The State v Richard Budu
| Jurisdiction | Papua New Guinea |
| Judge | Salika DCJ |
| Judgment Date | 14 September 2018 |
| Citation | (2018) N7454 |
| Court | National Court |
| Year | 2018 |
| Judgement Number | N7454 |
Full : CR 144 of 2018; The State v Richard Budu (2018) N7454
National Court: Salika DCJ
Judgment Delivered: 14 September 2018
N7454
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 144 of 2018
STATE
V
RICHARD BUDU
2018: 3, 7 & 14 September
Cases Cited:
Papua New Guinea Cases
Albert Alexander Age v The State [1979] PNGLR 589
Paulus Pawa v The State [1981] PNGLR 498.
Prosecutor’s Request No 4 of 1974 [1975] PNGLR 365
The State v Stanley Tua CR (FC) 254 of 2017, 20 December 2017
Overseas Cases:
Director of Public Prosecutions v Ray [1974] AC 370
Counsel:
Wilma Malo, for the State
Gaure Odu, for the Accused
DECISION ON VERDICT
1. SALIKA DCJ: BACKGROUND: The accused is charged with one count of obtaining a Toyota Land Cruiser 10 Seater, Registration No BEW 840 by falsely pretending to Tony Nekin that he will pay monies owed for the hire of his vehicle, at a rate of K600.00 per day, which would be paid on a later date, with intent to defraud, contrary to Section 404(1)(a) of the Criminal Code Act, 1974.
Evidence
2. The State called one witness, the complainant, Tony Nekin, who gave evidence that on 10 April the accused, through his associate, Heagi Wari, hired a vehicle, Nissan Navara, Registration No. BEH 232, from Mr. Nekin’s hire car company, Whitestone Hire Cars Limited, pursuant to a verbal agreement at a rate of K600.00 per day, to be paid every few days. Initial payments of K1200, K1200 and K1800 were made at intervals of 2, 2 and 3 days respectively (a total of 7 days’ hire or K4200). No further payments were made and on 23 April Mr. Nekin contacted Heagi Wari who told him he was hiring the vehicle on behalf of the accused. Mr. Nekin called the accused who asked to meet at Jack Pidik Park. At the meeting the accused told him that he was hiring the vehicle for the purposes of his National Election campaign in Rigo District. Asked what he would do about payment, the accused asked for one week, to which Mr. Nekin agreed.
3. At some stage thereafter Mr. Nekin became aware that the accused wanted a replacement vehicle as the first vehicle had a problem with the clutch. Mr. Nekin, who was out of the province at the time, called the accused who asked if he could swap the vehicle for another at the same rate. Mr. Nekin agreed and a second vehicle, Toyota Land Cruiser, 10 Seater, Registration No. BEW 840, was provided.
4. Mr. Nekin called the accused numerous times for several weeks thereafter but the accused failed to answer his calls and failed to make any further payments. Mr. Nekin initially assumed the accused was busy with his election campaign.
5. Eventually, however, Mr. Nekin reported the matter to Gordons Police Station on 21 July 2017. Later the same day he received a call from the accused who asked to meet at the Ela Beach Hotel. Mr. Nekin attended with two police officers from Gordons Police Station. At that meeting the accused told him that he was the Director of Trans Wonderland, which would transfer him the funds but that he was having problems with opening a new bank account and signatures. He asked for a further week, to which Mr. Nekin agreed.
6. On 28 July 2017 Mr. Nekin called the accused who asked to meet at the Holiday Inn. Mr. Nekin attended in the company of the same two police officers from Gordons Police Station. Before anything could be said the accused made the same excuse and apology. Mr. Nekin asked the policemen to take the accused into custody and he recovered his vehicle, Toyota Land Cruiser, 10 Seater, Registration No. BEW 840, which was damaged.
7. Mr. Nekin says that the total amount outstanding for both vehicles is K50,400 at a rate of K600 per day for a period of 84 days and that it remains outstanding to this day.
8. The State tendered by consent the record of interview in which the accused admitted to hiring both vehicles from Mr. Nekin pursuant to an oral agreement at a rate of K600 per day for the purposes of his National Election campaign. The accused also admitted that the total amount owed by him for the two vehicles was K52,000, in addition to repair costs, and that he would settle both amounts within 21 days.
9. In his defence the accused gave evidence that he hired the first vehicle through his trusted friend and protocol officer, Heagi Wari, at a rate of K600 per day on the basis that he would pay every week, which he claims he did. He also claims that he received an invoice from the complainant for the sum of K14,000 relating to the use of the first vehicle, the Nissan Navara, and that he settled that invoice through Heagi Wari but that Mr. Nekin did not provide full receipts. He says that Heagi Wari arranged the replacement vehicle and that he never discussed the hire of the Toyota with Mr. Nekin, nor its rate. He does not understand what the sum of K52,000 relates to, namely whether it is for the hire of the Toyota or for repairs, and that he was waiting for an invoice.
10. Whilst he agreed that he met Mr. Nekin three times, he says that they did not discuss the amount outstanding for the Toyota. He says at the Ela Beach Hotel he told Mr. Nekin that he would process the payment but that the K14,000 for the first vehicle had already been paid by then. He says there was no discussion at the Holiday Inn because he was arrested but agreed that the vehicle was rightfully repossessed because he had not paid for it.
11. Under cross-examination the accused agreed that Mr. Nekin allowed him to use the second vehicle. Whilst he maintained that Mr. Nekin never discussed the K52,000 outstanding with him, he agreed that he was provided with the vehicle on the basis that he would pay K600 per day. He further agreed that he did not make any payments for the second vehicle and that he owed that money but said that he was waiting for the invoice and later, that the matter was with the police.
Elements of the Offence
12. Section 404(1)(a) of the Criminal Code Act 1974 provides that:
(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, …
is guilty of a crime.
13. The elements of the alleged offence are that:
a. The accused
b. At a time and place
c. By false pretence
d. With intend to defraud
e. Obtained
f. From another person
g. Any chattel
14. The State has the burden of proving each and every element of the charge beyond reasonable doubt.
Issues
15. It is not disputed that between 10 April and 28 July 2017 the accused obtained Toyota Land Cruiser, 10 Seater, Registration No. BEW 840 from the complainant and registered owner, Mr. Nekin and this has been proven beyond reasonable doubt by the State.
16. What is at issue is whether that obtaining was caused by a false pretence and with intent to defraud.
17. A false pretence is a representation made by words or otherwise of a matter of fact, past or present that is false in fact and that the person making it knows to be false or does not believe it to be true: Section 403(1) Criminal Code Act, 1974. The false representation must be to material existing facts and not a promise to do something in the future or a representation by the representor as to the existence of an intention to do something in the future: Albert Alexander Age v The State [1979] PNGLR 589 at 592.
18. The State must also prove an intention to defraud as a separate element. Whilst an obtaining by false pretence will usually provide evidence upon which an intention to defraud may be inferred, it will always be a question of fact to be determined. See Prosecutor’s Request No 4 of 1974 [1975] PNGLR 365.
Analysis
19. The State’s witness Mr. Nekin impressed me as a witness of truth. I accept that he did not issue invoices for either the first or second vehicle on the basis that payments were due every few days. I accept that outstanding monies for the first vehicle were discussed at the meeting at Jack Pidik Park and that the accused asked for one week to pay. I also accept that at some stage thereafter the accused asked to swap the first vehicle for another at the same rate. The accused then failed to answer his calls for several weeks before contacting the complainant on 21 July. I also accept that outstanding monies for both vehicles were discussed at the Ela Beach Hotel...
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