State v Stephens [2011] PGDC 3; DC1048 (14 January 2011)

DC1048

PAPUA NEW GUINEA
[In the District Court of Justice sitting in its criminal Jurisdiction]

Cr No, 33 of 2010

BETWEEN

STATE

V

ELIAS STEPHENS
Defendant

LIHIR: B.TASIKUL
14th January, 2011

CRIMINAL LAW: Ruling on a Committal hearing- Defendant charge for misappropriation K183, 215.63 by signing a cheque. No evidence to connect defendant to the offence as he was only carrying out his duty.

CASES CITED:
State V Wanjil [1997] PNGLR64
State V Kindi Lawi [1987] PNGLR183
State V Francis Natuwohala [1994] PNGLR 291
Zanetti V Hill (1962)108CLR291

REFERENCE:
Criminal Code Act, ss. 383A (1) (a), 404(1) (a)
S.32 Public Financial Act

Appearing for the defendants: In person
Appearing for the Prosecution: Senior Constable Tenanga Elsie

RULING ON COMMITTAL

1. B.TASIKUL a/PM: The defendant was arrested and charge for two counts. The first count is that; he dishonestly applied to the use of others the sum of K183, 215.63 money belonging to Nimamar Rural Local Level Government
   
2. On the second count he stands charge that on the 13th August 2008, he did by false pretence to Nimarmar Rural Local Level Government by approving and signing a payment for repatriation cost without the knowledge and approval from the Tumbawinlam Assembly members, thereby did obtain from Nimarmar Rural Level Government a cheque payment of K183, 215.63 with intent to defraud.
   
3. Both of the charges are laid under s.383A (1) (a) and 404(1) (a) of the Criminal Code Act, respectively.
   
4. It was alleged that the defendant did signed a Nimamar Development Authority cheque No 001150 for the amount of K183215.63 being for repatriation costs for the President's family from Australia to Lihir Island. The source of funding for this exercise was taken from the 30% Royalty payment component. The funds under which the money was drawn from is only meant for community development projects, as provided for under an agreement between the Lihir Gold Mine,(now Newcrest Mining Limited) Independent State of Papua New Guinea, New Ireland Provincial Government, Nimamar Rural Local Level Government and Lihir Mining Area Landowners Association.
   
5. I had the opportunity to review the evidence which was tendered by the prosecution in the hand up- brief. The duty of the committal court is to scrutinize the evidence adduced by the state and form a view whether there is enough evidence to commit the defendant to stands trial in the National Court.
   
6. That's now lead me to the question of whether the evidence adduced by the State is sufficient enough for the defendant, to be lawfully convicted should the matter is allowed to proceed on further?
   
7. To answer that question I would like to adopt the view express by his honor Lenalia J in a case of State V Wanjil[1997]PNGL64 which he adopted in the case of Zanetti V Hill(1962)108CLR 438,
   

The question whether there is a case to answer, arising as it does at the end of the prosecution's evidence in Chief, is simply the question of law whether the defendant could lawfully be convicted on the evidence as it stands - whether that is to say, there is with respect to every element of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred.

8. Section 383A(1)(a) of the Criminal Code Act which reads:
   

1) A person who dishonestly applies to his own use or to the use of another person–

(a) property belonging to another; or

is guilty of the crime of misappropriation of property

9. The State is alleging that the defendant without the knowledge and approval of the Finance Executive Committee and the Assembly members approved and signed the cheque of K183, 215.63 making the payment possible to repatriate the President's family from Australia to Lihir Island.
   
10. There is no doubt from the evidence by the witnesses that the funds use to repatriate the President's family were meant for development purpose according to the agreement signed between the parties. This was confirm by the evidence of both Mark Soipang, the Chairman of LMALA and George Minjihau representing the State who are signatory to the agreement.
    
11. It is also not disputed that the defendant was the signatory to the BSP cheque no 001159 for the amount of K183, 215.63 that was paid to the President's family for repatriation purpose. This is the only evidence connecting the defendant to the two charges as now stands.
    
12. The laws of misappropriation, especially the meaning of dishonesty have been settled in our jurisdiction in the case of Kindi Lawi V State [1987] PNGLR183,as quoted;
    

The term "dishonestly" as appearing in s. 383A of the Criminal Code relates to the State of mind of the person who misappropriates, or misapplies whatever property is the subject of the charge under consideration. It is a question of fact for the judge or tribunal to decide upon the evidence being put before it,

13. In State V Francis Natuwohala [1994] PNGLR 291 his honor Lenalia J stated that;
    

In order for the Court to determine dishonesty, it must look into the mind of the accused person and determine whether given the accused intelligence he would have appreciated if what he was doing was or amounted to dishonesty.

14. Given the evidence now before me, I have to ask myself this question, was the defendant acted dishonestly in signing the cheque?
    
15. The defendant was employed by the Nimarmar Rural Local Level Government as a Human Resource Coordinator. His duties and responsibilities were to deal with the Organization employee salaries, entitlement and other related duties. He was also mandated as one of the signatory to the Nimarmar Development Authority Account.
    
16. The State is arguing that the defendant has no authority to sign any cheque as he was not a Section 32 officer under the Public Finance Management Act. I of the view that the reason why the defendant signed the cheque was basically he was obligated as a signatory to the account.
    
17. Yes, I will agree with the evidence provided by the State that Nimarmar Rural Local Level Government was operating outside the normal Provincial Government system, which was not sanction by the State or appropriate authority. However, I am of the view that the defendant as an employee of the Organization was only doing what he was suppose to do as part of his responsibility. I think the State should look beyond and investigate why or who was responsible for allowing the Nimarmar Rural Local Level Government to operate outside the normal government system.
    
18. I have extensively explored all the evidence before me and there is no evidence of complicity by the defendant. The court cannot infer in this circumstance without any further relevant evidence. One essential element of misappropriation is dishonesty.
    
19. Even though the money was use for the wrong purpose which repatriation cost for the president's family from Australia to Lihir Island. There is no evidence to connect the defendant to the offence of misappropriation or he dishonestly applied it to the use of others. As I have mentioned above he did what he suppose to do.
    
20. For the second counts of false pretence under section 404(1) (a) of the CCA, the same evidence presented by the State are the same, which also fall short in establishing all the element of this charge.
    
21. I therefore find that there are insuffient evidences to commit the defendant to stands trial in the National Court. The defendant is therefore discharge and his K1000.00 bail be refunded.