State v Krufher [2016] PGNC 309; N6510 (18 October 2016)

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CRIMINAL LAW – Trial – False Pretence –Stealing and Conspiracy to defraud – Accused by false pretence conspired and stole a sum of K47, 840.95 from a deceased’s POSF Savings – Sections 404 (1) (a); 372 and 407 Criminal Code.

CRIMINAL LAW – Trial – Deceased’s POSF monies fraudulently obtained and deposited into an ANZ Account and systematically accessed until detected.

CRIMINAL LAW – Trial – Accused Francis Krufher is found guilty of False Pretence, Stealing and Conspiracy to defraud –

CRIMINAL LAW – Guilty Plea – Stealing - Accused Emma Sakumai – Not guilty for False pretence and Conspiracy to defraud – Sections 404 (1) (a); 372 and 407 Criminal Code.

PNG Cases Cited:
Paulus Pawa v The State [1981] PNGLR 498
State v Alpen Popo (1977) PNGLR 18
The State v Paul Loi (2009) N4058
The State v. Theo Yandalin & 2 Ors, (1995), N1329
Titus Wafi v The State, SCRA No. 24 of 2009, unreported (2012)

Overseas Case cited:
R. v Oliva [1965] 3 All ER116; 49 Cr. App. R 298 pp 309-310

Counsel:
Mr. P Tusais, for the State
Mr. J Malambaul, for Accused Emma Sakumai
Mr. D Sakumai, for Accused Francis Krufher

18^th October, 2016

1. GEITA J: The accused were each charged with three counts of False Pretence under section 404 (1) (a), Stealing under section 372 and Conspiracy to Defraud under section 407 Criminal Code. The terms of the indictments are as follows: -

2. Francis Krufher of Maringan village, Wewak District, East Sepik Province, and Emma Sakumai of Oala village, Manus Province stand charged that they between January 2007 and April 2007 at Wewak in Papua New Guinea, conspired with an unknown man to obtain K47,840.95 belonging to Abog Bruane (deceased) by deceit.

3. Francis Krufher of Maringan village, Wewak District, East Sepik Province, and Emma Sakumai of Oala village, Manus Province stand charged that they between January 2007 and April 2007 at Wewak in Papua New Guinea received K47, 840.95 the property of Abog Bruane which had been obtained from the PNG Superannuation Fund by false pretences.

4. Francis Krufher of Maringan village, Wewak District, East Sepik Province, and Emma Sakumai of Oala village, Manus Province stand charged that they between January 2007 and April 2007 at Wewak in Papua New Guinea stole K47, 840.95 belonging to Abog Bruane (deceased).

5. Upon arraignment accused Emma Sakumai pleaded not guilty to the counts of conspiracy to defraud and stealing. She pleaded guilty to the count of receiving stolen property. I entered a provisional guilty plea on her behalf on this count. Accused Francis Krufher however pleaded not guilty to all three counts. Since they both were indicted on the one indictment Emma Sakumai’s case was stood down whilst the Court proceeded to receive evidence for Francis Krufher. (s. 568 Code invoked upon application).

6. State also invoked section 7 of the Criminal Code Act against the two accused and allege that they both were principle offenders who aided and abetted each other in this fraudulent enterprise.

7. The State evidence consisted of four oral testimonies and 7 documentary evidence tendered into Court by consent.

8. Witness Victor Bruane is the adopted son of Abog Bruane. He gave testimony of how his father’s POSF life savings totalling K47,840.95 were lost to his sister Emma Sakumai and her son in law Francis Krufher through fraudulent means in 2000. His father, a retired school teacher died at Modilon General Hospital in 1992. His mother Clara Suai who is Emma’s aunt and all his family members never benefited from their late father’s savings. The witness said his father’s POSF file changed hands through a John Lausi, Gabriel Wai, men who offered to assist them get proceeds from the file. In 2009 he learnt through another contact Mica Anawe that his father’s POSF monies totalling K47, 840.95 was deposited into an ANZ Account No. 126411929 on 27 March 2007.

9. Witness Judith Kumasi, a former Sales Consultant with ANZ Wewak Branch testified of helping the accused Francis Krufher and an old man with him at the time open a new bank access account under the name of Mr. Abog Bruane on 5 February 2007 around 2.30pm. Since she knew the accused as a well-respected citizen in Wewak town the Bank’s 100 points requirement before opening a new account was waived with only the accused’s good standing and he was also a client of the bank. His identification card was however retained as proof. She said upon further verification by another senior officer, a Mr. Beno; approval was given for the account to be opened under Abog Bruane’s name.
(ANZ Account No. 126411929). Two weeks later the accused and the same old man returned to the bank and took delivery of their bank card after signing for it.

10. When the Bank Manager became suspicious of an irregularity with the account the witness notified the accused to come and explain to the bank. The accused fronted up at the bank accompanied by his mother in law, accused Emma Sakumai and held discussions with the Branch Manager Harold Piniau. The witness was then called into the Manager’s office and told that the account she had opened recently belonged to someone who had died a long time ago and not to the persons who had come and opened that account. The witness said the accused’s explanation was that his other name was Abog Bruane. The matter was then reported to Police and the witness questioned. The witness said the bank card was made out to Bruane (exhibit 6). She expressed shock and surprise when called up by the Bank Manager to explain the situation as Emma Sakumai and her daughter were known to her through friends.

11. In cross examination the witness said the accused assisted the old man open an account under the name of Abog and they both collected the bank card after the old man signed for it.

12. In re-examination the witness said the bank card is a debit card with a pin number and anyone can access monies.

13. ANZ Wewak Branch Manager Mr Rai Tai gave testimony after being served with a Court Order to produce certain bank documents considered privileged. More than 9 bank documents ranging from when Abog Bruane’s application to POSF including his benefits transferred into his new ANZ account with all related banking details were touched on by the witness. He said the Bank gets alerted when it detects an uncontrolled trend of spending at regular intervals. I list hereunder for ease of reference:

Exhibit 8 a & b	Copy of specimen signature from old system to the new system
Exhibit 19	POSF Application for benefit payment form
Exhibit 10	Outward Exchange summary sheet. Transfer inside BSP to ANZ – POSF.
Exhibit 11	Account enquiry – Current system and old computer generated version
Exhibit 12	Long enquiry - ANZ
Exhibit 13	Enquiry customer name, type of account (Financial Enquiry)
Exhibit 14	Statement of Account from date account was opened with in/out transactions up to date account was closed – 9 pages
Exhibit 15	Copy of withdrawal from account no.124192 – K14, 000.00
Exhibit 16	Back of above withdrawal slip with notations & customer signature to verify – old computer system and current record system
Exhibit 17	ID Photos of Wewak Flag partnership Account - 13109516
Exhibit 18	Specimen signatures for Wewak Flag partnership Account - 13109516

Exhibit 20	POSF separation Authority Forms
Exhibit 21	POSF Application for Benefit Payment Form
Exhibit 22	Account Transaction Enquiry Bank Statement for Account 12641929

14. Witness Lydia Iko is the Assistant Manager of ANZ Wewak Branch having started work since 2006. She is the oldest staff member. She testified of CID investigations into customer Abog Bruane’s account in 2016. The witness said she authorized a cash withdrawal of K14, 000 by the accused who held himself out to be Abog Bruane and signed for that withdrawal in her presence. (Exhibit 15 – Withdrawal slip) Since the accused was a well-known figure in the community known under the name of Francis Krufher but was making withdrawals under the name of Abog Bruane, the witness became suspicious and questioned why that was so to which he replied that that was his concealed name or ‘hide name’.

15. When suggested to the witness in cross examinations that the accused was accompanied by an old man and a lady at the time the withdraws were made, she said the accused was alone at the time. The accused told her that he needed the money to buy his father’s wheel chair.

Q. 3. Francis Krufher is a well-known person in town? He has an account with ANZ Bank?
A. I can’t answer that as he is only an associate party.
Q. 4. He has assisted other persons to open accounts?
A. Not in my line of duty, we only deal with customers.
Q. 5. An old man came to the Bank and required me to identify him?
A. We don’t have ‘hide names’ to open accounts. Customers must meet banks requirements.
Q. 6. I say to you that Francis Krufher has an account with you and his signature would have been consulted to this account?
A. Yes.
Q. That was never done in this case?
A. Because we were dealing with Bruane Abog.

16. In re-examination the witness said Francis Krufher operated a joint account and was an associate party but would not disclose details due to Banks confidentiality reasons. Upon being served with a Court Order the joint account details were produced in Court: Exhibit 17 a,b,c,d (Account number with specimen signatures of three persons including the accused, specimen signature of Bruane Abog or a person who called himself to be Abog Bruane). No objections were made by Defence to their tender into Court as state evidence.

17. Prior to closing the State’s case Mr Paul Tusais successfully tendered into Court the following documents into evidence. No objections were registered by Mr. Darrol Sakumai. (Exhibit 18, 19, 20 – Joint Account No. 13109516, Specimen signatures on joint account, Specimen signature of person holding himself out to be Abog Bruane, POSF separation Authority Forms, POSF Application for Benefit Payment forms, Account transaction enquiry-Bank Statement 12641929).

18. No evidence was led by the Defence as the accused elected to remain silent, Section 572 (1) Evidence Act.

19. Mr. Darrol Sakumai for the defendant submitted that accused Francis Krufher should be acquitted on all three counts due to insufficiency of evidence. Furthermore he submitted that since accused Emma Sakumai has been acquitted on the first and third counts, Francis Krufher cannot be made a principal offender under section 7 of the Criminal Code.

20. He submitted on behalf of his client that the amount of monies alleged to have been stolen was different to the actual amounts shown in the Bank’s records after the charges were laid against both accused. Mr Sakumai went to great lengths to establish that there was no correlation between accused Krufher’s signature, his hand writing, the accused benefitting from the monies and his identity in the whole scheme.

21. Mr. Sakumai correctly pointed out that his client’s exercise of right to remain silent should not be seen as acquiesce of his guilt and cautioned Court against drawing an negative inference of such failure: (Paulus Pawa v The State [1981] PNGLR 498 relied upon.)

22. Mr. Sakumai took issue with any inference to be drawn by the Court from Bank records bearing the name of Abog Bruane and any nexus with accused Krufher. He argued that such evidence was called by State but introduced later upon application. He argued that it was not the duty of Court to assume the role of the prosecution to patch up its case: The following Supreme Court judgment was relied upon in support of his arguments: (Titus Wafi v The State, SCRA No. 24 of 2009, unreported judgment dated 27 July 2012.). Put differently Mr Sakumai is asserting that since the Court has assumed the role of the prosecution in this case my impartiality is questioned and the trial be set aside.

23. For the State Senior Public Prosecutor Mr Paul Tusais argued that that accused Francis Krufher should be found guilty of all three counts. He submitted that on the charge of conspiracy to defraud the conspicuous signature of the accused and a long list of paper trial connecting him to his active involvement in assisting, conspiring with Emma Sakumai and another person in successfully accessing Abog Bruane’s retirement benefits from POSF totalling K47, 840.95 and depositing it into a bank account which he and the other unknown man have access too. The accused and Emma Sakumai together with another man defrauded Abog Bruane who had died in 1992 of his retirement benefits. Notwithstanding the acquittal of Emma Sakumai on this count Francis Krufher’s criminality once successfully made out must stand, Mr. Tusais submitted.

24. On the charge of receiving stolen property the accused held himself out to be the deceased Abog Bruane and engineered the release of his POSF savings into an ANZ Bank account he opened which he had total control off. The accused knew that the POSF cheque was fraudulently obtained and stolen from its rightful owner Abog Bruane, by false pretence. On the third count of stealing Prosecution assert that once Abog Bruane’s monies from POSF were successfully deposited into a Bank account operated and controlled by Francis Krufher a systematic pattern of withdrawals were employed over a short period of time: EFTPOS transactions and purchases; ATM cash withdrawals amounting to more than K22,858 before ANZ froze the account. The Prosecution submitted that the accused was in receipt of stolen property, knowing full well that it was stealing and that he stole it himself: The case of State v Alpen Popo (1977) PNGLR 18, Frost CJ submitted in support.

25. Mr. Tusais submitted that the State’s case does not rest substantially on circumstantial evidence as ample direct and credible evidence was now before Court for this Court to safely find beyond reasonable doubt that Francis Krufher is guilty of all three (3) charges against him.

26. In response to Defence allegation that the Judge had taken over the role of prosecution in the conduct of his client’s case, Mr. Tusais remains dumfounded as to what specific actions the Court impugned upon which gave offence and cause concern to the accused. Such assertions of wrongful conduct by the Court are best raised upfront and if successfully made out result in disqualification and or by appealing against the outcome of this case. He said raising the accused concern at this end stage of trial i.e.: submission of verdict was disrespectful and borders on contempt of Court.

27. The only issue relied on by Defence was general denial in all three charges. The onus was now on the State to make out its case beyond reasonable doubt.

28. The laws are presented in the order they appear in the Indictment for purposes of consistency. The elements of the offence and my findings will follow in like manner.

S. 407 Conspiracy to Defraud
(1) A person who conspires with another person–
(a) ...; or

(b) to defraud the public, or any person (whether or not a particular person); or
is guilty of a crime.

Findings
29. The finding of facts for the purpose of conviction may be conveniently summarized as follows:-

30. In the absence of any evidence to the contrary, of which there is none this Court is entitled to make findings not only on direct evidence available before it but also by drawing inference on plausible circumstantial evidences. I am satisfied that all factors point conclusively to the only logical inference open to me that: you used your standing in the community as a well-known respected public figure to defraud Abog Bruane. It goes without saying that since you acted in association with Emma Sakumai and an unknown person; it is open to infer that you all benefitted from the proceeds of this overt scheme. For these reason a verdict of guilty is returned on this count.

(a) any act constituting an indictable offence; or
..., knowing it to have been so obtained, is guilty of a crime.

(4) For the purpose of proving the receiving of anything for the purpose of this section, it is sufficient to show that the accused person-

(a) has, alone or jointly with some other person, had the thing in his possession, or

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding seven years.

Findings
32. The finding of facts for the purpose of establishing this element may be conveniently summarized as follows:-

33. By operation of Section 410 (1) (4) of The Criminal Code Act, the required elements of receiving stolen property knowing it to have been so stolen, jointly with other persons is made out. It follows in my view that you must be held accountable for the crime committed. There is ample credible evidence, both oral and documentary that supports courts findings that you engineered the process of receiving such property. Furthermore since you acted in association with Emma Sakumai and an unknown person, it is open to infer that you all benefitted from the proceeds of this crime. For these reasons I return a verdict of guilty on count number two.

(1) Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: Subject to this section, imprisonment for a term not exceeding three years.

35. Findings
The finding of facts for the purpose of establishing the elements of stealing may be conveniently summarized as follows:-

36. In the absence of any evidence to the contrary, of which there is none this Court is entitled to make findings not only on direct evidence available before it but also by drawing inference on plausible circumstantial evidences. I am satisfied that all factors point conclusively to the only logical inference open to me that: you in company of Emma Sakumai stole POSF benefit monies belonging to the deceased Abog Bruane totalling K22,842.26. It goes without saying that since you acted in association with Emma Sakumai and an unknown person; it is open to infer that you all benefitted from the proceeds of this overt scheme. For these reasons a verdict of guilty is returned on this count.

37. Defence submissions that by offering no evidence against Emma Sakumai on the charges of conspiracy and receiving stolen property, the same charges against Francis Krufher cannot be sustained and must fail as there now was no co-accused, hence no conspiracy committed. I have not being assisted with any known case authorities by Mr Sakumai and Mr Tusais on this point. Be that as it may the tenor and spirit of the indictment also names an unknown person in the conspiracy. This therefore rules out any suggestions that Emma Sakumai’s acquittal must also be extended to Francis Krufher. Furthermore there is no contradictory evidence by Defence to sustain this proposition. The State has invoked section 7 of the Criminal Code Act. This section provides that it is possible for those who are not the main perpetrators to be also guilty however there must be some evidence of the wrong committed by that person (s) within the meaning of the provision. Only a single act or omission or a series of them is sufficient in Sections 7 or 8. I find here that there was ample evidence that the accused in company of Emma Sakumai and an unknown person committed those crimes. The accused Francis Krufher must as a matter of law be lawfully convicted on the three counts as stated in the Indictment.

38. Defence attempts to have Francis Krufher acquitted in the absence of any plausible nexus between his signatures, the Bank Card and its usage to draw monies must fail due to lack of credible evidence before the Court. On the contrary his admissions in his record of interview, Q&A # 14 affixing his signature to the withdrawal slip is telling on him. Traces of his conspicuous signature can be found on all documents relating to the request for the release of Abog Bruane’s POSF entitlements, the opening of the ANZ Bank account under the name of Abog Bruane and holding himself out to be Abog Bruane, receiving the ANZ Access Bank Card and eventual drawdowns telling on him. In his flimsy attempts to shift blame on Mr and Mrs Sakumai as custodians of the ANZ Access Card hence responsible for drawdowns, no evidence was produced to this effect and is found wanting. Now applying the principles of logic and common sense I am satisfied that there is abundant direct and circumstantial evidence against the accused. To the naked eye his signature remains unmistakable and need not be subjected to expert opinion for authenticity in my view.

39. At this juncture I feel compelled to make commentary on Defence accusations that this Court has ventured into the arena and taken over the role of prosecution in this trial. This apprehension arose as a result of State applying to have the ANZ Bank Manager called to produce certain documents. Such application was granted by the Court amidst Defence objections hence the apprehension. Mr Sakumai took issue with any inference to be drawn from the bank records bearing the name of Abog Bruane and any nexus with accused Francis Krufher. In hind sight the documents were eventually tendered and received into Court with no objections raised by Defence Counsel. He has now taken issue after close of evidence and during submissions on verdict. Using his own words: “it was not the duty of Court to assume the role of the prosecution to patch up its case”. Mr. Tusais for the State remains dumbfounded and expressed concern that raising this issue at the end of trial was disrespectful and borders on contempt.

40. Whilst I acknowledge that it’s within Defence Counsel’s right to argue for their clients they should not lose focus that they are Officers of Court and have a duty to assist Court in all matters before it. The responsibility that goes with this Office is enormous and comes with it one’s dignity. The slightest attempts to pervert this responsibility without substance brings with it loss of dignity and standing within one’s peers and the legal profession.

41. Having had the benefit of reading the following earlier judgments from my brother Judges on the issue on hand I have found some comfort and assistance. In the case of The State v Paul Loi (2009) N4058, delivered 16 July 2009 His Honour Batari J had this to say and I quote:
“A decision to call evidence is such a heavy responsibility not to be taken lightly by prosecuting Counsel. The election must be based on a duty to act fairly and in the interest of promoting criminal justice administration. It must be guided by proper principles and application of the “rule of law.” The maintenance of the “rule of law” requires the involvement of a fair, impartial prosecutor, consistent with ethical considerations of his role and the practice and procedure of the Court, to properly discharge his duty both to the State and the Court. At stake is the public interest which is to see that those charged with serious criminal offences such as unlawful killings are properly prosecuted in a Court of Law. The public interest represented by the State Prosecutor demands that, Counsel takes all reasonable steps to secure and adduce evidence as a general rule before prosecution case is closed. After all, that is the paramount consideration of a fair trial under s. 37(3) of the Constitution...”

42. In the case of The State v. Theo Yandalin & 2 Ors, (1995), N1329, Injia J (as he then was) in reviewing the common law role of a Judge and discretion in the Court or the Judge to interfere where important witnesses were not called by prosecution, (emphasis mine) said:

“The traditional role of a Judge in a criminal trial which is associated with the adversarial or accusatorial system of criminal justice based on the common law system which we have adopted has always been that the Judge sits as a neutral referee, arbitrator or adjudicator. He does not play an active role in the trial. Nevertheless, the common law has developed principles for the Judge or Court to intervene in situations where the exercise of the investigative and prosecutorial discretion has been exercised improperly so as not to attain the ends of Justice.” (Emphasis mine)

43. The two National Court cases has its genesis from the principle asserted in the case of R. v. Oliva [1965] 3 All ER116; 49 Cr. App. R 298 where Lord Parker CJ was succinct in delivering the judgment of the Court of Criminal Appeal stated at pp.309-310:

“The Judge can intervene to invite the prosecution to call a witness or the Judge himself can call that witness where the prosecution appears to be improperly exercising its discretion to call evidence”.

44. Unless those principles have changed over time or have been superseded with new case principles I remain content that the actions taken by this Court in conducting this trail solid and confined within the parameters of criminal trial practise and procedure.

3. Section 372 Stealing Guilty
4. I order that all necessary warrants for your convictions each and severally be issued forthwith and your cash bail of K5000 be returned to you upon production of original payment receipts. Both to be remanded in custody awaiting sentence.

_________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor/MS Wagambie Lawyers: Lawyer for the Accused

National Court of Papua New Guinea

State v Krufher [2016] PGNC 309; N6510 (18 October 2016)