K132, 800, which means there was a balance of K51,100, yet to be paid by the Complainant to the Defendant.
   
9. Police evidence shows there was some reconstruction and maintenance work on the property as agreed but the Complainant was aggrieved because the renovation work was allegedly not done according to his expectations. Moreover, Complainant alleges that the work done was not equivalent to the amount of money already paid to the Defendant.
   

RULING

10. The Defendant and the Complainant entered into a verbal agreement. An agreement for the Defendant to repair the Complainant’s house upon the Defendant being paid a total of K183, 900 as per the quotation. There is evidence of receipt copies that Defendant was paid a total of K132, 800 by the Complainant. The agreement between the Defendant and the Complainant was a personal contract of doing maintenance work between them. A contract is an officially enforceable arrangement that generates, outlines, and administers communal privileges and responsibilities among its parties. Nevertheless, if there was a breach of the contract when one party did not honor its obligations, the party alleging the breach may sue for damages or enforcement of contract in the civil court. In the current case, the Complainant is alleging that the Defendant did not honor its contractual obligations.
    
11. Once when someone does not honor an obligation governed by any contract, it becomes an issue of civil wrong and not criminal wrong and the remedy lies in damages or enforcement in civil proceedings and not prosecution. The principles in the case of Kambae v Blacklock [2021] PGDC 185; DC 7040 is plainly pertinent in the circumstance. Any issues within contract may give rise to a civil course of action for damages or enforcement and not criminal.
    
12. Defendant was arrested and charged by police for false pretense under Section 404(1)(a) of the Criminal Code Act for not completing the work thereby it was presumed that he put to his own use some of the money for maintenance work. False pretense is well-defined by the Oxford dictionary as a behavior intended to mislead and cheat others. Did the defendant mislead the Complainant when he was paid K132, 800 by the Complainant? The objective of the payment was to do maintenance work and there is evidence in the police file that maintenance was carried out. However, work was incomplete and thus Defendant raised the criminal allegation against the Defendant. To my satisfaction, the purpose of the money was put into use, there is evidence of maintenance work done on the Complainant’s property but work was incomplete.
    
13. There is no evidence of deceiving and misleading regarding the payment of maintenance work. Defendant did not use up K132, 800 but it was used for the work intended for but work was incomplete, that does not amount to deceiving and misleading to attract the criminal culpability of the offence of false presence.
    
14. The purpose of the agreement was to do maintenance work, however if the Complainant alleged breach of the agreement then he should have filed a civil suit for damages or enforcement of contract in the National Court or an order in the nature of mandamus compelling the Defendant to honor the agreement, not criminal prosecution. There is evidence that renovation work was done but not completed, if that was the reason why Defendant was accused by the Complainants of using part of the money by not doing work then such money should be claimed through a civil course of action or for enforcement proceedings in the civil court than the criminal.
    
15. Moreover, I have read through the police file and discovered that there is no evidence of a Record of Interview. Besides, there is no evidence of someone corroborating the arresting officer. Although corroboration is not a requirement for interrogation, absence of the corroborator indicates Record of Interview was never conducted on the Defendant. Section 42(2)(a) of the Constitution in no ambiguous terms delivers that a person who is arrested or detained shall be informed punctually in a language he/she appreciates of the reason for their arrest or imprisonment and of any charges against them. The constitution is clear that a person who has been subjected to the burden of the law will be informed of the reason why he/she was arrested and any charges against him/her. Section 42(2)(a) of the Constitution is administered by police through the Record of Interview. Throughout the ROI, the defendant will be informed by the arresting officer why he/she was arrested and the charges.
    
16. However, in the present case, there is no evidence of ROI in the police file. This means there was no ROI conducted on the Defendant then obviously Defendant’s constitutional rights under Section 42(2)(a) of the Constitution was violated.
    
17. Therefore, I am satisfied with police evidence that it was a case of breach of agreement between the Defendant and the Complainant in which the remedy lies in civil damages or enforcement proceedings but not prosecution. Moreover, there is no evidence of ROI in the police file and thus, the police file is not complete. ROI forms an important component of the whole police file since it captures the requirement of the Constitution and events before or after pertaining to the allegation.
    

CONCLUSION

18. Therefore, it is my ruling under Section 95(2) of the District Court Act that evidence shows it is a case of breach of agreement between the Complainant and the Defendant and thus the remedy lies in damages and enforcement proceedings in the civil court not prosecution in the criminal court. Moreover, the police file is lacking to show a case against the Defendant since there is no ROI in the police file thus contravening Section 42(2)(a) of the Constitution. Therefore, evidence is insufficient to make a prima facie case against the Defendant for the allegation of False Pretense under Section 404(1)(a) of the Criminal Code Act. Thus the allegation is dismissed.
    

ORDERS

19. My Orders:

1. Evidence is insufficient to commit Defendant.
   
2. Information of False Pretence under Section 404(1)(a) of the Criminal Code Act is dismissed.
   

c) Defendant’s bail be refunded.

Public Solicitor For the defendant
Police Prosecutor For the State