Police v Beangke [2020] PGDC 36; DC5023 (19 October 2020)

DC5023

PAPUA NEW GUINEA

[IN THE WAIGANI DISTRICT COURT OF JUSTICE
SITTING IN ITS COMMITAL JURISDICTION]

Committal No. 1692 of 2020

BETWEEN

POLICE
Informant

AND

SHERMAN BEANGKE

Defendant

Port Moresby: T. Ganaii
2020: 19^th October

COMMITTAL PROCEEDINGS – One count of Misappropriation, contrary to section 383A (1) (a) of the CCA- Defendant is supplier of Mining Gear – Received monies for supply but failed to supply – Put monies to other use

COMMITTAL PROCEEDINGS – Legal requirements for prima facie case - Presence of the elements of the charge - Elements of charge are present in the Police case – Monies for supply of Mining Gear put to other use - Admissions in Record of Interview - Evidence is prima facie sufficient to commit the defendant to stand trial in the National Court on one count of Misappropriation, contrary to section 383A (1) (a) of the CCA

COMMITTAL PRPCESS – Phase two of committal process - Section 96 statement was explained and administered
Akia v. Francis PGNC 335, N6555
Maladina v Principle District Magistrate [2004] (25/06/04) Injia DCJ
Regina vs. McEachern [1967-68] PNGLR 48
State v Miriam Hevelawa (No. 1) (2017) N6815
Yarume v Euga [1996] PGNC 24, N1476

References
Hill E R Powles G; Magistrates Manual of Papua New Guinea, Lawbook Co. (2001). Sydney NSW 2009.

Legislation
Criminal Code Act Chapter 262
District Court Act, Chapter 40

Counsel
Police Prosecutor: Constable Peter Samghy For the Informant
Mr. Ila Pailaea, Lawyer, Public Solicitors For Defendant:

RULING on SUFFICIENCY of EVIDENCE

19^th October 2020
Introduction
Ganaii, SM. This is a ruling on whether there is a prima facie case made out within the meaning of s.95 (1) of the District Courts Act (DCA), after the receipt of all the evidence offered by the police prosecution in the form of the Police Hand-up Brief and after consideration of the defendant’s statement under section 96 of the DCA. The court is tasked to determine whether on the evidence as it stands at this stage of the proceedings, there is a prima facie case sufficient to commit the defendant to stand trial in the National Court.

2. The court had administered section 96 of the DCA and received the defendant’s section 96 statement.

Charge
3. The defendant Mr. Sherman Beangke is charged with one count of Misappropriation under section 383A (1) (a) of the CCA.

Statement of Facts
4. The defendant is the Director of a business in NCD known as the Absolute Work Wear Ltd Co. Between the 29^th of April 2019 to the 05^th of June 2019 K92 Mining Ltd transferred monies in the total amount of K142, 670.00 to the defendant’s account for the supply of Mining materials.

5. After the payments were made were made, follow up emails were made for four to five months on the supply. The defendant failed to respond and failed to supply the materials. Through the bank statements of the defendants, Police say the defendant depleted the monies in his account on his personal use and not on what the monies were paid and intended for. A complaint was filed with the police. Investigations were carried out and it was revealed that the defendant depleted the monies over time by use of his bank card at various locations in NCD. The monies were sent for the sole purpose of supply of mining materials but it was put to other use.

Issue (s)
6. The issue is whether a prima facie case is made out. This requires the court to determine whether the evidence received from the Police Hand-up Brief is sufficient to warrant the committal of Mr. Beangke to the National Court for trial.

7. The sub-issue is whether there is sufficient prima facie evidence on each of the elements of the offence of Misappropriation under section 383A (1) (a) of the CCA?

The Law:

The Law on Committal Proceedings

8. Part VI of the DCA provides the legal basis for committal proceedings specifically under sections 94 -100 of the DCA.

9. The Committal process whilst it requires the court to make a finding on the evidence presented by the police, this process is administrative in nature in that the court need only to form a view that there is a bona fide prima facie case against the defendant as per the case law of Akia v. Francis PGNC 335, N6555 and R v Mc Eachern [1967-68] PNGLR 48

10. In the matter of Maladina v Principle District Magistrate¹ Injia DCJ (as he then was) expressed his opinion that the Committal process involves two phases: the first is when the Magistrate "receives" or "hears" evidence offered by the prosecution only, considers the evidence, and decides whether the evidence "is sufficient to put the defendant on trial." If the Court is of the opinion that there is insufficient evidence, the Court discharges the defendant on the information. That is the end of the matter. If the Court is of the opinion that the evidence is sufficient to put the defendant on trial, then the Court proceeds with the examination of the defendant under s.96.

11. Phase two is the examination of the defendant by the Magistrate under s.96. The prescribed wording of s.96 statement, which the Magistrate puts to the defendant, is part of that provision. The statement implies that the defendant has "heard" the evidence for the prosecution, which the Magistrate has considered, and made his decision under s.95. The Magistrate gives the defendant an opportunity to give evidence and to say anything in relation to the charge, if he so wishes to.

12. Furthermore, in the case of Yarume v Euga [1996] PGNC 24, N1476 the National Court said in respect to committal hearings that the process of committal requires proper and reasonable assessment of the evidence with a view to seeing whether all the elements or ingredients of the offence is present before the defendant can be committed, sections 94B, 94C, 95 and 100 to be read together.

The Law on the Offending Provisions:
13. The law on the offending provisions read:

383A. MISAPPROPRIATION OF PROPERTY.

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

(a) property belonging to another; or

(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

14. The State v Miriam Hevelawa (No. 1) (2017) N6815, the elements of the charge of Misappropriation are:-

1. The accused
2. On a date

100. At a place

4. Dishonestly applied
5. To his or her own use or to use of another
6. Property

g) Belonging to another

Police Case
15. The Police case comprises the following witnesses' statements:

1. Peter Du Plessis – This witness is the complainant. He is the K92 Mine General Manager. He stated that on K92 Mining transferred two lots of payments totaling to K142, 670.00 into the defendant’s company account for supply of mining gear. The items were not delivered. He lodged a formal complaint after follows were made and defendant failed to respond.
   
2. Fiona Umpao – This witness is the supply manager for K92 Mining Ltd. Her evidence is similar to above. She provided timeline of events showing details of payment to follow up emails and no response from the defendant.
   

100. Marco Harmen– This witness is the Bank Manager for BSP Kainantu Branch. His evidence is based on the execution of a Search Warrant from the police. He had released to Police records for Bank Account No 1004300362 at Kainantu BSP Branch, for Absolute Work wear Limited, company owned by the defendant.
     

4. Malis Miningi – Witness is the Deputy Registrar of Company, Investment Promotion Authority. His evidence is that based on the execution of a search warrant he had released information on the incorporation of the company Absolute Work wear Limited and the director of the company is the defendant Sherman Beangke.
   
5. John Joseph – This witness is a police investigating officer.
   
6. Justine Kunduane– This witness is the Police Corroborating Officer.
   

Document evidence:
16. The Police case relied on the following documentary evidence:

a) Record of Interview (ROI) in English language. The ROI is relevant for showing that the process involved in the interview is fair and proper and that Constitutional Rights were administered. This ROI shows admissions in Q&As: 25 -29; 26. 30, 33, 37-38 and 39-53.

2. Company Extract – Shows date of incorporation of company PNG Work wear Limited, and Company Director as Mr. Sherman Beangke, Forms 1, 2, 4 and 6.
   

100. 2 x Pro forma Invoices – Showing request for items, descriptions of items and cost involved;
     

4. 2 x K92 Mining Limited ANZ Beneficiary Advice Payment and Remittance Advice - showing two sums of K45 650.00 and K97 020.00 totaling to K142, 670.00
   
5. BSP Bank Statement for Work wear Ltd – showing payments made and depletion of monies from account
   
6. Antecedent Report - The report is irrelevant at this time and is not considered by this court in its present function.
   

Defence Submission
17. Defence submitted as follows:

1. The Police in their case preparations have two different BSP Account Number for Absolute Work wear Limited.
   
2. This is a civil wrong in which the complainants are seeking redress in tis criminal proceedings and as such is an abuse of process.
   

100. Statement of Fiona Umpao refers to account number which is different to what is in the Police Statement of Facts. The account number in the Police statement of facts is 1004300363 and the BSP Banks statement records shows the number 100430032 which shows a difference only on the last numbers.
     

4. Statement of Marco Hamen refers to obtaining records from the bank from a Search Warrant. Defence say the Search Warrant was defective for not naming BSP as a party and as such documents seized were illegally obtained.
   
5. Statement of Malus Miningi from IPA says that he provided records from IPA to the Police as a result of Search Warrant orders. Defence say IPA was not named as a party in the proceedings and as such documents seized are illegally obtained.
   
6. The ROI contains admissions however, defence say the documents referred to were obtained unlawfully as IPA and BSP were not named as parties in the Search Warrant proceedings and therefore the ROI be rejected in its entirety.
   
7. ALL exhibits from the Banka IPA be rejected as they were illegally obtained when the Bank and IPA were not named as parties in the Search Warrant matter.

Prosecution Submission
18. The prosecutions made the following submissions:

1. The account number in the Statement of Facts (SoF) was a typographical error. The last number should have been a 2 and not a 3 and asked that the court take note of the error.
   
2. The Search Warrant was not challenged. The court granted the orders after finding that the application was in order. As such, all documents produced from BSP and IPA are properly obtained and admissible.
   

100. There is sufficient prima facie case against the defendant. The evidence from Police witnesses shows all of elements of the offence of misappropriation.
     

Assessment of the Evidence in the light of the Law
19. The issue is whether a prima facie case is made out. This requires the court under section 95 (1) of the DCA to determine whether the evidence received from the Police Hand-up Brief is sufficient prima facie to warrant the committal of Mr. Beangke to the National Court for trial. That is whether there is sufficient prima facie evidence contained in the Police Hand-up Brief on each of the elements of the offence of Misappropriation under section 383A (1) (a) of the CCA.

20. This is the Court’s response to the defence case is as follows:

1. The court accepts prosecution submission that there is a typographical error in the SoF on the account number for Absolute Work wear Limited. The last digit should have been a 2 and not a 3. In any case, it is the evidence that the court relies on to make this finding as the Banks is the holder and keeper of bank account records. The SoF contains error by the investigating officer who prepared the file.
   
2. There is no service contract between the complainants and the defendant in order for here to be a civil remedy. The arrangement was made on the premise that the defendant would deliver the supplies after monies were paid. The monies were paid specifically for issuance of mining gear and materials. The criminality of the matter is based on the defendant obtaining the monies and putting them to his own use rather that what they were intended for. is an abuse of process. The criminal complainant and proceedings is not an abuse of a court process.
   

100. Statement of Fiona Umpao form the banks in reference to account number for Absolute Work wear Limited is correct. The court accepted that the SoF contained a typographical error.
     

4. Statement of Marco Hamen from BSP and Malus Miningi from IPA are valid as they contain documents obtained as a result of a lawful Search Warrant. The defendant had not challenged the validity and legality of the Search Warrant and so documents obtained are valid and admissible as evidence.
   
5. The ROI contains admissions which referred to documents referred which were lawfully obtained from IPA and BSP. The ROI cannot be rejected in its entirety because although BSP and IPA were not named as parties, the legality of the Search Warrant was never challenged.

Analysis of evidence and consideration of defence submissions

21. The evidence collated and presented to court by the Police against the defendant in the form of witnesses’ statements and documentary evidence are in support of their assertion that the defendant did commit the offence as alleged.

22. On prima facie assessment of the elements of the charge, the following is said, that:

1. There is no issue on identification;
   
2. Dishonestly applied – the defendant received the monies specifically for the supply of mining gear however, he did not supply the mining gear;
   

100. To his or her own use or to use of another – the defendant depleted the monies from his account on other things than mining gear; and
     

4. Property belonging to another – the monies belonged to K92 Limited held in trust by the defendant for the supply of the mining gear.
   

23. Consequently, there is prima facie sufficient evidence on the elements of the charge of Misappropriation under section 383A (1) (a) of the CCA.

Determination/Findings
24. On the relevant issue of whether or not the evidence presented in the Police Hand up Brief discloses sufficient prima facie evidence to put the defendant on trial for the offence for which he has been charged with and on the basis of the above considerations, this court as a result of the performance of its committal function as an investigator into the strength of the case being mounted by prosecution and not as an adjudicator, has assessed the evidence in totality and makes the final finding that there is prima facie sufficient evidence on the essential elements of charge of Misappropriation under section 383A (1) (a) of the CCA.

Conclusion

25. I find sufficient prima facie evidence that Mr. Beangke did commit the alleged offence of Misappropriation under section 383A (1) (a) of the CCA. Consequently, I form a bona fide opinion that there is sufficient prima facie evidence against the defendant in order to commit him to stand trial on the charge.
Administration of Section 96
26. After the requirements of section 96 were explained to the defendant which he understood, he opted through his lawyer to write a statement. The matter was adjourned for a section 96 statement. After consideration of the defendant’s section 96 statement which was filed on the 08^th of October 2020, I consider that the defendant said he received the monies for mining gear but used it for other investment opportunities. According to the Bank Statements, it is shown that the monies were not used for investment opportunities but rather was put to personal use of the defendant. He stated his willingness to repay the monies. My view remains the same that the ruling on prima facie sufficiency of evidence is intact. The defendant’s section 96 statement is transmitted to the National Court.

Final Orders

27. The court’s final orders after section 96 statement were filed are:

1. There is sufficient prima facie evidence to c committed the defendant to stand trial in the National Court on one count of Misappropriation under section 383A (1) (a) of the CCA.
   
2. The defendant is committed to stand trial in the National Court on one count of Misappropriation under section 383A (1) (a) of the CCA.
   
3. The defendant is to appear at the Waigani National Court, Criminal Listings on Monday 02^nd November 2020 at 9:30 am;
   
4. The defendant’s District Court Bail is extended on the same conditions and
   
5. The defendant shall files affidavits of two guarantors. The guarantors are to appear at the National Court on the 02^nd of November 2020 for bail review and for signing of Guarantors’ Certificate.
   

Police Prosecution For the Informant
Public Solicitors For the Defendant