Forova v Lapemu [2007] PGDC 94; DC629 (31 August 2007)

DC629

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL JURISDICTION]

DCCr 480 – 481 of 2007

BETWEEN

EVARA FOROVA
Informant

AND

TERRY LAPEMU
First Defendant

AND

JAMES LUHEME
Second Defendant

Goroka: F MANUE
2007: May 21; June 13; July 25; August 31

CRIMINAL- Particular offences – Stealing, moneys were to be paid in accordance to the pay sheet, Deductions was illegal.

Cases Cited
Nil

References
1. Section 48C (1) Summary Offences Act

Counsel
Senior Constable Yasanefa - For The State
In Person - For Defendants each and severally

31 August 2007

REASONS FOR DECISION

F Manue: The defendants Terry Lapemu and James Luheme stand charged that they did steal K443.00 and K300.00 respectively from Mr. Brohegere Siorio and eight others, all village court officials on the 4th January 2007. Thereby contravening Section 48c (1) of the Summary Offences Act.

2. Both defendants consented to a joint trial. The evidences of the offences against both the defendants is based on circumstantial evidence.

3. The issue is whether the deductions of the complainants allowance was legal.

4. Three out of the nine complainants came forward and gave evidence.

5. They are Janke Bonny, widow of Janke Zamanke who was a village court clerk and Jorue Masi who was a village court clerk and Jessy Kegonto, brother of the deceased Jessy Kegonto who was a village court peace officer.

6. The fourth witness is the informant. The others did not come forward due to their old age and their remote location.

7. Evidence by Bonny Janke is that on the 04 January 2007. She went to Henganofi Police Station to collect her late husbands allowance. She was expecting to collect K1, 017.00 but found that she collected only K500.00 which is a short fall of K517.00. She said according to the payslip she should have received the full amount as expected.

8. She said when she complained about it, she was told that the village court office had authorized to make the necessary deductions.

9. Jorue Masi’s evidence was that he went to Henganofi Police Station to collect his allowance. He was suppose to have been paid K653.94 but only received K250.00.

10. When he learnt that there was a short fall, he complaint to the police. When he further enquired as to why he was paid less than what he was to have been given, he was told that the village court boss had authorized the deduction, resulting in the short fall.

11. He stated that Toro and Patrick were responsible in collecting the total cheque and cashing it and later they distributed the allowances according to the computed pay sheet.

12. Jessy Kengonto’s evidence is similar. He was to receive for his deceased brother a sum of K1, 138.34 but received only K1, 000.00 which was K138.34 less than what he was to receive.

13. The three witnesses stated that there was no documentary evidence to suggest that the deductions was authorized by the village court office either in Goroka or Port Moresby.

14. The fourth witness is the investigator who received the complaints investigated the complaints and had the defendants arrested and charged.

15. He stated that he was on duty on the 04th January 2007; when Toro Lapenu and Patrick Itana approached him to ask permission in order to use his office. The use of the office was for the purpose of distributing village court officials, their overdue allowance, which payment had come from AusAid funding.

16. The informant stated that permission was granted and they were allowed to use the Criminal Investigation Division (CID) office.

17. He stated that during the payment, some of the recipients of the allowances lodged complaints at the Police Station.

18. The complainants had asked Toro Lapenu and Patrick Ifana why their allowances were deducted and not as per the pay slip. He said the two men had then explained to those that complainant that the deductions were instructions from the Goroka Village Court office.

19. Not being satisfied with the explanation he said the complainants made their complaint to the Police.

20. The informant stated that he had found a self made break-up pay sheet prepared by Patrick and Toro left at the C.I.D office, which was tendered as exhibit.

21. Tendered also were the redone computer pay sheet and the pay sheet by the Village Court Secretariat issued by the Eastern Highlands Provincial Administration.

22. The investigator also stated that when he had received the complaints he approached the defendants separately and explained the shortfalls of money of the complainants. He went to the extent of asking them to reimburse the addition payment made to them.

23. In the case of Terry, he was asked to refund K413.00 but repaid only K70.00. Another official – Gotorine – refunded K90.00 which was the addition pay he was given. The same with official Fane Agive who returned K80.00. Another official Fumro Eki returned K100.00.

24. He also called Patrick and Toro and asked them to refund K4, 579.96 which was the total money deducted from various Village Court officials.

25. The two men claimed that they were authorized by the Village Court office to do deductions and have the necessary documents to prove it. He said on the appointed date for the two men to produce the said document they failed to do that.

26. The defence called three witnesses inclusive of each of their own respective statements.

27. Terry Lapemu stated that the allowance was a backdated outstanding allowance which were not paid since 2000.

28. He stated that the Fomurenave Village Court officials were asked to open up an account to accommodate for the outstanding allowance they would get. The village court officials did not come up with any money to open up an account so he gave the Court officials K150.00 to open the account with an understanding that he would be paid interest.

29. The understanding of him being paid interest was reached between himself and all the Village Court officials, which he did not name.

30. He maintained that the extra money paid to him was not for nothing but for the money he used to open up the village court account as interest.

31. James Luhane stated that he was not among the officers who did the break up. He was given the money and accepted what was paid to him.

32. Toro Rapenu was the third defence witness. He gave evidence saying that when he was given the pay cheque for the Village Court officials he came to see their boss, Charles Goto, regarding some names on the pay sheet lists who have resigned and died, etc.

33. He said he was advised not to pay the deceased and resigned officers.

34. A note was given to him to be given to Henganofi Kiap.

35. The Senior Village Court Magistrates then met and did the break-up and paid the current Village Court officials.

36. He did not produce the note by Mr. Goto nor was the instructions by Mr. Goto produced.

37. Hegi Fumiloe gave evidence as the fourth defence witness. His evidence was similar to that of Toro Rapenu.

38. It is an offence under Section 48C (1) of the Summary Offence Act for someone to steal properties belonging to another person.

39. The offence has three (3) basic elements which are:

i. There must be property/ properties owned by another person

ii. The property/ properties must have been removed

iii. When removed, there was an intention to have the owner deprived permanently of the use of his property/ properties.

40. The issue here is not whether stealing occurred, but rather the defendants were involved in receiving the money.

41. It is clear from the evidence that the defendants and the complainants were both beneficiaries of outstanding allowances paid to all village court officials back dated from 2000.

42. The payment came in one cheque for all the Village Court officials as spelled out on a pay sheet prepared by the Village Court Secretariat and issued by the Eastern Highlands Provincial Administration.

43. The pay sheet shows that the payment was for all former and current Village Court Officials in their respective positions of Fomurenave Village Court area.

44. The list included the current members of 15, four (4) deceased, two resigned and two who missed out. It also gave details of each of their rates, months of allowances owed and amount payable.

45. Although when paid, each beneficiary should sign and give date paid and be witnessed by someone, those particulars were not made out.

46. Total payable allowances was K74, 684.59.

47. Prosecution witnesses Bonny Janke and Jessy Kegonto were to have received for her deceased husband and brother respectively. The names of the deceased’s were listed and prescribed amounts listed against their names.

48. The third prosecution witness Masi Jorue also had his name listed as a beneficiary with a prescribed amount against his name.

49. There is no question that monies prescribed on the pay sheet were legally theirs or to be paid to their nominated beneficiaries. The list was from the Village Court Secretariat who keep the official names of all Village Court Officials.

50. No one, not even the Eastern Highlands Provincial Administration has the right to alter those payments. Those persons have been legally listed to benefit legally as their due payments.

51. In my view the actions of Patrick, Toro and the defendants are illegal. They have no right to alter the payments nor did they have the right to deduct in any way what is duly the complainants, including the three prescribed witnesses.

52. There is evidence that the defendants were given the opportunity to correct their wrong doing. Police gave them the opportunity to return their extra payments to those who were affected by the illegal deductions. By that process, they were made known that the extra moneys paid to them was not legally theirs. They ignored that and by their choice they have elected to deprive the owners of their money permanently.

53. As to the question of whether Terry should be paid an interest for the money he loaned. I say that this something each Village Court official should do voluntarily after each have been paid their legally due amounts. Not deducted prior to them receiving theirs as the possible agreement is purely a civil arrangement.

54. Those who were involved in this evil scheme should also be prosecuted.

55. In the whole of the circumstances I find without doubt that the defendants each and severally are guilty as charged.

For the State - Senior Constable Yasanefa
For the Defendant - Each and severally in Person