N11584
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) NO 392 AND 396 OF 2024

THE STATE

V

EDDIE DAI

WAIGANI: BERRIGAN J
3, 9 JULY; 15 AUGUST; 14 OCTOBER 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – VERDICT – Section 404(1)(a), Obtain by false pretence – Elements and principles applying – the State must establish that the monies were obtained by a representation, whether a pretence, a promise or a combination of the two, that was false at that time – a broken promise does not of itself establish a false promise - Not Guilty. 

Cases cited
State v Ima (2020) N8676
Age v The State [1979] PNGLR 589
R v Roebuck (1856) 25 LJMC 101
Prosecutor’s Request No 4 of 1974 [1975] PNGLR 365
Roland Tom v The State (2019) SC1833
State v Kissi (No 2) (2023) N11013
Connelly v Director of Public Prosecutions [1964] AC 1254
R v Kray [1970] 1 QB 125

 Counsel
A Kaipu and S Kuku for the State 
S Olewale for the accused

DECISION ON VERDICT
1.	BERRIGAN J: The accused, Eddie Dai, is charged with obtaining K6500 from Hamule Ngiame by falsely pretending that he would sell a property to him once he received title to it, contrary to s 404(1)(a), Criminal Code. 

2.	The State alleged that on 5 July 2023 the complainant, Hamule Ngiame, became aware that the accused was selling a property located as section 99, allotment 006, Plover Street, Hohola. The accused told the complainant that the property belonged to the National Housing Commission (NHC) and was registered to his late parents. The accused asked the complainant for monies so that he could go to the NHC to sort out the title so that the complainant could buy the property from him. On 6 July 2023 the complainant gave the accused K100 bus fare and K300 worth of store goods. On 17 July 2023 the complainant gave a further K200 for the accused to go to NHC again but he was unable to obtain any information. On 19 July 2023 the accused went to the NHC and returned with an NCDC Garbage Rates statement for the property showing that the property was listed in the names of his late parents. On 29 August 2023 the accused asked the complainant for K5000 to pay the outstanding arrears and charges and change the title to his name so that he could sell it to the complainant. On the same day the accused asked for a down payment of K20,000 but the complainant demanded that title must be cleared and a proper agreement must be made between the accused and his three brothers before he would purchase the property. The title was transferred to the accused on 18 December 2023 but instead of informing his biological brothers and the complainant he sold the property to someone else. 

3.	On their face those allegations raise two matters. The first is that it appears given the monies involved that the matter should have been dealt with at the District Court summarily. The Acting Public Prosecutor declined to make that election, however, and so the matter was committed to the National Court. The Court has no control over that election but there is nothing in the nature of the allegation nor the monies involved that warranted trial on indictment and the time required to bring the matter to trial and the State and Court resources required for that purpose. 

4.	The second matter is that on the State’s alleged facts this was never a criminal case. It was at best a property deal which fell through or at worst an attempt by the complainant to use the criminal process to recover the monies paid or compel the accused to sell the property to him.  

STATE CASE

5.	On 4 July 2023 Archie Hubert went to NHC to follow up some claims and saw Eddie Dai there. Eddie told him that he wanted to sell his house. Archie took him to meet Hamule Ngiame. He was interested in the property. He gave Archie and Eddie some bus fare to go to the NHC but there were no officers there so they went back and told Hamule. He helped them with some store items. The next morning Hamule gave them food and drinks and they went to NHC again. An officer, Franic Abba, told them that they would not receive a printout but that the property is in the name of the first buyer, Anton Aro. They came back and told Hamule. Eddie asked for 5000 to do a payment to receive the title. On 17 December 2023 he took Eddie to Hamule’s house. Hamule gave Eddie K5000 in cash. They signed some documents. Eddie promised that he would do whatever he had to do to transfer the title so that he could sell the property to Hamule. Eddie took the money and went to NHC and got the printout in his name and his parents’ name. The next day he asked Hamule for a down payment of K20,000. Hamule told him that he is a real estate person and he does not do this kind of thing but he can go and bring his brothers to share the money with him. Eddie told Hamule that his brothers were drug addicts and he could bring police down and remove them. After that they tried calling Eddie a couple of times but he did not answer. In July 2024 they saw that Eddie and the police were evicting his brothers from the property. He went and told Hamule and they both went to the property and argued with the new buyer and the police and stopped the eviction. That is why the brothers have agreed to support his buyer, Hamule. He identified a receipt dated 18 December 2023 for K5000 received by Eddie as “initial deposit”. 

6.	He agreed that because the sale did not go ahead Eddie tried to refund Hamule’s money but Hamule was not interested in the money, he wanted the property.  

7.	The complainant, Hamule Ngiame was introduced to the accused by one of the accused’s neighbours, Archie Hubert. Hamule asked the accused if he had any documentation showing ownership of the property. The accused said he did not and would have to get it from NHC. The property was under his late parents who died intestate so he would go and get a printout to show him. The accused went back and forth with Archie to the NHC and on 19 July 2023 brought a document from NCDC showing garbage rates for the property in his parents’ names. The complainant paid for every bus fare, taxi, lunch money. 

8.	On 29 August 2023 the accused provided a statutory declaration from NHC showing that the house was registered not to his parents but to another person, Anthony Aro. The accused told him that Anthony was the first buyer who failed to pay K4000 arrears and that is why he was looking for another buyer. The accused asked for K350,000 and the complainant countered with K300,000 which the accused accepted. They signed a letter of offer and acceptance. The accused asked for K20,000 as down payment but the complainant told him that K20,000 was more than the rental arrears on paper so he told the accused “you go and get the signed paper from siblings and I will give you K20,000”. The accused never came back to him with the agreement from his siblings. 

9.	Several months later on 17 December 2023 the accused came to him and said it was okay he would take K5000 to clear the rental arrears. The complainant told him to come back the following day when he gave K5000 to the accused, witnessed by Archie, and they signed a receipt “as initial deposit to buy the property”. He told the accused that he was next of kin and could change the title from his late parents’ name and take it from there. The accused came back with a printout in his name and asked for the balance. The complainant then said that he wanted a breakup from the siblings before he would pay. But the accused went away.  

10.	On 24 January 2024 he was told that there was an eviction at the property by another buyer with police. He went and stopped the police. He asked the accused’s brothers and they said they would fight the accused. He gave K5000 to the accused’s brother, Misina Dai, to engage lawyers and print out paperwork. They agreed to accept the same price he offered to the accused of K300000. The total he gave to the accused for the purpose of obtaining title from NHC was K6500. After he got the printout on 25 August 2023 the accused promised him that if he could clear the K4000 he would sell the property to him and because of that they exchanged letters of offer and acceptance on the price. The accused did not sell the property to him in the end but he is still waiting for the break-up that he asked for. The accused came with police to try to repay the monies but the complainant told him that he promised to sell him the property and so he cannot accept the monies.

11.	Under cross-examination Mr Ngiame said that there was no contract of sale because he was waiting for the agreed break up on price from the siblings. It was not the accused’s property so he was waiting for that. He experienced a problem before when he purchased property in the same area. He wanted the agreed break up from the siblings so they were happy to move out.  He paid K4000 in arrears so that the accused could correct the register from Anthony Aro to his own name or his parents’ name. His parents were the tenants but the accused could not benefit alone. The other kids have rights. He does not know anything about reducing the price to K200,000. K5000 was the down payment. There is usually a 10% deposit but there was an issue with the property as the title was under Aro’s name. The accused tried to repay the monies twice but he refused. He wanted the property. He got him arrested. 

12.	In response to the Court’s questions, Mr Ngiame has a Masters in Business Administration and was formerly a credit officer with BSP. He is an unregistered free lance real estate agent. The break up he was waiting for was to identify the number of children and how much he should pay to each of them. He agreed that there was no contract of sale until the accused gave him the break up he required. As to what he was hoping to achieve by these proceedings, he said that “he should buy the property”. 

13.	Misina Dai is one of the accused’s four remaining siblings. He says that the accused tried to sell the house whilst his parents were alive and was driven out of the Gordon’s house by his parents many years ago and they did not know what happened to him. Their father died in 1998. The accused tried to do the same thing when their mother died in 2021. The accused evicted them from the house in January 2024.  At the time Misina was living there with his brothers, the bubus and all the in-laws.

14.	In cross-examination he said that he was not aware of any deal between the accused and the complainant. Eddie is the eldest but he is not a good person in the family. Misina and Paul received K5000 from the complainant on 2 February 2023 as “second payment to buy the property”. They asked the complainant to help them get the police to arrest the accused. Misina received the money to fight the case. The house was registered in his parents’ name but the accused changed it and he does not know how. He is in court to defend the family house against the accused. 

DEFENCE CASE

15.	Eddie Dai met the complainant through Archie. The tenancy of the property came to his name because NHC asked who is the next in the family. His deal with the complainant was for K350,000 but the complainant reduced it to K200,000 and then told him that he would have to pay all the arrears and that whatever was left, like K20,000 or K10,000, he would pay and get the property. So the accused went to NHC and stopped the deal with the complainant. He found a new buyer, Wilson William. He never signed any contract for sale with anyone except William. He did not sign a contract with the complainant because he reduced the price to K200,000. The complainant did give him K5000.  Hamule contacted him through Archie and gave him the money and said use it for Christmas. The accused did not ask for the money. After the sale did not go ahead with Hamule, he tried to refund the money. He tried two times to give him K10,000 but he refused to accept it. He said that he does not need the money he needs the property.  

16.	Under cross-examination the accused agreed that he promised Hamule that when he cleared the title and got it in his name he would sell the property to him but sold it to someone else. He agreed that Hamule assisted him to go to NHC to complete the paperwork. He got K6500 to get title under his name. He did not get it for the NHC arrears to be cleared. There were no arrears at NHC. The complainant gave him the other K5000 and told him to use it for Christmas. 

17.	Misina was lying. The accused lived at the house, including after his parents died. His brothers still live at the house now. He sold the property to Wilson William for K250,000 on 22 January 2024. He gave his brothers some of the monies and the police witnessed it at Central Police Station. 

OBTAIN MONIES BY FALSE PRETENCE

18.	To establish the offence of obtaining goods or credit by false pretence contrary to s 404(1)(a) of the Criminal Code the State must prove beyond reasonable doubt that the accused:

a.	by a false pretence (or a wilfully false promise, or partly by a false pretence and partly by a wilfully false promise);
b.	obtained from another person;
c.	any chattel, money or valuable security;
d.	with intent to defraud.

State v Ima (2020) N8676 at [29]. See Age v The State [1979] PNGLR 589 for application of principles.

19.	The accused must obtain the monies by reason of or as a result of a false pretence: Ima at [32] applying R v Roebuck (1856) 25 LJMC 101.  

20.	The State must also prove an intention to defraud as a separate element of the offence. 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 in the circumstances of any particular case: Prosecutor’s Request No 4 of 1974 [1975] PNGLR 365; Age v The State [1979] PNGLR 589. 

21.	An intention to defraud means an intention on the part of an accused 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 by using deceit, or fraudulent or dishonest means knowing that he or she has no right to deprive that person of that property or to prejudice those rights or interests: Roland Tom v The State (2019) SC1833.

Chattel, money or valuable security

22.	There is no dispute that the accused received monies from the complainant albeit there is some dispute about how much he received in total, when and for what purpose. 

23.	There does not appear to be any real dispute that the accused received cash for bus fare, store goods, food and drinks to go back and forth to NHC on several occasions in July and August 2023.

24.	The accused also admits that he received K5000 from the complainant in December 2023. Mr Ngiame says he gave it to the accused as an initial deposit for the property. The accused says he gave it to him for Christmas. I will return to this dispute below.

25.	The real issue in this case, however, is whether any of the monies were obtained by reason of a false pretence on the part of the accused.  

False pretence

26.	The State submits that “the main issue during trial was whether or not the accused stole K6500 by not keeping his promise to sell the property” to the complainant; and again, in conclusion, “there was an agreement and the accused clearly breached it by not selling the property to Mr Hamule”. 

27.	To be clear, a broken promise is not of itself a false pretence or a false promise, which are defined in s 403, Criminal Code:

FALSE PRETENCE: WILFULLY FALSE PROMISE.
(1) A representation made by words or otherwise of a matter of fact, past or present that–
(a) is false in fact; and
(b) the person making it knows to be false or does not believe to be true,
is a false pretence.
(2) A promise made by words or otherwise to do or omit to do any thing by a person who at the time of making the promise–
(a) does not intend to perform it; or
(b) does not believe he will be able to perform it,
is a wilfully false promise.	

28.	A false pretence is a representation of a fact, past or present, that is false in fact and the person making it knows to be false or does not believe to be true: s 403(1), Criminal Code. A false promise is a promise to do or omit to do any thing by a person who at the time of making the promise does not intend to perform it or does not believe he will be able to perform it: s 403(2), Criminal Code. In some cases the representation may be both a false pretence and a false promise: s404(1). 

29.	In this case the indictment averred that the accused obtained the monies by false pretence when in fact it was alleged that the accused obtained the monies by a false promise, namely that if the complainant assisted him he would sell the property to the complainant once he received title. The reference to a false pretence instead of a false promise whilst a common drafting error is not fatal to the charge.

30.	Critically, however, regardless of whether the State is alleging a false pretence or a false promise, or a combination of the two, it must establish beyond reasonable doubt that the representation was false at the time it was made either because the accused did not believe it was true or because the accused did not intend to perform it or did not believe he would be able to do so. 

31.	With respect to the monies obtained between July and August 2023 the accused did not obtain the monies on the promise that he would sell the property to the complainant, the monies were obtained for the purpose of obtaining documentation to show that he had title to the property. 

32.	Even assuming that there was some implied promise on the part of the accused to sell the property to Hamule in those circumstances there is nothing to show that the accused did not intend to do so. He went back and forth with Archie Hubert to obtain records from NHC to prove that he and/or his parents had title to the property. He signed a statutory declaration stating that he formally revoked the offer to sell the property to Anthony Aro. An internal NHC minute confirms that the statutory declaration was submitted to it, and that NHC conducted a meeting with both the accused and Anthony Aro at which they were told that the title would be restored to the accused.  It also appears that the accused provided a copy of the statutory declaration to Hamule Ngiame in August 2023 and it was on that basis that he agreed to purchase the property for K300,000, albeit no consideration was paid at that stage.

33.	As for the K5000 received in December 2023 there is conflicting evidence. 

34.	Mr Ngiame was an aggressive and argumentative witness. As a consequence his evidence was unclear and at times contradictory. It is also appears, and he does not deny, that the principal purpose of these proceedings is to obtain the property. That is a serious matter that also affects his credibility. 

35.	In addition, the accused has maintained from the time of his record of interview and in evidence that he did not ask for money from Mr Ngiame for rental arrears in December 2023 because none were owing. I am inclined to accept that evidence. 

36.	Several documents were produced by the State from the NHC. An internal memo states that the property was fully settled by the accused’s parents. The NHC reconciliation produced on 4 August 2022 confirms that fact and shows that the property was fully paid off in 2012 and in fact that “-K150” was the “mortgage settlement price”, or in other words that an amount of K150 had been overpaid as a result of the regular salary deductions to that date. I do note, however, that at least K10,308.64 was owing in garbage rates as of 12 October 2022 and presumably that continued to accumulate albeit the State failed to produce any evidence about that.

37.	In addition, the complainant says that the accused came to him the following day in December with an NHC printout that showed that the property was transferred into the accused’s name or that of his parents but he was not asked to identify the document in evidence and there is no such printout produced by the State.  

38.	I do not accept the accused’s evidence that he received K5000 from Hamule for Christmas. He signed a receipt. Whether he fully understood the document, which was in English, it is not in keeping with common sense that he signed a receipt for Christmas money. In addition, on his own evidence he tried to repay the money when the sale to Hamule did not proceed which suggests that he did know that it was for the purchase of the property.

39.	Even accepting the complainant’s evidence, however, that the K5000 was an initial deposit for the property it was he who, when the accused returned the following day with confirmation that he or his parents had title and asked for the balance, refused to pay until the accused provided a signed agreement from the accused’s siblings. 

40.	The complainant has a Masters in Business Administration. He was formerly employed as a Credit Officer with BSP. He is real estate agent albeit unregistered. It is clear and the complainant admitted when questioned that there was no contract for sale until the accused gave him the break-up of the amount payable to the accused’s brothers.  The fact that the complainant did not want to proceed to purchase the property unless there was a clear agreement as to how much the accused’s brothers were to be paid was understandable. Apparently he had bought a property before where the siblings had been unhappy about the sale and so he wanted to avoid that. That is fine but it was he who declined to proceed with the sale until such a break-up was given. 

41.	I also appreciate that there is a dispute between the accused and his brothers about the property. The accused says he shared the proceeds of the sale to Wilson Williams with his brothers. One of them denies it. Misina says that the accused had a long history of trying to sell the property out from under the family for many years and had been expelled from the family home as a result. It is difficult to accept that evidence given that Archie Hubert appears to know the family and yet made no mention of it. Similarly, it is not clear to me how the complainant knew about the accused’s siblings unless the accused or Archie Hubert told him. Ultimately it is very difficult for me to make any clear findings out of this evidence other than that there is now a dispute about the property. 

42.	Regardless of whether or not the accused was entitled to sell the property and regardless of whether he did in fact share the proceeds of the ultimate sale with his brothers, it was the complainant who refused to proceed with the purchase in December 2023. 

43.	I appreciate that it is the complainant’s evidence that the accused was aware from August that no payment would be made until the accused obtained a break-up from his siblings but I do not accept that evidence. On the documentation the reason there was a delay between August and December is that there was a delay within the NHC in reverting the property from Anthony Aro to the accused for reasons that have nothing to do with the accused. 

44.	On the complainant’s own evidence he said nothing about the accused’s siblings when he gave the accused K5000 on 17 December 2023 to go and get the title. He told him that he was entitled to get the title in his name as next of kin. It was only when the accused returned the following day and asked for the balance that the complainant then asked for the break-up with his siblings. 

45.	Similarly, Archie Hubert says that he was a witness to everything and he only referred to the complainant requiring a break-up from the siblings on one occasion and that was on the second day in December when the accused returned with proof of title and asked for K20,000.

46.	In all the circumstances the State has failed to establish beyond reasonable doubt that when the accused received K5000 on 18 December 2023 that he did not at that stage intend to sell the property to the complainant. It was the complainant who refused to proceed with the sale the following day until he received a signed agreement from the accused’s brothers. 

47.	Accordingly, the State has failed to establish beyond reasonable doubt that the accused obtained any of the monies alleged because of a false pretence or false promise on the part of the accused.

48.	It follows that the accused must be acquitted.

With intent to defraud

49.	For completeness, I note that for similar reasons the State has failed to establish beyond reasonable doubt that at the time the accused received any of the K6500 alleged he intended to defraud the complainant. Nor has the State established beyond reasonable doubt that he intended to defraud his siblings at the time that he obtained the monies. 

CRFC 392 and 396 of 2024

50.	The accused was committed on two separate occasions to the National Court in relation to the same property. On 11 November 2024 he was committed with respect to the charge of obtaining K6500 from the complainant by false pretence (CRFC 396 of 2024). On the same day the accused was committed by the same magistrate on a charge of obtaining the property valued at K250,000 by falsely pretending to NHC that he was entitled to be registered as the legal owner in the absence of his brothers’ consent (CRFC 392 of 2024). 

51.	At all stages both matters have been listed and called together. 

52.	On 17 February 2025 the State was asked if the charges on which the accused was committed separately would be tried together. The State indicated that they were related charges. The Court noted that at least one of the charges concerned a very large amount of money and asked if the State would be able to try them together. The State indicated that it would. On 21 February 2025 the defence indicated that both matters would be contested.  The Court indicated that they would have to be kept separate until the State filed its pre-trial review statement indicating how it would proceed. 

53.	Whilst the State’s pre-trial review statement only referred to CRFC 392 of 2025, 392 of 2025 was in fact the committal arising from the complaint by the accused’s brothers. Furthermore, it appears to indicate that the State will rely on materials from both files, for instance the letters of complaint by both Mr Ngiame and the accused’s siblings.  

54.	On 31 March 2025 the matter was first fixed for trial in July.  On 14 April 2025 the State was again asked whether with respect to both files it was only proceeding with the false pretence charge for K6500 and it confirmed that was its position. The trial date was confirmed. 

55.	The trial proceeded. It was only when the matter returned for submissions on verdict that the State indicated that it now intends to proceed with the other charge and asks the Court not to close the other file (CRFC 396 of 2024, which as above arises from Mr Hamule’s complaint which has been dealt with here in any event). Defence counsel objects on the basis of the representations made by the State during the pre-trial process and says that it is oppressive and an abuse of process.  

56.	In short, the State was asked and confirmed on more than one occasion during the pre-trial process that the two files from committal would be dealt with together. That is the purpose of the pre-trial process. Considerable time and resources are spent time during that process. It has implications for the Court, the State and the accused. If the State intended to run two separate trials then the Court should have been made aware of that so that the second matter could have been referred to another judge to avoid unnecessary delay.  

57.	Whilst the matters arose out of two separate committal proceedings they constitute a series of acts done or omitted to be done in the prosecution of a single purpose by the accused, namely the obtaining of title to the property for the purpose of s 531, Criminal Code. Arguably therefore the matters should have been dealt with together if the State intended to proceed with both of them in any event. 

58.	The courts have long adopted the rule that matters which may be tried together should be tried together unless the accused will be prejudiced: see State v Kissi (No 2) (2023) N11013 at [31] and the cases applying Connelly v Director of Public Prosecutions [1964] AC 1254. It promotes consistency in decision-making and facilitates a single and final enquiry into matters which arise out of or essentially involve common issues of fact or law in relation to a particular accused. It avoids the risk of oppression to an accused faced by being brought to trial on multiple occasions. It promotes the expedient administration of justice resulting in the saving of court time, public expense and the convenience of witnesses: R v Kray [1970] 1 QB 125 at 131. That issue was never raised nor argued, however, because the State indicated that it intended to deal with both matters together and only proceed with the current charge.

59.	That is the key point. That decision was a matter for the State. The Court and the accused are entitled to rely on such representations by the State. 

60.	It is not in the interests of justice, nor the integrity of and public confidence in the criminal justice system, nor its efficient administration to do otherwise in general terms and the State has failed to demonstrate any reason for doing otherwise in this particular case given the above circumstances.

61.	Accordingly, I order that both files are closed.  The accused’s bail monies shall be refunded to him.

__________________________________________________________________
Lawyer for the State: Public Prosecutor	
Lawyers for the accused: Universal Lawyers