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State v Small [2014] FJMC 168; Criminal Case 1698.2012 (22 December 2014)

IN THE MAGISTRATE’S COURT
SUVA
CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS
Criminal Case No. 1698 of 2012

State

v

Nina Small

For State: PC Pauliasi
Accused : Present - Represented by Ms. Raisua (Legal Aid)

Judgment

Introduction

The Accused is charged with obtaining money by false pretences, contrary to Section 309 (a) of the Penal Code as follows:

Statement of offence (a)

Obtaining Money by False Pretences:- Contrary to Section 309(a) of the Penal Code, Cap 17.

Particulars of offence (b)

Nina Small, on the 24th day of April 2009 at Suva in the Central Division, by Deception obtained $1800.00 cash from one Marica Kubunavanua promising her that she was in a position to provide her, hospitality training which she failed to do so.

The Law – Obtaining Money by False Pretence
The offence of false pretence is complete upon proof that the pretence was made, that the money was obtained, with intent to defraud and that the pretence was false to the knowledge of the accused (R v. Dutt 8 Cr App R 51). The offence is codified in section 309 of the Penal Code. Section 309 mirrors section 32 of the English Larceny Act 1916 and therefore the English authorities are relevant.

Section 309 reads:

"Any person who by any false pretence –

(a) with intent to defraud, obtains from any other person any chattel, money , or valuable security, or causes or procures any money to be paid, or any chattel or valuable security to be delivered to himself or to any other person for the use or benefit or on account of himself or any other person; or

...., is guilty of a misdemeanor, and is liable to imprisonment for five years."

Section 308 of the Penal Code defines false pretence:

"Any representation made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false, or does not believe to be true, is a false pretence."

The Elements
To establish this charge, the State must prove three elements.

1. First, that the accused obtained the possession, ownership or benefit of any chattel, money or valuable security (or got any chattel, money or valuable security delivered to a third party).
   

2. Second, that the accused obtained that possession, ownership or benefit by means of a "false pretence". That is, that there is a direct link between the use of a false pretence and the obtaining of the possession, ownership or benefit. There are three stages to analyzing whether there has been a "false pretence". The State needs to prove:

(i) That there was a "representation", that is, a statement about a matter of present, or past fact, or a statement about a future event, or a statement about an existing intention, opinion, belief, knowledge or some other state of mind;

(ii) That the representation was "false". It will be a false representation if the person making it knew it was false. In short, that the statement was a deliberate lie;

(iii) That the false representation was made with the intention of inducing the person to whom it was made to act on it.

3. Third that the false pretence was made "with intent to defraud". To defraud someone is to deprive that person of something by dishonestly causing that person to believe something that is not true. A person does something dishonestly if he or she does it deliberately and knowing that it is in breach of his or her legal obligations. Even if this is established, if it is claimed that D nevertheless believed that he was "justified" in departing from such a legal obligation, or was "entitled" to so act, it must be shown that D did not honestly believe this.

In summary, the State must prove that the accused without justification or entitlement told a deliberate lie, intending that the complainant would believe it and thereby hand over or deliver something which he or she would not have done if the truth had been known.

The Witnesses Evidence
The Prosecution called 2 witnesses. The Charge Sheet and the Caution Interview were tendered by consent. The accused gave sworn evidence.

Analysis
From the evidence given in this case this Court finds that there is no dispute about identification, the dates of the allegation or even if the money was paid to the accused. The crucial question for the Court is whether the accused obtained monies from the complainant by falsely pretending that she, the said Nina Small was in a position to provide the complainant, hospitality training and that she failed to so.

The complainant informed the Court that she paid the full sum which is $1800 to the accused from her husband's FNPF account. After the money was paid she was asked by the accused to accompany the accused to another vocational training school and hot the accused's training school. She attended training for 3 months. The complainant was told that she would attend the other training school until the accused resumed her school. This did not happen. She then approached the accused to refund the money. According to the Complainant the accused told the complainant "if lord reveals in her she will return the money otherwise she will not" The accused did not refund the money to the complainant. She then reported to police.

The complainant's husband informed the Court that money was paid from his FNPF account to the Accused person.

The accused informed the Court that she has approval from the Ministry of Education to run the business in 2004 and that she was given licence to teach in 2010. The accused further informed the Court that she invited the complainant to the other school and that the complainant was happy there. Later she invited the complainant to her classes but the complainant did not appear. She also informed the Court that the money she received was paid to the hotel. No fee was required for the other vocational training the complainant attended. She also told the court that she could not refund the money because of the case. In cross-examination the accused agreed that she did not provide the course to the complainant. She also agreed that she was registered in 2010 and that she was running courses in 2009.

From the evidence before it this Court finds that the accused made false representations to the complainant, the complainant paid for the courses to be provided by the accused. No such training was provided by the accused based on the representations made by her to the accused from her hospitality training institute. This Court further notes that while the accused was given certificate of recognition in 2004 which meant that the school program, building and facilities were in line with the Ministry's regulations. The same letter required that all teaching appointments be approved by the Ministry. This Court notes from the licence to teach tendered in Court was issued in September 2010 which is after the representations were made to the complainant. This Court finds from the evidence before it that the accused did not have the licence to teach when she made representations to the complainant with regards to her courses and therefore she deceived the complainant.

From the evidence tendered in Court this Court finds that the prosecution has proven the elements of the offence beyond reasonable doubt. This Court finds the accused guilty as charged. Court will now hear accused's mitigation.

Chaitanya Lakshman
Resident Magistrate

22nd December 2014