Roland Tom and Kalen Kopen v The State (2019) SC1833

• Jurisdiction: Papua New Guinea
• Judge: Mogish, Hartshorn and Berrigan, JJ
• Judgment Date: 22 August 2019
• Citation: (2019) SC1833
• Docket Number: SCRA No. 62 and 69 of 2017
• Court: Supreme Court
• Year: 2019
• Judgement Number: SC1833

Full Title: SCRA No. 62 and 69 of 2017; Roland Tom and Kalen Kopen v The State (2019) SC1833

Supreme Court: Mogish, Hartshorn and Berrigan, JJ

Judgment Delivered: 22 August 2019

SC1833

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA No. 62 and 69 of 2017

ROLAND TOM and KALEN KOPEN

V

THE STATE

Waigani: Mogish, Hartshorn and Berrigan, JJ

2019: 28 February and 22 August

CRIMINAL LAW – Conspiracy to defraud – Agreement to deprive or put at risk that which another is or would be entitled – Agreement may be express or implied - Admission of statements into evidence by consent.

On a trial for conspiracy to defraud, the learned trial judge convicted in circumstances where there was no direct evidence of an agreement between the two appellants, and where the complainant did not legally own the subject property. Furthermore, he did so in reliance of several statements admitted by consent.

Held:

(1) To establish the offence of conspiracy to defraud contrary to Section 407(1)(b) of the Criminal Code (Ch. 262) (the Criminal Code) the State must prove that:

(a) the accused person;

(b) conspired with one or other persons;

(c) to defraud the public or any person (whether or not a particular person).

(2) To defraud means:

(a) to deprive a person of property which is his or to which he might be entitled, or to put the property of that other person at risk, or to imperil some lawful right, interest, opportunity or advantage of another person;

(b) by using deceit, or fraudulent or dishonest means;

(c) knowing that he has no right to deprive that person of that property or to prejudice those rights or interests:

Scott v Metropolitan Police Commissioner [1975] AC 819; Peters v The Queen (1998) 192 CLR 493 adopted and applied; Potape v The State (2015) SC1613 clarified.

(3) It was not necessary in the present case to establish that the complainant owned the property the subject of the conspiracy as an essential element of the offence. Proof that the complainant had a right or interest in the property which was capable of being prejudiced either by actual loss or by being put at risk was sufficient: Scott, Peters (supra) applied.

(4) There was sufficient evidence to establish that the complainant had an equitable interest in the property in this case: Iravela v Samson (2018) N7212.

(5) A conspiracy is an unlawful agreement between two or more people. There is no need to establish direct communication between co-conspirators, nor even an express agreement, provided there is a design which is common to all of them to bring about the unlawful object of the agreement: The State v Iori Veraga (2005) N2849.

(6) It was open to the trial judge to find on the evidence that there was a conspiracy, or an agreement between the appellants, to defraud the complainant.

(7) A trial judge has an overall duty to ensure that only legally admissible evidence goes in to the trial record: Epeli Davinga v The State [1995] PNGLR 263. In a criminal proceeding he may also intervene by asking questions and calling or recalling witnesses if he considers in his discretion that the course is necessary to the ascertainment of truth or in the interests of justice: Birch v The State [1979] PNGLR 75. The adversarial nature of a criminal trial is well established, however, and a trial judge must be careful not to interfere in the conduct of a trial or unduly participate in it himself. The question will be one for determination in each case: Birch (supra). Crampton v R (2000) 206 CLR 161 considered.

(8) Subject to well-defined exceptions, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue: The Queen v Baden-Clay (2016) 258 CLR 308 adopted.

(9) It was permissible for the learned trial judge to rely on statements admitted into evidence by consent. There was no material irregularity in the conduct of the trial, nor any error of fact or law as a result: Fred Bukoya v The State (2007) SC887 distinguished.

(10) The appellants have failed to demonstrate that the verdict is unsafe or unsatisfactory, that the conviction entailed a wrong decision on a question of law, or that there was a material irregularity in the trial.

(11) Convictions and sentences affirmed.

Cases Cited:

Papua New Guinea Cases

John Beng v The State [1977] PNGLR 115

Birch v The State [1979] PNGLR 75

Epeli Davinga v The State [1995] PNGLR 263

Jimmy Ono v The State (2002) SC698

The State v Iori Veraga (2005) N2849

Fred Bukoya v The State (2007) SC887

Lati v The State (2015) SC1413

Potape v The State (2015) SC1613

Wei v The State (2018) SC1720

Iravela v Samson (2018) N7212

Overseas Cases

Johnson v Miller (1937) 59 CLR 467

Scott v Metropolitan Police Commissioner [1975] AC 819

Wai Yu-Tsang v The Queen [1992] 1 AC 269

Peters v The Queen (1998) 192 CLR 493

Crampton v R (2000) 206 CLR 161

The Queen v Baden-Clay (2016) 258 CLR 308

References Cited

Sections 404(1)(a), 407(1)(b) and 463(2) of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Ms. H. Roalakona and Ms. L. Jack, for the State

Mr E. Sasingian, for the Appellants

DECISION ON APPEAL

22 August, 2019

1. BY THE COURT: The appellants appeal against a decision of the National Court in which they were each convicted following a joint trial of one count of conspiracy to defraud, one count of uttering and one count of obtaining by false pretence contrary to Sections 407(1)(b), 463(2) and 404(1)(a) of the Criminal Code (Ch. 262) (the Criminal Code), respectively.

2. The appellants were each sentenced to an effective sentence of 4 years of imprisonment, which is not challenged.

3. It was alleged on Count 1 that between the 1st of September 2009 and the 31st of August 2014 the appellants conspired with each other to defraud Philip Kandes of his property, Section 255, Allotment 01, Gerehu Stage One, National Capital District (the Property) by presenting a false contract of sale purporting to have title and ownership of the Property.

4. Count 2 alleged that during the same period the appellants knowingly and fraudulently uttered a false document namely a contract of sale purporting to transfer title and ownership of the said Property.

5. Finally, Count 3 alleged that the appellants obtained the title from the National Housing Commission (NHC) by false pretence, with intent to defraud.

6. At trial the learned trial judge found that the complainant, Philip Kandes, was a longstanding employee of the Prime Minister’s Department when he entered into a tenancy agreement with the NHC in 1986 to rent the Property. Via letter dated 13 February 1987 the NHC offered to sell the Property to him, which he accepted and paid for through fortnightly instalments as part of the “Government Sale of Houses Scheme” for public servants. On completion in April 2011, the complainant signed a contract of sale with the NHC, and all documentation was sent to the Lands Department for formalisation of the title in his name. It was at this stage that he and the NHC became aware that a title had purportedly been issued in the name of the appellant, Roland Tom, for the same property.

7. Roland Tom had been living at the Property since 2005 and paying rent to the complainant pursuant to an arrangement with the Property’s caretaker, Dr Amean. Dr Amean had been appointed caretaker by the complainant following his transfer to Wabag for work purposes in 1993.

8. The trial judge further found that Roland Tom conspired with Kalen Kopen, an employee of the Lands Department, to defraud the complainant of the Property, that they uttered a false contract of sale, and falsely pretended to the NHC that the contract was genuine for this purpose.

9. There was no dispute that Roland Tom was not a public servant. The NHC had no record of any dealings with Tom, nor any purchase of the Property by him. According to the NHC the purported contract for sale was not genuine. Similarly, the Registrar of Lands had no record of transferring title to the appellant as purported and had since, upon becoming aware of the irregularities, issued a notice requiring Roland Tom to surrender his title.

Grounds of Appeal

10. The appellants’ notices of appeal, which are identical in material respects, raise 13 grounds, all of which have been considered in rendering this decision. In summary, they may be categorised as follows:

(a) Grounds 1 to 8, which assert that the State failed to establish for the purposes of the alleged conspiracy that the complainant ever legally owned the Property;

(b) Ground 11, which challenges the finding that there was evidence of a conspiracy between the appellants to defraud the complainant; and

(c) Grounds 9, 10, 12 and 13, which challenge, on all counts, the reliance of the learned trial judge on witness statements tendered by consent.

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