DC6073

Papua New Guinea

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

COM NO 1083 OF 2020
CB NO 3593 OF 2020

BETWEEN:

THE POLICE
[Informant]

AND:

JANET DICKSON
[Defendant]

Waigani: Paul Puri Nii

25th August 2021

COMMITTAL PROCEEDINGS: Charges-Forgery-Section 462(3)(d) & (e)- Uttering –Section 463 (1)(a) –Criminal Code Act. Witness statements- Police file- founded on prima facie evidence - elements of the offending charge –Evidence is sufficient- Defendant committed.

PRACTISE AND PROCEDURE: Consideration under Section 5 of the District Court Act. Assessment of evidence to ensure its sufficiency- Limited Jurisdiction.
 
PNG Cases cited:

Nil

Overseas cases cited: 

Katz v. United States, 389 U.S. 347 (1967)

REFERENCE

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

Counsel
Police Prosecutor: 	Peter Samghy				For the Informant
In person:		Janet Dickson				For the Defendant

DECISION ON THE SUFFICIENCY OF EVIDENCE

25th August 2021

INTRODUCTION

NII, P.Paul Magistrate. This is a conclusion under Section 95 of the District Court Act. The Decision is in return to the Police file and a submission objecting to the sufficiency of Police evidence filed dated 34th February 2021.

CHARGES
	
1.	Defendant is arrested and charged with two (2) offences and these are; Forgery under Section 462(3) (d)(e) and Uttering Under Section 463(1)(a) of the Criminal Code Act. 

A)	462. Forgery in general: punishment in special cases.

(3) If the thing forged purports to be, or is intended by the offender to be understood to be or to be used as—

(d) a document acknowledging or being evidence of the indebtedness of the Government or of the Government of any of Her Majesty's Dominions, or of any foreign Prince or State, to any person; or

(e) a document that by the law of Papua New Guinea or of any other country, is evidence of the title to any land or estate in land in Papua New Guinea or that other country, or an entry in any register or book that is such evidence.

B)	463. Uttering false documents and counterfeit seals.

(1) In this section, "fraudulently" means with an intention—
(a) that the thing in question shall be used or acted on as genuine, whether in Papua New Guinea or elsewhere, to the prejudice of some person, whether a particular person or not

BRIEF FACTS

2.	The Complainant was a former servant of Steamships shipping corporation but got retrenched in 1993. On 31st May 1993, Complainant bought a property at Section 121, Allotment 05, Matirogo Street at Sabama in NCD. He bought the property from Mr Utu with K7,440 and subsequently title was trnasfered to the Complainant’s son by the name of Stanley Leo.

3.	Police allege on14th March 2012; the subject property was sold to the Defendant by a Nason Menjep. Mr Menjep purportedly bought the property from Paul Yangare. Mr Yangare is a relative of the complainant who was taken care of by the Complainant back in 1997 when he had no way to reside until in 2008 he decided to sell the property when the Complainant was away in his village attending to a funeral.

4.	It was allege between 29th and 31st May 2017, the suspect forged the document namely titles office work sheet to get the land title under Section 121, Allotment 05, Matirogo Street at Sabama in NCD, property of Stanley Leo. Police allage Defendant knowingly had fraudulently utter false writing by filling her name on the title office work sheet with intent to steal without the owner’s consent.

5.	On 5th October 2020, Defendant was arrested by Police for the offences of forgery and Uttering under the Criminal Code Act.

ISSUE

6.	I will look at the question of whether the evidence in the police file is sufficient to commit the Defendant.

THE LAW 

7.	My jurisdiction to rule on this is under Section 5 of the District Court Act 

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.

EVIDENCE

		Police evidence

8.	Police evidence is delivered by witness statements in the police file. There are overall five (5) State witness giving evidence against the Defendant, their designations are:

a.	Leo Make- he is the Complainant and his evidence contains what he saw.
	
b.	Catherine Leo-She is the Complainant’s wife and her evidence contains what she saw 

c.	Stanley Leo- he is the Complainant’s son and his statement is about his ownership of the property where his father the complainant transferred the title to him and how he heard and saw the allegation. 

d.	Peter Paulius- He is a police corroborator who was with the police arresting officer and his evidence is about how the Defendant was interviewed by Police.

e.	Robert Mark-he is the police arresting officer and his statement is about how he arrested the Defendant and interviewed her and what the Defendant declared in her ROI.

ELEMENTS OF THE CHARGES.

9.	Elements of Forgery

a.	A document 
b.	That by the law of Papua New Guinea or of any other country,
c.	is evidence of the title to any land or estate in land in Papua New Guinea or that other country 
d.	or an entry in any register or book that is such evidence

10.	Elements of Uttering

a.	With an intention
b.	that the thing in question shall be used or acted on as genuine, 
c.	whether in Papua New Guinea or elsewhere, 
d.	to the prejudice of some person, 
e.	whether a particular person or not

Defense case

11.	Defense says the office sheet or document that enables change and transfer of land titles is a confidential document and hence the manner in which police obtained the said document without a search warrant is probed and this document should not be accepted by the court as evidence.

12.	Defense says police evidence was obtained illegally and it does not support and satisfy all the important elements of the offences and therefore argue for the two(2) charges to be dismissed.  

DELIBERATION OF EVIDENCE

13.	I have considered the argument by Defendant that the title work sheet to get the land title was illegally obtained without a search warrant. What is a purpose of obtaining a search warrant? It is issued by the capable power permitting a police officer to search a detailed place for evidence even without the occupant’s approval. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court of the USA held that searches steered outside the judicial progression, without prior authorization are barred. The court has the power to issue search warrant and that warrant shall be used to obtain evidences that are kept in places where police obligation is by nature of the location imposes a predicament or hindrance to obtain them. Nevertheless, search warrant is not a requirement if evidence can be easily obtained or if the authority agrees to supply evidence. In here, the title work sheet copy was provided and therefore the issue of Search Warrant is not quantifiable.

14.	During interview with police, Defendant answered at question 20 as documented in the Recorded of Interview (ROI) that she bought the land from Mason Menjep and Mason Manjep bought the land from Paul Yangare. Defendant said when she enquired about the title, both of them told her that they had no title copy under neither of their names so she said she followed up herself with the Department of lands and National Housing Corporation and got the tile reassigned under her name. Defendant reputed that she had no knowledge about the Complainant and his father.

15.	There is a letter written by the National Housing Corporation dated 1st September 2020 to police in respond to a search warrant to obtain copies of documents on the subject property but the letter did not mention the Defendant’s name but some other people.

16.	The land tile or state lease copy endures the name Stanley Leo, the complainant’s son. The title was obtained under his name on 17th April 2013. There is an item in the police file that says through meeting number 1912 the subject property’s title was leased to Stanely Leo. If there was name change or transfer of title from Stanley Leo to the Defendant’s name then there should be official documents from the land’s department sanctioning same. In here there is no evidence before me that says Stanley Leo transferred the Land to the Defendant. Therefore, I have evidence to believe Stanley Leo as the legal state lease holder of the subject land and not the Defendant.
 
RULING

17.	Defendant admitted in her record of interview that both Paul Yangare and Mason Manjep had no tile copy under their names so she had to do up one for herself. Obviously when Defendant approached the lands Department to enquiry about the property she was aware the land was under Stanley Leo’s name. When the land was under Stanley Leo’s name, it is my opinion that she knew the land belongs to Stanley Leo and not for Paul Yanagare and Mason Manjep. A person with perfect legitimate judgments and apparition for unprejudiced and fair-minded attitude would have sought the opinion of Stanley Leo or invited him the scene. In here I have evidence to satisfy myself the Defendant went to the lands department and purportedly altered the tile name on the title work sheet to her name without the consent and prior knowledge of the complainant.

18.	The court is satisfied there is sufficient evidences for the allegations of Forgery under Section 462(3)(d)(e) and Uttering under Section 463(1)(a) of the Criminal Code Act. These evidences are meeting all the essential elements of the respective charges and thus there are clear cases of Uttering and Forgery against the Defendant.

CONCLUSION

19.	The evidences in the police hand up brief are satisfying all the main elements of the offence.  I form the opinion that there is sufficient evidence where the Defendant between 29th – 31st May 2017, forge the documents namely Title work sheet to transfer the land title that was under the victim’s name and therefore there is sufficient evidence to satisfy she is liable for Forgery. Moreover there is also evidence to satisfy me the Defendant with an intention knowing very well Paul Yangare and Mason Manjep are not genuine title holders but she went direct to the lands Department and changed the tile to her name. Her conduct has conquered and prejudiced the rights of the legitimate title holder which is Stanley Leo and hence this evidence is sufficient to conclude Defendant has a case for Uttering. 

ORDERS

20.	My formal orders:

A)	Evidence is sufficient to commit the Defendant for the charges of Forgery under Section 462(3)(d)(e) and Uttering under Section 463(1)(a) of the Criminal Code Act.

B)	Matter adjourned to 2th September 2021 at 9.30 am for administration of statement under Section 96 of the District Court Act.

C)	Defendant’s Bail extended.

In person						For the defendant
Police Prosecutor					For the State