The State v Joseph Wai (2020) N8182

• Jurisdiction: Papua New Guinea
• Judge: Berrigan, J
• Judgment Date: 07 February 2020
• Court: National Court
• Citation: (2020) N8182
• Docket Number: CR (FC) 76 of 2016
• Year: 2020
• Judgement Number: N8182

Full Title: CR (FC) 76 of 2016; The State v Joseph Wai (2020) N8182

National Court: Berrigan, J

Judgment Delivered: 7 February 2020

N8182

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 76 OF 2016

THE STATE

V

JOSEPH WAI

Waigani: Berrigan, J

2019: 7th, 9th August, 1st October

2020: 7th February

CRIMINAL LAW – PRACTICE AND PROCEDURE –Indictment not defective for failing to state provision number - S. 407(1)(b) of the Criminal Code –Conspiracy to defraud – State not precluded from proceeding against one accused conspirator - Elements of the offence – Inchoate offence– S.383A of the Criminal Code – Misappropriation - Elements of the offence – Meaning of “applied to own use”.

CRIMINAL LAW – EVIDENCE - Co-conspirators Rule

The accused was charged with one count of conspiracy to defraud and one count of misappropriation, contrary to s. 407(1)(b) and s. 383A(1)(a)(2)(d) of the Criminal Code, respectively. At trial the evidence showed that together the accused and two of his alleged co-conspirators, Henry Mathias and Ernie Choi, told the complainant that they were experienced commodity traders and that they would purchase her goldbar, weighing about 781 grams, for K105,340.50 and take it to Australia for sale. The accused held himself out as the Chief Executive Officer (CEO) of ANZ when he was in fact the CEO’s driver. Meetings with the complainant were conducted in the back of a vehicle in public car parks. On each occasion the accused arrived separately in an executive vehicle. Ernie Choi was introduced as a broker. Henry Mathias was introduced as a consultant to “Yakandi Global Marketing Pty Limited”, an agent for the ABC Refinery in Australia. The written purchase agreement for the gold, however, was with neither Yakandi Global Marketing Pty Limited nor ABC Refinery but with the “Verepo Commodity Agency”, which was brought into the arrangement not by either the “broker” or the “agent” but by the accused and of which the accused’s first wife, Kila Verepo, was the Managing Director. It was the accused who produced the purchase agreement and he who signed as the Managing Director of Verepo Commodity Agency, when he was not. Ernie Choi and Henry Mathias also signed the agreement as representatives of the Verepo Commodity Agency. Upon the complainant’s insistence the accused arranged for Kila Verepo to sign the agreement. On the basis of the agreement the complainant handed over her gold to the accused. The accused gave the gold to Henry Mathias. On Sunday, 8 November, Henry Mathias called the complainant and told her that something had gone wrong with the sale of the gold in Australia. The following day he gave the complainant a copy of an email purportedly from the ABC Refinery, referring to an advance of “$28k” for a gold bar in the weight of 781.64 gms. Three days later the complainant met with Henry Mathias, the accused and Kila Verepo. The accused told the complainant that they had only received 28,000 Kina from the sale in Australia and offered to settle the deal for 20,000 Kina. (On the exchange rate at the time, an advance of “$28k” or AUD28,000 would have been equivalent to about PGK58,800.)The complainant refused to accept the proposal. The accused then told her they would pay her when they sold more gold they were expecting but thereafter refused to take her calls. Other than K5000 the accused gave her to support her stay in Port Moresby after she reported the matter to police,the complainant never received any money for her gold.

Held:

As to Count 1:

1) The indictment was not defective for failing to identify the section number of the Criminal Code under which the alleged charge was brought. Neither s.528 of the Criminal Code nor Order 3 Rule 2 of the Criminal Practice Rules contain any such requirement. The charge was one brought pursuant to a written law for the purposes of s. 37(2) of the Constitution.Any objection to quash the indictment should have been made pursuant to s. 558 of the Criminal Code prior to arraignment.

2) The State is not precluded from proceeding on a charge of conspiracy against a single accused: The State v Tanedo[1975] PNGLR 395; R v Shannon [1974] 2 All ER 1009; R v Darby (1982) 148 CLR 668 considered. It is a matter for the Public Prosecutor and his office in controlling the prosecution function of the State to determine whether, and if so on what charges, proceedings are brought against any individual in the National Court: The State v Ngasele (2003) SC731. Ultimately, the issue for determination is whether the State has established its case of conspiracy against the accused beyond reasonable doubt.

3) To establish the offence of conspiracy to defraud contrary to s. 407(1)(b) of the Criminal Code the State must prove the following elements beyond reasonable doubt:

(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).

4) 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.

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

5) Conspiracy is an inchoate offence which is complete upon the entry into an unlawful agreement, express or implied, which need never be implemented: Roland Tom (supra); The State v Iori Veraga (2005) N2849; R v Aspinall (1876) 2 Qu D 48. It is complete without the doing of any act save the act of agreement: R v Rogerson (1992) 174 CLR 268 at 279.

6) The prosecution must, however, prove not only an agreement between the alleged conspirators to carry out an unlawful purpose (or a lawful purpose by unlawful means) but also an intention in the mind of any alleged conspirator to carry out the purpose: Tanedo (supra); R v Thomson (1965) 50 Cr App R 1.

7) There is no need to establish the existence of meetings, nor a formal,nor even an express agreement: see Roland Tom (supra).

8) Evidence of acts following the agreement (overt acts) may be, and often is, the only available proof that the agreement was made; but it is the agreement and not the evidence that constitutes the offence: see Veraga (supra);R v Gudgeon (1995) 133 ALR 379.

9) Conspiracy is a continuing crime. It extends over the period of the agreement until it is achieved or terminated: Roland Tom; Veraga (supra).

10) It remains a single conspiracy no matter who joins or leaves it, as long as there are at least two persons at any one time acting in combination to achieve the same criminal objective: Veraga; R v Masters (1992) 26 NSWLR 450.

11) The conspirators may join in the conspiracy at various times; any one of them may not know all the other parties, but only that there are other parties; and any one may not know the full extent of the scheme to which he attaches himself; but each alleged conspirator must know that there is in existence a scheme which goes beyond the illegal acts which he agrees to do and must attach himself to that scheme: Veraga (supra); R v Griffiths [1966] 1 QB589.

12) In a conspiracy to defraud, the agreement must be one to bring about a result by dishonest means but those means need not necessarily involve deception. Dishonesty of any kind is enough: Scott v Metropolitan Police Commissioner [1975] AC819.

13) Ordinarily, acts done or words uttered in the absence of an accused will not be admissible against them. This is subject to the “co-conspirators rule”, which applies in any case where two or more persons are bound together in the pursuit of an unlawful object. Evidence of the acts and declarations of alleged co-conspirators outside the presence of an accused may be led against him in order to establish the existence, nature and extent of the conspiracy. Once there is evidence of the accused’s “reasonable participation” in the alleged conspiracy, the acts and declarations of alleged co-conspirators made in furtherance of the common design may also be used to prove the accused’s participation in the agreement alleged: Ahern v R [1988] 165 CLR 87, applying Tripodi v The Queen (1961) 104 CLR 1, adopted and applied. See also Tanedo (supra).

14) The evidence established that the entire transaction wasa sham. The accused and his co-conspirators, Ernie Choi, Henry Mathias and Kila Verepo, conspired to defraud the complainant, that is they...